text:
    The New York, Lake Erie & Western R. R. Co., Resp’t, v. The Atlantic Refining Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Heglioenoe—Raileoads—Costbibutoey.
    In an action for negligence it appeared that plaintiff had the day before brought to a station and left on a switch track a car load of lumber for ' defendants, which the latter partially unloaded and left the remainder, as alleged, in a dangerous condition; that in the night a high wind arose which blew the lumber on the tracks and caused the accident. The court excluded all consideration of the question of plaintiff’s negligence. It was show nthat building was going on at the station, and large quantities^ of material were brought there;, that there was but one switch track which sometimes held a number of cars; that on backing cars upon the switch those already upon it were often severely shaken; that there was no track walker nor any person to observe the condition of carson the switch track. Seld, that under the circumstances these were elements of contributory ■ negligence upon plaintiff’s part, and it was error to withdraw that question, from the jury.
    Appeal from a judgment in favor of the plaintiff rendered upon the verdict of a jury at circuit.

      John Brooks Leavitt, for app’lt; Charles Steele, for resp’t.
   Barrett, J.

This action was brought to recover damages for injuries done to the plaintiff’s locomotive and cars at aplace called Dyke’s switch. The locomotive and cars in question were so damaged by running upon certain lumber belonging to the defendants, which had fallen upon the plaintiff’s track at that place. This lumber had previously been transported by the plaintiff, Under a contract with the defendants, from Olean, in this state, and the car containing it had been delivered to the defendants at Dyke’s switch on the afternoon preceding the accident. This car was so delivered upon the siding or switch adjoining the plaintiff’s .main tracks, and the defendants’ agent, Bechtle, commenced to unload the lumber. The unloading was not completed that day, and the-car was left for the night with the remaining unloaded lumber in the neighborhood of the plaintiffs’ main tracks.

The charge is that the defendants were guilty of negligence in leaving this remaining lumber without proper support, and that in consequence of such negligence it was blown over upon the plaintiff’s main track sometime in the evening by a high wind. The question of the defendants’ negligence and of their responsibility for the acts of Bechtle was properly submitted to the jury, and their verdict is conclusive on this branch of the case. The question is substantially identical with that involved in the case of Chapman against the same defendants, and it was settled adversely to them upon their appeals in that case. 38 Hun, 637; 108 N. Y., 638; 13 N. Y. State Rep., 900.

The present differs from the Chapman case only with regard to the question of contributory negligence. Chapman was the ■engineer upon the plaintiff’s train, which was wrecked. The defendant’s counsel there claimed that the court erred in refusing to charge as requested, that “if the car was left in a dangerous ■condition, after being partly unloaded, it was negligence on the part of the railroad company to leave it in a dangerous condition so near the main track.” The general term held that even if this proposition was correct, “ it did not relieve the defendant if it was also guilty of an act of negligence which contributed to the injury.” The only question there was as to the contributory negligence of the engineer. Here, however, the question is directly involved, as the railroad company is itself the plaintiff seeking to recover because of the defendants’ negligence. We see no reason why an exception • should, under the circumstances, be made to the ordinary rule as to contributory negligence.

■ The defendants’ liability rests solely upon their negligence, and not at all upon any willful act. It would seem to follow, therefore, that if the plaintiff’s own negligence contributed to the occurrence, it cannot recover. That principle is well settled and quite universal. If, for instance, the engineer had seen the lumber in time to stop the train, can there be any doubt that the rule could be invoked ? Or if some other agent of the plaintiff’s had observed the fall of the lumber and had suffered it to lie upon the track, or had observed its tottering condition and ignored the impending danger? The learned judge at circuit entirely excluded all consideration of this question. He declined to charge the defendants’ third, fourth and ninth propositions, which were in these words:

“ Third. If you find that the accident occurred through the negligent omission to foresee that the lumber was not left in a condition to withstand a storm, then the plaintiff is equally negligent.”
Fourth. If you find that the accident occurred through any negligent omission of plaintiff to have a track walker, a person in charge of the tracks, the verdict should be for defendant”
“ Ninth. If you find the railroad company was negligent in any way which helped to cause this injury, the defendant is not liable.”

Adverting to these requests later on, the learned judge charged as follows:

“I have already stated to you that the negligence upon the part of the railroad company in not having a watchman upop the track, if you please, or in running its engine at a high rate-of speed, or anything of that kind, has nothing to do with the question of absolving these defendants from their liability. The plaintiffs were not bound to assume that these defendants, were going to put their lumber upon the track, and, therefore, have a watchman for the purpose of seeing they kept it off. The law does not require a railroad company, or anybody else, to provide a guard to keep trespassers off their property, or to-keep persons from putting obstructions upon their tracks.”

We think this view of the case was inaccurate, -and that the entire exclusion of the question from the consideration of the jury was error. Of course the plaintiff was not bound to assume that the defendant was going to put lumber on the track. The error here consists in treating the defendants’ conduct as that of a trespasser. The gist of the action was negligence. The lumber fell upon the track. It was not put there by the defendants or their servants. As the recovery was sought upon the sole ground of negligence, the question whether the plaintiff’s negligence contributed was necessarily involved.

If there was no testimony tending to show such contributory negligence, then the charge given, and the refusal to charge as. requested, were harmless. But we think there was enough to go-to the jury on this head. The surrounding circumstrances have to be considered. This siding was used by the plaintiffs for switching their trains, while waiting for express or through freight, trains. It was also used for detached cars, such as that which contained the defendants’ lumber. A witness testified that “when trains of the company would come on this switch they would bump up against these other detached cars, and sometimes push the cars probably for a quarter of a mile out of the way, so that we could not get at them to unload them again; that was the ordinary condition of affairs there when the cars were standing on that switch.”

This witness also testified that there was a great deal of building going on in that neighborhood, that probably three or four hundred men were employed there; that other “ stuff ” was brought in besides lumber and put on this siding, and that at different times the siding was occupied by as many as a dozen cars. It also appeared that this Dyke’s switch was a pump station, but that it was not an ordinary station, and that only way freight trains Stopped there regularly. Ho tickets were sold there, and there was no station agent. Another witness testified that there were three cars on the siding on the day in question; that he was at work on the third car, and that “ the three cars were shoved up together that afternoon by the way freight.” It further appeared that the plaintiffs had no watchmen there; that the cars and switch were left entirely unguarded, and that there was no supervision whatever of the tracks or their surroundings. We do not mean to say that the jury were bound to find contributory negligence from these facts, but we think such facts and others not necessary to particularize were proper for their consideration.

The jury have said that if the plaintiffs had exercised the care which the situation called for, and had recognized the danger of permitting more or less loose material to be lying as this lumber was, in close proximity to their track, the accident would have been avoided. They might also have considered the fact that this material was in cars liable to be pushed, shoved and jolted at any moment by their own way freight trains, and that the neighborhood was a busy, bustling one, tank building proceeding rapidly and hundreds of men and boys employed upon the work. Other considerations bearing more or less directly upon the question of the duty imposed upon the plaintiffs under all the surrounding circumstances might be adverted to. There was, for instance, but a single main track. The switch was half a mile long, with a short curve just before it was reached, and the plaintiffs’ train (more than two hours behind time) came round this curve at the rate of from forty to forty-five miles an hour. But we need not" state all the circumstances. Enough has been pointed out to show a substantial foundation for the submission of the question of contributory negligence to the jury. It follows, therefore, that the judgment should be reversed and a new trial ordered, with costs to abide the event.

Bartlett, J., concurs.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    William E. Zabriskie, App’lt, v. The Central Vermont R. R. Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Contract—Breach of—Estoppel.
    A firm of coal miners and shippers entered into an agreement with defendants to furnish them a certain amount of coal from time to time “ of same quality and kind as furnished you during the past year.” The firm furnished coal, to the quality of which defendants objected repeatedly, but used it, nevertheless. Held, that their acceptance of the coal did not estop them from claiming damages, although no sample was present for inspection when the contract was made; that the obligation of the firm was continuous, and could be availed of after all deliveries had ceased.
    2. Same—Liability of assignee.
    The firm failed and a corporation became its assignee. The assignee did not ask for or make any new agreement. Held, that it was optional with the assignee to cease or to continue deliveries, and that having elected to continue, it was bound by the terms of the original agreement.
    Appeal from a judgment entered on a referee’s report and from an order directing an additional allowance of costs.

      Hamilton Wallis, for app’lt; Hdward G. James, for resp’t.
   Daniels, J.

The plaintiff, as the assignee of Robert Hare Powel & Company and the Guaranty Trust & Safe Deposit Company of Philadelphia, brought this action to recover the price and value of coal sold and delivered to and used by the defendant. There was no serious dispute concerning the quantity of coal delivered to and received by the defendant. Much the greater part was delivered by the firm of Powel & Company in the year 1887, and before the twenty-ninth of August of that year, when they made a general assignment to the Guaranty Trust & Safe Deposit Company. After the assignment th.e assignee continued to send coal to the defendant, which had from time to time objected to the quality of the coal it was receiving. The last was sent and tested in March, 1888, when, on account of its quality and the objections made to it, all further shipments of coal were thereafter discontinued.

