text:
    In the Matter of the Assignment of REYNOLDS CARPENTER and ANDREW P. CARPENTER to GEROTHMAN W. CORNELL.

      General assignee — when liable for Ms neglecting to attempt to recover property fraudulently transferred and the surplus of collaterals, pledged by the assignor before the assignment — When payments for taxes on properly encumbered beyond its value, which payments operate to benefit the assignee, will be disallowed.

    Upon an accounting by the defendant Cornell, an assignee for the benefit of creditors, who bad been removed upon the application of creditors of the assignors, the referee found that he should be charged with $73,137.63 mainly for negligence in respect to property transferred by the assignors before the assignment was made, and which was not reduced to possession by Cornell. The county judge being disqualified, the proceedings were transferred to the Supreme Court and heard at Special Term, that court sustained objections taken to the admission by the referee of evidence relating to such transfers or assignments, and struck out all the evidence taken by him “ relating to such acts and proceedings of the assignors prior to the making of the general assignment,” and reduced the amount for which Cornell had been held liable by the referee.

      Held, that it erred in so doing. (Boches, J., dissenting.)

      Matter of Raymond (37 Hun, 508) distinguished.
    The referee found, in regard to several insurance policies, which constituted a large part of the property in question, that they had been transferred by the assignors to persons claiming to be creditors, as collateral security, and that there was a surplus above the amount for which the policies were held as collateral.

      Held, that whatever doubt there might he in. the mind of the assignee, whether he should attempt to set aside a transfer of property on the ground that it had been made in fraud of creditors, there could or should he none as to his duty to recover any surplus arising from collaterals held by a creditor after payment of the debt.
    That the failure of the creditors or of the substituted assignee to take steps to recover the property was no defense to Cornell.
    That, an objection that the question of fraudulent transfer could not be litigated without making the fraudulent holders parties to the accounting was not valid, as it was proper, when inquiring as to the fidelity of the assignee, to prove what property he might have reduced to possession if he had made the attempt, although the holders thereof could not be made parties to the accounting and would not be bound by the judgment entered thereon.
    Fho Special Term allowed the assignee a credit of $445.95 for taxes paid on real estate, and twenty-eight dollars for interest on a Sweet mortgage, which had been disallowed by the referee. It appeared that real estate of the assignors, inventoried at $40,000, was encumbered by three mortgages, the first claimed to be held by Sweet (the amount secured by which did not appear); the second by Robinson, originally for $20,000, but reduced by payments, as Cornell knew, to about $5,000 or $6,000, and the third by Cornell for $5,000. After advertising, Cornell sold the property ro Robinson for twenty dollars, subject to the payment of the last two mortgages, no reference being made to the Sweet mortgage.

      Held, that as it appeared that the property was mortgaged for more than it was worth, and that Cornell held the last mortgage thereon, the payment of the taxes and interest was practically a payment for Cornell’s individual benefit and should not have been allowed to him.
    Appeal from an order of the Supreme Court at Special Term, made April9,18S6, and entered in the Rensselaer county clerk’s office, mono fro tuno, as of November 3, 1884, and from said order as modified and resettled May 1, 1886, which said orders modify, and confirm as modified, the report of Orin Gambell, Esq., a referee appointed by the Rensselaer County Court to take and state the account of Gerothman W. Cornell, who had been removed by order of the court from his position as assignee of the firm of R. Carpenter & Co., consisting of Reynolds and Andrew P. Carpenter, under a general assignment for the benefit of creditors.
    Reynolds Carpenter and another made a general assignment, March 17, 1876, to Gerothman W. Cornell. On the petition of Bliss & Allen, creditors of the assignors, an order was made by the County Court, November 6,1880, removing Cornell and appointing Francis N. Mann assignee in his place. Prior to the making of this order Cornell had applied to the County Court for a final accounting. Under that order the accounting, which had been suspended, was continued before a referee. Such accounting commenced September 29, 1881, and the referee’s report was made June 13, 1884. By this report the referee found that Cornell should be charged with $71,131.62, mainly for negligence in respect to property transferred by the assignors before the assignment, and not reduced to possession by Cornell. The county judge being disqualified, the proceedings were transferred to the Supreme ■ Court, and the matter was heard before the Special Term November 3, 1884. The counsel for Mann and for Bliss & Allen moving to confirm, and the counsel for Cornell and for Barker, an executor of one of Cornell’s sureties, moving to modify the report. The Special Term modified the report and held Cornell liable for a much less sum. Cornell having died after the assignment, the order was entered nunc pro tunc. Bliss & Allen appeal.
    The facts of Cornell’s death after the argument and of the entry of the order nuno pro tuno appear in the order. It appears that an order was made continuing the account against the administrator of Cornell. The referee reported the evidence and found facts, and exceptions were taken. The Special Term sustained the exceptions taken by Cornell and Barker, struck out all evidence taken by the referee “relating to such acts and proceedings of the assignors prior to the making of the general assignment,” that is, relating to the transfers or assignments of property by the assignors, and found that on the evidence “ now in the case ” Cornell was not chargeable with negligence in omitting to take proceedings to obtain possession of such property.

      James Lansing and E. Cownbryman, for the appellants.

      Levi Smith and JR. A. Parmenter, for the respondents.
   Learned, P. J.:

This proceeding is taken under chapter 466, Laws of 1877 (§ 20, subs. 1 and 3). It is not quite clear what the practice in such cases should be, whether the report of the referee authorizes the entry of an order thereon, or whether the matter is to be reheard by the county judge (in this case the Special Term). The parties here have followed the practice of having the matter reheard on its merits by the ¡Special Term upon exceptions taken to the report.

The important points on which the parties disagree are these: 1st. Whether Cornell was in fact negligent in failing to reduce to possession certain property previously transferred by the assignors, or in not attempting so to do. 2d. Whether he can be held liable for such alleged negligence in this proceeding. 3d. Whether the inaction of these creditors and of the new assignee since Cornell’s removal affects his liability, if any existed.

Now we understand that, as the case 'was heard before the Special Term, all evidence tending to show that Cornell was negligent in the respect above stated was stricken out and excluded as incompetent, although it is printed in the case before us. We are, therefore, unable to know whether the Special Term would not, on the whole evidence, have found, as the referee had done, that Cornell was in fact negligent. That such was the view taken by the learned justice is apparent from his opinion, which does not examine the facts in detail or discuss the question of actual negligence.

The learned justice in his opinion relies largely on a case decided in this court. (Matter of Raymond, 27 Hun, 508.) In that case the assignor, prior to making his general assignment to the assignee, had given him a bill of sale of some personal property, with intent to defraud the assignor’s creditors. The assignee had been removed and another appointed in his place. It was held that on an accounting of the original assignee he could not be charged with the value of the personal property thus fraudulently transferred to him. The point involved, therefore, was not whether the assignee could be held liable for neglect in failing to sue for, and recover from third parties, property rightfully belonging to him as assignee. And it was said in the opinion: “ The neglect of the assignee in a proper case to bring the necessary action against a third party to set aside such a fraudulent transfer might make him liable to the extent of the loss sustained.” Thus the opinion expressly admitted the right of creditors to charge the assignee with such neglect as is here charged. But the difficulty in that ease was that the creditors sought to charge the assignee with property transferred to him and claimed by him in his own right. That principle, if adopted, would enable creditors, on a mere accounting, to attack any purchase made long before by the assignee of the assignor. We thought no such principle necessary, since the new assignee, or the creditors themselves, had sufficient remedy by action. The views stated in that case are in harmony with remarks made in Matter of Holbrook (99 N. Y., 546). This court, however, has not held that on the accounting of an assignee a creditor could not show that the assignee had been negligent in failing to recover property fraudulently transferred to others. We remarked in the case above cited that “the question of his liability in such a case would plainly involve considerations other than the mere amount of property alleged to have been fraudulently transferred. It would involve the assignee’s knowledge that the transfer was fraudulent and the prospect of such a recovery as would be beneficial to the estate.”

The case of Haight v. Brisbin (100 N. Y., 219), though the principal points was as to the necessity of an accounting before action against sureties, yet shows, by what is incidentally said, that for such neglect of an executor he may be charged on said accounting. (See, also, Williams on Exrs., 180.) Harrington v. Keteltas (92 N. Y., 40); Daly's Estate (1 Tucker, 95); Schultz v. Pulver (11 Wend., 361); Laws 1858, chapter 314, gave power to assignees to disaffirm, resist and treat as void all acts done, transfers and agree, ments in fraud of the right of any creditor. If the assignee has this power, then an improper and unreasonable refusal or neglect to exercise it must be a violation of his duty; and for a violation of duty we see no reason why he may not be made to respond on an accounting. In saying this, we are far from saying that every refusal or neglect to exercise this power would be a violation of duty. We have above pointed out that the question of the assignee’s duty, in each case, involves an inquiry into the assignee’s knowledge and iuto the prospects of a recovery beneficial to the estate; and an assignee should not be held liable, unless on plain evidence of neglect. We must'.notice, too, that this matter of neglect must be judged as it appeared, or might have appeared, to the assignee at the time, not as it may appear upon subsequent and labored investigation. But the difficulty we meet is that the learned justice held that neither the referee nor the court had authority or jurisdiction to investigate, adjudge or determine the question as to the ■validity or invalidity of transfers or assignments, made by assignors to third persons previous to the execution and delivery of their assignment to Cornell, and he rejected and struck out all evidence relating to such acts as incompetent, and illegally and improperly received.

