author: PER CURIAM.

text:
    Christopher Clark v. Richard K. Fox.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    1. Slander—Evidence.
    Where the alleged slanderous words were that plaintiff had robbed defendant, and the answer is a general denial, evidence is inadmissible to show that plaintiff had misax>propriated defendant’s money.

      2. Same—Proof of repetition.
    Where the complaint alleges that the slanderous words were repeatedly spoken “ in the months of March and April, and other times in the year of 1893,” and the answer is'a general denial, a repetition of the slander may be shown within the time alleged in the complaint.
    3. Same—Damages—not excessive.
    Where the case was tried twice, resulting each time in a verdict for plaintiff for §3,000, and on the second trial the charge saved defendant every possible right, the verdict will not be disturbed.
    Appeal from trial term, Kings County.
    Action by Christopher Clark against Richard K. Fox for slander. The slanderous words alleged to have been spoken of and concerning plaintiff and another were, “ They have been robbing me.” “ They robbed me, and Clark [plaintiff] robbed me right and left.” The action was tried once before, and plaintiff had a verdict of $2,000. From a judgment in favor of plaintiff for $2,000, and from an ‘order denying defendant a new trial, defendant appeals.
    Charles J. Patterson, for appellant; J. Stewart Ross, for respondent.
   PER CURIAM.

—The action is slander, alleged to have been spoken of and concerning the plaintiff in the months of March and April and at other times in the year 1893. The answer is a general denial. The proof upon the part of the plaintiff was of a substantial character, and tended to establish the allegations of the complaint. This proof was fully met by the denial of the defendant that he had spoken the Avords alleged. The issue Avas thus sharply defined betAveen the parties, and the finding of the jury thereon is conclusive. The defendant insists that error Avas committed in the rejection of evidence, upon the trial, and that the damages aAvartled are excessive. The first error claimed arose in this Avise : Defendant presented to plaintiff, upon cross-examination, a check drawn by plaintiff, and asked if he got the money on the check. Objection A\ras interposed, and the court said:

“ If this is to prove that he misappropriated the money, I will exclude it under the pleadings. Mr. Patterson: I Avill except to it. The Court: You say it is to prove that he misappropriated the money ? Mr. Patterson: Yes, sir. The Court: I Avill exclude it. (Defendant excepts.)”

The Avitness Avas then asked if he ever used money of defendant’s for his own purposes, and replied that he did not. Again, he Avas asked if he ever obtained the money upon the check, and upon objection the ansAver Avas excluded. It is clear that, this testimony was not admissible under the issue as joined, and the ruling of the court was correct. It was offered for the sole purpose, as stated by counsel, of proving a justification, and for no other purpose. But it is noAV asserted that it-Avas admissible upon the question of malice. It is not apparent how it bore thereon. If we could see that defendant spoke the words induced thereto by the fact that his money had been taken by the plaintiff, such evidence might be admissible upon the question of defendant’s malice. But here the ansAver made no such claim. The evidence was offered for an entirely different purpose, and defendant testified that he could not charge the plaintiff Avith having stolen from him. The fact, if it existed, Avas unknoAvn to defendant, and therefore could not have influenced him in uttering the slander. The evidence given of the utterance of the slanderous Avords. Avas within the time alleged in the complaint, and Avas, therefore, properly received. Distin v. Bose, 69 N. Y. 122. The damages are quite large, but Ave are unable to find legal ground for interference. Especially is this so as the jury nave, upon tAvo trials, found for plaintiff the same amount. The charge of the court saved to the defendant any possible right to which he Avas entitled.

The judgment and order appealed from should be affirmed,, with costs.

• All concur.


source: Caselaw Access Project

author: DAVIE, S.—The

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Executrix of the Will of Anna E. Smith, Deceased.

    (Surrogate’s Court, Cattaraugus County.
    September, 1896.)
    1. Executors and administrators—Funeral expenses.
    A burial casket, selected by an executrix, is chargeable against the estate of decedent, though decedent’s husband approved the selection.
    1. Same—Evidence—Admissions.
    Testimony that a married woman said “that she wanted him [her physician] well paid ; she should see that he was well paid,"—in the absence of other evidence is sufficient to establish a claim against her separate estate for medical attendance.
    John J. Inman, for executrix; W. G. Laidlaw, for creditors; W. K. Harrison, in pro. per.
   DAVIE, S.—The

—The decedent was a married woman, residing with her husband, Edwin Smith, at the time of her death. The executrix is a sister of decedent, and the residuary legatee under her will. The account filed shows the balance in the hands of the executrix of $3,189.32, out of which are to be paid the expenses of this accounting, two legacies, amounting to $225, and the debts hereinafter referred to. The remainder of the estate belongs to the executrix as such legatee.

The funeral expenses of decedent, to the amount of $125, have not been paid, and the single question relating thereto is whether the executrix must pay the same out of the funds of the estate, or whether the undertaker must look to the husband therefor. After the death of the decedent the undertaker was called to her residence, and the executrix selected a casket from a book of designs, inquired the price, and ordered a polished box for the same. The husband was present, and approved of the selection. Nothing was said about who should pay the bill. Under the decisions it is apparent that this bill must be paid out of the funds of the estate. Reasonable and necessary expenses of interment, though, strictly speaking, not a debt of the decedent, are a charge against the estate. Patterson v. Patterson, 59 N. Y. 574; Laird v. Arnold, 25 Hun, 4; Id., 42 Hun, 136; McCue v. Garvey, 14 Hun, 562. Distribution of the estate cannot be ordered, nor the executrix discharged, until this charge upon the estate is satisfied.

Three other bills have been presented to the executrix, and disallowed by her. The executrix and each of the creditors have duly consented that these claims might be heard and determined by the surrogate on judicial settlement. Code Civ. Proc. § 1822. The first of these claims is that of Dr.Williams, for services rendered by him for decedent during her last illness, and amounting, as is claimed, to the sum of $462. On the 14th day of September, 1894, the decedent received a fracture of one of her limbs. The doctor attended, her and reduced the fracture, charging $50 therefor. She was also afflicted with a valvular trouble of the heart, which seems to have been aggravated by her injury, and" became gradually worse to the time of her death, December 26th of the same year. The doctor testified, without objection, that he attended her from the time of her injury to the date of her death, making four visits each day. On his cross-examination he testifies as follows:

“ I understood this case fully myself. Did not regard her heart trouble curable. I usually go, when I think I ani needed in taking care of my patients, or when I am sent for. I ivas not sent for on every occasion that I visited deceased, but ivas very often. Often was sent for nights. The number of visits I make is regulated by the necessities of the case. Ordinarily, Avhen I visit a patient every day, I consider them very sick. I cannot tell of any other patient whom I visited four times a day for so long a time. I went more than four times each day, but did not charge for any more than four. My usual price anywhere in the village is a dollar a visit.”

The first question which arises with reference to this bill is Avhether the estate is liable at all or not. The primary liability for necessaries furnished the wife rests upon the husband. In the absence of an express agreement on the part of the Avife to pay, the husband alone is liable. Byrnes v. Rayner, 84 Hun, 199; 32 N. Y. Supp. 542; Webber v. Spannhake, 2 Redf. Sur. 258; Potter v. Virgil, 67 Barb. 578; Arnold v. Allen, 9 Daly, 198. Such promise cannot be inferred from the fact that such services Avere rendered upon the request of the wife. In re Shipman’s Estate, 22 Abb. N. C. 289; 5 N. Y. Supp. 559 ; Crane v. Baudouine, 55 N. Y. 256. But a married woman may render herself and her separate estate liable, even for necessaries, by an express agreement. Byrnes v. Rayner, supra; Ehrich v. Buci, 7 Miscc. Rep. 118, 27 N. Y. Supp. 247 ; Laws 1884, c. 381, par. 1, as amended by Laws 1892, c. 594. The only proof of an express agreement on the part of decedent to pay for these services comes from the wife of Dr.Williams. She testifies that she called upon decedent shortly after her injury, and that decedent then said to her that she had told the doctor that she Avould pay him well; that such conversation took place a few days after decedent was hurt. On her cross-examination this witness testified as follows:

“ Q. Who first spoke of the matter of pay, you or Mrs. Smith ? A. Mrs. Smith spoke of it herself during the conversation. Q. Give her language, if you ean. A. She was telling Avhát good care the doctor, was taking of her, and she wanted him Avell paid. She should see that he was well ¡laid. Q. ThatAvas all the conversation ? A. She wanted him to come Avhenever he was sent for, for Mr. Smith might not come for him. She wanted good care, and Avanted him to come whenever sent for, whether the nurse or Mr. Smith came, and she herself would see that he was well paid, and said she had told him so., Q. Say when she told him ? A. When she first employed him, when she was first hurt; said she informed him she would pay him well.”

It is very unsatisfactory to predicate a liability against an estate upon proof of a single admission of this character, but Mrs. Williams was evidently a fair and candid witness. Her evidence is uncontradicted, and proves the fact that such admission was made by the decedent. This admission cannot be ignored. It has some probative force in establishing a promise on her part to pay. The declaration of an intestate, Binding him or impairing his estate, may be given in evidence against his personal representatives in all cases where they would have been competent against himself, if he had been living and a party to the action. Terwilliger v. Benefit Ass’n, 83 Hun, 320 ; 31 N. Y. Supp. 938 ; Hurlburt v. Hurlburt, 128 N.Y. 420, 40 S. R. 436; Steinhausen v. Accident Ass’n, 59 Hun, 336; 36 S. R. 70.

