author: Andrews, Ch. J.

text:
    Haskell H. Marks, by Guardian, etc., Resp’t, v. Rochester Railway Company, App’lt.

      (Court of Appeals,

      Filed May 21, 1895.)

    1. Appeal—Verdict.
    A verdict, if it is sustained at all, must be sustained on the ground upon which the case was submitted to the jury.

      2. Master and servant—Authority.
    A servant may, in the interest of his master, when an exigency or emergency arises, do things which transcend his usual authority, and they will be deemed to have been authorized.
    3. Same—Appliance.
    The master is not liable for an injury which results from an unexpected and unanticipated conjunction of circumstances, not attending the ordinary use of the appliance or place.
    4. Same.
    Where there is no reasonable ground for holding that the rear platform of a street car is an unsafe place to put a boy old enough to exercise some degree of care, or that there is any negligence in placing him upon it to drive the horse, the question of negligence is improperly submitted to the jury.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order, which reversed an order granting a new trial and ordered judgment on a verdict in favor of plaintiff.
    This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant, a street railway corporation.
    The plaintiff, at the time a boy of eleven years and four months of age, was run over by one of the cars of defendant upon St. Joseph street in the city of Rochester, X. Y., upon the 23d day of of February, 1892, in consequence of which his leg was- crushed so as to require amputation.
    The line of the defendant’s road upon St. Joseph street, at that time, was a single-track line, the cars meeting and passing each other by means of switches placed at intervals. The cars in use were one-horse cars in charge of a single employee, who was at the same time driver and conductor. His position was in an inclosed platform in front of the car. The brake was at the front of that platform. The entrance for passengers was by means of a narrow platform open at the sides at the rear end of the car. The rear platform was three feet four inches wide. At the end was a dash about twenty inches wide and about thirty inches in height with a rounded top. The platform was ten inches below the floor of the car and fourteen inches above the rail. The distance between the rails upon which the car ran was four feet eight and a half inches inside. The rails themselves were about four inches wide, so that from the outside of one rail to the outside of the other was upwards of five feet four inches. The body of the car was seven feet two and a half inches wide at the widest part. The length of

      the car was sixteen feet two and a half inches, including platforms. These measurements show that the guard upon the back of the Tear platform protected just half of the space, leaving an - unprotected space of ten inches upon each side ; that the platform itself was two feet narrower than the distance between the rails, leaving .an open space of one foot on either side unprotected from the wheels; that the body of the car was nearly four feet wider than the platform, so that there was an extension of the side of the car nearly two feet upon each side beyond the edge of the platform.
    ■ Upon the day in question the plaintiff was chopping ice upon the sidewalk in front of his father’s house on St. Joseph street, when his attention was attracted by the approach of two streetcars of the defendant from opposite directions upon the single track in that street. The nearest switch was some distance south. After considerable altercation between the drivers, it was decided between them that the one who had come from the south should go back to the switch. To go back to the switch it was necessary to hitch the horse to the rear end of the car and pull the car backward to the switch. To do this required two persons, one to drive .and the other to manage the brake. The driver thereupon called to the plaintiff and told him to come and take the lines. The" plaintiff drove the horse around the car, and after the whiffletree was fastened to the rear end of the car, he got upon the rear plat-' form, and the driver told him to go ahead, he himself going back to manage the brake. After the car had proceeded a short distance, .a number of other boys jumped upon the car and some of them ¡go in the car and started to swing the car by dancing. The driver hallooed for the boys to get off. At this time the car was moving, the horse being on a trot. They did not do so, and he hallooed .again, and stamped his foot, and made a rush or feint as though he were coming through Üfe car to drive them off, at which the "boys took fright, and scrambled off the car as fast as they could, and-in doing so pushed the plaintiff off the platform. He was thrown under the car, and received the injuries complained of. The father and mother of the plaintiff knew nothing of his employment to drive the car, and did not consent thereto. The evidence is undisputed, the defendant offering no evidence whatever upon the second trial.
    The defendant moved for a non-suit upon various grounds, and took exceptions to the charge of the court and refusals to charge •as requested.
    The jury found a verdict for the plaintiff for $7,000.

      Charles J. Bissell, for app’lt; Eugene Van Voorhis, for resp’t.

      Reversing 59 St. Rep. 849.

   Andrews, Ch. J.

On the first trial the jury disagreed. The plaintiff on the second trial recovered a verdict for $7,000, which the trial judge subsequently set aside for what he regarded as his own error in refusing a non-suit. On appeal from the order setting aside the verdict, the general term reversed the order and directed judgment on the verdict, which was entered, and this appeal is brought by the defendant from the order of the general term and tho judgment pursuant thereto. .The complaint alleges that the plaintiff was engaged in assisting in the management of the car under the direction of the driver, and was placed on the réar platform to drive the horse, and while so engaged was crowded from the platform by persons who were leaving the car, and was thrown under the wheels and injured, and that the injury was caused by the negligence of the defendant. The only specification of negligence contained in the complaint is that the platform on which the plaintiff was stationed for the purpose of driving the horse was an unsafe and unfit place upon which to put a boy of his age to perform the duty imposed upon him.

The trial judge submitted to the jhry two questions, first, whether there existed such an emergency at the time as to authorize the driver of the car to employ outside assistance to get, the car back to the switch, and, second, if the jury found that such an emergency existed, whether he was negligent in placing a young boy under the circumstances upon the platform to drive the horse. The judge excluded from the consideration of the jury any claim of negligence other than the one set out in the complaint, and explicitly instructed them that unless they should find that the defendant was negligent in placing the plaintiff upon the platform to drive the horse, the action could not be maintained. The question whether the driver was guilty of negligence in ordering the other boys to get off the car while it was in motion was not submitted to the jury. The trial judge seemed to assume that if the defendant was negligent in employing the plaintiff, by reason of his tender years, and placing him on the rear platform to drive the horse, it was chargeable for all that subsequently happened, independently of the question whether a new agency had intervened, which was the proximate cause of the injury. He granted the motion for a new trial because, upon further consideration, he had reached the conclusion that there was no negligence in employing the plaintiff for the service to which he was put, and also for the further reason that assuming there" was negligence in this respect, it was not the proximate cause of the injury. The general term, in reversing the order granting a new trial, expressed the opinion that the question of the defendant’s negligence in placing the plaintiff upon the car to drive the horse, in view of his age and inexperience, was properly submitted to the jury, and that the verdict upon that ground was justified, but the court also held that the verdict could stand upon another ground, namely, the negligence of the driver in expelling the other boys from the car while in motion, in the manner disclosed by the evidence.

Whatever ground there might have been for presenting the case in this aspect to the jury, the verdict did not proceed upon that view. This aspect of the case was not presented to or passed upon by the jury. They were not permitted to consider it as a ground of their verdict, because the case was, by the explicit direction of the judge, made to turn upon the one question of negligence in placing the boy upon the platform to drive the horse. The verdict, if sustained,at all, must be sustained on the ground upon which the case was submitted to the jury. It would be obviously improper to sustain it on an independent ground which the jury were not permitted to consider. The trial judge, after the conclusion of the main charge in response to a request made by the dpfendant, but qualifying it, charged in substance that if the jury should find that the driver was authorized under the circumstances to employ the plaintiff to assist him, and that he was of sufficient age and experience to make it proper for the driver to employ him and place him in the position he did, the plaintiff was a co-employee and could not recover, although the driver was negligent in ordering the boys to leave the car while in motion. The judge in this, as in the main charge, made the liability to depend on the original negligence in employing the plaintiff and placing him on the rear platform to drive the horse.

The counsel for the defendant, on the trial, excepted to the submission to the jury of the question of the existence of an emergency which authorized the driver to procure outside assistance, and also to the submission of the question of negligence in employing the plaintiff to render the service required. The j udge at the trial and the judges at general term concurred in the view that an emergency existed which justified the driver in employing assistance to escape from the dilemma brought about by the meeting of the cars. It is not claimed that the driver had any general authority-to employ servants for the defendant. If he had authority to employ assistance under the circumstances of the case, it was an authority outside of the general scope of his employment. Clearly he had no authority, express or implied, to call upon bystanders to assist him in the discharge of any service which he himself could reasonably perform. If third persons undertook upon his solicitation and for his convenience to assist him in extricating the car from the blockade, when he could have accomplished the work himself, no authority to employ assistance could be implied. Such an implication could only arise when, in view of all the conditions, the driver could not himself without assistance, having a proper regard for the safety of passengers and the care of the car, have undertaken to take the car back to the switch. It is obvious that the driver could not at the same time have managed the brake and driven the horse. The driver of the other car had his own car and the horse to look after, and it does not appear that there was any other employee of the company in the vicinity to whom the driver of the car which was to be moved could have applied for assistance. While the evidence is not very direct or satisfactory as to the necessity for aid, we think that question was properly submitted to the jury. The defendant gave no evidence upon the point. The conduct of the driver indicates that, in his opinion, assistance was necessary, and the jury might reasonably have reached the conclusion upon the evidence before them, in the absence of any contradictory evidence, that there was an emergency which gave to the driver authority to call in outside aid on the occasion. The authority of a servant is not in all cases confined to the rendering of personal service. In every business and employment there are exigencies which are not anticipated and which require a servant to act, in the absence of the principal, for the immediate protection of his interests, and he may do things in his interest when the emergency arises which transcend his usual authority, and they will be deemed to have been authorized.