The firm of Robert Hare Powel & Co. were engaged in the business of mining, selling and shipping coal, and had been in the year 1886, during which they supplied the defendant with coal, which in its use had proved to be satisfactory in all respects. And on or about the 8th of June, 1887, the following agreement was made between these parties:

“ Gentlemen—-We agree to furnish you during the year ending June 1st, 1888, thirty thousand tons Powelton coal, of same quality and ldnd as furnished you during the past year, with an option on your part to increase the order to any amount, not exceeding thirty thousand tons, you to control delivery. The coal is to be delivered to you on the cars at Norwood, N. Y., at three dollars ($3.00) per net ton. You are to have an option of five thousand tons to be delivered you at Rutland during the same season at $3.90 per gross ton. All above coal to be way-billed as per your directions. Payments to be made for monthly bills in the usual course. You are to give reasonable notice of your requirements, and we are not to be held liable for money damage on account of strikes.
“ (Signed) Robert Hare Powel & Co.
“ By E. C. Smith,
2nd T.P.& Act. Oen'l M.
“ St. Albans, June 8th, 1887.”

And it was under this agreement that all the coal was alleged by the defendant to have been received which was delivered after its date. It was averred on the part of the defendant that the coal delivered after the date of the agreement was defective in quality, and so far inferior to that received from Powel & Co. in 1886 as not to be worth more than two-thirds of the price' agreed to be paid by the agreement, and that the assignors of the plaintiff had failed "to perform by delivering the quantity of coal mentioned in the agreement, and damages were claimed for these causes exceeding the amount unpaid for the coal which had been received.

As the coal was from time to time received its inferior quality is stated to have been observed by the persons in charge of that part of the defendant’s business and by the engineers using and consuming it in the management of their engines. And of these facts repeated information was sent to Powel & Co., who in substance replied that the subject would be investigated, and the coal sent forward should be brought up to the standard of the contract And when notes constituting payment of the sum of $7,500 were made and delivered, the balance of $3,633.30 was allowed to remain, because of the complaints made of the quality of the coal, and the. claim of the defendant for an equivalent abatement in its price.

Upon the trial evidence was given on behalf of the defendant from which the referee could very well find, as he did find and decide, that the facts in this manner alleged by way of defense and counterclaim, had been proven, and that the damages resulting therefrom to the defendant, together with those sustained in the purchase of other coal necessary for its use, exceeded the amount claimed to be unpaid by the plaintiff, and judgment was directed to be, and it was, entered against him for the costs.

Exception has been taken to the conclusions of the referee, on the ground that the inferior quality of the coal was not maintained by the evidence, and there was for that reason no failure in the performance of the agreement by Powel & Co., or their assignee, and if there had been, that the defendant had deprived itself of all legal right to complain of the quality of the coal by receiving and using it after discovering its quality, and that the coal delivered by the assignee of Powel & Co. was not under the contract, but a distinct and separate sale made by themselves, and that damages for the increased cost of coal bought in place of that not delivered should not have been allowed.

But as already has been mentioned, the evidence was such as to support the conclusion of the referee that the coal delivered was mostly of a quality inferior to that delivered by Powel & Co. to the defendant in the year 1886. That was an article whose quality had become known, both to Powel & Co. and the persons who had used it in the defendant’s employment. And it was that quality of coal that it was expressly agreed should be delivered under and in fulfillment of che agreement made in June, 1887. That coal was referred to and adopted as the standard by which the quality was to be tested. It was not a mere description, which would be waived by the acceptance of an article not conforming to it. But it was an express stipulation that the coal delivered should be of the same good quality as that which had been delivered in 1886. And there could have been but one intention animating that stipulation, and that was that it was to be performed, or-compensation made for the failure to perform it In this respect this case closely resembles that of Brigg v. Hilton, 99 N. Y., 517. It is true that the sample was there present subject to the inspection of the parties when their agreement was entered into. But that can create no substantial difference between the cases, for it was here equally within the knowledge and recollection of each of these parties; whether it was present and subject to immediate observation, or within the minds, of the parties from their preceding transanctions can supply no practical cause for distinction. They were equally apprised in each instance of what was known. and understood. And when that shall be the fact, and the agreement is based upon what is well known and understood, it must in all reason be considered equally effective. By this agreement Powel & Go. took that degree of responsibility upon themselves that the defendants did in the other case, and expressly incurred the obligation to perform it. And under this authority the use and consumption of the coal did not deprive the defendant of that degree of redress by way of damages as would ensure to it the value of its contract. The obligation was intended by its terms to be continuous, and remained available for indemnity after these acts of non-performance had all transpired. And to this effect are the cases also of Norton v. Dreyfuss, 106 N. Y., 90; 8 N. Y. State Rep., 570, and Kent v. Friedman, 101 N. Y., 616, and that of Warren v. Philadelphia Coal Co., 83 Pa., 437, confirms this construction of the agreement

The authorities which have been relied upon to support the appeal depend upon agreements or facts materially differing from the agreement in this action, by which a plain distinction has'been indicated. In The Coplay Iron Co. v. Pope, 108 N. Y., 232; 13 N. Y. State Rep., 480, there was no agreement whatever as to quality, but it was for an article of a specified description. That was Ho. 1 extra foundry pig iron of the Goplay Iron Go. The terms of sale did entitle the purchasers to iron of that description, but there was no express agreement that what would be delivered should be iron of that quality. And when a different article was delivered, it was for- the purchasers to elect whether they would accept or reject it. And, as they did accept, they surrendered all claim that the terms of sale had not been complied with, as there was no independent stipulation binding the vendor to the delivery of the quality of iron described. In the case of Pierson v. Crooks, 115 N. Y., 539; 26 N. Y. State Rep., 492, the articles were agreed to be sold by a somewhat similar description, containing no direct agreement that they should be of any particular quality, and in that respect broadly differing from the agreement made by Powel & Co.

It is true that in the opinion language may be found encroaching in some measure upon the preceding cases sustaining express contracts for quality after the receipt and appropriation of the articles delivered. But no inference can justly arise out of'this circumstance, that there was any intention to abridge the principle maintained by these other cases. The case of Studer v. Bleistein, 115 N. Y., 316; 26 N. Y. State Rep., 400, proceeded largely upon an actual acceptance of the plates as a satisfactory performance of the agreement. It affirmed the decision reported in 15 N. Y. State Reporter, 971, and contained in a memorandum in 48 Hun, 620, which is a different casefrom that mentioned in the reporter’s note in the court of appeals reports. These decisions are inapplicable to the present action, and so are those which they have cited and followed. For there was sufficient in this agreement to entitle the defendant’s claim for indemnity to be supported by the other authorities which have been mentioned already.

That there was this difference of one dollar a ton between the coal delivered and that delivered in 1886, was reasonably well proved, sufficiently so to make that a question of fact for the referee, whose conclusion as to it must be accepted and followed by this court Sherwood v. Hauser, 94 N. Y., 626.

The assignee of Powel & Co. was not bound to proceed with the delivery of the coal under the agreement of its assignors. It was entitled to elect whether it would or would not do that. It did continue that delivery without proposing or insisting upon any other agreement than that which was transferred by the assignment. And it is to be presumed from these facts that the intention of the assignee was to continue the performance of their contract. The assignee had no other authority for sending the coal forward, and no other obligation was entered into by the defendant than that which appeared by the written agreement. And under these circumstances it cannot be held that the defendant became liable to pay the assignee for this coal, any otherwise than that was provided for by the agreement itself which was made with Powel & Co. The price therefore was equally subject to the counterclaim as the price of the coal was which was delivered previous to the assignment.

There was no refusal by the defendant to' receive and pay for the quality of coal they were entitled to receive by the agreement. And a refusal to receive any more of the quality of that which was sent was neither a rescission nor a breach of the contract. The defendant was still entitled to its performance and that was not . offered, or to an equivalent amount by way of damages. And further to present its right to damages, it was proved that the defendant had purchased a large quantity of coal equal in quality with that supplied by Powel & Co. in 1886, but for a price with the cost of transportation from Eochester, or Charlotte, upon the Lake Shore where it was obtained to ¡Norwood, where the coal mentioned in the agreement was to be delivered, amounting to three dollars and fifty-nine cents a ton. This difference, so far as it was necessary for the extinguishment of the plaintiff’s demand, was allowed for that purpose by the referee, together with the damages of one dollar a ton on the coal sent by Powel & Co. and their assignee. That this was a proper item of damages seems to be fairly free from doubt. And its allowance, as well as the evidence sustaining' it, appear to be within what has already been held in Wakeman v. Wheeler, etc., Co., 101 N. Y., 202; Bean v. Carleton, 51 Hun, 318; 21 N. Y. State Rep., 220, and Milliken v. McLean, 17 Wk. Dig., 278.

The case was very carefully considered by the referee, whose opinion contains a very complete examination of the law and the evidence applicable to it. And for the reason assigned by him, as well as those now presented, as there are no other objections entitled to be specially examined, the judgment should be affirmed, with costs.

The allowance made of additional costs in the sum of $750 was warranted by the aggregate of the amounts in controversy. The case was difficult and extraordinary within the significance of that phrase, as it has been employed in § 3253 of the Gode of Civil Pro. And the order for the allowance should be affirmed, with ten dollars costs only, there being no disbursements on this appeal from that order.

