author: Learned, P. J.: Mayham, J.:

text:
    SAMUEL N. BACON, Appellant, v. THE UNITED STATES MUTUAL ACCIDENT ASSOCIATION OF THE CITY OF NEW YORK, Respondent.

      Insurance against injuries from, “ external, violent and, accidental means ” — construction of these words when used in a policy.

    Upon the application of one Oaks the defendant corporation issued to him an accident insuranee policy by which it agreed to pay to his mother a sum, not exceeding $5,000, within sixty days after sufficient proof “ that said member, at any time within the continuance of membership, shall have sustained bodily injury effected through external, violent and accidental means, within the intent and meaning of the by-laws of said association,*’ provided “that benefits under this certificate shall not extend to any bodily injury of which there shall be no external or visible signs, * * * nor to any death or disability which may have been caused wholly or in part * * * by poison in any manner or form.”
    Upon the trial of this action, brought by the plaintiff, as the assignee of the policy, to recover the amount so agreed to be paid, it was proved that the deceased, who had formerly lived in Massachusetts, went, in the early part of February, 1884, to Council Bluffs, Iowa, and there worked in a meat market and a freight office, where hides and cattle were received, until he died, on March twenty-first, from malignant pustule. The uncontradicted testimony of a physician, as given upon the trial, showed that the cause of the death of the deceased was the infliction upon a portion of his body of a putrid animal substance which, working through the system, caused him to die from affections of the different internal organs of the body; that this produced what is called in medicine malignant pustule, and that that disease was invariably produced by the infliction of animal substance upon the body, and was usually communicated from the skins or bodies of animals which were suffering from that disease, which is found in their hair. •

      Held, that the word “poison” in the certificate, and in the application upon which it was issued, was used in its ordinary meaning of a substance taken internally, seriously injurious to health and often fatal to life.
    That it was established by the evidence that his death was caused by external, violent and accidental means.
    That the court erred in directing a verdict for the defendant.
    Appeal from a judgment dismissing the complaint entered upon an order made on the trial of this action at circuit.
    The plaintiff brings this action as assignee of an accident insurance policy issued by the defendant to Frederick J. Oaks. The complaint alleged the incorporation of the defendant, the issuing of the policy alleging its conditions; the sustaining of bodily injury by the assured, of which he died; the assignment of the policy to the plaintiff; the making of proof of death and demand of payment.
    The answer admitted the incorporation of the defendant; alleges the application by said Oaks for certificate of membership under the conditions prescribed by the rules and by-laws of the association ; the payment of the fee for membership and the issuing of the certificate of membership or policy, with reference to the conditions thereof, and a denial of any knowledge or information sufficient to form a belief of the other facts alleged in the com plaint. On the trial the plaintiff offered and read in evidence the policy of accident insurance issued by the defendant upon the life and person of Frederick J. Oaks, dated September 28, 1883, amount to be paid to Mary Jane Oaks. The policy contained this provision: “ The principal sum represented by the payment of two dollars by each member in division ‘ A. A.’ of the association, as provided in the by-laws (which sum, however, is not to exceed five thousand dollars), to be paid to Mary Jane Oaks (his mother), if surviving (in the event of prior death of said beneficiary, or any of them, said sum shall be paid as provided in the by-laws), within sixty days after sufficient proof that said member, at any time within the continuance of membership, shall have sustained bodily injuries, effected through external, violent and accidental means, within the intent and meaning of the by-laws of said association and the conditions hereunto annexed, and said injuries alone shall have occasioned death within ninety days from the happening thereof.’” The policy also contained a proviso “that benefits under this certificate shall not extend to hernia nor to any bodily injury of which there shall be no external or visible signs, * * * nor to any death or disability which may have been caused, wholly or in part, by bodily infirmities or disease, existing prior or subsequent to the date of this certificate, or by poison in any manner or form.”
    In the application the assured signed an acknowledgment that the policy did not extend to death or injury * * * caused wholly or in part by taking of poison in any form or manner. The plaintiff also put in evidence the assignment of the certificate from Mary Jane Oaks to the plaintiff. Also the proof of death of Fredrick J. Oaks at Council Bluffs, Iowa, on the 21st day of March, 1884. The proof showed that Council Bluffs was a place where cattle and hides were extensively shipped, and that about the time of his death, Frederick J. Oaks, worked at Council Bluffs in a meat market and in the freight office of the Union Pacific Bailroad at that place.” The plaintiff then proved by a medical expert that he made a post mortem examination of Fredrick J. Oaks and ascertained that the cause of his death was the infliction upon a portion of his body of a putrid animal substance which working through the system caused him to die from affections of the different internal organs of the body ■ * * * the name of the manifestation of that infliction is known in medicine as malignant pustule; it is produced invaribly by the infliction of animal substance upon the body The witness further testified that this was caused by an accidental deposit of this material there, and is usually communicated from the skins or bodies of animals which are suffering from this peculiar disease found in their hair. After stating various methods by which this virus may be communicated, the witness stated, that it produced blood poisoning and when produced he stated that the practical effect of blood poisoning is the same from whatever cause produced "Witness also stated, that as to the method in which this charbon virus became implanted upon this young man’s lip, he could not say. The plaintiff also put in evidence a letter from the company, declining to pay on the ground that there was no valid claim under the certificate of membership, claiming that deceased died from septiemia from carbuncle of the lower lip. It was admitted that the defendant sent out the printed blank for the application for membership.
    Upon the evidence the defendant asked the court to direct a verdict for the defendant on the ground that it appeared from the pleadings that death was produced from a cause not covered by the policy, and that the proof does not warrant a verdict for the plaintiff The plaintiff’s counsel objected and asked the court to allow the plaintiff to go to the jury on all the evidence in the case. The plaintiff’s counsel also asked the court to direct a verdict of $5,000 for the plaintiff, which the court refused, and directed a verdict for the defendant, on which judgment was entered and the plaintiff appeals to this court.

      Steadman, Thompson da Andrews, for the appellant.

      Wm. Bro. Smith, for the respondent.
   Learned, P. J.:

In tlie application tlie insured stated that be was aware that the benefits “ will not extend * * * to death or disability caused wholly or in part * * * by taking of poison in any form or manner.” In the certificate the corresponding phrase is that benefits “ shall not extend * * * to any death or disability which may haye been caused wholly or in part * * * by poison in any manner or form.”

The application refers to the certificate. The certificate to the application. The two explain each other; and show that the word “ poison ” therein is used in its ordinary meaning, of a substance taken internally, seriously injurious to health and often fatal to life. The word “taking” is omitted in the certificate, but not for any change of meaning. “ Death by poison ” is well understood in ordinary language. It is a phrase which would never be applied to death from a rattle-snake’s bite, although that injects into the circulation what may be called a poison. In certain cases death comes from what is called blood poisoning.” One who dies from a bullet wound may die of “ blood poisoning; ” but he does not die by poison in the ordinary sense of the word. The insured died from what is known as malignant pustule. This is produced invariably, according to the testimony, “ by the infliction of animal substances upon the body; ” by the accidental deposit of this putrid and poisonous animal substance. This is usually communicated from the bodies, or skins, or hides, of animals which are suffering with this peculiar kind of disease.

The substance may be carried by flies that have been feeding upon it. The disease may come by the application of' the person himself, of his hand, which has been in contact with this substance to some abraded surface of his body. And the substance may be absorbed by the thin portions of the lips though they are not abraded. Thus it appears that the cause of death in this case was a disease produced by the touching of an abraded part of the thin part of the lips, with a putrid animal substance.

The question, then, is whether the deceased “ sustained bodily injuries effected through external, violent or accidental means,” and whether such injuries alone occasioned death within ninety days from the happening thereof. The deceased had lived in Soutiibridge, Mass. The early part of February, 1884, he went to Council "Bluffs, Iowa. There he worked in a meat market and in a railroad freight office, a place where hides and cattle were received to a considerable extent. He died there March twenty-first, There were on his body, upon his hp, external indications of the pustule, which is the beginning point of the disease Thus, there was proof that there was an external and visible ” sign of the injury. The defendants, in their correspondence, insisted that they were not liable because the deceased died from a carbuncle, the result of disease. This they said they had ascertained at the place of his death. And they further claimed that, even if the disease was malignant pustule, “ malignant pustules arise from various causes not accidental.” Thus they took the position that, whatever the' disease, the cause was not external or accidental. If that were so, they would not be liable. But the positive testimony of the physician on the trial, not contradicted, shows that the death was not from carbuncle, the result of disease, but from malignant pustule, as above stated; and the evidence was sufficient to go to the jury upon the point that the cause arose within the ninety days prior to death.

