author: Ingraham, J.

text:
    James W. Holloway, Resp’t, v. Franklin H. Delano et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    1. Deed—Presumption that grant extends to center op highway.
    The presumption oí the intention of the parties to a deed, that upon a, conveyance of land upon a street or highway, one-half of the street or highway should pass to the grantee, and be included in the conveyance, should always be enforced, unless, from the conveyance itself, it clearly appeared that such was not the intention of the parties, as where by the bounds of the property conveyed the fee of the highway is expressly excluded.
    S. Same.
    A description beginning at the corner of a neighbor’s land “on the north side of ” the highway, or at the junction of the highway and a cross-road, and running “along” said highway, is not sufficient to overcome the presumption, and conveys the fee to the center of the highway.
    Appeal from judgment entered upon the verdict of the jury.

      William G. Choate, for app’lts;- James A. Deering, for resp’t.
   Ingraham, J.

This was an action of ejectment to recover the one undivided one twenty-eighth part of the fee of what was formerly Bloomingdale road, now discontinued as a road by legislative authority, and the title of the plaintiff depends upon the construction to be given to the description contained in the two deeds executed by the heirs at law of Charles W. Apthorp, and dated, one July 19, 1799, and one August 6, 1799.

The" plaintiff sues as heir at law of Charles W. Apthorp, and claims that the fee of the street was not included within the description in the deeds mentioned. The plaintiff’s cause of action must depend upon the strength of his title to the property.

Whether or not defendant has title is immaterial.

In considering this question we must start with a recognition of certain presumptions.

Thus, it is an established inference of the common law that the proprietors of land adjoining a public highway are the owners of the fee of the said highway, and that the proprietors on each side presumptively own the soil in fee to the centre of the highway. Wager v. Troy Union R. R. Co., 25 R. Y., 529.

A conveyance of land bounded by an existing street carries the fee to the centre, because a narrow strip, such as one-half of the street, is much more valuable to the grantee than to the grantor, and the parties are supposed to have so dealt with the property as to bring it its greatest value, In re Ladue, 118 N. Y., 219; 28 St. Rep., 821, and while this presumption is in every case that the grantor does not intend to retain the fee of the soil within the lines "of the street, such presumption"may be overcome by the use of any terms in describing the property granted which clearly indicates an intention not to convey the soil of the street or stream. It is not sufficient to exclude from the operation of the grant the soil of the highway, usque ad medium filum that the grant is made with reference to a plan annexed, the measuring or coloring of which would exclude it, or by lines of measurements which would only bring the premises to the exterior line of the highway, or by any similar expressions. Although the highway is in one sense a monument, it is regarded as a line, and the centre of the highway in such case is regarded as the true boundary, as is the case' when a tree or stone or other similar object is designated as a monument, and in the absence of any other indication is regarded as giving the true boundary or limit of the grant. White's Bank of Buffalo v. Nichols, 64 N. Y., 71.

This presumption that the owner of land abutting on a highway owns to the centre is much less strong in respect to lands in large cities. English v. Brennan, 60 N. Y., 610.

And it is a universal rule that whether a grant of land that is bounded by a highway or running stream, extends to the centre of such highway or stream, or is limited to the exterior line or margin of the same, depends upon the intent of the parties to the grant as manifested by its terms, so that the question as to the true boundary is in all cases one of interpretation of the deed or grant.

Applying these rules to the deeds in question, we have to determine what was the intent of these parties, the grantors and grantees in 1799 as to whether or not the fee of the road in front of these pieces of ground granted should be included in the grant or should remain the property of the grantors.

The two deeds included within the property conveyed the land on both sides of the Bloomingdale road between Ninetieth and Ninety-first street in the city of New York. At the time of this conveyance the premises in question was far from the city proper; it was a country “district; the Bloomingdale road was a highway and the property conveyed by the deeds included several acres of land, the grantors owning a large plot of land through which ran the highway in question. They conveyed the property upon the west side of the highway to John Shaw and upon the east side to William and Mary Jauncey; the deeds being dated within a few days of each other. The deed apparently first executed was that to John Shaw, conveying the piece of land on the west side of the highway. The description in that deed is as follows:

“ Beginning at the corner of William Constable’s land on the north side of the Bloomingdale road, and running thence along said road north 38 degrees east, 8 chains, 45 links” and thence after several courses to the place of beginning, containing 19 acres, 8 rods, 5 perches, according to a map thereto annexed made by Benjamin Taylor, one of the surveyors of the city of New York, etc.

It is impossible to find in this description any intention of the parties that the fee of the highway was not to pass, so as to overcome the presumption before referred to.

The point of beginning is “ at the corner of William Constable’s-land on the north side of the highway.”

In the deed as printed in the record, there is no period or comma between the words “ Constable’s” and “ lands,” and a reading of the description makes it clear that it was William Constable’s land that was on the north side of the highway and not the point of beginning.

The point of beginning was the corner of Constable’s land, where it joined the land of the grantors. According to the presumption that we have seen exists, Constable owned to the centre of the highway, subject to the easement in the public to use his own half of the highway as a public road, and when a piece of land is upon a line that begins at the corner of Constable’s land it must be presumed that the parties intended that the corner was the corner of the parcel of land owned by Constable in fee, and as Constable owned the land and the highway, it was the corner of that land and not the corner of the piece of land bounded by the highway.

The line then runs along the highway, and that under ail the decisions would mean the middle of the highway, and this construction of the description in the deed as showing the intention of the parties is strongly confirmed by all the surrounding circumstances.

Here was a piece of land far from the settled portion of the city. The land itself was at that time of little value; the highway was and had been for a long time a public highway, and no possible reason appears whereby it can be inferred that these grantors at that time had the slightest idea that this property in this portion of the city would become of much value, or that the fee of the highway would ever be of any use except to the owners of adjoining property, and they sold at the same time the property on both sides of the highway.

It is inconceivable that there was any express intention at that ■time to retain the naked fee of the highway itself, or that the grantees in the deeds ever supposed that the fee of the road in front of their premises that they had purchased was vested in ■others who had no interest in the adjoining property.

In coming to this conclusion, we have not overlooked the cases ■of English v. Brennan, 60 N. Y., 609; White's Bank, etc. v. Nichols, 64 id., 65, and Kings Co. Ins. Co. v. Stevens, 87 id., 287, upon which the court below relied and which have been strenuously urged upon us as being inconsistent with this conclusion upon this appeal. In those cases the principles before referred to have been expressly recognized, and the presumption of the intention to grant the fee of the highway has been held to have been overcome because in the description of the property conveyed by the grants, the highway itself, was excluded, and particular ■.stress appears to be given in these cases to the fact that the description contained in the deed commenced at a fixed point, which was upon the edge of the highway, so that the court could not say that it was the intention of the parties that the point •of beginning was in the center of the highway, when the parties, in express terms, had limited it to the edge of the highway.

We are bound by these decisions and the principles there adopted, but are certainly not bound to extend them to a case where the description of the land is not limited by the outer edge ■of the road.

As was said by Allen, J., in the case of Mott v. Mott, 68 N. Y., 252: “ When lands are granted bounded by a highway or a •stream not navigable, unless by the terms of the grant or by necessary implication the highway orbed of the stream is excluded, "the title will pass to the center of the highway or stream. The reason is obvious. Ordinarily in a conveyance of that kind there is no purpose to be served in the retention by the grantor of the narrow strip of land along the boundaries between it and the land of other proprietors or in the bed of a stream, and the intent to grant them will, therefore, be presumed by the conveyance of the adjacent lands bounded"1 by ’ or ‘ upon ’ or ‘ along ’ such highway or stream, or other equivalent phrases.”

And it seems to me clear that this expressly applies to-the deed now under consideration.

The land granted commenced at the corner of Constable’s lands, but that corner is not fixed by the deed, or by any monument as the side of the road, but is the corner of Constable’s land and runs thence along the road.

As was stated in the Matter of Ladue, supra, in considering the conveyance of a tract of land in the vicinity of the property in question, “ this case illustrates the importance of the presumptions upon which our decision rests. In early days, when land was cheap, Stilwell conveyed a part of a farm that is now in a crowded city, and of great value. To hold that he intended to reserve the fee of the street with reference to which as laid down upon a map he conveyed the property adjoining would be in conflict not only with his probable intention, but with public policy as well.”

We think therefore that under the description of the Shaw deed, the plaintiff’s ancestor parted with his interest in the Bloomingdale road in front of and adjacent to the property thereby conveyed.

What we have said in relation to the Shaw deed applies with equal force to the Jauncey deed. That description is as follows: “Beginning at the corner of a field at the junction of the Bloomingdale road with the cross roads that leads to Harlem, thence running along the Bloomingdale road south 35 degrees west, 7 chains and 50 links,” and thus by various courses to the place of beginning, containing forty-two acres and five perches according to a map, etc., thereto annexed.

Here the point of beginning is at the corner of a field at the junction of Bloomingdale road with the cross roads that lead to Harlem, and the presumption that the owner of that field owned to the center of both roads would apply, and the point of beginning is therefore the point formed by the center of the two roads.

The line thence runs along the Bloomingdale road, and it seems to us clear that by such conveyance the fee of half of Bloomingdale road in front of the property described was included in the property conveyed, and the fee passed to the grantees in the deed.

Many cases have been cited that have been examined, but the principles before stated have been recognized in most of the cases, and are firmly established by decisions of the highest court of this state.

To reconcile all of these decisions would be extremely difficult if not impossible, and it will not be attempted.

