author: Andrews, J.

text:
    Maria Anna Vogel, Resp’t, v. Maria Lucia Lehritter et al., Respt’s, and Charles Lehritter, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    "Will—Foreign—Execution.
    The will in question, purporting to devise real estate in this state, was executed in a foreign country, in accordance with its law, as follows: The testatrix subscribed the will in the presence of the notary alone, _ and it was then enclosed in an envelope, which was sealed. The testatrix then declared, in the presence of two witnesses, that the envelope contained her .last will, and a statement to that effect upon the envelope was signed by the notary and witnesses, and the same statement upon a separate paper was signed by the testatrix, witnesses and notary, and the papers deposited with the notary. Held, that such will was not executed in accordance with the law of this state, and did not constitute a valid will of real property situated in this state.
    Motion for a new trial upon exceptions, after the entry of an interlocutory judgment pursuant to the report of a referee.

      Robert E. Deyo, for app’lt; Frederick W. Holls, for pl’ff-resp’t; Richard M. Bruno, for def’t-resp’t Heer; Emile Schultze, Jr., for def’ts-resp’ts, M. L. Lehritter and O. A. Vogel.
   Andrews, J.

This action is brought for the partition and sale of certain real property situated in the city of Hew York. The complaint alleges that an apparent devise made by one Maria Anna Lehritter is void, and that said Maria died intestate as to said realty, 'and that it descended to. her heirs at law and their grantees, the plaintiff and the defendants. The defendants-respondents make substantially the same claim. The defendant-oppellant, Charles Lehritter, claims that certain paper writings constitute a valid will of the said real property, and that they contained a valid devise thereof to him, and he seeks to establish such paper writings as a valid will of real property. The issues were referred to Hamilton Odell, Esq., who reported in favor of the plaintiff and the defendants-respondents, and against the defendant-appellant, Charles Lehritter, sustaining the material allegations of the complaint, and refusing to establish the writings as a will of real property. An interlocutory judgment was entered pursuant to such report; and this is a motion for a new trial on the case and exceptions, and. an appeal from said interlocutory judgment taken by the defendant Charles Lehritter.

The opinion rendered by the referee was as follows: “ This action is brought for the partition of certain real estate, known as Hos. 307 and 309 West Thirty-eighth street in the city of Hew York, which was owned by Maria Anna ■ Lehritter at the time of her death on the 25th of January, 1890. The plaintiff alleges that, as to such real estate, the said Maria Anna Lehritter died intestate, and she claims title to an undivided one-third interest therein as grantee of certain next of kin and heirs at law of the said deceased. The defendant, Charles Lehritter, denies the allegation of intestacy, and claims the entire premises under certain writings executed by the said Maria Anna Lehritter, at Wurzburg, in Bavaria, on the 13th of October, 1882, which it is corn tended constitute a valid last will and testament. The sufficiency of such writings as a will of real property situated within this state is the question submitted for decision.

“ Mrs. Lehritter was a citizen of the state of Hew York, but for many years prior to her death had resided in Wurzburg, where she died. It is a stipulated fact that on October 13, 1882, at her request, one Ulrich Huth, Boyal Bavarian Hotary, 1 formulated in the German language a paper writing, which having been read to and understood by her, she thereupon subscribed her signature thereto, at the end of the said paper writing, in the presence of the said Huth only.’ Thereby she appointed the plaintiff, then Maria Anna Lehritter, her ‘ sole and universal heir and legatee ;’ but it was provided that the said legatee should be bound to pay certain specified legacies, and that the defendant Charles Lehritter should receive the two houses and lots in West Thirty-eighth street above referred to. The writing concluded with these words: ‘ This is my free, well considered last will, whichT have myself read and signed in execution. Wurzburg, the thirteenth day of October, one thousand eight hundred and eighty-two. Maria Anna Lehritter.’ Immediately after the said writing was so subscribed by Mrs. Lehritter, it was placed by her in an envelope which was sealed by her with her private seal, which bore the letters ‘ M. A. L., New York.’ Thereupon the said Huth, in her presence, wrote upon the outside of the envelope as follows: ‘ Testament of Mrs. Maria Anna Lehritter, widow of a private citizen here. The undersigned royal notary hereby certifies by his signature and that of the two witnesses who were called in, with the addition of his official seal, that, according to the oral declaration of Mrs. Maria Anna Lehritter, there is contained in this envelope her last will. Wurzburg, the 13th of October, 1882.’ Immediately thereafter the words so written upon the envelope were read aloud to the said Maria Anna Lehritter and to two competent witnesses (Johann George Gutbrod and Franz Jaeger) called in by the said Huth, and in the presence of said witnesses the said envelope, containing the said paper writing, was handed to the said Huth by Mrs. Lehritter, she at the same time making this declaration: In the envelope which I have just handed you there is contained my last will. In case this should not be legal - as a last will and testament, I wish to have it carried into effect as a codicil, gift causa mm'tis, or in any legal way possible, and it is the result of my free will. At the same time I revoke all former testamentary documents and directions, especially the testament which was made before the present notary on the fourteenth day of August, one thousand eight hundred and seventy-five, and declare the same to be revoked and null and void.’ And then, at Mrs. Lehritter’s request, and in her presence, and in the presence of each other, the said Huth, Gutbrod and Jaeger signed their names as witnesses on the said envelope at the end of the statement which had been written thereon by the said Huth after the said envelope had been sealed as above narrated, the said Huth accompanying his signature with his official seal. The said envelope contained nothing but the said paper writing formulated by Huth and subscribed by Mrs. Lehritter as her free, well considered last will,’ and bore no endorsement or inscription except the statement written thereon by the said Huth, 'and attested by the signatures of himself and the two other witnesses.

“The said statement having been so attested, the following took place (I quote the entire ninth section of the stipulation):

