text:
    Bessie McKenna, by Guardian, etc., Resp’t, v. Buffalo Brass Bedstead Company, App’lt.

      (Buffalo Superior Court, General Term,

      Filed May 15, 1895.)

    Negligence — Parents.
    The parents of a child two years of age who, while in the street unattended, was run over by defendant’s wagon, was held not to be chargeble, as matter of law, with negligence.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Becker & Farnham, for app’lt; Philip A. Laing, for resp’t.
   Titus, C. J.

The plaintiff, a child two years and three months old, was run over and injured by a team driven by the defendant’s servant on West avenue, in this city. The child was in the street when the accident occurred, although not accustomed to go into the street unattended, and was usually in charge of a servant. On this occasion the child without the knowledge of its mother", went into the street, and the defendant’s team knocked her down,, and seriously injured her. We think the case was properly submitted to the jury. • There was some evidence that the defendant’s teamster saw the child, and could easily have avoided the accident. His conduct in managing the team was in controversy on the trial, and it became a question for the jury to pass upon. We do not think the parents of the child can be charged with want of care. While her mother was engaged in her household duties, the child ran across the street, without her knowledge. It was not in the of the servant in the sense that when she the child in the street, she did not immediately go for it, the law charges her with negligence.

The case of Birkett v. Ice Co., 110 N. Y. 504; 18 St. Rep. 130, is so paralled in its facts that the rule there laid down must control in the decision of this case. Judge Earl, in writing the-opinion of the'court, speaking of the child, says:

“ She had permission only to play upon the sidewalk, and was never allowed to cross the street. * * * She had been out but a short time when her brother left her, and, while she was attempting to cross the street, she received the fatal injuries. It was not unlawful for the child to be in the street, or even for her to play upon the sidewalk. It cannot be said that it was, as a matter of law under the circumstances, proved negligence for the parents to per-, mit her to go upon the sidewalk to play, and whether it was or not was a question for the jury.”

We think, therefore, no error was committed by the court in submitting to the jury all of the evidence bearing upon the negligence of the plaintiff and defendant, and the verdict of the jury should not be disturbed. The judgment must therefore be affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Irene D. Roberts et al., Individually and as Executors, etc., Resp’ts, v. New York Elevated Railway Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    1. Parties — Proper. "
    In an action by the trustees for damages to the trust property, the beneficiaries under the trust, who have an interest in the property in litigation, are proper parties to the action.
    2. Costs — Extra allowance.
    The sum assessed as “ fee damages,” in an action against an elevated railway, represents the value of the subject-matter involved and may constitute a basis for an extra allowance under section 3253 of the Code.
    3. Same — Allowance to guardian.
    In an equitable action, the court may grant an allowance to the guardian ad litem, irrespective of the extra allowance, provided for by section 325B of the Code, and the power of the court is not limited or qualified by this section.
    Appeal from a judgment in favor of plaintiffs, and from an-order granting extra allowances.

      Man & Man (Henry H. Man, of counsel), for pl’ff; Davies & Rapallo, (Julien T. Davies, Brainard Tolies, and L. M. Berkeley, of counsel), for app’lts; J. Aspinwall Hodge, Jr., for resp’ts Roberts and others; Edward B. Whitney, guardian ad litem for infant def’ts.
   Per Curiam.

This is the usual action in equity by owners of property abutting on defendants’ road to enjoin the defendant corporations from the further operation of their road, and incidentally to recover past damages. The property in question is on the southeast corner of Third avenue and Hinty-Hinth street, and extends-100 feet and 11 inches along the avenue. The lots are eighty-five feet in depth, and are improved by four four story, brown stone front, double apartment houses, with stores on the first floor. In addition to the ordinary structure for the running of trains, the defendants maintain in front of plaintiffs’ property a passenger station, with its large train platform and usual structures, coaling chutes, and coaling bridges. The defendants have also constructed a board platform which connects the railroad with property on the west side of the avenue (owned by said defendant corporations, and used by them as a yard for their cars), in such a manner as to completely roof in at this point seventy feet of the westerly side of the avenue. The testimony seems to warrant the claim of the plaintiffs that the appellants’ structure in front of the premises in question surpasses, in its obstructiveness and its injurious effects, that of any other section of the elevated railroads’ lines in the city. After a most careful examination and analysis of all the testimony, and after fully considering the able arguments of the learned counsel for the appellants, we reach the conclusion that there are no errors of principle in the decision, and the awards for rental and fee damage made by the court below are sustained by the evidence, and should not be disturbed.

We are called upon by the notice of appeal herein to review the order of the court below granting to the guardian ad litem an extra allowance of $250, and to certain adult defendants an extra allowance of $500. No appeal is taken from the allowance of $740 to the plaintiffs’ counsel. It is claimed by the defendant corporations that the learned trial court erred in awarding costs and additional allowances against the appellants and in favor of their codefendants. In disposing of this objection to the judgment, the first inquiry should be, were the codefendants in question proper parties to the action ? The title to the property in suit is vested in plaintiffs, as trustees of an express trust, for certain purposes, with power of sale. The codefendants to whom costs and allowances have been awarded are the persons now in being, having or deriving some interest in the property in suit, under the terms of the will and codicil creating the aforesaid trust. The adult defendants refused to unite with the plaintiffs in bringing the action, and for that reason were made parties defendant. While the action might have properly proceeded to a final adjudication without the participation of the codefendants in question, it is clear that they were beneficiaries under the trust, had an interest- in the property that was in litigation, and were proper parties to the action. When the defendant corporations subjected themselves to the operation of the equitable action that resulted in the judgment now under review, the contingency was imminent in respect of the situation of the codefendants, which subsequently developed, and which now confronts the said appellant corporation. Being proper parties, the awards to them must stand, unless in making them the court below violated that wise discretion which it was called upon to exercise.

It is provided by the statute (Code, section 3253) that the court, in its discretion, may award to any party a sum not exceeding five pgr cent upon the sum recovered or claimed or the value of the subject-matter involved. In Dode v. Railway Co., 70 Hun, 374 ; 54 St. Rep. 286, (an action like the one at bar), the general term of the supreme court declared that the sum assessed as “fee damages” represents the value of the subject-matter involved, and may constitute a basis for an extra allowance under section 3253 of the Code of Civil Procedure. This rule the court of appeals has affirmed. Dode v. Man. R. Co., 140 N. Y. 637 ; 55 St. Rep. 931. It must therefore be held that the basis for an extra allowance herein was $28,960. Five per centum of this sum falls short of the allowance granted, — just $52. To that extent, "then, the learned trial judge exceeded the power conferred by section 3253 of the Code; and it was error, unless, as claimed by the guardian ad litem, the sum of $250, granted to him, is independent of section 3253, and forms no part of the statutory allowance. This contention meets with our approval. The action being an equitable one, we think the power is inherent in the court to grant an allowance to the guardian ad litem, irrespective of the extra allowance provided for by section 3253 of the Code, and that such power is not limited or qualified by the section in question. Weed v. Paine, 31 Hun, 10; Insurance Co. v. Van Rensselaer, 4 Paige, 85. It is not contended that the case was not a difficult and extraordinary one, and we are of opinion that the discretion of the c.ourt was properly exercised on the question of extra allowances, and that they furnish no reason either for a reversal or a modification of the judgment.

The judgment and orders appealed from should be affirmed, with costs to the plaintiff’s respondents, and with a separate bill of costs for the adult defendant’s respondents, and for the guardian ad litem.


author: Sedgwick, C. J.

text:
    Carrie E. Goodhart, App'lt, v. Charles G. Street, Resp’t.

      (New York Superior Court, General Term,

      Filed May 6, 1895.)

    1. Ejectment — Who may maintain.
    A mortgagor, who has made default in the payment of interest on a mortgage loan made by the state, cannot sue in ejectment for the land.
    2. State loan — Mortgage.
    The fact that the loan was made by the commissioners on unimproved, instead of improved, property, does not render the mortgage void.
    3. Same — Place oe payment.
    The commissioners, where they transacted all their business at the office of the register of the city and county of New York, have complied with the requirement of section 24, chap. 150 of 1837, as to receiving payments at their own office.
    Appeal from a judgment, dismissing the complaint.

      Morris Goodhart, for app’lt; Charles Unangst, for resp’t.
   Sedgwick, C. J.

The action was in. ejectment. The plaintiff claimed a title and possession earlier than the time of the giving of two mortgages to the loan commissioners of the United States. But her grantor, Rosa Elsas, had given to the commissioners the two mortgages, and had conveyed to the plaintiff the premises subject to the mortgages. On 1st October there was a default of payment of interest, which continued for twenty-one days thereafter. Thereupon, by statute (Loan Commissioners’ Act; laws 1837, chap. 150, § 30), the commissioners “ were seized of an absolute and indefeasible estate in fee in said lands.” This shows that there was no title to the lands in the plaintiff. She must prevail by showing that she has title or she is not entitled to recover in ejectment. The title remained in the commissioners, even if they, after the default of payment of interest of 1888, made an invalid sale of the premises for a nonpayment of interest on subsequent days. That did not divest the loan commissioners of their title, even if the purchaser at sale acquired no title. In such a case the former owner “cannot bring ejectment, as held in Pell v. Ulmar, 18 1ST. Y. 139, and has no way of obtaining her rights except by an equitable action, where all the parties can be brought in.” Thompson v. Commissioners, 79 N. Y. 54.

The statute directs that loans shall be made upon “improved” property. The plaintiff asserts that in this case the land was not improved, and therefore the bond and mortgage were void, as the commissioners had not the power to make the loan. The evident purpose of the statute, by its injunctions upon the commissioners, was to obtain sufficient security for the repayment of the loan. Such a purpose would not be promoted, and would in fact be thwarted, if the security, because not of the kind of value intended by the statute, could be avoided by the borrower. The objection should not prevail.