Now, of course, it would be impossible to examine whether Cornell had been negligent in not endeavoring to recover property thus transferred, without first proving the circumstance of the transfer. Such proof alone would not show negligence, but without it, no duty could be shown to arise; and on the evidence “ now in the case,” that is, remaining after striking out the evidence as aforesaid, of course it followed that no negligence was shown. But, further, the referee found, in regard to many of the insurance policies, which constitute a large part of the property in question, that they had been tranferred to creditors (as it was claimed), as collateral security, and that there was a surplus above the amount for which the policies were held as collateral. Clearly this surplus was property which belonged to the assignors, and should have been collected by Cornell. In thosS instances no question arose as to setting aside fraudulent conveyances, made by the assignors prior to the assignment. If those transfers were collateral to debts of the assignors, then, when those debts were paid, any surplus belonged to the assignors, and after the assignment to Cornell, the assignee. A neglect to take such surplus, or a permitting Ililand Carpenter wrongfully to appropriate it, would be a violation of duty for which the assignee would be plainly liable. Whatever doubt there might be in the mind of the assignee, whether he should attempt to set aside a transfer of property on the ground that it had been made in fraud of creditors, there could be, or should be, no doubt as to his duty to recover any surplus, arising from col-laterals, held by a creditor; after payment of the debt such surplus passed to the assignee. And in regard to transfers claimed to be fraudulent, it is said by the learned justice that “ it must necessarily be left to the discretion of the trustee whether, and to what extent, he should involve the trust estate in litigation ” in such cases. This is undoubtedly true. But for the trustee to exercise his discretion is one thing, to neglect to use any discretion at all is another. Negligent inaction is not discretion.

It is urged that the inaction of the creditors, Bliss and Allen, to take steps themselves to recover this property is a defense to Cornell. We think not. Cornell was their trustee; bound to faithful discharge of duty, for their benefit. He had taken the property of their debtor and thus had, to some extent, deprived them of the opportunity of collecting their debt therefrom. It has never been held that a trustee was not liable for breach of trust, because his cestui que trust might have brought an action to redress the wrong done to the trust estate.

Again, it is said that the new assignee might collect this property, and, therefore, the beneficiaries are not injured. Of course, there may be cases where a short delay or neglect of an assignee to reclaim property which belongs to him may work no real injury, and where a new assignee may be able to recover all that belongs to the estate. But the circumstances here are very different. If an assignee, by continued negligence, permits the original property to pass into the hands of persons who have no claim thereto, it is a poor excuse to say that a vigilant assignee substituted for him may recover it back. And it must be noticed that these creditors, Bliss and Allen, applied for the removal of Cornell in October, 1818, and it was on this application that he was finally removed, upon the ground of neglect of duty, and a new assignee appointed. Cornell opposed the removal and endeavored to retain the trust.

The assignee urges that the question of fraudulent transfer cannot be litigated here without making the fraudulent holders parties. They cannot be parties to this accounting, nor does it bind them; but yet it must be proper, when an inquiry is made as to the fidelity of the assignee, to prove what property he might have reduced to possession if he had made the attempt. And it is evident from the findings of the referee that his conclusions as to the negligence of the assignee in these several instances are partly based on the general manner in which the assignee conducted the business of the trust, leaving a son of one of the assignors to retain possession of papers and books, and to act in regard to matters of the trust, by reason of which the books were eventually destroyed by another son; mingling the trust moneys with his own, and in other ways neglecting his duty. This view of 'his negligence was taken by this court in the opinion written by Bockes, J., on a former appeal, and such negligence is very apparent on an examination of the case. And when we find this general neglect of duty, we are justified in characterizing thereby the particular instances which the referee has specified.

The referee has charged the assignee with these several amounts and wfith the interest thereon. To this interest the counsel of the assignee objects. But-it is to be understood that this interest represents the interest which the assignee might have recovered from those who held money belonging to the estate. If surplus moneys above the debts were received on the policies held as collateral, and a demand had been made for it, the assignee could have recovered interest.

The referee has disallowed a credit of $445.95 taxes on real estate and twenty-eight dollars interest on a Sweet mortgage, and this dis-allowance the Special Term reversed. The facts appear to be that Sweet is claimed to have held a first mortgage, Robinson a second, Cornell himself a third. Robinson’s was originally $20,000, reduced by the time of the assignment to $5,000 or $6,000 by moneys collected on policies, as Cornell knew. Cornell’s was $5,000. The amount of Sweet’s does not appear. The property was inventoried at $40,000. After advertising it, Cornell, as assignee, sold it for twenty dollars to Robinson, subject to the payment of the amount payable on these two mortgages. Nothing is said in the deed of Sweet’s mortgage. Robinson afterwards agreed to sell the land to Hiland Carpenter for the amount of these two mortgages and any indebtedness of the assignors to Robinson of his firm. In the assignee’s account he states that, at the time of the assignment, this property was mortgaged for more than its actual value. Thus Cornell, having in his own right the last incumbrance, instead ot paying the taxes from his own funds and thus adding to his own claim on the land, paid the same from the assigned estate, when the property would bring only twenty dollars -above the incumbrances. If he had not been personally the holder of the subsequent mortgage, it would be unjust not to allow him for the taxes paid, unless it was clearly shown that the payment was unwise. But when he was the last mortgagee, it is plain that this payment is practically a payment of money for his individual benefit. He should have paid it from his own funds. Then, if the property had sold for enough, he would have been reimbursed. We think the referee was right.

The referee has, in detail, found the facts in each instance on which he holds the assignee negligent. The Special Term has not found to the contrary upon any of these facts, except as the result of excluding all the evidence. We are of the opinion, as above stated, that this evidence was competent, and, on a careful examination of it, we think the referee’s findings were correct, except as mentioned hereafter. On such a hearing as this, perhaps, the same degree of conclusiveness should not be given to the findings as on a trial; but something of that is due to one who saw and heard the witnesses. And we cannot say that his conclusions in this case are “ manifestly against or contrary to evidence ” (Sherwood v. Hauser, 94 N. Y., 626), especially when the Special Term, to whom properly belongs the duty of passing upon these facts, saw no ground to find differently from the referee on the whole evidence.

In the twelfth finding of fact it appears that there is a clerical error made by deducting the amount received on one policy from its face value instead of its adjusted value. This reduces the amount charged against the assignee under that item from $3,015.67 to $2,646.83.

In the fouiteenth finding of fact the assignee is charged with the difference between the adjusted value of policies, $94,118.16, and the adjusted value of those shown to be assigned as collateral, $79,004.25, less the amount $6,831.32, with which the assignee charged himself. In regard to the total adjusted insurance, it is stated in the schedule attached to the assignment, and again is stated by the assignee in his schedule “A” filed on the accounting. It is, therefore, reasonable to take this amount as a starting point and to require the assignee to show where is the residue of the adjusted value of policies not shown to be assigned, unless we can find proof that this residue had been assigned before the general assignment. The counsel for the assignee claim that this deficiency is explained by the assignment of policies to Barker. No collateral security held by him is mentioned in the schedule attached to the assignment. The assignor’s ledger shows a balance due from him of $5,000, and the referee does not pass upon the validity of this amount. But the referee, in his thirty-eighth finding, does find that Barker held about $11,000 insurance policies collateral. The adjusted value of these would be over $9,000. Now, as the inventory does not mention that Barker had any policies as collateral, and as the charge in this fourteenth finding rests upon the deficiency above stated, it seems to us that the referee’s thirty-eighth finding is a sufficient explanation of this supposed deficiency.

We have examined the evidence in regal’d to the several findings of the referee in regard to the whole case. It cannot be necessary to go over it in detail. With the exceptions above stated, we are of the opinion that the report was correct, and should be affirmed. The modifications consist in reducing the charge of $3,015.68 to $2,616.83, with interest; in striking out the item of $8,282.58 and the interest thereon. Cornell must not be allowed the $173.95 taxes and interest, as allowed by the Special Term.

The order of the Special Term must be modified in accordance with this opinion. No costs to either party.

Landon, J., concurred; Bockes, J., dissented, concurring in the opinion of the Special Term.

Order of Special Term modified in accordance with opinion, without costs. Order to be settled by Learned, P. J.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    In the Matter of the Probate of the Will of MARGARET HANNAH.

      Power of an appellate court, upon an appeal from a surrogate’s decree, to receive further testimony — Oode of Civil Procedure, see. 2586 — what evidence will not justify it in exercising that power.

    The power conferred upon an appellate court by section 2586 of the Code of Civil Procedure to receive, in its discretion, further testimony or documentary evidence, and to appoint a referee, upon an appeal taken upon the facts from the decree of a surrogate, should be cautiously used.
    Pending an appeal taken from a decree of a Surrogate’s Court refusing probate of a will, on the ground of the mental incapacity of the testatrix, the appellant moved that the argument be postponed, and that the testimony of certain witnesses be taken under a commission. On the hearing before the surrogate testimony was given by the contestant, who was the only daughter of the testatrix, that there had been little or no correspondence for many year .between the testatrix and certain relatives in Scotland, who were, by the will, made legatees and devisees in case the daughter should die without issue. The evidence which the appellant, who is .one of the relatives in Scotland, idesired to produce would tend to show that there had been correspondence from time to time between the testatrix and the relatives in Scotland.

      jKeld, that the evidence which it was desired to produce was not of such import-anee as to justify the exercise by the General Term of the power given to it by this section.
    Appeal by James "Whitelaw, a legatee named in an instrument purporting to be the last will and testament .of Margaret Hannah, from a decree of the Surrogate’s Court of Washington Refusing to admit said will to probate.

      H. T. Terry, for the appellant.

      Lyman H. Northup, for the respondent.
   Learned, P. J.:

Probate of this will was refused, and an appeal has been taken by one of the legatees. 'This appellant now moves, under section 25S6 of the Code, that the argument be postponed, and that ,the testimony of certain witnesses be taken under a commission. Probate was refused on the ground of the mental incapacity of the testatrix. On the hearing, among other things, testimony was given by the contestant, who was the only daughter of the testatrix, that there had been little or no correspondence for many years, ’between the testatrix and certain relatives in Scotland, who were to be legatees and devisees in case the daughter of the testatrix should die without issue. The object of this evidence was plainly to indicate some weakness of mind in the testatrix.

Direct evidence was given on the hearing by expert and other testimony tending to show imbecility of mind of the testatrix. 'The evidence which the appellant (who is one of these relatives in 'Scotland) now desires to produce would tend to show that there had been correspondence from time to time between the testatrix and her family (including the contestant) and these relatives in ¡Scotland.

It is very plain that the power given in section 2586 should be cautiously used. It practically opens the case and gives a rehearing on new evidence before an appellate tribunal. Of course, if one side is allowed to introduce new evidence it would seem unjust not to permit the other side to do the same. In the present case, since the only real issue is the competency of the testatrix, if the proposed new evidence bears, as it must be thought to bear, on that point, it would seem necessary, if the appellant’s motion were granted, to permit the respondent to give any other evidence bearing on the matter in issue, viz.: the competency of the testatrix. And if the respondents desired to produce witnesses before us, or before a referee, such would seem to be the respondent’s right, and it is evident that there would be much difficulty in this.

