author: Daniels, J.

text:
    The People, Pl’ffs, v. John C. Wilmerding, Def’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Payment—Voluntary.
    Money paid with full knowledge of the facts, and without coercion, cannot be recovered back, although such payment was accompanied with a protest.
    2. Auctioneers—Duties for sale of imported goods.
    Auctioneers are still liable to pay duties to the state on the sale of goods made in foreign countries, notwithstanding the repeal by chap. 106, Laws 1868 of chap. 547, Laws 1866. Such repeal had the eSect to revive chap. 62, Laws 1846, providing for the payment of such duties.
    8. Same—Constitutional law.
    The acts requiring the payment of such duties are not violative of art 1, § 10, subd. 2 of the constitution, as they do not require payment of duties on imported merchandise prior to the time when it becomes a part of the mass of property of the state.
    4. Same.
    Where articles as they are imported are made the subject of sale, the state is not entitled to exact a duty for the sale itself although made by an auctioneer as a state officer; but where the packages are broken up and divided into smaller packages and practically sold out ^.t retail, they may be considered as a part of the mass of property of the state and duty on the sales may be levied.
    Case submitted upon an agreed state of facts under the provisions of the Code allowing that to be done.

      W. A. Post, for pl’ffs; Daniel P. Hays, for def’t.
   Daniels, J.

The controversy, which in this manner has been submitted to the court, relates to the obligation of the defendant as an auctioneer in the city of New York to return and pay auction duties to the state of New York, and also to the claim of the defendant to recover back duties previously paid by him under protest. This latter part of the case requires but little attention for its disposition, for the moneys were paid as auction duties, so far as those payments have been made, with a full knowledge of the facts, and without, any coercion on the part of the state authorities. And where a payment is made in that manner, although it may be accompanied with the protest of the party paying, the law does not permit the money to be recovered back. Flower v. Lance, 59 N. Y., 603; Vanderbeck v. City of Rochester, 122 id., 285; 33 St. Rep., 381.

Goods and merchandise were sold by the defendant as auctioneer which were the products of foreign countries imported into the United States, upon which, at the rate of three-fourths of one per cent, the auction duties claimed amount to the sum of $133.06, besides interest. And this balance is claimed by the plaintiffs fi'om the defendant under the authority of the laws of this state relating to auction sales. This law, as it was made a part of the Revised Statutes, is contained in title 1, chap. 17 part 1. These provisions, so far as they defined the auction duties, were superseded or repealed by chap. 62 of the Laws of 1846. The first section of this act defined the duties payable to the state by an auctioneer on all goods, wares, merchandise and effects imported from any place beyond the Cape of Good Hope, and all other goods, wares, merchandise and effects which are the production of any foreign country, and plainly prescribed and regulated the obligations of auctioneers to the state. But by chap. 547 of the Laws of 1866 these provisions were re-enacted with certain changes not required to be noticed for the disposition of this proceeding. By the peculiar phraseology adopted in the Act of 1866 it was provided that section 1 of the Act of 1846, which prescribed the duties to be paid, was thereby amended so as to read as follows, and then followed the newly enacted law. And by chap. 106 of the Laws of 1868 this act of 1866 was in express terms repealed. And no provisions were then enacted or made creating or prescribing any obligation on the part of an auctioneer to pay auction duties to the state upon the goods and merchandise mentioned in the act of 1846. And for that reason it has been insisted on behalf of the defendant that he has been relieved from the obligation of paying auction duties, under the application of the rule that the repealing of the statute in this manner embodying a preceding law does not of itself revive that law. Generally speaking, the rule is otherwise, and the repeal of -a later statute repealing an earlier statute will revive the preceding law and reinstate it from that time in the same manner as though it had not been repealed. Van Denburgh v. President, etc., of Greenbush, 66 N. Y., 1.

But an exception to this rule is stated to exist where the statute repealed is re-enacted in such form as to embody a part of the preceding law, as the Law of 1866 amended the act of 1846 by declaring by the amendment that it should read as follows, etc. People v. Supervisors, 67 N. Y., 109. And if no more had been done than to repeal the act of 1866 framed in this manner, the construction might be required to be adopted that no law existed alter that obligating an auctioneer to pay auction duties on the sale of merchandise to the state.

But in this respect, as in others where the intention of the legislature can be ascertained, that intention is to be adopted and followed. And it appears by the second section of the act of 1868 that it was not the understanding of the legislature that the repeal of the act of 1866 should be attended with the result of abrogating the obligation to pay auction duties upon the sale of goods and merchandise. This section amended § 2 of chap. 899 of the Laws of 1849. authorizing the comptroller to appoint an agent still to carry the law into effect And by the amendment of 1868 it was provided that the agent employed should have full power to administer to each auctioneer, and to require such information as might be necessary to ascertain the true amount of goods sold at auction by such auctioneer. And a fee for the agent was prescribed for approving of the returns to be made of sales.

This section clearly discloses the intention of the legislature to be, notwithstanding the repeal of the act of 1866, that the preceding law should still be applied and enforced. And this intention is still further manifested by chap. 287 of the Laws of 1878, which excepts the sale of farm property and other personal property sold upon farms, and property which may be owned by any person residing in any of the towns and villages of this state, and which has not been purchased for the purpose of a sale at auction, upon which duties are required to be paid to the comptroller under the laws of this state, from “ the semi-annual accounts now required by law to be rendered to the comptroller by auctioneers engaged in the sale of goods, wares, merchandise and effects, the growth or produce of any foreign country.” And the only law to which this reference could have been intended to be made, as the act of 1866 had been repealed, must have been that of chap. 62 of the Laws of 1846, which, by its third section, declared that the account required by law from every auctioneer should thereafter be rendered semi-annually on the first Mondays of July and January in each year. It is also apparent from this act of 1878 that the legislature understood the laws of the state still to require the payment of auction duties upon the sale of goods, wares, merchandise and effects, the growth or produce of foreign countries, ■as that was regulated by the act of 1846, and previously had been by the part of the Revised Statutes already mentioned. Chapter •310 of the Laws of 1883 is still further significant upon this subject, for it made an important amendment to § 3 of chap. 547 of the Laws of 1866, which, by chap. 106 of the Laws of 1868, had been expressly repealed. This amendment prohibited any auctioneer from executing the duties of his office until he gave a bond to the People of the state, with two sureties, in the penalty of .$5,000, in cities having a population of more than fifty thousand inhabitants, for the faithful performance of the duties-of his office, and for the payment of the fees or duties-that are or shall be imposed by íaw, and that shall have accrued on sales, made by him, or under his direction, by Virtue of his office; assuming plainly by its provisions and directions that an auctioneer selling goods, wares and merchandise still remained subject to the payment of auction duties to the state. And this exhibition of the intention of the legislature, although given in this awkward manner, is consistent with no other conclusion than that it was intended, in the repeal of the act of 1866, that the preceding law of 1846 should be revived and continue to apply to the occupation of auctioneers selling goods, wares and merchandise. The defendant accordingly cannot be relieved from the obligation to pay auction duties to the state.

But his liability to make the payment of the duties claimed' from him is further resisted under sub. 2 of § 10, art. 1, of the-constitution of the United States, which declares that, “ No state shall, without the consent of the congress, lay any imposts or duties on imports or exports except what may be absolutely necessary for executing its inspection laws." And as the goods- and merchandise upon which the duties are now exacted by the state were the products of foreign countries imported into the-United States, this provision of the constitution is invoked as excluding the defendant’s liability. . The law, as it has been expressed in the act of 1846, and as it was previously contained in the Revised Statutes of the state, has not by its language provided for the payment of duties upon imported merchandise brought into the United States prior to the time when such merchandise shall become a part of the mass of the property of the state. It-does, it is true, mention goods, wares, merchandise and effects-imported from any place beyond the Cape of Good Ehqpe, and other goods, wares, merchandise and effects, the production of any foreign country. But this language is not to be construed as-intended to include the imported articles while they may remain in the condition in which they are imported. That would be a violation of this constitutional- provision. And it is not to be-presumed thaf the legislature intended by the enactment to bring-it in conflict with the constitution of the United States. The presumption, on the contrary, is that it was intended to enact the, law in such language as to permit its enforcement without creating a conflict between its provisions and the constitution. Newell v. People, 3 Seld., 9, 109.

Such is the presumption required to be applied in support of legislative' enactments. For inasmuch as they are made with knowledge on the part of the members of the legislature of the-constitutional restraints obligatory upon them, it is to be assumed that the intention is to avoid conflict with the provisions of the constitution. Upon this subject it was said in United States v. Coombs, 12 Peters, 72, that “If the section admits of two interpretations, one of which brings it within, and the other "presses it beyond, the constitutional authority of congress, it will become our duty to adopt the former construction, because a presumption never ought to be indulged that congress meant to exercise or usurp any unconstitutional authority, unless that conclusion is forced upon the court by language altogether unambiguous.” Id., 76. And this rule is as applicable to the legislation of the state as it is to the legislation of congress. Butler v. Com. of Penn., 10 How., U. S., 402. Where it was added that “ It has been repeatedly said by this court that to pronounce a law of one of the sovereign states of this Union to be a violation of the constitution is a solemn function, demanding the gravest and most deliberate consideration; ■and that a law of one of the states should never be so denominated if it can upon any other, principle be correctly explained.” Id., 415.

And the frequent repetition and long continuance of the laws ■of the state prescribing and requiring the payment of auction duties upon the sale of this character of goods, merchandise and effects, is still further weighty evidence in support of the conclusion that the laws have not been so enacted as to be brought in conflict with this provision of the constitution of the United States. People v. Dayton, 55 N. Y., 367.