Another objection is that the commissioners did not attend, as required by section 24, chap. 150, laws 1837, at their own office to receive payment of interest due October 1, 1888. The proof showed that their office was at the office of the register of the city and county of Mew York. There they transacted their business, as was shown by the proof of many acts they did there as commissioners.

Judgment affirmed, with costs.


author: Hatch, J.

text:
    William M. Thorn, as Sole Surviving Executor and Trustee, etc., Pl’ff, v. Joseph B. Mayer et al., Def'ts.

      (Buffalo Superior Court, General Term,

      Filed May 15, 1895.)

    1. Deeds — Acknowledgment—Certificate.
    The omission of the county clerk’s certificate to state the name and official character of the officer, who took the acknoledgment, may be supplied from the certificate of acknowledgment.
    3. Same.
    The failure to insert a date in the clerk’s certificate does not vitiate it.
    3. Same — Record.
    Nor does the mere absence, from the record of a deed, of the seal of the county clerk to his certificate as to the official character of the acknowledging officer vititiate it.

      i. Same.
    The provision that the time of record shall be noted is merely directory, where there is no question of rights depending on priority of record.

      Submission of controversy upon an agreed state of facts.

      Fred. Greiner, for pl’ff; Wilcox & Miner, for def’ts.
   Hatch, J.

The plaintiff heretofore entered into an agreement

in writing with the defendants, whereby he agreed to sell and convey, and they to purchase, a certain piece of real estate situate in the city of Buffalo, which was in said agreement particularly described by metes and bounds. On the execution of the agreement, defendants paid the sum of $2,500, and agreed to pay the remainder of the purchase price, "and secure the same to be paid by their bond and mortgage, payable in five years from date, with semi-annual interest. Plaintiff agreed that the title to the premises should be good and clear in every respect. An abstract of title was thereafter furnished, which showed that the title had been transferred from the state of New York, through various mesne conveyances, by a chain of title perfectly well established in Buffalo, as a good and marketable title, and the same became vested in fee simple absolute in Augustus S. Porter about February 24, 1854. -On or about March 10, 1854, there appears, by records of the county clerk’s office of Brie county, to have been executed a deed by said Porter and Sarah G., his wife, to Jane S. Townsend. This deed purports to be dated March 10, 1854; was acknowledged the same day before Charles H. Symond, justice of the peace; conveys the premises set out in the agreement; and' is spread upon the records in said clerk’s office in Liber 145 of Deeds, at page 400. The record there made shows that the deed was made and executed in Niagara county, where it states the grantor resided, and the records of Niagara county show that Symond was a justice of the peace, duly commissioned and acting on the 10th day of March, 1854. Attached to this deed, as recorded, and immediately following the signature of said justice to the acknowledgement, is a certificate in these words:

“ State of New York, Niagara County Clerk’s Office — ss.: I certify that-, before whom the annexed instrument in writing was proved or acknowledged, was at the time of taking the same a-in and for said county, duly authorized to take the same ; and I am well acquainted with his handwriting, and verily believe the signature to said certificate is genuine, and that the annexed instrument is executed and acknowledged according to the laws of this state. In witness whereof, I have hereunto set my hand and affixed my official seal, at Lockport, in said county, this -day of-, 185-
“ L. S. Payne, Clerk of Niagara County.”

L. S. Payne was clerk of Niagara county during the year 1854. - The record of the deed in the clerk’s office of Brie county does not show that any seal was attached to this certificate by the clerk of Niagara county beyond what the recital of the certificate shows and such record is not dated, and is not signed by the clerk of Brie county. The original of said deed is lost, and cannot now be produced. The further claim of title shows that Daniel J. and Jane S. Townsend, his wife, executed and delivered to James G. Garner a mortgage conveying the premises described in the deed. The same was duly recorded, and was subsequently assigned by James Garner to Daniel R. Mangara, Leonard M. Thorn, and Thomas Garner, who caused the same to be foreclosed, and the premises were sold by the sheriff to Daniel R. Mangam, who received the sheriff’s deed, and thereafter said premises, by various mesne conveyances, became vested in Thomas Garner, all of which duly appears of record; that said Garner, his heirs or devisees, have paid taxes upon the same since March 17, 1864; that the premises have been divided by streets cut through them in various directions; and that whatever fences existed in 1864 inclosing said premises have been destroyed by the cutting through of these streets. During said time, said Garner, his heirs and devisees have rented some poriion for a part of the time and paid taxes, but the premises have not been usually cultivated, and have not been claimed by any person adversely to said persons. This is the state of the title as appears from the abstract. Prior to this submission, plaintiff duly tendered a deed of said premises to defendants, and demanded a fulfillment of the contract upon their part. Defendants refused to accept said deed, or comply with said agreement, upon the ground that said deed did not convey a good and marketable title, for the reason that the certificate of the clerk of Niagara county to the deed before mentioned from Porter and wife to Jane S. Townsend, was and is so defective as to make it not entitled to be recorded in the clerk’s office of Brie county, and for the reason that the said record of said deed is so defective as not to entitle the same, or a certified copy thereof to be used as evidence of the transfer of said premises from Porter and wife to Jane S. Townsend. These objections present the questions to be decided upon this submission.

The certificate attached to the deed omits the name of the justice and his official character, but, when it is read in connection with the certificate of acknowledgement, it becomes clear that the person intended was none other than the magistrate whose name is there signed. That they may be read so together is supported by authority. Lynch v Livingston, 6 N. Y. 433.

The reasons for a construction which will give force and effect to this certificate in this respect are very clearly stated by Judge Finch in Smith v. Boyd, 101 N. Y. 472, and are conclusive in support of the certificate upon this question. With the name and official character of the magistrate supplied, the certificate, so far as its matter is concerned, is in exact compliance with the recording act. 4 Rev. St. (8th ed.) p. 2472, § 18. There is nothing in this section which requires the certificate to be dated, and no reason is suggested why the absence of a date should vitiate it. The date would simply identify the time when it was made, but it would add nothing to the fact that the officer taking the acknowledgment was such officer, and authorized to act* when he assumed to act, and has in fact acted according to law, which are the essential things. The record does not show that the clerk attached to •such certificate bis official seal. But it contains a recital that he had affixed such seal, and nothing contained in the record affirmatively shows that such recital is not true. The question thus presented has been the subject of much debate both in this 'and other states. It is concluded, however, that the question in this state is practically settled by authority.

In Williams v. Sheldon, 10 Wend. 654, record of letters patent did not show that the seal of the state or the signature of the governor was attached thereto when issued. The point raised was stated by the court in these words :

“The question, then, is not whether a patent is valid, and will pass the title to land, if issued without a seal, but whether the fact that in the record of the patent the words ‘L. S.’ do not appear to designate the place of the seal is to be regarded as evidence that the original was not sealed.”

The court held that in so solemn a grant as an original patent to land it would not be presumed that a seal was omitted, but that the presumption was that the officers had done their duty and affixed it. It does not appear in the report of the case that the record showed any recital that the original patent was under seal.

In Todd v. Institution, 118 N. Y. 337 ; 28 St. Rep. 697, the question arose upon .the failure of the record to show that the grantor had sealed the deed; and it was held that the absence of proof that the deed was sealed when delivered made it ineffectual as evidence of the conveyance of title to the premises, and that the record was' essentially defective for purposes of evidence or notice, except as it was notice of the conveyance of an equitable interest. Proof was given in that case that in fact a seal was upon the deed when delivered, and upon this proof it was decided that the record furnished no affirmative evidence of the absence of the seal at the time when the record was made. If the rule be the same respecting official acts, and of recitals in respect thereto, as is applicable to the acts of private persons, and the rule of evidence be the same, then this decision is decisive of the present question respecting the absence of the seal from the record, as the statute requires that the certificate shall be under the hand and official seal of the clerk to entitle the record or transcript thereof to be read in evidence; and here there is no affirmative proof beyond the recital in the certificate that any seal was attached. The deed, in the present case, both in form and execution, is.perfect in every respect. It is the certificate of the clerk that is defective, if there be any defect. When the deed, properly acknowledged, as this deed appears to be, was presented to the clerk of Niagara county for certification, it became his duty to affix his certificate thereto under his hand and official seal.' His failure in this regard would therefore be neglect of duty upon his part. But neglect of duty must be established by proof, as the the maxim “ omnia praesumuntur rite esse acta ” applies to all such acts, and stands as evidence for them. Wood v. Morehouse, 45 N. Y. 368, where the presumption was made that a sheriff had duly posted notices of sale under an execution.

In Lawson v. Pinckney, 40 N. Y. Supr. Ct. 187, it was held that the presumption of the performance of official duty is confined to the act itself; and when the officer is required to do a certain thing, and he certifies that he has done the thing, it will be taken as true.

In Rice v. Davis, 7 Lans. 393, the regularity of proceedings to evidence a redemption from a sheriff’s sale was presumed from the recital in a sheriff's deed.

In Ensign v. McKinney, 30 Hun, 249, the question arose over the execution of a deed by one of the grantors as attorney in fact for the other. It appeared that no power of attorney to this grantor was recorded in the county either before or after the execution of the deed, — nor was it shown that such power of attorney as a written instrument properly executed ever in fact existed ; yet the court held that it would be presumed that “ neither the officer taking the acknowledgment nor the county clerk receiving the deed of record would have verified such official acts, respectively, had there not been present before them legal proof (which in this case would be an instrument in writing, under the hands and seals of the principals) of the existence of such power of attorney.” And the court decided that, upon this presumption, the lapse of time and other dealings by the parties presented a question of fact for the determination of a jury.