But again the evidence which it is desired to produce does not seem to be of such importance as to justify our exercise of the power given by this section. 'Whether the testatrix and her family were or were not in occasional correspondence with her relatives in Scotland has little bearing on her competency. There' is nothing strange or unnatural in the will. The daughter of the testatrix had been married some time, and had no children. The testatrix gave a life estate to her daughter, remainder to the daughter’s children, if she had any; if not, to these nephews, etc., in Scotland. Even if it were proved that the testatrix had been very intimate with these relatives in Scotland, such proof would have but very slight weight in showing her testamentary capacity. There was no question of undue influence. On that the degree of intimacy might have had some bearing. If any argument was urged from the terms of the will against the competency of the testatrix, it must have rested on the circumstance that she gave only a life estate to her daughter, instead of a fee. And it would be of little consequence whether the relatives to whom she gave the fee, in case the daughter had no issue, were persons with whom she was intimate or not. They were her relatives, and, if she did not desire that her daughter should have the fee, she would naturally give it to collateral relatives. Whether she knew them well or not is not very material.

Motion denied.

Landon and Williams, JJ., concurred.

Motion to take depositions denied.


text:
    HANNAH MORIARTA, Appellant, v. WILLIAM S. McREA and MARGARET E. McREA, Respondents.

      Dower in a defeasible estate — is lost when the estate is defeated — what will defeat the estate.

    Upon the trial of this action, brought by the plaintiff, as the widow of one Peter Moriarta, to recover dower in certain lots of land, it appeared that the lots were conveyed, in 1854, by perpetual leases, reserving rents, which gave the lessees, their heirs and assigns, the right to have the said rents released, acquitted and discharged upon the payment of a fixed sum named in each lease. Subsequently the rights of the owner or lessor were assigned to various persons, among them to the plaintiff’s husband, who subsequently assigned them by an instrument in writing, in which the plaintiff did not join, to one Andrews, who shortly afterwards acquired the interests of the lessees and subsequently conveyed the lots by warranty deed to the defendants.

      Held, that, assuming that a perpetual rent is an incorporeal hereditament of which a widow is entitled to be endowed, yet, as the estate of the lessor was defeasible upon the payment of a fixed sum, the right to dower would be only . a right in a defeasible fee, and that whenever the estate should be defeated, according to the terms of the original conveyance, the wife or widow, as the case might be, would no longer have any right of dower therein.
    That the purchase by the owner of the rents of the property on which the rents were charged effected a merger and was equivalent to an actual payment of the sums fixed by the leases, and defeated any claim that the plaintiff might •■have to dower.
    -Appeal from a judgment dismissing the plaintiff’s complaint 'entered upon the trial of the action at the Saratoga Special Term.
    The action was brought for the admeasurement of the plaintiff’s alleged dower in certain premises owned and occupied by the defendants in the village of Saratoga Springs. In 1854 Augustus Boches, being the owner of the premises in question, composed of two lots of land, duly conveyed one of said lots to Alfred R. Mallory and the other to Abram S. Tabor, in each case by grant in fee, liis wife uniting with him in the conveyance, reserving, however, an annual rent to be paid to said Boches, his heirs, executors, administrators or assigns, with power of re-entiy and repossession 'in case of non-payment. Each grantee or tenant was also given ’the right to pay a specified sum as purchase-money on any day on 'which rent became due, in extinguishment of all future accruing rents. In each case the annual rent reserved was equivalent to the annual interest at seven per cent on tbo amount agreed upon as the purchase-price. In 1854 and 1855,- Peter M. Moriarta, plaintiff’s husband, acquired by assignment the grantor or landlord’s interest in each of these grants or leases, and in 1856 he assigned the same to one Hall, the plaintiff not joining in such assignment. In 1858 T-Tnll assigned his interest in said grants or leases to James M. Andrews, who soon thereafter acquired by conveyance or assignment all the interest of said Tabor and Mallory in said grants or leases, and the premises therein described. Andrews conveyed both lots in question, in 1869, to the defendants by warranty deed, and they went into possession of and still occupy the same.

      Esek Cowen, for the appellant.

      P. C. Fort, for the respondents.
   Learned, P. J.:

We may assume, without deciding, that, as the plaintiff claims, a perpetual rent is an incorporeal hereditament of which a widow is entitled to be endowed. Then when Judge Bockes and his wife granted the land, reserving a perpetual rent, we may assume that, so long as this rent existed, Mrs. Bockes, if she survived, would be entitled to dower therein. But the estate of Judge Bockes in the rent was a defeasible fee; that is, it was defeasible by the payment of a certain gross sum — in the case of one lot, of $250, in the case of the other, $400. When, therefore, Judge Bockes and his wife conveyed the rent on the first lot to Safford, they conveye donly a defeasible fee therein ; and the right to dower of the wife of Saf-ford (if he were married) would be a right only in a defeasible fee. Whenever that fee should be defeated according to the terms of the original conveyance, the wife or the widow, as the case might be, of Safford would no longer have any right of dower therein. Because the estate in which she had been entitled to dower, or to an inchoate right of dower, would have ceased. The same may be said of the subsequent conveyance to Peter Moriarta, and of the rights of his wife or widow, and .also of the conveyance to him by Judge Bockes and his wife of the second lot.

When Peter Moriarta, conveyed the rent in both the lots, without having his wife join in the conveyance, she remained entitled to an inchoate right of dower in the defeasible fee of the rents. And that fee might at any timo.have been defeated by the payment of the gross sum by the owner of the land charged to the holder of the estate in the rent. That such payment was to be made to the holder of the estate in fee is plainly expressed in the deeds. There was no actual payment of this gross sum, but an equivalent transaction took place. The owner of the rent became by purchase the owner of the property on which the rent was charged. This was a merger. And, furthermore, it became absurd to say that Andrews, the owner of the land, was to pay to himself, as the owner of the rent, the gross sum, upon the payment of which the rent was to be defeated The plaintiff might take the position that this transaction had rendered the redemption impossible, because Andrews could not pay to himself. But this would not be reasonable, for the parties could easily have arranged that the owner of the land should first redeem and then convey. The result would be practically the same with the present condition of things. ¥e may illustrate this by supposing that the' value of the first lot, as agreed between Andrews and Mallery, the owner of the land, if free of rent, was $1,000. Now the sum needed to redeem the rent of that lot was $250. Therefore Andrews would pay the owner for the land $750. This would be the same as if the owner Mallery had first redeemed and then received from Andrews $1,000.

The plaintiff insists that no such transaction could justly deprive her of her right of dower. It is true that it could not deprive her of anything she had. But the right of dower was never of a higher character than that of her husband’s estate in the rent. That estate was always defeasible; so was her dower. This conclusion, it will be seen, depends on the circumstance that the estate in the rent was defeasible and was practically defeated. "We have no occasion to decide what the rights of the plaintiff would have been if the estate in the rent had not been defeasible, when assigned by her husband ; and if in other respects the facts had been as they are in the present case.

The judgment should be affirmed, with costs.

Landon and Williams, JJ., concurred.,

Judgment affirmed, with costs.


author: Landon, J.: BocKes, J.:

text:
    WILLIAM H. VAN NORDEN and Others, Appellants, v. CLINTON ROBINSON, Respondent.

      Navigation of an unlicensed steamboat— the explosion of its boiler will be presumed to have resulted from, the failure to have it inspected— its navigation is d nuisance

    Upon the trial oí this action, brought by the plaintiffs to recover damages for injuries done to tlieir steamboat by the explosion of the boiler of the defendant’s , steamboat, both boats being engaged in the towing and coasting trade upon the Hudson river and vicinity, it appeared that the licence granted to the defendant’s boat had expired seven days before the explosion occurred, and that the licenses granted to its engineer and captain had also then expired * The defendant’s boat, after being tied to the dock at Albany at about four o’clock in the afternoon of September 37, 1888, to wait for a tow expected to arrive the next morning, was left in charge of the engineer until about fifteen minutes past one on the morning of the next day, when he went to bed leaving a fire under the boiler and the steam gauge indicating about fifty pounds of steam. After that time the fireman attended to the fire until about twenty-minutes before three, when the boiler exploded with terrific violence wrecking the defendant’s boat and seriously injuring that of the plaintiffs.
    The referee, after finding that the boiler was in good condition and the engineer capable and careful, found: “ I do not find that this explosion was caused by the negligence or want of ordinary care and prudence on the part of the' defendant, or any of the employes upon the defendant’s boat * * * but the same was occasioned by some mysterious cause, not so explained by the proof in the case that I can find, as a matter of fact, what the immediate cause was, and I find that the damages resulting to the plaintiffs were not attributable to the defendant or his servants.” He also found that the employment of the defendant’s boat, and the employment of an unlicensed engineer on the day of the explosion, was in violation of the provisions of the Kevised Statutes of the United States regulating the navigating of such steamboats.
    Held, that the navigation of the unlicensed steamboat, in direct violation of the terms of the United States statute, raised a presumption that the injury was occasioned hy the failure to have the boiler inspected by the United States inspector, which cast upon the defendant the burden of showing that his omission so .to do did not contribute to the explosion, and that the evidence in the case was not sufficient to rebut the presumption so created.

      Latnbertv. Staten Island Railroad Company (70 N. Y., 104); The P W. and R. Railroad Company v. Kerr (35 Md., 531); The Pennsylvania (19 Wall, 136) followed. .

      It seems, that to navigate the steamboat by the use of this uninspected boiler was to maintain a nuisance, and that proof that it was done in violation of an express statute, dispensed with the necessity of proving any other negligence, (Per Landon, J., who collates the cases hearing upon this question.)