Dr. Jackson testified that the services of Dr. Williams in reducing the fracture of decedent’s limb was worth the amount charged. Aside from that, the evidence of the claimant in regard to the value of his services is entirely uncorroborated. Is his expression of opinion of the value of such services conclusive? He has charged $412 for attending deceased, four visits each day for 103 days, not missing a day or a visit, attending a patient afflicted with an incurable disease, giving but little medicine, calling two other doctors from Springville very often for counsel and advice. In view of all these facts, I am impressed with the belief that the charges are exorbitant, and ought not to be allowed in full. The court have quite distinctly held that, where the value of services is involved, the testimony of expert witnesses is not controlling. Reves v. llyde, 14 Daly, 431; Muller v.- Ryan (City Ct. N. Y.) 2 N. Y. Supp. 736; Head v. Hargrave, 105 U. S. 45. From a careful consideration of all the facts and circumstances attending the rendition of these services, the nature of decedent’s illness, and-the manner in which the charge was made or formulated,— that is, the doctor residing very near her, and calling in to see her when he desired, then making a uniform or average charge of four visits a day at a dollar each,—I am of the opinion that the sum of $350 would be a very liberal allowance for his services, and that he ought not to be permitted to recover any larger sum from the estate.

The other two claims presented are those of Dr. Jackson for $235, and of Dr. Stanbro for $260. One item of Jackson’s claim is for making an examination of the decedent for the purpose of preparing a certificate of her inability to attend the trial of an action as a witness, and for which a charge is made of $10.' That charge is sufficiently established by the evidence. The balance of his claim, as well as that of Dr. Stanbro, is for medical attendance rendered by these physicians for decedent by way of counsel with the attending physician, Dr. Williams. These claimants each resided at the village of Springville, about-15 miles from decedent’s residence. Jackson charges for 15 consultations, and Stanbro for 1Y consultations, at $15 each. Stanbro also charges for an examination of the decedent for the purpose of making a certificate as above stated, $5.25. This latter item is apparently well established. JSTo question arises, under the evidence, in regard to the express agreement on the part of the decedent to pay for these services, for Dr. "Williams testifies that the decedent requested him to secure these physicians for the purpose of consultation, and instructed him to tell them that she would pay them for their services; but the only question arises in relation to the reasonableness of their charges. Under the authorities above cited, we are not bound by their expression of opinion as to the value of such services. At the time of these various consultations, each of these doctors was in attendance upon an invalid sister of the decedent, residing with her. They made the same charges against this sister,—that is, $15 for each visit,—that they had made against the decedent. The suggestion already made regarding the decedent’s condition and the character of her disease has an important bearing upon the question of the necessity of these repeated consultations and the value of the services rendered. I am satisfied, from all the evidence, that $10 a visit is all that should be allowed. This makes the claim of Dr. Stanbro $1Y5.25, and that of Dr. Jackson. $160; and to that extent their respective claims are allowed to be paid out of the funds remaining in' the hands of the executrix.

Ordered accordingly.


author: DAVIE’S.

text:
    In the Matter of the Probate of the Will of Joseph Henry Deceased.
    (Surrogate’s Court, Cattaraugus County.
    September, 1896.)
    1. Wills—Knowledge by testator op contents—Execution.
    Knowledge of the contents of a will is presumed where the will was prepared by an attorney at the home of testator, who was writing on the will in testator’s presence when the witnesses arrived, and the will was signed by two witnesses, one of whom was testator’s physician, who testified that the attorney read aloud the attestation clause, in the presence of testator and witnesses, and that testator arose from liis bed, walked to the table, signed the will, acknowledged it as his last will, and requested the witnesses to sign it, which they did, in his presence and in the presence of each other,—though there is no direct proof that the will was read to the testator, or that he was fully apprised of its contents.
    2. Same—'Testamentary capacity—Statement.
    A testator possessed testamentary capacity where he was able to personally conduct his store in a successful manner prior to and for several months after making his will, and his general conduct was such as not to excite attention, though he occasionally talked disconnectedly, and made mistakes in making change, and overlooked cash payments, and sold goods for less than their value, and spoke of his competitors as the “ring” who had combined to rob him, and manifested his eccentricities intensified by advancing age.

      A. J. Knight, G. M. Rider, and Wm. G. Laidlaw, for proponent. J. H. Waring and G. E. Spring, for contestants..
   DAVIE’S.

The contestants in this case are minor grandchildren of the testator, and legatees under his will. The objections filed to the probate of the will allege—First, a failure to comply with the necessary statutory requirements in the formal execution of the will; second, that the will was procured by undue influence; and, third, that the decedent, at the time of its execution, did not possess testamentary capacity. In view of the fact that 25 witnesses were called and examined on behalf of the proponent, and 40 on behalf of the contestants, no satisfactory analysis of the entire evidence can be presented in this decision; yet each of these three propositions will be considered to some extent.

The will bears date and was executed on the 8th day of January, 1894. The testator died at the age of about 80 years, on the Ith day of February, 1895. The will was prepared at the residence of the testator by an attorney of experience and integrity, who firas present and superintended its execution. One of the attesting witnesses was the attending physician of the testator. He testified, in substance, that, after the completion of the drawing of the will, the attestation clause was read over by the attorney in the presence and hearing of the testator and the two witnesses; and that the testator arose from his bed, walked to the table, signed the will, acknowledged it to the witnesses as and for his last will and testament, and requested them to sign it as witnesses, which they each did, in his presence and in the presence of each other. The chief criticism, however, in relation to the manner of the execution of the will arises from the fact that there is no direct proof that the will was read to the testator, Or that he was fully apprised of its contents. The attorney who prepared the will was not examined as a witness upon this subject. The attesting witnesses each testify that some Avriting was done by way of preparing the will after their arrival, and that the will was not read in their presence. It should, of course, be made to appear that the testator knew and approved of the contents of the will, and its force as a testamentary act. Williams, Ex’rs (6th Am. Ed.) 21; Rollwagen v. Rollwagen, 63 N. Y. 504. In those cases where, in consequence of the infirmities of the testator, his impaired capacity, or peculiar circumstances attending the transaction, the usual inferences cannot be drawn from the mere formal execution of the will, additional proof, either direct or inferential, is necessary showing that the testator’s mind accompanied the testamentary act. Weir v. Fitzgerald, 2 Bradf. Sur. 42. The attesting witnesses testify that, at the time of their arrival, the attorney was sitting at the table, Avriting, and that the testator was upon the bed, four or five feet from him; that other papers, deeds, and mortgages were upon the table. The testator was not only able to converse intelligently, but to walk unassisted from the bed to the table, and write his name at the end of the will. Taking into consideration all the facts and circumstances attending the execution of the will, the mental condition of the testator as more fully referred to hereinafter, it may be reasonably inferred that testator had been fully apprised of the contents of the will before the arrival of the witnesses. Nexsen v. Nexsen, 3 Abb. Dec. 360; Worthington v. Klemm, 144 Mass. 167, 10 N. E. 522; Vernon v. Kirk, 30 Pa. St. 218.

There is no evidence directly supporting the allegation of undue influence. Under the peculiar circumstancés of this case, the question of undue influence and testamentary capacity necessarily blend together. While it is not claimed on part of the contestants that the evidence shows any direct acts of coercion, it is asserted that the testator was so enfeebled mentally and physically as to be unduly influenced by the very nature of the relations existing between him and the principal legatees. The issue of undue influence is quite distinct from that of testamentary capacity; yet the two are commonly found united and necessarily considered together. Some authorities regard a partial incapacity as a prerequisite to the existence of undue influence. Schouler, Wills (2d Ed.) § 226. The condition of the testator’s mind will often determine whether a set of circumstances, ambiguous in their nature, amount to undue influence or not. The mental and bodily health of the testator will contribute to the determination of the question of whether or not he acted as a free agent, 27 Am. & Eng. Enc. Law, 505. So the principal question involved in this contest is as to whether or not, at the time of the execution of the will, the testator possessed testamentary capacity.

Before referring to the facts disclosed by the evidence, it may be well to call to mind the general rules established by a long line of decisions, determining what grade or degree of mental capacity is requisite to the due execution of a will. It is essential that the testator possess sufficient capacity to comprehend perfectly the condition of his property, his relation to the persons who were or should or might have been the objects of his bounty, and the scope and bearings of the provisions of his will. Delafield v. Parish, 25 N. Y. 9. He should be able to collect in his mind, without prompting, the elements of his business to be transacted, and hold them there until their relation to each other can be perceived, and a rational judgment formed in respect thereto. Van Guysling v. Van Kuren, 35 N. Y. 70. Again, it is said that no presumption against the validity of a will exists because made by a man of advanced age, nor can incapacity be inferred from an enfeebled condition of mind or body. Horn v. Pullman, 72 N. Y. 276 ; In re Snelling, 136 N. Y. 515, 49 S. R. 695; In re Pike’s Will, 83 Hun, 327, 64 S. R. 375; In re Flansburgh’s Will, 82 Hun, 50, 63 S. R. 499.