“ Immediately thereafter, and in the presence of all the persons before named, the said notrary drew the following instrument:
“ To-day, on the thirteenth d'ay of October, one thousand eight hundred and .eighty-two, there appeared before me, Ulrich Huth, Boyal Bavarian Notary, with an office at Wurzburgh, in my office in this place, Mrs. Maria Anna Lehritter, born Boetzel, known to me with respect to her name, position and residence, and requested me to receive upon deposit her last will. After I had then procured two documentary witnesses in the persons of two men known to me with respect to their names, position and residence; 1. Johann Gfutbrod, grinder; 2. Franz Jaeger, blacksmith, both of this place, against whom there were, according to their own statements, no objections which made them incapable of being witnesses, and had also convinced myself by a suitable conversation" with Mrs. Maria Anna Lehritter of her intellectual capacity to dispose of her property, Mrs. Maria Anna Lehritter handed to me an envelope with the superscription; Testament of Mrs. Maria Anna Lehritter, widow of a private citizen here, sealed once with a private seal, which bóre the letters, M. A. L., New York; and thereupon declared orally: In the envelope which I have just handed you there is contained my last will. In case this should not be legal, I wish to have it carried into effect as a codicil, gift causa mortis, or in any legal way possible, and it is the result of my free will. At the same time I revoke all former testamentary documents and directions, especially the testament which was made before the present notary on the fourteenth day of August, one thousand eight hundred and seventy five, and declare the same to be revoked, and null and void.’
“Thereupon I, the notary, through my signature with the above, the witnesses, and with the addition of my official seal upon the envelope, did certify that, according to the oral declaration of Maria Anna Lehritter, in this envelope there is contained her last will, and have received it among my official documents. About these proceedings I, the notary, have drawn this present document, read it to Mrs. Maria Anna Lehritter and both the witnesses, in the uninterrupted presence of all of whom, with me, the notary, all these proceedings had taken place, and have signed it in company with all.
‘ In testimony thereof,
‘ Maria Asm Lehritter.
‘ John George Gutbrod,
‘ Franz Jaeger.
‘ [l. s.] Huth,
‘ Royal Notary.'
This instrument was written upon a separate piece of paper, and .was never at any time attached mechanically to the said sealed envelope, but the said paper was folded in the middle, and then, in the presence of all the parties named, the said sealed envelope was by the said Huth placed loosely between the leaves of the folded paper and deposited by him among his official documents in a place in the office of the said notary kept for that purpose, where all the said papers remained undisturbed until after .the death of the testatrix.’ After her death the said notary deposited a certified copy of the said instruments, together with the said sealed envelope containing the paper writing first above mentioned, with the Royal District Court, No. 1, in Wurzburg, but the instrument itself he retained in his own possession.
“ It is admitted that the several acts above recited as having been performed on the 13th of October were pursuant to, and in compliance with, the provisions of Bavarian law, and that a valid will for the passing of title to real estate situated in Bavaria was thereby made. This fact, however, is not important, except as an explanation of the rather novel proceedings of the royal notary, for it is a settled rule ‘that to make a valid disposition of immovable property by deed or by a last will and testament, the lex loci rel silos must govern, and the instrument must be executed in conformity to that law.’ Moultrie v. Hunt, 23 N. Y., 410; White v. Howard, 46 id., 159.
“ The formalities required in the execution of a will are prescribed by the statute, and they must be substantially complied with or the instrument has no validity. Lewis v. Lewis, 11 N. Y., 220. There must be a subscription by the testator at the end of the will, made in the presence of two attesting witnesses, or acknowledged by him to each of the witnesses to have been so made; a declaration by him at the time of the subscription or the acknowledgment that the instrument subscribed by him is his last will and testament; and the witnesses must sign as such at the end of the will at his request. There is no valid execution of a will unless the witnesses see the signature of the testator. His declaration that the instrument which he requests them to attest is his last will is not sufficient if his signature thereto is not exhibited. Matter of Mackay, 110 N. Y., 611; 18 St. Rep., 558. Such a declaration is not an acknowledgment of his subscription within the meaning of the statute. Mitchell v. Mitchell, 16 Hun, 97; affirmed, 77 N. Y., 596. Subscription and publication are distinct acts. If either is omitted, the omission is fatal to the validity of the instrument. Lewis v. Lewis, supra; Baskin v. Baskin, 36 N. Y., 416. And both the testator and the witnesses must sign at the end of the will. ‘ Wherever the will ends there the signatures must be found, and one place cannot be the place for the purpose of subscribing by the testator, and another place be the end for the purpose of signing by the witnesses.’ Matter of Hewitt, 91 N. Y., 261.
“ The learned counsel for the defendant Oharles Lehritter concedes the correctness of these rules, and claims that they were all observed and that all the requirements of the statute were complied with on the occasion 'of the execution of the several writings above referred to. His contention is that these several writings, having been executed at the same time and in furtherance of a declared purpose, and that purpose the testamentary disposition by Mrs. Lehritter of all her estate, real and personal, wherever situated, must betaken and construed together as constituting a single instrument; that the indorsement on the envelope, and the final certificate of the notary (subscribed also by Mrs. Lehritter and the two witnesses), are to be regarded as continuations of the incomplete testamentary writing contained in the sealed envelope; that the end of the will, therefore, is the end of the notary’s certificate, where the testatrix and the witnesses set their names in the presence of each other, the witnesses signing at Mrs. Lehritter’s request and after her oral declaration to them or in their presence, that the envelope delivered by her to the notary contained her will; and that the fact that the said certificate was not attached mechanically to the envelope is of no materiality, the law not requiring the several pieces of paper on which a will may be written to be so attached.
“The last proposition may be accepted as true. In Ela v. Edwards, 16 Gray, 91, cited by the counsel, the court approved the rule laid down in Bond v. Seawell, 3 Burr., 1773, and followed in other cases, where all that was required was that ‘all the separate sheets of paper must be in the room and in the presence of the attesting witnesses.’ It is doubtful whether, within that rule, a paper enclosed in a sealed envelope can properly be said to be in the presence of the witnesses, although the envelope be produced and exhibited to them. The point, however, is 'not material,- for the controlling question is, whether the certificate which the notary prepared and sealed, and which was subscribed by all the parties, and to which Gutbrod and Jaeger affixed their signatures at Mrs. Lehritter’s request, is to be accepted as a part of the will which she executed that day, and by which she intended and attempted to dispose of her entire estate. A careful consideration of all the facts has convinced me that that question should be answered in the negative.
“Three papers or writings are mentioned in the stipulation. The first is the instrument in which Mrs. Lehritter directed how her estate should be disposed of and distributed. She entitled it her ‘ last will.’ In it she declared. This is my free, well considered last will, which I have myself read and signed in execution.’ It is the paper to which her signature was affixed in the presence of the notary only, and which she then enclosed in an envelope which she sealed with her private seal. When she delivered the envelope to Huth, in the presence of the witnesses, she said: In the envelope which I have just handed you is contained my last will.’ By the endorsement written upon the envelope, the notary and the two witnesses certified that it contained the last will of Mrs. Lehritter, according to her oral declaration.’ This statement is repeated in the third writing; the separate instrument which was signed by all the parties and sealed by Huth with his notarial seal.
“ As I understand the facts the first paper writing was com pleted when it was subscribed by Mrs. Lehritter. It was not after-wards changed in either of its provisions, nor was it resubscribed or reexecuted by her. The two witnesses who were called in by Huth were not summoned to attest the execution of a will by Mrs. Lehritter, but to attest the deposit of her executed will'in the office of the royal notary. This plainly appears from the third and final writing, which sets forth that on the 13th of October, Mrs. Lehritter appeared before the notary in his office in Wurzburg and requested him to receive upon deposit her last will.’ It had been already drawn up and subscribed, and enclosed in a sealed envelope, as before stated. Then Gfutbrod and Jaeger were called in, the envelope was produced by Mrs. Lehritter and delivered unopened to the notary, the declaration was made by her that the envelope contained her will; the certificate written upon the envelope was signed and sealed, and the notary received' the will ‘among his official documents.’ The final writing certifies to the formalities which attended the identification of the will, after execution and its deposit in a public office, and to nothing more. By no ingenuity of reasoning can it be converted into a component part of the will of which it speaks. It is an admitted fact that the several acts performed "by the notary, as recited in the stipulation, were * in compliance with the laws of Bavaria in relation to the execution, custody,' authentication and proof of wills and papers relating thereto.’ According to those laws a will may be inoperative and worthless unless identified and authenticated in a formal manner and deposited in a public office, but the writing by which it is authenticated is not incorporated into the will and made a part of it, nor is the execution and attestation of such a writing the execution and attestation of the will itself.
“ My conclusion is that Mrs. Lehritter left no will executed as our statute demands, and that as to the real estate in question she died intestate.”

We are of the opinion that the conclusion reached by the referee was correct, and we do not see that anything can be added to his opinion. The facts were not in dispute, and they are fully and accurately set forth in such opinion. The rules of law as to the formalities to be observed in the execution of wills of real property in this state are correctly stated, with full citations of decisions of the court of last resort supporting the same. Such rules of law are then applied to the admitted facts, and the conclusion is reached, from which we can see no escape, that the paper writings in question do not constitute a valid will of real property situated in this state.

We are of the opinion that the judgment should be affirmed upon the opinion of the referee.

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


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    In the Matter of the Petition of Hugh M. Stanfield, for the Payment of Interest Upon a Certain Legacy.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Will—Bequest in trust—Interest. ;

      A beneficiary under a will by which a sum of money is bequeathed in trust to invest and pay over the interest orlncome to him, is entitled to the interest from the date of the testator’s death.

      2. Same—Rate to be allowed.
    Where the fund for such investment has not been set apart, and in the absence of facts showing that the estate earned the full legal rate of interest, it is within the discretion of the surrogate to determine what rate shall be allowed, reference being had to the percentage of income of the appraised' value of the personalty.
    Appeal from an order of the surrogate.

      John Notman, for guardian; Lowrey, Stone & Auerbach, for app’lt, The Knickerbocker Trust Company; William A. Boyd, for resp’t.
   O’Brien, J.

The petitioners, Hugh M. Stanfield and Henry Stanfield, are adult sons of Mark M. Stanfield, deceased, who died on May 28, 1890, leaving a last will and testament, in which it was provided:

“ After the payment of my just debts, I give and devise unto Gfeorge Otis the income of twenty-five thousand dollars for his life; and to my son, Hugh M. Stanfield, the income of twenty thousand dollars for his life; to Florestine Stanfield, wife of Henry B. Stanfield, during the life of herself and child, the income of twenty thousand dollars; to Henry Stanfield the income of ten thousand dollars, and to John C. Parcher the income of ten thou-, sand dollars; and I direct my executor hereinafter named to invest said sums in bond and mortgage or government bonds, and pay the income to the respective parties named.”

Pending a contest over the probate of the will, a temporary administrator was appointed and qualified July 25, 1890.

On January 20, 1892, the executor not having invested the principal sums, the income of which was devised to the two sons, Hugh M. and Henry B., they commenced proceedings before the surrogate by petition and nótice of motion for an order directing the payment to them of interest upon the ¡irincipal amounts.

The executor in answer to the petition shows to the surrogate that the principal sums had not been invested because the executor had never had in its possession sufficient funds to enable it to provide for the payment of debts, to pay legacies, and to set up the trusts provided by the will.

