author: Pratt, J.:

text:
    JAMES ROACH, Respondent, v. BENJAMIN B. O’DELL, Sheriff, etc., Appellant.

      .Jail — power of the boa/rd of supervisors to establish one — power of the boa/rd to establish and dlterr jail liberties — 1875, chap. 482, see. 1, subs. 1, 18 — Oode of Qivil Proeeckire, see. 147.
    Under the power “ to purchase, or otherwise acquire for the use of the county, real estate for sites * * * for jails and such other places of confinement as may'be authorized or required by law,” and “to erect, alter, improve, purchase and receive by gift buildings for any of such purposes,” conferred upon boards of supervisors by section 1 of chapter 482 of 1875, it is not necessary that the board should purchase a site and then erect a building thereon. If the county owns real estate with an appropriate building thereon, it may, under the said act, appropriate a part of such building to be used as a jail.
    It is not necessary that the jail should be acquired and established in such a building by an express enactment of the board; it is sufficient if the part of the builciing used for that purpose be recognized as a jail by the acts and resolutions of the board.
    Section 121 of the Code of Civil Procedure, providing that “ the buildings now used as the jails of the other counties of the State shall continue to be the jails of those counties, respectively, until other buildings have been designated or erected for that purpose according to law,” applies not only to jails then lawfully existing, but to buildings which were then, and had for many years prior thereto, been used as jails, and recognized as such by the county authorities.
    .Chapter 482 of 1875, authorizing boards of supervisors, upon the recommendation of the County Court, to establish, and from time to time to alter, the jail liberties, repealed by implication the prior statutes conferring this power upon the County Courts.
    Under the said act of 1875 the board of supervisors has power to fix jail liberties as a purely administrative act, or by the exercise of its legislative functions, as provided in section 18 of subdivision 1 thereof.
    •In acting upon the subject of the jail liberties, in the exercise of its administrative functions, the board is subject to the limitations contained in section 147 of the Code of Civil Procedure, and cannot establish liberties exceeding 500 acres ' in quantity; but in exercising the legislative power conferred upon it by said section 18 of subdivision 1 of chapter 482 of 1875, it is not subject to the said limitations and may establish jail liberties exceeding in extent 500 acres.
    Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict directed by tbe court, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before whom tbe action was tried.

      M. H. HirscKberg, for tbe appellant.

      Reilly <& Hamilton, for tbe respondent.
   Pratt, J.:

This is an action against tbe sheriff for an escape of one Kivlin, .a judgment debtor, against whose body an execution bad been issued for $3,000 recovery, and fifty-five dollars and eighteen cents costs in an action by tbe plaintiff for erim. con. Tbe original judgment was recovered in Albany county November 4, 1881, and it was docketed in Orange county August 10, 1882. Tbe execution was delivered .to tbe defendant August 11, 1882, against Kivlin’s property, which was returned September 11, 1882, wholly unsatisfied. Tbe execution against Kivlin’s person was issued November 17, 1882, and delivered to defendant, who, on tbe same day, arrested him and kept him in bis custody, confining him in tbe cells connected with tbe Newburgh court-house until November 24, 1883, when be gave a bond in tbe usual form for the jail liberties and was released. In tbe meantime, and on tbe 23d day of November, 1883, tbe board of supervisors of Orange county, professing to act under chapter 482 of tbe Laws of 1875, upon the recommendation of tbe County Court, enacted that tbe jail liberties, which were then at Goshen, should be enlarged so as to include tbe city of Newburgh in cases where the person arrested was taken to the Newburgh court-hbuse, and that tbe act should take effect immediately. Tbe city of Newburgh is not contiguous to tbe jail limits at Goshen. It was assumed by tbe defendant and Kivlin that this act authorized tbe latter to be at large on bail within tbe city of Newburgh, and there is no proof that he at any time departed therefrom until the entry of the order of his discharge.

This action for an escape was commenced against the defendant December 9, 1882. On the 17th. of March, 1883, Kivlin, conceding that he was still a prisoner on bail, made the usual application by petition for his discharge. Due notice of the application was given to the plaintiff and he appeared upon the hearing through his attorney, who had full authority in the premises.

On being brought before the court an order was made directing Kivlin to make an assignment of all his property, etc., to a trustee therein named. The assignment was made, and on the 24th of March, 1883, the final order was made by this court directing his discharge from imprisonment. No .question of the defendant’s good faith can be predicated upon the testimony.

The plaintiff puts his case thus in his points: “ The complaint charges an escape, first, for the detention in the cells (meaning the cells at the Newburgh court-house), and not as the law required in the county jail; second, for the liberation of the prisoner in New-burgh where there were no jail liberties.” It is thus apparent that this is not an ordinary case of escape, and that if defendant is held it must be strictissimi jwris.

I have concluded that there was a legal jail at Newburgh, i. e., that part of the court-house building which, prior to the present Code, was called the Newburgh cells. I think this fact appears independently of the Code. In 1875 the legislation, pursuant to act 3, section 17 of the Constitution, conferred further powers of local legislation and administration upon boards of supervisors (chap. 132), among which was the power to purchase or otherwise acquire real estate for sites for jails. It would seem plain that this power implied the right to acquire a jail, and that the board was not necessarily limited to the strict order of events indicated by the statute for such acquirement, i. e., first, to acquire real estate for a site and then to erect a building for that purpose. If the county already had real estate and an appropriate building erected thereon, it would seem to be within this power to acquire a jail in such building. It does not appear that there was any express act of this Orange county board by which the county acquired this jail, but it is conceded that it owned the court-house building and that a part thereof was constructed so as to be appropriate for a jail. Having already acquired the property, it was only necessary to legalize it as a jail. The fact distinctly appears that after the passage of the act of 1875, this board repeatedly recognized the so-called “Newburgh cells” as a jail of the county of Orange. In 1875 it elected physicians to the Newburgh and Goshen jails respectively.

It received and acted upon the report of its committee on public buildings, including the .“court-house and jails at Goshen and New-burgh.” It fixed the prices of the board of prisoners at the Newburgh and Goshen jails. Itallowed $100 for expenses incurred in preventing the escape of prisoners from Newburgh jail. In 1876 it appointed committees on supplies for the court-houses and jails at Goshen and Newburgh.” Yarious other important and unmistakable instances appeared in which the fact of a jail at New-burgh was distinctly recognized by this board until the present time.

If we deal with these as with similar acts of the legislature, it is plain that they furnish evidence that this local legislative body recognized the fact that a jail had been in some way “ acquired ” by the county of Orange at Newburgh. They are at all events evidence of the fact of a jail at that place, and in the absence of negative proof it must be presumed that it had been lawfully' acquired. But independent of this view, it is very plain that this so-called jail at Newburgh had been used as a legal county jail for general purposes for more than thirty years. The Code (chap. 11, tit. 2, art. 2) enacts that “ the building now used as a jail in the city of New York * * * shall continue to be the jail of the city and county of New York (see. 120), and that “the buildings now used as the jails of the other counties of this State shall continue to be the jails of those counties respectively,” etc. (Sec. 121.) This act was passed June 2, 1876. It took effect May 1, 1877. (See Laws 1876, chap. 448, § 1496.) It was suspended until September 1,1877. (Chap. 318, Laws 1877.)

It is urged that the provisions which I have quoted, refer only to those buildings now used as the jails which were then lawfully used as jails. I am unable to concur in even this view. It seems to me that if the legislature had intended such a limitation, its purpose would, have been more aptly expressed. The words referred to user simply. There is no limitation to lawful user, but simply to the fact of user for certain purposes. Suppose that the legislature had enacted that the lands now used as highways should continue to be highways; would it be pretended that a street or road which had theretofore been offered to the public, but which yet remained unaccepted, would not have been thereby accepted and legalized ? Simply because some of the formalities, required by former statutes, in respect to acceptance had not been strictly complied with. This act was ..passed in view of'the fact that a courthouse had been erected at Newburgh, and that since the establishment of tbe jail at Goslien, Newburgb had grown to be a large city, having new and important relations to the surrounding country and to the great business centers; so that considerations of convenience required an additional jail at that place, to be used in connection with the court-house. The legislature acted in view of notorious and long continued use of that place of confinement for the purposes of a jail, for the detention of persons confined under civil process, etc. But, be that as it may, this use of the cells in the Newburgh court-house, for the purposes of a jail, had been long recognized by the board of supervisors of Orange county in their public acts, and I am inclined to think that especially after the act of 1875, which conferred legislative power, including the subject of the acquirement of jails, such recognized use as a matter of fact came close to if it did not constitute a legalization of these cells as a jail. But, be that as it may, it certainly is the fact that such recognized use could not have been unknown to the legislature; it was therefore appropriate and reasonable that the building which, contained those cells should be recognized and legalized by the legislature as a jail, for the general purposes specified in this section of the. Code, and it is certainly also true that language was used which naturally and fairly referred to that court-house as one of the buildings then used as a jail. It did not cease to be a court-house because it was also a jail. The act is remedial in its nature and object, and must be interpreted liberally and according to the natural and popular meaning of the words in which it is expressed. I think that if the legislature had intended to speak only of the lawful existing jails it would at least have specified the existing jails and not the buildings which were then used as jails. It required no legislative enactment to continue the legal existence of a legal jail. 1 do not overlook the fact that the language is almost or quite identical with the former statute. That does not seem to me to affect the matter.

I think the construction upon which the plaintiff insists is too subtle, and it required the interpolation of a word which would not occur to the average citizen of average intelligence and even legal learning. It would be apt to mislead and result in precisely such hardships as that which the present case so aptly illustrates. I am therefore inclined to think that the county judge was correct, and bo bold, when in bis recommendation to tbe supervisors be said tbat “ tbe county of Orange bad two jails.”