The law does not attempt to define any particular grade of mental ability or acumen necessary to qualify one tó make a will, leaving the question to be determined very largely from the particular circumstances of each individual case; yet a careful examination of the general propositions enunciated by the authorities cited will furnish a very safe guide for the disposition of the case at bar. The testator had been for many years prior to his death a farmer in the town of Farmersville, and, as such, quite actively engaged in business. For some time, however, prior to his demise, he had been engaged as a merchant at the village of Farmersville Station. He evidently was a man, when in his prime, of vigorous intellect, of strong will, industrious, thoroughly honest, but somewhat rough and abrupt in his manner of speech. He had succeeded in accumulating property to quite an extent, which consisted largely of real estate. During the last few years of his life, he had become to some extent enfeebled in body and mind, and his. peculiarities of temperament much more pronounced; and the evidence on part of the contestants relates largely to instances, of exhibition of such peculiarities. The evidence shows that near the close of the year 1893 he had become somewhat weak and infirm. He complained of being unable to get about with comfort. He was untidy in his personal habits, and careless in his dress, and indifferent to some extent to his personal appearance. Certain of the witnesses speak of him as “ looking wild,” and talking disconnectedly and about "unimportant matters. He cherished a very, pronounced hatred against his competitors in the mercantile business, designating'them as the ring,” saying they had combined to rob him. On one occasion, in December, 1893, he spoke of his sons being engaged in haying. He occasionally made mistakes in making change, and at times sold goods for less than their value. He was to some extent forgetful, overlooked cash payments made to him on sale of goods,-and at times failed tó recognize his acquaintances, and on one or more occasions asked persons calling upon him if they had come to take him to the poor-house. Yet the evidence clearly shows that these transactions were isolated and occasional. His 'general line of conduct was not of a character to excite attention or comment. His lack of memory, irritability, and erroneous impressions were only such as are commonly discovered in persons of advanced age. For some considerable time after the execution of the will, testator continued bis business personally, participating to some extent in carrying on his trade at the store. He sold goods, made change, settled with his customers, ordered goods for the store, and evidently exercised good judgment and discretion in making such orders. In fact, the evidence on part of the proponent makes it quite clear that, for several months after making the will, the testator’s general line of conduct was entirely rational. The expert testimony regarding his mental condition comes from Dr. Smith, on part of the proponent, and Drs. Kahls and Eddy, on behalf of the contestants. Smith had had. ample opportunity to form an intelligent opinion of testator’s mental and physical condition from a long personal intercourse with him. He had known testator since the month of August, 1892, lived near him, was his attending physician, and had visited him professionally in the morning of the same day the will was drawn. Testator was, and for several years had been, afflicted with valvular disease of the heart. His death was occasioned by this disease, and congestion of the lungs resulting therefrom. Smith testified, among other things, as follows:

“ Q. At the time you attempted the execution of the will, state whether there was anything about the physical condition of deceased that would render him mentally incompetent. A. Mo, sir; I don’t think there was, Q. Would there be, in the nature of the diseases he suffered from, anything to produce mental difficulty ? A. Mothing only what lie would get from general weakness.”

The examination of this witness was very exhaustive on both his direct and cross-examination, and while he states that, at the time of the making of the will, testator was somewhat enfeebled mentally, he asserts positively and unequivocally that he was still of sound mind and memory. The contestants’ physicians did not assume to have any personal knowledge of the testator’s condition. They gave their opinion of his mental condition upon a hypothetical statement of facts assumed to be established by the evidence on behalf of the contestants, excluding, however, the facts established by the evidence on behalf of the proponent. While these experts are gentlemen of integrity and ability, their evidence, being a mere expression of opinion, predicated upon certain facts selected from the entire volume of evidence the most favorable to the contestants, is not as satisfactory as the evidence of Smith, who speaks from actual knowledge and personal observation.

It can hardly be contended that any of the mistaken impressions entertained by the testator, especially in reference to the existence of the “ ring ” organized to ruin his business, amounted to what is known in law as a delusion which might incapacitate him from making a will. A delusion of that character has been defined as the conception of the existence of something extravagant, which has no existence whatever, but of which the person entertaining it is incapable of becoming permanently disabused by argument, reason, or proof. 25 Am. & Eng. Enc. Law, 982; Stanton v. Wetherwax, 16 Barb. 259. A mere mistake of fact, which is the result of false evidence, is not such a delusion. Schouler, Wills (2d Ed.) § 146; Middleditch v. Williams, 45 N. J. Eq. 726,17 Atl. 826. Again, it has been held that one whose mind is perverted by insane delusions, with reference to one of many subjects, however unreasonable and absurd, may, nevertheless, make a valid will, provided the provisions thereof .are not influenced by such delusions. 25 Am. & Eng. Enc. Law, 983. The cases illustrative of this proposition are numerous. In Re Smith’s Will, 52 Wis. 543 ; 8 N. W. 616, and 9 N. W. 665, the testator was a spiritualist, and claimed to have received a message from his deceased wife, telling him to marry the appellant beneficiary, and who frequently consulted mediums about his business. In Brown v. Ward, 53 Md. 377, the testatrix was also a spiritualist, who believed that she communicated with the spirits, could cure the sick, and foretell future events. In Robinson v. Adams, 62 Me. 369, the testatrix believed that her son-in-law was under the control of an evil spirit. She kept a book of spiritual communications, which she considered of great value. In Lee v. Lee, 4 McCord, 183, the testator believed that all women were bewitched, would not sleep in a bed made by a woman, and Imagined himself engaged in constant warfare with evil spirits. In Kelly v. Miller, 39 Miss. 17, the testator believed in witches and conjurers, and that his mother was bewitched, and that his horse and gun were bewitched, and that, when he broke bread at the table, it turned into blood. In Bonard’s Will, 16 Abb. Prac. (N. S.) 128, the testator firmly believed in the doctrine of metempsychosis, and he bequeathed an estate of $150,000 to the American Society for the Prevention of Cruelty to Animals. In Re White, 121 N. Y. 406; 31 S. R. 528, the testator entertained an intense dislike of freemasonry, and of a son because he was a freemason. In all of these cases the wills were sustained. Unusual and irregular habits, known as eccentricities,” do not incapacitate one from making a will. Redf. Wills, 71; Schouler, Wills (2d Ed.) § 144; Brick v. Brick, 66 N. Y. 144.

From a careful consideration of all the evidence, I am firmly of the opinion that the will ought to be admitted to probate. Its provisions are apparently reasonable, and to some extent in conformity with testator’s previously expressed intent. While the will discriminates to some extent in favor of the oldest sons of the testator, such discrimination does not seem to be entirely without reason. A decree will be made admitting the will to probate, and granting letters thereon to the executor named in the will.

Decreed accordingly.


author: ARNOLD, S.

text:
    In the Matter of Petition by Administrator of John T. Thompson for Leave to Mortgage, etc.
    (Surrogate’s Court, Otsego County.
    September, 1896.)
    Wills—Consteuction—Charging debts on real estate;
    Testator bequeathed to his wife absolutely one-half of all his personal property, “after payment of * * * debts and funéral expenses.” After disposing of portions of his real estate, he devised to his son “ all the rest and residue of my real estate, wherever situated, and one-half of my personal property, after.paying my just debts and funeral expenses.” Held, that it was not testator’s intention, in case of a deficiency of personal property, to charge the real estate devised to his son with all the debts arid funeral expenses, but that all the real estate should bear its proportion.
    M. E. Baldwin, for petitioners; C. F. Lane, for Jay T. Thompson; J. B. Conkling, for James M. Thompson.
   ARNOLD, S.

—On the 16th day of May, 1889, one John T. Thompson made a last will and testament. The following is a ■copy of the first clause:

First. I give, devise, and bequeath unto my beloved wife, Sally Thompson, the use of my homestead property, containing about seventy-five acres of land, with all the buildings thereon, and all my household furniture, during her natural life. Also, I give to her absolutely one-half of all my personal property after the payment of my just debts and funeral expenses; the same to be in lieu of dower in my real estate and distribution of my personal estate under the statute.”

The testator, by the second clause of his will, gives the use of certain real estate to his daughter-in-law, Helen C. Thompson, during her lifetime; the remainder to his grandson, Jay T. Thompson. By the third and fourth clauses of his will, he devises certain real estate to his grandson Jay T. Thompson.

The following is a copy of the fifth clause of said wifi:

“ Fifth. I give, devise, and bequeath unto my son, James M. Thompson, all the rest and residue of my real estate, wherever .situated, and one-half of my personal property, after paying my just debts and funeral expenses. But in case my said son and his daughter, Ellen M. Thompson, should die without issue or lineal descendants, then, and in that case, the said property that is left at the decease of the survivor to go to my heirs at law.”

Sally Thompson, the wife of J oh n T. Thompson, died on the Yth day of March, 1892. All the other persons named in said will are still living, and James M. Thompson has one child. John T. Thompson died December 26, 1892. His said last will and testament was duly admitted to probate in the surrogate’s court of Otsego county on the 10th day of January, 1893. It now appears that the personal property of JohnT. Thompson, at the time of his death, was insufficient to pay his debts and funeral expenses. The administrators with the will annexed now petition for leave to mortgage, lease, or sell the real estate of decedent for the purpose of paying his debts. The real estate devised by the will has been appraised as follows: (1) The homestead devised by the first and sixth clauses at $6,000; (2) the devise to J. T. Thompson at $8,000; (3) the devise to James M. Thompson at $7,210; (4) the debts of the decedent amount to about $4,500. The special guardian for the infant, Jay T. Thompson, claims that, by the fifth clause of the will, the devise to James M. Thompson is expressly charged with the payment of this debt, and that the land thereby devised must be first disposed of, and he asks to have this proceeding dismissed. On the other hand, it is «claimed by the administrators with the will annexed that there is no charge created by the will, and that all real estate owned by the decedent at the time of his death must bear equally the burden of his debts.

Under the general rule of the English and American law,, the order of marshaling' assets in the payment of debts is to' apply the assets as follows: (1) The general personal estate; (2) assets especially devised for the payment of debts; (3) assets 1 descended; (4) assets devised though generally charged with the payment of debts. Ger. Beal Estate (4th Éd.) p. 368. By the provisions of the Code of Civil Procedure, where several distinct parcels are to be sold for the payment of debts, they must be sold in the following order : (1) Property which descended to the decedent’s heirs, and has not been sold by them ; (2) property so descended which has been sold by them; (3) property which has been devised, and has not been sold by the' devisee; (4) property so devised which has been sold by the devisee. Code, § 2763. By the common-law, land descended or devised was not liable to simple contract debts of the ancestor or testator, nor was the heir bound even by a specialty, unless he were expressly named. This led the English courts to hold, upon very slight language, an intention on the part of the testator to charge his real estate with the payment of his debts. They held the real estate devised liable to simple contract debts, under a direction in the beginning of the will that debts and funeral expenses should be first paid. And it seems to have been the settled doctrine that in such case the debts constituted, by implication, a charge on the real estate, whether the direction be in the introduction or any other part, of the will, and that all the decedent’s debts be paid first.. Williams v. Chitty, 3 Ves. 545 ; Shallcross v. Finden, Id. 738 ; Newman v. Johnson, 1 Vern. 45; Trott v. Vernon, 2 Vern. 708; Kidney v. Coussmaker, 1 Ves. Jr. 436; Brudenell v. Boughton, 2 Atk. 267. But the reason for the English rule has never existed in this state. Since 1786 a law has been on our statute books making the heirs of an intestate and the heirs and devisees of a testator respectively liable for the debts of the decedent arising by simple contract or by specialty, to the extent of the estate, interest, and right in the real property which descended to them from, and was effectually devised to them by, the decedent. 1 Rev. Laws, p. 316, § 1; 2 Rev. St. (1st Ed.) p. 452, §§ 32, 33 ; Code Civ. Pro. § 1843.