The language of the statute will be fully satisfied by applying it to the control of such sales of imported merchandise after it has passed beyond the protection of the constitution and laws of the United States, and become a part of the general mass of state property. For these reasons it cannot be held that the law itself .as it now exists was an unconstitutional exercise of legislative power. Whether it applies to "the present controversy is to be determined by the status or condition of the property upon which the duties have been exacted at the time when the sales were made by the defendant.

By the agreed case the defendant sold goods, merchandise and effects imported into the United States from foreign countries to the amount in the aggregate of $17,741.74. And it has been agreed by the case that these sales “ represent goods originally imported and sent by the importer in the original imported packing cases to John C. Wilmerding for sale, but which goods were not sold by the said John C. Wilmerding, as auctioneer, in the original packing cases, but the said packing cases were opened and the goods were sold as follows: for example, a case of woolen or silks contained a certain number of pieces of woolens or silks, each containing the same number of yards, and each being a separate package, piece, parcel or bundle by itself. The separate package, piece, parcel or bundle was sold at auction to retail dealers or jobbers apart from the othqr contents of said entire case, said package, piece, parcel or bundle not being opened or separated. The cases containing ribbons and trimmings consisted of a large number of boxes or cartons of trimmings or ribbons, a carton being a box containing a number of rolls of ribbon. The whole case was not sold by auction to one person, but the case was opened and the separate boxes or cartons were sold by the auctioneer to different retail dealers or jobbers, said boxes or cartons not being opened or separated. They accordingly were not made of the goods in the packages in which they were imported under the constitution and the laws of congress. Where-the articles as they are imported by the importer are made the subject of sale, there it is clear that the ctate would not be entitled to exact a duty for the sale itself, although it may be made¡ by an auctioneer as a state officer. This subject was considered very critically, as well as thoroughly, in Brown v. State of Maryland, 12 Wheaton, 419. But in that case the state of Maryland prohibited the sale of the goods as imported, unless the importer-first obtained a license permitting the sale to be made. And that applied to the packages themselves as they should be brought into the country by the importer. ,

And it was there said, in the opinion of Chief Justice Marshall, in defining an exception to the rule prescribed, that “ It is sufficient for the present to say, generally, that when the importer has so acted upon the thingimported that it has become incorporated and mixed up with a mass of property in the country, it has perhaps lost its descriptive character as an import and has becom'esubject to the taxing power of the state. But while remaining the property of the importer in his warehouse in the original form or package, in which it was imported, a tax upon it is too plainly a duty on imports to escape the prohibition in the constitution.” Id., 441. It was suggested in the course of the decision, however, that if the importer employed a licensed auctioneer of the state to make the sales, he could not object to paying for that service, or’ for any other for which he might apply to an officer of the state. But so far as this intimation extended, it. has been practically overruled by the case of Cook v. Penn., 97 U. S., 566. But- this latter case is still undecisive of the present controversy, for the reason that the goods for which the auction duties were there exacted were sold, in the bulk, or original packages in which they had been imported. And there can be no-doubt following the construction in this manner placed upon the-constitution, as well as from its express language, that sales of the-imported articles in the packages in which the importations maybe made are free from all liability to the state for duties claimed to be imposed upon the privilege of making the sale itself.

But where the packages may be broken up and divided into-smaller quantities, and practically sold out at retail, as they were by the auctioneer in this case, there they have been considered to have passed so far beyond this constitutional provision as to entitle the states, in the exercise of their sovereign authority, to levy a duty upon the sales which in that manner shall be made. This-was considered in People v. Maring, 3 Keyes, 374, where, in the course of the opinion which secured the approval of the court, it was said that “ There can be no doubt of the power of the state to tax articles imported for sale after they have passed into the-mass of general property by being sold by the importer, or by-being divided by him into smaller quantities by the breaking up of the casks, or packages, in which they were imported, so as. to destroy the character of import which subjected them to direct duties under the laws of the United States.” Id., 375.

And in this case it is not contended that this destruction of the-packages, and the detailed sales made of the goods, were not under the authority of the importer. Neither is it to be presumed that the auctioneer without that authority divided and sold the goods in this manner. For that would have been a wrong upon his part, and the law does not presume a wrong without evidence, against any person. The same qualification of the law was also declared in Waring v. Mayor, 8 Wall., 110, where in the course of the opinion of the court it was said that “ When the importer sells the imported articles, or otherwise mixes them with the general property of the state, by breaking up the packages, the state of things changes, as was said by this court in the leading case, as the tax then finds the article incorporated with the mass of property by the act of the importer.” Id., 122. And this was approved of in Low v. Austin, 13 Wall., 29. There it was said that “Whilst retaining their character as imports, a tax upon them in any shape is within the constitutional prohibition. The question is not as'to the extent of the tax, or its equality with respect to taxes on other property, but as to the power of the state to levy any tax. If at any point of time between the arrival of the goods in port and their breakage from the original cases, or sale by the importer, they become subject to state taxation, the extent and the character of the tax are mere matters of legislative discretion.” Id., 34.

And so the rule was considered in Coe v. Errol, 116 U. S., 517. It was there said that “The state cannot impose any tax or duty on such goods so long as they remain the property of the importer and continue in the original form or packages in which they were imported.” Id., 526-7. And the still later case of Leisy v. Hardin, 135 U. S., 100, sanctions the same construction.

The facts, as they have been disclosed by the agreed case, exhibit as complete a destruction of the original packages imported as would have been the case if the importer himself had been engaged in a wholesale or retail business, and had divided and placed these goods for sale in their appropriate places upon the shelves of his establishment. They had proceeded a step beyond that where the constitution has carried its protection against state taxation. And the defendant was therefore liable-under the provisions of the statute of this state to pay to the state the sum of money demanded by it as the statutory duties upon these sales. The plaintiff is, accordingly, entitled to judgment to that effect, together with interest and the costs allowed by law.

Van Brunt, P. J., and Barrett, J., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    In the Matter of the Estate of Peter Cain, Deceased.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Legacy—Advertisement for claims.
    A delay of executors to advertise for claims cannot be held to deprive a legatee of the right to claim the legacy, unless the existence of claims, against the estate which may impair the right of the legatee is pointed ont with certainty.

      Appeal from order of the surrogate directing the executors to ■pay to decedent’s widow $1,000 on account of her legacy.

      Thomas McMahon, for app’lt; James O’Neill, for resp’t.
   Van Brunt, P. J.

We see no reason whatever for interfering with the order of the learned surrogate in this proceeding.

It appears that the will of the testator was admitted to probate .and letters testamentary issued to the executors on the 6th of February, 1890, and that in March, 1891, the petitioner presented her petition to the surrogate for the payment of her legacy on the ground that more than a year had elapsed since the granting of letters testamentary. The executors’ answer admitted that they had in their hands a sum sufficient to pay the amount claimed, but denied the right of the petitioner to any part thereof because it .appeared that the time forthe presentment of claims against the estate as fixed by their advertisement had not expired and that the petitioner had refused to accept the provisions of the will in lieu of dower, and had brought an action in the supreme court for the admeasurement of her dower in the real estate of her husband.

The will not being before the court, the validity of the last objection overruled by the surrogate cannot be considered. It is true that attached to the printed papers submitted on the appeal is what purports to be the will. But the paper annexed does not seem from the certificate of the clerk of the surrogate’s court to have been before the surrogate at the time of the making of the order in question, and therefore forms no part of the appeal papers, .as such certificate states that the other papers contained in the book were all the papers upon which the order appealed from was made.

The other ground of objection, that the time of advertising for claims had not expired, does not seem to be well taken. The executors had refrained for a long period of time to advertise for claims, and their delay in this respect cannot be held to deprive a legatee of the right to claim a legacy, unless the executor can with ■certainty point out the existence of claims which may be made .against the estate which may impair the right of the legatee to receive the money. In the case at bar there is no pretense of the existence of any claim; simply a statement that because the time of advertisement bad not expired the executors might be put in peril if they were not in funds to respond to claims which might be presented.

We do not think, under the circumstances, that this is sufficient. An executor cannot plead his own procrastination in answer to a ■claim of a legatee for payment

The order appealed from should be affirmed, with costs.

Barrett and Andrews, JJ., concur.


author: Andrews, J. Van Brunt, P. J.

text:
    David W. Bruce et al., Exr’s, Resp’ts, v. David W. Bruce et al., Ex’rs, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    ^Executors and administrators—Compensation.
    By testatrix’ will certain real estate was devised to several persons, share and share alike, with a power in trust to the executors to cause actual partition and an equitable allotment of shares to be made. The executors, followed the specific directions of the will, appointed commissioners and executed and delivered to the devisees declarations of the allotment made so as to carry into effect the provisions of the will. Held, that they were-not entitled to compensation for the services so rendered.
    Appeal from so much of a judgment entered at special term as awarded to the plaintiffs compensation for services in dividing the real estate of Miss Wolfe, deceased.

      J. F. Kernochan, Tillotson & Kent and A. R. Qonkling, for app’lts; II. H. Man and J. M. Bowers, for resp’ts.
   Andrews, J.

The plaintiffs are the executors of the will of Catherine L. Wolfe, deceased, and this action was brought to settle their accounts. The case was sent to a referee to take and state the accounts of the plaintiffs as such executors, to take testimony as to any question which might arise on said accounts, and to report the testimony taken, and the accounts, with his opinion as to the questions of law and fact involved therein. Such testimony was taken, and the referee having made his report, the action was brought to trial at the special term. The referee allowed the plaintiffs commissions on all moneys actually received and paid out by them, and also allowed each executor one per cent, on the value of certain real estate which was appraised at $1,472,000.

