author: Finch, J.

text:
    Mary Agnes Potter, Resp’t, v. Thomas L. Ogden et al., App’lts.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Executors and administrators—Liability of sureties on bond.
    The sureties, before the Code, were liable for a devastavit of the admin- \ istrator, and are liable for exactly the same thing now, the mode of proving it alone having been changed.
    2. Same—Infant—Service upon.
    The sureties in this action claimed that the distributive share of plaintiff, an infant of seven years, was in the hands of M., their principal, on May 2, 1877, ami on that day, by order of the surrogate, was transferred by M., as administrator, to himself as general guardian of plaintiff. The process by which a special guardian was appointed for plaintiff in this proceeding was personally served on her in February, i874, in Canada, where she was attending school, seven days after the surrogate’s clerk had been appointed as her special guardian by the surrogate, and publication was made in two papers in this state without any direction by the surrogate, and no copy was mailed to her. Held, that there never was any valid service upon the infant at any time, and the decree against her was absolutely void, and no power to appoint a special guardian ever accrued.
    3. Same—Appointment of guardian.
    _ On the trial_ of this action defendant produced a petition originally signed by plaintiff’s father, and asking that he be appointed as her general guardian. This had been filed in the surrogate’s court in 1878, but lr\d the file mark stricken off and the name of the guardian changed to that of M., the date to 1874, and resworn to. Two months thereafter M. began his final accounting, and the decree thereon stated that the minor had no general guardian. There were also unsigned entries in the surrogate’s books as to appointments of both parties as guardians, &c. Held, that as, under the facts disclosed, the sureties on the alleged guardian’s bonds could not be held liable, M. was never lawfully appointed general guardian of the plaintiff.
    Appeal from judgment of the supreme court, general term, first department, directing a new trial, the complaint having been dismissed and exceptions ordered to be heard in the first instance at the general term.

      John E. Parsons, for app’lts; John D. Kernan, for resp’t.

       Affirming 47 St. Rep., 190.

   Finch, J.

In the childhood of the plaintiff and when she was about six or seven years old, her grandmother died, leaving an estate, the infant’s distributive share of which was something over ten thousand dollars. The law, as usual, undertook to preserve it for her in pity for her incapacity, but was unfortunate both in the choice of its agents and the ultimate results of the control which it asserted. The child, grown up to womanhood, asks the court, whose ward she has been, for the property which it kept from her hands, and is told that it is utterly lost and wasted, that possibly one of two groups of sureties may be liable for it, and that she is at liberty to ascertain which and sue for her inheritance. I approach the questions involved, therefore, impressed with the abstract justice of the plaintiff’s demand, and with a conviction in which we all share .that somebody is and should be responsible to her for the restoration of her property.

Her grandmother’s estate passed into the hands of John W. Mills and Jane E. Kelemen as administrator and administratrix, who were duly appointed by the surrogate of Westchester county on June 10, 1872. They gave a joint and several bond in the usual form conditioned for the faithful performance of their duties, upon which Samuel E. Lyon, defendant’s testator, became liable as one of the sureties. Mills died in 1884, insolvent, and unable to pay his debts, and in September of 1889, Charles A. Hall was appointed administrator of his estate, and after duly qualifying entered upon the performance of his duties. In 1890 the plaintiff who had become of age, called him to account for the unadministered estate and assets of her grandmother, Abigail Hall, for which Mills was alleged to have been responsible at the date of his death j and a decree was entered in the surrogate’s court of Westchester county, in and by which it was found and adjudged that Mills died before the estate of Abigail Hall in his hand was fully administered ; that there was due and unpaid to the plaintiff from Mm as administrator the sum of $11,188.23, on the 2d day of May, 1877; that the same was never paid over or accounted for by Mm as such administrator, and that after his death his administrator bad and could find no assets either of the Hall estate or of the intestate, save about $100 in household furniture. The accounting thus showed that the estate of Abigail Hall and that of Mills were each a total w;reck. The decree formally adjudged payment to the plaintiff out of the assets of Abigail Hall, deceased. The plaintiff testified that nothing had ever been paid to or received by her on account of her distributive share, and thereupon rested her case. She had fully established prima facie a right of recovery against the sureties. The appointment of Mills as administrator, the execution of the bond, his receipt and possession of the estate, the amount of his liability to plaintiff for her distributive share, his neglect to pay it over, his total waste of the whole fund and his own utter insolvency, had all been established by competent evidence when the plaintiff rested and showed a devastavit for which the bondsmen of the administrator were liable.

The burden of a defense was thus shifted over to them, and they met it in two ways : First, by an attack upon the sufficiency of the method adopted to prove a devastavit; and second, by the affirmative defense of payment to the general guardian of the infant.

It was contended that the provisions of the Code of Civil Procedure, which were followed and adopted by the plaintiff in establishing a devastavit have no application to a case where the bond was given before the enactment of the Code, and when another and different process was required. The change, however, was a mere alteration of the remedy affecting only the practice to be pursued, and the method in force when the remedy is sought is the one to be followed, unless the statute enacts to the contrary. There is no vested right in a rule of evidence. People ex ret Miller v. Ryder, 124 N. Y., 500; 36 St. Rep., 468 ; People v. Turner, 117 N. Y, 233; 27 St, Rep., 158,. and the change in the present case is merely in the proof necessary to establish a devasta, vit. Under the old practice, in the lifetime of the administrator, it was the return of a sheriff that no property could be found to satisfy the execution against him; under the new, after his death, it is the decree of- the surrogate on the accounting of the successor. But without disputing the general doctrine, the contention here is that § 2606 of the Code, under which this action is brought, has no application to the bond in controversy, because § 2610 expressly enacts: The provisions of this article apply to an executor, administrator or guardian to whom letters have been issued, and to a testamentary trustee whose trust has been created before this chapter takes effect, except that it does not affect in any manner the liability of the sureties in a bond executed before this chapter takes effect.” Of course, as the general term suggests, the exception would repeal utterly the provision to which it is annexed, if by “ liability ” was at all meant the method of enforcing such liability. There were in the article some new provisions apparently extending the liability of executors and administrators, to meet which the exception was deemed necessary, but the terms of § 2606 relate wholly and exclusively to the remedy, and in no manner alter the original liability upon the bond. The sureties, before the Code, were liable for a devastavit of the administrator, and are liable for exactly the same thing now, the mode of proving it alone having been changed. Before the Code, the return of an execution nulla bona issued in the lifetime of the administrator would have been sufficient evidence of a waste of the assets; after his death, instead of a suit in equity, a decree against the successor in administration is given the same effect. In both cases, the person who would have had the assets if there had been no waste, is shown not to have them, and whether that appears from the return of a sheriff in the lifetime of the delinquent, or from the accounting of his successor, after his death, the result is the same, and one is no more conclusive than the other. It is a question only of remedy, and of procedure.

But it is further said that the surrogate’s decree against the successor of Mills, was insufficient, because it decreed payment out of the assets of Abigail Hall. Its office was to determine whether at the date of Mills’ death any such assets remained. If they did, they were presumed to have come to the hands of the successor, and a decree on his accounting that they had not was a necessary preliminary. Perkins v. Stimmel, 114 N.Y., 359 ; 23 St. Rep., 657. Such fact the decree adjudged and determined, and beyond that, established that there were no assets of either estate.in the hands of the administrator of Mills. So long as there was nothing to reach, and the decree showed that fact, a further formal judgment, in addition to the substantial one against the assets of Mills, would have been useless for any purpose.

Beyond these special objections lies the real field of the controversy. The sureties claim that the distributive share of the plaintiff was in the hands of Mills, as administrator, intact and undiminished, .on the 2d day of May, 1877, and on that day in pursuance of the order of the surrogate was transferred by himself as administrator to himself as general guardian of the plaintiff, whereby he was discharged as administrator and his sureties in that character released, and that he then became further bound as guardian so that the plaintiff’s proper and only recourse is upon the guardian’s bond. That is, practically, a plea of payment, a defense that the debt due plaintiff from the administrator was dischargedby payment to her legally appointed and properly author > ized representative. The burden of proof necessarily rests upon the surety. He stands charged and must establish his discharge by proof of the alleged payment or fail of-his defense. His reliance is upon the decree of the surrogate of Westchester county rendered upon the final accounting of Mills. There is a reference to that proceeding in the complaint which recites its existence as a matter of fact, but makes no admission of its authority or force as an adjudication. The statement of his account signed by Mills, was available to the plaintiff as an acknowledgment by him of the amount due to her, without at all involving any responsibility for the surrogate’s ultimate decree. When offered as an adjudication binding upon the plaintiff, it was objected to as immaterial and incompetent, and not binding on her unless it is shown that jurisdiction over her had been acquired, and the same objections urged upon this appeal. The surrogate’s court is one of limited and special jurisdiction, and has, and can assert it only in accordance with statutory provisions, except as to powers properly incidental thereto.