      Appeal from a judgment in favor of the defendant, entered in Saratoga county upon tlie report of a referee.
    The plaintiffs, by their complaint, sought to recover damages for injuries done to their steamboat by the explosion of the boiler of the defendant’s steamboat. Both steamboats were engaged in the towing and coasting trade, upon the Hudson river and vicinity. The plaintiffs’ boat had been duly inspected and .licensed, and its officers in charge had been duly licensed, and these licenses were in force at the time of the injury.
    The defendant’s boat, at the time of the explosion, had no existing license, its former license had expired seven days previously, and had not been renewed. The engineer, who was employed by the defendant in navigating the boat and was acting in that capacity at the time of the explosion, had no existing license, his license having expired some weeks previously. The license of the captain had also expired. About four o’clock in the afternoon of September 27,1883, the defendant’s boat was tied up to the dock in Albany for the night to wait for a tow which was expected the following morning. The plaintiffs’ boat soon after was tied up to the same dock, about fifty feet from the defendant’s boat. During the evening and until abontfifteen minutes past one o’clock in the following morning, the engineer aforesaid was in charge of defendant’s boat. lie then went to bed. There was then a fire under the boiler of the defendant’s boat, and the steam guage indicated about fifty pounds of steam. The fireman attended to the fire after that'. About twenty minutes before three, the boiler of the defendant’s boat exploded with terrific violence. The explosion wrecked the defendant’s boat and seriously'injured the plaintiffs’ boat. Testimony was given tending to show the condition of the boiler of the defendant’s boat and the manner in which it was operated. The referee found the facts as above stated, and found that the boiler was in good condition, the engineer capable and careful, and then found: “ I do not find that this explosion was caused by the negligence or want of ordinary care and prudence, on the part of the defendant, or any of the employes upon the defendant’s boat, ■ * * * but the same was occasioned by some mysterious cause, not so explained by the proof in the case that I can find as a matter of fact, what the immediate cause was. And I find that the damages resulting to the plaintiffs’ were not attributable to the defendant or his servants.” Testimony of experts tended to support the finding of the referee, respecting the unexplained cause. The referee found that the employment of the defendant’s boat, on the 28th day of September, 1883, was contrary to, and in violation of the provisions of the Revised Statutes of the United States, and particularly of sections 4417, 4418, 4427 and 4499 thereo'f, and that the employment of the unlicensed engineer to navigate the boat, was in violation of such statutes, and particularly of. section 4438 thereof. He also found that one of two safety valves was unlawfully loaded or obstructed. He refused to find that the explosion was caused by the wrongful acts, neglect asd mismanagement of the defendant. He refused to find that the act of the defendant in generating and maintaining steam in the boiler, without being licensed, and without having a licensed engineer, were wrongful and unlawful acts, resulting m the injury to plaintiffs’ boat.

      J. C. Ormsby, for the appellants.

      E. L. Fursman, for the respondent.
   Landon, J.:

The learned referee held that negligence was’the gist of the plaintiffs’ action, and that although the defendant was guilty of certain negligent acts, such as navigating his steamboat without having had its boiler officially inspected, and also by the employment of an unlicensed engineer, contrary to the provisions óf the Revised Statutes of the United States (§§ 4417, 4418, 4426, 4427, 4438, 4499), yet these acts were not the proximate cause of the explosion, but the same was occasioned by some mysterious cause not ascertainable from the evidence, and, therefore, the defendant was not liable.

The complaint was framed so as to recover for the negligent and also for the wrongful act of the defendant in navigating his boat with its uninspected boiler, and by the employment of an unlicensed engineer. If, therefore, irrespective of the question of negligence, the plaintiff was injured because the defendant was engaged in the navigation of his steamboat in violation of the express provisions of the law, and could not have been injured if the defendant had not violated tbe law, tbe plaintiff was entitled to recover. Many cases recognize tbe principle that where one in violation of tbe law does an act wbicb, in its consequences, is injurious to another, be is liable, irrespective of negligence. (Clifford v. Dam, 81 N. Y., 52; Irvine v. Wood, 51 id., 224; Congreve v. Morgan, 18 id., 84; Congreve v. Smith, Id., 79; Creed v. Hartmann, 29 id., 591; Dygert v. Schenck, 23 Wend., 446.) These cases rest upon tbe principle that a party maintaining a nuisance upon his premises is liable to a third party specially injured thereby. The storage of gunpowder, no matter how carefully, in densely populated places is a nuisance^ and the party storing it must answer for the damages resulting from an explosion, because there is always danger of an explosion. (Heeg v. Licht, 80 N. Y., 579.) Such storage is a nuisance at common law. It may be made a nuisance in other places by ordinance. (Penal Code, § 389.) The Penal Code (§ 385) declares a public nuisance to consist, among other things, “in unlawfully doing an act, or omitting to perform a duty, which act or omission in any way renders a considerable number of persons insecure in life or the use of property.” The civil remedy is not merged in the criminal. (Code Civil Pro., § 1899.) Poisons sold must be labeled, or the seller is liable to a third person for the consequential injury. (Thomas v. Winchester, 6 N. Y., 409; Wohlfahrt v. Beckert, 92 id., 490.) The keeper of a vicious dog or animal, knowing its propensities, is liable for the injury it does. (Muller v. McKesson, 73 N. Y., 196.) In Massachusetts, steam engines cannot be placed within five hundred feet of a dwelling-house without a license, and the violator of this law is held liable for any damage done to third persons. (Quinn v. Lowell E. L. Corp., 140 Mass., 106; Quinn v. Middlesex E. L. Co., Id., 109.) So the seller of illuminating oil of less than the statutory requirement of purity, is made responu. sible for the damages caused by its explosion. (Wellington v. Downer Ker. Oil Co., 104 Mass., 64.) Many acts which would amount to a nuisance are, upon considerations of public good, authorized by statute, such as building railroads and. thereby obstructing highways and water-courses. The test of the liability in such cases for consequential injuries is, whether the act was authorized by law. If so, negligence must be proved; otherwise, not. (Bellinger v. The N. Y. Central R. R. Co., 23 N. Y., 42; Ward v. Atlantic and Pacific Telegraph Co., 71 id., 81.) One cannot by blasting rocks, however carefully done, throw the fragments upon the land of an adjoining proprietor. (Hay v. Cohoes, 2 N. Y. 159; St. Peter v. Denison, 58 id., 416.)

To navigate this steamboat by the use of this uninspected boiler was to maintain a nuisance. The boiler, unless fit for use, was, when used, a dangerous explosive. Its explosion would be as sudden and disastrous as an explosion of gunpowder. The plaintiff and his servants in charge of another boat had no knowledge of its character. A hole in the sidewalk may possibly be seen and avoided; a vicious dog may possibly be kept at bay; unlabeled poisons may excite the suspicion of the prudent; but a boiler explosion comes without warning. It was condemned by the law. In Wenzlick v. McCotter (87 N. Y., 122) a conductor leading from the. eaves of a house and discharging its water upon the sidewalk, where it froze, was said said not to be a nuisance, because not prohibited by ordinance or positive municipal regulation. But the referee has substantially held that navigation by means of this boiler was not a nuisance, because the boiler was a good one and in good condition. But upon what evidence is this held ? The explosion rent the boiler into fragments, and thus left it impossible to determine what an official inspection would have disclosed.

The case of The Pennsylvania, (19 Wall., 137) was the case of a collision at sea between a bark and a steamer in a fog, the bark being injured. The law required it to blow a fog horn, which would indicate that it vías in motion, whereas it rang a boll, which indicated that it was at rest. It was contended upon the part of the bark that the course of the steamer was such that the collision was inevitable, whether the horn was blown or the bell rang. But the court held that congress had prescribed the rule, and to go into an inquiry whether the legislature was not in error would be improper; it would be admitting an equivalent for that which the statute had made a positive requirement. If the statute had been obeyed the result might have been different. So here, if this boiler had been inspected, the result might have been different. Why was it not inspected ? Was it because of fear of the result ? What lawful equivalent can there be for the official inspection ?

The error of the learned referee is, as we conceive, in the assumption that the government inspection would have been a mere formality. There may be cases in which this can be seen to be true, but plainly this is not one of them. It is possible that the boiler was safe, though uninspected. But inspection and approval were the legal test. This test was imposed for the security of the defendant and the public. Wo cannot assume that the boiler would have passed inspection, and without inspection it was the defendant’s duty to stop its use, to tie up and put his fire out. Suppose in the Bellinger case (supra) the railroad company had obtained no charter, and therefore no legislative authority. Would it have been heard to answer that it might have obtained it; that it was a mere formality ? Clearly not, The law admits no substitute or equivalent for the duty it prescribes, to the prejudice of innocent third parties, for whose benefit the law was made.

The referee did not know what an inspection would have disclosed, and after the explosion it was too late to find out. As was said in a recent collision case in the House of Lords (Stoomvaart, etc.,v. Peninsula, etc., Navigation Company, 5 App. Cases, 909; 34 Moak’s Eng., 199): If the court allows these rules to be departed from, the result will be the very evil the act was intended to prevent.” In any event the burden rested upon the defendant to show that the negligence or wrong-doing imputable to him from his disobedience to the law did not contribute to this explosion. Then what occasioned the explosion ? The referee says : A mysterious cause not so explained by the proof that I can find, as a matter of fact, what the immediate cause was.” We are thus asked to substitute this mysterious, unknown and unknowable force, for the probable consequences of an established omission of duty. This seems to require faith not justified by law.

It is doubtless true that boilers sometime explode, and the cause cannot be ascertained satisfactorily. But after an explosion the conditions are not usually favorable for ascertaining the cause. Hence the necessity for that periodical examination prescribed by the statute; the existing liabilities to an explosion may thus, as far as is practicable, ' be ascertained and obviated. The referee’s report practically is: Within the limited conditions for investigation now existing, the real cause of this explosion cannot be ascertained. But we do know the defendant avoided, or omitted, submitting to the government test; it is bis fault that we do not liave the benefit of that test, and for aught we do know the omission to submit to the examination was followed by the omission to make such repairs as would have prevented the explosion. A mysterious cause is suggested, but we know nothing about it; and how can we intelligently clothe it with an occasion and energy adequate to cause this explosion ?