The special term adopted the views set forth by the referee in his report, and a judgment was entered which, amongst other things, provided for the retention by each of the plaintiffs of the sum of $17,449.95, as commissions on personal property; and the further sum of $14,720, which was one per cent, on the value of such real estate; and from so much of the judgment as awarded commissions upon the value of the real estate this appeal is-taken.

We are unable to concur m the view taken by the learned referee, and the court below, as to the commissions allowed upon the value of the real estate. Originally a person acting in a fiduciary capacity was not entitled to receive any compensation for his services in the administration of the trust. Manning v. Manning, 1 Johns. Oh., 534. In 1817, the legislature passed an act-allowing the court of chancery, on the settlement of the accounts of guardians, executors and administrators, to make a reasonable allowance to them for their services, over and above their expenses. Chapter 251, Laws of 1817. That court thereupon adopted a rule allowing guardians, executors and administrators a certain percentage upon all sums of money received and paid out by them. 3 Johns. Cli., 630. Subsequently the legislature passed a law which contained substantially the same provisions as the rule of court, and which, as amended, is now in force. R. S., 8th ed., vol. 4, 2564-65. The court afterwards construed this statute as applying to committees of lunatics, Matter of Roberts, 3 Johns. Ch., 43, and to assignees and trustees of all kinds. Meacham v. Sternes, 9 Paige, 398.

It was also held by the court of chancery that where an executor, instead of collecting in the money due upon good and collectible securities for the benefit of the legatees, transfers such securities to a third person for the use of such legatees, with their assent, he was entitled to the same commissions as if he had actually received and paid over the money.

The legislature subsequently amended the statute so as to allow •separate commissions to each executor, in certain cases, Laws of 1863, chap. 362; and also conferred upon the surrogate’s court the power to take and state the accounts of testamentary trustees, Laws of 1850, chap. 272; and upon the settlement of such accounts to award the same commissions as were awarded in similar ■cases in the supreme court. Laws of 1866, chap. 115.

.The statutes above mentioned are the only ones which, in this •state, authorize the payment of executors and ..trustees for their services as such; and the question presented is whether the plaintiffs, by virtue of the services which they rendered iñ regard to the residuary real estate of the testatrix, can be regarded as having received and paid out said sum of $1,472,000. The question of the compensation of executors and trustees has frequently been before the courts, but no case is referred to in the briefs of counsel, nor do we know of any, in which the facts involved were precisely similar to those presented in -the case at bar.

The will of Miss Wolfe contained many specific devises and bequests, and then all the rest of the estate, both, real and personal, was devised and bequeathed to eighteen of her cousins, share and share alike. To enable the executors to provide for the pecuniary legacies and requirements of the will (but for that purpose only) they were given by the twenty-first clause thereof an unqualified power of sale of any real estate which belonged to the testatrix, in her own right, and was not specifically devised.

The said twenty-first clause also contained the following: I •also authorize and empower them to cause just partition to be made of any real and personal estate herein disposed of to and among the several persons who may be or become entitled to undivided shares of or in the same under the provisions of this my will; and for the purpose of making partition of any such estate, they shall have power in each instance to appoint under their hands and seals three suitable persons as commissioners to appraise, allot and set apart, as may be just and equitable, the respective shares of such estate to the parties entitled thereto ; and upon the completion of such allotment, and when the same shall have been approved by my executors, I empower them to carry the same into effect by executing and delivering to the respective parties entitled to such estate all such declarations of allotment, or such releases, conveyances or transfers as may be suitable for that purpose; and if any piece or parcel of property shall be of such disproportionate value that in the judgment of such commissioners, or of my executors, it cannot properly be allotted to any ■one share, they may in their discretion allot it in undivided parts to two or more shares. And I further provide that, after such ■commissioners shall have made their valuations and allotments as nearly equal or equitable as the circumstances may admit, they shall have power, in order to produce more entire equality, to award such sums out of any funds hereinbefore provided for that purpose as in their judgment may be necessary to be made by any or either of the persons taking any of such shares to any other of those who may take any other share or shares; and they may also, if necessary, charge any residue of any such payment upon any share or share of the real estate to be allotted by them as aforesaid.”

Under the provisions of the will above stated the residuary real estate vested in the devisees named in the twentieth clause, and the executors were made the donees of a power in trust.

The executors executed the powers conferred upon them bythe "twenty-first clause of the will, by appointing three commissioners to make-partition of such residuary real estate, and subsequently •did execute and deliver to the respective parties such declarations of allotment or transfers as were considered suitable to carry into effect the provisions of the will.

It appears to be conceded upon the papers before us that the executors devoted a good deal of time to this matter; and that, if the court had the power to allow them any compensation for their services in relation to the real estate, the amounts that were allowed by the referee and the courts are not unreasonable. But the difficulty about the matter is, that assuming that the claim of the executors to be paid for such services is a meritorious one, we can find no provision in the statutes which authorizes the court to make any allowance at all; nor is there any reported case in "which it has been held that, upon a similar state of facts, executors were entitled to compensation for such services, by virtue of the provisions of the statutes above stated; or that the court upon a similar state of facts had the power to authorize them to retain money in their hands as compensation for such services.

In the case of Collier v. Munn, 41 N. Y., 143, one of the executors was an attorney at law, and at the request of his co-executors and some of the legatees had rendered services for the estate. There was no dispute as to the necessity or the value of the services, and it was not contended that the amount claimed was more than a reasonable compensation. BTevertheless, the executors’ claim for services was disallowed by the surrogate, and the decree which disallowed the claim was affirmed by the general term and the court of appeals, upon the ground that the percentages allowed by the statute were the limit of the compensation which the executor could receive for all the services rendered by him in relation to the trust estate.

In the case of Lent v. Howard, 89 N. Y., 169, upon which counsel for the executors largely rely, it was held by the court of appeals that an executor who had performed services in relation to real estate, devised by the will of which he was an executor, might and should receive reasonable compensation for such services ; but in that case the services performed were not devolved upon the executor by the will.

The executors were given the power to sell- the real estate and convert the same into money, but they did not do so. The property consisted partly of real and partly of personal estate. There were two executors, and one took charge of the personal property, and the other of the real estate, which consisted of five farms. The executor who had charge of the farms was a farmer, and he assumed the control and management of such farms and continued in charge, working the same and receiving the rents and profits, for about fifteen years. All this was done with the consent of all the parties in interest and for their benefit; and it certainly would have been a case of veiy great hardship if the executor in that case could not have received compensation for such services. The court of appeals recognized the rule that an executor cannot receive for his services, as such, anything beyond the percentages allowed by the statute. But they held that, in that particular case, the executor who had man aged the farms ought to receive a reasonable compensation out of the gross rents and profits of the real estate which he had managed, placing their decision, apparently, upon the ground that such services were no part of his duty as executor, but not stating from what source the court derived this power to grant such compensation.

The court said : “ The principle is that for the personal services of an executor, or trustee, in the discharge of executorial duties, or those which, pertain to his trust, the commissions allowed by law are deemed to be a full equivalent. We are not disposed to impair the force of this salutary rule, although in some cases the statutory compensation may be quite inadequate. But we think the rule does not fairly or justly apply to the claim of the defendant Bailey to be allowed out of the gross rents and profits of the real estate a suitable compensation for services in the nature of a charge thereon for his labor expended in producing them. It was no part of his executorial duty to spend his time and labor in conducting the business of carrying on the farms. Clearly there can be no ground for claiming that he owed any duty whatever in respect to the Homestead farm ; but, as has been said, this-farm was managed in the same way as the rest. The executors were not entitled to the possession of the testator’s real estate. The control and management was apparently surrendered to. Bailey by the consent of all the parties in interest. In accounting the executors should be charged with the net income and profits;, and we think that a reasonable compensation to Bailey for his services and labor is a proper element to be considered in ascertaining them.”

Evidently the court of appeals thought that case could be distinguished from the case of Collier v. Munn, supra, for it is stated in the opinion that an executor will not be allowed compensation for his own services as attorney in the affairs of the estate, and said case of Collier v. Munn is cited as an authority for the proposition ; and we do not see how the decision in Lent v. Howard helps the case of the plaintiffs, for in that case the services rendered were not devolved upon the executors bjf the will itself, nor were they those which the executor was under any obligation. whatever to perform. Whereas, in the case at bar, the services about the real estate, for which compensation is claimed, were expressly devolved upon the executors by the will itself, and, as they .undertook the execution of the will, they were in duty bound to perform such services, whether they could receive compensation therefor or not.

There are other cases in which it has been held that persons named in a will as executors were also entitled to compensation as trustees, Johnson v. Lawrence, 95 N. Y., 154; Laytin v. Davidson, id., 263; Phoenix v. Livingston, 101 id., 451; but none of these cases support the claim of the plaintiff. They were all cases in which there was a plain separation of the duties devolved by "the will upon the plaintiffs therein as executors and those devolved upon them as trustees; and the duties as trustees involved labor and responsibility for years after the duties as executors had been entirely performed, and after the estate had been transferred from the individuals named as executors to themselves as trustees. In the present case the executors were the donees of a power in trust, and it was absolutely necessary that they should execute such power in the performance of their duties as executors ; and it is impossible to sustain the provisions of the judgment granting them compensation for services about the real estate upon any theory that they were entitled to it as trustees, for they had no title to the real estate.