The plaintiff, at that time about seven or eight years old, was represented on the accounting by William M. Skinner, the surrogate’s clerk, an act very properly prohibited by later legislation, but his appointment was nugatory and ineffective unless first the infant was brought into court and jurisdiction over her acquired by the service of a citation in the manner prescribed by law. Ingersoll v. Mangam, 84 N. Y, 622 ; Davis v. Crandall, 101 id., 321; 1 St. Rep., 64; Crouier v. Crouter, 133 N.Y., 56; 44 St. Rep., 315. In each of these cases it is explicitly' held that there is no jurisdiction to appoint a special guardian for an infant until such infant has been brought into court by the service of process in the manner required by law; until then there is no jurisdiction over the person of such defendant, and the prior appointment of a special guardian is an absolute nullity. The record in this case shows that the appointment of Skinner was made on the 19th day of February, 1874. That was the day on which the citation was issued, for that is the date which it bears. It was personally served on the minor in Canada on February 25, 1874, and proof of service sworn to three days later; and so the appointment is shown,, by the record, to have been made before any service upon the infant, and when the court had acquired no jurisdiction over her. If it be said that the appointment, though premature, was preliminary and became good when filed and after due service on the minor, there are two answers. We have never, so far as I can discover, gone further in such a case than to hold the decree voidable at the election of the minor, Crouter v. Crouter, supra, and that election was made by her when, for the first time, the decree, in its original form, was sought to be used against her. The clause in it injurious to her was stricken out during her minority, and she had no occasion to resist it until it was sought to be used adversely. But a second answer is, that there never was any valid service upon the infant at any time, so that as against her the decree was not merely voidable, but absolutely void, and no power to appoint a special guardian ever accrued.

The proof of service contained in the record is as follows: First, an affidavit of John Hall, Jr., who describes himself as a brother of the plaintiff, that he served the citation on Mary Agnes Hall by delivering a copy to her and showing her the original at Camden, in the province of Ontario, Canada, where she was temporarily attending school, and that her residence was with her father in the county of Oneida, in this state; second, affidavits of publication in a newspaper printed in Westchester county for a period of five weeks, and in the state paper at Albany for three months. Ho other evidence or proof was given, and the asserted jurisdiction must stand or fall upon that which the record discloses. I think it was clearly insufficient for several reasons. Service upon the child in Canada was inoperative because made outside of the jurisdiction and in a foreign country to which the process of the court could not run. Such a service is void and null at common law, Litchfield v. Burwell, 5 How., 346; Jones v. Jones, 108 N. Y., 424; 13 St. Rep., 838, and never available except where the statute explicitly permits it as such and makes it effective by special enactment or authority. The statute in force on the date of this service gave no such authority. 3 R. S. (6th ed.), 101, § 74. It merely directed a personal service, which, of course, could only mean within the jurisdiction, since no permission was given to go outside of it and validating the otherwise void service. Hor was there any proof of service of the copy of the citation upon the infant’s father or any person with whom she resided. To hand a citation to a child of tender years and non sui juris, and on that to found a jurisdiction, is .never permissible. When this citation was first issued, the rule in equity and at law required service upon some one other than the child and standing as its protector, of sufficient discretion to understand and heed the mandate, Knickerbacker v. De Freest, 2 Paige, 305; Code (1864), § 134, and the rule of the surrogate’s court was to follow the chancery practice. Matter of Whitehead, 3 Dem., 227. But that which was the well understood and lawful method ) was before the return day of this citation explicitly commanded by statute.

-The act of 1874, chap. 156, passed April 10, 1874, and taking effect immediately, enacted that minors were to be served and citations issued and special guardians appointed in the same manner as required upon the probate of wills, and in no other way. What that way is appears by § 55 of the article relating to such probate, and requires not merely service upon the child, but also upon the parent or guardian, or if there be none, upon the person with whom the infant resides. There is no proof of any such service. The unsworn memorandum appended to one of the papers and signed “ J. W. M.,” is, of course, neither proof nor evidence. If somebody had told the surrogate the same thing in the street it would be just as valuable to confer jurisdiction. No one knows who put it where it appears, or when it was made, or that the surrogate ever saw it, and its date was unfortunate, for it was four days after the special guardian had been appointed. It is quite enough, however, that it was not proof upon which the officer could act. But it is suggested that there was a sufficient service by publication. The three months notice in the state paper affects only non-residents and not a resident of the state who happens to be temporarily absent. On an accounting it was provided by § 74 N of the earlier statute, that the citation should be served upon the parties living in the county of the surrogate personally at least fifteen days before the return day, upon those living out of that county or whose residence was unknown either personally or by publication in a paper of the surrogate’s county and in a paper of such other county as most likely to reach the persons cited, as the surrogate should direct. He never directed: there was no such additional publication, no inquiry by the officer and no direction founded upon it. The provision referred to is that contained in the Revised Statutes, 2 R. S., 93, § 61. I have already said that a change was made in 1874 and controlled the surrogate’s authority when the citation was returnable. That law authorized no publication except as to non-residents. Where, as in this ! case, the infant resided in the state, but outside of the surrogate's county, the service was required to be personal, or by leaving it at her dwelling-house or other place of residence with some person of suitable age. 3 R. S. (6th ed.), 65, 66, § 55. So that under neither the old nor the new statute was there service of the citation in the manner required. We do not even know what was published. The record does not show. So far as it indicates anything, the affidavits seem to refer to the citation preceding them, and which was issued February 19, 1874. But both publications began in October of the preceding year, and could not have covered a citation not yet issued, and we are able to see that "the citation published, whatever it was, certainly was not the citation served on the infant the next year. If these difficulties could be surmounted, another remains.

The section of the Revised Statutes relating to publication on an accounting, and that of 1837, referring to probate of wills, were both amended in 1863, Laws of 1863, chap. 362, §§ 1 and 5, so as to require as essential to service by publication that a copy of the notice as published shall be mailed to each of the persons served at least thirty days before the return day thereof. There is no pretense that this was done, and no atom of proof tending that way before the surrogate. It will not help to say that, although not mailed, a copy was delivered to the infant, for that delivered was a new and different citation, and was not a copy of the one published.

It is argued that since there was some evidence of service before the surrogate, his conclusion thereon saves his jurisdiction. What there is of that rule has no application to the situation here disclosed. It is well settled that when certain facts are to be proved to a court having only a special and limited jurisdiction as a basis for its action, a total defect of evidence as to any essential fact will make its action void, while some proof of every such fact may enable it to proceed. Miller v. Brinkerhoff 4 Denio, 119; Staples v. Fairchild, 3 N. Y., 41. The cases cited on behalf of the appellant contemplate a record in which there is some evidence of every material fact essential to the jurisdiction. Here, as we have seen, it is totally wanting as to almost every essential fact.

It is quite apparent, therefore, that the decree of 1877 in no manner affected the plaintiff, that it cannot be used against her or control her rights, and that there could not be, and in fact was. not, any valid appointment of a special guardian to appear for her.

But in view of these difficulties, another position is assumed. It is claimed that the infant, if never before, became bound by the decree when she formally applied to have it amended, and authority is cited to that effect. Johnson v. Johnson, 67 How. Pr., 144, 146. If we should concede that doctrine to be sound, it would not help the matter. Her application was made in March of 1877, but five years before that, and in February of 1882, upon the application of Charles Hall, and while the plaintiff was a minor, the decree was amended by striking out the clause authorizing Mills to retain, as general guardian, the plaintiff’s distributive share. Certainly, if her motion to amend bound her to the decree, it could only be to the decree as it then existed, and not at all to something which the court itself had stricken out five years earlier. It follows, therefore, that the decree of 1877, so far as defendant relies upon it, did not bind the plaintiff, does not conclude her in any respect, gives no help or aid to the defense of payment, and leaves the sureties to show, if they can without its aid, that Mills was the lawful guardian of the infant, and that he did, by some act amounting to a payment, transfer the fund from himself as administrator to himself as guardian, so that the sureties upon his bond in the latter character became responsible for the money.

