author: Davis, P. J.:

text:
    MARY E. NOYES and JAMES LOVERIDGE, Executors of the last Will and Testament of ELIZA HEARSEY, Deceased, Appellants, v. THE CHILDREN’S AID SOCIETY OF THE CITY OF NEW YORK and others, Respondents.

      Swirogate of New Yorlc — power of, to allow costs amd allowances ■ — 2 B. 8., 228, § 10— §9 of chap. 359o/1870.
    Under the provisions of 2 Bevised Statutes, 223, section 10, providing that “the surrogate may award costs to the party in his judgment entitled thereto, to be paid either by the other party personally or out of'the estate,” the surrogate is authorized to award costs to the successful party only, and he has no power to award costs to the defeated contestants.
    Section 9 of chapter 359 of 1870, providing that “the surrogate of said county (New York) may grant allowances in lieu of costs to counsel in any proceedings before him, in the same manner as are now prescribed by the' Code of Procedure,” restricts his power to make allowances, to those cases in which he is authorized to award costs under the provisions of the Bevised Statutes, and he has, therefore, no power under the said act to make allowances to the unsuccessful parties in cases contested before him.
    Appeal from an order of tbe surrogate of tbe county of New York, granting allowances to the counsel for respondents.
    Tbe appellants petitioned for tbe probate of tbe last will of Eliza Hearsey, dated July 11, 1874. Tbe respondents, legatees under a former will, filed objections thereto.
    Tbe trial was commenced on March 5, 1875, and a large amount of testimony was taken.
    . Tbe surrogate entered bis decree, admitting tbe said will of 1874 to probate on December 30, 1875. Counsel for tbe respondents, against whom the decision bad been rendered, applied for allowances on December 30,1875, tbe same day on which tbe decree was entered.' On tbe following day an order was made granting to O. Minor and D. R. Jaques, proctors for tbe respondent tbe Children’s Aid Society, an allowance of $2,500 and $764.65 disbursements, and to S. P. Nash, Esq., counsel for St. Luke’s Home, $750. From tbe above-mentioned parts of this order Mary E. Noyes, tbe principal legatee in tbe will admitted to probate, and James Loveridge, executor thereof, appealed.

      P. W. DeForest, for the appellants.
    The order in question is appealable. (R. S., part 3, chap. 9, title 3, § 104.) Such an order, though discretionary, affects a substantial right, and is appealable. {The People v. FF. Y. C. P. P. Co., 29 N. Y., 418.) Previous to the Revised Statutes surrogates had no authority to award costs in any case. {Devvn v. Patehin, 26 N. Y., 441 [1863]); Lee v. Lee, 16 Abb. Pr., 129; Shultz v. Púber, 3 Paige, 182; Reid v. Ycvnderheyden, 5 Cow., 719.) Ey the provisions of the Revised Statutes (2 R. S., 223, § 10, 3d ed.; 5th ed., vol. 3, 367, § 25) the costs were fixed at the same rates allowed for similar services in the Court of Common Pleas, in the year 1837. (3 R. S. [5th ed.], 367, § 23; Laws of 1837, chap. 490, § 70; Devvn v. Patchin, 26 N. Y., 441; Wilcox v. Smith, 26 Barb., 316; Western v. Romahne, 1 Brad., 37; Ln re Christy’s Will, 1 Tucker, 22 [1865]; Shermcm v. Youmg, 6 How. Pr., 318; Bwrtis v. Dodge, 1 Barb. Ch., 77; Halsey v. Yam, Ameri/nge, 6 Paige, 12.) The surrogate has no authority to make an arbitrary allowance to counsel in lieu of such costs. {Devvn v. Patclvm, 26 N. Y., 441; Peed v. Peed, 52 id., 651; Bwrtis v. Dodge, 1 Barb. Ch., 91; Wilcox v. Smith, 26 id., 316; 1 Brad., 37; 6 Paige, 12.) The authority to award costs given to the surrogate by the Revised Statutes only permits him to award costs to the successful party. He has no authority to award costs out of the estate to both of the contesting parties. (3 R. S. [5th ed.], 367, § 25, supra ¡ Lee v. Lee, 16 Abb. Pr., 129, Gen. Term, 1st dist., 1863.) The Code confers no authority to award costs or allowances on surrogates or surrogates’ courts. {Devin v. Patclvm, 26 N. Y., 441.) The law of 1870 limits the authority of the surrogate to “ grant allowances to counsel ” to the same manner as prescribed by the Code. It does not authorize any allowance to counsel of the unsuccessful litigant.

      D. P. Jaques and H. L. Clvhton, for the respondents.
   Davis, P. J.:

The respondents were unsuccessful contestants of the will of Eliza Hearsey, of which the appellants were proponents. They claimed under a prior will of the testatrix, in which they were made the residuary legatees. After making a decree admitting to probate the will propounded by the appellants, which revoked the former 'will, the surrogate made an order under section 9 of chapter 359 of the Laws of 1870, granting an allowance ■ and disbursements to the counsel of the prevailing party, and granting an allowance and disbursements to the counsel of the Children’s Aid Society, and an allowance to the counsel of St. Luke’s Home, which corporations were the defeated contestants. The principal question upon the appeal is, whether the surrogate had power to grant allowances in this case to the counsel of the contestants. Previous to the Revised Statutes surrogates had no power to award costs in any case. (Shultz v. Pulver, 3 Paige, 182; S. C., 11 Wend., 363; Reid v. Vanderheyden, 5 Cow., 719; Devin, v. Patchin, 26 N. Y., 441, 449.)

The Revised Statutes provided as follows: The surrogate may award costs to the party in his- judgment entitled thereto, to be paid either by the other party personally, or out of the estate which shall be the subject of the controversy. (2 R. S., 223, § 10; 3 R. S. [5th ed.], 367, §25.)

This provision was not affected by the Code. (Devin v. Patchin, 26 N. Y., 441.) So that prior to the act of 1870, only taxable costs could be awarded. And the surrogate had no power to make any allowances, either to a party as additional costs or the counsel as counsel fees. (Reed v. Reed, 52 N. Y., 651; Burtis v. Dodge, 1 Barb. Ch., 91; Devin v. Patchin, ubi sup.; Lee v. Lee, 39 Barb., 172; Western v. Romaine, 1 Brad., 37; Wilcox v. Smith, 26 Barb., 316.)

In Lee v. Lee (39 Barb., 172 ; S. C., 16 Abb. Pr., 129) it was held .by the General Term of the first district that the Revised Statutes only permitted the surrogate to award costs to the successful party or parties, and that he could not give costs out of the estate to defeated contestants. And this construction accords with the language of the statute which empowers him “to award costs to theparnty in his judgment entitled thereto” — not to both or all parties — “to be paid by the other fcvrty personally, or out of the estate which sba.11 be the subject of the. controversy.”

This statute conferred power to adjudge of three things : first, whether costs should be awarded; second, the party entitled thereto by reason of success in the controversy; and third, whether they should be charged personally on the other party, or be paid out of the subject in controversy. This was the condition of the law when the enactment of 1870 was made. That act declared that “the surrogate of said county” (New York) “may grant allowances, i/n lieu of costs, to counsel in any proceeding before him, in the same manner as are now prescribed by the Code of Procedure.” (§ 9, chap. 359, Laws of 1870, p. 828.) This section has in practice been construed in the broadest and most sweeping sense, and such construction has literally reversed what was said in one of the opinions of the Court of Appeals (Devin v. Patchin, 26 N. Y., 449), to wit: that “ swrogates ca/rmot la/wfull/y act as almoners of the estates of deceased persons? The construction of this section seems never to have been presented to an appellate tribunal, but the reason of this fact (if it be one) may perhaps be found in another portion of the opinion just quoted from.

We think a key to the true construction may be found in the plain letter of the act. The power given to the surrogate is to “ grant allowances i/n lieu of costs? He may still award costs, if he decide to do so, or in Heu of them he may grant allowances. This language very clearly -restricts the allowances he may make to the cases in which he may award costs, because he is only empowered to put the allowance in the place of costs.

Hence, in cases where he cannot, in his discretion, give costs, he cannot, in his discretion, grant an allowance. We have already seen that he can only award costs to a successful party, and that his discretion beyond that lies in determining whether he will charge the other party personally with the costs, or direct their payment out of the fund. The power conferred by the section is, therefore, no broader in its operation than That given by the Revised Statutes in respect of costs, and is simply an authority to substitute allowances, m lieu of costs, in cases where the surrogate can lawfully' award costs.

Nor do we think the force of this construction is at all diminished by the fact that the word “allowances,” is in the plural. It is obvious that there may be in such litigations several successful persons to whom costs may be awarded, and the form of expression more properly refers to those cases, than to everybody who may happen to be on either side in such a controversy, whether losing or winning. Nor does the reference to the Code seem to us to enlarge the power of the surrogate. He “ may grant allowances in lieu of costs to counsel m the same mamner as are now prescribed by the Code of Procedure in civil actions.”

