author: Follett, Ch. J. Bradley; J.

text:
    Cassius H. Read, App’lt, v. Elizabeth Patterson et al., Impl’d, Resp’ts.

      (Court of Appeals, Second Division,

      Filed June 7, 1892.)

    1. Heirs, legatees, etc.—-Action by—Code Civ. Pro., §§ 1848, 3352.
    Tills action was brought in 1882 to charge defendants as heirs of M., who died in 1872, with the payment of debts contracted by him in his lifetime and due to plaintiff at the time of the commencement of the action. Defendants as such heirs took by descent certain real estate of winch M. died seized, and his death was prior to the repeal of the provisions of the Revised Statutes, Laws 1880, chap. 245. Held, that under „ 3352 of the Code, if at that time there had accrued to the defendants any right or defense which would be rendered ineffectual or otherwise impaired by the application to the action of the provisions of the Code of Civil Procedure, then for its purposes, as further provided by the same section, the provisions of the Revised Statutes are deemed to remain in force notwithstanding such repeal, and they took the lands subject to the payment of the debts of the ancestor to the extent of any deficiency of his personal estate applicable to that purpose,
    2. Same—Claims against estate—How established.
    In sutii action there was no proof of the validity of two claims included in the list of claims annexed to the executor’s account, and the executor testified that they had been rejected, were not verified, and no proceedings had been taken to collect them. Held, that said claims were not established as against the estate.
    Reported on first appeal, 48 Hun, 50; 15 St. Rep., 299. On second appeal, 55 Hun, 608; 29 St. Rep., 102.
    Appeal from an order of the general term of the supreme court in the first department, reversing, on the law and facts, a judgment entered on the decision of a special term.
    July 6, 1872, John H. McCunn died leaving a last will and testament and two codicils, by which he attempted to dispose of all of his property. He nominated Thomas McCunn and James M. Gano as executors, and Jane W. McCunn as executrix, of his will, which was probated in December, 1872, and letters testamentary were issued to the persons so nominated, who immediately entered upon the execution of their trusts. Afterwards actions were brought to set aside parts of the will as void, which resulted in judgments declaring the fifth clause of the will, the first and third clauses of the first codicil and the second codicil invalid, except that part in which James M. Gano was nominated as an executor.
    By the clauses adjudged invalid the testator attempted to dis pose of a large part of his estate, which, however, passed to his heirs-at-law and next of kin, subject to the rights of the widow, in the following proportions:
    Jane McDonald, a sister........................... 60-120
    Elizabeth Patterson, a niece........................ 20-120
    Catherine Bonner, a niece......................... 20-120
    Martha Hettrick, a niece.......................... 20-120
    In 1873, Martha Hettrick died intestate, leaving George Hettrick, her husband, Margaret W. Hettrick, Martha Hettrick,. Sarah Hettrick, Laura Hettrick and May Hettrick, her children, heirs-at-law and next of kin.
    In May, 1875, Elizabeth Patterson and Catherine Bonner each conveyed and transferred to Christopher Fine five one hundred and twentieths of the estate, not passing under the will, and in September, 1876, Jane McDonald conveyed and transferred to said Fine thirty .one hundred and twentieths, so that when this action was begun (February, 1881) the following mentioned persons were entitled to the portion of the estate not disposed of by the will, in the following proportions:

      Jane McDonald....... 30-120
    Elizabeth Patterson... 15-120
    Catherine Bonner____ 15-120
    Margaret W. Hettrick 4-120
    Martha Hettrick..... 4-120
    .Sarah Hettrick...... 4-120
    Laura Hettrick...... - 4-120
    Mary Hettrick....... 4-120
    Christopher Fine..... 40-120
    120-120
    This action was begun to recover of the heirs-at-law of John H. McOunn certain debts contracted by him in his lifetime to the plaintiff and his assignors.
    The summons and complaint in this action were served on Elizabeth Patterson, February 7, 1881; on Catherine Bonner, December 28, 1881, and February 17, 1882, Jane McDonald voluntarily appeared herein. ,
    The court found that there was due and owing on account of •such debts $13,504.34. The court also found that the testator •left personal property of an amount sufficient, had it been properly •applied to the payment of debts, to have paid thirty-four and seven-tenths per cent, of his debts, and that the heirs were liable for sixty-five and three tenths per cent, of said $13,504.34, which ■equals $8,818.33.
    In September, 1882, Jane McDonald died leaving a last will and testament, by which she devised her realty to Peter A. Lozier and Preston Stevenson in trust for certain purposes, December 13, 1882, an order was entered substituting said trustees in the place of Jane McDonald; and in 1887, Peter A. Lozier died, leaving Preston Stevenson surviving trustee. In October, 1882, Greorge Hettrick, the husband of, Martha Hettrick, and the father of her aforesaid children, died, and they succeeded to his interest in the said estate. It was adjudged that the defendants were liable to contribute towards the payment of the sum of $8,818.33, with which.the real estate was chargeable, the following sums:
    Mrs. McDonald’s trustees, 60-120 ......... $4,409.11
    Elizabeth Patterson, 20-120 ...................... 1,469.72
    Catherine Bonner, 20-120........................ 1,469.72
    Margaret W. Hettrick, 4-120 ..................... 293.94'
    Martha Hettrick, 4-120 .......................... 293.94
    Sarah Hettrick, 4-120............................ 293.94
    Laura Hettrick, 4-120............................ 293.94
    Mary Hettrick, 4-120 ........................... 293.94
    $8,818.25
    The defendants Hettricks, adjudged to pay in the aggregate $1,469.72, did not appeal from the judgment entered on the decision of the special term, but paid that sum. to the plaintiff. The other defendants, Mrs. McDonald’s trustee, Elizabeth Patterson and Catherine Bonner, appealed to the general term, where the judgment was reversed, “ upon the facts proved and exceptions taken,” and. thereupon the plaintiff appealed from the order of reversal to this court.

      Esek Cowen and George P. Smith, for app’lt; Preston Stevenson and Edward R Dodge, for resp'ts.

       Affirming 29 St. Rep., 102.

   Follett, Ch. J.

This action was brought to recover from the heirs of John H. McCann debts due from him to the plaintiff, on the grounds: (1) That the personal assets of the decedent were not sufficient to pay and discharge the same. (2) That the plaintiff had been and would be unable with due diligence to collect his claims by proceedings in the surrogate’s court, or by action against the executors, legatees and next of kin. The action was defended on the grounds: (1) That the facts prescribed by the statute as conditions precedent to a right to recover the debts of the ancestor from his heirs were not established. (2) That the claims sought to be recovered' were not the debts of the decedent (3) That the action was barred by the six years statute of limitations.

The plaintiff urges that § 1848 of the Code of Civil Procedure ■is applicable to this case, and that a recovery can be sustained under its provisions, while the defendants insist that the provisions of the Revised Statutes authorizing the collection of debts of an ancestor from his heirs are alone applicable, and that the right of recovery must be determined by those statutes.

The following are the sections of the Revised Statutes and Code which relate to this subject: Revised Stautes, part III, chap. 8, art. 2.

“Sec. 32. The heirs of every person who shall have died"intestate, and the heirs and devisees of any person who shall have died after the making of his last will and testament, shall respectively be liable for the debts of such person, arising by simple contract or by specialty, to the extent of the estate, interest or right of the real estate which shall have descended to them from or been devised to them by such person.

“ Sec. 33. But such heirs shall not be liable for any such debts, unless it shall appear either that the deceased left no personal assets within this state to be administered, or that the personal assets of the deceased were not sufficient to pay and discharge the same; or that after the proceedings before the proper surrogate’s court and at law the creditor has been unable to collect such debt, or some part thereof, from the personal representatives of the deceased, or from his next of kin or legatees.” (As amended by chapter 110, Laws of 1859.)

Code Civ. Pro., chap. 15, tit, 3, art. 2.

“ Sec. 1843. The heirs of an intestate, and the heirs and devisees of a testator, are respectively liable for the debts of the decedent, arising by simple contract, or by specialty, to the extent of the estate, interest and right in the real property which desounded, to them from, or was effectually devised to them by the decedent.”

“ Sec. 1848. Where the action is brought against heirs, the plaintiff must show, either ;

111. That the decedent’s assets, if any, within the state were not sufficient to pay the plaintiff’s debt, in addition to the expenses of administration, and debts of a prior class; or

“ 2. That the plaintiff has been unable, or will be unable, with due diligence, to collect his debt by proceedings in the proper suarogate’s court, and by action against the executor or administrator, and against the surviving husband or wife, legatees and next of kin.

The executor’s or administrator’s account, as rendered to, and settled by, the surrogate, may be used as presumptive evidence of any of the facts required to be shown by this section.”

The trial court found: “52. That the assets of said John H. MeCunn, deceased, within this state, were not sufficient to pay the aforesaid debts of the plaintiff, Cassius H. Read, in addition to the expenses of administration and debts of a prior class or without such addition, and that the said plaintiff was unable at the commencement of this action, and will be unable, with due diligence, to collect his debts by proceedings in the surrogate’s court of the county of New York, and by actions against the said executors and executrix, and against the surviving wife of said John II. MeCunn, and legatees and next of kin.”

Bv this finding it is evident that the trial court proceeded upon the theory that the provisions of the Code were applicable to the case.