As we enter upon this inquiry, needless in one point of view, but prudent in another, the investigation shifts'from the county of Westchester to the county of Oneida, and discloses in the office of its surrogate a very curious state of affairs. Since the infant and her father resided in that county, it was possible there to appoint for her a general guardian. The law authorized any relative or friend of an infant under fourteen years of age to apply to the surrogate for the appointment of a guardian, and that officer was required to appoint a day for the hearing thereof, and give such notice to the relatives of the minor as, after inquiry, he should direct. 3 E. S., 6th ed., 168, §§ 5, 6. The defendant produced a petition asking for such appointment. Where it came from we do not know. It was once, in some form, filed in the surrogate’s office, under date of December 19, 1873, but that file mark is stricken out, and, as the evidence shows, the erasure was the act of the surrogate himself. The original was produced for our examination, and its erasures and alterations are very imperfectly represented in the printed case. It is quite obvious that its original form when filed was that of a petition by John Hall, the father, for bis own appointment as general guardian of the infant, sworn to November 21, 1873, before James Eay, a justice of the peace, and filed in December following. It was never acted om No day for hearing was appointed, and no appointment of a guardian made under it. On the contrary, it was taken from the files by the surrogate himself, the file mark stricken out, the words “ prays that you will appoint your petitioner, John Hall,” altered by erasing “your petitioner” and “ John Hall” and in- X sorting John W. Mills,” and so making it a petition by John Hall, the father, for the appointment of Mills as general guard1ian. The original jurat was then stricken out, and Hall swore to the new and altered petition before the surrogate on February 16, 1874. The original consent, which read : “I, John Hall, hereby consent,” was altered by erasing the word “ Hall ” and substituting “ W. Mills,” so that it became the consent of John W. Mills which he signed. Of course the surrogate was not engaged in altering or mutilating his own records. He did not so regard the old petition, which had never been acted on, but was deemed an inchoate and abandoned application which might honestly be altered to serve as a new one. The act itself, done by the surrogate himself, was either a criminal offense amounting to a forgery 1 of the record, or a conclusive proof that he and Hall and Mills perfectly understood and admitted that the original petition had never been acted on, and was but an inchoate and inoperative paper.

We must assume that the changes were made by the surrogate at the date on which he administered the oath to Hall, and that Mills signed the consent at the same time. But we need not leave the matter upon that assumption merely, for it is inevitable that the change was made before the petition was presented to the officer, when it was so presented to him, or upon some day thereafter, and the result is the same in either case. If the alteration was made before December 19th, then on that day there was no petition which could be presented and only a fraudulent paper not sworn to by anybody. If the change was made when presented, Hall was certainly not there, or if present refused to swear to or recognize the mutilated document and there was no sufficient petition or proof of anything. If the alteration took place afterwards, the written consent of Mills was then for the first time given and did not exist on the nineteenth, in violation of the rule and practice which requires that the written consent of the person to be appointed shall be executed and tiled with the petition and before the appointment is made. Of course, as I have said, the verifying of the altered petition by Hall was an admission by him and by the surrogate of the most conclusive character that no guardian had been appointed at the date of that verification. Its only honest object could be to lay the foundation for an appointment thereafter to be made, and it is inconceivable that the altered petition should have been prepared for any other purpose, And yet it was never filed in the surrogate’s-office. Where it went to or'what became of it we do not know except that it comes to light in the hands of the counsel for the defendant. Two months after it was sworn to Mills began his final accounting in Westchester, and the decree which he procured recites that on the 17th day of April, 1874, proof was made of the service of citations and that the surrogate “ having ascertained ” that the minors “ then had no general guardian,” did, “ thereupon,” appoint Skinner special guai’dian. That appointment, as we have seen, was made two months earlier. Of course the information must have come from Mills, and he is bound by the recital which he either directly authorized or knowingly permitted to be made. What the sureties understood is evident from the will of Lyon, which bears date October 31, 1885, in which he refers to his liability on the administrator’s bond, and says of Agnes Hall that she “ is not of age and has no general guardian.” So we have the surrogate of Oneida county, the surrogate of Westchester, John Hall, the father, Mills himself, and his surety, Lyon, all concurring that Agnes had no general guardian, and yet the singular fact is shown that prior to all these events, back of all these admissions, there were certain inchoate, unfinished and imperfect proceedings preliminary to the appointment of a guardian which indicate an existing intention to appoint Mills as guardian, and all of which occurred on the same 19 th day of December, 1873, on which the petition of Hall, for his own appointment, was filed. These proceedings were two entries in the surrogate’s book of minutes, one ordering that John W. Mills be appointed upon executing a prescribed bond, the other ordering simply that he be appointed, both of which entries are signed by the surrogate, and in the guardian’s book an unsigned appointment of Mills, and unsigned letters of guardianship. There is also a bond of Mills and two sureties approved by the surrogate on the same day. The unsigned appointment and the unsigned letters show on their face that they were incomplete and inoperative, because they terminate with the words “ in testimony whereof the said surrogate has hereunto set his hand,” showing that until signed they were incomplete and nugatory. There never was any such “testimony.” They show another thing. On the trial the plaintiff’s counsel seemed to think that the petition, as originally drawn, was for the appointment of both Hall and Mills, and almost induced the surrogate ”to say so. One only needs to scrutinize the consent appended to it to see that any such theory is impossible. It was drawn for one person to consent, John Hall; it was entered for one person to consent, John W. Mills. The recital in the prepared letters is that the petition prayed for the appointment of Mills, and he had consented. We know that to be untrue. We know that the petition and consent never took that form until they were altered into it the next year by the surrogate himself. Both he and his clerk admit that he made the changes. There was thus no petition before the surrogate on December 19, 1873, for the appointment of Mills, and no written consent by Mills.

It is clear that the alterations made by the surrogate in 1874 are totally inconsistent with the theory that any petition for the appointment of Mills, or any written consent of Mills, was before him on December 19, 1873, and yet on that date, in his book of minutes, are the two orders indicating his intention to appoint Mills not merely guardian of Mary Agnes, but guardian of all three minors together, and that on condition of his giving three separate bonds. Such is the form of the first order, and it is immediately followed by a second in precisely the same form except that there is no condition, and the reason for which neither the surrogate himself nor anybody else can explain. I have found it impossible to frame any probable theory which will account for and harmonize all these singular contradictions. It would seem as if Mills expected to be guardian of the infants, prepared his bond December 16th, although the printer’s probable mistake dates it in November; so told the surrogate, who prepared all the orders accordingly and withheld only his final and effective signature; that the petition furnished by Hall and, perhaps, on that day produced by Mills, was filed without examination or observation, and when its real form was discovered, Hall was, after some effort, induced to consent to a' change which would better match what had been attempted, but no one dared to put the altered petition on the files of the court, and it passed into the hands of Mills and so reached the sureties who produced it. But that is merely a possible theory, and does not relieve us from the duty of determining whether the defendant has satisfied us that Mills was lawfully appointed general guardian of the plaintiff. The test is whether, on the facts disclosed, if. the sureties on the alleged guardian’s bond were sued, we could hold them liable. I think we could not.

The sole ground would be the entries in the minutes, but such entries do not constitute the appointment any more than an order for judgment in the minutes of the court constitutes the judgme nt. Such appointment results from several steps "and culminates and is finished in the delivery of the signed and sealed letters, after their record in the guardian’s book, to the guardian. He gets no authority until they are signed and delivered, or at least are ready for delivery. Such is the practice, and the law contemplates both. The act of 1837, as it is incorporated in the sixth edition of the Revised Statutes, 3 R. S., 171, §§ 35 and 36, provides first that the guardian shall render and file annual accounts and then that the surrogate “ shall annex to and deliver with each appointment of a general guardian ” a copy of that requirement. And § 53 (p. 334) provides that unsigned letters of guardianship may in proper cases, to avoid all doubt, be signed by the surrogate’s successor with a view to their validity. Even that has not been done in the present case and should not be done under the existing facts. An order or direction in the minutes of the court that a person “ be appointed guardian ” is not an appointment made where such appointment is required to be made and certified and recorded in a particular manner, and it would introduce into the procedure of surrogates in the delicate and important matter of guardianship a degree of laxity which ought not to be permitted. I think it is a necessary conclusion of law from the facts disclosed that Mills never became the legally appointed guardian of the plaintiff.

Beyond that, it is entirely clear that with the decree of 1877 out of the case, there is no evidence, and is not claimed to be any, which shows a transfer of the plaintiff’s distributive share from the administrator, as such, to himself in any other capacity.

