text:
    Thomas Reilly, App’lt, v. Atlas Iron Construction Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Question of fact—Negligence.
    The evidence was held sufficient, in this case, to present a question for the jury as to whether the brick were knocked down by the derrick, though there was no direct evidence of such fact.
    Appeal from a judgment dismissing the complaint.

      Charles J. Patterson, for pl’ff; Charles G. Nadal, for resp’t.
   Dykman, J.

This is an an appeal by the plaintiff from a judgment entered upon a dismissal of the complaint at the circuit. The action was brought for the recovery of damages for negligence, and the material facts in the case are these: The plaintiff was at, work in the cellar of a house in the course of construction in-Brooklyn. The building was to be about 100 feet square, and at-the time of the accident the brick walls were above the level of the sidewalk. The beams of the first story had been set in place-on the east side, and upon the beams near the rear of the building there was a platform of planks about 26 feet long and 15 feet, wide. There was a pile of brick upon that platform about 12 or 14 feet square, and about 3 feet high. On each side of that pile of brick there was an eight-inch wall of brick, built dry, but. the bricks were placed crosswise, und built in at the ends and corners, so as to bind the walls. It had remained in the same condition for about two weeks, and there was a margin of about-the width of two planks outside of the brick pile. There was am open space in the rear of the first floor, which was not covered by beams. The defendant was doing the iron work upon the building, and, in connection with the operations thereon, used a large derrick, which rested on the beams of the first story. The derrick consisted of two heavy upright timbers, with their lower ends resting upon a crossbeam, with wheels underneath it, upon which the derrick could be moved. The men in the employ of thfe defendant had occasion to move the derrick from the front to the rear of the first floor of the building, and this is the testimony of the witness who gave an intelligent account of the occurrence:

“ I was on the premises at the time the accident happened. I was in this open space in the cellar, shoveling sand at the time, j mean that space in the rear of the cellar which was not covered by beams. My duty there was filling sand : filling these barrels for Reilly and other men, who were carting them away. The barrels , were being carted away at that time. Where I stood there was nothing above my head. I saw the men of the Atlas Iron Construction Co. moving the derrick. They were moving it from the east. They were facing it around to the west of the building then. I could not say whether they moved it with bars, or shoved it with their shoulders. They were pushing it. Any way, I saw them come past the corner of the pile of bricks. I was looking at them. The corner next to Smith & Gray’s toward the rear of the building. That would be the southeast corner of the pile of bricks. When the men where moving the derrick past the southeast corner of the pile of bricks, the bricks fell down. They let the derrick stand there until the man was picked up. Just before the bricks fell down, they were moving the derrick. I could not say whether the derrick hit the brick or not, but it was up close to it, against the brick; I could not say touching them. * * * These men were moving the derrick up to the time the brick fell.” On his cross-examination the witness said:

“ They stopped the derrick as soon as the brick commenced to fall. They did not stop the derrick till the brick commenced to fall. This open space came, to the best of my knowledge, five or six feet to the pile of brick. This derrick, from one upright to the other, may be six or seven feet. It was moving on rollers. They have two wheels under it.”

A number of bricks fell upon the plaintiff, and injured him very seriously. There is no question respecting the negligence of fellow servants involved in this case, as the plaintiff and the men who moved the derrick were servants of different masters, and, therefore were not coemployes. Sanford v. Standard Oil Co., 118 E. Y, 571; 29 St. Rep. 855; Sullivan v. Tioga Railroad Co., 44 Hun, 304; 7 St. Rep. 627. Neither can there be any serious question respecting the negligence of the men who moved the derrick if they caused it to collide with the brick, and precipitate them into the cellar. They knew or should have observed that the plaintiff and others were at work in the story below. The open spaces were sufficiently large to enable them to see men at work in the cellar, and they must be held to have known that the movement of the derrick against the brick would precipitate them into the cellar, in the midst of the men at work there. Under such circumstances, the action of the defendant’s men in charge of the derrick was careless and dangerous if they moved it against the brick. It becomes necessary, therefore, to inquire and determine now whether the evidence was sufficient to justify a jury in finding that the defendant’s men moved the derrick against the brick and caused them to fall into the cellar, and injure the plaintiff. The following facts are material upon that question : The pile of brick rested upon a level platform, and was surrounded and supported by a wall of brick eight inches in thickness ; that is, the brick were placed lengthwise, and laid up dry. It had remained in the same position about two weeks. The floor upon which it was built extended outside of the wall about the width of two planks. There is no reason to suppose or believe that the brick would- have fallen without interference, and there was no disturbing cause present when they fell, except the derrick. The brick fell when the men were moving the derrick past the southeast corner of the pile. “ Just before the brick fell, they were moving the derrick. * * * These men were moving the derrick up to the time the brick fell.” From the facts established by the evidence, and from the circumstances surrounding the occurence, the rational conclusion seems to be that the defendant’s men, in moving the derrick, caused it to impinge against the pile of brick, and that such impingement displaced the brick, and precipitated them into the cellar, upon the head of the plaintiff, and inflicted the injuries for which he seeks compensation in this action. The circumstances are inconsistent with any other hypothesis, and the falling of the brick can be accounted for upon no other theory. Even, however, if different minds might reach diverse conclusions, and a jury may draw a different inference, the case is yet a proper one for the determination of a jury. It cannot be said that our conclusion is destitute of justification; and if a jury should draw the same inferences that we do from the testimony, and find a verdict in favor of the plaintiff, it would not be disturbed by the court for want of support in the evidence. Our conclusion is that the case is a proper one for the determination of a jury, and that the judgment should be reversed, and a new trial granted, with costs to abide the event.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Cornelius S. Bushnell, App’lt, v. William W. Durant, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    1. Venue—Convenience of Witnesses.
    A change of venue will not he granted for the convenience of expert witnesses.
    2. Same—Affidavit.
    A statement in the affidavit that the party “ expects to prove certain facts by the witnesses named, is not sufficient.

      E. R. Johnes, for app’lt; H. W. Simpson, for resp’t.
    Appeal from an order changing the place of trial.
   Per Curiam.

This action is brought to procure a judgment directing a reassignment of certain interests in a bond and two mortgages made by the Adirondacks Company to one Enoch H. Rosekrans, and secured by certain lands situated in the counties of Hamilton, Franklin, Saratoga, Essex, Herkimer, St. Lawrence, Jefferson, and others, in the state of New York, which interests, plaintiff alleges, were conveyed for a grossly inadequate price, because of certain fraudulent representations made by the defendant as to the value of the lands upon which the mortgages were a lien. The answer of the defendant is a general denial and the statute of limitations.

The defendant moved to change the place of trial on account of the convenience of witnesses. On this motion the defendant hac given the names of 7 expert witnesses selected by him, by whom, as he swears, “he expects to prove” the value of the lands upon which the mortgages in question were a lien. To offset what the defendant thus expects to prove, the plaintiff names 11 witnesses, 3 of whom he states were engaged in negotiations with the defendant in relation to Adirondack lands, the other 8 being claimed to be experts familiar with the value of the lands in question. It does not seem to us that expert witnesses are the witnesses whose convenience is to be consulted by changing the place of trial. They are usually paid for their services in addition to the ordinary witness’ fees, and therefore are presumed to be compensated for The third defendant, Ferdinand Greenebaum, answered. The action is brought to recover judgment for the alleged breach of their inconvenience; besides, if the place of trial were to be changed because of the convenience of such witnesses, why might not a party name any number,—not only 6, but 60,—merely for the purpose of procuring an order of removal ? It appears that he defendant, though a resident of Hamilton county, has an office" in this city, where the transaction sought to be invalidated occurred, and where, besides the plaintiff, three other persons, stated to be the only other witnesses to the transaction, also reside. Although the plaintiff claims to have more expert witnesses than the defendant, if we assume the number on each side to be the same it would appear that the principal transaction took place, and all the witnesses acquainted with the facts reside in this city, except the defendant, and that he has an office here. Upon this showing, we think the court below erred in its conclusion, and that this general term has the right to correct such error. It will be noticed that, in regard to the expert witnesses, it is not stated, that they will testify as to the value ; the statement being that the' parties “ expect ” to prove by such witnesses the value of the-lands in question. This leaves the affidavits open to the criticism pointed out in the case of Thurfjell v. Witherbee, 70 Hun 401; 54 St. Rep. 96, where, in regard to similar affidavits used upon a. like motion, it was said: “This motion is founded and resisted upon great expectations.” Outside of the experts as the transaction occurred here, where all the witnesses to the transaction, except defendant, reside, and as the defendant has an office here, we think that these considerations should, upon the merits, determine the question in plaintiff’s favor. The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.


author: Parker, J.

text:
    Anthony Day, as Executor, etc, Resp’t, v. Ferdinand Greenebaum, Impleaded, etc., App’lt.

      (Supreme Court, General Term,, First Department,

      Filed December 14, 1894.)

    1. Lease—Assignment—Presumption.
    The presumption of a lease, arising from occupancy, may be rebutted..
    2. Same—Question for a jury.
    In this case, it was held, under the evidence, to he a question for the jury, whether the lessee assigned the lease to another so as to render him liable on the covenants.
    3. Trial—Direction for verdict.
    The rule that the defendant, by asking for a direction of a verdict in his favor, submitted all questions of fact to the court, does not apply where, before the court had passed on the question, he asked leave to go to the jury upon such questions of fact.
    Motion for a new trial on exceptions, ordered to be heard at general term in.the first instance.