Yan Brunt, P. J., and Brady, J., concur.


text:
    Charles Gilpin, Jr., App'lt, v. John Daly, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Depositions—Examination before trial—G-amino—Penal Code, § 343, v
    In an action to recover moneys of a foreign corporation alleged by the complaint to have been taken by its treasurer and lost by him at a gambling house maintained by the defendant, Daly, and other persons unknown, Held, that the “ proceeding ” was within, and the complaint involved an “investigation” for a violation of a provision of chap. IX of the Penal Code, and that § 343 of said chapter, providing that a person shall not be excused from testifying in an investigation or proceeding for a violation of said chapter because his testimony would tend to convict of a crime, but that such testimony shall not be used against him in a criminal action, applied; that hence an order requiring the defendant, Daly, to appear and testify before trial, was properly granted, and that he was not excused from testifying.
    3. Same.
    Said § 343 Penal Code is in the line of the policy of this state, as shown in 1 Revised Laws, 153, § 3, and in 1 R. S., m. p. 663, 664, which is to compel the receiver of moneys by gambling to give evidence to.support an action for the recovery of such moneys, and said § 343 must be held to cover in one section all the previous provisions of the Revised Statutes on this subject.
    Appeal from an order vacating an order for the examination of the defendant as a witness for the plaintiff before the trial.

      John L. Oadwalader, for app’lt; John Graham, for resp’t.
   Daniels, J.

This action has beén brought to recover the sum of $5,500, moneys owned by the Glamorgan Iron Company, a corporation existing under the laws of the state of Pennsylvania, and charged to have been lost by gaming at a gaming establishment, in whole, or in part, maintained by the defendant at 39 West Twenty-ninth street in the city of New York. It is alleged that these moneys were wrongfully taken by the treasurer of the company and lost by gambling at that establishment, and won by, and paid to, this defendant and other persons intended to be included with him as defendants in the action. After the moneys had been lost in this manner, the company made an assignment for the benefit of its creditors to the plaintiff, and it is under the title so acquired that he has brought this action for an accounting and recovery of these moneys. And if they were in this manner lost and won either by the defendant alone, or acting in concert with other persons, then there seems to be no well-founded objection standing in the way to prevent the plaintiff from maintaining the action.

The affidavits on which the order for the examination of the defendant was made, have c omplied in their formal statements with all the requisites prescribed for that object by the Code of Civil Procedure. And it is shown by that oí the plaintiff that he is dependent upon the information expected to be obtained from the defendant for his ability to connect him with this estabment as one of the proprietors thereof, and to subject him. to a liability to refund this money. His examination before the trial is shown to be necessary to obtain evidence to support the action, and there is a probability that it can be derived from no other source. It is not liable, therefore, to the objection taken to its general insufficiency, for it has complied with all that has been exacted by the case of Jenkins v. Putnam, 106 N. Y., 272; 8 N. Y. State Rep., 710, and the other-authorities brought on behalf of the respondent to the attention of the court.

The order for the defendant’s examination was not vacated because of any formal defect in the affidavits on which it was made. But that was ordered upon the objection stated in the affidavit of the defendant, that he is not obliged to answer under oath, generally, or specifically, any of the allegations implicating or connecting him with gambling, or the pretended gambling transactions, charged in the moving affidavits. And it has been declared by the law in general terms that a person will not be required to give evidence having a tendency to prove that he has been guilty of a crime. And the principle has been applied in suits in equity, where it has been held that a defendant would not be directed to answer on oath, when his answer must have that effect. McIntyre v. Mancius, 16 Johns., 592.

But the protection of the public, as well as of its individual members, has from time to time induced the enactment of legislative exceptions to this general rule. They have been framed more effectually to discover the existence of offenses committed in seclusion and concealment by bringing their participants before the courts and compelling them to disclose their own participation in and knowledge of these offenses, but at the same time excluding the use of their disclosures as evidence against the person or persons making them in any criminal prosecution. And. the loss and gain of money by gaming, or gambling, has been considered to be a proper subject for this description of legislation. Accordingly, in the revised laws of this state, in 1813, after declaring gaming to be unlawful, and providing a remedy for the recovery of the money thereby lost, it was provided that every person liable to suit under its provisions should be compellable to answer upon oath such bill as should be exhibited in the court of chancery against him for discovering the money or other things won at play contrary to the intent and meaning of the act. And in the action the court was thereby empowered to proceed and decree thereupon, and enforce the decree, as was usual in other causes in the court. 1 Revised Laws, 153, § 3. And that was made to operate as a discharge of the defendant from further punishment, forfeiture or penalties incurred in or about the subject-matter of the suit.

These provisions disclosed it to have been the policy of this state, at that early day, to provide for the redress of the wrongs produced by gaming, by extorting from the winner the evidence he might be able to give in the way of supporting an action for the recovery of money lost by gaming. And they were followed by others made a part of the Revised Statutes in 1830, enlarging and rendering them still more effectual, for in addition to the continuance of the obligation of the winner to answer a bill of discovery, and the power vested in the court by its decree to compel the return of the money, it was declared that no person, other than the ■ parties in the cause, should be incapacitated or excused from testifying touching any offense committed against, any of the preceding prohibitory provisions of the law, by reason of his having played, bet or staked at any game, but his testimony should not be used in any suit or prosecution thereby authorized against himself. 1 R. S., 663, §§ 18, 19. These two sections provided for securing a complete discovery of alleged gaming transactions, first by the evidence of all persons having knowledge concerning them who should not be parties to the action, and secondly, by the answer on oath of the party proceeded against to the bill of discovery. And the answer was not deprived of any of its effect by the next section, declaring that it should not be used as testimony in any case against the person making the discovery, for that must have been intended to relate to any other suit than the suit in which the discovery should be made, as the decree in that suit was allowed to compel the party to it to return the money it should be brought to obtain. By these sections complete authority was supplied for obtaining the evidence of all persons participating in or having knowledge of gaming transactions, and for the recovery of the money won thereby. They included all that could be required or provided, for, in this class of cases, every person was required to give his evidence, either when sworn and examined as a witness or by answering on oath the' bill of discovery.

And it was in this state of the law that the Penal Code was enacted in 1881, which, by § 342, declared that “ No person shall be excused from giving testimony upon any investigation or proceeding, for a violation of this chapter, upon the "'ground that such testimony would tend to convict him of a crime, but such testimony cannot be received against him upon any criminal investigation or proceéding. ”

It could not have been intended that this section should in any effect abridge the efficiency of what bad previously been enacted upon this subject. But as the bill of discovery bad been generally abolished, the intention was to combine in one general section, as this is, all that had previously existed in these two sections of the Revised Statutes. There was no cause for reducing or restricting the preceding law, but there was for changing its form, to render it harmonious with the progress which had been in other respects attained. And that is probably all that was designed to be accomplished by this change of language. This probability is also confirmed by chapter 593 of the Laws of 1886, which by its first section repealed the two sections already mentioned of the Revised Statutes That certainly would not have been done without the legislative understanding that this section of the Penal Code comprehended all that had been included in the preceding law.

Any different conclusion would necessarily support the conviction that the legislature intended to tolerate gaming transactions "by excluding the ability to obtain the evidence of their existence, and that there can be no reason for believing. What appears to have been intended, and what was in fact accomplished, was to ■combine the preceding law in one section, which by its general. language was made to include all the participants in, and parties to, gaming transactions. And this action is directly within the ■section, for it is a proceeding and includes an investigation for a violation of the provisions of the chapter of the Penal Code containing this section. This language, while not the most artistic, is still entirely comprehensive, including as it does all possible investigations and proceedings. And that this was the understanding of its effect is further disclosed by the last clause of the section, declaring that the testimony .so obtained shall not be received against the person giving it upon criminal investigation or proceeding.

This last mentioned investigation or proceeding can only be such as may be taken for the examination, indictment, or punishment of crime, and consequently must have been intended to include these proceedings. And the effect of this clause is to apply with equal reason the preceding part of the sentence to .all personal actions and prosecutions for the recovery of money lost by gaming. These actions are, as the phrase has here been used, investigations and proceedings for a violation of the other sections Of the same chapter of the Penal Code. And similar phraseology employed in another part of the Penal Code was in this manner construed and applied in People v. Sharp, 107 N. Y., 427; 12 N. Y. State Rep., 217. This chapter of the Penal Code has made it unlawful for a person to exact or receive from another, either directly or indirectly, any money or valuable thing, by reason of the same having ^been won by playing at ■cards, faro, pr any other game of chance, or for any bet or wager upon the hands or sides of the players; and it has declared it to be a misdemeanor for any person to keep a room, shed, tenement, tent, booth, building, float or vessel, or any part thereof, to be used for gambling, or for any purpose, or in any manner forbidden by this chapter. Id., §§ 340, 343. And t]ie complaint in this action charges the defendant with a violation of each of these sections. And to maintain this charge, an examination of the defendant before the trial has been- shown to be necessary by the way of obtaining evidence to establish its truth. An investigation is to be made in the action to prove this charge. And that places this suit within the language, as well as the spirit, of the section, depriving every person of the privilege of refusing to testify in it on the ground that his testimony will tend to convict him of a crime. The testimony obtained cannot be used to bring about his conviction of a criminal offense, and for that reason he has been obliged to give his evidence when it may be "required in support of a civil action. This legislation is in compíete harmony with the general policy which has been adopted to-secure the discovery of other secret and fraudulent violations of the law. When that may be successfully concealed by the contrivances and artifices of the parties, the policy has been to oblige them, under the solemnity of their oaths, to appear and disclose the-facts, exposing their transactions to the discovery of the tribunals empowered to investigate them. And as a part of this policy, not only betting and gaming practices are to be brought to the light of j udicial scrutiny and correction by the evidence of the parties to or concerned in them, but the same principle of unlimited discovery has been also applied to fraudulent dispositions of the property of debtors. Provisions for that object were enacted soon after those for the discovery by the evidence of the parties in civil actions of losses by gaming and betting. They are found as early as chapter 17 of the Laws of 1823, requiring every person to answer as to such transactions, but at the same time guarded by the same protection that the evidence obtained shall not be used against the person giving it in any prosecution for the criminal misdemeanor committed by his fraudulent misconduct. And this in substance and effect has ever since then remained the law applicable to the disposition made by a debtor of his property with the intention to defraud his creditors. Laws 1833, chapter 14; 2 E. S., 181, § 41; Code Civil Procedure, § 2460.. A similar practice has also been made applicable to usurious transactions and their discovery. 2 E. S., 6th Ed., 1166, § 11. And to the purchase of things in action by attorneys and others, to institute suits thereupon. 3 E. S., 6th Ed., 449, §§ 59-70. And which still remains the law, except so far as it may have been qualified by the questionable policy of the Code of Civil Procedure, allowing attorneys to become interested in the fruits and proceeds, of suits prosecuted by them.