There is another distinction to be noted in the cases. Most cases cited by counsel for contestants are cases in which an action has been brought to charge real estate with thepayment of a legacy. As is said by Judge Folger in Hoyt v. Hoyt, 85 N. Y. 146 : “ It is but to utter common language to say that legacies of money are to be paid from personal property, and that, if the personal estate is insufficient therefor, the legacies are to abate, unless the real estate is charged with the payment of them.” This rule of law has led the courts in many cases to hold that the language of a testator created a charge on his real estate for the payment of legacies, where the courts would not hold that the same language created a charge on the real estate for the payment of his debts. In the case of legacies, courts will assume that no honest man will make a bequest unless he intends that it shall be paid; and, to prevent a legacy from abating, the courts have diligently searched for language in the will indicating an intention on the part of the testator to charge the payment of the same upon his real estate. In some cases they have held upon very slight language that a charge upon the real estate had been created. But no reason exists in this state for such a rule of construction as to the payment of debts. The courts have established the rule that tire real estate of the decedent is never to be held to be charged with the payment of debts, unless the intention of the testator to so charge it is expressly declared, or can be fairly and satisfactorily inferred from the language and disposition of the will. Lupton v. Lupton, 2 Johns. Ch. 614.

In Re City of Rochester, 110 N. Y. 166; 17 S. R. 146, Judge Gray, in writing the opinion of the court, says :

“ It is not sufficient that debts or legacies are directed to be paid. That alone does not create the charge, but they must be directed to be first or previously paid, or the devise declared to be made after they are paid. Courts should be slow to construe an intention to charge the payment upon the devise of real estate from the use in a will of formal words, or the presence of commonly employed phrases.”

Reynolds v. Reynolds’ Ex’rs, 16 N. Y. 257; Morris v. Sickly, 133 N. Y. 456; 45 S. R. 735; Brill v. Wright, 112 N. Y. 129 ; 20 S. R. 305; Cunningham v. Parker, 146 N. Y. 29 ; In Re Duffy’s Estate (Sup.) 18 N. Y. Supp. 724 ; Myers v. Eddy, 47 Barb. 263; Shulters v. Johnson, 38 Barb. 80; Ilauselt v. Patterson, 124 N. Y. 349, 36 ; S. R. 354 ; 3 Pom. Eq. Jur. §§ 1244, 1245 ; In Re Bingham, 127 N. Y. 296; 38 S. R. 765.

The language employed by the testator in the fifth clause of the will, taken alone, might be sufficient to sustain a holding that the property devised by that clause was charged with the payment of decedent’s debts. Buckley v. Bupkley, 11 Barb. 43. But it is a well-settled rule of construction that all of the language employed by a testator must be considered together, in ascertaining nis intention. The fifth clause of the will cannot be read alone ; it must be read in connection with the first clause. Beading these two clauses together, it seems to me too evident to admit of contradiction that the testator believed, at the time that he made this will, that his personal property was amply sufficient to pay all his debts and funeral expenses ; and it seems to me equally plain that the decedent’s scheme was that his debts and funeral expenses should .be paid from his personal property ; that, after his debts and funeral expenses had been fully paid, he desired to divide the balance of his personal property equally between his wife and his son, James H. Thompson. By the first clause of his will, the testator gives to his wife the use of the homestead property during her lifetime. Then he directs :

“ Also, I give to her absolutely one-half of all my personal property after the payment of my just debts and funeral expenses ; the same to be in lieu of dower in my real estate, and distribution of my personal estate, under the statute.”

No evidence has been given as to the amount of personal property, owned by decedent* at the time of making the will, or as to the amount of his indebtedness at that time; but it must be presumed by the court that the testator was honest in the expressions he used in his will, and that he meant them to have some meaning. The widow had a valuable right of dower, but, under the will, she is to accept a life use in the homestead and one-half of his personal property, after the payment of his debts and funeral expenses, in lieu of dower and her distributive share in his personal estate. It could not be argued that the language in the first clause created any charge on the real estate devised to the widow during her lifetime. I think that the testator contemplated exactly the same condition and result by the use of similar language in the fifth clause; that he had in mind simply that his personal property should be applied to the payment of his debts and funeral expenses, and that the balance should be equally divided between his wife and this son. If it were not for the conditions created by the first clause of this will, I should hold that the language <c after paying my just debts and funeral expenses,” in the fifth clause, related to both real estate and personal property,-and that it created a charge upon said real estate. 2 Jarm. Wills. • (6th Ed.) 544; Id., Eng. paging 1407. But, reading this language in connection with the first clause, I think that that language simply referred to the personal property, and that it created no charge upon the real estate devised in the fifth clause, and that all the real estate left' by decedent must bear its proportion of his debts.

The objections filed by contestants are hereby ‘dismissed, and the decree asked for by the petitioner may be entered.


author: BETTS, S.

text:
    In the Matter of the Probate of the Will of William H. Gedney, Deceased.
    (Surrogate’s Court, Ulster County.
    May, 1896.)
    1. Wills—Execution—Signature at end.
    A will is not signed at the end (3 Rev. St. p. 68, § 40) where testator’s name appeared at the end of the disposing portion, and is followed by the clause appointing executors, the date, and the attestation clause, for which the names of the witnesses are subscribed.
    3. Same-—Intent oe testator.
    The intention of the legislature, and not of testator, governs in construing the proper execution of wills.

      Proceeding for the probate of the will of William. H. Gedney, deceased.
    George William Gedney, in pro. per.
   BETTS, S.

—The proceeding'to prove this paper was brought here on the petition of George William Gedney, a nephew of deceased. William H. Gedney died at the town of Marlborough, in this county, on the 18th day of January, 1896. He left, him surviving, a brother, George W. Gedney, who resided at Milton, in this county. George W. Gedney had two children living at the time,—George William Gedney, a son, and Mary Eleanor Gedney, a daughter, nephew and niece, respectively, of William H. Gedney. Upon the filing of the petition, February 26,1896, verified by the said George William Gedney, citations were issued out of this court on that day to said George W., Mary Eleanor, and George William Gedney, to attend the probate of said will on the 9th day of March, 1896, On the 3d day of March, 1896, George W. Gedney, the brother of William EL Gedney, died at Milton, in this county.

The paper purporting to be the last will and testament of William H. Gedney is very brief, and is as follows:

“ I, William H. Gedney, of the town of Marlborough, county of Ulster, and state of Hew York, do hereby declare and publish this as my last will and testament. I hereby devise and bequeath to my brother, George W. Gedney, all my property, both real and personal, to have and hold during his natural life, and at his death to be divided equally between his two- children, George William Gedney and Mary Eleanor Gedney, each to share and share alike. In witness whereof, I have hereunto set my hand and seal.
[Signed] Wm. H. Gedney. [L. S.]
I do hereby constitute and appoint George W. Gedney and George William Gedney as the executors of this, my last will and testament.
“ Dated October 19, 1895.
“ Signed and sealed in the presence of the following named witnesses, at the date thereof, subscribed by William H. Gedney, the testator therein named, in the presence of us and each of us, and at the time of making such subscription it was declared by the said testator as his last will and testament.
“ Edward M. Craft, Milton, Ulster Co., N. Y.
“ Eleanor M. Southard, Milton, Ulster Co., N. Y.”

It will be seen by an inspection of the will that the signature of the deceased is in the middle part thereof, and that the clause appointing executors and the date follow'the signature. This clause was followed closely by the attestation clause, which was signed at the end by the witnesses to the will. Upon the attention of George W. Gedney, the attorney, and one of the executors, being called to the position of the signature, he stated that the matter was satisfactory, and that no objection would probably be made to the probate of the will. Later, however, he filed a brief here, in which he asked that the will be not admitted .to probate.

Under the peculiar operation of the taxable transfer law, it makes a difference of several hundred dollars to this nephew and niece of the deceased whether they take this property as remainder-men under this alleged will, or whether it is inherited by their father under the statute of descent and distribution, and they take from him as his heirs at law and next of kin.

The requirements of the Revised Statutes as to the proper execution and attestation of a will, so far as they are necessary for deciding the question here raised, are as follows :

££ Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner : (1) It shall be subscribed by the testator at the end of the will. * * * (4) There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will at the request of the testator.” 2 Rev. St. p. 63, §40.

The question now presented for my determination .is, is this a proper signature by William H. Gedney to the paper that he intended for his will ? In other words, is his signature at the end of the will ? The only evidence offered here was the ordinary statutory proof as to the execution of the will. One of • the witnesses, Eleanor M. Southard, is dead, and her signature and the signature of the deceased were proved by other witnesses, in addition to the usual testimony of the surviving subscribing witness.

A precisely similar case to this was brought before the surrogate of Monroe county in 1887, in Re Nies’ Will, reported in 13 N. Y. St. Rep. 756. The surrogate of that county, in a well-considered opinion, held that the will could not be admitted to probate, and that decision does-not appear to have been ealed from.