The sole ground for that contention was an alleged transmutation of that liability, resulting, as matter of law, from the operation of that decree. It is not needed that we consider that question, in view of our conclusion that the exception to the admission of the decree as binding on the plaintiff was well taken. The sureties are, therefore, left to the operation of the decree against their principal, rendered on the accounting of his successor, and charging such principal with both liability and loss, and without opportunity to appeal to a prior decree for a defense. What the effect might prove to be of the later adjudication against the successor of Mills in administration, as a construction by the same court of its own previous decree, and as denying utterly the force and effect claimed for that decree, we need not consider, in view of the conclusions which we have reached upon the question of jurisdiction.

On a review of the whole case it seems to me that it would be a gross and inexcusable injustice to deny to this plaintiff a remedy for her wasted inheritance against the sureties of the administrator. Such sureties must remain liable until they can show lawful payment to parties legally entitled to receive it; and where the sole defense is a merely technical and constructive transfer of liability from the same man in one capacity, to himself in another, it is not too much to require that it should be fully and clearly established, so as to leave no doubt of the liability of the substituted sureties, and that we should not make remediless the waste and injury done by turning the plaintiff over to a hopeless litigation, resting upon unsigned and altered records, and contradicted by every party to the proceeding itself.

The order of the general term should be affirmed, with costs, and judgment absolute be rendered in favor of the plaintiff, upon the stipulation.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    The Williamsburgh Savings Bank, Resp’t, v. The Town of Solon, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    1. Town bonds—Coupons—Interest.
    Past due coupons payable to bearer, although detached from the bonds, have, while in the hands of the holder of the bonds, no greater force or effect than the stipulation for the payment of interest contained in the bonds.
    3. Same—Res adjudicata.
    In a prior action in equity, the defendant sued the plaintiff and sought to cancel the bonds now in question as being invalid. The same points as to the invalidity of the bonds were raised in the equity action as are sought to be litigated in this action, and a final motion was made at the close of the case for a dismissal of the complaint on the ground that the bonds were valid which was granted. Held, that the town was fully estopped by the prior judgment, not only in the broad and general sense of the one issue raised, but equally so as to the specific objections involvedi
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff, entered upon verdict directed by the court.

      Louis Marshall and B. A. Benedict, for app’lt; Edward B. Thomas and Howard D. Newton, for resp’t.

       Modifying 47 St. Rep., 496.

   Finch, J.

The plaintiffs brought this action to recover upon unpaid interest coupons attached to the bonds of the town of Solon, issued about twenty years earlier, in aid of the Utica, Chenango & Cortland Railroad Company. The complaint sets out in full the judgment of the county judge authorizing such issue upon the consent of the taxpayers, and the further proceedings which followed, and avers the plaintiff’s ownership of the specified bonds and the refusal of the town to pay the matured interest thereon. It further avers that in a prior action between the same parties the validity of the same bonds was put in issue, and that the judgment then rendered conclusively determined that such bonds were the valid obligations of the town. The answer admitted the'rendition of such judgment, but referred to the record on file as to its terms, and alleged that the issues raised by the pleadings in that action were other and different from those contained in the answer, and that such prior judgment was not an estoppel upon the town.

On the trial it was stipulated that either party might read from the printed case prepared on appeal in the former action, and the whole of that record was put in evidence. The defense in the present action was that the bonds sued pn were invalid and void, and not the obligations of the town, and the specific defects relied on were the following: First, that the judgment of the county-judge was void on its face because the petition was not sufficient to confer jurisdiction, and that it did not set forth that the persons signing the same were a majority of the taxpayers of the town of Solon whose names appeared on the last preceding tax list or assessment roll of said town as owning or representing a majority of the taxable property therein; second, that the Utica, Chenango & Cortland Railroad Co. was not a railroad corporation and was never legally organized, because one thousand dollars per mile had not been subscribed to its stock nor had ten per cent, thereon been paid in cash: third, that the bonds issued had upon them neither the seal of the town nor of the individual commissioners: fourth, that after their issue they were altered by affixing thereto individual seals, which was done by some person or persons unknown, but by the act or procurement of the then holders of the bonds so altered: fifth, that the'bonds did not run for thirty years because delivered to the company after their date: sixth, that after the delivery of the entire issue a portion were returned to the commissioners and exchanged for .an equal amount, but of different denominations and different place of payment, the returned bonds having been burned or destroyed, and that the coupons sued on belonged to such bonds issued in exchange: seventh, that when the petition was presented to the county judge no order was made or filed by him for the publication of the requisite notice, and eighth, that the principal of the bonds exceeded twenty per cent, of the taxable property of the town as shown by the last preceding tax list or assessment roll. I shall refer to these detailed objections by the numbers herein affixed to them and without reference to their enumeration elsewhere. It is apparent that a single issue is raised by the complaint and answer, which is the validity or invalidity of the bonds in suit. The defects pointed out or asserted are the grounds or reasons upon which the defendant maintained its side of the issue involved, but that issue is essentially one and single, and is whether the bonds are or are not the legal obligations of the town.

Turning now to the prior judgment for purposes of comparison, we observe that it was between the same parties, their positions as plaintiff and defendant being reversed, and that the subject -matter of the controversy is identical in both litigations. The same bonds, the same liability, the same general question furnish the vital ground of controversy in each. We see further, that the same material issue dominates both. The first action was in equity. The town sued the bondholders, and sought to cancel in their hands the same identical bonds on which here and now the bondholders have sued the town. In the first case the plaintiff could not recover, nor the defendant defeat the action, except by an adjudication, one way or the other, of the validity or invalidity of the bonds. It is easy to see that the plaintiff could ■> not succeed without proving them to be void, and securing a judgment of that tenor. But the same thing was true of the defendant in that action. It might have defended upon other grounds, those peculiar to equity, and independent of the main and central issue, but it did not. One such ground might have been that there was an adequate remedy at law, but that was waived because not raised by demurrer on the one hand, or by pleading the defense on the other. There was no such issue in the case, for if not pleaded, it cannot be made available. Watts v. Adler, 180 N. Y., 646; 41 St. Rep., 325; Ostrander v. Weber, 114 N. Y., 102; 22 St. Rep., 979 ; Town of Menta v. Cook, 108 N. Y, 508; 13 St. Rep., 845. The defendant submitted itself to the jurisdiction of equity by abandoning its claim to meet its enemy only in J a court of law. Another such defense might possibly have been loches, but that was not interposed, and was explicitly shut out from the decision. Instead of it, the defendant chose to use the facts by way of estoppel, a defense equally as good at law as well as in equity. On the trial, no merely equitable question was raised, save and except that if the bonds weie invalid on their face, the remedy was at law, which the court correctly overruled. The defendant’s final motion at the close of the case for a dismissal of the complaint rested upon no such ground, but wholly and entirely on the contention that the bonds were valid and the lawful obligations of the town. That, therefore, was the sole issue involved, and the sole issue ultimately decided. The plaintiff municipality deliberately close the form of equity, saying that it was afraid of the courts of law and of the multitude of suits which might follow, and especially- of some in the federal courts; and before the tribunal which it voluntary selected was bound to show, and could only succeed by showing, that the identical bonds here in controversy were void. The defendant, which might, perhaps, have shielded itself behind two equitable defenses, not touching the issue tendered, did not do so, but threw them away; incapacitated itself from having their benefit; and met its adversary squarely upon its own ground, and became bound to prove the bonds valid or submit to have them canceled. Both parties consented to try that question in equity, and neither resisted its jurisdiction. It is plain, therefore, that the parties were the same, the subject-matter of the controversy the same and the one single and material issue the same.

But let us follow that first trial into its details, even though we may not strictly be bound to do so. The first defect relied on here is that the petition was not sufficient to give the county judge jurisdiction, and precisely that objection was number one in the equity case. It was there stated in the exact and identical words contained in the present answer. Under that pleading the town, was bound to present all its objections to the jurisdiction which it. challenged. It could not pick out one for that trial and save five more for as many separate trials over the jurisdiction, for the estoppel of the resultant judgment covers not only what was, but what might have been decided under the issue raised. Tuska v- O'Brien, 68 N. Y., 449. The j urisdiction then was assailed for the use of the word “ represented,” and there was no other criticism. Nobody had then discovered that in the petition as printed the word and ” is used instead of “ as ” before the word “ owning;” still less that the use of either word made any difference in the plain and obvious meaning of the sentence. That is the criticism now made, and accompanied with the scintilla of an apology by saying that in Mentz v. Cook we went upon a point quite as narrow.

