text:
    William S. Carman et al., Resp’ts, v. The Farmers’ Loan & Trust Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Pleading—Action to recover value of stock on failure of rail-
    road REORGANIZATION.
    The complaint alleged that plaintiffs’ assignor deposited certain stock with defendant under a written agreement with it and others, and received a certificate which entitled him to stock in a new company when organized; that the company was never organized, and that a decree was-entered, in a suit to terminate the trust, directing defendant to sell certain bonds and stocks, including plaintiffs’ assignor’s, to create a trust fund for the payment of the costs and expenses of the suit, and that -the surplus thereof, if any, was directed to be distributed among the holders of the trust certificates; that such stocks and bonds were sold and' all costs and expenses paid from the proceeds of such sale, and plaintiff then demanded judgment for the amount received from the sale of the stock. Held, that as no allegation was made as to the amount of the costs and expenses, nor as to what share óf the expense the stock should bear, the complaint failed, to state a cause of action.
    2. Same-Parties defendant.
    Without the persons representing the certificates issued upon the surrender of the bonds sold being made parties to the action, no complete adjudication can be had.
    Appeal from an interlocutory judgment entered upon a decision overruling a demurrer to the complaint
    Turner, McClure & Rolston (H. B. Turner, of counsel), for app’lt; Isaac N. Miller, for resp’ts.
   Van Brunt, P. J.

In coming to a conclusion as to the correctness of the judgment rendered upon the demurrer, it will be-necessary to bear in mind the peculiar allegations of the complaint, which may be briefly stated as follows: That prior to and on.

the 2d day of July,1880, one Edward Crane was the holder of certain stock of the New York, Boston, Albany & Schenectady Eailroad Company, and of the New York & New England Eailroad Company, and of certain first mortgage bonds of the Connecticut Western Eailroad Company, and of the Lebanon Springs Eailroad Company, and was the owner and holder of 235 shares of the capital stock of the New York & New England Railroad Company, and that, at the time aforesaid, said Crane, with one Carpenter and others, owners and holders of bonds and stocks of said railroad companies, united upon a plan to consolidate said railroads, and to that end and purpose a trust deed was executed, appointing the defendant as trustee, in and by which it was recited that the parties of the first part, viz., Carpenter, for himself and his associates, are the owners of certain securities, viz., the first mortgage bonds of the Boston, Hartford & Erie Railroad Company ; the stock of the New York & New Englaud Railroad Company; the first mortgage bonds of the Connecticut Western Railroad Company ; the stock of the New York, Boston, Albany & Schenectady Railroad Company, and the first mortgage bonds of the Lebanon Springs Railroad Company; and that, for the purposes of consolidation, said party of the first part agreed to assign and transfer to the party of the second part (the defendant) the various securities owned by them in said companies, to be held, voted upon, and used as in said agreement thereafter provided, and the defendant agreed to issue to the owners of said securities certificates in lieu thereof, in the form prescribed by said agreement. The agreement then provides for the taking of the steps necessary for the consolidation, and that when the consolidation shall have been effected the defendant shall exchange the various bonds and stocks for stock of the proposed consolidated railroad company, and that in case said consolidation shall not have been effected within three years from the date of the agreement the trust should cease and “ degenerate,” and the stocks and bonds aforesaid be divided pro rata among the shareholders in the trust upon the presentation of the trust certificates. The complaint further alleges that the defendant entered upon said trust, and received from the parties of the first part to said agreement the bonds and stocks before mentioned for the uses and upon the trusts therein specified, and that among the bonds and stocks so delivered to said defendant were the said 235 shares of the capital stock of the New York & New England Railroad Company, the same being the property of said Crane; that thereafter the defendant issued certificates for said bonds and stocks thus received, in the form and in accordance with the provisions of said deed of trust, and included therein were certificates issued to Crane for said 235 shares of New York & New England stock; and that said Crane duly assigned and transferred said certificates to the New Jersey Construction Company. The complaint further alleged that, such project of consolidation having failed, an action was commenced in this court in December, 1889, by the New Jersey Construction Company against the Farmers’ Loan & Trust Company and others, to terminate the trust, and such proceedings were thereupon had that a judgment was recovered and entered, “ terminating the said trust, and directing the defendant, the Farmers’ Loan & Trust Company, to deliver certain bonds and stocks, in said judgment specified, to the-parties therein named, and among other things to sell at public sale the first mortgage bonds of the Connecticut Railroad Gompany, and the said shares of the ¡New York &¡New England Railroad Company, delivered to the said defendants in trust as aforesaid, to create a fund for the costs and expenses of the action, and the surplus, after paying such costs, was thereby directed to be distributed among the actual holders of the trust certificates issued therefor as aforesaid,” and that a sale was had under said decree, and sufficient was realized from the sale of the said Connecticut Western Railroad first mortgage bonds, and of the stock of said ¡New York & ¡New England Railroad Company, to pay in full the costs and expenses of the action, and that all said costs and expenses were thereby fully paid, and that the market value of the stock of said ¡New York & ¡¡Slew England Railroad Company was at the time of said sale forty-five and seven-eighths per cent, for which sum per share said 235 shares of stock of said railroad company were on said day sold at said sale.

The complaint further alleged that the plaintiffs were the holders of the trust certificates above set forth, issued in exchange for said 235 shares of said capital stock, and that they were the owners of all the rights, interests, claims and demands of said Crane and the ¡New Jersey Construction Company, and that by reason of the premises the defendant is indebted to the plaintiffs for their interest in the value of said 235 shares of stock of said ¡New York & ¡New England Railroad Company, as originally intrusted to it, namely, the sum of $10,780.63, and that the plaintiffs demanded of the defendant payment of said sum, and •duly tendered said certificates, and the defendant refused, and still refuses, to pay the-- same, wherefore the plaintiffs demanded judgment for the sum of $14,000, with interest and costs.

The theory upon which this complaint is based seems to be that the plaintiffs in this action were adjudged entitled to receive the proceeds of the sale of said 235 shares of stock, which it is alleged that Crane deposited under this trust agreement. Upon .an examination of the complaint, however, it will be seen that the allegations do not bear out any such construction. Whatever were the rights of the parties who deposited these stocks and bonds, they were fixed by the adjudication, in respect to all the parties thereto, in the action brought by the ¡New Jersey Construction Company, which was then the holder of the certificates, against the defendant, the Farmers’ Loan & Trust Company, for the termination of the trust. As already seen, by that judgment certain stocks and bonds were to be returned to certain parties specified in said judgment, and certain first mortgage bonds of the Connecticut Western Railroad Company (deposited by whom the complaint does not allege) and the said shares of the ¡New York ■k ¡New England Railroad Company, viz.: those deposited by Crane, were to be sold to create a fund for the costs and expenses •of the action, and the surplus, after paying such costs, was to be divided among the actual holders of the trust certificates issued therefor as aforesaid. ¡Now it nowhere appears in this complaint as to who deposited the first mortgage bonds of the Connecticut Western Railroad Company, or to whom certificates for such deposit were issued.

The complaint alleges that a sale took place of the bonds of the Connecticut Western Bailroad Company and the stock of the New York & New England Bailroad Company, and that from such sale sufficient was realized to pay in full all costs and expenses, and that all said costs and expenses were thereby, and are, fully paid. It, therefore, appears that the proceeds of the sale of the first mortgage bonds of the Connecticut Western Bailroad Com-' pany and of the shares of the New York & New England Bail-road Company were to form the fund from which these expenses were to be paid, and that after these expenses were paid the surplus was to be divided among the holders of the trust certificates issued therefor. Now, the plaintiffs in this action have nowhere shown what part of these expenses Were properly chargeable against the‘235 shares of the New York & New England stock. It certainly is not the purport of that decree that the bonds of the Connecticut Western Bailroad Company shall bear all of such expénses. But the costs and' expenses were to be deducted out of the proceeds of both classes of securities, and the surplus to be distributed pro rata among the holders of the certificates issued upon the surrender of those particular securities. It is apparent that the plaintiffs are only the holders of the certificates issued for the 235 shares of New York <& New England stock, and that there are other persons interested in this litigation, namely, the holders of the certificates issued for the bonds of the Connécticut Western Bailroad Company, who are necessary to a complete determination of the amount which the trust company, as trustee, is bound to pay. And, furthermore, there is no allegation showing the amount of these costs and expenses, and what amount was chargeable to the proceeds of the bonds of the Connecticut Western Bailroad Company, and what amount to the stock of the New York & New England Bailroad Company. Without these facts before the court, no judgment could possibly be given, and without the parties representing the certificates issued upon the surrender of the bonds of the Connecticut Western Bailroad Company, no complete adjudication can be made.

There seems to be some question whether the action can be maintained at all, and whether application, should not have been made at the foot of the decree entered in the action in pursuance of which the securities were sold. But this question it is not necessary now to determine. The interlocutory judgment should be reversed, with costs, and the demurrer sustained, with leave to amend upon payment of the costs of the appeal and in the court below.