The means through which deceased came to his death were external. The positive testimony of the physician shows this. The putrid animal substance reached the body, not through the stomach or the lungs, but through the skin, the external covering. The cause was external as much as the crushing under a car or the bite of a rattlesnake would have been. (Hill v. Hart. Acc. Ins. Co., 22 Hun, 187.) Next, were the means accidental 2 They cannot be thought otherwise. It is too improbable to suppose that the deceased intentionally put his hand, infected with putrid meat, upon his lip in order to produce death. If he had intended to commit suicide, this would not have been the mode selected. By whatever direct means the putrid substance was brought into contact with his face, tbe contact must have been accidental. (Mallory v Trav. Ins. Co., 47 N. Y , 53; Insurance Co. v. Burroughs, 69 Penn. St., 43.) The most difficult and perplexing point remains were the means violent ? Suppose the fact to have been that an insect which had been feeding on the putrid meat afterwards alighted on* the deceased’s face, and even pierced the skin : was this violent ? Or suppose the fact to have been that the deceased himself placed his own hand, infected with this putridity, on his face; was this violent ? It may help us to understand the meaning put in this word “ violent ” by the defendants, if we examine some of the exceptions made by them. The certificate says that no claim can be made when death has been caused by lifting, over-exertion, sunstroke or freezing. Now, as these are made exceptions, it is reasonable to understand that, without special exception, they would have been within the language “ violent ” means. Yet sunstroke and freezing do not import physical violence any more than does drowning. (Trew v. Ins. Co., 6 H. & N., 845.) We say a man dies a violent death, without necessarily imjilying anything more than that he dies, not in the ordinary course of nature and disease. If by violent is meant physically violent or forcible, then how great must be the force ? Is it not enough, however small it be, if it ¡produces death or bodily injury? A poisoned arrow may make a small wound, but if it produces death, is not that a death by violent means ? A rattlesnake bite may be hardly perceptible. It is hardly possible that this certificate is to be considered as insuring against death from great violence, and not against death from a slight blow. There is an exception in this certificate of “self-inflicted” injuries, but that must mean intentionally self-inflicted. It cannot be a self-inflicted injury when one accidentally stumbles and falls down stairs, breaking his leg. So that, even if this pustule came by the contact of -the deceased’s own hand, yet it could not justly be called a self-inflicted injury.

The case of Searles v. Manhattan Elevated Railway Company (101 N. Y., 661) was one where the accident might have been occasioned by either one of two causes, a cinder from the smoke1 stack or one from the ash-pan. For the former the defendant would not be liable, for the latter they might. In the lack of evidence, as to which is the real cause, defendants would not be held liable. But there is no uncertainty in this present case. There was no dispute as to the cause of death. Plaintiff had another witness, but the court did not care to hear any more.

The defendants urge as a defense that, in the preliminary proofs of death, the cause of death was given as “ a small pimple on face became anthrax.” But if this were incorrect, it was in no way binding on the plaintiff. The real cause was unquestionably proved at the trial, and the question here must be decided on the undisputed facts testified to by the physician. Indeed, while the preliminary proofs are not full as to the cause which produced the pimple, they are not inconsistent with the testimony on the trial; and the cause of the pimple having been proved on the trial, the question is fairly before us whether that cause is within the meaning of the certificate And in deciding this, we think that the defendants, in their correspondence, showed a correct view of the general principles when they said that the death was not by accident, but by disease. That must generally be the distinction. This is an accident policy. If the deceased died from disease, as distinguished from accident, plaintiff cannot recover. If deceased died from accident, as distinguished from disease, he can. Now, undoubtedly, accidents and external injuries often produce death through the disorganization of internal organs; still, the accident is the cause. On the other hand, it is said that impure water taken ■ into the stomach, or impure air into the lungs, cause fever. But these fevers are diseases, having their origin internally. They are not the results of accidents. But in this case there is just what the defendants evidently believed there was not, an external and accidental cause, and not an internal disease manifesting itself externally. Guided by this general view of the deaths and injuries against which the certificate was intended to insure, we think that this plaintiff should not have been nonsuited.

Judgment reversed, motion granted, costs to abide event.

Landon and Matham, JJ., concurred.

Mayham, J.:

Two questions are raised and principally relied upon by the appellant on this appeal:

First. Whether the causes which produce malignant pastule, as shown by the undisputed evidence of Dr. Hanys, constitute external, violent and accidental means within the meaning of that phrase as written in the policy.

Second. "Whether the proof in this case was sufficient to authorize the jury, if the case had been submitted to them, to find that the death of the assured was caused by external, violent and accidental means, producing death within ninety days from its infliction.

Before the plaintiff can recover in this action he must by proof establish both these propositions, by evidence, either direct or circumstantial, such as would sustain the verdict of the jury if they found in his favor. The uncontradicted evidence in this case is that “ the cause of, death was the infliction upon a portion of the body of a putrid animal substance, which worked through the system, causing him to die from affections of the different internal organs of the body. * * * The name of the manifestation of that infliction is ' known in medicine as malignant pustule; it is produced invariably by the infliction of animal substanceupon the body.” After a period oí time, varying in different cases, there appears a viscular blister-like affair, a pustule. “ It can only come from one single cause, because it is a specific thing, as much as the venom of a rattle-snake bite or hydrophobia. I am prepared to say that this was caused by the application of this virus; as to the method in which that charbon virus became implanted upon the man’s lips I can’t say. * * * It starts with a little bite or blister which becomes a pimple, a pustule, and it rapidly becomes mortified, cankerous, that is what we call malignant pustule.” The evidence further shows that there were external indications upon the person of young Oaks of this nature; that the result was blood poisoning, that it was not produced by any other than external causes. From this evidence the jury would have been authorized to have found that this injury which resulted in the death of the assured was produced by external and accidental means. Could they also have found under this evidence that these means were violent within the fair meaning of the certificate ? Yiolent, in its ordinary acceptation of the term, means not natural or spontaneous, not intentional, voluntary, expected or usual. The degree of force is not always material. In this view of the case the bite of a fly or spider, or the sting of a bee may bo as well characterized as violent as the bite of a rattlesnake or the sting of a scorpion. It is not quite clear that the parties to this contract on either side, in making and accepting this certificate, intended to embrace this kind of violence, as a condition creating a liability under this policy, but it is a familiar rule of construction that, unless the instrument clearly express to the contrary, words are to be construed in their ordinary sense; and applying this rule of construction to the evidence in this case, we do not see why the cause of death was not from external, violent and accidental means / and we think the following cases substantially sustain this view: In Muspear v. Accident Insurance Company (42 L. T. N. S. Exch. Div., p. 900) the policy was substantially like this in suit. The death was caused by assured falling in the water in a fit of epilepsy and drowning. It was held that it was a personal injury caused by accidental, external, visible means, within the intent of the policy, and that a recovery could be had. (See comments in 22 Albany Law Journal, 223, 224.) In Insurance Company v. Burroughs (69 Penn. St., 43) the court says if the injury be accidental, and the result of it is death, what matters it whether the injury is caused by a blow with a pitchfork or a strain in handling it ? And they define an accident as an event that takes place without one’s foresight or expectation, an event which proceeds from an unknown cause or the unusual effect of a known and, therefore, not expected chance, casualty or contingency happening by chance or unexpectedly taking place, not according to the usual course of things, casual, fortuitous. (Insurance Co. v. Burroughs, 69 Penn., 43.) In Mallory v. The Travelers' Insurance Company (47 N. Y., 53), it was held, that when the assured was found dead in a pond with a bruise upon his head, that the jury might infer that if the wound did not produce death, but caused him to fall in the water where he was drowned, that the death was produced by accident within the terms of an accident policy, and this rule is not changed by the decision of the Court of Appeals in Searles v. Manhattan Elevated Railroad Company (101 N. Y., 661). The injury resulting either from the wound or drowning would be from external accidental means. So in the case at bar, if we are to credit the undisputed evidence of Dr. Hanes, the injury was from accidental, external, violent means, within the definitions of those words, given above in the cases cited. If right in the above conclusion, the next inquiry is, would the proof offered justify the jury in finding that the death of the assured, if produced by the causes above discussed, justify a finding that those causes produced the death of the assured within ninety days of the infliction of the injury. Upon this subject there is no direct proof, but the plaintiff insists that the proof that this attack is usual in localities where cattle are numerous and where raw hides are habitually handled, and that the deceased was engaged in the butchering business in Council Bluffs, and also in the freight office where hides are shipped extensively; and that he was in that exposed locality only from the 1st of February, 188J, to the twenty-first of March, of the same year, was sufficient evidence to go to the jury upon the question of the time when the injury which resulted in death was inflicted; and that the jury would have been authorized, from that evidence, to have found that ninety days had not elapsed from the time of the injury to the death. We are of the opinion that if that question had been submitted to the jury and from it they had found for the plaintiff, their verdict could not have been set aside as not supported by the evidence.

On the whole case, we think that there was enough evidence to authorize its submission as questions of fact to the jury, and that it was error for the court to take the case from them, and direct a verdict, and for that reason the judgment should be set aside, and anew trial ordered, costs to abide the event.

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


source: Caselaw Access Project

author: Mayham, J.: Landon, J.:

license: Public Domain

text:
    EMILY H. HATHORN, Respondent, v. THE CONGRESS SPRING COMPANY, Appellant.

      I/ihel — pleadings of justification and in mitigation — rules as to.

    This action was brought to recover damages for a libel uttered by the defendant, charging the plaintiff with preparing water for analysis as the water of Hathorn Spring, by adding to the spring water fresh water and valuable salts. The words claimed to be libelous were alleged to be as follows: “ In stating these the facts we do not intend to implicate the learned chemist who did not procure water himself (as he should) at the springs; who did not know how much fresh water was added to diminish the proportionate amount of the offending and gross salts to the water, or how much valuable salts were added before closing the bottles sent him.”.
    Upon an appeal from an order sustaining a demurrer to so much of the answer as alleged that “ it is also true that the chemist referred to in said article did not procure the water himself from the waters of the spring as he should; that he did not know how much (if any) fresh water was added to diminish the proportionate amount of offending iron and gross salts to the water, or how much, if any, valuable salts were added before closing the bottles sent him.”