Tbe next question relates to the legality of tbe establishment of tbe entire city of Newburgh -and “ tbe jail liberties ” of tbe New-burgh jail. I incline to tbe belief tbat tbe city limits were lawfully and properly established, as the boundaries of tbe jail liberties Formerly tbe power to establish jail liberties lodged with tbe old Court of Common Fleas. (2 R. S., 432, §§ 34, 35.) It then passed to tbe County Court as their successor. Those tribunals had tbe power to appoint and designate a reasonable space of ground adjacent to tbe jail, or jails, of such county to be denominated “jail liberties thereof.” If there was more than one jail tbe power related to either or both. They also bad power to alter these limitations. Generally speaking tbe original acreage of tbe jail liberties was 500 acres, and it was required tbat tbe territory should be adjacent to tbe jail and should be minutely described. But in cases where tbe liberty bad been fixed by statute it seems to have been assumed tbat tbe acreage might be increased. These courts still bad power to alter even those liberties thus specially fixed, subject only to tbe limitation tbat tbe new liberties should always include tbe old territory, tbe result would seem to be tbat in that class of cases tbe courts might alter by enlarging tbe liberties, but never by abridging them, so tbat tbe matter of mere acreage 'was never a vital point. It is also to be observed tbat their power “ to appoint and designate” and “to alter” jail liberties was a purely administrative function.

In 1815 this administrative function was transferred to tbe board of supervisors, and tbe powers of tbe county courts were limited to tbe mere matter of recommendation. The powers in tbe courts and in tbe board are inconsistent, so that without looking for any express repeal of tbe old statute, at the time of tbe passage of tbe act of 1875, there was a plain repeal by implication, and tbe old power in tbe court was clearly repealed by tbe repealing acts which followed tbe present Code. Like every administrative power this power, in respect to jail liberties, was to be exercised by a resolution of tbe board, but tbe législature did not stop here. It constitutionally conferred powers on tbe boards of supervisors which were purely legislative. I am unable to see why tbe legislative powers thus delegated did not extend to the subject-matter of the admin-istrative powers which were conferred at the same time. If this view is correct, the board of supervisors had the power to fix jail liberties as a purely administrative act, or to exercise its legislative functions “to establish, on the recommendation of the County Court, and to alter, from time to time, as such court shall recommend, the liberties of the jail or jails for the pui’poses defined by statute.” (Sub. 18, § 1.) It is not entirely clear that the legislative power thus conferred was to be exercised solely as an act in the'ordinary'form of an enactment. The second section seems to assume that it might be done by resolution, but it is, nevertheless, to be a resolution having a title and a statement of the vote whether by two-thirds of a majority just like a statute. It is at all events plain that such resolutions were regarded as enactments. The sixth section uses that term. The results of the legislative powers were necessarily enactments. It was, perhaps, unnecessary to make special provision to that effect, but the sixth section distinctly recognizes the force of such enactments as against existing statute laws, the latter become inoperative ” -as against the former. Here, then, we have two legislative bodies, the one superior and general, the other inferior and local. The legislative acts of each are necessarily enactments as distinguished from the mere resolutions by which the purely administrative acts are expressed. Noting again, that the subject-matter of acquiring jails and the establishment of jail liberties in the respective counties are within the subject-matter of the legislative as well as the administrative power thus delegated, and that these acts are purely local and so clearly within the constitutional powers of the legislature, let us pass to the next point, i. e., that after these powers were thus delegated, this board of supervisors proceeded in various wayfe to recognize the cells in this Newburgh court-house as a jail. Then followed the recommendation of the County Court; that in view of the fact that the county of Orange had two jails and had fixed no jail liberties for the Newburgh jail, an act should be passed fixing the limits at Newburgh so as to include the city of Newburgh. Here was a recommendation for the use of this legislative power. An act was suggested in face of section 14T of the Code which, substantially like the old statute, limited the jail liberties to 500 acres. The whole city of Newburgh, comprising over 2,500 acres, was named as a proper territory. Then followed not a resolution but an enactment. It is called an act. It fully complies with all the formalities required by the sections of the act of 1875. Its title concisely expresses its contents, following which is a reference to the act of 1875 as the source of its authority for its passage, and then a statement that it was passed by an unanimous vote. Now, was this hostile to section 147 of the Code which required the board to limit itself to the 500 acres ? I think not. Here are two legislative acts, there is. no expressed repeal in or concurrent with the Code, which refers to the act of 1875; indeed the acts which are repealed are specified and expressio unitis, etc.; again, if there is an express repeal of inconsistent provisions, the consistent provisions remain. Can these two legislative acts be harmonized ? We are bound to harmonize them if that can be reasonably and fairly done. Indeed the repugnance between the two statutes must be plain and unavoidable before a repeal by implication will be adjudged. To what then may section 147 of the Code refer ? I think it may fairly refer to the administrative powers of the board respecting jail limits, which might be exercised by mere resolution.

This power clearly existed from the passage of the act of 1875, when it was transferred from the county courts, down to the Code. If the administrative power only was exercised, its limitations were prescribed by the old statute respecting jail liberties, for that remained until the Code. But if the legislative power was exercised, it was done by enactment which rendered the existing statute inoperative. Why should this limitation of the Code be imposed upon the legislative power of the board. The act of 1875 marks a new policy in respect of local legislation. It is special legislation, without indicating the slightest purpose to abridge or recall any of this power to legislate upon the subject of jail liberties. It is said that the Code trenches upon this policy. I think not. Full force may be given to the Code if we confine it to the administrative function of the board to be expressed by resolution to be adopted by amere majority of a quorum of the board of supervisors. Besides that this act of loea* legislation is subsequent to the Code. Does it not render section 147 of the Code inoperative in Orange county ? The act of 1875 is to be construed prospectively, and upon general principles it might properly enact a law for local purposes which, so long as-within its legislative powers, would be valid as against a general act of the legislature. It would therefore seem that the establishment of these limits were fairly within the legislative power of the-board notwithstanding section 147 of the Code, and as such was properly exercised. If the legislature could establish jail limits at Newburgh, which could include the whole city, this board might do the same thing. And it did do it.

Is it suggested that this act does not purport to establish but merely to enlarge the existing jail limits, i. e., the Groshen limits 1

Now, this act uses the word “ extend” in its title and “ enlarged ” in the body thereof. But the recommendation of the County Court was that the limits be fixed. I have no difficulty in treating all these things as mere variations in phraseology, which mean the same thing, an exercise of the local legislative power to “ establish ”' jail liberties for the Newburgh jail. Even if section 147 did limit this power, the fact that the acreage of the Newburgh limits was too great would not defeat the fact that limits were established so as, to cast the onus of proving that Kivlin had been beyond the lawful limits, wherever they were, upon plaintiff, and thus to beat him for failure of proof. In this connection it may be well to note the effect of the final order for Kivlin’s discharge. He certainly alleged that he was still a prisoner. Plaintiff might have defeated this application if Kivlin was not in fact a prisoner, and that too without making such election as would have defeated his right to sue for an escape. He was notified and made a party to that proceeding. He appeared by attorney. I think that in the absence of the whole record the presumption is that he presented that point. It certainly is adjudged by that final order that Kivlin was then a prisoner. But it is perhaps unnecessary to determine this point. I am satisfied upon the whole that this judgment should be reversed, and that a new trial should be ordered, with costs to the defendant to abide the event. Perhaps plaintiff may prove that Kivlin did not remain in Newburgh.

Barnard, P. J., dissenting.

Present — Barnard, P. J., Dykmaw and Pratt, JJ.

Judgment reversed and new trial granted, costs to abide event.


source: Caselaw Access Project

license: Public Domain

text:
    JAMES A. BUCHANAN, Respondent, v. L. VICTOR HUNT, Appellant.

      Exemption of property from execution — the law of the forum and not that of the place-of the defendant’s residence controls — a non-resident cannot claim here the benefit of . a foreign exemption law.

    February 16, 1884, tbe plaintiff procured an order for tbe examination of tbe defendant in supplementary proceedings instituted upon a judgment recovered in this action, wbicb order was served upon tbe defendant within this State. Upon the hearing the defendant appeared in person and by counsel. From his examination it appeared that he was unmarried and an employe of the Brie Railway Company and resided at Hawley, Pennsylvania; that after the service of the order he received from the company in Pennsylvania money due from it to him, and that there was a further sum due from the company to him at the time 'the said order was served. Thereupon an order was made directing' him to pay over to the sheriff the money so received, and directing the company to pay to the sheriff the amount due from it to the defendant.

      Meld, that this was proper, and that the fact that by the laws of Pennsylvania the money and wages were exempt from ’ execution and attachment did not relieve the defendant from the obligation of complying with the terms of the order.
    That the question of exemption was to be determined bv the laws of this State- and not by those of Pennsylvania.
    Appeal from an. order made by tbe county judge of Orange county on tbe 22d day of March, 1881, in proceedings supplementary to execution in tbe above entitled action.
    On tbe 16th day of February, 1881, tbe plaintiff procured au order for the examination of tbe defendant in such proceedings, which was duly served upon him in Orange county, in this State, on that day. On tbe return of tbe order tbe judgment debtor applied for and secured an adjournment of tbe proceedings, and on the adjourned day the judgment debtor appeared in person and by counsel and was examined. Tbe examination disclosed tbe facts that tbe judgment debtor was employed by tbe Erie Railway Company as agent at Hawley, Pennsylvania; that be was an unmarried man; that after the service of tbe order' be drew bis wages due from the railroad company at Hawley, Pennsylvania, and retained' them; that about thirty dollars for his wages up to February 16, 1881, were due him from tbe railroad company at the time tbe order was served, and that no receiver of his property had been appointed. Upon such proceedings and examination the judgment creditor made a motion before the county judge for an order that the judgment debtor pay over the money in his possession to a sheriff to be designated in the order, and also that the railroad company pay to such sheriff the said sum due to the judgment debtor from it up to February 16, 188é, as disclosed by said examination, which motion was granted.

      Lewis K Oa/rr, for the appellant.