In the case of Phoenix v. Livingston, 101 N. Y., 451, the facts were not precisely similar to those in the case at bar, but the reasoning of the court is applicable and it seems to us must be regarded as fatal to the claim of the plaintiffs. In that case the individuals named as executors were also named as trustees in the will, and the court held that they were entitled to double commissions. Part of the property disposed of by the will was real •estate, the fee of which vested in certain grandchildren, by force •of the will, at the death of the testator. The will gave the executors the power to sell and to rent such real estate and they did in fact manage such property for a series of years, receiving the rents •and profits thereof, which were applied to the maintenance of certain trusts created by the will. On the termination of the trust there was a large amount of land which had not been sold, and it was claimed that the trustees' were entitled to commissions upon the value of that land.

The court of appeals, however, held that commissions could not be allowed upon the value of such lands, but must be limited to percentages upon the amounts of money actually received and paid out by them. Finch, J., speaking for the court, said : “We ■ought not to wander from the statute and strain its construction to an extent approaching perilously near to legislation. In the present case the fee of the lands, it is conceded, vested in the .grandchildren, by force of the will, at the date of the death of the testator. The estate of the trustees took priority only for purposes of the trust. Stevenson v. Lesley, 70 N. Y., 512. They were authorized to sell and to rent the real estate, and upon all sum's <of money thus realized and passing through their hands they were entitled to commissions; but the unsold lands at the close of the trust passed to the possession of the remaindermen, not. through any title derived from the trustees, but by force of the original devise. The trustees transferred no land, but simply refrained from .exercising their power of converting it into money. And so they not only never paid it out even constructively by any grant or conveyance, but never even received the absolute fee, which all the time was a vested interest in remainder.

Their estate was simply commensurate with their trust, bounded as to the duration by the terms of the trust, and as to the unsold lands never equalling in value that of the fee.” The counsel for the plaintiffs seek to distinguish the case at bar from that of Phoenix v. Livingston, because of the fact that the executors, in the case at bar, did execute declarations of allotment and transfers of the real estate, as required by the will, and he claims that therefore it must be considered that, constructively, they did receive and pay out an amount,of money equal to the value of such real estate. ■ This is a plausible argument, but it does not seem to us to be sound. We do not see how the executors can be regarded as having constructively received and paid out an amount equal to the value of the land, when they had no title whatever to the land itself. The fee was vested in the devisees named in the will, and the executors were merely the owners of a power in trust.

But even if the case of Phoenix v. Livingston is not regarded as entirely conclusive against the claim of the plaintiffs, it certainly must be regarded as exceedingly unfavorable to such claim.

The opinion of the learned referee, to whom the case was sent, indicates that he thought that the plaintiffs had rendered services ■about the real estate for which, upon the merits, they ought to be compensated, but that he was somewhat embarrassed to find authority of law for allowing such compensation is apparent. He refers to the case of Phoenix v. Livingston, supra, but thinks the case at bar can be distinguished from that one, because the several shares of real estate did not under the will vest absolutely in the parties méntioned in the 19th clause thereof, and that something further was required, to wit: An active approval and making of the allotments by the executors, and a deed by them. The two cases are undoubtedly distinguishable in the manner suggested by .the referee, but that does not material!}7 aid the plaintiffs. The fact that the cases differ somewhat leads to the result that Phoenix v. Livingston is not conclusive against the plaintiffs, but that fact does not weaken the force of the reasoning of the court in that case.

The referee also found a further reason for allowing commissions to the plaintiffs, in the consideration that the adoption of a rule that commissions should not be allowed to executors, in such cases, would array the interest of executors against their duties, and destroy their freedom of action, and that executors would be induced to exercise the power of sale vested in them unnecessarily, and against the interest of cestui que trusts, for the purpose of earn ing their commissions.

If an application were made to the legislature to change the statute so as to allow commissions in cases like the one now before us, it would be proper to call the attention of that body to these considerations, and it is possible the legislature would deem them of such weight as to require that the statute should be so amended. They are not considerations, however, which will justify the court in adopting a construction of the statute which is not warranted by its terms, or justify it in itself amending the statute without the intervention of the legislature.

The learned referee, however, finally based his decision upon the following ground: “ I am of opinion plaintiffs are entitled to statutory compensation for their services by reason of the terms of the will, because a necessary division and conveyance of the real estate in kind to the devisees is equivalent to the exercise of .a power of sale and a division of the proceeds.” In placing his decision upon this ground the learned referee doubtless bad in mind the decision of the court of chancery m the case of Cairns v. Chaubert, 9 Paige, 160, supra, in which executors were allowed commissions upon personal securities which they had distributed without converting the same into cash. That decision itself involved a very liberal construction of the statute, and in fact it might be said, an amendment of the statute. But in that case, however, the title of the securities was vested in the executors. They had the power to sell the securities, and it would have been their duty to sell the same but for the consent of the parties in interest that they should be assigned to a trust company without a sale. In the case at bar the title to the real estate was not vested in the executors, but in the devisees. The executors had the power to sell to provide money for the pecuniary legacies, and to carry out some other requirements of the will; but their duty as to the bulk of the real estate was not to sell it, but to cause it to be partitioned, and it would have been a violation of their duty if they had sold it.

It may very well be that the services rendered by the plaintiffs about the real estate ought to be declared by statute to be equivalent to tire receiving and paying out of money upon the sale of such real estate, but the statute does not declare it to be such equivalent, and for the court to construe the statute in such a manner as to make them equivalent, would be not only, as the court of appeals said in Phoenix v. Livingston, perilously near legislation,” but would be actual legislation.

The learned judge before whom the case was tried at special term, filed a brief memorandum which contains, among other things, the following: “I am satisfied with the reasoning of the learned referee, and deem it unnecessary to add anything to his opinion upon the main question presented to him.” He may have been influenced in his conclusion, as the referee apparently was, by the fact that the plaintiffs had rendered services, and that the only way in which they could be remunerated for the same was by adopting the construction of the statute which was placed upon it by the referee. We might also be willing to adopt that construction, so far as the merits are concerned, if we felt at liberty to do so ; • but as we think that such construction is inadmissible,, so much of the judgment at special term as awarded $14,720 to each executor for services in relation to the real estate should be-reversed, with costs.

Van Brunt, P. J.

The construction which was put upon the assignment act, in which the language is similar to that used in the Revised Statutes in reference to compensation of executors, in the case of Matter of Assignment of Hulburt et al., 89 N. Y., 259, is in. accord with the views expressed in this opinion. I concur.


author: Barrett, J.

text:
    In the Matter of the Estate of Melancthon L. Seymour, Deceased.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Trustees—Removal of.
    The investment of trust funds in securities unauthorized by law does not of itself call for the removal of the trustee To have such effect the acts of misconduct or neglect of duty on the part of the trustee must be. such as to endanger the trust property, or show a "want of honesty or of proper capacity or reasonable fidelity.
    Appeal from a decree of the surrogate denying an application for the removal of a trustee.

      John S. Mehher, for app’lts; A. B. Tappen and Warren Q. Brown,. for resp’t.
   Barrett, J.

One Melancthon L. Seymour, by his will, appointed the respondent, Mr. O’Hara, his executor and trustee. The trust estate was to be enjoyed by Mr. Warren B, Sage for life', and upon his death was to go to his, Sage’s, appointees. In case of Mr. Sage’s failure to appoint, the principal of the trust estate was then to go to Mr. Sage’s lawful issue. Previous to-Seymour’s death, Mr. Sage was himself executor and trustee under the will of Patience W. Seymour, who gave this same estate-to Melancthon L. Seymour for life, and upon his death to his, Melancthon’s, appointees. Sage invested the estate in Connecticut, and in 1886, upon the death of Melancthon, he turned it over tó Mr. O’Hara, who has held it ever since. It is now sought to-remove O’Hara, in substance because he did not reduce the Connecticut investment, which thus fell into his hands, into cash and then bring the cash into this state for investment in lawful securities. There are also some other charges, but none of any great moment, and they are subsidiary to the main charge.

The answer to the main charge is that O’Hara simply continued the Connecticut investment as it came to him from Sage, and that he did so with Sage’s full knowledge and approval. Sage’s denial of such approval is unworthy of serious consideration. He has received the income for upwards of twenty years and he knew perfectly well where it came from. And why, it may be added, should he have objected to this investment? It was, in fact, an excellent one, and it was producing with unfailing regularity an income of from five to seven per cent, upon the-principal sum. It was also an investment of his own choosing, a. trust legacy to O’Hara from Sage himself as Patience Seymour’s executor and trustee. For some twenty years this investment was unchanged, but in 1886 the old mortgage was paid off and a new mortgage was given upon the same property, which was then greatly improved and enhanced in value. The present security is in fact about twice as valuable as the original. In his answer to the petition, O’Hara further states that he was ready to invest the remainder of the trust fund not covered by the mortgage in compliance with the directions of the surrogate.

The investment was greatly to Sage’s advantage, not alone because of the large income realized therefrom, but because such income was not diminished by local taxation. Clearly, Mr. Sage cannot now be heard to complain of this investment. If he has altered his mind about it, and wishes a strictly legal investment, he should at least have asked the trustee to make the change before proceeding in this summary way. His present position is entirely untenable, for he not only approved of this investment, throughout, but as late as the 25th of September, 1890, approved in writing of the trustee’s account, based, of course,' upon such investment. He has received an excellent income during all these years, and now, .without a word of warning, he attacks Mr. O’Hara for retaining the investment which produced that income; an investment, too, which originated with himself, and which has been greatly strengthened since its adoption by O’Hara. It thus appears that the breach of trust has°here been purely technical. The trustee has acted in good faith and the estate has never been in the least jeopardy. The moment complaint was made, O’Hara arranged to bring into this state nearly the entire fund, reduced to cash, while the rest of it is amply secured and will follow shortly; namely, in November of next year.