The right of the creditors of a decedent to recover their claims from his heirs at law had no existence at common law, and is derived solely from the statute. John H. MeCunn died, his will was probated and parts of it were adjudged to be void before § 1848 of the Code of Civil Procedure, above quoted, went into effect, but this action was brought after that article took effect. By § S3 of the Revised Statutes, the heirs of the decedent are not liable for their ancestor’s debts unless it shall appear: (1) That

the deceased left no personal assets within this state to be administered ; or (2), that the personal assets of the deceased •were not sufficient to pay and discharge the same; or (3), that after the proceedings before the proper surrogate’s court and at law, the creditor has been unable to collect such debt, or some part thereof, from the personal representatives of the deceased, or from his next of kin or legatees. These were statutory conditions precedent to the right of recovery on the part of the creditors, and prescribed the circumstances which must exist to render the heirs liable.

The legislature has the power to prescribe the course of descent of real property, and to impose upon those who accept of it liabilities to others, like the payment of taxes to the sovereign, and of the debts of the decedent to his creditors. But the rights of the heir vest upon the death of the ancestor, subject to the conditions, limitations and liabilities then imposed by existing statutes, which cannot be enlarged by subsequent legislation.

It is apparent, we think, that the legislature, by enlarging the rights of creditors and limiting those of heirs by the adoption of § 1848 of the Code, did not intend to make the new liability retroactive and applicable to descents which had theretofore occurred, but only to such as should thereafter occur.

Section 3352 of the Code provides: “ Nothing contained in any provision of this act, other than in chapter fourth (which relates to “ limitation of actions ”), renders ineffectual or otherwise impairs * * * any right, defense or limitation lawfully accrued or established before the provision in question takes effect, unless the contrary is expressly declared in the provision in question.”

There is no declaration in the Code that art. 2 of tit. 3 of chap. 15 was intended to apply to the rights of creditors of decedents against heirs, or to the defenses of heirs, in cases arising before the adoption of the Code. The absence of such a declaration seems to settle the question that the case at bar is governed by the provisions of the Eevised Statutes, and not by those of the Code.

It is quite apparent that § 1848 of the Code, above quoted, enlarges the rights of creditors and the liability of the heirs of decedents by permitting recoveries from the heirs when it appears that the creditors will be unable, with due diligence, to collect their debts by proceedings in the proper surrogate’s court, and by action against the executor or administrator, or wife, legatees and next of kin. This limitation upon the rights of the heirs not being a part of the statute at the time of descent cast, it cannot now be imposed as an additional burden upon the rights which they had acquired. The facts found in the fifty-second finding are sufficient, if supported by the evidence, to sustain a recovery under the Code, had it been in force at the death of McCunn; but it not having been, no effect can be given to the part of it which finds that the plaintiff will be unable with due diligence to collect, etc.

Sections 32 and 33 of the Eevised Statutes, above quoted, do not prescribe a rule of procedure for enforcing the liability of heirs, but prescribe the conditions upon which recoveries may be had from heirs, and lay down a substantive rule of law. This judgment must be supported, if at all, under the second alternative subdivision contained in § 33 of the Eevised Statutes, that the personal assets of the deceased were not sufficient to pay and discharge the debts due the plaintiff. The court found that the debts of the estate amounted to $94,768.97, and that the assets applicable to the payment of the debts of the plaintiff’s class was $32,887.29. One hundred and one claims, amounting to $70,-971.73, were listed by James M. Cano, one of the executors, upon the paper known in this litigation as schedule H, which was made up by him and entitled “ Claims presented, not passed upon, or disputed, or claims correct, but unpaid.” This executor was called by' the plaintiff as a witness, and he testified that the schedule included all claims brought to his knowledge, and that the validity of some of them was disputed by him. Among other claims in the schedule was one presented by Doolittle, Davis & Lyon for $14,000, which he testified that he rejected for good cause, and that the claim was never verified, nor were any proceedings taken to collect it. Another claim presented by James S. Morgan for $18,39419, the executor testified, was excessive at least, that it had never been verified, nor had any proceedings been taken to collect it.

These two claims, amounting to $32,39419, were not only not established by any evidence, but were actually discredited by the only witness'called to establish them. Aside from the claims in suit, and one or two others-contained in schedule H, no evidence was given to support the validity of any of them, nor does it appear that they were verified as required by the statute. 2 R. S., 88, § 35. The court found, in effect, that if the plaintiff had exercised due diligence and compelled the application of the assets, $32,887.29, towards the payment of the debts, $94,768.97, that .347 of the debts would have been paid, and so gave the plaintiff a judgment for but .653 per cent of their claims against the defendant. As above shown, the two claims amounting to $32,394.19 were not established as debts against the estate, which, deducted from $94,768.97, leaves $62,374 78, of debts established against the estate. The assets, $32,887.29, applicable to the payment of these debts, would have paid .5275 per cent of plaintiff’s claim. The total amount of the plaintiff’s claims as established by the special term amounted to $13,504.34, .5275 per cent of which amounts to $7,123.54, which deducted from $13,504.34, leaves $6,380.80 recoverable against the defendants instead of $8,818.33.

It is urged in behalf of the plaintiff that exhibit H became presumptive evidence of the existence of the debts enumerated therein by virtue of the last paragraph of § 1848 of the Code of Civil Procedure, above quoted. Assuming that this provision is but a rule of evidence and applicable to this case, it does not aid the plaintiff, for exhibit H was no part of the executor’s account, but is a mere list of claims which had come to his knowledge. True, it was annexed to the account which he filed with the surrogate, but the validity of these claims was not passed on in any way by the surrogate’s court, and the list is not presumptive evidence that the claims enumerated therein are the debts of the decedent. Undoubtedly the executor’s account of moneys received and disbursed as allowed by the surrogate is presumptive evidence of the amounts received and paid in actions against the heirs, but the- provision was not intended to make mere statements, not properly before the surrogate’s court for adjudication, evidence in such actions.

It is not asserted in behalf of the plaintiff that the heirs are liable because it appears that the deceased left no personal assets within this state, for the contrary is conceded. Nor is it claimed that proceedings have been taken before the proper surrogate’s court and at law for the collection of the debts sought to be recovered in this action, and so there is no ground left upon which this recovery can be sustained, except under the second alternative subdivision of § 33, and we have shown, we think, that the evidence is insufficient to sustain the finding under that section.

We think it was well held at special and at the general terms that the plaintiff’s claims were established as debts contracted by John H. McCunn, and that the statute of limitations had not applied as a bar.

The order of the general term must be affirmed, and judgment absolute rendered against the appellant, with costs.

Bradley; J.

This action was brought in 1832 to charge the defendants, as heirs of John H. McCunn, who died in July, 1872, with the payment of certain debts contracted by him in his lifetime and due to the plaintiff at the time of the commencement of the action. It is founded upon the fact that the defendants as such heirs took by descent certain real estate of which McCunn died seized, and as his death was prior to the repeal of the provisions of the Revised Statutes upon the subject by Laws 1880, chap. 245, the main question requiring consideration on this review is whether the action is subject to the application of the statute as'it existed prior to such repeal or the provisions of the Code of Civil Procedure, which as a substitute succeeded it,.and •this depends upon the construction and effect‘in its relation to the case of the Code, § 3352, that: “Nothing contained in any provision of this act * * * renders ineffectual or otherwise imjDairs any proceeding in an action or a special proceeding had or taken pursuant to law, or any other lawful act done, or right, defense or limitation lawfully accrued or established, before the provision in question takes effect.”

If, therefore, at that time there had accrued to the defendants any right or defense which would be rendered ineffectual or otherwise impaired by the application to the action of the provisions of the Code of Civil Procedure, then for its purposes as further provided by the same section, the provisions of the Revised Statutes on the subject are deemed to remain in force notwithstanding such repeal. The defendants had no vested right to protection against liability for the debts of the decedent to the extent of the real estate of which he died seized and which came to them by descent on his decease. It is true that at common law land descended or devised was not chargeable with simple contract debts of the ancestor or testator, nor was the heir liable even upon specialty unless he was expressly named. 3 Bl. Com. 430. But in this state his liability was created in 1786, by statute, which also gave to the probate court the power to direct the sale of the decedent’s real estate upon the condition there mentioned, for the payment of his debts. Laws 1786, ch. 27. And in 1801 and 1813, further acts were passed having the same direction and of like effect so far as related to the liability of heirs. Laws 1801, ch. 50; 1 R. L., 316. So that at the time when the provisions of the Revised Statutes relating to suits against heirs and devisees went into effect, there had been for forty years in this state a liability of heirs for the debts of their ancestor, on whose death lands had descended to them. The purpose of those statutes was to give his creditors the benefit of the estate left by their debtor or its equivalent, and to charge those im-m whom descent was cast accordingly. The practical effect of the provisions of the Revised. Statutes was the same, although the mode or practice of the proceedings to accomplish it was somewhat modified. It thus appears that prior to and at the time' the substituted provisions of the Code were adopted, the heirs to whom lands had descended took and held them subject to the payment of the debts of the ancestor, to the extent of any deficiency of his personal estate applicable to that purpose. Watkins v. Holman, 16 Peters, 25, 62.

The right of his creditors- to assert and establish their claims against his heirs in such case was not created by the Revised Statutes; but by them the manner of enforcing it and the conditions upon which the relief was made dependent were somewhat changed. Those modifications were matters remedial in character, and therefore did not, within the meaning of the provision of the section before mentioned, constitute a right which denied the applicability of the Code of Civil Procedure to the action for the purposes of the remedy and relief. Parsons v. Bowne, 7 Paige, 354.

