author: Pecicham, J.

text:
    In the Matter of the Appraisal under the Collateral Inheritance Act of the Property of Daniel B. Fayerweather, Deceased.1

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Tax—Collateral inheritance—Act op 1887.
    Under § 5, cliap. 713>of 1887, the executor of a decedent, who died prior to the passage of chap. 899 of 1892, had the right to ask that the interest, charged for delayed payment excused under said provisions, should be 6 per cent, from the expiration of eighteen months after decedent’s death.
    2. Same—Saving clause op act op 1892.
    Such case comes within the saving clause of chap. 399 of 1892.
    Appeal from order of the general term of the supreme court in the first judicial department, which affirmed an order of the surrogate of New York county directing interest at the rate of 6 per cent, per annum to be charged upon a portion of the collateral inheritance tax fixed upon the estate of Daniel B. Fayerweather, deceased.

      Emmet B. Olcott, fpr app’lt; William H. Arnoux, for resp’t.
   Pecicham, J.

The executors of the will of the above decedent made certain payments on account of the collateral inheritance tax, within the period of eighteen months subsequent to his decease, and in regard to the balance due they applied some time after the eighteen months had expired and under the fifth section of the tax act to have the penalty of 10 per cent, interest thereon remitted. The comptroller of the city of New York appeals from the order made by the surrogate of New York county granting that application. The order was affirmed by the general term of the supreme court of the first department.

The-- decedent died on the 15th day of November, 1890, leaving a large estate. A contest arose over the probate of the will. It was finally decided in favor of the proponents, and the will was admitted to probate by the surrogate of New York on the 24th of March, 1891.

The application of the executors to the surrogate for a remission of the penalty imposed by law for the non-payment of the whole of the tax within eighteen months of- the date of the death of the decedent, resulted favorably to the executors, and the surrogate adjudged that by reason _of litigation and other unavoidable causes the amount of the tax had not been determined, and he, therefore, granted the application and remitted the penalty, and then decreed that the interest to be charged on the balance of the tax then imposed should be at the rate of 6 per cent, from the 15th of May, 1892 (eighteen months subsequent to the death of the decedent), and the application of the comptroller for an order charging interest on that amount at the rate of 6 per cent, from the death of the testator (November 15, 1890), as provided by chap. 399 of the Laws of 1892, was denied. The question, therefore, is simply whether interest on the amount of the tax still due shall be charged from the date of the death of the decedent or from a date eighteen months subsequent thereto.

If the saving clause in the 24th section of the act, chap. 399, of the Laws of 1892, cover and apply to this case, then the order is right. If it do not, then the further question would arise whether in any event the act of 1892 applied to the estate of any individual dying before its passage.

Under the act of 1887 (chap. 713), which was in force at the time of the death of the decedent, the taxes imposed by the act were by the fourth section thereof made due and payable at the death of the decedent, and if they were paid within eighteen months thereafter no interest was to be charged or collected thereon, but if not so paid, interest at the rate of 10 per cent, per annum was to be charged and collected from the time the tax accrued. ' By the fifth section of the act it was provided that the penalty of 10 per cent, imposed by the fourth section should not be charged where in cases by reason of claims made upon the estate, necessary litigation or other unavoidable cause of delay, the estate of a decedent could not be settled at the end of eighteen months from the death of the decedent, and in such cases only 6 per cent, per annum should be charged from the expiration of the eighteen months until the cause of delay should be removed. At the time, therefore, when the tax upon this estate accrued or became due, viz., upon the death of the decedent, the law gave the executors of his will eighteen months in which to pay the tax without the addition of any interest whatever, and .10 per cent, interest from the time this tax accrued was imposed as a penalty for- non-payment unless it was excused under the provisions of § 5 above quoted, and in that case interest only at the rate of 6 per cent, from the expiration of the eighteen months, until the cause of delay was removed, was imposed. When the decedent died his estate at once became liable for the payment of this tax of 5 per cent., and provision was made for the payment of a penalty and for an exemption from such penalty, under circumstances provided for in the statute. So far as the imposition of the tax was concerned, the legislature imposed a liability; a liability was also imposed in the nature of a penalty for the failure to pay the tax within a certain time, and a privilege or right was granted to avoid the penalty under the circumstances set forth in the act, and when the penalty was not charged, the interest was then to be 6 per cent, from the expiration of eighteen months subsequent to the death of the decedent. While the law was in this condition the legislature on the first day of May, 1892, passed the act, chap. 899 of the Laws of that year. The statute repealed the prior acts upon the subject of taxation of collateral inheritances and itself made full provision therefor. It altered the fifth section of the act of 1887, above alluded to, by providing that if the penalty of 10 per cent, interest on overdue taxes was not charged, then interest at the rate of 6 per cent, per annum should be charged from the date of the decedent’s death. The reasons for not charging the penalty of 10 per cent, were left the same in the new as in the old statute.

Section 24 of the new or repealing act contained a saving clause providing that the repealing clause should “not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to May 1, 1892, under or by virtue of any law so repealed.” It will be seen that the repealing act was passed a few days before the expiration of eighteen months subsequent to the death of the decedent. The appellant’s counsel claims that when the act was passed there remained a period of time within which the tax could have been paid without the liability to pay any penalty, and that before such time had expired, and consequently before the possible right to charge the penalty had accrued, the law was changed so that when the right did accrue, unless it were remitted, the law provided for the payment of interest from the death of the decedent, instead of from eighteen months thereafter. I think this is an erroneous view of the case.

When the decedent died the law of 1887 in its entirety applied, and, under its provisions, the executors of the estate would have the right, at the proper lime, to ask that the interest to be charged against them for delayed payment of the tax (excused under the provisions of the 5th section) should be six per cent, from the date of eighteen months, after the death of the decedent. The repealing act altered this provision, but at the same time saved the right which, within the meaning of the statute, had either “accrued,” or was “ accruing,” at the time of its passage. This provision of the 5th section of the act of 1887 may well be called a right within the meaning of the act of 1892. The claim is not made that it was a “ right ” which could not be altered, or even totally extinguished, in the discretion of the law-making power. If it were of such a character of course the statute which assumed to do either would be- ineffectual for such purpose. But it was something which, while the law remained unaltered, gave to the parties representing the estate the absolute right to have the interest charged at a certain percentage, and from a certain date, upon the fact appearing which the statute provided for. This right was subject to no discretion, and to no one’s whim. Nothing but legislative enactment could alter or abridge it in the slightest degree. The legislature did thereafter alter the law, but, at the same time, said it should not affect a right already accrued, accruing or acquired. I think it would be a most narrow and unreasonable construction of those words to hold that they do not include a case like this. If there were a doubt upon the question it should be resolved in favor of the taxpayer as represented by the executors aud against the taxing .power. United Stales v. Wiggleworth, 2 Story, 269; United States v. Watts, 1 Bond, 580; Partington v. Atty. Genl., L. R., 4 H. L. 100, 122, and many other cases cited in the brief of counsel for the respondent.

The statute, id my opinion, is not doubtful in construction, so far as this question is concerned, and I think the 24th section of the act of 1892 applies to this case.

The order should, therefore, be affirmed, with costs.

All concur, except Andrews, Ch. J., not sitting.

Order affirmed.


source: Caselaw Access Project

author: Bartlett, J.

license: Public Domain

text:
    In the Matter of the Estate of Cornelius V. S. Roosevelt, Deceased.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Tax—Collateral inheritance.
    Where the testator, who died in 1887, created several life annuities, conditioned that annuitants survive his wife, such annuities were not presently taxable under chap. 713 of 1887.
    2. Same.
    Such is also the case, where testator gave, on the death of his wife, his entire estate to several nephews and nieces subject to the payment of the annuities.
    Appeal from order of the general term of the supreme court in the first judicial department, which reversed an order of the surrogate’s court of New York county, which affirmed an order of the surrogate of said county assessing the value of certain interests passing under the will of Cornelius Y. S. Boosevelt, deceased, and fixing the collateral inheritance tax thereon.

      Edward Hassett, for app’lt; Geo. II. Yeaman, John E. Roosevelt and Geo. G. Kobbe, for resp’ts.

      Affirming 59 St. Rep. 100.

   Bartlett, J.

The question presented on this appeal is whether the interests of the annuitants and remaindermen, under the will of the late Cornelius Y. S. Boosevelt, are liable to pay presently the collateral inheritance tax. The surrogate’s court for the county of New York determined this question in the affirmative, and its order to that effect was reversed by the general term of the first department. The comptroller of the city of New York appeals to this court.

The testator died September 30th, 1887, and his will was admitted to probate in the county of New York March 17th, 1888. After certain specific legacies to his wife, the testator disposes of his residuary estate as follows, viz: The entire amount to beheld by the executor and the executrix in trust, to pay the income thereof to his wife during her life; at her death seven life annuities are given—to two persons $1,000 each, to two persons $500 each, and to three persons $5,000 each, with interests in these latter .in the nature of cross-remainders, contingent upon survival inter sese, the will providing as follows : “In case any one of the three last-named annuitants * * * shall die either before or after the death of my said wife, I direct 'my executors to pay, and I bequeath to each of the two survivors of them an annuity of $7,500 and in case any two of them shall die, either before or after the decease of my said wife, I direct my executors to pay and I bequeath to the last survivor of them an annuity of $15,000.”

