author: Gray, J.

text:
    In the Matter of the Application of Henry Bradley, Resp’t, to Compel the Delivery of Books, etc., by William H. Sullivan, App’lt.

      (Court of Appeals,

      Filed March 13, 1894.)

    1. Office—Delivery of books.
    All that the petitioner is required to establish, under § 51 of . R. S. 125, is his election and that he has duly qualified.
    :2. Same—Validity of election.
    In such a proceeding, questions as to the validity of the election cannot be determined.
    3. Same—Acceptance of office.
    Under §51, chap. 569" of 1890, where the oath is taken and filed by one elected as supervisor, it is an acceptance of the office and his predecessor thereupon ceases to hold it, and has no further standing as a member of the town board.
    4. Same—Approval of undertakins.
    It is for the other members to pass upon the undertaking of the new member.
    5. Same—Objections.
    In such a case, objections that illegal votes had been counted for the appellant and that he had not been elected by a majority of the legal ballots and that his predecessor had not been notified and was not present at the. meeting of the town hoard when the applicant’s undertaking had been approved, are untenable.
    Appeal from an order of the general term of the supreme court in the third judicial department, made December 8, 1892, which .affirmed an order made at special term.
    This was an application under the statute (1 E. S. 125, § 51) by Henry Bradley, who had received a certificate of his election to the office of supervisor of the town of Minerva, Essex county, and had filed his undertaking, which had been approved by the town board, to compel William H. Sullivan, his predecessor in that office, to deliver over the moneys, books, papers, etc., belonging to that office.
    Sullivan objected that Bradley was not elected by the greatest number of legal ballots and had not duly qualified. His objection to the election was based on allegations charging the ballots cast thereat to have been marked in various ways and his objection to the qualification was that he was not present at, nor had notice of, the meeting of the town board at which Bradley’s official undertaking was approved. The court at special term, Ordered Sullivan to make delivery as demanded and the order was affirmed at the general term. An appeal was then taken by Sullivan to this court. '

      Robert Dornburgh for app’lt; John A. Foley for resp’t.

       Affirming 49 St. Rep., 530.

   Gray, J.

With respect to the objctions raised by Sullivan to the legality of the petitioner’s election to office, it suffices to say that it appeared upon the proofs that he received a majority of the votes cast at the election in question and had received a ■certificate of his election from the board of canvassers. That was not only a sufficient showing, but more than was necessary to be shown, provided he had officially qualified as required by law, to warrant the order in question. In People ex rel. Bradley et al. v. Shaw, 133 N. Y. 493 ; 45 St. Rep. 866, we had occasion to review objections made to the counting of the ballots cast at the election now questioned, upon the ground that they were marked, and we held that it was the duty of the inspectors to have counted the ballots' in declaring the result of the election and we sustained an order directing a peremptory writ of mandamus to issue, commanding the board of canvassers to re-assemble and to declare the result of the town meeting and to issue a certificate of election to the candidates having the greatest number of votes cast for them. It appears that the writ was obeyed and, thus," petitioner received his certificate. This is not a proceeding to try petitioner’s title to the office. It is simply a summary proceeding authorized by the statute (1 R. S. 124, § 50); by which he seeks to obtain the town moneys and the books and papers accompanying the office, and all the petitioner was required to establish was the fact of his election, as evidenced by the proper certificate, and that he had duly qualified. The incumbent of the office, whose term had expired, cannot go into questions underlying the petitioner’s election and which he may allege as invalidating it. For such purpose, the proceeding must be direct. The objection that the petitioner has not qualified is untenable. It is conceded that he had taken and filed his oath of office; but his predecessor in office claims, under his construction of the statutes, that it was necessary that the undertaking of the supervisor elect should be approved at a meeting of the town board at which he was present, or of which he had notice. He argues that he remained a member of the board until the undertaking of his predecessor was approved. We cannot so read the provisions of chapter 569, Laws of 1890. By § 51, every person elected to a town office, within ten days after notification of his election, is required to take his oath “ before he enters on the duties of bis office ” and the filing of it, within eight days, the statute provides, “ shall be deemed an acceptance of the office; ” and an omission to take and file such oath, within the time required by law, it is further provided, “ shall be deemed a refusal to serve and the office may be filled as in case of vacancy.” By section 60 every supervisor “ shall, within thirty days after entering upon his office,” deliver his undertaking to the town clerk, which shall be presented to the town board for approval, and until approved none of the moneys, books .etc., of the town shall be delivered over to the supervisor elect. It is very clear that the law contemplates two steps by the candidate elected to office. The first to be taken is the filing of his oath of office. When that has been done the office is deemed to have been accepted and that is equivalent to saying that the officer elect has entered upon his duties. It is after so entering upon his office, and within a specified time thereafter, that he is required to execute and submit his undertaking. That he is regarded as in office, when he has filed his oath, is perfectly clear from the provision that neglect to file the oath within the prescribed time causes a vacancy. When he has evidenced in the required manner his acceptance of the office to which* elected, his predecessor is out and has no further standing as a member of the town board. It is for the other members to pass upon the undertaking of the new member, as a condition precedent to his right to take over the town moneys, books etc., into his custody.

The order should be affirmed, with costs.

All concur.

Order affirmed.


source: Caselaw Access Project

author: Bartlett, J.

license: Public Domain

text:
    In the Matter of the Application of the Southern Boulevard Railroad Company to Acquire the Right to Construct a Railroad, etc.

      (Court of Appeals,

      Filed March 20, 1894.)

    Appeal.—Condemnation proceedings.
    No appeal lies to the Court of Appeals from an order of the general term, affirming an order of the special term, confirming the second report of commissioners in condemnation proceedings under chap. 140 of 1850.
    Appeal from order of the general term of the supreme court in the first judicial department, made November 18, 1892, which affirmed an order of special term directing the Southern Boulevard Railroad Company to pay the trustees of the estate of Paul Spofford, deceased, an award for property condemned. ,
    The facts, so far as material, are stated in the opinion.

      George Hoadly, for app’lt, William Pierrepont Williams for resp’t.

       Dismissing appeal from 49 St. Rep. 732.

   Bartlett, J.

This appeal is taken by the Southern Boulevard Railroad Company from an order of the general term of the first department affirming an order directing payment to the trustees of the estate of Paul Spofford, deceased, of the sum of $5,999.94, the difference between a first award of six cents and a second award of six thousand dollars under the General Railroad Law of 1850, providing for the acquisition of real estate by railways and the mode of fixing compensation for the same.

The Southern Boulevard Railroad Company began proceedings in January, 1890, under the General Railroad Law of 1850, to condemn the interests of certain property owners in land occupied by the Southern Boulevard in the twenty-third ward of the city of New York, in so far as the same were necessary for the purpose of said railroad. Commissioners were appointed, who, after hearing testimony, assessed the damages to be paid by the company to the property owners under chapter 723, laws of 1887, as amending laws of 1867, chapter 290; at a nominal sum of six cents. This award was reversed by the general term on the ground that the legislature had no power to repeal a part of chapter 290 of the laws of 1867 by enacting chapter 723 of the laws of 1887 which sought to confine the property owners to nominal rather than substantial damages. (58 Hun, 497; 35 St. Rep., 550.) From this order of reversal an appeal was taken to this court, which was dismissed on the ground it was not a final order. (128 N. Y., 93; 38 St. Rep., 844.) The matter then came on before the commissioners for a second hearing, which resulted in an award of six thousand dollars. An order was thereafter made at special term adjusting the difference between the two awards and directing the payment thereof. That order was affirmed at general term, and from it this appeal is taken.

The respondents make the preliminary objection that this appeal will not lie, for the reason that the appellant company is proceeding under the General Bailroad Law of 1850 and its amendments, but that this proceeding having been instituted prior to May 1st, 1890, the rights of the parties must be sought in the act last mentioned, and, unaffected by the legislation of 1890, which did not take effect until the first day of May that year. (Code, § 3384.) The preliminary objection thus made is based on § 18 of chapter 140 of the Laws of 1850, as amended by Laws of 1876, chapter 198, wherein it deals with the matter of a second report or award made by the commissioners. It provides as follows, viz.: “ On the hearing of such appeal ” (that is, the appeal from the first report) “ the court may direct a new appraisal, before the same or new commissioners, in its discretion; the second report shall be final and conclusive on all the parties interested.” The respondents contend that said provision is fatal to this appeal. The appellant, replying to this contention, insists that as to the amount of the appraisal the second report is final and conclusive, but that it is at liberty to show that the property the commissioners valued is not that for which it was bound to pay.

The appellant also insists it is at liberty on this appeal to examine into the constitutionality of said act of 1887; the power of the legislature to contract with property owners under the said act of 1867; the fact whether the award has evidence to support it, and whether or not material evidence was rejected by the commissioners at the hearing. We are of opinion that the question raised by this preliminary objection is not an open one in this court, and that the appeal herein must be dismissed.