And it is equally difficult to see how those remedial provisions of the Revised Statutes can be treated as a defense within the meaning of that section. While they would, if in force, be in the way of the plaintiff’s recovery in the present action, they were merely conditions precedent to be established by him. That is to say, they imposed upon the creditor the burden of alleging and proving certain facts as a condition to the right of relief. This is not a defense in the sense which that term is ordinarily understood in its application to legal proceedings. It is a failure to produce by proceedings preliminary to the action facts which are essential to relief, or to establish them by evidence in support of a right which the plaintiff has,' and which for its efficiency is dependent upon them. The fact that the burden imposed upon the creditor for the purpose of the remedy is lessened by the provision of the Code does not seem to have rendered ineffectual or impaired any defense which the heirs would otherwise have had, or could have alleged and established.

It, therefore, follows that the operation of the provision of the statute that the plaintiff must show that he “ will be unable with due diligence to collect his debt by proceedings in the proper surrogate’s court and by action against the executor or administrator and against the surviving husband or wife, legatees and next of kin,” Code, § 1848, is not, for the purposes of the present action, suspended or in its application to the action defeated. But as .to the amount of the claims against the estate of the decedent a further question arises upon exception to the finding in that respect. The conclusion of the trial court wás founded upon the assumption that they amounted to §94,768.79. The fact so found does not, to that extent, seem to have been supported by evidence. Upon that, subject the views expressed in the opinion of Chief Judge Follett are, without considering them further in that respect, adopted so far as they are to the effect that of those claims the sum of §32,394.19 was not established. For that reason the order appealed from must be affirmed, and judgment absolute directed against the plaintiff.

Opinions by Folleto, Oh. J., and Bradley, J. All concur with Bradley, J., on the first ground discussed by him, and all concur on the second ground discussed by both, except Potter, J., not voting, and Parker, J., not sitting.


source: Caselaw Access Project

author: Patterson, J. Van Brunt, P. J.

license: Public Domain

text:
    William D. Mills, Adm’r, App’lt, v. Joseph Husson, Trustee, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Bills and notes—When possession alone not proof of ownership.
    One M. executed an assignment for creditors to his father in law, who subsequently died, leaving a will, by which plaintiff, on his mother’s « death, became entitled to his estate. After his death his attorney delivered to plaintiff a note of M., which had not been included in the inventory and upon which no claim had been made for thirty years after its maturity. Held, in view of the relations of the parties, that there was no proof of delivery of the note or that it represented any enforceable debt.
    2. Same—Evidence—Code Civ. Pro., § 829.
    Section 839 of the Code does not prevent the maker of commercial-paper, when a claim thereon is presented against his assigned estate, from testifying as to the circumstances out of which such paper has arisen.
    3. Same.
    Where there is no proof of the delivery of a note in suit, evidence as to whether any payments had been made on it is immaterial, and is properly excluded.
    4. Uses and trusts—Laws 1875, chap. 545.
    Chapter 545, Laws 1875, amending § 67 of the statute of uses and trusts, applies only to real estate.
    5. New trial—Newly discovered evidence.
    A new trial will not be granted for the purpose of allowing a party to introduce evidence which was purposely suppressed on the trial because considered unnecessary. Such evidence is not newly discovered evidence, within the meaning of the statute.
    . Appeal from judgment of the special term, dismissing the complaint on the merits, and also from order denying motion for a rehearing.
    The following is the opinion at special term:
   Patterson, J.

The practical question in this case is, are any rights of the parties to this suit established to a fund now in the hands of the defendant Husson, as substituted assignee of Jacob D. Mills, under a general assignment made for the benefit of creditors in June, 1855? By the assignment, one William Dolsen was made assignee, and he entered upon the administration of the trust, and continued to act until July, 1865, when he died. On the 26th of March, 1868, the defendant Husson was appointed, by an order of this court, trustee and assignee, and in 1869 he received $3,503.67, the proceeds of an interest of the assignor in certain real estate, and in January, 1873, he also received, from the Chemical Bank $529.58, being a balance of moneys then standing to the credit of the account of Dolsen, assignee, with that bank. It is the aggregate of these two amounts to which the present controversy relates. William Dolsen left a last will and testament, by which he appointed his daughter (the wife of the assignor) executrix, and letters testamentary were duly issued to her. She died in 1869, and the present plaintiff took out letters of administration de bonis non on the estate of his grandfather Dolsen. By Dolsen’s will the plaintiff, as the sole surviving child of Mrs. Mills, became entitled, on his mother’s death, to all his grandfather’s estate. In 1875 he claims to have received from Dolsen’s attorney an obligation of his father (the assignor) for $10,000, to which more particular reference will be made hereafter. In 1882 Jacob D. Mills (the father) assigned to the plaintiff all debts, dues, demands, causes of action, etc., he had against the defendant Hus-son, or, in other words, whatever interest he had by way of reversion in the assigned estate. By the assignment of Jacob D. Mills certain preferred creditors were provided for, and it is conceded that the moneys in Mr. Husson’s hands are insufficient to meet the claims of those preferred creditors. Jacob D. Mills was discharged from his debts by bankruptcy proceedings in 1868. Mr. John Todd was made assignee in bankruptcy, and on his death Mr. Scott, a defendant herein, was appointed to succeed him. The assignee in bankruptcy makes no claim to the fund, and has very properly refrained from asserting any right to the money, and it may be said at this point that in no aspect of the case can any question properly arise respecting the effect of the bankruptcy proceedings, as creating rights to the moneys in the assignee's hands. Whatever rights there are accrue by virtue of the assignment, and if Jacob D. Mills could claim anything under the act of 1875, to which reference will be made, it is not a right that would pass to his assignee in bankruptcy, because it was conferred by virtue of state legislation long after his discharge.

The parties to the action are the plaintiff, as administrator de bonis non ; Husson, as trustee of the assigned estate; the preferred creditors under the assignment or the personal representatives or next of kin of such of those creditors as are now deceased, and all persons who might by any possibility be interested in the distribution of the fund under the terms of the assignment or under the principles of law which have been invoked in the case. The plaintiff’s claim has a two-fold aspect, as above stated: First, virtually as a creditor, by his holding the ten thousand dollar obligation referred to, which obligation he claims is enforceable because, by the terms of the assignment, William Dolsen and Charles B. Hart were preferred for whatever amounts - were due them by the assignor; and, Secondly, he claims as assignee of the reversion, under the provisions of chap. 545 of the Laws of 1875, which amended the statute of uses and trusts, and which provided that § 67 of that statute should read as follows: “When the purpose for which an express trust shall have been created shall have ceased, the estate of the trustee shall also cease, and where an estate has been conveyed to trustees for the benefit of creditors, and no different limitation is contained in the instrument creating the trust, such trust shall be deemed,discharged at the end of twenty-five years from the creation of the same, and the estate conveyed to a trustee or trustees, and not granted or conveyed by him or them, shall revert to the grantor or grantors, his or their heirs or devisees, or persons claiming under them to the same effect as though such trust had not been created.”

The defendant Husson in his answer controverts all the asserted rights of the plaintiff, and in addition sets up a counterclaim; but there is no proof which would justify a decree being made against the plaintiff on the alleged counterclaim, and, therefore, it does not require further consideration.

The defendant Husson has also interposed the defense of the statute of limitations, but, in the view I take of the case, it is unnecessary to pass upon that question. The receiver of the Bowery Bank makes no claim, but sets forth that he has fully accounted for and been discharged from his trust. The children of Coutant, a creditor, claim that they are entitled, as succeeding to their father’s interest as a preferred creditor, but it also appears -by their answer that an administrator had been appointed of their father’s estate and he has since died, and it does not appear that there is any person representing that estate who could call the defendant Husson to account, and although the children of Mr. Coutant have been made parties as next of kin, they have no such relation to the subject as would entitle them to’ relief upon the answer which they have interposed. Whatever rights Mr. Coutant, as a preferred creditor, may have had, if they have not been waived or lost by Blanchard, the administrator, must be asserted by some person to be appointed to represent his estate and who would be qualified to maintain an action against Husson as substituted assignee, for the latter is not obliged to account except to a duly appointed representative of Mr. Coutant’s estate.

We are thus brought to a consideration of the case as it stands between the plaintiff and the defendant Husson, and I am of the opinion that the plaintiff is not entitled to recover on either of the grounds upon which his claim is founded. Concerning the $10,000 instrument, while it is a sealed note, and in consequence of mention being made in the body of the instrument that it is signed and sealed by the parties who executed it, the twenty years statute of limitations would apply, yet I am satisfied that, in view of the relations of the parties to each other and of the vagueness and obscurity of the dealings between Jacob D. Mills and Dolsen, his father in law, it would be grossly inequitable to base a decree upon the simple possession by this plaintiff of this sealed note, which seems to have been handed to the plaintiff by Mr. Hart, who was at one time the attorney for Dolsen, and afterwards the attorney for Husson, as assignee. No claim has been made on this note until over thirty years after it became due. It is found in the possession of the attorney for Dolsen; that is, of Dolsen, assignee, and whether it was held as a personal asset of Mr. Dolsen, or came into his possession with the books and papers of his assignor, we have no means of determining ; but there is a striking significance, as affecting the validity of any claim upon this obligation, in the facts that there is no proof anywhere made that the assignor was indebted to his father in law on this obligation, for the assignment merely prefers Mr. Dolsen for some unascertained and indefinite amount, and there is nothing stated in the inventory of Mr. Dolsen’s estate as to this obligation of $10,000. The absence of any account whatever of Dolsen, assignee, or of any statement of the administration of his trust, except as it is to be gathered from the account in the Chemical Bank, is also to be considered in this connection. Of the history of this obligation we know nothing, and, without further light respecting it, it is not to be assumed that it represents any enforceable debt whatever.