This legislative policy requires that the section contained in the Penal Code which has already been - examined shall be construed with a reasonable degree of liberality to promote the remedy it has been designed to advance. And under that construction this action is within its language and intent. The defendant is therefore legally bound to appear and submit to an examination on oath to verify, as far as he may be able to do that, the facts brought in issue by his answer in this action, and thereby to supply the plaintiff with the evidence which has become requisite to maintain this suit.

It is but just to the court making the order from which the appeal has been brought, to add that the statutes affecting the question involved, were not referred to by the counsel when the application to vacate the order for the defendant’s examination was heard, as indeed they were not on the argument of the appeal. If they had been, that order would not then have been vacated. Por the law as it is now in force does supply all needed authority for subjecting the defendant to a full, searching and complete examination for the discovery of the facts included in the issue in this action. The order should, therefore, be reversed, with ten dollars costs and the disbursements, and the motion denied.

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


text:
    Charles Gilpin, Jr., App’lt, v. Luce Appleby et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Appeals from orders vacating an order for the examination of the defendants as witnesses before the trial.

      John L. Cadwalader, for app’lt; John Graham, for resp’ts.
   Daniels, J.

The affidavits on which the order was made, which has been vacated, established all that was necessary to entitle the plaintiff to an examination of the defendants, before the trial, if they could be legally obliged-to submit to that examination. They have been sued for the recovery of the sum of $22,000 -charged to have been lost by gaming at No. 818 Broadway in the •city of New York. The money is alleged to have been won and received by the defendants, and to have been taken by its treasurer •from the Glamorgan Iron Company, a - corporation carrying on business in the state of Pennsylvania, and which has since made a general assignment for the benefit of its creditors to the plaintiff. The order for the examination of the defendants seems to have been vacated on the ground that the defendants’ evidence would tend to prove them guilty of a criminal offense under the laws of this state, for which they might be indicted and punished. But while that may be the tendency of the evidence obtained from them under the order, this fact did not relieve them of the obligation to submit to the examination, as it had been ordered. This objection has been found to be without legal support, in the consideration given to it m the case of the same plaintiff against John Daly. And these orders should likewise be reversed, with disbursements to the appellant.

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


text:
    Edward L. Parker et al., Pl’ffs, v. Margaret Gertrude Allen et al., Def’ts.

      (Supreme Court, Special Term, Erie County,

      Filed December, 1890.)

    1. Trust—Resignation op trustees.
    Where disagreements have arisen between trustees and the grantor in the trust deed, who is the primary beneficiary, disturbing their relations to such an extent as to render them incapable of friendly and cordial cooperation, the trustees should be permitted to resign
    3. Same—Cancellation—Correction.
    The trust deed in question was executed by the grantor to secure the property against its disposition or incumbrance by herself, as she might be in danger of acting to her own injurv through the influence of others. It appeared that the consequences which would result from her son or daughter dying before herself were not explained to her; that she supposed the instrument was in the nature of a will, and that it was the understanding that she should be empowered to substitute other trustees on ten days notice, which provision was omitted by inadvertence. Held, that the deed would not be set aside because it contained no power of revocation, but that it should be corrected by giving to her the power to dispose of the estate by will, or in default thereof for its descent to her heirs-at-law and next of kin and also the power to remove any trustee and appoint his successor on ten days notice, subject to the approval of the 'Court,

      Action to obtain liberty to resign as trustees under a deed of trust and for the annulment of said trust deed.

      Ansley Wilcox, for pl’ffs ; Adelhert Moot and George Wadsworth, guardians ad litem, for def’ts.
   Daniels, J.

The chief objects which the plaintiffs desire to accomplish in this action, is liberty to resign their trusts under a deed executed to them by the defendant, Margaret Gertrude Allen, and to obtain compensation for their services, and the reimbursement of moneys which they have advanced in the exercise of their authority. A disagreement has arisen between them and the grantor in this deed, who is the primary beneficiary under its provisions, disturbing their relations to such an extent as to render them incapable of friendly and cordial co-operation. And to avoid all further disagreements, the trustees should be permitted to resign, and they should be reimbursed out of the income of the trust estate the moneys advanced by them, and the sum of $1,000 by way of compensation for their services, and in full of their commissions as trustees. And they will also recover their costs in the action.

The trustees have also aslced for the annulment or cancellation of the trust deed, but in that relief they have no interest, and are not entitled to maintain the action to obtain that result.

The grantor m the deed, who is primarily entitled to its benefit, has also by way of counterclaim applied for a judgment to that effect But it clearly appears from her own evidence, as well as that of Mr. Parker, who drew the deed, that it was desired and intended by it to place her property, through its instrumentality, beyond her own control. She distrusted her ability to resist the influence or importunities of others who might endeavor to overreach her and obtain her property from her, and for that reason was anxious to place it beyond her own immediate control, and the creation of a trust having that effect was voluntarily and unstandingly accepted by her, and so far as the deed has been directed to that object it appears to have conformed to her desire and intention. It is true that she says that she did not intend to place her property beyond her own control. But at the same-time she did intend to create a trust which would, as it has, prevent her from incumbering or disposing of her property, and with that intention in view she could not have anticipated or expected that she would still be at liberty to control her estate. These objects are plainly incompatible, and the latter necessarily yielded to the former, as that was the paramount and controlling intention leading to the creation of the trust. Without the surrender of the future power of incumbrance and disposition the trust would fail of the object, for she would then be left as_ completely subject to the influence and control of others, as if the-trust were not created at all.

It has been urged that a power of revocation should have been reserved to, or in fact designedly surrendered by her. But no rule of law or equity positively requires that reservation. It has been often put forth to that effect in decided cases, it is true, but' they have been abridged in their effect by later decisions of the courts. In Garnsey v. Mundy, 24 N. J. Equity, 243, there were other circumstances supporting the conclusion that the person who executed the deed was under a material misapprehension of its effect, and that chiefly led to the setting aside of the instrument. And. the same remark is also applicable to the case of Conkling v. Davies, 14 Abb. N. C., 499. And in Gibbs v. N. Y. Life Ins. Co., id., 1, there were also important circumstances rendering it inequitable to sustain the deed. So there were in Everitt v. Everitt, L. R., 10 Equity Gases, 405, where the deed was made by a woman who had but recently attained her majority. But in Phillips v. Mullings, L. R., 7 Ch. App., 244, it was held that a deed making a voluntary settlement of an estate would not be set aside for want of a power reserved in it for its revocation. But it must depend upon circumstances whether such a power should or should not be made a part of it. And the case of Viney v. Abbott, 109 Mass., 300, is equally as decisive on this subject. In the present case the circumstances do not indicate the propriety of making that power a part of the deed.

It would be, on the contrary, inconsistent with the object the deed was intended to attain, which was to secure the property against its disposition or incumbrance by the defendant herself, as she might be in danger of acting to her own injury by the influence others might exert over her. This deed cannot, therefore, be set aside because it contains no power for its revocation.

But to sustain it, the law does require that it shall appear to have been explained to and understood by her before she executed it. Phillips v. Mullings, supra; Henshall v. Fereday, 27 Law Times, N. S., 743; affirmed 29 id., 46; Dutton v. Thompson, L. R., 23 Ch. Div., 278. And to the extent already considered, that has been proved to be the fact.

But as to the direction which the estate shall take after hex-decease, the evidence does not supply that degree of support to the deed. It was not explained to her that in the event that her son or daughter died before herself, the entire estate would unqualifiedly go to the survivor of these two children, which would disinherit the children of her deceased child, if any there should be, dying during her own life. And there is not the slightest evidence that she ever intended that possible result. As to this part of the deed it is in conflict with the principle just mentioned. And so it is as to the fact, proved by the evidence, that this direction was regarded by her as her will, which, if it had been true, would have rendered her estate subject to her future disposition by a subsequent” will.

It was also the understanding that she herself should be empowered on ten days notice to set aside the trustees nominated in the deed, and select another to act in their place. And that has been wholly omitted from the deed by inadvertence and oversight in the hurry of preparing it. In these respects it cannot be sustained, and might be wholly set aside for failure to secure to her the power to change the final disposition of her estate by a last will. But it is not necessary that it should be, and the exercise of that power should not be made, for the defendant would thereby be exposed to the effect of such influences as she feared, and which it was her design to guard against, arid which it is also the duty of the court to prevent her from being exposed to. The law requires her to be subjected to no such risk. For it permits the deed to be so changed in these respects as to harmonize it with the intention inducing its execution.