The jury having found that such an emergency existed in this case, the employment of the plaintiff to drive the horse was the act of the principal, and if his employment in this service directly by the principal would have been an act of negligence, his employment by the driver, acting for the time being in place of the master, was a negligent .act imputable to the defendant. The service which the plaintiff was called upon to render was unquestionably intended to be a gratuitous service. He went upon the car in compliance with the request of the driver. If the service required of the plaintiff was a dangerous one for a boy of his age, from which personal injury to him might reasonably have been anticipated, the defendant might justly be chargeable if injury happened which was the natural consequence of the employment. The plaintiff, by reason of his youth and inexperience, might not appreciate the risk, and he would not be held to the exercise of the same discretion and judgment in entering upon the service as would be required of an adult. The question whether a child is sui juris generally arises in actions based on negligence, and where contributory negligence either of the child or his parents is relied upon as a defense. The plaintiff was within the authorities old enough to exercise some degree of care. But( if such a boy was an unfit person to place upon the platform to drive the horse on account of the danger of injury to which it would exposed him, it would be for the jury to determine whether he knew the danger or was chargeable with negligence it accepting the employment. But we are of the opinion that there was no reasonable ground upon the evidence for saying that the rear platform of the car was an unsafe place to place the boy, or that there was any negligence in placing him upon it to drive the horse. The platform was three feet and more from side to side and was separated from the horse by a dash or guard. If a man or boy should fall from the platform when the car was in motion, he would be in danger of being injured by the car, the platform not being of the same width as the track upon which the car ran, A person standing on the platform might fall from tripping, or from being jostled by persons leaving the car, or by reason of some obstruction on the track with which the car might come in contact, or from other causes which may be easily imagined. But the plain practical question in this case was, whether any of these occurrences ought reasonably to have been anticipated as likely to hap-, pen if the boy should be put upon the platform to drive the horse back to the switch. We perceive no just ground for charging the defendant upon such an hypothesis. It was in no sense the'' case of putting a child at work upon a dangerous machine without instruction and warning. The plaintiff, as his evidence indicated, and as was stated to the jury, was a bright, intelligent lad, living on the street traversed by the defendant’s cars. He was directed by his father to cut the ice from the sidewalk and was engaged in chopping the ice when he requested by the driver to go upon the platform to drive the horse. The horse so far as appears was tractable, and when he started -to drive there was no apparent-reason why he would not safely perform the service required of him. If the other boys had not got upon the car and commenced swaying it, there is no suggestion that any injury would have happened. It resulted from an unexpected and unanticipated conjunction .of circumstances, not attending the ordinary use of the platform. The fact that by reason of the irruption of the boys and their skurrying to get off the car upon the order of the driver, the plaintiff lost his hold upon the reins and he was jostled off the car, does not we think prove or tend to prove that the platform was an unsafe place, or that there was negligence in placing the plaintiff upon it to drive the car, and this as we have said is the negligence charged and upon which the case was submitted to the jury-

Upon the case as presented we are of the opinion that this question of negligence was improperly submitted to the jury and that the order and judgment of the general term should be reversed and the order of the special term granting a new trial should be affirmed, with costs to abide the event.

All concur, except Haight, J., not sitting.

Judgment accordingly.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    The New York and Brooklyn Ferry Company, App’lt, v. The Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

      (Court of Appeals,

      Filed May 21, 1895.)

    1. Ferry—Lease—Renewal.
    Under the revised charter of 1870 (chap. 137 of 1870), the city of New York was under no obligation to renew a lease of ferry rights at the same rental as provided for under the old lease.
    2. Same—Buildings.
    "Where the ferry company, to whom the new lease was executed, was organized by the officers of the former company for its benefit and that of its stockholders, the new lease is in effect issued to the former company and it has no cause of action, upon the covenant in the old lease, to recover the value of the buildings and ferry fixtures erected by it.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order which affirmed a judgment in favor of defendant entered upon a verdict, and also affirmed an order denying a motion for a new trial.

      John M. Scribner, for app’lt; James C. Carter, for resp’t.
   Haight, J.

This action was brought to recover the value of certain buildings and ferry fixtures erected by the plaintiff at the foot of Roosevelt street, in the city of New York.

It appears that on the 26th day of November, 1867, the defendant granted to the plaintiff the right to operate a ferry across the East river from the foot of Roosevelt street to South Seventh street, in the city of Brooklyn, together with a lease of certain slips and bulkheads for the term of ten years, or until November 1st, 1877, at the annual rental of $4,900; that in and by the terms of the lease the plaintiff at its own proper cost and charges was to build and erect necessary bridges, floats and other fixtures at each landing place of the ferry and to keep the same in repair, together with the necessary docks and piers, and at the termination of the lease to surrender and yield up the said ferry, together with the bulkheads, piers, docks, floats, bridges, fixtures and improvements which may have been erected for the use of the ferry at the foot of Roosevelt street in good order and condition, subject, however, to the rights reserved to the plaintiff by the forty-first section of the charter of 1857, the provisions of which are as follows : “ All persons acquiring any ferry lease or other franchise or grant under the provisions of this act shall be required to purchase at a fair appraised valuation the boats, buildings and other property of the former lessees or grantees actually necessary for the purpose of such ferry grant or franchise.”

It further appears that one John English also held a lease from the defendants of a pier in the East river adjoining that leased to the plaintiff'at the foot of Roosevelt street at an annual rental of $1,500 per year, which he assigned to the plaintiff, who used the same in connection with the ferry rights acquired in and by the first-mentioned lease, and that in 1871 the New York and Brooklyn Bridge Company entered into negotiations with the plaintiff, defendant and one John L. Brown, who occupied adjoining premises, to acquire the lands so leased and held by the plaintiff, for the purpose of locating thereon the New York end of the bridge, which negotiations resulted in what is known as the quadrupartite agreement, in which the plaintiff agreed to release the premises-occupied by it as a landing place for the ferry, and to accept in lieu thereof certain other premises adjoining, including those occupied by Brown, and for the purpose of effecting such change it was paid the sum of $80,000 with which to construct buildings, bridges and other necessary ferry fixtures upon the abutting piers in the place of those existing upon the piers released to the bridge company. Pursuant to this agreement, and on the 4th day of April, 1871, the mayor, aldermen and commonalty of the city of New York, as party of the first part, made and executed to the plaintiff, as party or the second part, a lease of the premises described in the quadrupartite agreement, taken in place of those covered by the former lease for the unexpired term of that lease, at the annual rental of $6,400. - In and by this lease it was provided, “ and the said party of the first part, for itself, its successors and assigns, covenants and agrees by these presents to and with the said party of the second part, its successors and assigns, that the buildings and ferry fixtures that shall be put upon the hereby-granted and demised premises shall be paid for by the said party of the first part, its successors and assigns, to the said party of the second part, its successors and assigns, if a new lease shall not be granted to the said party of the second part, its successors, and assigns, in the manner provided for in and by the said first-mentioned recited identure or lease.” At the termination of this lease the plaintiff demanded from the officers of the city a renewal thereof at the same rental which was refusedj and thereafter the ferry grant and lease was made to the New York Ferry Company for the term of five years at the annual rental of $15,050 per year. This action was brought under the above-quoted covenant.

The first question presented for our determination is as to whether the plaintiff was entitled to a renewal of the lease at the same rental, or in default thereof to recover pay for the buildings and ferry fixtures constructed by it upon the premises referred to. This question involves a construction of the provision of the lease. Does the phrase “ in the manner provided for in and by the said first-mentioned and recited indenture of lease" relate to the provision with reference to the new lease which immediately precedes it, or does it relate back to the provision with reference to the payment for the buildings and ferry fixtures ? In answering this question we should look for the intention of the contracting parties as disclosed from the surrounding circumstances and the history of the transaction. By referring to the charter of 1857, we find that ferry rights were required to be let to the highest bidder for a term not to exceed ten years, and under it the only way in which the ferry company could have a renewal of its lease was by again becoming the highest bidder therefor. No agreement could, therefore, be entered into for a renewal at the same rental, but instead thereof we have the provisions of the forty-first section in which the ferry company was awarded the fair appraised valuation of its buildings and fixtures, which was required" to be paid for by the new lessees. These provisions were omitted by the revision of the charter in 1870 (chap. 137), but we apprehend the rights of the parties remained unchanged, for the charter of 1857 and the provisions of section 41 were distinctly referred to and made a part of the lease of 1867. We thus have the policy of the city distinctly indicated. It was to grant rights to operate a ferry together with a lease of the necessary piers for landing purposes for a limited term of years to the highest bidder, leaving it to the lessee to construct and maintain the necessary buildings and ferry fixtures, undertaking, however, that he shall be paid therefor the fair appraised value at the expiration of his lease by the persons or company succeeding thereto in case he should fail to acquire a new lease. We find nothing in the provisions of the revision of 1870 that indicates a change of policy in this regard. Chapter 876 of the Laws of 1869 was not repealed. By it the granting of ferry rights was transferred to another department of the city government; but nothing is found in the provisions of that act or of the new revision authorizing the city, or any of the officials thereof, to enter into the business of constructing buildings or ferry fixtures upon the piers or docks owned and controlled, by it, or to continue leases at the same rental, rather such an idea would seem to be negatived by the fact that the statute still retains the provision prohibiting a lease for a longer term than ten years, thus leaving it in the hands of the officers then charged with the duty of letting to determine the amount that should be demanded and the conditions imposed. There is nothing in the provisions of the old lease specifying or providing the manner or conditions upon which a renewal lease should be given. There is, however, a provision relating to the manner in which the lessee shall be paid for his buildings and fixtures, from all of which we conclude that the phrase alluded to was intended to refer to the payment for the buildings and fixtures and not to the renewal of the lease. So construing the covenant, it follows that the defendant was under no obligation to renew the plaintiff’s lease at the same rental paid under the old lease.