      Held, that it should be affirmed, as the answer was defective as a Justification, in that it was not as broad as the charge made, nor did it state facts tending to. establish the truth of the alleged libel; and defective as a plea in mitigation, of damages in that it did not state that it was pleaded as a partial defense, and in containing no statement of the facts which were to be proved to support the plea.
    Appeal from an order made at a Special Term,, and entered in Saratoga county, sustaining a demurrer to the second count in the defendant’s answer
    No judgment has been entered upon the order sustaining the demurrer, the parties consenting on the argument to a decision upon the merits of the same, to have the same effect as if judgment had been entered upon said order.

      L. JB. Pike, for the appellant.

      Charles 8. Lester, for the respondent.
   Mayham, J.:

The libel complained of in the complaint consists in charging the plaintiff with preparing water for analysis, as the water of Hathorn Spring, by adding fresh water and valuable salts thereto,, and thus obtaining the analysis of different water from that produced by said spring and thereby deceiving the public and patrons of said spring. The words claimed by the plaintiff to be libelous are as follows : In stating the'se 'facts we do not intend to implicate the-learned chemist who did not procure the water himself (as he should)',, at the spring; who did not know how much fresh water was added to diminish the proportionate amount of the offending and gross-salts to the water; or how much valuable salts were added before closing the bottles sent him.”

The specific part of the answer to the above charge, which is contained in and constitutes a part of the seeond count to which this-demurrer is interposed, is in the language following: “ It is also true that the chemist refered to in said article did not procure the water himself from the waters of the spring as he should; that he did not-know how much (if any), fresh water was added to diminish the proportionate amount of offending iron and gross salts to the water or how much, if any, valuable salts were added before closing the bottles sent him.”

It will be seen that this answer is not an admission of the publication of the alleged libelous matter, and a justification on the ground that the allegation is true. It does not admit the words in .the language of the charge, nor does it state facts and circumstances .showing that the charge is true. It is not, therefore, good as a full justification. A justification in an answer must be as broad as the .charge which it seeks to justify. (Skinner v. Powers, 1 Wend., 451.) And this rule does not seem to have been abrogated by the Code. (Wachter v. Quenzer, 29 N. Y., 552.) In this case Denio, .J., says: The Code “ certainly does not allow a reiteration of the libelous words, and an averment that they are true, without the statement of a single fact showing them to be so. * * * A statement in the answer that the words are true would not be a justification, and it would fall just as far short of being a statement of facts to be proved by way of mitigation.” It -would, therefore, be insufficient in law upon its face to constitute-a .defense by way of justification of the .charge, and as it is not alleged, in mitigation and contains no statement of facts which could be- proved in mitigation of damages, it becomes the proper subject of' demurrer under section 494 of the -Code of Civil Procedure.

This count in the answer is defective as a justification, in not •stating the particulars and facts, tending to establish the truth of the .alleged libelous words. 'Where the truth of the alleged libelous matter is intended to be relied upon as a defense, the particulars must be alleged, and a general allegation that all the statements are true is bad on demurrer. (Wachter v. Quenzer, 29 N. Y., 547; Robinson v. Hatch, 55 How., 55.) Nor can this allegation be upheld as an allegation in mitigation of damages, not having been pleaded as such.

e It is true that facts tending to- prove the truth of the charge may ’be pleaded and proved in mitigation of damages, but the circum¡stances in mitigation must be pleaded in order to-be admissible in •evidence. (Code of Pro., § 165; Code of Civil Pro,, § 536 Spooner v. Keeler, 51 N. Y., 527.) Evidence of circumstances, in mitigation iof damages, is inadmissible unless pleaded in mitigation. (Willover v. Hill, 72 N. Y. 36.) We think the order of the Special Term sustaining the demurrer was right and should be affirmed, with costs.

The defendant should have' leave to amend the answer on payment of costs.

Landon, J.:

I concur in the result. As a justification the answer is defective in not stating the facts tending to establish the truth of the alleged libel. As matter in mitigation of damages, it is defective in not stating that it is pleaded as a partial defense. (Code Civil Pro., § 508.)

Since a defendant may set forth in his answer as many defenses as he has (§ 507), I do not think it necessary for a defendant to admit the publication of the libel in order to set forth the single defense of its truth.

Learned, P. J., and Landon, J., concurred.

Order affirmed with costs, with leave to withdraw and answer over on term.


author: Mayham, J.:

text:
    THOMAS W. BROWNELL, Plaintiff, v. THE TOWN OF GREENWICH, Defendant.

      Town bonds — not deemed to be issued until actually sold — 1869, chap. 907, as amendad by chap. 925 of 1871 — the commissioners a/re presumed to have acted in accordance with statute — ratification of acts of the commissioners by the town.

    This controversy was submitted upon a case containing a statement of facts-agreed upon by the parties, from which it appeared that- on the 21st day of March, 1871, the county judge of Washington county made a judgment or order which recited, among other things, that certain taxpayers of the town of Greenwich had applied by petition, dulyVerified and presented under and by virtue of the provisions of chapter 907 of 1869, setting forth that the: petitioners were a majority in number of the taxpayers on the last preceding tax-list or assessment-roll of the town, and that they asked and desired that? the bonds of the said town may be created and issued in aid of a railroad, in the manner specified by said chapter 907 of 1869, to the amount of $40,000, and that the said town bonds may be invested m the second mortgage bonds of said company, at eighty cents on the dollar. Thé order or judgment then duly “adjudged and determined” that the allegations of the said petition were proved and established, and that the said petitioners represented a majority of the taxpayers of the town, as shown on the last preceding tax-list or assessment-roll, and a majority of the taxable property of said town upon said list.
    It was also stated in the case that immediately after the entry of this judgment the county judge duly appointed three commissioners, who duly accepted the said office and prepared eighty bonds of $500 each, purporting to be bonds of the said town, each dated March 25, 1871, payable on July 1,1891, with coupons attached, which bonds were placed in the hands of one Andrews, who was also the treasurer of the railroad company, for sale, with directions to sell the same for said commissioners; that the said Andrews proceeded to do so as opportunity offered, at par for cash, placing the money to the credit of the railroad company, and after completing the sale of the entire series he delivered to said town commissioners the railroad mortgage bonds, amounting to $50,000.
    On July 1, 1871, the plaintiff purchased five of the said town bonds, paying in cash the par value thereof. Interest on the bonds was paid by the railroad until 1877, and by the town for the years 1877, 1878 and 1879.

      Held, that the jurisdiction of the county judge of Washington county to pronounce the judgment authorizing the issue of the bonds by the commissioners, and the exchange of the same for second mortgage railroad bonds, was clearly established by the stipulation and was not an open question in this case.
    That, although the bonds were, at the time of their execution and delivery to Andrews, void on their face, because made payable in twenty years from date instead of being made payable at the expiration of thirty years as was required by the act under which they were issued, yet as the bonds in question were not actually sold until July, 1871, and as they were not, in a legal sense, issued until they were so actually sold, their validity was to be determined by the law as it then existed, and not by the law existing at the time of their issue by the commissioners.
    That being so treated they were valid, as at that time section 4 of chapter 907 of 1869 had been amended by section 6 of chapter 925 of 1871 by adding at the end thereof the following provision: “The said commissioners may issue the said bonds, payable at any time they may elect, less than thirty years, any law heretofore passed to the contrary, out they shall not so issue such bonds that more than ten per cent of the principal of the whole amount of bonds issued shall become due or payable in any one year.”

      Potter v. Town of Greenwich {26 Hun, 826; affirmed 92 N. Y., 662) distinguished.
    That a claim made by the defendant that the bonds in question were void, because issued in violation of that provision of the act of 1871, which restricted the power of the commissioners to make more than ten per cent of the bonds become due in any one year, could not be sustained as the case did not show when the other bonds were negotiated, nor whether they were sold before or after the time at which the bonds were sold to the plaintiff
    That it was the duty of the court to hold, unless the contrary appeared from the case, that the commissioners did their duty according to law, and that these bonds were issued under the act of 1871, and were not in excess of the amount which, they were authorized to sell, maturing at the time mentioned upon the face of the bonds.

      Whiting v. Town of Potter (18 Blatch., 165) followed.
    That the subsequent acts of the town and its officers in accepting and retaining the bonds of the railroad company, and in voluntarily paying several installments of interest, were to be taken and treated as an admission on the part of the town that the bonds in question were issued under chapter 925 of 1871.

