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    Andrew J. Applebee et al, Ex’rs, Pl’ffs, v. William Duke et al., Def’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Evidence—Parol, when admissible against written instrument.
    William and Joseph Duke formed a partnership orally in 1860 and subsequently became possessed of large interests in land, lumber and oil rights in different states. In 1881 they entered into a written agreement to settle the accounts between them. This recited that each held property as an individual which in fact belonged to the firm," and each agreed to deed such property to the other on demand and generally to adjust their affairs. In 1884 they entered into a further agreement, whose object was to vest one with all the personal property of the firm and bind him to pay its debts in this state. Joseph Duke died, and in an action for an accounting it was held by a referee that the demands between the parties were settled by these agreements and that parol evidence was inadmissible. Held, error. Neither instrument stated the indebtedness of one partner to the other nor how each would stand after an accounting, and therefore parol evidence was admissible whether an agreement as to this question was made before, at the time of, or after the execution of the written instruments.
    2. Mistrial—Referee cannot decide a part op the issues only.
    The parties agreed that the referee should first decide the question whether the demands in the complaint were settled by the written instrumeats. The referee held that they were, and this appeal was taken. Held, that this amounted to a mistrial. The referee had no power to try a portion of the action, and an appeal can he taken only from his decision upon all the issues referred to him.
    Motion on behalf of the defendant William Duke for a new trial under § 1001 of the Code of Civ. Pro., after an interlocutory judgment entered upon the report of a referee.

      Hamilton Ward, for deft, William Duke; Clarence A. Farnum, for pl’ffs.
   Corlett, J.

In 1860 the defendant William Duke and his brother, Joseph Duke, formed an oral partnership under the firm name of W. & J. Duke for the purpose of producing and selling oil, the purchase and sale of oil territory, and the manufacture and sale of lumber. Their places of business were mainly at Wells-ville, M. Y., and Bradford, Pa. Their transactions extended over many states. The partnership continued until dissolved by the death of Joseph Duke, which occurred about the 24th day of December, 1884.

On the 15th day of March, 1881, the partners executed an agreement under seal, of which the following is a copy:

“ Whereas, in or about the year 1860, William Duke, now of Scio, Allegany Co., N. Y., and Joseph Duke, now of Bradford, McKean Co., Pa., entered into a co-partnership in the business of manufacturing and selling lumber and staves under the firm name of W. & J. Duke, wherein the two parties aforesaid were equal partners, which partnership has been ever since continued and now subsists; and, whereas, in the prosecution of the business by such co-partnership, large amounts of both real and personal property have been accumulated by the investment of profits therein, without dividing the same among the partners; and, whereas, for the easier transaction of the business of said firm, which throughout its later years has consisted in part of the buying, hiring, letting and selling of real estate for lumbering purposes, and for the purpose of boring or drilling for petroleum or rock oil, it was deemed at the time advisable that the title to various lands should not be taken in the name of both partners, but in the name of one partner only, who could the more readily convey the same upon a sale being made, by which reason it has come to pass that in case the necessity should arise of distinguishing between the individual property of the members of the firm, or of proving title to the property, much difficulty might be experienced in the absence or inability to testify of the said partners, or either of them; and, whereas, by the means aforesaid, the legal title to property purchased by the firm money and for the firm purposes has passed in form for the most part not to said firm, but to the individual members thereof, in manner substantially as follows: William Duke holds conveyances to himself of divers parcels of land in the state of Pennsylvania wherein the name of Joseph Duke does not appear, while in truth and in fact in every instance where said William Duke holds lands in the state of Pennsylvania by conveyance, wherein Joseph Duke is not named as grantee, the said interests so held by William Duke was purchased with the funds of the firm, and Joseph Duke is the equitable owner of an undivided one-half of the interest by such conveyance granted to said William Duke, and in every instance where Joseph Duke holds lands in the state of Pennsylvania by a conveyance to him, not naming William Duke as grantee, ■ the said William Duke is in fact the equitable owner of the undivided half of the interest by such conveyance granted to the said Joseph Duke by reason of the same having been purchased with firm funds, and whether the interests so vested in one of the said partners be a freehold interest in fee or a mining right, or a right to purchase on conforming to the terms of an executory contract, or a lease for years, or a lien or claim upon lands sold for the unpaid residue of the purchase price, or a royalty reserved on oil lands for development, or any other interest in a claim upon real estate, the other partner is by reason of the same having been purchased with firm funds the equitable owner of and entitled to an undivided half of the interest so vested, excepting and reserving to Joseph Duke, as his sole and separate property, one parcel only, to wit: His dwelling house and lot in the city of Bradford, McKean county, Pa.
“ The much larger share of the lands and landed interests in which the said firm is thus interested in Pennsylvania lies in the counties of McKean and Warren.
“All oft he personal estate of the said William Duke, which has a local use or situs in the state of Pennsylvania, is likewise as to the undivided, half thereof the property as aforesaid of Joseph Duke,and the personal property of Joseph Duke in Pennsylvania, excepting his household furniture and goods, is likewise as to an undivided half thereof, the property as aforesaid of William Duke, and each is entitled to an accounting from the other for the said property or the proceeds thereof; the interests of the said partners in all such property, both real and personal, being, however, subject to the debts of the said firm.
. “In the state of Michigan considerable amounts of land are held by the said partners undividedly in the name of one of them, as are also large claims in lands for the unpaid purchase price of lands sold by the partners so holding the title. While in Michigan, as in Pennsylvania, William Duke is by reason of the same having been bought in the partnership interest and with its funds, the equitable owner of, and justly entitled to the undivided half of all lands, and interests in or liens for the purchase price on lands held by Joseph Duke in his own name, and Joseph Dukeis likewise the owner of equitably, and entitled to a similar interest in, and claims upon lands held by William Duke in his own name.
“In the state of Mew York said William Duke holds by conveyance in his own name, either alone or with Harry Johnson or others, considerable amounts of land for oil purposes in the towns of Alma and Bolivar, Allegany county, M. Y, and also as a member, of an unincorporated association known^ as the California Oil Company, holds title by deed in connect on with Harry Johnson • of Scio, M. Y., to divers other land?, as trustee for the members of said association, as also to certain apparatus for developing the same, in which lands he holds himself a large legal estate. All the lands and interests in lands so held in his own name by William Duke in Bolivar and Alma aforesaid, and as a member of said association, so far as he is beneficially interested therein, were produced by him in the partnership interests, and having been or agreed to be paid for with its funds; and Joseph Duke is the equitable owner of and, subject to the firm debts, justly entitled to one undivided half of all the lands and interest to which William Duke has the title or right by virtue of the conveyances, grants or contracts in his name; said William and Joseph Duke are for the same reasons hereinbefore often stated, the equal joint owners of all saw-logs and lumber lying or being at or on the premises of,or purchased for the saw-mills at Scio, Allegany county, FT. Y, and at the Duke saw-mill on the Genesee river, a mile above Wellsville village in Allegany county, aforesaid; as also of a real estate mortgage given to said partners or one of them by Mrs. Reese of Friendship, FT. Y., and conveying lands in that town to secure the payment of about the sum of eight hundred dollars, as also of all sums of money now in the hands of R. T. Howard of Batavia, FT. Y., and arising from the sale of lands and timber in Michigan; the said equal interests of each partner in all the property both real and personal, being, however, subject to any balance that, upon a general accounting of the said partners or a dissolution of the co-partnership, may be found due to the other partner, but not in favor of one partner or the other, or in any way burdened whatsoever, except by the debts of the firm, if any there be, and, whereas, while it would be desirable that each partner should convey to the other in all the above described property the half interest to which he would be entitled, yet the number of outstanding contracts in the name of the several partners, and the great inconvenience of such transfer, renders it inadvisable to make ■such transfer at present, but makes it necessary for the present to facilitate the firm business that the apparent title to all said property should continue as it now stands ; still, in order that in case •of the death or incapacity to act or transfer of either partner, great confusion and loss and possible injustice may not occur, and in order that the real interests of the several partners may be truly known that either one or his heirs, executors, administrators or assigns may when necessary have a sure means of enforcing his rights:
“This agreement, made and entered into this 15th day of March, 1881, by and between the said William Duke on the one part, and the said Joseph Duke of the other part, is as follows:
“First. For and in consideration of the covenants and agreements hereinafter set forth to be done and performed by said Joseph Duke, said William Duke hereby covenants, promises and agrees to and with said Joseph Duke, that within reasonable time after demand made therefor, he will convey to the said Joseph Duke the undivided one-half interest to which he is entitled, as set forth in the preamble hereto, in and to the in said preamble mentioned and described as held by said William Duke in his own name for the partnership benefit, such transfer to be subject, however, to the general lien for the firm debts, and of any balance found due to William Duke, his heirs, etc., on an accounting of the said partnership, or if he has sold or aliened such property or any part thereof in the transaction of the firm business, or otherwise, he will fully and faithfully account for the proceeds thereof in whatever form or through however many investments the same may have passed, and that at the dissolution or any general accounting or settlement of said copartnership, he will pay over any balance left in his hands from such proceeds, and found due to said Joseph Duke, his heirs, executors, administrators or assigns.
“Second. In consideration of the covenants, promises and agreements hereinbefore set forth to be done and performed by William Duke, the said Joseph Duke hereby covenants and agrees to and with the said William Duke, that within reasonable time after demand made therefor, he will convey to said William Duke the undivided one-half interest to which he is entitled as set forth in the preamble hereto, in and to the property in said preamble described and mentioned as held by said Joseph Duke in his name for the partnership benefit, such transfer to be subject, however, to the general lien of the firm debts, and of any balance found due to said Joseph Duke, his heirs, etc., on an accounting of the partnership, or if he has sold or aliened such property or any part thereof in the transaction of the firm business or otherwise, he will fully and faithfully account for the proceeds thereof, in whatever form or through how many investments the same may have passed, and that at the dissolution or any general accounting or settlement of said copartnership, he will pay over any balance left in his hands, from such proceeds, and found due to said William Duke, his heirs, administrators or assigns.
Third. The said William Duke and Joseph Duke do also further covenant and agree to and with each other that the statements of the several interests which they respectively possess as set forth in the preamble hereto, in and to the property therein mentioned and described, is in all respects correct, and such statement, and each and every, the covenants and conditions of this instrument shall apply to and bind the heirs, executors and administrators of the respective parties hereto. And they do still further covenant and agree that in case these several relations to any of the property in the preamble hereto mentioned is not or shall not be held in any litigation or other proceeding that may arise strictly that of partners; still the statement contained in the preamble as to their several interests is correct, and to such property each and every of the covenants and conditions of this agreement shall apply.
“Fourth. And the said William Duke and the said Joseph Duke, for and in consideration of their several covenants and agreements herein set forth, do hereby mutually appoint each the attorney in fact of the other, with full power to sell, assign, transfer, grant and convey any and all the property hereinbefore mentioned in the preamble hereto, to ask, demand, receive, collect the purchase price and proceeds thereof; to invest and re-invest the same for the joint benefit of both, and to execute, in the name of the party holding the apparent legal fjtle.to such property, or otherwise, as may be legal and binding, any and all deeds, grants, conveyances, releases, discharges, acquittances and any and all other instruments that may be necessary'for the efficient exercise of the powers herein conferred to the same extent as though both parties hereto were present and acting in person, hereby ratifying and confirming any and all things that may be done in accordance with the power hereby granted, or by virtue thereof.
“Fifth. And it is further mutually understood and agreed by and between the parties hereto that all property of any and every kind whatever, real or personal, held by either partner, and not declared partnership property, is and shall remain and be held to be the individual property of the person or partner so holding it.
“ In witness whereof, the said William Duke and Joseph Duke, the parties hereto, have hereunto subscribed their names and affixed their seals the day and year first above written, to wit, this 15th day of March, 1881.