The questions submitted to the surrogate for decision were:

1. The devises being given “ after the payment of my just debts,” did they become effective, or could interest accrue on them before the debts were paid ?
2. Prom what time should interest, if allowed, be computed ?
3. At what periods should interest be paid?
4. At what rate should interest be computed? The surrogate decided that interest should be paid by the executor upon these bequests from the date of the death of Mark M. Stanfield; that such interest should be computed at the rate of three per cent per annum, and that payments of interest should be made annually.

Prom that decision these appeals are taken.

We regard the law as settled that as to general legacies they are not payable until one year after the issuance of letters on the estate, and that as to an annuity legacy, it begins to run from the death of the testator.

The question here presented is, what is the rule as to the bequests of income ? Are we to follow the one governing the payment of annuities, or of general legacies ?

In Cooke v. Meeker, 36 N. Y., 15, it is said: “The authorities would seem abundant, therefore, to sustain the doctrine, that when a sum is left in trust, with the direction that the interest and income should be applied to the use of a person, such person is entitled to the interest thereof from the date of the testator’s death.. . Especially is this so where, as in the will under consideration, it clearly appears to have been the intent of the testator that the legacy should be paid by a transfer of bonds and mortgages bearing interest at the time of his death.” Appellants insist that this statement is obiter, and in direct antagonism to the general rule and weight of authority holding that interest upon legacies commences to run only after the expiration of a year from the granting of letters testamentary ; that as respects legacies, a direction in a will that it be paid with interest, but specifying no time from which interest is to be computed, requires, in the absence of any special circumstance, that interest commence only after the expiration of the year, except in certain cases of a testator who is a parent or stands in loco parentis to the legatee, in which case, if the legatee be not an adult, interest on the legacy should be allowed as a maintenance from the time of the death of the testator.

In this case, however, it must be remembered, as already stated, that the question is not as to when interest begins to run upon a legacy, or when an annuity is payable; the question being from what time interest upon bequests are payable.

Although some doubt was expressed as to the correctness of the rule stated in Cooke v. Meeker, supra, in two cases which arose and were decided by former surrogates, In re Lynch Estate, 52 How. Pr., 367; Nahmeus v. Copely, 2 Dem., 253, we no longer regard it, so far as this court is concerned, as an open question.

In Barrow v. Barrow, 29 St. Rep., 240, the cases are collated and discussed, and the rule as laid down in Cooke v. Meeker followed. This doctrine was applied by Mr. Justice Daniels, in deciding Pierce v. Chamberlain, 41 How. Pr., 501, and the same learned judge, in his opinion in Powers v. Powers, 16 St. Rep., 770, which was a decision of this general term, held that a beneficiary under a will bequeathing a fund to a trustee, in trust to invest the same and pay over the income, is entitled to such income from the time of the testator’s death, wliere the trust has been invested by the testator, and has yielded income from such time.

We are unable to see any distinction in principle between the case last referred to and the one at bar. It here appears that the income received within one year and eight months from the death of the testator was $30,029.95, which, according to the valuation of the personal estate, which was stated to be $317,766.66, would make a showing of interest herein about six per cent. If, however, we take the executor’s figures of the amount of income received, and the percentage which such income bears to the appraised value of the personalty, it is conceded to have been three and seven one-hundredths per cent.

It was within the discretion, therefore, of the learned surrogate, in the absence of facts showing that the estate earned the full legal rate of interest, to determine what amount should be allowed, reference being had to the percentage of income of the appraised value of the personalty.

We do not think that the learned surrogate was bound, to allow any greater percentage upon the facts appearing before him than the three per cent, granted. In other words it was a matter within the discretion of the surrogate, which upon the facts we do not find was unwisely exercised.

We think, therefore, that the order appealed from should be .affirmed, and inasmuch as all parties appealed from some part of the order, it should be without costs of appeal to any of the parties.

Van Bruht, P. J., and Ahbrews, J., concur.


author: Vah Brunt, P. J.

text:
    The Mayor, etc., of New York, App’lt, v. The New York & Harlem Railroad Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Bailboad—Street—Laws 1872, chap. 825—Paving.
    Defendant, at various times, acquired the right to lay its tracks in streets of the city below Seventy-ninth street, on condition that it should pave the street about its tracks in some cases, and that it should grade in others. In 1872 an act was passed by the legislature authorizing and directing it to extend its road on Madison avenue above Seventy-ninth street as far as the avenue might be opened. The act provided that it should have the same rights and privileges as under former grants and laws, and also provided for the appointment of commissioners to determine the amount to be paid for the rights and privileges thereby granted. Held, that the act imposed no duty upon defendant to pave between its tracks on that portion of the road.
    Motioh for new trial on exceptions ordered to be heard in the first instance "at the general term.

      E. H. Hawke, Jr., for motion ; H. H. Anderson, opposed.
   Vah Brunt, P. J.

We have searched in vain in this record to find any ground upon which the plaintiffs can predicate a recovery.

This action was brought to recover the cost of paving a portion of Madison avenue between One hundred and twenty-fifth and One hundred and thirty-first streets adjoining and between tracks used and occupied by the defendant in the operation of a railroad along Madison avenue at that point

It appears that the defendant was incorporated by a special act passed by the legislature in 1831; and under this act the defendant was given power to construct a single or double track railroad in certain parts of the city of New York, but not without the permission of he mayor, aldermen and commonalty of the city of New York.

Under various statutes and ordinances of the common council prior to 1858 the defendant acquired the right to lay its tracks in certain streets of the city upon condition of paving the streets in and about its rails in a satisfactory and permanent manner. By an'ordinance of the common council approved in December, 1858j the defendant was authorized to lay a double track from its track at Fourth avenue at Forty-second street, up that street to Madison avenue and up Madison avenue to Seventy-ninth street, or as far as the avenue might from time to time be opened., This ordinance of the common council was ratified by the legislature in 1859. • And in 1872 the legislature passed an act authorizing and requiring the defendant to extend its tracks in Madison avenue from Seventy-ninth to Eighty-sixth street, and from that point northerly as far as the avenue might from time to time be opened. Section 2 provided that in the construction, use "and operation of the tracks and extensions therein authorized the company should have the same rights and privileges which it then possessed and exercised under former grants and laws. Section 3 provided for the appointment by the supreme court of commissioners to appraise and determine the amount of compensation to be paid annually or in a gross sum to the city for the rights and privileges granted by the act.

It is urged upon the part of the plaintiff that as the law of 1872 confers certain rights and privileges upon defendant with respect to the route north of Eighty-sixth street, on Madison avenue, the acceptance by the defendant of such rights and privileges carried with it certain duties and obligations, which although not mentioned in words in the law itself are impliedly contained therein; the most important of which is the obligation to keep the street through which its tracks are laid in a reasonably safe and proper condition. And in support of this proposition we are referred to the case of The Mayor v. Eighth Ave. R. R. Co., 118 N. Y., 389; 29 St. Rep., 17.

The facts in the case cited are, however, entirely different and distinct from those which prevail in the case at bar. By reason of proceedings which took place prior to the year 1874, the privilege had been acquired by the Eighth Avenue Railroad Company to construct its track through Eighth avenue to the Harlem river, and an agreement was entered into by which it had been agreed that the cars run upon said line should be annually licensed by the mayor, and the proprietors of the road should pay for such license such sum as the common council might determine; and in pursuance of this authority the common council fixed the license fee for the cars, and the same was paid by the defendant from 1860, down to and including the year 1874.

•In that year the legislature passed an act requiring the Eighth Avenue Railroad Company to extend its track to the Harlem river, and said act provided that when the extension should be completed and put in operation, the company should use and maintain and operate its railroad during the term for which the company was incorporated, “ subject only to the provisions of the general railroad act of this state with its amendments which are applicable to the railroad and extension hereby granted, except as herein provided.”

The claim for license fees for the cars having been made by the city, it was claimed by the railroad company that by this act they were relieved from such payment, there being no provision in the general railroad act for the payment of such a license fee. And it was held by the court that the acts under which the railroad company had acquired its right to run and the general railroad act should be construed together, and that the condition insisted upon was one which was prescribed in the grant which they originally received, and which they explicitly recognized and performed up to the time of the passage of the act of 1874; and it was because of this express agreement upon the part of the railroad company to pay this license fee that they were held to this liability.

In the case at bar no such feature exists. The right to the extension from Seventy-ninth street northward on Madison avenue sprang into existence with the act of 1872, and no burdens whatever were placed upon the acceptance of this franchise except that they should pay the compensation to be determined by commissioners appointed by the supreme court.

To engraft another obligation upon the part of the defendant would be to impose a burden in addition to that which has been prescribed by the legislature. The defendants were not in the situation of the Eighth Avenue Railroad Company which had agreed to pay these license fees upon their railroad as operated to the Harlem river.