      L. S. Hulse, for pl’ff ; Charles Goldzier, for def’t.
   Parker, J.

Judgement was taken against two of the defendants, Bernard 0. Cunningham and Max J. Marks, on default. The third defendant, Ferdinand Greenebaum, answered. The action is brought to recover judgment for the alleged breach of covenants contained in a lease of premises made by plaintiff’s testator to Cunningham, and Marks. The provision in the lease relating to such covenants is as follows:

“ The said parties of the second part hereby covenant and agree that for and in consideration of the reduced rent at which said premises are leased, and the allowance of two months before the payment of rent shall commence, to take the said premises in their present condition, and at their own sole cost and expense to put said premises in substantial, thorough, and perfect repair by repairing the brickwork where necessary, putting an entire new roof (including beams and planking) on extended part of building, repair and put in good order the floor of the second story of said building, and a new floor in main part of first story of said building (over cellar). Also to put new leader from the roof of said building, and connect same with sewer pipe in cellar. And also, to make and to do any and all other repairs which may be necessary or required. And to keep the said premises in thorough repair during the continuance of this lease, at their own sole cost and expense, without calling upon or requiring the party of the first part to do anything.”

The defendant Green ebaum was not a party to the lease. After its execution, Cunningham and Marks entered into possession of the premises, which were used by them in their business, which was that of manufacturing extracts and sugar coloring. They formed a partnership with James M. Eorke, who put in the business a certain amount of money, advanced to him by the defendant Greenebaum. Subsequently Cunningham and Rorke went out of the business, and Greenebaum purchased an interest therein. He was at the time, and continued to be, engaged in other business, and, according to his testimony, he never saw the building which was the subject of the lease, nor the lease itself, which he says was never spoken of to him by either of the lessees. But the plaintiff has recovered a judgment against him on the ground that the covenant to repair contained in the lease is one running with the land, which would bind an assignee upon an assignment of it to him; defendant being held to be such an assignee, because of his alleged possession of the premises. The rule undoubtedly is that where a person other than the lessee is shown to be in possession of leased premises, paying rent therefor, the law will presume that the lease had been assigned to him. Armstrong v. Wheeler, 9 Cow. 88; Bedford v. Terhune, 30 N. Y. 453; Stewart v. L. I. R. R. Co., 102 N. Y. 601. This presumption may be overthrown by showing that a different relation exists between himself and the lessee, such as subtenant, agent, occupant of a part of the premises under a license from the lessee, who retains the possession originally given him by his lessor, etc. It has been held that where the lessee reserves to himself an interest in the premises, such as the right of re-entry for breach of covenants, there is no such devolution of title as will create a privity of estate between the original lessor and sublessee. Ganson v. Tifft, 71 N. Y. 55; Collins v. Hasbrouck, 56 N. Y. 157. In all of the cases to which our attention has been called, in which the presumption of assignment was said to arise, the original lessee had gone out of possession in which he was succeeded by the person sought to be charged as assignee. In this case the premises were leased to Max J. Marks and Bernard C. Cunningham, who entered into possession, and Marks thereafter continued in possession until the end of the term. The lease prohibits an assignment or underletting, and since the presumption is that the defendant occupied lawfully, Frank v. N. Y., L. E & W. R. R. Co., 122 N. Y. 197; 33 St. Rep. 235, it would seem proper to assume, in the'absenc.e of evidence to the contrary, that he occupied under both tenants in common pursuant to a license. The defendant Greenebaum’s relation to the matter, as told by himself and Rorke, was that, Rorke desiring to go into business with Marks and Cunningham, Greenebaum advanced him money for the purpose, and subsequently purchased his interest, Cunningham and Rorke going out; that nothing was said to him about a lease; that he never saw it, or the premises covered by it, his personal attention being given to another business ; and that the lease was not in fact assigned to him. But assuming that Greenebaum’s membership in a firm occupying premises leased by one of the firm and another person, prior to Greenebaum’s becoming connected with him in business, raised a presumption of an assignment of the lease to him, then we think defendant’s evidence presented a question for the jury as to the character of the occupancy. It has been repeatedly held that the presumption of an assignment arising from occupancy may be rebutted. Welsh v. Schuyler, 6 Daly, 412; Quackenboss v. Clarke, 12 Wend. 555; Astor v. Lent, 6 Bosw. 617; Mason v. Breslin, 40 How. Pr. 442. The case of Frank v. Railroad Co., supra, is cited by the plaintiff as in conflict with the authorities. The court said: “It is claimed that the supposed assignee may rebut this presumption by proving that he never had any assignment, and there is authority for the position. This, we think, is open to question, provided proof of that fact involves proof of entry without right or as a trespasser.”

The court intimates that these cases might perhaps be questioned, in so far as they may be said to authorize proof of a wrongful entry in rebuttal of the presumption. But the suggested limitation has no application in this case. The evidence offered by the defendant tends to show an occupation conjointly with one of the original lessees, and, in view of their relations as described in the evidence, presumptively with his permission. Respondent’s first point is that the defendant’s counsel, by asking for a direction of a verdict in his favor, submitted all questions of fact to the court. But that rule has no application to this case, because before the plaintiff had asked for a direction in his favor, and necessarilybefore the coúrt had passed on the question, the defendant asked leave to go to the jury “ upon the question of fact whether or not the defendant hadan assignment of this lease and assumed any of its obligations. The court denied the motion, and allowed an exception. After that the plaintiff asked for and obtained a direction in his favor. The defendant’s exceptions should be sustained, and a new trial ordered, with costs to the defendant to abide the event. All concur.


author: Cullen, J.

text:
    Grand Rapids Veneer Works, App’lt, v. George B. Forsyth et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Evidence—Parol.
    The rule that it is not admissible to contradict a written contract, does, not apply where the original contract is verbal and entire and a part only is reduced to writing. '
    Appeal from a judgment entered on a verdict in favor of defendants, and from an order denying motion for a new trial.

      Estes, Barnard, & Tiffany, for app’lt; R. A. Morrison (J. Stewart Ross, of counsel), for resp’ts.
   Cullen, J.

This is an appeal from a judgment for the defendants, entered upon the verdict of a jury, and an order denying plaintiff’s motion for a new trial. The action is to recover the price of squares of veneer shipped to defendants under an executory contract of sale. The defendants refused to accept the goods on the ground that they did not comply with the contract, and counterclaimed for an amount of freight paid by them. We are strenuously urged to set aside the verdict, on the ground that it is against the weight of evidence. Our examination of the evidence leads us to no such conclusion. There was a fair question of fact whether the goods complied with the order or not, and the question was fairly submitted to the jury, under a charge to which no exception was taken. The verdict must therefore stand, unless there was legal error in the conduct of the trial. In this respect there is but one question that needs discussion. The contract between the parties, so far as it was in writing, consisted of an order given by defendants to the plaintiff’s agent Theis, and a series of letters and telegrams following. The defendants, in their answer, alleged that the sale was made by samples, on the representation of the agent that the goods were of a superior quality, and equal to the sample. Thereupon the defendants gave the agent an order, in these terms :

“ Brooklyn, N. Y., June 29th, 1891.
“ Grand Eapids Veneer Works, Grand Eapids, Mich., Order' Book No.' 1437.—Dear Sirs: Please ship us at once 1 carload 1-20” birch squares, composed of 1,300 squares 16x16. and balance of equal parts of 14x14 & 15x15. To be dry, flat, and cut smooth, without fractures, and at least -Jd white faces. Price, $2.75 M. 4 mos. note.
“ Yours, truly, Forsythe & Co.
“We pay -J freight. F. & Oo.
“ You may send samples of your 1-20 1-15” birch sheets, say 86” grain, and also of shaved quar. oak, 1-20”.”

The subsequent correspondence is not material on the question now presented. On the trial the defendants were permitted to prove, against plaintiff’s objection and exception, the conversation and transaction between Theis and defendant at the time of giving the order. The appellant claims that this ruling was erroneous.

The question of how far paroi evidence is admissible to vary a written contract is often very difficult to determine. It may be laid down as a rule that it is not admissible to contradict the written contract, nor where the writing appears to be a complete and perfect agreement. Eghmie v. Taylor, 98 N. Y. 288. But the rule does not apply where the original contract is verbal and entire, and a part only reduced to writing, nor to collateral undertakings. Chapin v. Dobson, 78 N. Y. 75. We think that this case falls within the exception to the rule first named. The negotiation was had orally, and by the presentation of the sample. In pursuance of it, a written order was given. This order was not in form an agreement. It contained no covenants on the part of the vendor, and was not executed by Theis, and therefore could not constitute a contract except on acceptance by the plaintiff. The contract of sale was executory. The vendee had no knowledge of the character of the goods save by the sample. We think that in such a case, under the authorities cited, it was permissible to show that the order and contract were based on samples shown, and that the sale was a sale by sample. The judgment and order denying new trial, appealed from, should be affirmed, with costs.


author: Van Brunt, P. J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Edward M. Grout, as Committee, etc.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1894.)