In Sisters of Charity v. Kelly (decided by the court of appeals in 1876), 67 N. Y. 409, the deceased signed his name in the middle of the clause ajspointing an executor, and also in the middle of the attestation clause. The witnesses signed their names immediately following the will, and not at the end of the attestation clause. The opinion therein was written by Judge Folger, was concurred in by all the court, and they held that the paper could not be admitted to probate. Judge Folger says:

“ It may not be said that the end of the will is at the place where the name £ J. Kelly ’ appears. There follows it quite an important part of a will,—the nomination of an executor, and the revocation of former wills. It is said that the whole testamentary disposition preceded that name, and that, on rejecting the part naming an executor, there can be appointed an administrator with the will annexed. We cannot be sure that such was the purpose of the testator. There are cases in which quite a material part of the intention and forecast of the testator centers in the selection of persons to execute his testamentary purpose ; where important trusts are created in behalf of natural persons, important charitable institutions are founded, or other large and far-reaching designs are shaped, and the administration and execution of them committed to the executors of the will, who are not named until the concluding clause of it. Indeed, it is not an unknown thing that the sole object of the making of a last will has been to appoint an executor, giving no testamentary disposition of the estate, but leaving the executor to dispose of it according to the statute of distribution ; and such a will must be proved * * * Can we say that the end of the will has been found until the last word of all the provisions of it has been reached? To say that, where the name is, there is the end of the will, is not to observe the statute. That requires that, where the end of the will is, there shall be the name. It is to make a new law to say that, where we find the name, there is the end of the will. The instrument offered is to be scanned to learn where is the end of it as a completed whole, and, at the end thus found, must the name of the testator be subscribed. * * * The statutory provision requiring the subscription of the name to be at the end is a wholesome one, and was adopted to remedy real or threatened evils. It should not be frittered away by exceptions. While its provisions should not be carried beyond the policy of the framers of it, that policy should not be defeated by judicial construction.”

It ,was held in one of the leading cases on the four requisites prescribed by the statute for the formal execution ot wills (Remsen v. Brinckerhoff, 26 Wend. 325) as follows:

It is obvious that every one of these four requisites, in contemplation of the statute, is to be regarded as essential as another ; that there must be a concurrence of all to give validity to the act; and that the omission of either is fatal.”

It was held in Re Sanderson, 9 Mise. Rep. 574, that, where provisions in relation to the disposition of the estate intervene between the signature of the testator and the attestation clause, there is no subscription at the end of the will, as required by the statute.

Viewed in the light of these decisions and the plain words of the statute, it is evident that the paper offered cannot be admitted to probate as the last will and testament of William II. Gedney. In construing the proper execution of wills, it is not the intention of the would:be testator, but the intention of the legislature, which must govern. By the common law a man could not devise his lands. Wills, therefore, and testaments, rights of inheritance and succession, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them; every distinct country having different ceremonies and requisites to make a testament completely valid. 2 Bl. Comm. 12. The legislature, therefore, having-enacted laws governing the transmission of property to take-effect at the death of the transmitter, those who desire to avail themselves of the law of wills must bring themselves within its provisions. The statute having prescribed that the signature-of the person making the will ana the subscribing witnesses shall be at the end of the will, there they must be found, and the witnesses and the would-be testator must agree as to where-the end of the will is. It will not do to allow the court to determine in every particular case what is a necessary part of the will, and what superfluous, nor to decide that the intention of the deceased can be effectuated by admitting that part of the paper propounded before his signature to probate as his will, and rejecting that which may follow. If so, we should have the will of the court, instead of the will of the deceased. It so* happens in this case that, by the death of the brother, the-property of William. H. G-edney, the deceased, will eventually be received by his nephew and niece, to whom he endeavored to -transmit the remainder by his paper writing bearing date-October 19, 1895. Too much care cannot be exercised by scriveners of wills in not only plainly expressing the desire and intention of the makers thereof, but also in themselves fully understanding the requirements of the proper execution of' wills, and of insisting that those requirements shall be fully complied with. Probate of the paper offered as a will of William H. Gedney is denied, and an order or decree may be-handed up to that effect.

Ordered accordingly.


author: RUMSEY, J.

text:
    In the Matter of Proceedings to Revoke Probate of the Will of Antoine Ruppaner.
    (Supreme Court, Appellate Division, First Department.
    Oct. 23, 1896.)
    1. Wills—Revoking probate—Limitation.
    Under Code Civ. Proc. § 2648, requiring a petition to revoke the probate of a will to be filed within one year after record of decree admitting will to probate, the time limited begins to run from the filing of the decree with the clerk, and not from the time it was actually recorded. 37 N. Y. Supp. 429, affirmed.
    2. Same—Omission op necessary parties.
    Failure to join necessary parties does not oust the court of jurisdiction, but merely renders the judgment inoperative as to the omitted party.
    Appeal from surrogate’s court, New York County.
    Proceeding to revoke probate of the will of Antoine Ruppaner. The petition was dismissed, and petitioner appeals.
    Isaac N. Miller, for appellant; E. C. Perkins, for respondent..
   RUMSEY, J.

—The petitioner, Barbara Ellensohn, on the 3cl •day of March, 1894, presented to the surrogate a petition for the revocation of the probate of the will of Antoine Ruppaner, deceased, pursuant to the provisions of section 2647 and the following sections of the Code of Civil Procedure. After hearing, the surrogate dismissed the petition, and from his decree to that effect this appeal is taken. The facts are not disputed. It appears that an application was made to the court of common pleas for the probate of the will of Antoine Ruppaner; the surrogate, for some reason, not being able to act in the matter. The proceedings in the court of common pleas were taken under the authority of section 2486 of the Code, as it stood before the amendment of 1895. Proceedings were had under that and subsequent sections in the matter, and on the 2d day of November, 1892, judgment was entered and recorded in the •court of common pleas, duly admitting the will to probate. Subsequently and on the 19th day of January, 1893, the judgment and the will were filed in the office of the surrogate of the ■county for record; and they were subsequently recorded, but not until after the 3d day of March of that year. The surrogate dismissed the petition in this proceeding for two reasons, one of which was that it was not brought within a year after the recording of the decree admitting the will to probate. We agree with the conclusion of the surrogate in that regard. The statute under which the proceedings for the probate of the will were had provides that a proceeding for probate taken in the court of common pleas must be entitled in that court, and the ' papers therein must be filed or recorded as in an action brought in that court. Code Civ. Proc. § 2490. Under that section the judgment of the court of common pleas directing the admission of the will to probate was required to be recorded in that court, and it was so recorded, as is found by the surrogate, on the 2d day of November, 1892. The statute pursuant to which this petition is brought requires that the petition must be presented within one year after the recording of the decree admitting the will to probate. Code "Civ. Proc. § 2648. The decree admitting the will to probate in this case was that one which was made by the court of common pleas and recorded on the 2d of November, 1892, and the year expired on the 2d of November, 1893, and the petition presented on the 3d of March, 1894, as this one was, was too late. The subsequent recording of the decree in the office of the surrogate was a matter of no importance in respect of this matter, and therefore it is unnecessary to examine the question whether, for the purposes of such proceeding as this, the decree is deemed tobe recorded when it is filed for record, or when the actual physical record takes place.

It was also made to appear in this matter that before the presentation of the petition an action had been begun by a person interested in the will of Antoine Ruppaner, pursuant to section 2653a, to determine its Amlidity. The parties to that action, including the petitioner, were also parties to this proceeding. That action went to judgment, and the result was that it was determined in that proceeding that the will was valid. The judgment in that action is relied upon by the respondents here, who were parties to it, as a bar against the right of the petitioner, who was also a party, to further proceed to test the validity of this will., That the judgment, under ordinary circumstances, would be conclusive as between Mrs. Ellensohn and all the other parties to it, and would determine-finally that the will was valid, is not disputed, but it is claimed by the petitioner here that the judgment is void because the court had no jurisdiction of the case. The reason assigned is that one Anna Kristof, who it is alleged was interested in the will, and therefore a necessary party, was not a party to the-action at the time the judgment was entered. For that reason it is asserted that the judgment was void. It is rather a novel proposition that the judgment of a court of general jurisdiction should be void, as between tho^e persons who were parties to the action in which the judgment was entered, because some other person, who should have been made a party, was not joined in the action. The very statement of the proposition would seem to be a conclusive answer to it. In regard to this judgment, however, the matter has been settled in the very action in which the judgment was entered, by the decision of this court (Keyes v. Ellensohn, 82 Hun, 13, 03 S.K. 227), where it was sought to set aside the judgment on account of its alleged invalidity because of the absence of Anna Kristof as a. party to the action. The court in that case held that there was jurisdiction to render the judgment, although Kristof might have been a necessary party, which was not decided. That decision is conclusive in this proceeding, and establishes that the judgment which was relied upon by the respondents here was a valid judgment, and consequently the determination in that judgment that the will was valid is a bar to the prosecution of this special proceeding by the appellant.

For these reasons the decree of "the surrogate must be affirmed, with costs to the respondents.