In the presence of:

Joseph Duke, • [l. s.]
William Duke. [l. s.]”

On the 16th day of December, 1884, another instrument under seal was executed between them, of which the following is a copy:

“ Agreement made this 16th day of December, 1884, by and between William Duke, of Wellsville, M. Y., party of the- first part, and Joseph Duke, of Olean, M. Y., party of the second part, is as follows :
“For and in consideration of the sum of one dollar, to him in hand paid by the party of the first part, the receipt whereof is hereby confessed, and of the covenants and agreements of the party of the first part,, hereinafter set forth, the party of the second part hereby sells, assigns, transfers and sets over unto the party of the. first part all the right and title of the second party in and to the promissory notes, bonds, mortgages, obligations, accounts, debts, dues, demands of every kind and character whatsoever now owing to, and owned by, the copartnership firm, consisting of the parties hereto, under the name and style of W. & J. Duke, in the states of Mew York, Wisconsin and Florida, and all the personal property belonging to said firm in the states aforesaid, or either of them, whether the said notes, mortgages and personal property of whatsoever kind be made payable to, or stands in the name of said firm, or either member thereof, for its benefit, excepting the following, to wit: A note secured by mortgage, given by L. D. Brewster to William Duke on lot of pine logs in Wisconsin, to secure the payment of the sum of $12,000 and interest; a promissory note given on August 8, 1884, to W. & J. Duke by W. F. Coast for $6,000 and interest; a brown horse, heretofore in H. M. Browning’s possession, all oil wells on leased land, and on lands whereof said W. & J. Duke do not hold the fee simple title, together with all engines, boilers, derricks, rigs, tubing, casing, piping, cables, ropes, pumps, machinery and appurtenances now at said wells on lands whereof said W. & J. Duke own the fee, or used in operating said wells or lands, or appurtenances thereto. In consideration of the premises, the party of the first part doth hereby sell, assign, transfer and set over to the party of the second part all his right, title and _ interest in the W. F. Coast note for §6,000 aforesaid, and in and to the brown horse aforesaid, and in and to the undivided half of the Brewster note and mortgage aforesaid, and does hereby covenant and agree to and with the party of the second part, his executors and administrators, that he, the party of the first part, will assume and pay and hold the party of the second part harmless from all debts, dues and obligations of the said firm of W. & J. Duke which were made or contracted, and which are now due, or to become due, from said firm in the state of New York, whether said debts were contracted in the name of the firm, or in the name of either member with intent to charge said firm and for its benefit.
“ The intent hereof is to vest in the party of the first part all the title which the said firm of W. & J. Duke has at the date hereof in and to its personal property and choses in action in the states of New York, Wisconsin and Florida aforesaid, excepting such articles and choses in action as are specifically hereinbefore excepted ; to vest in Joseph Duke, the party of the second part, a like title to the said W. F. Coast note of §6,000 and the undivided one half of the L. D. Brewster note and mortgage and to the said brown horse, and to bind the party of the first part to, pay all the debts of the firm in the state of New York, and to hold the party of the second part harmless therefrom and from all cost, expense and trouble by reason of the same or any part thereof.
“From the choses in action hereinbefore set over to the party of the first part, the party of the second part excepts the undivided six twenty-thirds (6-23) of a real estate mortgage for $2,400 made by Ebenezer Shoff and wife to W. & J. Duke, and also the same interest in contract with the McCalmut Oil Company for the sale to them of 173 acres of land on lot No. 5 in Bolivar, N. Y.,, and the party of the first part in consideration of the premises hereby assigns and sets over to the party of the second part all his interest as a member of the firm of W. & J. Duke in the six twenty-thirds (6-23) of the said mortgage and of the said contract.
“Witness the hands and seals of the parties hereunto affixed, the day and year first above written.
William Duke, [l. s.]
Joseph Duke, [l. s.]”

This action was commenced in 1887, by the executors of the will of the deceased partner against William Duke for an accounting of the partnership business between the formation of the firm and the time of Joseph’s death and afterwards. From the time of Joseph’s death the business of the firm was conducted by William, as survivor.

The complaint alleges, in substance, that William Duke became indebted to the firm during its continuance in the sum of $200,-000 for personal property. The plaintiffs asked for an accounting from the formation of the partnership, and demanded judgment for $100,000. The defendant, William Duke, answered the complaint, denying all indebtedness, and then' interposed the following answer:

“ And for a third and further answer to the said complaint the said William Duke says that prior to the death of the said Joseph Duke, mentioned in said complaint, he had been a joint owner with him in lands in various states of this union, including New York, Pennsylvania and Michigan; that they were also joint owners in various oil lands and oil interests in lands in the states of Pennsylvania and New York; that at the time of the death of the said Joseph Duke they jointly owned a large portion of said property in the states aforesaid; that for some years prior to the settlement of their affairs as hereinafter stated, this defendant and the said Joseph Duke had been co-partners in the business of producing oil and in lumbering and other business; that in the year 1881 they settled and adjusted as between themselves all their partnership and other affairs and made exchanges of property and adjustments as to their real estate; that afterwards and mostly (shortly) prior to the death of the said Joseph Duke and while he 'was entirely rational and competent to transact business, and with a view to the settlement of the affairs of William and Joseph Duke, and at- the request of the said Joseph Duke in view of the condition of his health at that time, all the affairs of William and Joseph Duke, both of partnership and of' an individual character, were carefully adjusted, settled and any indebtedness found due either party paid and satisfied, and in all instances where real estate the record title of which was in either the said William or Joseph Duke which belonged in fact to them as partners or joint owners, conveyances were made between the parties showing their rights respectively and all real estate transactions between them of an unsettled nature was settled and disposed of so that nothing remained at the death of Joseph Duke for either of the said Dukes to adjust or settle with each other.”

The answer contains some other allegations not material to the question presented on this appeal. The issues were referred to a referee for trial and determination, and a stipulation was made between the parties to the action that the referee should first pass upon the question as to whether the demands referred to in the complaint were settled.

The referee held that the sealed instruments above copied prevented parol evidence of said alleged settlement before or at the time of their execution which would enlarge or contradict those instruments ; and also decided that such evidence would not be available though it proved an agreement after the execution of the instruments, in the absence of a writing of equal dignity.

The learned counsel for the plaintiffs admits that on the last question McCreery et al., v. Day, 119 N. Y., 1; 28 N. Y. State Rep., 597, decides the question the other way. That case was not reported when the referee held as above. So that on this branch the first inquiry is confined to the question as to whether parol evidence of the settlement of the partnership affairs between themselves was admissible.

The instrument executed in 1881 was for the purpose of preventing confusion or ambiguity as to the property (mainly real estate) which belonged to the firm. It appears by the recitals in that instrument that much of the firm property for convenience was deeded to each of the partners without anything appearing in the conveyances indicating whether it was firm or individual property. The document was drawn for the purpose of removing obscurity or confusion on the subject. It also provides that upon demand either could obtain a conveyance of his interest.