      Peterson v. Mayor (17 N. Y., 453); BoytY. Thompson, Bzecutor (19 N. Y., 218) followed.
    Submission upon a ease containing an agreed state of facts under the provisions of sections 1279, 1280, 1281 of the Code of Civil Procedure.
    The action which this submission is intended to determine was commenced between these parties on the 31st day of December, 1884. The case shows that the plaintiff is of full age and a resident of Washington county, and that the defendant is a municipal corporation and constitutes one of the towns of Washington county; that the Greenwich and Johnson ville Railroad Company is, and was at the time referred to in the stipulation a corporation duly organ, ized and incorporated under the Laws of the State of New York as a railroad corporation, and as such has constructed and is operating a railroad between the village of Johnson ville in the county of Rensselaer, and the village of Greenwich in the town of Greenwich, in the county of. Washington, and has its principal office and depot and terminal buildings in the town of Greenwich. The case shows that in 1870 said railroad company was endeavoring to extend said railroad into the town of Greenwich in the county of Washington, and for that purpose and to raise the necessary funds therefor, authorized and caused to be issued bonds for $50,000, secured by a second mortgage on said railroad and its franchises; that on the 21st day of March, 1871, the county judge of Washington county duly adjudged, determined and ordered, as set forth in the judgment or order made and which is fully set out in the case and constitutes a part of the same.
    In and by that judgment it is recited that certain taxpayers of the town of Greenwich have applied to the county judge of Washington county, State of New York, the county in which said town is located, by their petition duly verified and presented under and by virtue of the provisions of chapter 907 of the Laws of 1869 setting forth the due incorporation under the Laws of New York of the said Greenwich and Johnsonville Railroad Company; that said petitioners are, severally, taxpayers of said town of Greenwich, whose names respectively appear upon the last preceding tax-list or assessment-roll of said town, owning and representing a majority of the taxable property within the limits of said town; and that said petitioners were a majority in numbers of the taxpayers on the last preceding tax-list or assessment-roll of said town; and that said petitioners, by said petition, ask and desire that bonds of said town of Greenwich may be created and issued in the manner specified in said chapter 907 of the Laws of 1869, to the amount of $40,000, and that said town bonds be invested in the second mortgage bonds of said railroad company at eighty cents on the dollar. The said judgment further recites the reading of said petition and of the order granted on the presentation thereof and of the taking due proof of the notice issued thereon and of the due publication of said notice and of the facts set forth in said petition. The order proceeds to adjudge and determine that the allegations of said petition are proved and established, and that the said petitioners do represent a majority of the taxpayers of the town of Greenwich, in Washington county, as shown by the last preceding tax-list or assessment-roll of1 said town, and do represent a majority of the taxable property of said town upon said list or. roll. This judgment was duly filed and entered of record in the county clerk’s office of the county of Washington, on the 21st day of March, 1871. The case shows that the taxable property of the town of Greenwich, on the last preceding tax-list or assessment-roll was $1,404,696. The case also shows that immediately after the entry of the aforesaid judgment the county judge of Washington county appointed three commissioners, who were residents and freeholders within the town of Greeenwich, to be commissioners for said town for the purposes set forth in chapter 907 of the Laws of 1869, and that such commissioners duly accepted and qualified as such and entered upon the discharge of said office.
    That said commissioners prepared or caused to be prepared eighty bonds of $500 each, purporting to be bonds of said town of Greem wich, subscribed and sealed by them as commissioners, and dated March 25, 1871, payable on the 1st day of July, 1891, with coupons attached for the payment of the interest semi-annually at the rate of seven per cent per annum; said bonds were numbered consecutively from one to eighty, and placed in the hands of one-Andrews, who was also the treasurer of the railroad company for sale, with directions to sell the same for said commissioners; that Andrews proceeded to do so as opportunity offered, at par for cash, and to place the proceeds to the credit of the railroad company, and after completing the sale of the entire series, he delivered to said town commissioners the railroad mortgage bonds, amounting to $50,000. None of the funds received by Andrews went into the hands of the railroad commissioners. Among the purchasers of said town bonds was this plaintiff, who, about July 1st, 1871, purchased Nos. 17, 18, 19, 20 and 21, paying therefor in cash the par value of $2,500, and is still the owner and holder of said bonds. The railroad company paid the interest on said bonds until the year 1877, and for the years 1877, 187S and 1879, the town of Greenwich paid the-interest semi-annually to Brownell and took up the coupons. Since 1879'the town; has'.made no provisions for the payment <af the interest on, or/eoupons .of said bonds, and refuses to do so- on; the ground mainly if hat hy 'chapter 907 of the Laws of 1869', the-bonds are required’to-run thirty years and bonds given for twenty-years, are, therefore, -unauthorized and void.
    The plaintiffs, before the commencement of this- action, made various demands--of the-.supervisor-of said town of Greenwich for payment of the (coupons, payment off the' interest,, payment of the $2,500 and interest, the issue- of thirty year bonds* etc., all of which were declined and refused,, the-defendant insisting that by reason of 'the defects in the bonds,, and the-irregularities in their issue, no liability exists against the-town; of Greenwich which can be now enforced-dither at law or in equity.

      Westfall (& WMtcomh, for the plaintiff.

      Smith, Fursman <& Gbwen, for the; defendant..
   Mayham, J.:

Unless this case is distinguishable from Potter v. Town of Greenwich (26 Hun, 326), affirmed in the Court of Appeals (92 N. Y. 662), then the result in that case must be decisive of this. That was an action upon one of the same series of bonds, as the one in suit in this action, and the action in that case was to reform the bond so as to make it conform to the statute (chap. 907, Laws of 1869), and in case said bond could not be so corrected, then that the defendant be decreed to pay the plaintiff $500, the face value of said bond, with the accrued interest on the same. And it was held that the plaintiff was not entitled to either kind of relief asked for.

But it is insisted by the learned counsel for the plaintiff that the case at bar differs essentially m the facts presented, and in the relief sought from the case of Potter v. Greenwich, above refered to, and that that difference is so marked that the decision in the latter case is not an authority against the plaintiff’s right to recover in this. It is true that, by the case as now presented, some of the questions before the court in Potter v Greenwich, are definitely settled by the agreed facts in the case. We think the jurisdiction of the county judge of Washington county to pronounce the judgment authorizing the issue of bonds of the town by commissioners and the exchange of the same for second mortgage railroad bonds, is clearly established by the stipulation and is not an open question in this case for adjudication by this court.

The case makes the parties unite in saying that “ on the 21st day of March, 1871, the county judge of the county of Washington duly adjudged, determined and ordered, as set forth in his judgment or order then made, of which the following is a copy.” Then follows the formal adjudication of the county judge reciting the jurisdictional facts and adjudging that the requisite number of taxpayers of Greenwich, representing the requisite amount of taxable--property of said town had duly petitioned in compliance with the -requirements of the law as it at that time existed. With this concession it does not lie with the defendant to challenge the jurisdiction of the county judge to pronounce the judgment. If the county judge had not had jurisdiction, both of the parties and the subject-matter, he could not have “ duly adjudged cmd determined” as by the case it appears he did; and a judgment having been duly entered under and in pursuance of the provisions of the statute it became binding upon the parties and, like any other judgment of a court of record, could not be assailed collaterally. Section 2 of chapter 907 of the Laws of 1869 provides that such judgment and the record thereof, shall have the same force and effect as other judgments and records in courts of record in this State.” Nor can the appointment and qualification of the commissioners be questioned in this action. The case shows that the county judge “ duly appointed ” the commissioners for the purpose set forth in chapter 907 of Laws of 1869, and that said commissioners duly accepted said office, took their official oath and entered upon the discharge of their duties as commissioners. Under this agreed state of facts, for the purposes of this action, these commissioners became such de jure and were clothed with all the powers conferred by the statute upon such railroad commissioners.

All the preliminary steps contemplated by the act of 1869 having been complied with to clothe the commissioners with full authority to act, and they having assumed to act as such commissioners by issuing bonds to the amount of $40,000, purporting to be town bonds issued under chapter 907 of the Laws of 1869, in which the town, by its commissioners, declares itself indebted to the holder of said bond in the sum of $500, with semi-annual interest, and the said commissioners, so appointed and acting, having sold said bonds at par for cash to the plaintiffs, and with the proceeds and avails thereof and of other similar bonds, having purchased for and delivered to said town $50,000 in par value of the second mortgage bonds of the Greenwich and Johnsonville Railroad Company, which, so far as appears from the case, said town still holds, the question arises, are these bonds so radically defective by reason of their having been issued to run twenty years, instead of thirty years, as prescribed by the act above referred to, that they cannot be upheld and sustained so as to represent a valid claim, and if so, does such defect in the bond divest the purchaser and holder thereof of all power to invoke any legal redress for the money invested and leave the defendant in the unmolested enjoyment of the benefits derived from the use of the plaintiff’s money in the construction of a railroad within its territory, with all its attendant advantages of facilities for transportation, increased valuation of property and the $50,000 dollars in second mortgage bends of the Greenwich and Johnsonville Railroad? It is well settled in this State that bonds issued by commissioners under the provisions of the act authorizing towns to bond themselves to aid in the construction of raihmds, must be conformable to law or they are invalid as such and cannot be collected of the town, and that the holder is charged with knowledge of any defects, or, in other words, thei’e is no such thing as a bona fide holder of such bonds. (Cagwin v. Town of Hancock, 84 N. Y., 532; Horton v. Town of Thompson, 71 id., 513; Angel v. Town of Hume, 17 Hun, 374; Potter v. Town of Greenwich, 26 id., 330.) If these bonds are to be treated as issued at the time they bear date, then they come clearly within the pi'ovisions of chapter 907 of Laws of 1869, which alone was in force at that time, and which required such bonds to become due and payable at the expiration of thirty years; and as these bonds had but twenty years to run they were, in their physical shape, upon their face void. (Potter v. Town of Greenwich, 26 Hun, 326.) If, however, they were not deemed issued until the time of their actual sale by the agent of the commissioners to the plaintiff, then the purchaser took them under the provisions of law.then in force. (Angel v. Town of Hume, 17 Hun, 374.) The bonds in the case at bar were actually sold by the commissionei’s to the plaintiff on the 1st day of July, 1871, who on that day paid the agent of the commissioners the sum of $2,500 in cash and received five town bonds of the par value of $500 each. At the time of that sale the provisions of section 4 of chapter 907 of the Laws of 1869 had been amended by section 6 of chapter 925 of Laws of 1871, adding at the end thereof as follows: The said commissioners may issue the said bonds, payable at any time they may elect, less than thirty years, any law heretofore passed to the contrary.” But the same section provides that not more “ than ten per cent of the’principal of the whole amount of bonds issued gliall become due and payable in auy one year.” This amendment would doubtless authorize the commissioners to issue the five bonds bought by the plaintiff at the time of that purchase for twenty instead of thirty years. I think that it cannot be successfully maintained that the bonds were issued in the legal sense of that term until they were negotiated, they did not become a valid subsisting obligation against the town until they were negotiated, and the town could not be made liable either for principal or interest while the bonds remained unnegotiated in the hands of the commissioners. They had no legal inception until they were delivered to some person as an evidence of a subsisting debt against the town^ It cannot be pretended that the commissioners or Andrews, their agent, had any sue title to or interest in the bonds as would enable them to enforce them against the town; and it is well settled if no party to the instrument, who is prior to the holder, could himself bring an action on it against the maker, then no prior party ever owned it, and the holder being the first owner must be held as having loaned the money to the maker. (Eastman v. Shaw, 65 N. Y., 527, 528.) The bond was, therefore, not issued until it was negotiated for value, and hence had no legal inception until purchased by the plaintiff July 1, 1871. The law of the bond at that time was that it might be issued by the commissioner for any length of time less than thirty years, notwithstanding the prohibition contained in chapter 907 of the Laws of 1869.

