author: Finch, J.

text:
    George Lewis Prentiss, as General Guardian, etc., App’lt, v. Ellen Bowden, Resp’t.

      (Court of Appeals,

      Filed March 19, 1895.)

    1. Cbeditob’s action—Requisites.
    Where a party, for himself alone and in his own sole right as judgment creditor, brings an action against the grantee of his debtor to set aside a conveyance of land as made in fraud of creditors and to appropriate the property to the payment of his debt, he must first exhaust his remedy at law by the issue and return of an execution unsatisfied in whole or in part.
    2. Same.
    This requirement is not met by the issuing of an execution,- after the death of the debtor, without notice to his representatives or permission of the surrogate.
    3. Same.
    The validity of such execution may be assailed in the creditor’s action.
    4. Same.
    Such execution is not merely voidable, but absolutely void.
    5. Same.
    The fact that the defendant was duly appointed the executrix of the deceased judgment debtor after the return of such execution and caused herself to be made a party to the judgment for the purposes of an appeal, does not affect the question.
    6. Same.
    Such an action, it seems, may be maintained by a judgment creditor in behalf of all the creditors, without the issuing and return of an execution, upon the refusal of the representatives of the decease debtor to bring it.

      1. Same
    When the creditor sues in behalf of the representatives who refuse to do their duty, such fact should be alleged and such representatives be made parties defendant.
    Appeal from order of the general term of the superior court of the city of Hew York, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term and ordered a new trial.

      George F. Bentley and William R. Wilder, for app’lt; Benjamin Patterson, for resp’t.

       Affirming 60 St. Rep. 444.

   Finch, J.

There is no ambiguity in the character and scope of this action. It is brought by a judgment creditor against the grantee of his debtor to set aside a conveyance of land as made in fraud of creditors and to appropriate the property to the payment of the debt. The plaintiff sues for herself alone and in her own sole right as judgment creditor. She joins no other creditors and does not sue for their benefit, but exclusively for her own. It is of course a necessary condition of a right to invoke the aid of equity in such a case that the creditor should have first exhausted her remedy at law by the issue and return of an execution unsatisfied in whole or in part. The plaintiff issued such an execution, but not until the debtor was dead. That death occurred between seven and eight o’clock in the morning and the execution was issued four or five hours later on the same day. The courts below have held that the execution was nugatory and absolutely void, and cannot serve as a fulfillment of the condition precedent to the maintenance of the action. The whole controversy turns upon that point. It is technical in its character, and yet the rule sub-serves an important and substantial purpose. Equity intervenes-always for a reason and never needlessly ; and, declining its relief when there is a sufficient and adequate remedy at law, is obliged to say by what proof it shall be established that the remedy .at law has been tried and failed. It has selected for that proof the issue and return of an execution, both because that is the natural and usual mode of enforcing the legal right, and because it is easy to prove or disprove, and involves no necessary dispute. We are not at liberty, therefore, to disregard it as a needless and unmeaning ceremony.

An execution against the property of a dead man, without notice to his representatives or the permission of the surrogate, is-wholly unauthorized. The Code explicitly forbids it (§ 1379), except as provided in the next two following sections. These provide that the leave of the court which rendered the judgment and of the proper surrogate must be first obtained, and the mode and manner of securing the permission is pointed out. Without such permission the execution is forbidden, and not merely voidable but absolutely void. We so held in Wallace v. Swinton, 64 N. Y. 188. The appellant seeks to escape the effect of that case upon the ground that it declares the execution absolutely void against those who are not made parties to proceedings authorized by law for revival of the judgment against their property, and that the defendant is in fact executrix of the deceased judgment debtor and caused herself to be made a party to the judgment for the purposes of an appeal. But she did that five' weeks after the execution had been returned, and when the invalidity of that writ was already conclusively settled. Cases also are cited in which it has been held that such an execution is merely voidable, but they are of little utility because entirely unaffected by a peremptory statute forbidding utterly the issue of such an execution, except only after the prescribed notice and permission. It is urged also that the validity of the execution cannot be assailed collaterally. The cases declaring that doctrine are cases of irregularity merely, and not those in which the execution was absolutely void. It is further said that there are exceptions to the general rule requiring the issue and return of an execution, and one of them is when that preliminary step is impossible, But it was not necessarily impossible in the present case. On a proper application leave might have been granted. The truth is the plaintiff is seeking an advantage for herself above and beyond that belonging to the other creditors of the deceased. Our whole theory of administration rests upon the idea that when a man dies his estate shall answer to his creditors equally and without preference, and the surrogate is purposely made master of the situation to prevent inequality of payment. This plaintiff could undoubtedly have maintained an action for the benefit of all the creditors; after refusal of the representatives, to set this conveyance aside, but instead of that she is seeking, by an ordinary creditor’s action, to secure payment of her own debt regardless of what may happen to others. For the effort now made to turn theaction into one of the permitted character has too many difficulties in the way to succeed. Something of that kind was done in National Tradesman's Bank v. Wetmore, 124 N. Y. 241; 35 St. Rep. 316, but there the question was not raised by the answer, while here the facts which raise it are fully pleaded. The death of .the debtor before the issue of execution, the probate of his will, the appointment of John S. Wetherley and the defendant Ellen Bowden as executors are each alleged. If a request to Ellen as executrix to disaffirm her own title would be needless because absurd, that fact is not true of the executor, and his right cannot be arbitrarily set aside. And where the creditor may sue in behalf of the representatives refusing to do their duty, that fact should be alleged and such representatives be made parties defendant. Harvey v. McDonnell, 113 N. Y. 531; 23 St. Rep. 501. The executor Whetherley is not made a party at all, and the executrix only as an individual. The plaintiff, however, though failing in this action, may hereafter pursue the other remedy.

The order should be affirmed and judgment absolute ordered for the defendant on the stipulation, with costs.

All concur.

Order affirmed and judgment accordingly.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Richard Keenan, as Administrator, etc., Resp’t, v. The Brooklyn City Railroad Company, App’lt.

      (Court of Appeals,

      Filed March 19, 1895.)

    1. Negligence—Father’s action.
    _ In determining the amount of damages that should be awarded in an action for negligently causing the death of plaintiff’s son, the jury must consider the probable earnings of the son during his minority over and above his support, clothing and education ; the probability of his living and becoming of sufficient ability to support his father in case of his becoming aged, poor and unable to support himself; and the amount he would have brought to his next of kin while living and their prospect of inheriting from him after his death.
    2. Same.
    The father has no right to the earnings of the son as such after he becomes twenty-one years of age.
    3. Same.
    ¡Nor can he compel the son to support him in his old age, without reference to his condition or inability to support himself.
    Appeal from judgment of the general term of the' city court of Brooklyn, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying a motion for a new trial.

      Matthew Hale, for app’lt; Rufus O. Catlin, for resp’t.

      Reversing 60 St. Rep. 831.

   Haight, J.

This action was brought to recover damages for negligently causing the death of the plaintiff’s intestate.

The deceased was a boy five years of age, and the plaintiff, Richard Keenan, was his father and next of kin.

In submitting the case to the jury, the trial judge charged, upon the question of damages, that, “ In an action for the loss of services of a child by the father, the limit of recovery is twenty-one years of age ; but in deciding this case you may take into account, if you find it to be probable that this boy might have lived beyond the age of twenty-one years, and you may compensate the father for whatever age you find the probabilities of the case to be that this boy would have lived.”

The defendant’s counsel then requested the court to charge “that the father has no legal claim to the earnings of the son beyond' the age of twenty-one years.” The court charged that that was so as an abstract proposition of law, but added “ that the father could compel the son to support him in his old age, and the jury had a right to consider that fact in deciding the facts of this case.”

. Thereupon the defendant’s counsel further requested the court to charge, as a proposition of law, “ that the father has no claim on the earnings of the son beyond the age of twenty-one years, except in case the father becomes poor, unable to support himself, and the son is shown to have means.” The court declined to so instruct the jury, and an exception was taken by the defendants counsel.

The Code of Criminal Procedure (§ 914) provides that “ the father, mother and children of sufficient ability of a poor person who is insane, blind, old, lame, impotent or decrepit so as to be unable by worlc'to maintain himself, must, at their own charge, relieve and maintain him.”

It will be observed that in the request to charge the expression occurs, “ is shown to have means,” whilst in the Code we find the words, “ of sufficient ability." But we think the fair construction and meaning of the two phrases are the same, were so understood and that the request was proper. Does the request state an abstract proposition of law not involved in this case? The jury, in determining the amount of damages that should be awarded, was in duty bound to consider the various elements of pecuniary loss sustained by the father. First, the probable earnings of the son during his minority over and above his support, clothing and education; next, the probability of his living and becoming of sufficient ability to support his father in case of his becoming aged, poor and unable to support himself; and then they had the right to consider the amount he would have brought to his next of kin while living and their prospect of inheriting from him after death. Johnson v. Long Island R. R. Co., 80 Hun, 306 : 62 St. Rep. 46; affirmed in this court, 144 N. Y. 719.

The father had no right to the earnings of the son as such after he became twenty-one years of age. The charge as made left this question in doubt, and the remark of the court to the first request was to the effect that the father could compel the son to support him in his old age, without reference to his condition or inablity to support himself. To make this proposition clear and eliminate the question of the earnings of the son after he became twenty-one years of age, the second request was made, and it appears to us that it was proper and the charge should have been made.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur, except Gray, J"., not sitting.