On the decease of the wife, the estate is given, subject to the payments of the annuities, to twelve nephews and nieces. Two of these remaindermen died before the testator, and the appraiser, upon the theory there was no lapse, and that the survivors would take the whole remainder, has made his estimate accordingly. The appraiser reported in the first instance as follows: “The-persons who will become entitled to the annuities mentioned in the‘will cannot now be determined .until the death of the wife, and for that reason also the value of decedent’s estate, which is devised at her death to his nephews and nieces, and subject to such annuities, cannot now be ascertained.” The surrogate sustained objections to this report and the matter was sent back to the appraiser. The surrogate requested the superintendent of insurance to ascertain the value of the annuities, and acting upon his information, the appraiser reported the values of the annúities and the estates' in remainder. The matter was then duly sent back to the appraiser for the third time to enable the superintendent of insurance “to correct manifest errors.”

The third report of the appraiser increased the value of the compound survivorship annuities and considerably diminished the value of the estates in remainder as contained in his second report. This report was confirmed and was followed in due course of procedure by the order now here for review. "We are of opinion that this case must be decided under the law of 1887 in force at the time of testator’s death.

Two questions are presented for our determination, viz. : First, are the annuities created by the will such property, in a legal sense, as to be presently taxable, and can their fair and clear market value at the time of the death of the testator be ascertained; second, is the fair and clear market value at the time of testator’s death, of the estates in remainder ascertainable, and is the tax thereon due at once? In deciding both of these questions we are to reasonably construe the statute, and give effect, if possible, to all its provisions. As to the annuitants, the appellant’s counsel contends that they are entitled to an interest in, or an income from, the property of the testator, and the statute requires the tax. to be paid immediately; he goes on to say in his printed argument: “ It may, of course, be considered as a hardship to compel the annuitants to pay a tax upon an interest that they may never receive, but that' is the fault of the statute, and under its wording the payment of the tax can only be postponed by giving a bond.” This concession admits away the entire case of the state. It is not to be assumed that the legislature intended to compel the citizen to pay a tax upon an interest he may never receive, and the reasonable construction of this statute leads to no such unjust result.

It docs not follow because the legislature taxes persons beneficially entitled to property or income, in possession or expectancy, that a tax was thereby imposed upon an interest that may never vest; until that time arrives the power to tax does not exist. The testator has created seven life annuities, if the annuitants survive his wife, and there can be no vested interest in any of them until the happening of that event.

All may survive—a portion may be living—every one may be dead.

To hold such a possibility presently taxable, and its value capable of immediate computation, shocks the sense of justice.

This brings us to the remaining question as to the taxation of the estate in remainder. The testator has, on the death of his wife, given his entire estate to twelve nephews and nieces subject to the payment of the annuities. Two of these remaindermen, as already stated, died before the testator. It is contended by the respondents that it is impossible to ascertain the fair and clear market value of these remainders at the time of the death of the testator for the reason that the annuitants represent estates or interests, unvested and contingent, which, taken in connection with the life estate of the widow, renders the present value of the ultimate remainders unascertainable.

The amount that will ultimately be paid to the remaindermen is contingent, depending on future events.

Whenever the tax on the annuities is payable the estate must pay it; what the amount of that tax will be depends upon the survivorship of annuitants and the number of life annuities, if any, that shall vest on the death of the widow. This court has recently decided that it is not the vesting of remainders that renders them contingent taxable interests under the law. Matter of Curtis, 142 N. Y. 219; 58 St. Rep. 348. In the case cited it was held that the nominal fee might never become a taxable estate, for the reason that if the nephews and nieces in whom it was claimed to have vested 'died without issue -before the termination of certain trusts the fee would pass to lineals not taxable. This was the uncertainty which postponed the payment of the tax. In the case at bar there is a contingency affecting the value of the estate, as already indicated, which brings it strictly within the principle of the Curtis Case.

The learned counsel for the respondents has pointed out questions thát they may present on the death of the widow ; one involves the legal effect of the death of two remaindermen in the lifetime of the testator, and the other the correctness of the mode adopted by the superintendent of insurance in ascertaining the value of the compound survivorship annuities. These questions will become important on the falling in of the life estate, but we express no opinion in regard to them at this time.

In affirming the order of the general term we not only give to the act of 1887 a reasonable construction, but carry out the obvious intent of the testator that his widow should enjoy, during her life, the entire income of his estate.

The legislature, in the act of 1892, has given a practical construction to its previous legislation on this subject when it provides that where the fair market value of the property or interest cannot be ascertained at the time of the transfer, the tax shall become due and payable when the beneficiary shall come into actual possession or enjoyment. Chap. 399, Laws 1892, § 3.

The order should be affirmed, with costs.

All concur, except Andrews, Ch. J., not sitting.

Order affirmed.


author: Gray, J.

text:
    Jacob Bisson et al., Resp’ts, v. West Shore Railroad Company, App’lt, et al., Resp’ts. Same, Resp’ts, v. Chauncey M. Depew, App’lt, et al., Resp’ts.

      (Court of Appeals,

      Filed October 9, 1894.)

    W ill—Construction.
    A gift of real estate by testator to bis and bis wife’s beirs in words, “ t-lieir beirs and assigns forever, share and share alike,” entitles all persons who answer the description of heirs at law, either of testator or his widow, to an undivided interest in the lands as members of the same class, per capita.

    Appeals from judgments of the general term of the supreme court in the fifth judicial department, entered upon orders which affirmed final judgments in favor of plaintiffs entered upon reports of a referee, and also appeals from interlocutory judgments in the above entitled action.

      Ashbel Green, for app’lt; Joseph H. Burr, for resp’ts.

       Affirming 50 St. Rep. 370.

   Gray, J.

In the construction of wills, the court must look for something which will exhibit the intention of the testator; either actually, or so suggestively as to permit it to be inferred.

If the instrument is silent as to intention, and stands as a mere expression of a will, effect must be given to it according to those rules, which, from long acquiescence, have acquired the force of authority. The present seems to be such a case. We are without any indication as to the intentions of the testator in making this disposition of his realty, other than in the particular clause of the will itself.

Therefore, I am the less reluctant to yield my views to those entertained by the majority of the members of this court.

Upon its face, the testamentary clause refers'to two classes of heirs, and that the estate should be divided between them, giving one-half to each class, lias seemed to me to be, under the circumstances, the j uster disposition to make; because such an intention seems the more natural one to be attributed to the testator. This view is not without support in the cases. Holbrook v. Harrington, 16 Gray, 102; Burnett v. Granger, 100 Mass. 348. The clause is, however, deemed, from its peculiar arrano-ement, to resolve all, who would be heirs of the testator, or of his widow, at her death, into one class; to each individual of which was given an equal interest. In the absence of anything to show a contrary intention, I am obliged to admit that the language of the clause gives warrant to that conclusion. In affixing, to the gift of his estate to his heirs and his wife’s heirs, the words “ their heirs and assigns forever, share and share alike,” the testator may be said by his language to have grouped all of the heirs in one class; the individuals of which are indistinguishable one from the other as objects of his bounty.

There being but the one class, there can be no doubt but that the division must be made per capita among the persons entitled and not per stirpes. I think the words “share and share alike” make that sufficiently clear. Such a direction cannot be distinguished, practically, from one to divide equally. Mattison v. Tanfield, 3 Beavan, 131.

The testator has used the word “ heirs ” to describe the persons who are to take and. not to fix the interest which would vest in each person by virtue .of his heirship, .or representation of a stock— a preferable construction where the context will permit.

His gift is to a class, to be composed of those who are his or his wife’s heirs, and the members take as purchasers and as though each had been named. The word “ heirs,” while generally and technically conveying the idea of representation, is not necessarily always to be understood in that sense. Though a word of limitation, it may be used, as it is here, as one of designation of the devisees, in whom at a fixed time the estate devised shall vest in possession. So, it has been held that if a bequest is made to “issue” as purchasers, all those who answer the description will take per capita; in the absence of anything to show an intention that they shall take per stirpes. Davenport v. Hanbury, 3 Ves. 257; Leigh v. Norbury, 13 id. 340.

Though the heirs of the testator were determinable at his death, yet the gift to them was not, by the terms of the will, to vest in possession until after the termination of the life estate given to the widow. That was the time fixed for the gift to take effect and then was the time when the persons would be ascertained, who, coming under the description of heirs of the testator, would be entitled to share with the heirs of his widow, in the distribution of the estate. Within that time the number of his heirs might be diminished by death, or increased by births. See Stevenson v. Lesley, 70 N. Y. 512; Teed v. Morton, 60 id. 506.

The application of the rule that the division of the estate is to be per capita, in a case where the language of the gift, like the present case, requires equality in the shares, is sanctioned by authority.