      John W. Lyon, for the respondent.
   Pratt, J.:

The court below acquired jurisdiction of the person of the judgment debtor, and he is fully amenable to its process. The remedies to which parties are entitled, and the operation of which they must abide, depend upon the law of the forum. To what extent their ■operation shall be restrained or limited by exemption laws must also depend upon the le^e fori. A non-resident coming into this State' may claim the protection of our laws equally with our own citizens. But while within our borders he may not claim to be outside the laws by which the rights of litigants are here determined. Some .theorists have argued that all laws for the collection of debts should be abolished, and that may yet become the policy of a sister State. Will a citizen of such State, sued here, then be clothed in our courts with immunity from the attacks of his creditors. The right to arrest the body of a debtor differs in various States, and in some is entirely abolished. Oan a citizen of such States arrested here for tort, go free because at home his creditor would not have that remedy. When a non-resident litigating here is allowed the same rights which our citizens enjoy, he can claim nothing further.

These principles require ,the order appealed from to be affirmed, with costs.

Present, — Barnard, P. J., Dykman and Pratt, JJ.

Order of county judge affirmed, with costs.


text:
    EDGAR STUDWELL, Appellant, v. JOHN BAXTER and Others, Commissioners of Highways of the Town of Pelham, Respondents. SAME v. SAME.

      Costs — no trial fee allowed where the action is discontinued "before a trial is actually had — Code of Cwii Procedwe, sec. 8251, sub. 3.
    Upon an action, coming on for trial before the court and a jury an order was made, upon the motion of the plaintiff, allowing Mm to discontinue the action upon the payment to the defendants of their costs.

      Held, that in taxing the costs the clerk erred in allowing a fee for the trial of an issue of fact and disbursements for the entry of judgment, filing transcript and issuing execution.
    Appeals from an order in each of the above entitled actions, denying a motion to retax costs by disallowing an item of thirty dollars for trial fee, and subsequent disbursements as allowed by the clerk in each action.
    The two actions were brought against the defendants, as commissioners of highways of the town of Pelham, to recover for injuries resulting from their neglect to repair the Boston turnpike where it had been washed out.
    Upon the case coming on for trial a motion was made by the plaintiff for leave to discontinue the action, without costs. The court reserved its decision until after the circuit had adjourned, when orders were made permitting the actions to be discontinued on payment of costs. The defendants served bills of costs under these orders, claiming a trial fee of thirty dollars in each action, and also disbursements for entry of judgment, filing transcript and issuing execution. On the taxation before the clerk plaintiff presented an affidavit showing that there had been no trial in either action and objected to these items of costs and disbursements. The objections were overruled and the cost's taxed as claimed by defendants.

      George W. Stephens, for the appellant.

      Martin J. Keogh, for the respondents.
   Pratt, J.:

There was no warrant in law for taxing a trial fee in these cases. Section 3251 of the Code, subdivision 3, provides for costs as follows: “ For all proceedings, after notice of trial, and before trial, * * * fifteen dollars. * * * For the trial of an issue of fact, thirty dollars.”

Manifestly there can be no allowance for a trial fee unless there has been in fact a trial, as the previous item of fifteen dollars embraces all proceedings up to the time of the trial. The question to be determined is, therefore, was there or not a trial in these cases when no jury was ever impanneled.

In Third National Bank v. McKinstry (2 Hun, 443) a trial fee was disallowed in a case where the trial had been actually commenced, but had been stopped after a witness had been sworn and the cause sent to a referee, the court saying Mr. Justice Gilbert delivering the opinion: “ A trial is a judicial examination of the ^sues between the parties. * * * Rut when the court refuses to examine the issues, * * * it would be a stretch of common sense and of law to hold that there had been a trial.”

Sutphen v. Lash (10 Hun, 120) is directly in point. There had been a regular dismissal which had been set aside; the cause was then brought on for trial a second time, when plaintiff obtained an order, of discontinuance. It was held that defendant could only have a trial fee forth e first trial. The head note of the case directly states the point decided by the Court.

There are diota in some old cases to the effect that if a party is all ready to try a cause, and is prevented by a settlement or similar act, he may have a tidal fee for his labor in getting ready to try. All of those cases were cited by counsel in the case in 2 Hun, and must be considered as overruled. And the plain answer to them is that the law only allows the fee for a trial, the labor of preparing for it being provided for in the other item of fifteen dollars. Under the orders made at circuit, the plaintiff has leave to discontinue on payment of costs. If he does not avail himself of the privilege the cases remain in the condition they were in when the orders were made. (Society of N. Y. Hos. v. Coe, 15 Hun, 440.)

The orders should be reversed, with costs and disbursements.

Present — Barnard, P. J., Dtkman and Pratt, JJ.

Orders reversed, with costs and disbursements on each appeal.


text:
    WILLIAM ASTOR, Respondent, v. THE WESTCHESTER GAS-LIGHT COMPANY and Others, Appellants.

      Gas-light company — can only give mortgages to secure debts contracted in carryiwj on its business —1848, chap. 87, as amended by chap. 874 of 1872 — A manufacturing corporation cannot give a mortgage without the consent of its stockholders —1848, chap. 40 — When an illegal transfer of corporate property cannot be attacked by a party thereto.

    November 1,1880, the plaintiff, The 'Westchester Gas-Light Company, a corporation formed under chapter 37 of 1848, authorizing the formation of gas-light companies, and the Yonkers Fuel Gas-Light Company, a corporation formed under chapter 40 of 1848, authorizing the formation of manufacturing companies, entered into an agreement with the plaintiff in this action. By this agreement the plaintiff agreed to sell and transfer all the stock of the Westchester Company to the Fuel Company, subject to a mortgage then existing upon its property, and the Fuel Company agreed to guaranty the payment of the interest on the mortgage, and of the principal thereof on or before November 1, 1890. The Westchester Company agreed to lease to the Fuel Company for the unexpired term of its charter, and for any renewal or extended term thereof, all its works, pipes, 'mains, property rights and franchises, for the yearly rent of one dollar, and the Fuel Company agreed to pay all debts of the Westchester Company then existing, or thereafter to be contracted, including the mortgage. This agreement was carried out.
    January 17, 1883, the two companies executed and delivered to the plaintiff a mortgage for $5,000, which recited the making of the prior mortgage and agreement; that it had become necessary for the Fuel Gas Company to make large improvements on the works of the other company, and that the two companies had applied to the plaintiff for the loan. It was executed in pursuance of resolutions of the directors of the two companies. That of the Fuel Gas Company recited that it was necessary “to raise money for the immediate wants of the company.” The money was paid to the Fuel Gas Company and used by it. The Westchester Company did not carry on any business after November, 1880.
    In an action brought against a receiver of the two companies to foreclose the mortgage:

      Eeld, that the money was not borrowed by the Westchester Company for the purpose of carrying on the operations named in its certificate of incorporation (as provided in section 2 of chapter 37 of 1848, as amended by chapter 374 of 1872), and that it could not therefore execute a mortgage upon its property and franchises to secure the payment thereof.
    That the mortgage could not be sustained as a mortgage given by the Fuel Gas Company, for the reason that the written consent of the stockholders owning at least two-thirds of its capital stock had not been obtained and filed as required by the act under which it was formed.

      That even if the lease and transfer of the property of the Westchester Company might be set aside in a proper action, its validity could not be attacked by the plaintiff in this action, as it appeared that, at the time of the transfer, he owned all the stock of the company, was a party to the agreement and a promoter and prime mover in the transaction.
    Appeal from a judgment, entered upon the trial of this action by the court without a jury.

      8. H. Thayer, for the Westchester Gas-Light Company and its receiver, appellants.

      Ralph F. Prime, for Yonkers Fuel Gas Company and its receiver, appellants.

      G. Frost, for the respondent.
   Pratt, J.:

The Westchester Gas-Light Company is a corporation organized in 1875, under chapter 37 Laws of 1848, being the general law authorizing the formation of gas-light companies.

The Yonkers Fuel Gas Company is a corporation organized in 1879, under chapter 40 of Laws of 1848, being the general act authorizing the formation of manufacturing companies.

In October, 1875, the Westchester Company executed and delivered to one Davidson, as trustee, a mortgage upon all its property to secure the payment of fifty bonds of $1,000 each. These bonds, at the date of the transaction, out of which grew this action, were held by the plaintiff who at that time also appears to have held substantially all the stocks of said corporation.

On November 1, 1880, an agreement was entered into between the plaintiff and the said two corporations, by which the plaintiff agreed to sell and transfer to the Fuel Gas Company all the capital stock of the Westchester Company, subject to the mortgage to Davidson, trustee aforesaid. The Fuel Gas Company agreed to guaranty the payment of the interest on the said fifty bonds of the Westchester Company aforesaid, and that the principal of said bonds should be paid by the Westchester Company on or before November 1, 1890.

The Westchester Company agreed to lease to the said Fuel Gas Company for the unexpired term of its charter, and for any renewal or extended term thereof, all its gas-works, pipes, mains, property, rights and franchise for the yearly rent of one dollar, aud upon the further condition that all debts of the Westchester Company then existing or thereafter to be contracted, including the said fifty bonds and interest thereon, should be paid by said Fuel Gas Company ; and the said Fuel Gas Company accepted such conditions and agreed to perform them. This agreement was carried out, the property of' the Westchester Company leased to the Fuel Gas Company, and the debts of the former company assumed by the latter. The directors in each company were the same.