Judgment reversed


text:
    Frank S. Benson et al., Resp’t, v. Anstin Corbin et al., App’lts.

      (Court of Appeals,

      Filed March 19, 1895.)

    1. Will—Construction.
    Where real estate is devised in terms, denoting an intention that the primary devisee shall take a fee on the death of the testator, followed by a devise over in case of his death without issue, the words refer to a death without issue in the lifetime of the testator, and the primary devisee surviving the testator takes an absolute fee.
    2. Same.
    This general rule yields easily to any fact or circumstance, indicating a different intention.
    3. Same.
    Such circumstance must be strong and decisive, where the construction collides with a plain devise in fee, and forces a change of its terms by cutting it down to a less estate.
    4. Same.
    Where there is primarily a clear and certain devise of a fee, about which the testamentary intention is obvious and without ambiguity, the estate thus given will not be cut down or lessened by subsequent words which are ambiguous or of doubtful meaning.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed a judgment in favor of plaintiffs entered upon a decision of the court on trial at special term.
    This action was brought to enforce the specific performance by the defendants Austin Corbin and Charles M. Pratt of a contract to purchase from plaintiffs certain- real estate situated upon Montauk Point in the county of Suffolk. Said defendants refused to complete their purchase on the ground that plaintiffs were unable to convey a good and merchantable title for the reason that there was, under the will of Arthur W. Benson, deceased, through which plaintiffs derived their title, an outstanding contingent vested interest in the defendant, the Domestic and Foreign Missionary Society of the Protestant Episcopal Church.
    The provisions of said will, so far as referred to in the opinion, are as follows:

      “ Third. I give and bequeath to my beloved wife the use of my house, 214 Columbia Heights, and my house at Montauk, and all their contents during her natural life, and in case of the sale of either or both with her consent the income of the proceeds shall be paid to her.
    “ Fourth. I give and bequeath to my relatives and friends the sums set against their respective names:
    “Henry J. Benson, my brother, if he survives me, two thousand dollars ($2,000).
    “Sarah E. Johnson, my sister, or her children if she dies, two thousand dollars ($2,000), and all her debt to me.
    “John Benson, my brother, if he survives me, two thousand dollars ($2,000).
    “George Benson, my half-brother, if he survives me, two thousand dollars ($2,000).
    “Elizabeth Kate Barrows, my step-sister, if she survives me, two thousand dollars ($2,000).
    “Thomas M. Braine, my old clerk, if he survives me, one thousand dollars ($1,000).
    “In all eleven thousand dollars.

      “Fifth. After the payment of the legacies in Section Four, and all the expenses of administration, I give and bequeath one-third of my personal estate to my beloved wife, Jane Ann Benson.

      “Sixth. I give and bequeath to my son, Frank Sherman Benson, one-sixth of my personal estate.

      “Seventh. I give and bequeath to the United States Trust Company of Hew York, of which John A. Stewart is president, one-sixth of my personal estate, in trust, nevertheless, to pay the interest, dividends and coupons to my son, Frank Sherman Benson, during his natural life, and on his death to pay the said principal sum to his child or children, share and share alike, or to the issue of such child or children, and if he shall die leaving no surviving issue, then they shall pay it to the child or children of Mary Benson, share and share alike, or to the issue of such child or children.

      “Eighth. I give and bequeath to the United States Trust Company aforesaid; the remaining one-third of my personal estate in trust, nevertheless, to pay the interest, dividends and coupons to my daughter, Mary Benson (without any interference of her husband, if she shall marry), during her natural life, and on her death they shall pay the said principal sum to her child or children, share and share alike, or to the issue of such child or children, but if she shall die leaving no issue, then they shall pay the same to the child, children or issue of Frank Sherman Benson; and in case of the death of both of my children, leaving no issue them surviving, then I order that they shall pay the whole sum bequeathed to both of my children to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church of the United States of America, for the use of the society, to be expended for current expenses within ten years. And the said Trust Company are directed not to sell the securies so turned over to them, but to hold them till they fall due, and when they are paid off to invest the money in government bonds, or railroad bonds, or some other very good security, looking more to the security of the principal than to the rate of interest.

      “Ninth. I give, devise and bequeath to my son, Frank Sherman Benson, and my daughter, Mary Benson, share and share alike, my house in Brooklyn, 214 Columbia Heights, and my house at Montauk, and all the contents of both, subject to the life occupancy of their mother, and also all my land in Easthampton, Amagansett, Napeag and Montauk, and any and all my other lands wherever situated, subject to the dower right of their mother.

      “Tenth. It is my will that in case of the death .of both of my children leaving no issue, that all my property given and devised to such children and their issue, shall not pass to the branches of my family, or the family of my wife, but that all of it, personal or real, which I have the power to will, and also the trust fund heretofore set apart for income to my wife, is hereby given, devised and bequeathed to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church for the use of the society, to be expended for the current expenses within ten years.”
    At the foot of the will was the memorandum : “Having in my
    lifetime given away large sums of money in charity, I give what is left to my wife and, children, with th.e injunction to them to continue such charitable contributions so far as they are able.”

      E. B. Hinsdale and George M. Van Hoesan, for app’lt; Daly, Hoyt & Mason, for resp’ts.

       Affirming 60 St. Rep. 211.

   Finch, J.

The only question presented by this appeal arises upon the construction of the will of Arthur W. Benson, and comes to us as the decisive inquiry in an action to- compel the defendants, Corbin and Pratt, to specifically perform a contract for the 'purchase of land. The point-of dispute is over the title proffered by the vendors; concededly good if their construction of the will shall prevail, but not to be forced upon the vendees if their view of the title shall prove to be correct.

By the ninth clause of that will the testator devised to his son Frank and his daughter Mary his house in Brooklyn and that at Montauk with all their contents, but subject to the life occupancy of the mother, which had previously been secured to her by the gift of a life estate, and further devised to the two children all the testator’s lands wherever situated, subject to the dower right of their mother. By force of this provision, regarded by itself and as unrestricted and unqualified by any other limitation, the two children took an absolute fee in all'the lands of the testator, subject only to the mother’s life estate in the two houses and to her right of dower. The statute provides that words of inheritance shall not be necessary to create a fee, but the whole estate of the testator shall pass unless the intent to pass a less estate shall appear by direct words or by necessary implication. The testator subsequently refers to what he supposed himself to have done, and speaks of having given and devised his whole property to his children “and their issue,” showing that he perfectly understood their interest to be a fee by the added words of inheritance. The estate thus given is not cut dow;i, or in any manner modified, unless it be by the succeeding and tenth paragraph of the will, which raises the question submitted for our decision. That clause reads thus: “ It is my will that in case of the death of both of my children* leaving no issue, that all my property given and devised to such children and their issue shall not pass to the branches of my family, or the family of my wife, but that all of it, personal or real, which I have the power to will, and also the trust fund heretofore-set apart for income to my wife, is hereby given, devised and bequeathed to the Domestic and Foreign Missionary Society of the Protestant Episcopal Church, for the use of the society, to be expended for the current expenses with ten years.” The inquiry now is whether the death without issue means in the lifetime of the testator, or at any time when the event occurs, whether before or after his decease. There is no dispute as to the general rule of construction. It is thus stated in Vanderzee v. Slingerland, 103 N. Y. 55, by Judge Andrews : “Where real estate is devised in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, followed by a devise over in case of his death without issue, it has, I think, been uniformly held in England, and it is the rule supported by the preponderance of judicial authority in this country, that the words refer to a death without issue in the lifetime of the testator, and the primary devisee surviving the testator takes an absolute fee.” And the doctrine has been repeated as recently as Washbon v. Cope, 144 N. Y 297; 63 St. Rep. 716. While such is the general rule, it is said to maintain its hold somewhat weakly and with a doubtful grasp, and to yield easily to any fact or circumstance indicating a different intention. Although that. is undoubtedly true, it takes on some modification by force of another rule, equally well settled,, that where there is primarily a clear and" certain devise of a fee, about which the testamentary intention is obvious and without-ambiguity, the estate thus given will not be cut down or lessened by subsequent words which are ambiguous or of doubtful meaning. If a slight circumstance or a slender reason will in ordinary cases prevent the application of the general rule, the circumstance or the reason must be strong and decisive where the construction collides with a plain devise in fee, and forces a change of its terms by cutting it down to a lesser estate. We do not easily trade a certainty for a doubt.

I deem it a weighty consideration that a construction which follows the general rule making the death without issue relate to a death in the testator’s lifetime harmonizes every word and every expression in the will and renders them all consistent and operative, while the rival construction raises' an inconsistency at once, only to be remedied by lessening to a practical life estate what naturally stands as a fee, or by discarding the inconsistent limitation as repugnant to the estate devised. IE the testator’s purpose was to prevent a lapse, the devise in fee needs no change of terms or natural meaning, the explanation that the testator did not want his property to go to the collateral branches of the family is fit and appropriate, and the devise over to the missionary society natural .and reasonable, while on the other construction the fee given in a separate clause and by itself becomes a mere life estate, with the result of narrowing and hampering the father’s gift to his children, disregarding and distrusting their possible devise of it by will in case of a failure of issue, by which process it could still be diverted from collaterals or devoted to charity, and giving it contingently to the missionary society largely at the expense of and by an injury to his children, which the surrounding facts show would be neither natural or reasonable.

