author: Van Brunt, P. J.—

text:
    The People ex rel. John F. Mitchell, App’lt, v. James F. Martin et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed July 13, 1894.)

    Municipal corporation—Police.
    The absence of a policeman without leave, while laboring under temporary mental aberration, is not ground of dismissal.
    Appeal from an order dismissing relator from the police force.

      Edmund L. Mooney, for relator; W. S. Sweelser, for resp’ts.
   Van Brunt, P. J.—

There were two charges preferred against the relator: First, absence without leave ; and, second, failing to appear against a prisoner. The testimony taken in support of both charges was the same, and arose out of the same incidents. The relator admitted the absence without leave, but attempted to justify the same upon the ground that his absence was neither conscious, voluntary, nor blamable, he laboring under a temporary aberration of mind. The testimony which was offered before the police commissioners was all favorable to the claims sought to be established by the relator. Patrolmen were examined. They testified to noticing the unusual condition of the relator for some time prior to his disappearance. They also concurred that there was no evidence of intoxication, and there is no proof whatever that the relator was at all addicted to the use of intoxicating drinks. It is true that he disappeared, and was absent for eight days, and that he came home undoubtedly in a sick condition, and was attended by his physician, who testified that he was laboring under a temporary aberration of mind. It is true that he recovered, as it is claimed upon the part of the respondents, with great rapidity ; but it is a familiar fact, in reference to diseases of the mind, that they come suddenly, and frequently disappear as suddenly. It is claimed upon the part of the respondents that the probabilities are that the absence of the relator was due to an extended spree,— to intoxication; but there is not the slightest particle of evidence to sustain any such proposition. And the counsel has the temerity to assert in Bis brief that as it is the rule, when a policeman or patrolman is absent without leave, for sickness, to send for a police surgeon, it is a suspicious circumstance, and that the relator had some motive, and acted in conjunction with his family or family physician in concealing his true condition, or his condition, whatever it might have been, from the relator’s superior officer. This assertion is made in the face of the fact, which appears upon the record, that the sending for a police surgeon was immediately suggested by the doctor, and that on the morning of his return the wife of the relator went to the station house, and reported his condition, and that no police surgeon was sent to him because the police authorities were of the opinion that, having been absent without leave for five days, he had ceased to be a member of the force, and they had nothing further to do with him. Certainly, the family of the relator took all the means within their power to procure the attendance of a police surgeon, and to enable the authorities, at the earliest possible moment, to ascertain the condition of the relator. It is difficult to see, under such circumstances, how counsel could make the assertion that it was a suspicious circumstance that the relator did not send for a police surgeon. It is true that one of the police surgeons testified that there were certain suspicious circumstances in respect to the evidence offered in behalf of the relator, and in respect to the description of his demeanor. But it cannot be that, upon mere theory, the positive evidence tending to show an excuse for his absence of the relator can be utterly disregarded. If the police department are not in possession of the evidence of one of their own officials, who could testify, from a personal examination of this relator, as to his condition almost immediately after his return, it arises from the neglect of the department, and not from any omission upon the part of the relator. We are of the opinion that under the evidence the relator made out a case excusing his absence from duty, and that he should not have been dismissed on that account.

The proceedings of the commissioners are, therefore, reversed, with costs, and the relator reinstated.

All concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Charles T. Barney, as Administrator, etc., Pl’ff, v. The Mayor, Aldermen and Commonalty of the City of New York, Def't.

      (Supreme Court, General Term, First Department,

      Filed May, 1894.)

    Tax—Illegal—Recovery.
    In an action to recover the amount of an illegal tax by an administrator, the intestate’s ignorance of its illegality at the time of its payment need not be proved, in case he was then in infirm health and attended to little of his business.
    Motion for a new trial on case and exceptions ordered to be heard at general term in the first instance.

      Geo. L. Sterliny, for the motion; J. A. Flannery, opposed.
   Van Brunt, P. J.

—This case in its main features is substantially the same as that of Barney v. The Mayor, 59 St. Rep. 459. The taxes in this case were for the years 1885 and 1886, and were paid while Ashbel H. Barney was living, this action being brought by his' administrator.

It is urged that there is no evidence to show whether Mr. Barney, Sr., had any knowledge of the facts which it is alleged rendered the assessment illegal, and that, therefore, there is a failure on the part of the plaintiff to show ignorance of the fact and involuntary payment on his part, which it is incumbent upon him to show affirmatively.

The'evidence shows that Mr. Barney, Sr., was in infirm health at the time of the imposition of the tax in question; that he attended to but little, if any, of his business, and that his son, the plaintiff, had entire charge of the same. It seems to us that under these circumstances it would be carrying the inference of knowledge too far to hold that there was a failure of proof because the dead man was not examined as to what his knowledge in respect to these transactions was.

For reasons, however, stated in the opinion in the case cited we think that the exceptions should be sustained and a new trial ordered, with costs to the defendant to abide the event.

Parker and Follett, JJ. concur.


author: Dykman, J.

text:
    Jane Kirkwood, as Administratrix, etc., Resp’t, v. Frank Gehring, as General President, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May, 1894.)

    Appeal—Findings.
    Findings of the trial judge will be assumed to be justified by the evidence, when no case upon appeal has been made, and the record contains no evidence except some, exhibits.
    Appeal from a judgment of the supreme Court in favor of the plaintiff, entered upon the decision of the court rendered after a trial.

      Thomas T. Magner, for app’lt; Wm. B. Hurd, Jr., for resp’t.
   Dykman, J.

—This is an appeal from, a judgment entered upon the decision of a judge after a trial before him without a jury.

Mo case has been made, and the record contains no evidence except some exhibits.

We can base our examination upon nothing but the findings of the judge, which we must assume are supported and justified by evidence, and upon that assumption they are sufficient to sustain the judgment.

The judgment should be affirmed, with costs.

Brown, P. J., and Pratt, J., concur.


author: Pratt, J.

text:
    In the Matter of the Estate of Elizabeth Turfler. Amy Williams, App’lt, v. Jacob C. Turfler, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May, 1894.)

    Executors—Account—Objections.
    Leave to file objections to an executor’s account, after tb$ time has expired, is discretionary and may be allowed upon strict terms.
    Appeal by Amy Williams, one of the legatees named in the last will and testament of Elizabeth Turfler, deceased, from so much of an order or decree of the surrogate’s court of the county of Rockland, entered in the Rockland county surrogate’s court, as denied the appellant’s motion for the removal of the executor of the said estate and the appointment of an administrator with the will annexed, and as denied her leave to file certain supplemental objections to the. account of the said executor.
    An application was made by Amy Williams to remove Jacob G. Turfler as executor of the estate of Elizabeth Turfler, deceased, and for leave to file supplemental objections to the accounts of such executor, and upon the hearing of such application before the surrogate an order was made denying the motion for the removal of the executor and the appointment of an administrator and further providing that said Amy 'Williams have leave, and the same hereby is granted, to file and serve within five days hereafter one supplementary objection to the accounts of said executor now in process of settlement in this court, to wit, an objection in writing relating solely to the averment made that the executor has failed to charge himself in his said accounts with certain moneys which belonged to the estate of said Elizabeth Turfler, but which he wrongfully retained as commissions due him as one of the executors of Greorge 0. Turfler. which objection shall specify the sum so to be charged; provided, however, that the said Amy Williams shall, within the time aforesaid, stipulate that she will not plead in bar the Statute of Limitations to any action or proceeding which may be brought against her at any time to recover any moneys paid to or received by her in excess of her proper share or portion of the estate of said Elizabeth Turfler, and that the trial of a certain action now pending in the supreme court of Mew York, Kings county, brought by said Amy Williams against said Jacob G. Turfler and Greorge F. Turfler shall be postponed at least thirty days if, at the time said action is called for trial, the final decree upon the accounting of said Jacob 0. Turfler, as said executor herein, and the final accounting of said Jacob 0. Turfler and George F. Turfler, as executors of George C. Turfler, now pending in this court, shall not have been entered, and notice thereof received by said executors’ attorneys.