This is merely saying that his mode of proceeding in granting the allowance shall be restricted by the provisions of the Code in respect to the character of the case, as to its being difficult and extraordinary, or one in which a trial has been had, and in respect to “the subject-matter involved” or “the amount of the recovery or claim,” and .the limitation imposed thereby upon the extent of the allowance. These things are regulated by section 309 of the Code. That section provides for allowances in addition to costs. The section relating to Surrogates’ Courts provides only for allowances in TÁeu of costs ; but it is apparent that under either of them no allowance is to be given, unless the case and the party be one to whom costs are, or may be awarded. That part of section 309 which provides for actions or proceedings for the partition of real estate, may be eliminated in considering this question. The residue of the section will then read thus: “ In difficult and extraordinary cases, where a defense has been interposed, or in such cases where a trial has been had * * The court may also, in its discretion, make a further allowance to any party, not exceeding five per cent upon the amount of the recovery or claim, or subject-matter involved.” The party to whom this further allowance may be made must be a successful one, at least in respect of costs, or the allowance will not be further. To ascertain the significancy of the word “further ” we must look at the several preceding sections of the Code, from which we find that costs are allowed only to “ the prevailing party,” who is to be ascertained as prescribed by such sections, and it is to him, when so ascertained, that the further allowance can be made. And so, if we import the words “ to any party ” into the surrogate’s section in place of the words “ to counsel,” we gain nothing, because in either case the allowance must be either a “further ” one, which is in addition to costs given, or one “ in lieu of costs,” which implies that costs can be, or may have been given.. We think, therefore, that the surrogate has no power under the act of 1870, to make allowances to parties who do not “prevail” in cases contested before him.

He may excuse such parties, if the case be in his judgment a proper one, from the payment of costs personally, but he cannot take the subject-matter of the contest which he adjudges to belong to the successful party, and distribute it, or any part of it, among his defeated antagonists. A construction which permits that to be done is hostile to the spirit of our laws, which, in cases of established testacy, requires estates to be divided according to the will of the testator, and in cases of intestacy, according to the statute of distributions.

It is also against public policy, for it virtually offers a. premium to reckless contestants and their counsel, to prevent the settlement of estates', by promoting litigation and engendering strife, when every interest of the.public calls for their speedy adjustment. The intention of the statute was to enable the surrogate, by making reasonable allowances, to compensate executors and administrators, or other prevailing parties, for expenses which might exceed. the items and taxable costs; and not to allow him, ad lAbitwm,, to reward the unsuccessful clamor of defeated litigants. The other construction might lead to great abuses, to the injury of the widows and orphans, and the creditors of deceased persons, whom all courts should be sedulous to protect. It would be a hazardous experiment for a wealthy man to attempt to dispose of his estate by his -own will, if it could be distributed at the mere will of the surrogate, amongst the counsel of all who choose to set up whatever pretexts of contests the ingenuity of avarice can devise. .We do not mean by these suggestions to indicate that the will in this case was improperly contested; but on the contrary, we think the contestants had probable cause to resist the probate of the will propounded, and that their contest was in all respects fairly conducted, and for that reason we have excused them from costs on these appeals. But we fail to see any reason in law or justice for awarding them out of the estate several thousand dollars, pro falso demore.

Without considering the several other questions presented by the appeal, some of which are fatal to a large portion of the allowance, we think it our duty to reverse the parts of the order appealed from, but without costs.

Brady and Daniels, J. J., concurred.

Order reversed, without costs.


source: Caselaw Access Project

author: Brady, J.:

license: Public Domain

text:
    EDWARD CAYLUS and JOHN De RUYTER, Survivors, etc., Appellants, v. THE NEW YORK, KINGSTON AND SYRACUSE RAILROAD COMPANY, Impleaded with GEORGE H. SHARPE and others, Respondents.
    Issue of bonds by railroad compa/rvy— statements in — Bona fide pu/rchaserr — what fads sufficient to put upon inquiry.

    A railroad company issued certain bonds designated asconsolidated first mortgage gold bonds,” the bonds referring to a -mortgage from which it appeared that it was intended to substitute a portion of the bonds for first mortgage bonds already issued upon the road, and to devote the remainder thereof to the extension and completion thereof. Held,

    (1) That the use of the word “consolidated” was sufficient to put a purchaser upon his inquiry.
    (2) That as the bonds referred to the mortgage, a purchaser was bound by the statement contained in the mortgage, and that it was his duty to ascertain whether or not the holders of the old bonds were willing to make the exchange.
    Appeal from a judgment entered upon a demurrer, in favor of tbe defendants.
    This action was brought by certain bondholders of the New York, Kingston and Syracuse Railroad Company against that corporation, its president and directors, and the Farmers’ Loan and Trust Company.
    The complaint alleged, among other things, that the corporation defendant, having a mortgage for $2,000,000 on its road and the bonds to which it was collateral issued to various parties, obtained leave from the legislature to extend its road, and entered into a contract for the performance of that work; that plaintiffs furnished certain materials to the contractor for use in such work; that in payment they agreed to receive certain notes, and, as collateral security for their payment, first mortgage bonds of the corporation defendant; that said corporation executed a mortgage on the same property covered by the first-mentioned mortgage and some other property of little value, for $4,000,000, collateral to bonds described on their face as first mortgage consolidated bonds of the New York, Kingston and Syracuse Railroad Company, and indorsed:- “New York, Kingston and Syracuse Railroad Company; $1,000; No. — ; Consolidated First Mortgage Bonds; ” that plaintiffs relied upon the statement that they were, in fact, first mortgage bonds, and a first lien on the property covered by the mortgage, and received the bonds as collateral to the notes; that the bonds of the mortgage firstly above mentioned were still outstanding and unpaid; that the defendants have received the benefit of plaintiffs’ materials; that the notes to which the bonds given to plaintiffs were collateral were only two of them paid; that plaintiffs have recovered judgment on the others, and execution thereon has been returned unsatisfied.

      E. Ellery Anderson, for the appellant.

      Stephen W. Fullerton, for the respondent.
   Brady, J.:

The bonds which were delivered to the plaintiffs by the contractors, the Litchfields, were designated “consolidated first mortgage gold bonds,” and the mortgage referred to necessarily became a part of them in determining exactly what they were represented to be. The mortgage, on inspection, would have disclosed the fact that the design was to substitute them for bonds previously issued and secured by mortgage, and would have dictated the propriety, as a matter of security, of ascertaining whether the holders of the old bonds were willing to make the exchange or accept the substitute. The bonds would not all become first mortgage bonds without that change, but there is no allegation thereto, and no fact to warrant the conclusion that the defendants, the directors, knew that the substitution would not be accomplished or that they increased the issue of bonds unlawfully, or for a fraudulent purpose or object.

It was intended, on the contrary, out of the proceeds to extend the route and thus increase its value. The Litchfields, who, it must be assumed, knew the precise character of the bonds, believed, it may be inferred, in their ultimate value to be established by the extra roadway, which they undertook to build, and the consequent advantages to the company and to the bondholders.

It may be inferred, also, that the directors not only believed in the success of the scheme which necessarily included the substitution of the last for the first bonds, but in their value arising from the additional advantages to be created by the additional roadway; and these are the fair and legitimate inferences from the facts stated.

The element of fraud does not, therefore, spring out of the plaintiff’s case, excepting, perhaps, what might be evolved from the statement that the bonds were first mortgage bonds; but this representation was coupled with, and controlled by, the word “ consolidated,” and was sufficient to put the purchaser upon his guard or inquiry.

The transactions in this class of securities are generally hurried and rarely conducted with proper precautions. It is questionable whether, as a rule, the investors who seek bonds subject them to the scrutiny which careful persons apply to the ordinary enterprises of life, and they doubtless suffer even when they occupy the position of bona-fide purchasers for value. The plaintiffs do not, however, occupy this relation to the defendants, the directors, because the bonds were accepted as security for, and not in payment of, the bill of merchandise for which the Litchfields contracted. The case presented seems, therefore, to be bald in several respects, namely: the absence of fraudulent design or purpose in issuing the bonds; the absence of any charge connecting the defendants, the directors, with the delivery of them to the plaintiffs; the absence of allegation or charge showing the plaintiffs to be bona fide holders for value, and the absence of any representation by the defendants, the directors, aside from the bonds themselves, and which explained their design and purpose sufficiently to notify the purchaser or person taking them of their character, or that he should examine.

The whole case seems to be more consistent with innocence than with fraud, within the rule laid down by the cases relating to the subject, and it is therefore incomplete. (Marsh v. Falker, 40 N. Y., 562; Wakeman v. Dalley, 44 Barb., 498; Meyer v. Amidon, 45 id., 169, 171; Oberlander v. Spiess, 45 id., 175.) The case of Wakeman v. Dalley is particularly illustrative in this action.