But it is said that negligence is the gist of the action. But is it not as much negligence to use an uninspected boiler as it is to keep a vicious dog unchained (Muller v. McKesson, supra) or to let animals having a contagious disease go at large? (Mills v. N. Y. and Harlem, R. R. Co., 2 Robt., 326; affirmed, 41 N. Y., 619.) The défendant cites numerous cases in which it is held that the doing of an act in violation of an ordinance, whereby a third party, without fault upon his part, is injured, is evidence of negligence, but not necessarily negligence. (Knupfie v. Knicherbocker Ice Co., 84 N. Y., 488; Beisegel v. N. Y. C. R. R. Co., 14 Abb. N. S., 29; Jetter v. N. Y. and H. R. R. Co., 2 Keyes, 154; Massoth v. Del. and H. C. Co., 64 N. Y., 524; Briggs v. N. Y. C. and H. R. R. R. Co., 72 id., 26; McGrath v. N. Y. C. and H. R. R. R. Co, 63 id., 522.) But in the case of a statute it seems to be negligence. (Gorton v. Erie R. R. Co., 45 N. Y., 660; Renwick v. N. Y. C. R. R. Co., 36 id., 132; Cordell v. N. Y. C. and H. R. R. R. Co , 64 id., 535; Hayes v. Michigan Cen. R. R. Co., 111 U. S., 228.)

Non-compliance, at the time of a collision between vessels, with statutory regulations prescribed to prevent collisions, is prima facie evidence of negligence. (Lambert v. Staten Island R. R. Co., 70 N. Y., 104.) Of course, if it can be seen that such non-compliance had nothing to do with the accident it is wholly immaterial. But in the case of a boiler explosion how can this be seen after the explosion ? Here we do know that it was unlawful to use this boiler at all for purposes of navigation, and if it had not been used no explosion could have occurred. It would not have been exposed to mysterious causes of explosion.

The case seems to fall also within the principle stated in Salisbury v. Herchenroder (106 Mass., 458). There the defendant, contrary to a municipal ordinance, hung out a banner sign across the street upon a wire rope attached to his store upon one side of the street and to a building upon the other side. Due care was used in its construction and fastening. A gale of extraordinary violence, known as the “ great gale.” blew the sign down, whereby the plaintiff’s property was injured. The court said if the sign had been rightfully placed where it was the question would have been presented whether the defendant had used reasonable care in securing it. If he had done so, the injury by the great gale would have been without his fault. But he placed it there illegally, and this illegality contributed with the 'gale to do the injury. The gale would have been harmless if the defendant had not illegally placed the sign in its way. Here the mysterious cause would have been harmless if the statute had been obeyed, for in such case the boiler would not have been in use.

The judgment should be reversed, a new trial granted, the reference discharged, costs to abide the event.

Learned, P. J., concurred.

BocKes, J.:

I concur for reversal. It is said in The P. W. and B. R. R. Co. v. Kerr (25 Md., 531), that an observance of the law is regarded as necessary to satisfy the first requirement of ordinary care, and it seems that the omission of the statutory duty, without other proof by way of explanation of the occurrence, raises a presumption that the injury was because of the omission. It is said, in substance, in The Pennsylvania (19 Wall, 136), that when one is proceeding in actual violation of a statutory rule, intended as a protection against the cause of injury it is no more than a reasonable presumption that the fault, if not the sole cause, was, at least a contributory cause of the disaster; ” that in such case the burden rests upon the party omitting the statutory requirement of showing, not merely, that the fault might not have been one of the causes, or that it probably was not, but that it could not have been.” I fully concur in this line of reasoning which has, as I conclude, here direct application.

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


author: Landon, J.:

text:
    In the Matter of WILLIAM H. SILVERNAIL an Attorney.

      Failure of an attorney to pay over surplus moneys, arising on a mortgage foreclosure, received by him — an attachment may he issued for his failure to do so — the burden of proving that he has paid them, to the county treasurer rests upon him — a referee appointed to take testimony and report it, is not hound to take irrelevant testimony.

    Upon an appeal from an order compelling one Silvernail to pay to the county treasurer the surplus moneys which came to his hands, as an attorney upon a foreclosure sale, it appeared that Silvernail, acted as the attorney for the plaintiff in an action brought by one Case for the foreclosure of a mortgage against the petitioners in this proceeding, the owners of the equity of redemption, and that the premises were sold pursuant to the judgment by one Gar-denier, as referee, to one Nixdorf for $1,425. The referee, who occupied an office in the same building with Silvernail, after executing the deed delivered it to Silvernail, who delivered it to the purchaser, who paid to him the full amount of the purchase-price.
    The Special Term found that Silvernail did not pay any of the surplus money either to the referee or to the county treasurer, and directed him to pay the amount thereof ($809.77), with interest from October 1, 1875, the date when he should have paid it, together with $195.26 of costs, and directed that, in default of payment after ten days from the service upon him of a copy of the order, an attachment issue for his imprisonment in the county jail.

      Held, that the facts found justified it in making the order appealed from.
    That while it was true that the purchase-money ought to have been paid to the referee and not to the attorney, that Silvernail, who procured it to be paid to himself, could not be permitted to raise that objection.
    Silvernail offered in evidence certain checks showing payments of money by him to the referee, which were objected to as having no connection with the transaction in question.

      Held, that, as on the face of them they had not any connection with it, and as Silvernail did not, when his attention was called to the matter, offer to show that they had, they were properly excluded by the court.
    The Special Term permitted proof of the non-payment of the money to the county treasurer, who was dead, to be given by the production of his books and by showing the entries therein to be in his handwriting.

      Held, that, as it was his duty to enter the receipts of surplus moneys therein, the court did not err in admitting the evidence.
    That the burden of proving the payment to the county treasurer rested on Silvernail, and that a failure by the petitioners in this proceeding to prove non-payment was not equivalent to proof of payment by him
    The order directed the referee to take the testimony and report it to the court with bis opinion.

      Held, that he was not bound to take irrelevant testimony.

      Appeal from an order made at' Special Term and entered in Columbia county compelling tbe defendant to pay to tbe county treasurer of Columbia county tbe surplus moneys received by liim on the foreclosure of a mortgage in an action in which he acted as the plaintiff’s attorney.

      Wm. H Silvernail, for the appellant.

      Gardenier & Harder, for the respondent.
   Landon, J.:

This is a proceeding to compel the defendant to pay to the county treasurer the surplus moneys which came to his hands as an attorney of this court upon a foreclosure sale. The defendant, as the attorney for William A. Case, foreclosed a mortgage by action in the Supreme Court, in which Case was plaintiff, and the .petitioners in this proceeding, as owners of the equity of redemption, were defendants. The mortgaged premises were sold pursuant to the judgment by one G-ardenier, the referee to make the sale, to one Nixdorf for $1,425. The referee and the defendant occupied offices in the same building, and the referee executed the usual referee’s deed, delivered it to the defendant, and he delivered it to Nixdorf, the purchaser, who paid the defendant .the full amount of the purchase-money. The Special Term, upon the testimony taken before the referee and upon his report thereon, finds that the defendant did not pay any of the surplus money either to the referee or to the county treasurer. The amount of such surplus money is found to be $809.77, and the Special Term directed the defendant to pay the same, with interest from October 1, 1875, the date when he ought to have paid it, together with $195.26, costs of this proceeding, making a total of $1,573.33; -and in default of payment after ten days from the service upon him of a copy of this order, directed that an attachment issue and the defendant be thereupon imprisoned in the county jail until such payment be made or he -be discharged by law.

A perusal of the evidence satisfies us that -the findings of the Special Term state the truth of the case. The defendant retained this surplus money without right and without excuse. The order of the Special Term directing him to pay it, and directing his imprisonment if lie made default in payment, was a proper exercise of the authority which the court must sometimes exercise over its delinquent officers. On the merits the order should be affirmed.

The defendant, however, interposes numerous objections to the proceeding and to the rulings of the referee. "We have examined them all and are satisfied that no substantial right of the defendant lias been denied him. It is true that the purchase-money ought to have been paid to the referee, and not to the attorney, but that is an objection of which the attorney who procured it to be paid to himself cannot be permitted to take advantage.

The defendant offered in evidence sundry checks showing payment of money by the defendant to the referee. It was objected that these checks had no connection with this transaction. On the face of them they had not, and as the defendant did not, when his attention was called to the matter by the objection, offer to show that they had, the checks were properly excluded. If the checks had been received they could not have aided the defendant, unless he could connect them with the case, and hence, the exclusion did not prejudice him. The defendant claims that presumptively these checks were on account of this surplus money. The testimony given showed that there were numerous transactions between the referee and the defendant, and there could be no presumption that these checks applied to this transaction, to the exclusion of every other. What was needed was some affirmative evidence that they applied to this transaction; and the fact that the defendant simply suggested a presumption, instead of offering evidence, compels the conviction that he offered none, because he had none to offer. The money having been paid to the defendant by the purchaser, it was defendant’s duty to pay it to the referee. It was affirmatively shown that he did not do this, and evidence was given tending to show that he had not paid it to the county treasurer. The burden however, rested upon the defendant to show that he had paid it to the treasurer if such was his defense. The petitioners were not bound to assail a defense which was not made by the defendant; and if it should be held that the treasurer’s books offered for that purpose were inadmissible, it would not, in any way, weaken the petitioners’ case. Failure by the petitioners to prove non-payment to the treasurer is not the equivalent of proof of payment by the defendant.

But the treasurer’s books were competent evidence. The treasurer is dead. The entries were in his handwriting. It was his duty to enter the receipt of surplus moneys therein. The fact that there was no entry of this money therein was some slight evidence that it had not been paid to him. It was not necessary to return these books as a part of the case. The proper method of proof was resorted to, namely, the testimony of a witness that he had examined the books and searched for such an entry and found none. The order directed the referee to take the testimony and report it with his opinion thereon to the court. The referee was not bound to take irrelevant testimony. We do not perceive that he rejected any that did touch the issues.

The objection that the referee did not file his report and testimony taken with the clerk seems to be answered by the clerk’s certificate to the appeal book. If the defendant is the owner of any judgment which is a lien upon the surplus moneys he should file his claim, and proceed under the rule to establish it. Costs were properly allowed. This is a special proceeding to compel an attorney to do his duty, not simply a motion in the foreclosure case. Substantial justice has been done, and the defendant urges no .objection which can avail to defeat it.

The order is affirmed, with costs.

Learned, P. J., and Williams, J., concurred.

«.Order affirmed, with costs.


text:
    HANNAH EVERSON, Respondent, v. ANDREW McMULLEN, Appellant.