That is a mistake. I thought the point settled upon authority in that case was small, but at least it was visible to the naked eye and did not require a microscope to disclose it; and was not, as here, after two trials, raised for the first time in the general term. Post v. Manhattan R. Co., 125 N. Y., 697; 34 St. Rep., 590. But whether small or not, it might have been raised in the equity case under the objection made, and is defeated by the judgment then rendered, for the trial court found as its fourth, fifth, seventh and eleventh conclusions of law that the petition was sufficient to give the court jurisdiction, and the general term and this court each affirmed that conclusion. It is too late in this case to seek to alter that judgment.

The second defense here is that the R. R. Co. was not a corporation by reason of the non-payment of ten per cent on its subscription. The complaint in the equity suit raised the same objection, and the language of the two pleadings is again identical word for word, a fact which the appellant’s brief mistakenly disregards. Proof was given in the prior case tending to prove the facts alleged, but the court found that the railroad company did become a corporation duly organized, and as a conclusion of law that such company was at the time of such bonding a corporation duly incorporated under the railroad act of this state. There was evidence to support the finding of fact in the affidavit of the directors, Buffalo R. R. Co. v. Hatch, 20 N. Y., 161, and no proof to the contrary, since testimony that some did not pay does not show that the full payment was not made, Lake Ont. & Aub. R. R. Co. v. Mason, 16 N. Y., 451, and so on appeal the general term admitted the corporate existence, and in this court it was not deemed necessary to argue it, but it was clearly assumed.

The third objection here was that the bonds as issued were unsealed. The same objection on the same state of facts was taken in the equity case and submitted for decision. The court found as a conclusion of law that a seal was not necessary to the validity of the bonds in the hands of the defendant as against the plaintiff. The judgment entered explicitly adjudged the same thing, and in addition that the statutory mandate was merely directory for the benefit of the bondholders alone, which they might and did waive. The affirmance on appeal not only made the judgment in this respect conclusive, but the general term in its opinion distinctly said “ the bonds in controversy are not invalid because not sealed,” and cited an array of authority in this court and elsewhere not easy to resist, and the second division *of this court in a very elaborate and able opinion by Bradley, J., in which all his associates concurred except Follett, J., who did not sit because he wrote the general term opinion, said, after holding that a scroll was not a seal, “ but it does not follow that the bonds are, for that reason, invalid. There are no negative words in the statute declaring, or necessarily implying, such effect of the omission of the seal, and whether or not this requirement was directory, as held in Draper v. Springport, 104 U. S., 501, inasmuch as they were made and delivered by the commissioners in the performance of their duty and upon a full consideration, the mistake or failure to affix their seals does not defeat the enforceable validity of the bonds,” and for this doctrine five authorities were cited, three, in this and two in the Federal court. But the court went further, and, holding that it had power to do so, in effect corrected the omission made by mistake and misunderstanding, and rendered V the securities enforceable. If, in that manner also, the town lost its objection, it was as the result of its own action in the selection of a forum. It is not needed to say whether we fully agree with our brethren of the second division. It does not alter the case if we do not. They made the law for this action on the same bonds and between the same parties at all events. In Ashton v. City of Rochester, 133 N. Y., 195; 44 St. Rep. 526, we applied the rule of res judicata, although expressing a disagreement with the prior decision, and any other rule would be intolerable. Lorillard v. Clyde, 122 N. Y, 41, 48; 33 St. Rep., 303.

The fourth ground of objection asserted here was the alteration of the bonds by the addition of wafer seals after their issue. Again we find precise objection taken in the same terms in the ' equity case. Proof of such alteration was then given. The trial court found as facts, that the bonds were issued without seals; that when defendant received them there were wafer seals attached ; that neither the commissioners, the president or treasurer of the railroad company, nor the then defendant or its agent, placed them there or authorized or consented to the act. The trial court held upon the facts found, as conclusions of law, that the bonds were not invalidated by the subsequent affixing of wafer seals; that these were presumptively affixed by a stranger and not by any holder of the bonds that such affixing was not a material alteration of the instrument and was not done with a fraudulent intent on the part of any holder of the bonds, and the judgment rendered literally follows and adopts these findings. That judgment stands affirmed. The criticism now attempted of the opinions rendered on the appeal, which both parties equally cite, is that the affirmance was not necessarily conclusive, but they do not relieve the appellant It is conceded that if the wafer seals were affixed by a stranger the bonds are not harmed. The finding of fact was to that effect, and was material to the issue presented. It binds the town until reversed, but it never has been reversed. On the contrary, the affirmance fixed it beyond recall or review. What is said is that it took less evidence to support it in the equity court than it would at law because of some difference in the burden of proof. But that is the town’s sole fault. It chose to test these bonds in equity and it must submit to the conclusiveness of the finding which it failed to reverse. It was clearly material to the issue, for if found the other way it would have made the bonds void and compelled a decree for their cancellation. I may add, to avoid misapprehension, that I think the burden of proof of a fatal alteration was on the town in both forums. Where the alteration is visible on the face of the instrument the paper discredits itself and the holder should explain. But where the change simply makes the bond perfect in accordance with its own express" terms and apparent purpose there is nothing for the holder to explain. The burden falls on the adversary to prove an alteration such as will affect the instrument and he must show the facts on which he relies. That is both the reasonable and the settled rule. Wharton on Evi., vol. 1, § 629 ; U. S. v. Linn, 1 How., U. S., 104; Davis v. Jenney, 1 Met., 221; Meikel v. St. Sav’g, 36 Ind., 356.

The sixth objection here relied on grows out of the change made in the denomination and place of payment of the bonds held by the plaintiff and after the full amount had been issued to the railroad company. The claim is that the commissioners after delivery of bonds representing the entire authorized amount were functus officio and without authority to make the change. The act of 1869 permitted the commissioners to exchange the bonds for the stock of the railroad company or sell them in the market at their discretion. The act of 1870 gave them a further discretion to issue the bonds in parcels and protected them against any compulsion before the contracting company should, perform its agreement. What constitutes such an issue of -the bonds as to make the commissioners functus officio is not at all beyond reasonable doubt, but we do not need to discuss it or commit ourselves to any opinion about it. The identical question appears in the equity suit. The facts were the same and in no respect different. The trial court held as conclusions of law that the fact that the bonds in suit were issued to the railroad company in place of a like amount of other bonds delivered to but not used by such company does not invalidate the bonds owned by the defendant; that the .town was estopped from alleging such exchange by the issuing of such bonds by its commissioners and by the recitals in the bonds, and that the defendant bank was the owner of the bonds in good faith and purchased them for full value in the usual course of business. These legal conclusions were affirmed by the court of last resort, the second division holding that the town was bound by the representation of its commissioners that the bonds issued were in pursuance of the authority conferred, since the fact was one peculiarly within the knowledge of the agents acting in a case where the burden of the town was in no manner increased. I think we ourselves have endorsed that doctrine, Brownell v. Town of Greenwich, 114 N. Y., 518; 24 St. Rep., 6; Hoag v. Same, 133 N. Y., 163; 44 St. Rep., 519 ; but whether we have or not, and whether we agree or not, it settled the law between these parties and established the validity of the bonds in suit as against the objection founded on the substitution made.

Here again the learned counsel for the appellant makes the mistake of saying there was no such issue to be decided. The town had not only denied its liability upon the bonds held by the defendant in the equity suit, but had affirmatively averred that they were issued without authority and were not the valid obligations of the town. It had the right to introduce any competent evidence of that fact; it did prove the facts of the substitution, under the objection of the bondholder that they were not pleaded, which the court properly overruled. ' The facts were found and the law applicable as I have stated it; but among the conclusions of law was one to the effect that the substitution was not within the issues because not pleaded. To that the plaintiff had an exception and one perfectly valid and sufficient to reverse the judgment unless there was another and sound answer to the evidence. Both appellate courts necessarily recognized the error of saying that there was no such issue, the need of admitting that there was, and the consequent order of reversal unless there was a fair and just answer to the facts found. The second division made such answer and one so necessary and material that without it or some •other equally conclusive upon the merits of the objection a reversal instead of an affirmance of the judgment would have been inevitable. It is quite too late for the party who forced this issue to a decision to claim that it was not necessarily decided.

The three remaining defects alleged are so clearly of no consequence as to justify no waste of time over them. That no formal order of .publication of the county judge’s notice beyond its re•cital in the published notice itself was or could be found appeared by the proof in the equity suit, but was held to be a mere irregularity and immaterial defect; that the amount of the bonds issued •did not exceed twenty per cent of the aggregate values on the assessment-roll was in the same suit conceded; and the delivery of the bonds at a date later than their own date was also shown and is, obviously, a harmless fact.