      T. C. Cronin and J. Newton Williams, for app’lt; William Ford Upson, for resp’t.
   Pratt, J.

—We find no reason to remove the executor. So far as the papers show his duties have been conscientiously performed.

According to the decision of the surrogate it appears that the mother received, under the will, a life estate in several houses in New York city, on which the executor collected upwards of $111,000 rents, and paid the net proceeds, $72,000, to the mother.

When the executor’s accounts were filed the ruling was made that the executor, as such, had no right to collect the rents nor to charge commissions therefor. But his good faith is not impeached, and if the beneficiaries under the will are to be allowed to file objections at this late day, it should be upon conditions as strict as those imposed below.

It may be added that it was a matter of discretion with the surrogate which this court cannot well reverse.

The order appealed from should be affirmed, with costs.

Brown, P. J., and Dykman, J., concur.


author: Herrick, J.

text:
    Capital City Athletic Association. Pl'ff, v. Police Commissioners of the Village of Greenbush et al., Def’ts.

      (Supreme Court, Albany Special Term,

      Filed June, 1894.)

    1. Injunction—Police.
    An injunction should not issue to restrain the police from interfering with a business, which may be a criminal act, or is of doubtful morality or contrary to public policy.
    2. Sunday—Baseball.
    The playing of baseball on Sunday on private grounds for profit is a business against the public policy of the state.
    Motion to vacate an injunction.

      Edward J. Meegan, for pl’ff; J. C. Fursman, Alpheus T. Bulkeley and A. C. Tennant, for def’ts.
   Herrick, J.

—This is an application to vacate an injunction heretofore granted by me, restraining the defendants from entering upon the grounds of the plaintiff without the consent of the plaintiff, or arresting and taking into custody upon the grounds any member of the plaintiff or its employes, or others engaged in playing ball on said private grounds.

The injunction was granted pending a motion at the special term for an injunction restraining the defendants until thetermi-' nation of an action for a permanent injunction for the same purpose.

The motion to vacate is made upon the same papers upon which the injunction was granted.

The purpose of the injunction was to restrain the defendants from interfering with games of baseball on Sunday.

The general principle that injunctions should not be granted to restrain police officers from making arrests upon criminal charges is not disputed, but the doctrine laid down in a number of cases, that exceptions will be made to such general rule in the discretion of the court where such arrests will result in irreparable injury to business or property, is invoked by the plaintiff, and it asserts that this is one of those0exceptional cases; that arrests have already been made, and that defendants threaten to repeat such arrests in the future, which the plaintiff asserts seriously interferes with, and will destroy its business, in which it claims to have invested thousands of dollars; it asserts, too, that the business that it is carrying on upon Sunday, and for which the arrests have been made, and are threatened in the future, to wit, the playing of baseball, is not a violation of any statute of this state.

In the complaint the plaintiff alleges that it is incorporated under the laws of this state to conduct and carry on the business of “ general athletics; ” that it has leased a piece of property for a term of years in the village of Qreenbush and has fitted the grounds “ for general athletics and baseball playing,” and expended large sums of money; that its grounds are several hundred feet from any street, and are not discernible from the village streets, and alleges that there are a great many people who desire to see baseball on Sunday, who can see it at no other time, and from their attendance, “ besides a substantial revenue for admission to their grounds on Sunday, it operates an an advertisement for other days in the week.”

I do not think it necessary for the purpose of this motion for me to determine .whether baseball is or is not a criminal offense; that question, it appears, is now in process of determination in the proper court, and there is no occasion for me in anywise to interfere with the decision of those cases.

It is not disputed but that baseball playing may, under certain circumstances, be a violation of the so-called Sunday Laws. The case which is largely relied upon to show that it is not an offense is that of People v. Dennin, 35 Hun, 327, which in effect held that the acts prohibited by the Penal Code' are only criminal when they constitute “ a serious interruption of the repose of the community on Sunday.”

The case of People v. Moses, 140 N. Y. 214; 55 St. Rep, 403, is perhaps not an authority for anything more than the precise case there passed upon, by reason of the peculiar division of the court in reaching a result in that case, although the reasoning of the principal opinion is one that rather commends itself to my judgment.

But, for the purpose of this case, it will be assumed that the Moses case is not an authority upon the question raised here, and that the principle of construction adopted in the Dennin case is the proper one to adhere to.

The case presented here is not one where a party or his employees are being subjected to repeated arrests and harassing prosecutions under an unconstitutional law, or illegal ordinance, or upon trumped-up and malicious charges, but it is a case where, if we give the plaintiff the benefit of the most favorable construction of the statute, it must be admitted that that which they propose doing may constitute a violation of the Code, for, assuming the construction given in the Dennin case to be the correct one, it must be conceded that the game of baseball may be carried on so as to interrupt the repose of the community; and that question is one that should not be determined upon affidavits, and it is obvious that it is one that ought not to be determined in advance. As was said in Davis v. American Society, 75 N. Y. 362, 368, 369: “If this action could be maintained in this case, then it could in every case of a person accused of a crime where the same serious consequences would follow an arrest, and the trial of offenders, in the constitutional mode prescribed by law, could forever be prohibited. A person threatened with arrest for keeping a bawdy house, or for violating the excise laws, or even for the crime of mu.ider, upon the allegation of his innocence of the crime charged and of the irreparable mischief which would follow his arrest, could always draw the question of his guilt or innocence from trial in the proper forum. * * * The administration of the criminal law would be greatly paralyzed if no criminal could be arrested until it could be infallibly ascertained that he was guilty of the offense charged.”

Assuming it to be a crime, then I think that it must be apparent that the police should not be restrained from going where the crime is in process of perpetration, and causing its cessation. To premit, by order of the court, that which is a violation of the law to go on unchecked, to the disturbance of the repose of the community, and then, after they have completed their performance and violation of the law, and left the private grounds of the plaintiff, permitting their arrest for doing that which the court would not premit the police officers to prevent or stop, would be a spectacle well calculated to bring the process of the court into discredit and contempt.

The plaintiff asserts that it is organized for the purpose of carrying on a business, not an amusement or pastime, but something that is to afford entertainment and amusement for others. The people who are actually engaged in playing ball are hired by it for that purpose, and are not to play ball on Sunday for recreation or fun, but for business purposes, so that the plaintiff may receive remuneration from the admission fees of all those who desire to witness the game, and also have the benefit of such Sunday games as advertisements for the games and exercises conducted upon plaintiff’s grounds upon other days of the week.

Of,course, if it is a crime, it cannot be upheld in it simply because it has expended large amounts of money to perpetrate it, and is making a business of it, and deriving large revenues from it.

Assuming, as is contended, that it does not come within the strict letter of the Penal Code, yet it seems to me that it is a business that is against the public policy of the state.

The general policy of the state, as evidenced in its Sunday laws, and in particular by chapter 1 of title 10 of the Penal Code, is against all public shows, amusements and entertainments, except religious services, being held on the Sabbath day.

The business that the plaintiff purposes to carry on, and which it desires the process of the court to protect, is that of furnishing entertainment and amusement to the public, by means of public games of baseball.