It would seem therefore that there is no basis for the claim advanced against the defendant in the case at bar.

It may be, and probably is the fact that the railroad company was more diligent in looking after its interests than were the legislators who were bound to protect the corporation of the city of New York in legislation of this character. But this omission the courts cannot supply. Without some obligation existing upon the part of the defendant which can be found in the legislation which culminated in their right to build their railroad over the portion of the streets, the subject matter of this legislation, the liability sought to be enforced against them cannot be established.

We are of opinion therefore the exceptions should be overruled and the defendant have judgment upon the verdict, with costs.

Andrews, J., concurs.

O'Brien, J.

The action was brought to recover the cost of paving a portion of Madison avenue between One hundred and twenty-fifth and One hundred and thirty-first streets, adjoining and between tracks used and occupied by the New York & Harlem Railroad Company in the operation of a street railroad along Madison avenue.

The defendant was incorporated by chap. 263 of the Laws of 1831, and it was authorized, upon obtaining the permission of the plaintiff, to use a single or double track railroad i.n certain parts of the city. In 1832 the city consented to the building of defendant’s railroad from Twenty-third street to Prince street by an ordinance which provided for an agreement to be entered into between the city and the railroad company, and which required as a condition upon the part of the company that it should pave the streets in and about the rails “ in a satisfactory and permanent manner and keep the width of twenty feet of said paving, including the rails, in good repair at all times during its continuance in use thereof. ”

In 1851 another agreement was entered into, by which the company was authorized to lay its tracks in Chatham street, under an agreement that provided that the company would grade all th<* portion of the street occupied by the track and four feet on each side thereof and keep the same in good repair at its own expense.

In 1858 another ordinance was passed authorizing an extension of. the road up Forty-second street to Madison avenue, and up Madison avenue to Seventy-ninth street. Nothing is said in this last ordinance with regard to- paving or grading to be done by the company.

In 1872 an act of the legislature authorized the extension from Seventy-ninth street to Harlem river, and provided for compensation to be made for such right and privilege; and, thereafter, upon proceedings had in the supreme court, commissioners were appointed to ascertain the amount of compensation which should be paid by the railroad company, which report was confirmed in 1885.

It is contended by the appellant that chapter 825 of the Laws of 1872, which contains the privilege last referred to, and which authorized the extension of the defendant’s route from Seventy-ninth street to Harlem river, should be so construed as to impose upon the defendant the obligation of paving the streets between its tracks and on each side thereof to the same extent as was imposed by the ordinance and agreement relating to the building of the defendant’s road south of Twenty-third street. It is insisted that when the privilege of extending defendant’s railroad north of Twenty-third street was granted by the legislature by this act, the obligation imposed upon defendant as to paving between its tracks south of Twenty-third street was extended by implication to the tracks north of that point; in other words, that the extension of the privileges carried with it an extension of all liabilities and obligations. It will be noticed, however, that the rights granted to the railroad company from time to time affecting four different sections of its route as at present operated imposéd different duties and obligations. If the argument in regard to all the obligations imposed by ordinance or agreement in reference to tracks south of Twenty-third street are to be extended to all that portion of the route north of Twenty-third street, then not only the obligation of paving, but also of grading and the other-duties imposed, should be included among the obligations to be assumed by the company in respect to its road north of Seventy-ninth street. In other words, the same argument which would require an extension of the obligation to pave north of Seventy-ninth street would also apply to all other obligations imposed by the terms of the ordinances and agreements relating to the route south of Seventy-ninth street.

However liberally we may construe in favor of the public, and strictly against the grantee, the privileges conferred by chapter 825 of -the Laws of 1872, we have been referred to no authority where, in the absence of any ambiguity or obscurity in the terms-of the grant, the court is at liberty to interpolate into the contract made between the state and the railroad company a condition which the legislature itself did not include.

We think it clear from authority that, in order to enforce the claim here made by the city, some specific obligation imposed upon the company, either by its charter or special agreement, or the law, should be pointed out. This the plaintiff has failed to-do. And we think that in construing the act of 1872 and the court proceedings thereunder, it must be held that they ’constituted the grant of a new franchise to the defendant, the compensation for which was fixed by the commissioners, which was the-agreed price to be paid therefor, and that the common council has no power to impose, as a further condition, price or compensation, the obligation that the company shall pay for the paving of the avenue between its tracks.

We have been referred to some cases in which it has been held, that where a corporation uses a highway for its special benefit it. must maintain the same in reasonable repair. These, however, related to railroads operated by steam, and involved an entirely different principle from the one for which the plaintiff here contends, which is, that it is the duty of a street railway to keep the space between its tracks in a reasonably safe condition, although no provision -to that effect is contained in its charter or in any city ordinance, or imposed by legislative act.

This view we do not think can be supported by authority, and we are, therefore, of opinion that the disposition made by the learned trial judge in directing a verdict for the defendant is correct ; and we think, accordingly, that the exceptions should be-overruled and judgment ordered for the defendant, with costs.


author: O'Brien, J.

text:
    George F. Perkins et al., App’lts, v. Collis P. Huntington, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Principal and agent—Facts necessary to constitute one a principal.
    To constitute one a principal with respect to the acts of another in purchasing, he must, in fact, he the purchaser and primarily interested, and the person purchasing must be employed by him to act for him and for his benefit, and must have received authority to bind him.
    2, Same—Creditor of corporation.

      A creditor of a corporation who, though he may have knowledge of its-insolvency, in the hope of some benefit finally resulting to himself in common with other creditors, advances money from time to time and advises a continuance of the business until it can be disposed of to advantage, does not thereby become a principal and render himself responsible for all the debts and liabilities of such company.
    Appeal from judgment dismissing complaint.

      Joseph H. Choate, for app’lts; Frederick R. Coudert, for resp’t.
   O'Brien, J.

The action was brought to charge the respondent -with the balance of the purchase price of certain paper sold and delivered by the appellants to the Star Printing Company, upon the ground that the paper was ordered by the company as the agent of the respondent and for the use and benefit and on behalf of the respondent, who was the undisclosed principal and the actual purchaser of the paper; and further, that during all the time the paper was furnished - the newspaper theretofore printed -and published was printed and published by the company at the request and upon the order and for the use and benefit of the respondent, such paper being so used in printing and publishing the newspaper with respondent’s knowledge and consent and by his directions.

As there was no testimony offered by the respondent, the dismissal having been made upon' the close of plaintiffs’ case, the question to be considered upon this appeal is, whether, upon any inference that may be drawn from the testimony adduced by a jury, liability upon any of the grounds suggested can be predicated.

It appears that the Star Printing Company was a doméstic corporation organized in 1886, its business being the publication of the newspaper called “ The New York Star,” of which William Dorsheimer became the editor, in addition to being the president of the company, and he so continued until his death in 1888. Upon the happening of this event, by reason of the loss entailed by the printing of the paper, the company was insolvent, and so known to be by the respondent, to whom alone it owed $660,000, or more than double the amount of the whole capital stock of the company.

Upon the death of Mr. Dorsheimer the management of the -paper was assumed by the two surviving trustees, one of whom applied to the respondent for money with which to carry on the paper; the latter being absent, his agent, to whom the application was made, advanced moneys with which to continue the publication of the paper until the return of the respondent, some five or six weeks after the interview between his agent and one of the "trustees, when application for additional moneys was made to him personally. Some testimony was also adduced to show that the respondent objected to a change in the size of the paper which was suggested by the trustee; and this, together with an expression of the respondent communicated to the trustee that they should keep the paper going in the hope of obtaining a purchaser, .are the main facts relied upon to establish that the actual ownership, direction and control were in the respondent.

The appellants obtained for their claim judgments, and this action was brought subsequent to a failure to realize the entire amount due thereon; the reason assigned for the failure to elect to sue the respondent originally being that the facts stated in the complaint were not at the time when their actions were brought against the Star Company known to the appellants.

Upon this question of election we think the evidence is far from satisfactory as tending to establish appellants’ contention that the facts upon which the respondent’s liability is placed were not known prior to the recovery of judgments against the company ; for upon the trial but one of the partners was interrogated or gave any evidence in respect to what knowledge the appellants had as-to the respondent’s connection with the publication of The Star" newspaper. Assuming, however, that the recovery of the judgments is no bar to this action, we are of opinion that the disposition made by the learned trial judge was proper.

The main ground relied upon for a recovery was that the respondent was an undisclosed principal. To constitute this relation in respect to a creditor, certain elements must be present, and these are to be gathered from the principles relating to principal and agent. To constitute one a principal with respect to the acts, of another in purchasing, he must in fact be the purchaser and primarily interested; and the person so purchasing must be employed by him to act for him and for his benefit, and such person, must have received authority to bind him.