O’Brien and Eollett, JJ., concur.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    James A. Van Schaick, Resp’t, v. Edgar C. Van Buren et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    •Contract—Uncertainty—Agreement to make loan.
    In an action upon a promissory note for $1,500, the answer alleged that it was a part of an agreement bj which plaintiff was to loan $3,000 to enable defendant to stock a farm, for which plaintiff was to take a mortgage “ for a term of years;” that plaintiff was to give the balance and take the mortgage at the maturity of the note, and that he refused to do so, to defendant's damage. Held, that if the facts were as alleged, the agreement was one that was not capable of being enforced by reason of its uncertainty.
    Appeal from judgment in favor of plaintiff, entered upon report of a referee.
    The following is the opinion of the referee :
    D. M. Westfall, Referee.'—This action is brought upon a promissory note for $1,500 given by defendants to plaintiff, dated April 1, 1884, payable one year from date with interest. The defendant, Edgar C. Van Burén, answers separately, and the other two defendants answer together. Neither answer denied any allegation of the complaint. The answer of Edgar O. Van Burén sets up as a defense, in substance, that the giving and taking of the note were a part of an agreement by which the plaintiff was to loan to the defendant, Edgar C. Van Burén, the sum of $3,000 to enable him to purchase and stock a farm, and the plaintiff was to take a mortgage therefor on such farm “for a term of years thereafter ; ” that the $1,500 represented by said note was a part of said ■ loan, and the balance of $1,500 was to be advanced at the maturity of the note, the note to be taken up and mortgage to be taken for the whole $3,000 for a term of years ; that at the maturity of the note the defendant, Edgar 0. Van Burén, “ was ready and willing and offered to execute said mortgage," but the plaintiff refused “ to take up the said note and advance the said further sum of $1,600 * * * or to take the said mortgage upon the said lands for a term of years for $3,000, and refused to perform,” etc., by reason whereof the defendant, Edgar 0. Van Burén, “ was prevented from properly stocking and working and managing the said farm, and was deprived of the profits thereof.”
    The other answer sets up as a defense, in substance, that prior to or at the time of the execution of the said note, it was agreed between the parties that the “ plaintiff would take up the said note when it became due and advance fifteen hundred dollars more to the defendant, Edgar O. Van Burén, and release and discharge these defendants from all liability on the said note, and for the whole sum which these aggregated, three thousand dollars, would take a mortgage for a term of years upon the real estate of the defendant, Edgar 0. Van Burén; ” that said defendant, Edgar C. Van Burén, was ready and willing and offered to execute the said mortgage, * * * but that the said plaintiff refused to take up the said note, * * * or to advance fifteen hundred dollars more of money, or to take and accept therefor the mortgage of the said defendant, Edgar 0. Van Burén, upon the said lands for the whole amount.
    The plaintiff replied to the answer of Edgar. C. Van Burén, denying the matters of counterclaim therein.
    The defendants, by their answers, aver that the real estate in question was of the value of six thousand dollars. It was in fact worth only $3,000, or, at most, $3,500, and of that from $2,200 to $2,'500 was in the buildings.

      There was upon the trial much conflict, indefiniteness and discrepancy in the evidence as to the negotiations and conversations between the parties, and much indefiniteness as to precise dates. But I think the evidence fairly leads to the following conclusions and in the following order, viz. :
    In March, 1882, the defendant, Edgar G. Van Burén, bought a farm of three hundred acres in Sunderland, Vermont, from the Hawleys, and took as his only title a quit-claim deed thereof from James Law, and gave to Law a mortgage thereon for $2,700, and to the Hawleys a mortgage thereon for $300. The mortgagor paid the interest on the Law mortgage in the spring of 1883. On the last day of March, or the first day of April, 1884, defendant, Paul G. Van Burén, applied to the plaintiff for a loan to his son, the defendant Edgar, of $3,000 on said farm, and represented the farm to be worth from five to six thousand dollars. Plaintiff replied that if he had $3,000 he would like to let it on such security as that, but that he had on hand only fifteen hundred dollars. Later the same day the parties met at Scliuylerville and talked about the matter, and defendant, Silvey, represented to plaintiff that he was acquainted with the farm and thought it was worth from four to six thousand dollars, and that if he had the money to loan himself he would have no hesitancy in loaning it on that security. The plaintiff repeated that he had only fifteen hundred dollars, and the defendant, Edgar, requested plaintiff to loan him the $1,500 on a second mortgage, which he declined to do, and then defendant, Edgar, requested the plaintiff to raise the three thousand dollars or to have it raised in some way, and take a first mortgage on the farm, which the plaintiff also declined to do, and suggested or proposed in substance “you give me your note, getyour father and Silvey to sign it with you, I will let you have the fifteen hundred for a year, and if I get this money (meaning moneys expected from the west) during the year, I will pay it to you and take a first mortgage, just as we are talking now.” Defendant Edgar testifies that this was the proposition, and the other defendants agree with him that there was talk about moneys expected by plaintiff from the west, and they all agree that plaintiff’s excuse for not making the further loan was that his moneys did not come from the west. Silvey was unwilling to sign the note without first consulting with 'his son. Defendants therefore told plaintiff they would let it rest that way and see him the next day, and they went elsewhere to look for the money, but, failing to get it, they returned the next day (April 1st or 2d) and reported to plaintiff that Silvey’s son had consented to let him sign the note if he would take a mortgage at the end of the year for three thousand dollars. There is great discrepancy among the four parties as to the order, form and substance of what was said and done on that •occasion, but the note in suit was then drawn, executed and delivered, and defendant Silvey received therefor the plaintiff’s check for fifteen hundred dollars payable to Silvey’s order and dated April 1, 1884. It is more than probable that both Silvey and plaintiff believed the farm to be a sufficient security for a three thousand dollar loan, although the plaintiff had never seen it, and that the plaintiff would be in funds to make the loan within the year, and that therefore the plaintiff told Silvey that “ he need not be worried, that it would be all right at the end of the year, and I will advance the money and take the first mortgage, provided there is no other mortgage on it.” But in all the conversations and negotiations in the matter not one word was said in regard to the time or terms of the proposed mortgage. There was no attempt even to prove the allegation of- the answers to the effect-that the mortgage was to be “for a term of years.” Nor was any attempt made to prove that the funds which plaintiff was expecting to come in, ever in fact came in. T was impressed upon the trial, and am more strongly impressed now upori reviewing the evidence and circumstances, that although the plaintiff gave the defendants strong assurances that he would make the three thousand dollar loan, yet none of the parties understood at the time that there was any definite, conclusive and binding agreement to do so that could be enforced by either party, or that would operate to invalidate the note if the loan was not made, but rather that the parties, especially the plaintiff' and the defendant Silvey, confidently expected that the plaintiff would have the funds, the security would prove satisfactory, and the terms of the mortgage would at:some future time be agreed upon.
    Upon the receipt of plaintiff’s check, defendant Silvey indorsed it and received for it at the Sclmylerville bank a twelve hundred dollar draft and three hundred dollars in currency, with which he and defendant Edgar started for Vermont. Plaintiff advised or requested Silvey to see that everything was all right, just as it had been recommended to be, and that there were no liens on the property, and learn whether or not Mr. Law would accept the money on his mortgage if plaintiff’s money should come in soon, and so save plaintiff the trouble of driving over there, and to bring the money back with him if he did not find it all right.
    Silvey and Edgar stepped at the Cambridge bank and got the draft cashed and proceeded directly from there to Mr. Law’s without first going to the clerk’s office to make any inquiry, and paid him upon his mortgage $1,262, and for taxes on the place $26.87, amounting to $1,288.87, reducing the mortgage to fifteen hundred dollars. The Hawley mortgage was taken up and discharged that day or the next," and Edgar gave to Silvey a mortgage for $1,500 tp indemnify him against the note. Silvey made a memorandum in his pocket account book, noting the signing of the note and the furnishing of the funds to pay Law and Hawley, but making no mention of any agreement for a further loan. January 16,1885, plaintiff notified Silvey by letter that he should want the money on the note in "the spring, and Silvey notified Paul Van Burén. They reminded the plaintiff that the understanding was that he should advance $1,500 more. He replied that he could not do it, that his money was west, and he wanted this and must have it to send there to secure moneys he had already invested there.
    In the latter part of March or on the first of April, 1885, Silvey paid the plaintiff one year’s interest on the note with funds provided by the Van Burens, and afterwards and about April 2d or 3rd, the defendants and Silvey’s son and son-in-law met by appointment at Schuylerville and called on plaintiff, and he admitted to them that he had intended to advance $1,500 more and take a mortgage, but that instead of receiving money from where he had expected, he had had to send more there, and they demanded that he fulfill his agreement, but made no special tender of any mortgage. At that time the Law mortgage and Silvey mortgage of $1,500 each remained upon the premises. Subsequently, and about the middle of April, 1885, Silvey and his son and his son-in-law called on the plaintiff, and Silvey demanded that he be released from the note, and offered to transfer his mortgage to plaintiff. The plaintiff refused to release Silvey or to accept his mortgage. In June, 1885, plaintiff asked defendant Paul Van Burén whether the defendants were going to raise that money for him; to which he replied that he did not know, but if he could make a strike he would get it; and on two or three occasions before this action was brought the defendant, Paul O. Van Burén, said to the plaintiff that they had made arrangements to get the money and have it the next spring, and on one occasion when plaintiff was threatening to sue the note, the defendant, Paul C. Van Burén, said he would do the best he could to raise the money.
    This action was commenced in August or September, 1888, and in December, 1888, Silvey executed a satisfaction of his mortgage, and defendant Edgar Van Burén sold the place and two tons of hay for $2,200, realizing about $300 over the Law mortgage and interest.
    Upon first reading the pleadings a doubt arose in my mind as to the sufficiency of the answers to constitute a defense. However that may be, the proofs have not satisfied me that any valid, enforcible contract to make the further loan and take a mortgage was entered into, nor that the loan made and the one to be made were inseparable or dependent, nor that plaintiff has failed in the performance of any valid agreement made by him; and I am at a loss to know what kind of a mortgage the defendant Edgar should have tendered to entitle him to specific performance or to damages for non performance. So far as the agreement between the parties rested in parol, it was void for incurable uncertainty. Parsons on Contracts, 6th Ed., 561, 565; Abeel v. Radcliff, 13 Johns., 297; Baurman v. Binzen, 16 IST. Y. Supp., 342. Úor was this part so much a part of the note as to vitiate it, or to constitute a complete defense to it except by way of counterclaim. Batter-man v. Pierce, 3 Hill, 171; Ábeel v. Radcliff, 13 Johns., 297 ;• Swift v. Opdyke, 43 Barb., 274; Tipton v.'Feitner, 20 ÍT. Y., 423 ;. Isaacs v. N. Y.P. W., 67 1ST. Y, 124.