Without expressing any opinion of my own as to the morality or immorality of such games being conducted on the Sabbath day, for profit, it is sufficient to say that it seems to me that the extraordinary remedy of injunction should not be used to protect a business where there is a doubt as to whether it is a criminal act, where it is of doubtful morality, or where such business is apparently contrary to the public policy of the state, but to leave the party desiring to conduct such a business to the ordinary process of the law.

The motion to vacate the injunction is granted.

Motion granted.


author: Clement, Ch. J.

text:
    In the Matter of the Petition of the City of Brooklyn, Pl’ff, v. Robert Furey, Def't.

      (Brooklyn City Court, Special Term,

      Filed June, 1894.)

    City of Brooklyn—Frame buildings.
    The common council of Brooklyn has no power to permit the erection or retention of frame buildings within the fire limits of the city.
    Proceedings to compel the removal of certain frame buildings owned by the respondent from lots within the fire limits of the city.

      Albert G. McDonald, for petitioner; Baldwin F. Strauss, for resp’t.
   Clement, Ch. J.

—By § 51 of title XIV of the revised charter, this court has power to decree that any building erected in violation of the provisions of such title shall be taken down and removed. In the year 1890 the respondent erected frame buildings on lots on Butler street between Fourth and Fifth avenues in this city, and subsequently, about the year 1893, erected other frame buildings on the same lots. The block in question was taken into the fire limits on June 5, 1878, and the buildings were put up contrary to the building law, unless the common council has power to permit the erection and retention of frame buildings within the fire limits. On June 9, 1890, the common council passed a resolution that the owner of the premises in question be permitted to retain the frame structures, and that the corporation counsel take no proceedings for the removal of the same. On April 7, 1893, the common council passed another resolution that permission be granted to Robert Eurey to retain frame extension on premises 415 Butler street, providing the consent of the department of buildings was obtained. The two resolutions above set forth remained in the mayor’s hands for ten days without being approved or disapproved.

The sole question to be considered is whether or not the common council can permit the erection of frame buildings within the fire limits. It seems to me to be very clear that the common council has no such power, and the only reason that the courts have not so held is that the city authorities did not take action, but quietly allowed the law to be violated.

The weight of authority is to the effect that the city authorities have power, under the general welfare clause, to establish fire limits, and to prohibit the erection of frame buildings therein, though in city charters granted in this state special power is given so to do, and such has been the custom in other states. Tiedeman Man. Oorp. § 130. I have hastily examined many charters and find that there is no uniform method as to the establishment of fire limits. In New York city (Laws 1892, chap. 275, § 31) the fire limits are defined by an act of the legislature, and the board of aldermen have no power in relation thereto. In Buffalo power is given to the common council to fix the inner fire limits, and also the outer limits. In the inner limits frame buildings cannot be erected, and in the outer limits they may be erected by special permission of the common council. Laws 1891, chap. 105, § 17, subd. 5. In Syracuse the legislature prohibited wooden buildings within a district named in the charter. Laws 1885, chap. 26, § 202. In Albany it is provided that no frame building shall be constructed within the fire limits as established, or as they may' be extended by the common council. Laws 1883, chap. 298, tit. 20, § 1. In the charter of Poughkeepsie (Laws 1883, chap. 523, tit. 8, § 176X Utica (Laws 1862, chap. 18, tit. 8, § 116), Long Island City (Laws 1871, chap. 460, tit. 7, § 1), Rochester (Laws 1861, chap. 143, § 214), Mount Vernon (Laws 1892, chap. 182, tit. 9, § 210), Ithaca (Laws 1888, chap. 212, subd. 25), Binghamton (Laws 1888, chap. 214, § 23) and Yonkers (Laws 1881, chap. 184, tit. 8, § 1) provision is made that the common councils of the respective cities may establish fire limits. In Newburgh (Laws 1865, chap. 541, § 1) and Elmira (Laws 1875, chap. 370, § 136) the fire limits, as established, were to continue until altered by the common council, while in Cohoes (Laws 1892, chap. 671, § 15) the fire commissioners fix the limits, and the common council has no power over the same.

In the charter of this city, by § 3 of title 14 (Laws 1888, chap. 583), it is provided that the building limits, within which all buildings thereafter erected should be of material other than wood, shall comprise the fire limits as establishod by law, or as they may be extended by the common council, and no buildings of wood should thereafter be erected within such limits. The provision in our charter is substantially the same as in the charter of Albany, supra. In the charter of Brooklyn the common council has the special power delegated to it “ to enlarge the fire district ” (Laws 1888, chap. 583, § 12, subd. 7), and, after the special powers of the common council are set forth, we find the clause of general welfare, which has come down to us, with amendments, from the original charter. Laws 1834, chap. 92, § 27.

In the year 1835 the common council of Brooklyn was authorized to set off a certain district within which all buildings should be erected of other material than wood. Such district was, however, in the first instance, restricted by the act to the following bounds: Beginning at the intersection of Joralemon and Henry streets, and running thence along Joralemon street to the center of Court street; thence to the center of Butler street; thence to the center of Henry street, and thence along the center of Henry street to the place of beginning. Laws 1835, chap. 129, § 6. By the Consolidation Act of 1854, when old Brooklyn, Williams-burgh and the town of Bushwick were brought into one municipal government, the common council were authorized, from time to time, to desiginate the fire limits. Laws 1854, chap. 384, § 10. By chapter 472 of the Laws of 1860, the legislature established the fire limits in the eastern district, and by chapter 858 of the Laws of 1866, the fire limits of the western district were laid out. In each of the foregoing acts it was provided that the common council had the right to extend the fire limits, and the erection of wooden buildings in the limits of each district was prohibited. The charter of 1873 (chap. 863, Laws 1873) did not repeal prior acts unless inconsistent therewith, but, by § 23 of title 13, the fire limits were continued as they then existed or as the limits should be extended by the common council, and (by subd. 8, § 13, tit. 2) the common council was authorized to enlarge the fire district. The charter of 1888 was a revision, and, in order to understand its meaning, we have the right to go back to the charters of 1854 and 1873, and the various laws relating to the city which were not passed as amendments to those charters. The charter of 1888, unlike that of 1873, repealed all prior acts relating to the city, except those specifically designated. Laws 1888, chap. 583, § 35.

It appears, as before stated, that, by chapter 858 of the Laws of 1866, the legislature of this state designated the fire limits of the western district, and provided that the common council might extend the same, and that no frame buildings should be erected in the limits as designated or as extended, and it further appears that, by the charters of 1873 and 1888, the building limits comprised the fire limits as established by law, or as such limits should be extended by the common council, and the erection of wooden buildings therein was prohibited. This seems to amount to an absolute prohibition by the legislature, and the common council cannot pass an ordinance in contravention of the laws of the state. By chapter 202 of the Laws of 1893 the common council was authorized to exclude from the fire limits certain territory if they deemed it proper. If the common council had the power, as claimed, no enabling act was necessary.

It is contended by the counsel for the respondent that, under the clause of general welfare, the common council had the power to grant the permits in evidence. If we leave out of our consideration the provisions in the charter as to the department of buildings just referred to, and turn to the power specifically granted to the common council, the respondent is in no better position. By subdivision 7 of section 12 of title II, the common council has power to enlarge the fire district, and section 13 is the clause of general welfare. I quote from Endlich on the Interpretation of Statutes (§ 399), which lays down the proper rule of construction in such a case.