The testimony shows that the Star Printing Company, which was regularly organized, was openly doing business in its own name, and its purchases were made upon its own credit. The respondent had no knowledge of the purchases made at the time that they were made, nor of the existence of the persons from whom they were made, and had no voice in the selection of the vendor of the goods. While evidence was presented to show that the statement of the condition of the company from time to time was furnished to the respondent, which disclosed its condition and the extent of its liability, we do not think that there is anything in the evidence to prove that he knew anything of the. details or had anything to do with the management of the paper. The evidence required to displace the ostensible principal should be sufficient to justify an inference that the one sought to be substituted had assumed the control and management of the business, and put himself in a position to be responsible for the expenses of carrying the same on.

We do not think that the facts adduced would justify the inference that the respondent was the principal, that the purchases were made for his account and for his benefit and by his direction by his alleged agent, the Star Company. On the contrary,, we think that the only logical inference to be drawn from the testimony adduced was that the respondent was not such principal. All that he did was to continue what he had formerly done, namely, to advance moneys to the company, with the hope undoubtedly of eventually putting it upon a paying basis or selling it ta some purchaser; in either of which events a resulting benefit would have flown to creditors, among whom would be the respondent himself.

We think it would be, upon the facts here disclosed, a harsh rule of law to hold that one who, though he may have known of the insolvency of a corporation, in the hope of some benefit finally resulting to him in common with the other creditors, should advance money from time to time with a view • to averting the destruction of its business, would thereby render himself responsiMe for all the debts and liabilities of the concern to which .such assistance had been rendered.

Upon an examination of the testimony, therefore, we have reached the conclusion, as already stated, that the proof was not sufficient to justify an inference that the respondent was an undisclosed principal of the Star Company, and that the disposition made by the learned trial judge in dismissing the complaint was right and that the j udgment should be affirmed, with costs.

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


text:
    In the Matter of the Probate of the Will of James Philp, Deceased.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

      ~W ill—Cancellation.
    Deceased, prior to taking a trip to Europe, executed a will which he • placed in an unsealed envelope and deposited in an iron box in his store that was used as a money drawer and to which his employees had access. Here it remained for over two years, when it was placed in a safe, the door of which was open during business hours. On his death the will was found in said envelope, but with lines drawn through the signature. Meld, that the presumption was that testator had cancelled it for the purpose of revocation, and that in the absence of evidence of improper treatment of the will or to explain the cancelling lines, the surrogate properly refused probate.
    Appeal from a decree of the surrogate.

      E. V. Thornall, for app’lt; Sackett & Lang, for resp’t.
   O’Brien, J.

From the decree of the surrogate, refusing to admit to probate a writing alleged to be the will of James Philp on the ground that the same had been cancelled during the lifetime of the decedent, this appeal is taken.

Upon the trial evidence was given of the due execution of the writing by the decedent at the time of its date (August 4, 1887), in the city of Few York, and that he was at the time in all respects competent to execute a will, and that said paper was after its execution delivered to him, and that on the following day he departed from the city of Few York, and was absent in Europe, returning to the United States on the 11th of October, 1887. After his death in April, 1891, the alleged will was presented for probate, and it then appeared that the signature of the decedent thereto had drawn through it three lines in black ink, and upon the envelope containing the paper was endorsed in the hand-writing of the decedent: “ Will of James Philp, August, 1887.” And on the paper itself the words: “ Was made before intended trip to Europe."

The material facts as to the custody of the will are embodied in the fifth and sixth findings of the proponent’s requests to find, as follows:

Fifth: “ That at the'time of the execution of said will by James Philp, the attorney who prepared said will after its execution delivered the same to the said Philp, and the said Philp enclosed the same in an unsealed envelope, and deposited it in an iron box or safe in his store, situate on Broadway between Fifty-first and Fifty-second streets, in Mew York city. That upon August 5th, 1887, the said Philp departed from Mew York city for Europe, and did not return to the United States till October 17th, 1887. That said box in which said will was deposited had no appliance for locking the same, and was in fact unlocked during all of said period, and was used as a money drawer, and the said store was during all of said period in the custody and control of the employees of the said Philp. That after the return of said Philp from Europe the said will was left in said iron box in said unsealed envelope, and said box was unlocked and for a considerable part of the time the door of said box was left open down till October, 1889, when the contents of said box, including said will, were removed to a new combination lock safe. That from the time of the execution of said will, down till the last-named date, said will was never secured in any manner, and the employees of said Philp had access to said box, and the visitors to said store might have had access thereto. That after the said will was transferred to said new safe it continued in said unsealed envelope, and the said safe was left open during business hours, and that frequently the said Philp would leave said safe open for a night or more at a time. That after the execution of said will, and down till the time of his death, the said Philp was a plumber, residing in the state of Mew Jersey, and doing business as a plumber in Mew York City ; that he was absent from his said store a considerable part of the time, and that after the transfer of said will to said new safe, and down till the time of the death of said Philp, the said will was accessible, when said safe was unlocked, and the said Philp absent from said store, to the employees of said Philp in said store.
“Found, R S. R”
Sixth: “That after the death of said Philp the said will was found by James Duane Squires, an attorney, acting for the proponent, in the unsealed envelope in which it had been placed by the testator with other papers of the testator in said safe; that said envelope had endorsed upon it the words, Will of James Philp,’ in the hand writing of said Philp, and the words, Was made before intended trip to Europe,’ in the handwriting of said Philp, are endorsed upon said will; that at the time said will was found by Mr. Squires, the signature of said Philp was cancelled in the same manner as when presented upon this hearing, but the signature of said Philp was then, and is now, plainly legible.’’
“Found, R S.R”

From these conceded facts the surrogate finds:

“First: That the testator drew with his own band the lines through his signature.
Second: That he did so with the intent and for the purpose of revoking his will.”

In the conclusions thus reached, upon the conceded facts, it is insisted by the appellant that the learned surrogate erred in applying the rules relating to the burden of proof, and also in assuming that he was justified in indulging in certain presumptions of fact which alone supported these conclusions.

In determining whether this contention is right, it is necessary to briefly refer to the views expressed in the opinion of the surrogate as to the principles of law which control him. He therein says, “ the general rule to be spelled out of all the cases seems to-be that, if a will is traced into the testator’s possession, and at his death either cannot be found or is found torn, the presumption is that he destroyed of tore it, anima revocandi

In using the word “ presumption,” it is clear from the context of his opinion that the surrogate did not pretend that it was a presumption of law, or an indisputable presumption, but rather a presumption of fact, which, as stated in Justice v. Lang, 52 N. Y., 329, are said to be but mere argument, of which the major premise is not a rule of law, and are to be judged by the common and received tests of the truth of propositions, and the validity of arguments. • From the conceded facts as found, the inference or presumption of fact drawn by the- surrogate was most natural, considering the time when the will was executed, its place of deposit, the endorsement thereon, and its condition when found and presented for probate. It has long been recognized as the common mode of destroying the validity of an instrument, to cancel the signature of the signer thereof by erasing the name, tearing it off or drawing lines through it. The statute, moreover, relating to the revocation of wills, 2 R. S., 64, § 42, has been construed to permit or authorize the revocation of a will by cancellation. Lovell v. Quitman, 88 N. Y., 379; Matter of Clarh, 1 Tucker, 454.

It is insisted, however, that the presumption equally as strong arises in favor of the view that some one other than the decedent drew the lines through the signature, and that, therefore, proof in addition' to that offer should have been presented.

Thus, in answer to the view of the learned surrogate, that “ if the decedent intended to revoke this will, the obliteration of his signature, as it now appears, would have been a natural and probable way of effectuating that purpose; whereas, if a third person, without decedent’s authority or knowledge, had intended to revoke the will, he would have destroyed it physically, and no vestige of it would have been found after decedent’s death,” the appellant answers that if the decedent intended to revoke his will, he would naturally have employed some clear, decisive, unequivocal means of so doing, like burning it, destroying it absolutely, or by making a new will, and he would not naturally have attempted it in such an indefinite, uncertain and equivocal way as drawing lines through his signature.

In weighing probabilities, however, we are not driven, to that resort for the determination of this appeal, but for the purpose of showing that in weighing such probabilities the learned surrogate was right we need only add to what he has so well said one or two more considerations.