      R. A. Parmenter, for app’lts; L. Fraser, for resp’t.
   Herrick, J.

I am not entirely satisfied with the findings of the referee upon the facts in this case. It seems to me that the preponderance of evidence shows that the agreement upon the part of the .plaintiff was to advance an additional $1,500 in the spring of the year following the giving of the note in question, and to then take a mortgage for the whole $3,000, and surrender up the note of $1,500.

But conceding the true state of facts to be as I have suggested, still the agreement is one that does not seem to be capable of being enforced by reason of its uncertainty.

The authorities on that point cited by the referee in his opinion, and also by the court in the case of Baurman v. Binzen, 16 N. Y. Supp., 342, seem to sustain the contention of the referee upon that point. See also Milliman v. Huntington, 68 Hun, 258 ; 52 St. Rep., 273; and I, therefore, think that judgment should be affirmed. I see no occasion for writing an opinion.

Let judgment be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


text:
    In the Matter of the Application of Bridget Collins v. The Village of Saratoga Springs.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Villages—Change of grade of street—Street commissioners need
    NOT CONSENT TO APPOINTMENT OF COMMISSIONERS TO APPRAISE DAMAGES.
    Plaintiff, who claimed that her premises were damaged by a change of grade of the street, served notice of application for the appointment of commissioners of appraisal upon the board of trustees and the board of street commissioners. Subsequently, but before the return day of the notice, an order for such appointment was made upon the stipulation of the attorneys for the village and the plaintiff. Held, that the order was regularly and properly granted; that even though a notice be required to be served on the board of street commissioners, they had no power to employ counsel in the proceeding, nor was it necessary that they should consent to the order.
    Appeal from order setting aside and vacating an order appointing commissioners to appraise the damages of the petitioner caused by the change of the grade of Beekman street, in the village of Saratoga Springs.

      Henning & McCall, for petitioner, app’lt; J. F. Swanick and J. T. Brusnihan, for village, app'lt; Edgar T.. Brackett, for board of street commissioners of Saratoga Springs, respt.
   Herrick, J.

In 1888 the board of trustees of the village of Saratoga Springs caused the grade of one of the public highways of such village to be changed.

The petitioner was the owner of certain premises on such street or highway, which prefnises, she alleges, were damaged by such change of grade. About the 1st of January, 1893, she presented her claim for damages to the board of trustees of said village, who refused or neglected to pay the same, she thereafter and in February, 1893, moved under chapter 113 of the Laws of 1883, as amended by chapter 281 of the Laws of 1884, for the appointment of commissioners to appraise the damages to her property caused by such change of grade; notice of the motion, and her petition, was served upon the board of trustees and the board of street commissioners of the defendant.

The village of Saratoga Springs appeared by its attorney, and served notice of appearance and retainer upon the attorneys for the petitioner. It was subsequently stipulated, between the attorneys for the petitioner and the attorneys w ho appeared for the village of Saratoga Springs, that the order prayed for in the petition of the petitioner be made, and the commissioners were agreed upon in and by such stipulation, and upon the coming in of such attorneys, and the presenting of such stipulation to the special term, an order was made appointing commissioners to appraise the damages claimed.

Subsequently the board of street commissioners, by an attorney of this' court employed by them, moved at a special term of this ■court to vacate and set aside the order appointing such commissioners, upon the ground that it was done without the consent of the board of street commissioners, and further claiming that the board of trustees of the village of Saratoga Springs had no authority to employ counsel who could stipulate in such proceedings without the said board of street commissioners being represented, and having a right to be heard thereon; the motion was granted, the order appointing commissioners was vacated, with costs of the motion.

The village of Saratoga Springs was incorporated by chapter 220 of the Laws of 1866, and by such act of incorporation the board of trustees was vested with the powers and duties of commissioners of highways. By chapter 470 of the Laws of 1890, chapter 220 of the Laws of 1866 was amended so as to provide for the appointment of a board of street commissioners, and by such act all the powers and duties in relation to "the public streets and highways of said village, theretofore vested in the board of trustees, was vested in the board of street commissioners. As we have said, these proceedings are taken under chapter 113 of the Laws of 1883, as amended by chapter 281 of the Laws of 1884, which law provides that due notice of the application for the appointment of commissioners shall be given to the person or persons having complete authority to make such change or alteration, and it further provides that the damages awarded shall be a village charge. Although the change of grade was made in 1888, before the passage of the law providing for the appointment of the board of street commissioners, yet for the purpose of this case I assuute that their contention is right, and that they are the persons who under the statute are to be notified of the application in question; but it does not follow therefrom that it is either their duty or their privilege to employ counsel in such proceedings, nor is it necessary that they should consent to an entry of the order appointing commissioners.

The board of street commissioners is not the corporation of itself ; it is only one of the branches or arms of the municipality of the village of Saratoga Springs, it is not the whole, village government; and except in those particulars in which the statute has clothed such board with specific powers, it is subordinate to the board of trustees of such village; it has no power or authority except that which has been specifically granted to it, and that which is necessary to enable it to discharge the duties and exercise the privileges specifically imposed upon and granted to them. They are not specifically authorized to employ counsel, and it is not necessary in the discharge of their duties that they should employ counsel; the employment of counsel is otherwise provided for. -

The municipality of the village of Saratoga Springs embraces its president, board of trustees, board of street commissioners, and all other boards and village officers, and they must all be considered together as forming a complete whole. These proceedings are taken against the village of Saratoga Springs, not against the board of street commissioners, and the damages to be awarded are to be paid by the village of Saratoga Springs* not by the board of street commissioners thereof.

The fact that notice was directed to be given to such board no more authorized it to employ counsel, and appear in court, than the fact that in many cases notice of claims for damages, or upon contracts, are required to be presented to the city or village clerk or street superintendent authorizes such officers to employ counsel, and appear in court and defend.

By chapter 220 of the Laws of 1866 such village is created a body corporate under the name of the Village of Saratoga Springs, and in and by that name is given the power “ of suing and being sued, pleading and being impleaded, answering and being answered unto, defending and being defended, in all courts and places whatsoever.”

These words, it seems to me, embrace all judicial proceedings that can be taken by or against the village as a corporation. By chapter 308 of the Laws of 1884 the trustees and officers of the villages of this state, created by special charters, are given the same powers as are prescribed in any general act for the incorporation of villages within this state, except as such special charter may be in conflict with the provision or provisions of such general acts.

By chapter 291 of the Laws of 1870, title 3, § 3, subd. 5, boards of trustees are authorized and empowered “ to employ an attorney or attornevs, for the transaction of any matter requiring legal skill.”

Under this law, therefore, the trustees of the village of Sara-toga Springs had power and authority to employ an attorney in these proceedings, there being nothing in conflict with the last quoted statute in the special act by which the village was chartered.

It seems to me that the authority vested in the board of trustees to employ attorneys is exclusive, and that no other board or official has the power to employ attorneys in behalf of the village; and that no attorney has the right to represent the village or any board officer thereof, except the attorney designated by the board of trustees.'

It is an admitted fact that the board of trustees of the village has employed attorneys to act for it in all legal matters, and that they appeared for the village of Saratoga Springs in these proceedings, and that by a written stipulation and by afterwards appearing in open court they consented to the appointment of commissioners in these proceedings.

It seems to me that there can be no question but that the attorneys appointed by and appearing for a municipal corporation stand in the same position as attorneys employed by and appearing for private persons, and that courts have the right to rely upon stipulations and consents made by them in the course of judicial proceedings, the same as upon those made by attorneys appearing for private persons, and that they have the same power and authority to bind the clients for whom they appear, and that in the absence of fraud or collusion orders entered or proceedings taken in reliance upon such appearance and stipulation or consent will not be set aside.

No charge of fraud or collusion is made in this case, neither is there any claim that the persons appointed commissioners are unfit or improper persons. Neither is it contended that the petitioner is not entitled to have commissioners appointed to appraise her damages.

The court below seems to have fallen into an error in regard to the service of the notice of the proceedings, and to have held that no notice of the proceedings was given to the board of street commissioners. In the moving affidavit for the vacation of the order it is expressly stated that the petition and notice of motion for the appointment of commissioners to appraise the damages was served upon the board of street commissioners.

Hence there is no jurisdictional defect for want of the proper notice, as held by the court at special term, although it seems to me that the neglect to serve upon the proper parties, if there had been such a neglect, is a defect or irregularity that could have been waived by the attorneys appearing for the village. The complaint made in the moving affidavit is that, before the day mentioned in the notice of motion, the attorneys for the petitioner and the village attorneys, by mutual consent, went into court and consented to the entry of the order, and that no notice of such proposed action was given to the board of street commissioners or the attorney employed by them. None was necessary; the petitioner had given the notice required by statute; the proceedings were against the village; the village appeared by its regularly designated attorneys, and they did what is very common for attorneys to do, agreed, for mutual convenience, presumably, to go into court and dispose of the matter on a different day from that mentioned in the notice of motion.