The maxim expressio unius est exclusio alierius applies, indeed, wherever an act contains general provisions and also special ones upon a subject, which, standing alone, the general provisions would include. In such cases the special provisions upon that particular subject indicate an intention that it is not to be included in the general provision, and the latter is held inapplicable to it, or, as it is sometimes said, is controlled by the special provisions. § 399, Endlich Interp. Stat. See also, Pretty v. Solly, 26 Beav. 606.

When the legislature gave the common council power to enlarge the fire district I am of opinion that it thereby prohibited that body from doing the opposite. The legislature considered what powers should be given on the subject to the common council, and determined that it might enlarge, but not' reduce, the fire district. The subsequent general clause as to their powers, by which that body might pass an ordinance for the general welfare, did not confer the right to interfere with the fire limits, because the subject had been considered in fixing their special powers. Flanagan v. Hollingsworth, 2 How. Pr. (N. C.) 391; 108 N. Y. 621, and cases there cited.

The counsel for respondent claims that his client, by reason of the consents obtained and the lapse of time, has vested rights. The difficulty is that he never had any rights to vest. A similar case arose in Hew York city, where the dock department attempted to lease piers with sheds erected in violation of the fire laws. Judge Earl in that case said, Fire Dep't of N.Y. v. Atlas Steamship Co., 106 N. Y. 566, 577 ; 11 St. Rep. 113 : “The defendant, by its lease of the-pier from the dock department, was not authorized to violate the building laws applicable to the city. Ho department or officer of the city government could enter into a valid stipulation with the defendant by which it would be authorized to violate any law enacted for the public safety.”'

I am also of opinion that the ordinances of the common council, giving consent to the respondent to erect frame buildings within the fire limits, are void as unjustly discriminating between one citizen and another. The resolutions do not purport to reduce the fire limits, but are simply permits. They allow one citizen in a block to do an act which is penal if done by any other citizen in the same block. Special discrimination by ordinance is not allowed. Dillon (4th ed.), § 322, and cases cited.

A decree will be entered requiring the respondent to take down and remove all the frame buildings on the lots in question. A reasonable time to comply with the decree will be allowed. Findings and decree to be settled on June twenty-ninth at ten A. M.


author: Coffin, S.

text:
    In the Matter of the Construction of the Will of Philip Morganstern, Deceased.

      (Surrogate’s Court, Westchester County,

      Filed June, 1894.)

    SUBBOQATE—CONSTBUCTIOX OF WILL.
    A surrogate has no power to construe, on probate, a will embracing both real and personal property, so inseparably connected and blended as to prevent a construction as to one without involving the other species.
    On the probate of the will in this matter, the special guardian of three minor children of the testator, born after the making of his last will, asked for a construction of the will in so far as their interest were affected by that fact. There were also three children living at the date of the making of the will. The testator, after expressing his full confidence in the judgment and capacity of his wife for the management of property, of her love for their children, and that she would do the same full justice to them in the distribution of the estate as he would do, in view of these considerations, and his unbounded faith and trust in her and his love for her, he gave, devised and bequeathed to her, after some small legacies previously bequeathed, all the rest, residue and remainder of his estate, and he appointed her to be the general guardian of the persons and estates of such of his children as at the time of his death might be infants. The property so devised and given to Ms wife consisted of real and personal estate of the value of about $70,000, the real estate being valued at about $15,-000 and the personal at about $55,000.

      J. N. Goldbacher, for executors; Farrington M. Thompson, special guardian.
   Coffin, S.

—The facts that only three children were in existence at the making of the will, and that three were born subsequently, are conceded. It is, therefore, claimed by the special guardian that, under the provisions of 2 Eevised Statutes. 65 § 49, as amended by the Laws of 1869, chap. 22, that the father died intestate as to these after-born children. It is well settled that a testamentary disposition to a class includes every person answering the description at the testator’s death. That is construed by the courts.to be the testator’s intention, and they are thus deemed to be mentioned. So, where a class is referred to, whether there is anything devised or bequeathed to them or not, all answering the description must be deemed to be mentioned. It is not considered necessary, however, to elaborate this point, as it will presently appear that this court has no jurisdiction to determine it in this case.

Section 2624 of the Code authorizes the surrogate, where a party expressly puts in issue the validity,” construction or effect of any disposition of personal property contained in a will, to determine the question. He is not here required to determine an issue as to any clause of the will disposing of personal property solely, which he might do, but of one embracing both real and personal, and so inseparably connected and blended as to prevent a construction as to one species of property without involving the other. As the power to construe a will on the probate is one lately conferred upon the surrogate by statute, and is so far an enlargement of his jurisdiction, he cannot be permitted to go beyond it and attempt to exercise a larger power than was intended to be conferred by the legislature. Matter of Shrader, 63 Hun, 36 ; 42 St. Rep. 166.

The request to construe is, therefore, refused.

Ordered accordingly.


author: McElroy, Sp. S.

text:
    In the Matter of the Collateral Inheritance Tax on the Estate Maria Louise Sterling, Deceased.

      (Surrogate’s Court, Orange County,

      Filed April, 1894.)

    1. Tax—Collateral inheritance.
    The law in force at the date of the death of the decedent must govern as to the rights accrued and the liabilities incurred.
    2. Same—Exemption.
    Prior to the act of 1892, the $500 limitation did not refer to the whole estate of the decedent, but to the interest of the legatee or distributee.
    Proceedings to assess tax upon property passing under the will of Maria Louise Sterling, deceased.

      E. E. Roosa, for executors; D. W. Esmond, for Calvary Presbyterian Church, of the city of Newburgh, N. Y; Louis Bedell, for Comptroller and County Treasurer.
   McElroy, Sp. S.

—The testatrix died on the 2d day of January, 1892. It appears that on account of the claims of certain persons it became necessary to bring an action for the construction of one or more clauses in the will of the deceased; and that owing to the death of some of the defendants after the action was commenced, and for other good and sufficient .reasons, a decree construing the clause in said will was not handed down until the month of January, 1894, and that immediately thereafter these proceedings were commenced.

The report of the appraiser was filed April 12, 1894. By said report the gross estate of testatrix was valued at $13,000, and the value of the legacies or distributive shares under the will-appraised as follows: To Margaret Carter, sister in-law of testatrix $3,000 ; To Isabella Chatterton, sister-in-law of testatrix, $2,000 ; to Katie Withers, who is not related to testatrix, $5,000 ; to Oliver B. Withers, who is riot related to testatrix, $200; to Calvary Presbyterian church, of Hewburgh, H. Y., $500; to twenty-four relatives of testatrix (nephews and.nieces), each, $78.84; to Maria Louise Socks, stepniece of testatrix, $157.68.

The first question presented is whether this proceeding to determine the amount of tax the above estates are liable for shall be in accordance with the laws in force at the death of testatrix, or those in force at the time this proceeding was actually instituted.

The act of J une 10, 1885, entitled “An act to tax gifts, legacies a id collateral inheritances in certain cases,” together with the act of 1887 (which, to some extent, superseded the act of 1885), and the acts amendatory thereof, including the act of 1891, were repealed in 1892. and a new act passed, which readopted the general scheme of the original statute, and also imposed a tax, within certain limits, upon direct as well as collateral inheritances, which act is known as “ The Transfer Tax,” and went into effect May 1, 1892. Chap. 399, Laws of 1892. This act provides that, so far, as its provisions are substantially the same as those of laws existing on April 30, 1892, “they shall be construed as a continuation of such laws, modified or amended according to the language employed in this act, and not as new enactments. ”

• Section 24 of the act is in part as follows: Saving clause. “The repeal of a law, or any part of it, specified in the annexed schedule, shall not affect or impair'any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to May 1st, 1892, * * * but the same may be asserted, enforced, prosecuted or inflicted as fully and to to the same extent as if such a law had not been repealed * * % »

The right of the state to the tax accrued at the date of the death of testatrix, January 2, 1892, Matter of Prime, 45 St. Rep. 832, and although these proceedings were not commenced until January, 1894, yet the law in force at the date of the death of testatrix must govern as to the rights accrued and the liabilities incurred. Matter of Miller, 19 St. Rep. 246 ; Matter of Richardson, N. Y. L. J. 1893.

