author: RUSSELL, J.

text:
    Margaret B. Edson, Individually and as Executrix, etc., Pl’ff, v. John A. Barton et al., as Executors, etc., Def’ts.

      (Supreme Court, New York Special Term,

      Filed December 26, 1895.)

    1. Trustees—Ex maleficio—Fraud.
    There can never be constructive fraud, where a person does just what he ' intends to do, of his own free will and intelligence, in passing title to others of that property which he deliberately determines to take away from his own succession.
    3. Same.
    Under the laws of this state, an owner of property may, by deed, will or transfer, absolutely give to another that property in the foil expectation or belief that such other will apply it to certain specific purposes, and at the same time confer in the transfer papers the right to disregard his wishes if that other so chooses.
    Action by Margaret B. Edson, individually and as executrix, against John A. Bartow and others, as executors^ to impose a trust on a bequest to the executors, and to declare said bequest invalid.
    Joseph H. Choate, Treadwell Cleveland, and W. F. Peddrick, for pl’ff ; David B. Ogden, Edward M. Shepard, S. P. Nash, P. B. Olney, and Huntington & Rhinelander, for deft’s.
   RUSSELL, J.

—The plaintiff seeks to impose a trust upon the property conveyed by the above-named executors to various religious, benevolent, and charitable institutions in the city of New York on the 23d day of June, 1890, and to have this court adjudge such trust to be invalid, so that the property conveyed shall be held to be intestate property of the deceased testatrix, and therefore passed to plaintiff's testator, Marmont B. Edson, the brother1 of Miss Mary A. Edson, who survived her nearly two years. The executors of Miss Edson derived the title which they conveyed to the defendant corporations from this clause of the will of Miss Edson:

‘‘ If, for any reason, any legacy or legacies left by my will, or any codicil, either pecuniary or residuary, shall lapse or fail, or for any cause not take effect, in whole or in part, I give and bequeath the amount which shall lapse, fail, or not take effect, absolutely, to the persons named as my executors. In the use of the same, I am satisfied that they will follow what they believe to be ,my wishes. I impose upon them, however, no conditions; leaving the same to them personally and absolutely, and without limitation or restriction.”

The plaintiff claims that this clause gave no title to the persons named as executors, because it is evident from the terms of the will and the three codicils, and the attendant circumstances, that the testatrix did not mean to give to them absolute title, but adopted this method to dispose of her property for the benefit of various benevolent and religious institutions in the city of New York— some named by her in her will, and some unnamed, but to be appointed— in order to guard against any possible failure in the accomplishment- of her intent arising from restrictive statutes, or indefinite expressions of testamentary disposition, and that the bequest to the persons named as executors was received by them upon such understanding. The will and codicils were drawn and executed in the month of May, 1890, and the testatrix died on the 29th of May, 1890. She received her property through her deceased brother Tracey R Edson, who died in 1881, leaving an estate of over $1,600,000 to Marmont, Susan, and Mary A. Edson, his' brother and two sisters. Susan died in 1885, leaving her share, except what she gave by some specific legacies, to her sister Mary; so that Mary, at her death, in May, 1890, left an estate of ‘ upwards of $1,000,000. Miss Mary A. Edson, after making some small specific bequests, devised and bequeathed to her executors one-third of her estate in trust, to apply the rents and profits to the use of her brother Marmont, if he survived her, with power of appointment to him by will, and to his issue in default of such appointment. She then made certain other specific bequests to various benevolent and religious institutions, and provided that if, by reason of want of incorporation, or any other cause, any society or institution should be unable to take the legacy, then such legacy should go, to the president, treasurer, or chief executive, officer. The residue of the estate she gave and bequeathed to her executors, to be divided by them among such incorporated religious, benevolent, and charitable societies in the city of New York and in such amounts as should be appointed by them, with the approval of the Rev. Dr. Huntington, if living. Then follows the clause giving the property to the persons named as executors, in case of failure or lapse of any of the legacies. On the 23d day of June, 1890, and within a month of the decease of Miss Edson, the persons named as executors, by deed of gift delivered to Stephen P. Nash, gave to the societies specifically named for be« quests the same interests which the grantors took or might take of the sums named in the will, specifically bequeathed to the corporations named, and appointed various other selected coporátions of the city of New York for the remaining beneficial interests, which passed to them under the residuary bequests. Marmont B. Edson, contested the probate of the will on the ground of undue "influence and'fraud; both sssues being decided adversely to him by the surrogate, and on appeal, by the general term. Matter of Edson, 70 Hun, 122 ; 53 St. Rep. 807. An action was brought by the executors for the construction of the will, pending which Marmont B. Edson died, and the cause was continued against his widow and executrix, the present plaintiff. It was heard before Justice Lawrence, decided adversely to the plaintiff here, and also-on appeal to the general term. Fairchild v. Edson, 77 Hun, 298 ; 59 St. Rep. 163. By the decision of the general term, it was held that on the face of the will, extrinsic evidence being irrelevant in that action, no trust was impressed upon the property bequeathed and devised to the persons named as executors. By the decision of-Justice Lawrence and that of the general term, it-was held, in the action for the construction of the will, that various of the -corporations named as legatees could not take, on account of the statute forbidding such bequests by testament made within two months of the decease of the testatrix; and it was also held that the bequest to the officer of a corporation, which could not take"by reason of error in the name or description, and also those to be divided among such incorporated societies as sho'uld be appointed by the executors with the approval-of the Rev. Dr. Huntington, were void for indefiniteness. It will be thus seen that a large part of- the estate of the testatrix passed to’the persons named as executors under the final clause of the will, in case that clause is effective.