We think that the conclusion to which we have arrived is founded upon principle and is the application of the rules of law that have existed for centuries and under which much property has been conveyed and is now held, and that this presumption of the intention of the parties to a deed that upon a conveyance of land upon a street or highway, one-half of the street or highway should pass to the grantee and be included in the conveyance, should always be enforced unless from the conveyance itself it clearly appeared that such was not the intention of the parties, as where by the bounds of the property conveyed the fee of the highway is expressly excluded.

As the title of the plaintiff therefore to the fee of Bloomingdale road failed, the complaint should have been dismissed and the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Yan Brunt, P. J., concurs.


source: Caselaw Access Project

license: Public Domain

text:
    James W. Holloway, Resp’t, v. Franklin H. Delano et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    1 Deed—Description—When does not convey to center op highway.
    Where the description in a deed commences at a point on the side of a street or road and runs along the side of such street or road, the land in such street or road is excluded and the same is not conveyed.
    3. Same—Ejectment—Easement.
    The grantee of land under a deed which bounds it upon a street, the fee of which is in the grantor, acquires a private easement of light, air and access in the street which is independent of the public right; and the grantor or his heirs cannot maintain ejectment as to abutting portions of the street after the same has been closed as a public highway.
    Appeal from judgment entered on verdict of the jury.

      W. G. Ghoate, for app’lts ;■ James A. Deering, for resp’t.
   Ingraham, J.

This action is ejectment to recover possession of a strip of land formerly a part of Bloomingdale road between 92nd and 93rd streets in the city of New York.

The question to be determined depends upon the construction to be given to two deeds, one from Charles Apthorp and others to William Jauncey, and others dated August 6, 1799, and one from Charles Apthorp and others to Oliver Vanderbilt, dated February 28, 1800.

In the case of Holloway v. Delano (Action No. 1) decided herewith, we construed the deed of Apthorp to Jauncey as conveying the fee of the east half of the Bloomingdale road, and the plaintiff has therefore failed to show a title to the east half of the property to recover which the action is brought

The deed of Charles Apthorp to Vanderbilt, however, does not convey to the grantees the west half of such road, and the plaintiff, as heir at law of Charles Apthorp, is the owner of the fee of the west half of said Bloomingdale road between 92 nd and 93rd streets.

The description in the Vanderbilt deed is: Beginning at a corner on the west side of the Bloomingdale road at the northerly side of a private road leading to Hudson river, and running thence along the west side of the Bloomingdale road, aforesaid, north 35 degrees east, 3 chains and 60 links, and thence by several courses to the place of beginning. This description plainly excludes the fee in front of the premises. It is materially different from the description contained in the other deeds that we have had occasion to consider in these actions.

I think, however, that the grantee named in the Vanderbilt deed acquired an easement in the west half of the street abutting on the premises conveyed by this conveyance.

In considering this question, the distinction between an easement granted by the deed in the road immediately abutting upon the property conveyed and in the portion of the road that does not so abut should be kept clearly in view.

In this case it is the right of the grantee of land bounded upon the highway where the grantor owns the fee of the highway in and to the portion of the highway that abuts upon his premises that is to be considered, and not his interest in the road that does not so abut.

It is undoubtedly settled in this state that the grantee of a piece of land abutting upon a public street or highway acquires no private interest in such street or highway beyond the portion thereof that directly abuts upon the land conveyed.

It was so held in Wheeler v. Clark, 58 N. Y., 270, where Church, Ch. J., delivering the opinion of the court, says :

“ The plaintiff claims, however, that he is entitled to a private right of way over that portion of the old road in front of the defendant’s premises and extending to the centre, and he predicates, this right upon two grounds, viz.: by prescription, or by grant or a reservation in the nature of a grant,” and it was held that the plaintiff could not obtain such a right by prescription, that there could not be the requisite user under an adverse claim of right against the owner, and that' all the grant conveyed to the grantee was that the owners of the lots and the public were to have the same rights, which were to use them as public streets, avenues; and roads, and that they were to be kept open accordingly, that is, as public streets, there being no intimation in the language of any right additional to that of the public or that any of the parties would possess any after the streets ceased to be used by the public, and the same rule was again applied in Kings Co. Fire Ins. Co. v. Stevens, 101 N. Y., 416.

The decision in these cases, however, does not apply to land in; the street or highway abutting upon the premises conveyed. Thus! in Kings Co. Ins. Co. v. Stevens, supra, which was an" action' brought to restrain the defendant from entering upon a strip of land to which plaintiff claimed title" under a claim of right of way over the locus in quo, it was held that the city could, with the aid of the legislature, close the street without specific compensa-' tian to the defendant and did. so effectually as against her so far' as the locus in quo was concerned, and in speaking of the claim that, the principle decided in Story v. The New York Elevated R. R., 90 N. Y., 122, preserved to the defendant as an abutting owner a property in the street of which he could not be deprived without compensation, the court said:

“We need not consider or discuss that question, for the closing of the street here in controversy is in front of plaintiff’s premises and not of hers, and does not take from her the light, air or convenience of access; no right appurtenant to her lot as abutting on the street has been infringed."

And in King v. The Mayor, 102 N. Y., 175, the question was as to the ownership of an award made to compensate the owners of property for damages sustained by the public closing of the street, and it was held that the plaintiff was entitled to the award, because when the street was closed and the damages sustained for which the award was made the plaintiffs were the owners of the premises, and therefore became entitled to the amount which might be awarded for the injury done, and that a subsequent conveyance of the premises did not convey the right to collect the award when made for the damages sustained by the closing of the street prior to the conveyance. But what the court said in that opinion is said in relation to the claim of the defendant, who was the subsequent grantee, that he and not the plaintiff was entitled to the award.

The other cases cited by plaintiff have been examined, but do not expressly decide the question here presented, and do not require further comment

'That an owner of land does acquire ah interest in a street abutting on his property where the conveyance of such property to such owner bounds the property by the street, and where the grantor owned the fee of the. street even though the conveyance excludes the fee of the street, separate and distinct from the right of the public to use the street as a public road or highway is clear upon principle and is settled by authority, and such right arises from the implied covenant in the deed, when it conveys the property bounding it by the street, that there is a street and that so far as the property of the owner of the fee in the street is concerned such parts of the street as abut on the property conveyed shall remain open as a street for light, air and right of access to such abutting property.

This easement of course is subordinate to the right of .the public to use the road or highway, as such right the grantor had no power to convey or affect, but is a right that binds and controls the grantor’s interest in the street, whatever it may be, and gives to the grantee the right to insist'that the grantor or those claiming under him shall not so use his interest in the street as to interfere with this right or easement acquired by the implied covenant contained in the grant

This principle is most satisfactorily established by the supreme court of Massachusetts in the case of Parker v. Framingham, 8 Metcalf, 267.

The question was there expressly presented and such easement upheld by the court.

Chief Justice Shaw, delivering the opinion, says:

“ It seems reasonable and quite within the principles of equity, on which this rule is founded, to apply it to the discontinuance of the highway, so that if a man should grant land bounded expressly upon the side of the highway, if the grantor owned the soil under the highway, and the highway by competent authority should be discontinued, such grantor could not so use the soil of the highway as to defeat his grantee’s right of way or render it substantially less beneficial. Whether this should be deemed to operate as an implied grant, or as an implied warranty, covenant and estoppel binding upon the grantor and his heirs, is immaterial.”

The opinion in this case would, in the absence of controlling authority to the contrary, be a sufficient authority to establish the defendants’ right to an interest in that portion of Bloomingdale road abutting upon their property, and I think a considera-

tian of the cases in this state shows that this principle has been expressly approved and followed.

In the case of White's Bank of Buffalo v. Nichols, Allen, J., 64 N. Y., 73, in delivering the opinion of the court, says: “ When land is granted bounding upon a street or highway there is an implied covenant that there is such a way, that, so far as the grantor is concerned, it shall be continued, and that the grantee and his heirs and assigns shall have the benefit of it,” citing as an authority the case of Parker v. Framingham, supra ; and the principles stated in Parker v. Framingham were applied by the court of appeals in the case of De Peyster v. Mali, 92 N. Y., 267. That was an action brought to recover the awards made by the commissioners for certain property taken for Riverside Park and Riverside drive, and the court stated the rights of the respective parties in and to the westerly half of Bloomingdale road, which had been taken for such public use, as follows:

“ The plaintiff owned in fee the land in the westerly half of Bloomingdale road, which land was subject to a perpetual easement for the public road and a private easement for the owners of abutting land ; and the Riverside Drive was-laid out in such road and took the place thereof and the land thereof was appropriated for the same.”

An examination of this case in the supreme court, 27 Hun, 442, shows that that private easement was acquired only by the grant of property bounding it on Bloomingdale road, thus expressly recognizing the right of the owner of the abutting property to a private easement in the road.

That case was decided by the court of appeals upon the principle that this private easement of the owner was not at all affected by the fact that the fee of Bloomingdale road had been acquired by the city in trust for a public street, but that the fee having been thus acquired by the city the abutting owner enjoyed the " same easement in the road that he had before enjoyed when the fee remained in the plaintiff. -

That these authorities recognize the principle that where land is conveyed bounded upon a public road or highway and the grantor owns the fee of the road, that such fee becomes at once subject to the easement which becomes appurtenant to the adjoining land, that the road, or the interest of the grantor in the road, shall be kept open as a public road so that the abutting owner shall have a right to use such fee for light, air and means of access to his abutting property, and that is independent ofithe right of the public to use the road as a public road or highway.

The rights of abutting owners have been very largely discussed by the courts of this state in the cases brought against the elevated R. R. Go. by property owners to recover for the appropriation by the elevated R. R. Go. of the streets of the city of New York.