All concur.


author: BARRETT, J.

text:
    John H. Heller, Jr., et al. v. William Cohen.
    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    1. Deed—Clerical error in description.
    An error in describing premises as commencing at a certain distance from the “ northwest ” corner of certain streets will not affect the validity of the deed, where the balance of the description shows that “ southwest” was intended.
    2. Vendor and purchaser—Sufficiency of vendor’s title.
    A deed by a referee in a partition suit which correctly describes the premises intended conveys a good title, though the complaint and decree followed an erroneous description in the deed to a former owner which error was continued in subsequent deeds, where such former owner took possession of the premises under his deed, and devised it by a correct description.
    Appeal from special term, New York County.
    Action by John H. Heller, Jr., and William S. Heller, as executors and trustees of John H. Heller, deceased, against William Cohen. The complaint was dismissed and plaintiffs appeal.
    The action is brought to obtain specific performance of a contract to purchase real property. The contract was made December 4, 1893. By it, the plaintiffs, as executors and trustees of John H. Heller, deceased, having a power of sale under the will, agreed to sell, and the defendant to purchase, the folloAving described premises : “ Beginning on the southerly side of Grand street, at a point distant seventy-five feet eleven and one-half inches westerly from the corner formed by the intersection of the southerly side of Grand street Avith the Avesterly side of Chrystie street; running thence southerly one hundred and tAventy-five feet one inch ; thence westerly, parallel or nearly so with Grand street, tAventy-five feet one inch ;- thence northerly one hundred and twenty-five feet and threea inches, to the said southerly side of Grand street; and thence easterly, along said southerly side of Grand street, twenty-five feet, to the point or place of beginning; be all said several distances and dimensions more or less. The premises hereby intended to be conveyed being known and designated as and by the street number two hundred and forty-five Grand street, as noAV built upon and inclosed.” The premises consist of two plots, coming from different sources,—the first fronting on the south side of Grand street, between the BoAvery on the Avest and Chrystie street on the east, and approximately 25 feet in front and rear, and 100 feet in depth; the second adjoining this parcel on the rear, and approximately 25 feet square. The plaintiff’s chain of title to the first plot is as folloAvs : In 1810, John Lawrence conveyed to Thomas White a piece of land “ beginning at the distance of seventy-five feet from the northwest corner of First (noAV Chrystie) street on Grand street, and runs south one hundred feet, more or less to Isaac Berrian’s ground, by a straight line; then Avest tAventy-five feet, more or less, to Thomas White’s ground; then north one hundred feet, to Grand street, more or less; and then doAvn Grand street, to the place of beginning, twenty-fivTe feet, more or less.” By White’s will, probated in 1814, he disposed of considerable property on the south side of Grand street on- this block. He first devised to his grandson Thomas White a piece of land commencing at the corner of the Bowery and Grand street, fronting 75 feet on Grand street, and 50 feet deep. He next devised to his granddaughter Margaret White a. piece of land 26 feet 3 inches in front and rear, and 50 feet in depth, commencing at the easterly extremity of the preceding premises. He then devised to his granddaughter Ann White the premises “commencing in Grand street, at the easterly extremity of the last-mentioned lot, and running from thence easterly, along Grand street, twenty-five feet; from thence southerly, parallel to the Bowery, one hundred feet; and from thence westerly, parallel to Grand street, twenty-five feet; and from thence to the place of beginning.” This is the property in suit. Ann White intermarried with Mead Darrow, and in 1820 she and her husband conveyed it to William Schott, by the same description, as to metes and bounds, contained in the deed from Lawrence to White. The premises are, however, stated to be the same which were conveyed by that deed, and devised by White, the deed and devise being accurately described. Schott conveyed to Charles Speaight in 1821, by the same metes and bounds, and the same reference to the deed and dfevise. Thereafter Speaight died, intestate ; the property was partitioned; and the plaintiffs’ testator, John H. Heller, ■purchased it at the sale. The complaint and decree in the partition suit contain the same description, by metes and bounds, as the preceding deeds, but omit the reference to the original deed and devise. The referee’s deed, however, after reciting athe judgment, a sale thereunder at public auction, and confirmation of the report of sale, corrects the prior descriptions •by conveying the property: “ Beginning at the distance of seventy-five feet from the southwest corner of Chrystie (formerly First) street, on Grand street; * * * being the same premises of which Charles Speaight died seised; the said premises being the same as conveyed to the said Charles Speaight by William Schott, by deed dated May 1, 1821, and recorded in the office of the register of the city and county of New York on the'seventh" day of May, 1821, in Liber 151 of Conveyances, page 235.”
    ■ A. Stern, for appellants; Geo. II. Yeaman and Samuel B. Hamburger, for respondent.
   BARRETT, J.

—The objections to the plaintiffs’ title to the ■front portion of the tract sought to be conveyed are based upon.the use o'f the word “ northwest,” instead of “ southwest,” by the deeds, in specifying the corner at which the description commenced, and upon the fact that the contract and surveys fix the easterly boundary of the property as 75 feet 11 ¡ inches westerly from Chrystie street, while the deeds describe it as ■75 feet from that point. It is well to state these objections ’separately, and to some extent they will need separate consideration, although each must be weighed in the light of the same facts.

The literal reading of this description would throw a great portion of the property into the bed of Grand street. It is quite plain, however, that this was not intended, and that the 'use of the "word “northwest,” instead of “ southwest,” was a clerical error. That the latter word was intended is evidenced .by the context; that is, by the rest of the description. Grand street runs east and west. The Bowery and Chrystie street Tim north and south. The premises are described as being on Grand street, and as having buildings thereon; also, as bounded on the west by lands of Thomas White. They then run north 100 feet, to Grand street, and then down Grand street, to the place of beginning. Three sides of the lot are definitely located. To make the fourth, “ southwest ” will be construed as having been intended for “ northwest.” Brookman v. Kurzman, 94 N. Y. 272. In this case the word “southeasterly ” ; was held to mean “ southwesterly ” and the rule was laid down that, construing the description clause in a conveyance, such an interpretation will be adopted as will give effect to the intention of the parties, if it can be ascertained from the instrument. Here, as in that case, the intrinsic evidence furnished by the deed makes it indisputable that the intent was to use the word necessary to perfect the description. Here, too, as there, the use of the wrong word was not such a defect as justified a purchaser in refusing to accept title.

But even if the inaccurate use of the word “ northwest ” in Lawrence’s deed were sufficient, standing alone, to invalidate the title, there are other facts which make it plain that the plaintiffs’ testator got a clear record title from Thomas White to a plot of land 25 feet in front and rear, and 100 feet in depth, fronting upon Grand street, and in no way encroaching upon the bed of that street. Ilis grantor, Lawrence, had undoubted title to such a plot. White went into possession under the deed which he received from Lawrence; and, when White died, he devised the plot to his granddaughter by a correct description. When she deeded it to Schott, the draftsman reverted to the incorrect' description in the Lawrence deed, but referred to White’s devise, ancl declared the property to be that which she got from this latter source. She was thus estopped to deny that the property was the same as that devised to her, and, to all intents and purposes, she conveyed it by the description contained in the devise. Bernstein v. Nealis, 144 N. Y. 347; 63 S. R. 638. The deed from Schott to. Speaight was similar, with the result that the latter got a clear record title from Thomas White.

Coming to the partition suit, we find that, although the complaint and decree continue the erroneous description contained in all the deeds, the referee’s deed corrects it by substituting “ southwest ” for “ northwest.” This, it is said, invalidates the referee’s deed. In our judgment, no such result follows. The referee, in law and in fact, did sell the identical jmemises referred to in his deed. The decree directed the sale of these premises, and of none other. They were the same premises which were deeded to Speaight by his grantor, Schott. That deed was part of the record title. The partition suit had relation to those premises, and none other. Thus, the premises sought to be partitioned or sold were, to quote the language of the deed from Schott to Speaight, “the same premises which were devised by the said Thomas White * * * to his granddaughter Ann,” and were . conveyed by Ann to Schott. This deed from Schott to Speaight must be considered in construing the description in the partition proceedings and decree. It was the property obtained by that deed which was the subject-matter of the partition suit. The purchaser at the partition sale was bound by that deed, and all that it contained. Bernstein v. Nealis, supra. The referee’s description was, in effect, the same as though such description had been emphasized by the reference in Speaight’s deed to the premises devised to Ann White, and by Ann White deeded to' Schott, and by Schott to Speaight.

If the referee’s deed were treated as invalid, what would be the effect ? The record title would still be in the Speaight heirs. Any such claim on their part, however, would be manifestly untenable. ■ They sold the property, received the proceeds, and are as much estopped to dispute the referee’s deed as though they had themselves executed it. In making the transfer, the referee acted merely as the agent of the court. If' he defectively executed the power delegated to him, the purchaser might have applied for a re-execution of the deed. By'failing to do so, he certainly forfeited none of his rights, lie was entitled to a conveyance of the property described in the complaint, since he bought and paid for it. His grantors (so1 we may term the heirs) are estopped to deny his claim. S'»,, also, would any one be claiming under them, since the matter is of record. The fact that the complaint and decree, in describing the property, omit the reference to the devise in White’s will, does not curtail the plaintiff’s rights. The case of Bernstein v. Nealis, supra, is in point. There a mortgage contained an erroneous description, together with a reference correcting it; and the complaint, decree, and deed, on foreclosure, omitted the reference. It was held that the decree did not blot out the record of the mortgage, and hence that parties claiming under the mortgagor took with notice that the deed carried title to the premises described in the mortgage. Similarly, here, purchasers from the Speaight heirs would have notice of the prior instruments in the chain of title, and, in particular, of the deed from Schott; thus learning the exact nature of the .property which those heirs owned, and had disposed of by the partition suit. In fact, the referee’s deed stated expressly, as already pointed out in the preliminary statement of facts, that the property was “ the same premises of Avhich Charles Speaight died seised,” and which Avere conveyed to him by Schott in 1821. No exception can be taken to' this addition in the referee’s deed, for any searcher of the title must know that the proceeding Avas taken to dispose of laud of which the intestate was actually seised. Thus, he Avould have notice of the immediate instrument creating the title.

It results from the foregoing that the plaintiffs’ testator got .a clear record title from Thomas White to premises of the proper dimensions, and lying entirely to the south of Grand Street. There was, under this clear record title, continuous adverse possession by the predecessors in interest of the plaintiffs’testator, and such. testator himself, under claim of title through conveyances containing, as we have seen, a sufficient description, for a period of about 85 years. In addition to the evidence of the record, we have undisputed testimony that the plaintiffs’ testator was in possession of the premises ever since the purchase, and in 1870 erected the four-story brick building which is now upon the land, and completely covers it. It also appears from the record of the partition suit that Speaight had been in possession of the premises ever since 1842. The plaintiffs have thus shown a marketable title, which the defendant may not refuse. Shriver v. Shriver, 86 N. Y. 575; O’Connor v. Huggins, 113 N. Y. 511; 23 S. R. 275.