    1. Appeal—Appealable.
    An appeal does not lie from an order denying a motion for a reargument. 3. Lunatic—Committee—Accounting.
    _ Section 3844 of the Code does not deprive the supreme court of jurisdiction to pass upon the accounts of the committee of a lunatic, appointed by it.
    3. Same—Pasties.
    Where an administrator of the lunatic’s estate has been appointed, his next of kin and creditors are not entitled to representation on such accounting.
    Appeal from an order denying an application for an accounting, and from an order denying a motion for an accounting.

      Wm. H. Arnoux, for app’lt; N. B. Hoxie, for resp’t.
   Van Brunt, P. J.

As appears by the petition herein, the petitioner was appointed the committee of the property of a lunatic, and duly qualified, filing a bond for the faithful discharge of his duties in the amount of $16,900. Subsequently he entered upon his duties, and has collected property belonging to the lunatic. The lunatic died in July, .1894, and in the same month letters of administration were granted upon his estate to the respondent, Annie E. Crouter. The next of kin are stated in the petition, all of whom are alleged to be of full age except two, who are over 14 years of age. The petitioner then prayed for the issuance of a citation by this court to the administratrix, the next of kin, the obligor of the bond, and the creditor of the lunatic’s estate, to make proof of claims, and to show cause why final settlement of accounts of the committee should not be had, and, if no cause shown, to attend the settlement of said account. Upon the the hearing upon this petition, a citation was issued, and, upon the return of the petition, the administratrix appeared, and objected to an accounting, claiming that the court had no jurisdiction to pass upon the accounts, as section 2344 of the Code provides that:

“Where a person, of whose property a committee has been appointed, as prescribed in that title, dies during his incompetency: the power of the committee ceases; and the property of the decedent must be administered and disposed of, as if a committee had not been appointed.”

The court sustained the objection, and, upon a motion for re-argument, denied the same; and from the order thereupon entered these appeals are taken.

It is clear that this court cannot entertain an appeal from an order denying a motion for reargument. The court which hears the original motion can alone judge whether it has failed to consider any of the points raised upon a motion, and its determination upon this point must be'final. The appeal from the order denying motion for reargument must therefore be dismissed, with $10 costs.

We think, however, that the motion for accounting should not have been denied, upon the ground which has been urged. It is claimed that, after the lunatic has died, this court is ousted of all jurisdiction, and has no power to release its officer of his duties or from the obligation of his bond. By section 2339 of the Code, a committee of the person or property of a lunatic is made subject to the direction and control of the court by which he was appointed with respect to the execution of his duties, one of which is, upon the termination of his office, to hand over the property of the lunatic to the proper parties. Section 2344 of the Code was only intended to provide for the distribution of a lunatic’s property after death, in the settlement of his estate. The preceding section (2343) requires the court to discharge the committee, and restore his property to a lunatic, when he becomes able to manage himself or his affairs. Yetit will be hardly claimed that afterthe court has determined that the lunatic has become competent, and is bound to restore to him his property, the court has no power to pass the committee accounts, and, if found correct, discharge his bond. In the case at bar, if the respondent’s contention is w ell founded, it would be impossible for the committee ever to get his bond discharged. The surrogate’s court clearly cannot pass his accounts and discharge his bond.

The condition of a committee’s bond is that the committee will in all things faithfully discharge the trust reposed in him, and obey all lawful directions of the court touching the trust, and that he will in all respects render a j ust and true account of all money and other property received by him, and of the application thereof and of his committeeship, whenever he is required to do so by a court of competent jurisdiction. Whether the condition of this bond has been fulfilled cannot be determined by the court appointing the committees, and hence such bond could never be discharged if this court is completely ousted of all jurisdiction. The learned court below based its decision upon the case of In re Beckwith, 87 N. Y. 503 ; but it will be seen that the court expressly held in that case that the court is to pass over the property to the administrator of the lunatic, and may make provision for compensation for expenses incurred while the estate is under its supervision. How can this be done except by a presentation of his accounts by a committee to the court, and a determination by the court appointing him what he shall pay over? And what is this but an accounting?

The appellant was entitled to have this court direct what he should retain for expenses, and what he should pay over, and upon such payment, to discharge his bond. It is urged that it would be manifestly unjust to grant this application if the court, had the power, and thus deplete this small estate to the extent of referee’s, guardian’s, and attorney’s fees and allowances. If it is necessary that these expenses should he incurred to discharge- the committee, the committee has a right to a discharge, and they must be incurred. The suggestion is made that the committee should reserve his commissions, and deliver the balance of the property to the administratrix, and that her receipt would fully discharge and protect him; and that, if he wished a formal discharge by this court, he could procure the same ex parte. I hardly think that this court will discharge a committee’s bond ex parte, or allow a committee and an administratrix to deplete an estate to any amount they see fit by way of commissions and expenses. In order to determine whether a committee’s bond should be discharged, it must have before it the committee’s accounts and then determine what allowance should be made for expenses, and,if commissions should be allowed. Any other course would open the door for the greatest abuses.

We do not see-that the next of kin or the creditors of the lunatic have any right to representation upon this application. The creditors must collect their debts through the administratrix and the next of kin must receive their share of the estate through the same source. The whole legal title to the personal property of the deceased lunatic is in the administratrix. It seems to us that the proper course for the committee is to present his accounts with his petition for citation. Then, upon the return of said citation, the accounts will be before the court; and, if no objection is made, it may pass the same, allowing what is just to be retained by the committee for his expenses and commissions, and directing the payment of the balance to the administratrix. In the case at bar there need be no such expenses as are urged as a reason for denying all protection to the committee; and, if no objection is made to the committee’s accounts when filed, the court may pass the same, and make a final order. If the objection had been made that accounts bad not been presented, this might have been a good reason for dismissing the application ; but, as no such objection has been raised, it cannot be considered here.

The order denying the application should be reversed, and an order made requiring the filing of the account, and providing for an application founded thereon for discharge, without costs. All concur.


text:
    Thomas W. Robertson, App’lt, v. Ongley Electric Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Contract—Construction.
    A provision that a note shall become due instantly if the maker permits an attachment to be issued against it, does not apply to an attachment [ issued in another state on the ground that the maker is a foreign corporation.
    Appeal from a judgment dismissing the complaint.

      Treadwell Cleveland, for app’lt; Rufus W. Peckham, Jr., for resp’t.
   Parker, J.

The trial court dismissed the complaint on the ground that the note upon which the plaintiff sought to recover had not matured when the action was commenced. The note read as follows :

$22,783.33. New York, November 1st, 1892.
“ Two years after date, we promise to pay to the order of Thomas W. Robertson twenty-two thousand seven hundred and eighty-three 33-100 dollars at No. 1 Broadway, New York City.
“ Yalue received.
Number. With interest at five per cent., payable semiannually. Due November 4, 1894.
. “ The Ongley Electric Company,
By Geo. B. Hopkins, Yice Bresident.”

The action was commenced April 4, 1893, some months before the due date of the note according to its terms. But at the time the note was given the defendant executed and delivered to the plaintiff, as collateral security for its payment, a chattel mortgage upon certain patents, accounts, and chattels of the defendant That instrument provided, among other things, that upon the happening of certain events the principal sum represented by the note should become instantly due and payable. One of the events named was that if the defendant should permit or suffer any attachment or other process against the property to be issued against it, the note should become at once due. Two weeks prior to the commencement of this action, a person claiming to be a creditor of this defendant (a New Jersey corporation, doing business in the state of New Jersey, and having its general offices for the transaction of business in Jersey city) procured an attachment to be issued in this state, and levied upon certain property of the defendant within the state of New York. The plaintiff in the action in which the attachment was issued sought recovery against the defendant for certain commissions alleged "to have been earned by selling its treasury stock. The defendant answered the complaint, denied the debt, and refused to pay. Before this trial that action was put on the short-cause calendar for trial, but, as the limit of time allowed for such cases was reached before the evidence was in, the result was that it went to the foot of the calendar under the rule. In such condition the action stood at the time of the trial of this cause. The situation, therefore does not permit the court to infer that the issue of the attachment was due to a failure on the part of the defendant to pay, in the ordinary course of business, a meritorious claim. The question then, is whether the issuing of an attachment in a state other than that under the laws of which the defendant was incorporated, and under the circumstances to which we have briefly referred, operated, under the provision of the chattel mortgage, to make the sum secured by the note at once due and payable. So much of the covenant relating to the events which should cause the note to become payable prior to the date of maturity fixed by its terms reads as follows:

“ And the said party of the first part, for itself and its successors and assigns, covenants and agrees to and with the said party of the second part, his executors, administrators, and assigns, that in case default shall be made in the payment of the said principal sum above mentioned, or in the payment of the interest thereon, or in case the said party of the first part shall at any time before the day of payment herein provided for remove the said goods, chattels, and property, or any part thereof, or permit or suffer any attachment or other process against property to be issued against it, or permit or suffer any judgment to be entered up against it, then the said principal sum above mentioned shall become instantly due and payable. * *