Although the legal presumption is that these bonds were issued at the time they bear date, yet that presumption may be overcome by proof that they were issued at a different date. (Elsey v. Metcalf, 1 Den., 323-326.) The presumption of issue at the date is directly overcome by the statement in the case that plaintiff purchased, received and paid for them July 1, 1871, and as the plaintiff had a right to rely upon the law then in force, we do not see how the fact that these bonds ran for twenty instead of thirty years can affect the validity of the bonds in his hand.

But it is said by the defendant that the same act which confers this discretion, as to the length of time these bonds are to run, upon the commissioners restricts the amount that shall be made to fall due in any one year, and that in that respect these bonds were issued in violation of law. The case does not show when the other bonds were negotiated, and it does not appear whether they were sold before or after this sale to the plaintiff.

Suppose these five bonds were the first bonds sold, then it could not be pretended that these five bonds were an over-issue of bonds maturing at the same time, and if regular in all other respects, they would be valid as to amount. If regular, therefore, at the time of the purchase by this plaintiff, could they be affected in his hands by the subsequent over-issue of bonds of a similar character by the commissioners? The answer seems obvious that they could not. Or, suppose that before the passage of section 6 of chapter 925 of the Laws of 1871, the comissioners had issued more than $10,000 in these bonds, due at the same date, would the issue of those void twenty-year bonds prohibit the commissioners, after the passage of chapter 925 of the Laws of 1871, from issuing five $500 bonds under the last mentioned act? The answer seems equally clear that it would not.

It would seem from the above statements that upon the points discussed there is nothing that defeats the validity of these bonds in the hands of the plaintiff. In Potter v. Town of Greenwich (20 Hun, 331), the court held that the bond in suit in that case was issued under chapter 907 of the Laws of 1869, and that for that reason it was void, because it was for twenty years, and not for thirty years, as required by that act, and the Court of Appeals affirms that decision (92 N. Y., 662), but that case does not seem to discuss the question of the effect of the provisions of chapter 925 of the Laws of 1871, and the whole question seemed to be discussed as arising under chapter 907 of the Laws of 1869.

In that respect, therefore, this case is different from the case of Potter v. Greenwich (supra), and if this be so, the decision in that case not being predicated upon a state of facts such as appear in this case, is not controlling, and does not conclude. the plaintiff in this action.

All the essential benefits which the taxpavers of the town contemplated at the time they petitioned for leave to bond the town were realized, accepted and adopted by the town, and the taxpayers thereof are, so far as appears by this case, in the full enjoyment of its fruits. The town, through its officers, have, so far as they are capable, ratified the acts of the commissioners by accepting the railroad bonds and recognizing the validity of the town bonds by voluntarily paying several installments of interest; and while it is true that the payment of the interest after the bonds were issued would not be an estoppel, yet it is at least a recognition of the validity of the bonds and a ratification of the acts of the commissioner in issuing the same; and the courts have in some instances treated such ratification as equivalent to an original agreement. I think the subsequent acts of the town and its officers may be taken and treated as an admission on the part of the town that the bonds in suit were issued under chapter 925 of the Laws of 1871. In Peterson v. Mayor (17 N. Y., 453), the Court of Appeals in discussing the question of the ratification by a corporation says: “This ratification may be by express assent or by acts or conduct of the principal inconsistent with any other supposition than that he intended to adopt and own the act done in his name. I am of opinion that the principal is as applicable to corporations as to individuals.”

In Hoyt v. Thompson, Executor (19 N. Y., 218), the court say : “ A corporation may like an individual ratify the acts of its agents done in excess of their authority, and such ratification may in many cases be inferred from an informal acquiescence in and approval of those acts.” To the extent, therefore, that the acts of the town by its officers tends to show a ratification of the validity of these bonds, those acts may properly be considered in determining this case. Nor can this court indulge in any inference not supported by the facts against the validity of these bonds. On the other hand, it is the duty of the court to hold (unless the contrary appear from the case) that these commissioners did their duty according to law, and that the bonds in suit were issued under the act of 1871, and were not in excess of the amount which the commissioners were authorized to sell, maturing at the time mentioned upon the face of the bond. It must be assumed that the commissioners did their duty in the absence of any proof to the contrary. (Whiting v. Town of Potter, 18 Blatchf., 165.)

All the apparent equities being in favor of the plaintiff in this case, and upon the view we have taken of the facts presented there being no legal objection to the validity of the bonds in suit, we are of the opinion that the plaintiff is entitled to recover in this action the interest due and unpaid on these bonds represented by the unpaid coupons.

Learned, P. <L, and Landon, J., concurred.

Judgment in plaintiff’s favor, as stated in opinion, with costs.


author: SMITH, P. J. :

text:
    In the Matter of the Probate of the Alleged Will of POTTER AUSTIN, Deceased.

      Will — what evidence is sufficient to prove an acknowledgment of ids signature, by the deceased, to the subscribing witnesses.

    Upon an appeal from a decree of a surrogate refusing probate of an instrument propounded as a will, upon lire ground tliat it was hot proved that the deceased acknowledged to each of the witnesses that the signature was made by him, it appeared that the subscribing witnesses agreed in saying that they went to the house of the decedent, having been called in to witness his will; that the paper was then lying on the table, and the decedent, on being asked if that was his last will and testament, said yes; that the witnesses, in his presence and in the presence of each other, subscribed an attestation clause, which recited the exe cution of all the formalities required by the statute: that nothing was said, whhe they were in the room with the decedent, in reference to the execution of the will except as above stated. There was no express testimony that the signature of the decedent was affixed to the paper before the witnesses subscribed it, they not saying it was not so affixed, and one of them testifying that the deceased did not sign the will after they got there. The will was written on a printed blank by an attorney in accordance with the instructions of the deceased, and an inspection of the will by the court on the argument showed that the signature of the deceased was very prominent and plain to be seen; also, that the witnesses had written'their places of residence after their signatures, there being no evidence that they were advised of the necessity of doing so except from reading the attestation clause.

      Held, that the decree should be reversed, as the evidence was sufficient to prove that the testator acknowledged to the subscribing witnesses that the signature was his.

      Baskin v. Baskin (86 N. Y. ,416); Mailer of Higgins (94 id., 554); Matter of Will of Phillips (98 id., 267); Matter of Will of Hunt (42 Hun, 434) followed; Mitchell v. Mitchell (16 Hun,97; affirmed, 77 N. Y., 596), RuiherfordY. Rutherford (IDen., 33) and Lewis v. Lewis (11 N. Y., 220) distinguished.
    Appeal by Granger Griswold, proponent, from a decree of tlie surrogate of Livingston county, refusing probate of an instrument propounded .as tbe will of Potter Austin, deceased.

      James Wood, for Granger Griswold, executor and proponent appellant.

      E. W. Packard, for contestants and respondents.
   SMITH, P. J. :

The proof shows that the paper purporting to be the will of the deceased was signed by him, but the .signature was not made in the presence of the subscribing witnesses, .and it appears that the surrogate refused probate upon the ground that there is not satisfactory evidence that the deceased .acknowledged to each of the attesting witnesses that the signature was made by him. The only question presented by the appeal is whether he was right in that conclusion.

The subscribing witnesses agree in the statement that they went to .the house of the decedent, having been called in to witness his will-; that the paper was then lying on the table, and the decedent on 'being asked if that was his last will and testament, said “ yes; ” and that .the witnesses then subscribed as witnesses in his presence and in the presence of each other. They subscribed an attestation clause, which recited the execution of all the formalities required by "the statute. The witnesses also agree in the ¡statement that nothing was said, while they were in the room with the deceased, in reference to the execution of the will except as •above stated. The will was written on a printed blank by Mr. Wood, the proponent’s counsel, who testified 'that he drew it according to instructions communicated to him by the person named in the will as executor, and which such person testified was •given to him by the deceased.

An inspection of the will, which was produced before us on the .argument, showed that the signature of the deceased was very prominent and plain to be seen. The witnesses wrote their places of residence after their signatures, and there is no evidence that they were advised of the necessity of doing so except from reading the attestation clause, and they both testified that the deceased appeared at the time to be of sound mind and to understand what he was doing. There is no express testimony that the signature of the deceased was affixed to the paper before the witnesses subscribed ; the subscribing witnesses do not say it was not, and one of them testified that he knew the deceased did not sign the will after they got there. In view of all the testimony, it may be assumed that the signature of the decedent preceded that of the witnesses, nothing appearing to the contrary.