It is thus apparent that the town is fully estopped by the prior judgment, not only in the broad and general sense of the one issue raised and decided, but equally so as to the specific objections involved. It is of no consequence that the judgment was in •equity, and that fact does not prevent the operation of the estoppel. Tuska v. O'Brien, supra. The town has had its day in court, a full opportunity to assail and test the bonds, a patient hearing and direct decision upon all the questions now raised. It would be hard to find a case to which the doctrine of res adjudicóla could more justly and clearly apply than this.

But there is a remaining question open for consideration, and that is the allowance of interest upon the coupons from their date. It results in an award of compound interest, which we have held not- to be recoverable, except upon some new and independent agreement, made upon sufficient consideration. Young v. Hill, 67 N. Y, 162. The inquiry here is, of course, whether the coupons sued come within that exception, and the solution of the problem depends upon their nature. We have already in this court determined what they are, and described their character and quality. In Bailey v. County of Buchanan, 115 N. Y., 297; 26 St. Rep., 128, Earl, J., said that while it was true that past due coupons payable to bearer when detached from the bonds are- for many purposes separate and independent instruments which may be negotiated and sued upon without the production of the bonds, yet such coupons always have some relation to the bonds; that until negotiated or used in some way they serve no independent purpose; that while they are in the hands of the holder they remain mere incidents of the bonds and have no greater force or effect than the stipulation for the payment of interest contained in the bonds; and that while they continue in such ownership and possession it can make no difference whether they are attached or detached, as they are then mere evidences of the indebtedness for the interest stipulated in the bonds. I think that adjudication concludes us, and. a re-examination of the question, in the light of the very full and able discussion in the present case, only strengthens the conclusion then reached, in which we all concurred. Interest, as a rule, follows the principal without becoming principal, and cannot be compounded by force merely of the contract; but that general rule has been modified somewhat by an exception growing out of the character and purpose of interest coupons. They may become separate and independent instruments. When they do, the exception is for the first time needed and for the first time applies. Until they do, the promise is merely to pay interest, and is governed by the usual rule. They do not become separate and independent instruments until they are utilized as such. Before that occurs and while they remain in the hands of the holder of the bonds the occasion for the exception has not arisen and the exception does not apply. That is plaintiff’s situation. It is true, it was prevented -from suing by an injunction, but the damages occasioned by it are awarded on its dissolution, and theoretically at least cover all losses thereby sustained.

It follows, therefore, that the judgment for the plaintiff was erroneous to the extent of its award of 'interest upon the coupons, and should be modified by deducting therefrom the sum of four thousand, two hundred and forty-four dollars and fifty-two cents, and, as modified, be affirmed, without costs to either party in this court.

All concur.


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    George H. Beattys, Resp’t, v. The Town of Solon, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff..

      Louis Marshall and B. A. Benedict, for app’lt; Edward B. Thomas and Howard D. Newton, for resp’ti

       Modifying 45 St. Rep., 899.

   Finch, J.

The seventeenth finding of fact in this case shows that the coupons sued on were “ annexed to the bonds of plaintiff,” and the twentieth, that, when sued, they were cut from bonds numbered 113, etc., which he purchased in good faith. Finding twenty-one shows that the amount of the coupons was $2,681, and that sum deducted from the damages shows that $1,212.39 was erroneously^included in the judgment. On authority of our decision made in the Savings Bank case, the judgment should be modified by deducting therefrom twelve hundred and twelve dollars and thirty-nine cents, and, as modified, affirmed, without costs to either party in this court.

All concur.


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    William W. Armfield, Resp’t, v. The Town of Solon, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff.

      Louis Marshall and B. A. Benedict, for app’lt; Edward B. Thomas and Howard D. Newton, for resp't.

       Modifying 45 St. Rep., 905.

   Finch, J.

The complaint in this case shows that plaintiff was the owner of the bonds from which the coupons sued on were cut.

On authority of Savings Bank case, the judgment should be modified by deducting therefrom eight hundred and eighty dollars and sixty cents, and, as modified, affirmed, without costs to either party in this court.

All concur.


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    William H. Chapman, Resp’t, v. The Town of Taylor, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff.

      Louis Marshall and B. A. Benedict, for app’lt; Edward B. Thomas and Howard D. Newton, for resp’t.

       Modifying 45 St. Rep., 907.

   Finch, J.

It appears by the thirty-fifth finding of fact that in 1881 the plaintiff was the owner of the bonds from which the coupons sued on were cut. That ownership presumptively continued, and is not shown to have been changed.

On authority of Savings Bank case, the judgment should be modified by deducting therefrom the sum of $657.98, and, as modified, he affirmed without costs to either party in this court.

All concur.


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    Charles H. Stanton, Resp’t, v. The Town of Taylor, App’lt.

      (Court of Appeals,

      Filed January 17, 1893.)

    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff.

      Louis Marshall and B. A. Benedict, for app’lt; Edward. B, Thomas and Howard D. Newton, for resp’t.

       Modifying 45 St. Rep., 906.

   Finch, J.

The plaintiff produced on the trial bond Mo. 1 of $100, and bond Mo. 9 of $500, indorsed in blank, and of which, therefore, he was shown to be the owner, and took an admission as to the similar form of others, and so it must be assumed that he owned the bonds from which the coupons were cut.

On the authority of Savings Bank case, the judgment should be modified by deducting therefrom the sum of $2,496.47, and, as modified, affirmed, without costs to either party in this court. All concur.


author: Macomber, J.

text:
    Edward C. Walker, Jr., App’lt, v. Susanna Porter et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Partition—Costs.
    In an action for partition, an interlocutory judgment was entered providing for an actual partition of the premises between the parties, and providing that costs be awarded plaintiff, and that the defendants who did not answer or demur, but simply appeared, should receive their taxable costs. Held, that the only costs which could be awarded to defendants under the judgment were costs before notice of trial, and these only because conceded by plaintiff.
    Appeal by the plaintiff, Edward 0. Walker, Jr., from a portion of the order of the Erie special term, dated July 1, 1892, modifying the taxation of costs made by the county clerk of Genesee county, and refusing to make other modification thereof.

      Edward A. Washburn, for app’lt; M. H. Peck, Jr., for resp'ts.
   Macomber, J.

The items of costs which were allowed to the defendants, Susanna Porter and Lovina Willis, and which were objected to before the taxing officer, were the statutory costs for proceedings after notice and before trial, for a trial fee, and for the additional fee where more than two days are occupied in the trial. On motion by the plaintiff to strike out these items of costs, the special term rejected the item of thirty ($30) dollars for the trial fee, but left standing the other two items, namely, for costs after notice and before trial, and the item of ten ($10) dollars for the trial lasting more than two days.

This action was partition, and an interlocutory judgmént was entered providing for an actual partition of the premises between the parties. There was no sale ordered of any portion of the common property. The judgment provided that costs should be awarded to the plaintiff, and also that the defendants, Susanna Porter and Lovina Willis, should recover their taxable costs and disbursements. These defendants did not answer or demur to the complaint. They simply appeared in the action. The provision in the judgment awarding them costs is, consequently, limited to the costs before notice of trial, namely, ten dollars.

There was no modification made of the judgment containing such provision for costs, and the taxing officer and the special term were, accordingly, limited to the granting of that sum alone to the defendants. We do not mean to hold that even this item could, if contested, be awarded to them, but so much is conceded by the plaintiff. Inasmuch as the plaintiff was entitled to costs, it would seem to follow that the defendants could not recover any costs unless there had been an actual sale of the premises, and a fund obtained therefrom which had been paid into court, and an allowance therefrom had been made to them as necessary expenses. The learned counsel for the respondents foreseeing this, has made an ingenious argument to the effect that it was the intention of the special term to grant to the defendants such a gross sum as an allowance for expenses in these proceedings. But an answer to that proposition is, first, that there is no fund in court from which to draw any such allowance; and, secondly, the existence of the judgment above mentioned which restricts these defendants to their taxable costs.

It follows, therefore, that so much of the order as is appealed from should be reversed.

Portion of the order appealed from reversed, with ten dollars costs and disbursements of the appeal; and the motion, as originally made, granted.

Dwight, P. J., and Lewis, J., concur.


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    Adam J. Stephen, by Guardian, App’lt, v. James B. Stevens et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1893.)