This subject was considered in James v. Couchman, L. R., 29 Ch. Div., 212, where a power of appointment was added to a deed made to protect the grantor, as this deed was, and the same power over the deed will allow it to be also corrected by adding the omitted authority to remove the trustees, and with the approval of her selection by the court, appoint another ■ in their place, on ten days notice, subject of course to the power of the court to appoint if such a voluntary selection shall-not be made within such time as shall be sufficient for that purpose.

In these, but in no other respects, the deed should be corrected, by giving to this defendant the power to appoint, or dispose of the estate by her last will, or in default of that disposition then for its descent to her heirs-at-law and next of kin, and reserving to her the power to remove any trustee of this estate on ten days notice, and within that time appointing another by executing, acknowledging and recording an instrument to that effect, but subject to the approval of this court. But in all other respects the trust deed will be confirmed. Judgment to that effect will be directed, with liberty to apply for any further directions appearing to be proper. The decision will be signed after service of a copy, with notice of settlement on the attorneys for each of the parties.


author: Freedman, J. Freedman, J.

text:
    Charles G. Gabrielson, Pl’ff, v. Frederick Waydell et al., Def’ts.

      (New York Superior Court, Trial Term,

      Filed January 23, 1891.)

    Ships and seamen—Liability of managing owner for assault by captain.
    The captain of a vessel during the voyage is the representative of the owners of the vessel, and not a mere fellow servant, and the managing owners are liable for an assault committed by him upon a member of the crew while upon the high seas, unless the act was done maliciously and was wholly unconnected with any duty he owed the owners at the time.
    The action was brought by the plaintiff, a seaman, against the defendants, as managing owners of a vessel, to recover damages for an assault committed by the captain of the vessel on the high sea upon the plaintiff.
    The issues were brought to trial at a jury term. At the close of plaintiff’s evidence the defendants moved for a dismissal of the complaint. The motion was denied.

      George P. Gordel (George G. Holt, of counsel), for pl’ff; N. B. Hoxie. for def’ts.
   Freedman, J.

This is an unusually important case, and as such I have taken great pains to come to a correct conclusion. The main question in the case is, whether the managing owners of a vessel can be held liable in damages for an assault committed by the captain on the high sea upon a member of the crew.

It is claimed, in the first place, that such an act is the act of a fellow servant, for which the employer is not liable. In this I cannot concur.

The captain of a ship during a voyage is in full control of the ship. He is the supreme commander, and from the necessities of the case everything necessary to the preservation of the ship and the successful prosecution of the voyage is left to his discretion.

It is his duty to preserve and enforce discipline among the crew, and, if the emergency calls for it, he may inflict punishment and even order a man to be put in irons. He is, therefore, from the very necessities of the case, the full representative of the owner, the alter ego, and not a mere fellow servant.

In the second place it is claimed that the assault in this case, which resulted in the fracture of plaintiff’s leg, was a wanton, willful and malicious act, and that therefore the defendants are not liable.

A careful review of the reported cases bearing upon this point, of which only a few can be referred to now, has led me to the following conclusions:

Ever since the decision of Mott v. The Consumers' Ice Company, 73 N. Y., 543, and the decision of Hoffman v. The New York Central & Hudson River R. R. Co., 87 N. Y., 25, it has been the settled law of this state, that for the wanton and willful acts of a servant, done within the general scope of his employment, while engaged in his master’s business, and with a view to the furtherance of that business and the master’s interests, the latter-is just as much responsible as for acts negligently done.

It is only when the servant without regard to his service, or to accomplish some purpose of his own, acts maliciously, that the master is not liable.

The rule has never been relaxed, and in a certain class of cases has been made even more stringent, so that now a common carrier of passengers as against a passenger can no longer claim exemption from liability for the willful act of a servant on the ground that the servant acted maliciously. Stewart v. The Brooklyn & Cross-town R. R. Co., 90 N. Y., 588; and Dwinelle v. The New York Central & Hudson River R. R. Co., 120 id., 117; 30 N. Y. State Rep., 578.

The rule being as stated, I cannot see why an exception should be made in favor of the managing owner of a vessel as against the willful and wanton acts of the captain done within the general course and scope of his employment as such. The exception cannot be made upon principle, and I can find nothing in the maritime law or the law of shipping, or any statute which calls for it.

It has been urged that the present action is without precedent, and that if it were sustained the ruling would be destructive to commerce and encourage the institution of numerous suits with which the court should not be burdened.

A judge cannot permit himself to be influenced by such considerations, if the justice of a case requires that a precedent should be established and if the precedent can be established upon principle and without violation of any settled rule of law.

In the present case justice does require that a precedent should be established, so far as this state is concerned, for outside of this state I have found a few cases in favor of the proposition that the action will lie.

In Spencer v. Kelley, 32 Fed. Rep., 838, the court said that an owner of a vessel is liable to a seaman for injuries sustained by an assault by the captain, provided that in the infliction of the injuries complained of the captain was acting within the scope of his duty and in the exercise of his control over the plaintiff.

In Hunt v. Colburn, 1 Sprague, 215, the owners were held liable to seamen for damages sustained by reason of their being left in a foreign port by the act of the master (see, also, Croucher v. Oakman, 3 Allen, 185), in which case the owners were made responsible for the tortious act of the master in shooting and wounding a mate, compelling him to remain on shore and rendering him unable to earn his wages.

In McGuire v. Golden Gate, McAllister, 104, the owners of a vessel were held liable for the master’s torts inflicted while in the avowed preservation of discipline.

The true test always is, was the act complained of done by the captain within the general course and scope of his employment as such, and with a view to further the interests of his principal ?

Moreover, I do not believe that to sustain the present action will have the disastrous consequences to commerce that have been pictured.

The result will simply call upon owners to inquire into the characters of their captains more fully than perhaps they do now, and will make owners more careful in the selection of their captains.

As soon as the owners do this, the captains will learn of it and will try to accommodate themselves to the new order of things. In this way humane feelings will be aroused and dispositions to cruelty will be checked, and thus the interests of humanity will be greatly promoted. The owners are at liberty to arrange with the captains as to indemnity against this liability, and thus may protect themselves. So, if a captain is well known to be a man of well-balanced mind and even temper, the crew, on enlisting, may be found willing to exempt the owners from liability by a special provision in the shipping articles to that effect.

But it is wholly unnecessary to consider consequences any farther.

Having been unable to find a valid reason for making an exception to a general rule of law which is well settled, it is my duty to,enforce the rule.

The motion to dismiss the complaint must, therefore, be denied, and the case must be submitted to the jury upon the question whether the assault complained of was or was not committed by the captain within the general course and scope of his employment as such. But as the cause of action does not survive, the complaint must be dismissed against the defendants who represent estates, unless the plaintiff shows affirmatively that the respective shares now held by said estates were so held at the time at which plaintiff’s cause of action accrued.

At the close of the evidence on both sides, the case was submitted to the jury under the following charge, viz.:

Freedman, J.

Gentlemen of the jury: This is a case of unimportance, requires great care your deliberations, and in your determinations.

You will be called upon to determine certain questions of fact which I shall submit to you, but in their determination it will be your duty to take the law as I shall lay it down for your guidance, and to apply it to the facts as you may find them. For the law of the case I alone am responsible, and no part of that responsibility is yours.

Now the defendants in this action are sought to be held as the managing owners of the vessel in question for the consequences of an assault committed by the captain of the vessel on the home voyage upon the plaintiff, a seaman on board of the vessel, which resulted in the fracture of plaintiff’s leg.

Now the captain of a ship during a voyage is in full control of •the ship. He is the supreme commander, and from the necessities of the case everything necessary to the preservation of the ship and the successful prosecution of the voyage is left to his discretion.

Among other things it is necessary that he should preserve and enforce discipline among the crew, and to that end he is justified, if the circumstances render it necessary, to use the necessary amount of force. He may even order a man to be put in irons if an emergency calls for it.

In trying to ascertain the amount of force to be legally used by him on a particular occasion, great allowance must be made for the infirmities of human nature, the necessities of a particular occasion, and the character of the man or men the captain has to deal with, and the owners of the ship are not to be held liable for an erroneous judgment on his part as to the amount of force to be used leading to the use of excessive force if there were reasons, or there was some reason, in the appearances for the resort to force.

It is only for the employment of excessive force which is wholly unjustifiable upon any state of facts which the captain had to deal with, or which he might have reason to apprehend, that the owners can be held, and then only if such force was used in the performance by the captain of something which he assumed to do in the line or within the scope of his duty, or supposed duty, to the owner. In other words, it must have occurred in the line or within the scope of his employment by the owner.

If, therefore, the captain in this case committed an assault upon the plaintiff maliciously and for some purpose of his own, and wholly unconnected with any duty which he owed to the defendants as owners at the time, or which he assumed to discharge, the defendants are not liable, and they are entitled to your verdict. But if the plaintiff was struck while the captain assumed to do something within the general course and scope of his employment as captain, and with a view to further the interests of the owners, you must determine whether or not there was an excess of force used within the rules laid down by me. If there was, the defendants are liable for the legitimate consequences of the use of such excessive force.