No doubt members of municipal boards, or any other municipal officers, have the right to employ counsel at their own expense to look after legal proceedings and see that the legally appointed attorneys for the municipality do their duty, but the counsel so employed does not represent the municipality, and is not, as a matter of law, entitled to notice of proceedings in the court, and in the absence of any charge of neglect of duty on the part of the regularly constituted attorney, full faith and credit will be given to his action by the court.

It follows from this that the order appointing commissioners was properly and regularly granted, and that the order vacating and setting the same aside should be reversed.

Let an order, therefore, be entered reversing the order appealed from, with ten dollars costs of motion and ten dollars costs of this áppeal, and printing and other disbursements, against the board of street commissioners personally.

Mayhah, P. J., and Pütham, J., concur. t'


author: Mayham, P. J.

text:
    The People, App’lts, v. The Grand Lodge of the Empire Order of Mutual Aid, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 8, 1893.)

    Benefit societies—Dissolution—Paeties—Beneficiables.
    Two members of the defendant died and assessments were levied, which were paid to the temporary receiver appointed in proceedings for voluntary dissolution. Pending action against the receiver by the beneficiaries' of said members, this action was commenced to dissolve the defendant, it being insolvent, and a receiver was-appointed and also a referee to hear claims against it. Held, that the rights of said beneficiaries could be fully protected in this action, and that it was not necessary for them to intervene.
    Appeal from an order made at special term, permitting George H, and Lucy M. Nickelson, Cora B. Moses and Bertha Baade to intervene in an action prosecuted by the People.

      Simon W. Rosendale, attorney general, for app’lt; Chas. W. Mead, for receiver, George W. Maxon; Kellas & Munsill (John P. Kellas, of counsel), for resp’ts, George H. and Lucy M. Nickel-son and Cora E. Moses ; George S. Bixby, for Bertha Baade.
   Mayham, P. J.

The defendant was incorporated under chapter 189 of Laws of 1879, with power to make insurance and also to institute subordinate lodges subject to its direction and supervision. In September, 1886, Chas. S. Nickelson became a member of the respondent'corporation and received its certificate, which provided that in the event of his death the sum of $2,000, provided in § 25 of the by-laws of the defendant, $1,000 of wliich, by the terms of the certificate or policy, was made payable to his wife, Mary A. Nickelson, two-thirds of the residue to his daughter, Lucy M., and one-third of such residue to his son, George H. Nickelson.

The assured survived his wife, and on the 18th of January, 1892, died, leaving him surviving George H. Nickleson, Lucy M. Nickelson and Cora E. Moses, his heirs and next of kin, who duly notified the grand lodge of the death of the assured and filed with the grand secretary at the proper office proof of such death, and thereafter the grand lodge assessed the members of the order in accordance with the by-laws upon the death of Charles T. Nickelson and that of John F. Baade, a full rate member of the order, who died previous to such assessment, and on that assessment there was paid to the temporary receiver of the defendant the sum of $4,870.14; such receiver having been appointed on the application of the defendant in proceedings instituted by it for a voluntary dissolution of the corporation, after making such assessment pursuant to a resolution of its officers, on whose application a referee was appointed by the special term of this court, before whom it was ordered that cause could be shown, if any existed, why the defendant should not be dissolved.

After the appointment of such temporary receiver and the receipt by him of such money on this assessment, an order of the court was granted allowing an action to be commenced against the receiver upon the claim of the heirs and next of kin of Charles T. Nickelson, deceased, for the amount of the policy issued to him, and an action was accordingly commenced against the defendant and such receiver, about the 13tli of October, 1892, in which the defendant appeared and obtained an extension of the time to answer, but did not serve an answer.

On the 1st day of November, 1892, an action was commenced in the name of the People by the attorney-general, on the complaint of the superintendent of the insurance department, and his report to the attorney'-general that the liabilities of the defendant were $92,500, while its assets amounted to only about $15,000, as appears by the verified complaint of the attorney-general in this action.

The defendant appeared by an attorney but failed to answer, and on the 26th of November, 1892, application was made for judgment at the special term and judgment was on the 29th of November, 1892, entered in Saratoga county, dissolving such corporation and appointing a receiver of the property of the defendant.

After the entry of judgment the petitioners on this motion served a notice of motion for the 10th of January for an order that they be relieved from all restraint imposed by this judgment, and that they be entitled to take proceedings to enforce payment to them of the sum mentioned in the certificate issued by the defendant to Charles S. Nickelson, deceased, and that the receiver be directed to pay the same to them, or that they be permitted to intervene.

This motion was granted, and the People, by the attorney general, appealed. It will be seen from an examination of above facts and other facts in the case, that this corporation at the time of the commencement and prosecution of this action by the attorney general was an insolvent corporation, with liabilities far in excess of its assets, a fact conceded by the trustees and managers of the corporation by the attempted voluntary dissolution, and that the action prosecuted by the attorney general was but the usual and legal method of dissolving an insolvent corporation and thus accomplishing the result sought in vain to be accomplished by the respondents.

In that action through the receiver all the assets of the corporation can be marshalled and all valid claims against the fund ascertained and determined by and before the referee who was appointed to take proof of claims against such corporation.

If, therefore, the heirs of Charles S. Nickelson who are petitioners to intervene in this action were creditors of the corporation their rights would be fully protected in this action, as they with all other creditors would be represented by the receiver, whose duty under the direction of the court it would be to apply the assets of the corporation to. the payment of its debts.

But it is insisted by the petitioners that this fund in the hands of the receiver is in the nature of a special deposit, or trust fund, and to the extent of $2,000 belongs to them, and to protect their interest in it, and secure its payment to them, it is necessary that they intervene in and become parties to this action.

The judgment in this action was entered on the 26th day of November, 1892, and by its terms seems to have provided for the closing up of the affairs of this corporation through the agency of the receiver with the aid of the court. The order from which this appeal was taken was entered on the 10th day of January, 1893, and if carried into effect would necessarily greatly hinder the expeditious and economical winding up of the affairs of the corporation. While it is true that the court has the power in the exercise of a sound discretion to allow a party to intervene, the rule seems well settled that in the exercise of that discretion a clear and sufficient reason should appear before such intervention should be permitted, and the exercise of that discretion has frequently been reviewed on appeal.

In the People v. The Globe Mutual Ins. Co., 27 Hun, 539, the order of the special term allowing two claimants of funds in the hands of the receiver to intervene was reversed by general term of this department, and Learned, J., in delivering the opinion of the court, said: “It is not necessary that these parties should in-

tervene in order to establish their claim against the assets in the hands of the receiver. To secure such assets and to protect and apply the same to their legitimate use is the duty of the attorney general and the receiver. Since the case of Attorney General v. The North American Life Ins. Co., 77 N. Y., 297, the desire to intervene for all causes and for no cause has become common, and the discretion of the court has been exercised in favor of such applications to the great prejudice of the due and proper administration of the law. Each interven or has a right to appeal, and thereby may greatly delay the proceedings.”

In view of that fact we think the danger of absorption of the fund, against which the learned judge at special term, perhaps justly, objects, would be greatly aggravated rather than mitigated. In the case of the Attorney General v. Continental Life Ins. Co., 90 N.Y., 45, policy-holders were allowed to intervene, and upon an application for allowance to attorneys, which came before the court of appeals, Finch, J., said: “ These were busy themselves and kept the court busy, their positions changing during the exigencies of the struggle, sometimes fighting each other, now assailing the receiver, and then defending him, until the controversy became greatly involved and the fund seriously imperilled by the alleged effort to defend and increase it”

If can hardly be maintained that intervention in this case was necessary or proper to guard the fund against the exaction of the attorney general’s office in costs ; especially as that officer is required by law to .report to the comptroller and legislature all costs adjudged to the People, and costs recovered by the attorney gen-eral, and the manner in which he has expended or applied the same. Chapter 643, Laws of 1873; § 53 of chapter 683, Laws, of 1892; and also § 56 of the same act.

Nor do we think intervention necessary on the part of the petitioners to guard their interest against any act of the receiver:

He is an officer of the court, and acts under its direction and is answerable to its summary action to prevent any abuse or perversion of his power or authority.

As has been seen, an order was made in this action appointing a referee before whom claims against this corporation can be proved and it also appears from the case that another referee was appointed on this motion to take proof of the claim of the petitioners to the fund in the liánds of the receiver.

We see no necessity for this while the' reference and the judgment to take proof .of claims stands.

All the facts which could be proved before the referee appointed by this order can be proved before the referee appointed under the judgment, and while we believe that either of the gentlemen appointed as referee to take proof of claims is worthy of the fullest confidence, we can see no good reason for suspending the former by the appointment of the latter; nor do we see any necessity for two referees for the performance of substantially the same duty.

On the whole, we think the order appealed from should be reversed.

Order reversed, with ten dollars costs and printing disbursements.

Putnam and Herrick, JJ., concur.


author: Sheldon, S.

text:
    In the Matter of Proving the last Will of Carl Sohn, Deceased.

      (Surrogates Court, Herkimer County,

      Filed January 8, 1891.)