It was early held that where the subject of the testamentary gift was to be “ equally divided,” the persons would take per capita, among whom the division is tobe made; unless a contrary intention is discoverable in the will. Murphy v. Harvey, 4 Edw. Ch. 131; Brunner v. Storm, 1 Sandf. Ch. 357; Collins v. Hoxie, 9 Paige, 81. In Stevenson v. Lesley, 70 N. Y. 512, the testator used the words “ share and share alike ” and they were considered as a direction to divide per capita. In that case, Judge Andrews relied, as did also the chancellor and the assistant vice chancellor in Collins v. Hoxie and in Brunner v. Storm, upon the decision, among others, of Chancellor King in Blackler v. Webb, 2 P. Wms. 383. That case, though the subject of much criticism, has never been rejected as an. authority in this state. Its existence as a rule of construction has been recognized; but its application has been closely confined to cases where nothingln the context of the will can be referred to, to control the language of a devise or bequest, which places all the persons, who are to benefit by it, upon an equality ; irrespective of their different degrees of relationship to the testator. Undoubtedly, and very justly, that rule has yielded and should yield, as it has been said, “ to a very faint glimpse of a different intention in the context.” 2 Jarm. on Wills, 1051, and see Ferrer v. Pyne, 81 N. Y. 284; Vincent v. Newhouse, 83 id. 505; Woodward v. James, 115 id. 346; 26 St. Rep. 147.

In Brunner v. Storm, supra, the assistant vice chancellor admitted that if certain testimony could have been received, it would be strong, if not conclusive, evidence, to show that the per capita rule of division was not within'the intention of the testator ; but he felt compelled to attribute that intention only -which the plain language of the will evidenced. In Ferrer v. Pyne and in Vincent v. Newhouse, Danforth, J., who delivered the opinion of the court in each case, observed that it was unnecessary to go to the length, to which some courts have gone, of rejecting the rule of Bladder v. Webb, because wherever the rule is adopted, it is also held to be governed by the context. Two cases, where the rule •of division per capita has been followed, are somewhat instructive. In Mattison v. Tanfield, 3 Beav. 131, the testator devised certain-real estate in trust “ for the person or persons, who at the time of my decease shall be the next of kin of E. D.; * * * according to the statute made for the distribution of intestate’s effects * * * as tenants in common," etc. At his death, E. D.’s descendants stood in different degrees of propinquity and the question was whether they were to take per capita or per stirpes. Lord Langdale, master of the rolls, stated the question to be “ whether the words of the will import an intention that the next of kin, though some of them- derive their character as such by representation, are, nevertheless, to take per capita,” and he said: “ The case seems to show that the word ‘ equally,’ Or the words ‘ share and share alike,’ would there have had that effect. But the gift in this ease is to the persons and their heirs as tenants in common and these words are not exclusively applicable to equal interests, as the words ‘ equally ’ and ‘ share and share alike; ’ and there being nothing in the will to show a contrary intention, I think that the parties * * * must, under the will, take by virtue of representation.” He directed the distribution, therefore, to be per stirpes. In Dugdale v. Dugdale, 11 Beav. 402, Lord Langdale applied the per capita rule in the division of a bequest; where it Was to be equálly divided amongst the next of kin of testator, both maternal and paternal, as should be living at the time of his death. When that event happened, there were two next of kin ex-parle paterna and one ex-parte materna.

Unlike most cases, in which the question would arise, we have nothing in this will to justify us in refusing to follow the direction apparent upon the face of the clause containing the devise, and, for the reasons stated, we hold that the devise here was to a single class, consisting of all those individuals who, at the time of the death of testator’s widow, would answer the description of his heirs or of her heirs, and that all such would take_per capita.

The judgment appealed from, in each of these cases, should be affirmed; with costs to the respondents.

All concur. Judgment affirmed.


author: Pinch, J.

text:
    The People, Resp’t, v. Morris Spiegel, App’lt.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Evidence—Confessions.
    Where, upon the trial of an indictment, defendant’s books of account, which had been seized and brought into court, were introduced into evidence without any objection on his part, on the ground they were produced against his will, there was no compulsion within the meaning of the constitutional provision declaring that no person, in a criminal action, shall be compelled to testify against himself.
    2. Criminal law—Indictment—Sufficiency.
    An indictment for the presentation to a fire insurance company of a false and fraudulent claim for 1- -ss by fire of property insured in several companies, was held, in this case, to contain a sufficient statement of facts.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order which affirmed a judgment of the court of oyer and terminer of the city and county of New York, entered upon a verdict, convicting the defendant of the crime of presenting false proofs of loss in support of a claim upon a policy of insurance, in violation of § 579 of the Penal Code.

      Charles Daniels and Abram Kling, for app’lt; John D. Lindsay, for resp’t.

      Affirming 56 St. Rep. 727.

   Pinch, J.

The defendant has been convicted of presenting to an insurance company a false and fraudulent claim for an alleged loss by fire. The indictment sufficiently charges the offense and is not open to the criticism which assailed it on the argument. The pleading alleges that the total loss was not the sum asserted in the proofs presented, and that the particular claim against the company was not justly due, and that both claims were false and fraudulent to the knowledge of the defendant and were feloniously presented and in violation of the statute. The total amount of the loss dictated the amounts chargeable in due proportion to each of the insuring companies; and the indictment avers, not only the falsity of the total loss claimed, but specifically of the particular claim founded thereon against the company making the complaint. That was a sufficient statement of the facts, and fairly apprised the accused of the crime with which he-was charged. Narrow and technical objections to the form of an indictment have had their day, and it is our duty not to drift back into the old uncertainty.

What the indictment charged the proof tended to establish. That there was any failure of such proof rests mainly upon a contention, not borne out by the facts, that no specific claim for any specific amount was made because of an alleged modifying provision contained in the proofs of loss presented to the company. The claim distinctly made was for a total loss to the full extent of the sum insured, and the aggregate of damages claimed was more than double the amount of the entire insurance. There was a statement that in estimating the total loss no credit had been given for a possible salvage upon articles merely damaged, but it was also alleged as a reason for the omission that these in their damaged state had no commercial value to the insured, although subject to an appraisal. Undoubtedly this meant that the total loss claimed might, by the action of the insurer under the policy, suffer a reduction by the amount of some value found to remain in the injured articles; but the false claim of loss remained and was made so large that its possible reduction by a salvage which the insured did not admit would still leave the company liable for the full amount of its insurance, or at all events for more than it ought to pay. And this very damage, left open to a possible reduction, was shown to' be itself the result of fraud rather than fire, and of the agency of the insured himself. The claim presented did not cease to be vicious because left open to the reduction of an appraisal, but may have been found by the jury to have been framed to work its intended result in spite of such reduction, which the policy itself would compel, and which it was no great virtue to anticipate. The question of fraudulent intent was thus one for the jury upon all the facts developed. .

A further argument is made, founded upon the evidence furnished by the books of the insured, and rests upon the contention that, by their production or proof of their contents, the accused was compelled to give evidence against himself in a criminal action. The constitutional provision .is invoked that no person shall be compelled in any criminal case to be a witness against himself (Art. 1, § 6), and reference is made to the authority of Boyd v. United States, 116 U. S. 116. The general term make two answers: That no objection or exception anywhere in the case presents the question ; and that a party may waive the benefit even of a constitutional provision, at least, where it does not affect matters in which the public have an interest apart from and outside of the personal right of the individual. These answers combined show an utter absence of the compulsion which the constitutional provision forbids. We are not concerned with the question whether the seizure of the defendant’s books was by itself lawful or unlawful, but merely with the use made of them on the trial. There was no compulsion in that use, because it was not objected to upon that ground. The defendant might have objected; he might have resisted; he could possibly have prevented the use made of the books, but instead, he either silently permitted the evidence to be given, or at the most only questioned its general relevancy or competency. It was both relevant and competent, at least until he so objected as to make its admission compulsory and against his will. And this is true even if the production and use of the books can be said to have been his own confession or admission instead of a part of the very res gestee of the crime.

It is further contended that the court erred in the charge to the jury in respect to the force and effect of the evidence given outside of that which came from Blais, who confessed himself to be both a thief and a liar, and so was unreliable as a witness. It is not necessary to add anything to the answer of the general term beyond an expression of our concurrence. That answer shows in a very satisfactory manner that the trial judge did not invade the province of .the jury, and in substance only ruled that with the testimony of Blais eliminated enough evidence remained to be submitted to their judgment, and upon which, if it satisfied them beyond a reasonable doubt, they might rest their verdict. The opinion points out how fairly and fully the questions of fact were submitted through the whole body of the charge, and that the one sentence criticized itself left the case to the judgment of the jury, both as to the disregard of Blais’ testimony and as to the effect of the remaining proof.

I have read through the very voluminous record of the trial. There is much conflict of evidence ; there is room for divergent inferences, and there is basis for argument on both sides; but the facts were for the jury, and their conclusion must prevail. There is no error of law which requires a new trial.

The judgment must be affirmed.

All concur, except Andrews, Ch. J., not sitting.

Judgment affirmed.


author: Peckham, J.

text:
    Charles Eels, Resp’t, v. The American Telephone and Telegraph Company, App’lt.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Eminent domain—Telegraph and telephone companies.
    _ Neither the state nor its corp 'ration can appropriate any portion of the highway permanently to its own special, continuous and exclusive use, by setting up poles therein for the purpose of transmitting messages.
    2. Same.
    The legislative belief or the opinion of the adjoining' owners as to the propriety of such use, does not affect its legality.
    3. Same—Ejectment.
    Such use of the highway is unlawful, and the adjoining owner may maintain ejectment against the company.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court.