In the case of Abendroth v. The Man. R. Co., 122 N. Y., 1; 33 St. Rep., 475, and Kane v. The N. Y. El. R. R. Co., 125 N.Y., 175; 34 St. Rep., 876, the question was presented as to what interest, if any, an abutting owner had in the streets of the city of New York, the fee of which was in the city, and where there was no covenant by grant, either express or implied, that the streets should be kept open as public streets, and the opinion in both of those cases recognized the right of an abutting owner, where he has received a conveyance bounded upon an existing-street where the grantor owns the fee of the street, to an easement that the street should he kept open as a public street, and that the right to its use for light, air and means of access became appurtenant to the abutting property.

Thus, in the Kane case, Andrews, J., says: “We do not perceive that these grants either weaken the plaintiff’s case or strengthen that of the defendant.

“ The defendant does not claim under the grantees and if the fee of the street is in private persons their title is nominal merely and as against them the plaintiff has clearly a prescriptive right, nor could such title prevent the acquisition by plaintiff and his predecessors of rights against the public in the nature of easements under the views heretofore stated.”

In the Story case, 90 H.Y., 145, the right of the plaintiff to recover was expressly placed upon the implied covenant in the deed from the city of Hew York to Story’s grantor which “ secured to the plaintiff the right and privilege of having the street forever kept open as such for that purpose. The dedication, the sale in reference to it, the conveyance of the lot with its appurtenances and the consideration paid were in themselves sufficient.”

The judgment in the case adjudges that the plaintiff recover of the defendants the possession of the property described in the complaint, and as it appears that plaintiff is not entitled to the possession of such property the judgment must be reversed.

There are other questions presented, but as for the reasons stated the judgment must be reversed it is not necessary now that they should be determined. Judgment reversed and new trial ordered, with costs to the appellant to abide the event Van Brunt, P. J., concurs.


text:
    James W. Holloway, Resp’t, v. Charles F. Southmayd, App’lt

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    1. Deed—Description.
    A dead bounding property as beginning on the north side of a road at the corner of a lane; thence along the lane and by other courses to the road and along said road to the place of beginning, conveys the land to the center of the road.
    2. Same—Easement—Ejectment.
    Even if said deed did not convey the fee to the road, the grantee acquired under it an easement of light, air and access of which he could not be deprived by the grantor or his heirs.
    Appeal from judgment in favor of plaintiff.

      William G. Ghoate, for app’lt; James A. Jeering, for resp’t.
   Ingraham, J.

This action presents substantially the same question as is presented in the actions of Holloway v. Delano, Nos. 1 and 2, decided herewitli.

This question requires the construction of two deeds, one of ' Charles Apthorp and others to William Jauncey and Mary Jauncey, which is one of the deeds construed in the decisions on the appeal in Holloway v. Delano, and the deed of Apthorp to David M. Clarkson, dated October 15, 1779.

So far as the Jauncey deed is concerned, we have held in the case of Holloway v. Delano, No. 1, that the fee of Bloomingdale road in front of the described premises to the middle of the road was included within the premises conveyed and that plaintiff had no title to half of the road.

It is unnecessary here to repeat the reasons that lead us to that conclusion, and applying the principles there stated, we are of. the opinion that the same construction should be given to the Clarkson deed.

The Clarkson deed was dated a little over two months after the Jauncey deed and the Shaw deed referred to in the decision in Holloway v. Delano, and the description of the property conveyed is as follows: “All that certain tract or parcel of land situate at Bloomingdale, in the Seventh ward of said city of New York, and butted and bounded as follows, to wit: “Beginning on the north side of the Bloomingdale road at the corner of the lane leading down to Mr. Striker, and running along the same (the lane leading to Striker’s) north 58° west, 10 chains 60 links, and thence by various courses to the Bloomingdale road, thence along said road north 28° 30' east, 9 chains and 75 links to the place of beginning, containing ten acres according to a map thereto annexed.”

In determining the intention of the parties to this conveyance, what was said by the court of appeals in the Matter of Ladue, 118 N. Y., 219; 28 St. Rep., 821, is pertinent.

“ The question now arises, what is the extent of such a grant. Does it go to the margin or the centre of the road as laid down upon the map ? This depends upon the intention of the parties as gathered from the terms of the deed, the situation of the land and, where there is doubt as to the intent, from the practical construction of the grantor and grantee and their successors in title. The construction, in case of ambiguity, should be most favorable to the grantee.

“ The presumption is that a conveyance .of land bounded by an existing street carries the fee to the centre, because a narrow strip, such as half of a street, is much more valuable to the grantee than to the grantor, and the parties are supposed to have so dealt with the property as to bring out its greatest value.”

This description conveys a certain tract or parcel of land, and it is butted and bounded as follows:

“ Beginning on the north side of Bloomingdale road.”

There is no absolutely certain point or monument that the court can see, as in Stevens case, 87 N. Y., 290, where the premises were described as beginning at a point on the southerly side of the road.

In this description there is no point fixed, but the property is butted and bounded as beginning on the north side of the Bloomingdale road, at the eqrner of the lane leading down to Mr. Striker’s. It runs' thence north along the lane and finally returns to the Bloomingdale road, and runs thence along the said road north to the place of beginning.

In the case of Luce v. Carley, 24 Wend., 451, the course began at “ a hard maple tree standing on the east branch of the Onondaga river, and then, after giving other courses and distances, the description proceeded, “ thence west to the east bank of the river, and thence along the river to the first mentioned bound,” and it was held that the grantee took to the centre of the stream. And .the court of appeals in the case of the Seneca Nation of Indians v. Knight, 23 N. Y., 500, cites this case, and says:

“ This rule is recognized in -many adjudged cases which need not be cited. We have no doubt as to the justice and policy of the rule, nor that in most cases it gives effect to the actual intention of the parties to such grants." And while some of the opinions in some of the later cases have contained expressions which would appear to be to some extent inconsistent with the rule here adopted, these cases cited have never been reversed or expressly disapproved of, and none of the cases that are binding upon this court have expressly decided any case which is inconsistent with this rule, and it seems to us that the rule here laid down is founded upon the plain principles of the common law and gives effect to the real intention of the parties.

In the case in question, considering the surrounding circumstances, the fact that this road was through a portion of Manhattan island which was far removed from the thickly settled portion of the city, that no city streets had been laid out at the time of the conveyance in this neighborhood, that the grantors had conveyed the property on the other side of the road and had parted by that conveyance with all interest in the other half of the road, that the road was then of comparatively little value, it ‘ is impossible to conceive that ther'e was any real intent of either the grantor or grantee at the time of the conveyance that the naked fee of the street in front of the property should be retained by the grantor.

Ho possible motive can be suggested which would make it reasonable that the grantor should desire the naked legal title to such strip of land, while the grantee had every motive for intending . and wishing to be the owner of such property. He could use the soil of the street for conveying water to his premises or planting of trees in front of his property, for using it to drain his lands and for all the uses to which the soil of the street could be used without interfering with the easement of the public, and the sole expression in this whole deed that can be said .to overcome this presumption and divest this grantee of this right important to him and vest in the grantors to them the unimportant and useless ownership of the fee of the'street, is that the .plot of land is described and bounded as beginning on the north side of the Bloomingdale road at the corner of the lane, instead of beginning on the Bloomingdale road at the corner of the lane. That the insertion of the words “ north side ” in the description is to expressly exclude from the property conveyed the fee of the road; but in this case, while the point of beginning was on the north side of the road, the boundary did not run along the Bloomingdale road, but it did run along the lane leading down to Mr. Striker’s for a distance, and then by other courses and distances the line ran to the Bloomingdale road. That line running to the Bloomingdale road, and thence along the road, would clearly go to the centre of the Bloomingdale road, and thence along the Bloomingdale road would be along the middle of the road. See Mott v. Mott, 68 N. Y., 252.

And the fact that the description came back to the point or place of beginning, which was on the north side of the road, would not prevent the line when it ran to the road from going to the centre of the road, and thus along the centre of the road to a point opposite the point on the north side of the road, the place of beginning, and then to the place of beginning.

But assuming that our construction of this deed is wrong, and that the fee of the street was by the description used excluded, for the reasons stated in the case of Holloway v. Delano (Action No. 2), decided herewith, we think the defendants have an easement of light and air and access appurtenant to their property that abuts upon Bloomingdale road over the portion of Bloomingdale road in front of said property.

We have stated in the Delano case our reasons for this conclusion. The judgment appealed from is therefore reversed, and a .new trial ordered, with costs to appellant to abide the event.

Yan Brunt, P. J., concurs.


text:
    James W. Holloway, Resp’t, v. Charles F. Southmayd, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    Appeal from judgment in favor of plaintiff.

      William Choate, for appl’t; James A.- Deering, for resp’t
   Ingraham, J.

The question presented in this case is whether the fee of the Bloomingdale road was included within the property conveyed by a certain deed made by Apthorp and wife to William jauncey and Mary Jauncey, dated August 6th, 1799, and a certain deed made by Apthorp and others to John Shaw, dated July 19th, 1799.

We have held in the case of Holloway v. Delano (Action No. 1), decided herewith, that the description in these two deeds includes the road in front of the premises conveyed, and that, therefore-the plaintiff showed no title in the property, and the complaint should have been dismissed for the reasons stated in that opinion.

The judgment in this case must be reversed and a new trial ordered, with costs to appellant to abide the event.