    "Will—Construction.
    By testator’s will he gave his property to his wife “to have full control of all my real and personal estate during her natural life or so long as she may remain my widow, but if she should remarry her control and interest in my property is to cease and shall pass to the heirs hereinafter named,” and provided that “ in the event of the death of any of the above named heirs previous to the death or remarriage of my wife, their share of my estate shall be inherited by those remaining whose names appear above, and in no event shall my daughter, Mary Sohn, have any portion or share in my personal or real .property.” Held, that testator did not die intestate as to any portion of his property; that the legal effect of the will was to give an estate for life to the widow liable to be terminated by her marriage, and that upon her death or remarriage the property passes absolutely to the heirs named, subject to the contingency specified in the will.
    Probate of will.
    Mary Sohn, a daughter of the testator, filed objections to the probate of his will, but upon the hearing withdrew the objections to the probate, but demanded that- the will be construed to be an effectual disposition of the real and personal property of the testator only for the life of Caroline Sohn, testator’s wife: that only a life estate is created by the will, and that as to the remainder the deceased died intestate.
    The will, omitting the formal part, is as follows ; “ I give, devise and bequeath to my wife, Caroline Sohn, to have full control of all my real and personal estate during her natural life or so long as she may remain my widow ; but if she should remarry, her control and interest in my property-is to cease and shall- pass to the heirs hereinafter named, viz.: Charles F. Sohn, George W. Sohn, Louisa Pugh, wife of William Pugh, Dora Sohn, Lena Sohn,, Leonard Solm, my grandson, son of Sophia Sohn, deceased, all the above-named children and grandchild to share and share alike. In the event of the death of any of the above-named heirs previous to the death or remarriage of my wife, Caroline, their share of my estate shall be inherited by those remaining whose names appear ■above, and in no event shall my daughter, Mary Sohn, have any portion or share in my personal or real property.”

      William C. Prescott, for proponent; Henry F. & James Couper for contestant.
   Sheldon, S.

The intention of Carl Sohn that his daughter not any estate or personal property after his death cannot be doubted, for not content with leaving her name out of the list of the recipients of his property he added his emphatic declaration to that effect in the concluding clause of his will. It cannot be supposed, therefore, that he intended to die intestate as to any of his property. All parties agree that the decedent by this will has given his real and personal property to his wife for life, but her life estate is subject to be defeated by her remarriage. The contestant says the only further provision is contained in the literal reading of the words “ but if she should remarry her control and interest in my property is to cease and shall pass to the heirs hereinafter named, viz. ” that is, the life estate of Caroline Sohn should upon her marriage pass as an estate per autre vie to the “heirs hereinafter named” and of course terminate upon her death, thereby making an intestacy as to the remainder; as according to such construction there is only a life estate disposed of by the will.

But such construction leaves meaningless the provision made for a case where one or more of the remaindermen should die before the termination of the life estate; for I think it must be assumed that the testator by the words “ their share of my estate ” refers to the share given them by this will which, upon the construction of the contestant, would be nothing prior to the death or remarriage of Caroline Sohn. I think the various provisions are harmonized and the clear intention of the testator expressed and made effectual by supplying the words “ or die ” after the word “ remarry ” and the word “ it ” after “ and ” and before “ shall pass,” so that the clause will read, “ but if she should remarry or die her control and interest in my.property is to cease and it shall pass to the heirs hereinafter named.” The two events, death or remarriage of the widow, are coupled in the will in carving out the first estate ; they are coupled also in providing for the event of the death of one or more of the remaindermen previous to the termination of the life estate, and there can be no doubt but that it was by mere inadvertence that the two events were not coupled in the clause which specifies who should receive the property when it should pass from the first taker.

It seems to me a very narrow, technical and unnatural construction to suppose that the testator intended to give to the persons named in the second clause nothing except in the event of the remarriage of his widow, and in that case only the enjoyment of the property divided among six takers for the remainder of her life, leaving intestacy as to the fee.-

In the opinion of the court by Finch, J., in Phillips et al. v. Davies et al., 92 N. Y., 204, is found a statement of the rule of construction which supports the view which I have concluded must be taken of this will. The language of the opinion is as follows: “If such was the real meaning and intention of the testatrix, if an examination of the whole will forces that conviction, if its plain and definite purposes are endangered by inapt or inaccurate modes of expression, and we are sure that we know what the testatrix meant, we have a right and it is our duty to subordinate the language to the intention. In such a case the court may reject words and limitations, supply them or transpose them to get at the correct meaning,” citing Pond v. Bergh, 10 Paige, 140; Drake v. Pell, 3 Edw., 251; Mason v. Jones, 2 Barb., 229.

The same rule is stated in Piker v. Cromwell, 7 St. Rep., 316; Roe v. Vingut, 17 id.. 124; 117 N. Y., 204; 27 St. Rep., 288; Vanderpoel v. Loew, 7 St. Rep., 304: Austin v. Oakes, 15 id., 949 ; Holt v. Jex, 16 id., 270.

An estate may undoubtedly pass by implication. Jackson v. Schauber, 7 Cow., 195; Willis v. Lucas, 1 P. Wms., 472.

The law prefers a construction of a will which will prevent a a partial intestacy to one which will permit it. Vernon v. Vernon, 53 N. Y., 351 ; Thomas v. Snyder, 6 St. Rep., 592.

This rule of construction is especially applicable to a case like the present, where the testator has in his will declared a purpose which a partial intestacy would thwart.

I am therefore of the opinion that the legal effect of the disputed provisions and the true construction is that the will gives an estate for life to the widow which is liable to be terminated by her marriage, and that upon her death or remarriage the property passes absolutely to Charles F. Sohn, Greorge W. Sohn, Louisa Pugh, wife of William Pugh, Dora Sohn, Lena Sohn, and Leonard Sohn. son of Sophia Sohn, in equal shares, subject, however, to the contingency specified and provided for in the will.

A decree should be prepared in accordance with the foregoing opinion.


text:
    In the Matter of the Application of Josephine B. Burdick, Am’rx, for disposition of the real property of decedent for the payment of debts.

      (Surrogate’s Court, Herkimer County,

      Filed July 23, 1891.)

    Executors and administrators—Sale of real estate—Limitation.
    In 1883 decedent gave a note for $1 000, payable in one year, and died in 1887. Letters of administration were granted December 19, 1887, and the claim upon the note was presented and,allowed, and a payment made thereon on the final accounting in 1890, the personalty being insufficient to pay the debts. In a proceeding for distribution of a surplus arising from a foreclosure sale of the realty, Held, that the claim was barred by the statute of limitations.

      (Church v. Olendorf, 49 Hun, 440; 19 St. Rep., 700, followed.)
    On April 1, 1882, Byron L. Huntley made, executed and delivered his note as follows:
    “ $1,000. West Winfield, April 1, 1882.
    “ For value received I promise to pay J. Frank Huntley or bearer, one thousand dollars with use one year from date.
    “Byron L. Huntley.”
    The note was transferred by Huntley to, and is now the property of Esther A. Bentley. On May 1¡ 1887, Byron L. Huntley died intestate, leaving a widow and several minor children.
    On December 18, 1887, letters of administration were issued to Josephine B. Huntley, the widow of the intestate, and Yose W. Palmer. The administrators advertised for claims against the estate of decedent for six months, commencing November 29,1888. On the 24th day of June, 1889, Yose W. Palmer, one of the administrators, filed a petition for a final settlement of the accounts of the administrators, and such accounting was thereafter had, the account having been filed, November 6, 1890, and a decree settling the accounts of the administrators was filed and entered in the surrogate’s office on that day. By the account and decree made thereon it appears that the administrators received in assets the sum of $980; that claims of creditors had been presented and allowed, including the claim of Esther A. Bentley, to the amount of $1,850.09 ; and that there was $241.73 in their hands which by said decree was ordered paid to said creditors ratably.
    This proceeding for the disposition of the real property of the deceased for the payment of debts was commenced November 10, 1890, by the administrators, by filing a petition in this court, which alleged, among other things, that the deceased was the owner in his lifetime of certain real estate upon which was a mortgage which, subsequent to his death, was foreclosed; and a surplus arising therefrom amounting to $1,101.41, paid to the county treasurer of this county; that the debts of decedent amounted to $1,608.36, exclusive of interest, and that the personal property of decedent was insufficient to pay his debts. That the decedent left a widow, one of the petitioners, and three minor children, his heirs, named Lee Huntley, Adell Huntley and Estella Huntley. Hpon the hearing for the proof of claims in this proceeding, Esther A. Bentley appeared, and upon offering proof ■of her claim the special guardian of the infants, heirs, filed and interposed an answer pleading the statute of limitations, viz.:
    “ That the cause of action and claim now presented as aforesaid arose and accrued more than six years before the commencement of these proceedings.” Proof was given of the making and ownership of the note, that it had been presented to the administrators and admitted by them to be a valid claim, and that upon the final accounting they had paid upon the note ¿232.29.

      Charles D. Thomas, for creditor Esther A. Bentley; A. B. . Steele, special guardian, for heirs.
   Sheldon, S.

omy question in this case is whether the right to the relief sought by the creditor in this proceeding is barred by the statute of limitations.

The statute of limitations affects only the remedy. Kincaid v. Richardson, 25 Hun, 237; Rogers v. Murdock, 45 id., 30; 9 St. Rep., 660 ; Rose v. Henry, 37 Hun, 397 ; Johnson v. A. & S. R. R. Co., 54 N. Y., 416.