Other cases holding a like doctrine are Clute v. Emmerick, 21 Hun, 122; Hartwell v. Roote, 19 Johns. 345; Schermerhorn v. Talman, 14 N. Y. 135; Sloane v. Martin, 24 N. Y. Supp. 661; Hasbrouck v. Burhans, 42 Hun, 376 ; Forsaith v. Clark, 21 N. H. 409.

In Ghurch v. Humphrey, 21 1ST. Y. Supp. 89, it was held that, when the official character of the officer taking the acknowledgment appeared.in the body of the certificate, it was not necessary that it appear in the subscription, thereto.

Coming somewhat closer to the particular question are many cases in other jurisdictions which are quite instructive and convincing.

In Beardsley v. Day, 52 Minn. 451, there was an omission to note upon the record of a sheriff’s certificate of sale that it was sealed. The statute required that the certificate should be executed in due form, under the hand and seal of the sheriff, and that such certificate, when so proved, acknowledged, and recorded, shall, upon the expiration of the time for redemption, operate as a conveyance. The contention was that, as the seal was omitted from the record, it was fatal, and that there was no record to set running the time for redemption. The certificate contained a recital that it was sealed, and the court said :

“The more generally accepted doctrine is that the record is not vitiated or fatally defective by reason of the omission to record the seal, or indicate its presence by some device or attempted description. It is enough that it appear from the record in any other way that the instrument is sealed.”

The court, among others, cites the Todd, Case, as authority for this rule. It is doubtful if the latter goes to the extent claimed for it, as the mention of the recital and its effect is stated in that case in these words:

“That situation was. and without the seal would not have been, consistent with the declaration of the grantor, and of the subscribing witness appearing upon the instrument, to the effect that it was sealed, which, in connection with the fact that, when after-wards found and recorded, a seal was upon it, requires the conclusion that it was sealed at the time of delivery, unless there was some evidence interrupting the way to such conclusion.”

It can be gathered from this language that the court gave some effect to the recital, but scarcely that claimed for it in the Minnesota decision, as the prior statement was that the record was essentially defective for the purpose of supporting the legal title, although the recital was a part. But it does indicate that some effect was given to it, and the Minnesota case carried the doctrine a step further, and, it may be assumed, for the reason that the certificate under consideration was that of a public officer, to which the presumption attached of performance of duty.

A like doctrine is found supported in Starkweather v. Martin, 28 Mich. 471; Geary v. City of Kansas, 61 Mo. 378 ; Hammond v. Gordon, 93 id. 223; Aycock v. Railroad Co., 89 N C. 321; Deans v. Pate, 114 id. 194; Smith v. Dall, 13 Cal. 512. The last decision is overruled in Dutton v. Warschauer, 21 Cal. 609, but not upon this point. Jones v. Martin, 16 Cal. 165; Griffin v. Scheffield, 38 Miss. 359 ; In re Sandilands, L. R. 6 C. P. 411. In the last case it was held that, even though no impression appear upon the parchment or paper indicating it to have been sealed, yet, if it be stated in the attestation clause to have been sealed and delivered, it will, in the absence of evidence to the contrary, be presumed to have been properly sealed. This rule was applied to the instrument itself. The only authority announcing a contrary rule which has fallen under my observation is Switzer v. Knapps, 10 Iowa, 72. This case is sufficiently commenced upon in the Todd Case.

We therefore conclude, as the result of authority, and upon principle, that the recital in the certificate was a full and complete compliance with the statute, and is to be taken as true of the facts which it states, in the absence of affirmative proof to the contrary; that, in the absence of the seal from the record, the presumption obtains, and stands as evidence of the fact,, until overcome by proof, that the clerk attached thereto the official seal, as was his ■duty to do; that the record of itself does not overcome such presumption, and is not affirmative evidence of the fact that the cer-_ tificate was not sealed when delivered to the clerk for record. The' presumption of performance of duty in the present case applies what proof of the fact did in the Todd Case, and makes it an authority for the rule here laid down. The recording act (section 25) requires that the recording officer shall enter upon the record the time of the day, month, .and year when the conveyance was recorded, and shall indorse a certificate containing the same upon the instrument recorded, and also the book and page where the instrument is recorded. This does not appear to have been complied with so far as the record is concerned. This section does not require that the clerk shall sign the record, or that he shall sign the entry of time required to be made. It only requires that he shall make such entry, although it has been assumed that he is required to certify. Putnam v. Stewart, 97 N. Y. 418. But the statute does not in terms require it. 4 Rev. St. (8th ed.) p. 2473, § 25. It is evident that the object of this section is to fix the time when the instrument was recorded, in order that rights dependent upon time of record might be determined by evidence practically conclusive. It can have no effect upon the validity of the deed or of its execution, as such matters are made to depend upon other provisions of the statute, nor does it tend in the slightest degree to affect any of such provisions. Its sole object is to register the time of record for the very evident purpose of evidencing priority of rights. No such question arises upon the facts of this case. The question here is upon the effect of the omission upon the record. It is noticeable that in many of the sections requiring certain tilings to be done there is either a penalty provided for the omission of the thing required to be done, or an express prohibition is imposed. Thus, if there be a failure to record, the penalty is that the conveyance shall be void as against subsequent purchasers in" good faith for value, whose conveyance shall be first recorded. When a deed is given as security, the record is made of no advantage unless the defeasance or explanatory instrument is also recorded. Where the acknowledgment is taken out of the county, the certificate must be attached before it can be recorded or read in evidence. Officers are prohibited from taking acknowledgment unless they know the person. As to the requirement of the entry relating to time of record, there is neither penalty nor prohibition; the statute simply directs the thing to be done, and neither by inference nor otherwise does it attach any penalty for failure of observance. It is essentially no part of the conveyance or evidence of its execution, and, as before observed, its essential object seems to be to determine rights where time is the essence of such determination. I think we might well hold that where no such right intervenes, or can intervene, such requirement is to be treated as directory merely, and its omission will not have the effect of vitiating the record as evidence. Wilt v. Cutler, 38 Mich. 196; State v. Ferguson, 31 N. J. Law, 118; Ives v. Kimball, 1 Mich. 308; Miller v. Estill, Meigs, 483.

Assuming, however, that the clerk was bound, as he undoubtedly was, to note the time of record, is the party affected deprived of the right he sought to secure by the neglect of the clerk ? By force of the statute, the record is considered made from the time of delivery of the instrument to the clerk.

In Putnam v. Stewart, it was held that the omission of the clerk to perform his legal duty could not defeat the effect of such delivery. 97 N. Y. 417.

In Manhattan Co. v. Laimbeer, 108 N. Y. 578; 13 St. Rep. 869, the certificate and affidavit required for the formation of a limited partnership were made, and filed with the county clerk, but the certificate was not actually recorded by the clerk, as required by the statute. It was sought to enforce liability against the special partner for such failure, and the court held he was not liable. In speaking of the fact that deeds and other papers are deemed recorded when left with the clerk, the court said :

“ The record is then considered to have been accomplished, and the physical act of transcribing the contents of the paper into a book at length is to be performed by the public officer; and it seeme to me to be contrary to reason and to principle to hold an individual bound to such grave liabilities as this case is an example of, founded upon the failure of a public officer to do an act prescribed by the statute. ”

In speaking of the cases where the individual- has been held bound by the failure of the clerk, of which Frost v. Beekman, 1 Johns. Ch. 288, is an illustration, it was said :

“ It will be noticed that the mortgagee is not liable for the failure of the clerk to record at all, but only for a false record. ”

This case is an instructive case upon the subject of liability and effect of neglect of duty by the recording officer. We can see no reason why the reasoning is not applicable to the case at bar, and .that the penalty for neglect of the clerk to note the time and affix his name to the record cannot be visited upon a party in interest to the extent of destroying such record as evidence of his title.

In Simonson v. Falilee, 25 Hun, 570, there was failure and mistake by the clerk to record the release of a mortgage properly, and the court said of the party affected : He is not to be deprived of his property by a failure of the clerk to record the release properly.”

In Insurance Co. v. Dake, 87 N. Y. 257, it was held that failure to index a mortgage did not deprive the mortgagee of priority given him by the recording act. The decision went for the most part upon the ground that the index was not a part of the recording act. The statement with respect to what constituted a perfect record is in these words :

“Whatever forms part of a perfect record, as prescribed in the act, is essential; that is, the conveyance must be recorded in the proper book, in the proper order, and with substantial accuracy. If the record be defective in anything essential, it will not serve the purpose of giving constructive notice to subsequent bona fide grantees or incumbrances.”

And again is quoted with approval the rule laid down in 1 Washb. Real Prop. 578 :

“The proposition is a general one that an irregular registration, of a deed is no notice to others of the existence of such deed ;■ bufan omission of the register to note the time of receiving the deed for record, or to enter it in the index or alphabet, will not invalidate the effect of the registration.”

If it be not essential to note the time when he received it for record, the failure to note such time upon the record is of no higher import. As a fact, it is known that the time stated in the record in usual course corresponds to the time of reception ; yet the actual record is not made until some weeks after, in the orderly course of business. If no minute of the time of reception was made, it might be impossible for the clerk to fix the time of recording. It can scarcely be possible that so grave a penalty as the destruction of a record' for evidence would follow when, if not made at the time of reception, no such penalty would attach. Muehlberger v. Schilling, 19 St. Rep. 1; Bedford v. Tupper, 30 Hun, 174.

Analogous to the rule above stated is Dodge v. Porter, 18 Barb. 193, where the clerk omitted to number a chattel mortgage filed with him, as the statute required. The court said : “ The rights of the mortgagee could not be impaired by the omission to perform the duty.” Bishop v. Cook, 13 Barb. 336; Dikeman v. Puckhafer, 1 Daly, 489.