If this provision be read without having in mind the circumstance which, it is alleged caused this not to mature, it will suggest that the parties intended to out down the time-which the note should have to run only in the event of such happenings as should endanger the plaintiff’s chances of making his claim out of the property of the defendant. It undertook to provide that in the event of a removal of goods covered by the the mortgage, whether by the voluntary act of the defendant or through legal proceedings taken by a creditor, then the note should at once mature. In other words, the parties to that instrument apparently, intended to relieve the payee of the note and the mortgage as well from any possible embarrassment by reason of the length of credit, should the mortgagor voluntarily attempt to dispose of the property, or some creditor, by means of an attachment or judgment, should be about to effect its disposition in order to make his claim out of the defendant’s property. A construction of this language which should make the note mature if any attachment should be obtained in another state or foreign country would not seem to be in accord with the plan which the parties to the instrument had in mind. The defendant may be presumed to know the law of the state to which it owes its creation, and to have made its contract with reference to it, but there is no occasion for extending the presumption of knowledge to the law of other states or foreign countries. There, is no suggestion that in its own state this attachment would have been issued, if applied for. But in this state, the defendant being a foreign corporation, an attachment may issue against its property within the limits of 'the state, however solvent it may be, and however great its ability to pay all claims against it on demand. It is not within its power to prevent a creditor—or a fictitious claimant, even—-from obtaining an attachment against its property in this state. Arid the construction contended for would, of course, put it in the power of the mortgagee, if at all inclined to turn sharp corners in order to gain some advantage over his debtor, to cause the note to become due at once by procuring an attachment to be taken out by some person in another state or country than that of the defendant’s residence. How, clearly, this was not what the parties intended, and we have to inquire whether the .language employed, if reasonably construed, is notin accord with what seems to have been their desire at the time. It will be observed, in the first place, that it is not provided that the note shall become due in the event that an attachment shall be issued. The provision contains Words of limitation, in addition,—words indicating that the attachment provided for was one for the issuing of which the defendant should be in some measure responsible, because of its tacit consent, or its neglect to discharge1 its just obligations. The attachment provided for is one that the-defendant shall “ permit or suffer” to be issued against it. How, it is not contended that the defendant did any affirmative act to> produce or permit the issuing of the attachment; but, having-failed to prevent its issue, it is urged that the defendant permitted- or su ffered it to issue. The learned counsel for the appellant concedes that if the word “permit” had been used alone, there would be no opportunity for such construction of the instrument as that for which he contends. He urges, however, that the use of the words “or suffer" indicates that the parties intended to include the opposite of the ordinary meaning of the word “permit.” His argument is that the word “suffer” is undoubtedly used at times the same as “permit,” but that it could not have been the intention of the parties to use the words in that sense in this contract otherwise, they would have been omitted, because unnecessary. Therefore, it is urged that the meaning to be attached to the word “suffer" is to “tolerate,” and thus the words “permit or suffer"1 should be read as “permit or tolerate”; and if thus read, it is contended, the covenant would mean, “if the attachment shall issue-with the defendant’s permission, or without it.” We have already said that the appellant concedes that the defendant did not permit the attachment to issue. To permit is “to consent; to allow or suffer to be done; to tolerate; put up with.” A definition of the word “permit,” most favorable to the plaintiff, is that which imports only acquiescence, or abstinence from prevention. It cannot be urged that the defendant acquiesced, for the evidence is to-the contrary, and the act was one over which it had no control. The attachment issued against the property of the defendant as a, matter of right, because the defendant was a foreign corporation, and it cannot be said to have abstained from hindering without a suggestion in the record and the defendant knew, that the plaintiff contemplated even an application to the court for a warrant of attachment. In all" dictionaries, “to permit" is given as one of the definitions of “suffer,” and “to suffer” as one of the definitions of “permit.” They are used synonymously. The sense in which these words are generally used imports that the doing of certain things may be permitted or suffered without an affirmative act, but that it cannot be done without an omission to do some act which might have prevented it. In other words, to permit or suffer an act usually implies the power to prohibit, prevent, or hinder it. As we have already said, it does not appear that the defendant could have hindered it, for it does not appear that it was informed that an attachment was to be applied for until after it had been issued, and levied upon the property. It may be said that it could have hindered it by paying the demand made upon it, whether right or wrong,—whether there was anything due-upon it or not. True, that might have been done, but certainly there was no occasion for the defendant to desist from its defense of the action brought against it until it had at least been threatened with an attachment in case it should continue to insist upon its defense. Whether it could have safely proceeded with its defense after being warned that the consequences of.it would be the issuing of an attachment, we need not consider, for it does not appear that it had reason to expect that the procuring of an attachment was even contemplated by the plaintiff before a levy was actually made under the attachment. The judgment should be affirmed,, with costs.

All concur.


author:
Brown, P. J. Cullen, J.
      Dykman, J.

text:
    The People ex rel. Edward M. Goring, Resp’t, v. The President and Trustees of the Village of Wappinger’s Falls, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Elections—Ballots.
    A voter may write, on the official ballot, the name of the person for whom he desires to vote for an office which is not, but should have been thereon.
    2. Mandamus—Police Justice.
    The court, upon an application for a mandamus to compel the recognition of relator as police justice of a village, has no power to direct the trustees to fix the salary of the office.

      Joseph F. Barnard, for app’lts; Bernard J. Tinney, for resp't.
   Brown, P. J.

The facts out of which this case arose are correctly stated in the opinion of Justice Dykman (infra), and need not "be here repeated. The question presented is whether a duly-qualified voter may vote for a person for an office which is not named on the official ballot, but which exists by statute, and is required to be filled at an election at which the voter desires to vote. Section 104 of the election law (chapter 680, Laws provides that, within the voting booth, “ the name of any person for whom the voter desires to vote for any office named on the official ballot may be written on the official ’ballot, which the voter proposes to vote, or a paster containing one or more such names or offices may be pasted thereon.” The ballot reform law of 1890 (chapter 262, § 25) provided that “ the voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office.” But, under section 104 of the present law, it will be observed that the right to write or paste upon the ballot the name of any person for whom the voter desires to vote is apparently limited to the offices named on the official ballot. In the case before us, the office of police justice-was not named on the official ballot. The office had, however, been created by law, and it was required to be filled at the village election. There had, however, been no incumbent of the office for the greater part of the expiring term, and no nominations had been made for it, and the fact that it was to be filled was. probably overlooked by the officers, and the great majority of electors, of the village. It was, nevertheless, by section 82 of the election law, made the duty of the clerk of the village to furnish official ballots containing the names of all the offices to be filled at the election, and the name of the office of police justice should have been upon the ballot. Yre .are of the opinion that section 104 must be construed to give to the voter the right, not only to vote for any person for an office named on the ballot, but also for an office which ought to have been named thereon, but which had been omitted therefrom by the neglect of the officer charged with the duty of its preparation. The right to vote at an election is derived from the constitution ; the manner of voting is regulated by statute. The constitutional provision is that “ every male citizen of the age of twenty-one years shall be entitled to vote at all elections.” This provision confers the right to vote for a person for every office required by law to-be filled at the election at which the voter desires to vote. The constitution contains no restriction upon this right, and the only express power given to the legislature in reference to it is to enact laws “ for ascertaining by proper proofs the citizens who shall be entitled to the right of suffrage.” There is, of course, an implied power to regulate the manner of voting, but any law which prohibits the right to vote is unconstitutional. The present election law has provided for the preparation of an official ballot by certain designated officers, and it makes it their duty to print the names of all offices to be filled upon the face of each and all of the official ballots. This duty is in no wise made dependent upon the making of nominations, it being further provided by section 82 that, if the full number of candidates for the offices specified on any one kind of ballot shall not have been nominated, ■“ * * * blank spaces shall be left on each ballot of such kind where the names of candidates would appear, except for such failure to nominate.” The intention of the legislature is plain. It is that there shall be printed upon the official ballot the name of every office to be filled at the election, and, if this duty is performed by the officer charged with it, the voter, under section 104, is enabled to exercise his constitutional right to vote for any person he chooses for any office to be filled at the election. It is equally plain that the legislature did not intend that this right should depend upon the performance or nonperformance of the duty of the officer charged with the preparation of the official ballot. Yet that is what the argument of the appellant comes to. The voter, it is said, may vote for any person for any office named on the ballot, but if, through inadvertence, neglect of duty, or other cause, the name of the office is omitted from the ballot, no vote can be cast for any person for that office, and no election for that office can be held. Such a construction, if it could be adopted, would disfranchise the voter, and deprive the people of the right of the proper administration of their laws. But it cannot prevail, as it would make the law unconstitutional. The •original ballot reform law, when introduced in the legislature, in 1888, contained a provision which permitted the voter to vote •only for a candidate duly nominated and certified; but that provision was rejected, and, in the discussion tho-t then and since has been had upon the question, it has been the almost unanimous •opinion of the lawyers of the state that any law prescribing an official ballot which did not permit the voter to write or paste upon his ballot the name of any person for whom he desires to vote for any office to be filled at the election, whether named on the official ballot or not, would be in violation of the provision of the constitution hereinbefore quoted. Our conclusion, therefore, is that the votes cast for the relator were valid, and that he was duly elected to the office of police justice of the village.