      Action for dower under the Code of Civil Procedure — the plaintiff, if successful, is entitled to costs, of course, under subdivision 1 of section 8228 of the said Code.

    •Since the adoption of the Code of Civil Procedure the plaintiff, in an action brought for dower, if successful, is entitled to costs, of course, under subdivision 1 of section 3228 of the said Code, as it is an action to recover “ an interest in real property” and is triable by a jury.

      Aikman v. Hcvrsell (31 Hun, 635) distinguished.

      Appeal from a judgment entered in Ulster county upon the trial of this action by the court, the parties having waived a jury trial.
    The action, which was brought to recover dower, has already been before the General Term, where the principal question involved therein was determined in favor of the plaintiff, the decision being reported in 42 Hun, 369. The question now presented was whether or not the plaintiff, having succeeded, was entitled to costs, of course, or only in the discretion of the court.

      Preston & Chipp, for the appellant.

      G. D. B. Hasbrouck, for the respondent.
   Landon, J.:

Costs were properly awarded the plaintiff. Dower is an interest in real property ” whereof the widow is endowed, and although technically the interest is a chose in action or mere claim, and not an estate until admeasured, still the action for dower,” which is now-regulated by our Code of Civil Procedure, is an action to recover the interest in real estate, whether that interest be admeasured upon the land itself or its equivalent recovered in money. (4 Kent Com., 35; Payne v. Becker, 87 N. Y., 153; Code Civil Pro., §§ 1607-1613-1617, 1618.) The action for dower is triable by jury. (Id., § 968.) Hence plaintiff is entitled to costs of course.” (Sec. 3228, sub. 1.)

Our attention is called to Aikman v. Harsell (31 Hun, 635). That action was tried before the last nine chapters of the Code of Procedure took effect. It was there held that the costs were in the discretion of the court, the court holding that there were no statutory provisions in reference to the costs of the action. Without questioning the propriety of the ruling in that case, we think the Code now gives the plaintiff costs.

Judgment affirmed, with costs.

Learned, P. J., and Williams, J., concurred.

Judgment affirmed, with costs.


author: LandoN, J.:

text:
    In the Matter of the Petition of WILLIAM W. WHITE and Others, Appellants, v. THE NEW YORK STATE AGRICULTURAL SOCIETY and Others, Respondents.

      Bight to vote by proxy for ojficers of the New York State Agricultural Society — the power of members cannot be limited by resolution — 1871, chap. 131, see. 3 — presumption as to the authority of a proxy to fill in a blank left by the maker.

    Section 3 oí chapter 131 of 1871, renewing the charter of the New York State Agricultural Society, provides “that only life members of said society, who shall have become such at least thirty days prior to the election, and no other persons, shall be entitled to vote for officers of said society, but such life members shall be entitled to vote at all elections for officers thereof by proxy.”
    At the annual meeting for the election of officers, held on January 19, 1887, and before the voting was commenced, the following resolution was passed: “That no proxy shall be voted on at any meeting of this society, unless showing, within itself, that it was specifically intended to be used at such meeting.” Under this resolution votes offered by persons present holding proxies from life members were rejected, which would, if counted, have elected the ticket which was defeated.
    Held, that, as the resolution sought to place a limit upon the power given by the member to his proxy, it was repugnant to the provisions of the charter, which provided that a life member should be entitled to vote at all elections for officers thereof by proxy, and was void.
    Objections were taken by the respondents on the hearing to some of the proxies, . upon the ground that the name of the proxy was left in blank by the maker of the power, and that the blank was filled in by the holder of the proxy immediately before the election.

      ■Held, that while this fact, if proved, might make a case in which the maker of the power might challenge its completeness (Ohauncey v: Arnold, 24 N. Y., 330; Dutchess & Gol. B. B. Go. v. Mdbbett, 58 id., 397; Burns v. Lynds 6 Allen, 305), yet. in the absence of any challenge by the maker of the power, the presumption . obtained that the name of the proxy was written in the blank by the authority of such maker. (Matter of Cecil, 36 How. Pr., 477; Commercial Bank of Buffalo v. Hortright, 22 Wend., 348)
    The question as to whether votes offered by an agent of the proxy were admissible was not examined.
    Appeal from an order heretofore made at the Albany Special Term, denying an application made by the petitioners for a re-election of certain officers of the New York State Agricultural Society, under part 1, chapter 18, title 4, section 6 of the Revised Statues.
    The New York State Agricultm’al Society held its annual meeting for the election of officers January 19, 1887. The charter of tlie society provides that only life members, who have been such thirty days prior to election, are entitled to vote, and that sncli members are entitled to vote by proxy. Before balloting, the following resolution was offered and passed: “ That no proxy shall be voted on at any meeling of the society, unless showing, within itself, that it was specifically intended to be used at such meeting.” The petitioners offered to vote on 127 proxies of absent life members, which were refused and not' counted by the direction of the presiding officers, as being excluded by the resolution above named. If the votes so offered by the petitioners had been received, the defeated candidates would have received a majority and would have been elected.

      De Witt & Sjpoor, for the appellants.

      Dathaniel O. Moah. for the respondents.
   LandoN, J.:

By the renewal of the charter of the New York State Agricultural Society (Laws 1871, § 3, chap. 131), it is provided “that only life members of said society, who shall have become such at least thirty days prior to the election, and no other persons, shall be entitled to vote for officers of said society, but such life members shall be entitled to vote at all elections for officers thereof by proxy.” Any such member could, therefore, appoint his proxy and give him unlimited power “ to vote at all elections for officers thereof.” *

The resolution of the society sought to place a limit upon the power given by the member to his proxy. Such resolution being repugnant to the statute was void.. If the votes offered by the proxies had been received, the persons declared elected would have been defeated and the opposition ticket elected. Objection is now taken by the respondents to some of the powers of attorney. If we grant that the proof shows that the name of the proxy was left in blank by tlie' maker of the power, and the blank was filled by the holder of the proxy immediately before the election, a case might be presented in which the maker of the power might challenge its completeness. (Chauncey v. Arnold, 24 N. Y., 330; Dutchess, etc., R. R. Co., v. Mabbett, 58 id., 397; Burns v. Lynde, 6 Allen, 305.) In the absence, however, of any challenge by the maker of the power, the presumption obtains that the name of the proxy was written in the blank by the authority of such maker. (Matter of Cecil, 36 How. Pr., 477; Commercial Bank of Buffalo v. Kortright, 22 Wend., 348.) We need not inquire whether the votes offered by an agent of the proxy were admissible, since whether received or rejected, the result would not be changed.

The order should be reversed, with ten dollars costs and disbursements, and the motion to set aside the election and to order a new election granted, with ten dollars costs.

The order to be settled.

Learned, P. P.; Williams, J., concurred.

Order reversed, with ten dollars costs and printing disbursements, and motion to set aside election and to order new election granted, with ten dollars costs; order to be settled by LandoN, J.


author: Bockes, J.:

text:
       SARAH E. BAUCUS, Appellant, v. JAMES BARR and Others, Respondents.

      Executor’s bond — when the sureties a/re not liable for a debt due from the executoi' to the testator with which he is charged under section 13 of 2 Revised Statutes, p. 84.
    The Court of Appeals having held that James Barr, as an executor of George Stover, deceased, should, although he was wholly insolvent at the time of the testator’s death, and still remained so, be charged with the amount of his own nole, which the testator held against him at the time of his death, as for so much money in his hands, and that he should apply and distribute the same ’ in the payment of debts and legacies and among the next of kin, as part of the personal estate of the deceased, a decree was entered by the surrogate directing this to be done. An execution issued upon this decree having been returned wholly unsatisfied, the plaintiff, a creditor of the deceased, brought this action against Barr and the sureties upon his bond to recover the amount due to him.

      Reid, that the sureties were not liable for a breach of the condition of the bond given by them, providing that the executor would faithfully execute the trust reposed in him, and obey all orders of the surrogate touching the administration of the said estate.

      Baucus v. Stover (89 N. Y., 1) distinguished and followed.

      That the provision of the statute declaring that a debt due from an executor to the estate should be treated, in the rendering of his account, as money in hand, must be construed with reference to the ordinary obligation, which imposed on him only diligent, faithful, honest action touching the administration of the estate committed to his charge.
    That the sureties did not by their bond guaranty the payment of his debt by the executor to the estate, but only guaranteed obedience by the executor to all orders of the surrogate touching the administration of the estate committed to him. „
    Appeal from a judgment dismissing tbe complaint entered in Washington county upon the trial of this action by the court without a jury.
    The action was brought by a creditor of the estate of George Stover, deceased, against James Barr, as executor of the said Stover, and the other defendants, who were the sureties upon his bond, to recover for a breach of the conditions thereof by James Barr, in failing to comply with the directions contained in the decree of a surrogate directing him to make certain payments.
    The action was tried before Mr. Justice LaNdoN, who delivered the following opinion:
    LaNdoN, J. — The Court of Appeals (89 N. Y., 1) held that James Barr, as executor, who was wholly insolvent at the testator’s death and still remains so, should be charged with the amount of his own note, which the testator held against him at the time of his death, as for so much money in his hands, and that he should apply and distribute the same in the payment of debts and legacies, and among the next of kin as part of the personal estate of the deceased. The note was inventoried as doubtful and the executor is unable to pay any part of it. The other defendants are his sureties upon a bond, which, upon the application of the parties interested, the executor gave to the effect that he would faithfully 'execute the trust reposed in him, and obey all orders of the surrogate touching the administration of such trust. The surrogate, following the decision of the' Court of Appeals, has ordered that the executor do apply and distribute the amount due upon the note as part of the personal estate ' of the testator. As he can do nothing of the kind, and legal remedies against him have proved unavailing, this action is brought against his sureties. The Court of Appeals expressly stated in their opinion that “ whether his sureties could be held for this debt as so much money actually received by him, we are not called upon to determine and do not determine.” They also remark that “ the statute says the debt shall be treated as money, and the courts have no right to say it shall not be so treated.” But they qualify this statement by adding, “it will not for all purposes stand upon the same footing as if he had actually received the money,” and instanced the fact that he could not, in case of his total inability to pay, be attached and punished for contempt, nor convicted for embezzlement, and they advise that the surrogate, in charging the executor, state that he does so because the statute compels it, and “ thus save all the rights of the executor, and to protect him against consequences which perhaps ought not to follow from such a charge.”
    Now, it seems to me that if the consequences which usually follow a defaulting executor, in case he has actually wasted the assets he has received, ought not to follow him in this case, the consequences which usually follow his sureties ought not to follow them. They are usually entitled to be subrogated to all the remedies which the legatee or creditor has against an executor who has wasted assets, but in this case the usual remedies are denied the creditor and legatee, and therefore are denied the sureties. The testator did not, by his ownership of this note, have money or money’s worth. The sureties did not covenant to augment his estate out of their own i but if this action is sustained they will be compelled to do it.
    They agreed, it is true, that the executor should “ obey the orders of the surrogate touching the administration of the estate,” and the surrogate has ordered that the executors pay the amount of this note. Now the executor cannot obey this order, because the estate brought him nothing to do it with. Can he make something out of nothing ? No; he has not defaulted, therefore, and the sureties simply agree to make good his default. The order rests upon the condition that the estate brought the means of obedience to his hands, or, but for his fault as executor, might have brought them.
    The order is obeyed, so far as the facts permit its obedience. If it is to be construed as requiring the executor to make something out of nothing, then to the extent of the capacity of the executor to make something out of nothing, the sureties are liable for the full execution of that capacity, and they are not shown to have defaulted.
    But why should the statute compel such an order ? Because it is right that the order should operate if there was, is or shall be anything for it to operate upon. But if there is nothing the order is harmless. The statute cannot create money; and if the money never existed, the statute has nothing to operate upon.
    These views find some support in the courts of other States. The vigilance of counsel enables me to cite the following: Earlier v. Irish (10 N. J. Eq., 269); Ordinary v. Kershaw (14 id., 528); McCarty v. Frazer (62 Mo., 263); Garber v. Commonwealth (7 Barr., 265); Piper's Estate (15 Pa., 533). The sureties of Barr are not liable and judgment must pass in their favor.