In the Matter of Prospect Park and Coney Island Railway Co,, 85 N. Y., 489, this provision of the General Bailroad Act of 1850 was construed. The petitioning company sought to acquire title to land in Gravesend avenue, Long Island. An appraisal was had which resulted in a report that was confirmed at special term and reversed by the general term. A second hearing was held before the commissioners and another report was made that was confirmed by both the special and general terms and an appeal was taken to this court. Judge Bari says: “Commissioners of appraisal were appointed, and after hearing the parties they made their report, awarding to the owners each one dollar as compensation for the land taken. That report was confirmed at special term; but upon appeal to the general term of the supreme court, the order of confirmation was reversed, and the report was set aside and new commissioners were appointed, who were ordered to make a new appraisal * * * on the ground that they had awarded but nominal damages, when the land owners appeared from the case as then presented to be entitled to more substantial damages. A hearing was had before the new. commissioners, and they made their report which again awarded to the land owners nominal damages, one dollar each for the land taken.” The court, after setting forth the appeal to the special and general terms and to this court, proceeds with the consideration of the case as follows, p. 496: “ This was a second report, and the amount awarded to each land owner was the same as by the first report. The order o£ confirmation by the special term was, therefore, entirely useless and harmless, and nugatory as well; and so the order of the general term affirming that of the special term, so far as I can perceive, served no purpose and decided nothing. The appeal to the general term brought there no question to review. The report of the commissioners, as to the amount of damages, was of itself final and conclusive. If the land owners, in such a case, claim that there was any irregularity, fraud or mistake in the proceedings of the commissioners, or back of such proceedings, their remedy is by motion to set the award and proceedings aside, and not by appeal from the award, or the order confirming the same; and, from orders made upon such motions, appeal may be had, even to this court, if they involved substantial rights, and do not rest in discretion.”

In the Matter of the Petition of the New York and Harlem Railroad Company (98 N. Y. 12) this same question was referred to by Judge Earl. After holding that an order of the general term reversing an order which confirmed an award in a first proceeding and directed a new appraisal, was not reviewable here for the reason it was not a final order in a special proceeding, Judge Earl says: “It is nevertheless not a final order, and if the result should be that the company will not be able to bring to this court for review the question of law upon which it appears, from the opinion of the general term, the new appraisal was ordered, it will be the fault of the law and not of this court. If, however, upon the new appraisal, the commissioners should proceed upon a fundamentally erroneous view of the law, and thus do either party injustice, the ingenuity of counsel may possibly discover some mode of correcting the error, and, if necessary, for procuring a review of the question in this court. In re P. P. & C. I. R. R. Co., 85 N. Y. 489, 496. See generally on this subject N. Y. C. R. R. Co. v. Marvin, 11 N. Y. 276; People ex rel. S. & U. H. R. R. Co. v. Betts, 55 Id. 600; In Matter of D. & H. C. Co., 69 Id. 209; In Matter of Metropolitan El. Ry. Co., 128 Id. 600; 38 St. Rep. 881; In Matter of N. Y., L. & W. Ry. Co., 1 Silvernail, 91; 2 St. Rep. 456. Judge Rapallo, writing as late as 1886, says, in deciding a point not involved in case at bar: “ Aside from other answers to this argument of the respondent, a sufficient one is that although, under the statute, the petitioners could not by appeal obtain a review, on the merits, of a second award, yet it would be within the power of a court of equity to set aside any excessive award obtained by fraud or the misconduct of the commissioners, or for any cause which would justify setting aside an award of arbitrators; and in a proceeding like this the same relief could be obtained on motion.” We, therefore, hold that no appeal lies from the order of the general term, affirming the order of the special term, directing the payment of the difference between the first and second awards.

The appeal should be dismissed, with costs.

All concur.

Appeal dismissed.


text:
    Daniel C. Hewitt, App’lt v. Moses Newburger, Resp't.

      (Court of Appeals,

      Filed March 20, 1894.)

    1. Criminal Law—Intent.
    Where a particular intent is an ingredient of the crime, the mere doing of the prohibited act does not constitute the crime, unless accompanied with unlawful intent.
    2. Same—Section 467 of Penal Code.
    Under § 467 of the Penal Code, an unlawful and criminal intent must be alleged and proved.
    S. Jurisdiction—Courts of limited.
    When certain facts are to be proved to a court of only special and limited jurisdiction as a basis for its action, a total defect of evidence as to any essential fact makes its action void.
    4. False Imprisonment—Void warrant.
    Where the warrant and all the proceedings under it are void, a party, who has been active and officious in procuring the arrest, is liable for false imprisonment.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order made November 22, 1892, which affirmed a judgment in favor of defendant entered upon an order dismissing the complaint on trial at circuit.
    The nature of the action and the facts, so far as material, are in the opinion.

      Edward P. White, for app’lt; Z. ¡S. Wesibroolc, for resp’t.

       Reversing 48 St. Rep., 811.

   Bartlett, J.

This an appeal from a judgment of the general term of the supreme court, third department, affirming a judgment rendered at the Montgomery county circuit dismissing the complaint. This action to recover damages for an alleged false imprisonment. The plaintiff was arrested in the city of Amsterdam by virtue of a warrant issued upon an information sworn to by the defendant. The information alleged that “ one Daniel Hewitt did threaten to commit the crime of injuring property belonging to the City Mills, a corporation in said city of Amsterdam, in that he threatened to tear down a wall now being erected by said corporation, and being the property thereof, and the same is being built for the purposes of a dam, and there is just reason to fear that he said Daniel C. Hewitt will tear down and demolish said wall, as he, the said Daniel C. Hewitt, hath, as above, threatened to do.”

The warrant issued thereon by the recorder of the city of Amsterdam reads as follows, in its material part: “ Information upon oath having this day been laid before me that the crime of threatening" to injure and destroy property in the city of Amsterdam, * * * in that Daniel C. Hewitt did on the 27th day of June, 1891, threaten to tear down and destroy a wall now being built in the said city by the City Mills, a corporation in the said" city, and said wall being owned by said City Mills, and is being built for the purpose of a dam, and accusing the said Daniel C. Hewitt thereof. You are, therefore, commanded, etc.” The plaintiff was arrested by virtue of this warrant on Saturday evening, detained in the recorder’s office about two hours, was heard through counsel, who moved to dismiss the proceeding, the motion being granted the next Monday morning, the plaintiff having been allowed to go home in the meantime. The action is sought to be maintained on the ground that the process was without authority of law for the reason that neither the information nor the warrant charged the plaintiff with the commission of any crime, or with threatening to commit any crime, known to the law, and, consequently, the recorder acquired no jurisdiction in the alleged proceeding, and the defendant is liable in damages for the illegal arrest. The defendant’s counsel seeks to meet this attack on the information and warrant by citing the sections of' the Code of Criminal Procedure and Penal Code upon which the proceeding before the recorder was based. The information was sworn out under Code of Criminal Procedure, part II, title II, ‘chapter II, entitled “ Security to keep the Peace.” Section 84 reads: . “ An information may be laid before any magistrate that a person has threatened to commit a crime against the person or property of another.” The crime alleged to have been threatened is to be found in §§ 639 and 654 of the Penal Code. Section 639 reads: “ A person who willfully or maliciously displaces, removes, injures or destroys * * *. 2. A pier, boom or dam, lawfully erected or maintained upon any water within the state, or hoists any gate in or about said dam; * * * is punishable by imprisonment for not more than two years.” Section 654 provides that a person who unlawfully and willfully destroys or injures any real or personal property of another shall be punished by fine and .imprisonment as specified. It is not possible to hold under the most liberal rule of construction that the information in the case at bar contains allegations proper and sufficient to charge the plaintiff with having threatened to commit the crime set forth in either of the sections quoted. If it was the intention to have charged the plaintiff under said section 639 it should have been alleged that he willfully or maliciously threatened to do the act set forth ; or if the charge was under said section 654 it should have been averred that he unlawfully and willfully threatened to do the act specified. If plaintiff was proceeding under a claim of title and insisting that the walls of the City Mills was being erected on his own land, he committed no crime in threatening to remove it; there is nothing in the record to show whether he was acting lawfully or unlawfully. The fatal vice of the information and warrant is that they utterly fail to aver the unlawful and criminal intent which constitutes crime. In People v. Stevens , 109 N. Y. 159, 163 ; 14 St. Rep. 808, Judge Andrews says:

“ To constitute a trespass on land an indictable offense, the distinguishing feature is an unlawful and criminal intent. It is the criminal mind and purpose going with the act which distinguishes a criminal trespass from a mere civil injury. 1 Hale’s P. C. 509. It is not necessary in all cases to constitute a crime that a defendant should know that the statute prohibits his act. It is sufficient if he does the act prohibited when the statute makes the mere act itself unlawful. But where a particular intent is an ingredient of the crime, the mere doing of the prohibited act does not constitute the crime unless accompanied with unlawful intent. The cases of larceny, receiving stolen goods, or passing counterfeit money are illustrations. The same act may in one case be larceny, or forgery, or a guilty reception of stolen property, and in another wholly innocent, depending on the intent. Section 467 of the Penal Code, defining the offense of intrusion on lands, does not, it is true, in terms make the intent a material element of the offense. But it cannot be supposed that the legislature intended to subject a person to criminal punishment, as when, for example, there being a dispute between neighbors as to the line between them, one moves his fence on his neighbor’s land under a bona fide though mistaken belief that he was placing it on the true line, or where a lot owner in a city or village, in erecting a building, encroaches innocently, although without authority, upon the street. Yet both of the cases are within the letter of the statute, but manifestly they are not within the statute, because, looking at the reason of the thing, the ineffacable distinction between innocence and crime, and the antecedent law, the existence of a criminal intent, as a necessary constituent of the offense, must be implied.”