It is not intended by the result of this review to justify the proceeding complained of. If the officials of a corporation were held to a strict accountability; if, in other words, the securities emanating from them were held to import verity, and they to responsibility, if it were otherwise in fact: then first mortgage bonds would mean first mortgage bonds, and would not be issued until all tbe preliminaries to make them such had been observed and performed. These views, in addition to those expressed at Special Term, render it necessary to affirm the judgment, with costs.

Davis P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


author: Daniels, J.;

text:
    GEORGE BUESS, Respondent, v. GEORGE KOCH, Appellant.

      Demurrer — Contract of sale — specific performance — when ordered, notwithstanding fa/iture of plaintiff to tender deed — Proper for judgment — sufficient, when approprriate to, though not covering all required in a pn'oper judgment.

    Appeal from an order overruling a demurrer to the complaint of the plaintiff.
    The complaint set out an agreement made by the parties on the 1st day of March, 1870. It contained a recital that the defendant had entered into an agreement with George Prager, by which he had become bound to purchase certain premises on Rivington street, in the city of New York, for the sum of $15,000, and at his request, the plaintiff had consented to take his place and perform his covenants with Prager; and had further agreed to alter the building upon, the land into a shop suitable for carrying on the cabinet making business, and lease tbe premises to tbe defendant for 'five years from tbe first day of tbe following month of May, and then to convey them to him. Tbe premises were then, by tbe terms of tbe agreement, leased and demised to tbe defendant for such term of five years, at tbe yearly rent, payable quarterly, of ten per cent on them cost, and tbe expenses of their alteration.
    It was then covenanted that, on or before tbe expiration of tbe term of five years, tbe defendant would well and truly pay to tbe plaintiff “tbe said consideration of $15,000, and also tbe cost and expense of altering tbe building as aforesaid, upon tbe said Buess executing to him a good and sufficient deed of tbe said premises, free from ah incumbrances, which deed shall contain a general warranty and tbe usual full covenants.” Tbe plaintiff averred that be altered tbe building and rendered it suitable for tbe business to which it was to be adapted; that tbe defendant occupied it and paid tbe rent up to tbe 1st of May, 1875. It was also averred that before that day be gave tbe defendant a notice, in writing, requesting information from bim as to tbe time when be would be ready to complete tbe agreement. To that no reply was made. Tbe plaintiff, after tbe 1st of May, 1875, executed a deed of tbe premises to tbe defendant, and went to bis residence to deliver it, and receive tbe payment agreed to be made, but be failed to find tbe defendant. Efforts were afterwards made by bis attorneys to find tbe defendant for the same purpose, but they proved to be ineffectual. Tbe plaintiff also averred that, on tbe 1st of May, 1875, and even since then, be bad been ready and willing to execute and deliver tbe deed, in conformity to tbe terms of tbe agreement; that tbe alteration of tbe building rendered it unfit for other uses than that of a store, without further changes requiring great expense. Tbe expenses of tbe alterations made amounted to tbe sum of $11,666.04; and for that, with tbe purchase-price to be paid for tbe property, according to tbe terms of tbe agreement, tbe plaintiff demanded judgment.
    Tbe defendant demurred to tbe complaint, because it did not contain facts sufficient to constitute a cause of action.
    Tbe court at General Term said: “ Tbe complaint failed to show a strict performance of tbe agreement by tbe plaintiff. But it alleged such a state of facts as directly tended to excuse it, and which entitled bim to have tbe agreement specifically performed. He bad so far performed himself as to make tbe alterations in tbe' building and give tbe defendant possession. And be endeavored to fulfill tbe residue of tbe covenants to be performed by bim, by securing an understanding which should designate tbe time when ■that might be done. That proved ineffectual by tbe defendant’s failure to respond. And then tbe deed was executed, and tbe defendant sought for in order to complete tbe agreements ; but all reasonable efforts to find bim proved to be fruitless, and then this action was commenced. If tbe plaintiff was in default as, strictly, be probably was, at law, because he omitted to have tbe deed executed on or before tbe first of May, and tendered on that day at tbe defendant’s residence, it was equitably excused by tbe other acts performed by bim. For that reason a court of equity would not defeat Ins claim to relief, because be too confidingly rebed upon tbe expectation that the defendant would meet him, and in good faith co-operate with him in performing the covenants which were to be mutually observed, according to the terms of their agreement. His conduct in failing to do so was inequitable, and he ought not to be allowed to shield himself, by means of it, against the just demand made by the plaintiff, that he should take the property on the terms he had stipulated to perform for it. (1 Story’s Eq. Jur. [9th ed.], §§ 775, 776; Stevenson v. Maxwell, 2 Comst., 409; More v. Smedhv/rgh, 8 Paige, 601; Leai/rd v. Smith, 44 N. Y., 619 ; Freeson v. Bissell, 63 id., 168.) It also appeared that the defendant had had the use and occupancy of the property. And as it has not been alleged that he surrendered its possession when his term expired as a tenant, it may be presumed, as he was to have the property after-wards as its owner, that he still continues to hold it; and for that reason, also, he cannot properly complain of the omission to execute and deliver the deed on or before the first day of May. (Viele v. Troy amd Boston B. B. Oo., 20 N. Y., 184.)
    The prayer for judgment is entirely consistent with the character already attributed to the action. It demands the recovery of the purchase-price of the property and the amount of the expenses incurred in altering the building ; and that, the facts alleged show the plaintiff equitably entitled to recover. If a specific performance shall be decreed, the plaintiff will be entitled to a judgment for the payment of the money the defendant covenanted he should receive, and nothing more nor less than that has been demanded. The fact that all the relief which may be essential to such an action has not been claimed, does not render the complaint so defective as to make it the subject of a demurrer. To avoid that consequence, it is sufficient that the facts constituting an equitable cause of action have been alleged, and that the relief insisted upon is appropriate to, while it may not be all that will be required for a complete or perfect judgment. {líale v. Omaha Nat. Blc., 49 N. Y., 626, 631, 632.)”

      M. L. Townsend, for the appellant. Fcrnfma/n, TrustaTl & Wagner, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

Order affirmed with costs, and with liberty to defendant to answer within the usual time, and upon payment of costs, to be adjusted.


author: Davis, P. J.;

text:
    NATHANIEL W. HOOKER, Respondent, v. WILLIAM R. MARTIN and others, Appellants.

      Forecbswe —judgment in action for — talcing of portion of mortgaged property by city for public me— effect of — right of plaintiff (mortgagee) b the award.

    Appeal from a judgment in favor of the plaintiff, entered upon tbe trial of this action by tbe court without a jury. These actions were brought in the usual form for foreclosure of two purchase-money mortgages, made by the defendant William R. Martin to the plaintiff, upon land in the city of New York. The appellants (Martin, mortgagor, and Arbona, his grantee) answer, setting up the taking of a part of the property described in the mortgage and in the complaint for public use, by which such portion became vested in the mayor, aldermen and commonalty of the city of New York, and aver that the plaintiff, by reason thereof, cannot maintain his action, and that in any event the city should be made a party to the action. An award was made in plaintiff’s name for the land taken, and an assessment laid upon the residue of the land for benefit, in excess of the award. The judgment-establishes that plaintiff is entitled to collect the award for the portion of the mortgaged property taken for public use, and orders sale of the remainder for the payment of the' amount due plaintiff, after crediting defendants with the amount of the award.
    The court at General Term said: “ The proceedings of the city in taking a portion of the mortgaged lands for public use did not displace or otherwise affect the lien upon the residue of the mortgaged pTP.miKP.s- So much of the land as was taken by the city was discharged of the lien of the mortgage, and it was not necessary to make the city a party because of its subsequently acquired title thereto, for the reason that the city could not be barred or affected by the foreclosure. The court below awarded judgment in favor of plaintiffs in respect to the moneys awarded for damages in taking the lands by the city, and directed foreclosure and sale for the balance only. This was an equitable disposition of the rights of the parties to the action, and it was not necessary to bring in the city as a party for the purpose of making that disposition. The Code only requires other parties to be brought in, in cases where the rights of the parties already before the court cannot be disposed of without the presence of such absent person or parties. That is not the present case.”

      Jas. B. Kissioli, for the appellants. Townsend Waddell, for the respondent.
   Opinion by

Davis, P. J.;

Brady and Daniels, JJ., concurred.

Judgment affirmed.


text:
    MARTHA RUCK, Respondent, v. GUSTAV LANGE, Appellant.

      IAs pendens — may be filed in action affecting leasehold, interest in lands

    Appeal from an order denying a motion to set aside a'notice of the pendency of this action.
    The court at General Term said: “ This action has been commenced to secure the specific performance of a contract for the sale of a leasehold interest in land having about twenty years to run. To that extent it affected the title of the premises in which the term had been created. The Code has not prescribed the extent to which the title to real estate must be affected to justify the filing of notice of the pendency of the action; but it has provided, in general terms, that the notice may be filed in any action affecting the title to real property. (Code, § 132.) This was such an action, and the motion made to set aside the notice was properly denied.

      Lea/ry dk Bischoff, for the appellant. J. dk B. Davidson,, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    WILLIAM R. MARTIN, Respondent, v. THE WINDSOR HOTEL COMPANY, Appellant.