    1. Masteb and sebvant—Negligence.—Nonsuit.
    Plaintiff, a boy of fifteen, while at work upon a buzz saw in defendants’ box factory, placed his hand within the guards which inclosed the saw to pull out a piece of board which had lodged at the side of the saw, and his fingers were cut off. No claim was made" that the saw was not in good condition or improperly guarded. Held, that a nonsuit was properly granted. ,
    3. Same.
    In such case, no inference of the negligence of defendants can be derived from the fact that they failed to observe the requirements pertaining to factories imposed by chap. 409, Laws of 1886.
    Appeal by the plaintiff, Adam J. Stephen, an infant, by Frank M. Stephen, guardian ad litem, from a judgment entered in Monroe County, June 80, 1892, upon a nonsuit granted at the Monroe Circuit in June, 1892.

      Horace L. Bennett, for app’lt; George F. Yeoman, for resp'ts.
   Macomber, J.

This action was brought to recover damages for injuries received by the plaintiff upon a buzz saw while at work in the box factory of the defendants.

The plaintiff was, at the time of the infliction of the injuries, fifteen years and nine months old. He was at this time engaged in what is known as work upon a re-saw, that is to say, upon a large buzz saw three feet and nine inches in diameter, in re-slitting boards into thinner pieces. He had previously been employed by the defendants upon another and smaller buzz saw used for other purposes. His duties at the time of the accident were at the tail end, so to speak, of the buzz saw, and consisted in taking away the strips of lumber as they came to him. This saw was enclosed in a heavy frame with iron guards along the sides running nearly to the top of the saw on each side and extending longitudinally a little distance beyond the teeth of the saw. Other iron guards were provided designed to prevent contact with the teeth of the saw. Between the end guards and the side guards, through which the two parts of the piece of slitted board passed out upon an apron at the tail of the saw, there was a space of about two inches in width. The claim made in behalf of the plaintiff is, that he put his hand through this space, between the end guards and the side guards, to pull out "a piece of board which had lodged at the side of the saw. He says that the sawyer then in control of the saw told him to do this act. While attempting to pull out the lodged piece, he shoved the wood against the saw, where the teeth of the saw caught it and drew it back together with his hand upon the saw, which resulted in the cutting of his fingers. The plaintiff, though a lad of moderate intelligence, knew that a buzz saw was a dangerous thing, and that he would get cut if he put his band upon its teeth when in motion.

The case seems to us to be devoid of any evidence tending to show that the saw was not in good condition, or that it was not properly guarded to prevent accidents. Mor is any claim to the contrary made by the counsel for the appellant. Manifestly, therefore, there could not be any recovery against the defendants upon the ground of not furnishing reasonably safe machinery, and proper guards for this particularly dangerous piece of machinery.

Liability, however, is attempted to be made out against the defendants upon the ground that they failed to observe certain statutory requirements pertaining to factories. Reference is made to chap. 409, of the Laws of 1886, and the several amendments thereto, requiring employers to keep posted, in every room where children under sixteen years of age are employed, printed notices stating the hours of labor required, together with a list of the children and their names and ages, with their birth place and residence of all such children employed, and prohibiting the employment of such children without procuring and placing on file an affidavit made by the child’s parents, stating the age and date of birth of such child; and providing also that no such child who cannot reador write simple English sentences shall be employed in manufacturing establishments excepting during a vacation of the public schools in the place where such child resides.

Because some or all of these things were not observed by the defendants it is contended that a recovery may be had in this action, although counsel, fairly enough, concedes that the omission to observe these statutes is by no means conclusive evidence of negligence on the part of the employers. The prevailing fallacy of the position assumed by counsel is, that, in some way or another, the omission to observe these statutory requirements had a tendency to bring about the accident complained of. But this, manifestly, is not so. There is no relationship of cause and effect between the omission to observe these statutes and the infliction of the injuries upon the plaintiff. Had the defendants been guilty of not ob* serving any statutory requirements providing that buzz' saws or any other dangerous machinery shall be properly guarded and an injury resulted from the omission to place such guards around the dangerous machinery, a case might be made out where the omission to observe the statute led to the casualty. But not so with the provisions of the statute above mentioned. No inference can be derived that the omission to observe them contributed, in any respect, to the production of the plaintiff’s injuries. Such was the doctrine of the case in Briggs v. N. Y. Central & H. R. R. R. Co., 72 N. Y., 26. The plaintiff’s injuries resulted from his own want of care. And, even if it be true, as it is contended, that a fellow workman told him to put his hand into the dangerous spot, the defendants would not be liable for the damages resulting from such fool-hardiness, for responsibilily for the accident was but divided between the plaintiff and a co-employee.

These views lead to an affirmance of the judgment

Judgment appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.


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    Eleanor D. Gaylord, Adm’rx, Resp’t, v. Nelson Beardsley, App’lt

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Pleading.—Amendment.
    Where, during the pendency of an action, a similar action between the same parties is finally determined, settling a certain issued raised in both actions, the defendant will be allowed to amend his answer in the pending action so as to avail himself of the effect of the judgment in the other action. 0
    Appeal by the defendant, Nelson Beardsley, from an order of the Monroe Special Term, entered July 26, 1892. denying his motion for leave to renew, and, if granted, to renew his motion to-amend his answer to the plaintiff’s complaint.

      J. R. Cox, for app’lt; Frank D. Wright, for resp’t.
   Macomber, J.

When this case was before us upon a former appeal by the plaintiff from an order permitting the defendant to amend his answer, we thought the order appealed from could not be sustained because it provided that the defendant might amend his answer in any manner in which he should be advised. The case now comes before us in a different aspect

The action was originally brought by Anna C. Bradburn, now deceased, upon an assignment of a claim made to her by one Arthur M. Gaylord. The case was revived and continued in the name of Eleanor D. Gaylord, administratrix of Anna C. Brad-burn, deceased. The action is founded on a claim made by Arthur N. Gaylord that a certain mortgage of $4,784, which was assigned by one Lewis to the defendant, was taken and held by the defendant for the benefit of Arthur M. Gaylord under agreement that the defendant should pay Gaylord the entire amount or the face thereof.

Arthur M. Gaylord had bought real estate in Union Springs from one Henry H. Lewis, and, as a part of the consideration for such purchase, he executed and delivered to Lewis a bond and mortgage in the sum of $4,784. Under a contrivance not necessary now to state fully, this bond and mortgage were assigned to the defendant by Lewis. In an action upon a certain bond of $1,000, wherein Nelson Beardsley was plaintiff and Arthur M„ Gaylord and another were defendants, it was claimed by the defendants therein that Nelson Beardsley held this $4,784 mortgage absolutely, and that he was obliged to account for it and to pay over the whole thereof. That action, at the circuit, resulted in a verdict for Gaylord on that issue, and judgment was accordingly entered, which was affirmed by tl court in October last. In that action it was contended by Nelson Beardsley that the assignment of the $4,784 mortgage was only collateral to him for certain purposes, and that, consequently, no liability to account or pay over the face thereof to Gaylord or anyone else could exist. The judgment being adverse to Mr. Beardsley upon that issue, he now, if we understand his counsel aright, attempts to avail himself, in substance, of the effect of such verdict and judgment upon this-action. We think, on the whole, that he is entitled to such relief.

The proposed amendment to the answer is as follows: “And for a further answer and defense this defendant further says that said assignment by said Lewis to him of said bond and mortgage' so executed by said Gaylord to said Lewis was, in fact, absolute and unqualified, although understood by defendant at the time to be by way of pledge for certain temporary loans as hereinbefore set forth, so that this defendant, by virtue thereof, became the lawful holder and owner thereof, from that time to the present; that by the terms thereof said Gaylord bound himself to pay said $4,784 and interest, in annual payments of $500 each, beginning f April 1, 1884, with interest half yearly, on the first of April and October, on all unpaid ; that no payment of either principal or interest was ever made upon said bond and mortgage and defendant, as aforesaid, duly and regularly foreclosed the same bjr advertisement, etc.” Thence follow suitable allegations of the regularity of, and the amount realized upon, such sale, and other matters-germane to this litigation. From this it is properly claimed, that, the defendant is entitled to an equitable set-off of the deficiency arising upon such sale against the claim so assigned by Gaylord’ to Anna C. Bradburn. If there be any inconsistency between the present proposed amendment and the original answer interposed by the defendant, such inconsistency resulted through the adverse verdict and judgment in the case of Beardsley against Gaylord above referred to. We do not think that this is any obstacle to-the allowance of the proposed amendment.

It follows that the order appealed from should be reversed.

Order appealed from reversed, with ten dollars costs and disbursements of the appeal, and the motion granted on payment of ten dollars costs by the defendant.

Dwight, P. J., and Lewis, J., concur.