In the case of Wass v. Stephens, 128 N. Y. at page 128; 38 St. Rep. 882, Judge Andrews thus defines the word “ willfully.” “ But the word ‘ willfully ’ in the statute means something more than a voluntary act, and more also than an intentional act which in fact is wrongful. It includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness.” The wrongful purpose, the design to injure, the motive of lawlessness or wantonness are all lacking in the information against plaintiff which was laid before the recorder and upon which the warrant was issued. This being so, the act of the recorder was wholly without jurisdiction and the warrant and all proceedings under it were absolutely void. This principle is recognized in Potter v. Ogden, 136 N. Y. at page 396; 49 St. Rep. 829, Judge Finch says : “ It is well settled that, when certain facts are to be proved to a court having only a special and limited jurisdiction as a basis for its action, a total defect of evidence as to any essential fact will make its action void, while some proof of every such fact may enable it to proceed.” In the case at bar there was no proof of the essential facts. Curry v. Pringle, 11 Johns. 444; Bigelow v. Stearns, 19 id. 39; Murphy v. Kron, 20 Abb. N. C. 259 ; 8 St. Rep. 230. This process being void the defendant is liable; .the evidence shows him to have been active and officious in procuring this arrest; he went to the office of the recorder and said he wanted a warrant for the arrest of plaintiff; he stated the facts, swore to this information, procured the warrant, handed it to the chief of police, said he wanted it served “right away,” offered to provide “ a rig ” to go to plaintiff’s house, and sent his son later to inform the officer where he could and did find plaintiff in a certain store at Amsterdam. All these circumstances establish defendant’s liability, and it was for the jury to determine what damages, if any, the plaintiff had suffered in the premises.

The judgment should be reversed, new trial ordered, with costs-to abide the event.

All concur.

Judgment reversed.


text:
    In the Matter of the Accounting of Anna Parker Pruyn, as Executrix, etc.

      (Court of Appeals,

      Filed March 20, 1894.)

    1. Executors—Accounting—Release.
    . A release, by the petitioner, of all claims and demands against the executrix individually and the estate hars him from instituting a proceeding to compel a judicial settlement by her.
    2. Same.
    The fact that there is an infant interested in the estate, does not effect the release as a bar.
    Appeal from order of the general term of the supreme court in the third judicial department, made December 6, 1893, which reversed an order of the surrogate’s court of the county of Albany directing an accounting..
    The petitioner, John Y. L. Pruyn, was an executor and a legatee under the last will of his father, John Y. L. Pruyn, deceased, and by this petition he has sought to compel Mrs. Anna P. Pruyn, the widow and an executrix under the will, to render an account of her proceedings as such executrix since January, 1878; at which time letters testamentary were granted to her. Upon the return day of the citation to her, Mrs. Pruyn filed an answer; setting forth the execution by the petitioner, Pruyn, of a release of all claims and demands, etc., and a motion was thereupon made on her behalf to dismiss the petitioner’s proceedings. The release referred to was in an agreement executed between Mrs. Pruyn, as widow and executrix of the testator; the petitioner Pruyn, as the son and executor of the testator, and Harriet, a daughter of the testator, and was dated June 15, 1889. The instrument mentioned divisions of the property as having been made in the years 1880 and 1887, by agreement between Mrs. Pruyn and Mr. Pruyn, in accordance with the will; Mrs. Pruyn acting at the time therein as guardian of her two daughters, Harriet and Huybertie. It proceeded to ratify and confirm those divisions and the statement of the accounts relating to the estate; and set forth that “ said Recounts are settled as between themselves and as between themselves and said estate.” Then followed mutual releases; by which Mrs. Pruyn and Mr. Pruyn released each other from every liability “ by reason of anything relating to the estate, or the doings or proceedings of either of them, as executrix or executor of said will.”
    The surrogate of the county of Albany denied the motion to dismiss the proceeding, and ordered Mrs. Pruyn to render a full and complete account of all her proceedings as executrix, etc. Upon appeal, the general term reversed the surrogate’s order and the petitioner has appealed to this court.

      Barnwell Rheit Heyward and Edwin Countryman, for app’lt: J. Newton Fiero, for resp’t.

       affirming 57 St. Rep. 296.

   Gray, J.

It is difficult to perceive upon what principle the surrogate determined the liability of Mrs. Pruyn, the executrix, to render an account of her proceedings, upon this application. We are without any opinion by him and we can only suppose he must have regarded the matter much in the same light as does the petitioner ; namely, that an accounting is so much a matter of strict right, as to override and render ineffectual this agreement of the parties. We had occasion, in the Matter of Wagner's Estate, 119 N. Y. 28; 28 St. Rep. 266, to consider the question of the effect of a release, given by a person who was interested in an estate in course of administration, upon a subsequent application to compel an accounting by the executor. The case was a much stronger one than this; for there the petitioner was not the person who had executed the release, but it was his widow and administratrix, and she alleged fraud in its procurement. Here the agreement of release is not attacked upon any ground whatever; but the court is simply asked to disregard it as constituting any bar to the petitioner’s right to maintain the proceeding. The principle of our decision in the Wagner case, supra, applies fully here and what we said there we may-repeat here; that it is the surrogate’s “ duty to deny the petition, if it should appear that the petitioner is not, on the face of the proceedings, entitled to the order and he should not permit the executor to be uselessly harassed.” By the terms of the release in this case, nothing was left open to question as to the estate in course of administration. The settlement between the parties was of the most complete character and the agreement evidencing it, so long as it stands as their agreement, prevents either of them from setting in motion the machinery of the surrogate’s court to compel a judicial accounting by the other. The right and interest of each in the estate have been extinguished; except as to any residuary interest of a vested or contingent nature; an exception provided for in the agreement and which affects possible future interests and not the past administration. The appellant, however, endeavors to sustain his proceeding in other ways. He says that an accounting should be had as to certain securities, which were set apart by agreement in 1887, “ as a fund to yield an in» come ” for the maintenance of the family residence; the use of which was devised to testator’s widow. That agreement was between the same parties; it is not attacked upon any ground and it remains in full force. The petitioner’s application was to compel the executrix to render a full account of all her proceedings as executrix and neither did, nor could, contemplate that she should account for the expenditure since 1889 of the income of the fund, so appropriated by their agreement to a specific purpose and which, so far as the record informs us, is held by them jointly. With respect to that they have no claim to call each other to any account in the surrogate’s court; whatever may be rendered necessary upon the widow’s death. The appellant argues that the fact of there being a minor child, who was not a party to the agreement of 1889, imposés upon him the discharge of the duty to compel an accounting by the executrix. It is sufficient to say, as to that suggestion, that the minor has not been brought into the proceeding and, if she had been, it would not have been of any avail to the petitioner in support of his demand upon Mrs. Pruyn for an account of her proceedings. The rights of the minor were not affected by anything that was done and she was not precluded from asserting her rights and from compelling an accounting as to her interests, if she so elected upon coming of age. The bar to such a proceeding as this by the petitioner, which was interposed by the agreement of release in question, is, while it stands, effectual under all circumstances as between him and the executrix. The questions have been so fully discussed at the general term, as to render it unnecessary for us to say more than we have.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.


author: Pryor, J.

text:
    The People ex rel. Guiseppe Gentilesco, Pl'ff, v. The Excise Board, Def’t.

      (New York Common Pleas, Special Term,

      Filed February , 1894.)

    Excise Law—Transfer of License.
    A liquor license existing at the time of the enactment of the excise law may not be transferred to premises within the prohibition of the statute.
    Certiorari to the Board of Excise Commissioners.
    The opinion states the case.

      James J. Walsh, for petitioner ; Edward Browne, for resp’t.
   Pryor, J.

The application of Guiseppe Gentilesco for a transfer of a saloon liquor license from No. 19 Cherry street to No. 100 Bayard street,- in the City of New York, was rejected by the Board of Excise Commissioners, “for the reason that the place for which said transfer of license is sought is on the same street with and having its nearest entrance within two hundred feet of the nearest entrance to a building occupied exclusively as a school, and that said premises were not licensed at the time of the passage of chapter 480 of the Laws of 1893.” The determination of the question in dispute, namely, whether the board denied the application “arbitrarily or without good and valid reasons,” depends upon the construction of the following provisions in the act regulating the sale of intoxicating liquors.

“Section 43. Restrictions as to licenses near churches and schools.—Mo person or persons who shall not have been licensed prior to the passage of this act, shall hereafter be licensed to sell strong or spirituous liquors, wines, ale or beer, in any building not used for hotel purposes, and for which a license does not exist at the time of the passage of this act, which shall be on the same street or avenue and within two hundred feet of a building occupied exclusively as a church or school house. The measurements shall be taken from the centre of the nearest entrance of 'the building used for such church or school purposes to the centre of the nearest entrance of the place for which an application for a license has been made; provided, however, that a board of excise may, in its discretion, grant permission, in the manner herein provided, to transfer a license from premises within the limits above mentioned to other premises within said limits, but a greater distance from the principal entrance of a church or school.”

The concession of fact is, that prior to the passage of this act, the petitioner had been licensed for a saloon at Mo. 19 Cherry street; that at the time of its passage no license existed for a saloon at Mo. 100 Bayard street, the premises to which a transfer of license is solicted, and that these premises, not used for hotel purposes, are on the same street and within two hundred feet of a building occupied exclusively as a school house.