The counsel for the comptroller also claims that the legacies or distributive shares to the nephews and nieces and the stepniece of testatrix, and the legacy to Oliver B. Withers of $200, who is not related to testatrix, are taxable.

In view of the fact that the order fixing the tax in this proceeding must be made in accordance with the law in force at the death of testatrix, it is necessary to consider the meaning of tlie clause: “Provided that an estate which may be valued at a less sum than five hundred dollars shall not be subject to said tax or duty.” This clause appears in § 1 of the act of 1885, and is retained in each amendment of that section of said act, including the act of 1891.

If the word “ estate ” means the estate of the testatrix, and not the estate or property given to the persons liable to taxation, then the contention of the counsel for the comptroller may be correct.

It seems to me, however, that the legislature, at least prior to the act” of 1892, intended the words “An estate valued, as used in said proviso, to mean the estate or property or interest of the legatee, or person entitled to a distributive share, and not the value of the estate of the decedent, and that the estate of property passing to persons not exempt by said act was not sub: ject to a tax, unless such an estate was, independent of the estate of the decedent, of the value of $500 or more.

If the legislature had intended the $500 limitation to mean the estate of the decedent, the act would doubtless have directed the tax to be levied upon so much of the estate of a decedent of the value of $500 or more as was bequeathed or to be distributed among those not exempt by the act, and the duty of the court then would have been to first, assess the tax upon the whole estate so bequeathed or to be distributed, if it was of the value of $500 or more; and, second, determine the proportionate part of the tax thus levied which each legacy or distributive share, not exempt as aforesaid, should pay.

Under the act of 1892 it has been- held, Matter of Flynn, N. Y. L. J., Feb. 25, 1893, that, as the property passing to those not exempt was over $1,800 in value, each of four legacies of $100 each to strangers were subject to the tax.

The act of 1892 does not contain the proviso above quoted, and the language of the act differs from the act of 1885 as amended, including the amendment of 1891.

By the act of 1892 “A tax shall be and is hereby imposed upon the transfer of ahy property, real or personal, of the value of five hundred dollars or over, * * * to persons or corporations not exempt, * * * ” meaning the property of the testator, and not the property passing to the individual legatees or distributees, and if this proceeding was under the act of 1892, the . legacies or distributive shares to the twenty-four nephews and nieces, and to the step-niece of testatrix, and the legacy of Olive B. Withers of $200, would, doubtless, be liable to the tax, for the estate of testatrix, thus disposed of, amounts to over $2,200.

I am, therefore, of the opinion: First. That these proceedings are to be determined in accordance with the Collateral Inheritance Tax Laws in force at the death of the testatrix, January 2, 1892. Second. That the legacy to Margaret Carter of $3,000, and to Isabella Chatterton of $2,000, each a sister-in-law of testatrix, are each subject to tax of five per cent. That the legacy of $5,000 to Katie Withers, who is not related to testatrix, is subject to a tax of five per cent. Third. That in view of the law prior to the act of 1892, the burden of this tax does not rest upon the value of the estate of the deceased bequeathed or distributed'to those not exempt, but upon each beneficiary, and that inasmuch as the legacies or distributive shares to the twenty-four nephews and nieces, the share to the step-niece, Maria Louise Socks, and the legacy to Olive B. Withers, who is not related to testatrix, a2’e not individually a2id severally of the value of $500, they are not taxable. Matter of Smith, 5 St. Rep. 380 ; Matter of McCready, 10 id. 696; Matter of Hopkins, 19 id. 516. Fourth. That the legacy of $500 to the Calvary Presbyterian Church, an organization incorporated under the laws of this state, a religious corporation, is not taxable, the same being exempted under chapter 553, Laws of 1890. Fifth. That the penalty of ten per cent per annum, imposed by § 4 of the act of 1887, does not attach, owing to necessaiy litigation and other unavoidable cause of delay above mentioned, and that the amount of said tax is only to a penalty of six per cent, from July 2, 1893.

An order will be entered in accordance with the foregoing.


text:
    In the Matter of the Judicial Settlement of the Estate of Sarah D. Kirkpatrick, Deceased.

      (Surrogate’s Court, Orange County,

      Filed, May 1894.)

    Limitation—Accounting.
    The right to compel an accounting is barred at the expiration of seven years from the granting of letters.
    Proceeding to compel accounting and payment of the petitioner’s claim.

      Harrison, W. Nanny, for petitioner; John F. Bradner, for administrator c. t. a. and one surety on administrator’s bond.
   McElroy, Sp. S.

—This is a special proceeding instituted by the ¡ -etitioner to compel the administrator c. t. a. to render an account and pay the claim of the petitioner.

The records in the surrogate’s court of Orange county show that letters testamentary were granted by this court to Franklin Varney, the sole executor named in the will of Sarah D. Kirkpatrick, deceased, on the 19 th day of May, 1876, and that on the 8th day of January, ¿877, an inventory was filed by said executor, amounting to the sum of $2,121.72, or thereabouts.

It further appears that the said Franklin Varney died without having had a judicial settlement of his account and that on the 21st day of February, 1879, letters of administration c. t. a. were issued by this court to Gilbert M. Varney, and that his letters have never been revoked. FTo further proceedings of any kind have been had in this estate subsequent to the appointment of said administrator c. t. a., in February, 1879, until the 5th day of February, 1894, a period of fifteen years, when one Delia Eiggs presents a petition to this court”, alleging in substance: (1) That more than eighteen months have elapsed since the grant of letters of administration c. t. a. (2) That the petitioner, on the 11th day of January, 1894, recovered a judgment against the administrator c. t. a. of the goods, chattels and credits of Sarah D. Kirkpatrick, for the sum of $350.82, and that said administrator c. t. a. has not rendered an account of his proceedings, nor paid petitioner the amount due her as aforesaid, and demanding that said administrator c. t. a. be ordered to account and pay her said claim.

Upon filing this petition with the court a citation was issued, requiring the administrator c. t. a. to show cause why he should not account and pay tlje claim of petitioner.

On the 13th day of March, 1894, the return day of said citation, the administrator c. t. a. appears and files an answer, alleging in substance that more than fifteen years have elapsed since the right to compel an accounting accrued, and that the court is barred by the Statute of Limitations from compelling this administrator c. t. a. to account. A further answer was subsequently filed denying the claim of petitioner.

We have, therefore, two questions presented for our consideration : (1) Is the Statute of Limitations a bar to the right of a creditor to compel an executor or administrator to account after six years have elapsed since the right to compel such accounting accrued ? (2) Is the claim of the petitioner a valid claim against the estate of Sarah D. Kirkpatrick, deceased ?

The claim of the petitioner is upon a judgment recovered in the supreme court upon a note, of which the following is a copy :

“Middletown, N. Y., Apr. 8th, 1889.
“Twelve months after date I promise to pay to the order of Zenas Riggs three hundred dollars, at the First National Bank of Middletown, for value received, 6 per cent, interest.
“Gr. M. Varney, Admrtr.'’

The petitioner, in her complaint in that action, alleges that the-consideration of said note was the funeral expenses and other preferred debts of said deceased, paid by the payee of said note to-the said administrator c. t. a., at his request; that the note was duly transferred to the petitioner.