Concerning the second ground of the plaintiff’s claim to an account, I think it is untenable. Chapter 545 of the Laws of 1875, amending § 67 of the statute of Uses and Trusts, applies only- to real estate, as seems to be obvious from the very words of the statute itself. It is practically to relieve' titles of assignors, or their heirs and devisees, from the cloud or incumbrance of an assignment for the benefit of creditors where real estate has passed by an assignment and has not been respited to in execution of the trust. Reference is distinctly made to the estate conveyed and not granted by the trustee or trustees, and which is to revert to heirs or devisees; showing that all the legislature had in contemplation was to deal with the realty of an assignor for the benefit of creditors. There are cases in which the analogy of the Statute of Uses has been applied to trusts of personal property, but such adjudications are not in point in a case of this kind, where the assignee is in possession of a sum of money, the avails of real property which has been conveyed and disposed of, and which avails he holds under his trust for the benefit of those entitled to them.

But it is incontrovertible that the defendant Husson has no personal right to the fund in his possession, and he must undoubtedly account for and pay it over to whomsoever may be entitled to it under the terms of the assignment of Jacob D. Mills. The complaint in this action must be dismissed, with costs, and it will, of course, be without prejudice to the right of any authorized person in a properly constructed suit to demand an accounting and other appropriate relief.

F. A. Baker, for app’lt; D. McMahon, for resp’t.

Van Brunt, P. J.

We think that the opinion of the learned judge below correctly disposes of the questions involved upon this appeal.

It is apparent from an examination of this record that there was no evidence whatever of the delivery of the note in question. It might just as well have come into the hands of the plaintiff in the manner described by him, if the same had been found amongst the assignor’s papers, and which passed to the assignee; and in view of the long period of time which has elapsed since the making of the note and the presentation of the claim by the holder thereof, this would seem to be the only conclusion which could be arrived at. "

Objection is taken to the exclusion of the testimony of Mr. Jacob D. Mills, one of the makers of the note in question. Upon what theory any testimony pertinent to the issue which could be given by Jacob D. Mills should be excluded, we are unable to imagine.

It is urged that it was objectionable under § 829 of the Code. But we fail to find any provision in that section which prevents the maker of a piece of commercial paper, when a claim thereon is presented against his assigned estate, from testifying as to the circumstances out of which such paper has arisen. But no such questions were asked the witness, and from subsequent events such a line of examination seems to have been studiously and purposely avoided.

But he was asked whether he had paid any portion of the obligation which was the subject matter of the controversy, and this was excluded, there never having been any evidence of a delivery of this piece of paper, although the ability to prove such delivery was within the reach of the plaintiff if he had chosen to avail himself of it. The question as to whether anything had been paid upon an obligation, in respect to which there had been no proof of delivery, was entirely immaterial, and it was not error to exclude it.

After the decision of this case the parties found that they had made a mistake. They had been speculating upon a given result in the action, but were disappointed at the conclusion at which the court arrived, and they made a motion for a re-hearing for 'the purpose of introducing other evidence which they had purposely failed to introduce because, perhaps, fearful in respect to what its result might be. And thus having speculated upon what the decision of the court would be, and having failed, they then made an application for a re-hearing to introduce this evidence of which they were possessed all the time, and have another opportunity to speculate as to what should be done with another question which that evidence would introduce.

The court declined to allow such rehearing and to permit the plaintiff to thus speculate upon, the result of the decision, and clearly properly so. The evidence was not newly discovered evidence. It was, apparently, purposely suppressed because it was thought not to be necessary and it was the best and safest course not to introduce it.

It is clear that under such circumstances no relief of the kind asked for could possibly be granted.

The judgment should be affirmed, with costs, and the order should also be affirmed, with ten dollars costs.

OBrieh, J., concurs.


author: Per Curiam.

text:
    In the Matter of the Estate of Richard S. Newcombe, Deceased.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Surrogates—Disqualification—Removal of proceeding.
    What amounts to a disqualification to act as a judicial officer and a surrogate is carefully defined by statute, and beyond that it is a matter of discretion with a judge whether he will act in a given case or not. But it is his duty to proceed with the trial of a cause unless he is himself satisfied that he should not do so.

      Appeal from order of surrogate denying motion to send issues in the above proceeding to the court of common pleas for a trial before a jury.

      Edward G. James, for appl’t; Donohue, Newcombe & Cardozo, for resp’t
   Per Curiam.

The appellant moved that the issues raised by the objections of the contestants to the probate of the will in this proceeding be sent to the court of common pleas for trial, upon the allegation that the surrogate was a personal friend of the deceased, and of the principal beneficiary under his will, and that the trial of the issues would involve the examination of many witnesses, and that the testimony would be conflicting to a great extent, and that consequently a jury trial was essential. In other words, the motion was a challenge of the right of the surrogate to perform the duties which the law imposed upon him. Of course, under such circumstances, a judge has no opportunity to answer insinuations of this character, and consequently no such right of challenge is or should be recognized by the law. What amounts to a disqualification to act as a judicial officer and a surrogate is carefully defined by statute, and beyond that it is a matter of discretion with a judge whether he will act in a given case or not. But it is his duty to proceed with the trial of a cause unless he is himself satisfied that he should not do so.

It rests entirely in the discretion of the surrogate whether he will or not remit proceedings to the court of common pleas for trial, and with that discretion this court has neither power nor inclination to interfere.

The order appealed from should be affirmed, with costs.

Van Brunt, P. J., O'Brien and Ingraham, JJ., concur.


text:
    In the Matter of the Estate of Richard S. Newcombe, Deceased.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Appeal from order denying motion to adjourn proceedings.

      Ira L. Bamberger, for app’lt; Donohue, Newcombe & Cardozo, for resp’t.
   Per Curiam.

The appeal herein is clearly frivolous, and the order appealed from should be affirmed, with costs.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: O’Brien, J.

text:
    Joseph Beran, Resp’t, v. The Tradesman’s Bank, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Assignment—Bights of assignee of fart of claim in suit.
    Pending action against the defendant bank, the plaintiff therein assigned a portion of the claim to one K., plaintiff’s assignor, by an instrument which provided that the suit should proceed in the original plaintiff’s name to judgment or settlement, and provided that the sum assigned should be paid to the assignee immediately upon payment or settlement, and the assignor authorized his attorney to make such payment. After notice of the assignment the bank paid a sura of money to the original plaintiff and the suit was discontinued. Held, that this amounted to a settlement within the meaning of the assignment, and entitled plaintiff to maintain an action against the bank for his part of the claim.

      (Beran v. Tradesmans' Bank, 32 St. Rep., 999, followed.)
    Appeal from judgment of special term in favor of the plaintiff. W. W. Niles, for app’lt; H. Thompson, for resp’t,
   O’Brien, J.

This action has been twice tried, and the facts proved upon both trials are substantially identical. Upon the first trial a judgment was rendered dismissing the complaint upon the merits. Upon appeal the general term reversed the judgment by a decision reported in 32 St. Rep., 999. The last trial resulted in favor of the plaintiff for the judgment here appealed from.

The action is brought to enforce an equitable assignment arising out of the following facts:

In May, 1880, Michael Duffy was suing the Tradesman’s Bank and Berry, the cashier thereof, to obtain a deed of twelve houses and lots upon receiving from him a bond and mortgage for the balance of the purchase price of the lots and advances. As will be seen from the agreement between Duffy and the plaintiff’s assignor, the value of this claim was fixed at about $40,000, which was disputed by the bank.. On May 27, 1880, Duffy executed and delivered to one Adolf Klaber an assignment of the claim to the extent of $10,000. On June 7, 1880, Klaber assigned to the plaintiff the interest in the claim which he had acquired by virtue of the assignment from Duffy.

Shortly afterwards the plaintiff duly notified the bank and the attorneys for Duffy of both these assignments, and informed them that upon any payment or assignment of the claim the sum of $10,000 was to be paid to the plaintiff, and upon his receipt. In October, 1882, while the action to enforce the claim was still pending, the bank paid Duffy $6,000, whereupon the suit was-discontinued. The present action is brought to recover the $10,0Q0 interest in Duffy’s claim against the bank, which was assigned by Duffy to Klaber, and subsequently by Klaber to the plaintiff.

This court will not examine de nova questions which have been once passed upon, and unless other facts are now.made to appear, the former decision is controlling, and should be followed.

The difference in the facts claimed to be material, so far as the appellant is concerned, relates to the absence of an affidavit of Duffy which was put in evidence by the bank upon the first trial, and upon this was omitted, and which was referred to by the general term in its opinion as showing that the settlement of Duffy’s claim actually effected was something more than merely buying the bank’s peace. Here, however, the order of discontinuance entered by consent recites that it is entered upon a settlement of the action. In some other particulars this case is stronger in favor of the respondent, in that no denial of the notice of assignment is made, and proof was offered to support the finding as a fact that Duffy was indebted to Klaber in the sum o'f $10,000 when he assigned his claim to that extent to him.