The petitioner contends that inasmuch as he had been licensed prior to the passage of the act, he is excepted from its terms and so from its prohibition. That his case is not within the express language of the law is a proposition to which I assent; but that because he not within the latter he is exempt from the operation of the statute is an argument without support in legal principle. “It is an established rule in the exposition of statutes that the intention of the lawgiver is to be deduced from a view of the whole and of every part of a statute; and the real intention, when accurately ascertained, will always prevail over the literal sense of terms.” 1 Kent. 461; People ex rel. Mason v. McClave, 99 N. Y. 83, 89. “It is a familiar canon of construction that a thing which is within the intention of the makers, of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of a statute is not within the statute, unless it be within the intention of the makers.” Riggs v. Palmer. 115 N. Y., 506, 509 ; 26 St. Rep. 198. “It is the duty of judges to make such a construction-as should suppress the mischief and advance the remedy.” 1 Kent 465.

The obvious purpose of the enactment is to seclude the church and the school room from the baneful proximity of the saloon— a beneficent policy to which by a liberal construction of the law the courts should be auxiliary. But if, as the petitioner argues, the possession of a license for another place before the passage of the act, entitles him to a transfer within the forbidden precincts, then manifestly the hallowed ground is subject to invasion by similar saloon keepers from all parts of the city. And yet, even when one already has a license for premises within the limits, he may transfer it only to a greater distance from the protected building.

In the act under discussion the intention of the lawgiver is plain beyond the possibility of mistake. It is that while saloons already licensed within two hundred feet of a church or school,, may be continued, the approach of no other saloon shall be per-mi ted within the privileged locality.

Upon this construction of the statute no vested interest of the petitioner is invaded. The right to continue his saloon in Cherry street is not denied or impaired; and before the passage of the act he had no license to maintain a saloon on the premises to which he now desires a transfer. But, even had he such license, the legislature might revoke it without violation of the constitutional guarantee. Beer Company v. Massachusetts, 97 U. S., 25; Stone v. Missisippi, 101 U. S., 814; Butchers & Co. v Crescent & Co., 111 U. S., 746; Bishop on Contracts, §564.

The inference is, that the phraseology of the statute was inaptly employed to express the legislative intent, rather than purposely chosen to frustrate the cherished policy of the law.

Order denied.


author: Titus, C. J.

text:
    Charles W. Lynch, Resp’t, v. City of Buffalo, App’lt.

      (Buffalo Superior Court, General Term

      Filed February 2, 1894.)

    Evidence—Municipal corporations.
    Notice to a city of a defect in a sidewalk may be inferred from its defective condition for a time before the accident.
    Appeal from a judgment in favor of the plaintiff.

      George M. Browne, for app’lt; George W. Cothran, for resp’t.
   Titus, C. J.

This action was brought by the plaintiff to recover damages for an injury which he received from a defective sidewalk while passing along a street. I do not think _ there is any ground for disturbing this verdict. Several objections were made to the admission of evidence showing the condition of this sidewalk before the plaintiff received his injury. It was incumbent upon the plaintiff to show the defective condition of the sidewalk, and that the city had notice of such condition, before he could recover damages for an injury received by reason of it. No proof was given that the defendant had direct notice; but that was not necessary. It was sufficient to show that the sidewalk had been in its then present condition for a time preceding the accident, Smith v. Mayor, etc., 66 N. Y., 295; Rehberg v. Mayor, etc.,, 91 N. Y., 137; Pomfrey v. Village of Saratoga Springs, 104 N. Y., 459 ; 5 St. Rep., 802, when the city was bound to take notice of its defective condition, and put it in a reasonably safe condition of repair; and, if it failed to do so, it is chargeable with negligence. We think the evidence was sufficient to submit to the jury this question. No other objection was taken, and the record discloses no ground for granting a new trial. The judgment and order appealed from should be affirmed, with costs.


text:
    City of Buffalo, Resp’t, v. New York, Lake Erie & Western R. R. Co., App’lt.

      (Buffalo Superior Court, General Term,

      Filed February 2, 1894.)

    1. Municipal Corporation—Ordinances.
    An ordinance, general in terms in requiring trains to stop at a certain street, does not discriminate against a road, though it is the only one crossing such street.
    S. Same.
    Such ordinance is a reasonable exercise of the power conferred by subd. 5, § 17, chapter 105 of 1891.
    Reargument.
    Sprague, Morey, Sprague & Brownell, for app’lt; George M, Browne, for resp’t.
   Titus, C. J.

This case comes before us on a motion for a re-argument. When the case was considered' by this court on a former hearing, it was stated, in the opinion of the court, City of Buffalo v. N. Y., L. E. & W. R. R. Co., 23 N. Y. Supp. 303; 54 St. Rep. 150, that “at page 235 of the minutes of the court below it appears that it was stipulated that the testimony in regard to trains stopping at Hydraulic street might be stricken out, thus leaving no testimony in the case of a failure to stop before crossing any of the streets mentioned in the ordinance. It is, therefore, unnecessary to pass upon the validity or unreasonableness of this section of the ordinance, because there is no evidence that the ordinance was violated by the defendant.” Although it appears from the return that such a stipulation was made and entered in the minutes of the court, the counsel for the respective parties now appear in open court and stipulate that the testimony relating to trains stopping at Hydraulic street was not stricken out, but that the stipulation had reference to trains stopping at Hydraulic street, as tending to show an admission on the part of the defendant of the existence of that street, and that the testimony relating to the violation of the ordinance in not stopping the defendant’s trains at Hydraulic street is still in the case.

This being the situation, the question of validity of the ordinance was not passed upon on the former hearing. The evidence establishes the fact that Hydraulic street is a public highway, and, under the ordinance, trains are required to make a stop at that street. This, the evidence shows conclusively, the defendant did not do, but passed it without stopping, in violation of the ordinance. The defendant claims the ordinance is invalid, because it discriminates against the defendant corporation. The ordinance is general in its terms, and applies to all railroads alike, and the fact that other roads do not cross the street does not seem to me to render the ordinance invalid, if it is a reasonable exercise of the power conferred by the legislature upon the common council by subdivision 7, § 17, of the charter, chapter 105, Laws 1891, “to prohibit or regulate the use of locomotive engines and of steam, and to regulate the motive power and speed on any portion of any railroad within the city. * * * ” We think, in view of the evil sought to be remedied, that the ordinance is reasonable and valid, within the cases cited in the opinion of the court when the case was first before us. We do not think the ruling of the court below on the admission or rejection of evidence was error, and the judgment should not be disturbed on that account. This determination necessitates a modification of the order made at the last general term, in which the judgment of the municipal court was modified by deducting from the recovery one penalty of $50, and reducing the taxable costs awarded in the court below from $15 to $8. The order of the court should be that the judgment of the municipal court be affirmed, with costs.


author: White, J.

text:
    Charles Arhart et al., Resp’ts, v. Hannah Stark, App’lt.

      (Buffalo Superior Court, General Term,

      Filed February, 1894.)

    Witness,—Cbedibility.
    The credibility of a witness cannot be affected by a judgment in a civil action against him to recover a fine imposed by a city ordinance for keeping a house of ill-fame.
    This is an appeal by the defendant from a judgment in favor of the plaintiffs against her, entered upon the verdict of a jury on the 12th day of May, 1893, for $363.79, and from an order denying the defendant’s motion for a new trial made upon the minutes of the judge presiding at the trial.

      Harry D. Williams, for app’lt; George L. Kingston, for resp’ts.
   White, J.

While the record presented to us fails to disclose what the issues in the case are, the briefs of counsel show that the action is brought to recover commissions alleged to have been earned by the plaintiffs as real estate agents in the service of the defendant. The substantial question litigated upon the trial was one of fact, depending upon the credibility of the parties as witnesses for its solution by the jury.

The defendant refused to testify, on cross-examination, whether or not she had been previously convicted for keeping a house of ill-fame in the city of Buffalo, and thereupon the plaintiffs react in evidence a judgment of the municipal court of Buffalo convicting her of that offense, in violation of an ordinance of the city, which ordinance defines the act of keeping a house of ill-fame within the city as"disorderly conduct, and makes it punishable by a fine of not less than five nor more than one hundred dollars, recoverable under the charter of the city by a civil action in that court. The defendant objected to the admission in evidence of the municipal court judgment, and excepted to the ruling of the court admitting it, and that exception raises the only question upon which we are asked to pass on this appeal.

Section 832 of the Code of Civil Procedure provides that a person who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness in a civil or criminal action or special proceeding, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record or by his cross-examination, and the plaintiffs claim that the conviction of the offence of keeping a house of ill-fame by the municipal court of Buffalo was a conviction of a misdemeanor within that section of the Code.

The character of the city of Buffalo authorizes its common council to enact ordinances defining and prescribing' punishments for disorderly conduct, and providing that the offense be punishable by a fine of not less than five nor more than one hundred dollars, and imprisonment in default of its payment. Jurisdiction of an action in the name of the city against the offender to recover a penalty is given by the charter to the municipal court of Buffalo. The offense is a misdemeanor at common law, and also by the terms of the Penal Code punishable by criminal process and procedure. Two modes of punish, ment for the same offense are therefore, prescribed. The fact that the state law characterizes the act or conduct constituting the offense as a misdemeanor, and the ordinance characterizes it as disorderly conduct, in no way affects or changes the essential quality of the act or conduct; in both instances the act or conduct is the same, namely, keeping a house of ill-fame. It is an elementary principle in our criminal law that no person shall be twice vexed for the same cause.