      Robert H. McClellan, for the appellant.

      Wait & Westfall, for the respondent.
   Bockes, J.:

Passing several objections of a technical character, raised by the respondent’s counsel to the right of recovery on the bond counted on in this case, to wit, that the bond was irregularly obtained and was prosecuted without authority or direction from the court, and that the docket of judgment, based on the surrogate’s decree and the issuing of execution thereon, were irregular and insufficient, we prefer to put our decision on the merits, as did the Special Term in directing judgment for the defendants; and we might, as we think, be well satisfied to rest our affirmance of the judgment on the opinion there delivered by the learned judge before whom the case was tried. But a few additional suggestions may not, perhaps, be out of place. Of course, we owe obedience to the decision of the Court of Appeals; but it will be seen, on looking into the opinion of that court, that the determination of the question now before us was expressly reserved, with a strong intimation, however, that the sureties on the bond should not be held liable under the circumstances of this case, because of Barr’s inability to meet and answer the requirements of the surrogate’s decree as to his own debt to the estate. It is there said that while Barr’s debt to the estate must, by the terms of the statute, be treated as money in his hands for the purposes of administration, it will not for all purposes stand on the same footing as if he had actually received so 'much money; ” and, further, that he could not be held in contempt or as an embezzler because of his inability to make payment of it pursuant to the decree of the surrogate. Now, it would seem to follow that if not to be held in default when charged with contempt for non-compliance with the surrogate’s order, he should not be held in such default as would be necessary to charge his sureties because of such non-compliance. And so the Court of Appeals have held, in effect, as we think; for if the decree of the surrogate be open to explanation to defeat a legal remedy which would follow from an observance of its exact letter in one case, and that because of the injustice it would produce, it must also be open in like manner to answer the ends of justice in another. As is well said by Mr. Justice LaNDON in his opinion, “the sureties did not covenant to augment the estate out of their own; ” and, it may be added, this was not within the purview of the undertaking.

It is said in the dissenting opinion in the Court of Appeals in the case cited : Clearly, the statute never could have intended to convert a worthless debt into a demand, the payment of which might be enforced by making sureties liable who never intended or expected to assume any such obligation, and who were not understood to assume it at the time they became sureties.” True, this is said in the dissenting opinion; but the prevailing opinion contains nothing in hostility to this view. Indeed, it is in entire consonance with this remark. The injustice of holding the sureties liable in this case is obvious and serious, and it should not be permitted save under the pressure of absolute necessity. The defendants’ trouble here grows out of the express provision of the bond holding the sureties liable to absolute obedience by the executor to the order of the surrogate. (Schofield v. Churchill, 72 N. Y., 565; Thomson v. MacGregor, 81 N. Y., 592, on page 598.) Were the sureties here bound simply to fidelity on the part of the executor, the case would be widely different and without its present difficulty. Still we are inclined to the opinion that liability by the executor in this case for his own debt to the estate, as for money in hand, was not within the purview of the bond ; that such liability was not contemplated by those executing it, or, indeed, by the law pursuant to which it was required and given. Of course, we can but feel the force of the argument of the learned counsel for the appellant, fortified as it is by the numerous decisions cited by him. But, as we think, holding in mind the peculiar facts here certified to us, they are not directly in point, hence not conclusive of the question presented, and especially must we so conclude wheu we consider the strong intimation of the Court of Appeals, that the defendants might be entitled to their defense here interposed. We are of the opinion that the provision of the statute declaring that a debt due from an executor to the estate shall be treated, in the rendering of his account, as money in hand, must be construed with reference to the ordinary obligation, which imposed on him only diligent, faithful, honest action touching the administration of the estate committed to his charge. The Court of Appeals so held in effect by declaring that disobedience to the surrogate’s decree to the extent of his (Barr’s) own debt, would not here put him in contempt, or create against him a case of embezzlement. His sureties did not, by their bond, guaranty the payment of his debt-to the estate, but only guaranteed obedience by the executors to all orders of the surrogate touching the administration of the estate committed to them.” Has not Barr answered this obligation fully on his part ? What was the estate committed to his charge as executor? Was it not whatsoever of money or property which, with due diligence and entire honesty, could be made available by him for the payment of debts and for distribution ? The debt of Barr was of no value. It did not go to enhance the estate in fact; really and in fact it contributed no valuable or available part of the estate committed to ” the executors. But the orders, observance of which by the executors were guaranteed by the defendant’s bond, were those made by the surrogate.“touching the administration” of such estate. In this view of the case a breach of the bond in suit was not established.

The judgment should be affirmed, with costs.

Learned, P. J., and Peckham, J., concurred.

Judgment affirmed with costs.


author: Bradley, J.

text:
    John I. Lawrence and others, Executors, etc., Appellants, v. James M. Whitney and others, Respondents.
   Judgment affirmed, with costs. Opinion hy

Bradley, J.


text:
    In the Matter of the Final Settlement of the Accounts of Franklin M. Hall, Executor, etc.
   Decree affirmed, without costs. Opinion by

Bradley, J.


text:
    John H. Ward, Assignee, etc., Appellant, v. Sylvester F. Strong, Respondent.
   Judgment and order affirmed.


author: Haight, J.

text:
    Mary J. Burley, Respondent, v. Orren Barnhart, Executor, etc., Appellant.
   Judgment and order affirmed, with costs of this appeal payable out of the estate. Opinion by

Haight, J.


author: Haight, J,

text:
    Sheldon Carpenter, Appellant, v. Edwin Andrews and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Haight, J,


author: Bradley, J.;

text:
    Frederick Howard, as Receiver, etc., Appellant, v. Thomas Stoddard and others, Respondents.
   Judgment reversed and new trial granted before another referee, costs to abide event. Opinion by

Bradley, J.;

Haight, J., not voting.


author: Rumsey, J.,

text:
    James B. Thomas, as Treasurer of the Willard Asylum for the Insane, Respondent, v. The Board of Supervisors, Appellant.
   Judgment affirmed on the opinion of

Rumsey, J.,

at Special Term


author: Smith, P. J.

text:
    George H. Terry, Plaintiff, v. William Haitz and another, Defendants.
   Motion for new trial granted, costs to abide event. Opinion by

Smith, P. J.


text:
    Eliza B. Wing, Respondent, v. The City of Rochester, Appellant.
   Judgment affirmed, with costs, with leave to the appellant to apply at Special Term for a renewal or the stay of the issuing of the injunction, if it shall be advised so to do. Opinion by

Smith, P. J.


text:
    In the Matter of the Probate of the Last Will and Testament of Milton Budlong, Deceased.
   Decree reversed and a trial by jury ordered in the Monroe Circuit of the issues stated in the opinion, costs to abide the final award of costs. Opinion by

Haight, J.


text:
    John H. Ward, as Assignee, etc., Respondent and Appellant, v. Henry B. Higgins, Appellant and Respondent.
   —Judgment affirmed, without costs to either party. Opinion by

Bradley, J.


author: Childs, J.,

text:
    Charles H. Moore, as Receiver, etc., Appellant, v. The American Loan and Trust Company and others, Respondents.
   Judgment affirmed, with costs, on the opinion of

Childs, J.,

at Special Term.


text:
    John H. Diver, Appellant, v. London and Lancashire Fire Insurance Company of Liverpool, England, Respondent.
   Judgment affirmed, with costs. Opinion by

Haight, J.


text:
    John R. Baker, Respondent, v. The New York State Mutual Benefit Association, Appellant.
   Judgment and order affirmed. Opinion by

Bradley, J.


text:
    Lorenzo D. Chilson, Respondent, v. Chauncey Huggans, Appellant.
   Judgment affirmed.


author: Barker, J.,

text:
    Buffalo Lubricating Oil Company, Limited, Appellant, v. Hiram B. Everest and another, Respondents.
   Order affirmed, with costs of this appeal to the respondents, to abide event, on the opinion of

Barker, J.,

at Special Term.


text:
    Elizabeth R. Wells, Respondent, v. The World’s Dispensary Medical Association, Appellant.
   Judgment and order affirmed. Opinion by

Bradley, J.


text:
    John J. Hanna, Plaintiff, v. Mary M. G. Lawrence, Defendant.
   —Motion for new trial denied, and judgment ordered for plaintiff on the verdict. Opinion by

Smith, P. J.