The making of a will with most people is regarded as a private and confidential transaction, and its secrecy guarded by the most jealous care. A change in the testamentary disposition, once made, is rarely given publicity before death. If, therefore, we assume with the appellant that the decedent here was imbued with the intelligence ascribed to him, and intended to destroy the testamentary disposition once made, without giving publicity to the fact, good reasons existed why he should have adopted the plan apparently followed in this case. Had the will been torn, or physically destroyed, knowledge on the part of many that it had once been executed might have resulted in an action which is allowable for the purpose of establishing its existence and validity. Such an action is expressly permitted under § 1861 of the Code, where a will has been lost or destroyed. Where, however, a will or other paper, after the same has been cancelled, is allowed to remain in existence, and is not destroyed, in the absence of evidence of some kind to show that others had an interest in and the opportunity to cancel the instrument, it will furnish the best evidence as to the intention of the maker thereof to destroy its force and effect.

As is said in Collyer v. Collyer, 110 N. Y., 481; 18 St. Rep., 210 : “There is no direct proof that Mrs. Collyer destroyed her will. But the proof that the will was not found after her death is sufficient proof that she destroyed it anima revocandi. When a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by the testator, and this presumption stands in the place of positive proof. He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof; it is not sufficient to show that persons interested to establish intestacy had an opportunity to destroy the will. He must go further and show by facts and circumstances that the will was actually fraudulently destroyed.”

This case, regard being had to the difference between the cancellation of the instrument in the manner here claimed and a will lost or destroyed, together with many other authorities that might be cited, gives support to the position of the surrogate that the presumption is, that where the will was in the custody of the decedent, and at the time of his death is found cancelled, or cannot be found, that it has been so cancelled or destroyed for the purpose of revoking the same. We think, therefore, that the onus was upon the proponent to explain the cancelling lines in the signature. When the will was presented, it was with this infirmity of cancellation upon and a part of it. It the absence, therefore, of any evidence, whatever, from which the inference or presumption could be drawn of improper treatment of the will, the learned surrogate was justified in the conclusions which he drew from the conceded facts, and the decree appealed from should be affirmed, with costs.

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


text:
    John R. Suydam et al., Resp’ts, v. The New York Elevated Railroad Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    Railroad—Elevated—Evidence.
    In an action against an elevated railroad the opinion of an expert as to what the rental and fee values of plaintiff’s premises would be if the railroad was not in front of it is inadmissible.
    Appeal from a. judgment in favor of tlie plaintiffs, entered after a trial at special term.

      Edward Mitchell, for resp’ts; Julien T. Davies and Alexander S. Lyman, for appl’ts.
   Andrews, J.

This action is brought by the plaintiffs, as owners of the lot and buildings No. 128 Pearl street, New York city, to restrain the defendants from operating their railroad in front of said premises, and to compel them to remove their structure, unless they should pay the plaintiffs the value of the property taken. The case was tried at the special term and judgment was rendered in favor of the plaintiffs for $2,785.77 damages and costs, and enjoining the further maintenance and operation of the defendants’ railroad in front of plaintiffs’ premises unless defendants should pay to plaintiffs the sum'of $5,000, with interest, as the value of the easements taken; and from such judgment the defendants appeal.

We are of the opinion that this judgment must be reversed because of errors in the admission of testimony. George B. Curtis, a real estate expert, was called for the plaintiffs, and testified as follows:

“In my opinion, the present rental value of No. 128 Pearl street is about $7,000 to $7,500.
“ Q. What in your opinion would be the present rental value of the same property if the elevated railroad were not in front of it?
“ Counsel for the defendants objected to the question as hypothetical, incompetent and speculative.
“ The court overruled the objection, and counsel for defendants duly excepted on behalf of each defendant.
“ A. It would be $10,000; $10,000 to $11,000.
“ With the railroad, the rental value would be as it is now; without the railroad, I think the rental value would have been from $10,000 to $11,000. The fee value of that property with the railroad in front of it at the present time is about $75,000. In my opinion, the fee value of this property if the elevated railroad were not in front of it would be from $105,000 to $110,000.”

That the ruling of the court in allowing the question was erroneous is established by numerous decisions. McGean v. Manhattan Ry. Co., 117 N. Y., 219; 27 St. Rep. 337; Avery v. N. Y. Central, etc., R. R. Co., 121 N. Y., 30, 41-45; 30 St. Rep., 471; Roberts v. N. Y. El. R. R. Co., 128 N. Y., 455; 40 St. Rep., 454; Doyle v. Met. El. Ry. Co., 40 id., 474; Kernochan v. N. Y. El. R. R. Co., 41 id., 266; Messenger v. Met. El. Ry. Co., id., 949; Peyton v. N. Y. El. R. R. Co., 42 id., 843; Delafield v. Met. El. Ry. Co., 40 id., 670.

In Doyle v. Metropolitan Elevated Railway Co., supra, a real estate expert, examined as a witness on behalf of the plaintiff, was asked this question : “ What, in your judgment, would the property be worth without the elevated railroad? ” This was objected to by the defendants as hypothetical, speculative and incompetent; the court overruled the objection, and the witness answered: "Think they would be worth $200,000 to $225,000.” He had previously testified that the present value of the premises was $150,000 to $175,000.

Earl, J., delivering the opinion of the court, said: “We have just decided in the case of Roberts v. Elevated Railroad Company, that a similar question was incompetent, and that it was erroneous to allow it to be answered, and we need say no more about it now. For this error the judgment must be reversed.”

The question asked in the Doyle case was substantially the same as the one asked in the case at bar, and the objection in the Boyle case was identical with the objection made in the present ease. It is suggested by counsel for the plaintiffs that in the Doyle case there were found to be very many other serious errors in excluding evidence offered by the defendants, and that it was “ for the errors mentioned" that the judgment was reversed. This is true, but one of the errors mentioned was the error of permitting the real estate expert called by the plaintiff to give his opinion as to what the property would be worth without the •elevated railroad; and besides, as appears by the above quotation from the opinion of Judge Earl, it was expressly held that the judgment must be reversed for that particular error; and it is clear that the judgment could have been reversed for that error alone, even if there had been no other errors committed upon the trial.

It is also suggested by plaintiffs’ counsel that the case is brought within the opinion in McGean v. Manhattan Railway Co., 117 N. Y., 219; 27 St. Rep., 337, because the judgment for rental value in this case is much less than the damages which Curtis’ testimony tended to show, and that the defendants were not harmed by the evidence in question because abundant and competent evidence was given on the trial, by witnesses who had knowledge of the facts, that the actual rental value of similar property in the same street had * * diminished after the building of the defendants’ road.”

We have examined the record, but it is very doubtful whether there is competent evidence sufficient to sustain the judgment if the testimony of Curtis is not taken into account; and we certainly cannot say that the defendants were not prejudiced by the admission of such testimony.

Counsel for the plaintiffs also refers to the case of Kernochan v. Elevated Railroad, 128 N. Y., 559; 41 St. Rep., 110, in which it was held that an objection to a question put to an expert asking his opinion was insufficient. In that case, however, the only objection was upon the general ground of incompetency ; whereas, in the present case the objection was that the question was hypothetical, incompetent and speculative. Moreover, the case of Doyle v. Metropolitan Railway, supra, is reported at page 488 of volume 128 New York Reports, and said case of Kernochan v. N. Y. Elevated R. R. is reported in the same volume at page 559. The cases were heard and decided at the same term of the court and by the same judges, and we cannot suppose that the court intended by the decision in the Kernochan case to reverse the decision made about the same time in the Doyle case.

The judgment appealed from should be reversed and a new trial ordered, with costs to appellants to abide the event.

Yan Brunt, P. J., concurs.


text:
    In the Matter of the Application to Compel Final Settlement of the Accounts of James Neale Plumb as Guardian.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Depositions—Commission—Surrogate mat grant.
    A surrogate has power to issue a commission to take testimony out of the state in a proceeding for an accounting.
    2. Same—Appeal.
    The decision of a surrogate in a matter within his discretion will not be disturbed on appeal, except where it can be seen that such discretion has been illegally or arbitrarily exercised.
    Appeal from an order of the surrogate directing a commission to issue in the above entitled proceeding to take the testimony of. witnesses in England.

      Henry Thompson, for app’lt; David Mc Clure, for resp’t.
   O’Brien, J.

The appellant claims that upon the law and upon the facts used as the basis of the application for a commission, the order made by the surrogate should not have been granted.