On the 17th day of January, 1883, the said two companies executed and delivered to the plaintiff the mortgage in suit. This, mortgage was given to secure payment of the bond of the Westchester Company for $5,000, and recites the mortgage to Davidson,, trustee, and the agreement aforesaid, and that it had become necessary for the Fuel Gas Company to make large improvements on the works of the Westchester Company, and to extend the mains,, and that it had expended in so doing a large amount of money that said two companies had applied to the plaintiff for a further loan upon the property of the Westchester Company upon the security therein provided. Then follows a grant from the two companies in the usual form and language of a mortgage to the plaintiff of the mortgaged property, being the. property leased by the Westchester Company to the Fuel Gas Company as security for the. loan aforesaid. This mortgage was executed pursuant to a resolution adopted at a meeting of the. directors of the Fuel Gas Company, held on the 17th January, 1883, which recited that it was" necessary “ to raise money for the immediate wants of the company.”’

The money advanced by the plaintiff was paid to the treasurer of the Fuel Gas Company and used by it.

In the view that I have taken of this case, it may also be assumed as a fact that the directors of the Westchester Company authorized said mortgage. The directors were the same individuals in each company, and while it is a disputed question upon the evidence whether they ever met as directors of the Westchester Oompány, it clearly appears that it was their intention so to do. The officers who executed the mortgage swear, in the acknowledgment to the instrument,, that such a meeting was held and two witnesses on the trial so-testified.

This action was brought to foreclose the latter mortgage, and the receiver of the said two corporations (both now being insolvent) attacks the validity of the instrument. This defense is properly made by the receiver. (Vail v. Hamilton, 85 N. Y., 453.) I think the mortgage cannot be sustained as a valid instrument. The general law authorizing the formation of gas-light companies, as finally amended by chapter 374, Laws of 1872, authorizes a corporation formed under this act to borrow money for the purpose of carrying on its business or “ operations,” and to mortgage its property and franchises to secure payment of debts contracted by it for the purpose of its business as set forth in its certificate of incorporation. .

It appears to me clear that the money' raised upon this mortgage was not a debt of the Westchester Company. When the statute speaks of a debt it means a debt that could have been enforced against said company, but this debt had not been contracted by the Westcliester Company, neither was it in any way liable therefor. The debt had been incurred by the Fuel Gas Company in improving the property and extending mains, and it was liable for it, and the mortgage so recites. Neither can it be said that the money was borrowed by the Westchester Company for carrying on its business. It was not engaged after November, 1880, in carrying on any business; it had transferred all its property and franchises to the Fuel Gas •Company for the unexpired term of its charter, and for any renewal or extended term which it might have, and this transfer, although under the form of a lease, was an absolute surrender of all its property during the life of the company.

The testimony is to the effect that after November, 1880, no business was carried on. The president testified that “ it then actually stopped the exercises of any of its franchises or privileges and all its business stopped so far as the exercise by that company of any of its franchises. It had a nominal existence.” And this evidence is not contradicted. It appears therefore that the money was not borrowed for any of the purposes for which the Westchester Company was incorporated, nor to raise money to pay any of its debts, and as these are the only two purposes for which the corporation was authorized to mortgage its property, it follows that the mortgage was ultra viren and therefore, as to the Westchester Company, void.

The Enel Gas Company being organized under chapter 40, Laws of 1848, had no authority to mortgage any of its property without the written consent of stockholders owning at least two-thirds of the capital stock being first obtained and filed in the office of the county clerk. It is conceded in this ease that no consent of the stockholders .of the Fuel Gas Company ever was obtained to the execution of this mortgage, and if the instrument is to be regarded as a mortgage of the latter corporation it is concededly void.

It is sought to uphold it, however, as a mortgage solely of the Westchester Company, and it is argued that the effect of the acts of the Fuel Gas Company are to be construed and interpreted as a consent that the mortgage takes precedence of the lease to the latter company. I regard this theory as an attempt to evade the law and escape the prohibition of the statute. But even if it were true, it would not, in the view I have taken of the case, save the mortgage, unless it can be upheld as a valid mortgage of the Westchester Company, and must, of course, fail as a lien upon the property.

But all the evidence shows the transaction to have been to raise money to pay the Fuel Gas Company’s debt.

The resolution of the latter company, passed on the day the instrument was executed, authorized a mortgage to be executed on the Westchester works and all mains laid or to be laid,” and it empowered the president and secretary to execute, under the seal of the company, such mortgage.”

The mortgage on its face is a grant of the Fuel Gas Company’s property. The resolution authorizing it recites that the money is needed “ for the immediate wants of this company,” and the money when paid over by the plaintiff was paid directly to the Fuel Gas Company and used by it in its business. Nowhere is it spoken of as a mortgage to the Westchester Company, and nowhere is it mentioned that the Fuel Gas Company consented to it being a lien preceding its lease. Clearly it was a transaction of the Fuel Gas Company mortgaging its own property to pay its own debt, and so little regard was paid to the Westchester Company in the transaction that it is left in some doubt whether there was ever any meeting of the directors of that company to authorize the execution of the instrument, and being a mortgage upon the property of the Fuel G-as' Company it is absolutely void without the assent of the stockholders. ( Vail v. Hamilton, 85 N. Y., 453.)

The claim that the lease to the Fuel Gas Company was void, and therefore the title to the property never passed to the Fuel Gas Company, cannot be successfully invoked in this action. It may be that in a proper action this lease and transfer of the property by theWestchester Company would be set aside. (Copeland v. Citizens Gas Co., 61 Barb., 60; Abbot v. Am. Hard Rubber Co., 33 id., 518.)

But so far as the evidence of the plaintiff shows, the plaintiff was the owner of all the stock in the Westchester Company. He was a party to the agreement which authorized the lease and consented to the same. While the trustees of a corporation would have no power to dispossess the stockholders of the property and do any act which would work the political death of the corporation, yet if such action has been taken by the directors with the assent of all the stockholders, the transfer of the property would be valid ; at least the plaintiff cannot now be allowed to question or attack the lease, as he appears not only to have assented to the arrangement, but to have been the promoter and prime mover in the transaction.

We think there was no authority shown for the execution of the mortgage and that the judgment should be reversed, with costs.

Present —Barnard, P. J., and Pratt, J.; Dykman, J., not sitting.

A reargument was ordered at this term. • At the next (December) term judgment was ordered in accordance with the above opinion.

Brown, J., sitting in place of Dykman, J., and concurring with Ppatt, J.; Barnard, P. J., dissenting.


text:
    Matter of the Estate of ANDREW HOOD, Deceased.

      Executor — when he ceases to be liable as such after an accounting although he has not been formally discharged — when his liability as a trustee begins.

    One Hoód appointed bis wife and bis son Frederick executors of bis will, by wbicb after making certain specific devises be gave all bis residuary estate to bis executors in trust, to sell tbe same and divide tbe proceeds into as many parts as be bad children, and invest the same in bond and mortgage, tbe income of each share to be paid to bis wife during her life, and after her death to tbe children. On Sep tember 38, 1868, tbe accounts of tbe executors-were presented to tbe surrogate for settlement, and on January sixth a decree was entered finally settling and allowing them. By the summary statement the executors were credited, among other things, with “ amount invested under trusts contained in the will, $55,047.48.” The balance of cash on hand was insufficient to pay the expenses of the accounting and the fees of the executors. The executors were not formally discharged.
    December 7,1888, a decree was entered, upon the application of one of the children, revoking the letters testamentary issued to the son on the ground that he had wasted and misapplied the funds in his hands as executor. The misfeasance alleged was committed in the reinvestment of the trust funds.

      Held, that the duties of the son as executor terminated upon the entry of the final decree above mentioned, and that for any wrongful acts committed in reinvesting the trust funds he'was liable as trustee and not as executor.
    That the decree revoking the letters should be set aside.
    Appeal from a decree of the surrogate of Westchester county revoking letters testamentary.

      Edward P. Wilder, for Frederick Hood, appellant.

      Poe <& Mauldin, for Bertram Hood, petitioner, respondent.
   Pratt, J.:

This is an appeal from a decree of the surrogate of Westchester county, entered December Y, 1883, revoking letters testamentary issued to Frederick Hood, on the ground that he had wasted and misapplied the trust funds in his hands as executor, etc.

Andrew Hood made his will in 1864, appointing his wife Maria Louisa and his son Frederick executrix and executor thereof ; after certain specific devises he gave all his residuary estate to .his executors in trust to sell and dispose of the same by paying off incumbrances on certain New York real property, to divide the balance into as many shares as he had children of his said wife, to invest the same on bond and mortgage on real estate in New York State, the income of each share to be paid to bis wife during Her life, and after her death to the representatives of each child, respectively, during minority, and at majority to pay over the share. He died soon afterwards, and in April of the same year this will was probated in Westche'ster county. On the 28th of September, 1868, these executors presented their final accounts to the surrogate, who, on December fourth of that year, issued a citation addressed to tbe creditors, legatees and next of kin and all other persons interested in the estate of said testator, citing them to appear on the 6th of January, 1869, at his office, to attend the final settlement of said accounts. This citation was served on each of the said legatees and next of kin. This petitioner was then an infant, but a special guardian was duly appointed to represent him. The accounting proceeded and resulted in a decree, entered on January 6, 1869, whereby the said accounts were found to be correct; it was thereby adjudged that they were thereby “finally settled and allowed.” The summary -statement in that decree shows that the whole estate in the hands of the executors was adjudged to be $113,237.83. The following credits were allowed: Expenses o£funeral and of administration, $12,683.52; for debts, $31,996.46; specific legacies to widow, $2,388.27; sums paid legatees, $12,806.56; amount invested under trusts contained in the will, $55,047.40; balance in cash, $305.66. The decree then allowed the following sums for expenses, etc.: Counsel fees, $250 ; guardian ad litem, $350 ; commissions to. Frederick Hood, execcutor, $1,042.37, making in all, $1,642.37. Deducting the balance of cash, $305.66, which was properly applicable to this $1,642.37, left $1,336.71 to be deducted from the investments under the trust, which were $55,047.40; left $53,710.69.