In the consideration of the legal question presented to this-court, which is a "court of first instance only, no departure can-be made-from the lines of legal adjudication fixed by the general •term in the two adjudications made by that branch of this court. By the determination in the probate case, it was held that the-testatrix executed the will and codicils freely andunderstandingly^ and all possible effect must be given to the adjudication of her intelligent understanding of the effect of the words she adopts iu making a testamentary disposition of her entire property Code Civil Proc. §§ 2626, 2627; Post v. Mason, 91 N. Y. 539. By the decision of the general term in the action for the construction of the will, it is adjudicated that the language used in the will is not sufficient to create any trust, as against the residuary legatees, and that they took a clear title, if we judge from the force of the. will alone. On this trial, extrinsic circumstances are shown to justify the charge/that in no event were the persons named to have absolute title,, and so bring the case within the rule. of law laid down by the leading óase upon that subject (In re O’Hara, 95 N. Y. 403) and the Fayerweather Case, 36 Supp. 576. The extrinsic circumstances relied upon are substantially these: The-property of the deceased came from her brother Tracey, and she had indicated by previous wills an intention of leaving her property to her other brother, Mannont, the husband of plaintiff, in case of his surviving both of his sisters. The last will that she did make, and which is the subject of dispute, was made at a time when she was suffering under her last sickness, and during the month of her decease. The persons named as her residuary legatees were not those who were so "allied in blood to her that she would care to leave to them the bulk of her estate, in any contingency, and she had in fact given specific bequests to two of ' them. One of the three residuary legatees was her counsel, on whom she relied for advice, and he drafted the will and the codicils, They were all honorable and just men, and so regarded by her, and therefore her expressed or implied wish to them, as she well knew, would be as strong to them as their covenant under seal, to induce conformatory action. Within a month after her decease they justified her expectations by passing out of their own ownership or control every dollar of the property bequeathed to them, in accordance with her specific wishes, where those wishes were specifically stated in her will, and with her general wishes where her purpose, as indicated, was general in its character. It is claimed, therefore, that those circumstances, together with the terms of the will and., codicil, evidenced, by a contract without words, the true character of the interests bequeathed and received. What force have the attendant circumstances upon the questions of fact to be solved ? Do they point to a conclusion which could not be drawn from the will itself? What does the will show her wishes were in regard to the property to be received by the executors? She had already attempted to dispose of all her property, and therein she had expressed what she wanted done with that which she might leave behind. There, and there alone, by the evidence in this case, do her wishes appear. If those wishes were carried out by her acquiescence, or by the judgment of the law, in case of attack, the executors would get nothing. It was only in the contingency that her intent should fail as to any part of the bequests she made that the executors would receive under the final residuary devise and bequest. Their reéeipt of any property under that residuary bequest was secondary to her primary intention, and only designed to be a last resort to effectuate that primary intent. And so. in regard to the interest bequeathed with these words, “In the use of the same, I am satisfied that they will follow what they believe to be my wishes,” no extrinsic circumstances could possibly intensify the language of this will, in the demonstration of what she expected and intended. But we must be exact and not loose and vague, in determining precisely where her wishes would ultimately carry her in all possible contingencies. The probate of the will determines that she executed each sentence of the will freely and understanding^, and 'therefore knew the force of the language which she was using. 'She is not acting as a testatrix executing a legal document which she does not understand the scope of, and relying upon reaching a result in a roundabout way, but determined to reach that result at all events, with the aid of the legal machinery which should protect her wishes. She- voluntarily waives the enforcement of tlie law to guide whatever property the executors might personally take into the channels designed, by the words, “I impose upon them, however, no conditions; leaving the same to them personally and absolutely and without limitation or restriction.” She thus relies upon the moral nature of the gentlemen she deals with, goes outside of the protection of the law, and clings only t© their honesty of character, and not their legal duty. The whole breadth of her scheme is open.' There is no secret trust. Any one may read her intention primarily, secondarily, and in the last contingency.