We do not see that the record as now presented alters in any material aspect the facts upon which the former decision was based. In construing the assignment from Puffy to Klaber the court held that even in the absence of evidence showing that the bank did aught in settling with Duffy but buy its peace, nevertheless “ the payment of money by the bank on the claim to buy its peace, by reason of which the suit was discontinued, was a settlement within the meaning of the assignment.”

It was further held that notice of the assignment having been given, the assignee could maintain an action directly against the bank for his part of moneys paid by it to Duffy in settlement of the claim, the assignee never having consented that such portion should first go into the hands of Duffy.

Apart therefore from the questions which are presented in regard to the admission or exclusion of evidence, and the exceptions to the findings as found, and to the refusals to find, the former decision is controlling upon the questions presented upon this appeal.

It is not necessary for us to go over in detail each and every exception taken by the appellant to the rulings of the trial judge. With the former decision for his guide, he'tried the case upon the lines of that decision, and after examination of the exceptions and the argument of counsel for the appellant, we do not find any error which would justify our disturbing the judgment.

We are therefore of opinion that it should be affirmed, with costs.

Van Brunt, P. J., concurs; Patterson, J., concurs in result.


author: Ingraham, J. Per Curiam.

text:
    Simon Rothschild, Resp’t, v. The Rio Grande Western Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Pleading—Foreign Statute.
    In an action under a foreign statute, it is sufficient to set forth such statute and allege that its provisions have been complied with; the steps taken in complying with the statute need not be set forth, as they are only evidence going to support the allegation of compliance.
    Appeal from interlocutory judgment overruling demurrer to amended complaint.
    The following is the opinion of the special term:
   Ingraham, J.

— The former complaint in this action was held demurrable by the general term on the ground that it did not allege the law of the state of Colorado and the territory of Utah, under which the complaint alleged the railroad companies therein mentioned were consolidated and became the defendant corporation. 87 St. Rep., 44. The plaintiff then amended the complaint by setting out the law of such state and territory, and then alleged the consolidation of the two railroad companies, under and in accordance with such laws, into one corporation, called and known by the corporate name and style of the Rio Grande Western Railroad Company, the defendant in this action ; and defendant demurs to the amended complaint, claiming that such amended complaint is defective, in not alleging the proceedings and steps by which the two railroad corporations became consolidated into the defendant. Under our system of pleading, facts are to be alleged ; not the evidence to prove such facts. The consolidation of the two corporations was a fact which could take place only upon the compliance by the corporations with the provisions of the statute that are pleaded ; and where the complaint alleges the law of the state Under which the corporation existed, authorizing the consolidation, and that thereupon two corporations became consolidated into one corporation, it is a sufficient allegation upon demurrer. A demurrer admits such facts as may by reasonable and fair intendment be implied from the allegation of the complaint, and the allegation that the two railroads became consolidated under the provision of this law, by reasonable and fair intendment, implies that all the steps prescribed by the law to effect such consolidation were duly taken; and as it appears, from the laws pleaded, that upon such consolidation the corporation into which the other corporation had become merged was liable for the debts of such other corporation, I think the complaint alleges a good cause of action against such consolidated corporation. The demurrer must therefore be overruled, and judgment ordered for plaintiff, with costs, with leave to defendant to withdraw demurrer and answer within twenty days on payment of costs.

T. F. H. Myer, for appl’t; W. Strauss, for resp’t.

Per Curiam.

The opinion of the court below sufficiently ' states the ground upon which the judgment rendered was founded.

The cases of Austin v. Goodrich, 49 N. Y., 266, and Bartlett v. Crozier, 17 Johns., 456, do not seem to have any application. All that is decided in those cases-is that in order to maintain the action under the statute the facts must be alleged bringing the plaintiff within the protection of the statute.

In the case at bar the statute is pleaded, and the allegation is made that the provisions of the statute have been complied with. This is an entirely sufficient allegation, as the steps taken in complying with the statute are nothing but the evidence going to support the allegation.

The judgment should be affirmed, with costs, and with leave to the defendant to withdraw the demurrer and answer upon payment of the costs in the court below and on this appeal.

Yan'Brunt, P. J., and O’Brien, J., concur.


author: Van Brunt, P. J.

text:
    In the Matter of the Application of The Board of Rapid Transit Railroad Commissioners for the appointment of Commissioners.

      (Supreme Court, General Term, First Department,

      Filed April 7, 1892.)

    1. Railroads—Rapid transit—Consent op property owners.
    It is not necessary that the plans prepared by the commissioners under the Rapid Transit act of 1891 should he presented to a property owner before a valid application for his consent can be made. It is sufficient if public notice of the adoption of such plan has been given, and the property owner could, by going to the proper office, examine it and the maps illustrating it.
    2. Same—Consent of common council.
    The court will not presume that the common council did not vote by ayes and noes, for tUte purpose of invalidating its action.
    3. Same—Plan of construction.
    The plan of construction provided for by § 4 of the act is sufficient if it shows the general mode of operation, and contains such details as_ may be necessary to show the extent of encroachment upon the street; it is not necessary that it state the precise amount of encroachment or the precise locality where such encroachment may be increased by the erection of structures necessary for the operation of the road.
    4. Same—Material.
    A statement in the report or plan that the viaducts are to he of masonry or iron, or both, is sufficient.
    5. Same—Encroachments—Ungraded streets.
    Where a portion of the route passes through ungraded streets it is not. necessary that the report should state whether in such portions the road will be in a tunnel, depressed structure or viaduct, as this will depend, upon the grade to he subsequently fixed.
    6. Same—Stations.
    It is not necessary in the general plan to locate the stations of the road,
    7. Same—Motive power.
    A statement that the cars will he moved by motors having a specified power, such power being supplied by some method not requiring combustion within the tunnels, gives sufficient information as to the general mode of operation.
    8. Same—Construction.
    A statement that below a certain point the construction should he made by underground tunnelling without disturbing the streets, except in cases of necessity, and that all excavations above that point might be made from the surface, is a sufficient compliance with the statute.
    Motion of the rapid transit commissioners for the appointment, of commissioners.

      J. M. Bowers, for the motion; F. M. Scott, Wheeler H. PecTchamr W. II. Arnoux, J. A. Peering and others, opposed.
   Van Brunt, P. J.

The board of rapid transit railroad commissioners in and for the city of ¡New York, appointed pursuant to the provisions of the laws of 1891, having made their report to the common council of the city of ¡New York, and such report having been adopted by said common council, and having made application for consent to the owners of property abutting upon the proposed routes referred to in said report, and said consent having been refused, make this application to this general term of the supreme court for the appointment of three commissioners, who should determine after public hearing of all parties interested whether such railroad ought to be constructed and operated, and report such determination with the evidence taken by them to said general term.

Various objections are urged by several counsel who appeared to oppose this application, the most of which are based upon the claim that the general plan of construction adopted by the board of rapid transit commissioners, and which is the basis of the present application, is radically and fatally defective, in that it does not show as to a large part of the contemplated route whether the railroad is to be underground road, an elevated road or a depressed road; and that it does not show the manner of construction of so much of the proposed railroad as is to be constructed on a viaduct, or in a depressed structure, or in a tunnel; and that it does not show the extent to which the streets, avenues and public places in which the said railroad is to be located are to be encroached upon, and that it does not show the mode of operation ; and that therefore it does not furnish the materials necessary for the formation of an intelligent opinion as to the efficiency of the proposed railroad.

It was also urged by some of the counsel that no proper application was made to the property owners for their consents, because the plans of construction were not presented to each property holder before he was asked to give his consent.

The latter proposition, it seems to us, has no merit, in that it never could have been within the contemplation of the legislature that every property holder should have presented to him maps and reports and statements, showing all that the rapid transit commissioners had concluded upon, before any valid application for his consent to the projected plan could be made. It seems to us clear that it was sufficient if the commissioners had adopted such a plan, and had given public notice of such adoption,, and if the property owner could, by going to the proper office, examine the plan which had been adopted and the maps illustrating the same.

It was suggested upon the argument that no definite place was fixed where the property owner‘might see these plans. But it is evident from the public notices which were given both by the commissioners and the common council in reference to their proposed action upon these plans, that there would have been no difficulty in any property owner having access to the same if he desired to do so. In fact, we find no property owner who has shown that he has been unable to see the report and plans because of their inaccessibility.

It has also been urged that the rapid transit act provides that the adoption by the common council of a resolution approving the plans and conclusions of the rapid transit commissioners, and consenting to the construction of the railway or railways in accordance therewith, shall be by a vote taken therein by ayes and noes; and that in the report which gives the proceedings of the common council it does not appear that the ayes and noes were taken on the vote. It does appear that twenty-two members of the common council voted in favor thereof, and it does not appear the vote was not taken by ayes and noes; and this court cannot assume a fact for the purpose of invalidating the action of the common council.

This brings us to the consideration of the main question which was raised upon the argument of this application, namely, that the general plan of construction adopted by the board of rapid transit commissioners, and which is the basis of the present application, is radically and fatally defective.

In the consideration of this question it is necessary to bear in mind some of the differences which exist between the rapid transit act of 1875 and the rapid transit act of 1891.

It is urged by the counsel for the objectors that the rapid transit act of 1891 requires more minuteness and greater detail in the description of the location and manner of construction of the railroad than was provided for in the act of 1875.

This view, it seems to us, is not borne out by a consideration of the respective provisions of the two acts so far as they relate to the question under discussion.