It remains to be seen whether a new lease was in effect issued to the plaintiff. This question was carefully tried and submitted to the jury, who found in favor of the defendant. Our reading of the appeal book leads us to conclude that this verdict is well sustained by the evidence. The new lease was issued to the Hew York Ferry Company, a corporation with a different name, but it was organized by the officers of the plaintiff evidently for its benefit and that of its stockholders and for the purpose of enabling the plaintiff to maintain this action. It consequently follows that as yet no breach of the covenant sued upon has been shown. The plaintiff in effect became its own successor under a new name and as such has no cause of action for the buildings and fixtures in question during the lifetime of its new lease.

The judgment should be affirmed, with costs.

All concur. Judgment affirmed.


author: Gray, J.

text:
    In the Matter of the Application of William H. Smith et al., for a writ of Habeas Corpus, etc.

      (Court of Appeals,

      Filed May 3, 1895.)

    1. Personal liberty—Restraint.
    Where the right to restrain the citizen in his personal liberty or to interfere with his pursuit of a lawful avocation is claimed, it must appear very clearly and satisfactorily, not only that it has been conferred by the law, but also that in its exercise the facts are present which justify it.
    2. Board of health—Powers of.
    To justify, under § 5, tit. 13, chap. 583 of 1888, and § 14, chap. 661 of 1893, the isolation of a person, alleged to be infected with and exposed to a contagious disease, the fact must exist that such person is infected with such disease or has been exposed to it.
    3. Same—Quarantine.
    No authority is given by the above provisions to the health commissioner to quarantine any person simply because he refuses to be vaccinated, and to continue him in quarantine until he consents to such vaccination.
    Appeal from order of the general term of the supreme court in the second judicial department, entered upon an order, which reversed an order of special term made in habeas corpus proceedings discharging the appellants from the custody of Z. Taylor Emery, health commissioner of the city of Brooklyn.
    The relators alleged in their petition that they were imprisoned, or restrained of their liberty, at their house in the city of Brooklyn, not by virtue of any judgment or process issuing from any court, but upon the order and direction of the respondent, the commissioner of health of the city of Brooklyn. They alleged as the cause for their imprisonment, which was effected by a detail of policemen to watch the premises, that they had refused to permit themselves to be vaccinated. They also alleged that they had been exposed to no contagion and were not afflicted with any disease, contagious or otherwise. In the return made be the commissioner of health to the writ of habeas corpus issuing upon the relators’ petition, it is stated that the relators were placed under-quarantine by liis orders and by virtue of the authority vested by law in him to take such precautions as are necessary for the protection of the public health against smallpox; that the relators were detained in quarantine by reason of their refusal to permit themselves to be vaccinated; that for several months previously smallpox had been present to an alarming extent in the city of Brooklyn and had been epidemic in that city, and that the utmost precaution and most thorough preventive measures were necessary in order to prevent the spread of the disease - beyond control. It. is then alleged in the return, as a well-established scientific fact, that vaccination is a preventive of that disease. The health commissioner then proceeds to state as follows: “That, as I was informed and believed, before ordering the quarantine to be placed upon the said premises and that said persons be detained therein, the said William H. Smith (one of the relators) is the proprietor of an express delivery business, and that the said Cummings (the other relator) is employed by him in said business, and that they are both actively engaged in the prosecution thereof in the cities of New York and Brooklyn and especially at Grreenpoint and the eastern district of said city of Brooklyn, which latter has been one of the worst infected centres of said city. That said business is of a general nature, and may include the carrying of trunks, bedding, furniture and numerous other articles which may come from infected centres and be infected with the germs of smallpox ; and it. became at once apparent to me that the said Smith and Cummings were unusually exposed to such contagion, and that they might be seized therewith and by communication with others spread the same; and that it was, therefore, of special importance that they should be vaccinated at once.” The return then goes on to state that a quarantine was ordered to be-placed upon the premises and the persons contained therein, until they consented to be vaccinated, and that such measures were taken in order to protect the citizens of Brooklyn, in the belief that if the said Smith and Cummings were permitted to continue in their said business without being vaccinated they might be the means of most- serious fatal consequences to other citizens. The return alleges that there had been at least twenty-eight cases of smallpox in and about the 17th ward of the city and that a proclamation of great and imminent, peril had been made by the mayor and the president of the medical society of the county of Kings. The proclamation, to which reference is made in the return, is annexed and refers to the measures, and acts declared to be necessary by the commissioner of health and approves of them, and declares that the peril from an impending epidemic of smallpox shall be deemed to exist, etc. The acts and measures, which that declaration approves, are stated over the signature of the commissioner of health, who declares them necessary to be taken for the preservation of the public health from the impending pestilence of smallpox. They are stated to be, “ First: Thorough and sufficient vaccination of every citizen, who has not been successfully vaccinated within such period of time as, in the judgment of the commissioner of health, renders such person immune, should be procured. Second: Whenever any person in said city shall refuse to be vaccinated, such person shall be immediately quarantined and detained in quarantine until he consents to such vaccination.” The relators demurred to the return and, after a hearing, were discharged from the commissioner’s custody. They appealed to this court from an order of the general term which reversed the order, etc., discharging them.

      Charles J. Patterson, app’lts; Alexander H. Van Cott, resp’t.

       Reversing 65 St. Rep. 464.

   Gray, J.

The question presented, like all those which involve the right to restrain the citizen in his personal liberty, or to interfere with his pursuit of a lawful avocation, demands a careful consideration of the provisions of law, under which the right is alleged to be conferred. Where such a right is claimed, it must appear very clearly and satisfactorily, not only that it has been conferred by the law, but, also, that in its exercise the facts were present which justified it. The validity of the law is not so much called in question, as the right to enforce its provisions is. For his authority, the respondent refers to certain provisions of the charter of the city of Brooklyn (Chapter 583, title 12); where the health commissioner is empowered as follows: ‘‘Section 5. In the presence of great and imminent peril to public health of the city of Brooklyn, by reason of impending pestilence, it shall be the duty of said commissioner to take such measures * * * for the preservation of the public health from such impending pestilence as he may in good faith declare the public safety and health to demand, and the mayor of the said city and the president of the Medical Society of Kings County shall also in writing approve. And such peril shall not be deemed to exist, except when and for such period of time as the mayor, president of the medical society and the health commissioner shall by proclamation declare.” The-provisions of section 14 of chapter 661 of the Laws of 1893 (the “Public Health Law”), which relate to “contagions and infectious diseases,” are, also, referred to. They are that, “Every such local board of health shall guard against the introduction of contagious and infectious diseases by the exercise of proper and vigilant medical inspection and control of all persons and things arriving in the municipality from infected places, or which from any cause are liable to communicate contagion. It shall require the isolation of all persons and things infected with or exposed to such disease- and provide suitable places for the treatment and care of sick per, sons who cannot otherwise be provided for. * * * It shall provide at stated intervals a suitable supply of vaccine vims,, etc., * * * and at all times provide thorough and safe vaccination for all persons in need of the same." It would seem from a consideration of these provisions of law that, while responsibility and a wide authority have been conferred upon the respondent in the administration of his important office, nevertheless, the statute contemplates, when persons or property are to be affected by the isolation mentioned, that the fact must exist, either that they are infected with the contagious disease, or that they were exposed to it. But I find no warrant for the rather extraordinary declaration of the commissioner that “wherever any person shall refuse to be vaccinated, such person shall be immediately quarantined and continued in quarantine until he consents to such vaccination.” Of course, if we could regard it as a mere expression of his opinion as to what measures would be necessary to prevent pestilence, this document would not demand our consideration; but, being issued officially and with the formal approval of the mayor and the president of the Sedical Society of Kings County, as required by the city charter, it assumes the importance of a public and official paper, and the inquiry suggests itself as to the authority for its terms. . That the powers conferred upon the health commissioner by the provisions of the city charter give to him the right to compel the vaccination of every citizen in the city of Brooklyn, if he would escape quarantine, seems an unnecessary and it is an unwarrantable inference from the language. It is difficult to suppose that the legislature would invest local officials with such arbitrary authority over their fellow-citizens and_ the language of an act would have to be very plain before the court would be warranted in giving it such a construction. But the legislature has done nothing of the kind. In the presence of imminent peril to th§ public health of the city, by reason of an impending pestilence, he may take such measures as he declares the public safety demands and which are approved by the mayor and the president of the medical society. This language is sufficient to confer the needed authority to do all acts which in his judgment, as approved by his associates in the matter, are necessary to be done to improve the sanitary conditions of the city and to preserve the public health from being affected. That authority would, undoubtedly, be sufficient to deal summarily with cases where persons are stricken with a contagious or infectious disease, or have been actually exposed to it, and it is broad enough for every practical purpose in dealing with the facts of any case presented; but the authority is not given to direct, or to carry out, a quarantine of all persons, who refuse to permit themselves to be vaccinated and it cannot be implied. Certainly no power should be implied from an act, which is not necessary to its due execution; and where the liberty and the property oí persons are sought to be brought within its operation, the case must be clearly seen to be within those intended to be reached.