      Action by cm attorney for services — defense that charges are exorbitant a/nd oppressive— reference not usually ordered in such cases.

    Appeal from an order made at the Special Term, directing a referee to hear, try and determine the issues in the action.
    This action is brought to recover for services of the plaintiff, as an attorney and counselor, for a period running from September, 1873, to the close of the year 1874.
    The court at General Term said: “We think there is no doubt that the court below had 'power to order the reference, in its discretion. This court is, however, at liberty to review the order, notwithstanding it was discretionary. It is apparent from the affidavits and pleadings that the principal questions on the trial will be, whether' the plaintiff performed the services on the retainer of the ,defendants or of John T. Daly, and the fair value of such services. The issues ought not to be long in the trial, and the account is not complicated nor embarrassing. An expert is not necessary, except upon the question of values, and as to that, the experts are more properly to be the witnesses. There is no fixed rule which prevents the reference of an attorney’s account for services to another attorney, and yet courts should be careful to avoid referring such cases to members of the same profession, where there appears upon the face of the claim good reason to suppose that the client’s resistance, on the ground of exorbitance and oppression, may prove to be well founded. It is not because such referees will not do equal and full justice to the parties, but because of a general impression that, on questions of compensation for legal services, lawyers may not be, and sometimes are not, unprejudiced in determining values. A physician is not chosen as a referee on physician’s accounts, nor are clergymen when a pastor sues for the value of his services, and so, also, as to all other trades and professions; and in the popular mind it is, not without some show of reason, thought invidious that lawyers only should be selected to determine the claims of lawyers. It is better for the profession and for the courts that this should not be so; and tbe honor and well-being of the profession requires that lawyers should not be thought to shrink from an examination of their charges by a jury, enlightened by the opinions of other lawyers as witnesses, and by the instructions of the courts.”

      ImIw A. loehmood, for the appellant. Jamies Emott, for the respondent.
   Opinion by

Davis, P. J.;

Daniels, J., concurred.

Present — -Davis, P. J., Daniels andBbady, JJ.

Order reversed and motion denied, without costs.


text:
    GABRIEL H. BARBEY and another, Plaintiffs, v. BENJAMIN L. LUDINGTON, Defendant.

      Agreement to share money overpaid to United States, if recovered — interest thereon follows principal.

    Motion on behalf of the plaintiff for a new trial, on exceptions ordered to be first heard at General Term.
    The defendant was employed to recover back duties which had been paid by the plaintiffs on the importation of bronze powder and Dutch metal, in excess of what it was claimed could be legally imposed by the United States authorities. The excess was afterward recovered, with interest, and one-half the amount was paid over to the plaintiffs. They claimed, however, the interest upon the half retained by the defendant under the agreement entered into when they employed him. Their claim was rejected and the complaint dismissed at the trial. By the terms of the agreement the plaintiff agreed to allow the defendant “ one-half or fifty per cent of all he may recover back or obtain from the government or its officers, of the forty-five per cent duty heretofore exacted or hereafter exacted,” etc.
    The court at General Term said : “ No stipulation in any form was made on the subject of interest, and its recovery was not probably contemplated then by either of the parties. When the interest was recovered it must have been as an incident to the principle, which in legal contemplation it certainly was. {Siemens Y. Bwringer, 13 "Wend., 639.) And as the agreement made in effect gave the defendant one-half the forty-five per cent that should be recovered, by way of principal, his right to an equal portion of the interest would seem to follow logically, from that circumstance. In this respect the agreement was expressed in plain terms, that the defendant should have one-half of what might be recovered of the excessive-forty-five percent. That was substantially transferred to him and it became the source of the interest retained by him and now claimed by the plaintiffs. This interest accrued upon that half, and plainly seems to be as much his property, as the agreement had made one-half of the principal. It originated in and accrued upon his half of the amount recovered. It was an incident of it, and attached itself to that half {Mwisell v. Lewis, 2 Den., 221), and to that half the plaintiffs parted with their title in favor of the defendant. By means of the rights so acquired, the accretions or fruits of the property or share assigned became a portion of it, and consequently belonged to him. The reasonable construction of the terms of the agreement itself leads to the same conclusion. By that he was to have one-half of all he might recover or obtain of the forty-five per cent. This should not be restricted, as the plaintiffs have insisted, to the forty-five per cent as the extent of the subject-matter of the contract. But it should extend to whatever might be recovered on the basis that thé forty-five per cent had been illegally exacted. He was to have half of what might be recovered or obtained of the forty-five per cent. That is one-half of what should be recovered for or on account of this unlawful excess paid by the plaintiffs.”

      James OZwh, for the plaintiffs. George W. Lord, for the defendant.
   Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

Motion denied with costs, and iudgment ordered for defendant.


text:
    In the Matter of the Petition of JOHN FOSTER to Vacate an Assessment, etc.

      Qha/rter of New Ym'k — chap. 574 of 1871 — designation of official papw' under — when
    Appeal from an order vacating an assessment for paving Twentieth. street, between Third avenue and the East river.
    The court at General Term said: “ The assessment was made for the expenses of paving Twentieth street, between Third avenue and the East river. The ordinance directing the improvement was adopted by the board of aldermen on the 3d of June, 1872, and it was approved by the mayor the next day. The evidence showed that the mayor and comptroller, on the 3d day of June, 1872, designated the Daily Register as the daily paper in which should be published every notice or advertisement, required by law or ordinance to be published in one or more papers in the city and county of New York. This designation was made under the authority of .section 1 of chapter 574 of the Laws of 1871. And by the terms of the act it could only become complete when the certificate making it was filed in the office of the comptroller. The certificate was dated on the 3d day of June, 1872, but there was no evidence given showing it to have been at any time filed in the comptroller’s office. That was necessary under the. teims of this act for the purpose of making the designation and creating the duty to publish the resolution or ordinance, with the yeas and nays, and the names of the persons voting for and against it, before it was sent to the mayor for his approval. (Vol. 1, Laws of 1870, p. 369, chap. 137, § 20.) There was no proof of failure to publish, beyond the evidence that the requisite publication had not been made in the Daily Register, and that was insufficient, because a completed designation of that paper was not shown before the time when the resolution or ordinance was approved by the mayor. And in that case it might very well have been otherwise legally published. (PmgneSs Oase, 5 Hun, 434.) He should have shown the filing of the certificate in the comptroller’s office to render the designation of the Daily Register complete.”

      J. A. Beall, for the appellant (the city). Allison c& Shaw, for the petitioner, respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Pbadv, J., concurred.

Order reversed, rehearing ordered, with costs to appellant to abide event.


author: Brady, J.;

text:
      In the Matter of JAMES ALEXANDER STRIKER’S Petition to have Stale Assessments Vacated.

      Assessments —pn'eswnption cf payment — cancellation of — power of court over — par-lies to application for.

    Ajppeal from an order at Special Term canceling assessments.
    The petitioner applied to have certain assessments vacated, canceled and declared null and void. They were confirmed in the years 1836, 1838, 1839 and 1810.
    In 1856 his father, who was then the owner of the property upon which they were imposed, obtained an injunction which restrained the city authorities from selling the land to satisfy the assessments, and that injunction still continues. The assessments are, nevertheless, a cloud upon the title, and the petitioner for that reason desires to have them vacated.
    It appeared from testimony given before the referee, that they were once marked paid, and that the petitioner’s father, who owned the property affected, was careful in the payment of all assessments. It also appeared that the records in regard to such matters in former days were very inaccurate, and that in many instances assessments which had been paid were not so marked ; that the clerks, then in charge of the records, had died, and that in consequence of the frequent removals of the records and changes in the departments and bureau, the original records had disappeared, and that the papers relating to the estate affected, including papers of the petitioner’s father, had been lost by changes in the offices of the brother of the petitioner, in whose charge they were. The only answer made to these facts and circumstances was, that by some of the records the assessments were not marked paid, and therefore continued to be liens on the land to which they related, and the question presented by them is, whether they afford a reasonable presumption that the assessments have lost vitality and should not be enforced.

      The 001011 at General Terra said : “ They would seem to be sufficient for that purpose. It does not appear why the assessments should be continued, after they were marked paid, although it may be accounted for by the inaccuracy which at one time prevailed in the department having charge of such matters. It does not appear, either, why the injunction has been allowed to continue for a period of more than twenty years after it was granted, and the omission to explain this by the authorities must be to their prejudice, because the presumption is, that the restraint was based upon facts and circumstances which warranted it, and which have not been overcome or at all affected by any act on their part or behalf.
    Indeed it may be presumed that it was granted, because the assessments were shown to have been paid, a fact of which there is some evidence arising from the entry of payment already mentioned.
    These facts and circumstances, taken in connection with the long delay which has occurred, justify the conclusion that the assessments should not be allowed to continue as a cloud upon the petitioner’s title and should be canceled.
    It is objected that this remedy cannot be granted on petition, but the appellant did not object to the investigation made on that ground, and the facts and all the parties are before us.
    The assessments are in the nature of judgments. (Mayor v. Colgate, 12 N. Y., 140.) They are confr&ned by the order of this court, and are subject to its power and authority on a question like that presented for consideration.
    The power of this court on motion or petition to order a judgment canceled cannot be questioned, and need not be discussed. The parties to these judgments are the owners of the property, and the city. .They are before us and have presented their proofs.
    The order made at Special Term was, for these reasons, properly directed and should not be disturbed. It is therefore affirmed, but we think no costs should be allowed.”