Here then, was a paper, purporting to be the last will of the decedent, drawn in pursuance of his directions, attempted to be executed by him while he was apparently of sound mind and understanding, duly subscribed by him, and acknowledged by him to be hio last will in the presence of witnesses who attended and subscribed it as his request and in his presence, signing a full attestation clause. Must the will fail by reason of the lack of a formal acknowledgment by the testator to the witnesses that the signature was his, such signature not having been made in their presence ?

It is undoubtedly true that the several requisites prescribed by the statute must be complied with substantially, in order to constitute the due execution of a will. The object of those requirements is to guard against imposition and mistake, but no formula of words is prescribed by the statute to be repeated by the testator So far as the acknowledgment by the testator of his signature is concerned, if the signature is in fact his, if it is appended to the paper before the witnesses sign, if, the paper and the signature being before the witnesses in plain sight, the testator addresses them in words which are calculated and intended by him to give them to understand that the signature is his and are so understood by them, those facts would seem to amount to an acknowledgment of the genuineness of the signature, within- the meaning of the statute.

Baskin v. Baskin (36 N. Y., 416) is an authority in point. There the testator produced a paper bearing- his personal signature, requested the witnesses to attest it and declared it to be his last will and testament. It was held that he thereby acknowledged the subscription, within the meaning of the statute. Said PoRtejj, J., delivering the opinion of the court: “ It is enough that he verifies the subscription as authentic, without reference-to the form in which the acknowledgment is made, and there could be no more unequivocal acknowledgment of a signature thus affixed than presenting it to the witnesses for attestation, and publishing the paper so subscribed as his will.” (P. 419.)

In the Matter of the Will of Higgins, one of the subscribing witnesses swore to the due execution of the will, but another witness, Jones, was not able to recollect that the testator acknowledged the signature to be his. On that point the court said : “We think that the testimony of Jones, who swore positively that the testator acknowledged the will to be his last will and testament, was an acknowledgment of his signature, and sufficient, with the other evidence given by him, to establish a due execution of the will. The signature was plainly visible upon the instrument itself, and the testatof having requested -Jones and Stoker to subscribe their names to it as witnesses, and he having acknowledged the same to be his last will and testament, the statute was fully complied with in this respect within the decisions of this court.” (94 N. Y., 554, 557.)

To the same effect is the Matter of Will of Phillips (98 N. Y., 267), Mr. Justice Sapallo delivered the opinion of the court. Speaking of the case as made by the testimony of one of the subscribing witnesses, he said : “ The exhibition of the will and of the testator’s signature attached thereto, and his declaration to the witness that it was his last will and testament, and his request to the witness to attest the same, were, we think, a sufficient acknowledgment of the signature and publication of the will.” (P. 273.) The case last cited was followed by the General Term of this court in the second department, in the Matter of the Will of Hunt (42 Hun, 434) the learned surrogate relied upon the cases of Mitchell v. Mitchell (16 Hun, 97; S. C., affirmed, 77 N. Y., 596); Rutherford v. Rutherford (1 Den., 33) and Lewis v. Lewis (11 N. Y., 220).

In the case of Mitchell, there are some remarks in the opinion delivered 'at General Term, which seem to sustain the- decision of the surrogate. But one fact was commented on in that case which distinguishes it from this, namely, that one of the subscribing witnesses did not see the testator’s signature The case was affirmed in the Court of Appeals by a bare majority, Rapallo, J., writing a dissenting opinion, in which two of his associates concurred. In Rutherford v. Rutherford, the only declaration as to the nature of the paper, was that it was the testator’s “ will or agreement,” which was held to be too indefinite; and as to one of the subscribing witnesses the testator neither signed nor acknowledged the signature in his presence. In Lewis v. Lewis the will was so folded, when the witnesses signed, that they could not see whether it was subscribed by the testator or not, and the only acknowledgment made to them by the testator was, “ I declare the within to be my will and deed.” It was held not to be a sufficient acknowledgment by the testator, either of his subscription, or that the instrument was his will. We think the cases cited by the surrogate are fairly distinguishable from the case in hand, and that the later cases already referred to control, and require a reversal of the decree. All that we decide is that, in view of ail the testimony, there was sufficient evidence that the testator acknowledged to the subscribing witnesses the signature to be his, and that the factum of the will was established. If there are any other questions in the case they are still open.

The decree should be reversed and the proceedings remitted to the surrogate’s court. The costs of this appeal to abide the event if awarded against the proponent, to be payable out of the estate, if in his favor, to be payable out of the estate or by the contestants, as the surrogate shall direct. (Code, § 2589.)

Haight and Beadley, JJ., concurred.

So ordered.


author: Smith, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel THE SODUS BAY AND SOUTHERN RAILROAD COMPANY and THE NORTHERN CENTRAL RAILWAY COMPANY, Appellants, v. WILLIAM J. CHEETHAM and Others, Assessors, JOHN A. BOYD, Supervisor, and SAMUEL W. BRUNDAGE, Clerk of the Town of Sodus Bay, Wayne County, New York, Respondents.
    Certiorari — review of an assessment, under chapter 269 of 1880, by a railroad company— when the writ will not be quashed because of a failure to furnish the statement required by section 2 of 1 Revised Statutes, 414 — what objections cannot be raised on a motion to quash — verification of the petition by the company.

    Upon an appeal from an order made at a Special Term quashing a writ of certiorari, issued under the provisions of chapter 269 of 1880, to review an assessment of the property of the relators, railroad corporations, made by the respondents, the assessors of a town, it appeared that the order was granted upon the ground that (he relators had failed to make and deliver to the assessors the written statement required by section 2 of 1 Revised Statutes, 414, on or before the first day of J uly

      Held, that, conceding that the statement should have been furnished, the failure of the relators to do so did not deprive them of their right to review the determination of the assessors, as the statute imposed no such penalty and the courts could not add penalties to those prescribed by the legislature.
    That, in any event, the failure to make the statement could not deprive them of their right to review the action of the assessors in respect to alleged errors upon points concerning which the statement, if made, could not have given any information
    An objection to an improper joinder of relators cannot be made on a motion to quash, but should be raised by a motion to strike out the party improperly joined.
    It is sufficient if the petition be properly verified as to one of the relators.
    An affidavit made by the superintendent of a railroad corporation stating that the company has "no director or general officer residing in the county” is sufficient.
    Appeal from an order made at the Monroe Special Term, and entered in Wayne county, quashing the writ of certiorari issued herein

      George M. Diven, for the appellants.

      S. D. Bentley, for the respondents.
   Smith, P. J.:

The application for the writ of certiorari in this case was made under the provisions of chapter 269 of the Laws of 1880, to review an assessment of the property of the relators, made by the assessors of the town of Sodus. A return was made to the writ, which appears to have been verified on the 25th of September, 18S6, and at a Special Term, held in the county of Monroe on the twenty-seventh of the same month, the return appears to have been read on the motion which resulted in the order from which this appeal is taken, and to have been then ordered to be filed. The order quashing the writ appears by a memorandum of the judge, contained in the appeal book, to have been granted upon the ground that the relators, having failed to make and deliver to the assessors a written statement as required by statute (1 R. S., 414, § 2) on or before the first day of July, should not have the writ.

The appellants’ counsel contends that the provisions of the statute referred to require the statement therein prescribed to be made only to the assessors of the town where the corporation has its principal office. The point was ruled adversely to the appellants’ contention in The People ex rel. Dunkirk and F. Railroad Company v. Cassity (46 N. Y. 46). The ruling was not a mere obiter dictum, as the appellants’ counsel contends, but seems to have been essential to the conclusion reached by the court.

We are not prepared, however, to concur in the opinion that the failure of the relators to furnish the statement deprives them of the right to review the determination of the assessors. The statute imposes no such penalty. The fourth section prescribes the consequence of such failure, to wit, a forfeiture to the people of the State of the sum of $250. The courts cannot add penalties to those prescribed by the legislature. The prime object of requiring the statement is doubtless to furnish the assessors with information that will aid them in making the assessment. But the statement is not essential to their jurisdiction; they may act on information derived from other sources, and if they do so, and act erroneously, to the prejudice of the assessed corporation, it seems illogical and unjust to deprive the corporation of the right to review such action. If the corporation should fail to appear before the assessors on the grievance day, and ask to have the alleged errors corrected, the case would be different. Having waived that opportunity, it might well be held that it had no standing to review the action of the assessors; and that is all that is decided in The People ex rel. Mutual Union Telegraph Company v. Commissioners of Taxes (99 N. Y., 254), cited by the respondents’ counsel, as we understand the case.

But if the views above expressed are erroneous, it is difficult to see upon what reason a failure to make the statement can be held to deprive the corporation of the right to review the action of the assessors in respect to alleged errors upon points concerning which the statement, if made, could not have given any information to the assessors. In the present case the relators complain not only that the assessors have assessed as real estate property of the rela-tors which is not real estate, but also that the assessment is unequal and excessive and that in making it the assessors have ignored and disregarded the proofs made before them by the relators. Upon none of the points named, except the first one, would a statement such as is required by the statute have furnished any information or aid to the assessors.

Certain other positions are taken by the respondents’ counsel on the argument, as reasons for affirming the order. Attention is called to the fact that the Sodus Bay Company is not assessed, the entire assessment being against the other relator. The petition upon which the writ was allowed alleges that the railroad, which is the subject of the assessment, is owned by the Sodus Bay Company, and is occupied by the Northern Central Company, under an arrangement between them, by which the latter company, among other things, pays all expenses of operating and maintaining the road, including the taxes assessed thereon. That allegation is not controverted by the return. Whether the fact so alleged makes the Sodus Bay Company a necessary or a proper party to the proceeding is a question which we think was not involved in the motion to quash the writ, and does not arise on this appeal. If there is an improper joinder the remedy for the defect is not by motion to quash the writ, but by motion to strike out the party improperly joined.