In Wisconsin the doctrine of the above cases was supported and applied to the omission of the clerk to make the entry and docket a mechanic’s lien as required by the statute. It was then held that, when the claimant has left his lien with the clerk, he has done all he possibly can do to secure his rights, “ and he will not be prejudiced by the neglect of the clerk to perform, in respect to it, his duty as directed by the statute.” Goodman v. Baerlocher, 88 Wis. 293.

This discussion leads us to the conclusion that the omission of the clerk to note the time of recording and signing is not such a departure from the recording act, nor is it so essential to a perfect record, that it will not be received as evidence of the existence of the deed. The record, being admissible as evidence, established, with the other facts, prima facie the delivery of the deed. Geissmann v. Wolf 46 Hun, 289; 11 St. Rep. 306; Townsend v. Rackham, 143 N. Y. 516; 62 St. Rep. 851.

The record which is the subject of this controversy is now over forty years of age. It is evident that the grantee acted upon the grant thus obtained, as she made and executed a mortgage upon the premises ; and, under the judgment of foreclosure which followed, the chain of his title continued, the grantees thereunder having claimed title to the land, received rents from a part of the same, paid taxes, and continually exercised acts of ownership. All of these acts are to be considered, and they bear upon and help out the construction placed upon this record, and require the acts of officers to be liberally interpreted in order to give effect to what the parties have acted upon and apparently intended. Academy v. Kechnie, 19 Hun, 62-68.

It follows from these views that plaintiff should have judgment directing specific performance of the contract.

All concur.


author: Abbott, S.

text:
    In the Matter of the Application for Letters of Administration on the Estate of Henry D. Brookman, Deceased.

      (Surrogate’s Court, Kings County,

      Filed March, 1895.)

    1. Wills — Revocation.
    A testator may cancel and revoke his will by drawing ink lines through the signature, anima rewccmdi.

    2. Same — Codicil,
    Where the provisions of a codicil are inseparably blended with those of the will, an act which revokes the codicil, must revoke the will also.
    Application for letters of administration.

      Hand, Bonney, Pell & Jones, for petitioner.
   Abbott, S.

Henry D. Brookman departed this life in the c'ty of Brooklyn on the 10th day of February, 1895. In pursuance of an order of this court, his box in the Mercantile Safe-Deposit Company in the city of New York was opened, with a view to-discovering whether the deceased had left any last will and testament, and in said box, among a bundle of canceled and worthless papers, was found a paper purporting to be a will dated July 23-, 1879, and a codicil dated June 16, 1883. The codicil began on the same sheet of paper upon which the will ended, there being only a short blank space between the end of the will and the beginning of the codicil, and both instruments were securely tied together in one cover. When so discovered at the said safe-deposit company, the signature of the deceased to such codicil was found to have been erased by being crossed out in ink lines, and with the following memorandum, in the handwriting of the decedent, alongside the canceled signature: “May 20, "92, void, H. D. B.”

This is an application, concurred in by all the next of kin, for the granting of letters of administration to the widow, on the ground that the deceased died intestate, and a careful review of all circumstances surrounding this case leads me to the conclusion that the application should be granted. Our statutes provide that a will maybe revoked by being “burnt, torn, canceled, obliterated or destroyed, with intent and for the purpose of .revoking the same bv the testator” (2 Rev. St. p. 64, § 42; Birdseye’s Rev. St. 3343); and the law is well settled that a testator may cancel and revoke his will by drawing ink lines through the signatute anima revocandL In re Philip's Will, 46 St. Rep. 356.

The question before this court is, did the deceased intend to revoke the will as well as the codicil when he canceled his signature to, and made the memorandum upon, the codicil, and did his action revoke the whole or only a part of the instrument? I have been unable to find any case bearing upon this precise question, but some English cases pass upon the converse of this proposition, and the reasoning therein employed, I think, may be held" applicable to this case. Thus, when a testator had destroyed his will, but not the codicil, it was held that the codicil, being dependent upon and inseparably blended with the provisions of the will, was revoked also, and that surrounding circumstances must be taken into consideration in solving the question whether the testator intended to revoke the whole or only part of the instrnment.

Sir John Nicholl says in Medlycoll v. Assheton, 2 Addams, Ecc. 229-231:

“A codicil is prima facie dependent on the will, and the cancellation of the will is an implied revocation of the codicil. But there have been cases where the codicil has "appeared so indpend.ent of and unconnected with the will that, under circumstances, the codicil has been established, though the will has been held invalid. It is a question altogether of intention. Consequently, the legal presumption in this case may be repelled; namely, by showing that the testatrix intended the codicil to operate, notwithstanding the revocation of the will In my judgment, however, the circumstances of-this case are sufficient to establish such an intention in order to repel the legal presumption. The codicil in this case appears connected with the will, for the principal legatees in the codicil are ‘her two trustees,’ being such under the will, and, the will being revoked, they no longer retain that character. Even the distribution of the trinkets, made by the codicil, might be influenced by the disposition contained in the will. * * * Under these considerations, I am of opinion that the legal presumption of the codicil, being revoked by the cancellation of the will, is not sufficiently repelled by circumstances showing a difierent intention in the testatrix, and, consequently, that she must be pronounced to be dead intestate ”

See, also, Choppin v. Dillon, 4 Hagg. Ecc. 369; Schouler, Wills, § 400; 1 Jarm. Wills, 139; 1 Redf. Wills 316.

This will and codicil must be taken as one instrument, and both together considered as the will of the deceased. Brown v. Clark, 77 N. Y. 369-378; 2 Rev. St. p. 68, § 71; Birdseye’s Rev. St. 3345. The codicil simply modifies the will in a "few particulars, and, as modified, in all respects ratifies and confirms it The codicil, standing alone, as a separate instrument, would utterly fail to make an intelligent or total disposition of this estate, and would not be a legal entity, independent of the existence of the will. The provisions of the codicil are inseparably blended with those of the will, and the act which revoked the codicil must,, under the circumstances of this case, have been intended to revoke the will also.

There are other circumstances which render it impossible for me to escape from the conclusion that Mr. Brookman intended to revoke the whole instrument The scheme of the will and codicil was, after providing for the widow, to divide the rest of the estate, as equally as possible, between his three children; and in carrying out this scheme he devised to each of them a life estate, coupled with certain testamentary powers in valuable parcel's of land then owned by him; and one necessity for having any codicil executed was to readjust one child’s share, which had declined in value since the making of the will. In the year 1892, shortly before making the memorandum and canceling the signature upon the codicil, the hitherto friendly relations which had existed between the deceased and his brother were sundered, and their business interests were entirely severed. The deceased owned in common with his brother valuable real estate, and, by his said will, he devised his interest in said real estate to one of his daughters, such devise of this interest being most of her share under the will. Thus, in separating and severing his interests from his brother, as a result of their quarrel, he divested himself of the entire real estate which by the will had been devised as the share of his daughter, and the entire scheme of the will was overthrown by this conveyance, and the result, undoubtedly, was to revoke the devise to this child. In other words, as the case stood on the 20th day of May, 1892, when the signature was canceled, the plan of the decedent to specifically devise to each of his three children real estate of the estimated value of $300,000 or $400,000 was annulled by the conveyances which had just before that date been executed by him to his brother. One of his three children was in this way, unintention-. ally disinherited, with no reference to herself, and as a purely accidental consequence of a difference between her father and her uncle; and it was the will, and not the codicil portion of the instrument, the plan of which was thus defeated. The will also designated the brother as an executor and trustee, but obviously the testator, having become unable to amicably hold even a piece of real estate in common with his brother, was unwilling to have his' brother left in power over his estate and family as an executor or trustee. Yet it was the will, and not the codicil, which would have made the brother executor and trustee. It appears that his relations with all his children were entirely harmonious down to the day of his death, and no reason existed why any discrimination should have been made against any child. He also frequently stated during the last year of his life that' he had destroyed his will, and while, under the statute, such verbal revocation will not suffice, yet I think it bears upon the question of intent, and should . be'given some weight under the circumstances.

It would seem, therefore, that the decedent resorted to this act of cancellation with a view to remedy what would otherwise have been a grievous and unintentional inequality between his children. Destruction of the codicil would not have had the least tendency to correct the injustice which the decedent desired to avoid. Cancellation of the entire instrument, being the will modified and reaffirmed by the codicil, furnished- a complete remedy. I am of the opinion, therefoi'e, taking into consideration all the circumstances surrounding the act of Mr. Brookman on May 20, 1892, that he intended to revoke the entire instrument, consisting of his will and codicil, and that he died intestate, and that letters of administration should issue to the petitioner. Ordered accordingly.


author: Tompkins, S.

text:
    In the Matter of the Appraisal of the Estate of Rodman C. Moulton, Deceased.

      (Surrogate’s Court, Rockland County,

      Filed March, 1895.)

    Tax — Transfer.
    Testator does not stand in the mutually acknowledged relation of parent to a legatee, within the meaning of section 2, chapter 399 of 1892, where she is in no way dependent upon him, but he merely lives in her mother’s family and contributes to its support in common with the other members, including the legatee.
    Appraisal of the estate for taxation under the transfer tax law.

      Frank Walling, for app’lts.
   Tompkins, S.