The evidence fails to show any occasion for their continuance as executors. They had rendered accounts for all the property, and been paid for all their services as executors; they were not in form discharged; the statute did not eo nomirne provide for that. But unless there was some fraudulent suppression of assets or error in their accounts the refusal to correct which would amount to a fraud, must not this be regarded as a discharge from, and as a termination of the duties of the defendant as executor ? The entire balance of the estate, in his hands, had then been invested under the trusts contained in the will. The decree states this fact, in so many words, as a part of the judgment. The investments that had been made prior to the decree are not challenged, but those made long afterwards Horn subsequent collections form the gravamen of the petitioner’s complaint.

The question is fairly raised here as to what is necessary under a will like this to change an executor into a trustee. Here a decree had been entered upon the final accounting, and the decree contained this language after adjudging the accounts to be correct, and that there was in the hands of the executors a balance, etc., “being §>53,710^%- said executors shall hold and invest pursuant to the provisions and directions contained in said will.” The executors did not as usual receipt to themselves as executors or do any act to show that any change was made in their relation to the fund. The defendant, however, did collect and reinvest the fund afterwards, and lost and wasted it. The question is whether the instant the decree was made passing the accounts, the executors became trustees under the will, and for all acts after that time touching the fund they were only responsible as trustees under the will.

If the defendant can only be held hable as trustee, there was error on the part of the surrogate in holding that Frederick Hood had misapplied the property as executor. I am inclined to think that no act was necessary on the part of Frederick Hood after the entry of the decree upon the final accounting to invest him with the possession of the property as trustee, and therefore he was thereafter, when acting with the property, so doing as trustee and not as executor. If another person had been named trustee, it might well be that before Hood could be discharged as executor he would have to pay over to the trustee ; but in this case the account stated that the amount had already been “ invested under trusts contained in the will ” which in legal effect is the same as passing over the fund to a trustee. The decree also affirmed such investment. It matters not that the account stated that there was a balance in the hands of the executors to be thereafter accounted for by them. That statement was made under date of 28th of September, 1868. The decree was made several months later and adjudges that they had then invested a sum which as we have seen was more than the entire balance of the estate “under the trusts contained in the will.” Even the expenses of the accounting and the executor’s commissions were allowed chiefly out of this sum.”

It may be that he had wasted and misapplied property belonging to the testamentary trust; hut that is quite a different affair, as we shall presently see. I do not think that that issue has been tried. This petitioner sought to have this decree of 1869 vacated and set aside by reason of an alleged defect in the service of the citation on him, then being an infant. The surrogate’s finding of that fact is against him on that point. But more than this, he had prayed for ' the annulment of the decree and for the revocation of the letters. The point was taken against him that he had improperly joined two separate and distinct causes of action or grounds for complaint. A motion was made to compel him to elect between the two whether he would go for the annulment of the decree or for the revocation of the letters. The surrogate ordered him to elect, and he did elect to go for the revocation of the letters. In the meantime the defending executor had plead and stood strictly upon his plea of former adjudication, not only by the decree of 1869, but upon pleas in bar basied upon the pendency of other former proceedings. He did not attempt to defend against the allegations as a testamentary trustee, for the obvious reason that he was not arraigned in any such capacity. The whole scope of the proceeding was against him solely as executor. It will not do to assume that he has been guilty of.wrong, as testamentary trustee, because he has not been heard in any such capacity. As I read this will and subdivision 6 of section 2514 of the Code, this executor was then engaged in executing trusts created by the will which was separable from his functions as executor. The proceedings authorized by law against a testamentary trustee are wholly distinct from those against an executor. (Code, § 2802, etc.; Redf. on Surrogates [2d ed.], 652, 653; Laytin v. Davidson, 18 Weekly Dig., 564; Blake v. Blake, 30 Hun, 469; Woodruff v. Young, 31 id., 420; Hurlburt v. Durant, 88 N. Y., 121.)

This proceeding cannot be allowed to stand against him as testamentary trustee. No such relief was sought by the petitioner, and even if it had been, the petitioner’s election limited it wholly to the revocation of the letters testamentary, i. e., it was limited to his capacity as executor. Nor is the case changed because the executors received property after the decree of 1869.

The only proofs upon that point are that he collected some of the securities which were in his hands when that decree was entered. This was a part of the same funds which had passed to the testamentary trust, and that disposition of them was ratified and confirmed by the decree. There is no pretense that he had received anything from the testator’s estate which, by error or fraud, had been omitted from the account upon which the decree of 1869 was based. I think the decree should be reversed and that the proceedings should be dismissed, with disbursements to be taxed; but under the circumstances of the case there should be no other costs.

Present —Barnard, P. J., Dykman and Pratt, JJ.

Decree reversed and proceedings dismissed, with disbursements to be taxed, and without other costs.'


author: Pratt, P. J.:

text:
    HARRIET R. ROCKWELL and Another, Plaintiffs, v. ANNIE P. DECKER and Others, Defendants. RICHARD MARTIN, Purchaser, Appellant.

      Pa/riition — provision, in cm interlocutory decree for the protection of the interests of contingent remaindermen — an error in the judgment confirming the sale, as to the disposition of the proceeds thereof.\ will not affect the title of apm'chaser — a trust fund need not always he paid into court.

    The interlooutory judgment in an action for partition adjudged that the executors and trustees of the testator were entitled to an undivided one-third of the property, in trust to apjfiy the income to the use of one of the testator’s daughters during her natural life, and that at her death the remainder was to go to her lawful issue, if any survived her, and in default of such issue it was to go to her sisters, or their issue. The final judgment ordered one-third of the proceeds of sale to be paid to the said executors and trustees.
    A purchaser refused to complete his purchase, upon the grounds that the judgment did not properly protect the interests of the contingent remaindermen in the trust fund, and that it should have directed the payment of the fund into court:

      jHeld, that there was no absolute rule requiring the trust fund in such a case to be paid into the office of the county clerk, or of the county treasurer.
    That the validity of the title of a purchaser under a judgment in partition would not be affected by an error therein in the manner of protecting the contingent interests of remaindermen.
    That the purchaser should be compelled to complete his purchase.
    Appeal by a purchaser at a partition sale, from an order requiring him to complete his purchase.
    The purchaser declined to complete his purchase unless the judgment was “ amended so as to provide for and protect the contingent interests of the unborn children of the defendant Annie P. Decker, by substituting the fund derived from the sale of the land affected by such interests in place of tbe land, and preserving it to tbe extent necessary to satisfy such interests as they arise,” and until by the final decree in the action the proceeds of the sale were disposed of according to the provisions of article 2 of chapter lé of, the Code of Civil Procedure.
    The interlocutory decree in this case ordered and adjudged that the rights, shares and interests of the parties in the property mentioned in the complaint are as follows: “ Almira Chase, Stephen P. Nash, Ashley C. Morrill and Augustus P. Rockwell, executors and trustees under the last will and testament of J ames Chase, deceased, an undivided one-third thereof in trust, to apply the income thereof to the use of the defendant Annie P. Decker, for and during her natural life, free from any control or interference of her husband, remainder at her death to her children, the defendants Annie C. Decker and Nellie B. Decker, and to her lawful issue, if she leave any surviving her; if not then to her sisters, the defendants Harriet R. Rockwell and Sophia P. Morrill, if they survive her, and to their lawful issue if they do not survive her, the children taking in such cases the share their mother would have taken if living.”
    The final judgment confirmed the sale, directed the referee to execute the proper conveyances and to pay one-third of the proceeds of the sale to the said executors and trustees, who by the interlocutory decree had been declared entitled to the same.

      JoTm H. Kemble, for Richard Martin, purchaser, appellant.

      8. P. Nash, for the plaintiffs.
   Pratt, P. J.:

There is no cast-iron rule that the fund in a case like this be paid into the clerk’s office, or to the county treasurer. It is sufficient that the court directs such a disposition as it deems best calculated to secure its safety.

The court below directed that it be paid to the parties named in the will. We do not see that any other disposition is required.

We are of opinion that an error of judgment in the manner of protecting the contingent interests of remaindermen cannot affect the validity of the title. All parties in being have been ma.de parties and are bound by tbe judgment, and the sale bars all future contingent interests. The purchaser will get a good title.

Order affirmed.

Present — Barnard, P. J., Dtkman and Pratt, JJ.

Order affirmed, with costs and disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CLARA SCHERER, Plaintiff, v. ANDREW WALSH, Police Justice, Defendant.

      Abandonment of a wife by Tien' husband — the decision of a .police justice ma/y be reviewed upon a certiorari — the justice does not act as a Oow’t of Special Sessions — the wife may show that she left her husband through fear of personal violence.

    A decision of a police justice dismissing a complaint made by a wife against her husband for abandonment, under section 899 of the Code of Criminal Procedure, is reviewable at the General Term upon a writ of certiora/ri.

    Section 515 of the Code of Criminal Procedure, abolishing writs of certiorari in criminal actions, does not apply to special proceedings of a criminal nature as defined in part 6 of the Criminal Code.
    A police justice, when exercising the special jurisdiction conferred upon him by section 899 of the Code of Criminal Procedure, acts as an officer and not as a Court of Special Sessions; and his decision cannot be reviewed under section 749 thereof providing for appeals from judgments rendered by such a court.
    In a proceeding instituted by a wife against the husband for abandonment it is competent for her to show that she was compelled to leave her husband because she was in imminent danger of suffering personal violence at his hands, and because it was unsafe for her to remain in the house.with him.
    Certiorari to review the decision of the respondent, as one of the police justices of the city of Brooklyn, in proceedings instituted by the relator against her husband for his abandonment of and refusal to support her.
    Hpon the hearing the relator sought to show that shortly before she left her husband he had assaulted her, threatened to kill her with a pistol which he had in his hands, and that she left him because she was in fear of her life at his hands. The justice refused to receive the evidence.

      J. D. Bell, for the relator.

      Jesse Johnson, for the defendant.
   Pratt, J.:

This is a proceeding by certiorari to review in this court the decision and rulings of a police justice. The decision and rulings brought to be reviewed were given upon a trial before the justice, upon a complaint made against Conrad Scherer by his wife, the relator herein, for abandonment.