The instrument of 1884 was consistent with that of 1881, and was in furtherance of its provisions. It specified the property in certain states which belonged to the partnership, mentioned certain items of personal property and directed the manner of division to the extent mentioned. Neither instrument states the amount of personal property which either member of the firm had received, the amount which one member was indebted to the other, or how the accounts'of the partners would stand between themselves in case of a settlement of all their dealings. It is obvious, therefore, that a settlement of the partnership dealings as between themselves showing how much one owed the other or how much each had' received in the course of their business was not embodied or intended to be in either of the writings. Parol evidence was admissible to show how the parties stood as between themselves, whether such an agreement was made before or after the making of the written instruments, or occurred at the same time.

In Morris et al. v. Whitcher, 20 N. Y., 41, it appeared that a preliminary contract for the sale of land had been made containing certain stipulations. The question was whether, after the execution and delivery of the deed, all the stipulations were merged and extinguished by the conveyance, so that parol evidence was admissible to show that there still remained stipulations unperformed. The general term held that all the provisions of the contract were merged in the deed. This was reversed by the court of appeals mainly upon the ground that the question was one of intention. This doctrine was re-affirmed in Smith v. Holbrook, 82 N. Y., 562 ; Metropolitan Life Ins. Co. v. Hall, 32 N. Y. State Rep., 92; 10 N. Y. Supp., 196.

In the case at bar, it is obvious that both of the sealed instruments contemplated an accounting between the partners when their own business between themselves was finally adjusted. But such accounting might be dispensed with by actual settlement between themselves. There would be nothing inconsistent between such an arrangement and the written instruments. There is no conflict in the authorities on this proposition. Finley v. Fay, 96 N. Y., 663; Dodge v. Zimmer, 110 id., 43; 16 N. Y. State Rep., 657; Batterman v. Pierce, 3 Hill, 171; Barry v. Ransom, 12 N. Y., 462; Hutchins v. Hebbard, 34 id., 24; Brigg et al. v. Hilton et al., 99 id., 517.

-- None of the cases cited by the learned counsel for the plaintiffs conflict with the above authorities.

The learned referee refused to consider the evidence admitted on the subject of the settlement between the partners and their accounts, and struck it out of the case, to which exception was taken. The cogency or weight of the evidence given on that subject was not, therefore, considered or passed upon by the learned referee. The learned counsel for the defendant, William Duke, claims that the evidence on that subject was so clear and overwhelming that, notwithstanding the refusal of the trial tribunal to pass upon" it, this court should hold that the settlement had been established. The learned counsel for the plaintiffs, on the other hand, insists that, assuming the evidence was admissible, it utterly failed to prove any settlement, or that the alleged parol agreement would prevent the necessity of an accounting. The learned counsel for the plaintiffs further urges that the payment of $10,000 to build the house for Joseph was simply the carrying out of the written agreement; while the counsel for the defendant, William Duke, contends that it was agreed to be paid, and paid in part execution of the parol agreement. In short, the counsel for the defendant, William Duke, insists that the proof upon the subject of the settlement is conclusive, while the plaintiffs claim that, even though it should all be admitted, it would utterly fail to establish any of the propositions claimed by the defendant.

It is a general rule that this court on appeal will not consider questions not passed upon below. Where evidence given in the trial court or tribunal is not considered or passed upon, there is, ordinarily, nothing for review in the appellate court. The learned referee reached the conclusion that the evidence was entirely inadmissible, and, therefore, refused to pass upon its weight or effect. The evidence and its effect should be passed upon and determined by the trial court, and then, if an appeal was taken, the merits would be before this court in a proper shape for review.

In Foote v. Beecher, 78 N. Y., 155-157, it was held that “ the party has a right to an adjudication upon legal evidence.” The evidence offered in the case at bar being admissible, it should have been received and considered.

Without expressing any opinion upon the weight or coger oy of the evidence on the subject of a settlement, the case should be resubmitted to the trial tribunal for a determination of that question upon the evidence offered, and such other evidence as may be given.

If the effect of the evidence received should be passed upon by this court, it would assume the functions of a trial tribunal by determining the weight which should be attached to evidence as an original proposition. The practice requires that such consideration by this court should be based upon a review of the findings of the trial court.

It follows that the questions above considered must be passed upon by the referee before the case can be properly considered by this court.

But there are other aspects of the case not argued upon the appeal or referred to by the referee in his able opinion. The complaint, as already shown, demands an accounting of all partnership matters between the formation of the firm up to the death of Joseph Duke, and afterwards. The complaint in its whole structure, including the demand for relief, proceeds upon the assumption that neither of the written instruments include or have any reference to individual dealings between the partners as to how the accounts would stand between themselves upon a final settlement. The answer is framed upon the same assumption. The complaint is entirely inconsistent with the position now taken by the plaintiffs, that all matters relating to the partnership, including dealings between its members, are covered or embraced within the written instruments or either of them.

The learned counsel for the plaintiffs now insists that the written instruments preclude the giving of parol evidence of the dealings between the members of the firm as to how accounts stood between them, while the complaint demands an accounting of all dealings, showing the state of the accounts between the partners from a time long before tha making of either of the written instruments. There was no doubt or confusion in the minds of the pleaders on either side as to the purposes of the action, nor was there any difference of opinion as to the right of a full investigation of the state of the accounts between the partners, notwithstanding the written instruments.

The learned counsel for the defendant claims that such a settlement has been had. He offered evidence to prove it, which was received. After that, it was all stricken out, upon the ground that such evidence would be inconsistent with the written instruments. As above shown, it was admissible, and the complaint and answer so assumed. The question as to whether an actual settlement of individual matters was made was stipulated to be first considered, the object being to save the time and labor of an accounting, if the referee found in favor of the settlement alleged by the defendant.

All the issues were referred to hear, try and determine. The accounting was as much within the issues as any other question ; in fact, it was the only real question in controversy. If that accounting was rendered unnecessary by actual settlement; in other words, if the parties have made their own accounting, the referee would have been relieved from that duty. If they did not, then the case could not be determined under the order of reference without a full accounting before the referee.

When the appeal from the interlocutory judgment was taken to this court, the issues referred to were undetermined; the trial was not completed. While a stipulation, for the reasons above stated, was made to try the question of settlement first, still there was nothing in it relieving the referee from the duty of considering and determining all the issues, if the question of the settlemen "between the parties was found in the negative. The order of reference has never been vacated, nor does the case show that there was any stipulation that it should be. It is obvious that while that order of reference remains unrevoked, another referee could not be appointed to take an accounting, for such appointment would be entirely inconsistent with the order of reference still remaining in full force. .

There is no practice authorizing an appeal to this court from the referee’s determination of only a part of the issues - referred. An appeal is never contemplated until a determination of all the issues.

The apparent importance of the case caused an opinion to be expressed as to the admissibility of the evidence rejected, for the purpose of aiding the referee in the further consideration of the case and preventing a radical error in making an accounting, if one should be entered upon. If an accounting should now be taken, and the referee should report in favor of the plaintiffs, and final judgment should be entered, the errors above pointed out, unless corrected, would require a reversal of the judgment. The court, therefore, notwithstanding the manner in which the case was brought before it, determined to express an opinion on the questions involved in the appeal for the purposes above stated.

Suppose that the referee should determine that the parties had settled, then final judgment would be entered. Suppose, on the other hand, he should adjudge against a settlement and go on with the accounting, on final entry of judgment either party could appeal, and the accuracy of all the referee’s findings would be properly before the appellate court.

There was a mistrial. The interlocutory judgment must be vacated, and the issues remitted to the referee to hear, try and determine, in pursuance of the order of reference.

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


source: Caselaw Access Project

author: Corlett, J.

license: Public Domain

text:
    Amos H. Cobb et al., App’lts, v. Jeremiah S. Ramsdell et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Poob—Omission to obtain justice’s ceutificate—Laws of 1881, chap. 531.
    In an action under chap. 531, Laws of 1881, known as the taxpayers’ act, to recover for a violation of the provision of the poor law that a written order from a justice of the peace shall be necessary before extending more than ten dollars’ relief to any poor person or family, it appeared that all the defendants were ignorant of the existence of the statute; that the overseer of the poor had acted in violation of the statute in giving relief; had presented a claim for expenditures, and that an annual town meeting had, by resolution, levied and assessed the amount of the claim upon the taxable property of the town. It was not found that the expenditures were improper except for the above violation of the law. Held, that an action by taxpayers could not be maintained, no fraud having been shown and no injury having actually resulted to the taxpayers.
    Appeal from a judgment entered in Monroe county, dismissing the plaintiff’s complaint.

      W. Martin Jones, for app’lts ; Walter S. Hubbell, for resp’ts.
   Corlett, J.

In January, 1886, this action was brought under the taxpayers act, chap. 531 of the Laws of 1881. The gravamen of the complaint was that the defendant, George A. Fellows as overseer of the poor of the town of Perinton in the county of Monroe, illegally expended large sums of money for the relief of the poor of the town, and that in many cases he expended more than the sum of ten dollars without an order allowing the same by a justice of the peace, or one of the superintendents of the poor of the county.