Upon the report of the appraiser heretofore made an order was made by the surrogate adjudging the estate of the deceased, devised and bequeathed to .Bessie H. Winter and Cornelia M. Steeb, liable to the tax imposed by the law taxing gifts, legacies, ahd collateral inheritances, on the ground that they were nieces of the testator, and that the property transferred to them by the will was subject to the tax of five per.cent. From that order an appeal was taken by the persons above named to the surrogate, under the provisions of section 3 of chapter 399 of the Laws of 1892. It is claimed on behalf of the appellants that they are exempt under the provision of section 2 of the above mentioned act, claiming that the testator “ for not less than ten years prior to such transfer stood in the mutually acknowledged relation of a parent,” and in support of that contention referring to the testimony given before the appraiser. The testimony relied upon in support of the claim of the appellants was given by Bessie H. Winter, one of the appellants, and Charles W. Miller. It appears from their testimony that since 1865 the testator had not resided with his wife and children, and, with the exception of an interval or two, he lived with his said nieces and their mother, who was a sister of the testator; that they lived together as one family; that the household expenses were met out of a common fund, to which each contributed. In 1888 their mother died, and, from that time to the death of the testator, Mrs. Steeb, one of the said nieces, had charge of the household affairs and domestic arrangements, and they continued thus to live together as one family down to the death of the testator. Bessie H. Winter, who was the younger of the two nieces, was employed in a New York office from the time she was fourteen years of agé, and from that time to the date of the testator's death contributed a share toward the household expenses. During the period from 1884 to 1888, while the decedent was away from home, the niece, Bessie H. Winter, attended to his business for him, such as collecting rents, paying bills, etc., and she testified “ that they consulted together about business matters in which each were interested.” It also appears that during his sickness they cared for him; that at times he required a great deal o’f attention; that Mrs. Steeb would give him his medicine, and care for him during the day, and Miss Winter cared for him and watched at his bedside at night, she being absent at her business-during the day. It does not appear that the decedent contributed anything towards the support or maintenance of his nieces further than he contributed his share towards the household expenses. On one occasion he advanced a sum of money to Bessie H. Winter for her use in some business venture, which she afterwards repaid to him. During all the time they lived together the household affairs were managed by these nieces and their mother. There is no evidence that the testator ever called them his children, or spoke of them as his daughters, nor that they ever spoke of him as father,, but that they always called him “uncle," although their relations were very close, and they appeared to be very much devoted to each other. The witness Miller, who was a neighbour, and visited frequently at their residence during the last two years of the testator’s life, testified that the testator told him that Mrs. Steeb was in some way provided for by her marriage, and that he intended to take care of Miss Winter by his will, and the witness states the following conclusion: “ From my experience and observation with the of Mr. Moulton and his I should that tlieir relations were those ordinarily existing between father and daughters.” This is substantially all the testimony given in support of the claim of the appellants. The testator, in his will, refers to the appellants as his nieces, and makes no mention of any other relation existing. By his will he devised and bequeathed all his estate, both real and personal, to his said nieces.

I am convinced, after a careful study of the evidence and an examination of the authorities, that the property transferred by the will is not exempt from taxation, and that the order should be affirmed. The purpose and intent of that part of section 2 of the transfer act which exempts property which passes to one who, for not less than ten years prior to the transfer, stood in the mutually acknowledged relation of a child, was to include among those exempted persons who may not have been legally adopted, but nevertheless stood in the same relation as children, and were acknowledged and recognized as such. The word “acknowledged” would seem to indicate that it was necessary that the deceased person had held the person to whom the transfer was made out to-the world as a child, or as one to whom he bore that relation, or that he treated and considered such a one as a child; and the word “ mutually ” would seem to require that such a relation was mutual,^tnd that the character of the relation was reciprocal. However close the relations may have been, and however affectionate each may have been for the other, still the case would not come within the meaning of. the statute, unless the relation was generally understood and acknowledged to be that of parent and child. While they all lived as one household, and each assisted the other, and the greatest affection existed between them, from all the facts I am of the opinion that the relation of parent and child did not exist within the meaning and intent of the statute. These nieces did not leave their own parents, and go to the testator, nor were they taken from their home to his home, but continued always, until their mother’s death, to reside' with her in the house presided over by her. The testator did not take them into his family, and support, educate, and maintain them; but' from the evidence it appears that when his wife deserted him he went to live with his sister, the mother of these nieces, who was keeping house, and in that manner became a member of their household, and thereafter contributed his share to the household expense, and during all the time that they lived together the household was managed by these nieces and their mother. He was their guest, an inmate of their home; and, while not dependent upon them for maintenance or attention, he received at their hands those attentions and that care which we would naturally expect from an affectionate sister and nieces. So far as the evidence shows, he made no sacrifice for them, did not support or educate them, nor were they in any sense dependent upon him. On the contrary, one of the nieces, Bessie H. Winter, from the tender age of fourteen years to the time of the testator’s death, worked in New York city, and supported herself.

The decision of the learned surrogate of Madison county, In re Spencer, 21 St. Rep. 145, is cited by counsel for the appellants in support of their claim. In that case the facts are quite different than the case at bar. There the beneficiary left her own home, and lived with and assisted her aunt for twenty-eight years, was entirely supported and cared for by the testatrix, remained at home with her during all these years, not in the capacity of a servant or companion merely, but enjoying the same privileges and rendering the same service and bestowing the same care and attention as would a daughter, and the relations between the parties in that case were parental in their intent, character, and results. The relation which was created when the deceased sought a home with his sister, the mother of these two nieces, was continued down to the time of her death, which occurred in 1888 ; and if thereafter a new relation began between the nieces and the testator, it has not existed a sufficient length of time to entitle them to the exemption which they seek. The other cases cited by the counsel for the appellants are not at all parallel to this case. In the Matter of Butler, 34 St. Rep. 189, the person claiming the exemption was taken from a charitable institution, at the age of two years, under an agreement with the officers of the institution to adopt him as a son, and provide him a home; and the child was immediately taken into the family of the testator, where he resided down to the time of his death, a period of eleven and a half years, during all of which time the boy was cared for, supported, and maintained solely by the testator, and treated in all respects as a son. He was always spoken of by the testator and 'all the members of his family as a child, and he was held out to the world as a child of the testator, and supposed himself to be such, and did not know to the contrary until after the death of the testator. Six weeks after he was taken from the institution, he was formally and legally adopted by the testator, with the consent of his wife, under and in pursuance of the laws of the state of Massachusetts, which were shown to be substantially the same as our own statutes on that subject. It seems that there could have been no other conclusion in that case but the one found, namely, that the mutually acknowledged relation of parent and child did exist, withiu the meaning of the statute. There, there was correlation and interdependence, but in the ease at bar there was absolutely no dependence by the nieces upon their uncle for support, care, or protection. In re Capron’s Estate, 30 St. Rep. 948, the testatrix was the stepmother of those who claimed exemption, and had presided over their home, cared for them from their youth, looking after their education, training, deportment, and clothing, and performed all those offices which it were possible for a mother to perform, by reason of having assumed the charge and care of them by her marriage to their father. The case nearest parallel to the case before us is In re Sweetland's Estate, 47 St. Rep. 287. In that case an aunt of the beneficiary resided with her sister’s family without payment of board or rent, the sisters being cotenants; and petitioners, after the death of their mother, worked the farm, which all had lived upon ; and it was held that this did not establish the relation of parent and child between the petitioners and the aunt, so as to exempt the petitioners of the payment of a tax on a legacy from her. In the various cases decided in which it has been held that transfers were exempt because the mutually acknowledged relation of parent and child existed, the children were taken into the family of the deceased, and were made members of the family, and lived and grew up as members of the family, and were recognized and considered as such. The fact that Bessie H. Winter repaid to the testator the money which he at one time advanced to her in a business venture is not any proof of the existence of a filial relation, but, on the contrary, the repayment of .the money is some evidence that such a relation did not exist, and that it was regarded as a purely business transaction. The order should be affirmed.

Order affirmed.


author: Giegerich, J.

text:
    Charles Kummer, Pl’ff, v. Christopher and Tenth Street Railroad Company, Def’t.

      (New York Common Pleas, Special Term,

      Filed May 8, 1895.)

    1. Costs — New trial.
    Where a judgment has been reversed and a new trial granted, the item of $15 for proceedings after notice of and before trial is not taxable under section 3351 of the Code.
    3. Same.
    In such case, the successful party is entitled to tax the costs, though they have already been once allowed and paid to him, as a recompense for the favor granted to his adversary.
    3. Same — Disbursements.
    So, the expense of a copy of the stenographer’s minutes of a former trial, procured for use on the second trial, is taxable.
    Motion for a new taxation of costs.

      Herbert T. Ketcham, for pl’ff; Merrill & Rogers, for def’t.
   Giegerich, J.

Upon further consideration, I am convinced that I erred", upon a former motion for a new taxation of costs in this case, in allowing $15 for services after notice of trial.and before trial. Such an allowance should not be made in the case of a new trial granted upon an order. The case of Spring v. Day, 44 How. Pr. 390, followed by Chief Judge Daly in Zelmanovitz v. Railway Co., 67 St. Rep. 405, is authority for such a charge in the case of a new trial resulting from a disagreement of the jury, but does not present the question of the proper practice in taxation for a new trial which has resulted from a reversal of a judgment and an order granting such new trial. I do not think, however, that the Code of Civil Procedure leaves any doubt as to the proper taxation under such circumstances. Section 3251, subd. 3, awards costs : “To either party : For all proceedings after notice of trial, and before trial, except as otherwise 'prescribed in this article, fifteen dollars.” The different provision indicated by the words which I have put in italics is found below in the same subdivision, and is as follows: “Where a new trial is had, pursuant to an order granting the same, for all proceedings after the granting of, and before the new trial, twenty-five dollars.” I think it clear that the last provision operates to the exclusion of the former, and that where $25 has been taxed for costs after the granting of and before a new trial no allowance can be made in the same trial for costs after notice of trial. Since the matter was last before me, there has been a second reversal, and a second new trial has been ordered. It follows, therefore, as there have been two new trials granted in the case, for which $50 were properly taxed as costs after the granting of and before such new trials, that the item of $60 for costs alter notice of trial for four trials should be reduced by $30. The remaining $30 of the item is proper, being made up of $15 for costs after notice of trial of the first trial and $15 costs after notice of trial .of the trial which was made necessary by a disagreement of the jury. The payment of the costs and disbursements of a former trial was imposed upon the appellant as a' condition to the granting of a new trial, which was granted, it seems, as a matter of favor, no available exceptions or errors of law appearing in the record on appeal. The principle applied in cases of similar indulgences in opening defaults, Lennon v. McIntosh, 19 Abb. N. C. 175, and in allowing amendments, Cohn v. Husson, 13 Daly, 334; Starr Cash Car Co. v. Reinhardt, 6 Misc. Rep. 365 ; 56 St. Rep. 404, affords ground for a like decision in this case. I think that the successful party is entitled in such cases to tax the costs, although they have already been once allowed and paid to him, as a recompense for the favor granted to his adversary. It follows that the clerk’s taxation of the costs and disbursements, paid as aforesaid, was proper; and consequently the same should not be deducted from plaintiff’s bill of costs.