The burden of proof is upon the plaintiff throughout, and he must establish a case within the rules laid down by me, and he must establish.it by a preponderance of evidence. By that I mean, not a preponderance-in point of number of witnesses, but a preponderance of facts and circumstances which carry conviction to your minds.

An evenly balanced case is not enough. If, therefore, upon a consideration of all the facts and circumstances, inclusive of probabilities, which you have a right to consider, you should come to the conclusion that the case is so evenly balanced that you cannot tell upon which side the evidence preponderates, in that case the defendants are entitled to your verdict.

How, you have seen the plaintiff upon the stand and you have heard his testimony, and you observed the manner in' which he gave it; the same may be said with regard to the other witnesses in the case. You have heard the testimony of all the witnesses in the case, and it is for you to say, upon a consideration of all the circumstances, how much or how little credit you will attach to the testimony of each and every one of them.

If the plaintiff has not made out such a case as I have told you it is necessary for him to make out in order to recover, the defendants are entitled to a verdict.

So, if you should believe the testimony of the second mate, and upon it should find that the injury was inflicted upon the plaintiff by the first mate with a marling-spike, the defendants are entitled to a verdict, because, in the first place, the plaintiff has given no evidence that the first mate at the time acted within the general scope and course of his employment as mate, and secondly, because, under the circumstances of this case, the first mate was a fellow servant as regards the plaintiff.

But if the plaintiff has made out a case within all the rules laid down by me, you must go farther, and it will then become your duty to assess the damages to which he is entitled.

How these damages are to be assessed upon the theory that the plaintiff, if he is entitled to recover at all, should have a fair compensation for the injury actually sustained.

As the defendants neither authorized the assault nor connived at it or ratified it, they are in no aspect that can be taken of the evidence, liable in • exemplary or punitive damages. But, in assessing the damages to which the plaintiff is entitled, if he is entitled to recover at all, you may consider the nature and extent of his injuries, his inability to attend to any business for a certain period, and his inability thereafter to attend to business in his usual and accustomed way, and his physical pain and mental suffering. If upon the whole case you are satisfied that the injuries will involve consequences in the future, you may consider those consequences, provided upon the evidence you can say, with reasonable certainty, that they are the direct and natural result of the assault for which the defendants are liable.

Any consequences which are merely likely to result from the first injury, must be disregarded. For any remote consequences •which are not the direct and natural result of the assault you can award no compensation.

You, therefore, cannot give the plaintiff anything for any consequences flowing from the fact that he was subject to chills and fever. So no damages can be given solely by reason of the fact that the vessel had no doctor or surgeon on board, for the owners were under no obligation to have one on board; nor can. any damages be given for the reason that the vessel did not put into the port of Havana or any other port

This, I believe, is all that the facts of the case call upon me to say. If there is anything else which counsel desire me to submit, they should speak.

The jury then withdrew, and after some time they returned with a verdict in favor of the plaintiff in the sum of $1,200.


author: Per Curiam.

text:
    Peter De Lacy, App’lt, v. Alfred L. Walcott et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Depositions—Examination before trial.
    An affidavit to procure an order for the examination of a defendant before trial to enable plaintiff to frame his complaint, should show a want of information as to subject matters, information of which will enable the party to make allegations that are material to the proper framing of a pleading, and should contain such particularity of statement as to the subject matter that the court may designate and limit the matters to be inquired into. An ignorance of details and particulars generally referred to without specification as to the kind of detail or particularity does not show that sufficient knowledge or information is not possessed to enable the plaintiff to frame a complaint without uncalled for particularity or minuteness.
    Appeal by plaintiff from an order vacating order for examination of defendant to enable plaintiff to frame complaint.

      F. J. Myers, for app’lt; Lowrey, Stone & Auerbach, for resp’ts.
   Per Curiam.

The affidavit on which the order for the examination was based, after giving the usual preliminary statements, proceeded to give the facts that would show the nature of the action, and proceeded as follows: “ The complaint to be framed herein will, after the discovery sought, state appropriate allegations based upon said facts and demand judgment, etc. I do further say I have diligently endeavored to ascertain information and evidence of the details and particulars of the matters hereinbefore set forth, and as I am informed and believe, my said attorneys have likewise endeavored so to do, but cannot procure or obtain the same either by statements or admissions of the defendant, Alfred L. Walcott, and also by reason of the fact that the book and record of the defendant, The Eapid Transit & Bridge Construction Company, are obliged to be kept in the city of Chicago aforesaid, so that proceeding for an inspection of their records is not available to deponent or his attorneys.”

It thus appears that the affidavit does not show the materiality or the necessity of the examination for the admitted purpose of the application to frame a complaint. To make appropriate allegations does not call for new knowledge to be gained from an examination, for they are to_ be based upon “ said facts ” which are known and stated in the affidavit. An ignorance' of details and particulars, generally referred to without specification as to the kind of detail or particularity, does not show that sufficient knowledge or information is not possessed to enable the plaintiff properly to frame a complaint without uncalled for particularity or minuteness.

Indeed it does not appear that the plaintiff is not possessed of all the information the examination might furnish, although the affidavit avers that he has been unable to obtain the information from certain specified persons. Non constat that there have not been other sufficient sources of knowledge. The vacating of the order was called for on these grounds.

An affidavit to be sufficient to maintain such an order should show a want of information as to subject matters, information of which will enable the party to make allegations that are material to the proper framing of a pleading. The affidavit is so vague and indefinite as to the matters that it cannot be perceived from all the averments taken together that what the plaintiff seeks in the examination will be necessary to the complaint. Therefore it does not appear that the examination is necessary and material within the meaning of the Code.

There should be such a particularity of statement as to the subject matter referred to, § 873, that the court may “designate and limit* the particular matters as to which ” a party to an action shall be 'examined. This provision is for the benefit of the party to be examined, and the papers should disclose sufficient to enable the judge, in his discretion, to direct what course the examination may take, and the party should have the means of claiming his right in that regard. On the present affidavits a judge could not make such a direction as the section intends.

Order affirmed, with ten dollars costs.

Sedgwick, Oh. 'J., and Truax, J., concur.


author: Truax, J.

text:
    Dennis W. Moran, Pl’ff, v. George Conoma et al., Def’ts. In the Matter of Mayer and Simon Loeb, Purchasers, App’lts.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Foreclosure—Parties—Unknown owners.
    George Conoma executed a mortgage in 1853, and shortly afterward left the city, he being a sailor, and has never since been heard from. On foreclosure of such mortgage the plaintiff made Conoma a party defendant, and also all unknown owners, “such owners being herein described as the wife, widow, heirs at law, devisees, grantees, assignees or next of kin, if any, of said defendant George Conoma, and their respective husbands and wives, if any, all of whose names" were unknown. Held, that the unknown parties were properly designated; that judgment could be entered against them without evidence that they were in fact unknown or absentees, or that Conoma died without heirs at law dr next of kin, and that a sale on the foreclosure conveyed a good title.

      (Wheeler v. Scully, 50 N. Y., 667, followed.)
    This is an appeal from an order made at the special term, granting the plaintiff’s motion to compel Mayer Loeb and Simon Loeb, appellants, as purchasers of certain mortgaged premises described in the decree of foreclosure and sale herein, to comply with the referee’s terms of sale and complete their said purchase.

      F. J. Myers, for app’lts ; James Kearney, for pl’ff; S. F. Higgins et al., for def’ts.
   Truax, J.

The action was brought to foreclose a mortgage made in February,' 1853, by the above named George Conoma. Shortly after making the mortgage the said George Conoma, who was then a sailor, left Mew York, and has never since been heard from.

The plaintiff made said mortgagor, George Conoma, a party to the action, and he also made “ all persons unknown having or claiming an interest in the premises described in the complaint, such unknown persons or owners being herein described as the wife, widow, heirs at law, devisees, grantees, assignees, or next of kin, if any, of said defendant George Conoma, and their respective husbands and wives, if any, all of whom and whose names, except as stated, are unknown to the plaintiff.”

There were other persons made defendants with the same general description. It is not necessary to set out in full the names of those so made defendants.

The appellants contend that the court could not render judgment against the alleged unknown owners without some evidence that they were in fact unknown or absentees; or that the said George Conoma died without heirs at law or next of kin, and refer to § 451 of the Code of Civil Procedure, and to certain cases as authority for that contention.

Section 451 says that “ where the plaintiff is ignorant of the name, or part of the name, of a defendant, he may designate that defendant in the summons * * * by a fictitious name, or by as much of his name as is known, adding a description indentifying the person intended. Where the plaintiff demands judgment against an unknown person, he may designate that person as unknown, adding a description tending to identify him. In either case the person intended is thereupon regarded as a defendant in the action and as sufficiently described therein for all purposes, including service of the summons as prescribed in article second of the last title.” This section is composed of § 175 and part of § 135 of the old. Code.

We are of the opinion that Wheeler v. Scully, 50 N. Y., 667, is a direct authority against the appellants in this action. That was an action for the foreclosure of a mortgage executed by the defendant, Scully, and, as in this case, in that the mortgagor, Scully, left the state in the year 1853 and has not been since heard from. Service of the summons was made under subdivision 6 of § 135 of the old Code, which is as follows: “In actions for the foreclosure of mortgages on real estate •- "" * if any party or parties having any interest in or lien upon such mortgaged premises are unknown to the plaintiff, and the residence of such party or parties cannot with reasonable diligence be ascertained by him, and such fact shall be made to appear by affidavit to the court * * * such court * * * may grant an order that the summons be served on such unknown party or parties by publishing the same * * * which publication shall be equivalent to a personal service on such unknown party or parties.”