The rapid transit act of 1875 in § 5 provides as follows:

“ The said commissioners having by such public notice as they may deem most proper and effective, under such conditions and with such inducements as to them may seem most expedient, invited the submission of plans for the construction and operation of such railway or railways, the said commissioners shall meet at a place and upon a day in such notice named, not more than ninety days after their organization, and decide upon a plan, or plans, for the construction of such railway, or railways, with the necessary supports, turnouts, switches, sidings, connections, landing places, stations, buildings, platforms, stairways, elevators, telegraph and signal devices, or other requisite appliances upon the route, or routes, and in the locations determined by them.”

This language has been considered by the courts; and it has been determined within certain limits as to what were essentials or non-essentials in order that a proposed plan for the construction of a railway shall be held to be either obnoxious to, or sufficiently accordant with, this provision.

In the matter of the New York Cable Co. v. The Mayor, 104 N. 1; 4 St. Rep., 308, Judge Eapallo examined the question above suggested and laid down some general rules which were to govern in the consideration of such a question; but how far these rules were concurred in by the court in the disposition of the case seems to be somewhat problematical.

Various questions were presented attacking the organization of the petitioner in the case cited, and J udge Eapallo said: “To begin at the foundation, I think it incontestable that they (referring to the commissioners) must decide whether the contemplated road was to be an underground road, an elevated road, or, if I am right in my construction of the act, a surface road. To leave either of these questions undetermined and relegate it to the discretion of the directors of the company to be formed would, in my j udgment, be a departure from the act and a failure to comply with one of the conditions precedent to the acquisition of corporate power. How far further it is essential for the purpose of securing a valid organization that the commissioners should decide upon plans of construction, it is difficult to determine. It would be very inconvenient, to say the least, to require that the details of the construction should be prescribed with the minuteness of the usual speciffcations in a building contract. There undoubtedly is a line somewhere dividing the essential from the non-essential; but we are not put to the necessity of searching for it in the present case. It is sufficient for its purposes to hold that, as far as reasonably practicable, the plans adopted by the commissioners should disclose to what extent the streets are to be encroached upon and the property abutting thereon affected, and the means of transportation to be used, so that the local authorities and the property owners when applied to for their consents, or the commissioners appointed by the supreme court with authority to consent in their behalf, may have the necessary materials to form an intelligent judgment whether the scheme proposed should or should not be assented to.” (And it is this language of the learned judge which was imported into the act of 1891.) The learned judge then formulated various propositions as his conclusions ; and the fifth was to the effect that “ the commissioners have failed to substantially comply with the requirements of § 5 of the act to decide upon a plan for the construction of the railways and other appliances specified in that section, and that such compliance was essential to their valid organization;” in which all the court concurred. And we are informed by Judge Finch in the Matter of the Kings Co. Elevated Railroad Co., 112 N. Y., 47; 20 St. Rgep., 336, that their conclusion that the action of the commissioners was not a substantial compliance with the requirements of said section of the rapid transit act rested upon at least two omissions of the most important and vital character; one, that it was left undetermined for seventeen miles of the routes authorized whether the construction should be a surface or an elevated road; and the other, that the number of tracks was left unlimited, so that the whole width of the roadway might be occupied by them and in some streets even a third row of columns might be erected; the court holding that these facts alone established that no definite plan was dictated by the commissioners, but the choice of a plan was substantially left to the corporators. And in the latter case it was distinctly enunciated that it was not the intention of the court to decide in the Cable case that § 5 of the rapid transit act required the location of the stations and stairways. And the fact was pointed out that if the section compelled the location of stations and stairways, it equally compelled that of every column or necessary support, of every turnout or siding, of every connection, of every landing place or platform, and of every telegraph or signal device. And the conclusion of the court seems to have been that a plan of construction which entered into such details as to the manner of construction as might be necessary to show in a general way the extent to which any .street, avenue or public place was to be encroached upon, and the property abutting thereon affected, was a sufficient compliance with the act.

Now the act of 1891 has embodied this conclusion within its provisions, and has expressly eliminated from the preliminary plans the provisions of the act of 1875 respecting supports, turnouts, switches, landing places, etc.; leaving those details to be filled in after it has been finally determined by the appropriate authorities that an attempt to carry out the plan shall be made. The provisions of § 4 of the act of 1891 are that jf said board shall determine that a rapid transit railway or railways in addition to any already existing are necessary for the interest of the public and such city, it shall proceed to determine and establish the route or routes thereof and the general plan of construction; and that such general plan shall show the general mode of operation, and contain such details as to the manner of construction as may be necessary to show the extent to which any street, avenue or other public place is to be encroached upon and the property abutting thereon affected.

Now can it be for one moment held that this general language requires greater or more particular specification of details than the language of § 5 of the act of 1875, which provides for a plan or plans for the construction of such railway or railways with the necessary supports, turnouts, switches, etc.?

It seems to us to be apparent that under the act of 1891 the plan was to be a general one, and that there should be no dispute upon that point. In fact, the language is “ a general plan of construction.” Such plan was required to show the general mode of operation and to contain such details as to the manner of construction as might be necessary to show the extent of encroachment upon any street or avenue. It certainly could not have been intended by the use of this language to compel the commissioners by these plans to state with absolute accuracy the precise amount of encroachment, or the precise locality where such encroachment might or might not be increased by the erection of structures necessary for the operation of the railroad.

The plan was to be a general one, not a plan in detail. The detail plan was provided for by the sixth section of the act, where specifications are spoken of in reference to the construction of this railroad.

It would therefore appear that the plan of construction referred to in the fourth section was necessarily general in its character, but must be so prepared as to give the owners of abutting property notice of the general character of the encroachments which were to be made upon their property. And that is what was decided in the case of the Kings County Elevated Railway Company, above cited; and if such a general statement was sufficient under the statute of 1875, it must certainly be a compliance with the statute of 1891.

It is urged upon the part of the objectors that the commissioners have not definitely fixed the character of the construction. It is said that they have laid out two routes which they have described with minute particularity, one running on the west side of the city, and one on the east side. They both cross the Harlem river, and extend to the city line, running in that part of the city north of that river, as well as in the older parts, chiefly through and along streets and avenues.

And as to all those portions of the proposed railways thus projected north of the Harlem river, comprising a considerable portion of the whole routes no further or other statement is made than that north of the Harlem river the construction shall be by viaduct, depressed structure and tunnel as the grades of the land upon the proposed routes shall require. And it is urged that it is manifest that this statement can convey no information to any property owner along either of the routes above the Harlem river; and that to foresee what kind of a road is to be placed in front of his property he must know not only the natural elevation of the ground, but the proposed elevation of the projected railroad, as to which the report gives him no information whatever; and that the profile drawings attached to the report do not in any way aid such investigation, and that no man owning property .along either of the proposed routes above the Harlem river can form an approximate guess, much less an intelligent opinion, as to whether the proposed railroad is to be constructed on a viaduct, in a depressed structure, or in a tunnel, or at what distance below or above the street surface, and hence as to his property the report does' not show the extent to which the streets, avenues or public places may be encroached upon, and the property abutting thereon affected. And objection is also raised as to the definiteness of the plan in reference to the character of the structure below the Harlem river.

It being impossible within the limits of this opinion to discuss in detail these various objections, we will confine ourselves to a general statement of what seems to be the answer thereto. The report and plans show distinctly upon the south side of the Harlem river as to what portion of the railroad is to be a viaduct, tunnel or depressed structure. The report also gives the general dimensions of the tunnel and its location, viz: that its depth below the surface shall be as near thereto as the present pipe lines will allow, and the width and height are fixed. As to that part which is to be upon a viaduct, the maps indicate the general character of the structure which it is proposed to erect in different locations.

The claim that the material of the viaduct is not definitely fixed, in that the report states that such viaduct was to be of masonry or iron,- or both, does not seem to be of any importance in view of the fact that in the Kings County Elevated Kailway case, combined construction of iron and stone was one of the essential features of the plan.

In respect to the indefiniteness of the general plans beyond the Harlem river, it is to be observed that the impossible is not required. It is sufficient if the plans adopted by the commissioners shall disclose as far as reasonably practicable to what extent the streets are to be.encroached upon, etc.

Now it appears by Chap. 545 of the Laws of 1890 that the grades of the streets and avenues beyond the Harlem river have not yet been fixed, and that they are not required to be fixed until within two years and six months from the 1st day of January, 1891, when the surface maps, plans and profiles of all the streets, roads, avenues, public squares and places located and laid out shall be filed.

It was evidently impossible for the commissioners to determine what should be the precise location in reference to the surface of the avenues and streets upon which the route of this railroad was located when no grade of the street had ever been fixed. They have done the best thing they could under the circumstances. They show by their profile maps the general contour of the ground as it now exists, and the relative location of the proposed route between high water mark and such surface.

What precise portions of this route should be in a tunnel, depressed structure or viaduct depends, entirely upon what grade shall be subsequently fixed for the street along which its route is located.

The further objection is urged that the precise height of the viaduct or depressed structure at each particular place is not shown.

It is evident, without the details of the engineer’s specification for the building of the railroad (which is not required in this general plan), that no such nicety of location can possibly be given. The report and accompanying maps afford every property owner t.he means of forming an opinion generally as to the extent to which this structure is to affect him.