In determining whether the facts upon the application would justify the granting of the order, we think the true test to apply would be to consider what, in the absence of any opposing affidavits by the appellant, would have been the duty of the surrogate. Applying this test we think there was sufficient to justify the order. The presentation of the opposing affidavits, while we may concede that they destroyed the force and effect of all or nearly all the statements contained in the affidavits used to support the application for a commission, left the subject in a position where it became necessary for the surrogate to determine as to the credibility and weight to be attached to the conflicting affidavits, and upon motions of this character where the judgment of the court below is to be exercised, and the matter to a great extent is within its discretion, the conclusion reached will not be disturbed except in cases where it can be seen that the discretion has been illegally or arbitrarily exercised in favor of granting or denying the application. With this rule in mind, we have examined the papers presented, and do not feel that we would be justified in reversing the conclusion reached by the surrogate upon conflicting affidavits. The serious and important question, however, raised by this appeal relates to the question of whether under the law the surrogate has any power to issue a commission at all. The effect of a decision as contended for by appellant would be to deprive the surrogate of all power in any proceeding pending before him to issue a commission, and in view of the serious results that would follow from such a conclusion, it should not be adopted unless the law demands it

There can be no question but that prior to the repeal in 1880, Laws of 1880, chap. 245,§ 1, the surrogate had power to issue a commission; such power having been expressly conferred by chap. 460 of the Laws of 1837, § 77.

Since the repeal of the act of 1837 by the general repeal of the act of 1880, the subject of granting commissions is regulated by the Code of Civil Procedure. The provisions of the Code applicable to the present discussion are to be found in §§ 887 and 888, which latter section states in what cases a commission may be issued.

Appellant insists, and in this instance is supported by authority, that this § 888 ig applicable only to actions, and has no application to special proceedings. This concession, however, while it applies to the supreme court and other courts of record, would be equally applicable to the surrogate’s court, were it not that by another section of the Code, § 2538, the provisions of § 888 have been extended to apply to the surrogate’s court. By this section it is provided that certain provisions, which include § 888, shall be applicable “ to proceedings in the surrogate’s court and the proceedings therein, so far as they can be applied to the substance and subject matter of a proceeding without regard to its form.”

When we recall the fact that all forms of procedure in the surrogate’s court are special proceedings, and not actions, § 2538, so far as making applicable the provisions of §§ 887 and 888 in regard to taking depositions without the state on a commission would be meaningless, as applied to the surrogate’s court, were we to hold that it was only in an action in the surrogate’s court that the surrogate would have the power to issue a commission. Such a construction would be to hold in effect that though the legislature intended to confer the power upon the surrogate’s court, that such power could not be exercised, because no action could be brought in the surrogate’s court, and the provisions relating to the taking of depositions are confined to actions. We do not think that such a construction, rendering meaningless the statute, is warranted by the language used. The legislature in enacting § 2538 had undoubtedly in view the difference that exists between courts wherein actions may be brought and the surrogate’s court, which deals solely with special proceedings, and hence in making applicable the other provisions of the Code to the surrogate’s court we find that in reference thereto the language used is that such provisions are made applicable “ to the proceedings therein so far as they can be applied to the substance and subject matter of a proceeding without regard to its form.”

While the question of the surrogate’s jurisdiction does not seem to have been raised in any of the reported cases, we have many instances where it has been exercised, and where the surrogate has issued a commission basing his authority upon the general provisions of the Code. Bristed v. Weeks, 5 Redf., 529; Cadmus v. Oakley, 2 Dem., 298; Henry v. Henry, 4 id., 253; Bull v. Kendrick, id., 330.

The commissions issued in these cases related entirely to will contests, and from this circumstance the appellant seeks to justify a distinction between such a proceeding and other proceedings pending in the surrogate’s court

It is true that, upon a contest over the probate of a will, an issue of fact is raised by the petition and answer, yet the fact remains that it is not an action, but a special proceeding, and like in character to other proceedings over which the surrogate has jurisdiction. In the absence, therefore, of any special provision conferring jurisdiction upon the surrogate to issue a commission in a contested will case, if he has the right, which has been constantly exercised, of issuing a commission in such cases, his power is derived solely from the provisions of the Code already referred to, and if thereby sustained, would be equal authority for the exercise of such jurisdiction in a case like the present. In other words, there is no distinction between a will contest and a contested accounting before the surrogate, both being special proceedings, and if it were held that a commission could only issue in an action, and it being clear that no action arises in a surrogate’s court, the denial of jurisdiction in a case like the present would be equal authority for a denial of such jurisdiction in a contested will case. As we have already seen, however, though the question does not appear to have been raised, such jurisdiction has been exercised and commissions have been issued, and as we think rightly, under the provisions of §§ 887 and 888 of the Code, which by § 2538, so far “ as they can be applied to the substance and subject-matter of a proceeding, without regard to its form,” were made applicable to surrogate’s courts. We, therefore, think that the order appealed from should in all respects be affirmed, with costs.

Andrews, J., concurs; Van Brunt, P. J., concurs in result.


author: Barnard, P. J.

text:
    Egbert Uchtmann, App’lt, v. Annie M. Tonyes, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Bills and notes—Fraud—Rights oe endorsee.
    In an action upon a promissory note against an accommodation endorser who claimed that her endorsement was procured by fraud, where there was evidence tending to show that plaintiff took the note for value before maturity and without notice of any defense, and also that the transfer was for a precedent debt, the court charged that if plaintiff received the note on a precedent debt he could recover if the payee could, and that if he took before maturity and for value and defendant endorsed the same he would be in a position to recover even if the payee obtained such endorsement by fraud. Held, that such charge was correct*

      Appeal from judgment in favor of defendant, entered upon verdict, and from order denying motion for a new trial.
    Action upon a promissory note made by Louis Tonyes, a son of defendant, for $2,400 upon which defendant’s name appears as endorser.

      C. J.G. Hall (U. W. Tompkins, of counsel), for app’lt; Jacob Brenner (Chas. J. Patterson, of counsel), for resp’t.
   Barnard, P. J.

On the 26th of April, 1890, Louis Tonyes made his promissory note payable to the order of the Abbott Brewing Company for $2,400, payable in three months after its date. The complaint avers that Annie M. Tonyes, the wife of the maker of the note, endorsed it before its delivery, in order to increase the security of the brewing company. Annie M. Tonyes, denied this and claims that the endorsement was obtained by fraud upon the part of the brewing company committed through its agent, one Edward Krieger. It appeared by the evidence that one Eagan owned a saloon ; that the brewing company had a" mortgage on it of a little over $2,200 ; that Eagan sold the saloon to Louis Tonyes for $3,000. That Tonyes gave a mortgage on the same to the brewing company for $2,400, being the Eagan debt; that Tonyes gave a note for $600 endorsed by his wife, which went to Eagan. The notes were both obtained by Krieger, the agent of the brewing company. The brewing company transferred the note to plaintiff and there was proof tending to show that it was transferred for value and without notice of any defense, and also that the transfer was made for a precedent debt Tonyes paid the $600 note to Eagan. Annie M. Tonyes testified to the effect that she did not endorse the $2,400, but did the $600-note, and upon the distinct promise that the $2,400 mortgage from Eagan could stand. Krieger admits a promise to let the Eagan security stand, but that it was upon the condition that Mrs. Tonyes endorsed the note. Mrs. Tonyes could not read English, and signed the $600 by a cross. The $2,400 is apparently signed by a cross and witnessed by Krieger; and her husband, Louis. Tonyes, testifies that there was only one paper signed by him or his wife, which was the $600 note. The defendant is supported also by the "witness Kennedy, who stated the agreement to be that. Tonyes was to pay Eagan “and leave the rest stand.” The jury found on this conflicting evidence that Mrs. Tonyes did not endorse the note in question for $2,400. This verdict will stand, unless there was some error committed upon the trial. The court charged the jury that if the plaintiff received the note on a precedent debt, he could recover if the brewing company could. That the plaintiff would be in a position to recover if he took before maturity and for value, and if the defendant, Annie M. Tonyes, endorsed the same, even if the brewing company obtained the endorsement by fraud. This charge covered the entire case, and was in accordance with the law which governed it.

The judgment and order denying'new trial should be affirmed, with costs.

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


text:
    Theodore Phillips, Resp’t, v. Burton A. Phillips, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Replevin—Ownership.
    In an action of replevin before a justice of the peace, the evidence as to the ownership of the property was conflicting, plaintiff testifying that he bought the property and sold it to his brother, who was unable to pay for it and surrendered the title, and defendant that he purchased it of the brother before the date of the sale to him, as testified to by plaintiff; that he afterwards resold it to said brother, and again repurchased of him after the time of such surrender of title. Held, that a judgment in favor of plaintiff was in accordance with the probabilities of the case, and would not be disturbed.
    Appeal from judgment of the Dutchess county court, affirming judgment of a justice of the peace in favor of plaintiff
    Action of replevin for a two-horse power and spike.

      Heermance & Arnold, for app’lt; Usselstyn & McCarty, for resp't.
   Barnard, P. J.