In Wheeler v. Scully, the printed book on appeal shows that the action was brought against “ Patrick Scully if living, and his wife, if any, whose name is unknown to plaintiff, and the widow, devisees, heirs at law and next of kin of the said Patrick Scully, if deceased, who are unknown to the plaintiff.” Judgment was perfected in that action, and upon the sale the premises were bid off by one Cabré. He refused to take title and complete the purchase upon the ground that from the length of time which had elapsed it was to be presumed that the mortgagor was dead; that it was as much to be presumed that his heirs at law were infants as that they were adults, and if infants the judgment did not bar them as the service of summons was not sufficient as against infants. Whereupon a motion was made to compel him to complete the purchase. It was held by the court of appeals that if it be conceded that the presumption was that the mortgagor was dead, as to which the court expressed doubt, and if the unknown heirs were infants, they were bound by the service ’ as the subdivision of § 135 above referred to made no exception in case the unknown defendants were infants; and that if otherwise, there was no presump'tion that they were infants, and this was for the purchaser to show in order to justify his refusal.

We are unable to distinguish Wheeler v. Scully from the case before us.

The order appealed from is affirmed, with costs to the plaintiff.

Sedgwick, Gh. J., and Dixgro, J., concur.


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    James Renwick, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    1. Case—Certificate.
    A certificate that the case on appeal contains all the evidence does not mean that it contains in fact every word of evidence that was given on the trial; but that it contains all the material evidence given.
    2. Same.
    It is the duty of an appellant to insert in the case so much of the evidence as he considers material to present the questions involved on the appeal. If it does not fairly present the testimony the respondent may propose amendments and it is the duty of the judge to settle the case. But where the respondent does not call the attention of the judge to any material testimony that has been left out, the appellant is entitled as of strict right to a certificate that it contains all the evidence.

      Appeal from an order denying a motion made by the defendants why the case on appeal herein should not be resettled in certain specified particulars.

      Davies & Rapallo, for app’lts; Peckham & Tyler, for resp’t
   Truax, J.

The trial judge in settling the case struck out the following words: “ The foregoing case on appeal contains all the evidence taken upon the trial of this action,” and of his action in striking out those words the appellant complains.

The respondent contends that the action of the trial judge was right, because in fact the case does not contain all the evidence taken upon the trial of this action. It, therefore, becomes necessary for us to determine the duties of the respective parties in making and settling a case.

This court will not consider questions of fact on appeal unless the case contains a statement of the kind above noted; but those words do not mean that the case in fact contains every word of evidence that was given on the trial. It means that it contains all of the material evidence that was given on the trial. Courts have frequently condemned the practice of transcribing stenographer’s minutes and calling them a bill of exceptions or a case.

It was the duty of the appellant to make the case, inserting so much of the evidence as he considered material to present the questions involved on the appeal. If the case, as proposed by him, did not fairly presént the testimony, the - respondent could then propose amendments, and it was then the duty of the trial judge to settle the case. Lidgerwood Manufacturing Co. v. Rogers, 56 N. Y. Supr. Ct., 350; 21 N. Y. State Rep., 452.

In Perkins v. Hill, 56 N. Y., 87, it was said that when exceptions are taken to findings of fact and a case is made for the purpose of reviewing those findings, it must be assumed that all the evidence in support of the findings excepted to is inserted in the •case. If the party making up the case omits any such evidence it is the plain duty of the other party to cause to be inserted by amendment the evidence which he deems material to sustain the findings excepted to.

This case was cited with approval by the same court in Porter v. Smith, 107 N. Y., 531; 12 N. Y. State Rep., 479, in which it was said that under the new Code forbidding exceptions to findings of fact, the respondent gets no warning or notice of an intention to review questions of fact unless the case certifies that all the •evidence has been included. If it so certifies, the respondent must look to it that nothing which he deems essential is omitted; but if it does not so certify, he is not in fault for supposing that questions of law only are intended to be reviewed and omitting to load the case with needless proof.

I think under these decisions it must be taken for granted that the case presented by the appellant did contain all of the material evidence that had been given on the trial. It so contained all the material evidence because the respondent had not seen fit to call the attention of the trial judge to any material evidence that had been left out.

Such being the case, the appellant was entitled as of strict right to have the certificate in the case, and the order denying the motion was erroneous.

The learned judge before whom the case was tried, in his opinion on denying the motion, said, that the amendment striking out the above certificate was allowed by him because the case on appeal as presented by the defendants did not contain all the evidence, and that his assent to a statement that it did contain all the evidence would have been false.

But in this we think he erred. The case did contain all the evidence that had been deemed by counsel for the appellant and by counsel for the respondent material to the issues.

As was said by the court, of appeals in The New York Rubber Company v. Rothery, 112 N. Y., 596; 21 N. Y. State Rep., 841, “ we cannot, of course, dictate to a trial court how a case shall be settled, and we do not presume to do any such thing in this case. We can only say that upon the facts appearing as they do here, the motion for the resettlement of the case ought to be granted to the end that the question may again be presented to the learned judge so that he may have an opportunity to resettle it in such manner as shall be consistent with the facts; an opportunity which we are sure none would feel greater pleasure in embracing than the distinguished and learned judge ■ who presided on the trial of this case.”

On such resettlement the counsel for the respondent may, if he be so advised, make the case proposed by the appellant contain all the material evidence in the case. The evidence that was left out can be put in a short space. There is nothing to show that this evidence was left out in bad faith by the appellant. If it were so left out another question would arise.

The order appealed from is reversed, with costs, and the case is sent back to be resettled in accordance with the above opinion.

Sedgwick, Oh. J., and Dugro, J., concur.


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    Daniel W. Tallmadge et al., App’lts, v. Phineas C. Lounsbury, Pres’t, Resp’t.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Reference—Report.
    Within sixty days after the submission the referee filed a document which contained a statement of his reasons for his final action, and gave judgment dismissing the complaint. Meld, that although it contained no findings of fact, as required by the Code, the omission thereof did not prevént it having the character of a report, even if it was imperfect and an insufficient foundation of a judgment, and that plaintiffs were not entitled to have the reference ended under § 1019 of the Code.
    Appeal by plaintiff from order denying motion to vacate a judgment against him.

      Alexander /S’. Bacon, for app’lts; Blanchard, Cay & Phelps, for resp’t.
   Per Curiam.

The action had been referred to a referee to hear and determine. Within sixty days from the time the cause was submitted, there was filed a document made by the referee. This was assumed to be a decision or report of the referee, and upon it judgment was entered in favor of the defendants. After the expiration of the sixty days, a notice was given to end the reference on the ground that no report had been filed with the clerk or delivered to one of the attorneys, as provided by § 1019, Code Civ. Pro. And thereupon the motion below was made and denied.

The ground taken by the plaintiff was that the document referred to was not a decision or report of the referee, within the meaning of the Code. That document was in its beginning a statement by the referee of reasons for his final action, and it ended: “ For the reasons stated, I am forced to the conclusion that whoever may owe the bill in suit, the defendant certainly does not, and I therefore believe the bill ought to be dismissed upon the merits, with costs; judgment accordingly.”

This is substantially a direction that there should be judgment for the defendants that the complaint should be dismissed. Although it is the case that the document contained no findings of fact, as required by the Code, this omission did not prevent the document having the character of a report, even if such report be extremely imperfect and an insufficient foundation of a judgment. The referee had made, within the intent of § 1019, his report within the sixty days, and having made it, such as it was, the plaintiff was not entitled to end the reference and to have the cause proceed as if there had been no reference. The judge below, therefore, was right in refusing to vacate the judgment under the notice given. This conclusion leaves the parties to the appropriate remedy in a case where there has been a report and judgment upon it cannot be entered properly.

. To the case as it was presented by the motion it was immaterial that the decision had not been made part of the judgment roll. Under § 1019, it was enough that the decision had been filed within sixty days.

Order affirmed, with ten dollars costs.

Sedgwick, Oh. J., Truax and Dugro, JJ., concur.


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    Edward Sutorius, App’lt, v. Eugene W. Dunstan, Resp’t.

      (New York Superior Court, General Term,

      Filed March 2, 1891.)

    Undertaking—Arrest—Liability of sureties.
    An undertaking given upon obtaining an order of arrest was conditioned that plaintiff, if held not entitled thereto, would pay all costs awarded to defendant and all damages which he may sustain by reason of the arrest, not exceeding a specified sum. Held, that the sum specified included both costs and. damages, and that the plaintiff having paid costs to that amount the sureties are not further liable on the undertaking for the damages from the arrest.
    Appeal by plaintiff from a final judgment for defendant, on demurrer to complaint.

      Charles Stewart Davison, for app’lt; Daniel D. Sherman, for resp’t.
   Per Curiam.

The complaint charged the defendant as one of the sureties upon an undertaking given to procure an order of arrest. It was averred that in the action in which the order was granted there was a judgment for costs for the defendant for a sum greater than $250 and that such judgment was paid. On the argument, it is not denied that this payment enured to the benefit of the surety, this defendant. But it is claimed that he remained liable to pay damages which the plaintiff sustained, by reason of the arrest, not exceeding $250. And the action is to recover the damages to that extent.