Testimony was also received showing that some part of the-money representing the consideration of this note was used in repairing real estate of which Sarah D. Kirkpatrick died seized, situated at Slate Hill, N. Y.

In view of the fact that the testatrix died in 1876, „and that she-left an éstate of the value of over $2,000, I am unable to see any reason for the administrator c. t. a., some thirteen years afterward, to borrow money for the payment of “funeral expenses and other preferred debts of said deceased.”

However, this claimant stands in the shoes of Zenas Riggs the payee of this note, and she can have no greater rights against this estate than he possessed. It does not appear that this note was-ever presented to the administrator c. t. a. as a claim against the estate of Sarah D. Kirkpatrick, deceased, either by the original payee or the present owner of themote, and accepted or rejected by the administrator c. t. a., nor does it appear that the claimant ever offered to refer such claim, and that such offer was refused. I fail to see how the claimant’s judgment should be entitled to-any weight as evidence of a debt against this estate (Code § 1210), for a judgment upon a trial upon the merits is only presumptive evidence o[ a debt due from the decedent (Code, § 2756), and this-is conceded a judgment by default.

But, assuming that a debt is established by this judgment, then as contended by the counsel for the petitioner, “ some person or estate owes the petitioner, and it is proper to ask who, or what estate owes it.”

An executor or administrator has no power to bind an estate by a new contract, nor can he 'revive a demand which has once expired, even though it be his own claim; nor can his contracts or admissions have the effect of creating the one or reviving the other.

In Schmittler v. Simon, 101 N. Y. 557, Chief Justice Ruger says: “ Neither executors nor administrators have power to bind the estate represented by them through an executory contract having for its object the creation of a new liability, not founded upon the contract or obligation of the testator or intestate. They take the personal property as owners, and have no principal behind them for whom they can contract. * * * In actions upon contracts made by them, however they may describe themselves therein, they ave personally liable, and in actions thereon the judgment must be de bonis propriis. Not so, however, upon contracts made by their testator or intestate; in such case the judgment is always de bonis ieslarioris.” To the same effect, see Barry v. Lambert, 98 N. Y. 300; McLaren v. McMartin, 36 id. 88; Austin v. Munroe, 47 id. 366; Martin v. Platt, 51 Hun, 429 ; 21 St. Rep. 330; Glenn v. Burrows, 37 Hun, 602; Scott v. McMillan, 16 St. Rep. 795; Kedian v. Hoyt, 33 Hun, 145; Clapp v. Clapp, 44 id. 451; 9 St. Rep. 275, and cases cited.

The claim of this petitioner is exclusively upon the undertak- • ing of Gilbert M. Varney to pay the sum of $300 in twelve months from April 8, 1889, with interest. There never was any liability on the part of the testatrix to the payee of this note, and I am unable to see how any court could make the petitioner’s claim a charge upon the estate of the testatrix, even though the whole consideration of this note represented the funeral expenses of the deceased, and the administrator c. t. a. has no power to make it a charge thereon except by payment, and then charging it in his accounts and having them passed upon in the usual way. Ferrin v. Myrick, 41 N. Y. 315.

There has been testimony received showing that about $50 of this $300 note was used for repairs on real estate belonging to the deceased. The fourth clause of the testatrix’ will is as follows: “ I authorize, empower, order and direct my executor to grant, bargain, sell and convey, and convert into money all my real estate and chattels real, of every name and kind, wherever situated, and to that end to make, execute and deliver all contracts, deeds or conveyances necessary or proper with or to the purchaser or purchasers, and until sold to take possession of, manage, rent out, lease or control the same as he may deem for the best interest of my estate, and to hold the same until it is, * * * but in his judgment to sell and dispose thereof, * * * to sell and collect personal property, etc., etc., and after payment of my debts and expenses- aforesaid to pay and dispose of the residue to my legatees as follows: ”

Assuming that this power, in reference to the disposition and management of the real estate, was, upon the death of the executor and the appointment of the administrator c. t. a., transferred to said administrator c. t. a., and that inferential^ there was a power in said will to make repairs, etc., I fail to see how this claim of the petitioner can bind the estate of the testatrix, even to the extent of the value of the repairs made. The general rule is that a trustee cannot charge the trust estate by Ms executory contracts unless authorized to do so by the terms of the instrument creating the trust, and while there are exceptions to this general rule, yet to create a lien or charge there must lie some agreement to that effect. It is evident that the claimant bad no such agreement, for she alleges in her complaint that the consideration of said note was the “funeral expenses and other preferred debts of said deceased” (New v. Nicoll, 73 N. Y. 127), and even though the administrator c. t. a. has used some part or all of the consideration of this note in making repairs upon the real estate of the testatrix, the petitioner could have no claim or lien without an express promise or agreement to make such a charge. But it is beyond the power of this court to decide the validity of the petitioner’s claim, as such, or whether it is a claim against the decedent’s estate, at least in this proceeding, and I will now consider the first question, viz. : “Is the Statute of Limitations a bar to this proceeding ?” upon which the disposition of this proceeding alone can rest in my judgment.

There can be no doubt but what an answer pleading the Statute of Limitations can be justly interposed upon an application to this court for an order compelling an executor or administrator to account or pay a claim, and that the person thus cited to account may show in answer to the application any legal bar to the application, whether it be the Statute of Limitations, payment, a release or otherwise.

Chapter 4 of the Code of Civil Procedure provides for the limitation of actions, and the last clause of section 414 is as follows: “The word ‘action,’ contained in this chapter, is to be construed, when it is necessary so to do, as including a special proceeding, or any proceeding therein, or in an action.”

By this provision it would seem that it is intended to limit the remedy in surrogates’ courts just as absolutely as the various remedies are limited in other courts, and the chapter is to be read as though the words “special proceedings” were substituted wherever the word “action” occurs.

By § 380 of the Code “The following actions must be commenced within the following periods after the cause of action has secured.”

“Section 382. Within six years :

“1. An action upon a contract, obligation or liability, express or implied; except a judgment or sealed instrument.
“2. An action to recover upon a liability created by statute; * * *”

Is the duty of an executor or administrator to account such an obligation or liability as mentioned in either subdivision of | 382 of the Code ?

Prior to the enactment of the Code it was well settled that the Statute of Limitations began to run as soon as the right to compel an accounting accured. Borst v. Corey, 15 N. Y. 505, 509. By § 2726 of the Code the surrogate’s court may compel a judicial settlement of the account of an executor or administrator “‘where one year has expired since letters were issued to him.”

The obligation or liability to account, therefore, accures at that time, viz., when one year has expire since letters were issued, and it seems to me that a proceeding to compel an executor or administrator to account is a proceeding to enforce an “obligation or liability,” such as was intended in either subdivison 1 or 2 under § 382 of the Code, and under whichever subdivison it may properly be considered such proceedings should be commenced within six years after the right to require it has accrued, or, in a case of this kind, within seven years from the grant of letters. Matter of Nicholls, 27 St. Rep. 37. The only exception is the one in favor of a legatee or distributee, under § 1819 of the Code, which can, however, in no way affect this proceeding. Matter of Perry, 37 St. Rep. 576; Estate of Clayton, 22 id. 886; Matter of Van Dyke, 9 id. 137; Clark v. Ford, 1 Abb. Ct. App. Dec. 359.

I am, therefore, of the opinion that this proceeding should be dismissed, for the reason that more than six years have expired since the right to compel this administrator c. t. a. to account accrued.