The action was tried at an equity term in the county of Monroe, and in May, 1889, the complaint was dismissed on the merits as to all the defendants. Judgment was entered on the decision, and the plaintiffs appealed to this court. The trial justice found the following facts and conclusions of law :

“1. That at all the times hereinafter mentioned the plaintiffs were and still are residents, free-holders and taxpayers in the town of Perinton, in the county of Monroe, state of Ñew York; that they are assessed in said town upon their property therein, for an amount exceeding $1,000, and they have the legal qualifications as plaintiffs to bring this action as prescribed by chap. 531 of the Laws of 1881.
2. That Jesse B. Hannan was, during the years 1884 and 1885, the supervisor of the town of Perinton, and that the defendant, Jeremiah. S. Ramsdell, was, during the same time, town clerk of said town; that the defendants, Orlando P. Simmons, Walter T. Gage, Harrison J. Wooden and Josiah G. Aldrich, were, during the years 1884 and 1885, and down to the time of the commencement of this action, justices of the peace in said town. That the foregoing persons constituted the board of town auditors of said town during the years 1884 and 1885, and down to the time of the commencement of this action.
“That the defendant John M. Williams was the collector of said town from the 4th day of March, 1885, down to the time of the commencement of this action; and that the defendant, George A. Fellows, was, during the year 1884 down to and after the 24th day of February, 1885, one of the overseers of the poor of said town.
“3. That on the 24th day of February, 1885, the defendant, George A. Fellows, rendered to the board of town auditors of said town, at their regular meeting, an account of all moneys received by him, as such overseer, for the relief of the poor of said town during the preceding year. That by said account it appeared that the said Fellows had expended for the relief of said poor persons and in or about his business as overseer of the said town the sum of $1,262.33. That he had received from the officers of said town the sum of $793.94; and by said account there appeared to be due to the said George A. Fellows, as overseer of the poor, the sum of $468.99. That he presented vouchers for said expenditures of money, and that the said board audited and allowed the said account the same as presented.
“4. That by said account it appeared that the said Fellows had expended for the relief of the poor persons and their families of said town more than the sum of ten dollars in each case in the following cases, and for the relief of the following named persons :
For the relief of Mrs. A. Dickenson............ ..... $173 48 it tt Mrs. L. Bucher.............. ..... 47 85 a tt Calvin Barnev................ ..... 14 50 a tt C. D. Titus and family........ ..... 45 73 tt tt Mrs. Barnes.................. ..... 51 78 tt tt Henry Gimble............... ..... . 17 75 tt tt Mrs. Mary Dickenson......... ..... 11 17 tt tt Patrick McGrail.............. ..... 19 92 tt tt Mrs. Polly Lyons............. ..... 16 70 a tt E. Milliman................. ..... 65 70 tt u Mrs. McOumber.............. ..... 26 75 tt tt Mrs. Holdridge............... ..... 5 70 tt tt Jenny Wiliiams' child......... ..... 10 00 tt tt John Thrasher and family..... ..... 51 20 tt tt Mrs. Bushnell................ ..... 43 20
“ That the said Fellows did not, before expending the said sums or any of them, apply to any justice of the peace of said town, nor were the facts and circumstances of any case examined by any justice of the peace of said town, nor did the said Fellows before making such expenditures have any order in writing from any justice authorizing any such expenditures. That in addition to the sums mentioned hereinbefore, the said Fellows expended, in each case, the sum of ten dollars over and above the amount stated in this finding to have been expended.
“5. That the said account so furnished was an itemized account and that in said account there was a large number of charges for fire wood furnished to such poor persons by said Fellows. The fire wood so furnished belonged to the said Fellows and was actually furnished by him, and was charged by him to said town at the market price at which he was accustomed to sell the same! That the said wood was actually furnished, and in good faith, by the said Fellows for the relief of such poor persons.
“ 6. That in said account so rendered to the board of town auditors, as aforesaid, the said Fellows claimed to be allowed the sum of ¿84.50 for personal services by said Fellows, rendered in the performance of his duties as overseer of the poor of said town, and that the amount so charged for personal services was audited and allowed by said board of town auditors. That the said charges were not excessive and were properly audited and allowed.
“ 7. That the annual town meeting of said town was held on the 4th day of March, 1885, and the following resolution was adopted: ' Resolued, that the sum of $468.99 be levied and assessed upon the taxable property of the town of Perinton to pay George A. Fellows, overseer of the poor of said town, that being the amount due him by said town for the relief afforded him for the relief of said persons in the years 1884 and 1885.’
“8. That said resolution was adopted at an open town meeting of said town. That voting by ballot was suspended about half-past twelve and said resolution was offered and passed before two o’clock of that day.
“ 9. That Jesse B. Hannan, Jeremiah H. Ramsdell, Orlando P. Simmons, Walter T. Gage, Harrison J. Wooden and Josiah G. Aldrich, on or about the 14th day of November, 1885, prepared a certificate, as required by law, of the town charges for the board of supervisors of said county. That in said certificate was included the amount of $468.99, found to be due the said George A. Bellows, and with interest computed thereon to the usual time of payment of said certificate, amounting in all to $492.44, and that said certificate was presented by said supervisor of said town to the board of supervisors of the county of Monroe.
“ 10. That said board of supervisors caused the amount of said certificate, including the $492.44, to be levied and assessed upon the said town of Perinton, and that the warrant for the collection of said taxes was made out and placed in the hands of the said John M. Williams, the collector of said town.
“ 11. That the clerk of the board of supervisors, before the commencement of this action, drew an order for the payment of the said sum of $492.44, which was delivered to the said George A. Bellows. That before the commencement of this action the said George A. Bellows, for a valuable consideration, duly sold and assigned the same to the defendant, William Bellows, who was, at the time of the commencement of this action, the owner and holder thereof.
“12. That the amount of said order has not been paid to the said William Bellows, nor to any other person, but the payment of the same .is now awaiting the result of this action.
“ 13. That in the year the said Bellows was overseer of the poor, and when he expended the sums of money mentioned in the fourth finding, of this decision, in excess of ten dollars for each family, none of the defendants were aware of the existing statute which made it necessary to procure a written order from a justice of the peace before expending more than ten dollars relief for any person or family, nor did the said George A. Bellows, nor any member of the board of town auditors, intend in any way to defraud the said town or allow any illegal charge.
“ That the said board of town auditors, when they allowed the said bill, supposed that they were acting within their power.
“ 14. That when the resolution above mentioned was passed at the town meeting, directing the payment of the said sum of $468.99 to the said George A. Bellows, an itemized statement was presented at the town meeting at open meeting, but the same was not read. That at the time of voting upon the said resolution it was not stated to the electors of the town that the auditing of said account was illegal, or that no orders of any justice of the peace had been made, as required by the statute, before the expenditure of the said money by the said Bellows; that no one present called attention to the fact or knew anything about the requirement thereof.
“15. That the defendant, Simmons, was not present when the said account was audited, nor did he take any part in the auditing of the same. That at the time of the commencement of this action said Jesse B. Hannan was made a party defendant thereto. -That after said action had been tried, and before it had been submitted, the said Hannan died.
“16. That at the time of the commencement of this action the plaintiffs believed that the record of the town meeting was correct, and it was not ascertained that said record was not correct until the trial of this action had been partly had. That said plaintiffs believed that the amount allowed the said George A, Fellows was illegally allowed. And that the said action was brought in good faith to settle the question as to the right of the overseer of the poor to expend over ten dollars for the relief of any one family without a written order from a justice of the peace.
“ I find as conclusions of law :
“ 1. That the said George A. Fellows had no authority to expend more than ten dollars for the temporary relief of any one person or family without a written order from one of the justices of the peace of said town.
“2. That the audit and allowance of the account of the said George A. Fellows, which admitted of the expenditure of more than ten dollars, for certain persons and families, without a written order from one of the justices of the peace of said town, was outside the jurisdiction of the said board of town auditors, .and so illegal and void.
“ 3. That the resolution hereinbefore mentioned, which was passed at the town meeting on the 3d day of March, 1885, was within the power of the said town meeting and that it was duly passed.
“4. That the said resolution was binding, and valid and that the board of town auditors are bound thereby and required to include. in the said certificate the said sum of $492.44 to pay up the said Fellows, that being the amount found to be due him as aforesaid.
“ 5. That the order issued for the payment of the said sum was legal and properly issued, and the same is a valid order in the hands of the said William Fellows, the assignee thereof, and that the amount of said order, held to await the result of this action, should be paid to the said William Fellows.
“ 6. That the defendant, William Fellows, is entitled to judgment' that the said money should be paid to him.
“ 7. That all the defendants are entitled to judgment that the •complaint in this action should be dismissed on the merits, but without costs.”

The evidence warranted the above findings. The trial court properly disposed of the case. It is entirely clear that no fraud was intended or practiced by the overseer of the poor, or any other officer of the town.

The formality of getting a certificate of the justice of the peace or the superintendent of the poor for expenditures of more than ten dollars was omitted for want of knowledge of the existence of the statute requiring it. But nothing was paid or allowed which had not been honestly expended for the benefit of the poor. The omission to obtain a certificate resulted in no practical wrong or the infliction of any pecuniary damage or injury.

The taxpayers’ act was not intended to include cases of inadvertence or mistake, which resulted in no damage. The questions in controversy on the trial were earnestly and sharply litigated. Numerous rulings were made and exceptions taken. But no errors were committed which would warrant a reversal.

The judgment must be affirmed.