The position of Mr. Sage’s children upon this application is, of course, different from that of their father, but even they have made out no case for removal. They have but a contingent interest in the estate; that is, they take only in case their father fails to exercise his power of appointment. But they undoubtedly have a right to demand that the estate shall be invested in authorized securities. It does not follow, however, that because, as against these contingent remaindermen, there has been a technical breach of trust, the trustee is necessarily to be removed. The rule is well stated by Mr. Perry in his work on Trusts, § 276 :

“ Nor will a trustee be removed for every violation of duty, or even breach of the trust, if the fund is in no danger of being lost. The power of removal of trustees appointed by deed or will ought to be exercised sparingly by the courts. There must be a clear necessity for interference to save the trust property. Mere error, or even breach of trust, may not be sufficient; there must be such misconduct as to show want of capacity or of fidelity, putting the trust in jeopardy.”

It is plain that here there has been no such misconduct as the learned author points out. There has been no lack of capacity or fidelity, and the trust has never been in jeopardy. If these contingent remaindermen had requested a change of securities, it would have been Mr. O’Hara’s duty to comply with their request. Had he refused, their request could have been enforced, and meanwhile Mr. O’Hara would have been chargeable with all loss caused by the unauthorized investment. He might even have been removed, especially iE his refusal were willful or in bad faith. But we think these applicants, under all the circumstances, owed it to the trustee to confer with him, to make their complaints and express their wishes, before taking so radical a step as is involved in an application for removal. Mr. O’Hara’s solvency is not questioned, nor is his character. And he states under oath that his financial standing and responsibility are more than sufficient to meet any demand by reason of the premises. The contingent remaindermen have not lost a dollar by reason of the-unauthorized investment, nor is there any need of apprehension on that head. Indeed, Mr. O’Hara has not only brought the bulk of the estate into this jurisdiction, but he has-filed his account and asked for a judicial settlement thereof. ' In fact he has done everything which an honest and capable man could do to rectify a condition of things which he had everjr reason to believe was satisfactory to his cestuis que trust, the moment he was informed that it was objected to. The pétitioners have proceeded upon the theory that every investment which the court cannot sanction, or which may subject the trustee to personal liability in case of loss, necessarily draws with it the penalty of removal. In this* we think they are mistaken. It is also claimed that the investment of money in securities unauthorized by law, of itself calls for the removal of a trustee under subd. 2 of § 2817 of the Code of Civil Procedure. But the language of this subdivision' is, “Where, by reason of his having * * * invested money in securities unauthorized by law, * * * he is unfit for the due execution of his trust.” We agree with Surrogate Rollins in Estate of Morgan, 8 Civ. Pro., 158, that the last" expression must be regarded as a legislative sanction of a familiar doctrine of equity jurisprudence, which is expressed by Judge Story, 2 Eq. Jar., § 1289, in these words:

“ It is not every mistake of neglect of duty or inaccuracy of account which will induce courts of equity to remove a trustee. The acts or omissions must be such as to endanger the- trust, property, or to show a want of honesty or of proper capacity or of reasonable fidelity.”

None of these derelictions have here been established, and we think, therefore, that the learned surrogate was right in denying the application. The costs were properly charged upon the petitioners. Their application was precipitate and ill-timed. It was certainly lacking in just consideration to a trustee who seems to have served their father faithfully for a great many years.

And it was probably quite unnecessary, for doubtless a simple suggestion would have sufficed to bring about the desired change of securities.

The decree of the surrogate should be affirmed, with costs.

Yaw Brunt, P. J., and Ingraham, J., concur.


author: Pratt, J.

text:
    The Thurber Whyland Co., Resp’t, v. Frank Klittner, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Pleading—Power of court to amend process.
    This action was brought to recover for goods sold by plaintiff’s assignor, Thurber, Whyland & Co. The summons was entitled Thurber, Whyland & Co. v. Prank Klittner. This error was not discovered until judgment was entered. Held, that it was a clerical error, which could be corrected on motion.
    Appeal from order of the county judge of Westchester county, affirming an order made by the city judge of Yonkers, permitting the respondent to amend the summons after the entry of judgment in an action in which The Thurber Whyland Company was plaintiff and Frank Klittner was defendant.
    This was an action brought by the respondent against the appellant, in the city court of Yonkers, to recover the sum of eighty-five 97-100 dollars for goods sold and delivered by its assignor, Thurber, Whyland & Co. The summons and notice in the action was duly served upon the defendant and was entitled “ Thurber, Whyland & Co. v. Frank Klittner.” Before defendant’s time to appear or answer had expired, he called upon plaintiff’s attorneys, admitted the indebtedness, and said that plaintiff could prosecute his suit, as defendant had nothing that plaintiff could reach. When defendant’s time to appear or answer had expired, plaintiff’s attorneys prepared the judgment-roll and in doing so discovered that the summons, instead of being entitled “ Thurber, Whyland & Co.,” as plaintiff, should have been entitled “The Thurber Whyland Company,” the mistake being a clerical error. The complaint was then properly entitled “ The Thurber Whyland Company,” plaintiff, against Frank Klittner, defendant, and judgment entered thereon, defendant not having appeared or answered. Execution was then issued to the sheriff and returned wholly unsatisfied. Proceedings supplementary to execution were thereupon instituted by respondent, and an order requiring the defendant to attend and be examined was duly served upon him and he appeared before the city judge of Yonkers in company with his-counsel, and was duly sworn. Defendant's attorney and defendant himself then admitted the indebtedness in open court, asked for time to pay the amount of the judgment, and requested plaintiff’s attorneys to adjourn said supplementary examination for one week, and they consented. On this request, consent, and promise to pay, all of which were indorsed on said supplementary order, the said city judge of Yonkers made an order adjourning the examination of defendant for one week. Before the return day as set by the order of adjournment, said defendant’s attorney, acting as attorney for a person not a party to the action, had this appellant confess judgment to the third party, and said third party sold out defendant’s store and applied the proceeds to the payment of his judgment At this stage of the proceedings, the appellant through his said attorney moved to set aside plaintiff’s judgment in the action, on the ground that the summons served upon the defendant was at variance with the complaint, and that the judgment was irregular. At the same time plaintiff moved to amend the summons to conform to the complaint and judgment. From an order made by the city judge of Yonkers, granting plaintiff’s motion and denying defendant’s motion, this appeal is taken.
    ' Walter J. Donohue ( Wm. Riley, of counsel), for app’lt; Ellis & Harrigan, for resp’t.
   Pratt, J.

The complaint was consistent with the facts and recited the assignment of the claim by the copartnership to the new corporation formed to continue its business.

The issuance of the summons in the name of the copartnership instead of the corporation was a manifest error, which the court had power to amend.

It was an error in the name, which was properly corrected on motion.

Order affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Dykman, J., concur.


author: Barnard, P. J.

text:
    Ada Aller, Resp’t, v. Annie E. O’Reilly, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Carrier—N ondelivery.
    In this action in justice’s court plaintiff claimed that she and her assignor employed defendant to remove their furniture for five dollars ; that a portion of a load was brought which defendant refused to deliver without payment and took to a storehouse. Defendant claimed that the contract was for five dollars a load and that the load was a full one. The justice dismissed the complaint and the judgment thereon was reversed by the county court. Held, error; that the judgment of the justice amounted to a finding that the contract was as defendant claimed, and that the appellate court was bound by the finding.
    Appeal from judgment of county court, reversing judgment of justice’s court.
    Action brought in justice’s-court to recover damages, plaintiff . -claiming that she employed defendant to remove furniture, and that he failed to deliver it, but on account of her failure to pay for removal before delivery defendant took the furniture to store house and’ she was compelled to pay charges, etc.

      Joseph Carson (J. A. Wernberg of counsel), for app’lt; A. W. Gleason, for resp’t.
   Barnard, P. J.

The defendant carries on a trucking business. The plaintiff and Irene E. Blake, as is averred in the complaint, -employed the defendant to remove their furniture. That the defendant received the property and did not deliver it at the place to which it was to be carried, but put the same in a storehouse to the . damage of the owners of the properties of sixteen dollars. Mrs. Blake has assigned her interest in the contract to the plaintiff. The answer denied the plaintiff’s allegation. Upon the trial the plaintiff gave evidence upon her part tending to prove that the contract was made with the defendant to carry the things for five dollars. That when one-third of the load of property arrived at the place of delivery the defendant demanded the payment of the-five dollars before it was delivered. The payment was refused, but the money was paid to the owner of the premises to be given to defendant when all the things were in. The defendant gave evidence tending to show that the contract was for five dollars a load and that the load was full, and the plaintiff refused to pay unless all the furniture was brought for the five dollars. The defendant stored the load of furniture. The court found in favor of the defendant. This finding establishes that the agreement was for five dollars a load; that the load carried and offered was a full load. That there was furniture left and that the plaintiff refused to pay five dollars a load, but demanded all for five dollars.

The appellate court was bound by these findings and the judgment should be reversed and the judgment of the justice affirmed,, with costs.