The scheme of this will, executed with a free, competent and intelligent understanding, is: First. To give minor, specific legacies to friends, which, she doubts not, will be unquestioned. Second. To provide for her brother Marmont and his issue one-third of all she may leave and no more. Third. To give specific bequests to corporate institutions whose life and mission was to do good in this world, but with some doubt on her part as to all of those bequests being effective in law. Fourth. To dispose of the residuum of her estate,-which was more or less to be estimated, aud not certain, by conferring upon her executors, with the approval of her rector, in whose judgment and purity of intent she had had occasion to have unbounded confidence; the power to appoint other benevolent and religious institutions as the beneficiaries, so that the last dollar she did not give to1 friends would be spent in a way to gratify her own charitable heart. Recognizing, however, the doubtfulness in parts of this residuary bequest, as well as the preceding one, she determines, as she has given all to friends that she cares, to dispose of that portion of her estate which might drop from the beneficiaries she designed it for, not on account of the uncertainty of her intention, but of the contingencies which might render those intentions ineffective, by giving absolutely such dropping residuum to three friends, in whom she has full confidence, with the faith that they will see their way clear to render effective her ineffective attempts, but still willing, in the exercise of her intelligent judgment, to place such residuum in their hands untrammeled, save by the protection of those moral considerations1 upon which she relied. With her eyes open she was willing to take her chances. There is no proof in this case of any promise by Mr. Parsons, or either executor, to pass over one dollar of the property which they might receive to any other institutions whatsoever. The argument of the learned counsel for the plaintiff is that because Mr. Parsons drafted the words of bequest, and the words of faith and belief, which Miss Edson subscribed, therefore Mr. Parsons, for himself and his executors, promised to do and perform that which Miss Edson herself believed they would do. It seems to this court that this argument distorts the verbiage of the will. Assuming that Mr. Parsons was the author of the language, and that Miss Edson was an automaton, then such construction was correct. But I am controlled by the previous adjudication, as well as the apparent evidences of the will itself, and must find that Miss Edson knew as well as Mr. Parsons the force of the language which she used, and certainly in regard to those words which convey ideas familiar to all intelligent people and not those which are thoroughly understood by lawyers alone. She herself says:

“ I am satisfied that they will follow what they believe to be my wishes. I impose upon them, however, no conditions; leaving the same to them personally and absolutely, and. without limitation or restriction.”