That he contemplated no such result is indicated by another fact. He plainly intended that his children should have a complete power of disposition of the lands devised, and makes it known to us in one of those incidental ways which often throw the clearest light upon the testamentary intention. While making provision for his wife, and for that purpose giving to her the use and occupation of the two houses, the possibility of a sale becoming desirable and beneficial occurs to him and he says: “In case of the sale of either or both with her consent the income of the proceeds shall be paid to her.” It is evident that he meant his children to have capacity to sell at least with the mother’s consent, and assumed it as a matter of course in his thought, and, therefore, provided that in such event her use should attach to the proceeds. If he had meant for them merely a contingent life estate, excluding capacity to transfer a good title, he would surely have armed them in his will with a conferred power of sale, but giving no such authority, and assuming, nevertheless, that it would exist and might be exerted, we cannot escape the conviction that he meant his children to have an absolute power of disposition provided they should live to take at all; but in the possible emergency that they might not live to take at all and so be able by deed or will to dispose of the land, then and only then did he contemplate a devise to the missionary society.

Indeed the phrasing of the tenth clause indicates what in his mind the emergency calling for a devise over to the missionary society in truth was. It was a situation in which the property would “pass” to the collaterals ; that is, go to them inevitably, and because there was no power anywhere to prevent, unless he, the testator, exercised it; an emergency which the children could not master because not living to control it. Ho such emergency was inevitable except in the single case of their death without issue before the will should take effect. If they survived and took the fee, descent to collaterals was not inevitable. The daughter could devise to her husband, the son to his wife, or both to some useful charity, and the testator might well trust to them to respect his wishes. There was no inevitable passing of title against which only he could provide. But just that emergency did arise if they died childless in his lifetime. In that event the land would inevitably “pass,” and it was to avoid that and not to mangle the clear devise to his children that he framed the remainder over as-a remedy.

His disposition of his personal estate is adverted to as indicating his meaning in the disputed clause. If the forms of expression were identical with that there used the argument would have a force greater than now belongs to it. But a significant word used in the one case is absent in the other, and a different form of expression is substituted. The testator begins with a distribution of eleven thousand dollars in six separate legacies to collateral relatives and an “old clerk,” and in every instance except one he uses the expression, “ if he survives me," or “ if she survives me,” so that he contemplated at the outset the possible death in his own lifetime of these legatees and the lapse of their legacies. His attention is drawn to the subject, he acts with reference to it by an explicit expression, and thus answers the argument addressed to us that because he was seventy-five years of age and his children only in middle life he did not contemplate their possible death before his own. It is not at all rare or unusual for an old man to think that others, though younger, may die before him. The testator then gives one-third of his personal estate to his wife and one-sixth to his son. These bequests are absolute. Then he makes two trusts, covering the other half of his personal estate, giving the income of one-sixth to his son and of one-third to his daughter; and it is in the framing of these trusts obviously meant to run on and continue after his own death that he limits cross remainders, saying, if one shall die without issue surviving then the trustee shall pay to the other. The word “ then ” is said to mean at that time, and is used again preceding the final contingent remainder in the trust shares to the missionary society. All this the exigencies of a continuing trust very naturally required. But when he proceeds to dispose of his real estate he creates no trust, but gives the land absolutely to his children. As in the direct legacies to certain collaterals his thought ran tp the possibility of a death before his own, so here it comes to him again in the contingency that by a failure of issue a lapse may carry the land to collaterals with nobody living to prevent. Therefore he frames the tenth clause, but leaves out the significant word “ then ” which he used when framing the trusts, and substitutes a different form of expression. He says, “in case of the death of both of my children leaving no issue." If he had written out his thought in full I think it would have run somewhat thus: I have given all my land to my children in fee; I am content that they shall do with it what they please; they may sell it, they may divide it as they shall choose; I put no restraint upon their disposition; but if neither they nor their issue live to take it and dispose of it, and by their deaths in my lifetime descent to collaterals becomes inevitable, “ in that .case,” in that emergency which they cannot control because they are dead, I provide that the collaterals shall not take, but the missionary society shall so far as I have power to effect that result. That seems to me to have been the probable drift of the testator’s thought as it finds expression in the written words. But at all events there is nothing in the will to compel an exception to the general rule that the death without issue means a death in the testator’s lifetime. Personally, I have no fondness for that rule. I have never been entirely satisfied of its soundness. But it is the law of this state and I owe it an obedience easily rendered in the present case, because even without it I think I should reach the same conclusion.

For if we read the will in the light of the surrounding facts, with the knowledge and under the pressure of which the testator acted, our construction will be further confirmed. Beyond the two dwelling houses mentioned in the will and a lot at East Hampton of little value the testator’s real estate consisted of a large tract of land known as Montauk on the eastern end of Long Island, and embracing about ten thousand acres. It is sandy and barren, offering no temptation to agriculture, but was being slowly sold for summer homes to those who wanted the air of the sea. That process gave it the only visible chance of value, and the testator must have expected his children to follow his example. The last thing that would have occurred to him would have been to tie up the land by a contingency which would prevent his children from selling it in their lifetime and devising it as they pleased at their death, imposing upon them the burden of carrying it,without prospect or. possibility of relief. If he really meant that there is a painful sarcasm in the memorandum which he left at the foot of his will, in which he recites that he has given everything to his children and urges them to bestow large sums in charity as he himself had done. I am sure that he never doubted for a moment that he had given them his whole real property, as he said, provided only that they should be alive at his death to take it and dispose of it.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: O’Brien, J.

text:
    Susan W. Hopkins et al., Resp’ts, v. Sheldon Kent et al., App’lts.

      (Court of Appeals,

      Filed March 19, 1895.)

    1. Will—Construction.
    It is the duty of courts, in construing a doubtful and obscure provision in a will, to so interpret it as to uphold rather than to render it void.
    2. Same.
    The intent of the testator was held to be that his widow should receive the income of one-fourth of his estate, which vested in her an equitable life estate in the share itself ; and that, upon her death, the whole legal and equitable estate vested absolutely in the three children.

      3. Trust—Termination.
    When the purpose for which a trust was created is served, the estate of the -trustees terminates and the fund is released from the trust.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed a judgment construing the will of Henry A. Kent, deceased, entered upon a decision of the court on trial at special term.

      Josiah T. Marean, for app’lts; George Zabriske and Bronson Winthrop, for resp’ts.
   O’Brien, J.

The plaintiffs, as executors of the will of Henry A. Kent, who died March 1, 1893, brought this action for the purpose of procuring a judicial construction of its several provisions. The will bears date October 23d, 1891, is holographic, and its disposing clauses read as follows:

“ I, Henry A. Kent, of the city of Brooklyn, county of Kings and State of New York, do make, publish and declare this my last will and testament as follows :

“ 1 give, devise and bequeath to my children, to wit, Susan W. Hopkins, Frances K. Sanger, Sheldon L. Kent and Henry 0. Hopkins, my son-in-law, and to their heirs and assigns, all my property, whether real, personal or mixed, in trust, and I also appoint the above-mentioned trustees my executors, with instructions as follows:

“ 1st. To pay all my debts.

“ 2d. To dispose as they may think advisable for all interests of all of my property.

3d. To invest the surplus after paying my debts in such manner as they think advisable.

“ 4th. To divide the income from such investments as follows in four equal parts, namely:

“ To my wife, Amelia 0. Kent, one part during her lifetime ; after her death her share to revert to my trustees for the benefit of my three children, their heirs and assigns, under the supervision of my trustees as above mentioned; Susan W. Hopkins one-third, Frances K. Sanger one-third and Sheldon L. Kent one-third.

It appeared that the testator had another child, a son, Walter L. Kent, who is not mentioned in the will, and this appeal relates to his interest in the estate. The courts below have held that as to three-fourths of his estate, real ánd personal, the testator failed to make any valid disposition, and, consequently, died intestate as to that part. That as to the other one-fourth there was a valid trust created during the life of the widow for her benefit, with remainder over to the three children named absolutely. That the widow was entitled to dower in the lands undisposed of, and to a distributive share in the personal estate. No one appealed from this judgment except the son, Walter L. Kent, and he from that part of it only which adjudges that upon the death of the widow the remainder of her one-fourth share vests in fee in the other three children. The contention on his behalf is that there was no valid disposition made of the remainder, and that the testator died intestate as to that also. The limit of the controversy is thus reduced to a single inquiry. We may pass over the other provisions of the will, except the fourth clause for the benefit of the widow, and assume, what would seem to be entirely obvious from a glance at these provisions, that the deceased failed to create any beneficial interest in three-fourths of his estate in favor of any one, and that the trusts upon which he attempted to dispose of it are void.