Yan Brunt, P. J., concurs.


author: Hardin, P. J. Martin, J. Merwin, J.

text:
    George H. Beattys, Resp’t, v. The Town of Solon, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Railroad—Organization—Failure to make payment on subscription.
    The mere failure of some of the subscribers to pay the ten per cent, upon their subscriptions before the filing of the articles of association, or the fact that the person soliciting subscriptions agreed that they should not have to do so, is not sufficient to invalidate such articles so long as the cash payments, by whomsoever made, amount in the aggregate to ten per cent, on the entire amount of subscriptior
    2. Town bonds—Coupons—Interest.
    In an action upon town bond coupons interest is allowable.
    Appeal from a judgment entered in Cortland county May 21, 1891, for $3,976.64, damages and costs, on a decision made by the circuit court held in that county, a jury having. been waived. Recovery was upon several coupons appearing in the findings.

      Bouton & Ghamplin and Louis Marshall, for app’lt; Edward B. Thomas and E. I). Newton, for resp’t.
   Hardin, P. J.

It is found that “ The Utica, Chenango & Cortland Railroad Company *• * * was a railroad corporation, duly organized under the general railroad act of this state, by the due filing of its articles of association April 9, 1870, and that it thereupon became incorporated for the purpose of constructing a railroad from the town of Cortlandville, through the said town of Solon, and the said town of Taylor, in the county of Cortland, in the town of Otselic, in the county of Chenango, in the state of New York.”

It is also found : Its articles of association were filed in the office of the secretary of state April 9, 1870, and previous thereto $1,000 of stock for every mile of railroad proposed to be made, to wit: thirty-two miles, had been subscribed thereto, and ten per cent paid thereon in good faith; and there was endorsed thereon, or annexed thereto, an affidavit made by three of the directors named in said articles that the said amount of stock as required by law had been in good faith subscribed, and ten per cent, paid thereon in cash and in good faith.”

Upon the trial some of the subscribers for the stock were called as witnesses, who gave evidence tending to show they paid nothing on their subscriptions; and some of them “ that they had an agreement with the individual soliciting or taking their subscriptions that they need not pay their ten per cent,” and some of them testified that they had a like agreement that they need not pay anything ; but they testified “ they knew they were bound by the instrument,” and also “ that they intended to make good articles and they also admitted “ that the agreement was a private affair between them and the persons soliciting their subscriptions,” and that they subscribed, so far as the articles were concerned, in good faith and honestly.

It appeared that the corporation as such was no connected with the alleged agreement, and that it had twice made calls for the payment upon the stock. There is no proof that ten per cent on the $32,000 subscription had not actually been paid; on the contrary, it appears in the affidavit of the three directors attached to the articles, in accordance with the requirements of the act of 1850, that ten per cent had been paid upon the $32,000. It also appeared in the evidence that the corporation had proceeded to grade its road for several miles, building bridges and culverts, and had expended some $200,000, or more, on the same with a view of completing and operating its road. It is contended by the learned counsel for the appellant that “ no valid corporation having been organized, the entire issue of bonds was void.” We think the position’ untenable.

(1) If any such agreement was made prior to the subscription or contemporaneous with the act of subscribing to the articles as mentioned by the witnesses to which reference has been made, the same was a fraud upon the law and one that could have no effect and could receive no force. Tuckerman v. Brown, 33 N. Y., 297. We think the act of 1850 under which the railroad was organized did not require that each subscriber should pay, before the articles could be deemed efficient, ten per cent upon their subscription. The Eastern Plank Road Company v. Vaughan, 14 N. Y., 546.

In Lake Ontario, Auburn & New York R. R. Co. v. Mason, 16 N. Y., 451, it was held, viz.: “ It is not necessary to the incorporation of a railroad company under the general act that ten per cent be paid upon the amount of each subscription at the time of making the same or previous to the filing of the articles of association with the secretary of state. It is sufficient if the cash payments, by whomsoever made, amount in the aggregate to ten per cent upon $1,000 for each mile of road proposed to be constructed.”

In Farnham v. Benedict, 107 N. Y., 159; 11 St. Rep., 450, the subscriptions were less than the amount required, and no part thereof were paid in cash, and there was not a compliance with the act of 1850; the case therefore differs from the one before us. Here the affidavit of three of the directors attached to the articles of association states “ that at least one thousand dollars of stock for every mile of railroad proposed to be made by the terms of said articles of association has been in good faith subscribed thereto, that ten per cent, in cash has been paid thereon in good faith, and that it is intended in good faith to construct, maintain and operate the road mentioned in said articles of association.”

In Schenectady & Saratoga Plank Road Co. v. Thatcher, 11 N. Y., 111, it was held that a similar affidavit for a similar purpose was sufficient, and the objections thereto were overruled.

In Buffalo & Pittsburgh Railroad Co. v. Hatch, 20 N. Y, 161, it was held that such an affidavit “ is sufficient evidence that at least $1,000 of stock for every mile of road proposed is subscribed and paid.” In considering a similar affidavit in that case, Grover, J., stated, “The affidavit in this case proves these facts. Whether the public interest requires further restrictions, is a question for the legislature.” It appears here that by chapter 351, Laws of 1872, the legislature recognized the existence of the Utica, Chenango & Cortland Railroad Company; it is competent for the legislature to recognize the continued existence of the corporation. In re New York Elevated Railroad Co., 70 N. Y., 327 and 336.

In Black River & Utica R. R. Co. v. Barnard, 31 Barb., 260, Pratt, J., observed: “But when the proceedings are-regular upon their face, and the company, while in the actual exercise of all its corporate functions, is recognized by the law making power of the State as a corporation, it becomes by such recognition, ipso facto, a legal corporation. 9 Wend., 380; 3 Comst., 470.”

(2.) Upon the argument of the appeal before us it was insisted in behalf of the appellant, “ The petition presented to the county judge failed to state the jurisdictional facts that the subscribers were a majority of the taxpayers of the town whose names appeared upon its last preceding tax list or assessment roll as owning a majority of the taxable property in the corporate limits of the town; ” also, that “ the bonds issued by the railroad commissioners exceeding twenty per cent of the entire taxable property within the bounds of the town, as shown by the last preceding tax list, was unauthorized and void; ” also, that, “ the bonds having been issued without seals, did not conform to the requirements of the bonding act, and were therefore void; ” also, that “t he $24,000 of bonds issued on October 14, 1872, after the entire authorized issue of $44,800 of bonds had been delivered to the railroad company, was without legal authority and void ; ” and, also, that, “although the statute fixed the term of payment of these bonds at thirty years, the time actually intervening between the date of their issue and the date of payment was twenty-eight years and less, thus violating a material provision of the statute; ” and various considerations and arguments were addressed to us in support of the positions thus taken. We think the questions are not open for further examination in this court; they are all discussed in the opinion of Follett, J., speaking for this court, in the case of the Town of Solon v. Williamsburgh Savings Bank, reported 35 Hun, page 1, and the opinion of Bradley, J., delivered in pronouncing an affirmance of our decision, as appears by the report thereof in 114 N. Y., 122; 23 St. Rep., 138. See, also, Metropolitan Life Insurance Co. v. Bender, 124 N. Y., 47 ; 35 St. Rep., 49.

(3.) It was admitted upon the trial that the plaintiff is the owner of the coupons set forth * * * and that he purchased them in good faith and paid the par value thereof in cash without actual notice of any defect in the bonding of the town or issue of the bonds.” The bonds from which the coupons were cut were put in evidence, and it was conceded that the bonds were made payable to the treasurer of the railroad company, or bearer, and that the same had been endorsed by the treasurer in blank. The seventeenth finding of fact is as follows:

“ That the following is a copy of the coupons or interest warrants annexed to the bonds of plaintiff, except as to number and time of payment, to wit:
“ $17.50. The town of Solon will pay to bearer, at the National Park Bank of New York, seventeen fifty-hundredths dollars on the first day of -, 187—, being six months interest on said bond.
“No. —
“Lyman Peck, Jr.,
“Orrin Randall,
“John T. Butman,
“ Commissioners.”

In the body of the bonds it was stated, viz.: “ The interest and principal of this bond are payable at the--; the interest upon presentation at said bank of the coupons hereto annexed, as they respectively become due, and the principal sum upon presentation at said bank of this bond at its maturity. This bond is one of the series of bonds in all amounting to forty-four thousand eight hundred dollars, issued by the said town of Solon underand by virtue of a law of the state of New York, entitled ‘An act to authorize the formation of railroad corporations and to regulate the same, passed April 2, 1850, so as to permit municipal corporations to aid in the construction of railroads; passed May 18,1869.’ ” The several bonds were registered in the office of the clerk of Cortland county, and had endorsed thereon, viz.:

“Utica, Chenango & Cortland Railroad Company, pay to the order of--the within bond and coupon attached, as they severally become due.
Cortlandville,--, 187—.
(Signed) James S. Squires, Treasurer of the Utica, Chenango & Cortland Railroad Company.”
And the further endorsement, viz. : “ State of New York, Town of Solon, Bond No. -, $500.00. Interest payable March 1st, and September 1st at National Parle Bank in the city of New York. Registered in Cortland county Clerk’s office, Book 1, page-.
Frank Place, Clerk,”

In the twenty-first finding of fact it is stated that the sum of $2,681 was due upon the coupons held by the plaintiff upon a recovery as sought in this action; and it is found as a fact in the twenty-second finding, “ That the interest upon said coupons from their several dates of maturity to the 31st ■ day of October, 1889, the date of the trial of this action, is $963.35, to which sum should be added forty-four cents for each day’s interest from said October 31, 1889, up to the entry of judgment herein.” It was also found “ That none of the aforesaid coupons were signed by the said commissioners, but their names were lithographed upon said1 coupons.” It was found as a matter of law that the plaintiff is entitled to judgment against the defendant for $2,681 of principal “ with interest thereon from the date of maturity of the several coupons comprising such principal, which interest amounted to $963.35 on the 31st day of October, 1889, to which sum of $963.35 there should be added forty-four cents for each day’s interest from said October 31, 1889, to said entry of judgment and for the costs of this action." The defendant took numerous exceptions to the findings of fact and of law, and tó the refusals to find, and among the exceptions is one to the conclusion of law that the plaintiff is entitled to judgment as stated. From the evidence and the findings of fact it is manifest that the several coupons held by the plaintiff were attached to the bonds for the convenience of the parties in the collection and payment of interest upon the bonds. The language found in the bonds read in conjunction with the language found in the coupons indicates that the coupons represent the several installments of interest accruing upon the bonds and to become due at the periods referred to in the coupons.