Thus, in the last solumn utterance 'upon this subject in her life, she intelligently states it to be a matter of belief with her executors what her wishes are, and does not state it to be of knowledge. She claims no promise, but, in as strong words as might be used, releases them absolutely from all legal obligation ; putting her successors outside of the pale of legal remedies, because she preferred to take the chances of their doing as they believed she wished, to giving the property to any one else. Wo actual fraud is here claimed. And there never can be constructive. fraud where a person doés just what she intends to do, of her own free will and intelligence, in passing title to others of that property which she deliberately determined to take away from her own succession. The question then comes to this, which must be decided in the case: Is it impossible, under the law of the state of Wew York, for an owner of property, by deed, will, or transfer, to absolutely give to another that property in the full expectation or belief that that other will apply it to certain specific purposes, but at the same time conferring in the transfer papers the right to disregard his wishes if that other so chose? Is there any such limitation upon the power of' transfer? Could the owner afterwards, when he had repented of his act,:—there being no attendant fraud',—recover it back ? The design of the mortmain act was to protect the heirs and next of kin from the influence of advisers, exerted during the failing powers of the testator, and thus preventing a different disposition of property from that which a free and unterrorized mind would otherwise make. The statute (chapter 319 of'the Laws of 1848), does not inhibit convenances. If, on the day her will was made, Mary A. Edson had, by power of attorney coupled with an interest, which would enable the power to survive, authorized the three gentlemen named as her executors to convey by appointment, would there have been %nj legal objection ro the validity of the executed after her death ? Given her free and intelligent understanding of all the terms of her will, there was no trust ex maleficio created by her devise and bequest to the three persons named as executors. They had the full right to receive residuum as their own. They had the full power to follow the dictates of their conscience in divesting themselves of that property, and placing it where they knew the testatrix wished it to go.

So far as the general term decision in the construction case is applicable to the case, it is authority for the conclusions I have reached. Judgment is rendered in favor of the defendants, dismissing the complaint, with costs.

Complaint dismissed, with costs.


source: Caselaw Access Project

author: GIEGERICH, J.

license: Public Domain

text:
    William McDonough, by Guardian, etc., Pl’ff, v. Mayor, Aldermen and Commonalty of the City of New York, Def’t.

      (Supreme Court, New York Trial Term,

      Filed February 3, 1896.)

    Municipal corporations—STotice op claim.
    Section 1104, chap. 410 of 1894 (Consolidation Act), does not apply to claims arising ex delicto.
    The complaint was dismissed, and plaintiff moves for a new trial.
    James R. Angel, for pl’ff, William H. Rand, for def’t.
   GIEGERICH, J.

— This action is brought for the recovery of damages for injuries alleged to have been caused by defendant’s negligence. Before plaintiff opened his case, the defendant moved to dismiss the complaint on the ground that the former had not complied with section 1104 of the consolidation act (Laws 1882, c. 410), which provides as'follows :

“ No action or special proceeding shall be prosecuted or maintained against the said mayor, aldermen and commonalty unless it shall appear by, and as an allegation in the complaint.or necessary moving papers, that at least thirty days have elapsed since the claim or claims upon which said action or special proceeding is founded were presented to the comptroller of said city for adjustment, and that he has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.”

The plaintiff admitted that no such claim had been presented to the comptroller; and as the complaint contained no other allegation as to preliminary proceedings, save that notice of the intention to commence an action had been filed with the counsel to the corporation, pursuant to chapter 572 of the Laws of 1886, it was dismissed. My attention has since been called to the decision in the case of Harrigan v. City of Brooklyn, 119 N. Y. 156 ; 28 St. Rep. 957, which appears to be adverse to the position contended for by the defendant. In that case the court of last resort passed upon a provision contained in a charter of the city of Brooklyn (chapter 588, Laws of 1888, tit. 22, § 30), similar in all respects to the one above cited, and it was there held that “the words 1 claim or account,’ in connection with the purpose of presentation, and the designation of the officers to whom the presentation is to be made, naturally indicate claims on contract, which may, in ordinary course, be adjusted by the comptroller or chief financial officer or officers of the city, the justness of which may be ascertained by the summary method of examination provided,” and hence it did not apply to claims arising ex delicto. The principle of this decision has since been followed in the case of Sherman v. Village of Oneonta, 49 St. Rep. 267, and is, in my opinion, controlling in this case.