Passing to the question of what power is vested in the commissioner by virtue oí his office, under the Public Health Law, it is very clear that an “isolation of all persons and things" is only permitted when they are “infected with or exposed to" contagious and infectious diseases. That that language means, when speaking of persons and things “exposed” to disease, the actual fact and not a mere possibility, is plain from the language which precedes it in the section. The local board of health is to guard against the introduction of contagious and infectious diseases, by the exercise of medical inspection and control of persons and things, either arriving from infected places, or from any cause liable to communicate contagion. Obviously, there must be an inspection of persons and things and the resulting discovery, if they are not actually “infected” with disease, that they have been ‘ ‘exposed” to it, and that the conditions actually exist for a communication óf contagion, in order to bring into operation the power to isolate. The meaning of the particular language in the section is, and it should read, that the board of health shall “require the isolation of all persons and things infected with, or who have leen exposed to such diseases.” In the present case, the relators are not alleged to have been infected with any contagious or infectious disease, or to have been exposed to such. The allegations of the commissioner of health are based only upon information and belief and, when referring to the necessity for the stringent measures adopted towards the relators, they simply assert the prosecution of a general express business, which is, in part, carried on through what “has been one of the worst infected centres of the city.” It is not alleged that the business had included the carrying of infected articles, or articles from infected centres, or that the relators »had been exposed to contagion; but possibilities,, merely, are alleged. It is alleged that the business may include the carrying of articles, which may come from infected centres and the relators might be seized with smallpox; and, if they were permitted to continue in their business without being vaccinated, they might be the means of serious consequences to other citizens with whom they came in contact. Such allegations fall far short of stating facts, upon which the commissioner of health would be authorized to take such drastic measures, as to effect the imprisonment of citizens by quarantining them in their houses. He had no jurisdiction to make the order here, unless there was, in fact, before him a case where the parties were either infected with, or had been actually exposed to the disease of smallpox. It was necessary to that jurisdiction that the danger should actually have existed, in the infection of the person or things, or in their having been exposed to the disease. See People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; 55 St. Rep. 416. While he was vested with greated and extensive powers, in order, in the presence of danger, to act summarily for the preservation of the public health, he was bound to show a state of facts which justified such an exercise of those powers.

I think no one will dispute the right of the legislature to enact such measures as will protect all persons from the impending calamity of a pestilence and to vest in local authorities such comprehensive powers as will enable them to act competently and effectively. That those powers would be conferred without regulating or controlling their exercise, is not to be supposed and the legislature has not relieved officials from the responsibility of showing that the exercise of their powers was justified by the facts of the case. The question here is not whether the legislature had the power to enact the provisions of section 24 of the Health Law; but whether the respondent has shown that a state of facts existed, warranting the exercise of the extraordinary authority conferred upon him. Like all enactments which may affect the liberty of the person, this one must be construed strictly; with the saving consideration, however, that, as the legislature contemplated an extraordinary and dangerous emergency for the exercise of the power conferred, some latitude of a reasonable discretion is to be allowed to the local authorities upon the facts of a case.

As the respondent has utterly failed to show any facts which warranted th.e isolation of the relators, they were, properly discharged and the order of the general term should be reversed and that of the special term affirmed.

All concur, except Haight, J., not voting.

Ordered accordingly.


text:
    In the Matter of the Judicial Settlement of the Accounts of Julia L. James (now Butterfield), as Executrix of Frederick P. James, Deceased.

      (Court of Appeals,

      Filed May 21, 1895.)

    1. Contract—Consideration.
    A meritorious consideration, or the duty to provide for a wife or child, is not sufficient to support an executory covenant.
    2. Same.
    Bonds, executed and delivered by a husband to his wife as a gift, are not enforceable after his death against his estate.
    3. Will—Construction.
    Where a will is the subject of construction, it is the intention of the testator, and not the rule of construction, which is to govern, when they come into conflict.
    4. Same.
    The comprehensive words of a gift by the testator to his widow of his “property of every kind,” “without restraint, deduction or interference in any manner,” are especially significant in indicating his intention that she should have whatever came into the estate in the form in which he left it.
    5. Principal and agent—Authority.
    The fact that, at the time the testator was dying, a clerk of the firm, of which testator was a member, who held a power of attorney authorizing him to sign checks for the firm, was requested by a messenger from the testator’s home to draw, and did draw two checks for account of the wife, which were cashed and money deposited to her individual account, does not justify a finding that the checks were delivered by the husband's authority, or that the authority of the clerk under the power of attorney had been validly called into exercise.
    6. Judgment—Effect.'
    Where, in an action brought by a firm creditor for the protection and distribution of the firm assets, a judgment was rendered, settling the receiver’s accounts and directing him to deliver over the interest and dividends upon certain bonds and stocks collected by him to the testator’s widow, as executrix of the surviving partner, the judgment is not open to attack upon her accounting, and she is entitled to treat as income the money collected by the receiver as interest and dividends and paid over to her.
    Cross-appeals from judgment of the general term of the supreme court in the second judicial department, entered upon an •order, which modified, and affirmed, as modified, a decree of the surrogate of Putnam county settling the account of Julia L. Butterfield, as executrix of the last will and testament of Frederick P.-James, deceased.
    Upon the accounting of the executrix of Mr. James’ will, various objections were filed on the part of his heirs and next of kin to the accounts. He left the following will, which had been dictated by him a few years before his decease.
    “I, F. P. James, of Philipstown, Putnam county, New York, being of sound mind, declare this my last will and testament, revoking all former wills and codicils. I give and bequeath to my beloved wife Julia, for her sole use, enjoyment and benefit during her life, without restraint, deduction or inference in any man-man whatsoever, as follows:
    “ First—One-half of the income of all my property of every kind of which I may die possessed.

      “ Second—The use, enjoyment, rental and occupation of my two residences, one known as “ Cragside” in Cold Spring and Philips-town, New York, and the other known as Ho. 400 Fifth avenue, New York city.
    “Third—I give, devise and bequeath absolutely to my said wife all the household furniture, pictures, plate, books, ornaments, horses, carriages, farm implements and property of every description in or upon or appertaining in any manner to the two housesandresidences aforesaid. The said devises and bequests to my said wife to be in lieu of dower and right of dower. I give, devise and bequeath to my legal heirs the remainder of the income from my property during the life of my wife after the payment and discharge of all taxes, assessments and charges, interest and obligation against my estate, except as hereinafter provided, in case of interference, i give, devise and bequeath to my legal heirs, except as herein provided otherwise, the reversion and ownership of all my estate and property after the death of my wife, with the reservation, exception and direction, that in the event of any of my legal heirs making any attempt directly or indirectly, in any manner or form to interfere with or restrain in any manner my beloved wife from full enjoyment, use, management and direction •and disposition of the property and income of my estate, ■ as herein devised, then and in that event such one of my legal heirs as shall do or perform or aid or abet the performance of such an act, or cause the same to be done, shall be forever debarred from any part, parcel, interest or ownership, or inheritance to any of my property, and be excluded from sharing in the same, and the share that would otherwise have gone to him or her shall be divided among the remaining heirs according to law. I authorize and direct my executrix in her discretion to sell and convey such

      portion of my property as may be requisite or necessary to pay and discharge my just debts and obligations.
    “ I constitute and appoint my wife Julia L. James, my sole executrix and direct that no bond, obligation or surety be required from her.”
    Mr. James left no parents, or descendants surviving him. In his lifetime he had been the senior member of the banking and brokerage firm of F. P. James and Company. There were no written articles of co-partnership between him and his partner Horace S. Taylor, and the finding is that the latter had one-fifth interest in the profits and was to bear one-fifth of the losses of the firm. Mr. Taylor predeceased the testator by a few days. The executrix and the next of kin have appealed from the order of the general term, which modified the surrogate’s decree and, as modified, affirmed it.