In McClure v. Township of Oxford, 94 U. S., 429, it was held “ Where, upon their face, the coupons refer to the bonds to which they were attached, and purport to be for the semi-annual interest accruing thereon, the purchaser of them is charged with notice of all which the bonds contain.”

In City v. Lamson, 9 Wallace, 482, it was said: “ Besides, the coupons are given simply as a convenient mode of obtaining payment of the interest as it becomes due upon the bonds. There is no extinguishment till payment.”

In City of Lexington v. Butler, 14 Wallace, 296, it was said “as the coupon, if in the usual form, is but a repetition of the contract in respect to the interest, for the period of time therein mentioned, which the bond makes upon the same subject, being given for interest thereafter to become due upon the bond, which interest is parcel of the bond and partakes of its nature and is not barred "by lapse of time except for the same period as would bar a suit on the bond to which it was attached. Coupons are substantially but copies of the stipulation in the body of the bond in respect to the interest, and are so attached to the bond that they may be cut off by the holder as matter of convenience in collecting the interest, or to enable him to realize the interest due or to become due by negotiating the same to bearer in business transactions without the trouble of presenting the bond every time an instalment of interest falls due.”

Reading the bonds and coupons together, the same force and effect is to be given to the language used as though the parties had provided in the bond that semi-annual payment of interest should be made upon the bonds. If the bonds had provided that thirty years from their date the principal was to be paid, and the interest was due and payable every six months at the rate of seven per cent., the contract in effect would have been the same as the contract between the parties evidenced by the bond and the several coupons. In the case supposed, the language would all have been found in one instrument; the equivalent language is now found in the bonds and in the respective coupons. Bailey v. Buchanan, 115 N. Y., 297 ; 26 St. Rep., 128. No evidence was produced upon the trial of a new promise to pay interest upon the coupons or the sum represented by them; nor is there any finding of fact that there was a new promise or agreement to pay interest upon the interest accruing upon the bonds and represented by the coupons. Nor was there any new consideration passed between the lender and the borrower, to give force and effect to a new agreement if one had been made since the original loan. It seems, then, the plaintiff is not entitled to recover interest on the coupons from the date of their maturity, and so far as the findings and judgment allow interest from the date of the maturity of the several coupons down to the date of the decision, the same is erroneous. Stewart v. Petrie, 55 N. Y., 621; Young v. Hill, 67 id., 162. Such interest, so improperly allowed, should be eliminated from the judgment. See 144 U. S., 610.

Interest is allowable from the date of the decision, to wit: October 31, 1889, according to the provision found in § 1235, Code Civ. Pro.

However, as a majority of tire court are of the opinion that interest was allowable, the judgment will, therefore, be affirmed, with costs.

Martin, J.

The only doubt I have as to the correctness of the presiding justice’s opinion in this case is as to that portion relating to the interest.

While it must be admitted that the general rule in this state is that compound interest can only be recovered upon some new and independent agreement after simple interest has accrued, and upon sufficient consideration, still, even to this rule there are some acknowledged exceptions.

In Conn. Mut. L. Ins. Co. v. C. C. & C. R. R. Co., 41 Barb., 9, it was held that if interest coupons annexed to a bond, issued by a railroad company, are not paid when due, interest should be allowed by way of damages for non-paj^ment. It is said in Sedgwick on Damages (8th ed.), § 345: “ Interest is almost universally allowed on the overdue coupons of a coupon bond, though they are obligations for the payment of interest;’’ citing among other cases the following: Gelpcke v. Dubuque, 1 Wall., 175 ; Aurora v. West, 7 id., 82 ; Genoa v. Woodruff, 92 U. S., 502 ; Koshkonong v.Burton, 104 id., 668; Panav. Bowler, 107 id., 529; Scotland County v. Hill, 132 id., 117; Rich v. Seneca Falls, 19 Blatch., 558; Fauntleroy v. Hannibal, 5 Dill, 219 ; Huey v. Macon County, 35 Fed. Rep., 481; Harper v. Ely, 70 Ill, 581; Humphreys v. Morton, 100 id.. 592; Jeffersonville v. Patterson, 26 Ind., 15; Forstall v. Louisiana Planters’ Ass'n, 34 La. Ann., 770 ; Virginia v. Ches. & Ohio Canal Co., 32 Md., 501; Welsh v. First Div. of St. P. & P. R. R. Co., 25 Minn., 314; McLendon v. Anson County, 71 N. C., 38; North P. R. R. Co. v. Adams, 54 Pa., 94; Langston v. S. C. Ry. Co., 2 S., C., 248 ; Nashville v. First Nat. Bank, 1 Baxt., 402 ; San Antonio v. Lane, 32 Tex., 405; Arents v. Com., 18 Gratt., 776; Gibert v. Washington C.,V. M. & G. S. R. R. Co., 33 id., 598; Mills v. Jefferson, 20 Wis., 50. These cases seem to hold that doctrine, which is directly opposed to the opinion of the presiding justice in the case before us. I am of the opinion that the judgments in that respect were right, and should be affirmed.

Merwin, J.

I concur in the opinion of the presiding justice except on the question of interest. The authorities cited by Justice Martin show conclusively that in a case like the present the rule is settled, so far as it can be without a direct decision from the court of appeals, that interest is allowable. As said in Town of Genoa v. Woodruff 92 U. S., 502, it is in entire accordance with the decisions generally of the state courts and of the United States supremé court. See, also, 2 Daniel on Negotiable Instruments (4th ed.), § 1513, and cases cited. This rule was distinctly laid down by the general term of the first district in 1863 in Conn. Mut. Life Ins. Co. v. Cleveland, etc., R. R. Co., 41 Barb., 9, and does not seem to have been questioned since in any reported case in this state. In Young v. Hill, 67 N. Y., 162, which is relied on by the counsel for the appellant, the question, as it is here presented, was not involved or considered. In Bailey v. County of Buchanan, 115 N. Y., 301; 26 St. Rep., 128, it is said by Judge Bari; “ It is true that past due coupons, payable to bearer, when detached from the bonds, are for many purposes independent separate instruments. They may be negotiated and may be sued upon by the holder without the production of the bonds.” If so, it would seem to follow as a matter of course that they would draw interest like any other written obligation for the payment of money. The present action is not upon the bonds but upon the coupons. It is not alleged in the complaint that the plaintiff is the owner of the bonds. It was conceded at the trial that he was the owner of the coupons set forth in the complaint and had purchased them in good faith and for value.

The statute, under which the bonds were issued, contemplated that the bonds would have attached separate instruments representing the several payments of interest, and I have no doubt the bonds and coupons or interest warrants attached are substantially in the form authorized and contemplated by the statute. The fact that the names of the commissioners, instead of being actually signed to the coupons, “ were lithographed upon said coupons,” does not make the coupons invalid. The commissioners adopted and delivered as their own the signatures in that form. Brown v. Butchers' & D. Bk., 6 Hill, 443; Pennington v. Bachr, 48 Cal., 565; McKee v. Vernon Co., 3 Dill., 210; Schneider v. Norris, 2 Maule & S., 286; Daniel on Neg. Inst, § 74; 4 Am. & Eng. Encyl. of Law., 431.

Under the authorities, I think the judgment as it stands is correct and should be affirmed.


author: Martin, J.

text:
    William W. Armfield, Resp’t, v. The Town of Solon, App’lt

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    Town bonds—Alteration—Unauthorized addition op seals.
    The fact that after the bonds were issued a stranger attached wafer seals to them opposite the names of the officers who signed them will not invalidate the bonds and constitutes no defense to an-action upon the coupons attached thereto.
    ' Appeal from judgment in favor of plaintiff.

      Bouton & Champlin and Louis Marshall, for app’lt; H. D. Newton, for resp’t.
   Martin, J.

All the questions presented by the appellant in this case arose and were considered by this court in Beattys v. The Town of Solon, except that relating to the effect of seals or wafers having been attached to the bonds held by the respondent. Thus, the only question we need at all consider in this case is whether the fact that, after the bonds were issued, wafer seals were by a stranger attached to the bonds opposite the names of the officers signing them rendered them void, so that the respondent was not entitled to recover upon the coupons attached.

This question has been quite fully discussed both by the court of appeals and this court in Town of Solon v. Williamsburgh Savings Bank, 35 Hun, 1; 114 N. Y., 122; 23 St. Rep., 138, and any further.discussion of it at this time seems unnecessary.

We are of the opinion that, under the circumstances disclosed by the evidence, the affixing of seals did not invalidate the bonds, and constituted no valid defense to this action. Hence, the decision in this case should be governed by the opinion in the case of Beattys v. The Town of Solon.

Judgment affirmed, with costs.