The claim made by the plaintiffs is that the defendant by the municipal court of Buffalo was to all intents and purposes, and within the meaning of section 832 of the Code of Civil Procedure, a conviction of a crime or misdemeanor and a bar to any further prosecution by indictment or otherwise for the same offense, and such, as we understand it, is the theory upon which the trial court disposed of the case and admitted the judgment of conviction in evidence. Numerous decisions by the courts of other states are in accord with that view of the matter, but the law in the United States courts and this state seems to be that it is competent for the legislature to subject any particular offense both to a penalty and a criminal prosecution, and that a conviction in either case will not bar a conviction in the other, though the proceedings differ in method and time, the theory being that the two proceedings and convictions constitute but one punishment, and it is held that this principle applies to proceedings to punish an offense against a state law and a city ordinance .when they are conducted before different tribunals, and, further, that in an action to recover a penalty the judgment is not a conviction of a crime or misdemeanor. McLaughlin v. Stevens, 2 Cranch (U. S. C. C.), 148; United States v. Hooe, 3 Cranch, 73; Rogers v. Jones, 1 Wend. 237 ; City of Brooklyn v. Toynbee, 31 Barb. 282 ; People v. Stevens, 13 Wend. 341; Wragg v. Penn Township, 94 Ill. 11; People v. Miller, 38 Hun, 82.

In the last cited case, the defendant Miller was convicted of the offense of keeping a house of ill-fame in the city of Buffalo by a justice of the police. The Erie county court of sessions reversed the conviction, and the general term of the supreme court in this department sustained the reversal, on the ground, as the report of the case says, that the record did not show that the defendant was charged with being a disorderly person But in view of the fact that according to the same report of the case the charge made against her was that she kept a house of ill-fame in violation of an ordinance of the city, and as the ordinance defines the act of keeping a house of ill-fame as disorderly conduct, it is difficult to comprehend why the record did not show that she was charged with disorderly coduct. It is apparent that the general term intended to recognize and distinguish the modes of punishment for the same offense prescribed by the state law and the ordinance respectively, the one making the offense punishable by indictment and criminal methods as a misdemeanor, and the other making the same offense punishable by a civil action for a penalty as disorderly conduct, and holding that, because the defendant was in terms charged with keeping a house of ill-fame instead of being in terms charged with being a disorderly person as defined by the ordinance, the civil action for the offense charged was not the appropriate remedy, and that, therefore, and for that reason her conviction by the justice of the police was not justified in law. This was in effect an approval of the principle of double legislation.

It follows that the exception by the defendant to the admission in evidence of the municipal court judgment was well taken, and that the judgment and order appealed from should be reversed and a new trial ordered, with costs to abide the event.

Titus, Oh. J., concurs.

Judgment and order reversed and a new trial ordered, with costs to abide the event.


author: Fitzgerald, S.

text:
    In the Matter of McLaren’s Estate.

      (Surrogate’s Court, New York County,

      Filed January, 1894.)

    1, Executors, etc.—Commissions.
    In case of an equitable conversion of reality, where the estate is held by the executors unconverted, they are not entitled to commissions on the principal.
    3. Same.
    The value of the real estate, in such case, may be considered in determining the commissions to which they are entitled on the income.
    Proceedings for the judicial settlement of the accounts of the executors.

      Mies, Barnard & Tiffany, for executors; P. H. Vernon, for legatees.
   Fitzgerald, S.

An equitable conversion of the realty has been effected by the power of sale given by the will to the executors. The estate, however, is held by the executors as such, and the real estate being, as yet, unconverted, they are not entitled to commissions on the principal thereof. The value of the real estate, however, can be taken into consideration in ascertaining whether the value of the estate of decedent was $100,000 in excess of debts, for the purpose of determining the commissions to which the executors are entitled on income. The decree should provide for the retention of the estate by the executors, upon the trust in the will. There is insufficient evidence before the court upon which to decide the question as to the value of the real estate unsold, and I have referred the matter.

Ordered accordingly.


author: Coffin, S.

text:
    In the Matter of Millward’s Estate.

      (Surrogate’s Court, Westchester County,

      Filed January, 1894.)

    1. Tax—Transfer—Appraisement.
    In making appraisement of estate subject to the transfer tax, debts, funeral, and administration expenses are not to be deducted.
    2. Same—Surrogate’s Valuation.
    The surrogate, in fixing such value, may deduct the debts owing by decedent from the value of the estate.
    3. Same—Indeterminate bequest.
    A bequest to the widow for life or until re-marriage, cannot be appraised until the termination of such estate.
    Appeal by the executor from the decree fixing the transfer tax.

      George B. Bonney, for app’lts; D. Verplanck, asst. dist. atty., for resp’ts.
   Coffin, S.

The appraiser was entirely right in declining to hear evidence in regard to the debts of the deceased, the funeral expenses, and expenses of administration. The court of appeals held in Re Swift, 137 N. Y., 77-87; 50 St. Rep. 81, which arose under the act of 1887, that “ manifestly, under the law, that which is to be reported by the appraiser for the purpose of the tax is the value of the interest passing to the legatee under the' will, without any deduction for any purpose.” This supports the view taken on the subject by this court in Re Ludlow, 4 Misc. Rep. 594, under the act of 1892. The two actions on this point are substantially alike. This court, however, is asked to deduct the tax on the sum of the debts, funeral expenses, commissions of the executors, and the expenses, aggregating about $26,700, exclusive of commissions, which were not estimated, but inclusive ■of a claim of a physician for $2,629, now alleged to be in dispute, and also the sum of $2,500 as the estimated expenses of administration. The amount in value of the estate or property to be taxed should be fixed with mathematical certainty, and not by mere estimate or approximation. This is easily done at once on general and specific legacies, but on those embraced in a residuary clause such amount subject to the tax, if any, cannot be fixed until the accounting shall have been had, if we are allowed to deduct for debts, funeral expenses, and expenses of administration, for the physician’s bill is stated to be in dispute; and hence, how much it may be reduced or affected by the result, and the cost of litigation, if any, or how it may affect the estimated expenses of administration, cannot now be known. Whether any deduction, such as is sought here, can even then be made, is involved in much doubt. The value of the property or estate to be appraised is defined by the twenty-second section of the act of 1892 to be the property or estate of the testator passing or transferred, and not as the property or interest therein passing or transferred to individual legatees, etc. Hence the appraiser must make his report of the whole value of each legacy or distributive share at the point of transfer, without making any deduction whatever; and the' surrogate must then fix the tax upon the value of the “ estate ” so reported which each legatee is to pay, and give notice to each legatee. The legatees, “if dissatisfied with the appraisement or assessment and determination of tax, may appeal therefrom to the surrogate within sixty days from the fixing, assessing and determination of tax as herein provided, upon filing in the office of the surrogate a written notice of appeal, which shall state the ground upon which the appeal is taken.” If it turn out on the appeal that no error was made in the appraiser’s valuation, or in the fixing, assessing, or determination of the tax, then it would seem that the appeal would fail. It cannot be discovered that the act anywhere expressly authorizes the surrogate to deduct from the appraised value any debts, funeral expenses, commissions of executors, or expenses of administration; and it is, therefore, fairly questionable whether the legatees do not'take cum onere, as the tax is not put upon what the legatees do not get, but upon the value of the estate at the point or period of the transfer, which is the date of the death of the testator. It is believed that courts should seek for a solutioti of this doubt in favor of legatees in other provisions of the act, that unjust results in some cases (insolvent estates, for instance),, may be avoided. Accordingly, we find in § 6 that if any debts shall be proven against the estate of the decedent after the payment of a legacy or distributive share from which the tax has been deducted or paid, and the person to whom the legacy has been paid shall be required to refund a pro rata share, the executor, etc., shall refund to him an equitable proportion of the tax. While this is not the case, it may fairly be inferred that the legislative intention was that debts owing by decedent should be deducted from the value of the estate so left by him. In general, this would affect the residum in testamentary cases. Again, §10 provides that the surrogate “ shall have jurisdiction to hear and determine all questions arising under the provisions of this act, and to do any act in relation thereto authorized by law to be done by a surrogate in other matters or proceedings coming within his jurisdiction.” This is a question so arising, and he may, in an accounting proceeding, allow debts admitted or established and paid to be credited and deducted from the corpus of the estate, or, if not paid, to direct their payment by the decree; and, of course, his jurisdiction to allow commissions, funeral expenses, and expenses of administration, but has, in general, no power to hear and determine a disputed claim. It seems, therefore, that he may, at the proper time, allow the several items in question when ascertained. In this case, however, as they are not know., they must abide the accounting as above stated.

But there is another ground, not stated in the notice of appeal, which renders the appraisal and fixing of the tax at present impossible. Where an estate for life is given, with remainder over, it is an easy matter for the superintendant of insnrance to fix the value of the life estate. But here the widow is given the use of the wholfe for life, and, in case of her remarriage, then the use of one-half only. While we have an established method for ascertaining the value of a life estate of a widow, based upon an arbitrary rule as to probable time of death, there is lacking any such rule to enable us to approximate the period when, if at all, she may remarry. That defies all calculation. Hence the value of her estate, or of the remainder, cannot now be ascertained for the purpose of the assessment of the tax. That cannot be done until her death or marriage. The decree is therefore set aside and vacated.


author: Ransom, S.

text:
    In the Matter of the Estate of Frank Linsly James, Deceased.