      William W. Goodrich and William P. Quinn, for executrix, app’lt; Frank M Smith, for Henry A. James et al., app’lts ; William C. Wallace, for Chase et al., resp’ts ; Walter M. Rosebault, for executors of E. D. James et al.; Frank E. Smith, for Henry E. James et al., resp’ts; Robert Mazet, for executors of Mary A. Clark, resp’t; Charles S. Clark, for guardian ad litem resp’t.

       Affirming 60 St. Rep. 184.

   Gray, J.

The first of the questions we shall consider is one which arises upon the appeal of the executrix. She made a personal claim, amounting to $127,123.16, which the surrogate allowed; but which the general term, upon appeal, disallowed. The facts upon which it was based are these: In 1879, a few years before the death of Mr. James, he executed and delivered to his wife two bonds ; one of which was conditioned for the payment of $43.920, one year after date, and the other for the payment of $30,720, one year after date. Both bonds bore interest and were secured by mortgages upon lands in the state of Iowa;' the legal and record title to which was in Mr. James. A few days after-wards, Mr. James conveyed all of the lands covered by these mortgages to a grand-nephew of Mrs. James; at the time an infant of the age of nine years. It was found with respect to this latter transaction that it was advised as a mode of delaying, and to enable legal proceedings to be taken to defeat, the payment of taxes, which had been laid upon them and which were believed to be illegal. In 1882 a suit was commenced to foreclose the mortgages by Mrs. James ; who made her husband and the infant Wheeler, the grantee of the lands, parties defendant. Process in the suit was served outside of the state of Iowa upon the defendants, but Mr. James did not appear. In 1883, judgment of foreclosure and sale was entered," in which the amount due to Mrs. James upon the bonds was fixed at $94,973.83. No sale was made during the lifetime of Mr. James under the decree; but, after his death and in 1885, Mrs. James caused a sale to be made, at which the mortgaged premises were sold for the sum of $5,280. The decree of foreclosure and sale gave no judgment against Mr. James personally, forasmuch as the district court in Iowa had acquired no jurisdiction to render judgment in personam upon a service without the state and without personal appearance of the party served. The claim of the executrix is for the whole sum secured by the two bonds, with interest from their date, less the amount realized upon the sale of the lands. The surrogate found, with respect to the delivery of the bonds and mortgages, that they were a gift by Mr. James to his wife and that he was not indebted to her at the time in any sum whatsoever. He allowed her claim on the ground that they were enforcible obligations in the hands of Mrs. James against the estate of her husband, regarded either as a gift, or as a provision for her in addition to the bequests of the will. I think that the general term correctly held that the executrix had no claim upon these bonds, which she could enforce against the estate in her hands, and that she had obtained all the relief in the foreclosure suit to which she was entitled. These bonds amounted simply, to the promise of Mr. James to pay, at some future day, the sum mentioned, without any consideration to support that promise. Such a voluntary promise cannot be enforced against the donor, or against his executors or administrators. (See Pomeroy’s Equity Jurisprudence, § 1148; Story’s Equity Jurisprudence, § 987.) By the latter authority, it is stated as follows: “The general princible is established, that in no case whatsoever will courts of equity interfere in favor of mere volunteers, whether it be upon a volunteer contract, or a covenant, or a settlement, however meritorious may be the consideration, and although they stand in the relation of a wife or child.”

The question of the validity of a gift, in the form of a promise to pay, only, without consideration, was elaborately considered in Harris v. Clark, 8 N. Y. 93, and it was there held, to quote the language of Judge Ruggles, “that a volunteer promissory note-without consideration is not, as the law now stands, the subject of a valid gift by the maker, either as a present donation, or as a. gift to take effect at the death of the donor.” The fact that in that case the subject of the gift was a bill, or draft, does not affect its application to the case of a bond; inasmuch as no presumption of a valuable consideration obtains from the presence of the seal, in view of the findings of fact that the bonds were executed and delivered as a gift and not because of any indebtedness. In Whitaker v. Whitaker, 52 N. Y. 368, the question discussed was whether a meritorious consideration was sufficient in equity to sustain a promissory note given by a husband to his wife, as against his collateral heirs ; and the conclusion reached by JudgePeckham (in which all his associates concurred), after a review of the English authorities, was that the law was well settled, contrary to the doctrine in the early case of Wright v. Wright, 1 Cow. 598, “that a meritorious consideration, or the duty to provide for a wife or child, is not sufficient to support an executory covenant.” The case of Hunt v. Johnson, 44 N. Y. 27, was referred to in the opinion and deemed to be without the rule: because it was a case of an executed sale or transfer of real estate, to uphold which natural affection is undoubtedly a sufficient consideration. Nor does the fact that the gift in Whitaker v. Whitaker was of a promissory note, which the husband made in his lifetime for the purpose of making a provision for his wife, affect the question .as an authority in point; for the same reason that I have mentioned in reference to the case of Harris v. Clark. It is unnecessary to discuss a question which hás been well treated at the general term, further than to say that I think that they were right in holding that, while in Iowa judgment of foreclosure had no effect to create a personal liability upon the bond, it was conclusive as to the ownership of the mortgages and the right of Mrs. James to have the lands therein described sold and the proceeds applied upon the amount represented by the bonds. The importance of that holding seems to be that the contestants upon the accounting are precluded from inquiring either as to the right of the executrix to sell the land, or as to whether she held the mortgage in trust for the firm of F. P. James & Co.

Another question, as to which the executrix has appealed, is with reference to the payment to her of $2,500 upon the day of the testator’s death. It seems that, in the morning of that day and while Mr. James was in fact dying, a clerk of F. P. James & Co., holding a power of attorney to sign checks for the firm, was requested by some one, acting as a messenger from the residence, to draw two checks for Mrs. James’, account, one for $1,000 and the other for $1,500. Upon the clerk’s demurring to the request, he was assured that it was all right and he then drew the checks, which the messenger caused to be cashed and deposited to the individual credit of Mrs. James. The surrogate found that these ■checks were delivered to Mrs. James by her husband’s authority ; but the general term has reversed the surrogate in that respect; holding that there is no evidence to sustain the finding. I think their conclusion was correct and that the facts of the transaction would not warrant any inference that the authority of the clerk, under the power which he held from the firm, had been validly ■called into exercise. If the transaction had been merely one, as to which all we knew was that the clerk had delivered the checks to Mrs. James, an inference might have been possible, which is ■quite rebutted by the circumstance that the clerk only drew and delivered them when moved to do so by a messenger; whose ■source of authority to make the request was not shown to be in Mr. James.

One of the most important questions raised upon the accounting was, whether dividends received upon the stocks of certain railroad construction companies should be treated as capital, or as income. Two of the companies constructed railroads and upon their sale received land grants in payment. The other company also constructed and sold a railroad, but received in part payment a certificate of indebtedness secured by a mortgage upon land. The surrogate apportioned the dividends, paid by these corporations since the death of Mr. James, by holding so much as were derived from the purchase price of lands sold to be capital and so much as were derived from interest on deferred payments on contracts of sale, or upon the certificate of indebtedness, he held to be income. The general term reversed that ruling and held that all the dividends were income. If there was nothing in the language of this will, which evidenced an intention on the part of the testator that his widow should have and enjoy as income whatever actually came into the estate eo nomine and as he had been himself in the habit of receiving, I should hesitate very much to say that the general term were correct. Undoubtedly, the dividends declared by these companies were from their capital, because they had no source of income other than from their sales of land and dividends could not be derived in any other way. These corporations were peculiar, in that their only business, after the expenditure of their capital in the construction of railroads, was to sell the lands received in payment and to divide the proceeds, as received, among their stockholders. In that respect, of course, there was a distinction between them and corporations which are engaged in ordinary business enterprises and receive returns in the way of earnings upon the invested capital. Their dividends were, in truth, ordinary and . not extraordinary; for the reason that they were the only ones which they could, in the nature of things, make. I think, however, we may consider the question before us upon a broader ground, where, in connection with kindred questions, it may be disposed of by the application of the rule of intention. Whether the rule, with relation to the respective rights of the life tenant and remainder-men, shall so apply, in the case of a testator’s estate, as that the personalty shall be converted and invested in such permanent and legally recognized forms as shall benefit both the tenant for life and the remainderman, may depend upon the form and language of the will. It seems to me that in this case the intention of the testator, that his personal estate shall remain in species, the income of which should be received and enjoyed by his wife as it had been by himself, is manifest. At the time when he made his will he had no children, no descendants of children. The will was drawn at his own dictation and peculiarly expresses his great affection for his wife and his desire that her enjoyment of his estate and the benefits which she was to derive from it were to be without any regard to those who, after her death, were to have the reversion of his property and whom he defines by the very general and generic term of his legal heirs.” In the first place, his language is “I give and bequeath to my beloved wife Julia, for her sole use, enjoyment and benefit during her life, without restraint, deduction or interference in any manner whatsoever, as follows: First. One-half of the income of all my property of every kind of which I may die possessed.” He then gives her the use of his town and country residences and makes the absolute bequest of all household furniture, pictures, plate, books, ornaments, horses, carriages, farm implements and property of every description, in, or upon, or appertaining in any manner to the two houses and residences. He then proceeds as follows : “I give, devise and be-bequeath to my legal heirs the remainder of the income from my property during the life of my wife after the payment and discharge of all taxes, etc. * * * except as hereinafter provided in case of interference. I give, etc., to my legal heirs * * * the reversion and ownership of all my estate and property after the death of my wife, with the reservation, exception and direction, that in the event of any of my legal heirs making any attempt directly or indirectly, in any manner or form, to interferewitn or restrain in any manner my beloved wife from full enjoyment, use, management and direction and disposition of the property and income of my estate, as herein devised, then and in that event such one of my legal heirs as shall do or perform or aid or abet the performance of such an act, or cause the same to be done, shall be forever debarred from any part, parcel, interest or ownership, or inheritance to any of my property. * * * I authorize and direct my executrix in her discretion to sell and convey such portion of my property as may be requisite or necessary to pay and discharge my just debts and obligations.”