The undertaking follows the words of § 559, Code Civ. Pro. The undertaking of the surety is that if the defendant recover judgment or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant and all damages which he may sustain by reason of the arrest, not exceeding the sum of $250.

The wording is such that the meaning may be obscure, yet on the whole it should be held that the sum specified is intended to describe the limit of the liability of the surety. To make such a provision practically effective, in protection of the person arrested, there should be a surety or a party that possesses means enough to fulfill the undertaking and a method prescribed for ascertaining the means. It has always been the practice to require some kind of proof on this subject.

On this subject § 812, Code Civil Procedure, requires that a bond or undertaking executed by a surety must be accompanied by his affidavit to the effect that he is worth the penalty of the bond or the sum specified in the undertaking, etc. There is an intent to place the penalty, if it be a bond, on the level with the sum specified in the undertaking. It is evident that the latter is a sum in which the surety undertakes. There is no reason for excluding from the justification a test of sufficient means to pay costs, and yet this would be the result if the sum specified referred only to damages. These considerations guide us to the result that the section intends that all costs and all damages shall be taken in conjunction and that to them together shall be applied the words: “not exceeding the sum specified in the undertaking.”

As on the argument it is conceded that the defendant has upon his undertaking the benefit of the payment of costs to the extent of $250, he is not further liable upon the undertaking for the damages from the arrest.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and Truax, J., concur.


author: Parker, J.

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    In the Matter of the Judicial Accounting of Hannah McGowan, Executrix of John F. Wallace, Dec’d.

      (Court of Appeals, Second Division,

      Filed April 7, 1891.)

    1. Will—Legacy—Interest.
    Interest on a general pecuniary legacy begins to run one year after the grant of letters testamentary or of administration.

      2. Same.
    The words “ granting letters testamentary or of administration,” as used in the statute includes letters of temporary administration.
    Appeal from a judgment of the general term of the supreme •court in the first judicial department, reversing a decree of the surrogate’s court of the county of Mew York as to the claim of one William Carroll, and also from the whole of such judgment.
    John F. Wallace died July 23, 1885, leaving a last will and testament. Objections to the probate of the will were filed, and thereafter and on March 3, 1886, letters of temporary administration were granted upon the estate of said deceased. The will was admitted to probate on the 29th day of June, 1887, and on that day letters testamentary were duly issued. By the will a legacy of $20,000 was given to the appellant. The executrix offered to pay the amount of the legacy with interest from the date of issue of letter's testamentary. The legatee insisted that he was entitled to interest after the expiration of one year from the date of death of testator. He finally received from the executrix the amount of the legacy less the collateral inheritance tax, with interest from the date of granting letters testamentary, under a stipulation which provided that: “ The above check is received by me without prejudice to my claim that I am entitled to interest from one year from the death of the testator, or for any further or other period and that I am not liable to pay the collateral inheritance tax. If the court decides in my favor on such or either of said claims, I am to receive such claims.”

      Malcolm Campbell, for app’lt; Charles H. Woodbury, for resp’t.

       Reversing 32 N. Y. State Rep., 226.

   Parker, J.

Two questions are presented by this appeal:

1. Whether interest on a general pecuniary legacy begins to run one year after the testator’s death or one year after the grant of letters testamentary or of administration?

2. If one year after grant of letters, does the time begin to run from the date of granting letters of temporary administration pending probate proceedings ?

The statute provides that no legacies shall be paid by any executor or administrator until after the expiration of one year from the time of granting letters testamentary or of administration, unless the same are by the will to be sooner paid.” 2 B. S., marg. p. 90, chap. 6, title 3, art. 2, § 43. Prior to such enactment, interest on legacies of the character therein referred to was payable one year after the death of the testator, the exception to the rule being founded generally on facts which the courts have deemed equivalent to a direction in the will to pay interest from the date of testator’s death.

Whether the effect of the statute was to change the time when legacies commence to draw interest from one year after the death of a testator to one year after the granting of letters has not been presented to this court in such manner as to require its determination, so far as we have observed, in but one case. In Kerr v. Dougherty, 17 Hun, 341, the general term held that such was the effect of the statute and accordingly modified the judgment, which embraced interest computed from one year after the death of testator. In the opinion of this court that proposition was not discussed, but the judgment as modified was affirmed, so that the question was necessarily considered and passed upon. 79 N. Y., 327. While it is probably true, as appellant insists, that in no other case has this court been required to pass on the question, still the effect of the statute in that respect has been commented on so frequently as to leave no room to doubt the view of the court, though Kerr v. Doughterty were not controlling. Bradner v. Faulkner, 12 N. Y., 472; Cooke v. Meeker, 36 id., 15-23; Thorn v. Garner, 113 id., 198-202; 22 N. Y. State Rep., 692; Van Rensselaer v. Van Rensselaer, 113 N. Y., 207—215; 22 N. Y. State Rep., 947. In surrogate’s court, a' number of decisions may be found adhering to the former rule, notwithstanding the cases above cited. Carr v. Bennett, 3 Dem., 459; Dustan v. Carter, id., 149; Clark v. Butler, 4 id., 378; Matter of Gibson, 24 Abb. N. C., 45; 27 N. Y. State Rep., 762.

The refusal of the surrogate’s court to accept the views of this court as expressed in the cases cited is founded on the claim that they are obiter. We shall, therefore, briefly allude to the reason which has led to the determination that the effect of the statute was to do away with the rule allowing interest on general legacies at the expiration of one year from the death of a testator. As that rule was not created by legislative enactment, we must ascertain the principle which led to its adoption. Originally it was assumed that the assent of the executor to the legacy was essential before the title of the legatee became complete, for without such assent the legatee had no authority to take possession of his legacy. The ecclesiastical court at an early period determined that a year from a testator’s death the executor should render an account of the performance of the whole will, Swinburne on Wills, part 6, § 19, and consequently that was the time when the executor should assent, or be presumed to assent, to the payment of legacies. The legacies then being due and payable at the end of a year, if payment was longer withheld the legatee was held to be entitled to interest thereafter, and for the same reason that interest is payable on all other demands after the principal becomes due. So a legacy made payable at a given, time by the terms of a will on the same principle is held to bear interest from the date when payment is directed to be made.

While it is true that many authorities may be found both in England and this country which declare that interest is payable on general legacies one year after the death of a testator, the basis of the decisions rests in the fact that at such time the principal becomes payable to the legatee.

So when the legislature declared by statute that no legacy shall be paid until after the expiration of one year from the time of granting letters unless the will direct otherwise, the principle upon which the former rule was founded required the courts of this state to hold that interest was not payable until one year after the issue of letters, for not until then was the legatee entitled to the principal. The general rule, then, from early times has been, and still is, that interest begins to run from the time when a legacy is payable. They were at one time payable a year after the death of testator. But in this state the legislature has postponed the time of payment until one year after the grant of letters. And the application of the principle which the courts have long enforced to this changed situation produces necessarily a different result. One which the law-making power, however, must be deemed to have contemplated.

The second question, whether the words “granting letters testamentary or of administration,” as used in the statute, includes letters of temporary administration, we think should be answered in the affirmative.

First. Because the legislature having used the words “ letters of administration ” instead of letters “ of administration with the will annexed,” must be deemed to have employed them in their broader meaning, so as to include letters of temporary administration as well.

Second. The inducing cause for the enactment does not militate against such construction.

Prior to the passage of chapter 456 of the Laws of 1890, the persons to whom letters were granted were required to wait six months before advertising for claims, and after that time they were directed to advertise for the presentation of demands by creditors for a period of six months. Necessarily, therefore, a year would elapse before it could be definitely ascertained whether after the payment of debts and funeral expenses, there would remain of the testator’s estate an amount sufficient to pay legacies. Hence, the statute forbidding their payment until such time.

When, as in this case, delay in the probate of a will is occasioned by a contest, letters of temporary administration may issue. Code Oiv. Proc., § 2668. The temporary administrator has authority to take into his possession personal property, to secure and preserve it, collect choses in action, and maintain actions therefor. Code, § 2672. He may publish the usual notice to creditors requiring them to exhibit their demands to him, and such publication has the same effect as to him, and also as to the executor or administrator subsequently appointed, “ as if the temporary administrator was the executor or an administrator in chief, ana the person to whom the subsequent letters are issued was his successor.” Section 2673.

After a year has elapsed, the surrogate may, on the application of a temporary administrator, or on petition of a creditor, in a proper case, make an order permitting the payment of the whole or. any part of a debt Section 2674.

When the appointment of a temporary administrator is occasioned by the absence from the state of an executor named in the will, the surrogate may direct him to make payment of a legacy or other pecuniary provision under a will, as though he were executor or administrator. Section 2672.

The statutory provisions referred to make it apparent that the" temporary administrator is invested with the authority and the-, duty to take ail the steps which an executor can take for the purpose of ascertaining the condition of the estate at the expiration of a year from a grant of letters. There was no occasion, therefore, for the legislature to provide that the time occupied by the temporary administrator should not be included in the year which must elapse between the issue of letters and the time when legacies are payable, and we do not think that the language employed, should receive such a construction.

Letters of temporary administration were granted March 3,1886, and, therefore, the legatee became entitled to interest from March 3, 1887. Interest was only allowed him from June 29, 1888.

The judgment of the supreme court and decree of the surrogate should be reversed, and the proceedings remitted for rehearing by the surrogate, with costs payable out of the estate.

All concur.