      Eiugh L. Cole, for the city, appellant. Elliot F. Shepard, for the petitioner, respondent.
   Opinion by

Brady, J.;

Davis, P. J., and Daniels, J., concurred.

Order affirmed, without costs.


text:
    In the Matter of the Habeas Corpus of WALTER JENNINGS.

      Oou/i't of Qemral Sessions, of New Toi’Tc city — jurisdiction of — presumptions.
    Certiorari to review proceedings on habeas corpus, in wbicb tbe writ was dismissed.
    ■ Tbe commitment on wbicb tbe relator was held showed, tbat at a Court of General Sessions held in and for tbe city and county of New York, tbe recorder presiding, it was adjudged, on tbe confession of tbe relator, tbat be was guilty of burglary in tbe third degree and that be was duly sentenced. It was claimed by the relator tbat tbe commitment was insufficient, because tbe General Sessions is an inferior court, and all tbe facts necessary to give it jurisdiction of tbe offense stated should have been set out.
    Tbe court at General Term said: “This view is erroneous. Tbe confession of tbe relator is itself an admission of tbe jurisdiction of tbe court. If it were not, tbe result must be tbe same, because tbe Court of General Sessions is one of general criminal jurisdiction, having tbe power to bear, determine and punish according to law all crimes and misdemeanors whatsoever, including crimes punishable with death or imprisonment in tbe State prison for life. (3 R. S. [5th ed.], 810.) Tbe crime of burglary in tbe third degree is one of wbicb tbat court can take jurisdiction if committed within tbe county, and all presumptions are in favor of tbe jurisdiction exercised therefore, and of tbe validity of tbe judgment pronounced in reference to it. This presumption arises from its general criminal powers. (The People ex rel. Tweed v. Liscomb, 60 N. Y., 559.) Tbe traverse did not present an issue on tbe subject, and tbe presumption was not rebutted.”

      William F. Howe, for the relator. B. K. Phelps, for tbe respondent.
   Opinion by

Brady, J.;

Davis, P. J., and Daniels, J., concurred in tbe result.

Proceedings affirmed and cerüorwri dismissed.


author: Talcott, J.:

text:
    LYDIA A. SHAKESPEARE, Appellant, v. WILLIAM G. MARKHAM, Executor, etc., and others, Respondents.

      Bwrrogate — jurisdiction of, over claim presented by executor — Agreement to lea/ve propwty by will — must be certain and definite — s&rvke rendered in expectation

    A surrogate has no jurisdiction or authority to pass upon the validity of a claim against an estate presented hy an executor in his own behalf, where the same is contested, nor can a reference be ordered in such a case to determine the same, though all the parties consent thereto.
    Where one person renders services to another in the expectation of receiving a legacy from him, relying solely upon the testator’s generosity, there being no contract, either express or implied, that compensation shall be made therefor by will, and the party for whom the services are rendered dies without making such provision, no action will lie in favor of the person rendering the same.
    Where, however, a certain and definite contract to leave property by will is clearly established, and the promisee has fully performed the contract on his part, a court of equity will, in a case free from all objection, either on account of inadequacy of consideration or of other circumstances rendering the claim inequitable, compel a specific performance thereof.
    Specific performance of such a contract refused in this case, for the reason that the terms and provisions thereof were not sufficiently certain and definite.
    Where the contract is too indefinite and uncertain to authorize a decree of specific performance, the remedy of the party who has rendered the services is to bring an action before some tribunal competent to pass upon a disputed claim, to recover the actual value of the services rendered, as upon a quantwm mm'uit.

      The measure of damages in a case in which the claimant seeks to recover on an agreement to support and maintain the testator during the term of his natural life, is the amount which the board of the testator, and his nursing during his last illness were reasonably worth, less the value of any services rendered by him.
    The expenses incurred by an executor in an unsuccessful attempt to enforce before the surrogate, a claim made by him against the estate, including the fees of an auditor and his own counsel fees therein, should not be allowed to him out of the estate.
    Ajppeau from a decree of tbe surrogate of Monroe county, rendered upon tbe final accounting of ’William G-. Marldiam, as executor of tbe last will and testament of Wayne Markham, deceased.

      J. L. Hemes, for tbe appellant.
    Tbe Surrogate’s Court bad no power to adjudicate upon tbe joint claim against tbe estate made by tbe executor and bis three sisters. (Dayton, Suit., 394, 549, 551, 552, 553 ; id., 507-509 [3d ed.] ; Merchant v. Merchant, 2 Bradf., 432, 447; 3 R. S. [5th ed.], 175, §§ 37, 38;. TuoJcer v. TuoJcer, 4 Keyes, 136, 147; Estate of John Shorn, 1 Tuck, 352.) Tbis being a disputed claim and not having been determined by any authorized tribunal, could not be determined on final accounting of tbe executor. (TuoJcer v. TuoJcer, 4 Keyes, 136; Redf., Suit., 391, 395; Wilson v. Baptist Edn. Soo., 10 Barb., 309, 316; Curtis v. Stilnoell, 32 id., 354; Magee v. Yedder, 6 id., 352.) A promise to pay deceased relatives for services will not be implied, and unless one is clearly proved they will be attributed to affection and generous kindness, or benefit received. (Mcvrganet Keller’s Estate, 1 Tuck., 28; Osburne v. Osbv/rne, 1 Bradf., 356; Bowen v. Bowen, 2 id., 336; Robinson v. Cushman, 2 Den., 149; Williams v. Hutchinson, 3 N. Y., 312; JDélmott v. Taylor, 5 N. Y. Sur. R., 417; Wei/r v. Weir’s Admrs., 3 B. Mon., 645.) Claims for service rendered in consideration of a promised legacy can only be sustained by positive and convincing proof. (2 Redf. on Wills, 281, 282; Graham v. Graham, 34 Penn. St., 475; TJwmpson v. Stevens, 71 id., 161; Heal v. Gilmore, 79 id., 428.) Tbis contract, if it could be considered one, was utterly void for uncertainty and indefiniteness. There was no definite legacy proposed. No specified property or fixed amount to be left. (17 S. & R., 45.) Tbe measure of recovery in all such cases is tbe value of the services. (Lisle v. Sherman, 25 Barb., 433; Quaelembush v. Ehle, 5 id., 469 ; E/rben v. Lorilla/rd, 19 N. Y., 299; Robinson v. Ra/ynor, 28 id., 494; LLam v..Goodrich, 37 N. H., 185,190; Graham v. Graham, 34 Penn. St., 475 ; Hertzog v. Hertzog, 34 id., 418; Sherma/n v. Kitzmiller, 17 S. & R., 45; Swedes v. TPüiíi, 7 How. Pr., 309 ; Calkins v. Falle, 39 Barb., 620; Jacobson v. Executor, 3 J. R., 199; Patterson v. Patterson, 13 J. R., 379; Wright v. Martin, 13 Wend., 460; 71 Penn., 161.) Any other rule of damages would violate the statute of wills and validate a verbal will, or, in-this case, a verbal revocation of a will. (3 R. S. [5 ed.], 138, 141; Graham v. Graham, 34 Penn. St., 482.) A portion of his property, at the time of the claimed arrangement, was real estate; it was therefore void by the statute of frauds. (Brown on Frauds, §§ 65, 66; Roberts on Frauds, 272.) If this was a contract it was entire, embracing realty and personalty, and therefor as well as for its uncertainty, utterly void, and. could not be the foundation of an action or even resorted to for a measure of compensation. (King v. Brown, 2 Hill; 485; Van Alstine v. Wemple, 5 Cow., 162, Erben v. Loriila/rd, 19 N. Y., 299, 433; Lisle v. Sherman, 25 Barb., 433; 11 Casey, 23-28.) The executor should not have been and should not now be allowed the item for counsel. (26 Barb., 316; 25 How., 5; 26 N. Y., 441; 39 Barb., 172.)