Zelmanovitz v. Railway Co., supra, is an express adjudication that disbursements for stenographer's minutes o£ testimony upon a former trial for use upon a subsequent trial may be taxed. The plaintiff’s attorney makes affidavit that the transcript was necessary for use and was used upon the two succeeding trials. The charge therefor of $5.60 is not unreasonably large, and therefore should be allowed.


author: Daly, C. J.

text:
    Leopold Zelmanovitz, Pl’ff, v. Manhattan Railroad Company, Def’t.

      (New York Common Pleas, Special Term,

      Filed February 13, 1895.)

    1. Costs — Disbursements.
    The expense of a copy of the stenographer’s minutes of a former trial, procured for use upon a subsequent trial, may be taxed as a disbursement.
    2. Same — Before trial.
    Costs after notice of and before trial are taxable upon a second trial had after the disagreement of the jury upon the first trial.
    Motion for taxation of costs.
   Daly, C. J.

Under the former Code of Procedure, allowing the taxation of only such disbursements as were “necessary.” It was generally held that the expense of a copy of the stenographer’s minutes of a former trial, procured for use upon the second trial, could not be taxed, Hamilton v. Butler, 30 How. Pr. 36, Robertson, J.; Id. 19 Abb. Pr. 446, although it was subsequentl y determined that it might be, Flood v. Moore, 2 Abb. N. C. 91, Westbrook, J. In the first case it was said that they were “very useful,” but not a necessary disbursement. In the second case it was said that the allowance of the disbursement stood upon the same ground as the expense of subpoenaing witnesses to testify to what other witnesses swore to on the first trial. The present Code allows “reasonable” as well as “necessary” disbursements ; and under that category this disbursement might with propriety be claimed. Section 3256. Under the old Code, the expense of the stenographer’s minutes, procured in order to propose amendments to a case, were at one time allowed, Sebley v. Nichols, 32 How. Pr. 182, and afterwards in another case disallowed, Extracting Apparatus Co. v. Sargent, 43 Hun, 154. Since the new Code, such a disbursement has been considered as reasonable when taxed as disbursements of appeal. Stevens v. Railroad, 31 St. Rep. 404. The tendency is to hold that to the “reasonable” as a disbursement which is useful and convenient, and which prudence would suggest as requisite in the way of preparation. A copy of the stenographer’s minutes of the evidence upon a former trial for use upon a subsequent trial that would come under that head. The disbursement should, therefore, be allowed. Costs after notice of trial and before trial should be taxed upon a second trial after the disagreement of the jury upon the first trial. Spring v. Day, 44 How. Pr. 390. Sheriff’s execution fees should be allowed ($1.50), under the act of 1890, chap. 528, § 17, subd. 6.


text:
    Joseph B. Bloomingdale et al., App’lts, v. Henry Steubing, Resp’t.

      (New York Common Pleas, Special Term,

      Filed May 6, 1895.)

    1. Landlord and tenant — Eviction—Repairs.
    An agreement between a landlord and a tenant, whereby the former was allowed to take possession of the premises and find another tenant for the remainder of the term, gives him the implied right to make such repairs as are necessary to render the premises tenantable.
    2. Same — Extraordinary repairs.
    Where the landlord, in such case, makes extraordinary repairs to fit the premises for a subsequent term, such act renders him liable to the tenant for use and occupation only for the time spent in making such repairs.
    Appeal from an order of the city court, reversing an order setting aside, as inadequate, a verdict in favor of plaintiffs for six cents.

      D. Solis Ritterband, for app’lts; Guggenheimer, Untermyer & Marshall, for resp’t.
   Daly, C. J.

The plaintiffs, lessees of the premises in question vacated them on February 1, 1892, having paid the rent in advance to the end of their term, which expired May 1st; and the testimony of both plaintiffs and defendant shows conclusively that by agreement between them the defendant was allowed to enter and take "possession, and to try and find a tenant for the premises for the unexpired term of the plaintiffs’ lease. The allegation of thb complaint that the defendant forcibly and wrongfully entered and took possession was therefore not sustained upon the trial; but the issue submitted to thé jury was whether, having permission from plaintiffs to enter for one purpose, he availed himself of such a permission fora totally different purpose, to wit, to put the premises in repair for the term commencing after the plaintiffs’ lease expired. The lessor testified that the premises were left in bad condition, and as they could not be let in that state, plaintiffs told him to go and put them in repair. The plaintiffs denied this statement, and that, in effect, was the issue left to the jury. As it was conceded that the lessor-was to try and let the premises for the remainder of the term, the right to make such repairs as would render the premises tenantable is fairly to be implied from the arrangement between the parties. The trial judge instructed the jury that the plaintiffs were entitled to a verdict if the defendant “ went beyond what the plaintiffs intended or agreed he should do,”; and the verdict in plaintiffs’ favor was, in effect, a finding merely that he exceeded the license given, or the authority conferred upon him, as agent for the plaintiffs, to relet on their behalf. The verdict of six cents damages shows that in the apion of the jury the plaintiffs were not injured thereby, and the only question is whether there was evidence for substantial damages. No evidence of damage was given ; but plaintiffs claim to recover for the rent of the premises at the rate of $150 per month while defendant was in possession; being a total of $450, the amount which they had paid him in advance for the balance of their term. The judge instructed the jury that if defendant entered on February-1st and did what he was not entitled to do, the jury might find $450, for three months’ rent, and that if he took possession later, either in March or April, the jury might find against him at the rate of $150 per month. The instruction on the subject of damages was too favorable to plaintiffs, for, if defendant was liable for the value of the use and occupation while engaged in making extraordinary repairs, he would only be liable for the time spent therein, and not for the whole time of his possession, for he was in possession, under license for the whole term. There was no evidence that any repairs (except putting in some panes of glass and fixing water pipes, which were undoubtedly necessary to make the premises tenentable) were commenced before April 7th, and one of the plaintiffs testified that they were substantially completed on April 19th. There was no evidence as to how much of the repairs made during these twelve days were extraordinary, nor what was the value of the use and occupation of the premises during that time, in the condition in which plaintiffs left them, nor any proof of loss of tenants by defendant’s acts. No demand of possession was made of defendant at any time, nor was his license revoked, nor did he refuse to admit plaintiffs to possession. Nominal damages, therefore, were not improper ; and the general term, in its discretion, might reverse the order granting a new trial. With the exercise of that discretion, we should not interfere. There was no exceptions which affected the recovery. Order affirmed, with costs and disbursements.

All concur.


text:
    Stephen Jennings, Resp’t, v. New York, New Haven and Hartford Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed May 6, 1895.)

    Master and servant — Fellow.
    Among the employes in the company’s yard, those, not engaged in the performance of any duty imposed by law upon the master, are not precluded from recovering for injuries inflicted by the negligence of the subordinates to whom such duty ha^ been delegated by the master.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a 'motion for a new trial.

      Page & Taft, for app’lt ; Lamb, Osborne & Petty, for resp’t.
   Daly, C. J.

The action was for damages for injury to plaintiff’s finger, which was crushed between two cars that he was coupling in the freight yards of the defendant at 132d street and the Harlem river. The plaintiff was employed by the defendant as a yard bralceman, and it was his duty to assist in uncoupling cars of trains that arrived in the yard, and in making up trains that were to go out. He was engaged in the latter occupation when he was injured. The injury was caused by a defective drawhead in a car which he was directed to uncouple from another in a train standing upop,one of the tracks. To uncouple the cars, he had to pull out a pin in the drawhead which held the link that united the cars, and this was to be done when the coupling was slacked by the backing of the cars by the engine. The collision caused by the backing of the cars forced the drawhead under the car, and caught his finger between the pin and the front of the car platform. It is conceded by appellant that, if the drawhead and its attachments had been in good condition, it would have yielded to the blow of the collision only about an inch or two, and the pin would have been kept a safe distance away from the face of the platform. The car with the defective drawhead had been brought into the yard two days before the accident. The day after its arrival it was inspected, and defects discovered in it, and the car placed upon the “ shop track” for repairs. On the day of the accident it had been again placed on the repair track for repairs. There was a regular system for inspection and repair of damaged cars at the yard, but there was no proof that the defect in this drawhead .had been examined, although, as again conceded by appellant, “it is certain that, if an inspection had been made in accordance with the rules prescribed, any of the defects alleged by the plaintiff would have been discovered.” The car was repaired in some other respects, and then removed from the repair track to the ordinary tracks for use in making up trains. The negligence of the subordinates whose duty it was to inspect and repair the car was thus established. The injury to the plaintiff occurred after the car was returned to the ordinary tracks to be used. Ro duty devolved upon plaintiff to examine it under such circumstances, for, as conceded further by appellant, “the'car is supposed to be in proper condition when it leaves the repair track.” If the defect complained of were obvious, the plaintiff would take all risks of using the defective apparatus; but in this case the defective apparatus. was under the car, and would be disclosed only upon inspection; and plaintiff was not bound to make such inspection, because, after the car had been returned from the repair track, he bad the right to assume that it had been put in order so far as an inspection would disclose defects. It was his duty, when cars arrived in the yard, to assist in handling them, and to do so with the assumption that they might need repair; and, when so engaged, he would, of course, take all the risks of such employment. But, after a damaged car had been inspected, repaired, and returned for use to the brakeman as a car in perfect condition, he was relieved from any further duty of inspection or examination with regard to it, and had the right to assume that it was safe to handle. Unless the duty of examination and inspection of the car in question had been committed to the plaintiff, “ he had the right to assume that the master’s duty had been performed by those having it in charge, and that the coupling appliances upon the cars were adequate to the performance of its work without .extraordinary risk or danger.” Goodrich v. Railroad Co., 116 N. Y. 398, 403 ; 26 St. Rep. 767.