So far only one result of the facts has been considered, viz., that the plaintiffs have acquired title to a plot of land, of the proper dimensions, entirely to the south of Grand street; that their rights are the same as if “ southwest ” had been used in the deeds instead of “ northwest.” But it is said that the contract calls for property beginning 75 feet 111 inches westerly from Chrystie street, while, under his deeds, the plaintiff’s testator got title to property only 75 feet west. The easterly boundary of the property is, in fact, at the spot specified in the ■contract. This, it is said, .will make it encroach upon the premises to the west. If it did, adverse possession would again be a sufficient answer. There is, in fact, however, no encroachment or possibility of one. As we have seen, the plaintiffs have the record title to a lot of a 25-foot frontage, lying ■entirely to the east of other property belonging (when the devise was made) to the common owner, Thomas White. The '¡surveys show that the plaintiffs’ testator did not build upon •an inch of ground which did not come to him under his deeds. The discrepancy is caused by the fact that the earlier conveyances were made in reliance upon what is known as the Delaney Map.” This map stated the distance from the Bowery to Chrystie street to be two hundred feet, whereas it is in reality over two feet longer. Eleven and one-half inches -of this surplus have fallen to property to the east of that in suit, and this is the occasion of the discrepancy. The case is similar to Meyer v. Boyd, 51 Hun, 291; 20 S. R. 918. There the owners, on learning of the surplus, prepared maps distributing it pro rata; and the acquiescence in these maps was .held an answer to the plaintiff’s complaint that the record title was not perfect, although the defendant had not adversely held his land for 20 years. The present case is even stronger. There is the same certainty that no adjoining owner has a .legal claim to the strip, and there is also adverse possession ■confirming the title to it.

The objection to the title to the parcel in the rear is quite-without merit, and does not need special consideration. It is. completely answered by the sixth point of the learned counsel for the appellants.

The judgment should be reversed, and as the facts are all before the court, and a new trial could not change them, the-plaintiffs should, have judgment as prayed for in their complaint, with costs of the trial and appeal.

All concur.


author: CULLEN, J.

text:
    The People ex rel. Francis E. Brennan v. James Comisky.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    Officers—Appointment—Specifying officers succeeding.
    In 1890 the Mayor of Long Island City appointed five of the sis: members of the board of health, two for three 'years, two for two years, and one for one year, the charter requiring appointments to be for one, two, and three years. In February, 1893, two appointments were made for a term of three years, but the record did not show in whose places such appointments were made. Afterwards the Mayor appointed one D. as a member of the board, stating that the appointment was in the place of B., whose term expired. At the time of the appointment in February, 1893, there were two three-year vacancies, one of which was created by the expiration of B’s term. At the time D. was appointed, there were other vacancies on the board. Held, that, notwithstanding the recital in the appointment of D. as to the expiration' of B.’s term, D. was not appointed to succeed him.
    Submission of controversy without action on an agreed statement of facts between Francis E. Brennan, as relator, and James Comisky, as defendant.
    George W. Stephens, for relator; George E. Blackwell, for defendant.
   CULLEN, J.

—This controversy is as to the respective rights of the relator and the defendant to the office "of member of the board of health of Long Island City. The defendant is in possession of the office, under an appointment from Horatio S. Sandford, mayor, made on the 27th day of December, 1895. The relator claims title under an appointment of Patrick J. Gleason, mayor, made on the 28th day of April, 1896.

. I think it unnecessary to recite many of the details relating to the history of the board of health in Long Island City, or to follow the counsel for the respective parties in their elaborate discussion of the effects of the health statutes of 1881 (chapter 431), and of 1885 (chapter 270). Assuming that the statute of 1881 did not modify the provisions of the charter of Long Island City, or bring that city within its provision (though I am clear the contrary is the case), it is conceded that, at least, the amended statute of 1885 had that effect; for,, if it did not, then there is no authority at all for the appointment of the relator to the office. So, also, it cannot be disputed that after the 31st day of December, 1885, under any construction of the effect of the previous statutes, the mayor and common council of Long Island City were authorized to constitute a board of health, and to appoint the members thereof for terms of one two and three years, respectively, in compliance with the provisions of law. As matter of fact, the common council did assume to appoint the board of health on March 14, 1882. Changes in the membership of the board were made from time to time, by new appointments by the mayor and common council. The agreed case states that appointments were made in the year 1885 ; that on May 18, 1886, certain named persons, with the mayor, acted as the board of health. From that time to the year 1890 no appointment to the board of health seems to have been made. It is therefore entirely clear that in that year the mayor, with the consent of the common council, was authorized to make new appointments in the places of all the members of the health board, for nearly five years had elapsed since the last appointment, and every person then in office must have been only a “ hold-over.” On the 4th day of March, 1S90, Patrick J. Gleason, mayor, nominated several persons to be members of the board of health. Other appointments were made by him in April, May, and July of that year. In the case of none of these appointments was the appointee stated to be nominated in the place of any particular incumbent, but the nominations were made for terms of years, two of them being for the term of three years, two for the term of two years, and one for the. term of one year. It is therefore clear that any present title to the office of member of the board of health cannot be traced back of this action in 1890, for there is nothing to connect the term of any particular appointee at that time with a particular predecessor in office. In this the cáse wholly differs from that of People v. McClave, 99 N. Y. 83, 1 N. E. 235. Among the appointments so made at that time were those of Peter Bagley and William Friedrich, for the term of three years. On February 21, 1893, a new mayor, Horatio S. Sandford, with the consent of the common council, appointed Otto L. Mulot and Michael E. Fay members of the board for the term of three years. There is no record showing in whose places these appointments were made. On the 7th day of March, in the same year, the mayor appointed Louis P. Dexter a member of the board of health, by the following communication to the common council:

Gentlemen: The term of office of Peter Bagley as health commissioner having expired, by virtue of the power in me vested I hereby appoint Louis P. Dexter, of 137 Third street, as health commissioner for the term of three years. Respectfully, Horatio S. Sandford, Mayor.”

Dexter resigned, and on February 6, 1894, William F. Hendrickson was appointed for his unexpired term. The case does. not show that Hendrickson declined, died, or resigned. However, on the 27th day of December, 1895, the mayor appointed the defendant, James Comiskey, to succeed William F. Hendrickson for the term to expire March 7, 1898, which appointment was duly confirmed.

The counsel have discussed at some length the question as to at what time in the year, under the provisions of the general statute cited, and of those of the charter of Long Island City, the terms of members of the health board expired. The counsel for the relator contends that the charter provisions control, and that the terms expire on the 31st day of- December, each year. This claim is disputed, and it is contended that the terms expire either on the day of the year when the common ■council first constituted a new health board, under the statute of 1881, or on the recurrence of the day on which the members were appointed for a full term. It is unnecessary to determine this question. The first action of the common council was on April 22d. Dexter, whose term the defendant is supposed to hold, was appointed March 7th. The agreement for the submission of the controversy was made on May 29fch of this year. So that, if the relator is entitled to the defendant’s office at all, his title accrued before the submission of the controversy. As, however, the disposition of this case Avill depend largely on arithmetical computations, for the sake of clearness in those computations, I shall assume the dates at AArhich the terms expire to-be the 31st of December in each year; but the assumption is made solely for convenience in computation. If the defendant is the successor of Bagley, then, undoubtedly, his term has expired, for Bagley was appointed on March 4, 1890, for the term of three years. His term Avould therefore end either the 31st day of December, 1892, or not later than April 22, 1893. A new- term of three years Avould expire either December 31, 1895, or not later than April 22, 1896, and no appointment by Sandford could carry the term beyond the later time. But I am entirely clear that though on March 7,1893, the mayor assumed to appoint the defendant’s predecessor, Dexter, in the place of Bagley, still the appointment did not have that effect. As already stated, the first appointments made by Sandford, the new mayor, Avere on February 21, 1893,—those of Mulct and Fay. The appointments of ]\Iulot and Fay AVere for the term of three years, but they were not stated to be made in the place of any particular incumbents. At that time there Avere two three-year vacancies, which the mayor was authorized to fill by appointments,—the vacancies created by the expiration of the terms of Peter Bagley and William Friedrich. Therefore the successors of Bagley and Friedrich Avere entitled to hold their offices for the period of three years from the expiration of the terms of their predecessors. Hence, when the mayor, in his appointment of Dexter, recited that the term of office of Peter Bagley had expired, he was technically correct; but so far as that statement suggested that the office of Bagley, having expired, was vacant, he was wholly in error, because Bagley’s office was then filled by either Mulot or by Fay. But at the time Of the appointment of Dexter there were vacancies in the membership of the health board which the mayor was authorized to fill.

It now becomes necessary to make something of a genealogical chart of the appointments to the health board from the beginning of the year 1890. As already stated, Mayor Gleason appointed but five persons in that year. The first appointment was of Bagley and Friedrich, for three years, James Evans, for, two years, and Patrick McKeon, for one year. On April 1st, McKeon was appointed for two years, and, on May 1st, Louis Wokal was appointed for one year. It thus appears that there were then five of these offices filled, two for three •years, two for two years, and one for one year. The only one unfilled was necessarily for a one-year term, because the statute required the appointments to be so made that the terms of two officers would expire each year. After January, 1891, therefore, there were two vacancies which the mayor might have filled for the full term; that is, the term of Louis Wokal, which had expired the 31st day of December previous, and the ■one-year term standing over unfilled from 1890. On July 7, 1891, Patrick McKeon was appointed for the term of three years. This appointment must have been made either in the place of Wokal, or to fill the unfilled vacancy of the previous year. As Wokal continued to hold office, it must be assumed that McKeon was appointed to fill the vacant place. McKeon, by accepting this new term, vacated the term to which he had been appointed in the previous year. The status of the members of the health board at this time was therefore as follows: Class whose terms would expire December 31, 1891, James Evans, one vacancy; class of 1892, Peter- Bagley, William Friedrich; class of 1893, Louis Wokal, Patrick McKeon. Of these, Wokal was only a “hold-over.” Mayor Gleason made no other appointments during his .term. When Mayor Sandford camp in, January 1, 1893, he appointed Peter J. Huensch in the place of Louis Wolcal. The vacancies occurring on the expiration of the terms of Peter Bagley and William Friedrich were, as I have said, necessarily though not in terms, filled by Mulot and Fay. The oilly vacancies, -therefore, existing at the time of the appointment of Dexter, were in the class expiring at the end of 1891. The terms of such class would successively expire with the years 1894 and 1897. Therefore the term to which the defendant was appointed in December, 1895, would not, even according to the relator’s contention as to the time of the year when the terms should end, expire before January 1, 1898. There doubtless have expired this year the terms of office óf at least two members of the health board, the successors to whom the present mayor is authorized to appoint. But he has fallen into an error as to whose terms those are that- have expired. The relator may be entitled to his office, but it is not the office that this defendant holds, but the office held by some other member of the board.