While it is true that six years had not elapsed since the note became due, and it also appears that this administrator c. t. a. has sold some real estate of the deceased recently, yet at the time this note was given more than ten years had expired since the grant of letters of administration c. t. a. to Gilbert M. Varney, and if a creditor of the deceased could not, at the time this note was given, have instituted a proceeding to compel this administrator c. t. a. to account, certainly this claimant could gain no greater rights by a longer lapse of time, where the statute had already operated as a bar.

An order will be entered dismissing the petition herein.


author: Russell, J.

text:
    Jacob Blumer et al., Pl’ffs, v. The National Starch Manufacturing Company, Impleaded, etc., Def't.

      (Supreme Court, New York Special Term,

      Filed June, 1894.)

    Contract—Construction.
    The contract, in this case, was so construed that the period of the beginning of the sixty days’ option did not come until experiment showed the successful manufacture of yeast from the by-product in the manufacture of starch of the same quantity and quality as that theretofore used by the defendant.
    Action upon contract.

      Hoadly, Lauterbach & Johnson (George Hoadly, of counsel), for pl’ffs; Kerr & Curtis (Elihu Root and Edwin B. Smith, of counsel), for def'ts.
   Russell, J.

—The determination of the title to patents for the manufacture of yeast is to be reached by the decision in this action. Both parties want the patents, the plaintiffs struggling to regain the title and the Starch Company to retain it.

The plaintiffs are skilled chemists and are the inventors of the valuable processes patented; the Starch Company is one of the largest manufacturers of starch in this country.

After certain preliminary negotiations, by agreement dated the 17th day of June, 1892, the plaintiffs agreed with the Starch Company:

First. That the Starch Company would examine as to the validity of the patents.

Second. If the opinion of counsel as to their validity was favorable, the Starch Company would pay the patentees' $2,500, and furnish a suitable building and equipments according to plans, etc., furnished by the plaintiffs, “to determine the availability of the said processes for the utilizing in the manufacture of yeast the waste product of its processes of manufacturing starch, and the commercial availability of the said inventions and processes for the purposes of its business.”

Third. The patentees agreed to furnish the plans and specifications, and “will devote their time and attention to erecting and operating the same, under the direction of the officers of the Starch Company, without compensation, and that they will use their best efforts to put such experimental plant into successful operation as soon as practicable."

Fourth. ITpon the payment of '$2,5Q0, and the furnishing the facilities for the experimental plant, the Starch Company should have the option of an exclusive license under the patents of certain territory, “upon the terms and. conditions specified below, until the expiration of the period of sixty days from the time when the said experimental plant is in successful operation and producing yeast, by the operations described in said patents, in sufficient quantity tq enable the Starch Company to. put the same upon the market and test its commercial availability.”

Fifth. The, option was to be exercised by the Starch Company within the said period of sixty days by notice in writing and the further payment of $22,500; otherwise the agreement terminated at the, end of said sixty days.

The Starch Company was further tp pay the patentees a royalty of one cent a pound, and also, out of the net profits, a further sum of $500,000.

The further provisions of the contract relate more particularly to the details of the business upon the basis of a successful experiment and realization.

The struggle in this action arises upon the claim of the plaintiffs that the option was not exercised within sixty days, as provided for by the contract, which claim is resisted by the, effort of the Starch Company to show full compliance, either actual or tendered, and strict conformity with the contract; and the main question, therefore, to be solved is the actual date when the somewhat indefinite period from which the time begun to run really occurred.

When was the “said experimental plant in successful operation?”

The Starch Company’s plant in Indianapolis was the scene selected by the parties for the experiment. The Starch Company, under the direction of the patentees, erected an addition to their starch plant for the purpose of the experiment. This starch plant had a capacity for converting daily 2,400 bushels of corn ultimately into starch. It used water for the purpose, and, prior to the introduction of the invention of the plaintiffs to the use of- the Starch Company, the steep yrater from the starch manufactory passed away as waste product. The invention of the plaintiffs was characterized by them in a communication as early as March, 1892, delivered to the Starch Company, as “Blumer and Schlagenhaufer’s method of utilizing waste products. Our invention has for its purpose to open a new and profitable field to the starch industry by utilizing certain liquid waste products which heretofore were of little value.”

The minds of the parties were, therefore, directed, not to the manufacture of yeast from unused corn, but to the successful manufacture of yeast from the waste product of corn, after the corn itself had done its service in the manufacture of starch.

The experimental plant was ready for occupation by the middle of August, 1892, and received the liquids from the starch manufactory by pipes connected with vats in the new plant, erected for that purpose under the supervision of the plaintiffs. With some delays, not material to the consideration of this action, the experiment was put into operation, and it was discovered prior to the 19th of November, 1892, that yeast of a superior quality could be manufactured, but not without injury to the starch manufactured. Experiments were continued, and especially with the use of sulphurous acid, which would obviate the necessity of crushing the corn, until January, 1893, during the early part of which month it was finally ascertained how the process of the plaintiffs could be applied to the waste products and successfully manufacture yeast of fine quality without injury to the manufacture of starch. Prior to that time it had been found impossible or impracticable to manufacture the quantity or quality of starch which was the principal product of the manufacturing enterprise, and at the same time manufacture successfully the yeast from the waste products. During the latter part of January the plaintiffs claimed that the sixty days had expired, while the Starch Company claimed that this périod had not elapsed, and tendered a compliance on their part with the remaining provisions of the contract to entitle them to the license for the use of the patent in the United States and Canada.

I cannot agree with the theory of the plaintiffs that the meaning of the agreement between the parties is that as soon as the successful manufacture of yeast became apparent the sixty days began to run, and that this period of sixty days was the time within which the question of the successful operation, in connection with the successful manufacture of starch, was to be more completely tested. I do not think the time of option began to run upon the instant that the yeast itself, as yeast, was a commercial success. The parties themselves agreed upon the terms of the contract with reference to the utilization of the processes for the life of the patents. It was a large undertaking and entirely, so far as the evidence shows, an experiment. There never was much doubt but that yeast might be successfully made of corn, and the minds of all of the parties were directed, from the beginning to the end, to the question as to whether the two enterprises could successfully go on together and produce an enhanced value to the manufacture of corn starch by the utilization of a by-product which had theretofore gone to waste. The parties thus contemplated the stages of expectancy, experiment and fruition. The days of fruition were those within which by repeated experiment the purchasers might determine that the success of the experiment was not intermittent, but constant.

There are many details connected with the case, in the large mass of oral and documentary evidence submitted, which are not necessary to consider here. I prefer to decide this case upon the broad ground stated, and hold, as matter of law, from the subject upon which the contract operated, with the knowledge of the parties, and the conduct of the parties themselves, as well as the terms of the contract, the period of the beginning of the sixty days’ option term did not come until experiment showed the successful manufacture of yeast from the by-product in the manufacture of starch of the same quantity and quality as that theretofore used by the Starch Company in its Indianapolis plant.

Judgment, therefore, goes for the defendant, the Starch Company, dismissing the complaint. .

Judgment for defendant.


author: Davie, S.

text:
    In the Matter of the Estate of Ramel Wentz, a Minor.

      (Surrogate’s Court, Cattaraugus County,

      Filed June, 1894.)

    1. Guardian and ward—-Custody.
    The paramount duty of the guardian is to make such a disposition of the ward’s custody as will best promote his interests.
    2. Samé—Refusal to contribute to support.
    The guardian is not justified in refusing to contribute out of the estate to the support of the minor, i>' lie is well cared for and attached to the person with whom he resides, because he declines to abandon his present home and reside with the guardian.
    Application for a decree directing the guardian of the minor to reimburse the petitioner for past support of the minor, and for an allowance for his future support.