It cannot be denied that the meaning of the testator, as expressed in the fourth clause, is involved in much doubt and obscurity, but it is the duty of courts in construing such a provision to so interpret it as to uphold rather than to render it void. Roe v. Vingut, 117 N. Y. 218; 27 St. Rep. 238; Du Bois v. Ray, 35 N. Y. 162 ; Greene v. Greene, 125 id. 512; 36 St. Rep. 30; Post v. Hoover, 33 N. Y. 601; Lytle v. Beveridge, 58 id. 598. It is quite clear that the testator intended to convey to his executors and trustees some interest in his property for the benefit of his widow during her life. While the language is not clear it is fairly to be gathered from it that he intended that she should receive the income of a share which evidently was one-fourth of his estate. The right to the income of this share, or the rents and profits of the same during her life, vested her with an equitable life estate in the share itself. This was the quantity of the estate conveyed to the trustees for the benefit of the widow. Its limit and term of duration is for the period of her life. At her death the purpose for which the trust was created is served, and, consequently, the estate of the trustees terminates and the share is released from the trust. Locke v. Farmers' Loan & Trust Co., 140 N. Y. 135; 55 St. Rep. 546; Greene v. Greene, supra; Cooke v. Platt, 98 N. Y. 38. The question is, what becomes of it then or in whom is the beneficial interest vested ? We think that the deceased has in effect said that this share, which, up to the time of the death of the widow was under the supervision of the trustees, shall revert to them “ for the benefit of my three children, their heirs and assigns.” And as there was no further active trust imposed upon the trustees, in respect to this share, the whole legal and equitable estate vested absolutely in the three children by the statute. They, and not the trustees, then became entitled to the possession and to the rents and profits, and, hence, under such circumstances, the remainder will vest in them under the provisions of the Statute of Uses and Trusts, and there can remain in the trustees no estate whatever, legal or equitable.

“§ 47. Every person who, by virtue of any grant, assignment or devise, now is or hereafter shall be entitled to the actual possession of lands and the receipt of the rents and profits thereof in law or in equity shall be deemed to have a legal estate therein of the same quality and duration, and subject to the same conditions as his beneficial interest.

“ § 49. Every disposition of lands, whether by deed or devise, hereafter made, shall be directed to the person in whom the right to the'possession and profits shall be intended to be invested, and not to any other to the úse of or in trust for such person, and, if made to one or more persons to the use of or in trust for another, no estate or interest, legal or equitable, shall vest in the trustee.”

At the death of the widow the possession, management and control of the share for her benefit terminates and that of the three children begins. The learned counsel for the defendant Walter L. Kent insists that the true construction of the provision is that the trustees, notwithstanding the death of the widow, still hold the share in trust as before for the benefit of the three children, their heirs and assigns in perpetuity, and this disposition being void the remainder fails, and upon the death of the widow, the share vests in possession in the heirs at law. The inaccurate language of the testator, of course affords a wide scope for ingenious reasoning, but to construct a perpetuity upon the life estate of the widow, for the purpose of defeating the remainder, would be not only to impute to the testator an intention quite improbable and exceedingly difficult to find, but ascribe to his words a scope and meaning which they will scarcely bear.

The interpretation given to the instrument by the court below is more in harmony with settled principles of construction, does less violence to language and is more in accord with the presumed intention of the testator.

The judgment should be affirmed, with costs to all parties out of the estate.

All concur, except Gray,' J., not sitting.

Judgment affirmed.


text:
    Therese Murphy, as Administratrix, etc., App’lt, v. Frank K. Hayes et al., Resp’ts.

      (Court of Appeals,

      Filed March 19, 1895.)

    Negligence—Elbvatob.
    The owner of an elevator is not liable to an employe of a safe companyr who was injured in assisting to remove a safe from the elevator, when such elevator is of the best construction and does its work properly, and his injury was the result of his own and his co-servants’ negligence.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order which affirmed a judgment in favor of defendants entered upon an order of the court on trial at circuit dismissing the corciplaint.
    G. Washbourne Smith, for app’lt; Charles C. Nadal and Thomas S. Moore, for resp’ts.
   Haight, J.

This action was brought to recover damages for the death of Patrick Murphy, the plaintiff’s intestate, caused, as alleged, by the negligence of the defendants.

Patrick Murphy with several others, was in the employ of the Marvin Safe Company, engaged in moving a safe weighing nine thousand three hundred pounds into the defendants’ building on Maiden lane, in the city of New York, for one of the defendants’ tenants therein/ There were two elevators in the building opposite each other on the main hall, one of which was constructed for carrying heavy freight as well as passengers. The safe .was run into the hall on the first floor and placed upon the freight elevator. The engineer of the building was then given an order to go ahead, and thereupon he applied the power and raised the car containing the safe to the seventh floor of the building, where it was to be removed and placed in the tenant’s office. After the elevator had arrived at the floor of its destination the servants of the Marvin Safe Company placed two iron shoes under the front edge of the car. They consisted of two broad pieces of iron, which extended beneath the floor of the car with a double angle which projected out into the hallway. The elevator was then lowered upon the shoes, and two of the employees of the Marvin Safe Company went into the car behind the safe to assist in pushing it out into the hall. As they entered the car the rear portion thereof commenced to sag down, and they called out to raise the car-up. A janitor in the defendants’ employ, standing by, hallooed down the elevator shaft to the engineer to “raise her a turn; give her a turn.” Thereupon the car was raised up even with the floor. He then shouted down the shaft: “Stop and hold the pressure on° and keep her in place.” The car then remained steady, the servants of the safe company took hold of the safe and pushed it out. As soon as they got it about half way out on to the floor of the hall the elevator commenced to raise, and rose gradually for the space of about three feet, tipping the safe over on to its face in the hall. The plaintiff’s intestate, being in front of the safe, was thrown over into the opposite elevator shaft, fell and was killed.

We think there can be no reasonable doubt as to the cause of the accident. The inferences to be drawn from the facts would have justified the jury in finding that the car was held in position, even with the floor of the building, through the power maintained upon the elevator by the engineer in the basement below, and as soon as the elevator was relieved in part of the great weight of the safe the car commenced to rise, because of such power, causing the safe to tip forward.

Who was at fault? Was it the defendant’s engineer ? Manifestly not. He was in the basement below operating the elevator according to orders received from above. He could not see or know what they were doing with the safe, or the manner in which they were removing it from the car of the elevator. He apparently obeyed the orders given him, and we discover nothing in his acts that can properly be made the subject of criticism.

Was it the janitor? He was charged with no duty with reference to the moving of the safe. So far as appears he was but a volunteer. When the men inside of the car called out to “ raise her up,” after finding that the rear of the car was sagging down, he shouted their orders down through the elevator shaft to the engineer. It is true that, after the car was again raised even with the floor, he again shouted down to the engineer to keep the press-. ure on and hold the car in place. But this was done in a loud voice, in the presence of the servants of the safe company, including Murphy, and no objection was made thereto. The order was evidently proper. It had then been demonstrated that the shoes placed under the floor of the front of the car w.ere insufficient to hold it in place,-and power from beneath was required in order to keep it from sagging down in the rear. The janitor was not shown to have had experience or knowledge in the moving of safes, or to have taken any other responsibility, or given other orders with reference thereto.

Were the defendants negligent? There is no pretense that the elevator was not of the best construction, Or that it did not do its work properly. The only thing suggested is that they .did not have a man upon the elevator having hold of the rope so as to shut off the power as the safe was removed from the elevator-. But they were chargeable with no duty with reference -to the removal of the safe. They simply furnished the elevator operated by the engineer, with which to enable the Marvin Safe Company‘to effect the hoisting of the safe. The.capacity of the elevator was from four to five tons. The weight of the safe, as we have seen, was upwards of fohr tons and a half, nearly equal to the entire capacity of the elevator. The elevator could be operated by the engineer properly, under orders from above, and, under the circumstances, it may not have been deemed prudent to burden the elevator with the weight of an additional man. We consequently see no ground for charging the defendants with negligence.

Did .the accident result in consequence of the-negligence of the servants of the safe company ? Those servants were .engaged in the removal of the safe. They were accompanied by the foreman of the gang and the general foreman of the company, men who had had many years of experience in the moving of safes in the cities of New York, Brooklyn and Jersey City, and the taking of them up in elevators in high buildings. They -were fully aware of the difficulties and dangers attending the handling of safes of great weight, and understood the nature and character of the appliances necessary to be made use of in performing -such work. They knew that the shoes had proved insufficient to hold the car in place, and that they had placed no skid or other appliance across the elevator shaft to hold the car .in position. They knew that the elevator car was maintained in position upon the seventh floor ■of the building with this safe upon it, through power applied by the engineer in the basement below. They knew that there was no man upon the car having hold of the rope so as to reduce the power as the safe was removed. Yet knowing all this, they attempted to remove the safe from the elevator with the power on, without giving notice to the. engineer below, or directing him to reduce the power in case the elevator should commence to rise. In this, it appears to us, they were negligent, and such negligence caused the death of Murphy. They were his co-servants and co-laborers, he participating with them in negligently doing the work they had in cnarge.

It follows that the non-suit was proper, and that the judgment appealed from should be affirmed, with costs.

All concur. Judgment affirmed.


author: Bartlett, J.

text:
    The People ex rel. The Union Pacific Tea Company, App’lt, v. James A. Roberts, as Comptroller, etc., Resp’t.

      (Court of Appeals,

      Filed March 19, 1895.)

    1. Taxes—Corporation.
    The handling of tea and coffee, in mixing various kinds of each so as to form a combination article, is not a manufacture in any legal sense, and a corporation, so dealing with them, is not a manufacturing corporation.
    2. Certiorari—Return.
    The return of the comptroller to a certiorari to review his appraisal should set forth the items of the appraisal.
    Appeal from order of the general term of the supreme court in the third junicial department, which affirmed a determination of the comptroller of the state made upon a re-hearing for re-settlement and revision of a tax assessed against the relator.

      Charles H. Luscomb, for app’lt; T. E. Hancock, Attorney-General, for resp’t.