In respect to the omission to locate the stations, it would seem that the views of the court in the Kings Co. Elevated case dispose of that question. It is undoubtedly true that by reason of the platforms between the tracks where stations are located, the encroachment will be greater than where such platforms do not exist. But that it was necessary for the commissioners to locate these stations seems to be negatived by the views of the court in the case cited.

As has been seen, the requirements of the plan under the act of 1875 in this respect were substantially the same as those of the act of 1891; and the court under the act of 1875 held that the location of stations by the commissioners as an element and detail of the plan might very properly in the interest of the public have been made and included, and the court, therefore, state that they cannot say that the omission was not a defect. But when they come to measure the importance of such omission, they expressly hold that it was not at all vital or even serious; because the property owners, when applied to for their consent, would understand that stations were requisite, and each would know that one might come in his own locality.. In the case at bar the plan was more definite and explicit in regard to the encroachment of the station than it was in the case cited. The extent to which the tracks will be spread is definitely fixed, and it appears that the stations are not to be located in the street,- but that access to the railway is to be gained through private property.

We next come to the question of the mode of operation; and it is claimed that the requirements of the commissioners in regard to the mode of operation are not sufficiently definite. The language of the act is that such general plan shall show the general mode of operation.

The language of the report is to the effect that the cars shall be moved by motors capable of a uniform speed for long distances of not less than forty miles per hour exclusive of stops, the power being supplied by some method not requiring combustion within the tunnel. This designation excludes the cable and the locomotive as now operated. It provides that the cars shall be propelled by motors within the tunnel. The' character of the power is not defined. That is left to be determined when the detailed plans are prepared.

This, it seems to us, gives to the property owner information as to the general mode of operation. If it went further it would be giving the particular mode of operation, and where the general only is required it is not necessary to descend to the particular.

Great stress is laid upon what is called the failure to show the manner of construction. The requirement of the act is that such general plan shall show the general mode of operation and contain such details as to the manner of construction as may be necessary to show the extent to which any street, etc., is to be encroached upon. It is claimed that this requirement has not' been complied with, and that the provisions of the report will not enable any property owner to form an intelligent judgment as to the effect likely to be produced upon his abutting property by the manner of construction of the railway. As has already been stated in respect to this language, it evidently was not the intention of the legislature that in this general plan all the details of construction, either as to manner, mode or method, should be included. It may be that the use of the word “ manner ’’ in this connection was unfortunate, in that there is but little difference noted by lexicographers between the words manner, mode and method

But it is manifest what the intention of the legislature was in the use of this phraseology; and that was, that the general plan should convey to the property owners along this route, in a general way, the manner in which this work of construction was to be carried on. It certainly.was not the intention of the legislature to require the commissioners to determine in this report as to how every foot of earth was to be removed, or every detail of the work of construction was to be carried out; but, as already stated, to convey in a general way to the owners of property along the line of this route information as to the manner in which this construction should be carried on, in order that they might appreciate to some extent the inconvenience which they might suffer under during the period of construction. And it. was evidently not the intention of the legislature that the plan in reference to the manner of construction should be all details and no generalities.

We are to consider these two terms together. It is to be a general plan of construction with certain details. If they had intended that this plan should convey to the abutting owner all the information which the subsequent plans provided for by § 6 were to convey, there would have been no necessity whatever for the provisions of § 6, and no necessity whatever for a general plan, but the requirements of the legislature would have been for a detail plan. Therefore in the report the commissioners have provided for the general manner of construction below Fourteenth street on the Fourth avenue side and below Thirty-fourth street, on the Broadway side, namely, that it shall be by underground tunneling without disturbing the streets, except in cases of necessity in certain localities, and such other special points as the commissioners may during the progress of the work determine, and that all excavations in Fourth avenue above Fourteenth street and all other streets and avenues above Thirty-fourth street may be made from the surface.

The provision in the report in respect to the special points in no manner affects the general plan. It was evidently intended to show that the construction was to be carried on in certain localities by underground tunneling, and that if. insuperable obstacles existed at special points, then excavations might be made from the surface and the commissioners were to determine that proposition.

It is apparent, therefore, what the general manner of construction was to be in all parts of the road.

The claim that on Fourth avenue above Fourteenth street and on all streets above Thirty-fourth the manner of construction is left wholly undetermined, it seems to us, is entirely unfounded. From the language of the report in respect to these localities, the property owner is warned that the method of excavation most detrimental to him may be employed, viz., excavation from the surface. He has placed before him the worst feature in respect to the excavation, and that is all that is required under the principles laid down in the case of the Kings Co. Elevated Ry. Co., above cited.

We think, therefore, upon a consideration of these general plans which have been submitted to the court upon this application for the appointment of commissioners, that they sufficiently comply with the provisions of the rapid transit act, and enabled the property owners to determine in a general way as to the extent to which their property may be encroached upon.

We are of opinion, therefore, that the motion should be granted.

O’Brien and Patterson, JJ., concur.


author: Yan Brunt, P. J.

text:
    Edgar Saltus, Resp’t, v. The Belford Co., App’lt

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    1. Contract—Publication op author’s works—Copyright—Injunction.
    An action brought by an author against a publisher for breach of a contract to publish his works and to restrain such publication unless the terms of the contract are complied with, involves no question of copyright, and a temporary injunction may properly be granted.
    2. Same—Pleading.
    A copy of the contract need not be annexed to the complaint where there is no pretense but that defendant is fully informed as to its provisions.
    Appeal from order continuing injunction pendente lite.

    Action for an accounting under a contract, and for the abrogation of the contract. Plaintiff entered into a contract with the defendant company by which the company were to publish his works and pay him a royalty thereon, and as to one of them to procure him a copyright. The complaint alleged that defendant was publishing under the contract, but was violating its terms; that it was insolvent and unable to pay, and that each copy sold was a total loss to plaintiff.

      F. B. Kellogg, for app’lt; A. S. Hutchins, for resp’t.
   Yan Brunt, P. J.

The main ground upon which the appellant claims that the court erred in continuing the injunction herein is the claim that the plaintiff’s right to injunctive relief must, if it exists at all, be based upon a valid copyright owned by him upon the books in question, and that as the papers fail to sufficiently show that the plaintiff is the owner of a valid copyright upon the publication which he seeks to enjoin, such injunction should not be granted, and that if the papers do adequately show the existence of such copyrights it follows that the court has no jurisdiction to grant the injunction appealed from because the court would be powerless to restrain by injunction the publication of any infringing work.

It seems to us, as was said by the court below, that there is no question of copyright involved in this litigation. It seems to be a question as to whether the defendants have violated their contract with the plaintiff, and that he is therefore entitled to relief.

The allegations of the complaint set out the contract between the plaintiff and the defendant recognizing certain rights in the plaintiff, and the breach of the same by the defendant entitling the plaintiff to-certain relief. And this relief is entirely independent of the fact as to whether the plaintiff has or has not a copyright in the works being published by the defendants. No matter what may be the rights of all the world except the defendant, under the circumstances of the case, it appeared that by reason of the contract between the plaintiff and defendant, the defendant is entitled to continue the publication of the works therein mentioned only upon compliance with the terms of such contract. This is the agreement between the parties, and it is only for the enforcement of such agreement that the injunction in question is issued.

It is also claimed that as all the material equities alleged in the papers are met with denials of equal weight in the answer, that therefore the injunction should have been vacated.

It is to be observed that the denials are of such a character that although the allegations in the complaint might be substantially correct, yet the denials might be true. ' And it is further to be observed that the allegations in the complaint are fortified by a positive affidavit by a person who is not a party to the action, which affidavit is not denied except so far as it may be controverted by the formal denials contained in the answer. This would seem almost to be a confession that the substance of the affidavit ac least could not be gainsaid.

The claim that copies of the contract should have been annexed to the complaint is not well founded, as there is no pretense but that the defendants are fully informed as to the provisions of the contract in question.

The order should be affirmed, with costs.

O’Brien and Andrews, JJ., concur.


text:
    Abraham H. Cohen, Adm’r, Resp’t, v. Isidore Hymes et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    1. Limitation—Accounting—Code Civ. Pro., § 392.
    Section 392 of the Code has reference to tangible personal property which, has been taken by some one after the death of a testator or intestate, and does not apply to an action by the representatives of a decedent for an accounting by his surviving partners.
    3. Partnership—Accounting—Estoppel.
    In an action by executors of a deceased partner for an accounting, although the defendants deny any indebtedness, and claim that a certain payment was made as a gratuity, the plaintiffs are bound by their evidence that such payment was made under the obligation alleged as an admission of payment, and cannot be heard to object to the allowance of a credit therefor to defendants.
    Appeal from a judgment entered upon the decision of a referee.

      Daniel G. Hollins, for app’lts; B. F. Einstein, for resp’t.
   O’Brien, J.

The action was commenced on the 30th of November, 1889, and seeks an accounting from the defendants as surviving partners of plaintiff’s intestate, who died on the 28th of July, 1865.

The plaintiff- was appointed administrator of his estate on the 28th day of July, 1889, and thereafter brought this action. It is admitted by the pleadings that the defendants and one Abraham Cohen, plaintiff’s intestate, were co-partners in business in this city, for some time prior to 1865, under the firm name of Hymes Brothers & Company; that the defendants have not paid over any money or property to the plaintiff, as administrator, and though they deny that no account was rendered, the evidence shows that they refused to render an account, and they neither claim nor prove that they ever rendered an account to plaintiff or to any one else.