      A. M. Bingham, for the respondents.
    The validity of the agreement upon which this claim is based is settled by the following cases: Dresser v. Dresser (35 Barb., 573); Thompson v. Stevens (21 Penn., 161); Lees v. Hale (10'Wend., 426). The fourth objection is to the allowance of $260 counsel fee. There is no error in the allowance of this item that appears in the case. If the appellant claims that such fees were not properly allowed to the executor, he should point to some irregularity in such allowance so that the facts relating to the same might appear by the return of the Surrogate’s Court. (Ba/inbridge v. McCullough, 1 Hun, 488.) The rule seems to be fully settled that where a contract is sufficiently certain to form a basis for calculation, so that it can be made definite by extrinsic evidence, it will be enforced. (Gilman v. Gil-man, 2 Bans., 1; Richards v. Edick, 17 Barb., 260; Thompson v. Stevens, 71 Penn., 161; Fish v. Hubbard, 21 Wend., 651.)
   Talcott, J.:

This is an appeal from the decree of the surrogate of Monroe county, finally settling and adjusting the account of William G-. Markbam, as executor of the estate of Wayne Markham, deceased. The plaintiff: is the granddaughter of the deceased, and sole legatee for life of the whole estate of the deceased, with remainder to the heirs of her body, share and share alike. She and her children are the sole lineal descendants of the testator, who died at the town of Rush, in Monroe county, in August, 1872, at the age of seventy years and upwards. The respondent William G. Markham, of the town of Rush, a nephew of the deceased and a son of Guy Markham, of Rush, is one of the executors named in the will of the testator, and caused it to be proved before the surrogate of Monroe county, and took upon himself the sole trust and duty of the execution of the will, the other persons named therein as executors being residents of the State of Michigan. The proceeding for a final accounting was at the instance of the said executor. Iiis account presented for settlement, as his -final account, credits the. estate of the testator with the sum of $6,002 in the bank of Avon at the time of the decease of the testator, fifty-two dollars in cash in the possession of the testator, and other amounts realized by the executor from the sale of small amounts of personal property, the whole estate amounting to $6,199.75. The said account credits the executor for funeral expenses paid, and for the expenses of administration, including twenty-nine dollars for counsel fees, the whole amounting to $636.79. The executor then makes a charge, as follows:

“ To amount claimed by the executor jointly with Mary Markham, Emma Puffer and Isabella Hunsford, under a contract with testator for his maintenance during his natural life, $5,542.06,” being the precise balance of the estate which had come to the hands of the executor.

The appellant having been cited appeared before the surrogate, and interposed objections in writing to the allowance of said account, in substance as follows:

Eirst. That the executor has not credited the estate or charged himself with interest on the cash in the bank of Avon, although he has had the use of and interest upon the said sum of money in said bank of Avon and elsewhere.

Secondly. That the item of $5,512.96 charged against the estate, as claimed by the executor jointly with others, is erroneous, and should not be allowed by the surrogate, for the following reasons:

First. That the said claim as charged in said account is wholly false and fictitious, and is not a legal charge against said estate or said executor, nor is said estate or said executor hable for the payment of the same or any part thereof.

Second. That said executor has not paid said amount or any part thereof to any person.

Third. That no voucher evidencing such payment is produced.

Fourth. That no claim for the payment of said amount of $5,512.96 has been presented by, or on behalf of said executor alone, or with other persons, to the surrogate, supported by affidavit as required by statute in case of claims made by executors against the estate in their hands for settlement.

Fifth. No proper or sufficient proof of said claim has been made before said surrogate.

The objections of the appellant contain three other objections to the said account and the affidavit accompanying the same, and conclude with an objection that the surrogate has no jurisdiction or authority to pass upon or allow the disputed claim of Mary Markham and others, whether considered separately or jointly with the claim of the executor. Upon filing the said objections, the surrogate overruled all the objections to his jurisdiction, and made an order, referring it to an auditor to hear, examine and report on the claim made by the executor jointly with Mary Markham and others. The auditor reported in favor of the allowance of the ■ claim, and the testimony taken before him constitutes a part of the case. From the auditor’s report of the testimony it appears that, at the commencement of the proceedings before him, it was agreed by the parties that the said auditor should take the proofs of the said claim and pass upon and determine the samé, and report thereon to the siu'rogate, with his opinion, in pursuance of the order of the surrogate. The auditor made his report sustaining the claim on the 17th of July, 1875. On the 27th day of July, 1875, the attorney for said executor filed a paper in the office of the surrogate, containing a statement of the claim, by Emma Puffier, Mary Markham and M. Isabel Dunsford, with their several affidavits that the same was true in all respects; that no part of the same had been paid and that no offsets exist against said account. The claim was stated as follows: “The estate of "Wayne Markham in account with S. .Emma Puffer, M. Isabel Dunsford and Mary E. Markbam, jointly witb William G. Markbam, executor: To amount due upon contract for support, $6,000, our interest being three-quarters of tbe amount upon equal distribution, to wit: $4,500.” Tbe same paper also contained an acknowledgement, dated January 1,1874, purporting to have been signed by S. Emma Puffer, Mary E. Markbam and M. Isabel Dunsford, tbat they bad received tbeir “ several interest in tbe foregoing claim ” from tbe executór. On tbe 29th day of July, 1875, a final bearing was bad, and a motion was made on behalf of tbe executor to confirm tbe report of tbe auditor, and thereupon tbe appellant filed written objections to tbe facts found and tbe conclusions of law of tbe auditor upon various special' grounds touching tbe validity of tbe claim, and also objected tbat tbe executor bad not eompbed witb tbe statute providing for tbe proof of claims in favor of executors against estates in tbeir bands, and renewed substantially tbe same objections she bad previously made to tbe authority of tbe surrogate to pass upon tbe claim and to tbe form of tbe verifications. Afterwards, and during tbe said final bearing, tbe surrogate allowed tbe executor to file a new statement of tbe claim substantially in tbe same form as stated in bis account, witb tbe additional statement tbat be bad paid to tbe other joint claimants tbeir distributive shares, witb tbe usual affidavit of verification, and” tbat tbe account actually accrued against "Wayne Markham in bis lifetime, and tbat no part thereof bad been paid or settled as to him, tbe executor, nor except as paid by him to tbe other joint claimants thereof. To tbe filing of this paper tbe appellant also objected, and again renewed her objection to tbe power and authority of tbe surrogate to pass upon tbe same. All tbe objections made by tbe appellant to tbe report and opinion of tbe auditor, and to tbe power and jurisdiction of tbe surrogate, to tbe form and verification of tbe accounts, and all her objections were overruled, and on tbe 13th day of December, 1875, tbe surrogate made a decree in tbe proceeding, sustaining tbe report and opinion of tbe auditor allowing said joint claim, and finally settling tbe executor’s account. Tbe account was finally settled, .as rendered by tbe executor, except tbat tbe latter was charged interest on $6,000, for six months, and was credited in gross with $260 counsel fees, and $60 auditor’s fees; it not appearing, however, that any vouchers for said counsel fees, or auditor’s fees, were presented, or any specification of the items given. On this case the first question to be determined is, whether the surrogate had any jurisdiction to pass upon the said joint claims, or any authority to allow the same as a part of the executor’s account.

The long controversy which has existed on this subject in the courts was, as we understand} finally put at rest by the decision of the Court of Appeals in the case of Tucker v. Tucker (4 Keyes, 136). A reference to the various preceding decisions of the various courts on the subject may be found in the elaborate opinion of the surrogate of New York, in The Matter of the Estate of Jolm Shaw (1 Tucker, 352.)

In the case of Tucker v. Tucker (supra; also reported in 4 Ahbott’s Decisions of the Court of Appeals, 428), it is expressly' held, that upon a final or litigated accounting of an executor, the surrogate has no jurisdiction to try the validity and amount of a disputed demand against the estate. That the consent of the parties to go on before the auditor cannot be sustained as an arbitration, is also held in the same ease, upon the ground that consent cannot confer jurisdiction of the subject-matter, upon a court professing to act as such, but proceeding without jurisdiction of the subject.

The whole proceeding by and before the surrogate of Monroe county, in this case of a disputed claim against the estate, by which the claim was allowed was coram nonjudice, and void. But, as we are desired to examine the merits of the claim itself, we proceed to do so, in the hope that it may possibly tend to prevent further litigation between the parties.

It appears that the testator had been for some time a resident of Kalamazoo, in the State of Michigan, where he made his will bearing date the 18th day of March, 1871, while he was residing in the family of appellant and her husband. About the month of April, 1871, he wrote to his brother, Guy Markham, of Rush, in the county of Monroe, in this State, that he had had some misunderstanding or difficulty with Shakespeare, the husband of the appellant, and that he was under the necessity of seeking a new home, and that he would like to come and live with the said Guy Markham and his (Guy’s) children, saying he thought he could make himself as useful to Guy and his family as any place he could go to, and would be willing to do so as far as his health would permit; that if he could do so, he would pay them for all trouble and expense, if he had enough to do so with, and that what little property he had would go to the person or persons who befriended him in his old age, stating that he thought he should save of his property over $6,000, and requesting the said Guy to come out to Kalamazoo so that he could talk and advise with him. Guy Markham, in pursuance of such request, went to Kalamazoo, when the request was repeated, that the testator might come and live with him (Guy). Guy consented to the proposition for himself, but informed the testator that he could make no arrangement with him until he had conferred with his (Guy’s) wife and children. In about the month of May, 1811, the testator came to the home of Guy Markham, in the town of Rush, and remained ’there as one of the family till he died, in August, 1812.