      Affirming 63 St. Rep. 573.

   Bartlett, J.

This proceeding is presented upon a writ of certiorari to review the appraisal of the comptroller fixing the amount of the capital stock employed within the state by the relator, a foreign corporation organized under the laws of the state of New Jersey and having its factory and principal place of business in the city of New Y ark.

The authorized capital of the relator is $300,000 and the amount paid in $212,000.

The comptroller fixed, on a first appraisal, the amount of capital employed within this state at $259,273.93, and on a re-hearing reduced the value to. $172,677.46.

Thereupon the relator sued out a writ of certiorari to review the proceedings before the comptroller, and the general term of the third department affirmed the assessment on the re-hearing.

The relator urges two principal objections to the appraisal made by the comptroller; first, that it is a manufacturing corporation wholly engaged in carrying on manufacture within this state; second, that there is an overvaluation of the amount of capital stock employed within this state.

The business of the relator is alleged to be the manufacture of coffee and tea, and the sale of coffee, tea, spices, and baking powder in this and several other states. It appears by the uncontradicted evidence that the relator purchases its spices and baking powder in bulk, merely putting up the same in packages for sale, and the question of whether the relator is a manufacturing corporation must be determined by the manner in which it deals with its coffee and tea. The evidence discloses that tea is taken in the •original state, and various kinds are mixed together, producing a compound which is called combination tea. Coffee is purchased in the raw bean, roasted, ground, and in some instances different kinds of coffee are mixed together, forming, as in the case of the tea, a combination article.

We think it very clear that the handling.of tea and coffee in the manner indicated is not manufacture in any legal sense and the relator cannot be regarded as a manufacturing corporation.

Mr. Webster defines manufacture to be “ anything made from raw materials by the hand, by machinery, or by art, as cloth, iron,, utensils, shoes, machinery, saddlery, &c.”

The process of manufacture is supposed to produce some new article by the application of skill and labor to the raw material.

It is quite apparent that the processes of the. relator when subjected to this test cannot be deemed manufacture either in the ordinary or legal definition of that term. '

In the case of The People v. Knicherbocker Ice Company, 99 N. Y. 181, it was .held that the collecting of ice from the Hudson river and Rockland lake,"storing, preserving and preparing it for sale was not a process of manufacture. This court held the defendant was dealing with ice as an existing article, and not as a manufacturer thereof by frigorie effects produced by artificial means.

Judge Danforth says (p. 183): “ Water might be improved by filtration, fruit by judicious pruning of tree or vine, or protection by glass, sand and gravel by screening, cobblestones by selection and coal by -breaking, and each by various processes stored until the season of demand, when, having been ‘ collected, stored, preserved and prepared for sale,’ the natural article and no other would be put upon the market.”

So in the case at bar the combination of teas, and the roasting, grinding and mixing of coffee are processes which result in no new article, as it is still coffee and tea that is placed upon the market.

The United States circuit court for the northern district of New York held that cutting grass, converting it into hay, pressing it in bales and transporting it to market did not result in the production of a manufactured article. Frazee v. Moffitt, 20 Blatch. Cir. Ct. Rep. 267.

The supreme court of the United States held that shells cleaned by acid and then ground on an emery wheel, and some of them afterwards etched by acid, and all of them intended to be sold as ornaments, as shells, were not dutiable as manufactures of shells. Hartranft v. Wiegman, 121 U. S. 609. It is unnecessary to multiply citations, as the cases referred to clearly point out the rule that governs in the case at bar.

This brings us to the question of alleged overvaluation in the appraisal by the comptroller. After a careful examination of the evidence, we are not only unable to agree with the contention of the learned counsel for the relator that legal error is disclosed by the fact that the comptroller’s appraisal is contrary to the undisputed evidence, but we are of the opinion that his final determination on the re-hearing is supported by the facts. We do not deem it important to review the facts in detail, as the decision below is binding upon this court.

We feel constrained, in this connection, to comment upon a practice that prevails in the comptroller’s office which imposes upon this court much unnecessary .labor. The return to the writ of certiorari in this case sets forth the final determination of the comptroller in fixing the amount of relator’s capital stock employed within this state, but fails to disclose the items aggregating the total as ascertained, simply making the evidence taken before the commissioner a part of the return.

It will greatly facilitate the court in deciding this class of cases if the return sets forth the items of the appraisal.

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

All concur.

Judgment affirmed.


author: Peckham, J.

text:
    In the Matter of Proving the Last Will and Testament of William O’Brien, Deceased, and the Judicial Settlement of the Accounts of his Executors.

      (Court of Appeals,

      Filed March 19, 1895.)

    1. Surrogate—Discretion.
    Where the surrogate has exercised a fair and reasonable discretion in regard to an allowance and refused to grant it, and his decree has been affirmed by the general term, the court of appeals will not interfere with it.
    3. Appeal—Waiver.
    Where á decree of the surrogate is in the alternative, providing for the revocation of letters testamentary, unless the executors pay the disbursements and file a bond, which they do, and go on and perform their duties as executors, they cannot thereafter appeal from the decree or order.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order which affirmed a decree of the surrogate of Rensselaer county settling the accounts of the executors of the last will and testament of William O’Brien, deceased.

      Milton A. Fowler, for app’lt; C. B. Herrick, for resp’t.
   Peckham, J.

We think the judgment in this case should be affirmed. The surrogate referred certain questions arising upon the presentation of the final accounts of the executors to a referee to take the testimony and report the same to the surrogate witli his opinion thereon. The referee did so and reported in favor of paying the executors a certain amount, including sums which they claimed to be liable for to their counsel for services rendered them as executors in the course of the administration of the estate. The referee made certain findings which upon the return of the testimony to the surrogate were not sustained by that officer, but other findings were made. There is really no dispute in regard to the evidence, and the surrogate found facts by reason of which he refused to allow the executors the sums which they claimed to be liable to pay to their counsel as above stated. It appears from these findings that proceedings were taken by some of the legatees before the surrogate to revoke the letters testamentary of the executors on the ground that their circumstances were such that they did not afford adequate security to the persons interested iu the due administration of the: estate. Subd. 5, § 2685, of the Code Civ. Pro.

A citation-was issued by the surrogate to the executors to show-cause why their letters' testamentary should not be revoked, and .in that order to show cause they were enjoined from acting as executors until the determination by the surrogate- of the application of such revocation. The executors showed cause by written answers and the issues raised! therein were settled by the surrogate and referred to a referee for the purpose of taking testimony, and upon the return and presentation of such testimony the surrogate decided to revoke the letters of the executors unless- they gave a bond in an amount stated, under the authority of subdivision 3 of § 2687 of the Code. The surrogate also charged the executors with the amount of the disbursements of the petitioners. The executors subsequently complied' with the decree of the surrogate and gave the bond and went on witli the discharge of their duties. When the question upon their final account came up the executors claimed the right to be credited in their accounts with the amounts which they alleged they were liable to pay to their counsel- for services performed for the executors during the time when the latter were enjoined from performing any duties as executors, and also for the services rendered by their attorney for them in resisting the application of the petitioners toi revoke- their letters testamentary, which resulted in the granting of the application unless the executors gave the bond as above mentioned. The surrogate found that this application was unreasonably resisted and that the executors were not entitled to an allowance for services of counsel to them in that proceeding, nor while they continued to act as executors while the order restraining them from so acting was in existence. It also appeared in the evidence and was found by the surrogate that the counsel fees for these services had not as matter of fact been paid by the executors at the time that they rendered their account, although they were liable therefor, as they claimed, and although it appeared that the amount claimed by such counsel' was not more than the services were fairly worth, the surrogate holding that by reason of the statute .and of the limited jurisdiction of his court, he was only permitted to allow the executors on their final accounting such sums as they had actually paid, and he cited authorities which he claimed were to that effect, and which are to be found in the brief of the counsel for the respondents. The right to make allowances to executors for sums paid to counsel is granted by chapter 686, Laws of 1893, p. 1707, which amends § 2730 of the Code of Civ. Pro., and provides upon the settlement of executors’ and administrators’ accounts for the making of allowances for such actual and necessary expenses as shall appear just and reasonable to the surrogate.

We should have great hesitation in affirming the correctness of these views of the surrogate. We aré not prepared to say that in no case can a surrogate make an allowance for the services of counsel to an executor of an estate for which such executor is liable, although he has not as yet actually paid the money. Of course, the fact of his liability would not be conclusive upon the surrogate nor upon the amount thereof as claimed by the attorney or admitted by the executor. It would seem to be a matter for the surrogate’s determination as to the reasonableness and propriety of the claim, and that should be determined after an examination into the facts and circumstances of the charge to such an extent as might be necessary. We do not discuss the question further nor express a final opinion upon the matter, because the surrogate has found other facts which are entirely sufficient upon which to base his judgment, those facts being that in his judgment, while the executors were enjoined from acting as executors, there was no reason or propriety in their incurring expenses by way of professional advice in regard to the estate, and that so far as concerns their claim for payment to counsel of funds of the estate for services performed by counsel in resisting the application for the revocation of the executors’ letters testamentary, their resistance was unreasonable and formed no ground for an allowance to pay any claim for professional services rendered them upon such resistance. These were matters upon which there was evidence which called upon the surrogate for the exercise of a fair and reasonable discretion in regard to such allowance, and he having exercised it and refused to grant snch allowance, and his decree having been affirmed by the general term, it is not a case for us to interfere. The appeal on the part of the executors to this court does not bring up the order made by the surrogate referring the issues upon the application to revoke their letters, nor does it bring up his action decreeing such revocation unless a bond were given and the costs by way of disbursements by the petitioner paid "by the executors. There are several reasons why they were not brought up by the attempted appeal. A conclusive one is that the decree of the surrogate was in the alternative granting the petition and providing for the revocation, unless the executors paid the disbursements and filed a bond. This they did, and went on and performed their duties as executors. They could not thereafter appeal from the decree or order.

