text:
    The People ex rel. George F. Comstock, App’lt, v. The Mayor, etc., of Syracuse, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Taxes—Statutes—Construction.
    Section 19 of chap. 475, Laws 1889, amending § 106 of chap. 26, Laws 1885, limited the tax levy of Syracuse to a given sum and proceeded, “provided, however, that in the city tax levy for 1889 there may be included in addition,” etc., certain other amounts, among which was one for opening 0. avenue. Later in the section was an absolute direction to include in the levy of 1889 a sum for a certain park. Held, that the item as to 0. avenue was permissive and should not be construed as mandatory.
    2. Same.
    In determining whether the word “ may,” in a statute, is equivalent to the word “shall,” not only the language of the act, but the circumstances surrounding its passage and the object in view, must be considered; and where such language is held to be mandatory, there must be a definite public interest or a vested, well-defined private right to be subserved, given or protected.
    3. Same.
    Having regard to the circumstances surrounding the passage of this act, it appeared that the relator was to deed the right of way for 0. avenue to the city, and that he had presented to the common council a deed among other things containing a forfeiture clause, and that the common council had refused to accept the deed. Held, that this circumstance, if in point, tended to show that the words in question in this act were permissive.
    Appeal from order directing the isssue of a peremptory writ of mandamus.

      0. A. Peck, for resp’t; 0. L. Stone, for app’lt.
   Martin, J.

This was an appeal from an order directing that a peremptory writ of mandamus issue, requiring the mayor and common council of the city of Syracuse to include in the city tax levy for the year 1890 the sum of $5,000, for payment in whole or in part of the cost of opening and improving Comstock avenue in that city.

The order was based on the provisions of § 19, chap. 475, Laws of 1889, amending § 106 of chap. 26, Laws of 1885. Before the amendment of 1889, that portion of the statute of 1885 which was amended was as follows: “ The common council of the city of Syracuse shall have authority and are hereby empowered to raise by tax upon the property of said city in each year as follows.” After specifying the amounts that might be raised for several specific and general purposes it further provided: “ § 106. The aggregate of the annual city tax levy, exclusive of local assessments, shall not in any year exceed the sum of $425,000 for all purposes.” By the statute of 1889 this last section was amended so as to read as follows: “ The aggregate of the annual city tax levy, exclusive of local assessments, shall not in any year exceed the sum of $700,000 for all purposes; provided, however, that in the city tax levy for the year 1889 there may be included, in addition to the annual levy provided for by the section hereby amended, the following named sums for the purposes specified, to wit: For the expenses of the police department, the poor department and the board of health, and other expenses theretofore paid by the board of city auditors, incurred since December 15,1888, a sum not exceeding $42,000. For the purchase and equipment of a police electric signal alarm system, a sum not exceeding $15,000. To provide for payment of the city’s share of the cost of the Croton street sewer, a sum not exceeding $17,000. For the construction or contribution toward the cost of constructing a bridge and approaches over the tracks of the Mew York Central & Hudson River Railroad Company, the Delaware, Lackawanna & Western Railroad Company and the Brie canal, where the same cross West G-enesee street in said city, a sum not- exceeding $10,000. For payment in whole or in part of the cost of opening and improving Comstock avenue, a sum of $5,000. For the city’s share of the cost of the improvement of Wilbur avenue and the extension and improvement of Milton avenue in said city¡ the sum of $30,000, or so much thereof as may be estimated by the city engineer as necessary for the purpose; the remainder of any sum so raised, if any, not required for such improvement and extension, shall be applied to the improvement of Burnet park. Provided, also, that in the annual city tax levy for each of the fiscal years, one thousand eight hundred and eighty-nine and one thous- and eight hundred and ninety, there shall be included the further sum of $10,000 for the improvement of Burnet park.”

The single question presented on this appeal is, whether the provision of the statute, that for the year 1889 there might be included in the city tax levy in addition to the annual levy the sum of $5,000 for payment in whole or in part of the cost of opening and improving Comstock avenue, was merely permissive or whether it should be construed as mandatory. The contention of the respondent which prevailed at the special term was, that this statute should be regarded as mandatory; that although it was permissive in form, still, as it clothed a public body with power to do an act which concerned the interest of the public, the execution of the power became a duty which it could be compelled to perform. As this is the only question in this case, and as it is claimed on one hand that the respondent’s contention is fully sustained by all the authorities, and on the other that an opposite doctrine is established by the later and more binding decisions, it is perhaps proper to examine the authorities bearing upon this question.

In Potter’s Dwarris on Statutes it is said: “ Where a statute directs the doing of a thing for the sake of justice, the word may means the same as the word shall. So, if a statute says, that a thing may be done which is for the public benefit, it shall be construed. that it must be done.” Page 220. In a note on the same page it is said: “ May, in a statute, means must, whenever third persons or the public have an interest in having the act done which is authorized by such permissive language. It may be construed to mean shall, when the public or individuals have a claim de jure that the power shall be exercised. 5 John. Ch., 118; 5 Cow., 188. But no general rule can be laid down on this subject, further than that such exposition ought to be adopted as shall carry into effect the true intent and object of the enactment. The ordinary meaning of the word, which is permissive, ought to be adopted, and must be presumed to be intended unless it would manifestly defeat the object of the provision.” 1 Pet., 64; 6 How. Pr., 224; 10 id., 239.

In Mayor v. Furze, 3 Hill, 612, Chief Justice Nelson said : “ The inference deducible from the various cases on this subject seems to be that where a public body or officer has been clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though the phraseology of the statute be permissive merely, and not peremptory.”

In People ex rel. v. Supervisors of Otsego County, 51 N. Y., 401, it was held that where a statute provides for the doing of an act for the sake, of justice, or where it clothes a public body or officer with power to do an act which concerns the public interest, or the rights of individuals, though the language of the statute be permissive merely, it will be construed as imperative, and the execution of the power may be insisted upon as a duty. In that case Earl, 0., said: “ The words ‘ authorized and empowered ’ are usually words of permission merely, and generally have that sense when used in contracts and private affairs; but when used in statutes they are frequently mandatory and imperative.” In the same case it was said: “ To determine this question, not only the language of the act, but the circumstances surrounding its passage, and the object had in view, must be considered.”

In People ex rel. v. Supervisors, 68 N. Y., 114, where the supervisors of Livingston county were authorized to adjust and audit certain claims, it was held that the act was mandatory. In that case Earl, J., said: “Here was something directed to be done for the sake of justice, and in such a case the word may ’ is generally construed to mean‘shall.’ Where it is merely indifferent whether a thing shall be done or not, then the word ‘may ’ in an act is usually construed to confer a permissive authority; but where the public interest or private right requires that the thing should be done, then the word ‘ may ’ is generally construed to mean the same as ‘ shall.’ In such a cáse it must be presumed that it was the legislative intent to confer the authority for the purpose of promoting the public interest or securing the private right.”

In Hagadorn v. Raux, 72 N. Y., 583, it was held that although the language of the statute under consideration in that case was permissive in form, yet, it being for the protection of public interest, the word “may” therein was equivalent to “must," and the statute was mandatory, as such was the intent of the legislature.

The same doctrine was held in the case of People v. Supervisors, 1 Sheldon Supr. Ct. R., 517, 520. Smith, J., said: “ In the construction to be given to the terms used in an act of the legislature to confer power upon public bodies like defendant, the intention of, the legislature must govern, to the end that the object of the law may be attained. Eor this purpose in many cases words which, in their ordinary use, are only permissive, must be considered as obligatory. Numerous decisions of the court hold that in certain cases the word ‘ may ’ means the same as the word ‘ shall ’ or must.’ And where public bodies or officers are authorized and empowered, or it is declared that it shall be lawful for them to do certain things, the act may be construed as imperative, so as to make it the duty of such bodies or officers to exercise the p ower conferred. ’ ’

In Phelps v. Hawley, 52 N. Y., 23; where an act provided that in case a bridge should be destroyed and not rebuilt, the bridge should thereupon become a public bridge and may be maintained at the expense of the county, it was held that the word “ may ” in the statute was mandatory and imposed the obligation to repair upon the county.

In People ex rel. v. Supervisors of Niagara County, 49 Hun, 32; 17 N. Y. State Rep., 342, where the supervisors were authorized by a majority vote to raise money by general tax, to be paid to the city of Lockport for construction of waterworks, it was held that the statute being passed to enable the defendant to perform a public duty in the discharge of a just claim, was, upon well settled principles, entitled to such consideration as would give mandatory import to the words used, and that it imposed upon the defendant the duty of exercising the power thus given, and that such a construction of the statute was not affected by the fact that the act authorized the action of the board of supervisors to be taken by a majority vote of the board.

In Cain v. City of Syracuse, 95 N. Y., 83, 91, where by the defendant’s charter i.ts common council had power to pass ordinances for demolishing buildings which by reason of fire “ may become dangerous,” it was held that the power conferred was simply one of local legislation, and the failure to exercise it did not make the city liable for injuries caused by the falling of a dangerous wall.

In discussing the questions involved in that case Finch, J., said : “We must consider the nature and scope of the duty, and in so doing must not be misled by the test which makes permissive words absolute and a command. That test is applicable only to solve a doubt and determine between a ministerial and judicial duty when such duty may possibly belong to either class, but will not serve to make a duty which is inherently and inevitably discretionary nevertheless ministerial because the public have an interest in its exercise or the rights of individuals may be affected by it.”