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    Orrin R. Adams, Pl’ff, v. The New York, Lake Erie & Western Railroad Co., Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Negligence—Contributory.
    Where a person undertakes to pass over railway tracks at a point where there is no walk or highway, he takes upon himself all the risks of the hazardous enterprise.
    2. Same.
    Where a person attempts to pass over railroad tracks at a point where there is a walk and fails to look for a train known to him to be due, and is struck by such train and injured, he is guilty of negligence, and cannot recover for such injuries.
    Motion by the plaintiff, Orrin R. Adams, for a new trial on a case and exceptions taken at the Steuben county circuit in April, 1891, ordered to be heard at the general term in the first instance.

      Eli Soule, for pl’ff; James H. Stevens, for def’t.
   Macomber, J.

This action was brought to recover damages for personal injuries received by the plaintiff in a collision with the defendant’s train at Canisteo, N. Y, on the 25th day of .September, 1889.

At seven o’clock in the morning on that day the plaintiff went to the railroad station of the defendant to obtain the numbers of the cars which he was to unload, etc. There are two main tracks operated by the defendant through this village, the southern track being for the passage of trains to the east, and the northern track for the passage of trains to the west. The plaintiff’s place of residence, which was a sort of a hotel or restaurant kept by him, was located twenty-four feet north of the north track. From this building, at right angles with the railway tracks, a plank walk extended leading down from the plaintiff’s house to and across the tracks.

There is evidence to show that the railway company, or its agents, from time to time, repaired or relaid the plank across its tracks at this point. But whatever was done in that regard by them was to carry the walk leading down from the hotel across the tracks at right angles. There was a foot path leading from a highway still further north, to and along the side of this hotel, which in front of the building turned a few feet to the east to join the plank walk leading down from the hotel to the tracks.

The plaintiff was entirely familiar with the locality. He was a man, at the time of the accident, fifty-two years of age, and knew the details óf the operation and the running of the defendant’s trains through this village. His testimony shows that, as he came down from the hotel to go to the railway station, located on the south side of the tracks, he, instead of crossing the tracks at right angles upon the planking, took a diagonal course over them, from his own walk southwesterly to the platform of the railway station, a distance of about sixty-two feet. The two tracks were each of the usual width and were eight feet apart. The plaintiff testified that this was his usual course of going to the station. It was also shown that others were in the habit of taking this course to and from the station. After transacting his business at the railway station, the plaintiff started to return to his tavern in the same way that he had come. A mixed train was then standing on the south track, and was parted at or very near the east end of the railway station for the purpose, as the plaintiff testified, of permitting passengers to go to and from a train which was about that time due on the north track from the east. He passed over the south track. He testified further, that when between the two tracks he looked to the east to see if a train then about due was coming, and then to the west, to see if one of his hired men whom he 'expected was coming up the track. He had no reason, as he said, to believe that the train was coming from the west, but had the best of reasons to be on his guard for a train from the east. From where he attempted to cross the north track, which was near the east end of the railway station, there was an unobstructed view to the east.

The plaintiff, however, said that he could see to the east not more that about half way to a street known as Depot street (which is shown to be about 560 feet distant), on account of a-slight fog which then existed. But according to his own testimony he could see. clearly enough to the east a distance of about 260 feet, while he stood between the two tracks. He passed upon the north track and was there struck by the locomotive, and was rendered unconscious for a while by the blow, receiving some considerable personal injuries. It hardly needs the citation of the authorities on the subject generally, to show that the plaintiff cannot maintain this action. There are two insurmountable obstacles in the way of his recovery. The first is, that when he undertook to pass over the railway tracks at a point where there was no walk or highway, he took upon himself all the risks of that hazardous enterprise. It matters not that he testified that this was his and others’ usual way of going to the station. It was not the way he should have taken to go or to come from the station to his place of abode. He was not upon a railway crossing, either public or private. Ho pretense is made that there was any recklessness or wantonness on the part of the persons operating the train, in not trying to avoid a collision with him. On the contrary, aside from the claim made that the bell was not rung, or the whistle sounded,,, there is no evidence to show that this train was not operated in a. careful and purdent manner, as trains are ordinarily operated.

But were the case otherwise, and had the plaintiff in fact been’ pursuing his course over a walk constructed for pedestrians across the track, he still could not recover, for the reason that he did not-pursue his course in a prudent and and careful manner. His own, testimony leaves him in the plight of a person who, probably being intent on ascertaining whether his hired man was coming from, the west, omitted the ordinary precautions against collision with a¡ train which he knew might be coming from the east.

We think that the disposition made of the case at the circuit was the only one open to the court, and that, consequently, the, motion for a new trial should be denied, and judgment ordered for the defendant on the nonsuit.

Plaintiff’s motion for a new trial denied, with costs, and judgment' ordered for the defendant on the nonsuit.

Dwight, P. J., and Lewis, J., concur.


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    George Miller, Resp’t, v. The Rochester Vulcanite Paving Company, App’lt.

      {Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Negligence—Management of steam whistle.
    To defendant’s works for crushing stone was built a driveway extending upon an incline to a platform over the crusher. Persons delivering stone delivered them upon the platform, and in plain sight of the platform the defendants maintained a steam whistle, used as a signal for the operation of the crusher. While plaintiS’s team stood upon the platform, in the care of a competent man, the whistle was blown without a warning, and they ran away, one horse being killed. Held, that it was gross negligence on the part of defendant’s employees to sound the whistle without first warning the driver.
    Appeal by the defendant, the Rochester Vulcanite Paving Company, from a judgment of the county court of Monroe county, entered May 3, 1892, affirming a judgment of the municipal court of the city of Rochester, awarding damages to the plaintiff for injuries to his horses, wagon and harness, received through the negligence of the defendant.

      Hiram B. Wood, for app’lt; Erwin E. Shutt, for resp’t
   Macomber, J.

The ground of the action against the defendant is the negligent blowing of a steam whistle at its factory on Alexander street, in Rochester, N. Y., whereby the plaintiff’s team of horses became frightened and ran away, one of them being rendered worthless and the harness and wagon damaged.

There seems to be no question but that the amount of recovery was just, provided that liability of the defendant was made out, though some complaint is made in the appellant’s brief that there should be a recovery for the value of the horse, and also compensation for his board and treatment while it still lived. But all of these expenditures were made in good faith, with a reasonable belief that the injured.animal might recover.

On three sides of the works of the defendant, which were erected for mixing vulcanite and crushing stone by steam power, a high board fence had been erected. For the purpose of obtaining ready access, to the stone crusher there was built a driveway of common planks; ten feet wide, and extending upon an incline to a platform immediately over the mouth of the stone crusher. A high, tight board fence or guard surrounded this platform, except through the driveway. It was the duty of persons bringing the stone to deliver them upon the platform near the mouth of the crusher. The defendant maintained, at a distance of about fifteen feet from this platform and rising above the roofing of the adjoining building, a steam whistle, which was in plain sight of the persons working upon the platform. This whistle was used as a signal for the operation of the crusher, being blown to start that machine and also blown to stop it

The plaintiff’s team, at the time mentioned, was driven by his brother, who appears to have been a competent man and accustomed to horses. After stopping his team for the purpose of unloading the stone, he placed the reins over the end of the wagon seat, and while remaining on the wagon at work, and apparently in a position where he would have the horses well under control under ordinary circumstances, without any warning to him the whistle sounded in a manner calculated to frighten steady horses, and the team ran away and the damage to the plaintiff’s property ensued.

We see no reason for disturbing the judgment appealed from. It is shown that the plaintiff, the owner of the property and in whose employ his brother was at the time mentioned, had, by previous observation and experience, become somewhat acquainted with the operation of the defendant’s steam whistle. It is now argued by the learned counsel for the appellant that there cannot be any recovery for the loss,-because the plaintiff failed to warn his brother against liability of the horses taking fright through the blowing of this whistle. The argument, however, does not seem to us to be altogether sound, for the plaintiff had not been apprised by his own observation, or by any information communicated to him, that the whistle sounded statedly, so that he could warn his brother against being upon the platform with his tean at such times. On the contrary, it appears that the whistl sounded at such times as suited the convenience of the defendant’s employes. There remained, doubtless, the duty resting upon the driver to exercise proper care in the management of his team. This he appears to have done, and to have had them well in hand for ordinary perils. But we do not think, under the circumstances, that the failure of the plaintiff to warn the driver against this particular peril is any ground for reversing the judgment. The duty laid upon the driver was constant to exercise proper care under all the circumstances.

With the team in such close proximity to the whistle, it was an act of gross negligence on the part of the defendant’s employes to sound the whistle without first warning the person in charge of the team.

The judgment appealed from should be affirmed.

Judgment of the county court of Monroe county appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.