The justice refused to admit certain testimony offered on behalf of this relator, and dismissed the complaint. The charge was made under section 899 of Code of Criminal Procedure (part 1), and the first question to be disposed of is whether the action of the magistrate can be reviewed by cerúora/ri.

By section 515 of Code of Criminal Procedure, writs of oertiora/ri in criminal actions as they have heretofore existed are abolished, and a review had by an appeal, but this section refers only to criminal .actions as defined in that Code. The proceeding before the magistrate was not strictly a criminal action, but was a special proceeding of a criminal nature under part 6 (page 186, chap. 442, Laws of 1881) of the Criminal Code. ( Tit. 7.) No right of appeal seems to be provided for under , this part of the Criminal Code except under title 5 (page 201, id.) : “ Of proceedings respecting bastards.” And hence section 515, abolishing writs of certiora/ri, does not apply to part 6, but the law remains as it existed before the •Criminal Code. Section 515 in plain terms refers only to a judgment or order in a crirrmial action, and not to a special proceeding of a criminal nature. This distinction is rendered more apparent by referring to title XI, part 6 of tbe Criminal Code, sections 950, '951 and 952. It is clear therefore that no right of appeal was given by the Code to either party in this proceeding. It cannot be claimed that an appeal was authorized by section 749 which provides for appeals from judgments rendered by a Court of Special •Sessions.

It is true the defendant entitled the proceedings as in Special •Sessions, but that did not affect the rights of the parties.

The proceedings were not in a Court of Special Sessions, but were before the defendant as police justice. There is a marked distinction between Courts of Special Sessions and courts held by police justices under special provisions of law, both in tbe Constitution and the Code of Criminal Procedure. (Peo. v. Trumble, 1 Crim. Rep., 443.) It was also held in People v. Burleigh (same vol., 522, 528) that where authority is conferred upon a particular officer or magistrate giving to him special jurisdiction in a criminal matter, with special directions as to the mode of procedure, he must be deemed to act as an officer and not as a Court of Special Sessions. This principle is decisive of this case.

Section 899 gave special jurisdiction to a police justice with special directions as to the mode of procedure, and the justice must be deemed to have acted as an officer and not as a Court of Special Sessions. The writ of certiorari is therefore a proper remedy under which to review the proceedings.

We also think the defendant erred in excluding testimony showing it was unsafe for the wife to remain in the house with the accused. There is no rule of law requiring a wife to remain under the roof of a brute in constant danger of life and limb under pain of .starvation. It was therefore competent for the relator to show that she had reasonable cause to leave the house where she was in imminent danger of suffering personal violence at the hands of her husband. If this testimony had been received the offense of which the accused was charged would have been clearly made out under the statute. This statute has been under the consideration of this court since its amendment, and its provisions fully discussed. (People ex rel. Douglass v. Naeher, 1 Crim. Rep., 513.)

The decision of the police justice must be vacated and set aside, without costs.

Present — Barnard, P. J., Dykman and Pratt, JJ.

Order reversed, without costs.


author: Barnard, P. J.:

text:
    THE BOARD OF COMMISSIONERS OF CHARITIES AND CORRECTIONS OF THE COUNTY OF KINGS, Respondent, v. PHILIP HAMMILL AND PATRICK NEWMAN, Appellants.

      Bond given by a disorderly person — must comply strictly with the order therefor — it will be void if taken for a greater sum than that prescribed by the order.

    The bond given by a person, convicted of being a disorderly person, for refusing to support his wife, must comply strictly with the terms and conditions of the order made under the statute providing for the same, otherwise it will be void. '
    Where the order required the offender “ to give security in the sum of $250 ” for his good behavior and for the weekly support of his wife, and a bond was taken in the sum of $500, it was held to be void.
    The fact that the instrument signed is unsealed is of no importance.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      James W. Bidgway, for the appellants.

      A. Simis, Jr., for the respondent.
   Barnard, P. J.:

The undertaking upon which this action is brought, is not good under sections 899, 900 and 901 of the Code of Criminal Procedure. By those sections one who abandons wife or child, without adequate support, is declared a disorderly person, and he may be compelled to give security by a written undertaking “ that he will support his wife and children and will indemnify the county, city, village or town against their becoming within one year chargeable upon the public.” The present undertaking requires by its conditions that Philip Hamill shall be of good behavior towards the people for one year, and that he pay seven dollars weekly for the support of his wife for one year. Obligations taken in any other case or manner than such as are provided by law are void. (2 R. S.,'286, § 59.) By chapter 895 of the Laws of 1S71, amended by chapter 171 of Laws of 1882, the legislature provided that in Kings county, where this conviction was had, the magistrate may fix a weekly sum, which shall be paid by the offender, for the support of his wife or children Mid for' his good behavior for one year. The law requires a bond, “ in such sum as such justice of the peace or police justice shall direct, with good and sufficient surety ” for those purposes. By section 962 of the Code of Criminal Procedure this local law remains unaffected. The undertaking cannot be upheld under this law. The complaint avers nothing but the execution of the bonds and its breach. Annexed to it is the bond. By the recital in the bond it appears that the offender “ was required to give security in the sum of two hundred and fifty dollars ” for his good behavior and for the weekly support of the offender’s wife. The bond taken was in $500. The order is the only basis for the bond, and a bond in excess of the order is void under the statute above cited. The sum mentioned in the order limits the power of the officer, and if he exacts an undertaking for a greater sum the undertaking is clearly within the statute and void. (Toles v. Adee, 84 N. Y., 222; Cook v. Freudenthal, 80 id., 202.) The surety can only be held for the penalty of a bond, and if the proper penalty had been inserted in this bond the recovery would exceed it. The fact that the paper is unsealed while the law calls for a bond is of no importance. (Kelly v. McCormick, 28 N. Y., 318; People ex rel. Fiedler v. Mead, 24 id., 114.) The excess of the penalty of the bond beyond the order requires a reversal of the judgment.

Dykman, J., concurred; Pratt, J., not siting.

Judgment reversed, with costs.


text:
    PETER R. KELLY, Respondent, v. HORACE F. BURROUGHS, Appellant.

      Evidence — testimony as to a ymsonal transaction with a deceased yerrson— Code of Oml Procedure, sec. 829.
    This action was brought by the second indorser of a promissory] note, who had paid a judgment recovered, against the administrator of the maker and the two indorsers, by the bank by which the note had been discounted. Upon the trial the first indorser was sworn in his own behalf and testified that he was an accommodation indorser.

      Held, that this was an examination as to a personal transaction with the deceased, within the meaning of section 829 of the Code of tiivil Procedure, and justified the court in allowing the plaintiff to testify that he also was an accommodation indorser and that he had paid to the maker the money received upon the discount of the note.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed at the circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Jesse Johnson and George H. Fisher, for the appellant.

      J. Stewwrt Boss, for the respondent.
   Barnard, P. J.:

Assuming that section 829 of the Code applied to the case presented, still the testimony of the plaintiff was properly received. The action was upon a promissory note made by one Evans. The defendant was the first indorser and the plaintiff was the second indorser. The note was discounted by the Commercial Bank of Brooklyn. The bank recovered a judgment upon it against the administrator of the maker and against the two indorsers. The plaintiff paid the judgment and took up the note. Upon the trial the plaintiff produced the note and rested. The presumption was that the maker passed the note to Burroughs for value, and that Burroughs passed the note for value to the plaintiff. The defendant was sworn in his own behalf and testified that he was an accommodation indorser. This was an examination on his own behalf in respect to the note of the deceased, and the plaintiff was at liberty, under the section, to testify “ concerning the same transaction.” The plaintiff testified that he was an accommodation indorser also, and that he presented the note to be discounted and paid the money over to Evans. Unless the defendant had been sworn in relation to the note, the testimony of the plaintiff is unnecessary. The note entitled him to judgment. If he did receive the proceeds he was presumptively entitled to do so and still hold the maker and indorser, prior to himself, on it. The defendant changed the presumption by his testimony, and it was competent for the plaintiff to speak of the same transactión which included his connection with the note; and not only that part of the transaction which affected the defendant’s position thereon; he could testify to facts which made the defendant liable even as an accommodation indorser. (Sweet v. Eddy, 28 Hun, 432.) There was no dispute as to the facts and the court properly directed a judgment for the plaintiff. Such a disposition is proper when a verdict if found by the jury for the defendant would have been set aside as against the evidence. This was such a case and the judgment should be affirmed, with costs.

Dykman, J., concurred; Pratt, J., not sitting.

Judgment affirmed, with costs.


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    CHARLES W. COOKE, an Infant, etc., Respondent, v. THE LALANCE GROSJEAN MANUFACTURING COMPANY, Appellant.

      Employment of children in a business dangerous to health or li/mh — forbidden in all industrial occupations — a child in such case is not subject to the risk of the business* as are other employes — what machinery is dangerous within the meaning of chapter 122 of 1876.
    Chapter 122 of 1876, providing that every person who shall hire or employ any child under the age of sixteen years in any business or vocation injurious to-the health, or dangerous to the life or limb of such child, shall be guilty of a-misdemeanor, was intended to apply to all industrial occupations and made any such employment an act of negligence upon the part of the employer.