We agree with Justice Dykman that the special term had no power to direct the trustees of the village to fix the salary of the office. We have the power to modify the order, however (People v. Board of Sup'rs of Dutchess Co., 135 N. Y. 535 ; 48 St. Rep. 533) ; and that part of it should be stricken out, and, so modified it should be affirmed, without costs of appeal.

Cullen, J.

(concurring).—I agree with the opinion of the presiding justice that an interpretation of section 104 of the election law which would limit the right of voters to vote only for offices which may be named on the official ballot, or only for candidates who may have been put in nomination by the modes prescribed by that law, would render this provision of the section unconstitutional and void. The section is general, and applicable to elections for all officers. As to two classes of public offices, it seems to me too clear for debate that the legislature cannot deny the voter the right to vote, or add to the qualifications prescribed for candidates, dependent on the action of election officials or nominating conventions. By the federal constitution (§ 2, art. 1) :

“ (2) No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.”

By section 4 of the same article :

“ (1) The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the congress may at any time, by law make or alter such regulations, except as to the places of choosing senators.”

Congress has acted under this authority, and prescribed the time of holding elections of representatives. How can the state-deny the right of any qualified voter to vote at the time prescribed ? As to the qualifications of representatives, though the constitutional provisions are wholly in the negative, still they are plainly meant to prescribe the only conditions of eligibility, and are exclusive. How can the state prescribe that the candidates; must have been nominated by'a certain number of voters for an appointed period before the election ? Such provisions would not relate merely to the manner of holding the election, but plainly be limitations on the eligibility of the candidate. He may not have moved into the state, and become an inhabitant thereof, until the day before election, and yet he would be constitutionally eligible for the office. Those considerations also apply to those offices which the constitution of the state ordains shall be filled by election. At an early period, under our present constitution, the question arose whether the election of a justice of the supreme court to fill a vacancy occurring after the notice given by the secretary of state of the offices to be filled at the approaching election was valid. It was held that the election was valid, notwithstanding that no notice thereof was given by the secretary of state. People v. Cowles, 13 N. Y. 350. The authority of this case has never been questioned. In the constitutional convention of 1867, it was acknowledged as a correct exposition of the law and, to avoid any difficulty from lack of sufficent notice to the-voters, the constitution was amended so that vacancies in the judicial offices created by it are directed to be filled only at elections happening three months after the occurrence of the vacany.. But as to the other elective offices of the constitution the old rule remains in force. As to offices not constitutional, but created by the legislature, the legislature may prescribe qualifications for the incumbents of such offices. People v. Platt, 117 N. Y. 159; 27 St. Rep. 149. We assume, however, that as to such offices the qualifications must bear some relation to the duties of the office, and be not merely arbitrary. The office here in dispute is a local office. By the constitution, it must be filled by election or appointment, as the legislature shall direct. Under this authority,, the legislature determined that the office should be elective, and on that determination “ the office fell within the scope and terms; of the constitutional provisions applicable to elections by the people.” In re Gage, 141 N. Y. 112; 56 St. Rep. 662. A scheme that would permit the town election officers or nominating conventions to determine whether the office should be filled or not would be neither providing for an election nor for an appointment, and it is only one of these two methods-that the legislature can adopt. The order appealed from should be affirmed, with $10 costs.

Dykman, J.

(dissenting).—Under a republican form of government, such as ours, the fundamental principle is that all political power is vested in the people. In a general way, it is said that the people are the sovereigns ; but, in strictness of language, the aggregate collected will of the people is the sovereign authority. It follows, therefore, that every man has the right to participate in the exercise of the sovereign power, by the exertion of the right to vote for representatives. That is the portion of political power belonging to every qualified elector. But the people have placed limitations and restraints upon themselves in the exercise of the elective franchise. They have prescribed certain forms for the conduct of elections.They have declared that they themselves cannot vote without certain qualifications, nor except at specific times and places, and in a particular manner. The controversy in this case has reference to the limitations placed upon the qualfied electors by the late election law of this state. The facts in the case are these: This is an appeal from an order made at the special term granting a peremptory writ of mandamus against the president and trustees of the village of Wappinger’s Falls, commanding them to recognize the relator as police justice of that village, and to fix his salary as such. The village of Wappinger’s Falls is incorporated under the general act for the incorporation of villages (chapter 291 of the Laws of 1870), and § 17 of that act, (as amended by Laws of 1871, o. 688) provides that:

“ The trustees * * * may, whenever in their opinion public interest demands it, at any time not less than 30 days preceding the next annual election for village officers, direct that at such election, and at every fourth annual election thereafter, there shall be elected a police justice, who shall be a resident of the village in which he shall be elected, and who shall hold office for four years.”

In 1890, in pursuance of that statute, the trustees passed a resolution that a police justice be elected in that village in the spring election of 1890, and every four years thereafter. A police justice was elected at that time, who, shortly after his election, resigned his office, and there was no order for an election to fill the vacancy at the next election, and no police justice was ever elected or appointed thereafter. In 1894 the trustees gave a notice of the election of the village officers, but did not specify the office of police justice among them. The political parties nominated candidates, but no nomination was made for police justice by either of such parties, or by certificate. Ths official ballots were printed by -the village clerk, and distributed in due time. No official ballot containing either the designation of the office of police justice as one to be voted for, or the name of any candidate therefor, was printed. When the votes were counted, there appeared on 44 of the regular official ballots, by a paster slip, the following: For Police Justice, Edward W. Goring.”

The question is whether the relator was duly elected to the office he claims, and that question must be determined by the general election law. Police justices, in villages, are elective officers. Both political and independent nominations for municipal offices must be filed with the clerk of the village. Election Law (Laws 1892, 'chap. 680), .§ 82. There must be as many official ballots as there are names represented upon the certificates filed. § 82. The scheme and policy of the election law, as applicable to this case, are to require official ballots for all elective officers to be voted for at the village election to be furnished by the village clerk. § 86. And no ballot, except one bearing the official indorsement, shall be counted. Every elector is therefore compelled to vote an official ballot, if he votes at all. After he enters the voting booth, and not before, nor elsewhere, “ the name of any person for whom the voter desires to vote for an office named on the official ballot, may be written on the official ballot which the voter proposes to vote, or a paster containing one or more such names or offices may be pasted thereon, or the paster ballot containing the names of all the candidates for whom the voter may vote for all such offices, may be pasted thereon.” § 104. It thus appears that the voter is confined to writing or pasting the name of any person for whom he desires to vote for an office named in the official ballot. In other words, he can only vote for a person for an office designated upon the official ballot. This construction results from the application bf the maxim, “ Expressio unius est exclusio alterius." The thing expressed here as permissible is the writing or pasting upon the official ballot the name of any person for whom the voter desires to vote, for any office named thereon. That provision implies the exclusion of other methods, and inhibits the voting for an office not named on the official ballot. The general argument that such a construction may disfranchise an elector, or prevent the exercise of his volition, is not forceful. It is admitted by all that none but official ballots can be cast, and" if there be no ballots for an office, except in emergencies not presented in this case, it follows that no-votes can be thrown therefor. Such we deem to be the effect of the election law, and as neither of the official ballots, at the election where the relator claims he was elected, contained the name of the office of police justice, it' follows that the votes cast for him were improperly counted, and gave him no right to the office. ■

We think, also, that the command of the writ was too broad. It undertakes to command the trustees to fix the salary of the police .justice, and our understanding of the statute in relation to the compensation of such police justice is that his fees are a charge upon the village, and must he audited and allowed in the same manner as other village charges, except such police justice shall be allowed an annual salary, fixed by the board of trustees; and they were empowered to fix and establish an annual salary to be paid to the police justice, by resolution to be entered in their minutes, which salary, when so fixed, was to be in lieu of fees to which the justice might otherwise be entitled; and it left the alternative between the two modes of compensation to the discretion and determination of the trustees, and it is beyond the province of the court to compel the exercise of such election. In other words, the court had no power to compel the trustees to fix the salary of the police justice, under the statute. The sole power to create a salary, or let the compensation depend on the village* charter, rested on the trustees.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion for a mandamus denied, with $10 costs.


author: O’Brien, J.