In Gilmore v. Oily of Utica, 121 N. Y., 568; 31 N. Y. State Rep., 880, Earl, J., said: “ Generally, permissive words used in statutes conferring power and authority upon public officers or bodies will be held to be mandatory where the act authorized to be done concerns the public interest or the rights of individuals. Minor v. Mechanics' Bank, 1 Pet., 46; Thompson v. Roe, 22 How., U. S., 422; N. & C. T. Co. v. Miller, 5 Johns. Ch., 101; Malcom v. Rogers, 5 Cow., 188; Mayor v. Furze, 3 Hill, 612; People ex rel. v. Supervisors, 51 N. Y., 401; People ex rel. v. Bd. Supervisors, 68 id., 114. The language is held to be mandatory in such cases, not arbitrarily, but because such is supposed to have been the legislative intention. There must be a definite, plain, public interest, or a vested, well-defined, private right, and then it will very justly be supposed that the legislature meant to subserve or protect the public interest or to give or secure the private right” The cases of Thompson v. Carroll, Minor v. Mechanics' Bank, Newburgh Turnpike Co. v. Miller, Malcom v. Rogers, were especially referred to as upholding the doctrine stated.

In Rex v. Barlow, 2 Salk., 609, it was held that where a statute directs a thing of a public nature, “may” is understood as “shall.”

In MacDougall v. Paterson, 11 C. B., 755, it was held that where a statute confers authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises.

In Queen v. Barclay, L. R, 8 Q. B. D., 306, 312, in discussing the question whether the word “ may ” should be construed as compulsory, it was said: “ The word may ’ is capable of different constructions, and has in certain cases been construed as meaning ‘must,’ and the true rule as laid down in Reg. v. Bishop of Oxford, L. R., 4 Q. B. D., 245, 525, is that the context and the surrounding circumstances must be looked at in order to see what in the particular case the construction should be.”

In Re Newport Bridge, 2 El. & EL., 377, where a statute enacted “ that where any bridge or bridges, or roads at the end thereof, repaired at the expense of any county, shall be narrow and incommodious, it shall and may be lawful to and for the justices of the county, at any of their general quarter sessions, to order and direct such bridge or bridges, and roads, to be widened, improved and made commodious for the public,” it was held that the section was permissive, not imperative, and left in the justices a discretion whether or not to order a bridge to be widened, though it was proved to them to be narrow and incommodious. In that case it was said that “the words ‘it shall and may be lawful ’ are to be taken in their primary sense as permissive and not compulsory, unless there be anything in the subject matter of the enactment requiring that they should receive a different construction.”

In Bell v. Crane, L. R., 8 Q. B., 481, the statute provided that every authority having power to impose rates “ may exempt ’’ a building used as a Sunday or ragged school from any rate. It was held that the rating authority had a discretion whether they would or not exempt such bulling. In delivering the opinion in that case Blackburn, J., said: “ There is no doubt that ‘may,’ in some instances, especially where the enactment relates to the exercise of judicial functions, has been construed to give a power to do the act, leaving no discretion as to the exercise of the power when the facts are such as to call for it But in the present act, instead of saying that Sunday and ragged schools shall be exempt, the legislature say the rating authority may exempt them. * * * This shows that it was not intended that the exemption under the present act should be absolute. It is clear, therefore, that the use of the phrase ‘may exempt’ was intended to give a discretion.”

In Queen v. Bishop of Oxford, L. R., 4 Q. B. D., 245, 247, Cockburn, Ch. J., quoting the language of Mr. Justice Crompton, said : Prima facie, the words ‘it shall be lawful ’ import a discretion. It is only where the subject matter imperatively requires it that they can receive a different construction.”

Our purpose in quoting thus fully from the authorities cited Iras not been simply to show that words permissive in terms have been sometimes construed as mandatory, but to show in what cases such construction has been held proper, and also to discover, if possible, the grounds upon which such construction has been based. A careful examination of the authorities bearing upon this subject discloses quite clearly, we think, that the decisions holding that permissive words should sometimes be construed as mandatory have been based upon the supposed intent of the legislature. While many general expressions have been used which, when taken alone, might seem to indicate that the word “may,” or words of similar import, should be construed as mandatory when the public interest or the rights of individuals are involved, independent of any question of legislative intent, still, when the cases are examined, it will be seen that such construction has prevailed only in cases where the statute under consideration, when taken as a whole and viewed in the light of surrounding circumstances, indicated a purpose on the part of the legislature to enact a law mandatory in its character. In other words, the courts have sought the intent of the law makers, and, when found, they have carried out such intent by construing permissive words as mandatory. These cases are in harmony with the general and fundamental rule that statutes should be so construed as to give effect to the purpose of the law makers. Therefore, in the decision of this case we are required to determine whether the legislature intended to peremptorily require the common council to include the sum of $5,000 in the tax levy for the year 1889 for the payment in whole or in part of the cost of opening and improving Comstock avenue, or whether the intention was merely to permit it to do so if it should deem it proper and for the best interests of the city.

The language of the statute was, “ there may be included.” These words are clearly permissive and not mandatory. As it is only where it is necessary to give effect to the clear policy and intention of the legislature that the liberty of construing words that are permissive as mandatory can be taken with the clear words of a statute, it follows that unless the statute under consideration, when construed in the light of the surrounding circumstances, shows that it was the purpose of the legislature to peremptorily require the- council to include that sum in the tax levy, the words must be construed as permissive only. 22 How. (U. S.) 434.

It is said by the learned counsel for the respondent that “ in seeking the proper construction of this provision, the facts in relation to Comstock avenue and the resolution of the common council requesting that an item for its improvement be inserted in the pending bill are to be considered.” An examination of the moving papers shows that the common council had taken steps to extend Comstock avenue from University Place to the James-ville Eoad; that subsequently it had passed a resolution to the effect that a proposed, appropriation by the legislature of $40,000 for the improvement of Burnet Park should be reduced to $35,000 and the remainder appropriated and expended for grading, opening and extending Comstock avenue as laid out and surveyed, and that the senator of that district be requested to procure the act to be so amended, “ provided, however, that George F. Com-stock shall donate to the city for highway purposes so much lands belonging to him as shall be required for said extension of said highway/’ Thus it seems that the condition upon which it was intended that $5,000 should be appropriated for the opening and grading of this avenue was, that the respondent should donate to the city so much of his lands as should be required for the extension of the street It is perhaps proper to assume that the act in question, so far as it relates to this subject, was passed in pursuance of the resolution of the common council. If, as claimed by the respondent, we should consider these facts in determining the intent of the statute, they tend to show that the purpose of the act was to appropriate $5,000 to the opening of Comstock avenue only in the event that the necessary lands belonging to the respondent were donated for that purpose, and hence that the legislature could not have intended to peremptorily require the common council to thus expend that sum. The papers in this case also show that while the respondent presented to the common council a deed conveying the required lands for street purposes, it contained a forfeiture clause, which was as follows: “And in case the said premises shall not be opened as such street or highway with a proper grade within a reasonable time from and after the date hereof, then these premises shall ipso facto cease and determine and be void without entry or forfeiture.”

This deed the common council did not deem it advisable to accept and resolved to return it. We find nothing in these facts which tends to show that the words used in the statute under consideration were intended as mandatory. They are more consistent with the claim that the legislature intended only to confer upon the common council the permissive right to include that sum in the tax levy for the purpose named, if they should receive a proper deed from the respondent and they should deem it proper and for the best interests of the public to do so.

Again, it may be observed that the word may is used in one portion of the section and the word shall in another. This would seem to indicate that as to one class of appropriations it was the intent of the legislature to leave it to the discretion of the common council whether they would include them in the tax levy or not, and that as to another it was the intent to require it to be done. That such was the intent is made more apparent by the order in which such contemplated appropriations were arranged in the statute. They were mentioned separately. First the appropriations which the common council might include in the annual levy were enumerated, and an examination of those mentioned in that portion of the section shows that most, if not all, were of such a character as to render it improbable that the legislature intended to compel the council to include them in the tax levy. After making these provisions the statute then declares that there shall be included in such levy the sum of $10,000 for the improvement of Burnet Park. The former were permissive; the latter was imperative. As was said by Grove, J., in Davies v. Evans, L. R., 9 Q. B. D., 243: “ The framer of the act ■evidently knew what words to use when he intended to be imperative,” and presumably the words used were those intended.

By the charter of the city the power to lay out, make, open, regulate, repair, improve, alter and discontinue highways is vested in the common council. Laws 1885, chap. 26, §§ 30, 22. By the amendment in question the council were given permission to include a certain sum in the tax levy for the opening and improvement of one of the highways of the city. That it was the purpose of this act in any way to interfere with the duties and discretion of the council in relation to the opening or improvement of this street by compelling it to include in the tax levy the sum named for the opening and improvement of it does not seem probable. Suppose the common council had received the money necessary for this purpose from some other ■source, could it be insisted that it was still bound to insert that amount in the levy ? Again, suppose that for some good reason the common council were convinced and had determined that the best interests- of the city required that this highway should not he opened and improved, can it be said that the intent of this amendment was to compel it to do so and in effect repeal the ■statutes which vested in it the power to control the highways of the city ?

When we examine this statute as a whole, in the light of the surrounding circumstances, and in view of the apparent object ■of its passage, we áre unable to discover any such intent or purpose on'the part of the legislature as would justify us in holding that the words used therein, which are permissive only, should be construed as mandatory. We are of the opinion that the legislature intended only to give the council permission to include this sum in the tax levy if, in its discretion, it deemed it proper, and that the facts in this case would not justify our holding otherwise. It follows, therefore, that the order appealed from should be reversed.