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


text:
    In the Matter of the Will of Samuel Wilcox, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Will—What is a legal execution.
    A testator drafted his own will in ink of a rather light color, also an attestation clause in proper form. He was a man of methodical habits. The ink at the store where the will was executed was very black. At this time the testator inserted the date. The date and the signatures of the testator and of the subscribing witnesses were in this dark ink. Bach witness testified that the testator read over the attestation clause to him, and one said the testator requested him to sign it, saying that it was his will. One testified that the paper was not so folded as to obscure the testator’s signature if it had been signed. Neither could testify positively that the will was signed by the testator. Held, that the due execution of the will was sufficiently proved.
    Appeal from a decree of the. surrogate’s court of Monroe county denying probate of the will of Samuel Wilcox, deceased.

      C. A. Shuart, for George Hubbell; Horace Mc Guire, for Hannah Hubbell; C. D. Kiehl, for contestants.
   Corlett, J.

Samuel Wilcox died on the 26th day of June, 1890, at Mendon, in the county of Monroe, leaving an estate valued at $75,000 in real and personal property. He was a bachelor. On the 6th day of April, 1883, he made his last will and testament, which was drawn by himself in his own hand-writing, except the printed portions. His signature to the will was genuine. The attestation clause was also written by himself, except the printed portion. The writing in the body of the will was in light colored ink, but its date and the signatures of the testator and subscribing witnesses were in black ink. It appeared that the decedent drew the will before its execution. The date was inserted by the testator. On the day it was completed the testator went into a store where the subscribing witnesses, Charles Hill and J. G. Stiles, were. No other persons seem to have been present.

When the instrument was offered for probate the_ subscribing witnesses were sworn before the surrogate, and their testimony was as follows:

Charles 0. Hill, being duly sworn and examined by Mr. McGuire, testified as follows: I reside in Mendon and have lived there for twenty-six years; I knew Samuel Wilcox in his lifetime ; in 1883 I was employed in the store of Smith Porter as a clerk; there was an occasion when Samuel Wilcox came to our store with a paper he had with him.

L

Paper shown witness. ,

Q. Is that the paper he had with him at the time he called at your store ? A. That is my signature there; I identify the paper by my signature; that is my signature attached to the paper.

Q. Is that the signature of Mr. Wilcox; you know his handwriting? A. Yes, sir; I know the handwriting of Mr. Wilcox; I can only refresh my recollection as to the date of the occurrence by seeing the paper; Mr. Stiles, Mr. Wilcox and myself were present at the time this paper was presented; no one else that I remember, and this is my signature to the paper.

Q. State what took place there as near as you can recollect when that paper was signed ? A. All that I can recollect was the bottom of the will being read; Mr. Wilcox read it over to me ; that is all I recollect about it.

Q. You recollect it was signed ? A. Yes, sir.

Q. Anything else ? A. No, sir.

Q. Do you recollect whether anything was said.in regard to what the paper was ? A. No, sir; I had known by his reading the latter part of it; all I recollect is his reading the latter part of the will; he read the attestation clause, and after that was read I affixed my signature; Mr. Stiles was present and Mr. Wilcox.

Witness shown the alleged will.

Q. I call your attention to the color of the ink in the body of the will; do you notice it is light color? A. Yes, sir; I see there are certain words and figures in a dark color ink; the dates and signatures look to be all the same ink ; they are darker than the rest of the ink; the dates and all the signatures are all in black ink, and the body of the will is in lighter colored ink; this will was signed at the desk in the store; we kept at the desk a jet black ink.

By the Court: He has not said that Mi. Wilcox signed it in his presence, or that the other witness did.

By Mr. McGuire:

Witness continues: There was no one present except Mr. Stiles, Mr. Wilcox and myself that I know of; I could not state whether or not the signature of Mr. Stiles was made "at the same time as mine ; I think it was; he was there at the time.

Q. Where were you three persons you have described standing ? A. I could not tell you that.

Q. Was it at the desk, or where? A. It was at the desk; I do not know whether Mr. Wilcox said anything in regard to the paper, or what it was, more than what he read of it.

By the Court. Show him the signature.

By Mr. McGuire: Q. What do you say about the signing of the will by Mr. Wilcox at the time when you signed it yourself ?

By the Court: Look at the name, and see whether you saw Mr. Wilcox sign it ? A. All I can say is that I should not have signed it if he had not.

Q. Did you see him write his name there ? A. I could not ■say whether he did or not.

By the Court: Q. Was his signature visible when you signed your name? A. Yes, sir; there was something there; but furtlier than that, it was so long ago, I haven’t much recollection of it.

By Mr. McGuire: Q. That is Mr. Stiles’ signature written under yours ? A. I should think it was ; I have no recollection whether Mr. Wilcox called me in behind the desk for any purpose that morning.

By the Court: Q. Was the paper folded up or spread out when you signed it? A. I could not tell you.

Cross-examined by Mr. Kiehl.

I was eighteen years old when I signed this will; all I remember now of this will is that Mr. Wilcox read the attestation clause. I could not tell you word for word, but I remember it was what Mr. McGuire just read; referring to the attestation clause. I have no recollection that he said anything to me that this was his will; he might have done so.

Q. Did he say anything to you or have you no recollection of his saying to you that this was his last will ? A. No, sir; I have no recollection of seeing his signature.

Q. Did he acknowledge his signature to you; have you any recollection of his doing so ? A. No, sir; I have no recollection of his writing his signature at that time. I have a recollection of Mr. Stiles signing it; I ain’t expert enough to pick out the different colors of ink in the body of the will; I can see a slight difference ; some is shaded heavier than others.

Re-direct by Mr. McGuire.

Q. You said on your direct examination that at the time Mr.. Wilcox read this attestation clause over to you, you saw some thing opposite that seal? A. Yes, sir.

Mr. Kiehl objected.

He has said positively that he has no recollection of Mr. Wilcox signing it; also that it is immaterial.

Objection sustained on the ground that the question is leading.

By Mr. McGuire: Q. State whether or not you saw this seal attached to this instrument; whether it was on there as it is now ? A. I have no recollection of it at all.

Q. You see the seal now? A. Yes, sir.

By the Court: Q. Did you see it at the time of this transaction ? A. I have no recollection of it.

James G. Stiles, being duly sworn and examined by Mr. McGuire, testified as follows: I reside in Mendon; have lived there since 1867; I knew Samuel Wilcox in his life time; I could not say whether I would know his handwriting or not; I have never seen much of his writing; I think I have seen him write; I was present on the 6th day of April, 1883, at Mr. Porter’s store on the occasion testified to by Mr. Hill.

Q. Won’t you state what took place, everything that was said to you or what was done in your presence at that time ? A. He asked me if I would sign this will and be a witness to it, and I said yes, I would; that conversation was in the store; Mr. Hill, Mr. Wilcox and I think Mr. Porter was there; we were standing at the back end of the store near the desk; he asked me if I would sign the will as a witness, and I told him I would; I went in behind the desk and signed it; he read over the last clause; I think Mr. Hill was there; I think I heard him say something to Mr. Hill about it; Mr. Hill signed it first; he requested Mr. Hill to sign it as a witness.

The alleged will is here shown the witness.

That is my signature attached to that paper; I could not say whether it was Mr. Hill’s signature or not; I was present, but I am not much acquainted with his handwriting; I saw Mr. Hill in behind the desk there; we were all three standing pretty near together; I would not say positively whether I saw Mr. Wilcox sign the will or not; my impression is that Mr. Wilcox’s name was there before I signed mine, but I am not positive.

By the Court: Q. Do you remember whether that paper was folded up or spread out when you signed it? A. The first sheet was folded up so that the lower half of the last sheet was visible.

By Mr. McGuire: Q. Do you notice the colored ink in which the date and all the signatures are in? A. I notice the black ink; it is darker than the body of the will; I notice the word six, the date; the word eighty-three is in lighter ink, the same as the body of the will; I do not know as that circumstance refreshes my recollection at all in regard to the making of the signatures; the attestation clause was read over before I signed it; I think the seal was attached to the instrument at that time; I never witnessed any other will than this; I had known Mr. Wilcox a good while; I always considered him a shrewd kind of man; a careful man; he did transact his own business generally.

By the Court: Q. There is a signature opposite that seal now? A. Yes, sir.

Q. Can you say whether that was there at the time of the transaction which you have testified to when the lower clause was read over to you, and you signed the paper ? A. I cannot.

Q. Have you no recollection of seeing it? A. Ho, sir.

Q. Mr. Wilcox did not point it out to you and tell you it was his signature? A. Hot that I remember of.

By Mr. McGuire: Q. Did you state on your direct examination that you thought it was there ? A. Ho, sir; I thought the seal was there.

Q. What did you say about the signature itself ? A. I do not remember whether there was anything said about it; I signed a statement there that this will was signed in my presence.

Q. What do you say about that? A. I could not tell you now ; I cannot say whether it is true or not; I remember that I read it over, this last clause; I looked it over myself and signed my name; I did not look the paper over, but I looked this clause over, and signed my name, to see what I was signing.

Q. That clause was, that his name was signed in your presence? A. It shows for itself, but I do not remember whether his name was there or not.

Cross-examined by Mr. Kiehl:

I have no recollection of Mr. Wilcox signing that will at all; I have no recollection that Mr. Wilcox acknowledged that signature to the will or pointed it out to me in any way; I have no recollection of seeing that signature; I think I have a recollection that Mr. Wilcox said to me that that paper was his last will; he told me he wanted I should witness his will.

Q. All he said to you is what you have testified to in your direct examination to the effect that he asked you to sign his will and be a witness ? A. Yes, sir; we were in the back part of the store.