      (Surrogate’s Court, New York County,

      Filed December 15, 1893.)

    1. Tax.—Transfer.
    Neither the alienage nor the non-residence of a legatee or annuitant entitles him to an exemption.
    2. Same.
    Nor of the testator, since the act of 1887 went into effect.
    3. Same.
    In such case, the legacies will be taxed in the proportion that the assets bear to the foreign assets.
    4. Same.
    The exemption of a certain class of corporations from such tax does not apply to foreign corporations,
    Appeal from order of appraisement.

      Parsons, Shepard & Ogden, for app’lt; Edward S. Kaufman, for comptroller of city of New York.
   Ransom, S.

Neither the alienage nor the nonresidence of a legatee or annuitant entitles him to an exemption ; neither does the alienage or nonresidence of the testator since the act of 1887 went into effect. In re Romaine's Estate, 127 N. Y. 86; 38 St. Rep. 76; In re Enston, 113 N. Y. 181; 22 St. Rep. 569. I can find nothing in the act which, when both the legatee and the testator are aliens or nonresidents, gives to the alien legatee a benefit not conferred upon citizens and residents of this state. There might be a question if the legacies were demonstrative in their character; but it is not claimed that the English assets were made exclusively liable to the payment of the annuitants and legatees on whose behalf this appeal has been taken, nor is it claimed that the entire estate, wherever situated, would not be liable for their payment. The theory upon which the appraiser has acted seems to me to be the correct one, viz.: In the proportion that the assets in this jurisdiction bear to the foreign assets it is to be resorted to for the payment of debts and legacies, and to that extent the legacies are taxable. The exemption of certain corporations, organized for other than business purposes, from the operation of this act, does not include foreign corporations. In re Prime's Estate, 136 N. Y. 347; 49 St. Rep. 658. I have heretofore passed upon the liability to taxation when the assets consist of bonds and stocks of foreign corporations, the certificates for which are kept within this state, adversely to the claim of the appellant Estate of Bondon, Surr. Dec. 1892, p. 115, and cases cited.


author: O’Brien, J.

text:
    Edward Schell, as Surviving Executor of, etc., of George F. Merklee, Deceased, Resp’t, v. Adaline F. Merklee et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    Will—Bequest.
    A bequest to certain churches ‘to buy coal for the poor of said churches” is in trust and void for lack of an ascertained and definite beneficiary.
    Appeal from judgment of special term construing will.

      S. St. J. McCulchen, for app’lts Merklee et al; Thomas M. Tyng, for app’lts Ludwig et al; James Otis Hoyt, for plaintiff-respondent; Fernando Sollinger, for resp’t M. E. Church; William JD. Udell, for resp’t Jane Street M. E. Church,
   O’Brien, J.

In this action it was sought to obtain a judicial construction of the twentieth or residuary clause of the will of George F. Merklee, deceased, which provides as follows:

“Item 20. If, after all the legacies are paid in full, there should be anything left of my estate, the same to be divided and paid to the Methodist-Episcopal churches in the Ninth ward of the city of New York, according to the number of members, to buy coal for the poor of said churches.”

The validity of this .clause is to be determined by the conclusion to be reached as to whether there was an absolute gift to the churches named, or only a gift in trust “to buy coal for the poor of said churches.” If the former, the fact that there was an expression on the part of the testator, that the moneys were to be applied for one of the purposes of the corporations would not destroy the gift itself, and could be disregarded. If, on the other hand, the language used created a trust, constituting the church corporations merely as trustees, then it seems reasonably clear that as a trust the bequest must fail for the lack of an ascertained and definite beneficiary.

In support of the view that this was an absolute gift, and' not a trust, it is urged with much force that, although the gift to the churches was coupled by the testator with the expression “to buy coal for the poor of said churches,” this does not destroy the absolute character of the gift, being an expression merely of his desire that the moneys so given should be used for one only out of the many objects of the church corporations. And in support of this construction we are referred to Matter of Teed, 59 Hun, 69; 35 St. Rep. 531; which goes far towards maintaining such a contention. In that case the bequest was given to the New York Baptist Union for ministerial education, “for the endowment of the Eochester Theological Seminary.” As said in the opinion in that case: “The use of the word ‘endowment’ in the will is extremely loose, if it be true, as we suppose, that there is in reality no corporation by that name. The term manifestly lias in this connection, no meaning whatever, unless it be in the nature of a strong desire on the part of the testator that the fund so given should be used for only .one of the many objects for which the real corporation was created. The expression ‘for the endowment of the Rochester Theological Seminary,’ in this connection, is meaningless, under any definition that may be found, and it may safely be elided without detriment to the will.” And, upon this reasoning, the Court held that the bequest was absolute, and that the words following the gift, or attempting to limit its use, were meaningless and could be disregarded.

On the other hand it is insisted that the language is susceptible only of a construction consistent with an attempt to establish a trust of an ascertainable fund in trustees for a definite purpose in favor of beneficiaries, which must fail because the beneficiaries are neither ascertained nor ascertainable.

If the premise is sound, that this was an attempt to create a trust, then we think the conclusion follows, because it is clear that there are no defined or definable beneficiaries. The legal test of definiteness in the benficiary is the capacity to come into court and invoke the performance of the trust. Levy v. Levy, 88 N. Y., 101. And as it would be impossible for any one to establish that he was within the class of persons intended to be benefited, he could not claim the benefit of such a trust.

Upon the crucial question as to whether- this is or is not a trust, the language of Perry on Trusts, § 115, is apposite: “ The point really to be determined in all these cases is, whether looking at the context of the will, the testator intended to impress an obligation on his legatees to carry his wishes into effect, or whether, having expressed his wishes, he intended to leave it to the legatee to act on them or not, at his discretion.”

It will be noticed, therefore, that the first test to be applied is to ascertain (which is the primary object in the construction of all wills) the intention of the testator. In this will, the testator, by twenty separate clauses (designated items ”), disposed or intended to dispose of his property; and in every legacy except the trustee in favor of her two nieces, created by the third and fourth items, and this bequest to the churches in item twenty, the words of actual gift and bequest are used. Where the testator intended to express a wish or make a suggestion this has been done, as shown by items 16 and 18 of the will, in a. way so as not to destroy the absolute character of the gift, and that he knew how to make a bequest for general corporate purposes is evidenced by item 18, wherein we find a direction to pay to the St. Luke’s Hospital * * * for its corporate purposes, the sum of seven thousand dollars ($7,000), to which I give and bequeath the same.”

The weight to be given to such considerations in the construction of a will was lately before this court in the case of Gross v. Moore, 68 Hun, 412 ; 52 St. Rep., 657, wherein it was said : “ Apart, however, from this clause itself, if resort be had to the entire will, it will be found that when testatrix intended to make an absolute gift of her property she used apt and technical language to express her intention. Thus, with respect to the other nine bequests given in other portions of her will, she adds, after designating the legatee, that he. is to take ‘ absolutely and forever.’ In the residuary clause the language used is entirely different, and is consistent only with the view that he was to take the property; not personally, and for his own use, but as executor in trust for distribution, in such proportions and to such beneficiaries as she, by her instructions to him, had designated.”

Having in mind, therefore, that where absolute gifts were intended apt words were used, and construing the language here, we think it was intended to give the residuum to the churches, not absolutely, but in trust for the designated purpose of buying coal for the poor. And that it is expressive of an intention on the part of testator that the churches should not take it absolutely, but that the gift is accompanied by a direction as to the manner in which they shall apply it, is sufficient to constitute a trust. The language is not merely commendatory or expressive of a wish, but it is a statement of why the residuum is to be divided and paid to the churches, namely, to buy coal for the poor. Thus it does not come within that class of cases wherein it has been held that commendatory terms expressive of wish, will, desire, etc., where not sufficiently commanding, emphatic or imperative, will not raise an implied trust or defeat an implied gift.

The learned trial judge placed his conclusion that the gift was valid upon the authority of Williams v. Williams, 8 N. Y. 525; Wetmore v. Parker, 52 N. Y. 467, and Fosdick v. Town of Hempstead, 125 N. Y. 591; 35 St. Rep. 863; Williams v. Williams, supra, though overruled in subsequent decisions upon at least one of the questions therein decided, is an authority for the position that “ corporations are authorized to take property for the uses of the society, or other pious uses,” which plainly shows that a benefactor may apply his bounty to the whole or any one or more of the various purposes for which the corporations are authorized to hold property.

The question, however, whether they are authorized to take is not the only question in this case, because, we assume, upon the authority of the case cited and others, and upon the proof here appearing, that these churches were capable of taking, provided the testator intended to make an absolute gift for any or all of the purposes. But the question we are discussing, and which must control upon.this appeal, is, what did the testator intend?

In Wetmore v. Parker, supra, the bequest was to an orphan asylum, and in that case the question was whether the bequest offended the statute against perpetuities, and this objection was overruled on the ground that the title to the fund passed to the asylum and that no specific trust was created.