The chief contention of defendant is that the plaintiff, being engaged in the j'ard, was a fellow servant of all the employes of defendant there, including those whose duty it was to make inspection and repairs, because the business of the yard was to overhaul the cars, and see that they might be safely handled when they went out on the road; and therefore all persons employed in the yard were engaged in this common purpose. The same might be said of all persons engaged in operating a train; but where the duty of inspection is imposed upon the conductor by the rules of the company, and is neglected, the brakeman of the train is not precluded from recovering damages caused by such neglect. Bailey v. Railroad Co., 139 N. Y. 392 ; 54 St. Rep. 550. In the present case the duty of inspection of incoming trains in the freight yard was imposed by the rules of the company upon car inspectors. Damaged cars were marked, and put in the hands of the chief car repairer, who had a force of operatives under his supervision ; and, after repairs are reported as made, the same official makes a thorough personal examination of the cars. The plaintiff, as yard brakeman, had nothing to do with this inspection or the making of repairs ordered, and, when injured, was handling cars returned for the use after inspection and repairs, and, it was to be assumed, after the duty of inspection had been fully performed and necessary repairs made. The duty of inspection and repair was the master’s duty, and, although exercised through subordinates, the latter are not the fellow servants of an employe who is not engaged with, them in that particular duty. “ The master is never exonerated by the negligent omission of subordinates to perform duties which are imposed upon him in his character as master, resulting in injury to other employes.” Bailey v. Railroad Co., above. The cases cited by appellant in our court of last resort do not conflict with this view, but, on the contrary, we think, sustain it. In Gibson v. Railroad Co., 22 Hun, 289 (a case resembling the present in many particulars), it was held that a switchman in the yard and the car inspector were coservants, engaged in a common enterprise, and that the former could not recover for the neglect of the latter in not discovering defects, and sending a defective car out on another train, instead of sending it to the repair shop ; and Besel v. Railroad Co., 70 N. Y. 171, was cited as authority for so holding. But the circumstances were wholly different in the latter case, in which a car repairer was injured by the negligence of a yard master and head brakeman in running a detached car back" so as to strike the car in which the injured employe was at work. It was held that the company was not liable, and manifestly so, for the negligent employes were not engaged at the time in the performance of any duty of the master, such as inspection or repairs. It was upon the same principle that McCosker v. Railroad Co., 84 N. Y. 77, was decided, the negligence being that of a yard master in signaling a train back, the court saying: “ No duty which the master owed to his servants was being done by the yard master from the negligent performance of which the injury resulted.” It is to be plainly inferred from the decisions that, among employes in the company’s yard, those not engaged in the performance of any duty imposed by law upon the master are not precluded from recovering for injuries inflicted by the negligence of the subordinates to whom such duty has been delegated by the master. In this case the plaintiff’s injury was sustained through neglect of inspection, with which he had nothing to do, and while engaged in handling cars that had been inspected and returned as fit for use. Two other cases relied upon by appellant remain to be noticed. In Byrnes v. Railroad Co., 113 N. Y. 251; 22 St. Rep. 936, the brakeman of a train was injured in consequence of the improper manner in which a car had been loaded by which the brake became useless. The car and its appliances were in good condition when furnished to be used, and the company was, of course, not liable for the negligent manner in which it had been loaded ; the fault not being in the character of the car or its appliances, but in the negligent loading of it. In Arnold v. Canal Co., 125 N. Y. 15; 34 St. Rep. 372, a yard brakeman was injured while handling a car with a broken drawhead, to place it upon the “ cripple track ” for repairs. The defect in the draw-head was obvious, and the plaintiff took the risk of the employment. “ One of the purposes of liis employment was to handle and remove cars which were disabled, and, if he did not know the condition of the one in question, he was bound to assume that it might be disabled, and govern his action accordingly.” In the case before us the plaintiff was not handling cars destined for the repair track, but those which had come from it, and which he had the right to assume had. been properly inspected and repaired. The judgment and order appealed from should be affirmed.

All concur.


author: Arnold, S.

text:
    In the Matter of the Application for Letters Testamentry with the Will Annexed, of Ann Owens, Deceased.

      (Surrogate's Court, New York County,

      Filed February 21, 1895.)

    1. Will — Construction—Jurisdiction.
    The surrogate, for the purpose of passing upon applications of various kinds which he is empowered by statute to entertain and decide, has authority to construe the terms and provisions of testamentary instruments.
    3. Legacy — Unincorporated association.
    A bequest to “ the sisters of charity attached to the St. Lawrence Catholic Church,” an unincorporated association, cannot be sustained on the theory that it is given to the individuals composing that body.
    Application for letters testamentary with the will annexed of Ann Owens, deceased.

      Henry Cooper, for petitioner.
   Arnold, S.

This is an application by one Mary Lavelle for letters testamentary with the will annexed, both the executors named in the will having died. It stated that there is some personalty, to a small amount, yet unadministered upon. Petitioner is a niece of the testatrix, and the only one of her next of kin residing in this state. Section 2643 of the Code gives the preference upon similar applications to legatees under the will, then to the next of kin. No application on the part of any legatee has been made, but the citation herein has issued to and been served on all the surviving legatees, or they have appeared in this proceeding. The only opposition to the application is made by a person claiming to be one of “the Sisters of Charity attached to St. Lawrence Catholic Church,” who asserts a prior right to such letters. By the terms of the will the testatrix devises her whole estate, after the decease of her only child, who died, as it happened, a few days before the date of the testatrix’s own demise, in equal parts, one to St. Lawrence Catholic Church aforesaid, one to the Sisters of Charity attached to said church, and the third to the Little Sisters of the Poor. It is conceded that the Sisters of Charity attached to St. Lawrence Catholic Church are not incorporated, and it is contended that the devise must be construed as applying to the persons answering the description given as individuals; but, on the other hand, it is insisted that the devise is to an unincorporated association, which has not power by law to take it. I am of the opinion that the latter is the correct position, and that it was manifestly not intended by the testatrix to give a large portion of her estate to sucli individuals as at her decease — an indefinite and unfixed period — should happen to be Sisters of Charity, and attached to St. Lawrence Church ; or should answer that description at the date of the will, but that the devise was to the Sisters of Charity attached to the church as a body, and for charir table and not personal purposes. It has been very frequently held that, for the purpose of passing upon applications of various kinds which he is empowered by statute to entertain and decide, the surrogate has authority to construe the terms and provisions -of testamentary instruments, Susz v. Forst, 4 Dem. Sur. 348 ; In re Wheeler, 46 Hun, 64 ; 10 St. Rep. 864; In re Fernbacher, 4 Dem. Sur. 227 ; In reWood's Estate, 15 St. Rep. 722 ; affirmed 7 N. Y. Supp. 836, and 119 N. Y. 660. I should not deem the fact that the individuals answering the description in question were ordered to be made parties defendant as such, in an action for partition of the decedent’s real estate, should govern this court upon the present application, as they might have been brought in simply for greater caution, and to obtain a judgment on the very, point in controversy which would be conclusive on them. And it appears that in another action for partition in the supreme, court an application to make the individual “Sisters” in question parties to a suit involving real estate, in which their own possible interest was derived under the same will, was denied. In this matter it is necessary that the application of the petitioner should be granted or denied, and the disposition of the matter calls for a construction of the will as to who were inten ded by the testatrix, by the terms used by her, as her legatees. I do not think that any one or more of the persons who may answer individually to the description of a Sisters or Sisters of Charity attached to St. Lawrence Catholic Church is entitled to letters of administration herein, and, as the relationship of the applicant to the decedent as claimed by the former is conceded, she is entitled to the letters asked for. Decree for letters to the petitioner as prayed for is ordered.


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    In the Matter of the Estate of Jacob Basch, Deceased.

      (Surrogate’s Court, New York County,

      Filed March 11, 1895.)

    Executors — Discovert.
    A proceeding for the examination of a person concerning personal property in his possession, alleged to belong to decedent, cannot, after a verified answer is interposed claiming the ownership or right to the possession of the property, be continued in order to examine him for the purpose of procuring the disclosure of any knowledge or information concerning the property which he may have.
    Proceeding to discover personal property alleged to belong to the estate of the decedent.

      James Fromme, for resp’t.
   Arnold, S.