In the cases of Kincaid v. Richardson and Rose v. Henry it is held that the statute of limitations only affects the remedy by action, and that execution may issue on a judgment although an action thereon would be barred by the statute. It is also held in Rose v. Henry that statutes of limitation must be strictly construed, and it would seem to be the duty of the court to save the ■claim from the bar of the statute, unless it appears that the clear and necessary construction of the various provisions applicable forbids. Section 352 of the Code of Civil Procedure provides that an action upon a contract obligation or liability, or an action to recover upon a liability created by statute, must be brought within six years, and “ special proceeding ” may be read for action in the same provision. Section 415 of the Code of Civil Procedure provides that “ the periods of limitation prescribed by this chapter, except as otherwise specially prescribed therein, must be computed from the time of the accruing of the right to relief by action, special proceeding, defense or otherwise as the case requires, to the time when the claim to that relief is actually interposed by the party as a plaintiff or defendant in the particular action or proceeding.”

In this case a right to maintain an action (not a special proceeding) arose April 4, 1883, against the decedent, and had he lived that right of action would have existed six full years and have been as perfect the last day of the six years as the first. Huntley died May 1, 1887, and personal representatives were appointed who took title to his personal property and who were liable to be sued in the place of decedent upon the cause of action against him. The right to that relief was based simply on the fact that Huntley had not performed what he had contracted to do; and the relief to be sought was the judgment of the court that the plaintiff recover the sum which Huntley had contracted to pay. It did not become necessary in this case for the creditor to obtain a judgment against the administrators in order to exhaust the personal property of decedent in payment of his claim, for the claim on presentation was admitted, and the creditor’s share of the personal estate afterwards paid to her in due course of administration.

The statute of limitations commenced running against an action on April 4, 1883, because an action might then have been brought.

When did the statute of limitation commence running against this special proceeding ? When did the right to relief by this proceeding accrue to this creditor ? In considering the question of when the “ right to relief ” by this special proceeding accrued the nature of the relief may well be examined.

The relief is equitable in its nature and very comprehensive.

It comprises the taking and sale under the direction of the court of all the real estate of which the decedent was seized at his death, whether in the hands of his heirs or devisees or their grantees, and the equitable distribution of the money derived from such sale in payment of the claims existing against the decedent at the time of and which survived his death, and among all parties equitably entitled thereto.

The proceeding is against the land. The necessary parties are the creditors, all persons interested in the land, and the personal representatives of the decedent.

The facts which must exist, and be established in order to entitle a party to the relief, are the death, the appointment of personal representatives, the existence of claims against decedent valid at the time of his death to an amount that the personal assets applicable will be insufficient to pay, and “ that all the personal property of the decedent which could have been applied to payment of the decedent’s debts and funeral expenses has been so applied, or that the executors or administrators have proceeded with reasonable diligence in converting the personal property into money and applying it to the payment of those debts and funeral expenses and that it is insufficient for the payment of the same, and that the decedent was the owner at the time of his death of the land sought to be taken. The existence of these facts gives the right to relief. Can the right to relief be said to have accrued until these facts all exist? Did the statute of limitations commence running as against this right of relief until these facts existed?

In Mead v. Jenkins, 95 N. Y., 31, the facts were as follows: The claim was due February 11, 1871, and the intestate died March 19, 1871. Letters of administration were granted April 14, 1871. The proceedings in question were commenced February 6, 1880. The administrators accounted on the 17th day of October, 1877. The court, upon these facts, held as follows; “ The proceedings here could not be commenced until after the accounting, and hence the statute did not commence to run until the accounting in 1877. The proceeding was commenced February 6, 1880, about two years after the accounting, and the statute had not then run so as to constitute a bar.” The case of Merritt v. Reid, 13 W. Dig., 453, was an action on a note for six months, dated. August 7, 1872. The action was commenced October 14, 1879. The note was made by a corporation called “ Manhattan Sewing Machine Company,” and the defendant was a stockholder of that company. By the provisions of the statute a stockholder could not be made liable for a debt of the company unless an action to recover the debt should be brought -against the company within a year from the time'when the debt became due, and judgment recovered in such action and execution issued upon such judgment returned unsatisfied. Execution was returned unsatisfied October 23, 1873, upon the judgment against the company.

The defense was the six years statute of limitation, and in the trial court it was sustained. The court, on appeal, held that, as the return of execution unsatisfied against the corporation wTas a prerequisite to an action against a stockholder, the right of action against him did not accrue and the statute did not commence to run until the return of the execution, and that the action was brought in time. It would follow from this case that if the claim was a valid and enforceable one at the time when the new right of relief arose upon it, the new right of relief would not be lost at the expiration of six years from the time when the note was due.

The same doctrine is stated in Duckworth v. Roach, 81 N. Y., 50. Upon the foregoing considerations and the authority of Mead v. Jenkins, I should be of opinion that the claim of Esther A. Bentley is not barred by any statute of limitation, were it not for the case of Church v. Olendorf, reported in 19 St. Rep., 700; S. C., 49 Hun, 440, which was decided in this department in 1888. The case of Mead v. Jenkins, 95 N. Y., 31, is cited and recognized as authority for the proposition: “ As the law stood prior to September 1, 1880, the respondent could not have commenced such a proceeding as this until after the executor or administrator had rendered his account, and thus such a proceeding was stayed by statutory prohibition until September 1, 1880. "

It seems difficult to distinguish as to statutory prohibition between the requirement that an accounting shall be had before this proceeding be commenced, and the requirement as the law stands now that letters of administration shall have been granted and the further requirement that the personal estate shall have been applied to the payment of the claims, or that in effect.

It may be claimed that the case of the issuing of letters as a prerequisite differs from the case of an accounting because the creditor can himself apply for letters; but so could the creditor as the law stood prior to 1880 apply after eighteen months for an accounting, and in the case of Mead v. Jenkins the accounting was more than six years and six months after letters were issued. It seems clear, therefore, that the question of whether or not the running of the statute of limitation is suspended by statutory prohibition is not to be determined by the diligence or laches, or in truth any action of the creditor. Why, then, should the running of the statute in OlendoiJ's case have been suspended until September 1, 1880, and not after that and until letters of administration were issued ? Were it not for the decision in the Olendorf case it would seem to me more reasonable to say in view of § 415 that the running of the statute is not suspended, but that the statute as against this relief and remedy does not commence to run until at least after letters are issued. But controlled as I am by the authority of the Olendorf case, I must hold that the claim of Esther A. Bentley is barred in this proceeding by the statute of limitations.


text:
    In the matter of the Final Judicial Settlement of the Accounts of Edward T. Mulligan, Adm’r.

      (Surrogate’s Court, Herkimer County,

      Filed March 6, 1893.)

    1. Executors and administrators—Inventory — Property set apart
    for widow.
    The provision of ch. 406, Laws 1889, directing appraisers to set apart additional personal property to the widow in case her interest in the real estate of the decedent in addition to her dower right and personalty to the amount of $150 is of less value that $1,000 is not limited to a case where the decedent leaves real estate. A case where the interest of the widow in the real estate of her deceased husband is nothing because of want of value and a case where her interest is nothing for want of real estate are both cases within the meaning of the act.
    2. Same—Constitutional law.
    Chap. 406, Laws 1889, is not unconstitutional as impairing the obligation of contracts made prior to its passage.
    Ou the 9th day of February, 1890, Thomas Mulligan, a resident of the town of Winfield, in this county, died at said town intestate, leaving a widow, Bridget Mulligan, and three sons, Edward T. Mulligan, James H. Mulligan and William C. Mulligan. At the time of his death the intestate was the owner of and in possession of both real and personal property. On February 24,1890, Edward T. Mulligan received letters of administration upon the estate of the decedent, and upon the same day, upon the application of the administrator, appraisers were duly appointed to aid the administrator in making an inventory of the personal property of the decedent. On March 8, 1890, the administrator filed his inventory, by which it appeared that the appraisers set apart for the widow of the decedent the articles required to be set apart without appraisal, also furniture to the amount of $68.53, also other personal property to the amount of $150.
    The appraisers also further returned as follows: “ We do in-
    ventory and appraise the interest of the widow, Bridget Mulligan, in the real estate of her deceased husband, Thomas Mulligan, in addition to her dower right therein, to be of no value and worthless, and we do, therefore, in compliance and conformity with chapter 406, of the Laws of 1889, inventory and set apart for the use of such widow, Bridget Mulligan, the following described personal property,” then follows a list of personal property, the®value of which as appraised amounted to $467.95. The appraisers also returned in the inventory that no other personal property was exhibited to them and that they believed there was none. Thereafter the administrator filed his account in this court, in which he alleges that he caused an inventory to be made and filed and that the appraisers had set apart to the widow of the deceased all the personal property, and that nothing had come into his hands as administrator. The account also contains a list of the creditors and the amount of their respective claims against the estate which are unpaid. In this list is A. Curtis Day, whose claim appears to-be $2,400.00. Upon the accounting Mr. Day appeared and filed objections to the account and asked that the administrator be-charged with the sum of $467.95, which the appraisers set apart, to the widow. It was proved or conceded on the hearing that on March 1,1889, Day and wife conveyed to Mulligan, the intestate, a farm of about 108 acres, situated in Herkimer county, which Mulligan owned and occupied at the time of his death, also that Day’s claim as creditor was mainly upon a bond given by Mulligan to pay the purchase price of the farm and was dated March 1,1889. The inventory made by the administrator, by the aid of the appraisers, was also put in evidence.

      Steele & Prescott, for administrator; Root & Jones, for creditor Day.
   Sheldon, S.