The case of Fosdick v. The Town of Hempstead, supra, we think, is an authority in favor of the appellant. In that case a bequest was made of one-half of a certain fund to the town of Hempstead, “to be kept as a fund for the support of the poor of said town.” It was therein held that “the gift to the town was not an absolute one, but in trust for purposes which were not corporate or administrative, and that the town could not take it for that reason, and the trust itself is void because of the lack of any ascertained or ascertainable beneficiaries to enforce the same.” And in the opinion Judge Beckham,' referring to the case of Holland V. Alcock, 108 N. Y. 312; 14 St. Rep. 761, says: “That case leaves the doctrine no longer in doubt, that, to constitute a valid trust, there must be a defined beneficiary, and the absence of such is, as a general rule, fatal to a testamentary trust. Is there any such beneficiary named or to be found in this will ? The learned counsel for the town says there is, and founds his assertion upon the claim that the beneficiaries are composed of the class defined by law, and are limited to such poor persons as the town is now or may, from time to time, be compelled to support. But we hold that the testator did not intend to limit his charity by any such boundary. His intention was, as we have already stated, to embrace within his charity a much broader, while at the same time a much less well defined class, depending very greatly upon the individual views of the person or persons who, for the time being exercised the trust, and we say to such an extent is the power of choice vested in the trustee, that no one could claim the enforcement of the trust in his own favor or in favor of others. The beneficiaries are neither named nor capable of being ascertained within the rules of law applicable to these cases.”

We think, therefore, that the cases relied upon do not support, the conclusion reached by the learned trial Judge, and that the one from which we have just quoted, Foster v. Town of Hempstead, is one in favor of appellant.

Our conclusion is that the language “ to buy coal for the poor ” cannot be disregarded, and that it is not, as was said in the Matter of Teed (supra) “ extremely loose or meaningless,” but is indicative of an intention to have the property divided among these-churches, who were to take it in trust and apply the same in carrying out the testator’s intention, which, violating as it does the statute rules, cannot be effectuated.

The judgment, therefore, should be reversed and judgment rendered for the appellants, with costs to the appellants to be paid out of the fund.

Van Brunt, P. J., and Parker, J. concur.


author: Van Brunt, J.

text:
    Charles Menke, App’lt v. Ernest W. Gerbracht, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 1894.)

    1. Appeal—Objection.
    A specific objection must be taken to a defect in a pleading, in order to be availed of on appeal.
    2. Same.
    A geneial objection will avail only when there is no possibility of avoiding the ground of the objection,
    3. Copartnership—Principal and surety.
    Where a copartnership is dissolved, one partner retires and the other receives all the assets and assumes all the liabilities, the relation between them becomes that of principal and surety, and the firm creditors may be compelled to treat them as such.
    4. Same—Release.
    In such case, any extension of time given by a firm creditor, who has knowledge of the facts, to the continuing, without the consent of the retiring partner, for the payment of a debt, releases the retiring partner. .
    5. Same—Consent.
    The burden of showing such consent is on the creditor.
    Appeal from judgment entered upon the verdict of a jury and from order denying motion for new trial.

      J3. W. 3. Johnston, for app’lt; B. L. Maynard, for resp’t.
   Van Brunt, J.

The complaint in this action alleges that the-defendants were copartners, at the times thereinafter mentioned, under the firm name of Grerbracht & Co., and that said firm made - their promissory note, in writing, ¡bearing date the 7th day of May, 1890, whereby they promised to pay to the order of the-plaintiff, four months after date, the sum of $1,350; that at-maturity it was duly presented for payment and payment demanded, which was refused, and judgment for the amount of the-note, with interest and protest fees, was thereupon demanded.

Various defenses were set up by the defendant, Ernest W. Grerbracht, only one of which it is necessary to consider; and that, is, that on or about the 5th of June, 1890, the copartnership theretofore existing between the defendants was dissolved, and the other' defendant assumed all the assets and liabilities of the copartnership, of which plaintiff had due notice; and that thereafter, and when said alleged note became due, the plaintiff made no demand for the payment thereof from this defendant, but accepted an extension from the other defendant; and that he also, by accepting other extensions of other notes, manifested an intention to wholly look to the other detendant herein.

It is urged that there was no plea in the answer that there was. a valid extension of time given by the plaintiff to the remaining-partner, after notice of dissolution, and that the remaining partner-had assumed the debts and liabilities of the copartnership and thereby discharged the retiring partner; and that, therefore, it was error upon the part of the Judge to send the issue which he did to the jury. And, furthermore, that there was no evidence nor allegation that there was any extension of time without the consent of the retiring partner. If there is any defect in the allegations contained in the answer, it cannot be availed of upon-this appeal, because no such objection was taken upon the trial. It is true that certain evidence was objected to as immaterial and incompetent, but there was no suggestion that there was any deficiency in the pleadings to raise the defense sought to be established, viz. : extension. And it is to be noted that when any specific ground was stated, as showing that the evidence was-immaterial, irrelevant or incompetent, it was that the evidence did not refer to the note in suit, not that if it did so refer it was incompetent under the pleadings. Where a party seeks to rely upon a defect in the pleadings which renders it improper to receive evidence relating to a defense, or a cause of action sought to-be established, it is necessary to call the attention of the court to-the defect, and a mere general objection will not raise any such question. It is manifest that such should be the rule, because-errors of that kind may be cured by the allowing of amendments to the pleadings. And it is only where there is no possibility to avoid the ground of the objection that a general objection will be allowed to prevail and reverse a judgment.

It is further urged upon the part of the appellant that it was necessary for the defendant to allege and prove that the extension was without the consent of the retiring partner. It is well established that where a copartnership is dissolved, and one partner retires, and the other receives all the assets and assumes' all the liabilities, the relation between the two partners becomes that of principal and surety, and the creditors of the firm may be compelled to treat them as such. Under these circumstances, any extension of time given to a continuing partner, without the consent of the retiring partner, for the payment of a debt, releases the retiring partner, upon the principle that a surety is released where an extension is given to his principal without his consent. But, in case a surety is called upon to pay the debt, and he alleges an extension of the debt to his principal, it is not necessary for him to prove that he did not consent. It is necessary for the creditor to establish that such extension was by and with the consent of the surety. The extension, as already stated, discharges the surety unless he has consented. And when the surety proves the extension he is discharged unless the creditor can prove consent. The surety is not bound to prove a negative; the creditor is bound to establish the affirmative.

Therefore, in the case at bar if there was evidence to go to the jury upon the point that the plaintiff, knowing of the dissolution of the firm, extended the time of payment of the firm indebtedness to the continuing partner, and the jury so found, and assent to such extension is not established, the retiring partner is discharged. And that was the issue which was submitted to the jury—the real issue presented " being the contention upon the part of the plaintiff that, in the extension which was made to the continuing partner, the note in suit was not included. That seems to be the only issue which was really litigated, and the exceptions point entirely to such issue.

The court charged the jury that if they found that the note in suit was included in the settlement which was under consideration, and the plaintiff received from the continuing partner his notes for the balance found due, that they should find a verdict for the defendant, Ernest W. Gerbracht. And this was excepted to. This exception was taken in different forms, but that was the issue which seems to have been tried: the plaintiff claiming that the note for $1,850 was not included in the settlement, but the defendant establishing by evidence, about which there can be no contradiction, that it was so included, the plaintiff being absolutely unable to. account for the amount of the notes received from the continuing partner, if it had not been included.

It was claimed by the plaintiff, upon the termination of the evidence, that the note in suit was not in any way identified with the settlement—the note mentioned in the settlement bearing date the 12th of May, whereas this was dated the 7th. But there was evidence to the effect that there was but one note given in May; and the figures of the settlement demonstrate the fact that the §1,350 note was the one in suit, the plaintiff not even pretending that he had received a note dated the 12th of May. And in his complaint he does not allege that he received the note on the 7th of May, although it was dated on that day.-

It is now urged for the first time that there was no evidence that at the time of the settlement in question the plaintiff knew of the dissolution of the firm; and that error was committed in the admission of the copy of a postal card announcing such dissolution. It is not necessary to consider this objection, because the plaintiff himself testified that he knew when Ernest G-erbracht left the firm, and that it was in June; and that he received notice of the dissolution, and had left it at home. It is difficult to see how a claim can be made, under these circumstances, that there was no proof as to when the plaintiff knew of this dissolution, unless the appellant’s counsel intends to challenge the evidence of his own client upon this point.

Upon the whole case, we can see no ground for the position taken by the appellant. The proof was ample and convincing that the note in suit was included in the settlement; the claim made by the plaintiff that it could not be included in the settlement, and was not so included, being, apparently, wholly without foundation.

The judgment and order appealed from should be affirmed, with costs. *

O’Brien and Parker, JJ., concur.


text:
    Hans F. Jorgensen, Resp’t, v. The Ministers, etc., of Reformed Low Dutch Church of Harlem, App’lt.

      (New York Common Pleas, General Term,

      Filed January, 1894.)

    1. Limitation—Personal injuries.
    The six years’ limitation applies to an action for a personal injury not resulting from negligence.
    2. Personal injuries—What is.
    An action by a husband for a hurt to his wife is an action for personal injuries.
    3. Same.
    An action for a personal injury for an obstruction in a street is not ah action for negligence.
    4. Pleadings—Demurrer. '
    A demurrer to one of several separate and independent defenses admits only the facts stated in the defense against which it is directed.
    Appeal from interlocutory judgment.
    The opinion states the case.

      Douglas A. Levien, Jr., for app’lt; William B. Tullis, for resp’t.
   Pryor, J.