Order reversed, with ten dollars costs and disbursements.

Hardin, P. J., and Merwin, J., concur.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Browning A. Wilcox, Resp’t, v. William H. Howe, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Execution—Exempt property.
    The exemption of articles from execution granted by Code Civ. Pro., § 1390, is absolute.- In the case of the further articles exempted by § 1391, “necessary household furniture, working tools, and team, etc., not exceeding in value §250,” the exemption is limited and indefinite and must be asserted. And if an officer levy upon the latter class of property under § 2909, Code Oiv. Pro., the debtor must claim the exempiion and notify the officer thereof before he can maintain against such officer an action, either for conversion or replevin.
    Appeal from a judgment of the Jefferson county court in favor of plaintiff entered upon a verdict directed by the court.

      E. G. Emerson, for resp’t; George E. Morse, for app’lt.
   Martin, J.

This is an appeal by the defendant from a judgment county court, upon of a jury, rendered under the direction of the court. The judgment, awarded to the plaintiff the possession of a horse and wagon and determined their value at eighty-five dollars. It also awarded to the plaintiff six cents damages and $72.59 costs.

The action was to recover the possession of the horse and wagon in question. They had been levied upon and taken by the defendant as a constable by virtue of a warrant of attachment against', the property of the plaintiff issued out of a justice’s court. The plaintiff based his right to recover the possession of the property on the ground that it was exempt from levy and sale under execution. It was not exempt under the provisions of § 1390 of the-Code of Civil Procedure. If exempt, it was under § 1391, and because it constituted a part of the working tools or team of the plaintiff, who was a householder having a family for which he provided.

The evidence discloses that when the property in question was taken, the plaintiff had property of the description mentioned in § 1391 of the Code, which was of the value of $340, including the property in question. There was no evidence he, before action, claimed this property as exempt, nor that he demanded it of the defendant. On the trial dhe court held that no such claim or demand was necessary, but that it was the duty of an officer executing a warrant of attachment to determine at his peril that the property taken by him was not and could not be properly claimed as exempt. Upon that ground alone a verdict was directed for the plaintiff. The correctness of that ruling presents the only question necessary to be determined upon this appeal.

This ruling is sought to be sustained upon the ground that it was justified by the provisions of § 2909 of the Code of Civil Procedure, which provides that the constable must execute a warrant of attachment by levying upon the goods and chattels of the defendant “ not exempt from levy and sale by virtue of an execution.” In determining the effect to be given to this provision, it is necessary to briefly examine the provisions of the Code which relate to property exempt from execution.

Section 1390 provides that certain specified articles of personal property when owned by a householder shall be exempt. Section 1391 provides that “in addition to the exemptions allowed by the last section, necessary household furniture, working tools and team, professional instruments, furniture and library, not exceeding in value $250 * * * are exempt from levy and sale by-virtue of an execution when owned by a person being a householder, or having a family for which he provides. * * * ” There are two classes of exemptions provided for by the statute. One relates to certain articles which are specifically enumerated and absolutely exempted. The other is limited to the sum of $250, and there may be claimed under it property of the kind mentioned in § 1391 to that amount, but to that amount only. The latter exemption is limited and indefinite, and where the debtor has property of that character of greater value than $250, it is dependent upon his election as to the particular property that may be retained by him as exempt.

Construing the provisions of § 2909 in the light of the provisions of §§ 1390 and 1391, the inquiry presents itself whether the provision that a constable must execute an attachment by levying upon the property of the defendant not exempt from levy and sale under execution in effect forbids the officer to levy upon any property that might be exempt under either section, or whether it relates only to the property specifically exempted by § 1390, and such as is claimed by the defendant or known to the officer to be exempt under § 1391. If it were to be held that an officer could not levy upon any property of the description mentioned in § 1391 without becoming liable to an action for its recovery when no demand was made nor claim that it was exempt asserted by the owner, it would follow that all property of that character would be practically exempt from levy under an attachment, although it greatly exceeded in value the limit provided by that section. We think no such construction should be given to this statute.

If property consists of the articles mentioned in § 1390, it is absolutely exempt if the owner is a householder, and the officer has no right to levy upon it. If, however, the property is of the description mentioned in § 1391, the exemption is a qualified one and the debtor must claim it and notify the officer of his claim before he can properly maintain an action either for its conversion or to recover its possession, especially when there is other property to which such exemption might apply.

In Russell v. Dean (30 Hun, 242), where a constable levied upon the only team owned by a debtor who was a householder, and it did not appear what other property he then had, and where he did not at the time of the levy, or at any other time, claim it as exempt, it was held that he thereby waived any exemption he might have been entitled to under § 1391 of the Code. See, also, Turner v. Borthwick, 20 Hun, 119; Twinam v. Swart, 4 Lans., 263; Seaman v. Luce, 23 Barb., 240; Lockwood v. Younglove, 27 id., 505; Dains v. Prosser, 32 id., 290; Baker v. Brintnall, 52 id., 188.

We find nothing in the cases cited by the respondent in conflict with the views above expressed. In those cases the property was either absolutely exempt or known by the officer to be exempt when the levy was made. In this case the property was neither absolutely exempt nor known by the officer to be so, nor was it in any way claimed as exempt until this action was commenced.

The plaintiff had property of the kind mentioned in § 1391, which was of the value of more than $250 besides that taken by the defendant, as to which he could as well have claimed an exemption under that section. Under these circumstances we think it was error for the court to direct a verdict for the plaintiff, and for that error the judgment should be reversed.

Judgment reversed on the exceptions, and a new trial ordered, with costs to abide the event.

Hardin, P. J., and Merwin, J., concur.


author: Martin, J. Merwin, J. (dissenting).

text:
    In the Matter of the Accounting of Frederick Emerson, as Ex’r etc., of Asahel Read, deceased. Frederick Emerson, Ex’r, App’lt, v. Mary A. Webster et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Executors and administrators—Accounting—Construction or will.
    R. gave the residue of his estate, real and personal, to his executor in trust to pay the same to M. A. W. during life, and after her decease devised all his estate to M. R. W., if she was at the time twenty-one years of age; if not, when she should he twenty-one years of age, the said income to be used for her benefit until that time. Reid, that the will contemplated a severance of the functions of executor from those of trustee; that the executor was entitled to account finally as executor and to a decree transferring the estate from himself as executor to himself as trustee.
    (Merwin, J., dissents.)
    Appeal by Frederick Emerson, as executor of Asahel Read, from a decree of the surrogate of Jefferson county denying his right to a final accounting and discharge as such executor.
    On the 11th day of June, 1881, Asahel Read made and executed his last will and testament, whereby, after bequeathing to Asahel Read, son of Hiram C. Read, a certain legacy therein mentioned, he gave, bequeathed and devised “ all the rest, residue and remainder of my real and personal estate to my friend, Frederick Emerson, the executor of this my last will and testament hereinafter nominated, in trust for the payment of my just debts and funeral expenses, and then to pay the income from said estate to Mary A. Webster during her natural life, to be used by her for her own support and the care and support of Mary R. Webster, and from and immediately after the decease of the said Mary A. Webster, I give and devise all my said estate to Mary R. Webster, if she at the time be of the age of twenty-one years, if not, when she shall be twenty-one years of age, and the said income to be used for her benefit until that time.” He then nominated and appointed Frederick Emerson as sole executor of his will, with full power, if he should deem it necessary, to sell and convey any or all of his real estate upon such terms and at such times as he should think best The will also provided that if the appellant should die before Mary R. Webster became twenty-one years of age, the surrogate should appoint some proper person to take his place. This will was duly admitted to probate by the surrogate of Jefferson county June 7, 1887. The appellant duly qualified as such executor and has since acted as such. He made and filed an inventory, as required by law, published the regular notice to creditors, collected the debts due the estate and paid the funeral expenses, debts and legacies. On the 20th day of January, 1890, the executor voluntarily filed his petition for a final accounting as such. This proceeding was commenced by the issuing of a citation, upon the return of which the executor filed an account of his proceedings as such, and asked to be discharged as executor, and that the balance of the estate in his hands as executor should be transferred to him as testamentary trustee under said will.
    The surrogate denied his right to a final accounting and discharge as executor, and held that the accounting was but an intermediate one. He also held that the offices of executor and trustee were co-existent and continuous and that the executor should retain the estate in his hands as such until the death of Mary A. Webster or until Mary E. Webster should become twenty-one years of age. He likewise refused to discharge the appellant as executor or to decree the trust fund into his hands as-trustee under said will. Erom this determination of the surrogate an appeal was taken by the executor.

      Sam Child, for app’lt; Joseph Atwell, for Mary A. Webster-J. C. McCartin, for Mary E. Webster.
   Martin, J.

The questions involved on this appeal are dependent for their solution upon the true construction of the testator’s, will. If the purpose of the testator as shown by the language employed in his will was to blend the functions and duties of the executor and trustee so that they were inseparable and were to run together from the death of the testator until the appellant’s final discharge, the decree appealed from was proper and should be affirmed. If, however, the provisions of the will show that the testator contemplated a severance of the functions and duties, of the executor from those of the trustee, then it follows that the decree was wrong and should be reversed.

After making certain bequests to Asahel Eead, the testator by his will devised and bequeathed to the appellant all the rest and residue of his estate, real and personal, in trust, 1. To pay his debts and funeral expenses; 2. To pay the income from the estate to Mary A. Webster during her natural life; and 3. Upon her decease to pay over to Mary E. Webster the whole of said estate if she should be twenty-one years of age, if not, when she became of age, and to use the income for her benefit until that, time.