On the whole we think the judgment of the court below was right, and it must be affirmed.

All concur.

Judgment affirmed.


text:
    Mary A. Peckham et al., Resp’ts, v. The Dutchess County Railroad Company, Def’t. James K. O. Sherwood, as Receiver, etc., App’lt.

      (Court of Appeals,

      Filed March 19, 1895.)

    1. Railroads—Farm crossings—Receivers.
    A judgment, requiring a railroad company to construct a farm crossing, will be enforced against a subsequently appointed receiver of the lessee of such company.
    2. Same.
    It is no defense to such application that the receiver has no means with which to comply with the requirements of the judgment; if the bond' holders are unwilling to furnish the means, possession of that portion of the road passing over the applicant’s land should he surrendered.
    Appeal from order of the general term of the supreme court in the second judicial department, which affirmed an order of special term requiring James K 0. Sherwood, as receiver of the Philadelphia, Reading and New England Railroad Company, the lessee of defendant, to build a certain undercrossing for the convenience of plaintiff’s farm, in accordance with a judgment in the above-entitled action.

      Milton A. Fowler, for app’lt; C. B. Herrick, for resp’t.

      Modifying and affirming 63 St. Rep. 396.

   Haight, J.

This action was brought to compel the defendant to provide a farm crossing under the line of its railroad on the lands of the plaintiffs, and such proceedings were had therein that judgment in such action was rendered in favor of the plaintiffs on the 26th day of February, 1892, in which it was adjudged that such crossing be. forthwith constructed. An appeal was thereupon taken from such judgment to the general term of the supreme court, second department, in which court the judgment was affirmed on the 28th day of July, 1892, from which an appeal was then taken to this court in which that judgment was affirmed. After the entry of the judgment and the affirmance thereof by the general term, and on the first day of August, 1892, the defendant leased its railroad and property of every description to the Philadelphia, Reading and New England Railroad Company, for the term of three hundred years. By the terms of the lease it was provided that the lessee shall assume and indemnify the defendant against all claims and suits arising out of or in any way connected with the use and operation of the demised premises during the continuance of the lease. Thereupon the Philadelphia, Reading and New England Railroad Company entered into the possession of the defendant’s railroad and property and commenced the operation thereof. On or about the 19th day of August, 1893, an action was commenced in the supreme court of Dutchess county by the Guarantee Trust and Safe Deposit Company, as trustee, against the Philadelphia, Reading and New England Railroad Company for the foreclosure of a mortgage upon the property and franchises of that company, and such proceedings were had therein that James ¡K. 0. Sherwood was appointed receiver of the rents and profits of the Philadelphia, Reading and New England Railroad Company, and as such he entered into possession of the defendant’s railroad and property and continued the operation thereof as such receiver. The respondents thereupon served copies of the judgments entered in their favor upon him, with a demand that he proceed without delay to carry into effect the requirements of such judgments, and construct the crossing as therein provided. He having neglected to perform the requirements of such judgments, a motion was noticed at special term in which the defendant and the receiver were required to show cause why an order should not be made putting the plaintiffs into possession of the lands formerly owned by them and taken by the defendant for its railroad, and over which the railroad had been constructed; and enjoining the de■fendant corporation and each and every of its officers, agents and servants, and the receiver, from in any manner making use of or running cars, engines or trains upon or over that portion of the lands of the defendant’s railroad constructed upon the lands of the plaintiffs, until the requirements of the said judgments shall have been ■complied with, or for such other or further relief or order in respect thereto as to the court may seem just. Upon the hearing of such motion the special term ordered that the said receiver “ do proceed forthwith to comply with all the requirements of the said judgments, and to make a crossing for the said plaintiffs under the line of said railroad in the manner therein directed.” This order having been affirmed in the general term, is now brought here for review.

In the affidavits read in opposition to the motion, it is said that the Philadelphia, Reading and New England Railroad Company has no means, nor has it at any time since the entry of the judgment based upon the decision of the court of appeals had any means with which to comply with such judgment by building the crossing as aforesaid. Nor has it had any such means to furnish to the said receiver with which he could build the same.” It is -contended on behalf of the appellant that he is simply a receiver ■of the rents and profits in aid of the bondholders in the foreclosure action, and that he has no power to expend a dollar, except as ordered in that action ; that the Guarantee Trust and Safe Deposit Company, representing the bondholders in that action, had no notice of the proceedi ugs in this action, or an opportunity to be heard herein.

We recognize the force of this contention, and the receiver may not have the money at his disposal, or the power to comply with the order as made, and yet we think the plaintiffs are entitled to relief. The Philadelphia, Reading, and New England Railroad Co. has obtained the possession of the defendants road. Such possession has been passed over to the receiver, who is operating the same for the benefit of the trustee of the bondholders. The plaintiffs have the right to have their judgments executed, and if the bondholders are unwilling to furnish the means with which to execute the judgments, they should surrender up possession of the ■road which is now being operated in their interest by their receiver.

Full justice may be done to the parties by a modification of the ■order. The order appealed from should be modified by adding thereto, after the words “therein directed,” the following: Or, in default thereof, after the expiration of six. weeks, or such other time as the supreme court at special term may allow, the receiver surrender to the plaintiffs the possession of the premises described in such judgment, formerly owned by them, over which the defendant’s railroad has been constructed : and that the receiver and the said defendant corporation, and each of them, their officers, agents and servants, be thereafter restrained from in any manner making use thereof, until all of the requirements of the said judgments shall have been complied with, and as so modified affirmed, without costs of this appeal to either party.

All concur. Ordered accordingly.


text:
    Hilton Bridge Construction Company, App’lt, v. The New York Central and Hudson River Railroad Company et al., Resp’ts; Louis V. Booream et al., Intervening.

      (Court of Appeals,

      Filed March 19, 1895.)

    1. Mechanic’s lien—Act of 1885.
    Where the owner has made payments to his contractor, though without fraud or collusion, before they are due under the terms of the contract, such payments cannot he allowed to the owner.
    3. Same—Parties.
    In a case under the Mechanic’s Lien Law, where the plaintiff’s cause of action depends upon the payments made by the owner to the contractor before they were due under the terms of the contract, the contractor should be brought in as a party.
    3. Same.
    Where, in such case, the contractor company has passed into the hands-of a receiver, the latter may be made a party as the representative of the company.
    4. Same.
    So, the assignee of the contractor should be made a party in such case.
    5. Same.
    But the attorneys for the contractor are not proper parties defendant.
    Appeal from order of the general term of the supreme court in the judicial department, which affirmed an order of special term directing plaintiff, by supplemental summons and complaint, to bring in other parties defendant.

      Edward Winslow Paige, for app’lt; Thomas Spratt, for resp’t; Conger & Orvis, for resp’ts.

      Modifying and affirming 65-St. Rep.

   Peckham, J.

This is an equitable action to foreclose a mechanic’s lien brought by the plaintiff, the Hilton Bridge Construction Company, against the Grouver'neur and Oswegatchie Railroad Company and the New York Central and Hudson River Railroad Company and Benjamin N. Sherman and Ike Kinne, the two latter being subsequent lienors. The Central Hudson made a motion at special term to have the -receivers of the Moffett, Hodgkins and Clarke Company and Mr. Louis Marshall, as assignee of the same company, and also Messrs. Conger and Orvis, attorneys of the same company, made parties defendant. The motion was granted at the special term and affirmed at the general term, and from the order of affirmance the plaintiff appeals here. From the papers it appears that the plaintiff brings its action against the two railroad companies to foreclose a mechanic’s lien for bridges' furnished in the construction of the Oswegatchie railroad under the following circumstances: The Oswegatchie Railroad Company was incorporated for the purpose of building and using a railroad between certain points in the county of St. Lawrence and it made a contract with the Central Hudson Company by which the latter company contracted to build the railroad and then to lease the right to use the same as a railroad during the corporate existence of the company. The Central Hudson Company then entered into a contract with the Moffett Company to build the road, by which the latter contracted, first, to acquire all the right of way for the railroad; second, to build the railroad and furnish all the materials except the rails, and; third, to assign to the order of the Central Hudson Company all the capital stock, etc., of certain railroad companies named in the contract. The Central Hudson Company agreed to furnish all the rails and to pay the Moffett Company the sum of $241,000 in cash in four payments of some $38,000 each, and the balance, some $86,000, when the Moffett Company had fully performed its contract in all its parts and when it was shown that no mechanics’ liens or other liens for work or labor done or materials furnished under the contract had been filed. The plaintiff was employed by the Moffett Company to build the necessary bridges, and .they were completed by the plaintiff on the 15th of June, 1893. On the 2d of June, 1893, the plaintiff alleges that none of the three things which the Moffett Company had agreed to do had been completed, nevertheless the Central Hudson Company had made to it the four payments of $38,000 each and twenty-six thousand odd dollars on account of the last payment of $85,000, and the plaintiff alleges that this last payment of $26,000 was made in advance of the terms of the contract, as no portion of the $86,000 last to be paid was due until entire performance of the contract by the Moffett Company and until it was known that no mechanic’s lien was or would be filed. As the Moffett Company had thus failed to fulfill the first contract, the Central Hudson and the Moffett Company made another and second one on the second of June, 1893, under which certain payments were to be made and by which the Central Hudson was to advance and pay to the Moffett Company $20,000 on account of the- last payment mentioned in the first contract as soon as it was satisfied that the right of way had been procured. The Central Hudson thereupon took possession of the railroad, completed it and began running it on the 1st of August, 1893, and under the second contract it advanced $15,000 instead of the $20,000 provided for, although the right of way had not been at that time all procured, and to clear up what was left undone would cost according to plaintiff’s papers over $1,500, and according to the papers used on this motion over $4,700. The plaintiff alleges that this last payment of $15,000 was also made in advance of the terms of both contracts, and that no part of either payment was due when made.