The plaintiff makes a good title to the threshing machine. He purchased it for his brother Sylvester in March, 1884. The plaintiff gave his note upon a credit of eight months. The plaintiff then delivered the machine to Sylvester under the arrangement that Sylvester was ,to own the machine if he paid for it in two years, In 1889, Sylvester bought the machine of the plaintiff and gave a chattel mortgage back to him for sixty-five dollars. Sylvester failed to pay the mortgage and gave the machine back to the plaintiff in the following year and the parties passed receipts, so that the machine belonged to plaintiff and the chattel mortgage was paid in full by a surrender of the property for which the mortgage was given. The defendant makes title to the machine by purchase of Sylvester in 1888. This was before Sylvester got a title, but the defendant agreed to pay the plaintiff the note given for the machine. The defendant did not pay this note and subsequently sold the machine back to Sylvester Phillips in December, 1889. In August, 1890, the defendant bought the machine back from Sylvester. The defendant' promised the plaintiff to pay the old note given for the machine. He did not do it. The issue between the parties is thus narrowed down to this: the plaintiff says that the chattel mortgage was released to Sylvester upon the return of the machine to the plaintiff. The defendant says that the plaintiff agreed to release the chattel mortgage so that he could get title without actual payment and so as to enable the defendant to sell a machine he had not paid for. The justice found the question of fact in accordance with the probabilities of the case.

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

Dykman and Pratt, JJ., concur.


author: Dykman, J.

text:
    Evelyn T. Provost, Resp’t, v. William Y. Provost, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Divorce—Service.
    On a motion to set aside a decree of divorce on the ground that no papers in the action were served, defendant’s affidavit stated that no papers were served on him by the sheriff. In opposition thereto proof of service out of the state pursuant to an order was shown and a letter from. defendant to his son admitting such service. Held, that the motion was-properly denied.
    Appeal from order denying motion to set aside a judgment in an action for divorce.
    The defendant resided in Chicago. Plaintiff obtained an order for service without the state,, and after filing the originals, sent copies of the summons, complaint and order to the sheriff of Cook county, Illinois, for service. Upon receipt of proofs of service, it was found that the copy order sent was annexed thereto, but upon inquiry it was ascertained that the sheriff, believing it to be an original order, served a copy thereof.
    Defendant’s affidavit states that no papers were served on him. .by said sheriff.
    Plaintiff, in addition to affidavits stating such facts, produced & letter from defendant to his son stating: “ A few days since I was served with papers for a divorce suit instituted by your mother against myself, and making Mrs. * * * co-respondent ; could you not have selected some other ? ”

      George A. Stearns, for app’lt; David Provost, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion made by the defendant to set aside a judgment in favor of the plaintiff against the defendant..

The action is by a wife against her husband for an absolute-divorce on the ground of adultery. The summons, complaint and notice were served upon the defendant in pursuance of an, order of the court.

The motion was based upon the affidavit of the defendant that no papers were ever served upon him in the action, and the affidavit of another person tending to corroborate the affidavit of the-defendant.

_ The papers were served in Chicago, where the defendant resides, and the proof of service is full and satisfactory.

Moreover, the affidavits read in opposition to the motion show plainly that such service was made, and that the affidavit of the-defendant is false.

The appeal is entirely destitute of merit, and the order should be affirmed, with costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


text:
    Thomas J. McVey, Resp’t, v. The Metropolitan Elevated Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

    Stenographer—Employment op.
    . On the hearing before a referee of the issues in a proceeding to acquire title to land by a railroad, the attorney for the railroad insisted upon the testimony being taken by a stenographer; and upon a failure to agree upon one, and plaintiff being proposed, said: “ Go ahead; I am satisfied." Said attorney took up the report and plaintiff's bill, and when the bill was-mislaid wrote to the referee for it. Held, sufficient to entitle plaintiff to recover for his services from defendant

      Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.
    Action to recover for plaintiff’s services as stenographer during a reference.

      Julien T. Davies and Byron Traver, for app’lt; Ira Leo Bamberger, for resp’t.
   Barnard, P. J.

The defendant made an application in the supreme court to acquire the title of lands belonging to one Siefke. The land owner made a denial of facts set forth in the petition, and the issues were, at the instance of the attorney for the defendant, referred to Rowland M. Stover to hear and determine. The land owner appeared when the order of reference was made and did not object thereto. When the hearing was reached. before the referee, the defendant’s attorney asked the referee to employ his stenographer to take the minutes. The referee was willing to employ him, but the defendant objected. The referee ■offered to write the testimony out in long hand or to send for a •stenographer himself. The defendant objected to the taking of the testimony in long hand and insisted on a stenographer. The parties failing to agree upon the appointment of the stenographer to the railroad company, the plaintiff took the testimony, and the sole question is whether the defendant’s attorney requested him to do so upon the credit of the-company. The witnesses to the transaction differ very materially as to the facts. The plaintiff testifies that the railroad attorney agreed to his appointment.

The attorneys representing the railroad deny this statement. The attorney for the land owner testifies that it was understood that the railroad company would have to pay the stenographer. The plaintiff testifies that the railroad company’s counsel, Mr. Lyman, upon the referee’s requesting him to take the testimony, looked at him and with a nod, said: “ Go ahead; I am satisfied.” The railroad company took up the report and with it the bill of the plaintiff. The next day the bill was lost and has never been paid. The letter of inquiry in respect to the loss was properly received. The bill was delivered to Mr. Lyman; the referee so testifies, and so does Mr. Lyman. On the next day the attorneys for the railroad wrote the referee that the bill could not be found in the papers, and this letter was received under the defendant’s objection. The letter harmonizes with the plaintiff’s theory. The railroad assumed the cost of the stenographer; requested him to take the testimony. The bill for his services went with the report and upon being mislaid the attorneys for the defendant wrote to have it sent to them, if left by mistake in the office of the referee. The question of fact was left to the jury and the verdict is supported by the probabilities of the case. The railroad should have paid for the expense of the stenographer, if a stenographer was forced in the case by the company. The stenographer of the attorney for the company was objected to. The plaintiff was appointed and did take the minutes.

The judgment should therefore be affirmed, with costs.

Dyicman and Pratt, JJ., concur."


text:
    Winslow Robinson et al., Resp’ts, v. Charles G. West et al., Impl’d, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1892.)

      1. Clubs—Liability of trustees.
    Trustees of a club organized under chap. 368, Laws 1865, are liable in the first instance as contractors for debts contracted while they hold such office, and not by way of suretyship, and there is no necessity for a creditor to exhaust his remedy against the club before proceeding against the trustees.
    2. Same—Mechanic’s lien.
    The fact that the creditor has filed a mechanic’s lien and recovered judgment thereon is not'destructive of the claim against the trustees.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.
    Action to charge defendants as trustees of the Hoboken Turtle ■Club with a debt for work and material done and furnished in and about certain alterations in the club house and in building a pavilion on its grounds.

      James B. Dill, for app’lts; William M. Mullen, for resp’ts.
   Barnard, P. J.

The plaintiff did work for the Hoboken Turtle Club upon the club house at Larchmont Manor, N. Y. There was a contract with the club under which the work was done. The contract price was $3,076. The amount of the bill and the extra work done by the direction of the club officers is not seriously questioned. The defendants were the trustees of the club, and they deny their liability for the debt of the club.

The Hoboken Turtle Club was organized on the 29th of May, 1889, under chap. 368, Laws of 1865. By the seventh section of this act, the trustees are made jointly or severally liable for all debts contracted -while they are trustees, if the debts are payable within one year from the time when such debts were contracted, and if the suit be brought within one year after the debt became due. The case shows that the cost of the work was limited to $2,000 by a resolution of the governing board. There is proof tending to show that the trustees ratified the expenditure in excess of that amount. * The jury found the entire debt to be due. The work was done under the notice of the trustees and members of the club, and the trustees made payments on account of the debt and requested time in which to pay the residue. The finding is fully supported. The action is not for a penalty. The statute makes a direct obligation against the trustees and not as a penalty for not doing something required by law. The trustees contracted this debt in a legal sense themselves. Wiles v. Suydam, 64 N. Y., 173; Gadsden v. Woodward, 103 N. Y., 242; 3 St. Rep., 102.

There was no necessity imposed by the law upon the plaintiff to exhaust his remedy against the club. The trustees were liable in the first instance as contractors and not by way of suretyship.

The pleadings upon the part of the defendants did not set up the filing of a lien and judgment therein as a bar. Such a defense was not available if good. Hollister v. Stewart, 111 N. Y., 644; 20 St. Rep., 941.

The action to enforce the lien is not destructive of the claim against the trustees. The plaintiff can have both remedies with but one satisfaction.

The judgment and order denying a new trial should be affirmed, with costa

Dykman and Pratt, JJ., concur.