      Sherman S. Rogers and Melville Eggleston, for app’lt: John M. Hull, for resp’t.

      Affirming 48 St. Rep. 303.

   Peckham, J.

The sole question involved upon this appeal is the extent of the public easement in a rural highway, the fee of which is in the adjoining owner. The plaintiff herein is the owner in fee subject to the public easement of the premises in question, which constitute part of a public highway in the town of Alden and county of Erie, in this state. The defendant occupies a portion of the highway.with its poles upon which it has strung its wires for the purpose of conducting its business as a telephone and telegraph company. It is incorporated and organized under the laws of this state for the incorporation and regulation of telegraph.companies. The plaintiff claims that the defendant has no right to occupy any portion of the public highway with its poles, and he has, therefore, commenced this action of ejectment to recover the premises described in the complaint, subject to the public easement therein for a highway. The court upon the trial directed a verdict for the plaintiff, and the judgment entered upon it having been affirmed by the general term, the defendant has appealed here.

The defendant admits that if the use it makes of the highway is outside the scope of the public easement, then the consent of the owner of the soil is necessary, or compensation must be made him for such use.

By the fifth section of chapter 265 of the Laws of 1848, providing for the incorporation and regulation of telegraph companies, as amended by the second section of chap. 471 of the Laws of 1853, it is provided that telegraph corporations may construct their lines upon any of the public roads, streets or highways of the state, provided the same shall not be so constructed as to incommode the public use of the roads or highways; and they are also authorized to construct the same upon any other land, subject to the right of the owner to full compensation therefor. It has been held that a telephone company is, within the provision of the statute, a telegraph company. Telephone Cases, 126 U S. 6; Hudson River Telephone Co. v. Watervliet Turnpike and Railroad Co., 135 N. Y. 393, 404; 48 St. Rep. 417. The defendant does not, however, contend that the statute gives any right to these-companies to make use of the highway for the purpose of constructing their lines thereon without compensation to the owner of the fee of the highway, unless such use is in its nature a part of the public easement for which highways are constructed.

The statute, therefore, does not aid in the decision of this question, but it is cited by the defendant as evidence of legislative belief that such use of the highway was legitimate and within the purpose for which highways were laid out. Defendant also urges that some weight is to be attached to the alleged fact that this use of the highway has been very generally acquiesced in by the adjoining owners of the land and that such acquiescence is quite strong evidence that the use was proper.

The question is one plainly of law, and whatever may have hitherto been the legislative belief or the opinion of the adjoining owners as to the propriety of this use of a rural public highway, it must be decided by us in accordance with our own view as to what the law is upon this subject. The length of time which any particular adjoining owner has acquiesced in this use of a highway, the circumstances attending upon and surrounding that acqiiiesence, the probable considerations operating either to create or to continue it, are all alike matters upon which the court is •completely ignorant, and any opinion as to the legality of the use founded upon an acquiescence by the adjoining owners under circumstances unknown to the court, must in its very nature be almost if not entirely worthless. The argument founded upon the legislative belief of the legality of such use has also very little weight. There was no warranty implied from the passage of the statute that the consent of the state alone was necessary. All the facts were known to all the parties, and whether, in addition to the consent of the state, that of the adjoining owners was necessary, was a matter which the state might well leave to the parties interested to try out when the point arose. The question has never been covered up or otherwise concealed, and at the most it can only be urged that the legislature was of the opinion, upon this purely legal question, that the consent of the adjoining owner was not necessary. It is not'contended that if it had held the other opinion it would have legislated any more favorably for the companies. If such consent were necessary it was on account of the constitutional provision that private property should not be taken for public use without due compensation, and this provision the legislature could neither alter nor efface. The companies cannot, therefore, be legally said to have suffered anything by reason of this legislative opinion, and they are not on that account in any position to appeal to a specially favorable construction of the law in their behalf. ’The legislature could have provided that in all future dedications of land for a public highway, and in taking land under the right of eminent domain for that use thereafter, the right to use it for the purpose for which defendant now uses the highway in question, should be implied in such dedicacation and paid for when’taken. That would have no effect upon land already dedicated or taken for a highwajq and could not aid the defendant. An alleged practical construction of tbe law for many years' by the general public in favor of the defendant’s contention, cannot be the foundation upon which, if proved, to base a legal claim on the part of the defendant, and unless it can show that its use of the highway at the locus in quo is within the limitation of the public easement, it can create no right of continuance in such use arising from a general public acquiescence in its claim, provided the plaintiff or those under or through whom he claims have not given expressly or by implication the requisite consent. What other parties may have thought or what action they may have taken upon such a question, and with regard to their lands, cannot in any manner conclude or affect the plaintiff when he chooses to deny the existence of • defendant’s right to use land of wliiclr plaintiff owns the fee, subject to the public easement therein for a public highway. We agree with the learned counsel for the defendant that the question is not essentially different from that which would arise if the state itself, through its public officers, by virtue of an act of the legislature, should attempt to operate a telegraph line by means of poles, etc., placed in a public highway and without the consent of, or compensation made to, the adjoining owners who owned the fee of the highway subject to the public easement. If the state could itself do such an- act it could create and authorize a corporation to do it.

We thinlc neither the state nor its corporation can appropriate any portion of the public highway permanently to its own special, continuous and exclusive use by setting up poles therein, although the purpose to which they are to be applied is to string wires thereon and thus to transmit messages for all the public at a reasonable compensation. It may be at once admitted that the purpose is a public one, although for the private gain of a corporation, but the Constitution provides that private property shall not be taken for public use without compensation to the owner.

Where land is dedicated or. taken for a public highway, the question is what are the uses implied in such dedication or taking? Primarily there can be no doubt that the use is for passage over the highway. The title to the fee of the highway generally remains in the adjoining owner, and he retains the ownership of the land, subject only to the public easement. If this easement do not include the right of a telegraph company to permanently appropriate any portion of the highway, however small it may be, to its own special, continuous and exclusive use, then the defendant herein has no defense to the plaintiff’s claim. Although the purpose of a public highway is for the passage of the public, it may be conceded that the land forming such highway was not taken for the purpose of enabling the public to pass over it only in the then known vehicles, or for using it in the then known methods for the-conveyance of property or the transmission of intelligence. Still'the primary law of the highway is motion, and whatever vehicles are used, or whatever method of transmission of intelligence is adopted, the vehicle must move and the intelligence be transmitted by some moving body which must pass along the highway, either on or over, or perhaps under it, but it cannot permanently appropriate any part of it.

In the case at bar the fee in the highway at the point in controversy is in the plaintiff, but I do not regard that fact as controlling upon the question of the proper use of the highway. Of course the plaintiff could not recover in this form of action unless he owned the fee in the highway at this particular point, but I do not think the proper use of the highway depends upon the question as to who owns the fee thereof. I think that the rights of the public in and to the highway remain the same wherever the fee thereof may be placed. 2 Dill. on Munic. Corp. 698a, etc. As the fee in this case is in the plaintiff, the discussion of the ques-. tion must be had with reference to that fact. Where one owns to the center of a street in a city, it has been held that the laying of the rails for a horse railroad imposed an additional burden upon the land forming the street, for which the owner was entitled to compensation. Craig v. R., C. & B. R. R. Co., 39 N. Y. 404. Although relief was denied a plaintiff who did not own the fee, and who desired to enjoin the use of the street by a horse railroad company, it was denied upon the ground that there was no taking of the property of the plaintiff by the company, and that being authorized by” the legislature the plaintiff could not complain. Kellinger v. Forty-second St., etc., R. R. Co., 50 N. Y. 206. The plaintiff sought in that action to recover, damages for inconvenience of access to his adjoining lands. In the Craig case, supra, the case was decided upon the idea that there was an exclusive occupation of the street which amounted to an- additional burden upon the land. The cases upon the subject of railroads in streets are cited and commented upon in Forbes v. R., W. & O. R. R. Co., 121 N. Y. 505; 31 St. Rep. 828; Kane v. N.Y. El. R. R. Co., 125 N. Y. 164; 34 St. Rep. 876, and Reining v. N. Y., L. & W. R. R. Co., 128 N. Y. 157; 40 St. Rep. 392, and they show that the primary or fundamental idea of a highway is that it is a place for uninterrupted passage by men, animals or vehicles, and a place by which to afford light, air and access to the property of abutting owners, who, in this respect, enjoy a greater interest in the street than the general public, even though their title to the land stops with the exterior line of the street. It is not a place which can be permanently and exclusively appropriated to the use of any person or corporation, no matter what the business or object of the latter might be. It was because the highway was permanently, and, to some extent, exclusively appropriated by the elevated railroads that it was held their erection, without the consent of the abutting owners, was illegal. Story v. Met. E. R. R. Co. 90 N. Y. 122.