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


author: Hardin, P. J.

text:
    Charles H. Stanton, Resp’t, v. The Town of Taylor, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Municipal cobfobations—Claim against town—To whom presentable.
    The presentation of a claim against a town to the supervisor of the town is a compliance with § 3245 of the Code, which directs that such claims he presented “for payment to the chief fiscal officer.”
    2. Same—Action on claim—Costs.
    In such case, the claim having been presented and payment refused, suit brought, and a verdict rendered for plaintiff, the latter is entitled to costs.
    3. Same—Interest.
    In an action upon town bond coupons interest is properly allowed on the claim from the time of its maturity.
    Appeal from a judgment entered in Cortland county, May 21, 1891, upon a decision made at a circuit held in that county, October, 1889, a jury trial having been waived, for the sum of $8,096.47 damages, and $107.13 costs.
    Action to recover upon several coupons enumerated in the complaint cut from several bonds issued by the defendant in aid of the construction of the Utica, Chenango & Cortland Railroad Company, incorporated under the laws of the state of New York for the construction of a railroad from Cortland to Otselic in the county of Chenango, in virtue of chap. 907 of the Laws of 1869.

      B. A. Benedict, for app’lt; H. D. Newton and Edward B. Thomas, for resp’t.
   Hardin, P. J.

Similar questions are presented by this appeal to those brought before us in Beattys v. Town of Solon. Our views are expressed in the opinion prepared in that case and are applicable to the questions in this case.

(2) The appellant insists in this cáse that the plaintiff was not entitled to costs inasmuch as the defendant is a municipal corporation, and Suggests that the claim upon which the action is founded was not presented “ for payment to the chief fiscal officer,” and calls our attention to § 3245 of the Code of Civil Procedure.

In Gage v. Village of Hornellsville, 106 N. Y., 667 ; 8 St. Rep., 885, the court, in considering the claim made against a municipality, said i “ The chief fiscal officer of such a corporation is the officer who receives, keeps and disburses the moneys of the corporation, and such an officer is the treasurer.”

Applying that principle to the case in hand, inasmuch as the town has no treasurer, the presentation of the claim to the supervisor of the town is a compliance with the provision of the section of the Code. In the complaint it is alleged That on or about the year 1878 the defendant and its officers refused and neglected to make payment upon the coupons then becoming due, and have from that time and ever since refused and still refuse to pay the coupons as they accrue due, and that the coupons representing the interest upon said bonds from and after the year 1878, have not been paidand in the thirty-fourth finding of fact it is stated “ That in 1878 the said town of Taylor refused to pay the interest upon the bonds so issued by its commissioners, and since such refusal no commissioner, supervisor or collector, or any other officer of the said town has taken any action towards raising any funds to pay the interest or principal upon said bonds ; and no funds have been raised by said town since 1877 for that purpose.” No proof was given upon the trial tending to show that claims made payable had not been presented to the town; on the contrary, the course of the trial seems to indicate that it was assumed that the claims had been presented and the town had refused to pay the same. The question now made does not appear to have been specifically presented at the trial; nor does it appear that any motion has been made to strike the costs from the judgment. Under these circumstances we are inclined to think the objection to the recovery of the costs is unavailing and comes too late. In accordance with my views expressed in the opinion delivered in Beattys v. Town of Solon, I think the interest should be eliminated from the judgment.

However, the majority of the court are of the opinion that interest was properly allowed, hence the judgment will be affirmed, with costs.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.


author: Merwin, J.

text:
    William H. Chapman, Resp’t, v. The Town of Taylor, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    Appeal from a judgment entered in Cortland county on the 21st May, 1891, in favor of the plaintiff for $2,127.98 damages,

      besides costs, upon the decision of the court at Cortland circuit, a jury trial being waived.

      B. A. Benedict, for app’lt; Edward B. Thomas, for resp’t.
   Merwin, J.

This action is brought to recover the amount of certain past due coupons taken from bonds issued by the defendant, the Town of Taylor, under the provisions of chap. 907 of the Laws of 1869, as amended by chap. 789 of the Laws of 1870, in aid of the Utica, Chenango & Cortland Railroad Co.

The questions presented in this case are the same as those presented in the case of Stanton against the same defendant, de■cided at this term, and are sufficiently discussed in the opinion in that case in connection with the opinion in the case of Beattys v. The Town of Solon, also decided at this term.

The same order should be made here as in the Stanton case.

Hardin, P. J., and Martin, J., concur.


author: Martin, J. Hardin, P. J.

text:
    Dorman Walradt, Assignee, Resp’t, v. The Phœnix Insurance Co. of Hartford, Conn., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Insurance (Fire)—-Ownership.
    The policy in question provided that it should be void if the interest of the insured be other than unconditional and sole ownership * * * or if any change, other than by the death of the insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment or voluntary act of the insured, or otherwise.” Held, that the condition that it should be void if the interest of the insured be other than unconditional and sole ownership related to the title when the policy was issued, and not to any subsequent change or condition of the title.
    2. Same—Levy of execution.
    A levy under execution upon the goods insured merely creates a lien which gives the sheriff the right to retain possession until a sale or discharge of the levy, and gives no title or interest in the goods to the sheriff or creditor within the meaning of the policy
    3. Same—Possession.
    The exception in the policy which permitted a change of occupants where there was no increase of hazard applies as well to personal as real property, and under it a change of possession will not render the policy void unless the hazard is thereby increased.
    Appeal from a judgment entered in Jefferson county clerk’s office, December 2Ó, 1890, on the verdict of a jury for $1,634.23 damages and costs, and from an order denying the defendant’s motion for a new trial, made on the minutes of the trial judge.
    The complaint alleged the issuing to the plaintiff’s assignor of a policy for $1,500, for the term of one year from April 13,1889; that on April 5, 1890, a fire occurred, by which the insured property was entirely destroyed ; that after the fire the assured, Frank M. Peck, executed and delivered to the plaintiff a general assignment of all his real and personal property ; and that payment of the amount of the policy had been duly demanded and refused.
    The answer denied any knowledge or information sufficient to form a belief as to the destruction of the property by fire, or the assignment to plaintiff, admitted the service of notice and proofs of loss, and alleged, by way of defense, that prior to the fire the sheriff of Jefferson county had levied upon and seized the stock of goods covered by the policy of insurance, by virtue of a judgment and execution in his hands, and was in possession of the same at the time of the fire, and that a change in the interest, title or possession of the subject of insurance had taken place prior to the fire, without any consent therefor endorsed upon the policy, as required in such case, and that the policy was, therefore, void at the time of the fire.
    On the 18th of February, 1890, John C. Hieber and others recovered a judgment against Frank M. Peck, the plaintiff’s assignor, for the sum of $1,019.13. The judgment-roll was on that day filed, and judgment docketed in Oneida county. On the 19th of February, 1890, a transcript thereof was filed and judgment docketed in the office of the clerk of Jefferson county.
    On the 2d of April, 1890, an execution upon this judgment was duly issued to the sheriff of Jefferson county and was received by him on the 3d of the same month. On the next day the sheriff went to Theresa, where the plaintiff’s assignor resided, arriving there at about ten o’clock in the forenoon, and went to the store of the plaintiff’s assignor, to whom he exhibited the execution and informed him that he should make a levy under it upon the stock of goods in the store, but that he would not return to Watertown until night, and he could have the day in which to pay the execution if he could. The sheriff claims to have made a levy upon the entire stock of goods in the store, and at the same time made an entry in his memorandum book which was as follows: “April 4, 1890 ; this day levied on stock of goods in store of F. M. Peck, Theresa, consisting of dry goods, groceries, ready-made clothing, boots and shoes, hardware, etc., etc. John 0. Hieber, David C. Wallace, J, F. Day and J. C. Eoberts vs. F. M. Peck. T. J. Barrows, attorney.” Ho endorsement was made upon the execution, nor was there any inventory made or possession of the goods taken except that the sheriff remained in and about the village until between four and five o’clock in the afternoon, when, the execution not having been paid, he informed the clerk in the store that he should have to close the store. The clerk closed up the store, fastening the doors and locking the outer door, gave the key to the sheriff who put it in his pocket and went to the railroad station. There he found Mr. Peck, and asked him for the other key of the store. Peck informed him he was trying to arrange for the payment of the execution and did not want to give up the key just then, but wanted the sheriff to stay over night, assuring him that he would be able to get the money and close up the matter. •This the sheriff finally consented to do and went to a hotel, informing Peck that they would find him there if they succeeded in getting the matter fixed up. About nine o’clock Mr. Yost, a banker residing at Theresa, of whom Mr. Peck was trying to procure the money, went to the hotel, found the sheriff and delivered to him the other key, which had been in Peck’s possession, which the sheriff put in his pocket. The fire occurred a little before one o’clock on the morning of April 5 th.

      At the close of the evidence a motion was made by the defendant that the court direct a verdict in its favor or nonsuit the plaintiff upon the ground that prior to the fire there had been such change of interest, title and possession in the property by the levy of the sheriff as rendered the policy void from that time, and that there could be no recovery. The court in effect held that the words “ unconditional and sole ownership ” in the policy referred to a condition existing at the time when the policy was issued and not to any subsequent or changed condition; also, that the condition in reference to change of interest, title or possession should be read in connection with the words “except change of occupants without increase of hazard,” and it was for the jury to say whether the change of interest, title or possession effected by the levy of the sheriff increased the hazard. The defendant excepted to the refusal of the court to nonsuit the plaintiff.
    The question whether the hazard was increased by reason of the sheriff’s having levied upon the property of the plaintiff’s assignor was submitted to the jury. The jury found a verdict for the plaintiff for $1,533.25.