Q. When you came to the desk where you signed your name he did.not tell you that that paper was his last will, at the desk? A. Ho, sir; I could not say; I have no recollection of that.

Q. All you recollect is what I have called your attention to as occurring in the back part of the store, where he asked you to sign his will and be a witness to it? A. Yes, sir.

Q. And you said yes, and went to the desk and signed your name as it appears now, and there was nothing said to you by Mr. Wilcox at the desk? A. Yes, sir.

Redirect, by Mr. McGuire:

Q. When Mr. Wilcox asked you to sign the will, did he take out that paper ? A. The paper lay there on the desk; he read over this clause and I signed it; I signed it in his presence; he stood right back of me; I could not say about Mr. Hill; I remember Mr. Wilcox standing back of me and Mr. Hill close by.

By Mr. Kiehl: Q. When you were in the back part of tíre store, and Mr. Wilcox was talking to you, and asked you what you have testified to, he did not have the will with him at that time, the will was lying upon the desk? A. I think it was. I didn’t see it until I came up to the desk to sign it.

By Mr. McGuire: Q. Was it lying upon the deskin front of you when he asked you to sign it? A. The desk was in the back part of the store, and the paper was lying upon the desk.

By Mr. Kiehl: Q. Did he point it out to you ? A. He put his finger on it in this way (illustrates), and said I want you to sign that, and said it was his will.

After the death of Wilcox, the will, fully finished, was found in the safe among the deceased’s papers, carefully folded. He was a methodical man, with business habits.

It will be observed that each of the subscribing witnesses testified that the deceased read over to them the attestation clause, which is perfect in form, and that he requested each of them to sign it as subscribing witnesses, and that it was his will. Their testimony also tends to show that the paper was not so folded as to obscure or conceal a full view of the testator’s signature. One of them thinks he saw it; the other appears to have little or no recollection on the subject.

The will was offered in evidence before the surrogate, and rejected. It was competent evidence, and must be treated on this appeal as before the surrogate and this court. The surrogate made the following findings:

“1. That Samuel Wilcox died on the 26th day of June, 1890, at the town of Mendon, in the county of Monroe, and state of Hew York, at the age of sixty-four years, leaving real and personal property within said county, and leaving as his heirs-at-law and next of kin the persons named in the petition herein.
“ 2. That he left a paper in his own handwriting purporting to be his last will and testament, which bears date the 6th day of April, 1883.
“ 3. That Charles Hill, of Mendon, R. Y., and John Gr. Stiles, of Mendon, R Y, signed said paper as attesting witnesses thereto, at the request of said Wilcox and in his presence.
“ 4. That said Samuel Wilcox did not acknowledge to said witnesses that he subscribed said paper.
“ 5. That said Samuel Wilcox did not subscribe said paper in the presence of said witnesses.
“6. That said witnesses at and before they subscribed said paper as attesting witnesses did not see or identify the signature of said Samuel Wilcox to and at the end of said paper, nor was their attention called to the same by said Wilcox.-
“ 7. That at the time said witnesses signed said paper, said Samuel Wilcox declared said paper to be his last will and testament, by reading over to them the attestation clause at the bottom of said instrument.
“ 8. That at the time of the attempted execution of said instrument the said Samuel Wilcox was of sound mind and not under restraint."

Section 2620 of the Code of Civil Procedure provides, among other things, that if the subscribing witnesses have forgotten the occurrence and testify against the execution of the will, it may nevertheless be established upon proof of the hand-writing of the testator and of the subscribing witnesses, and also such other circumstances as would be sufficient to prove the will upon the trial of an action.

In Brown v. Clark, 77 N. Y., 369, affirming 16 Hun, 559, and Rugg v. Rugg, 83 N. Y., 592, it was held in substance that the failure of recollection of subscribing witnesses will not defeat probate where the attestation clause and the surrounding circumstances satisfactorily establish its execution.

To the same effect is Matter of Cottrell, 95 N. Y., 329, and Matter of Hunt, 110 id., 278; 18 N. Y. State Rep., 118. In the case at bar the circumstances attending the signature of the subscribing witnesses, including the color of the ink, indicate that the testator and the witnesses signed on the same occasion, using the same ink. The testator was intelligent and carefully read the attestation clause, stating in effect it was his last will and testament, and asked them to sign it One of them states in substance that he would not have signed it after hearing the clause read unless the facts stated in the attestation clause existed. Under these circumstances the execution of the will was satisfactorily established, and it should have been admitted to probate.

In Matter of Mackay, 110 N. Y., 611; 18 N. Y. State Rep., 558, it simply appeared that at the time of the alleged publication the decedent stated to the witnesses that he had sent for them to sign his last will; that he presented to them the instrument, stating it was his will, and it was all right awaiting their signatures, but he handed it to them so folded that they could not see his signature or the seal. They were not able to see any of the writing except the attestation clause. It was held that the will was not properly executed. In that case it did not appear that the will was in the hand-writing of the decedent, or that he read to the witnesses the attestation clause.

The facts in the other cases cited by the learned counsel for the respondents have equally important or like limitations.

In the case at bar, it is matter of legitimate and almost necessary deduction that a person of decedent’s careful habits would not deliberately read the attestation clause, drawn by himself, to the subscribing witnesses, unless the facts therein recited were true. Ink of the color appearing in the date was the only article there used. It was the same in the signatures of the subscribing witnesses, the date and hand-writing of the testator. Under such circumstances, it would be a forced construction to hold that all this deliberation and particularity was had unless all the facts recited in the attestation clause to which particular attention was called existed and were seen at the time the witnesses signed. Bach case must be determined upon its own facts. Those presented before the surrogate in the case at bar irresistibly lead us to the conclusion that the evidence before the surrogate showed that all the statutory requisites were complied with.

Section 2586 of the Code gives to this court the samé power to decide and pass upon questions of fact as the surrogate had.

It follows that the decree of the surrogate must be reversed, and the will admitted to probate.

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


text:
    Stephen Patterson, an infant, by his guardian, Resp’t, v. Stephen Kelly, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Services—Defense.
    In an action for services the second defense of the answer alleged that the defendant had taken the plaintiff as a juvenile delinquent from the managers of the State Industrial School under a written agreement; that he had kept and performed all its covenants; that the services mentioned in the complaint were performed under the agreement and not otherwise; that the plaintiff left defendant’s service without just cause and refused longer to live with, be instructed by or work for him. On demurrer, Held, that this was a defense to the action.
    Appeal by the defendant from an interlocutory judgment sustaining the plaintiff’s demurrer to the second defense of the amended answer.

      Horace L. Bennett, for app'lt; George A. Carnahan, for resp’t.
   Corlett, J.

The complaint states in substance that the defendant is indebted to the plaintiff for work, labor and services, consisting of general farm work, between the 6th day of April, 1887, and the 22nd day of April, 1890, and that the fair value is $400.

The plaintiff further alleges that his father is living, but that he deserted his family, neglected to support them, and that the plaintiff received no benefit or support from either of his parents. Judgment is demanded for $400.

The first answer amounts to a denial of the material allegations of the complaint.- The second is as follows:

“For his second defense to the cause of action set forth in said complaint the defendant alleges on information and belief that on the 6th day of April, 1887, the plaintiff was an infant fifteen years, seven months and eleven days old, a juvenile delinquent and an inmate of the State Industrial School, formerly designated ‘‘The Western House of Refuge for Juvenile Delinquents,’ and situated at the city of Rochester, N. Y.
“ That on said 6th day of April, 1887, and while the plaintiff was such juvenile delinquent and inmate, the manages of said State Industrial School, with the consent of the plaintiff and in pursuance of the statutes in such case made and provided, duly placed the plaintiff during his minority with the defendant, in the employment of farming, and caused him to be instructed in such branches of useful knowledge as were suitable to his years and capacity, under an agreement in writing which the defendant then executed and delivered to them, and they accepted, of which the following is in substance a copy, as the defendant is informed and believes, to wit:
‘Superintendent of the Western House of Befuge:
“Dear Sir.— I, Stephen Kelly, of the town of Ontario, county of Wayne, state of New York, by occupation farmer, do hereby agree with the managers of the Western House of Refuge for Juvenile Delinquents, to take Stephen Patterson, an inmate of said House of Refuge of the age of" sixteen years, August 17, 1887, into my family until he becomes of age, and provide him with sufficient and suitable wearing apparel, board, washing, nursing and medical attendance, and will cause him to be instructed in reading, writing, spelling and the general rules of arithmetic, and instruct him to the best of my ability in the- business of farming, and fit him for carrying on the same with advantage to himself and those who may employ him; and at the end of said term will furnish him with a new bible and a new suit of clothes suitable for Sunday or holiday use, in addition to the suit or suits previously furnished, and will give him $100 in money.
‘ Stephen Kelly.
‘ Rochester, N. Y., April 6,1887.
‘We, the undersigned, citizens of the town of Ontario, county of Wayne, state of New York, certify that we are well acquainted with Mr. Stephen Kelly, whose name is signed to the above agreement, and know him to be a man of good moral character, perfectly responsible, possessing the requisite qualifications for training up such a boy to become a useful citizen, and fully competent and able to fulfill the above agreement in every respect.
‘ Ontario, April 4,1887.
‘F. A. Hill,
Supervisor.
‘Russell Johnson,
Justice of the Peace.
‘Thomas Hetzel,
Clergyman.’’
“ That under and by virtue of the said placing and agreement, the defendant thereupon took the plaintiff into his family and kept and performed all the covenants and conditions thereof on his, defendant’s, part; and that the services mentioned in the complaint of the plaintiff herein were rendered and performed under said placing and agreement, and not otherwise, but the said managers and the said plaintiff failed to perform the conditions thereof, in that before the plaintiff became twenty-one years of age, and without any just cause or provocation, the plaintiff on or about the 22d day of April, 1890, quit and abandoned the defendant’s family and employ, and refused to live with, be instructed by, or work for the defendant any longer. ”

The third answer is payment, and the fourth, counterclaim. The reply denies the counterclaim.