This is an application by the public administrator for an examination of the respondent touching certain personal property in her possession, which he alleges upon information and belief belonged to the decedent. A citation and order having been granted and served upon her, the respondent appears and files a verified answer, claiming to be “the owner of each and every item and article of property in said petition enumerated,” and thereupon asks, by virtue of the provisions of section 2709 of the Code, for a dismissal of the proceedings. The public administrator, conceding that the issues made by the petition and answer cannot be tried in this court, and that no order for the delivery of the property in question can be made, nevertheless claims the right to proceed with the examination of the party for the purpose of procuring the disclosure of any knowledge or information, concerning the property which she may have. The proceedings for discovery by the public administrator are regulated, where he is acting under letters of administration granted to him by the surrogate, by the provisions of the Code. In re Elias, 4 Dem. Sur, 139. The purpose of these provisions is to enable the legal representative of an estate to obtain possession of property belonging to it which is withheld from him. Two classes of persons may be cited, — those who have possession or control of the property in question, and who can therefore deliver it if required so to do, and those who only have knowledge or information concerning it. Section 2707, Code. If on the return day the person cited interposes a written answer, duly verified, that lie is the owner of the property or entitled to its possession by virtue of a lien thereon or special property therein, the surrogate must dismiss the proceedings as to such property so claimed. If no such claim is made as so provided, the examination must proceed. The result is that, where claim of title is interposed, the surrogate is ousted of jurisdiction, and cannot decide the question raised, the parties being remitted to another tribunal, wherein a jury trial or other proper and constitutional disposition of the issues maybe had. If no claim is made to the title or possession of the property, a full inquiry is allowed for the purpose of ascertaining what knowledge or information the person cited has as to the property. In this case the party comes before the court, and files a written and verified answer, claiming absolute ownership of all the property in question. Under such circumstances, no examination is permissible, and if it were allowed no order could be made for the delivery or disposition of the property based upon it. The provisions of the statute are peremptory, to whichever of the two classes mentioned the party cited may, upon the face of the petition, belong. It is true that section 27Ó9 provides that the proceedings shall be dismissed as to the property claimed, but that is meant -to cover a continuance as to such property mentioned in the petition as is not claimed by the answer. If there be any such, and the answer admits possession or control, as well as ownership, by the estate, suitable provision may be made for its delivery'to the legal representative. If full concession in these respects is not made, then the party must submit to full examination as to what he knows or has been informed as to such part of the property described in the petition to which he asserts neither title or lien nor special interest. Here the ownership of all the property is claimed in hostility to the public administrator, as legal representative of the intestate. The proceedings are dismissed.


text:
    In the Matter of the Probate of the Will of William Gee, Deceased.

      (Surrogate’s Court, New York County,

      Filed February 1896.)

    Surrogate — Deposition.
    The surrogate has power, upon an application in a proceeding before him, to make an order directing the examination of a witness, residing in another county in this state, to be taken before a referee in such county.
    Proceeding for the probate of a will.

      Edward S. Clinch, for proponent.
   Arnold, S.

This is an application on the part of proponent for an order directing the examination of a witness residing in Greene county, in this state, to be taken before a referee in such county. I entertain no doubt of the power of the surrogate to make such order. Section 2589 of the Code prescribes the practice where a witness who is aged, sick, or infirm cannot attend, before the surrogate in whose county the proceeding is pending. Section 2540 provides for cases where the disabled witness is in another county, and this, not being an application for the “examination of a subscribing witness to a will,” comes within the category of “ other cases ” in which a referee may be appointed. The decision in Re McCoskry, 10 Civ. Proc. R. 178, is not only not in conflict with this view of the subject, but entirely in harmony with it. ° The affidavit presented is not very explicit as to materiality of the evidence expected to be elicited from the witness,, but, having supplemented it by an examination of the testimony of the subscribing witnesses, who fail to prove the execution of the will, there is enough to satisfy me that the testimony now sought may be material. The provision with respect to the transmission of the will to the referee for use on the examination should not ordinarily be granted, but as the conflicting interests in this estate seem to be fairly represented, assuming the executor to be, so far as the papers and proceedings indicate, entirely disinterested, and all the attorneys, as well as the special guardian, not only consent to but urge the granting of the application, that provision may remain with a slight amendment.

Order as amended signed.


text:
    In the Matter of the Appraisal of the Estate of Monroe Westcott, Deceased.

      (Surrogate’s Court, Otsego County,

      Filed March, 1895.)

    Tax — Transfer.
    A devise of the remainder after a life estate, if the remainderman be then living, with limitation over in case of his not living at that time, is not taxable during the lifetime of the life tenant.
    Appraisal of the estate of Monroe Westcott, deceased, for taxation under the transfer tax law.

      Maynard & Gilbert (F. R. Gilbert, of counsel), for app’lts: Frank L. Smith, Dist. Atty., for county treasurer.
   Arnold, S.

This appeal brings up for review the proceedings

had herein under the taxable transfer act, to wit, the appraisal and report of the appraiser, and the order of the surrogate confirming the report of the appraiser, and assessing the tax to which the several legacies passing under said will were liablei The tax on the legacies given by the fourth and fifth clauses of testator’s will, it is conceded, was properly assessed, and in disposing of this appeal it is not necessary to consider more than the sixth clause of the will, which reads as follows:

“Sixth. I devise and bequeath the use of all the residue and remainder of my real estate to my wife, Elizabeth Pope Westcott, so long as she shall live, except what may be necessary to keep in repair. At her death I direct that all the property left shall be under the control of Dr. Cora P. Gannung, for the purpose of establishing and founding a hospital in the corporate limits of Oneonta, to be known as the ‘Munro Hospital,’ to be managed and run under the direction of the said Dr. Cora P. Gannung; and she shall receive out of the rents and profits of said property so left the sum of ($1,000) one thousand dollars each year during her life for her services as sole director of said hospital. This property is left as an endowment fund, the use of which only may be used each year for the best good of said institution. And, in case any contributions shall be made by others for buildings or for furthering the interests of said hospital, it may be accepted upon condition that the said Cora P. Gannung may associate with her any person or persons to be directors in said hospital. But should the time ever come that her wishes, or the wishes of the person or persons-she may name as directors, cannot be carried out, I direct that all this endowment fund shall be withdrawn from said hospital, and the use thereof shall belong to Dr. Cora P. Gannung for her lifetime, after keeping said property in repair, and at her death it shall go to Munro Lee Evans, oldest son of George 0. Evans; and should he not be alive it shall go to the children, equally divided, of George 0. Evans, Morris Evans, and Leon Evans then living, except one thousand dollars to each of the children of Dr. Cora P. Gannung then living. Should George O. Evans, Morris Evans, and Leon Evans, any or all of them die, and leave no children, in that case their shares they have the use of be and become a part of the endowment fund for said hospital, upon the same conditions as the other funds.”

Stripping this clause of testator’s will of all reference to the institution to be known as the “Munro Hospital,” the testator gives to his wife, Elizabeth Pope Westcott, a life estate in the remainder of his real estate. On her death he gives a life estate in the same to Cora P. Gannung. On her death he gives the remainder to Munro Lee Evans, if he be then living. If he is not living at that time, then such remainder is given to certain other persons. Proceeding under chapter 713 of the Laws of 1887, the law in force at the time of testator’s death, the appraiser has, by the means of the methods and standards of mortality and of value which are employed by the superintendent of the insurance department, appraised the fair market value of the devise to Cora P. Gannung at $4,550.70, and the surrogate has fixed the tax due thereon at $227.54. The appraiser has also "appraised the fair market value of the devise to Munro Lee Evans at $12.091.09, and the surrogate has assessed the tax due thereon at $604.55. Under the decision of the court of appeals in Re Hoffman's Estate, reported in 143 N. Y. 327; 62 St. Rep. 245, it is very clear that the devise to Munro Lee Evans is not presently taxable. This leaves but one question to be disposed of here, viz.: Is the devise to Cora P. Gannung presently taxable ? The act of 1887 provides that the appraiser shall appraise the estate subject to the tax as “ its fair market value,” and from the appraiser’s report “ surrogate shall forthwith assess and fix the then cash value of all estates, annuities, and life estates or terms of years growing out of the said estate, and the tax to which the same is liable.” Can “the fair market value” of this devise to Cora P. Gannung be found by the appraiser, and its “cash value” be fixed by the surrogate at the present time? Mathematically it can; otherwise it cannot. Cora P. Gannung may die before her mother. This contingency is not named in the will, but what difference can that make as to the disposition of this case? It exists the same as though named, and the decision of the court of appeals in the Hoffman Case decides the present taxability of the devise to Cora P. Gannung. By the Hoffman will the mother took a life estate. On her death by the terms of the will, Ella A. Sanford took a life estate, if she survived her mother. If she did not survive her mother, then on the death of her mother the remainder went to the issue of her daughter, etc. Here Mrs. Westcott takes a life estate. If upon her death, Cora P. Gannung survives her (if we do not consider the provision of the will relating to the Munro Hospital), she takes a life estate, and on her death the remainder goes to Munro Lee Evans, etc. The estates devised to Ella A. Sanford and Cora P. Gannung, by these respective wills, are subject to exactly the same contingency. In the event of the death of Cora P. Gannung before the death of her mother, as is said by the court of appeals in the Hoffman Case, “there will have been no actual transfer to her of any of the property of the decedent. She ought not to be taxed until events make it certain that there is an actual and beneficial transfer of the property to her.” It is very true that the estate devised to her comes withm the statutory definition of a “vested remainder,” but it is very different from a cáse where the will gives a life estate to A. and the remainder to B. and his heirs. At the present time she has no estate that she could sell to any one at any price, unless it might be to the most daring speculator. There must;be an adjournment of the taxation of the devise to Cora P. Gannung until the death of Mrs. Westcott, and there must be an adjournment of the taxation of the devise to Munro Lee Evans until the rights of the parties entitled to that devise become fixed and actual. These devises are not presently taxable.

Let a decree be entered modifying the decree appealed from according.

Decreed accordingly.