That the testator intended to appoint the appellant a testamentary trustee to carry out the provisions of his will, as well as to constitute him the sole executor thereof, is manifest. The will conferred upon him the dual character of executor and trustee. As executor it was his duty to take possession of the estate, collect the debts due the testator, pay his debts and funeral expenses, pay the legacy given by the will and sell the real estate if he should deem it necessary.

These were his executorial duties. As trustee he was required to keep the residue of the funds belonging to the estate invested and to pay over the income derived therefrom to Mary A. Webster until her death, and if she died before Mary R. Webster became twenty-one years of age, then to appropriate the income thereof to her use until that time. Upon the death of Mary A. Webster and the majority of Mary R. Webster, the trust would end and the appellant would be required, as testamentary trustee, to account to Mary R. Webster for the estate in his hands.

We think the will shows that the functions of the executor and the duties of the trustee were separate. They were not to be executed concurrently and continuously to the end. The duties of the appellant as executor preceded his duties as trustee. The former were to be performed before the latter began. The trust as executor was ended when the appellant had taken possession of the estate, paid the legacies, debts and funeral expenses and rendered an account of his trust as such to the surrogate. He was then entitled to hold the estate as a trustee under the will. As such testamentary trustee, it was his duty to dispose of the income, and ultimately of the corpus of the estate, as directed by the will, and to account to bis cestuis que trust as such testamentary trustee. We think the learned surrogate should have stated a final account with the appellant, made a decree discharging him as executor and directing a transfer of the estate in his hands as executor into his hands as trustee, and awarded him such commissions as he would have been entitled to upon such an accounting and decree.

This conclusion is, we think, fully sustained by the following authorities: Laytin v. Davidson, 95 N. Y., 263; Matter of Mason, 98 id., 527, 534; Phoenix v. Livingston, 101 id., 451; Matter of Willets, 112 id., 289; 20 N. Y. State Rep., 735; Matter of Crawford, 113 N. Y., 560; 23 N. Y. State Rep., 722; Matter of Babcock, 52 Hun, 510; 23 N. Y. State Rep., 592.

It follows that the decree of the surrogate should be reversed, with costs payable out of the fund.

Decree reversed, with costs to the appellant payable out of the estate.

Hardin, P. J., concurs.

Merwin, J. (dissenting).

Within the rule laid down in Johnson v. Lawrence (95 N. Y., 154), I think this is not a case for the separation of the duties of executor and trustee. From the last clause of the will it is apparent that the testator contemplated that the office of executor should exist till the final distribution.

I therefore dissent


text:
    Andrew J. Gaudin, App’lt. v. The Village of Carthage, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Megligehce—Villages—Telegraph poles.
    A horse driven by a mail carrier, who had already lost control of the horse, struck a telegraph pole situated near the walk and between it and the traveled part of the street in a village, thereby broke away from the wagon, ran about sixty rods and injured plaintiff, who was crossing the street. Ño special authority from the village to build the telegraph line was shown. The plaintiff did not look up or down the street when he attempted to cross. Held, that suffering the pole to be in the street was not negligence per se; that the pole (as it seems) was not the proximate cause of the injury, and that the manner in which plaintiff crossed the street established contributory negligence upon his part.
    Appeal from a judgment, entered in Jefferson county upon an order of the court directing a dismissal of the complaint. The action was tried before a jury. At the close of the evidence the order was made.

      Kilby & Kellogg, for app’lt; Porter & Walts, for resp’t.
   Martin, J.

We think this appeal should not prevail. The action was for negligence. The only negligence alleged was that the defendant permitted a telegraph pole to remain standing in one of its streets, at a point not to exceed twelve feet from a railroad track that was laid upon the street. .The proof was that the pole stood between the sidewalk and traveled portion of the street, and from five inches to a foot from the walk. This pole was a part of a telegraph line extending from the station at Carthage to Jayville. The line was built and operated by the Carthage & Adirondack Railway Company. A railroad track was laid, along the street with the consent of the president and board of trustees of the village. If any special authority was given by the defendant or its officers to build the telegraph line, of which the pole in question formed a part, it was not proved.

At the time of the injury one Hollister, a man seventy-eight years of age, was engaged in carrying the mail from the depot to the post office in the village of Carthage. His horse was timid, nervous and somewhat afraid of the cars. At about seven o’clock p. M. on that day he was at the station, obtained the mail and started up Mechanic street, on which the pole in question stood. As the train passed along the street his horse became frightened and commenced to run. He lost control of her and she then ran against the pole in question. Hollister was thrown out and the home broke loose from the wagon and ran about sixty rods to the place where the plaintiff was crossing the street, where she ran over him and caused the injury of which he complained.

The plaintiff’s injury was sustained while he was crossing one of the principal and most generally traveled streets in the village, which had a population of several thousand inhabitants. He was on foot and there was nothing to obstruct his view or to prevent his hearing the approach of a horse or team passing over the street, except that it was in the evening, notwithstanding this, so far as the proof shows, he attempted to cross without paying the slightest attention to his surroundings or attempting to discover if any team or horse was approaching. Indeed his own testimony was that he did not look down the street at all before he turned the corner and that he does not reco’lect that he looked either up or down the street when crossing.

To entitle the plaintiff to recover, he was bound to show that the defendant was negligent in permitting the pole in question to remain where it had been placed by those who constructed the telegraph line, that such negligence was the proximate cause of his injury, and that he was free from any negligence which contributed to such injury.

We do not find the evidence sufficient to show that the defendant omitted any duty it was required to perform which was the proximate cause of the plaintiff’s injury. To allow a telegraph pole to be erected in the streets of a village or c-ity is lawful. Hence, the erection of this pole was not negligence per se. The pole stood between the sidewalk and the traveled part of the street. This was where such poles are usually placed. The distance of the pole from the sidewalk was not unusual or shown to be improper. There was no evidence that the pole was not properly set or that it was not properly maintained where it was. If it can be held that it was negligence for the defendant to permit this pole to remain at that place, it would be equal negligence to permit a hydrant or hitching post to be placed, or trees to grow between the sidewalk and the traveled portion of a street, as is frequently done.

Again, can it be said that this pole standing at that place was the proximate cause of the plaintiff’s injury ? The horse had become frightened and unmanageable. The plaintiff was injured by the horse while running away. She was beyond the control of the driver before she came in contact with the pole. Would the jury have been justified in finding that the accident would not have happened but for the pole standing at that place? If not, then clearly the plaintiff could not recover, as the defendant would not be liable unless the injury would not have occurred but for its presence there..

Moreover, it is difficult to perceive how it could be found that the plaintiff was free from contributory negligence. His own testimony shows that he attempted to cross a street upon which there was a great amount of travel without exercising any vigilance or care to protect himself from injury by approaching teams or horses.

In Barker v. Savage (45 N. Y., 194), in referring to the duty of a person crossing a street, it is said: “ To enter upon a street crossing in a city where the moving vehicles are numerous, and a collision with them likely to produce serious injury, without looking in both directions along the street to ascertain whether any are approaching and if so the rate of speed and how far from the crossing, would not only be the omission of reasonable- care for his own safety, but an act of rashness. It is likewise the duty to look at street and road crossings for a like purpose, when there may be danger from approaching vehicles, although the travel may be quite trifling, for the reason that vehicles may be approaching so as to make it dangerous for footmen to proceed.” See also Harnett v. Bleecker St., etc., R. R. Co., 49 Supr. Ct., 185; Smith v. Smith, 50 id., 503.

While it may be that this rule has been somewhat modified by the doctrine of the case of Moebus v. Herrmann (108 N. Y., 349; 13 N. Y. State Rep. 648), which holds that the duty imposed upon a wayfarer at the crossing of a street by a railroad track to look both ways, does not, as a matter of law, attach to one about to cross a city street, still, there is nothing in that case which tends to establish the doctrine that a person may heedlessly cross a street without exercising any vigilance or care to avoid collision with passing teams and not be guilty of negligence.

We are of the opinion that the evidence in this case was insufficient to establish negligence on the part of the defendant which was the proximate cause of the plaintiff’s injury or to establish the plaintiff’s freedom from contributory negligence, and that the court properly dismissed the plaintiff’s complaint It follows that the judgment should be affirmed. c.

Judgment affirmed, with costs.

Hardin, P. J., concurs; Merwin, J., concurs in the result.


text:
      In re Accounting of Edward S. Dawson, Jr., Assignee. L. D. V. Smith, App’lt, v. Edward S. Dawson, Jr., as Assignee, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Assignment fob cbeditobs—Pabtneeship—Debts of old fibm.
    S., a member of the firm' of S. & A., then solvent, sold his interest in the firm to E>, and the business was continued by the firm of A. & E. The new firm assumed the debts of the old, paid some of them, and failing included in their schedules of assignment the unpaid debts of the old firm. Held, that by this transaction the new firm became the principal debtors for the debts of the old firm, while S. was merely a surety. That the assignment, which directed the payment of these debts of the old firm, must control and that those creditors were entitled to share pro rata in the assets with the creditors of the new firm.
    2. Same—Appeal.
    S. was a party in interest, and was entitled to appeal from an order made in the assignment proceedings under- which the creditors of the new firm were preferred over those of the old.
    Appeal by L. D. Y. Smith from an order confirming the report of a referee, which held" that the creditors of the firm of Ashcroft & Edwards be paid in full and that any surplus be applied on the debts of the firm of Smith & Ashcroft.

      Hoyt, Beach, Hancock & Devine, for app’lt; H. M Miller, for resp’t.
   Martin, J.