It is also urged by the respondents’ counsel that the petition for the writ is not properly verified. This position resolves itself mainly into the objection that there is no verification as to the Sodus Bay company. If it is properly verified as to one of the relators, that we conceive is enough upon a motion to quash. The only objection made to the verification on the part of the Northern Central Company is that the affidavit of Mr. Meade, the superintendent, does not state that either of the relators has ‘£ not an officer or director thereof then actually within the county,” but states only that no such officer, etc., resides ” in said county. That is sufficient, we think, within the act of 1880, which does not prescribe the form of the verification, but merely requires that the petition be “ duly verified.”

Next, it is objected that the petition does not allege that the relators are aggrieved, etc., but merely that they claim ” to be aggrieved. There is a preliminary averment in that form, but it is followed, as we read the petition, by positive averments of the errors alleged, and thus the petition follows the statute, which provides that the remedy may be allowed to a party “ claiming ” to be aggrieved, upon a petition specifying the grounds of illegality, etc. (Sec. 1.)

Lastly, it is urged that the return not having been traversed, it is to be taken as conclusive and acted on as true. That rule applies to the case of a common law certiorari but the statute under which this proceeding is taken provides no mode of traversing a return by pleading, and it seems to contemplate that, notwithstanding the return takes issue with material allegations fin the petition, or avers new matter, the court, at the hearing, may order proofs to be taken; and the testimony so taken and reported shall be considered by the court in making its determination. (Sec. 4 )

¥e think the order quashing the writ should be reversed, with ten dollars costs and disbursements ; and the motion to quash denied.

Haight and Bradley, JJ., concurred.

Order quashing writ reversed, with ten dollars costs and disbursements, and motion to quash denied.


text:
    EDWARD J. KELSEY, Respondent, v. THE PFAUDLER PROCESS FERMENTATION COMPANY, Appellant.

      Corporation — what acts do not show that it has suspended its ordinary business for a year, so as to authorize the entry of a judgment deelanng it dissolved.

    Upon an appeal from, a judgment declaring the defendant corporation dissolved, upon the ground that it had suspended its ordinary and lawful business for at least one year prior to the commencement of the action, it appeared that the defendant was incorporated in April, 1882, under the general manufacturing act, to manufacturo, use, license and sell machines and apparatus, and the process in which the same are used in the manufacture of beer and other fermentable liquids, under and by virtue of certain letters patent of the United States specified in the certificate; that, after entering upon this business, it encountered a competing company, claiming to own the same invention, which company; in order to test the rival claims, brought an action ior an infringement against a licensee of the defendant; the defense of this action was assumed by the defendant.
    While this action was pending an agreement was entered into between the two companies, providing that the party who should succeed in the litiga, tion should have three-fourths and the other party one-fourth of the invention; that all the patents of both companies should be placed in a new corporation to be formed for that purpose, each party reserving its right as to licenses theretofore granted; that all future business should be divided between them, the successful party to have three-quarters and the defeated party one-quarter of the proceeds; that the new corporation should have five directors, two of whom might be selected by the minority.
    The defendant having succeeded a new company was formed, to which all the patents were assigned as provided in the agreement, the stock of which was assigned to the two companies in the proportion therein mentioned, the president of the defendant being authorized and directed by its board of.trustees to vote on the stock of the new company owned by it.

      Held, that as it appeared that the defendant had kept up its organization, and its officers had continued to discharge their duties and the corporation had continued to receive royalties, issue licenses and prosecute and defend actions to which it was a party, the court erred in finding that it had suspended its ordinary and lawful business.
    That if the act of the defendant in assigning the patents owned by it to the new corporation and taking the stock of such new corporation was unlawful and unauthorized, it would not entitle the plaintiff, a stockholder of the defendant, to maintain this action, as the action to be brought in such a case is required by the statute to be brought by the attorney general.

      Nr tbis action, brought by a stockholder of the defendant corporation to obtain a judgment dissolving it, there were four appeals :

      First. Appeal from a judgment entered upon a decision of the Monroe Special Term declaring the defendant corporation dissolved.

      Second. Appeal from a Special Term order convicting the defendant’s attorney, John Yan Yoorliis, and its secretary, Edward G. Miner, of a contempt.

      Third. Appeal from a Special Term order vacating an order made at chambers, staying proceedings pending an appeal from the judgment herein.

      Fourth. Appeal from a Special Term 'order denying a motion for a stay of proceedings pending an appeal from said judgment.
    There is also an original motion on the part of the respondent to dismiss said appeals, one, three and four, and also an appeal from a judgment in another action between the same parties, to recove” a penalty.

      J. Yan Voorhis and F. A. Fash, for the appellant.

      Theodore Bacon and J. N. BecTcley, for the respondent.
   Smith, P. J.:

The judgment of dissolution was put upon the ground that the corporation had suspended its ordinary and lawful business for at least one year prior to the commencement of the action. The corporation was formed in April, 1882, under the general manufacturing act of 1848. The objects of its formation, declared in the certificate of its incorporation, were the manufacturing, using, licensing and selling machines and apparatus, and the process in which the same are used in the manufacture of beer and other fermentable liquids, under and by virtue of certain letters-patent of the United States, specified in the certificate. The certificate stated that the capital stock of the corporation was to be $100,000, in 1,000 shares of $100 each; that the term of existence of the corporation should be fifteen years from the 15th of April, 1882; that its trustees should be seven in number, and its principal place of business should be in the city of Rochester. The plaintiff was and is one of its stockholders.

After the corporation entered upon the business for which it was formed it encountered a competing company called “ The New Process Fermentation Company,” of Chicago, claiming as its own the same invention upon which the defendant relied. To test the question growing out of the rival claims, the “New Process” company brought suit against a licensee of the “Pfaudler Process” company for an infringement, and the latter company assumed its defense. While that suit was ^pending undecided the two companies entered into an arrangement for the purpose of composing their differences, the principal features of which were that the party which should succeed in the suit should have three-fourths and the other party one-fourth of the invention; that all the patents of both companies should be placed in a third party or new corporation to be formed for that purpose, each party reserving its rights as to licenses theretofore granted, or contracts in process of execution ; that the two companies should pool all future business and divide its proceeds, the successful party to have seventy-five per cent and the defeated party the remainder; that all suits then pending should be prosecuted for the benefit of the party commencing the same, and all future suits for the benefit of the pool; that there should be five directors of the new corporation, two of whom might be selected by the minority interest; and that the new corporation should furnish to each of the contracting parties, each month, a statement of the business done during the month, and remit to each its proportion of the net profits received during the month.

The suit between the companies was decided in favor of the defendant herein, and thereupon, for the purpose of carrying out the said agreement, a new company was organized under the said act of 1848, called the “ Consolidated Bunging Apparatus Company,” to which the contracting parties assigned their respective patents. The certificate of incorporation of the new company bears date 18th July, 1884, and was signed by three persons, each of whom was a stockholder and trustee of the defendant. The objects of the new corporation stated in the certificate were the purchasing and leasing of letters-patent and of inventions for improvements in the process and apparatus for manufacturing and preparing beer, wine and other fermented liquors for the market; the manufacturing, selling, licensing and operating of such process and apparatus under said letters-patent and of inventions used for like purposes, and tbe transaction of all business incidental to or connected therewith. The amount of the capital stock of the new company was $100,000, consisting of 1,000 shares; the number of trustees was fixed at five ; the term of existence of the company was to be twenty-five years, and its principal office and place of business was to be in the city of Rochester. Seven hundred and fifty shares of the stock were assigned to the defendant, and the remainder to the Chicago company. The president of the defendant was authorized and directed by its board of trustees to vote upon the stock of the new company owned by tiie defendant, in all meetings of that company, as he should deem best for the interests of the defendant and its business, and a board of five trustees of the new company was designated, three of whom were trustees of the defendant, and the other two represented the Chicago company.

Evidence of the action of the defendant’s officers in effecting this arrangement, of the motives which induced it, and of the purposes sought to be accomplished by it, is furnished by the resolutions of the board of trustees and the reports of committees and other information upon which they acted, set out in the printed case. So far as we can gather from the testimony, it' seems obvious that the trustees at no time intended an abandonment or suspension of the business for which the defendant was organized; on the contrary, the arrangement made, including the transfer of the patents to the new company, was entered into by them for the purpose of removing the formidable competition of the Chicago company which threatened them with disaster, and in the expectation of being able, by their control of the new company, to prosecute the business for which they were organized, with greater vigor and success. These views, as to the favorable effect of the arrangement upon the business of the defendant and the value of its stock,- find support in the aver-ments contained in the complaint verified by the plaintiff herein, in an action brought by him and others against the defendant herein and others in February, 1884, and in the findings of the referee in that action, all of which appear in the appeal book before us. The arrangement seems to have been the same, in practical effect (so far as future business was concerned), as it would have been if the defendant had taken an assignment of the patents held by the Chicago company, giving that company in exchange for them, one-fourth of the capital stock of the defendant and the right to choose a minority of its board of trustees. If the arrangement had taken that form, it will hardly be contended that it would have amounted to an abandonment or suspension of the business of the defendant. The present arrangement’ provides for a continuance of the business for which the defendant was organized, and for its control by the defendant through its ownership of tliree-fourths of the stock of the new corporation. So that if the arrangement is one which the defendant had power to make and is not illegal, it is difficult to see how it works an abandonment or suspension of the business for which the defendant was formed.