It stands out very clearly from the peculiar and stong language selected by the testator, that the interest which was to be enjoyed by his “legal heirs” in the estate was subordinated to the interest of his wife. To him she was everything and they were, merely kindred, having by law certain claims which he was not disposed to 'recognize and which he provided for in the manner described. Although in the case of Woodward v. James, 115 N. Y. 346 ; 26 St. Rep. 147, we held that a legal trust was created of the testator’s real and personal estate, not given to the widow absolutely for her life, we reached that conclusion, inasmuch as it was necessary, because of the authority and duty imposed upon the widow, that the legal title should be vested in her as trustee, of course there was nothing in the language used in the will, which conveyed the idea that the testator intended or thought of a trust; but the exigencies of the situation, in our judgment, required the creation of a trust by implication. The question might have been a very different one, if the language of the will spoke of a trust, or indicated the notion of the testator that his wife, with respect to the management and use of the property, should be clothed with the duties of a trustee and guided by the strict rules to which trustees are subjected. In this case, while a trust is created by implication, all of the stringent injunctions of the testator with respect to his widow’s use, enjoyment, or control, of the property,.remain with all their meaning. The one-half of the income of “ all of his property of every kind,” of which he might die seized, is given to his wife “without restraint, deduction or interference in any manner whatsoever." Such language, in connection with that subsequently used, enjoining his legal heirs against attempting to interfere with the “full enjoyment, use, management and direction and disposition of the property and income of his estate,” under penalty of being excluded from any interest or share therein, contains most significant expressions of an intention that his widow should have a half of the income of his property “of every kind,” which could not be cut down and which she was fully to enjoy and manage. It is also significant that the direction to sell is only in the event of a sale becoming necessary to discharge debts. I cannot read this will without, not only inferring the intention of the testator to have been that his property should remain in specie for his wife’s benefit and subject to her uncontrolled management, but also seeing therein that intention to be plainly expressed. It is inconceivable that Mr. James, in drawing a will in such language, had the intention that his widow should at once convert and capitalize the estate in such forms of investment as the law sanctions, by rules established for- the construction of wills colorless as to any expression of intention. To quote the words of Lord Chancellor Cottenham, in Pickering v. Pickering, 4 My. & Cr. at p. 300, “I think it would be a violation of the testator’s intention not to allow the wife to enjoy the income of the property as it is.” This case differs from others which have been cited, in that the testamentary disposition was not strictly of an estate to be enjoyed in succession by different persons. One-half of the income of the testator’s property is given to his legal heirs and though it may have proved to be, as counsel has put it, an illusory gift, because of the burdens imposed upon their share of first discharging thereout all the taxes and charges against the estate, nevertheless, the situation was, and is, that of a division of the income of the property between the widow and the testator’s legal heirs. To the extent that their half of the income is applied in payment of taxes and other charges, their reversionary interest is protected, and benefited, and they can only complain of the testator’s subordinating their interests so completely to those of his widow. The counsel for the heirs has made a very able and ingenious argument, which he has fortified by reasoning upon cases in the English courts, as well as upon some in this country; but all the cases that I have seen recognize that the rule of intention must always override established rules of construction". It is only where the instrument fails to express, or to disclose, an intention, that we must resort to the rules which have been established by the decisions of the courts. That an intention is manifest in the will in question, I have endeavored to show. We have only to put ourselves in the testator’s situation, when he was making his will and therein providing for the enjoyment of his estate by his wife, to be impressed with the conviction that he had no idea of constituting a technical trust, with all its duties and obligations; but, without children or descendants, he draws a will in his own strong language, making what he supposed to be an ample provision for his wife during her life and one in harmony with the conditions under which she had lived. He cares little for others, in comparison, if we may judge from the language of his will; but he recognizes the claims of that general class designated as his “legal heirs.”

I deem it of considerable significance, when considering this case in connection with others, to which our attention has been referred, and in addition to the difference in the facts and phraseology upon which I have commented, that this testamentary disposition was not that of a gift of the residuary estate to trustees ; although even in such a case a plain intention discoverable in the will would prevail against an arbitrary rule of law. In Jarman on Wills, (p. *613), it is said with reference to a residuary devise that the same principle applies, “if an intention that the property stall be enjoyed in specie can be collected from the terms in which either the life interest, or the ulterior subject of disposition, or both these interests, is or are bequeathed.” In this case, as in every other case where a will is the subject of construction, it is the intention of the testator and not the rule of construction which is to govern, when they come in conflict. In Redfield on Wills (2 vol. *478), it is said that, “Where there is anything in the will from which it may fairly be inferred that the testator expected the tenant for life to enjoy the property specifically, it cannot be converted into money or public funds; but the remainderman must take his chance of anything remaining after termination of the life estate.” The latter remarks were made with reference to the case of Howe v. Earl of Dartmouth.

Howe v. Earl of Dartmouth, 7 Ves. 137, is considered to be the leading case in England, upon the question whether property bequeathed by a testator shall be retained in specie, or whether, if of the perishable class of securities, it shall be converted in such a way as'to produce capital bearing interest. The rule as laid down by Lord Chancellor Eldon in that case, as explained by subsequent decisions, among which is particularly to be mentioned that of Lord Cottenham in Pickering v. Pickering, supra, is this: that where there is a residuary bequest of personal estate, to be enjoyed by several persons in succession, a court of equity, in the absence of any evidence of a contrary intention, will assume that it was the intention of the testator that his legatees should enjoy the same thing in succession and, as the only means of giving effect to such intention, will direct the conversion of personalty into permanent investments of a recognized character. Lord Eldon laid down the rule in that case, because of the absence of language in the will from which the direction of the testator might be inferred that his estate should continue as it was. Some difference of opinion has existed among the English judges with respect to the application of the rule laid down in Howe v. Earl of Dartmouth, which, in the recent case of Macdonald v. Irvine, L. R., 8 Ch. D. 101. is adverted to in the opinion of Lord Justice Thesiger. In the previous case of Hinves v. Hinves, 3 Hare, 611, Vice-Chancellor Wigram had said : “ The court in applying the rule has leant against conversion as strongly as is consistent with the supposition that the rule itself is well founded.” In Morgan v. Morgan, 14 Beav. 72, the master of the rolls, Sir John Romilly, said that, “ the effect of the later cases has been to allow small indications of intention to prevent the application of the rule.” Lord Thesiger, referring to the leaning of these judges, with others, against the application of the rule, adopts the following words of Lord Romilly : “ That unless there can be gathered from the will some expression of intention that the property is to be enjoyed in specie, the rule in Howe v. Earl of Dartmouth is to prevail. It is therefore incumbent on the persons contesting the application of that rule, and on the court which forbids that application, to point out the words in the will which exclude it, and if this cannot be done the rule must apply. * * * In almost all, if not all, the cases which have been cited in argument,, where such an intention was found to exist, * * * we find either words in their natural or literal sense importing use or enjoyment of the property in the state in which the testator left it at his death, or directions in the will as to the conversion of the property which were inconsistent with a conversion by the court taking place upon the death of the testator.” In that case the lords justices divided in opinion, as to whether any of the elements existed in the will under consideration to show the intention of the testator that the case should be taken out of the general rule; but they all agreed, if there was a sufficient indication of intention in the will itself to that effect, that the personalty should remain in specie until after the death of the testator’s wife. While there the testator gave to his wife for life “all the income, dividends and annual proceeds of his entire estate,” there were not present these significant words of injunction against any “deduction,” or any interference with her use, enjoyment or management.