The administrator claims that tne sum of $467.95, which was set apart to the widow, in 'addition to the other articles and sums allowed her, was properly set apart to her by virtue of that provision of chapter 406 of Laws of 1889, which reads as follows: “And in case the interest of a widow in the real estate of a deceased husband, in addition to her dower right and together with said one hundred and fifty dollars, shall be of less value than one thousand dollars then said appraisers shall set apart for the use of such widow, or for the use of such widow or child and children, in the manner hereinbefore prescribed, personal property which, together with said real estate, shall amount to one thousand dollars in value. Said appraisers are authorized to make an appraisal of the real estate to which the widow may be entitled for the purposes of this section. The provisions of this section shall apply where a man dies intestate, as well as where he leaves a last will and testament’’ The creditor objecting to the allowance to the widow claims that upon reading the first section of the act in connection with the provision above quoted, a construction of the act must follow which forbids an allowance of personalty additional to that formerly set apart to the widow except in those cases where the widow has and takes an interest of some value in the real estate of her deceased husband.

In support of this contention the decision of Surrogate Bansom, in Matter of estate of William Koch, 31 St. Rep., 963, is cited. In that case the learned surrogate held that the additional provision of personal property for the widow could be availed of only in a case where the deceased husband was the owner of real estate at. the time of his death.

The opinion of the learned surrogate is entitled to great respect, but I am constrained to think that his view of the statute is a mistaken one. Doubtless a literal reading of the act upholds the position above stated, and upon such a narrow and critical construetion it might be urged with nearly as much plausibility that § 30 added by this act to chapter 2 of part 2 of the Revised Statutes fails in its purpose to give the widow an additional portion of the real estate of her deceased husband because it provides that the “ widow, in addition to any interest to which she may be entitled under the preceding sections of said chapter two, shall be entitled to the use for life of an additional portion of the estate,” when a reference to the preceding sections of chapter 2 discloses that the widow of an intestate does not become entitled to any interest, whatever, in the real estate of her deceased husband by virtue of those provisions; the provision for dower, which was doubtless intended, being contained in chapter first instead of chapter second. But the statute is plainly an enlargement of the humane provisions of the law in favor of the widow and the orphan, and must be liberally construed to accomplish, if possible, its purpose. Stewart v. Brown, 37 N. Y., 350; Chamberlain v. Darrow, 46 Hun, 48; 11 St. Rep., 100; Wilcox v. Hawley, 31 N. Y., 648.

Another rule of construction is that every provision of the act must, if possible, be given a meaning which permits it to take effect in accomplishing the general purpose instead of a meaning which makes the provision itself void or one which destroys or impairs the general purpose. And the various provisions must be construed, if possible, so that they may become parts of one harmonious whole. Having in view, then, the purpose of the act, it is clear that the provision in § 1, that “such widow, in addition to any interest to which she may be entitled * * * shall be entitled to the use, during her life, of an additional portion of the estate not exceeding $1,000 in value," means and should be read, “in addition to her dower right * * * shall be entitled to an additional portion of the estate besides her dower, etc.” The words “ in addition to ” occur twice in § 2 of this act, and once in § 1, and I think must be taken as the equivalent in meaning of besides in each instance of its use. It is evident, therefore, that the legislative intent was to make an additional provision for the widow, a provision besides the former ones, a provision which should not fail in any case except for want of property out of which it could be made. It is true that, as to the kind of property from which such provision was to he set apart, real property is preferred, but there is careful direction given to supply the want of real property to the extent of the deficiency with personal. It might happen that, in a case where a deceased husband devised real estate to his widow, that her interest in the real estate of her deceased husband, over and above her dower, would be of greater value than $850, and the widow would take no additional personal property by virtue of this act. In another case it might be that the real estate devised to the widow would be of no greater value than her dower right and be in lieu of dower, and then the entire additional provision of $850 would be set apart from the personal to make up the required $1,000, and this without regard to whether the dower or devise was of great or little value.

Can it he supposed, then, that in a case where the value of the dower is nominal, or in a case where there is no real estate to which the right of dower might attach, that it was the intention of the act that no additional provision of personal property should be made ? A case where the interest of the widow in the real estate of her deceased husband is nothing because of want of value, and a case where the interest therein is nothing for want of real estate, are both, in my opinion, cases within the meaning of this act where such interest, together with said $150, is of less value than $1,000, and the appraisers are authorized and required to set apart additional personal property to the amount of $850, if there is personal property to that amount, and if its value is less, then all the personal should be set apart, as was done in this case.

The further claim is made by the contesting creditor that inasmuch as the contract by virtue of which this claim of indebtedness accrued was made before the passage of the act in question that the parties intended that this personal property should be available for the satisfaction of the debt and that the legislature cannot pass an act nullifying the intention of the parties manifested in their contracts. ,

This claim, if anything, is that the act is unconstitutional, because it impairs the obligation of a contract.

The act in question is, in express terms, an amendment of “An act to extend the exemption of household furniture and working tools from distress for rent and sale under execution as amended.” The amendment is in no way different from the original act except that it extends and enlarges the exemption.

The claim that the original act was unconstitutional because it impaired the obligation of contracts made prior to its passage was passed upon in the court of appeals in the decision of the case of Morse v. Goold, 11 N. Y. 282, where the court held that the act affected the remedy, and not the contract, and was not unconstitutional. This act differs only in the extent of the exemption, and I think the reasons which led to the decision of that case apply with equal force to the case in hand and require a like decision.

The objections to the account of' the administrator are not sustained.


author: Barnard, P. J.

text:
    Charles O. Olmstead, App’lt, v. The Town of Pound Ridge, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Towns—Laws 1890, chaptbb 568, § 16—Constitutional law.
    Section 16 of chapter 568, Laws 1890, providing that no action can be maintained against a town for injuries sustained through any defect in its roads or bridges unless a verified statement of the cause of action shall have been presented to the supervisor within six months, nor until fifteen days after service of such statement, simply imposed a condition which affected the remedy, and is not unconstitutional.
    8. Same—Pleading.
    In an action against a .town the complaint must show the performance of the conditions precedent.

      Appeal from judgment in favor of defendant, entered on a dismissal of a complaint on the trial on the ground that it did not state facts sufficient to constitute a cause of action.
    Action to recover damages for injury to plaintiff’s horse occasioned by its falling through a bridge which defendant was bound to keep in repair. The complaint did not allege that a verified statement of the cause of action had been presented to the supervisor of the town within six months after it accrued and that fifteen days had elapsed between the service of such statement and the commencement of the action.

      Charles Haines, for app’lt; Smith Lent, for resp’t.
   Barnard, P. J.

The complaint is framed to recover damages for a neglect to keep a highway in the town of Pound Ridge in proper repair by the commissioners of highways of the town. The accident is alleged to have occurred by the neglect of the commissioners and without any neglect upon plaintiff’s part, on the 25th of March, 1892 The complaint contains no averment that the claim was served upon the supervisor of the town within six months after the cause of action accrued, nor that fifteen days had elapsed after the claim was so presented before the action was commenced, according to the requirement of § 16, chap. 568, Laws of 1890. The complaint was dismissed for "this defect at the opening of the trial. The law in question simply imposed a condition which affected the remedy, and is subject to no objection. Morse v. Goold, 11 N. Y., 281; Matter of Palmer, 40 id., 561.

It was necessary to aver the performance of the conditions precedent in the complaint This defect in the complaint can be raised at any stage of the action. Reining v. City of Buffalo, 102 N. Y., 308; 2 St. Rep., 10.

The judgment should be affirmed, with costs.

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


text:
    James O’Shaughnessy, Pl’ff, v. The Morning Journal Association, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Libel—Publication concerning detective.
    A publication of and concerning a detective, to the effect that he joined in pursuit of an escaped prisoner, and upon his capture struck him with such force that he fell like a log and was handcuffed before he recovered; that the capture could have been made without such rough treatment, and that the spectators called him a big brute, if false and maliciously published, is libelous.
    3. Same—Repetition of statements of others.
    The repetition of injurious words as having been spoken by another is as much a libelous publication, if maliciously published, as if the direct charge had been made.
    Exceptions ordered heard at general term in the first instance after dismissal of the complaint on the ground that it did not set forth facts sufficient to constitute a cause of action.
    Action for libel.

      Chas. J. Patterson, for pl’ff; B. F. Einstein and Henry Yonge,. for def’t.
   Barnard, P. J.

The complaint set forth an article published by the defendant of and concerning the plaintiff which was sufficient to carry the case to the jury. • The charge in the article is to the effect that the plaintiff, a detective officer, joined in the pursuit of an escaped prisoner in Brooklyn. That the plaintiff, upon the capture of the prisoner, struck him with such force that he dropped like a log and was handcuffed before he recovered and douched with cold water. That the spectators cried shame and called the plaintiff a big brute. That there was no sufficient occasion for this rough treatment. That the captured prisoner was tossed bodily into a van. That the capture could have been made without such a free use of the officer’s fists. This is charged to be false and to have been maliciously published and composed by the defendant of and concerning the plaintiff. For the purposes of this appeal the publication must be assumed, because the complaint was dismissed because the article was not libelous even if it was false and was published maliciously. If false,, and if it was maliciously published, is it libelous ? We entertain no doubt but that it was a libel. The words hold up the plaintiff to obloquy and contempt They reflect upon the plaintiff’s business and his management of it The charge of being a brute in his business is in legal effect directly charged and published, because the repetition of injurious words as having been spoken by another is a libelous publication, as much so if maliciously published as if the direct charge had been made.