      A. H. Sawyer, for app’lt; Thompson & Chapman, for resp’t.
   Martin, J.

The controversy between the parties arose over a policy of insurance issued by the defendant to the plaintiff’s assignor. The latter was a merchant doing business at the village of Theresa, N". Y. The property insured consisted of goods oí the kind usually kept for sale in country stores, and was contained in a three story brick building owned and occupied by the, insured. At the time of the fire the value of the property insured exceeded eleven thousand dollars. The policy in suit was for fifteen hundred dollars, and fifty-five hundred dollars concurrent insurance was permitted.

That the policy in suit was duly issued, the premium therefor fully paid and the property mentioned therein properly insured, are undisputed, nor does there seem to be any doubt that the property insured was destroyed by fire before the expiration of the time for which the policy was issued, and the value of the goods destroyed greatly exceeded the total insurance thereon. So, far as appears on this appeal, the only ground upon which the defendant at the trial sought to avoid its liability was that the sheriff of Jefferson county, before the fire, had levied upon the goods insured, by virtue of an execution against the plaintiff’s assignor. The claim of the appellant is, that when this levy was made the "policy became void by reason of the conditions contained therein. The conditions relied upon were: “ This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership * * * or if any change, other than by the death of an-insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or by voluntary act of the insured, or otherwise.”

The trial court held that the condition in the policy that it should be void if the interest of the insured be other than .unconditional and sole ownership related to the title of the property when the policy was issued, and not to any subsequent change or condition of the title. The whole policy when read and construed together tends to justify that construction. Haight v. Continental Ins. Co., 92 N. Y., 51. Yet, if it were to be held otherwise, it would be difficult to see how it could properly -be claimed that the title of the assured to the goods in question was other than unconditional and sole ownership.

In examining this question, as well as in examining the question if any change had taken place in the interest, title or possession of the subject of insurance, except change of occupants without increase of hazard, we are disposed to hold that the sheriff made a valid levy as between the parties. While his manner of making a levy was loose and quite uncertain, still we think it was, perhaps, sufficient. Dean v. Campbell, 19 Hun, 534; Roth v. Wells, 29 N. Y., 471; Bond v. Willett, 1 Keyes, 377 ; Barker v. Binninger, 14 N. Y., 270 ; Elias v. Farley, 3 Keyes, 398.

Assuming the levy to have been valid, the question is presented whether it changed the title so that it became other than unconditional and sole ownership, or produced any change in the interest, title or possession of the assured w hich rendered the policy void. Thus we are led to examine the effect of a valid levy upon the title of the property which is the subject of the levy.

In Miller v. Adsit (16 Wend., 349), the question as to the effect of a levy upon the title to property was somewhat discussed, and it was said: “ The sheriff has, in fact, no property in the chattel levied upon, either general or special; he has no right to sell it at private sale, nor to exercise any of the powers over it which one having a property in it may exercise; his control or power over the chattel is of a peculiar character, perfectly sui generis, which the law has given him as an executive officer in order that the judgment of the court shall be enforced or carried into effect, and that the ends of justice shall be attained, by satisfying the plaintiff’s demand out of the property of the defendant.” Again, in People v. Hopson (1 Den., 578), in delivering the opinion of the. court in that case, Bronson, Ch. J., said : “ The mere levy neither gives anything to the creditor, nor takes anything from the debtor. It does not divest a title; it only creates a lien on the property.”

In Tiffany v. St. John (65 N. Y., 319), it is said: “ After the action is over, and judgment obtained and execution levied, the case becomes clearly assimilated to that of an ordinary lien, and if tender is made, and not accepted, the lien will be extinguished.”

In Green v. Homestead Ins. Co. (82 N. Y., 517), the policy, which was on real and personal property, contained a condition that the company should not be liable for any loss if, without written consent, the interest of the insured in the property was changed in any manner, whether by the act of the" insured or by operation of law, and it was held that the filing of a mechanic’s lien did not effect any change of interest in the property insured.

Under the authorities in this state we think it must be held that, if valid, the levy upon the goods in question, at most, merely created a lien thereon which gave the sheriff the right to retain the possession until sold or until the levy was discharged by payment or otherwise, and that neither the sheriff nor the creditor thereby acquired any title or interest in the property within the true intent and meaning of the provisions of the policy under consideration.

The sheriff, however, became entitled to the possession of the goods levied upon. Whether he had taken actual possession under his levy when the fire occurred is not entirely free from doubt. The court held that if the possession was in the sheriff, still the change did not render the policy invalid unless it increased the hazard, and that question was submitted to the jury, and it found for the plaintiff. The correctness of this disposition of the question involves the consideration of that condition in the policy which provides that it shall be void if any change of title, interest or possession take place, except change of occupants without increase of hazard. The single question presented is, whether the words “ change of occupants ” relate exclusively to real estate or to personal property as well. The appellant contends that they relate only to real estate. In determining this question it may be well to remember that the subject of insurance in this case was personal property only, and hence, if the construction contended for by the appellant is to obtain, the words “except change of occupants without increase of hazard” are superfluous and meaningless. In construing contracts, as in construing statutes, effect must if possible be given to all the language employed. Applying that rule in this case, it becomes obvious that the words of the exception related to the property in question.

Moreover, the contention that the words “ change of occupants ” can relate only to real estate, and that the term applied to personal property would be absurd, does not seem to be sustained when we consider the ordinary meaning of the word occupant. The word occupant, as defined by Webster, is: “One who occupies or takes possession; one who has the actual use or possession ; or is in possession of the thing.” By Anderson: “One who has the actual use or possession of a thing.” By Abbott: “ One who has possession or controls things actual.” .He then adds: “In the vernacular, these words are used with a shade of meaning of being within the thing spoken of; one is said to occupy a house or a tract of land, but not often to occupy ordinary chattels. In law, such a distinction is less noticed; occupy may be used like ‘ possess ’ in respect to chattels; especially in the expression 1 title by occupancy.’ ” By Bouvier: “ One who has the actual-use or possession of a thing.” Thus we see that the meaning ascribed to the word occupant by lexicographers includes the possession of personal as well as real property. See, also, Pierson v. Post, 3 Caines, 175.

In construing this, as in construing any other contract, the language employed must be taken in its ordinary and popular sense, unless it appears to have been used in a technical sense, or custom or usage has impressed a different meaning upon it. Applying that rule to the questions before us, it becomes quite manifest that the exception in the policy which permitted a change of occupants where there was no increase of hazard applied as well to personal as real property, as it was in no way limited to the latter, and that the court, therefore, properly held that the change of possession did not render the policy void unless the hazard was thereby increased. The jury having found for the plaintiff upon that question, he was entitled to the judgment awarded.

As there is no question of waiver involved on this appeal, no examination of the question is necessary, although it was discussed by the appellant The trial judge, in considering whether the appellant’s motion for a nonsuit should be granted, referred to and somewhat discussed the question of waiver, but that question was in no way submitted to the jury or referred to in the charge of the court That the court properly denied the appellant’s motion, we have already in effect held. The ruling having been correct, any reasons for the decision that may have been stated by the court would not render it erroneous. As there are no other questions that need be considered, we think the judgment should be affirmed.

J udgment and order affirmed, with costs.

Merwin, J., concurs.

Hardin, P. J.

So far as the stipulation in the policy relates to 'change of title, I think it is to be construed as to an actual change of title or interest, and the “ condition applies only to a legal transfer which divests the insured of title to ” the subject insured, Browning v. Home Insurance Company, 71 N. Y., 509, and I concur in that part of the opinion' of Martin, J., which discusses the effect of a levy upon the personal property as regards the title thereto.

(2.) I am not satisfied by the proof that there was an actual change of “possession of the subject of insurance.” It may be argued that the sheriff, in virtue of the levy, had constructive' possession, but the evidence fails to establish that the actual “possession of the subject of the insurance had passed out of the insured. The lien of the sheriff supported by the execution was only about $1,050.00, while the store in which the goods were situated contained about $11,000 in value of goods. Although the sheriff had acquired the key or keys, it is not too much to assume that he acquired them for the purpose of returning to the store and removing such goods from the store, or producing an actual, physical change of possession of such goods as he might deem necessary to satisfy the requirements of the execution. We think it cannot be said as a matter of law that there was an actual physical change of possession of the subject matter of the insurance. If by virtue of the “legal process or judgment, or voluntary act of the insured, or otherwise” an actual change of the possession, or physical removal of the goods from the store in which they were at the time they were insured, as well as on the morning of the 4th of April, had been shown by the evidence, another question would have been presented.