It may be, however, that the defendant, in parting with its patents, and taking stock in the new company, exceeded its powers, or acted illegally Assuming for the further consideration of the matter without deciding, that such was the case, how is the plaintiff aided thereby in this action? For an unlawful alienation of the property of a corporation by its officers, where the alienee knew its purpose (as must have been the case here), the statute provides a remedy by action against the officers chargeable with the wrong to set aside the alienation, the action must be brought by the attorney-general, and the alienee, doubtless, must be made a party. (Code Civil Pro , § 1781, sub 5, § 1782.) And if the taking of stock in the new corporation by the defendant was an excess of power, it can hardly be said that the circumstance is available to the plaintiff in this action, for the sole ground on which he seeks relief is, not that the defendant has exceeded, but that it has abandoned the powers given by its charter In fine, so long as the State does not interfere, and the parties to the contract treat it as valid, it is hard to see that the plaintiff has any cause of complaint, on account of the method which the defendant has adopted for carrying on the business contemplated by its charter, especially as that method was intended to promote the interests of all the stockholders, and for aught that appears has had that effect.

So far as we are advised, the case is without precedent. The authorities cited by the respondent’s counsel differ widely from the present action. In Ward v. The Sea Insurance Company (7 Paige, 294), the business of the corporation, which was that of marine insurance, was suspended for more than a year, under a foi’mal resolution to that effects by the board of directors, and the management of its estate and effects was committed, as the report of the case states, to the president and secretary, aided by three of the directors. From this it is to be inferred that the board of directors had relinquished control. In the case of the Jackson Marine Insurance Company (4 Sandf. Ch. R., 559), the corporation resolved to cease its business, to cancel its outstanding policies, and to liquidate all liabilities, and for more than a year had done no new business except to fulfill stipulations in then existing policies. In Briggs v. Penniman (8 Cow., 386), it was held that a manufacturing corporation which had ceased to act, was without funds and was in debt, was dissolved, within the intent of the statute, so far as to give a remedy to creditors against the individual stockholders, and that that result was not prevented by an election of trustees made apparently for no purpose but to keep the company in existence. In The People v. The Northern Central Railroad Company (53 Barb., 98), the defendant was insolvent thirteen years before suit, and then surrendered its property to its creditors, and ever thereafter had remained insolvent, and neglected to pay its notes and other evidences of debt, and entirely suspended its ordinary business, and another corporation with the same general object had, under the authority of the State, organized and was in actual operation in its stead.

If most, if not all ox the cases upon the subject reported in the books, there was evidence of an actual abandonment of the business of the corporation, or of a suspension for more than a year, with no effort .whatever to carry it on, and no intention to resume, accompanied generally by insolvency or pecuniary embarrassment.

In this case, there is no finding of insolvency. In the action already mentioned, brought by this plaintiff and others against this defendant and others, it was found by the referee that the assets of the defendant were valuable and that they largely exceeded its indebtedness. As has been 3aid the decision of the Special Term rests upon the single fact that the defendant parted with the title to its patents, m the circumstances above stated. As we think it manx fest from the evidence that it did so, not with the intention of abandon • mg or suspending the business for which it was formed, but for the purpose of relieving itself from ruinous competition and litigation, .'and of having the business prosecuted with more beneficial results to its stockholders, under its own control, and such business has continued to be prosecuted in the mode contemplated, we are not prepared to concur in the conclusion that the corporation was thereby dissolved.

The defendant corporation has kept up its organization. It has continued its board of trustees, president and other officers. Its omission to elect trustees m some years is not a reason for dissolving it. The acts of its trustees are valid till their successors are elected. (Laws of 1848, chap 40, §4) • In accordance with its agreement with the Chicago company, it has received royalties upon licenses issued by it prior to the agreement, has issued licenses to the licensees of that company; and has prosecuted or defended actions at law m which it is a party, much of which has been done within the year next preceding the commencement of this action. If these things were done merely for the purpose of closing its prior engage" rnents and winding up its affairs, they would not prevent its dissolution m case it had, in fact, abandoned its business, but in the circumstances, they tend to show that it is continuing its business under its agreement with the rival company

One of the actions which the company is defending was brought against it by the plaintiff herein, to recover a penalty for refusing to exhibit the stock-book of the company to the plaintiff. That action was brought within the year next preceding the commencement of this suit. The complaint alleged that the refusal to exhibit the book occurred at a date which is within the same period. It also alleged the existence of the defendant as a corporation, at that time, the fact that it then had an office and place of business and trustees whose duty it was to cause the stock book to be kept open for inspection by the defendant’s stockholders. The complaint was verified by the plaintiff. There may be a question whether the plaintiff is not estopped thereby from alleging that the defendant had then suspended its business. (Bradt v. Benedict, 17 N. Y., 93, per Pratt, J, 100) It would seem that if this action can be maintained, the obligation of the defendant to exhibit the book had ceased by reason of its suspension. (Bruce v Platt, 80 N. Y., 379.)

It appears by the appeal book that at the time when the written assignment to the new company was executed, the letters-patent were held by a receiver, to whom they had been transferred by the defendant by an order of the court; but as they were afterwards retransferred by the receiver to the defendant, under a like order, we do not think that this case is affected by, the circumstance that the patents were in the receiver’s hands when the assignment was executed. "We are of the'opinion-that the judgment should be reversed and a new trial ordered, costs to abide event.

The reversal of the judgment removes the foundation on which the three orders appealed from rested.. They grew ont of proceedings on the part of the receiver appointed by that judgment to get possession of the property of the defendant, and of the action of the officers or agents of the corporation in opposing such efforts. The orders must fall with the judgment, but as the proceedings on the part of the plaintiff and of the receiver were apparently justified by the judgment, the reversal of the several orders should be without costs to either party.

The motion to dismiss the appeal has not been overlooked. It appears to be based upon the idea that the defendant corporation, having been adjudged to be dissolved, has no existence and cannot appeal. Every party litigant lias the right to appeal from a judgment by which he is aggrieved. (Code Civil Pro., § 1294.) A corporation aggrieved by a judgment declaring it to be dissolved, is no exception to the rule. Having the right to appeal from the judgment, it may also appeal from an order based upon the judgment, or growing out of proceedings taken to enforce or execute it.

The motion is denied, without costs.

Haight and Bradley, JJ , concurred.

Judgment reversed and new trial ordered, costs to abide event j orders appealed from reversed, without costs, ánd motions to dismiss appeals denied, without costs.


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    JOSEPH LESLIE, Respondent, v. EMMA WALRATH and CHARITY B. STRONG, Appellants.

      <9ffer of judgment — Code of Oivil Procedure, §'378 — ineffectual unless it complies with the statute in all substantial respects.

    in tills action, brought to recover the sum of $375, with interest thereon from September 4, 1884, besides costs, the defendants, after interposing an answer ¡setting up a counter-claim, served'an offer of judgment for the sum of $150, with costs to date.

      Meld, that the offer was ineffectual to prevent the plaintiff from recovering costs, .although the verdict obtained by him was for only the sum of $113.50, as it did inot comply with section 738 of the Code of Oivil Procedure, requiring that the pffer 'be to allow judgment “ for a sum or property, or to the effect therein specified, with ¡costs, ” in that it subjected the plaintiff to the costs of entering judgment upon it, and of issuing the execution and entering the satisfaction.
    AppeaL from an order of the Chautauqua County Court denying the defendants’ motion for a retaxation of costs

      Lockwood & Shaw, for the appellants.

      Holt & Hull, for the respondent.
   Smith, P. J.:

Action on a promissory note. The plaintiff claimed to recover •the sum of $275 with interest from the: 4th of September, 1884, besides costs. The defendants set np a counterclaim, and before trial served an offer of judgment “for the*sum of One hundred and •fifty dollars, with costs to date.” The offer was dated. It was not .accepted, a trial was had, and the plaintiff obtained a verdict for the sum of $112.50.

'The plaintiff’s counsel contends that the offer was ineffectual by .reason of the limitation imposed by it in respect to costs, its effect being, if accepted, to subject the plaintiff to the costs of entering judgment upon the offer, and of execution and entering satisfaction. We think he is right m that contention. The statute authorizing the offer provides that it shall allow judgment, u for a sum, or property, or to the effect therein specified, with costs.” (Code of Civil Pro., § 738.) The party making the offer frames it to suit himself. If it does not comply with the statute, in all substantial respects, it is a nullity, and it may be treated as sucli by the party served with it. (McFarren v. St. John, 14 Hun, 387; Riggs v. Waydell, 78 N. Y., 586.) If the party served with a valid offer accepts it, he is entitled to enter judgment upon it, and to tax the costs of the entry upon the party making the offer. But the offer in this case was so framed, as that the plaintiff, if he had accepted it, could have taxed no costs accruing subsequently to the date of the offer. He would have been limited by the terms of the offer.

The appellants’ counsel suggest that the words “ to date ” mean the date of the judgment to be entered on the offer. We do not think they are fairly susceptible of the construction. It makes them superfluous and meaningless. But the case is not one for judicial interpretation. The offer should be specific and certain in all material respects.

It is also suggested by the appellants’ counsel that the word “costs” used in the offer does not include disbursements. We think otherwise. The word “ costs ” is to be regarded as used in the same sense in the offer as in the section of the Code which authorizes an offer; and there it evidently includes disbursements.

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

Haight and Bradley, JJ., concurred.

Order affirmed with ten dollars costs and disbursements.