      Hickey v. Taafe (32 Hun, 7) followed.
    The rule which makes all employes assume the risk of the employment does not apply to an infant, under the prescribed age, who is injured in managing dangerous machinery, unless such infant by his or her negligence contribute in-some degree to the injury.
    A piece of machinery is dangerous within the meaning of the act when it is of such strength or power, or so complicated, that it is improper to place a person of immature judgment to manage it, and when an error either in judgment or in skill will cause very violent injury.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The plaintiff worked in defendant’s factory at a steam-power punching machine, and on June 30,1882, the punch came down on his hand injuring his four fingers so badly that their complete amputation was necessary. He was then fifteen years of age, and he claimed in this suit that his employment was dangerous and that the machine was out of order at the time, to the defendant’s knowledge. The jury found these facts in his favor and awarded him $5,000 damages.
    Evidence was given tending to show that the machine consisted of a table, in the center of which was placed a metal die. On the four corners of the table were upright bars, and at the sides of the table, about half way between front and rear, were two upright bars. At the top all these bars were connected by cross-heads, with the punch in the center, immediately over the die. The bars all passed through the table, and beneath it were connected with machinery which caused them to go up and down when in motion. This sliding down and up by the six bars was what brought the punch down upon the die, thus fashioning the work, and carried the punch up again. When at work the motion of the punch down and up was kept on continuously without requiring any movement on the part of the attendant to keep it going. It went up and down twelve times in a minute, leaving as the outside interval to feed it only five seconds. This interval was further reduced by the circumstance that when the punch reached the die it stayed there an instant to complete the pressure on the work. During this interval the boy was required to pick out the fashioned work, put a new plate into the die, which must be accurately fitted or it would be spoiled. There was no guide to enable him to fit the material on the die except that they are both about the same size. The punch did not rise more than eight inches from the die.
    Evidence was also given tending to show that at the time of the injury the machine was out of order and started to work unexpectedly, thereby injuring the plaintiff.

      Morris c& Pearsall, for the appellant.

      Charles J. Patterson, for the respondent.
   Barnard, P. J.:

In the case of Hickey v. Taafe (32 Hun, 7), we came to the conclusion that chapter 122 of the Laws of 1876 applied to all industrial occupations in which children under sixteen years of age were put to attend dangerous pieces of machinery. That the prohibition against such an employment of children was a violation •of a rule of safety, and was therefore negligence in the master. That the rule which makes all employes assume the risk of the employment, does not apply to infants under the prescribed age who are injured in managing dangerous machinery, unless such infant by his or her negligence contributed in some degree to the injury. This case involves no new principle or question essentially different from the case of Taafe. A piece of machinery is dangerous within the meaning of the act when it is of such strength or power or so complicated that it is improper to place an immature judgment to manage it, and when an error, either in judgment or in skill, will cause very violent injury. "We thought the legislature intended to forbid young children from being so employed. The question of the contributory negligence of the plaintiff was properly sent to the jury. There was some evidence tending to show an imperfect machine, but as the court charged the jury that if the machine was dangerous it was negligent in the defendant to put the plaintiff to manage it, whether it was in repair or not, there would necessarily be a new trial if this charge was wrong.

The judgment should be affirmed, with costs.

Dykman, J., concurred; Pratt, J., not sitting.

Judgment and order denying new trial affirmed, with costs.


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    STEPHEN S. MARSHALL, Appellant, v. MARIA McGEE and Others, Defendants. DANIEL HURLEY, Respondent.

      Motion to vacate a judgment because of fraud — when it ma/y be made by one not a pa/ufy to it — when the application need not be made within two, years from, the filing of the judgment-roll— Code of Civil Procedure, sec. 1290.
    March 7,1872, the plaintiff assigned a bond and mortgage for $450, owned by ' him, to his aunt Mary Sherwood, and received from her the amount due thereon. He did not record the assignment until November 27, 1875. In July, 1874, the plaintiff commenced an action in his own name, and without the knowledge of Miss Sherwood, to foreclose the mortgage, and procuréd therein a judgment under which the premises were sold in August, 1879, to the plaintiff’s attorney for $360, being just the amount due to him for his costs. In October, 1883, Miss Sherwood assigned the bond and mortgage to one Hurley, who thereafter moved for an order setting aside the decree of foreclosure and sale, and permitting the plaintiff to amend his complaint so as to make Hurley a party to the action. The plaintiff opposed the motion, upon the ground that in foreclosing the mortgage he'had acted with the consent and approval of a brother of Miss Sherwood, Miss Sherwood being of feeble mind and incapable of acting alone, and that he had assigned the bond and mortgage to her as collateral to a loan made by her to him:

      Meld, that the court properly granted the order sought for.
    That the motion was not an application to set aside a judgment for “error in fact not arising upon the trial,” within the meaning of those terms as used in section 1290 of the Code of Civil Procedure, and was not barred by the fact that more than two years had elapsed since the judgment-roll was filed.
    Appeal from an order made at Special Term, setting aside for fraud the decree of foreclosure and sale entered in the above entitled action and permitting the plaintiff to amend his complaint so as to mate Daniel Hurley a p.arty to the action.
    In 1872 Stephen S. Marshall, the plaintiff, made to Miss Mary Sherwood an assignment, absolute upon its face, of a mortgage of $450; Marshall retained in his possession the said assignment, and did not record the same until 1875. In 1874 Marshall commenced, in his-own name, an action for the foreclosure of said mortgage, neither mating Miss Sherwood a party nor giving her notice of the action.
    In 1878, three years after the entry of the decree of foreclosure and sale, for and in consideration of professional service to him rendered, lie assigned in payment of tbe same tbe decree to Isaiab T. Williams. Williams being substituted as attorney for tbe plaintiff, procured an order of resale to be entered, in pursuance of wbicb tbe premises were sold to said Williams for tbe sum of $360: In October, 1883, Miss Sherwood, for a valuable consideration, duly assigned the mortgage to Daniel Hurley, who, by tbe order above mentioned, has been permitted to defend tbe foreclosure suit.
    Marshall in his affidavit, upon its face averred that there was a secret arrangement with a person whom be asserted was tbe agent of Miss Sherwood, but who is now dead, to tbe effect that tbe said assignment was merely to be collateral security for a loan of $450, tbe full amount of tbe mortgage, and that tbe assignment to Miss Sherwood was not intended to be recorded, although he confessed that tbe assignment was actually recorded shortly after the entry of tbe foreclosure decree, claiming that tbe bond and mortgage bad been assigned as collateral to a loan made to him by Miss Sherwood, and that it was not intended that tbe assignment should be recorded. He also claimed that Miss Sherwood, by reason of her infirmity of mind, was not conscious of tbe act she was doing when she assigned said mortgage to said Hurley, and that be believed it was fraudulently obtained.

      I. T. Williams, for tbe appellant.

      W. H. Van Cott, for tbe respondent.
   Barnard, P. J.:

Tbe issue made by Hurley with tbe plaintiff is one for a court or jury. On tbe 7th March, 1872, tbe plaintiff, who was then tbe owner of a bond and mortgage for $450, assigned tbe same to one Mary Sherwood. Miss Sherwood then paid tbe amount ,of tbe mortgage to tbe plaintiff. Tbe plaintiff was her nephew and did not record tbe assignment' until tbe 27th November, 1875. In February, 1874, the plaintiff commenced a foreclosure in bis own name, as plaintiff, and without tbe knowledge, as is alleged, of Miss Sherwood, wbicb resulted in a sale by judicial decree in August, 1879, and in a purchase of the propei'ty by plaintiff’s attorney for $360j being tbe precise amount of bis costs in tbe action. Tbe plaintiff, in bis opposing affidavits^ testified that tbe mortgage was assigned by him as collateral security to a loan by Miss Sherwood to him for $é50, and that she is a feeble minded and old lady who acted by her brother, who directed or assented to the foreclosure in plaintiff’s name upon the understanding that the loan was to be repaid out of the money realized from the sale. This brother is dead and the case stands therefore upon the affidavits of Marshall alone. He admits making the assignment and receiving the money. He admits keeping the papers, and that he did not record the assignment. Miss Sherwood subsequently assigned the mortgage to Hurley and he has a right to a trial. Neither he or Miss Sherwood are barred by the judgment as it stands. Neither are parties to it. The case is not one provided for or within section 1290 of the Code. The motion is not one to set aside a judgment “ for error in fact not arising upon the trial,” which is limited to two years from its recovery. An issue of fact not arising upon the trial is one which can be asserted by a party who avers infancy. (Graham’s Pr., 932.) That the judgment thereby is bad although it appears good upon a trial of the issue as made. The section does not include other than parties. There can be no error in fact as to strangers. Even if Hurley or Miss Sherwood had been made defendants and had not been legally served with process, the judgment would not have concluded them in two years under this section. This would be no error in fact, but simply a failure to obtain jurisdiction over them. The attorney who purchased at the sale got no better right than his client had to give. What that was, a trial on the merits only can determine. The order should be affirmed, with costs and disbursements.

Pbatt, J., concurred; Dykman, J-, not sitting.

Order affirmed, with costs.


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    MARVIN R. OAKLEY, Respondent, v. MARY A. TUGWELL and Others, Appellants.

      fraudulent convey anee — a single action mazy be brought to set aside separate conveyances made to different persons —joint demurrer — will be overruled if the complaint be good as to azny one of those joining in it.

    Where property has been transferred, by a number of conveyances, to different persons in pursuance of a common plan to defraud creditors of the grantor, and all the said transfers are in fact but parts of one and the same transaction, a single action to set aside all the conveyances as fraudulent may be brought against all the persons who participated in the fraud, although the several defendants set up and claim different interests in separate parcels of the premises conveyed.
    A joint demurrer interposed to a complaint will be overruled if the complaint be good as to a part, though not as to all, of those demurring.
    Appeal from an interlocutory judgment overruling three demurrers interposed by the four parties defendant.
    Three demurrers were interposed, each upon the grounds that the complaint did not state facts sufficient to constitute a cause of action, and that several causes of action had been improperly united in the complaint. Two of the defendants joined in one demurrer, the other two, Mary A. Tugwell and Robert H. Tugwell, demurred separately.