The exceptions should be sustained and a new trial granted, costs to abide event

Dykman and Pratt, JJ., concur.


text:
    Charles Greite, Resp’t, v. Charles Henricks et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Covenant—Agreement not to engage in certain business within specified time.
    Defendant H., who owned- certain premises and leased others on which he ran an hotel and saloon business, sold said business to one K., and covenanted that neither himself nor his wife would engage in similar business within a half mile of said premises for five years. K. sold said business to plaintifi by bill of sale making the covenants and conditions in defendant’s bill of sale applicable. The following year H. purchased the premises formerly leased by him, gave notice to plaintiff to vacate, and on the termination of the lease opened the same business on the old premises. Held, that the covenant was not in general restraint of trade, was based on good consideration and was valid and passed to plaintiff on the sale to him.
    Appeal from judgment of special term for the sum of $1,200 damages and awarding plaintiff a permanent injunction against the defendant, restraining him from carrying on a hotel, restaurant, etc., at Nos. 18 and 20 West First street in the city of Mount Vernon.

      David Swits, for app’lts; L. L. Van Allen, for resp’t.
   Barnard, P. J.

The defendant Kernick conveyed a hotel, saloon, boarding house and restaurant business to the plaintiff in Mount Yernon, N. Y. The consideration for the transfer was $5,000, and by the terms of the bill of sale the covenants and conditions contained in a bill of sale from defendant Henricks to defendant Kernick were made applicable to the sale to plaintiff.

' The bill of sale from Henricks to Kernick contained this covenant : “ I, the said party of the first part, nor my wife, shall, in any manner, engage in any hotel, inn keeping, saloon, restaurant or boarding house business within one-half mile from said premises, at any time within five years from the date hereof.” The date was 15th of January, 1891. The business was conducted upon premises known as 3 South Fifth avenue and 18 and 20 West First street, Mount Yernon. The Fifth avenue property was owned by Henricks and he was the lessee of the West First street property when he sold to Kernick under a lease which expired May 1, 1892. In 1891, Henricks .bought the First street property and gave notice to plaintiff to vacate at the end of the lease. The plaintiff then bought the adjoining property and continued his business therein. On the 2d of May, 1892, Hendricks "opened the same business on the old premises. The covenant was valid. It is not in general Restraint of trade. It was based upon a good consideration. It was beneficial to the purchaser and its violation will be injurious to him. The rule governing such covenants is settled by the court of appeals in Diamond Match Co. v. Roeber, 106 N. Y., 473; 11 St. Rep., 47.

The covenant between the defendants was personal when made, but when the sale was made to the plaintiff this covenant was legally incorporated in it. The case "was then one where Henricks had sold a business carried on in certain premises partly owned by him and partly hired, and had covenanted not to open a like business within a half-mile within five years, nor -to permit any •one to carry on the business in the Fifth avenue premises owned by him. The lease was given under this condition to Kernick ■and before it expired it was sold to plaintiff. This personal covenant under these circumstances passed to plaintiff. It was bought by Kernick as incident to these premises and was assignable.

The judgment should be affirmed, with costs.

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


text:
    Charles Greite, Resp’t, v. Charles Henricks et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Contempt—Appeal.
    Pending an action to restrain defendant from carrying on a saloon business in violation of a covenant not to do so, made on a sale of a similar business, the defendant threatened to evade an adverse decision by selling the business to one O. and that it should not be shut up no matter what the court decided, and two days before entry of judgment did sell to O The court adjudged him guilty of contempt for so doing and directed his commitment unless he rescinded said sale. Held, that an appeal from said order was premature ; that the final order should he awaited and the appeal taken from that.
    2. Same—Interference to make judgment nugatory.
    Defendant having made the transfer with the avowed purpose of rendering the judgment nugatory, was guilty of contempt.
    Appeal from order adjudging defendant in contempt and directing Ms commitment to jail unless witMn tMee days after service of a copy of the order he purge himself of the contempt by procuring a cancellation of an assignment of a saloon business to one O’Connell.

      David Swits, for app’lt; L, L. Van Allen (Martin J. Keogh, of counsel), for resp't.
   Barnard, P. J.

A judgment was obtained by the plaintiff against the defendant, Charles Henricks, on the 19th of November, 1892, restraining him from carrying on a saloon business» The case was tried in October, 1892, and the decision was filed on the 5th of November, 1892. Pending the trial the defendant., Henricks, threatened, to evade an adverse decision, that he would sell to one O’Connell the business, and that it should not be shut up no matter what the court decided. A day or two before the entry of judgment he did sell the business to O’Connell, and it continued under O’Connell’s name thereafter. Henricks owned the title to the real estate, and had covenanted that he would not carry on a saloon business within a half mile of the same for five years from January 1,1891. The covenant he had received a large price for, and his violation of it caused a large loss to the plaintiff, who was carrying on a similar business on premises adjoining. The covenant had been given upon a sale of the business on the defendant’s premises, but he had forced the plaintiff to leave the same in gross violation of the spirit of the covenant. The court adjudged that he was guilty of contempt, and directed his commitment to jail unless he undid his transfer with O’Connell, and pay the costs of the motion. The appeal is from this order, and it seems that the appeal is premature. The final order should be awaited, and an appeal taken from that. Brinkley v. Brinkley, 47 N. Y., 40 ; Code, § 2281; Matter of Crosher, 11 N. Y. Supp., 504.

If the appeal is proper, the order should be sustained. It is true that the formal service of the judgment was not made until after the transfer to O’Connell; but this transfer was made upon the avowed purpose of rendering the judgment idle.' He actively interfered to make a judgment of the court nugatory, and, therefore, was guilty of a contempt. King v. Barnes, 113 N. Y., 476; 23 St. Rep., 263.

The forbidden acts were continued after the service of the order.

The order should be affirmed, with costs and disbursements.

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


text:
    Henry S. Pound, App’lt, v. Revilo H. Molyneaux, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Milk cans—Owner of leased premises not liable for presence of
    CAN THEREON WITHOUT HIS KNOWLEDGE.
    A milk can belonging to plaintiff was found in a spring on land belonging to defendant, but it appeared that he had leased said land under an arrangement that the lessee should milk defendant’s cows thereon, cool the milk and deliver it at the road platform, defendant furnishing the cans; that this can was not furnished by defendant, and he did not know it was there. Held, that he was not liable for the penalty under chapter 401, Laws 1887, as amended by chapter 25, Laws 1890.
    Appeal from judgment in favor of defendant, entered upon verdict of a jury.
    Action to recover a penalty of fifty dollars, alleged to have been incurred by defendant for having in his possession, without the consent of the plaintiff, a milk can, the property of ulaintiff, stamped with plaintiff’s initials and name.

      F. V. Sanford, for app’lt; C. Hull, for resp’t.
   Barnard, P. J.

action was brought under chap. 401, Laws of 1887, as amended by chap. 25, Laws of 1890. The plaintiff was the owner of a milk can. It was found in a milk spring belonging to defendant, in August, 1891. The owner had given no consent that the defendant should have on his premises the can in question. The question litigated on the trial was one of fact. The defendant testified that although he owned the farm on which the can was found, that he had leased the premises, previous to the finding of the can, to a Mrs. Huysen. The agreement was this: The cows on the farm belonged to defendant and a Mrs. Longyear. Mrs. Huysen rented the spring lot and agreed to milk the cows, cool the milk and deliver the same at the platform by the road. Defendant was to furnish the cans. Defendant did furnish the cans, but this one was not among those furnished by him, and he never knew it was used on the farm. The cans were kept on defendant’s other premises. Assuming these facts to be true, the defendant is not liable for the penalty for using the same. He had no knowledge that the plaintiff’s can was in use in the business. He had leased the property on which the can was found. Mrs. Huysen could use the spring for cans of milk other than defendant The presumption is, under the finding of the jury, that the can was in Mrs. Huysen’s possession and was not used in the business of the defendant. There is no proof that the can ever was used for the defendant’s milk.

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

Dykman and Pratt, JJ., concur.


text:
    The People ex rel. William P. Douglas, App’lt, v. David L. Van Nostrand, Supervisor, et al., Assessors, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Taxes—Assessment—Inequality.
    Relator’s assessment was increased from $42,750 to $60,000 in 1891. In a proceeding to reduce on the ground of inequality his evidence tended to show that the premises were worth from $80,000 to $105,000, while the opposing testimony showed its value to be from $175,000 to $200,000, and it was shown to have increased fifty per cent in value between the two assessments. The parcels of land selected as basis of comparison were shown to be assessed higher in proportion to values than relator’s. Held, that no reason for a reduction was shown.
    Appeal from order dismissing writ of certiorari to review an assessment of relator’s property.

      Howard A. Sperry, for app’lt; B. W. Downing, for resp’ts.
   Barnard, P. J.

The relator for some six years has been assessed for his lands in the town of Flushing, lying on Little Neck Bay, and consisting of about 175 acres of land, at the sum of $42,750. In 1891 the assessors raised the value as a basis of assessment to $60,000. This writ is brought to reduce the assessment on the ground that the assessment is unequal and proportionately higher than that on other real estate in the town. The relator’s witnesses testify that the value of the property is from $80,000 to $105,000. The defendants produce evidence that the value is $175,000, possibly $200,000. The proof shows that the property has risen in value fifty per cent between the assessment of 1890 and the one complained of in 1891. The relator selected certain parcels of land on the assessors’ books as a basis for the allegation of irregularity. The proof shows that these pieces are assessed higher in proportion to the values than the property of relator is. The proof entirely fails to show any reason for the reduction of the assessment. The order dismissing the writ should, therefore, be affirmed, with ten dollars costs, besides disbursements.

Dykman and Pratt, JJ., concur.