Here is an action by a husband for loss of the services and society of his wife, resulting from an injury to her by the wrongful act of the defendant. Among other defenses the appellant alleges that the cause of action did not accrue within three years, and to this plea the respondent demurs, “for that it does not set forth facts sufficient to constitute a defense." The demurrer was sustained, and from the interlocutory judgment on the order upholding the demurrer the defendant appeals.

Obviously the demurrer is not in the form prescribed by the Code, § 495, namely : that the defense “ is insufficient in law upon the face thereof.” Waiving, however, this technical objection, the question is whether the plea of the three years’ limitation applies to the cause of action exhibited by the complaint.

For a personal injury, without qualification as to its cause, an action maybe brought within six years, Code, §382, sub. 3, while for a personal injury “ resulting from negligence," the period of limitation is three years, Code, § 383, sub. 5. An action by a husband for a hurt to his wife is an action for personal injury in the sense of the statute. Maxson v. D. L. & W. R. R. Co., 112 N. Y., 559; 21 St. Rep. 767.

So the precise point in dispute is whether the cause of action presented by the complaint be for injury from negligence or otherwise.

The misconduct imputed to the defendant is described by the complaint in these words: “ Fifth, That at the times aforesaid the defendant there wrongfully and unlawfully maintained as an appurtenance connected with said premises a cellar or vault opening extending from the front line of said lot bordering upon said highway at least five feet beyond the street line thereof, and about four feet wide, into the public sidewalk of said avenue; that said vault opening contained a stone stairway leading to the cellar of said building, which was not covered by any indestructible material nor protected by iron railings, but wooden doors secured to said sidewalk by hinges, and that said opening in the sidewalk so covered was a public nuisance.

“ Sixth. That said premises and vault or cellarway were in the condition above described when the premises were leased as aforesaid by the defendant corporation to the defendants, Squires Brothers, prior to said September 25th."

Thus, upon the terms of the complaint the wrongful act alleged against the defendant is mis-feasance, not non-feasance; and the mis-feasance charged consists in the maintenance of a dangerous construction in the highway. The averment is not of an omission of care in the exercise of a right, but of a positive act in itself wrongful and unlawful. To designate beyond doubt the ground of his action, the plaintiff characterizes the thing of which he complains as a nuisance; and since every unlawful obstruction of a highway is a nuisance, 2 Sh. & Red. on Neg., §332, the appellation is not arbitrary but it is strictly appropriate to the nature of the thing.

The appellant contends, however, that since in another independent defense authority to create the obstruction in the street is alleged, the demurrer admits the fact; and that so the respondent is estopped to say that the obstruction is a nuisance. Waiving inquiry whether it be competent to a municipality1 to legalize a dangerous interference with the highway, Clifford v. Dam, 81 N. Y., 52, and whether even if permitted, the obstruction here was not a nuisance, Jennings v. Van Schaick, 108 N. Y., 530; 13 St. Rep. 686, still the appellant cannot, to sustain one defense in his answer, call to its aid an allegation in another and independent defense, Douglass v. Phenix Ins. Co., 138 N. Y., 210 ; 52 St. Rep. 164 ; Hammond v. Earle, 58 How., 426 ; but the demurrer admits only the facts of the particular defense against which it is directed, Cutler v. Wright, 22 N. Y., 472.

That the action is not for a negligent injury is equally clear upon the authorities, Dickinson v. The Mayor, 92 N. Y., 584, 588; Fisher v. Rankin, 25 Abb. N. C., 191, 193; 27 St. Rep. 582; Irvine v Wood, 51 N. Y., 224; Clifford v. Dam, 81 N. Y., 52 ; Martin v. Pettit, 117 N. Y., 118, 122; 26 St. Rep. 919, and such being the case, the plea of the three years limitation presents no defense, Maxson v. D., L. & W. R. R. Co., 112 N. Y., 559, 560; 21 St. Rep. 767

The provisions in the judgment for costs is not properly before us, Robinson v. Hall, 35 Hun, 214, but, in any event, it is the correct practice, Brassington v Rohrs, 23 Civ. Pro. R. 146.

Judgment affirmed, with costs.

Bookstaver, P. J., and Bischoff, J., concur.


author: Cullen, J.

text:
    The People ex rel. Kenney, Pl’ff, v. Cornell et al., App’lts.

      (Supreme Court, Kings Special Term,

      Filed February, 1894.)

    Information—Public examination.
    A justice of the peace in taking depositions of witnesses as to the commission of a crime, under § 148 of the Code of Criminal Procedure-, does not sit as a court, and the examination of witnesses need not he conducted in public.
    This was an application for a writ of prohibition to prevent a justice of the peace in Richmond county from taking otherwise than in public the depositions of witnesses as to alleged violations of section 41 of the Penal Code. The proceedings were instituted by an information that such crimes had been committed by “ John Doe ” and others, and witnesses were subpoenaed, brought before the magistrate, and examined in private; that is the public and persons claiming to be counsel for “John Doe’’and for the witnesses were excluded.

      George W. Wingate for the application ; Louis S. Phillips and W A. Shortt for the respondent.
   Cullen, J.

I am of opinion that the magistrate is not bound to admit the public when he entertains an information and application for the issue of a warrant. The statute provides : “ The sittings of every court within this state shall be public, and every citizen may freely attend the same.” But the magistrate when he receives an information, holds no court. Section 11, Code of Criminal Procedure, defines the courts of this state having original criminal jurisdiction, and a court of a justice of the peace is not to be found in the enumeration. He can hold a court of special sessions, but the court of special sessions has no jurisdiction to entertain an application for a warrant. Section 145, Code Civil Procedure, provides that the information is the allegation made to a magistrate (not to a court), and section 146 enumerates the magistrates who have power to issue a warrant of arrest. The proceeding before the magistrate is judicial doubtless, though for some purposes it has been held that he acts ministerially, but it is not a proceeding in court, nor is a court held at the time. The case does not fall within the terms of the statute. If, however, it is within the spirit o£ the statute, I concede the statute should be liberally construed. Thus, probably, summary convictions before a justice of the peace should be had in public. In Crisfield v. Perrine it is said (it was not necessary so to hold for the decision) that a coroner’s inquest is a judicial proceeding and' within the spirit of the statute. But it seems to me clear that an information is not within the spirit of the statute. The application is wholly ex parte, and its object is the apprehension of the accused, so that he may not fly from justice. It is not to try the accused. As to the examination of the accused after arrest, upon the request of the defendant, the magistrate must exclude all persons except the prosecutor and public oflicers. By section 39, page 726, II Bev. Stat., it is made a misdemeanor for a grand juror or public officer to disclose the finding of an indictment for a felony unless the defendant shall have been arrested thereon, or in actual confinement. Tli is is to prevent the escape of the defendant. As already stated the sole object of an information and the issue of a warrant is to bring the defendant to the bar of justice. To hold that such an application and the issue of the warrant must be in public would give the party charged the. very opportunity to escape, to prevent which the statute has made the disclosure of an indictment a misdemeanor. I think, therefore, that such a proceeding not only does not fall within the spirit of the rule as to the sittings of the courts, but oftentimes would be directly opposed to the general course of criminal procedure.

Application denied, with $10 costs.


author: Per Curiam

text:
    The People ex rel. The Standard Gas Light Company, App’lt, v. Michael T. Daly, as Commissioner of Public Works of the City of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January, 1894.)

    1. Appeal—Stay.
    A municipal corporation is entitled to the benefit of § 1314 of the Code, when its commissioner of public works takes an appeal from a judgment or order directing him, as such officer, to do some act affecting the corporate interests.
    3. Same.
    Such an appeal is, in effect, an appeal taken by a domestic municipal corporation.
    Appeal from order denying motion to punish respondent for contempt in disobeying a writ of peremptory mandamus.

      Vanderpoel, Cuming & Goodwin, (Almon Goodwin of counsel) for app’lt;. Wm. H. Ciarle, counsel to the corporation (Theodore Connoly, of counsel) for resp’t.
   Per Curiam

On the application of the relator, the court, at special term, granted a peremptory writ of mandamus, commanding the respondent, as commissioner of public works, to forthwith award and grant permits to the Standard Gras Light Company to open certain streets for the purpose of laying mains and making main connections. From the order granting the writ an appeal was taken to this court, pending which this motion was made, and denied, on the ground that the appeal operated to stay proceedings under the writ.

The determination thus made we approve. Section 1314 of the Code of Civil Procedure provides among other things, that “ upon an appeal taken by a domestic municipal corporation the service of the notice of appeal perfects the appeal and stays the execution of the judgment or order appealed from, without an undertaking or other security,” and we think the appeal, taken from the order granting the writ, was, within the meaning of the section, an appeal by a domestic municipal corporation. ■ The commissioner of public works is a part of the city government, and the head of the executive department by means of which the corporation acts in regard to its public streets (Consolidation act, section 316). The duties of the commissioner, in respect to the care and maintenance of streets, are the. duties of the corporation acting through him, and his official acts, within the limits óf the authority conferred, because the office constitutes a part of the corporate organization and represents it, are acts of the municipal corporation. It is, then, entitled to the benefit of section 1314 when its commissioner of public works takes an appeal from a judgment or order directing him, as such officer, to do some act affecting the corporate interests. •

The order should be affirmed, with $10 costs and printing disbursements.