The success of the plaintiff, therefore, depends upon the existence of the fact that payments were made by the Central Hudson Company to the Moffett Company in advance of the terms of the contracts as claimed. The Central Hudson Company admits that it has overpaid the Moffett Company, and that nothing is due to that company under either of its contracts, and that it took possession of the Oswegatchie railroad and completed it as stated at its own expense and that the Moffett Compan}' is really in its debt. Unless, therefore, the plaintiff can establish this fact of payment of money before it was .due under the terms of the contract by the railroad company to the Moffett Company, it cannot maintain this action. The plaintiff says that this fact is admitted by the parties to the action and such admission is all that is necessary to establish this claim.

Under the lien act of 1885 (Chap. 342) it has been held in this court that where the owner has made payments to his contractor, although without fraud or collusion, before they are duo under the terms of the contract, such payments cannot be allowed to the owner. Post v. Campbell, 83 N. Y. 279, 283. The admission of the Central Hudson Company as to the fact of such payments while good as against itself in favor of the plaintiff, does; not and cannot bind the Moffett Company, and this action, if it should proceed to judgment without the presence of the Moffett Company, would be no obstacle to the latter company in an action which it might bring against the Central Hudson Company to obtain payment for a balance it might claim under its contracts with that company. The judgment in this action would not bind the Moffett Company because it is not a party to it. The fund out of which the plaintiff seeks satisfaction of its lien arises by virtue of alleged payments made on these contracts before they were due, and the Moffett Company has an interest in that question. If the plaintiff is right as to its claim as to payments made by the Central Company before they were due to the Moffett Company under the terms of its contracts, the amounts of such payments cannot be allowed the Central Company and it is liable to pay the same to the plaintiff to the amount of its lien. It ought not to be subjected to the hazard of a controversy with the Moffett Company upon this same question and of making a payment to it based upon the fact that payments to the Moffett Company had not theretofore been made before they were due and that it still owed the Moffett Company upon these contracts. If sued separately .the Central Co. runs the risk of paying twice. The two claims are inconsistent in fact, and if the Central Company is liable to pay the plaintiff on the ground claimed, it is not liable to pay the same to the Moffett Company. Ought not these two liabilities, arising out of one and the same transaction, to be heard and decided together in this equitable and statutory suit and the Central Company thus saved from possible complications. If not made a party here, of course the Moffett Company is not bound bv any judgment that may be entered in this action; but has not the Central Company a right to ask the court to direct that the Moffett Company shall be brought in as a party so that it may be bound by the adjudication in this case? Taking into consideration the fact that this action is of an equitable nature, brought (under a special statute which gives the right) to foreclose a lien upon a railroad company, the existence and amount of which lien is to be determined, not alone by the amount due the plaintiff from the Moffett Company, but also by the existence of the fact that payments were made by the Central Company to the Moffett Company before they were due, we think it cannot be said that it was improper to join the Moffett Company osa defendant in this action, not for the purpose of obtaining a judgment by the plaintiff against the Moffett Company (unless it desire it), but for the purpose of binding the Moffett Company, by the determination in this action of those facts out of which the plaintiff’s lien is to arise, and thus to save the Central Company from a possible second payment on a judgment in another action in regard to the same subject. The fact that a complete determination might be had of the question between the plaintiff and the Central Hudson Company on the allegations of the plaintiff admitted by that company is not an answer to the objection which the Central Hudson Company sets up, that unless the Moffett Company be made a party the adjudication herein will not bind that company, and that company, in a subsequent action brought against the Central Hudson Company to obtain payment of moneys it alleged to be due, might also obtain a judgment and secure a payment from the Central Hudson Company by reason of a different determination as to the actual facts arising out of this same transaction and subject-matter, which had been already determined the other way in this action without the presence of the Moffett Company.

In the case of Chapman v. Forbes, 123 N. Y. 532 ; 34 St. Rep. 351, we held that in an action at law, pure and simple, a plaintiff could not be compelled to bring in other parties where the determination of the subject-matter involved in the action itself could be completely had between the original parties, and where the judgment in that action would form no obstacle to any claim which a third party might thereafter make against the defendant in that action. In an action at law of that nature, and in regard to the circumstances of that particular case, we held that the sections of the Code (§§ 452 and 447) did not give to the defendant the right to have another party brought in as a party defendant where his presence was not necessary to a complete determination of their rights as between the two parties to the action.

The case arises under the Mechanics’ Lien law, and it is an action peculiar to itself and one in which we think it proper that the contractor should be brought in where the plaintiff’s cause of action depends upon the payments made by the owner to the contractor before they were due under the terms of the contract. The existence of the fund upon which the plaintiff depends for its cause of action thus depends upon and arises out of the very subject-matter of the contracts and payments under them, and in such case we think it but fair that the litigation should be ended on that subject in one action. Hence, if the Moffett Company were in existence it would be proper and appropriate to cause it to be brought in as a defendant. As this cannot be done the receivers may be made parties as representatives of the company. It appears that when the plaintiff first commenced this action it made the Moffett Company a party defendant, and after the service of the summons and complaint on the railroad companies, but before service upon the Moffett Company had been made, the latter company became insolvent and went into the hands of receivers. A few days prior to that time the Moffett Company assigned to Mr. Louis Marshall all the amount which might be found due to it under the contracts which it had with the Central Hudson Com-pony as collateral security for professional services performed by the assignee and for money loaned to that company. At the time of the appointment of the receivers the ordinary injunction order was issued by the court, enjoining al] persons from commencing any suit against the company and providing for proving any claims against the company before the receivers. Thereupon the plaintiff amended its summons and complaint by striking out the name of that company as a party defendant. The railroad companies put in their answers and set up the fact of the appointment of the receivers for the Moffett Co. and the assignment by the company to Mr. Marshall, and alleged that they were proper and necessary parties to the action, without whose presence a complete determination of the controversy could not be had. The same principle which permits the court to direct the bringing in of the receivers of the company would prevail, as it seems to me, in regard to Mr. Marshall. The company has assigned to him, as is alleged, all the moneys which might be found due and owing to that company from the defendant, the Central Hudson Company. An admission on the part of the Central Hudson Company and of the Moffett Company as to that amount would not bind Mr. Marshall. If that assignment be a valid and subsisting one, which I assume it to be, Mr. Marshall stands to that extent in the place of the company, and whether there is any amount due the company, and hence, due to him, depends upori the state of facts which I have already alluded to when speaking of the propriety of making the Moffett Company a party. I do not say that he is a necessary party, but I do think that he is a proper party under the circumstances, so that Mr. Marshall shall be bound by the determination in this action of those facts out of which may aj-ise the liability of the Central Hudson Company to pay the Moffett Company any further moneys under either of these contracts above alluded to. Otherwise, as the assignee of the Moffett Company, Mr. Marshall might bring an action against the Central Hudson Company and make the same claim that his assignor had or might have done. Which of the two, the receivers or Mr. Marshall, may be entitled to any moneys under those contracts, or whether either is entitled to anything, is matter to be determined herein after a consideration of all tbe facts to be proved in the case.

The court, in addition to directing the above parties to be brought in, also directed that the attorneys for the Moffett Company should be made parties defendant. The facts are as follows: As the Moffett Company had engaged in its contract wnth the Central Hudson Company to obtain the rights of way, among other things, for the purpose of building the Oswegatchie railroad, the Moffett Company retained Messrs. Conger and Orvis to attend to that part of the work, and they have under that retainer done a large amount of very valuable work for that company. They have procured the right of way to a very large extent and have in their possession contracts, title deeds and other papers relating to the business upon which they claim, and, so far as appears from the record, they have a lien for their professional services. They allege that there is still due them from the Moffett Com-party a sum of about $2,000, and the Central Hudson Company claims that they are necessary and proper parties to be made defendants in this action, and the courts below have so held. We cannot see upon what ground the decision can be upheld. They have no lien or claim of any kind upon this fund in any event. Whatever amount may be found due, if any, from the Central Hudson to the Moffett Company, they have no title to or lien upon such amount. If we assume that the Moffett Company has not performed its contract with the Central Hudson and did not obtain the right of way and give to the Central Hudson all the necessary proofs and title deeds in regard to it, and that - the Central Hudson Company will have to pay the attorneys in order to obtain the necessary muniments of their title, and may, therefore, deduct that amount from any sum which the Central Hudson Company might otherwise owe to the Moffett Company, there is still no reason for making the attorneys parties to this action. If the Central Hudson pay that sum to the attorneys, the latter have no further interest in the matter, and we may assume that what the Central Hudson pays to the attorneys, it may claim the right to deduct from any amount due on the contracts with the Moffett Company. With that question the plaintiff has nothing whatever to do, no interest in it, no right to be heard in regard to it, and its own right can be neither increased nor diminished by any determination in regard to that question. Its rights depend upon the overpayment already made at the time when its lien was filed. If that fact cannot be established, this cause of action goes; if it can, this action is so far proved. In neither event have these attorneys any right to appear in the action, if made defendants, they would have no right to litigate the question of the amount (if any) due from the Central to the Moffett Company, because it would have no bearing upon any of their rights or claims against the Moffett Company. The amount due that company might be increased, but the attorneys would have no lien upon a dollar of it, and, if diminished, their rights would be totally unaffected. In no aspect of the case can we see any propriety m their being made parties. The decision of the court below directing them to be brought in was not matter of discretion and was legal error.