In Blann v. Bell, 2 De Gex, Macn. & G. 775, the principle was distinctly recognized that the intention in the will should govern upon the question of the retention of property in specie and that where it is seen to exist the case will be taken out of the general rule. In Collins v. Collins, 2 My. & K. 703, the language of the gift to the wife is not unlike, in its effect, to that in the present case. The testator there gave “ all and every part of his property in every shape and without any reserve and in whatever .manner-situated, for her natural life,” and at her death the property was to be divided among his father, brothers and a sister. Sir John Leach, M. R, held the rule in Howe v. Earl of Dartmouth did not apply. In this state the rule laid down in the Earl of Dartmouth's case was early adopted, as applicable in the absence of any indication of an intention on the part of the testator that the legatee for life should enjoy the property in its then state. See Spear v. Tinkham, 2 Barb. Ch. 211, and other cases cited on brief for heirs. In every case, in this, or any other state, however stringently that rule is applied as between a tenant for life and remainderman, it is the absence of manifest or plain intention which sets-it in operation. In Clarkson v. Clarkson, 18 Barb. 646, the decision of the question of the disposition to be made of extraordinary dividends was referred to the discoverable intention of the testator. The case of King v. Talbot, 40 N. Y. 76, frequently cited, has no application. The question discussed was with reference to how the discretion of trustees is prudently and lawfully exercised in the investment of moneys held for the benefit of minors and a very strict rule was laid down.

What I have said is applicable to the question of the right of the widow to retain in specie the personal estate bequeathed and to her right to have and to enjoy the income from it, as it had been received by the testator in his lifetime.

The testator knew about his investments. They were spread out on his books and the comprehensive words of a gift of his “property of every kind,” “ without restraint, deduction or interference in any manner,” are especially significant of the intention that his widow should have whatever came into the estate in the form in which he left it.

The point is, also, made by the contestants that certain interests and dividends, collected upon1 certain stocks and bonds prior to his discharge by the receiver, who was appointed of the firm property should have been carried to capital, instead of being credited to, and distributed as, income. The question concerns the receiver’s liquidation of the partnership affairs. In an action brought within a few months of the testator’s decease' by a creditor of the firm, for the protection and distribution of its assets, a receiver was appointed; who continued until December, 1885, when a judgment in the action was rendered, settling his accounts and directing him to deliver over the assets in his hands to Mrs. James ; who was entitled, in her capacity as executrix of the surviving partner, to settle with the legal representatives of the deceased partner. Under the provisions of Mr. James’ will his executrix became vested at once with the title to all of his estate, in' the capacity of a trustee for the purposes mentioned. Included in the property of the estate was the testator’s interest in the firm of F. P. James & Go. The direction as to his widow’s right to one-half of the income applied, of course, as well to that species of property. For the reasons I have just expressed, she was under no obligation to convert and to capitalize those assets, or the income received thereon. The interest of Mr. James’ partner, Mr. Taylor, was in one-fifth of the profits of the business and that interest, which, upon his death, vested in Mrs. Taylor as his executrix, has been settled with. So far as the question of the winding up of the partnership business is concerned, I fail to find any substantial ground for the objection of the contestants as to the treatment by the receiver of the income and expenses. The evidence is that twenty per cent, of the income was credited to the Taylor account; to which was, also, charged its due proportion of the expenses of the receivership. That seems to me to have been a proper method of liquidating the business. The decree in the receivership action passing on the accounts is not open to attack in this proceeding and, with respect to the right of the executrix of Mr. James to treat as income the particular moneys collected by way of dividends and interest and paid over to her by the receiver, I do not see how the next of kin can be heard to complain. That, was her right under the provisions of the will and indirectly, if not directly, they were benefited by all that was income to the estate.

Objection was made by the contestants to the settlement which was effected by the executrix as to the interest of her husband’s former partner, Mr. Taylor. He predeceased Mr. James by a few days only, leaving his widow sole executrix. Pending the administration of the receiver, who had been appointed of the partnership property, Mrs. James commenced. negotiations for a settlement with Mrs. Taylor as to the claims of the Taylor estate. They eventually agreed upon the sum of $27,000, after varying more or less widely in their estimates of what was due upon the Taylor interest. The settlement was not, however, consummated between them. Mr. Jansen then became the purchaser from Mrs. Taylor and took from her a transfer of all claims, which the Taylor estate had against the assets of F. P. James & Co., including certain lands in Iowa and Texas. However this arrangement was brought about, is only matter of inference. There is nothing to show that Mrs. James had any interest in the Jansen purchase. She doubted her right to complete her negotiations with Mrs. Taylor, and the latter was advised by her counsel not to sell to Mrs. James, either individually, or as executrix. After Jansen became the representative of the Taylor interest, and when Mrs. James had become possessed of the assets upon the discharge of the receiver, a settlement was reached, upon statements made by an accountant as to the firm affairs, which were based upon figures showing what was due to- the James estate, what was due upon the Taylor interest and what was the total cost of the securities as shown by the firm books. The increase in the figures of the statements, upon which the settlement was made with Jansen, over those in the statement made at the time of the proposed settlement with Mrs. Taylor, was accounted for by reason of the advance in value of the securities. Mrs. James then transferred to Jansen one-fifth of all the securities of the late firm and received back from him, in cash, the difference between one-fifth of their cost price and the amount which had been found due from the firm to the Taylor estate. Upon examination of the facts upon which an adjustment of accounts and interests was reached and this settlement was made, and which are quite complicated, I am satisfied that the surrogate reached a correct conclusion and that the evidence supported the findings which he made. The contestants have not shown that any wrong principle was adopted ; or that the facts were wanting to justify that part of his decree upon the accounting. The general term has reviewed his decision and the question must stop there.

With respect to the question of the propriety of crediting Mr. James’ capital with interest to the time of the final settlement, there is no evidence of any agreement to allow interest and the fact that, in making up previous accounts between the partners, interest had been credited is not sufficient evidence of usage to dispense with the necessity of proving a special agreement. There were no articles of co-partnership and all that was found with respect to the partnership interests was that Mr. Taylor was to have one-fifth of the profits and was to bear one-fifth of the losses of the business. When their association of interests was dis-dissolved by death, there was nothing upon which a right to claim interest on Mr. James’ capital could rest.

As to the claims of Jansen, as assignee of Taylor’s executrix, with reference to the lands in Iowa and Texas, they do not seem to have been comprised within the settlement Such claims must be the subject of future arrangement.

The questions which I have considered with respect to this accounting are all which demand any review by , us. The record is very voluminous and has required much time for its consideration. Without further discussion of the matter, I am satisfied with the correctness of the conclusions reached by the general term, in its-order upon the surrogate’s decree, and I, therefore, advise its; affirmance; with costs to all parties who have appeared by counsel and have filed briefs upon this appeal, to be paid out of the estate.

All concur, Bartlett, J., upon all points except as to the alleged dividends of the construction companies, so called, he holding the judgment should be entirely reversed so far as it decides the dividends paid by the companies to be income and the accounts changed accordingly; Finch, J., not voting.

Ordered accordingly.


text:
    The People ex rel. E. Devillo Root, as Supervisor, etc., Resp’t, v. The Board of Supervisors of the County of Steuben, App’lt.

      (Court of Appeals,

      Filed May 21, 1895.)

    1. Bridge—Liability oe county.
    Under the Highway Law, a county is bound to contribute to the expense of a free public bridge constructed by a town wholly within its-bounds, and not crossing border lines, when the cost exceeds one-sixtli of one per cent, on the assessed valuation of the taxable property of the town.
    2. Same—Within village limits.
    A bridge, located within the limits of an incorporated village, which is within a town, is a town bridge within the statute, where the village charter excepts such bridge from the jurisdiction of the village authorities and leaves it under the direction and control of the commissioners of highways-of the town.
    Appeal from order of the general term of the supreme court in the fifth judicial department, entered upon an order which affirmed an order of special term granting an application by the relator for a peremptory writ of mandamus.
    The writ required the board of supervisors of Steuben county to levy upon the taxable property óf the county the sum of $1,840.03, part of the expenses incurred by the town of Addison for bridge purposes during the year preceding November 1, 1893. It appeared from the application that the bridge crossing the Canisteo river in the village of Addison, in the town of Addison, in 1892, became unsafe and was condemned by the state engineer and surveyor, and upon application of highway commissioners of the town the town board authorized the construction of a new bridge in place of the one condemned; that a new bridge was-built; that the cost of the new bridge and of repairs upon other bridges of- the town during the year mentioned was $7,144.62. In November, 1893, highway commissioners of the town made and delivered to the supervisor of the town a verified statement pursuant to section 132 of the Highway Law (chap. 568, Laws of 1890) of the expenses incurred in the erection and repair of bridges in the town during the previous year, showing that the county was indebted to the town in the s.uin of $1,840.03, that being one-third of the excess of said expenditure above one-sixth of one per cent, of the total assessed valuation of said town for the year 1893. The supervisor of the town, pursuant to section 133 of the Highway Law, presented the statement to the board of supervisors at its session in November, 1893, and the board disallowed the claim on the ground that it was not, nor was any part thereof a legal charge against the county.
    On the return of the order to show cause, the board of supervisors appeared by counsel, and after hearing the parties the peremptory writ was granted requiring the board to convene and levy upon the taxable property of the county a sum sufficient to pay its share of such expenditure. The main controversy is as to the legal liability of the county of Steuben to pay any part of the cost of the bridge over the Canisteo river, the bridge being wholly within the town of Addison, and not upon its boundary. Section 130 of the Highway Law is as follows:
    “Section 130. Where town or county expense. The towns of this state, except as otherwise herein provided, shall be liable to pay the expenses for the construction and repair of its public free bridges, constructed over streams or other waters within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries, except between the counties of Westchester and New York; and when such bridges are constructed over streams or other waters forming the boundary lines of towns, either in the same or adjoining counties, such towns shall be jointly liable to pay such expenses, except that when the whole expense in any one town, for any one year, for the construction, care, maintenance, preservation and repair of its bridges, shall exceed one-sixth of one per centum on the assessed valuation of the taxable property of the town for that year, the county in which such town is located, shall then pay not less than one-third part of such excess. Bach of the counties of this state shall also be liable to pay for the construction, care, maintenance, preservation and repair of public bridges, lawfully constructed over streams or other waters forming its boundary line, not less than one-sixth part of the expenses of such construction, care, maintenance, preservation and repair.”
    Section 131 of the Highway Law, which was repealed by the County Law (Chap. 686 of the Laws of 1892), authorized the board of supervisors, when it should appear that any town will be unreasonably burdened by erecting or repairing any necessary free bridge “in such town or on its borders,” to cause a sum not exceeding $2,000 in any one year, “in addition to the amounts provided for in the last preceding section,” to be raised and levied by the county to pay such portion of the expense of such bridge as the board may deem proper. Section 63 of the County Law took the place of section 131 of the Highway Law repealed. Section 63 is as follows : “County aid to towns for the construction and repair of bridges. If the board of supervisors of any county shall deem any town in the county to be unreasonably burdened by its expenses for the construction and repair of its bridges, the board may cause a sum of money not exceeding $2,000 in any one year to be raised by the county and paid to such town to aid in defraying such expenses.”