On and prioy to June 25, 1889, L. D. V. Smith and H. M. Ashcroft were copartners in the grocery business in the city of Syracuse, N. Y., doing business under the firm name of Smith & Ashcroft. On that day Smith, who was an equal partner, sold his interest to John B. Edwards, who became a partner of Ashcroft, and the business was continued under the firm name of Ashcroft & Edwards. At the time Smith sold to Edwards the firm of Smith & Ashcroft was solvent, and worth from six to seven thousand dollars over and above its liabilities. Edwards took Smith’s interest, subject to. one-half of all outstanding debts and obligations against the firm of Smith & Ashcroft, which he assumed and agreed to pay.

On the 15th of January, 1890, the firm of Ashcroft & Edwards made a general assignment for the benefit of their creditors to Edward S. Dawson, Jr., who accepted the trust, filed his bond, and entered upon the discharge of his duties. From fifty to sixty per cent of the assets that came into the hands of the assignee under that assignment was the property owned by the firm of Smith & Ashcroft at the time of the transfer of Smith’s interest to Edwards. The assignee realized from the property which came into his hands the sum of about $4,000, while the debts of the assignors amounted to about $9,500, including the debts contracted by Smith & Ashcroft.

On June 27, 1890, the assignee made and filed an account of his proceedings, and citations were issued upon his petition. An order was subsequently made referring the matter to a referee to-take and state the assignee’s account, and to take proof and report as to what persons were entitled to share in the distribution of the assigned estate, and in what priority and in what proportion. Upon the hearing before the referee the assignee filed objections to the payment of certain claims for goods which were sold to the firm of Smith & Ashcroft. These debts were proved against the estate by the holders thereof. In the inventory or schedule filed by the assignee, and verified by both asssignors, the claims to which the assignee objected were included and intermingled with those of other creditors, and set out as debts of the firm of Ashcroft & Edwards.

On July 16, 1890, the referee’s report was filed, wherein he found that the claims to which the assignee objected should be disallowed, and that the creditors of Ashcroft & Edwards should be paid their claims in full, and, should there be any surplus after the payment of such debts, then it should be applied to the debts of the firm of Smith & Ashcroft pro rata. On July 31st an order was entered confirming this report, and directing that the assignee pay the creditors in the order mentioned. From this order an appeal was taken by the appellant.

The proof taken in this proceeding shows quite conclusively that the transfer by Smith to Edwards was made with the consent of Ashcroft, and that the firm of Ashcroft & Edwards assumed the payment of the debts and liabilities of the firm of Smith & Ashcroft.

This seems to be very clearly established by the evidence of the witnesses Smith, Ashcroft, Watson and Pardee. Besides, the manner in which the business was conducted by the new firm, the fact that it continued paying the debts of the old, and the further fact that the debts of the old firm were included in the schedules of the debts of the new, and verified by both Ashcroft and Edwards, all lead naturally and necessarily to the conclusion that the new firm assumed the debts of the old. The evidence and the acts of the parties were wholly inconsistent with any other theory.

Assuming, as we think we must, that the debts of the old firm were assumed by the new, it follows that the new firm became the principal debtor, while Smith, the outgoing partner, was a mere surety for the payment of the old firm debts. Savage v. Putnam, 32 N. Y., 501; Morss v. Gleason, 64 id., 204. This relation between the parties the creditors of the old firm were bound to observe. If they had notice of the transfer by Smith and the relations assumed by the new firm, upon Smith’s request it would have been their duty to have collected their debts of that firm, and if, through their neglect to comply with such request, the debts became uncollectible, Smith would have been discharged. Colgrove v. Tallman, 67 N. Y., 95; Calvo v. Davies, 73 id., 211; Hunt v. Purdy, 82 id., 487; Palmer v. Purdy, 83 id., 147; Grow v. Garlock, 97 id., 81.

While it is true that the question here is not whether Smith could have compelled the creditors of the old firm to enforce their claims against the new if it had remained solvent, and hence the authorities cited by the respondent have no application, still the doctrine of the authorities cited above shows that the transactions between the parties had the effect to constitute the new firm the principal debtor to the creditors of the old, with Smith remaining liable as-surety only, and that Smith had a right to insist that these debts should be paid from the assets of the principal debtors, at least so far as to share pro rata with the other general creditors of that firm.

This was both equitable and just. As we have already seen, from fifty to sixty per cent of the assets that came to the hands of the assignee consisted of property that formerly belonged to the old firm and was transferred to the new. The property transferred to the new firm was held by it charged with a trust for the payment of the debts of the old. Morss v. Gleason, 64 N. Y., 205, 20_ .

_ Moreover, the assignors by their assignment dedicated their property to the payment of the debts in question as well as the debts subsequently contracted. The debts of the old firm were recognized by the assignors as the debts of the new, and were included in their verified schedule as such. The direction to the assignee contained in the assignment was that he should, after paying the costs and expenses of executing his trust and the preferred creditors, pay all the debts and liabilities of the firm in full, if the assets were sufficient; if not, the unpreferred creditors were to be paid pro rata. The debts in question were included within that provision. Chapin v. Thompson, 89 N. Y., 271.

It may be observed in passing that the objections to the payment of the debts in question were not made by the other creditors, but by the assignee alone. He seems to have deemed it his duty to object to these debts, notwithstanding the fact that the assignors were liable therefor and bad included them in the schedule of debts which were to be paid by him. In the Matter of Lewis (81 N. Y., 424), the court in discussing the question of the effect of an assignment upon the duties of an assignee and the power of a court to direct the assets in the hands of an assignee to be distributed otherwise than in accordance with the provision of the assignment, said-: “ The assignee derives all his power from the assignment, which is both the guide and measure of his duty. Beyond that, or outside of its terms, he is powerless and without authority. The control of the court over his actions is limited in the same way, and can only be exercised to compel his performance of the stipulated and defined trust, and protect the rights which flow from it. He distributes the. proceeds of the estate placed in his care according to the dictation and under the sole guidance of the assignment, and the statutory provisions merely regulate and guard his exercise of an authority derived from the will of the assignor. The courts, therefore, cannot direct him to pay a debt of the assignor, or give it preference, in violation of the terms of the assignment and the rights of creditors under it. To hold the contrary would be to put the court in the place of the assignor, and assert a right to modify the terms of the assignment, after it had taken effect, against the will of its maker, and to the injury of those protected by it. We agree that the assignee is merely the representative of the debtor and must be governed by the express terms of his trust.” We are of the opinion that neither the assignee nor the court was justified in rejecting the debts in question, but that they were debts of the new firm; that the holders thereof were entitled to share pro rata with the other unpreferred creditors of that firm; and that the-appellant had a right to insist that they should be so paid.

The assignee claims that the appellant was not interested in the proceeding, and therefore not entitled to prosecute this appeal. We think otherwise. We think he was a party in interest, and that this appeal was properly taken. It follows that the order appealed from should be reversed.

Order reversed, with costs to the appellant payable out of the funds in the hands of the assignee.

Hardin, P. J., and Merwin, J., concur.


text:
    Frank D. Crim, Ex’r., et al., Resp’ts, v. Rufus G. Starkweather et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Reference. '
    Wliere the findings of a referee are fairly sustained by the evidence this court will not interfere.
    2. Same—Refusals to find.
    Where a referee has found the main issue against the appellant, the refusal of the referee to make certain findings of fact requested by him and justified by the evidence, but which would not have changed the result, is not ground for a reversal of the judgment.
    Appeal from a judgment, entered in Herkimer county on the report of a referee, in favor of the plaintiff for $16,919.06.

      John D. Kernan, for resp’ts; George W. Smith, for app’lts.
   Martin, J.

This action was to recover the amount of five drafts sent to the National Park Bank of New York by the plaintiff’s testator and credited to the firm of Grim & Starkweather. With interest the drafts amounted to the sum of $16,213.81. That the plaintiff’s testator advanced the amount represented by these drafts and that that amount was placed to the credit of the firm of Crim & Starkweather at the Hational Park Bank and used by the firm is not disputed by the appellant. The defendant was a member of the firm of Grim & Starkweather. William T. Grim was also a member of that firm and was a son of the plaintiff’s testator.

The claim of the defendant was, that the deposits which were placed to the credit of the firm of Crim & Starkweather were not loaned or advanced to that firm, but were loans or gifts to William T. Crim. This was the principal issue litigated on the trial.

The evidence on the part of the plaintiff tended to show that the money in question was advanced upon requests made by telegrams signed by the firm of Grim & Starkweather, and that the money was advanced to that firm and not to William T. Crim individually. On the other hand, the defendant introduced evidence of the admissions and statements of the testator and other evidence which tended to show that the moneys in question were loaned or advanced to William T. Grim individually.

As upon this issue there was a conflict in the evidence, a question of fact was presented for determination by the referee. He found that this money was advanced and loaned to the firm at its request and deposited to its credit. We think that finding was fairly sustained by the proof and have no reason to suppose that the referee was not guided in his decision by a conscientious and intelligent judgment based upon the evidence given before him. In reviewing the determination of a trial court on questions of fact, where the evidence is conflicting, an appellate court is not warranted in reversing, even when in its opinion a contrary conclusion should have been reached. Baird v. Mayor, 96 N. Y., 567. We think the finding of the referee was justified by the evidence, and that it should be sustained.