The order must, therefore, be modified by striking out the names of the attorneys in the directions given to bring in parties, and, as modified, the order should be affirmed, without costs to either party in this court.

All concur, except Finch and O’Brien, JJ., not sitting.

Ordered accordingly.


text:
    Agnes Cameron, as Administrator, etc., Resp't, v. The New York Central and Hudson River Railroad Company, App’lt.

      (Court of Appeals,

      Filed March 22, 1895.)

    1. Master and servant—Co-servant—Constructive notice.
    There is no arbitrary rule of law which charges the master with constructive notice of the negligent omissions of duty on the part of a co-servant, after the lapse of a certain time, under all circumstances.
    2. Same.
    When the negligence of a co-servant in performing his work is of such.a character as to leave traces or evidence of it in the work itself which can be seen or discovered by reasonable examination, the master might be chargeable after it had continued for such a length of time as to render it reasonable to assume that he either must have known of the omission of
    duty, or could have known of it by the exercise of reasonable care, or where the incompetency of the servant is frequently displayed under ■>. eye and observation of some officer or foreman who represents the carpi -ratian or had the power to discharge him
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict, also affirmed an order denying a motion for a new trial.

      F. L. Westbrook, for app’lt; John M. Gardner, for resp’t.

       Reversing 60 St. Rep. 373.

   O’Brien, J.

On the 2d of May, 1891, Allen Cameron, the plaintiff’s son and intestate, about twenty years of age, received injuries while in the defendant’s service as a bralteman on the. West Shore branch of its road, at Marlboro station, which subsequently resulted in his death.

There is no dispute in regard to the facts which describe the accident. A train going north, at a high rate of speed, rán into an open cross-over switch upon the south-bound track and came in collision with some standing freight cars, behind which deceased was at work, causing them to be suddenly and violently moved back over him, resulting in the injury which subsequently produced his death. The accident would not have occurred but for the fact that the switch had been left open and unguarded. That this situation was solely due to the negligence of a fellow-brakeman, one Norton, is also undisputed. The deceased and Norton were, on the day of the accident, working upon the same tram, which was a freight train going south, and which had stopped at the station to take on some other cars. It was not claimed that the defendant was guilty of any negligence in employing Norton. He had been in the service about a year, as had also the deceased.

The plaintiff, however called Norton as a witness, and he testiged that for about four months prior to the accident he was accustomed to habitually violate the defendant’s rules in leaving switches open and unguarded. It was not claimed that any officer or person representing the defendant had any actual know: ledge of this conduct. On the contrary, the division superintendent, the roadmaster, yardmaster and dispatcher of trains, all of whom had power to employ and discharge help, testified that they never heard of such conduct on the part of Norton, and that from inspection, observation and report they supposed he was a competent and faithful man, and never heard of his violation of any rules.

The only question submitted to the jury was whether the defendant was not chargeable with negligence.in failing to discover Norton’s habitual neglect and violation of the rules and in omitting to discharge him. It is also conceded that the defendant had enacted and promulgated proper rules and regulations for the government of its servants and employees. It will be sufficient to refer to two of these rules. Buie four provides as follows : “Every employee of the company whose duties in any way are prescribed by these rules must always have a copy o£ them on hand, and must-be conversant with every rule. He must render all the assistance in his power in the carrying of them out; and must report any infringement of them to the head of his department.” E-cJe 117 provides that “whoever opens a switch shall remain at it. until it is closed, or until he is relieved by some competent employee.” It was Horton’s violation of this last rule that caused the accident. He opened the switch and left it open and unguarded, and the north-bound train entered upon it, thus producing the collision which resulted in the death of his fellow-brakeman. The omission of duty did not proceed from ignorance or want of instruction since Horton was familiar with the rules and had a copy of them in his possession. There is no arbitrary rule-of law that charges the master with constructive notice of the negligent omissions of duty on the part of a co-servant, after the lapse of a certain time, under all circumstances. The doctrine of constructive notice is founded upon reasonable and just considerations, and the mere lapse of time is not always the test of negligence on the part of the master. If a defect exists in the appliances furnished the servant for doing his work of such a character and for such a length of time as to enable the master to discover and remedy it by reasonable vigilance, inspection or examination, then the law will imply notice since he ought to know what can thus be ascertained. The same rule will apply where-the place furnished to the servant to do his work becomes defective, dangerous or unsafe by use or otherwise. So when the negligence of a co-servant in performing his work is of such a character as to leave traces or evidence of it in the work itself which can be seen or discovered by reasonable examination, the master might be chargeable after it had continued for such a length of time as to render it reasonable to assume that he either must have known of the omission of duty, or could have known of it by the exercise of reasonable care, or where the incompetency of the servant is frequently displayed under the eye and observation of some officer or foreman who represents the corporation or had the power to discharge him.

But how was the master in this case to know that Horton habitually violated the rules for his own protection and that of his co-servants ? His work was performed on freight trains running over a long line of railroad, with little, if any, opportunity for any officer or representative of the company to watch or observe him at any one point. He had sufficient ability and intelligence to do his work, and his omissions of duty were purely willful or thoughtless. ' It would be manifestly unreasonable and unjust under such circumstances to impute negligence to this defendant for the sole-reason that during four months it failed to detect his delinquencies. The defendant had given him by its rules plain and simple instvuctions to govern his conduct with respect to the switches, and there was no reason to suspect that they would be disregarded, since it was quite as convenient for him to obey as to violate them. Moreover, it had in these same rules invited and requested all of his co-servants to make prompt report to the company of any neglect or disobedience of the rules on his part, and no complaint had been made. It was reasonable to assume that his co-employees, whose lives might be endangered by his neglect, would observe and report his omissions of duty,, if any, and if they failed to observe any how can it be said that the defendant itself was in fault for not discovering what his co-servants themselves had not discovered? The negligent acts of Norton took place while he was working on the same train and in a like capacity with the deceased. It is more reasonable to suppose that they were done in his presence, or under his observation, than to imply knowledge on the part of the defendant, and if it can be said that the deceased knew of these omissions of duty on the part of his fellow-'brakeman, and failed to report them, he might be regarded as voluntarily assuming the risks and dangers incident to his association in a common work with an incompetent co-servant. There is a manifest inconsistency in assuming that the officers or representatives of the defendant knew, or could have known, of Norton’s violation of the rules, and at the same time that the deceased did not. On the evidence in the case it is true that the defendant’s servant was unfaithful, and that his want of care resulted in the death of the plaintiff’s intestate. But the defendant cannot be made liable for his negligent act, unless it was at fault in selecting him for the work, which is not claimed, or in adopting such means as ordinary prudence and care would dictate to secure his fidelity, and we are unable to perceive what more it could have done, unless it employed other men to watch his conduct, and that would be plainly an unreasonable requirement.

The learned court below has upheld the verdict in this case upon the authority of three recent cases in this court, which it was supposed sustained the principle upon which the recovery proceeded. Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y. 557 ; 34 St. Rep. 214; Whittaker v. D. & H. C. Co., 126 N. Y. 549 ; 38 St. Rep. 523; Wall v. R. L. & W. R. R. Co., 54 Hun, 454; 28 St. Rep. 132; affd., 125 N. Y. 727; 35 St. Rep. 995.

There is, we think, a clear distinction between these cases and the one at bar. In all of them there was evidence from which the jury could have found actual notice or knowledge of the incompetency of the co-servant on the part of the master. This case rests solely upon the doctrine of implied or constructive notice. The jury was permitted to find that the defendant was guilty of negligence in failing in some way to ascertain the fact that Norton had habitually violated the rules. In view of the conceded fact that there was no fault in his original employment, and that the defendant had adopted and promulgated suitable rules and had given proper directions for the regulation of his conduct, which it had, under the circumstances, and so far as appears, no reason to suppose would be or were disregarded, the judgment has no reasonable or j ust ground upon which to rest. The habitual and intentional disregard by Norton of the rules was, under the circumstances, entirely consistent with the exercise by the master of reasonable care , and in fixing responsibility for the results of the accident, that must be the only measure of duty To hold that it was bound in any event, after the lapse of a reasonable time, to know the delinquincies or habitual mistakes of all its servants or employees, would be, under the circumstances, to establish a rule unreasonable in itself, and exceedingly difficult, if not impossible, under all circumstances, of any fair or just application.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur (Bartlett J., in result).

Judgment reversed.