Guy Markham lived on a farm of 250 acres in the town of Rush, owned by him, but the business of the farm was carried on by the defendant, William G. Markham, and in his name, and it was understood that all the produce of the farm belonged to William G., without, so far as appears, any definite agreement. Guy Markham had also three daughters, who superintended the household matters, and it was understood in the family that the said three sisters were jointly interested with William G. in the avails of the farm, although no definite arrangement to that effect existed between them. Guy Markham and his wife lived in the family. One of the daughters, Mrs. Puffer, resided with her husband in South Carolina, but was generally at her father’s house in Rush, during the summer. Another one of the daughters, Mary, was frequently absent from home. The testator appears to have been a carpenter by trade, but had been engaged in carrying on a bookstore in Kalamazoo, in copartnership with the appellant’s husband. After the testator came to Rush, he fitted up a room in the house for himself, and occupied the same until his death. Soon after he came to Rush, some talk was had about the . terms on which he was to live there, but no definite agreement was made until some time1 about the month of July, 1812, when the children all being at home, the testator caused them all to be assembled together with Guy Markham and his wife, stating that he wished to get the family all together, to state to them what the bargain was, in relation to his living there, and it was then arranged between the testator and the said family of Guy Markham that they should support him as long as he lived, and for such care and support he was to give them all his property. This was said to the children individually, and it was then understood that if one failed to furnish such care and support the other would do it. There was nothing agreed as to when the property was to be delivered, or as to the manner in which it was to be conveyed or seemed; and it was not the understanding of the parties that the property or any part of it should be delivered in the lifetime of the testator, but the same was to be used and controlled by the testator during his life. The auditor to whom the matter was referred reports, as a matter of fact, that the agreement was made by and between the testator and the four children, but the opinion of the auditor on matters of fact was not controlling to the surrogate. The whole evidence was before him, and is before this court. We think it quite uncertain upon the testimony whether or not the four children of Guy Markham were the only persons whom the testator supposed were to agree to furnish him the support, etc., which he intended to provide for. Guy Markham testifies that when he saw the testator in Michigan the latter said, if he could come and live with me he expected I would have what he had; whoever took care of him should have what he had. He said he had no one else he wanted to leave his means with, but those who took care of him in his old age.” * * * When we got home I told the children what proposition he had made, and if they agreed to it it would be all right. He told her [Guy Markham’s wife] he wanted to live with us, and compensate us with his means.”

Mr. Puffer states, in reference to the assembling together of the family, when the contract was made: He wanted to see the whole family together to have it sanctioned, and have my consent to it.”

Mr. and Mrs. Guy Markham were present at the conversation when the agreement was made, as members of the family. Guy Markham was the owner of the house in which the testator lived, and of the farm, from which, at all events, the principal part of his support was expected to be furnished, and was the head of the family in which, the testator desired and expected to spend his days. The children were, as Guy Markham says, “running the farm with his advice and consent.” It does not ajjpear that there was any definite arrangement on the subject, or any agreement for running the farm, but what Guy Markham might have put an end to at any time, by his mere volition. It does not appeal’ that his children had any independent property which would enable them from their own means to furnish such support as he (the testator) desired. It appears to us, that the idea of the testator was, so far as any binding contract was to be made, that the agreement was with Guy Markham, and that the conversation at which the children were present was for the purpose of having the arrangement generally understood in the family, and acquiesced in. According to Puffer’s testimony, at the time of assembly of the family, and after the conversation, in which such contract was made, was held, the testator said “ that he was very glad that everybody consented, and that it was settled.” The claim in the case is made in behalf alone of the executor and the other children of Guy Markham. It seems to us that the testator understood, at all events, that Guy Markham, the recognized head of the family, which he was dealing with as a family, was certainly interested, if not solely interested in the contract. On the other side, so far as any precise contract was intended, in fact, it was an arrangement which neither party contemplated at the time as a binding contract, founded upon a valuable consideration, between the testator and anybody, except Guy Markham, but in which, for 'the sake of harmony, the general acquiescence of the entire family was desirable.

The will of the testator, before referred to, appointed the defendant, "William G. Markham, as one of the executors. He propounded it for probate, and he only of the persons named as executors took upon himself the trust and duties.

It was well known in the family that the testator had such a will, and on one occasion he went with Guy Markham to the neighboring village of Avon, with the avowed ptu’pose of having his will changed. The executor admits that he knew the testator had a will, but did not know the contents of it. He had before told Guy Markham that “ he wanted to alter it so that Shakespeare should not get any of his property.” So that it was known in Guy Markham’s family not only tbat the testator had made a will, bnt that it was a will under which the testator, at least, was apprehensive that the husband of the appellant might claim some interest in the property he should leave, or some part thereof, which was wholly inconsistent with any agreement or settled determination that Guy Markham’s family should have his entire property. It appears that on one occasion when he went to Avon, a neighboring village, for the avowed purpose of having his will changed, Guy Markham accompanied him, but he was readily persuaded by Guy to abandon the purpose for the time being, on the ground that it would be better to consult a lawyer of more experience than such as could be found at Avon — one that Guy suggested, residing at another place. There is much testimony tending strongly to show that the claim in behalf of the executor and the other children set up in the executor’s account is an after-thought, and that it was not pretended by the executor, for a considerable period after the death of the testator, that he and his sisters were entitled to the whole of the testator’s property after his death. The executor’s letters and conversations clearly show that at first a claim to the entire property was not intended.

The plaintiff and her children are the only lineal descendants of the testator, his sole heirs at law, and the natural objects of his bounty as well as his universal legatees.

The estate of the testator, at the time of the arrangement with the family of Guy Markham, seems to have consisted almost entirely of personal property, such as bonds, mortgages and notes, and money deposited in bank.

The only interest he appears to have had in real estate at that time was some title or interest in two cemetery lots, one at Clark-son, in Monroe county, where his wife had been buried, and in which the testator desired and expected to be and was buried, and one at Kalamazoo. Probably these cemetery lots were not understood to be embraced in what the testator termed his property, or his “ means,” and were not intended by him, or understood by the other parties, to be embraced in the arrangement or understanding, such as it was, in reference to the disposition of his property after his death, as a compensation to those who should take care of him untiThe died. "We do not think, therefore, that the supposed contract. was void, under the statute of frauds, as an agreement to convey real estate not in writing. But there are other objections to the parol proof of this supposed contract, which, in our view, are fatal to its operation as a definite contract. Such contracts have a tendency to subvert the statute of wills, and to do away with all those safeguards in respect to the posthumous disposition of property with which the law surrounds such instruments.

Where a party renders services to another in the expectation of a legacy, and in sole reliance on the testator’s generosity, without any contract, express or implied, that compensation shall be provided for him by will, and the party for whom such’ services are rendered dies without making such provision, no action lies, but where, from the circumstances of the case, it is manifest that it was understood by both parties that compensation should be made by will, and none is made, an action lies to recover the value of such services. (Martin v. Wrights Admrs., 13 Wend., 460; Patterson v. Patterson, 13 Johns., 379; Jacobson v. Le Grange, 3 id., 199; Lisk v. Sherman, 25 Barb., 433; Quackenbush v. Ehle, 5 id., 469 ; Erben v. Lorillard, 19 N. Y., 299; Robinson v. Rayner, 28 N. Y., 494; Graham v. Graham, 34 Pehn. St., 475.)

There is, upon the authorities, no doubt that in a case where a certain and definite contract is clearly established, even though it involves an agreement to leave property by will, and it has been performed on the part of the promisee, equity in a case free from all objection on account of the adequacy of the consideration, or other circumstance rendering the claim inequitable, will compel a specific performance, though as an original question it might be considered doubtful whether in any such case, especially when the contract is sought to be established by parol testimony, so patent a means for the evasion of the provisions for the security of property, furnished by the statute of wills, should have been allowed. But courts of equity having been pressed by the hardship of particular cases, and the unreasonable and, perhaps, often fraudulent conduct of the decedent have made precedents on the subject which have resulted in the establishment, as a principle of equity law, that in such cases the court will often decree a specific performance, and charge those holding the property under the will with a trust for the benefit of the party to whom it was agreed to be given. (Parsell v. Stryker, 41 N. Y., 480.) But in the cases in which such contracts are set up, and especially where they are attempted to be established by parol testimony, the temptation and opportunity for fraud is such that they are looked upon with suspicion, and the courts require the clearest evidence that a contract founded on a valuable consideration, and certain and definite in all its parts, should be shown to have been deliberately made by the decedent. (Ogilvie v. Ogilvie, 1 Bradf., 356 ; Bowen v. Bowen, 2 id., 336; Williams v. Hutchinson, 3 N. Y., 312; Robinson v. Raynor, 28 id., 494; Lisk v. Sherman, 25 Barb., 433, and cases before cited.) It is claimed that the contract relied upon in this case is within the statute of frauds, as one not to be performed within a year. In regard to this question the state of the law may be said to be uncertain. The case of Dresser v. Dresser (35 Barb., 573) went to the Court of Appeals, where, as stated by Mr. Abbott, two opinions on this point were delivered, one holding the contract void, the other, valid; but the court did not pass upon the question. (Table of Cases Criticised, 1 Abbott’s Dig. of New York Reports, Ixiv.). The case in 35 Barbour is stated to have been followed by the General Term in the third department in Kent et al. v. Kent et al. (1 Hun, 529), but the latter case is not fully reported.