The plaintiff demurred to the second answer, “ upon the ground that said defense is insufficient in law upon the face thereof.”

The respondent’s position is that the contract was an attempted indenture of apprenticeship; that, therefore, it was absolutely void for various reasons stated in the brief of the learned counsel, and that the plaintiff could recover on the quantum meruit. Numerous statutes and authorities are cited in support of this contention.

The appellant’s position is that the plaintiff was legally apprenticed to the defendant; that he was regularly placed with the defendant by the arrangement set forth in the defense; that it was binding upon the plaintiff so far as performed, and was valid under the statute of frauds; also, that the defense demurred to was good upon the facts alleged in the complaint and stated in the second answer. The appellant also claims that upon the facts appearing in the record there could be no recovery on the part of the plaintiff until he repaid what he received, and that there was no implied contract to pay the plaintiff. Various statutes and authorities are cited in support of this position.

The demurrer was sustained by the special term upon the ground that the contract of apprenticeship was void, and that, therefore, the plaintiff was entitled to recover on the quantum meruit. The question as to whether the plaintiff upon the facts appearing in the record was entitled to recover on the quantum meruit does not appear to have been considered or passed upon by the learned justice before whom the demurrer was heard. The answer demurred to, as above shown, stated that the defendant kept and performed all the covenants assumed by him; that the services mentioned were rendered under the agreement, and not otherwise; that the plaintiff left without just cause or provocation and abandoned the plaintiff’s family and employ, and refused to longer live with, be instructed by, or work for him. The demurrer admits the statements in the answer.

Under the authorities, it is very clear that upon these facts the plaintiff is not entitled to recover upon the quantum meruit.

In Williams v. Finch, 2 Barb., 208, it was decided on somewhat similar facts that the plaintiff could not recover. The same was held in Maltby v. Harwood, 12 Barb., 473. This doctrine was reaffirmed in Potter v. Greene, in this department, 39 Hun, 72.

In the Maliby case, the decision was put upon the ground that an implied promise can never be assumed when it is manifested by the conduct and mutual situation of the parties that it was never intended. To the same effect is the Williams case. And in the Potter case, the justice delivering the opinion says: “Whatever view may be taken of this instrument and its effect, no promise on the part of Greene can be implied to pay for services of the plaintiff while the latter voluntarily remained with him in the relation which such agreement of apprenticeship purported to place them, in respect to each other. The implication of a promise to pay was repelled by the fact that the plaintiff was with him, and in his service pursuant to the terms of that instrument.”

The learned justice then cites the cases above referred to. Those cases are decisive of this appeal. The second answer clearly states that all the services were performed in pursuance of the instrument quoted. The facts therein alleged expressly rebut an implied promise to pay for the services.

Without considering the other questions in the case, the interlocutory judgment must be reversed.

Interlocutory judgment reversed, with costs, with leave to plaintiff to withdraw the demurrer and to reply if so advised.

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


text:
    Valentine Voght et al., App’lts, v. The City of Buffalo, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Municipal corporations—Assessments—Power op city engineer to alter contract.
    A city railroad had laid through a street a track five feet in width and had a right to lay another similar track. The common council of the city directed the street paved to a width of forty-two feet. The city engineer changed the contract as ordered and let it to pave thirty-seven feet, subtracting the width of the track. Held, that he had no such power, and that an assessment based on such a letting must be set aside.
    3. Same—Assessors—Erroneous estimate op damages.
    The assessors of the city, in estimating the assessment, determined that the side of the street upon which the track was laid was less valuable than the other side upon which the company had a right to lay it. Held, error.
    3. Same—May recover expense of paving between railroad tracks.
    A city may, in making such an improvement, pave the space occupied by the tracks of a railroad company and recover the expense from it.
    Appeal by the plaintiffs from a judgment based upon the decision of a special term in Brie county.

      Frank R. Perkins, for app’lts ; Philip A. Laing, for resp’t.
   Corlett, J.

On the 6th day of July, 1887, the common council of the city of Buffalo, by resolution, conferred authority upon the Buffalo Bast Side Street Bailway Company to construct its road from the Williamsville road westerly along Broadway with double tracks to Washington street. Double tracks were constructed from Washington street to Fillmore avenue, from thence easterly but a single track The width of the track is about five feet.

On the 20th day of June, 1887, the common council of the city by a two-thirds vote adopted a resolution to the effect that the city intended to order Broadway repaved forty-two feet wide with first-class Medina sandstone, the pavement to be from Fillmore avenue eastward to the end of the sewer in Broadway, and the city engineer was directed to prepare plans and specifications and advertise for bids.

On the 16th of January, 1888, the city engineer reported to the council various proposals made to him to repave Broadway forty-two feet wide in the manner specified by the common council. Albert Krause offered to do the job for $40,270. His was the lowest bid. The council decided to accept it for repaving Broadway forty-two feet in width. The engineer made a contract with Krause for the amount of his bid to repave thirty-seven feet wide instead of forty-two as authorized. The five feet omitted was the space between the tracks of the street railroad, which has not been repaved. The assessment made was to collect this amount for repaving thirty-seven feet in width. The common council at no time authorized the repavement to be less- than forty-two feet.

The assessors estimated the land on the north side of Broadway at $1.25 more per foot than upon the south side, upon the ground that the south side was encumbered by a track while the north side was not. No resolution was passed by the common council specifying the extent to which either side would be benefited in proportion to the other. The determination of that question was by the assessors, and the result is simply indicated by the way in which the assessment was made.

This action was brought by the land owners along the street to set aside the assessment, based upon the alleged jurisdictional irregularities. The central one is that the thirty-seven feet repavement was never authorized by the city. It is further claimed that the assessment is irregular and void because the assessors proceeded upon a wrong theory in estimating the value of the land, the claim on the part of the plaintiff being that the street railway had power at any moment to double its track, and when it did the reasons for discrimination between the value of the north and south lands would be removed.

It was further insisted that the publication was defective in not being published five consecutive days, it being omitted on Sunday.

A trial was had at special term, which resulted in a dismissal of the complaint, and from the judgment entered upon this decision the plaintiffs appealed to this court.

The city engineer had no power to dispense with any requirement which the corporation imposes. Smith v. New York, 10 N. Y., 504-508; Smith v. City of Newburgh, 77 id., 130; Matter of Garvey, id., 523.

All the cases are to the same effect. Matter of Burmeister, 56 How., 416 ; Ziegler v. Flack, 22 J. & S., 69 ; Ottendorfer v. Fortunato, 24 id., 495; McDonald v. The Mayor, 68 N. Y., 23-28.

Ho reason is seen why the engineer might not have made a contract for paving ten feet instead of thirty-seven. If he had power to omit five feet, he could have omitted as much as he pleased. This point was decided in Cram et al. v. City of Buffalo, affirmed 36 Hun, 638. The justice at special term stated: “If the sewer could be commenced eight hundred feet from the point mentioned and still be within the declared intention, it could be commenced eight thousand feet from that point or any other place along the ■designated line.”

The familiar rule that a statute which can result in the taking of property and divesting of title must be strictly construed, is .applicable to the case at bar. Stebbins v. Kay et al., 123 N. Y., 31; 33 N. Y. State Rep., 72 ; Matter of Pennie, 45 Hun, 391; 10 N. Y. State Rep., 90; affirmed, 108 N. Y., 364; 13 N. Y. State Rep., 790.

All the cases are to the same effect. Merritt v. Portchester, 71 N. Y., 312; Matter of Commissioners of Central Park, 35 How., 277; State v. Jersey City, 27 N. J. (3 Dutch.), 536; City of Henderson v. Lambert, 14 Bush (Ky.), 24; Owners of Ground, etc., v. Mayor, etc., of Albany, 15 Wend., 374.

In Gilmore v. Utica, 121 N. Y., 561; 31 N. Y. State Rep., 880, it was held that it is the duty of a city to- keep its streets in repair, and it cannot relieve itself from this liability because certain street railways are required to bear a portion of the expense. To the same effect is People ex rel. Markey v. Brooklyn, 65 N. Y., 349.

After repaving, the city could recover from the railway company its share of the expense. City of Brooklyn v. Brooklyn R. B. Co., 109 N. Y., 301.

In People ex rel. James v. Gilon et al., 33 N. Y. State Rep., 842, it was held that an assessment of adjoining owners including tracks which should have been assessed to the street railway would be out of proportion and was set aside on that ground. The question came up there on certiorari. ,

The city should have exacted from the street railway its just proportion of the expense for re-paving. Perhaps the council assumed that after the completion of the job that corporation would pay its proportion of the $40,270.' The trouble in the case at bar is that the contractor got the full sum for re-paving thirty-seven feet, when in fact no contract was authorized to pave less than forty-two feet. Whether the council would have accepted Krause’s bid at the sum named for paving thirty-seven feet is not before the court. Ho such contract was contemplated or authorized by the council

If the engineer under authority to pave forty-two feet for a certain sum could make a contract to pave a less width for the same price, it is evident that competitive bids would be useless. The engineer could secure the job to a favorite contractor.'