text:
    Emma G. Tweddell, Pl’ff, v. New York Life Insurance and Trust Company, Def't.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Trusts—Accumulation.
    Income of a trust fund, accumulated during the minority of a life beneficiary, cannot be added to the principal when he becomes of age, but must be paid to him.
    Submission of controversy on an agreed statement of facts.
    The following facts are submitted by both parties: “ Emma S. Clark, the aunt of the plaintiff, departed this life, being a resident, of Suffolk county. New York, in the year 1889, leaving a last will and testament, which was thereafter duly admitted to probate by the surrogate of said county. Said will was in the words following, viz.: ‘I, Emma Sarah Clark, of Setauket, Suffolk county, New York, do make, publish, and declare this my last will and testament, in manner following, to wit: First, I give and bequeath to my sister, Mrs. Annie J. Bills, all my wearing apparel and books, and sapphire and diamond ring and gold butterfly. Second. I give and bequeath to my friend Mrs. Eveleen T. Coffin twenty thousand dollars. Third. I give and bequeath to my niece Emma 0. Bills all my jewelry not above bequeathed, and all the rest of my personal property not above bequeathed. The money, however, and the securities as evidence thereof, are given with the following restrictions, namely: Such moneys and securities all to be placed by my executor in the keeping and control of the New York Life Insurance and Trust Company, and to be held by them during the term of her natural life, said company to pay over-quarterly or semi-annually to my executor the interest accruing upon said securities until said Emma C. Bills shall arrive at the age of twenty-five years, should she live to that age, and, after she shall become twenty-five years old, to pay such interest to her directly during the period of her natural life. Fourth. I direct my executor to receive from said company the interest accruing upon said securities until my said niece shall become twenty-five years of age, should she lives so long, and to dispose of the same as follows, namely: During the time from my decease till said Emma shall be nineteen years of age, to pay to her from said interest thus received by him, a sum not to exceed one thousand dollars per years; from then till she shall be twenty-one years of age, to pay her, from said interest, a sum not to exceed twelve hundred dollars a year; from then till she shall become twenty-five years of age, he shall pay to her the whole of said yearly interest. And I hereby direct the said New York Life Insurance and Trust Company to reinvest such securities hereby intrusted to them as shall run out, and I hereby direct my •executor to reinvest the surplus interest accumulating over the yearly allowance above stated in the said New York Life Insurance and Trust Company, to the end that the same may be added to the trust fund, subject to the same regulations as the principal above named, and become a part thereof. And I hereby further will and direct that the said Emma C. Bills may, at any time, bequeath by will all or any part of the funds thus entrusted to said company ; and if she should not dispose of the same by will, it shall, upon her decease, be paid to her children or child, should she have any, equally. And I hereby appoint my friend Charles H. Coffin the sole executor of this my last will and testament, hereby revoking all former wills by me made.’ The defendant Charles H. Coffin is the executor named in said will, and duly qualified, and still acts, as such executor. The plaintiff is the Emma C. Bills referred to in said will. Subsequent to the death of said Emma S. Clark, the plaintiff married Francis Tweddell.” The plaintiff has no children. She attained the age of 21 years on the 6th day of July, 1894. The defendants have received the income upon the estate left in trust by said will, and from said income have paid to the plaintiff the annual sums directed to be paid to her by said will; but there still remains in their hands an accumulation of such income received prior to July 6, 1894, amounting to $7,500. The questions submitted to the court are: (1) Do the statutes of this state permit the provisions of said will directing the accumulated income to be added to the capital of the trust estate when plaintiff attained majority, and thereafter to be held in trust ? (2) If such provision is invalid, should the sum of $7,500 (being such accumulated income) be paid to the plaintiff ?

      Lucius E. Beers, for pl’ff; R. E. Robinson, for def't New York Life Ins. & Trust Co.; Wilson & Wallis, for def’t Coffin.
   O’Brien, J.

This validity of the trust, as shown by the questions submitted, is not presented, except as to the accumulated income. But it is argued that inasmuch as the remainder over to the plaintiff’s children, provided by the fourth clause of the will, is repugnant to the absolute bequest in the third, the former is wholly void, and there is no valid remainder bequeathed; and from this the conclusion is sought to be derived that, as there is no remainder, the accumulation is wholly for the benefit of the plaintiff, who was an infant at the death of the testator; that she is to receive the income of the accumulation ; and that the accumulated principal belongs to her absolutely, subject to the trust, and is disposable of by her by will, or will pass to her legal representatives. If the construction to be given to the will requires a holding that the remainder over to the children is void, then it would seem to follow that not only the accumulation of income, but the principal as well, would belong to the plaintiff, freed from the trust. We think, however, that the intention of the testator, so far as it relates to the creation of a trust, is clear and valid. By the third clause, the residue of the testator’s property is bequeathed to the plaintiff, subject to the restrictions that the same is to be placed in the keeping and control of the trust company, to be held by it during the term of her natural life, with a provision that the interest accumulating thereon should be paid over quarterly to the executors until the plaintiff’s arrival at the age of 25, after which time the interest or income was to be paid to her directly during the period of her natural life. By the fourth clause, what the executor was to do with the interest or income is shown, it being therein provided that certain sums should be paid to plaintiff during certain periods of her life until she arrived at the age of 25 years, and that any excess over such payments should be added to the principal, and, upon her arrival at the age of 25, that the interest upon the entire fund thus made up of capital and income should be paid to her during her life, with power to plaintiff to bequeath by will any part of the funds thus placed in trust, and, upon failure to dispose of the sortie by will, upon her decease the -same to go to her child, or children, equally. It will thus be seen that a trust js created in the fund, with remainder over to her child or children, which remainder is subject to her right to dispose of the same by will. Such a disposition being clear and definite, and in no wise against any statute, should be upheld. In regard to the income accumulated during the infancy of the plaintiff, we think that, under the statute and decisions, it should be paid to her. The will provides that the accumulation saved out of the income shall not be paid over to the minor upon her attaining her majority, but, when she reaches the age of 25 years, shall be added to the principal of .the trust fund, of which the principal is to be payable at her death to her appointees, or, failing appointment, to her children. This presents the precise question which was fully discussed and decided by the court of appeals in Pray v. Hegeman, 92 N. Y. 508, and Barbour v. DeForest, 95 N. Y. 13. As said in the former case (headnote) :

“The provisions of the Bevised Statutes (1 Bev. St. p. 726, § ■37; Id. p. 773, § 3) authorizing an accumulation of the income of real and personal property for the benefit of minors require that the accumulation shall be for the benefit of a minor solely and ■during his minority, and that, when the period of accumulation ceases, the accumulated funds shall be released from further re.straint, and paid over to the person for whose benefit the accumulation is directed. A direction for accumulation during a minority, accompanied with a gift of the income of the accumulated .fund, after the expiration of the minority, to the minor for life, .and of the principal upon his death to other persons, is void.”

These cases are controlling, and the distinction sought to be made between them and the one at bar we regard as untenable. If we are right in our view that the plaintiff has but a life interest in the fund, whether we regard such fund as the result of the original capital, or of such capital as increased by the accumulated ’income, then it is evident that the accumulation resulting during minority, although the plaintiff would receive the interest arising therefrom, when added to the capital, is not solely for the benefit of such minor, but will go upon her death to her appointees or her children. We think, therefore, that, with regard to the first questian, the statutes of this state do not permit the accumulated income to be added to the capital when plaintiff attained majority,, and thereafter to be held in trust; and, secondly, that the sum of $7,500 (being such accumulated income) should be paid to the plaintiff. Judgment accordingly, with costs. All concur.


text:
    Mary E. Burns, by Guardian, etc., App’lt, v. City of Yonkers, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December, 10, 1894.)

    Municipal Corporation—Barrier.
    It is the duty of a corporation to place some guard at dangerous and exposed places, where the happening of accidents from failure to place such guard may he reasonably anticipated.
    Appeal from a judgment, entered on a nonsuit.

      Ellis & Harrigan, for app’lt; James M. Hunt, for resp’t.
   Cullen, J.

This is an appeal from a judgment in favor of the defendant entered upon a nonsuit at circuit. The plaintiff was driving a horse and wagon along the Sawmill River road, in the city of Yonkers. The horse balked, and backed the vehicle off the highway, down a steep bank. The plaintiff was thrown out and injured. For that injury she brings this action, claiming that the defendant was guilty of negligence in not providing guards or barriers along the highway. Though, in one sense, the balking of the horse may be said to have been the primary cause of the accident, this would not prevent a recovery by the plaintiff, if she were free from fault. Macauley v. Mayor, 67 N. Y. 602. It is not claimed on this appeal that the plaintiff was guilty of contributory negligence; at least, as a matter of law. The complaint, was dismissed on the ground that no negligence was shown on the part of the defendant.

The liability of municipalities and towns for failure to erect-barriers along the highway has been the subject of many recent adjudications in this state. There is no doubt that it is their duty to place some guard at dangerous and exposed places, where the happening of accidents from failure to place guards may be reasonably anticipated. But the question is whether, under the circumstances of the particular case, the place is such that reasonable care upon the part of the municipality would treat it as dangerous, and provide guards. In Monk v. Town of New Utrecht, 104 N. Y. 552; 6 St. Rep. 484, and Hubbell v. City of Yonkers, 104 N. Y. 444; 5 St. Rep. 730, where the roadways of the streets were in good condition, curbs set, and sidewalks constructed beyond, it was held that there was no duty to erect guards to prevent one driving over the slopes of the embankment which lay beyond the sidewalk. In Lane v. Town of Hancock, 142 N. Y. 510; 60 St. Rep. 112, the town was held not liable for the absence of guards-along a country highway in a sparse settlement, the road not passing a place of danger. But that case proceeds chiefly on the principle that the liability of the town is limited to the liability of the highway commissioners,—a principle which does not apply to an action against a city or village. On the other hand, towns have been held liable for failure to provide guards in Ivory v. Town of Deer Park, 116 N. Y. 476; 27 St. Rep. 643, where the road ran along the brink of a railway cut; in Maxim v. Town of Champion, 23 St. Rep. 945, affirmed 119 N. Y. 626; 28 St. Rep. 978, where the road was supported by a retaining wall along the side of a gully ; and in Holcomb v. Town of Champion 36 St. Rep. 759, affirmed 128 N. Y. 599; 38 St. Rep. 1012, where the road ran along the side of a hill. The track is but 7 feet wide. To the west of the track there is a space of 3 feet on the same level; then a slope of 13 feet, .with a descent of 2 feet; then a precipitous fall of 4 feet; then a descent of 16½ feet vertically in 31 feet horizontal (a slope about that of an ordinary railway embankment) to the tree upon which the wagon struck. To the east of the track there is a slight rise for 14 feet, and then a steep ascent. It would be a gross exaggeration to say that the descent thus described was a precipice, but the situation is certainly far different from that of the streets in the Monk v. Hubbell Cases. We think the case lies in that intermediate territory where it is the province of the jury to determine the question of danger, and that of negligence in failing to provide security against the danger. We cannot say, as a matter of law, that there was no evidence to justify the jury in finding negligence. The judgment should be reversed, and a new trial ordered; costs to abide event


author: Mayham, P. J.

text:
    Effie B. Oliver, App’lt, v. Margaret R. French et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Judgment—Modification.
    A motion to modify a judgment for irregularity is properly denied, where the notice of motion, or order to show cause, and affidavit on which it is made, fails to specify the irregularity.
    2. Same—Specification.
    An expression, in the affidavit, as to the opinion and conviction of the affiant that the judgment failed to conform, in many particulars, with the findings and conclusions of the trial judge, is not such a specification.
    Appeal from an order, denying a motion to modify the judgment, entered in the action.