But waiving the question arising upon the statute of frauds, we think the contract, as appearing in the evidence, is too uncertain to require a specific performance — such a performance as this executor has undertaken to render by his account. First. It seems to us, if it be admitted that the executor and his sisters were at all interested as contracting parties, yet Guy Markham was also interested as the principal party contracting with the testator. Second. The amount to be given, after the death of the testator, to the parties "who should have supported and taken care of him till death, was obviously, as shown by the repeated declarations of the testator to various members of the family, intended as a compensation for such services, and to go to the person or persons only who had performed such services.

There was no contract to devise or bequeath' to the executor and his sisters jointly, share and share alike, the entire amount of the testator’s estate, and it is evident from the testimony that the services of all were not equal, or expected to be so. Third. The services to be rendered were uncertain in then- character, not only in respect to the time of continuance, but in regard to their nature and character. Fourth. The compensation to be made for the services was uncertain. It was not specifically agreed in what manner the property of the testator was to be conveyed or secured to the Other parties. It was to be used and controlled by him during his life. There was no restraint by the supposed contract, upon the testator’s power to dispose of the same, or any part thereof, during his life, and the amount which he should leave at his death was therefore wholly uncertain. The contract, therefore, by reason of its uncertainty, was one which a court of equity would not be under the necessity of compelling performance of. (Stanton el al. v. Miller, 58 N. Y., 192; Robinson v. Rayner, 28 id., 494; Lisk v. Sherman, 25 Barb., 433; Meal’s Exrs. v. Gilmore, 19 Penn., 421.) The case of Lisk v. Sherman (25 Barb., 433), was quite similar to this in its leading features. There, the agreement was that the plaintiff was to five with and take care of -the testatrix as long as the latter lived, and at her death was to have all the property which the testatrix should have at her death. A suit had been in the first instance commenced for the specific performance of the contract, and such relief had been denied. (See Opinion, p. 431.) Afterwards an action was commenced to recover damages at law for the breach of the contract, and on the trial thereof the court had admitted evidence to show the value of the property of the intestate at her decease, as- governing the measure of damages. This was held error, and the opinion of the court, delivered by Justice Wells, on the point of the uncertainty of the agreement, is as follows : “ The uncertainties connected with this agreement forbid the idea that any pecuniary amount of compensation for the plaintiff’s services could have been in the mind of either of the parties, or that either could have had in mind any standard by which their pecuniary value could be regulated or determined at the time the agreement was entered into. The services to be rendered were uncertain, both in respect to the time they were to continue, and as to their character and extent. The compensation, also, was equally uncertain.”

In this case, the testator, a man in general good health and active for his age, came to reside in the family of his brother in May, 1811, doing chores and other light work about the farm as, at least, part compensation for his support. He died in August, 1812, after an illness of two or three days. He left, after paying all funeral expenses and other charges of the executorship, the sum of $5,542.96, the whole of which the executor has, hy his account, undertaken to appropriate to himself and his sisters, by virtue of the agreement before referred to. It is manifest that the supposed compensation is, at all events, largely in excess of the services and support rendered. To allow such a claim to be enforced in behalf of the interested executor by a proceeding in the nature of a decree for specific performance, is not at all equitable in its results, and ought not to he permitted in a court of equity, unless as the consequence of an absolute and certain- contract, clear and definite in all points, and performed by those who allege it. Certainly, the rule authorizing the parties who have rendered these services with an understanding that they were to receive compensation, to recover at law what the services are reasonably worth, is the more just, and less subversive of the statute of wills, and such, we think, is the rule to be derived from all the authorities. In the case of Parsell v. Stryker (41 N. Y.), relied upon by the auditor in his opinion, there was a specific agreement in wilting to give the plaintiff a certain farm, unincumbered, except by a provision for the support of the mother and an imbecile sister of the plaintiff. The services agreed to he rendered by the plaintiff, had been rendered for many years. The case of Parsell v. Stryker was an action in equity for specific performance. The judgment in that case proceeded principally on Johnson v. Hubbell, a case in the Court of Chancery in New Jersey, where the son, having-by devise from his mother received a larger proportion of her property than had been given to his sister, had, upon the earnest appeal of .the father, and upon the promise of the latter that he would leave all his own property to the two children share and share alike, if the son would convey to the sister certain lands to equalize the situation of the brother and sister under the mother’s will, the contract being made in the presence of and with the consent of .the sister, the son had conveyed' the land in question to his sister. The father died, having by his will disinherited the son. On a bill filed by the son for a specific performance of the father’s contract, and for general relief, the chancellor refused a specific performance, but held for the daughter to retain the lands conveyed by the son in consideration of the father’s contract was unjust and fraudulent, and ordered her to reconvey those lands to the son. The other cases cited in the opinion in the case of Parsell v. Stryker are mostly cases arising upon precise ante-nuptial agreements and settlements, and the covenants therein contained. The case of Jones v. Martin, cited in the case in 41 New York, and also by Chancellor Williamson in Johnson v. Hubbell (supra), by mistake as from 3 Ambler, is, in fact, reported in 3 Anstruther. It was reversed in the House of Lords, and a full statement of the points in that case is to be found in a note to Randall v. Willis (5 Vesey, 262).

We think the trae rale in such cases, especially when based upon weak and vague parol arrangements, is to be found in Martin v. Wright's Administrators (13 Wend., 460), and Robinson v. Raynor (28 N. Y., 494), and that in this0case the claimants, whoever they may be, would only be entitled to recover for the actual value of the services rendered, as upon a qua/ntrum meruit, in an action before some tribunal competent to pass upon the disputed claim. Of course the amount to be recovered by the party or parties entitled to recover in such action, is to be settled by the tribunal before which it is presented for adjudication. It should be the amount which the ■board of the testator and his nursing during his last sickness were reasonably worth, deducting the valu<? of his services upon the farm. The amount of his property left at his decease furnishes' no criterion or standard by which the amount to be recovered is to be measured.

The appellant, in her petition of appeal to this court, amongst other things, alleges for error that the executor, in the account as finally settled by the surrogate, is' charged with interest for six months only on the cash in bank at the time of the testator’s death, $216, whereas he should have been charged with interest from the time the letters testamentary were issued, on $5,542.96, which would be, it is claimed, about $1,160.Y6. It appears from the executor’s own testimony that the money was at some time transferred to the pri - vate account of the executor in the bank to his account not as executor, but as a private individual. The time when this transfer took place is not mentioned. It appears that, up to the time of his death, the bank was, by some arrangement, allowing the testator a certain rate of interest on the deposit, and interest was credited to him on the pass-book of the bank down to July 1, 1872, about a month before his death. The executor was interested as one of the owners in the bank. It should be ascertained at what time the executor caused the money to be placed to his private account, and all the interest due from the bank up to that time should be charged to him, and from that time interest at the rate of seven per cent up to the time when he filed' his final account for settlement.

"We think the credit to the executor for the $260, counsel fees, and also of the sixty dollars for auditor’s fees, was improper. There appears in the case- no particulars or vouchers for these charges. At the time of presenting his final account, the executor then charged for counsel fees twenty-nine dollars only. We therefore conclude that the counsel fee subsequently allowed was for the employment of counsel in the litigation before the auditor, and afterwards in endeavoring to have the joint claim of himself and others allowed against the estate in his hands. The whole proceeding, whereby the executor attempted to get the joint claim of himself and others allowed in his final account, was, as we have seen, illegal and unwarranted. The expenses thereof were not incurred in behalf of the estate, but in the prosecution of his own private claim against the estate.

There can be no justice or propriety in compelling the appellant not only to defend the illegal and unjust claim against her property as legatee at her own expense, but also to pay the expenses incurred by the executor in attempting to enforce the claim in his own behalf and for his own benefit, contrary to the interests of the estate of which he was the trustee. The auditor’s fees were, as we suppose, the fees paid to the auditor, on the reference to him, illegally obtained at the instance of the executor, and rest upon the same principle as the counsel fee of $260. ¥e think the counsel fee should be reduced to twenty-nine dollars, the amount originally -charged by the executor, and the auditor’s fees should not be allowed.

The decree of the surrogate appealed from is reversed, with costs of the appeal to the appellant, to be paid personally by the respondents and not out of the estate, and the proceedings are remitted to the surrogate of Monroe county, with instructions to settle the final account of the excecutor, upon the principles laid down in' this opinion. The costs of tbe proceedings before tbe surrogate and of tbe executor on tbe appeal are not to be allowed out of tbe estate.

Present' — Mctllin, P. J„ Talcott and Smith, JJ.

Ordered accordingly.