Dykman and Pratt, JJ., concur.


text:
    Ann Eliza Wilcox, App’lt, v. Charles J. Quinby, Ex’r, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Trustee—Removal—Pleading.
    A complaint in an action to remove a trustee alleging a devise to executors in trust to divide into portions and apply the same to the support of plaintiff and others; that the trustee, who was one of the beneficiaries, took possession and has retained the same undivided over twenty years, and that hut an insignificant part of the income has been paid to plaintiff, states facts sufficient to constitute a cause of action.
    Appeal from judgment entered on decision dismissing the complaint on the ground that it does not state facts constituting a cause of action.

      James Flynn (F. II. Benn, of counsel), for app’lt; M. M. Silliman ( Wm. P. Fiero, of counsel), for resp’*
   Barnard, P. J.

In April, 1869, Daniel Quinby died leaving-a last will and testament, which was admitted to probate in Westchester county in May, 1869. The will contained provisions for the support of the testator’s wife during her life; but as she died before the testator, those provisions are immaterial. At the death of the wife the entire estate was directed to be divided in three equal parts; one of these parts was to be applied to the support of the testator’s three children for life, with remainder to their children. Challes J. Quinby is one of them and he is also one of the executors.

The complaint avers that the executor Quinby, with the acquiescence and. permission of his co-executor, took immediate possession of land and personal property of deceased, and that but an insignificant part of the income has been paid over to the plaintiff. That the executor Quinby either has the income of the estate or has applied it to his own use. The complaint asks for the removal of the executor and trustee, and that a new trustee be appointed; that the directions in the will be carried out. The executor made answer to the complaint, but the complaint was dismissed because it did not state facts sufficient to make a cause of action.

If the complaint is true the plaintiff ought to have some relief. The executors have retained the estate undivided over twenty years, and one executor has, with the assent of his associates, with intent to defraud the other heirs, taken possession of the entire estate and kept it for his own purpose. There may be an absence of proof on the trial, but there is none of averment which should permit a party to offer evidence.

The judgment should be reversed and a new trial granted, costs to abide event.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    The People ex rel. Henry Silkens v. John McGlyn et al., composing the Board of Excise of New Utrecht.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Excise—Revocation oe license.
    A board of excise cannot revoke a license without satisfactory proof of a violation of its conditions, and after an opportunity has been afforded the accused to be heard and to produce witnesses. The mere assurance of guilt by men of good character is not sufficient for that purpose where the guilt is denied by the accused party.
    2. Same.
    An order of the board revoking a license is subject to review.
    Certiorari to review the action of defendants in revoking relator’s license.

      John H. Kemble, for relator; James C. Church, for def’ts.
   Barnard, P. J.

The revocation of the license was without legal justification. The.license is granted on conditions. It may be revoked for a violation of these conditions, or a violation of •any of them. Complaint was made against the relator to the board of excise averring that the relator kept his saloon open at irregular hours, and that the house was disorderly. The hearing was set down for July 13,1891. The relator appeared and denied the charges. The board vacated the license without proof other than that inferred from the character and standing of the complainants. The excise act, chap. 549, Laws of 1873, § 4, intended to give the accused a hearing and power to obtain witnesses. The board of excise must be satisfied of the relator’s violation of the terms of his license. This does not mean that an assurance of guilt by men of good character should be sufficient when the guilt is denied by the accused party. The decision is subject to review. People ex rel, etc., v. Forbes, 52 Hun, 30; 22 St. Rep., 278.

The order of the board of excise should therefore be reversed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Adrian Iselin, Resp’t, v. Sarah Smith et al., Appl’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Discontinuance—Counterclaim:.
    This action was brought to restrain defendants from interfering with a fence plaintiff had erected across what he claimed to be his private road. The answer alleged that the road was a public highway and asked an injunction to restrain plaintiff from building a fence at that place. Held, that this constituted a counterclaim which defendants should not be deprived of proving and that a discontinuance of the action should not be allowed except upon stipulation not to deprive defendants of access to the road.
    Appeal from order granting leave to discontinue.

      Cornelius K. Kene, for appl’ts; Martin J. Keogh, for resp’t.
   Barnard, P. J.

The plaintiff fenced in what he asserts to be Bis private road. This road runs along in front of defendants’ premises. The fence cut them off from the road and they tore it down. The plaintiff commenced an action to restrain the defendants from interfering with this fence. The defendants answer that they have a right to use the road by them deed and because the road was a public highway.

The defendants ask by the answer an injunction to restrain plaintiff from building up the fence. The plaintiff asked leave to discontinue on payment of costs and disbursements. Leave was granted and the defendants appeal. By the answer a counterclaim is set up and if proven will entitle the defendants to the affirmative relief of an injunction based upon a right to use the road shut up. The defendant should not be deprived of her right to prove her title to the road. As the case now stands, the inference is very strong against the plaintiff. He has shut up an open road, claiming it to be his private property. The defendants assert a right and the plaintiff commences an action for an injunction against them. The defendants admit the destruction of the fence by them and a determination to again destroy it if constructed. The plaintiff ought not to be permitted to discontinue his action unless upon stipulation to never again close the defendants from access to the road. If he is not willing to do this, let the defendants have an opportunity under'the answer to prove their defense and get an affirmative judgment.

Order reversed, with costs and disbursements, and motion denied, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


author: Per Curiam.

text:
    John J. P. Read, Resp’t, v. The Marine Bank of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Banks—Certificate of deposit—Recovery upon lost.
    Plaintiff made deposits with defendant and received certificates therefor. He demanded repayment, claiming that the certificates were lost, and tendered a bond, which was refused. The executor of plaintiff’s sister had possession of the certificates, but it appeared that his sister had taken them without plaintiffs knowledge or consent. Held, that as the facts were the same as in Bead v. Bank of Attica, this court was hound hy the-decision of the court of appeals in that case, and that a judgment in favor of plaintiff should he affirmed.
    Appeal from a judgment entered in Erie county, October 6,. 1890, upon a verdict at the circuit directed by the court, a.ncl from an order denying the defendant’s motion for a new trial made upon a case and exceptions.

      Benjamin IT. Williams, for app’lt; 0. 0. Cottle, for resp’t.
   Per Curiam.

This cause was argued before us at the January term, 1891, and in an opinion delivered by the presiding justice-in March following the judgment was reversed and a new trial granted. Read v. Marine Bank of Buffalo, 59 Hun, 578; 37 St. Rep., 424. Upon application by the .plaintiff’s counsel at the June term a reargument was granted. The case has been again argued and submitted to us.

The reargument was granted for the reason that the court of appeals had affirmed our judgment in the case of Read v. Bank of Attica, 55 Hun, 154; 28 St. Rep., 650; Read v. Bank of Attica, 124 N. Y., 671; 36 St. Rep., 894, except in the matter of interest upon the deposit. But such exception has no application to this case. Upon the first hearing we thought that for certain considerations in the opinion particularly named, and which were not, as we believed, fully considered and passed upon in the case of Read v. Bank of Attica, supra, there could be no recovery by the plaintiff so long as the certificates of deposit, the ground work of the action, were in the possession of the husband of the plaintiff’s-sister, who claimed title thereto as executor of her last will and testament. The reasoning in that opinion and the authorities there cited, it is claimed by the counsel for the plaintiff, would have had the same bearing in the case of Read v. The Bank of Attica, supra; and that, consequently, though the same was not applied to the former case, yet the affirmance by the court of appeals of the judgment in the former case necessarily carries with it an affirmance of the judgment in this case. The judgment of the court of appeals in the case of Read v. The Bank of Attica, 124 N". Y., 671; 36 St. Eep., 894, was pronounced a month after our decision was made in this case. If the decision of the court of appeals necessarily carries with it a like decision in this case, we should, without hesitation, recede from our former opinion and affirm this judgment.

This action was brought to recover the amount of two deposits made by the plaintiff, to whom the usual bank certificates of deposit had been issued, payable to the plaintiff or his order. Before this action was begun a demand of payment of each certificate was made upon and refused by the defendant. Neither of the certificates was produced by the defendant and offered to be surrendered ; but, on the contrary, information was given to the defendant by the plaintiff to the effect that the certificates were lost. A bond, accordingly, under the statute, 2 E. S., 406, §§ 75, 76, was tendered, but refused by the defendant In the meantime one Eockwell, the husband of the plaintiff’s sister, exhibited to the defendant the certificates of deposit in question, and claimed that he held them as the executor of his wife’s last will, and claimed to own them in such representative capacity. No dispute is made in regard to the fact of the deposits, or that the same were made by the plaintiff himself. Nor is the further fact disputed that the plaintiff has nbt the possession of the certificates, or either of them, or that they are in the hands of Eockwell.

The latter, in fact, in pursuance of the command of a subpoena duces tecum, produced these certificates upon the trial, and they, after being put in evidence, were impounded by the court and directed to be cancelled by the clerk and to remain on file, which accordingly was done. As was stated on the former appeal, the plaintiff testified that be and his sister lived together before her marriage to Eockwell; that during that time he had the certificates in his possession in a desk in the house, from which they were taken without his knowledge or consent, and that after the sister went away he missed them, and on application to her she admitted having taken them and promised to restore them to him, but that she never did so; that the action which he began against her to recover possession of the certificates was never prosecuted, to judgment, and that when, after her death, he asked Eockwell for the certificates, the latter denied that he had them or knew where they were. No evidence was offered by the defendant to show that the plaintiff ever transferred the certificates to his sister, or that the moneys represented by them were originally the moneys of Mrs. Eockwell. The evidence, indeed, with great conclusiveness, showed that the plaintiff’s sister obtained possession of the certificates without any claim of right thereto.