      J. Rider Cady (Hale, Bulkeley & Tennant, of counsel), for app'lt; A. Frank B. Chace, for resp’ts.
   Mayham, P. J.

action was tried by a judge, who made and filed his conclusions of fact and law, none of which were excepted to on the trial. Upon such findings, the judge, after hearing the attorneys for the respective parties as to the form and substance of the decree to be entered in the action, made, signed, and filed the same, and judgment was duly entered thereon. After-wards, on an order to show cause granted by the trial judge, a motion was made by the plaintiff to modify the decree upon the ground that the same did not conform to the findings of fact and law found by such trial justice, and the plaintiff asked on suchi motion that the judgment be so modified as to make it conform, to the facts and law found. The judge denied such, motion,, and from the order denying the same the plaintiff appeals. The only •question, therefore, before us on appeal, to be considered,, is-whether or not the decree conforms substantially with the.-facts: found.

No decision separate from the findings of fact and law seems to have been made by the judge. The objection is. taken by the respondents that the order to show cause which in, this matter operates as a notice of motion, is so defective, in not stating the precise irregularity complained of, that the motion was for that, reason properly denied. Standing upon the order to show cause;, alone, such objection is well taken; but' the appellant seems to rely upon the affidavit on which the order was granted to cure that defect The order was granted, as appears on its face, upon the affidavit, of one of the counsel in the case, who states that, from inspection of the findings of fact and conclusions of law, such judgment, inadvertently or otherwise, fails to conform in many particulars with the findings of fact and conclusions of law; and upon the printed case, which appears in this record to contain 92 pages of printed matter. If the judgment is not such as is authorized by the findings, it is an irregularity, and may be corrected on motion. Howland v. Howland, 20 Hun, 472; Ingersol v. Bostwick, 22 N. Y. 425. Rule 27 of the general rules of practice of this court provides that when a motion is for irregularity the motion or order shall specify the irregularity complained of. The judge at special term wrote no opinion, and the precise ground upon which it was denied does not appear. We do not think that the notice of motion or order to show cause, and affidavit on which it was made, specified the irregularity within the meaning of rule 28. The affidavit expressed the opinion and conviction of the affiant that the judgment failed to conform in many particulars with the findings and conclusions of the trial judge. Is that such a specification of the irregularity as, under the rule, calls the attention of the judge at special term or this court specifically to the irregularity complained of ? We think not. If the special term or this court were to examine the voluminous case,—affidavit, order to show cause, findings, and judgment,—and make an analytical examination of all of these documents, the court might not be able to reach the alleged irregularity aimed at by the affidavits and order, while a concise statement in the moving papers could easily have directed the attention of the court to the alleged irregularity, and thus secured a definite determination of the precise point upon which a review could be taken, and the exact point determined with definiteness and precision. Such was doubtless the object of the rule and policy of the law. As the case is presented, this court cannot determine whether the special term disposed of the case upon the ground of the insufficiency of the motion papers, or upon the merits. In Lewis v. Graham. 16 Abb. Pr. 126, it was held that where the irregularity is not specified in the notice, and the motion is denied, the court, on appeal may presume that the motion was denied on the ground of defect in the notice. Roche v. Ward, 7 How. Pr. 416 ; Baxter v. Arnold, 9 How. Pr. 455. In the case at bar the learned trial judge, after a full hearing of the ¡parties, with his findings óf fact and law and judgment before him, denied the motion. In the absence of any specific designation of the particulars in which the judgment and decree are at variance with his findings of fact and law made by the judge, I think his order denying the motion to modify the judgment must be affirmed. Order affirmed, with $10 costs and printing disbursements, without prejudice to a renewal of the motion, on additional papers in compliance with rule 37, above referred to, on payment .of costs of this motion.

Herrick, J., concurs; Putnam, J., concurs in result.


text:
    Annie A. E. Moffett, Resp’t, v. Mary S. Elmendorf et al., Def’ts. Annie C. King et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    1. Will—Construction.
    Where a will directs an aggregate fund to be divided, share and share alike, among individuals by name, the presumption is that it was intended that the devisees or legatees should take as tenants in common, and not as joint tenants, and the interests of those dying before the testator are deemed to have lapsed.
    2. Same.
    Will was construed to establish that it was testator’s intention that his wife should have all his estate which he did not otherwise dispose of by his will, and that the tenth clause was to be operative only in case his wife died in his lifetime, without his having an opportunity to change his will.
    Appeal from a j udgment construing a will.

      Joshua M. Van Cott and J. M. Bowers (Eustace Conway, of counsel), for app’lts; J. G. Flanders, for resp’ts.
   Van Brunt, P. J.

view of the conclusion at which I have arrived, it will not be necessary to discuss some of the points which have been presented upon the part of the appellants. In the brief statement of facts, therefore, no mention is made of the particular circumstances under which such questions arise, and only such facts are stated as seem to be necessary to a comprehension of the points directly involved. Samuel B. Duryea died in the city of Brooklyn on the 7th of June, 1892, without issue, leaving, him surviving, a widow, and having duly made his last will and testament, dated June 18, 1877, and a codicil thereto, dated June 2, 1887, which were duly admitted to probate. The real estate sought to be partitioned in this action was devised by the sixth clause of the will to certain persons, two of whom died before the testator ; and the first question presented is whether the shares which those two persons would have taken, if living, lapsed, or whether the devise was a devise to a class, those living at the death of the testator taking the whole. The next question is: If these shares did lapse, did the same pass to the testator’s widow under the second clause of the will, or to his heirs at law under the tenth clause ? For a resolution of these questions it will be necessary to consider the whole of the testator's will and codicil, and gather from them the general intention of the testator, and then particularly consider the clauses of the will and codicil which seem to illustrate more pointedly such intention.

Considerable stress has been laid by the appellants upon what is called an error of the referee in the method pursued by him in determining the true construction to be placed upon the will in question; and it is urged that the referee erred in considering the will as speaking as of the death of the testator, rather than as of the time when the will in question was made; and our attention is called to various adjudications upon this subject, tending to show that in those particular cases the will was held to speak as of the date of its execution, rather than as of the date of the death of the testator. But the question as to the rule of construction is one which must necessarily depend upon the peculiar circumstances of each particular case. It is the intention of the testator which is to determine the construction to be placed upon the will; and, in reaching a conclusion as to what such intention was, adjudicated cases in respect to other wills afford but little aid, because no two wills are alike. It has become almost a maxim of the law that no will has a brother. The language used in each is different, the situation of the testator is different, and the ends to be accomplished are different. Therefore, the intention of a testator must be gathered from the will itself, the court being aided in its construction by his situation at the making of the will and at his death. In the case at bar, in order to arrive at the intention of the testator, it is necessary to consider, not only the will, but also the codicil which the testator made to said will some 10 years after its execution. It is a familiar principle of law that the making of a codicil is substantially the republication of the will; and this rule is invoked upon the part of some of the appellants for the purpose of showing that the testator did not intend that the legacies in question should lapse. Having these general rules in view, and having in mind the fact that the testator did not intend to die intestate, we shall proceed to consider the particular clauses of the will which form the subject-matter of this controversy. As already stated, the testator left a widow, but no issue, and therefore only collateral relatives. The first and second clauses of the will are as follows:

“First. I give to my beloved wife, Kate Duryea, all my personal property and estate not herein otherwise bequeathed,- unless in the contingency of my surviving her, or of her and my decease on the same day, or by occasion of the same wreck or casualty proving fatal to both ; and in that case I bequeath said personal estate to my next of kin. The provisions of this will in favor of my wife are made by me, and are to. be accepted by her, in lieu of all claims of dower in my real estate, or any portion thereof."
“Second. All my real estate, except the portions thereof hereinafter otherwise given or disposed of, I give, in like manner, to my said wife, if I leave no issue, but if I leave any children, living or afterborn, or the descendants of any deceased child, I give the real property in this clause devised to my wife and such issue in equal shares; that is, each child, the representatives of each deceased child as a class, and my wife are severally and respectively to take equal shares therein.’’