It therefore follows that the dismissal of the complaint was error, and that a new trial should be granted, with $30 costs to the plaintiff to abide the event.


author: PRYOR, J.

text:
    Arthur R. Monette, Pl’ff, v. Ludwig Chardon, Def’t.

      (Supreme Court, New York Special Term,

      Filed February, 1896.)

    1. Appearance—Special.
    A special appearance is allowable only to challenge jurisdiction, and such appearance for any other purpose is, in legal effect, a general appearance.

      %. Attachment—Firm.
    The delinquency of a partner exposes neither the copartner’s nor the firm property to attachment.
    8. Same—Affidavit.
    An affidavit in an attachment, which avers, on information and belief, that the defendant has departed from the state with intent to defraud his creditors, without stating any facts in support of such averment, is not sufficient to sustain an attachment.
    Defendant moves to vacate an attachment, on the original papers.
    Franklin Bien, for motion; Roger Foster, contra.
   PRYOR, J.

—Defendant’s notice of appearance is not among the papers before me; but I assume, on the representation of counsel, that the appearance is special, merely to move a vacation of the attachment. Upon principle and authority it seems that a special appearance is allowable only to challenge jurisdiction, and that such appearance for any other purpose is, in legal effect, a general appearance. 2 Enc. Pl. & Prac., p. 632, and cases in note; Blossom v. Estes, 84 N. Y. 614 ; Cruger v. Railroad Co., 12 id. 190. Whether, therefore, the defendant appear specially or generally, he is in a position to question the validity of the attachment for defect or - jurisdiction. Conceding, for argument, the sufficient verification of the complaint, and that -its allegations are upon personal knowledge, still, I conclude that in connection with the affidavit no ground of attachment is apparent in the papers. Conversion is the ground of attachment indicated in the complaint. Code, § 635, as amended by chapter 578, Laws 1895. Assuming that the general allegation of conversion be sufficient (Arming v. Monteverde, 8 St. Rep. 812), and that it is available though not recited in the warrant; Thames & M. M. Insurance Co. v. Dimmick, 51 St. Rep. 41) ; the affidavit shows that the conversion was not by the defendant, but by his partner. But the delinquency of his partner exposes neither the defendant’s nor the firm property to attachment. Bogart v. Dart, 25 Hun, 395.

The grounds of attachment recited in the warrant are that the defendant “ has departed from the state with intent to defraud his creditors and to avoid service of a summons, and has assigned and disposed of his property with the like intent.” The allegation of departure with intent to avoid service of summons and to defraud creditors is simply “upon information and belief,” and the affidavit shows that the fraudulent disposition of property was by the partner and the firm, without any personal participation of the defendant in the wrong. Bogart v. Dart, supra. It is an indispensable condition of jurisdiction to award an attachment that the facts requisite by statute to its issuance be presented to the court. Blossom v. Estes, 84 N. Y. 614, 617 : Zeregal v. Benoist, 33 How. Prac. 129, 134. An allegation of conclusions without supporting facts is nugatory. Hodgman v. Barker, 60 Hun, 156; 38 St. Rep. 578 ; American Horse Exchange v. Strauss, 57 St. Rep. 791; Mechanics’ & F. Bank v. Loucheim, 8 N. Y. Supp. 520. A mere averment on information and belief is not enough (Ladenburg v. Commercial Bank, 87 Hun, 269; 67 St. Rep. 466), —k proposition not controverted by the court in 148 N. Y. 202. The imputation of fraudulent intent on the part of the defendant in leaving the state and disposing of property is not supported by a solitary auxiliary fact.

To uphold this warrant on these papers would dispense with all the safeguards of property against the'havoc of executions before judgment—for such are attachments—which the law has so sedulously provided for its security. The inevitable conclusion is that the court was without"jurisdiction to issue the attachment upon any ground apparent in the papers. Bank v. Alberger, 78 N. Y. 252 ; Norfolk & N. B. Hosiery Co. v. Arnold, 46 St. Rep. 491 ; Furman v. Walter, 13 How. Prac. 349.