It is urged by the appellant that the referee erred in refusing to find several of the requests proffered by him. Many of those refused were requests to find mere evidentiary facts. If, however, we were to assume that the requests were proper and should have been found, still, if the refusal was not prejudicial to the appellant, the judgment should not disturbed. Matter of Hicks, 14 N. Y. State Rep., 320; Woodman v. Penfield, 6 N. Y. Supp., 803, 804; 25 N. Y State Rep., 297. It is quite manifest that when the referee had found the principal issue against the defendant that his refusal to find the defendant’s requests, so far as he was required by the evidence to do so, could not have been prejudicial to him. We think the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.


author: Dykman, J.

text:
    Ira Porter, Resp’t, v. The New York, Lake Erie & Western R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Negligence—Carriers—Release.
    One S. shipped live stock over defendant’s road, and in consideration of reduced rates and a free pass executed a contract releasing defendant from all damages attending the transportation, custody and delivery of the stock except such as might arise from its fraud or wilful misconduct. Plaintiff was employed by S. to take charge of the stock and was named in the contract and way bill as in charge free. While so in charge he was injured by a concussion between two of the cars. Held, that the contract related wholly to the live stock and did not release the company from liability for plaintiff’s injuries.
    Appeal from judgment in favor of plaintiff, entered, upon a verdict.

      Lewis E. Carr, for app’lt; W. F. O'Neill, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff against the defendant and from the order denying a motion for a new trial in an action for damages sustained by the plaintiff on the defendant’s railroad.

The plaintiff was riding on a freight train in charge of a carload of cattle belonging to James Schoonmaker, who shipped the cattle over the defendant’s railroad from Cochecton to New-burgh.

In consideration of a reduced rate for transportation and a free pass Schoonmaker entered into a written contract in which he released the railroad company from all damages attending the transportation, custody and delivery of the stock, except such as might arise from the fraud or wilful misconduct of the company. The plaintiff was employed by Schoonmaker to go in charge of the stock, and he was designated by name in the contract and in the way bill as in charge free. '

At Otisville, on a descending grade, the train was detached from the caboose to take in some other cars, and the plaintiff remained in the caboose. When the other cars were attached the caboose car was permitted to run down to the train, and the defendant claims that the concussion caused by the impingment of the two cars when they came together to be coupled was the cause of the plaintiff’s injury, and that such shock was not severe or unusual, and was not the result of negligence but of the ordinary operation of the train, and that the brakeman made the coupling in the usual way, and the train proceeded on its way.

<On the other hand, the plaintiff claims there was then, or immediately afterwards, a collision of some kind which threw him from his seat and caused his injuries.

It did not appear with much precision how the shock was caused which resulted in the injury to the plaintiff, but the jury must have found negligence against the defendant in the management of the train.

It is not important for us to decide between the two theories of the parties, for if the shock resulted from the rapidity with which the caboose car was permitted to move and the severity with which it struck the car to which it was to be coupled, that fact .would be sufficient to justify the verdict.

The serious question in the case has relation to the effect of the contract of Schoonmaker with the company, and it is to be observed that such contract relates exclusively to the transportation of the live stock, and in consideration of reduced rates and the issuance of a free pass to accompany the same the corporation is released from all damage to the stock which shall not result from fraud or wilful misconduct. But the contract contains no release for personal injuries, and all the way-bill contains on the subject is a statement that Ira Porter is in charge, free, and yet Porter'was not in the eye of the law a gratuitous passenger. The contract stipulated for a pass and reduced rates, and as a consideration for those the company received a release from certain legal liabilities.

The plaintiff was, therefore, a passenger with all the rights which that relation towards the company under the law gave him.

Waiving that view, however, for a moment, and conceding to the contract the scope for which the defendant contends, it can have no binding force or legal effect upon the plaintiff. He neither made the contract nor assented to it, and he made no agreement to assume any risk, and the defendant could not avoid responsibility to him by any contract with Schoonmaker. Such a contract to be obligatory upon him must have been made by him or some one on his behalf.

We have examined the exceptions and find no error, and we cannot say the damages are excessive.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

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


author: Pratt, J.

text:
    William P. O’Connor, Agent of the Sisters of Charity of St. Vincent De Paul, Resp’t, v. William Schmitz, Impleaded, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Summary proceedings—Sub-tenant.
    In proceedings to remove a tenant and under-tenant as holding over after expiration of the lease, the alleged under-tenant answered that he was the tenant and had paid the rent. The evidence showed that he was the tenant of the lessee and that the lease had expired. Held, that a verdict in favor of defendant was against the weight of evidence and was properly reversed by the county court.
    2. Justice’s Court—Appeal.
    The fact that the defeated party in justice’s court paid the costs and serve 1 notice of appeal before the entry of the judgment does not render the appeal ineffectual.
    Appeal from order of the county court of Westchester county, reversing judgment in favor of defendant entered upon verdict of a jury in justice’s court.
    Summary proceedings to remove Hugh Lunny, as tenant, and William Schmitz, as under-tenant, as holding over after expiration of lease of the premises to Hugh Lunny.
    Defendant Schmitz answered, setting up that he was the tenant and had paid rent to the petitioners.

      Seward Baker (Edward Blankman, of counsel), for app’lt; Joseph K Owens, for resp’t.
   Pratt, J.

There is no merit in this appeal. The defendant Schmitz was an under-tenant of one Hugh Lunny, who held a written lease of certain premises in Westchester

The lease had expired and the plaintiff commenced these proceedings to eject the tenant who was holding over. A trial was held on the 16th of May, 1890, and a verdict rendered for the defendant.

Judgment and verdict entered in the justice’s docket on the 5th of July, 1890, and plaintiff appealed and the judgment was reversed in the county court.

The fact that plaintiff paid the costs and served a notice of appeal before the entry of judgment had no legal effect and the judgment in the county court was right.

The defendant was the tenant of Lunny and not the tenant of the plaintiff, and Lunny’s lease had expired.

These facts appeared before the jury in the justices’ court, and the verdict was against the evidence.

Judgment affirmed, with costs.

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


text:
    The People ex rel. Charles H. Willson, Resp’t, v. The Board of Trustees of the Village of Mount Vernon, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Villages—Tbustebs—Laws 1890, Chap. .163.
    Chapter 163, Laws 1890, which requires police officials, etc., to take an oath that they are not interested in the manufacture or sale of liquors, applies only to excise commissioners, excise inspectors, police officials and their subordinates, and was not intended to apply to a trustee of a village under such a law as chap. 644, Laws 1887.
    2. Same.
    Failure to take the oath does not create a vacancy, but at most only furnishes a cause for forfeiture, and a vacancy can only be created by a direct proceeding for that purpose.
    Appeal from order directing that a peremptory mandamus issue to the defendant commanding it to convene and fill an alleged vacancy in the office of trustee.

      Norman A. Lawlor, for app’lt; Glose & Robertson, for resp’t.
   Pratt, J.

This was an application by Charles H. Willson, an elector of the village of Mount Vernon, for a peremptory mandamus to compel the defendant to fill a vacancy in the office of trustee of said village, occasioned by the failure of Bartholomew McGrrahe to take the oath required by chap. 163 of the Laws of 1890.

McGrrane was duly elected trustee of the village of Mount Vernon on the 21st day of May, 1889j for the period of two years from the 28th day of May, 1889; took the oath of office in due time and entered upon the duties of his office as such trustee when said chap. 163 of the Laws of 1890 took effect.

McGrane did not take the oath required by said act within the time prescribed therein, nor has he since taken it. It is claimed he was a police official by virtue of his office as trustee. This claim is sought to be proved by a reference to the act, chap. 544 of the Laws of 1887, title 8, § 1, defining the duties of trustees in which, among other duties imposed upon them, is that of apprehending and punishing common prostitutes, vagrants and disorderly persons, and also under § 6 of said act said trustees may “ appoint one or more police constables, extra police and night watchmen.”

These powers are vested in the board of trustees as a board and not in the individual members. It would not be claimed that a trustee could of his own motion arrest and punish a vagrant, for instance, or appoint extra police. In the former case it was intended that the board in its legislative capacity could pass ordinances for the arrest and punishment of vagrants, and in the latter, that the board might in an emergency, at their discretion, appoint extra police officers.

If this is the true construction, it follows that a trustee does not come within the class of officers designated in chap. 163 of the act of 1890, who are required to take the oath required by that act. I think it is clear that this act was only intended to apply to the excise commissioners, excise inspectors, police officers and their subordinates. Neither in the title nor in the body of the act is a trustee by th.at name required to take the oath.

Our conclusion is that the act of 1890 was never intended to apply to a trustee of a village under such an act as that of chap. 544 of the Laws of 1887.

It may be further stated that the act of 1890 does not declare the office vacant by reason of not taking the oath, but merely disqualifies a person from holding, and debars him from continuing to hold, any office mentioned in the act. It, therefore, follows that there is no vacancy which the board of trustees can be required by mandamus to fill.

These views, if correct, are sufficient to reverse the judgment; but it may not be amiss to add that a failure to take the oath under the statute of 1890 does not create a vacancy, but, at the utmost, only furnishes a cause for forfeiture, and a vacancy can only be created by a direct proceeding for that purpose.

The case of Cronin v. Stoddard, 97 N. Y., 271, is the same in principle, and in that case this doctrine was laid down. People ex rel. Williamson v. McKinney, 52 N. Y., 374; Adams v. Tator, 42 Hun, 384; 6 N. Y. State Rep., 359; Weeks v. Ellis, 2 Barb., 320.

Again, the rule is well settled that a mandamus is not a proper remedy of trying the title to an office. People v. Stevens, 5 Hill, 616; People v. Corporation of New York, 3 Johns. Cases, 79; People v. Lane, 55 N. Y., 219; Foot v. Stiles, 57 id., 399.