      John W. Alexander and Joseph F. Daly, for the appellants. ■

      M. F. (& A. J. Prime c& Burns, for the respondent.
   Barnard, P. J.:

The principal question [in this case is whether a series of transfers of property to different persons, in pursuance of a common plan to defraud creditors, and being all parts of one and the same transaction, may be included in one action and judgment ashed against the parties that the several conveyances be set aside. This question is affirmatively answered in Martin v. Weil (33 Barb., 30, and cases therein cited). The cause of action is the fraud, and that affects all the parties guilty of it, although the several defendants set up and claim different interests in the separate parcels acquired from the fraudulent vendor. The claim of the plaintiff is against the whole property, and the right against all the parts of it are of one nature.

Whether Robert H. Tugwell is a necessary party or not, his joint demurrer, with a party as to whom the complaint is good, requires that the demurrer be overruled as to him. (N. Y. and New Haven R. R. Co. v. Schuyler, 17 N. Y., 592.)

The judgment should be affirmed, with costs.

Pratt, J., concurred ; Dykman, J., not sitting.

Order overruling demurrer and judgment therein affirmed, with costs.


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    JOSEPH M. PRAY and RICHARD INGRAHAM, as Executors, etc., of JOHN DIKEMAN, Deceased, Appellants, v. JOSEPH HEGEMAN, as Executor and Trustee, etc., of AUSTIN D. MOORE, Deceased, and Others, Respondents.

      Estoppel — a judgment is a bar, not only as to matters considered and decided, but as to those which might ham been litigated and determined.

    A testator gave to Ms son the income of one-third of Ms residuary estate during Ms life, and directed that so much of the income as was not needed f.or the support and education of the son, while a minor, should be added to the principal and that the interest of the whole sum should be paid to the son during life. The son, after coming of age, brought an action against the executors, alleging that the will was void, and seeking to have the entire fund and the accumulations thereof delivered over to him. The court decided that the trust created by the will was valid, and a judgment to that effect was entered. The question as to the validity of the direction for accumulating income was not specially raised in the action.
    Thereafter tMs action was brought by the plaintiffs, judgment creditors of the son, to reach the income accumulated during his minority, upon the ground that the direction for its accumulation was void:

      Eeld4, that the plaintiffs were privies with the son, the plaintiff in the former action, and were estopped by the judgment therein from maintaining tMs action.
    Appeal from a judgment dismissing the complaint, entered upon the trial of this action by the court without a jury. The action was brought by a judgment creditor of one Austin D. Moore, Jr., against the executors of his father’s will, to reach a fund in their hands which was alleged to have accumulated under an illegal direction therefor, contained in the will of his said father. During the pendency of the action the plaintiff and Austin D. Moore, Jr., died, and their representatives were substituted in their place.

      Josiah T. Mcvrecm, for the appellants.

      William O. jDe Witt, for the respondents.
   Barnard, P. J.:

The rule is well settled that a judgment in a former action conclusively binds parties and persons, not only as to what was considered .and decided, but also as to those matters which might have been litigated and determined therein. (Smith v. Smith, 79 N. Y., 634.) Under this rule the case seems to fall within the rule. Austin D. Moore left a last will, and by it his son Austin D. Moore was entitled to the income upon one-third of the residuary estate during life. By the will the income, before this son arrived at the age of twenty-one years, and not needed for the support and education of the son while a minor, was to be added to the principal, and the interest of the fund thus made up was to be paid to’ the son during life. After the estate had been divided and after the son arrived at age, he brought an action against the executors of his father’s will. He avers that the defendant Hegeman, “as the surviving executor, held the said divided share and its accumulations.” That the will was void as contrary to the laws of the State, and demanded judgment that the entire fund “ and the accumulations thereof now in his hands,” be delivered to him. Issue was taken and the case was tried and the court found that the trust created by the will, as to Austin Moore, Jr., was valid; that it was the executor’s duty to hold it, and that the son was not lawfully entitled to the possession of it. The decree followed the findings. The judgment was affirmed in the Supreme Court and in the Court of Appeals. While there is a clause in the complaint which asserts the claim against the defendant Hegeman individually, the property is averred to be in his hands as executor. The fact is so found and the judgment is so made. It was in reality a claim against the estate based upon the assumption that the will was void. If it had been so decided, the judgment would have protected the executor as against all parties interested in the estate. The plaintiffs are privies of the plaintiff in the former action. They claim through him as his creditors. The judgment is therefore an estoppel in respect to him. The point now presented was not considered in the former action. The claim made was for the whole share of Austin Moore, Jr., with its accumulations. There does not appear to have been any claim made as to that part of the fund made up of illegal accumulations of income. It might have been made. A judgment would have been proper, that while the trust was good as to the one-third of the residue of the estate, as it was at testator’s death, still that the accumulations were illegal and the son was entitled to them. The case was presented to be decided upon the question as to the trust itself in its entirety and, under the rule, that carries with the decision the conclusive effect of the judgment as to all which was included in the fund at the date of the decision. •

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ-., concurred.

Judgment affirmed, with costs.


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    WILLIAM E. MAPES, as County Treasurer, etc., and, as such, Trustee under Will, etc., of GILBERT G. WATERBURY, Deceased, Respondent, v. THE AMERICAN HOME MISSIONARY SOCIETY, Appellant, Impleaded with BENJAMIN F. CLAWSON and CHARLES G. WEED, as Administrators, etc., and Others, Respondents.

      Witt — by what lems the validity of a bequest is to be governed.

    A testator, domiciled at the time oí his death in the State of Connecticut, left a will hy which he gave one-third of his residuary estate to the American Home Missionary Society. This was an association of persons, organized for charitable and religious purposes, domiciled in the State of New York, but unincorporated at the time of the testator’s death. By the laws of the State of New York the bequest was void; by the laws of Connecticut it was good.

      Held, that the bequest was to be governed by the laws of this State and was, therefore, void.
    Appeal by the defendant, The American Home Missionary Society, from so much of the judgment, entered in this action in Orange county on February 5, 1884, as provides “ that tbe defendant, Tbe American Home Missionary Society, is incapable of taking the legacy bequeathed to it by the will of Gilbert G. "Waterbury, deceased, and that the legacy to it therefore fails and goes to the-next of kin of the said testator, who were living at the time of his death, and to the personal representatives of those who have since died.”
    The action was brought for a determination of the rights of thebeneficiaries named in the tenth clause of the last will and testament of Gilbert G. Waterbury, deceased, in respect to the residuary estate at the decease of the life beneficiary, under the ninth clause of said will. The ninth and tenth clauses are as follows: “Wimth. I do give, devise and bequeath all my remaining estate to my cousin Benjamin "Waterbury, of the city of New York, or to such other person as the court of probate may appoint in case of Ms decease, in trust to pay over the income arising from said estate to my wife Naomi Waterbury during the term of her natural life. Tenth. At the decease of my said wife I devise that my said remaining estate shall be divided into three equal parts, and I do give, devise and bequeath the same as follows: To the American Bible Society, hereinbefore named, one part to be applied as hereinbefore directed; to the American Home Missionary Society, hereinbefore named, one part in the same manner and for the same purposes as hereinbefore directed, and to my heirs-at-law one part to them and their heirs forever.”
    The testator Gilbert G. Waterbury died on or. about February, 1856, leaving his widow, Naomi "Waterbury, him surviving, but no-descendants. He was at, and for many years before, his decease a resident of Darien, Fairfield county, State of Connecticut; his last will and testament,- dated November 24, 1856, was duly proved on March 27, 1856, at a court of probate, in Connecticut, and admitted to probate on April 14, 1856, before the surrogate-of the-county of New York. Naomi Waterbury, the widow of said testator and fife beneficiary under the ninth clause of said will, died on or about October 4, 1882.

      Howard Payson Wilds, for the American Home Missionary-Society, defendant, appellant.

      J. JET. K. Blauvelt, for Clauson & Waterbury and others, defend ants, respondents.

      Manny db Mead, for the plaintiff, respondent.
   Barnard, P. J.:

By the terms of the will of Gilbert E. Waterbury, deceased, the property given by the tenth clause of the will vested at the death of the testator. The words “ at the decease of my said wife ” have long been held to indicate a vested remainder with the time of payment or possession postponed until the future event happens. (Livingston v. Greene, 52 N. Y., 118.) Unless, therefore, the property given by this clause passed to some one person or corporation, it went to the next of kin of deceased. One-third of the residue is given by this clause to the American Home Missionary Society. This was an association of persons for charitable and religious purposes, but was not incorporated at the death of the testator. It had its domicile in New York, and the testator was at the time of his death domiciled in the State of Connecticut. As an unincorporated association the Home Missionary Society could not take by our laws. (White v. Howard, 46 N. Y., 144; Marx v. McGlynn, 88 id., 357.) By the statute of Connecticut this bequest is good. By our laws h is not; and which controls in respect to this bequest ? The general rule is that while the execution of the will and the capacity of the testator and the construction of the instrument is governed by the law of the domicile of the testator, yet the law of the domicile of the legatee governs the validity of the bequest. (Chamberlain v. Chamberlain, 43 N. Y., 424.) That case, however, does not seem to determine the question here. A testator in New York gives personal property to a corporation entitled to take in Pennsylvania, and the bequests were held good. It was stated in the opinion that a bequest bad at the place of domibile of testator would be bad everywhere. The bequest was not bad in New York in that case, nor is the bequest bad here»in the place of testator’s domicile. The question seems to turn, therefore, solely upon the power of the legatee to take. The treasurer cannot take, because the fund is to be applied to the charitable uses of the society under its directions. An unincorporated association cannot be a trustee. (Owens v. Missionary Society, 14 N. Y., 380.) A voluntary association for charitable purposes cannot under the law of this State take a legacy given to it. (Sherwood v. American Bible Society, 1 Keyes, 561; White v. Howard, supra.) Subsequent incorporation does not give effect to a legacy to an association unincorporated at the testator’s death. (White v. Howard, 46 N. Y., 144.) The gift was therefore inefficient, and the title passed to the next of kin at testator’s death and to the representatives of such of them as have since died. It follows that the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Part of judgment appealed from affirmed, with costs.