There should be judgment for the defendant on the submitted case, with costs.

All concur.

On Motion for Reargument.

(October 37, 1896.)

Since the decision in this case has been rendered and the foregoing opinion filed, my attention has been called by the learned counsel for the plaintiff to the fact that Í have been led into an error by the similarity of names. There were two-individuals, Patrick McKeon and Patrick McKeown, not, as I assumed, a single person. I, therefore, was in error when I stated that on April 1, 1890, McKeon was appointed for two-years, and thereby vacated his other term. The appointee-W'as really Patrick McKeown. But this error has in no way affected the result arrived at. The argument for the plaintiff proceeds on the theory .that the appointments of Fay and Mulct were in place of Evans and McKeown. This, as Í have shown, is erroneous. Fay and Mulot were appointed for the term of three years. This, of necessity, constituted them the successors of Dagley and Friedrich. Menee, as hitherto shown in my opinion, Dexter was appointed in the class expiring in the year 1897, despite any reference in the letter of appointment to the expiration of Bagley’s term. . The error of the mayor in" supposing that the vacancy was in Bagley’s place could in no wise affect the title of the previous appointee, who in reality "was Bagley’s successor.

All concur.

MEMORANDUM DECISIONS.


text:
    A. F. Englehardt Co., Appellant, v. Kaufman et al., Respondents.
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)
    Action by the A. F. Englehardt Company against Louis Kaufman and another.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Albright v. Manhattan Ry. Co.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Action by Bettie Albright, as administratrix, against the Manhattan Railway Company.
   No opinion. Motion granted, with $10 costs.


text:
    Alexander v. Maxwell et al.

    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by John R. Alexander against Nathan Maxwell and others.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Allen v. Banks et al.

    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by John Allen against Levi. B. Banks and others.
   No opinion. Motion for a reargument denied, and leave granted to appeal to the court of appeals on the ground that the case involves a question of law which ought to be reviewed by that court. All concur.


text:
    Altschul, Appellant, v. Rehfeld, Respondent.
    (Supreme Court, Appellate Term, First Department.
    September, 1896.)
    Action by Jacob Altsohul against Augusta Rehfeld. H. Stiefel, for ap-
    pellant. Cardoza Bros., for respondent.
   No opinion. Affirmed upon argument.


text:
    American Exch. Nat. Bank v. Casino Co.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Action by the American Exchange National Bank against the Casino -Company.
   No opinion. Application denied.


text:
    American Grocery Co. v. Hevenor et al.

    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Action by the American Grocery Company against Robert A. Hevenor and others.
   No opinion. Motion denied upon payment of $10 costs.


text:
    American Surety Co. v. Crow.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Action by the American Surety Company against Moses R. Crow.
   No opinion. Motion denied.


text:
    Ames v. Gerrish.
    (Supreme Court, Appellate Division, First Department.'
    Dec. 11, 1896.)
    Action by Merritt Ames against Clara Gerrish.
   No opinion. Application denied.


text:
    Amuro, Respondent, v. Buchignani et al., Appellants.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Antonio Amuro against Emile Buchignani and another.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Anderson v. N. Y. Anderson Pressed Brick Co.
    (Supreme Court, Appellate Division, First Department.
    Oct. 28, 1896.)
    Action by John C. Anderson against the N. Y. Anderson Pressed Brick Company. W. C. Pinne, for plaintiff. E. S. Peck, for defendant.
   No-opinion. Order affirmed, with $10 costs and disbursements.


text:
    Anthony v. Village of Glens Falls.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 18, 1896.)
    Action by Lulu Anthony, by guardian, against the village of Glens Falls.
   No opinion. Motion denied, without costs. All concur.


text:
    Arnoux v. Phyfe et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Action by William H. Arnoux against Amy C. Phyfe and others.
   No-opinion. Motion granted.


text:
    Aronson, Respondent, v. Abrams, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 2, 1896.)
    Action by Barnet Aronson against Lewis Abrams.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Austen v. Bradley Salt Co.
    (Supreme Court, Appellate Division, First Department.
    Oct. 23, 1896.)
    Action by David E. Austen against the Bradley Salt Company.
   No-opinion. Motion denied, with §10 costs.


text:
    Austen, Respondent, v. Bradley Salt Co., Appellant.
    (Supreme Court, Appellate Division, First Department.
    Nov. 6, 1896.)
    Action by David E. Austen, as receiver of taxes, against the Bradley Salt Company. E. H. Benn, for appellant. R. G. Monroe, for respondent.
   No opinion. Order affirmed, with $10 costs and disbursements, but with leave to renew on further papers on payment of the costs of this appeal.


text:
    Bagg, Respondent, v. Village of Clinton, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Martha E. Bagg against the Village of Clinton.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Baker et al. v. Brown et al.

    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by Jane A. Baker and another againt Thomas Brown and others.
   No opinion. Order affirmed, with costs.


text:
    Baker, Appellant, v. Makepeace, Respondent.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Henry N. Baker against Lila Makepeace.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Baldwin Respondent, v. Hewlett, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Action by Jesse Baldwin against Samuel M. Hewlett.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Ball, Appellant, v. Ball et al., Respondents.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Jasper C. Ball against Alvin Ball and Edgar.Ball.
   No opinion. Order affirmed, without costs. All concur.


author: Fitzsimons, J.

text:
    Balmford, Respondent, v. Grand Lodge of Ancient Order of United Workmen of State of New York, Appellant.
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Thomas Balmford, as temporary administrator of Alfred Fogarty, deceased, against the Grand Lodge of the Ancient Order of'

      United Workmen of the State of New York. J. B. Brevoort, for appellant. J. B. Hands, for respondent.
   Fitzsimons, J.

—The plaintiff was not required to prove the death of' Fogarty’s father and mother before his death, or any other allegation contained in paragraph 4 of the complaint, because of defendant’s answer. Besides, at folio 291 it appears from the statement of defendant’s counsel that the only defense herein was that the fund sued for herein was payable-directly to those entitled to it, and not to plaintiff, as administrator, or that it reverted to the defendant .because of the failure of plaintiff’s testator to designate a beneficiary. This defense is without merit, in our opinion, and a complete answer was made to it by the trial justice in his-opinion filed upon the denial of the motion made by defendant for a new trial herein; and for the reason therein assigned we think that this judgment should be affirmed, with costs, and it is so ordered. All concur.


text:
    Banker, Respondent, v. Postal Tel. Cable Co., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Action by Isaac Banker against the Postal Telegraph Cable Company..
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
      In re Barber’s Will.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Proceeding for the probate of the will, etc., of Mary E. Barber, deceased..
   No opinion. Motion denied. Order settled, marked, and filed with the-clerk. Ward, J., dissenting.


text:
    Barmann, Appellant, v. Bathier, Respondent.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 2, 1896.)
    Action by Peter Barmann against Conrad Bathier.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Beckley, Respondent, v. Nelligar, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 2, 1896.)
    Action by Daniel Beckley against James D. Nelligar.
   No opinion-judgment and order affirmed, with costs. All concur.


text:
    Bedell v. North Side Pub. Co.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by Elizabeth W. Bedell against the North Side Publishing Company.
   No opinion. Motion denied, upon payment of $10 costs, in order that the appellant may move before the court below to have his default opened, ana his case regularly signed and filed.


text:
    Bell et al., Respondents, v. Holmes, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 2, 1896.)
    Action by Edmund R. Bell and others against William E. Holmes.
   No-opinion. judgment affirmed, with costs. All concur.


text:
    Bendheim, Respondent, v. Kerbs et al., Appellants.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Action by Henry M. Bendheim against Adolf Kerbs and Louis Stern.
   No opinion. Order, as modified, affirmed, ’ with $10 costs and disbursements, and appeal from order denying motion for resettlement dismissed, with $10 costs.


text:
    Benedict v. Arnoux et al.

    (Supreme Court, Appellate" Division. First Department.
    Nov. 13, 1896.)
    Action by Elias C. Benedict against George T. Arnoux and another-
   No opinion. Motion dismissed by default.


text:
    Benedict v. Arnoux.
    (Supreme Court, Appellate Division," First Department.
    Nov. 20, 1896.)
    Action by Elias C. Benedict against George T. Arnoux.
   No opinion-Motion granted. See supra.


text:
    Billings, Respondent, v. Foster, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 8, 1896.)
    Action by "William K. Billings against Thomas B. Foster.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Bingham et al., Respondents, v. Northrup, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    October 16, 1896.)
    Action by Eunice Bingham, Mary E. Arthur, and Charles W, Bingham against Irvin W. Northrup, impleaded, etc.
   No opinion. Order reversed, without costs to either party. Held, that the ■ judgment was premature because the time to answer did not begin to run until January 1, 1896. All concur.


text:
    Bischoff v. Engel.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Fritz C. Bischoff against Jacob Engel.
   No opinion. Motion denied, with leave to renew upon the next motion day if papers are not filed, printed, and served before August 20.