text:
    The Delaware, Lackawanna and Western Railroad Company, Appellant, v. John M. Burkard and others, Respondents.
   Order modified so as to direct retaxation of costs, and that the same he limited to the allowance of a single hill of costs to the defendant Burkard and a single hill of costs to both defendants Fritchie, without costs of this appeal to cither party.


text:
    The People of the State of New York ex rel. The West Shore Railroad Company, Appellant, v. Alfred D. Putnam and others, Assessors of the Town of Brutus, Cayuga County, Respondents.
   Order reversed, with ten dollars costs and disbursements. Opinion by

Haight, J.


text:
    John J. Lawrence and others, Appellants, v. James M. Whitney and others, Respondents.
   Order affirmed, without costs.


text:
    The People of the State of New York ex rel. Martin D. Meehan, Respondent, v. The Board of Supervisors of Wayne County, Appellant.
   Same order as in People ex rel. Mason v. Same, Appellant, with disbursements only.


text:
    The People of the State of New York ex rel. George Kent, Respondent, v. The Board of Supervisors of Wayne county, Appellant.
   Same order as in People ex rel. Mason v. Same, Appellant, with disbursements only.


text:
    Ignatz Thalheimer v. Ferdinand Hayes.
   Order affirmed, with ten dollars costs and disbursements to be paid by the receiver out of any funds in his hands as such. Opinion by

Smith, P. J.


text:
    The People of the State of New York, Respondent, v. Henry G. Luke, Appellant.
   We have examined the case upon the merits, and, in so far as the facts are concerned or the exercise of a discretion vested in this court, a new trial should be denied. But the judgment and conviction are reversed on questions of law only, and a new trial ordered. For that purpose the proceedings are remitted to the Court of Sessions of Monroe county. Opinion by

Haight, J.


text:
    Thomas F. Stark, Appellant, v. Asa T. Soule, Respondent.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Bradley, J.;

Haiglit. J., not voting.


text:
    Phillip F. Kribbs, Respondent, v. Byron Alford and others, Appellants
   Judgment affirmed, with costs. Opinion by

Haight, J.


text:
    Joseph Smith, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Order affirmed. Opinion by

Smith, P. J.


text:
    David Sullivan, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Order affirmed on opinion of

Rumsey, J.,

at circuit, and the opinion of Bradley, J., in Monaghan v. Same, Defendant, at present term.


text:
    Lawrence O’Loughlin, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Order affirmed. Opinion hy.

Smith, P. J.


text:
    James C. Stout v. Thomas Jones.
   Judgment affirmed. Opinion hy

Haight, J.


text:
    Michael Anken, as Executor, etc., Appellant, v John Kiener, Respondent.
   —Judgment and order affirmed. Opinion hy

Smith, P. J.


text:
    Annorah H. Kneale, Appellant, v. The Rochester and Lake Ontario Railroad Company, Respondent.
   Order modiiied so as to grant a new trial on payment of the costs of the former trial, and as so modified aftirmed, without costs of this appeal to either party.


text:
    Mary Cunningham, Appellant, v. Edward Tierney, Respondent.
   Order reversed, with ten dollars costs and disbursements to abide event and motion denied. Opinion by

Smith, P. J.


text:
    Lotta Wieler, Respondent, v. William Mooney (Nephew), Appellant, Impleaded, etc.
   Order affirmed, with ten dollars’ costs and disbursements. Opinion by

Haight, J.


text:
    Yetta Thalheimer, Respondent, v. James Lamont, Appellant.
   Judgment and order reversed ana new trial ordered m the Monroe County Court, costs to abide event. Opinion by

Smith, P. J.


text:
    Eugene B. Palmer, as Administrator, etc., Respondent, v The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed,

Smith, P. J., taking no part.


text:
    Lillie B. McManus, Respondent, v. John H. Byrnes, Appellant.
   Judgment affirmed.


author: Smith. P. J.

text:
    Susan M. Singleton, Respondent, v. James Thornton and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Smith. P. J.


text:
    Philip Green, Respondent, v. Nelson H. Swink, Appellant.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Bradley, J.


text:
    Milo D. Smith, Respondent, v. James Halligan, Appellant.
   Order affirmed. Opinion by

Smith, P. J.


text:
    Emma C. Gaige, Respondent, v. The Grand Lodge of the Ancient Order of United Workmen of the State of New York, Appellant.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Haight, J.


author: Smith, P. J.;

text:
    The People of the State of New York, Appellant, v. John P. Allen, Respondent.
   Judgment affirmed. Opinion by

Smith, P. J.;

dissenting opinion by Haight, J.


text:
    John C. Wick and another, Executors, etc., Respondents, v. Edward M. Jewett, Appellant.
   Judgment affirmed. Opinion by

Bradley, J.


text:
    Jacob Moore, Respondent, v. James F. Le Clare, Appellant.
   Judgment and order affirmed. Mem. by

Smith, P. J.


text:
    Eliza Moyer, Plaintiff, v. Augustus Urtel and James C. Shad, Defendants.
   Judgment ordered for the plaintiff on the verdict. Opinion by

Haight, J.


text:
    Henry J. Anderson, as Receiver, etc., Respondent, v. Gates Sherwood and another, Appellants.
   Order affirmed, without costs. Opinion by

Bradley, J.


text:
    The People of the State of New York, Respondent, v. Samuel J. Jackson, Appellant.
   Judgment affirmed.


text:
    In the Matter of the Probate of the Last Will and Testament of Susan Cobb, Deceased.
   That portion of the decree appealed from is reversed and decree modified accordingly, without costs. Opinion by

Bradley, J.


text:
    Earle A. Dodson, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements, on authority of The Pfaudler, etc., Co. v. Sargent (25 Weekly Dig., 483).


text:
    In the Matter of Jane A. Porter, a Lunatic.
   Order affirmed.


text:
    The New York, Lake Erie and Western Railroad Company v. Catherine Miller.
   The order, as modified at the March Term, is amended by striking out the words “ but is subject to such right and duty,” and adding the words “but this shall not be construed as an adjudication of such right and duty so as to conclude the.parties in that respect.”

Haight, J., not sitting.


text:
    The Delaware, Lackawanna and Western Railroad Company v. Martha A. Gilbert.
   Motion for reargument denied, and motion for leave to appeal to the Court of Appeals granted.


text:
    In the Matter of the Application of Carrie E. White for a peremptory writ of mandamus.

   Motion denied on default, with ten dollars costs.


text:
    The People of the State of New York v. David Snyder.
   Motion to compel the restoration of the fine denied.


text:
    Edmund Stewart v. George W. Cole
   Motion for reargument denied.


text:
    Micajah Jackson v. The City of Rochester.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    John Burlingame v. William H. Mandeville.
   Motion for leave to appeal to the Court of Appeals granted,


author: Per Curiam.

text:
    The People of the State of New York ex rel. George Blonk v. The Board of Police.
   Proceedings of commissioners reversed. Opinion

Per Curiam.


author: Brady, J.

text:
    H. Jolsens Taendstikfabrikker and others, Respondents, v. Horace K. Thurber and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Brady, J.


author: Van Brunt, P. J.

text:
    Robert L. Harrison, Respondent, v. Edward W. Vanderbilt and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.


author: Daniels. J.

text:
    Lizzie Guibert, Respondent, v. William B. Whiteman, Appellant.
   Judgment reversed, new trial ordered, costs to appellant to abide event. Opinion by

Daniels. J.


text:
    Campbell Printing Press Company, Respondent, v. Stillman R. Walker, Appellant
   —Judgment affirmed, with costs. Opinion by

Brady, J.


text:
    Frederick Vagen, Appellant, v Magdalena Birngruber, Respondent.
   Judgment reversed, new trial ordered, costs to appellant to abide event. Opinion by

Van Brunt, P. J.


author: Daniels, J.

text:
    Michael J. Daly, Plaintiff, v. Joshua C. Sanders, Defendant.
   Judgment ordered, as directed in opinion, without costs. Opinion by

Daniels, J.


text:
    Daniel Ryan and another, Respondents, v. The Elephant Building Company, Appellant.
   Judgment and order affirmed. Opinion by

Daniels, J.


text:
    Edwin A. Bradley, Plaintiff, v Ward B. Chamberlain, Defendant.
   Order reversed and motion granted upon conditions stated in opinion-Opinion

Per Curiam.


text:
    Edwin A. Bradley, Plaintiff, v. Ward B. Chamberlain, Defendant.
   Order affirmed. Opinion

Per Curiam.


author: Per Curiam

text:
    Farmers' Loan and Trust Company v. Bankers and Merchants' Insurance Company.
   Motion for reargument denied, with ten dollars costs. Opinion

Per Curiam


text:
    George F. Langbein and others, Respondents, v. Charles E. Aaron, Appellant.
   Orders affirmed, with ten dollars costs of appeal in one case, and the disbursements in both.


text:
    Silas Seymour, Respondent, v. The Adirondack Railway Company, Appellant.
   Order affirmed, with costs. Opinion

Per Curiam.


text:
    Cecelia L. Norton, as Executor, Respondent, v. Union Trust Company of New York, Appellant.
   Order reversed and motion granted. Opinion

Per Curiam.


text:
    In the Matter of David McMaster.
   Appeal dismissed unless appellant lile undertaking in five days. Opinion

Per Curiam.


text:
    Mary A. Foster, Appellant, v. James Easton and others, Respondents.
   Case stricken from the calendar. Opinion

Per Curiam.


text:
    Michael Shaughnessy v. George K. Chase.
   —Motion denied, with costs.


text:
    In the Matter of George W. Bull.
   Motion granted.


text:
    William H. Dole v. Charles D. Belden.
   —Motion granted.


text:
    In the Matter of Priscilla Drinker.
   Motion for reargument denied.


text:
    James E. Eggleston v. Edward J. Woolsey.
   Motion granted unless appellant pay ten dollars costs of motion and stipulate to argue case at October term.


text:
    Mary Irene Hoyt, Appellant, v. Samuel N. Hoyt and others, Respondents.
   Decree affirmed, with costs. Opinion hy

Van Brunt, P. J.


text:
    Thomas Roberts, Appellant, v. Caroline D. Ely and others, Respondents.
   —Judgment affirmed, with costs. Opinion by

Van Brunt, P. J.