We cannot agree that this permanent appropriation, and exclusive possession of a small portion of the highway can properly be regarded as any newly discovered method of exercising the old public easement, for the very reason that this so-called new method is a permanent, continuous and exclusive use and possession of some part of the public highway itself, and, therefore, cannot be simply a new method of exercising such old public easement. It is a totally distinct and different kind of use from any heretofore known. It is not a mere difference in the kind of vehicle, or in their number or capacity, or in the manner, method or means of locomotion. All these might be varied, increased as to number, capacity or form, altered as to means or rapidity of locomotion, or transformed in their nature and character, and still the use of the highway might be substantially the same, a highway for passage and motion of some sort. Here, however, in the use of the highway by the defendant is the fact of permanent and exclusive appropriation and possession, a' fact which is, as it seems to us, wholly at war with that of the legitimate public easement in, a highway. The following are some of the many authorities which hold that the easement is one of passage only. Goodtitle v. Acker, 1 Burr. 133; Prest. Soc. of Waterloo v. A. & R. Railroad Co.. 3 Hill, 567, and cases cited; Van Brunt v. Town of Flatbush, 128. N. Y. 50, 55; 37 St. Rep. 824. Defendant argues that the case in 3 Hill (supra), while announcing the principle above stated, yet did not, in fact, involve the question and is not authority to be regarded, while the cases cited in the opinion in that case the defendant claims do not really support the principle. '

We think the case in Hill correctly states the law upon the subject, and that case has been very frequently cited with approval by this court to sustain the above proposition, and among the cases where such citations are to be found is that of Bloomfield, etc., Co. v. Callcins, 62 N. Y. 386.

That case is, as we think, substantially decisive of this one. It was there decided that plaintiff had no right to lay its gas pipes in a country highway without the consent of, or compensation to, the owner of the fee. It was also reiterated that the right of the public was a mere right of passage and the.fee of the land remained in the owner for’all. other purposes. As to whether there is a different or more comprehensive right in regard to streets in cities, the case does not decide, although it is intimated the right may be greater there than in a purely country highway.

While concurring in the view that the easement in a public street in a city or village may well be greater as the actual necessities of the case are greater for sewers and gas and water pipes, yet in this case, as we have to deal only with the easement in a purely country highway, it is not important to discuss how the easement became greater in the one case than in the other, or as to the time when the right to the enlarged use of the highway or street attaches, oi" the method or meams by which the right to such enlarged use was attained. Density of population creates public necessities for water, light, drainage and other conveniences which do not exist in purely-rural districts and along a purely rural highway. Yet the same land might alter from a country highway to a city street, and it might be determined that there was an implied dedication of the country highway at the time the land was taken to the uses which the future village or city street might require. We do not decide as to that matter, nor do we intimate that the defendant would or would not have the right to place its poles in the city street without compensation to the owner, if he owned to the center of the street.

The argument is pressed upon us that the question to be decided in this case is new and that it ought to be decided with reference to the wants and customs of the advancing civilization which it is alleged is doing so much to render life more comfortable, attractive and beautiful. Courts are frequently addressed with such arguments, which are quite forcible, and they have in this case been very eloquently, plausibly and aptly advanced. The answer to be made is that, although this particular phase of the question, strictly speaking, may itself be new, yet the principle which governs our decision isas old almost as the common law itself ; and in deciding this appeal favorably to the defendant herein, we should be overturning‘and making nothing of cases which have been regarded as the law for generations past. A majority of the. states, whose courts have considered the question, have decided it in - accordance with our own views. The cases are collected in the brief of the learned counsel for the respondent herein. Let the defendant pay the owners for the value of the use it makes of the land outside and beyond the public easement in the highway, and the necessity of the broader decision is done away with. It has the power to take the land upon making compensation, and hence the refusal of an owner will not stop the proposed undertaking. The amount of the compensation is not now the question, but that, in many cases, it can be anything more than merely nominal, would seem to be á proposition which would not require great elaboration of argument to make plain. The use would frequently be but a technical encroachment upon the rights of the adjoining owner, and there would be but little fear that anything more than nominal damages would be allowed. This cannot, however, alter ’the legal rights of the parties, and, in regard to them, we' think the courts below have decided correctly, and the judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.


author: O’Brien, J.

text:
    Charles Beardsley, Resp’t, v. George H. Cook, App’lt.

      (Court of Appeals,

      Filed October 9, 1894.)
    1. Assignment—Equitable—Conditional.
    Where an order was drawn by the contractor upon the owner for a part, the last installment under a building contract, and accepted by such owner, the assignee’s right to recover is contingent upon performance of the contract so as to render the last installment, or some part of it, due and payable.
    2. Same.
    Such assignment is subject to any deduction, which the owner has a right to make from the payment on account of the reasonable and fair expense required of him in completing the contract.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    This action was brought upon the following order:
    “ Mr. George H. Cook,
    “ No. 50 Broadway, N. Y. City:
    “ Retain and pay to Charles Beardsley of Poughkeepsie, N. Y., from the last payment to be made by you to us on account of our contract for building houses in Dean street, Brooklyn, the sum of eleven hundred and seventy-five ($1,175) dollars, according to the terms of our contract with Mr. Beardsley.
    “ Davis & Fay.
    “Dated New York, December 11, 1890.”

      John H. Clapp, for app’lt; Henry Bacon, for resp’t.

       Reversing 51 St. Rep. 405.

   O’Brien, J.

About the first of August, 1890, the defendant entered into a written agreement with the firm of Davis & Fay, builders, whereby they agreed to furnish all the materials and labor in the erection of two houses for the defendant, to be completed on or before January 1, 1891, for the sum of $6,381, to be paid in installments as the work progressed and reached certain stages, the last payment,# amounting to the sum of $2,181, to be paid when the houses were completed.

About a month afterwards the plaintiff contracted, in writing, with Davis & Fay to furnish for these houses all the necessary interior and exterior trim, including doors, sash, blinds, wainscot, complete, except the Venetian blinds; the window frames and stairs to be all cleaned and prepared for finish in the natural wood, for the sum of $1,175, to be paid as follows: $150 when sash delivered, $200 when the standing trim was on, $400 when the doors were hung, and $425 when the houses were completed. The builders entered upon the performance of their contract with the defendant, and the plaintiff on the performance of his contract with them, and on the lltli of December, 1890, a considerable part of the work had been done, when the plaintiff procured from the builders a written order upon the defendant, signed by them, and addressed to him, in which they requested the defendant to retain and pay to the plaintiff, from the last payment to be made to them under their contract, the sum of- $1,175, according to the terms of their contract with the plaintiff. The defendant wrote across the face of this order .his acceptance of the same. This action was brought upon the defendant’s contract with the plaintiff as evidenced by his acceptance of the order, and the plaintiff has recovered. The defendant’s obligation to the plaintiff, as expressed in the acceptance, was that he would retain in his hands from the last payment due upon his contract with the builders, sufficient to pay the plaintiff. The arrangement contemplated that the builders would perform their contract with the defendant, and thereby become entitled to the last payment, and that the plaintiff would perform his agreement with the builders, and thus entitle himself to call upon them to pay as they had agreed, and upon the defendant to discharge the obligation assumed by his acceptance. The difficulty in this case arises from the fact that the builders did not perform their contract with the defendant, nor did the plaintiff fully perform his contract with the builders, though perhaps the latter fact is not important except so far as it bears on the question of the amount which remained in the defendant’s hands applicable to the last payment. The record discloses a state of facts not within the contemplation of the parties when the order which the plaintiff is seeking to enforce was accepted by the defendant. Some of these facts appear in the findings of the court; others are to be gathered from the undisputed testimony, though the learned trial judge refused to find them at the request of the defendant. By the terms of the contract between 'the defendant and the builders, the payments were to be made upon the certificate of the architect that performance had been made to entitle the contractor to the particular payment. No such certificate was ever furnished, and there is no finding in the case that it was waived, or unnecessarily or improperly withheld. Wright v. Reusens, 133 N. Y. 298; 45 St. Rep. 183; Weeks v. O'Brien, 141 N. Y. 199; 56 St. Rep. 865.

The builders never performed the contract and never completed the houses. It may be that there was a sufficient excuse for nonperformance, but there is no finding on the subject and it is not apparent from the proofs. There was Ú clause in the building contract to the effect that in case they failed to complete the houses and furnish the necessary materials and labor for that purpose, then.the defendant might do. it and deduct the expense of completion from any sums unpaid upon the contract. The defendant did complete the houses under this provision of the contract ; whether with or without the consent of the builders is not now very material. But the learned trial judge refused to find that the builders failed to perform their contract, and the amount expended by the defendant in completing the houses, which was a most important element in ascertaining what portion, if any, of the last payment, from which the order in suit was to be paid, ever became due to the contractors has not been found, though requests to that effect were made by the defendant, and proof had been given on that subject. We agree with the learned counsel for the plaintiff that the mere fact that the defendant completed the houses and the builders did not, does not necessarily affect the right of recovery upon the order. The defendant elected to complete the performance of the contract himself instead of insisting upon performance by the builders, and, therefore, any part of the contract price or of the last payment that remains in bis hands, after deducting the expense of completing the houses, is applicable to the payment of the plaintiff^ claim, and under such circumstances the certificate of the architect would not be necessary to enable the builders or the plaintiff to recover the balance remaining in the defendant’s hands. But the difficulty is that the learned trial judge apparently refused to go into these questions, or to find what the balance actually was, and it is not the province of an appellate court to attempt to spell out the facts from conflicting evidence. The learned counsel for the plaintiff suggests that the last payment, from which the order in question was to be satisfied, had been depleted by the defendant by payments made to the builders in advance, after the acceptance of the order, and hence such payments should not be considered in determining the amount remaining in the defendant’s hands applicable to the payment of the claim. But there is no finding that such payments were made as matter of fact, and the counsel's position in this respect is based upon inferences .and arguments drawn from testimony quite uncertain and inconclusive. It is quite clear that this point was not brought to the attention of the trial court, nor developed at the trial in such a way as to render it available upon this appeal. It is not claimed that the plaintiff ever actually performed his contract with the builders by furnishing all the work and material embraced in it. The testimony is quite clear that he did not, and the fact is fairly lobe implied from the findings. He did, however, furnish material for which he was never paid, amounting to' a sum equal to the recovery m this case. It also appears that the builders or the defendant himself, after he had assumed the performance' of the contract, were obliged to procure and pay for material which the plaintiff had contracted to furnish. What this amounted to is no found, and it is quite difi ficult to ascertain from the evidence.