In principle, the case of Read v. The Bank of Attica, ubi supra, cannot be distinguished from this one. In both cases the certificates of deposit were issued and made payable to the plaintiff or his order, and in each case the certificates were removed by his sister without the plaintiff’s knowledge, and, when remonstrated with, the sister promised to return them, but died without doing so. Indeed, the certificates in this case were in the same bundle with the certificates in the case of Read v. The Bank of Attica. The answers in both cases were substantially the same. In this case, the first answer was a general denial; the second admitted the deposit by the plaintiff of the moneys represented by the certificates. It affirmatively alleged, that the certificates were never-presented to the defendant for payment, nor returned to the bank ; that the plaintiff admitted that they were in the hands of Eockwell, the executor of the last will of the plaintiff’s sister, who claimed to be the owner and holder thereof, and the same were the property of Mrs. Eockwell at the time of her decease.

The fourth answer is as follows: “ This defendant further answering upon information and belief, says that the plaintiff is not now in possession of nor the owner of said written instruments, or either of them, but that the same were by .him, before the beginning of this action, transferred to one Elizabeth A. S. Eockwell, the executor of whose last will and testament, said George W. Eockwell, is now in possession thereof, claiming to be the owner and holder thereof, and to be the owner of and entitled to the money so received by the defendant aforesaid, and the said George W. Eockwell, as such executor aforesaid, has demanded such moneys of the defendant.” ■ Thence follow allegations that the property belonged to Mrs. Eockwell and not to the plaintiff.

In the case of Bead v. The Bank of Attica, the answer was : 1. A general denial. 2. An admission of the issuance of the certificate of deposit, upon a deposit of moneys made by the plaintiff to the defendant in that action; that the plaintiff after receiving such certificate never presented the same to the defendant for payment, nor returned it, but has admitted that the same is now no longer in .his possession, but under the custody and control and in the possession of Eockwell, the executor of the will of Mrs Eockwell, deceased, “who claims to be the owner and holder thereof and entitled to the moneys secured thereby.” The fourth subdivision of the answer is as follows: “ This defendant further answering upon information and belief, says that the plaintiff is not now in possession of nor the owner of said written instrument, but that the same was by him, before the beginning of. this action, transferred to one Elizabeth A. S. Eockwell, whose executor, said George W. Eockwell, is now in possession thereof, claiming to be the owner and holder thereof, and to be the owner of and entitled to the moneys so received by the defendant as aforesaid, and the said George W. • Eockwell, as such executor as aforesaid, hath demanded such moneys of said defendant.” 1

It will thus be seen that the issues in the above actions were precisely the same, as presented by the pleadings. The trial in each case developed the same facts upon all contested questions. Hence we are of the opinion that the affirmance of the court of appeals of the judgment of the case of this plaintiff against the Bank of Attica necessarily carried with it the affirmance of the judgment in this case. By reason, therefore, of such decision, made subsequently to the former judgment of this' court in tiiis action, we think, notwithstanding the expression of our former views, that the judgment appealed from should be affirmed.

Judgment and order appealed from affirmed.

Dwight, P. J., Macomber and Lewis, JJ., concur.


author: Macomber, J.

text:
    The People, Resp’ts, v. Stephen Tower, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Forgery.
    The crime of forgery in the second degree as defined in § 511 of the Penal Code is distinct and separate from the crime of uttering and putting off forged paper under § 521, although each crime' is forgery in the second degree.
    3. Same—Indictment—Waiver of objections.
    An objection to the improper joinder of two crimes in one count in an indictment is waived by the failure of defendant to demur to it on that ground.

      3. Same.
    An objection on the ground that defendant was not arraigned upon the indictment and did not plead thereto, is waived by his going to trial on the merits, and cannot be raised for the first time after conviction.
    Appeal by the defendant from a judgment of the Niagara county sessions, entered on verdict of a jury, December 19, 1890, convicting him of the crime of forgery in the second degree.

      Richard Crowley, for app’lt; P. F. King, for resp’ts.
   Macomber, J.

The indictment charged the defendant with feloniously writing or endorsing the name of John Diez upon the back of a promissory note, and of uttering and putting off the same to one Sidney S. Cross. The note was dated at Loclcport, N. Y., April 14, 1890, and is as follows:

“ $156.00.
“ Seven months after date I promise to pay to the order of E. A. Longstaff, one hundred and fifty-six dollars at the Merchants’ Bank, Loclcport, N. Y. Value received, with interest.
“ (Signed) Stephen Tower.”

On the back of the instrument was the genuine endorsement in writing of one E. A. Longstaff. It is alleged in the indictment that by the endorsement of the name of John Diez a pecuniary demand purported to have been created, and by which endorsement the said Diez might be bound, affected or injured in his property, and that, with intent to defraud the said John Diez feloniously, the defendant did fraudulently make, forge, utter and put off the said note and endorsement, as true, to one Sidney S. Cross, against the form of the statute, etc.

The indictment, in the accusing part thereof, charges the defendant with the crime of forgery in the second degree. This crime, Penal Code, § 511, is distinct and separate from the crime of uttering and putting off forged paper, under § 521, though each crime is forgery in the second degree. Erom this it is argued, by the learned counsel for the appellant, that the two crimes ought not to be joined in one count. If there existed any objection to the indictment of this nature, we are of the opinion that the same was waived by the failure of the defendant to demur to it on that ground. Code Grim. Pro., §§ 323, 331. The verdict was, that the defendant was guilty as charged in the indictment. Being general in its terms, it was, under the indictment, a finality in respect to both the making and the uttering of this forged paper; so that the defendant cannot again be convicted of the crime of forging or uttering it.

Other points are made in the brief of the learned counsel for the appellant, but they do not, in our judgment, merit special attention. They relate to the failure of the case to show that the defendant was ever arraigned upon the indictment, or that he pleaded thereto. These matters were waived by the defendant going to trial upon the indictment upon the merits of the charge, and cannot be raised for the first time after a conviction, inasmuch as there was nothing in these omissions which tended to prejudice the rights of the defendant, and, consequently, they should be disregarded. Code Crim. Pro., §§ 285, 684; People v. Johnson, 110 N. Y., 134; 16 St. Rep., 846; People v. Myers, 2 Hun, 6; People v. Bradner, 107 N. Y., 1; 10 St. Rep., 667; People v. McHale, 39 id., 758.

We have looked into the testimony contained in the case upon the merits, and find that there was ample evidence to sustain the verdict and the judgment of the court entered thereon, upon the ground that the defendant feloniously uttered and put off as genuine the forged endorsement of Diez.

It follows, therefore, that the judgment and conviction should be affirmed.

Judgment and conviction appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.


text:
    In the Matter of the Proof and Probate of the Will of Cornelia L. Shrader, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Will—Construction — Power or surrogate — Code Civ. Pro., §2624.
    Section 2624 of the Code confers no power on a surrogate to make a construction of a will of real and personal property, or pass upon the validity of any of its parts, where there is no disposition of personal property independent of and separable from the disposition of the real estate. The jurisdiction of the surrogate under that section is confined to “any disposition of personal property.”
    Appeal by J. Albert Shrader and Edward Y. Shrader, next of kin and heirs at law of Cornelia L. Shrader, and legatees named in her will, from a decree of the surrogate of Cayuga county, entered July 2, 1891, admitting her will to probate, and construing the same, except as to that part of such decree which adjudged the will to have been" properly executed and that it was valid, and which admitted the same to probate.

      Teller & Hunt, for app’lts; G. G. Baldivin, for resp’t.
   Macomber, J.

No question arises upon this appeal touching the sufficiency and proof of the will, and of the disposing mind of the testatrix. The appellants, at the time of the return of the citation, filed an answer which put in issue the validity, construction and effect of certain portions of the will, and went to trial thereon before the surrogate. Section 2624 of the Code of Civil Procedure provides as follows: “ But if a party expressly puts in issue before the surrogate the validity, construction or effect of any disposition of personal property contained in the will of a resident of the state, executed within the state, the surrogate must determine the question, upon rendering a decree; unless the decree refuses to admit the will to probate by reason of a failure to prove any of the matters specified in the last section.”

The surrogate has, by rejecting or ignoring the second provision of the will, made a construction which the appellants deemed to be unfavorable to them. The first section of the will devised all of the property of the testatrix in this state, both real and personal, to trustees, under a trust for the payment of the rents and profits, and interest, to the appellants, who were her children, with a provision for the final payment of the principal ■over to them. The second item of the will was to the effect that, ■if any of the testatrix’ heirs should die leaving a wife and children, and if, in the judgment of the trustees, the portion of .the estate was “ needed more for the maintenance and support of the other heir or heirs of my body, or their legal representatives, ■then my trustees shall retain the same in trust, as under firstly, or pay over the same to such heir or heirs, as hereinbefore stated, otherwise to be administered as under firstly of this instrument.” By the third item it was provided that, if her children “ die leaving no heirs, .then all my property and estate, both real and personal, ■shall be'divided, share and share alike, to my surviving brothers .and sisters, or their legal representatives.” By the fourth provision, she appointed two trustees of the will, namely, her sister, Mary 0. Hale, and her brother, William Seward Hale. Mary C. Hale having died, William Seward Hale is the surviving executor and trustee under the will.

Without construing or determining the effect of these several ■provisions of the will in question, we are of the opinion that the .surrogate did not have jurisdiction to make any construction of the will, or to declare any provision thereof valid or invalid. The ¡surrogate’s court is one of well defined and limited, although of extensive jurisdiction. It can exercise only those powers which are ■given to it by statute, and such incidental powers as are required ¡to the proper exercise of the powers expressly conferred. Unless, .therefore, a warrant for the exercise of its jurisdiction of the particular -case can be found in the statute, either expressly or by necessary implication, any judgment pronounced by that tribunal ;is void. Riggs y. Cragg, 89 N. Y., 479; Seaman v. Whitehead, 78 id., 308.