      M. Rumsey Miller, for app’lt; John F. Parkhurst, for resp’t.

       Affirming 62 St. Rep. 691.

   Andrews, Ch. J.

The important question in this case is whether, under the Highway Law, a county is bound to contribute to the expense of a free public bridge constructed by a town wholly within its bounds, and not crossing border lines, when the whole cost exceeds one-sixth of one per centum on the assessed valuation of the taxable property of the town. The question depends upon the true construction of section 130 of the Highway Law (Chap. 568 of the Laws of 1890). The courts below have answered this question in favor of the town and against the county. It is claimed in support of this conclusion that, the reason able construction of the section makes a county liable to pay one-third of the total bridge expenditure of any town in any one year, for bridges wholly within the town or otherwise, in excess of the one-sixth of one per cent, on the assessed valuation of the property of the town. It is on the other hand contended in behalf of the county of Steuben, that the section in question imposes no duty upon a county to contribute to the expense of erecting a bridge which is wholly within a town, but that the compulsory clause in the section applies only to bridges on streams which divide towns in the same county, or towns in different counties. In other words, that the right to demand contribution from the county only exists when the bridge crosses boundary lines either of towns or counties, or both.

At the time of the passage of the act of 1890 the compulsory obligation of a county to aid in the construction of bridges was limited to bridges across county boundaries. From the foundation of the state government the duty of maintaining highways and bridges has been cast on the towns, and not, as in England, upon counties. But from time to time special statutes were passed changing the rule in special cases. See Hill v. Supervisors, etc., 12 N. Y. 52. The legislature also recognizing the hardship which would frequently arise in imposing the whole burden of maintaining a bridge upon a particular town, at an early day authorized boards of supervisors to grant relief in their discretion to an overburdened town to the extent of one thousand dollars a year, and to put upon the county a charge to that extent for the benefit of a town. This power, first given by chapter 186 of the Laws of 1801, the exercise of which was made subject to revision by the court of common pleas on application of a commissioner of highways dissatisfied with the determination of the supervisors, was subsequently confirmed and continued by the Revised Laws of 1813 (Vol, 2, p. 282, section 33), and later by the Revised Statutes (1 Rev. St. 524, section 119 et seq.), By chapter 482 of the Laws of 1875 a further advance was made for the relief of towns, and, in case of a bridge crossing a county line, each of the counties interested was made absolutely liable to pay one sixth of the expense thereof. This brief reference to the prior legislation shows that when the Highway Law of 1890 was enacted the obligation rested upon the towns to construct bridges, whether wholly within the town or connecting two towns within a county, or towns in different counties, and that no compulsory obligation rested upon a county to aid in constructing bridges, except in the single case of a bridge crossing a county line. In the case of a bridge wholly within a town, or connecting two towns in the same county, the board of supervisors possessed discretionary power to aid to the extent of $1,000 a town which it deemed overburdened. The Highway Law of 1890 consolidated and revised the prior legislation of the state upon the subject of highways. It was not strictly a consolidation of the prior statutes. Hew provisions were en-grafted on the antecedent law for the purpose of improving the highway system. It is conceded that section 130 enlarged the preexisting liability of a county by imposing an absolute obligation upon the county to pay a proportion of the cost of a bridge across the border line of two towns in the same county, in case of an excess of cost to each town beyond one-sixth of one per cent, of the assessed valuation of the property therein. But it is insisted that the obligation was not imposed in respect of a bridge wholly within a town, however large an expenditure might be required for its construction. As to a town so situated it is insisted the only resource is an" application to the discretion of the board of supervisors. It is difficult to suppose that a construction of section 130, which imposes an imperative obligation upon a county, in case two towns in the same county are interested in the bridge, each of which must bear its equal share of the burden, and frees it from obligation, when a single town happens to be traversed by a stream, not upon its boundary, over which a bridge is required, could have been intended by the legislature. If any greater measure of relief was required than was given under prior legislation, the single town upon which the duly to build a bridge alone rests, would seem to have the strongest claim to the consideration of the legislature and of the county. The section is not free from obscurity. It recognizes in the first clause the general principle of our legislation, that the construction of highways and bridges is a town duty and charge, but the declaration of liability is coupled with the words, “ except as herein otherwise provided." There is no exemption from liability to be found in the section, applicable to the case of a bridge constructed within a town, unless the obligation imposed on the county by the subsequent clause applies to such a case. Upon reading the first clause with the words of exemption, it would naturally be expected that there would subsequently be found some exemption from liability which would furnish a reason from their insertion. There is plausibility in the contention that the words in the subsequent clause, “except that when the whole expense in any one town for any one year, shall exceed,” etc., relate exclusively to the matter immediately preceding, namely, bridges constructed on boundary lines. But the words of the exception are very general and comprehensive. The county is to be liable “when the whole expense to any one town” shall exceed the sum stated. There is no discrimination in the language between the towns, or as to the character of the bridges. We think that the obscurity arising, from punctuation and the arrangement of the clauses is fairly dispelled by a consideration of the whole section and the presumed legislative purpose, and by the consideration that the construction-.claimed by the county would lead to an unjust discrimination. The general scope of the section is, we think first, to declare the general liability of towns in respect of highways and bridges ; second, to declare the liability of towns as between themselves as to bridges constructed upon boundary lines; third, to impose upon the county a fixed liability based upon "the relation between the cost of bridges and their maintenance, and the taxable values of the town irrespective of boundary lines; and fourth, to impose an added liability as to bridges erected on county lines. Section 131, since repealed, but which may properly be referred to in aid of the construction of section 130, strengthens the interpretation given by the courts below to that section. It authorized the board of supervisors to levy upon the county a sum, not exceeding two thousand dollars in any one year, to relieve any town "unduly burdened by the erection of a bridge, and declares that this is “in addition to the amounts provided for in the last-preceding section.” The additional aid was authorized to be given to any town, and not to border towns or towns divided by a stream only. The language of-section 131 implies that the towns had received benefits under section 130, and this aid was to be “in addition." We find nothing in the County Law of 1892 which affects the construction of the act of 1890.

There are some technical questions raised by the defendant: (1) It is claimed" that the bridge being within the village of Addison, although the village is within the town, it was not a town bridge within the statute. The answer is that by the village charter (Laws of 1873, chap. 200) the bridges over the Canisteo river and Tuscarora creek are. excepted from the jurisdiction of the village authorises and are placed under the direction and control of the commissioners of highways of the town, “to the same extent as if the act had not been passed.” (2) We think the claim "presented to the supervisors sufficiently indicated that the claim was made in behalf of the town of Addison for an expenditure made by the town in erecting a free public bridge in the village and town of Addison under the authority of the town. If there was any technical informality, or any incompleteness in the. proof presented to the board of supervisors, the rejection of the claim was placed on the broad ground that the claim was not one which in its nature created a legal charge against the county.

We find no error which calls for a reversal of the order, and upon the main and important question we concur with the courts below.

The judgment and order should be affirmed, with costs.

All concur, except Haight, J., not sitting.

Judgment affirmed.