The trial court has found in substance that performance on the part of the plaintiff was waived by the defendant, but there is no evidence in this case to warrant this conclusion. On the contrary, the testimony of the builders, which is not contradicted, is to the effect that they called upon him from time to time to furnish articles embraced in the contract, and that he failed to do so. But whether plaintiff’s performance was entire or partial he could recover nothing more than the balance of the last payment remaining in defendant’s hands. The testimony found in the record is, upon many material points, exceedingly indistinct, and the actual facts are involved in much uncertainty and confusion. The findings are so general that none of the difficulties suggested have been eliminated from the case in the argument of this appeal. It is easy.to see that the case was not tried'upon any well-defined theory, and that the decision apparently proceeded upon the assumed equitable ground that as the plaintiff had furnished material that went into the houses, to the amount at least of. one thousand dollars, for which he had not been paid, that the defendant was responsible for the same. The plaintiff was bound to show that an amount or portion of the contract price, which the defendant had stipulated to pay for the erection of the houses equal to his claim or to the recovery, still remained in his hands over and above what he had expended to complete them, and which was applicable to the payment of the order. The acceptance of the order by the defendant operated as an equitable assignment of so much of the last payment to the plaintiff, and the plaintiff’s right could not be affected by payments made by the defendant in advance of the work or by the liens of mechanics or materialmen filed subsequent to the assignment. Lauer v. Dunn, 115 N Y. 405; 26 St. Rep. 412; McCorkle v. Herman, 117 N.Y. 297; 27 St. Rep. 333; Stevens v. Ogden, 130 N.Y. 182; 41 St. Rep. 331; Crouch v. Gutmann, 134 N. Y 45; 45 St. Rep. 470.

But unless that payment became due and payable by the defendant the plaintiff could not, under the circumstances disclosed by the record, recover upon the order as an absolute and unconditional promise. The plaintiff’s fight to recover the payment, or that part of it, assigned to him by the order, was contingent upon performanoe-of the contract so as to render the last installment or at least some part of it due and payable. The contract was not performed by the builders, but by the defendant himself, who was obliged to complete the houses. The assignment to the plaintiff was subject to any deduction which the defendant had aright to make from the pay men t on account of the reasonable and fair expense to him in completing the houses. He could claim payment of the order only from the balance, and what that was has not been found, and the testimony on this point is of such a character that at least different views may be entertained as to the amount, if anything;, remaining in his hands. .If the defendant did not retain the last' paj'ment as he agreed to do by his acceptance of the order, but" paid it out. to the builders in advance of the time when by the-terms of the contract it became payable, or permitted it to be-depleted or absorbed in some other way in violation of his obligations to the plaintiff, he would then be liable to make his acceptance good. There is no distinct finding on this’ subject. .For these reasons we think there should be a new trial.

The judgment, therefore, should be reversed and a new trial granted, cost to abide the event.

All concur, except Andrews, Ch. J., not .sitting;.

Judgment reversed.


author: Cray, J.

text:
    In the Matter of the Application of the East River Bridge Company for the Appointment of Three Commissioners.

      (Court of Appeals,

      Filed October 9, 1894.)

    Appeal—Court op Appeals.
    Under the provisions of chap. 4 of 1891, as amended by chap-. 102 of’ 1892, an order of the supreme court refusing the authorization upon the-merits, where no abuse of its discretion is shown, is not reviewable in the-court of appeals.
    Appeal from order of the general term of the supreme court in-the first judicial department, which refused to confirm the report of commissioners appointed in the matter above entitled, and dismissed the proceeding.

      Edward Lauterbach, for app’lt; Fmdham Morrisy for resp’ts, Morris and Bailey ; Theodore . De Witt, for resp’ts, Langdons; Glarence 0. Ferris, for 'resp’ts Schoen et al.

      Dismissing appeal, 57 St. Rep. 732.

   Cray, J.

The East River Bridge Company appeals from an order of the general term; which refused to confirm the report of commissioners, theretofore appointed to determine whether certain elevated railways should be constructed in the city of New York, in lieu of other approaches to the proposed bridge, or bridges, over the East river. Notwithstanding the ingenious suggestions of the appellant’s counsel, there can be no doubt as to our lack of authority to review the order. It is silent as to its grounds and is the simple refusal by the tribunal, to whom the legislature refers the whole matter, to authorize the proceeding.

Its authorization was made a prerequisite to the right of the bridge company to construct and operate an elevated railway, as an approach to its proposed bridge ; in the event, which has happened, of the failure to obtain the consents of the property owners. (See chap. 102, Laws 1892, amending chap. 4, Laws 1891.)

By the terms of the statute, the board of directors of any company, incorporated for the purpose of constructing a bridge connecting one city with another, was authorized to determine to build, in lieu of an approach to the bridge, an elevated railway ; the route of which should be co-incident with such approach.

But, if they so determine, they are required, after obtaining the consent of the local authorities, to obtain the consents of the owners of one-half in value of the property along the proposed route ; or, in lieu thereof, the authorization of the supreme court upon the report of commissioners. Such a provision, being intended as a safeguard to public and private interests, assumes that where the local authorities and at least one-half in value of the property owners are in accord, with respect to the corporate project, the general interests to be affected will not be prejudiced; and, where they are not in accord, that the propriety and the policy of authorizing its execution can be safely intrusted to the local tribunal; whose judgment will be rendered upon all the facts, as collected and reported upon by its commissioners, and whose determination thus reached should be accepted as conclusive upon the application. The effect of the provision, of course, is to invest the supreme court, in the district of the proposed construction, with a discretion in the matter, to be exercised only upon the report which is made to it by its commissioners—a procedure having for its object the collection of evidence and the hearing of all interested parties. The power thus conferred upon that court to give its authorization was, necessarily, exclusive in its nature. When its discretion is exercised, as here, by refusing that authorization, the petitioner is without further remedy in any appeal to this court.

We must assume, (which is the fact, as the opinion discloses), that the majority of the general term justices, in deciding as they did, deemed the project, upon its merits, an improper, or an unwise and impolitic one to lend their sanction to. Nor can we say, after looking through the record, that any ground exists for arguing that there has been any abuse of discretion in refusing to confirm the commissioners’ report. As it presented the matter to the court, with all the evidence adduced for and against the application, the questions for determination were such as affected the public and private interests and were to be disposed of upon their merits.- It must be admitted that there were reasons for reaching the conclusion stated in the order of the general term.

With the refusal of the supreme court to confirm the report of the commissioners and its dismissal of the proceedings, the matter ended. The case of the Kings County Elevated Railroad Company, 82 N. Y. 95, is quite decisive of the question of appeal-ability. The general term, in ordering as they did, exercised the judicial disecretion, with which the statute invested them, and their order is not reviewable here.

The appeal should be dismissed, with costs.

All concur, except Andrews, Ch. J., not sitting.

Appeal dismissed.


author: Earl, J.

text:
    In the Matter of the Application of the Southern Boulevard Railroad Company to Acquire the Right to Construct a Railroad, etc.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Appeal—Court op Appeals.
    When the order of the commissioners, appointed under chap. 140 of 1850, as amended, has been confirmed and the order of confirmation has been affirmed by the general term of the supreme court, no further appeal can be taken.
    2. Railroads—Commissioners’ report—Vacation.
    General term may set aside and vacate the commissioners’ report for errors of law or of fact, and direct a new appraisal.
    3. Same—Second report.
    The provision that the second report shall be final and conclusive, has its limitations.
    Appeal from order of the general term of the supreme court in the first judicial department, which affirmed an order of special term denying a motion to vacate an award made by commissioners.

      William, H. Pago, Jr., for app’lt; Wm. Pierrepont Williams, for resp’t.
   Earl, J.