I concur in the conclusion of the opinion of Martin, J. Judgment and order affirmed, with costs."


author: Per Curiam.

text:
    In the Matter of Jemima Lowe, an alleged Lunatic, for removal of Committee.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    Lunatics—Motion to discharge committee.
    In a proceeding to remove the committee of a lunatic, and to restore the property to the alleged lunatic, where it appears that no notice of the application for a commission was served on the alleged lunatic, who asks now to be personally examined as to her sanity, and the preponderance of evidence and weight of the affidavits seems to be in favor of. her sanity, the application should not he denied, but a further investigation had before the court or referee, upon which a proper result may be reached. •
    Appeal from an order made by the county court of Madison county denying the petition of Jemima Lowe, an alleged lunatic, praying that the committee of her person and estate be discharged and her property be restored to her. Petitioner is a married woman upwards of seventy-three years of age, who was married to John Lowe, who resides at Munnsville, Madison county, N. Y., over fifty-two years ago. The petitioner and her husband formerly resided in the city of Toronto in the Dominion of Canada. The petitioner seems to have some $2,500 on deposit in the Onondaga Savings Bank, and $2,500 on deposit in the Syracuse Savings Bank in the city of Syracuse. It seems that in the month of August, 1890, after the petitioner went to Canada, her husband commenced proceedings before the Madison county court to have a committee of her person and estate appointed; and on August 22, 1890, James Lowe, nephew of John Lowe, the husband, was appointed committee of the person and estate of said Jemima Lowe, and no notice for the application for the appointment of said committee, or of the time and place of the execution of the proceedings, was given to the alleged lunatic. On March 13, 1891, motion papers for the removal of the committee were served upon the committee, and on April 10, 1891, the Madison county court denied the motion, but “ with leave to the petitioner to renew the same upon fresh papers, as she may be advised.”
    On August 20, 1891, a second notice of motion was served for the removal of the committee, and on August 2, 1891, the court again denied the motion, and the order is filed in the Madison county clerk’s office, and the appeal before us is from that order.
    It has been asserted in behalf of the petitioner that the order of August 22, 1890, appointing a committee is void, as “ no notice of either the application for a commission having been given to the alleged lunatic, or of the place or time of holding of the inquisitionbut the decision of the general term, first department, in Matter of Blewitt, 41 St. Rep., 429, holds that the failure to give such a notice is a “grave irregularity," and it does not “ deprive the court of jurisdiction where the allegations of the petition show presumptively that the person is incompetent to manage his affairs by reason of lunacy.”

      Wilson, Kellogg & Wells, for app’lt; Charles Shumway, for resp’t
   Per Curiam.

The petition presented for the removal of the committee stated that a notice had not been given to the petitioner. The notice of motion asked for an order that the committee be removed, and for such other relief as might be just. Mo sufficient reason seems to be given for not having served upon the appellant notice of the proceedings for the appointment of a committee. See § 2325 of the Code.

In behalf of the appellant it was asked that she might be permitted to personally appear and be examined as to her sanity. Mo such opportunity seems to have been afforded her by the county court. The preponderance of the evidence and the weight of the affidavits found in the appeal book seem to be in favor of the sanity of the appellant. If an oral examination had been had of the affiants, that court might have come to the conclusion that the committee should be removed and the property restored to the petitioner. Viewing the evidence and affidavits found in the appeal book as we do, we think the order appealed from should be reversed; upon further proceedings before the county court an oral examination of witnesses may be ordered before the court, or a referee appointed for such purpose; when Such an investigation shall have been had before the court or a referee, and the evidence thus taken been considered, a result may be reached upon the evidence produced by both parties which will be more satisfactory to the conscience of the court below as well as to this court.

Order reversed, with ten dollars costs and' disbursements, and proceedings remitted to the county, court of Madison county. Hardin, P. J., Martin and Merwin, JJ., concur.


text:
    The People, Resp’ts, v. Dwight Webster Stoddard, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    Foeguky—Evidence.
    On the trial of an indictment for forging the name of complainant to a note for §400, there was some evidence tending to warrant an inference that defendant had loaned that sum to the complainant, and that she had executed the note to evidence such loan. The complainant’s husband was permitted, under objection, to testify that he did not know or hear of his wife having that sum of money at or about the date of said note. Held, error.
    Defendant was indicted for forgery in the second degree, in having forged the name of Mary B. Mack to a note of $400, payable to Sophronia Stoddard, dated October 19, 1888; and the indictment was brought to trial in the Herkimer sessions before a jury; a verdict of guilty was rendered; a motion for a new trial was made and denied ; affidavits were read on the motion for a new trial tending to show that the juror Ausman was related to the complainant in the prohibited degree; no objection in that regard was taken during the trial, as it was not known to the defendant that any relationship existed. Complainant, Mrs. Mack, testified that she did not sign the note or authorize its execution. Numerous witnesses were called who testified that in their opinion the signature was that of the complainant.

      J. A. Steele, for app’lt; I. P. Devendorf, district attorney, for resp’ts.
   Per Curiam.

During the trial some evidence was given tending to warrant an inference that prior to the execution of the disputed note the defendant had loaned to her $400, and that she had executed the note to evidence such loan.

The People called George W. Mack, the complainant’s husband, and put to him the following question : “ Q. Did yon know or hear of your wife having $400 at or about October 19, 1888 ?” This was objected to and the objection overruled, and defendant excepted. The witness answered: “No, sir.” Then the People put the following question: “ Q. Did you know or hear of your wife’s having $400 at any time during the year 1887, that is, from September 1st ?” Objections were taken and overruled, and defendant excepted. The witness answered: “No, sir.” We are of the-opinion that the court erred in receiving the evidence. We cannot say that the error was not prejudicial to the defendant and disregard the error under the rule laid down in § 542 of the Code of Criminal Procedure.

We cannot say that the evidence had no effect upon the result. People v. Wayman, 128 N. Y., 585 ; 88 St. Rep., 747. The issues were sharply contested at the trial, and to say the least the case was a close one on the main questions, and the evidence thus improperly received may have influenced the jury. Other questions were discussed before us upon the argument, which need not be considered, as the error we have, pointed out requires a new trial.

Conviction and order and judgment reversed, and the clerk directed to enter judgment and serve a certified copy thereof with the return and decision of this court to the court of sessions of Herkimer county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure.

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


author: Ransom, S. Per Curiam.

text:
    In the Matter of the Application of Ladislas Karge.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1892.)

    Decedent’s estates—Sale of seal estate to pay debts—Power of sale.
    Testator by his will, “after my lawful debts and 1 hose of my brother are paid,” gave his estate to his executors and directed them to convert it into money and distribute the proceeds in the manner prescribed in the ' will. Seld, that there was no power of sale for the payment of debts contained in the will, and that the surrogate properly ordered a sale for the payment of debts.
    Appeal by the executors of the estate of Michael J. Duffy, from an order of the surrogate granting leave to sell real estate for the payment of debts.
    The following is the opinion of the surrogate:
   Ransom, S.

Decedent died in February, 1891, leaving a will, which was duly admitted to probate, and letters testamentary issued to John B. Johnson and Eliza A. McAtamany. The personal property of decedent is insufficient to pay his debts. The respondent executrix opposes the application on the ground that the will worked an equitable conversion of the real estate as of the time of decedent’s death, the proceeds of which can be applied to the payment of his debts. The primary question is whether by the terms of the will the debts were charged upon the realty. The will provides: “ First. After my lawful debts and those of my brother * * * are paid, I give, devise and bequeath all my estate to my executors hereinafter named, and direct them to convert the same into moneyas soon after my death as possible, giving and granting unto my said executors full power and authority to sell and dispose of the same at public or private sale as they may deem best. And out of the proceeds thereof it is my will, and I hereby direct * * * ” Then follow five provisions directing the executors to dispose of the proceeds arising from the sale of the real estate. The provision in the will upon which the claim that the debts are charged upon the real estate is based, is “After my lawful debts * * are paid.” These words, in themselves, do not show an intention to charge the realty with the payment thereof. Matter of City of Rochester, 110 N. Y., 159; 17 St. Rep., 146; Clift v. Moses, 116 N.Y., 144; 26 St. Rep., 405; Matter of Bingham, 127 N. Y., 296; 38 St. Rep., 765. The case of Greenland v. Waddell 116 N. Y, 234; 26 St. Rep., 667, does not apply to the question under consideration. That case does not pretend to dispose of the rights of creditors to maintain proceedings in a surrogate’s court to sell lands of testator for the payment of debts. The court says in the same report, in the case of Clift v. Moses, supra, p. 155, that “ debts and legacies stand upon a different basis, and, consequently, words that would indicate an intention to charge one upon real estate might not convey any such intention as to the other.” The second point is whether the will worked such an equitable conversion so that at the time of decedent’s death there was no realty against which •creditors could proceed under the statute. §§ 2749-2750, Code Civil Procedure. The only conversion that could be worked is by the power of sale, and for the purpose only of applying the proceeds to the setting up of the trusts and the payment of legacies, and not for general purposes; and the proceeds could not be applied to the payment of debts, but only to the purposes specified in the will. Matter of McComb, 117 N. Y., 378 ; 27 St. Rep., 259; Sweeney v. Warren, 127 N. Y, 426; 40 St. Rep., 304. Application granted.

G. Bliss, for app’lt; F. A. Card, for resp’t.

Per Curiam.

Although we think that it is probable that the right to maintain this appeal does not exist, yet, in view of the conclusion at which we have arrived and the fact that it involves the settlement of an estate, we have concluded to pass upon the merits.

In determining the right of the surrogate to make the order applealed from resort must be had to the will of Michael Duffy for the purpose of ascertaining whether or not the same contains a general power of sale, or whether the real estate was expressly charged with the payment of debts, or whether the property is subject to a valid power of sale for the payment of debts. If such power existed or was given to the executors, then resort could not be had to a proceeding of this kind to sell the real estate for the payment of debts.

We think, however, that not only is no such power as suggested given to the executors, but that, on the contrary, the right of the executors to sell for any purpose except those specified in the will (which does not include a right to sell for the purpose of paying debts), is expressly excluded. The testator having limited the executors’ power to sell to a time subsequent to the happening of the event of the payment of the debts of himself and his- brother, the construction sought for would result in the court giving a power of sale prior to the time fixed by the testator.

The power of sale is not a mere naked power, but the whole real estate, after the payment of these debts, is devised to the executors for the purpose of sale and distribution among the legatees-mentioned in the will.

The order should be affirmed, with costs.

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