Some evidence was admitted on the trial showing that it was -the custom or to omit from the contract the between the rails. It is unnecessary to say that the right to take the property of a citizen cannot be determined- by custom or usage. The power is statutory and cannot be divested except by complying with its provisions.

No-reasons are shown for assessing the lands on the north side of the street $1.25 more than those on the south side. The railroad had as much right to occupy the north side of the road for its tracks as the south side The exercise of this privilege by the company rested in its own discretion, and the lands on the north side could not be benefited,because a track which the company had a right to lay had not actually been built. There was no reason for making a discrimination between the value' of the two sides upon that ground. The assessors, therefore, (assuming they had power) adopted an erroneous principle in imposing heavier burdens upon the lands on the north side than those upon the south.

For tire reasons above stated, the judgment must be reversed and a new trial granted.

Judgment reversed and new trial granted, with costs to abide the final award of costs.

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


author: Finch, J.

text:
    John Power, Ex’r, Resp’t, v. John Speckman, Impl’d, App’lt.

      (Court of Appeals,

      Filed May 6, 1891.)

    1. Executors and administrators—Appointment of, cannot be questioned COLLATERALLY.
    Gertrude Burmester renounced her right to administration on the estate of D. O., but was subsequently appointed administratrix after an appointment of the public administrator. Thereafter a will was found and probated, and letters thereunder were granted to plaintiff, who brings this action against defendant’s surety upon Gertrude Burmester’s bond to obtain money in the latter’s hands. Held, that as her petition stated that there was no person prior entitled to be cited, in the absence of any proof of fraud or collusion, her appointment could not be questioned collaterally, and the order of the surrogate appointing plaintiff was not void, or without jurisdiction, because of the previous appointment of the public administrator, and her sureties were liable so long as her appointment remained unrevoked.
    2. Same.
    However Gertrude Burmester originally received the money, she held it as administratrix the moment her letters were issued, and since she became liable to deliver the money to the executor, upon his appointment, and the revocation of her own letters, the decree of the surrogate was within his jurisdiction, and bound her as well as her sureties.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff, entered upon trial by the court without a jury.

      Sawyer & Getty, for app’lt; Lewis J. Conlan, for resp’t.

       Affirming 34 N. Y. State Rep., 716.

   Finch, J.

One of the sureties of the administratrix, who has been sued for her default, seeks to reverse the recovery against him upon two grounds. He claims that her appointment was void, and that she has not been required to account. The case shows that Mrs. Overbeck was supposed to have died intestate, and that her sister, Mrs. Burmester, was the only next of kin entitled to administration; that she renounced, and the public administrator was appointed, and letters duly issued to him. He seems to have entered upon his duties, and out of a small fund which came to him, amounting to less than $500, to have paid the funeral expenses. Nevertheless, about a year later, Mrs. Burmester presented a petition to the same surrogate for her own appointment as administratrix. It was duly verified and established all the jurisdictional facts necessary to validate the order which he made appointing her administratrix. The Code provides, after declaring the general jurisdiction of the surrogate’s court, that where its decree is drawn in question collaterally, and the necessary parties were duly cited or appeared,the jurisdiction is presumptively and in the absence of fraud or collusion, conclusively established by the allegation of jurisdictional facts contained in the petition. Sec. 2473. That document showed that there was no person prior entitled to be cited, and the order, therefore, in the absence of any proof of fraud or collusion, could not be questioned collaterally. We have upheld such an order where the person alleged to have died intestate was in fact living, Roderigas v. East River Savings Institution, 63 N. Y., 460; O'Connor v. Huggins, 113 N. Y., 512 ; 23 N. Y. State Rep., 275; where there had been no citation to. the widow, or renunciation by her, Kelly v. West, 80 N. Y., 139; and have asserted its conclusive character where the cause of action arose under the statutes of another state. Leonard v. Columbia Steam Navigation Co., 84 N. Y., 48.

The order of the surrogate appointing Mrs. Burmester was, thus, not void or without jurisdiction because of the previous appointment of the public administrator. That fact simply made it erroneous or irregular and liable to be reversed on appeal or vacated on a proper application. Even in the latter case, if Mrs. Burmester could furnish some lawful reason within, the requirements of the Code for the revocation of the prior letters, they might have been revoked and her own authority permitted to stand. It was upon that appointment of Mrs. Burmester that the bond of the defendants was executed, and since the appointment was not void the sureties became liable for her proper performance of duty so long as it remained unrevoked. She could not deny the character she had voluntarily acquired, however it might be with others.

But in her petition Mrs. Burmester described the property of the intestate as amounting to $2,800, which was a very much larger sum than had gone into the hands of the public administrator, who had received it from her as being the whole estate, and his suspicions were thereby aroused. He filed a petition with the surrogate in which he alleged his own appointment and authority and the possession by Mrs. Burmester of the $2,800 belonging to the intestate which she had described in her petition, and asked for a citation requiring her to show cause why she should not pay it over to him. He did not call her administratrix, for in setting up his own prior right he could not be expected to recognize hers. But when she appeared before the surrogate, in answer to the citation, the question presented was which had the prior right. Both held letters, and Mrs. Burmester, holding as she did the money of the estate, held it as administratrix, and would so have continued to hold it, lawfully and properly, but for the assertion of the prior right. The surrogate decided in favor of the public administrator and adjudged and ordered that she should pay the money over to him.

There, and before any enforcement of the order, the affair took a new shape. A last will and testament of Mrs. Overbeclc was discovered and admitted to probate and letters testamentary issued to the present plaintiff. In such a case the Code provides, § 2684, that the decree granting probate shall revoke the former letters. The decree itself is not in the record and we must assume obeyed the law and revoked the letters to the public administrator and to Mrs. Burmester, and each became at once liable to account to the executor for the funds of the estate.

The Code further provides, § 2596, that a person to whom letters are issued is liable for money in his hands or under his control when his letters were issued, in whatever capacity it was received. So that even if Mrs. Burmester took the money as an individual the moment letters were issued to her she held the fund as administratrix. And the answer of Speclcman admits that as administratrix she received into her possession certain funds and property of the estate.

The executor after his appointment obtained a decree from the surrogate that said Gertrude Burmester be and she hereby is directed to pay to the said John Power, executor, the said sum of §2,800. By § 2605 of the Code the successor of an administrator whose letters have been revoked may compel the latter to “ deliver over money or other property,” and is further authorized, with the assent of the surrogate, to prosecute the official bond.

It follows that since the appointment of Mrs. Burmester was not void, but good until vacated or set aside, and, however she originally received the money, she held it as administratrix the moment her letters were issued; and since she became liable to deliver the money to the executor upon his appointment and the revocation of her own letters, the decree of the surrogate was within his jurisdiction, and bound her as well as her sureties. Scofield v. Churchill, 72 N. Y., 565.

It is quite true that there are proceedings in aid of an executor or administrator which enable him by process of the surrogate and through his decree to recover from an individual money or property of the estate, Code, §§ 2706-2710; and that the petition of the public administrator, as also that of the executor and the two decrees of the surrogate, contain nothing on their face to indicate how or in what character the party proceeded against held the money, and so it is impossible to argue that the decrees were against Mrs. Burmester only as an individual and not as administratrix, which result would discharge the sureties; but the facts established dissolve the ambiguity and show the true character of the decree. Had the proceeding against her been distinctively as an individual it could not have been maintained, for the recital in the petition of the public administrator of her petition for letters shows that the fact of her appointment appearing on the surrogate’s own records was drawn to his attention, and would have been a complete defense and required a dismissal of the proceeding. As we have seen, it stands admitted by the answer that she held the property of the estate as administratrix and that possession was lawful and could .not be interfered with until some paramount right was shown; and that was established, first, by the prior right of the public administrator, and second, by the superior right of the executor. And so, while it is difficult to understand how all the complications arose, or to approve the ambiguous form of the papers, yet we are not required to misinterpret them, and quite enough appears to show that Mrs. Burmester was liable as administratrix, and that the decree against her was for the nonperformance of official duty. All final decrees against an administrator which adjudged money of the estate in his hands due and payable to parties entitled run against him personally and de bonis propriis, for they may be docketed and ' become a general lien and be enforced by execution which ranges over all his property. They do not adjudge that he pay as administrator, but that he pay; and always in the case of such a decree the liability of the sureties requires that the substance of the proceeding shall show that the judgment was rendered for an official default Ordinarily that may be ascertained by reference to the petition and the form of the account, but where they are imperfect or ambiguous the facts may be examined sufficiently to determine whether the decree was one purely personal or one touching the administration of the estate. That the decree in this case was of the latter character is further indicated by the fact that no question about it except that of fraud was raised by the answer and no objection to the decree was made when put in evidence, and there was no motion for a nonsuit founded on its insufficiency as against the sureties. If such objections had been taken evidence as to the hearing before the surrogate might have been offered and the matter in some way relieved from any doubt and ambiguity. Smith v. Smith, 79 N. Y., 634. The sureties evidently did not misinterpret the decree at the trial and we ought not to do so now.

The judgment should be affirmed, with costs.

All concur.