The Southern boulevard was laid out in the towns of Morrisania and West Farms, Westchester county, under the act, chapter 290 of the Laws of Í867. It passed through the land of Paul Spofford, and his land was taken for its construction, and a substantial award was made therefor under, the act, the 24th section of which was as follows: “ Said road when constructed shall be kept and maintained for the public use as an avenue and boulevard; and except for the purposes of crossing the same, no railway or tramway shall be laid or constructed thereon', or upon any part thereof by any persons or corporations whatsoever, without a special act of the legislature of the state for that purpose first had and.obtained ; and in case the legislature of the state shall at any futui’e time grant to any person or corporation the right to construct any rail or tramway upon said road or any part thereof nothing in this act contained shall be construed to affect or cut off the rights of the several owners of land which shall be taken for laying out the road hereby authorized, to claim and recover from such person or corporation th.e full value of all the land taken from such owner or owners for the road hereby authorized to be constructed, to the same extent as if no such road had ever been laid out on said lands, and without any deduction for any supposed benefit to said lands to arise from the construction of such rail or tramway.1'

By the act, chapter 723 of the Laws of 1887, that section was amended so as to read as follows : “Said road when constructed shall be kept and maintained for the public use as an avenue and boulevard, and-no railway or tramway shall be laid or constructed thereon except by a railway company which has been or may hereafter be duly organized under and by virtue of and in conformity with the provisions of chapter two hundred and fifty-two of the laws of eighteen hundred and eighty-four, and which has heretofore complied or shall comply with all the provisions of said, chapter in respect of the consent of owners of property and the local authorities.”

In January, 1890, the Southern Boulevard Railroad Company, the appellant, having complied with the provisions of the law of 1884, instituted this proceeding under the general railroad act of 1850, as amended, to acquire “the right to construct, maintain and operate a double-track street surface railroad upon the surface of the soil through, upon and along that portion of the Southern boulevard which formerly belonged to Paul Spofford, deceased, and which is located' at or near the junction of the Hunt’s Point road with the said boulevard in the twenty-third ward of the city of New York, and also such switches, sidings and turnouts as may be necessary for the convenient working of said railroad and the exercise and enjoyment of the rights, privileges, franchises and immunities now or hereafter to be accorded and secured to it by law.”

Three commissioners were appointed and the matter was brought to a hearing before them, and they made their report according to the respondents for th.e fee of the land in the boulevard six cents. They held that the act of 1887 repealed the special rule for compensation of landowners prescribed by the act of 1867, and awarded merely nominal damages because of the existence in and over the land of the boulevard. Their report having been confirmed at the special term, the landownern appealed to the general term of the supreme court, and there the order oE confirmation was reversed anti the report of the commissioners w.as set aside and a new appraisal was ordered before the same commissioners. (58 Hun, 497.) The general term held that the act of 1867, as to the compensation to be awarded to the landowners for the construction of a railroad in and upon the boulevard, as provided in § 24, constituted a contract, and that the act of 1887 was ineffectual to alter or impair that contract, and that the compensation to landowners should be awarded according to the rule-laid down in that section. From the order of the general term, the railroad company appealed to this court, and here the appeal was dismissed on the ground that the order was not appealable. (128 N. Y. 93.) The matter was then for the second time brought to a hearing before the commissioners, and, following the rule of damages laid down by the general term, the commissioners awarded- the landowners $6,000. An order was then made at the special term adjusting the difference between the two reports and directing payment of such difference the sum of $5,999.94. From that order the railroad company appealed to the general term, where it was affirmed, and it then appealed to this court, and the appeal was dismissed on the ground that the second report was final and conclusive and not reviewable here. (141 N. Y. 532.) Then the railroad company made a motion at special term to sét aside and vacate the second report of the commissioners on the ground tbat the award thereby madé “ was vitiated by error,, misconduct, irregularity and mistake on the part of the commissioners in rendering the same,” and the motion was denied. From the order of'the special term the railroad company appealed to the general term, and there the order was affirmed, and then it appealed to this court.

The controversy between these parties is whether or not § 24 of the act of 1867 was superseded by the amending act of 1887, so that the special rule of damages provided in that section was abrogated. If the question were properly before us for consideration we should certainly find it interesting, and, as shown in the able briefs submitted to us, not free from difficulty. But we are satisfied that no facts appear in this record which gives this court, or any court, jurisdiction to set aside the second report.

. The commissioners to be appointed under the general railroad act constitute the constitutional tribunal for the award of compensation to landowners. They are not only to determine the facts relating to the matter submitted to them, but all questions of law as well. They are judges of the law and the facts so far as they relate to the compensation to be awarded. Their report having been confirmed, either party may appeal to the general term of the supreme court, and if the order of confirmation be there affirmed that ends the matter, and no further appeal can be taken. The general term may set aside and vacate the report, in the exercise of its discretion, for errors of law or of fact, and direct a new appraisal, and it is provided in section 18 of the act that “the second report shall be final and conclusive on all the parties interested.” The object of the statute was to secure a speedy determination, before the tribunal specially provided, of the compensation to be awarded to landowners, and to avoid protracted and expensive litigation. This court has always given literal effect to the words “ final and conclusive” and has sought to promote the policy upon which the statute is founded. Matter of the Application of the Mayor, etc., of New York, 49 N. Y. 150; Matter of the N. Y. C. & H. R. R. R. Co., 64 N. Y. 60; Matter of P. P. & C. I. R. R. Co., 85 N. Y. 489; Matter of N. Y. & H. R. R. Co., 98 N. Y. 12; Matter of N. Y. L. E & W. Ry. Co., 102 N. Y. 704, and 141 N. Y. 532; 57 St. Rep. 818.

Nothing is alleged upon this motion which did not appear in the record upon the appeal to this court from the second report of the commissioners. It would be a most singular result if that report could not be assailed by appeal and could yet be attacked collaterally by motion upon the same facts brought before the court upon the appeal.' If such a practice could be upheld then the policy upon which the statute is based could be entirely subverted.

As has been intimated in several cases, the provision that the second report shall be final and conclusive, nevertheless, has its limitations. If there be any irregularity in the proceeding affecting the jurisdiction of the commissioners, or if there bo any frarid or mistake or accident of such a character as would authorize a court of equity in an equitable action to set aside a judgment or report of a referee or an award of arbitrators, then the supreme court could upon motion set aside the report of the commissioners, and if it refused to do so upon undisputed facts; an appeal from its determination could be taken to this court. But there is no dispute about the regularity of the proceedings. All the forms of law were complied with, and there is no allegation of fraud, mistake or' accident. The only claim made is that .the, commissioners and the court below after careful consideration decided the matter in controversy against the railroad company., It alleges errors of law and of fact in the actual determination deliberately and honestly made without accident and without any mistake except as those tribunals may have fallen into error in their views of the law and the facts, and no one will contend that a court of equity would under such circumstances have jurisdiction by action to set aside a judgment.

It may be that a party to such a proceeding may suffer great injustice from errors of law or fact committed by the commissioners or the supreme court, without any means of redress. But he is in the same position as every party is against whom a decision has been rendered by a tribunal from which no appeal can be taken.

The award made was for the whole of the land within the limits of the boulevard, and it is now claimed by the appellant that it did not need so much land, and did not seek to acquire so much. But we think from the language of the petition above quoted, that the railroad company did seek to acquire easements in the boulevard over its entire width, and the order appointing the commissioners, which it caused to be entered, described the portion of the boulevard in which it sought to acquire easements for its road, as follows: “That portion of said Southern boulevard which formerly belonged to Paul Spofford, now deceased,, situated at or near the junction of the Hunt’s Point road with the said boulevard, in the twenty-third ward of the city of New York, and which is about 300 feet in length, along said boulevard, and in width the whole width of said boulevard, to wit, 100 feet.”

But the commissioners had before them the description of what the railroad company sought to acquire in the boulevard, and the nature and extent of the .use they expected to make of it, and it was one of the matters they were to determine whether the value of the whole strip of land within the limits of the boulevard was substantially taken, and whether they should base their award upon the 'whole of such value. If they erred as to this there is no help for it, for reasons above stated.

Our conclusion, therefore, is, that if the commissioners in making their second report erred just as claimed by the appellant, that report is final and conclusive, like the judgment of any court of final resort, although demonstrably erroneous.

The order should be affirmed, with costs. .

All concur, except Andrews, Oh. J., not sitting.

Order affirmed.


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    In the Matter of the Application of the Directors of the Binghamton General Electric Company, for a Voluntary Dissolution and for the Appointment of a Receiver.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Corporations—Dissolution—Injunction.
    In a proceeding under § 2423 of Code, the court has no power to restrain creditors of the corporation from disposing of its bonds, held as collateral to loans under lawful contracts empowering them to sell.
    2. Same.
    The equity power of the court does not extend to the sequestration of the property of a corporation by means of a receiver.
    Appeal from order of the general term of the supreme court in the fourth judicial department which modified and affirmed as modified an order of special term which modified an order of said court appointing a receiver of the Binghamton General Electric Company.

      W. J. Welsh, for app’lt; George F. Lyon, for resp’t.

       Reversing 59 St. Rep. 886.

   Bartlett, J.

We are of opinion that the order of the general term should be reversed. This proceeding is purely statutory, and the terms of the order appointing the temporary receiver and the scope of its injunction clause are defined by § 2423 of the Code of Civil Procedure. The court is empowered to restrain the creditors of the corporation from bringing any action against it for the recovery of a sum of money, or from taking any further proceedings in an action theretofore commenced.