By the third, fourth, and fifth clauses he makes certain disposition of remainders in real estate. The sixth clause, which is the clause under which the question as to the lapsed legacies arises, is as follows:

“Sixth. I give and devise to my aunt, Catherine Elwell, and my cousins. Mary S. Elmendorf, John D. Elwell, Joseph S. Elwell, Cornelius A. Elwell, Annie A. Elwell, James H. Elwell, and Sarah E. Elwell (each to take an equal share therewith), my lots on the southerly side of Sixteenth street, between First Avenue and Avenue A, in the city of New York; also, my lots on the southerly side of Sixty-First street, between First Avenue and Avenue A, in the city of New York; also, my lots and premises now or heretofore known as ‘No. 276 Mott Street,’ in the city of New York; and also my house and lot now or heretofore known as ‘No. 143 Mercer Street,’ in the city of New York.”

By the eighth clause of the will he gave to the Brooklyn Children’s Aid Society of the City of Brooklyn a considerable amount of real estate. By the ninth clause he gave legacies to divers persons. The tenth clause is as follows:

“Tenth. All the residue of my real estate (if any there prove to be) I give and devise to those who may be my heirs at law at the time of my decease, and in the same proportion in which they would have taken if, as to such residue, I should have died intestate.”

This will, as already stated, was executed on the 18th of June, 1877. On the 2d of June, 1887, the testator made a codicil to his will, by which he revoked the eighth item or section of his will, in relation to the Brooklyn Children’s Aid Society of the City of Brooklyn, N. Y, by which also he requested his wife to pay, so long as she lived, $500 annually to the Tree-Planting and Fountain Society of the city of Brooklyn ; by which also he bequeathed to the Long Island Historical Society his library and manuscripts; and then made some directions in regard to the burial of his remains, and provision for the keeping of the burial plot in order.

Catherine Elwell and Cornelius Elwell, two of the devisees named in the sixth clause of the will, died before the testator; and the first question is, did their share in the devise lapse, or was the devise to a class, the survivors taking the whole ? In support of the contention that the survivors took the whole, our attention is called to the cases of Hoppcock v. Tucker, 59 N. Y. 204 ; Manier v. Phelps, 15 Abb. N. C, 127; Clark v. Lynch, 46 Barb. 69; Magaw v. Field, 48 N. Y. 668; Page v. Gilbert, 32 Hun, 303; In re Seebeck, 63 Hun 179; 44 St. Rep. 280; Ferrer v. Pyne, 81 N. Y. 285. These cases, however, all depend upon the particular language which was there being construed, and establish no general rule which is to control. It is to be observed that the presumption is, where a will directs an aggregate fund to be divided, share and share alike, among individuals by name, that, it was intended that the devisees or legatees should take as tenants in common, and not as joint tenants, and hence that the interests o£ those dying before the testator are deemed to have lapsed. This was the rule Mid down in the case of Savage v. Burnham, 17 N. Y. 561, and it has not been departed from. Wherever the will clearly indicates that the devise is to a class, and was intended to benefit a particular class, and. not the particular individuals of that class, the right of the survivors to take the whole has been maintained. In the case at bar there are no-words of class used, except that the testator speaks of the deviseesas his aunt and cousins. But these words were undoubtedly used merely to designate the persons. If others of the same name existed, they could not claim, because they were not of the relationship named in the will. It was simply for the purpose of definiteness in designation that these words of relationship were-used. The devise is to his aunt (naming her) and to his cousin's-(naming them), an equal share of the property devised being: given to each. Here, clearly, there was no intention to designate the devisees as a class.

It is urged that one of the devisees named in this will died in December, 1877, and in 1887 the testator made a codicil, apparently principally for the purpose of revoking one of the provi • sions contained in the will, and no mention is made of the lapsing of any of the legacies therein contained ; and it is contended that, if the testator had supposed that the legacy to Catherine El well had lapsed, he undoubtedly would have made other disposition of her share of the estate. The force of this argument, however, we-do not perceive, because the testator, having made the provision for the Elwells which he desired to make, and having made a- disposition of the balance of the estate, whatever it might prove to* be, evidently, when one of these legatees died, saw no reason for a change in his will or the making of a different disposition, the-lapsed portion of his estate going under his will as the testator had provided. This view is emphasized by the fact that although, in the codicil, he revokes a gift of a large amount of real estate to-the Brooklyn .Children’s Aid Society, he makes no disposition, except that which is generally made by his will, of such portion of his estate. As already stated, it is manifest that the testator did not intend to die intestate; and he knew when-he revoked this legacy that he had made a provision in his will for the disposition of whatever should not pass under these specific devises of his-will, and with that disposition he w.as satisfied. Hence he simply revoked the legacy, allowing the subject-matter -thereon to pass-under the general provisions of his will.

This brings us to the consideration of the other question involved, namely: Hnder the provisions of the will, does the wife take the legacies which have lapsed, or do they go, under the tenth clause, to the heirs at law of the testator ? It seems to me, when we consider the intent of the testator as disclosed by all the provisions of his will and codicil, that the conclusion must be arrived at that the tenth clause was pot intended by the testator to be a general residuary clause, except in the event of the death, of his wife during his lifetime under such circumstances that he could not recast his will, and that he intended that all his real estate which did not pass by his will should go to his wife unless he had issue ; and in arriving at this conclusion I have been very much influenced by the provisions of the first clause of his will disposing of his personal estate not therein otherwise bequeathed. It must be conceded that if any of the pecuniary legacies lapsed, they were covered by this first clause, and would have gone to the widow unless the contingencies therein mentioned prevented such devolution, among which was the death of the wife during the lifetime of the husband ; and by this clause the testator bequeathed his residuary personal estate, in case of the happening of these contingencies, to his next of kin. Here we have, in respect to the personal estate, the scheme of a bequest of specific legacies to persons named, and a bequest of the balance of the personal estate to his wife if living, and if she should die before him, to his next of kin. Then, when the testator comes to deal with his real estate, he uses the following language :

“All my real estate, except the portions thereof hereinafter otherwise given or disposed of, I give, in like manner, to my said wife, if I leave no issue."

What did the testator mean by giving his real estate “ in like manner" ? Did he not mean that his wife should enjoy all the real estate which he left, and which was not disposed of by his will, provided she survived him ? Of course, if she died in his lifetime, the gift would necessarily lapse. If she was living he desired her to enjoy all the residue of his real estate precisely the same as he had provided that she should enjoy all the residue of his personal estate; and this was .the “like manner” which the testator had in mind. He never could have intended, by these informal words, to have imported into the clause relating to the real estate the important words of contingency contained in the first, clause relating to his personal estate. The will in question was carefully drawn, was intended to meet every contingency, and to dispose of each and every part of the testator’s estate; and, in view of the disposition made in regard to the personalty, it is evident that he intended that all parts of his estate undisposed of by his will should be enjoyed by his wife, as above stated. In respect to the real estate he provides differently for the case of the death of his wife, he surviving, and not having made any alterations in his will consequent upon this changed state of affairs. If he left children, under the provisions of his will the children were to equally enjoy his estate, even though the provision made for his wife in case of the leaving of children should have lapsed, because if the testator had died leaving children him surviving, his wife being died, the provision that his wife should share equally with the children would lapse, and the testator would have died intestate as to the share of the wife were it not for the tenth clause of the will. And it is evident that he intended to provide for these contingencies of the death of his wife during his life, he dying without issue, and having been unable to make any change in his will, and of his wife having died in his lifetime, and he dying leaving children, and having made no other disposition of his ■estate than that contained in his will. In either case the share of the wife would lapse, and pass by the tenth clause; arid it was this contingency which the tenth clause was intended to meet. This view is further reinforced by the action of the testator in reference to the provisions contained in the eighth clause for the Brooklyn Children’s Aid Society. By his codicil he revokes this provision, and says nothing in regard to what shall be the disposition of the property devised by the will for this society,, but leaves it to be disposed of under his will. It was clearly the intention of the testator that his wife should enjoy that part of his estate which he did not otherwise devise by his will. This he declared when he executed this codicil, by the republication of the will which the law presumes. He revoked the legacy to the Children’s Aid Society; and, the will and codicil being read together, it was as though the eighth clause had never existed, and hence that the property therein mentioned became a portion not disposed of by the will, which went to the wife. So it was with these legacies which lapsed. They were not disposed of by the will, to the testator’s knowledge. In view of this construction placed upon this provision for the wife by the testator himself, can it be said that he intended that any portion of this estate should go under this tenth clause, his wife living at his death ? It seems to me, when we take the whole will together, and consider all its terms and provisions, and the construction of his will by the testator evidenced by his codicil, we must come to the conclusion that he intended his wife to be the residuary legatee, and that the tenth ■clause should have operative effect only in case of the death of his wife during the testator’s lifetime, he not having had any opportunity to make any change in the testamentary disposition of his property; thus placing his real estate in precisely the same position as his personal estate in this respect, because that is the disposition which he has unequivocally made of his personal estate. 'The judgment should be affirmed, with costs to the various parties, to be paid out of the estate. All concur.