The plaintiff insists that the intestate was entitled to an interest in the firm equal to one-third of the assets, and upon the trial the defendants relied for their defense upon the contention that at the time of the death of Mr. Cohen the partnership had no surplus; that the liabilities were equal to, if they did not exceed, the assets; that, therefore, the intestate was not entitled to anything, and that his only interest in the firm was to the extent of one-third of the net profits, which had already been withdrawn prior to his death, except some small amount which thereafter had been paid over to his widow and used for her support and that of the plaintiff.

It is unnecessary for us to recite all the evidence upon which tlie judgment is supported. As said, the co-partnership was admitted, and considering the number of years that have elapsed, and the difficulty, if not impossibility, of giving better evidence, the plaintiffs made out a sufficient prima facie case, which, in the absence of rebutting testimony, and the unexplained absence of the books of the defendant, justified the conclusions of the referee.

It may well be that the testimony of the plaintiff was not as strong or satisfactory as wc could wish, but under the circumstances it was all that could be expected, after the lapse of years and the situation of the plaintiff, and those whom he represented. There was sufficient to call out from the defendants the best . evidence in their possession, to rebut .the inferences which naturally arose from such testimony as the plaintiff was able to produce. To support plaintiff’s theory as to the amount which actually stood to the credit of the intestate at the time of his death,, we have the payment by the defendants oi $4,000 to the daughter of the intestate, the letter written by one of the defendants, Isidore Hymes, to the plaintiff, the efforts made to obtain from the plaintiff a release, and these supplemented by the testimony of three different witnesses, were sufficient to justify the conclusion reached by the referee as to the amount and value of the intestate’s interest in the firm at, the time of his death. There remain, however, two questions upon which reliance has been, placed upon, this appeal.

The first and most serious relates to the defense interposed of the Statute of Limitations. It is insisted that § 392 of the Code applies, and that in accordance therewith, although letters were not in fact issued to the plaintiff until the 20th day of October, 1889, these must be deemed, for the Durpose of computing the time in connection with the Statute of Limitations, to have been issued within six yeais after the death of the intestate, that is, as early as the 26th day of July, 1871, after which date more than eighteen years had elapsed before the commencement of this action.

Section 392 of the Code reads as follows: ;; For the purpose of computing the time within which an action must be commenced in a court of the state, by an executor or administrator, to recover personal property taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration ; or to recover damages for taking, detaining or injuring personal property within the same period; the letters are deemed, to have been issued within six years after the death of the testator or intestate."

Prior to the enactment of this section of the Code, the authorities in this state, following the case of Bucklin v. Ford, 5 Barb., 393, held that the action could not be maintained until there is a person in being capable of suing.

As stated in Sandford v Sandford, 62 N. Y., 554, the term, “ The cause of action includes not only the right proper, but the existence of a person by or against whom process can issue. A cause of action cannot accrue or exist, unless there is. a person in esse against whom an action can be brought, and the right of action enforced.” There is ample authority therefore for the proposition that prior to the enactment of § 392 of the Code the statute of limitations commenced to run only from the grant of letters. It is insisted, however, that this section has produced a change and under it the action is barred.

It remains, therefore, to consider whether the section applies to an action such as this, brought by the representatives of a deceased within two years after letters were granted, but more than eighteen years after the six years from the death of the intestate, which is the period fixed by § 392 for the purpose of computing the time in cases falling within that section. As shown by the reviser’s notes (See Throop’s Code, § 392.) the purpose undoubtedly was of limiting the operation of the rule laid down in Bucklin v. Ford, supra. As therein said, “ It is well known that where there is no will, and the property left by the decedent is small in amount, the surviving relatives, especially in the rural districts, frequently distribute the effects by mutual agreement, without incurring the expense and trouble of procuring administration. Generally -such distribution is made upon equitable principles; and the section is so framed as to save the few cases where the statute of limitations should not cure the irregularity.”

I think it reasonably free from doubt, upon reading the reviser’s notes, and the language of the section itself, that while it is true that it limits the rule as laid down in the case of Bucklin v. Ford, it does not go to the extent of barring a right of action such as the one here involved. The section has reference to actions, as its language clearly indicates, to recover personal property taken after the death of a testator or intestate and before the issuing of letters testamentary.” Thus actions in regard to real estate and other actions, except to recover personal property or to recover damages for its taking, are left in the same position as they were prior to the Code. The section evidently has reference to tangible personal property, which has been taken by some one after the death of a testator or intestate.

We do not assent to the view that the surviving partners were trustees for the representatives of the deceased partner, and that, therefore, the statute would not apply.

In Williams v. Whedon, 109 N. Y., 333; 15 St. Rep., 265, it was said that “the surviving members become the legal owners of the assets of the firm, and do not take such assets as trustees.” However, it is unnecessary for us, in order to hold that § 392 does not apply, to conclude that the surviving partners are trustees. As we have already said, prior to the enactment of that section, under the authorities in this state, the time when the statute would commence to run would be determined by the grant of letters, and that inasmuch as “ the section referred to had reference only to actions to recover tangible personal property, or to recover damages” for the taking thereof, or injury thereto, it does not cover an action like the present, brought by the representatives of a deceased person to obtain an accounting from the surviving partner, which, in its nature, is a chose in action. It should be noticed, moreover, that the answer here claims that the six years limitation applies; and inasmuch, even if the statute of limitations applied at all, an action such as this would be covered by the ten years limitation, it was not properly pleaded.

The only remaining question relates to the amount paid to the daughter of the intestate, which it is insisted should have been allowed the defendants as a credit. The receipt of the $4,000 is admitted. The respondent insists that because the defendants denied any indebtedness, and asserted that the money was paid to the daughter as a gratuity, they should not now be allowed a credit therefor as a payment upon an account of an indebtedness which they denied. It seems to us, however, that the plaintiff should be held bound by the admission of payment which his own evidence contains. The testimony to the effect that certain moneys were to be paid to the daughter on her marriage was received for the purpose of showing that the defendants were discharging a legal obligation, and the plaintiff should be held to the position that these moneys were so paid.

In Ledyard v. Bull, 119 N. Y., 62 ; 28 St. Rep., 551, Earl, J., says: “After the death of his father, the defendant, undertook ■ with the assent of his sisters, the only next of kin, to administer upon his estate. He stated an account and distributed the balance, and each of his sisters took and had her share. Although all this was done without letters of administration upon his father’s estate, so far as it went it was binding upon the next of kin. They were the persons beneficially interested in the estate, and they could not take their respective shares of the estate, and then through administration claim and obtain a new distribution, and thus duplicate their shares. In the absence of creditors, an administrator is a mere trustee for the next of kin, charged with the sole duty to collect, convert and distribute the estate among the beneficiaries according to their respective interests.

We are of opinion therefore that the daughter having an interest in this estate, to the extent of one-third, and having been paid $4,000 on account thereof, the same, together with interest thereon, should have been deducted from the amount of the recovery, and hereafter it may be charged by the administrator against the amount given to the said daughter. As so modified we think the judgment should be affirmed, with costs.

Van Brunt, P. J., and Lawrence, J., concur in result.


text:
    The Bank of Pittsburgh, Resp’t, v. Charles C. Murphy, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    Depositions —Affidavit.
    An affidavit of the clerk of plaintiff’s attorney, who is not shown to have been cognizant of the necessary facts or circumstances, is not sufficient to authorize the granting of an order for the examination of the defendant. The court requires the best or legal'evidence of the facts essential to justify the order.
    Appeal from order denying motion to vacate order for defendant’s examination before trial.

      A. B. Carrington, for app’lt; F. A. Ward, for resp’t
   Per Curiam.

The order for the examination of the defendant before trial was made' upon the affidavit of the clerk of the plaintiff’s attorney. Neither the complaint nor the affidavits specify any facts or circumstances showing the necessity or materiality of the examination which is required by § 872 of the Code and rule 83 of the Rules of Practice.

If, however, we regard the affidavit as formally correct, the objection based upon the circumstance that it is made by the clerk of the plaintiff’s attorney, who is not shown to have been cognizant of the necessary facts or circumstances, we regard as fatal. The Code requires that the necessary facts should be presented by affidavit; and this would be a useless formality if, by mere formal averments, any person, whether acquainted with the facts or not, could make the same and use it as the basis for an application of this character.

Where the plaintiff himself, who is presumed to have some knowledge of the fact, or in the case of a corporation, its officers do not make the affidavit, some reason should be furnished for the absence of a statement of the knowledge possessed by them or a statement that the facts sought to be obtained by the examination are not within their knowledge or accessible. In other words, what the court requires is the best or legal evidence of the facts essential to justify the order.

The criticism upon the affidavit of an attorney in the case of Timv. Smith, 93 N. Y., 91, is applicable hern “ Such an affiant does not necessarily have knowledge of, and cannot be presumed to know, the several facts attempted to be established by his affidavit in this case. Their existence depends not only upon the official action of several persons, acting independently of each ■ other, but also upon the legal sufficiency of the papers upon which their action was based.

“ It is difficult to see how an attorney can acquire such knowledge of the several facts required to be proved on this motion as entitles him to give legal evidence of them.”

Here the affidavit fails to show what knowledge the plaintiff’s officers have about the cause of action; nor is there anything therein to indicate that the attorney or the deponent, his clerk, ever made any inquiry of the bank’s officers upon that subject.

We think, therefore, that the affidavit was clearly insufficient to justify the order, and it should be reversed, with ten dollars costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.