Not only upon what we regard as a proper construction of the statutes, but upon an error in the mode sought to oust the trustee from office, we think the judgment must be reversed.

Barnard, P. J., concurs; Dvkman, J., not sitting.


author: Barnard, P. J.

text:
    William H. Bonnett, Ex’r, App’lt, v. Eugenia V. Brown et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Foreclosure—Re-sale.
    While mere inadequacy of price is not a sufficient reason for a re-sale, if such inadequacy is coupled with any fraud or surprise, it will have great weight on an application for a re-sale.

      2. Same.
    Plaintiffs’ attorney had been attorney for Mrs. Brown, and told her husband that he could represent her and her children, and that there would be no deficiency judgment entered. There was only one bidder, and an adjournment was refused, and the property was bid in for plaintiff, leaving a deficiency of $7,000, the judgment for which was entered and assigned. Feld, a proper case for a resale.
    Appeal by plaintiff and Alfred E. Marling, the assignee of a deficiency judgment, from an order granting a re-sale on conditions.

      Jacob Halstead, for app’lts; Carlisle Norwood, Jr., for guardian ad litem, resp’t.
   Barnard, P. J.

The plaintiff by virtue of a decree in foreclosure sold the mortgaged premises in November, 1889. The premises were situated in Mamaroneck, Westchester county. The decree was based on two mortgages given by Mary E. Yanderburgh and her husband to the executor of Peter Bonnett. Mary E. "Vanderburgh, before the sale, had died and had devised a life estate in the premises to her daughter, Eugenia Y. Brown, with remainder to her children. The property consisted of two parcels, which were sold at the foreclosure sale for $18,000 upon the plaintiff’s bid. An appeal was made to obtain a re-sale. That application was discontinued. Some different method appears to have been suggested to these parties. The plaintiff assigned his bid to Mrs. Iselin, and she was to purchase other adjoining land of Mrs. Brown. This arrangement was never carried out. Mrs. Brown then offered to pay the claim of the plaintiff, and this she failed to do.

In February, 1890, the referee gave the deed to the plaintiff. The premises were within a few days conveyed to Caroline E. Wilmarth for the sum of $18,000. This left a deficiency judgment of over $7,000. This deficiency judgment has been assigned to Alfred E. Marley. The present motion was- made in July, 1890, and in view of the fact that the remaindermen are two , infant children, no suggestion of laches should prevail. The motion papers were properly served on the attorney for the plaintiff in the foreclosure action. Pitt v. Davison, 37 N. Y., 235.

The resale was properly granted. The property brought an inadequate price, and while mere inadequacy of price is not a sufficient reason for a resale, if such inadequacy be coupled with any fraud or surprise it will have great weight on an application for a resale. Howell v. Mills, 53 N. Y., 322.

The papers show that the plaintiff’s attorney in the foreclosure had been the attorney for Mrs. Brown. That he told her that the first bid would be enough to pay the mortgage debt. He assured Mrs. Brown’s husband that he could represent Mrs. Brown and her children, as their interests were identical. There was apparently but one bidder present and an adjournment was refused. The owner of the deficiency judgment bid in the property for the plaintiff. The plaintiff’s attorney told Mr. Brown, plaintiff’s husband, that there would be no deficiency judgment entered. The plaintiff’s attorney did make an arrangement to have a $25,500 bid made at once, but he says that Mr. and Mrs. Brown dissuaded him from so doing as there would be no higher bidders; that “if the bidding was started at $25,500 there would not be another bid.” The statement of Mr. and Mrs. Brown is not really contradicted, for if the arrangement or understanding was that the bid should equal the claim the result should have been reached by the plaintiff’s attorney whether he commenced low or high in the amount of his biddings. Justice can only be reached by a resale and the conditions are sufficient to protect the holders of the mortgage claim from injury. The purchaser at a judicial sale also buys subject to the right of the court to set it aside for good cause.

The order should therefore be affirmed, with costs.

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


text:
    Isaac W. Sherrill, County Treasurer, Resp’t, v. Louisa Hewitt, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Taxes—Action to collect—Burden of proof.
    In an action to collect unpaid taxes pursuant to chap. 263, Laws 1883, where the plaintiff has shown a levy of the tax by the board of supervisors and the issue of the warrant to the collector and return by him of the tux as unpaid, the burden is upon the defendant to show any irregularity or defect in the proceedings which would constitute a defense.
    2. Same—Oath of assessors.
    An oath of assessors in the form prescribed by the act of 1884 is a substantial compliance with the requirements of the act of 1885.
    Appeal from judgment in favor of the plaintiff, entered upon a trial by the court without a jury.
    Action brought in pursuance of chap. 263, Laws of 1883, to recover unpaid taxes levied against defendant upon an assessment for personal property for the years 1886 to 1889, inclusive.

      A. M. & G. Card, for app’lt; Silas Wodell, for resp’t.
   Pratt, J.

In this case we are precluded from any review of the facts for the reason that the case does not contain any statement that all the evidence given upon the trial is set forth in the printed case.

The result, therefore, is that we must assume that all the findings of fact are sustained by the evidence, and the only matters left open for review are questions of law arising from the record as presented.

These are the only two questions of law arising upon the record: 1st. Whether the burthen was upon the plaintiff to show that all the statutory requirements had been complied with in levying the tax, or was it upon the defendant to allege and prove any irregularity which rendered the tax void.

We think when the plaintiff had proved that the warrant for the collection of the tax was duly signed and delivered to the collector, and such collector made a return to the county treasurer that the tax was uncollected and unpaid, that the burthen was then upon the defendant to show any irregularity or defect in the proceedings which would constitute a defense against the collection. Hilliard on Taxes, 455, § 38; People v. Rains, 23 Cal., 131.

The statute gives the right of actibn and fixes the conditions precedent to its enforcement.

1st. The plaintiff must prove that the tax has been levied by the board of supervisors and warrant issued, to the collector, and 2d, that he has returned the same as uncollected.,

The- plaintiff did this, and it then rested with the defendant to prove any matter that constituted a valid defense. In that effort she signally failed if the findings are to be regarded as conclusive upon this question.

When we look at the pleadings we find that the defendant has not set up any defect or irregularity, but has simply denied certain allegations of the complaint, so that the regularity of the proceedings by which the tax was levied are not put in issue, and it was not open to the defendant under the pleadings to prove any defect which would constitute a defense.

But the plaintiff put in evidence the assessment rolls, together with the oaths thereon made by the assessors, and it appears that the oaths were not in the form prescribed by statute at the time the same were taken.

The law is well settled that before property can be compulsorily taken for the payment of taxes the substantial requirements of the statute must be complied with. Brevoort v. City of Brooklyn, 89 N. Y., 132, and cases there cited.

The question, therefore, is whether in this case the requirements of the statute were followed.

The oath taken in each year herein was in the form required by ■chap. 57 of Laws of 1884. In 1885, chapter 201, an amendment was passed which, in effect, struck from the statute of 1884 the following words, “ and at which they would appraise the same in payment of just debt due from a solvent debtor,” and also the words, “ and true” before the words “value thereof.”

It will be observed that the omission of the above words was the only change made by the statute of 1885, and it is argued that • the inference is that the legislature deemed the amendment important and necessary.

If an oath in the form prescribed by the statute of 1884 is a substantial compliance with the statute of 1885, then the words omitted by the latter statute were mere surplusage, and the statute was unnecessary. But we think that the form of oath prescribed by the statute of 1884 was a substantial compliance with the requirements of the statute of 1885. In fact the former •oath, is more full and explicit than the latter, and had the question been reversed, we well might find that an oath under the statute of 1885 would not fill the requirement of the act of 1884, but in the present case it seems clear that the oath was sufficient to comply with the law.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


text:
    Andrew Wood, App’lt, v. Peter Lawrence, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed Feburary 9, 1891.)

    Evidence—Secondary. - • '
    Where the contract between the parties was left with the plaintiff and he has allowed it to leave his possession, it is his duty, upon receiving notice to produ.ce, to repossess himself of the instrument or be subjected to the admission of secondary evidence of its contents.
    Appeal from judgment in favor of plaintiff for $200, entered upon verdict.
    Action to recover $625 alleged to be due on a contract under which plaintiff was to build a house for defendant, $200 fox-money loaned and also for extra work.
    The answer admitted the making of the contract, alleged a Breach thereof to his damage $800; denied the story of the extra work and admitted the loan. • The verdict was for the amount admitted to Be due.

      Garrett Z. Snider, for app’lt; Tompkins & Bannister, for resp’t.
   Pratt, J.

The questions of fact were submitted to the jury in a charge that was not excepted to. There was much conflict of evidence and we cannot say the verdict was erroneous.

The only serious question of law is upon the admission of secondary evidence of a paper signed by the parties and which defendant testified he last saw in the possession of the plaintiff.

Notice to produce had been given to the plaintiff. . The excuse for non-production was that plaintiff' had subsequently delivered it to a third party. The contract was between plaintiff and defendant and the written evidence of the contract was left in plaintiff’s hands. When he allowed it to leave his possession he took the risk of its non-production. The notice made it his duty to repossess himself of the instrument or be subjected to the admission of secondary evidence of its contents.

Judgment affirmed, with costs.

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


text:
    Abram Blauvelt, Resp’t, v. Calvin C. Powell, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Lease—Former action pending.
    In an action brought in November, 1888, to recover instalments of rent on a lease for months of September, October and November, the defense was former action pending. It appears that the pending action referred to was for instalments for subsequent months and it did not appear when it was commenced. Held, that the defense was not made out.