      V. C. Reynolds, for petitioner; E. D. Northup, for guardian.
   Davie, S.

—On the 16th day of April, 1894, Mrs. Sarah Blair filed her petition, alleging that she is the person with whom the minor resides; that she has supported and maintained him for several years last past; that he has funds in the hands of his guardian properly applicable to his support, and that the guardian refuses to make any allowance out of the funds of the estate for the maintenance of the minor, and praying that a decree be made directing the guardian to pay to the petitioner some proper sum to reimburse her for the expense incurred in the support of the minor in the past, and for an allowance for his future support.

On the return day of the citation the guardian interposed an answer controverting the validity of the claitn for past support, and alleging that the welfare of the minor is being jeopardized by continuing his residence with the petitioner, and asking that his rights as guardian to the custody of the minor be determined as a condition precedent to any liability on his part as such guardian for the support of the minor. The authorities are conflicting as to the jurisdiction of the surrogate’s court to determine the validity of disputed claims against the estate of a minor; this jurisdictional question arose in Welch v. Gallagher, 2 Dem. 40, and in the Matter of Stoehr, 23 N. Y. Supp. 281, and in each instance it was held that no such power existed, but in the Matter of Kerwin, 59 Hun, 589; 37 St. Rep. 436, the general term holds, directly to the contrary, and in discussing the somewhat general authority to regulate the conduct of guardians conferred upon surrogates’ courts by the provisions of subdivision 7, § 2742, and § 2846 of the Code of Civil Procedure, says: “ We know of no authority which restricts the jurisdiction of the surrogate to cases where the demand for the support is undisputed.” Consequently it would seem that if the prayer of the petition for reimbursement for past support is to be denied, it must be upon some other grounds than that of want of jurisdiction ; but upon a careful review of all the evidence I am clearly of thé opinion that the situation will not justify an allowance for the maintenance of the minor prior to the date of filing the petition in this proceeding, and the facts leading to that conclusion will be discussed to some extent hereafter; so, then, this proceeding resolves itself into an application under the sanction of § 2846 of the Code of Civil Procedure for a decree making suitable directions for the minor’s future maintenance.

The guardian is an uncle of the minor, and was appointed upon his own petition on the 5th day of July, 1893, and directly thereafter he received the sum of about $1,700, the amount of the estate in the hands of a former guardian upon his resignation and judicial settlement as such. The minor is of the age of ten years; his mother died when he was ten months old ; upon her death the father procured a home for the minor with the petitioner, where the father and this minor and an elder brother continued to reside until the death of the father, about five years ago. Prior to his death the father paid petitioner for the support of the 'minor, but since the 6th day of July, 1889, she has received no remuneration whatever for the maintenance of the minor, aside from the sum of $15 paid her by the guardian. The petitioner is a married lady of the age of fifty-four years, residing with her husband in thp village of Salamanca, having a comfortable home, a woman of irreproachable reputation and integrity, with no children of her own residing at home, kind and affectionate towards the minor, watching over him with a tender regard and motherly solicitude; the minor, having no recollections of his own mother and no remembrance of any other home, has become greatly attached to Mrs. Blair, respects her authority and loves her as a mother, and, under her influence and tutelage, has learned good manners and morals; no closer relations could exist between this minor and Mrs. Blair, or his interests be better protected, were they in fact parent and child.

The guardian, in justification of his refusal to make any provision for the minor’s support while he remains with Mrs. Blair, urges that, by virtue of his appointment as general guardian of the person and estate of the minor, he is vested with an arbitrary authority to determine the place of domicile of his ward, and that he is reasonably exercising such authority while endeavoring to coerce the minor, by means of his refusal to contribute to his support, to abandon the only home he has ever known. It is true, as a general rule, that the rights and duties of a guardian relating to the person of the ward are those of a parent; ordinarily the guardian has the right to the custody of the ward, and no court will interfere with a reasonable exercise of such right; but such right is by no means an absolute and arbitrary one; the paramount duty of the guardian is to make such a disposition of the minor’s custody as will best promote his interests, and if the guardian fails in so doing, it is not only the right, but the imperative duty of the court to interfere. The single consideration in determining whether he is properly performing the duties of his trust is the welfare of the ward; the guardianship is not created for the personal benefit of the guardian to any extent; the individual interests and wishes of the guardian or of Mrs. Blair cannot be considered; the single question presented is, what is best for the minor? People ex rel. Pruyne v. Walts, 122 N. Y. 238; 33 St. Rep. 230; Matter of Welch, 74 N. Y. 299.

It appears from the evidence that a proceeding was commenced several yeárs ago by habeas corpus, instituted by the former guardian to procure the custody of this minor from Mrs. Blair; and while the result of that proceeding is not disclosed, the minor was permitted to remain in her custody; there is no direct proof upon that subject, but the suggestion is made, and the inference from all the facts in the case is reasonable, that Mrs. Blair, in consequence of her solicitude to retain the custody of the child, proposed to do so without expense to his estate; that fact, however, should not be permitted to defeat this application, for there is no pretense or suggestion that such arrangement was made for any definite length of time, and the filing of the petition in this proceeding was sufficient notice that Mrs. Blair did not feel able to continue the gratuitous maintenance of the minor.

The desire and intention of the guardian is to take the minor to reside in his own family; will the interests of the minor be sub-served by so doing ? I am far from being convinced of the wisdom or propriety of such a cause ; the minor, who is a bright and intelligent youth, expresses a decided preference in this matter ; being sworn as a witness, he said, “ I wish to live with Mr. and Mrs. Blair ; they are kind to me; ” and when asked for a reason for such preference, he said, “I love Mrs. Blair—no one better ; •that is my home.” It is undoubtedly true that too much weight ought not to be given to a mere childish preference; and, as was so well said by Justice Mason in The People ex rel. Wilcox v. Wilcox, 22 Barb. 183, where this same subject was considered, “This is no more than we should expect; it is the infant heart speaking its simple language in behalf of those who have nurtured, fed and watched over it from its first impressions and recollections for a period of almost nine years ; it is' the hand that has fed, the eye that has watched, and the heart that has showered its smiles caresses upon the infant for the first nine years of its existence, that may confidently claim its love and affection.” Yet, in this case, I am satisfied that the expressed preference of the;minor is more the result of intelligent thought and consideration than of mere childish sentiment.

The petitioner in this case is in every respect a proper person to have the custody of the minor; her influence over him, tempered as it is by an ardent maternal affection and earnest solicitude for his welfare, is developing him in intelligence, manhood and integrity ; and it is difficult to determine with any degree of certainty what might result from breaking up, against the minor’s earnest protest, his present relations, and surrounding him with new and untried influences; it is an experiment which ought not to be tried.

The guardian himself, upon his cross-examination, concedes the equity of the petitioner’s claim for assistance in case the minor is left with her; he is asked, “Did you ever tell any one that Mrs. Blair was entitled to anything for the support of Ramel?” to which he answered, “I think I told Mr. and Mrs. Blair so; I thought so at the time, and think so now; I think Mrs. Blair ought to have pay for her trouble.”

After a careful consideration of all the evidence I am unable to see how the guardian is justified to any extent in refusing to contribute out of the estate to the support of the minor simply because the minor declines to abandon his present home and reside with the guardian.

A decree will be accordingly entered denying the prayer of the petition in so far as it relates to a claim for past support, but directing the guardian to pay to the petitioner out of the funds of the estate the sum of two dollars and fifty cents per week for the maintenance of the minor until the further order of the court herein, such payments to date from the filing of the petition herein. Ordered accordingly.