Until the enactment of this section of the Code of Civ. Pro., the surrogate.’s court had no power, on the probate of a will, to determine the validity of any of the provisions of the will, or to make any decree thereon, except either to admit it to, or reject it from, probate, save only that a special statute, relating only to the surrogate’s court of the county of Hew York, chap. 359 of the Laws of 1870, conferred such power.

The will before us is one of both real and personal property. 'The deceased, at the time of her death, owned a house and lot in Union Springs, in Hew York, and an interest in other real ■estate in the town of Elbridge, Hew York. Her personal property amounted to about $3,000. It does not appear whether the personal estate would or would not be sufficient to pay her debts. The jurisdiction of the surrogate, at the time the will was offered to probate, to make any construction thereof, or to pass upon the ■validity or effect of any part thereof, is confined to “ any disposition of personal property.” In this case there is no disposition of •personal propert)r, except as it is connected with the disposition of the real estate of the testatrix. It would be impossible to ■separate the disposition of the personal property from that made of the real estate. They are essentially connected, and not separable. The surrogate himself finds that the will is one of both real and pe nal property, and he attempts to make no restriction of his construction, so as to confine it to the disposition made of the personal property alone. But we are of the opinion, under this section of the Code, and under the common law limitation of the power of the surrogate’s court, that the surrogate had no jurisdiction to make a construction of this will, or pass upon the validity of any of its parts, because there was no disposition of personal property independent of and separable from the disposition of the real estate.

It follows that so much of the decree as makes a construction of the will, and passes upon the validity of any portion thereof, should be reversed.

That part of decree appealed from reversed ith costs of appeal to both parties, payable out of the estate.

Dwight, P. J., and Lewis, J., concur.


text:
    Emma C. Morse, App’lt, v. V. Moreau Smith, Ex’r, et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Executors and administrators—Inventory—Jurisdiction on supreme court.
    The supreme court has no jurisdiction of an action to compel the delivery of personal property to an executor, and its inclusion in the inventory, in the absence of any allegation that the surrogate's court, in this respect, cannot grant the relief sought. In the absence of such allegation the administration and settlement of decedent’s estates must be deemed to belong exclusively to the surrogate's court.
    Appeal by the plaintiff from an order for a judgment, and from the final judgment, entered in Wayne county, June 24,1891, sustaining the demurrer of the defendants to the complaint, upon findings that, first, the court had no jurisdiction of the subject matter of the action; and, second, that the plaintiff’s complaint-does not state facts sufficient to constitute a cause of action.

      S. K, Williams, for app’lt; David Hays, for resp’ts.
   Macomber, J.

The purpose of this action is to compel the-defendants, Helen E. Smith and Emilie S. Smith, to deliver to-the defendant Y. Moreau Smith, as executor, etc., certain articles of personal property, and to require the latter to include such property as assets of the estate of Emma Herrick, deceased, of whose last will and testament he is the executor; and also to inventory such property as a part of the personal property of the estate of the testatrix, and to make final disposition .of such property according to the terms and provisions of such will.

The complaint shows, that the plaintiff is one of the legatees under the last will of Emma Herrick, deceased, the latter having died on the 12th day of June, 1890, leaving a will which is set forth. Such will was admitted to probate on the 13th day of July, 1890, by the surrogate of Monroe county, and letters testamentary thereon were duly issued to the defendant, Y. Moreau Smith. It is shown that, at the time of her death, the testatrix owned and possessed diamonds, diamond earrings, and other jewels, cameos, and amounting in all, with certain articles of seal skin and cashmere wearing apparel, to the sum of $9,800; and that such property came into the possession and under the control of the defendant, V. Moreau Smith, as executor. The complaint then proceeds as follows:

“ That,, as plaintiff is informed and believes, said Y. Moreau Smith, said executor, willfully and wrongfully parted, or is intending to part with the possession of said personal property, and delivered the same to the defendants, Helen E. Smith and Emilie S. Smith, and that said personal property is now wrongfully in the possession of the defendants Helen E. Smith and Emilie S. Smith.
“ That said Y. Moreau Smith, said executor, has filed his pretended inventory of the assets of the estate of the said Emma Herrick, deceased, but that he has willfully and wrongfully neglected and refused to include said personal property, or any part or portion thereof, in his schedule of assets of said estate, set out in his said inventory, and .still neglects and refuses so to do, though often requested and demanded by plaintiff so to do.
“ That the amount of the inventory of said estate as now made and filed by said executor is $75,800.36, or thereabout, as plaintiff is informed and believes, and said inventory does not include any of said articles hereinbefore mentioned, and said Y. Moreau Smith, executor, has refused to take possession of the said articles of personal property, or any of them, and has refused to place the same among the assets of such estate, or to include the same as part of said estate or become responsible for the same or account for the same as part of said estate, although often demanded and requested so to do.
“ That said articles of personal property are wrongfully withheld from said estate, as aforesaid, by' defendants, and are in danger of being taken by them to their own use and to the loss of the estate and of plaintiff. That as plaintiff is informed and believes, the said defendants, Emilie S. Smith and Helen E. Smith, claim to own the said articles of personal property hereinbefore set forth, and set up a claim thereto, either as gifts from said Emma Herrick, or by reason of some direction given by her to them, or one of them, authorizing them, or one of them, to bestow the same and dispose of the same ; and the plaintiff alleges that said claim of said defendants, Helen E. Smith and Emilie S. Smith, and each of them, is unfounded and pretended and without any validity whatever, and that said defendants, Helen E. Smith and Emilie S. Smith, have no valid claim, nor has either of them, nor any right or title to said articles, or to any of them.”

By the will the testator gave one-half of the residue of her estate to the executor of the will, in trust, to invest the same in proper securities and pay over the income thereof to the plaintiff during her natural life.

The defendants, separately, interposed demurrers to ■ the comnlaint upon the following grounds :■ First, that the court had not jurisdiction of the subject of the action; and, second, that the complaint did not state facts sufficient to constitute a cause of action. Upon the hearing at the special term the demurrers were sustained upon both grounds, with the conclusion that the defendants were entitled to final judgment thereon dismissing the complaint. From that direction and judgment this appeal is taken.

That the supreme court has jurisdiction of all questions pertaining to estates of deceased persons in any aspect in which they may arise admits of no doubt; provided, however, the proper facts are stated so as to enable the court to say, that under its general ■equity jurisdiction, Const., art. 6, § 6, it is its duty in the particular instance to interpose its arm and supersede the surrogate’s court. But unless such special facts are stated, there is provided by law, chajD. 18 of the Code of Civil Procedure, a complete system of procedure for the administration of such estates in the surrogate’s courts alone, and unless some allegation is made when the jurisdiction of the supreme court is invoked, showing that there is likely to be a failure of justice unless the supreme court assumes jurisdicdiction, the administration and settlement of decedent’s estates must be deemed to belong exclusively to the surrogate’s court. Pomeroy’s Eq. Jur., §§ 348, 349 and 1154; Chipman v. Montgomery, 63 N. Y., 221, Anderson v. Anderson, 112 id., 104; 20 St. Rep., 344.

Among the facts stated in the complaint, there is no allegation that for any reason full justice may not be had in respect to the uninventoried property by the proceeding in the surrogate’s court. Taking the allegations of the complaint in their broadest sense, there appears to be nothing alleged which would warrant this court in assuming to wrest the business of the settlement of this ■estate from the ordinary channels. The remedy is open to the plaintiff to require the executor to file a further inventory, if the first inventory failed to disclose all of the property belonging to the estate.

We have given much attention to the elaborate argument made by the learned counsel for the appellant, and to the authorities ■cited in his brief. The case upon which he so much relies, namely, Miller v. Clark, 138 U. S., 223, does not appear to us to bear directly upon the question. In that case jurisdiction was assumed by the circuit court of the United States, because it was alleged that the plaintiff was a citizen of another state than that of the defendants. That fact alone conferred jurisdiction upon the federal court. As a court of equity, it had no general jurisdiction for the settlement of decedent’s estates. Broderick's Will, 21 Wall, 503; Ellis v. Davis, 109 U. S., 485.

In all controversies between citizens of different states, though there be no other ground, the federal court has jurisdiction. Gaines v. Fuentes, 92 U. S., 10. To this rule executors, administrators and trustees under wills are not exceptions. Coal Co. v. Blatchford, 11 Wall., 172; Childress v. Emory, 8 Wheat., 642 ; Rice v. Houston, 13 Wall., 66.

We are of the opinion that special facts and circumstances must he set out, in order, under the jurisprudence of this state, to induce the supreme court to take jurisdiction of the settlement of the estates of decedents; and that, there being in this case an absence of any allegation showing that the surrogate’s court, in this particular instance, is inadequate, the demurrers were properly sustained by the special term.

Our attention has been called by the appellant’s counsel to the case of Cass v. Cass, 41 St. Rep., 36, decided since the argument of this appeal. If the complaint in that action contained no allegation showing the existence of special facts as reasons for taking the accounting out of the surrogate’s court, and of this there appears to be some doubt in the report of the case, we must, but with great respect to that court, adhere to our opinion.

It follows, therefore, that the order and judgment appealed from should be affirmed.

Judgment and order appealed from affirmed, with costs,

Dwight, P. J., and Lewis, J., concur.