There is nothing in the statute under which this proceeding ■was instituted authorizing the court to restrain the creditors of the corporation from disposing of its bonds held as collateral to loans under lawful contracts empowering them to sell.

It has long been the settled law of this state that the jurisdiction of chancery does not extend to the sequestration of the property of a corporation by means of a receiver. Atty.-Genl. v. Utica Ins. Co., 2 John. Ch. 371; Atty.-Genl. v. Bk. of Niagara, Hopk. 354; U. S. Trust Co. v. N. Y., W. S & B. Ry. Co., 101 N. Y. 478.

It follows that the authority of the court in this proceeding must be found in the statute and not in its general equitable powers. It is obvious that every lien upon the property of a corporation resting upon valid agreement or process before the appointment of a receiver, the lienor being lawfully in possession, must be preserved with the right of enforcement, unless courts and legislatures are to override the vested fights of creditors. This general principle has been repeatedly recognize'd and approved by this court. Ruggles v. Chapman, 59 N. Y. 163; Rogers Locomotive Machine Works v. Kelly et al., 88 id. 234; In Matter of H. P. S. F. Asso., 129 id. 288; 41 St. Rsp. 549; People v. Remington, 121 N. Y. 328; 31 St. Rep. 289.

In an early case in this state, Chief Justice Spencer, in discussing the rights of a secured creditor as bearing upon those of junior or unsecured creditors, said: “I know of no principle of equity which can take from him any part of his security, until he is completely satisfied.” Evertson v. Booth, 19 John. 485. The learned counsel for the respondents has cited a number of cases in this and other courts which he insists justify the original injunction order restraining .creditors holding collateral security, but in this he is mistaken.

It is also urged on behalf of the respondents that the Binghamton Trust Company does not hold as collateral security as many of the bonds of the Binghamton General Electric Company as is claimed in the affidavit of its president. That question is not to be determined in this proceeding. The modified order made by the special term only authorizes the sale of such bonds by the Binghamton Trust Company as are pledged to it as collateral.

The order appealed from is reversed, with costs, wherein it modifies the order of the special term entered in Broome county •clerk’s office on the 10th day of April, 1894, by striking out that part of said order which modifies.the restraining clause in the order of March 1, 1894, appointing the temporary receiver herein.

All concur, except Andrews, Ch. J., not sitting. "

Ordered accordingly.


text:
    Susan A. Phelps, Resp’t, v. John W. Phelps et al., App’lts.

      (Court of Appeals,

      Filed October 9, 1894.)

    1. Husband and wife—Dower.
    A right of dower cannot be asserted, except with respect to real property, of which the husband was actually seized during his lifetime, or to the actual seizin of which he had a legal right. .
    2. Same.
    Such a seizin cannot be predicated with respect to. lands purchased with the moneys of the husband, but not conveyed, or agreed to be conveyed to him.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order which affirmed an interlocutory judgment in favor of plaintiff' entered upon a decision of the court on trial at special term.

      Herbert T. Keteham, for app’lts; James B. Bell, for resp’t.

       Reversing, 59 St. Rep. 608.

   Gray, J.

This is an action, in equity, brought by a wife to establish and to protect an inchoate right of dower in certain lands now held by, and in the name of, a third person, but which were paid for by the plaintiff’s husband, and, also, to establish her dower right in the proceeds of the sale of certain other lands similarly purchased and held. Her complaint having been demurred to for insufficiency to state a cause of action, we must assume all its averments of material facts to be true. After alleging a marriage" and the birth of children, she sets forth a separation between herself and her husband, caused by his neglect, wrong conduct and desertion. She alleges that since his desertion of her, “ with the intent and purpose of defrauding her of her dower rights in his real estate, her husband had purchased various pieces of land, and caused the title to be taken in the name of one Lewis, as a dummy in the transaction, under an -agreement and arrangement with the said Lewis that the said defendant,-” (meaning her husband,) “should receive all the benefit of and have full control over said property, which agreement was in writing.”

She alleges that her husband “retained and exercises full possession and control over the same,” and that when he desired to dispose of any of the property, he would, “under the agreement and arrangement with-said Lewis, present-the deeds and papers to him, which said Lewis, under his agreement, was bound to execute; ” that all of the property, with the exception of one piece, was thus disposed of by her husband “ to bona fide purchasers, without notice of the dower interest of this plaintiff,” and that her husband “received the full amount of the purchase money paid for the same, for his own use and benefit.” She then proceeds to describe the piece remaining unsold; which she alleges to have been conveyed by Lewis, at the request of her husband, without consideration, to the defendant Goodwin, a partner of her husband ; “ who was to hold the same under the same agreement that said Lewis had with her husband,” and as to this property the plaintiff charges her husband to be the real owner. She prays for a decree, which will adjudge, because of these transactions and their fraudulent purpose, that the proceeds received by her husband upon the sale of any of this property “ are still real property and that this plaintiff has an inchoate right of dower in the same: ” that her husband be ordered to pay one-third of these proceeds into court, there to be held and invested, etc., etc., and that as to the land held by Goodwin it be adjudged to be subject to her inchoate right of dower, etc., etc.

With this as a sufficient summary of the material facts of her complaint, we are confronted with a pretended cause of action, for which I am unable to find any sufficient basis in our Eevised Statutes, to which we must look for the authority for the claim of a wife to be entitled to dower in lands. To entitle the wife to dower the husband must be seized, either in fact or in law, of a present freehold in the premises, as well as of an estate of inheritance. That proposition follows from the language of the section in the Eevised Statutes, that “a widow shall be endowed of the third part of all the lands, whereof her husband was seized of an estate of inheritance at any time during the marriage.”

How can seizin be predicated of the plaintiff’s husband with respect to the lands purchased through the use of his moneys, but never conveyed, nor agreed to be conveyed, to him ? The plaintiff, certainly, had no control over the use which her husband chose to make of his personal estate. That was his absolutely and she had no interest in it which she could assert; beyond a claim upon him for the support of herself and their children. He might have chosen to use it in the acquisition of any of the many kinds of personal property; without any right on the part of his wife to complain of, or to interfere in, .his acts. Instead of confining his use of his moneys to purchases of personal property ; or instead of putting them into land and of taking title to himself, 'he has adopted methods set forth in this complaint for its use and they were effectual to prevent the vesting in him of any legal estate in the realty, although paid for with his moneys. He, undoubtedly, intended to prevent his wife from acquiring any dower right in the real property, in the purchase and sale of which he was dealing through his friend; but, unless he was actually seized, or unless he had such a seizin at law as would entitle him to its possession, it is difficult to see how his wife could claim that she ever gained any dower interest. Her complaint seems to concede that her husband acquired no legal title, unless through ^he agreement alleged to have existed between him and Lewis. But that agreement is not one which could operate to vest in her husband any right to the actual possession of the property conveyed to Lewis. The agreement is purely executory in its nature and, if not complied with by Lewis, would only have given to Phelps a cause of action in damages for its breach. Taken at its strongest meaning, it cannot be said to import any grant by Lewis of any interest in the property to be acquired by him, through which a legal estate would arise in favor of Phelps. It does not arise beyond the promise of Lewis that Phelps should have the full control and enjoyment of whatever real property he might become vested with the title to, under their arrangement. Phelps’ rights rested in the mere promise of Lewis. It is manifest, from the statute, that, notwithstanding the consideration for the grant of the real property to Lewis was paid by Phelps, the title vested in the grantee, free of all claims; except the claim which creditors might have to assert that the transaction was fraudulent as to them. See §§ 51 and 52 of the article on Uses and Trusts. It is needless to argue that wives cannot come under that classification.

The position of a wife, with respect to her husband’s property is limited by the Revised Statutes, and unless she can bring herself within their limitations, she is without the right to assert any claim to it. Concededly, in this case, the husband was never seized of the property in question and the agreement set forth, and which is claimed to confer upon him its real ownership, could create no interest, or right to possession. If it were possible to assume a right in Phelps, based upon the agreement, to maintain an action for the re-conveyance by Lewis to himself of the lands, such an assumption clearly negatives any idea of the existence of a legal estate in Phelps. We may assume, as it is alleged, that he was to receive the benefits arising from the lands; but if there was a beneficial use, it must be united with a right to the possession (a right which is not alleged here), before we can perceive the existence of any estate, upon which a claim of dower may be impressed.

It is not pretended that any precedent exists in the decisions of the courts of this state for the maintenance of this action.

So far as my examination has gone, I am unable to find in the adjudged cases any support for the proposition that a right to dower can be asserted, except with respect to real property of which the husband was actually seized during his lifetime, or to the actual seizin of which he had a legal right. The cases referred to by the respondent’s counsel in the reports of the courts of other states are inapplicable to the construction of the statutes of our own state. They may, or may not, turn upon the wording of particular statutes; and, however it may be, they cannot control when our own statutes are in question.

It results from my consideration of the ease that the order and judgment below should be reversed and that an order should be entered dismissing the complaint; with costs in all the courts to these appellants.

All concur, except Andrews, Ch. J., not sitting.

Ordered accordingly.