      2. Same—Eviction.
    A trespass by strangers is not an eviction. There must be dispossession by. a paramount title or by. the act of the landlord, or he or his servants must make the occupancy so annoying'and uncomfortable as to, justify a tenant in removing.
    Appeal from a judgment of the county court of Rockland, county, affirming a justice’s judgment .in fayor of plaintiff.

      Garrett Z. Snider, for app’lt; William E: Gowdey, for resp’.t.
   Barnard, P. J.

This action was originally, commenced before a'justice of the. peace,. The complaint-stated the cause of action be for rent of rooms in Nyack fór-'three ■ months, being the months of September, October and November, 1888. The leasing • was admitted as stated at fifteen dollars ■ per month, and that the rent was unpaid for three months. The defense ■ stated in the answer was former suit pending and. eviction.' ' The action was commenced on the 23d of November, 1888. There was offered in evidence a copy judgment roll of ■ the county court showing an action brought for rent of December, 1888, and January, Febru-. ary and March, 1889. This record was rejected because not duly certified. The paper is not returned and it is impossible.to say whether it was or was not certified so as to justify its introduction in evidence. It was proven that an action had been commenced for the latter months of the year, but the time of its commencement was not disclosed. The defense of a former action pending therefore fails. All the instalments due upon a contract must be included .in an action; but separate actions are legal for each-instalment, and it is manifest that this action was first commenced, and after all the instalments became, due for the remainder of the year the action in the county court was commenced. The defense of eviction also failed. The plaintiff’s lease only permitted the. use of apartments in a house, and the eviction consisted in the fact that independent parties and their workmen made nois.es and com mitted trespasses while erecting houses east and west of the house in which the demised premises were situated. A trespass by strangers is not an eviction. There must be dispossession by a' paramount title or by the act of the landlord, or he or his servants iriust make the occupancy so annoying and uncomfortable as to justify a tenant in removing from the same. The proof showed nothing to justify a conclusion of an eviction.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Pratt,. J.

text:
    Thomas L. Post, App’lt, v. Joseph Scheider, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Attorneys—Disclosure of plaintiff’s residence.
    The court has power to grant an order requiring the plaintiff’s attorney to disclose his client’s address. Such order is discretionary arid 'will not be reversed unless there is a clear case of abuse of discretion.
    2. Same.
    The facts that the action is brought on a protested check three years after it was drawn-by a person other than the payee and that the attorney has refused to give his-address are sufficient; to justify stieh an order, as it is important to défendantto know such address "in order'd» take measures to examine plaintiff before answering and to move for security in" case he is a non-resident.
    Appeal from order" requiring plaintiff’s attorney to disclose the address bf plaintiff, and" in default thereof staying the action.
    The action was brought in July, 1890, to recover upon a check drawn May 24,1887, payment of which was stopped and the check protested for non-payment May 25, 1887.
    The check was drawn to the order of one 0. H. Thompson, and it is alleged in the complain t that the same was endorsed by said Thompson and-thereafter came into the possession of' the plaintiff.
    Plaintiff’s attorney having refused to disclose his client’s address, except that he resided in Queens county, defendant procured the order appealed from upon an affidavit which, set forth such refusal and that such disclosure was necessary to determine whether the place of trial designated was the proper county and whether plaintiff is a resident or non-resident of the state, and also that defendant may cause papers to be served on plaintiff for his examination before trial and answer. The affidavit also stated that:
    “ The action is brought upon a check drawn in 1887, the consideration whereof failed, and payment of which was stopped and the check protested the day after it was drawn. One of the defenses herein will be that the plaintiff took such check (if at all) with notice thereof, and that this suit is being prosecuted for the person in whose' hands said check was protested, and it is necessary to have an examination of the plaintiff for the defendant to prepare his answer and for trial herein.”

      Gieorge Ai Stearns, for app’lt.; Elbert Orandall, for resp’t.
   Pratt,. J.

This is an appeal from an order requiring the plaintiff’s attorney to disclose the plaintiff’s address, and in default thereof staying the action.

The power of the court to grant such an order is too well established to require argument Walton v. Fairchild, 24 N. Y. State Rep., 314; Tidd’s Am. Notes, 533, 534; Ninety-nine Pl'ffs v. Vanderbilt, 1 Abb. Pr., 193; Worton v. Smith, 6 J. B. Moore, 110.

Such an order is discretionary, and should not be reversed unless there is a clear case of abuse of discretion.

We think it was important to the defendant to know the address of the plaintiff in order that he might take measures to examine him before answering, and to move for security in case the plaintiff is a non-resident.

The facts disclosed are sufficient to justify the order, which is affirmed, with costs.

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


text:
    Samuel McElroy, Resp’t, v. Henry Mumford et al., App’lts

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Undertaking—Appeal—Liability of sureties."
    A judgment recovered by plaintiff against a railroad company having been affirmed by the general term, with costs, the company appealed to " the court of appeals, and gave an undertaking executed by defendants, which recited the recovery of judgment for * • costs of affirmance, ” and conditioned for the payment by the appellant of all costs and damages which may be awarded against it on said appeal, not exceeding $500, and also that if the said judgment, so appealed from, or any part' thereof, is affirmed, or the appeal dismissed, the appellant will pay the sum recovered, or directed to be paid by the judgment, or the part thereof as to which it is affirmed. Held, that the judgment mentioned which defendants undertook to pay was the judgment for costs at general term, and they could not be held liable for the original judgment.
    Appeal from judgment in favor of plaintiff.
    Action upon undertaking given by the Brooklyn Underground Bailroad Company upon an appeal to the court of appeals.

      Leslie W. Bussell (Welton Percy, of counsel), for app’lts; T. G. Oronin, for resp’t.
   Dykman, J.

The plaintiff in this action recovered a judgment against the Brooklyn Underground Bailroad Company in the supreme court in June, 1887, for the sum of $365,908, which was affirmed in the general term and judgment was entered upon such affirmance for $122.97 costs.

Upon appeal to the court of appeals the following undertaking was executed by the defendants in this action:

“Whereas, on the 12th day of December, 1887, in the New York supreme court, county of Kings, Samuel McElroy, the above-named respondent, recovered a judgment against the Brooklyn Underground Bailroad Company, the appellant, for the sum of $122.97, being costs of affirmance and with interest thereon from that date.
“ And the said appellant feeling aggrieved thereby intends to appeal therefrom to the court of appeals.
“Now, therefore, we, Henry Mumford, residing at No. 218 Quincy street, in the city of Brooklyn, and John French, residing at No. 469 Clinton avenue, in Brooklyn city, do hereby, pursuant to the statute in such case made and provided, jointly and severally undertake that the appellant will pay all costs and damages which may be awarded against it on said appeal, not exceeding $500, and do also undertake that if the said judgment so appealed from, or any part thereof, is affirmed or the appeal is dismissed, the appellant will pay the sum recovered, or directed to be paid by the judgment or the part thereof as to which judgment is affirmed.
“Dated December 21, 1889.
“John French.
“Henry Mumford.”

The judgment of the general term was affirmed by the court of appeals, and a judgment was entered upon such affirmance for $121.72 for costs in that court in favor of the plaintiff against the defendant.

This action was commenced upon the undertaking so given upon the appeal to the court of appeals, and the plaintiff obtained a judgment for the amount of' the original judgment, together with the subsequent judgments for costs on the appeals, and the defendants have now appealed from such judgment.

The question presented is whether the plaintiff can hold these defendants, who were the sureties in the undertaking on the appeal to the court of appeals, for the amount of the original judgment in his favor, or only for the amount of the judgments of the general term and the court of appeals.

As the order appealed from affirmed a judgment which directed and required the payment of a sum of money, the form of the undertaking on such appeal is prescribed by § 1332 of the Code of Civil Procedure, as follows: “ Where the judgment or order from which an appeal is taken to the court of appeals affirms a judgment or order to the effect specified in either of the last five sections, the undertaking must be the same as if the judgment or order from which the appeal is taken was to the same effect as the judgment or order so affirmed.” That is, it must be in the same form as if the judgment appealed from rendered a judgment, or was a judgment similar to, or to the same effect as the one which it affirmed.

The undertaking must be so drawn as to secure the payment of the judgment affirmed by the judgment from which the appeal is taken to the court of appeals, or, in other words, the sureties in an undertaking upon an appeal to the court of appeals must be made liable for the payment of the original judgment, and such liability must be imposed by the terms of the instrument.

This undertaking, as we have already seen, recites the recovery of a judgment in the supreme court by the plaintiff against the Brooklyn Underground Railroad Company for $122.97, being costs of affirmance with interest, and the grievance of the defendant thereby, and its intention to appeal therefrom to the court of appeals, and that therefore the defendants, pursuant to the statute, undertake that the appellant will pay all costs and damages which may be awarded against it on such appeal, not exceeding $500, and also undertake that if the said judgment so appealed from or any part thereof is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered or directed to be paid, or the part thereof as to which judgment is affirmed.

There was but one judgment mentioned which the defendants undertook to pay in the event of affirmance, and that was the judgment for costs of the general term of $122.97, and there is no principle upon which their liability can be extended beyond the terms of the instrument which they signed. That instrument in no way mentions or refers to the original judgment, and they never undertook its payment These views are in accordance with the expressions in the case of Morss v. Hasbrouck, 10 Abb. N. C., 407, and. Briggs v. Brown, 13 id., 481, and are not hostile to the case of Goodwin v. Bunzl, 102 N. Y., 224; 1 N. Y. State Rep., 405.

The judgment should be.reversed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.