The attachment must be vacated.


author: BARRETT, J.

text:
    Paul R. G. Horst et al., App’lts, v. D. G. Yuengling Brewing Company, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    Deposition—Examination before trial—Corporation.
    Where, in an action against , a corporation upon a contract made by a former corporation, to whose business defendant has succeeded, plaintiff predicated defendant’s liability on the assumption by defendant of its predecessor’s obligation's, which defendant denies, an order directing the examination of the president of the corporation before trial and requiring him to produce certain books and papers of the corpóiation will be granted though plaintiff is in possession of the contract sued on, where he has no proof that the persons who executed the contract on behalf of the corporation were authorized to do so, or that the corporation has assumed the liability.
    Appeal from.an order, vacating an order directing defendant’s president to appear before a referee for examination before trial, and to produce certain books and papers of defendants.'
    The affidavit of Paul R. Gr. Horst in support of the motion1 is as follows:
    (1) I am one of the plaintiffs in this action, and reside at No. 131 West Seventy-eighth street, New York. The other plaintiffs are Louis A. Horst, residing in London, England, and E. Clemens Horst, residing in Sacramento-, California. The plaintiff’s attorneys are Briesen & Knauth, whose office address is 229 Broadway, New York City. The defendant is a domestic corporation, as the deponent is informed and believes, and has its principal place of business at One Hundred and Twenty-eighth' street, in the city of New York. This action wss commenced by service of the summons on the defendant on March 4, 1895; and the defendant has appeared in this action by its attorneys, Gfuggenheimer, Untermyer & Marshall, whose office is at No. 46 Wall street, in the city of New York.
    (2) The nature of the action and of the defense interposed by the defendant, as shown by the complaint and answer, copies of which are hereto annexed', is as follows: The plaintiffs are, and for a number of years have been, partners in the business of hop dealers, in the city of New York. On or about April 29, 1892, they entered into a large number of contracts with the D. Gr. Yuengling, Jr., Brewing Company, a domestic corporation, being the predecessor in business of the defendant, for the delivery of large quantities of hops at different stated times, such deliveries to cover a period of about four years. These contracts were made in writing; and signed by the plaintiffs, and by David Gr. Yuengling, Jr., manager, and John M. Moser, treasurer, claiming to act on behalf of the said D. Gr. Yuengling, Jr., Brewing Company. Following is an exact copy of one of these contracts;
    “ Hop Contract.
    “Memorandum of an agreement, made and entered into by and between Horst Brothers, doing business in the cities of New York and San Francisco, parties of the first part, and D. Gf. Yuengling, Jr., Brewing Co., parties of the second part, witnesses: That the said parties of the first part agree to sell and deliver to the parties of the second part, and that the parties of the second part agree to purchase, pay for, and receive from the parties of the first part, fifty (50) bales, prime Pacific Coast hops of the crops of 1894,. three and one-half pounds tare to be deducted on each bale. Said hops to be delivered at dock or store, New York City, and to be paid for in net cash, ten days from date of arrival, a't the rate of twenty (20) cents pier pound. Time of shipment, October, 1894, except as hereinafter provided. If at any time a difference of opinion shall exist regarding the quality er condition of any hops submitted or tendered under this agreement, each party shall select an arbitrator, to whom the question of the quality and condition shall be submitted, and in case of their disagreement a-third arbitrator shall be selected-by the two thus chosen, and the decision of -a majority of the three shall be fi(nal; and in case the decision shall be that the hops tendered are not equal to the quality above called for, the parties of the first part shall, within thirty day's after receipt of written notice of such decision, submit samples, or tender delivery to the parties of the second part, other hops, in fulfillment of this agreement, and parties of the second part agree to receive same. In witness whereof, the said parties have hereunto set their hands, New York, this 29th day of April; 1892. “ IIorpt Bros.
    “ D. Gr. Yuengling, Jr., Brewing Go.
    “ D. Gr. Yuengling, Jr., Manager.
    “John M. Moser, Treasurer.”

      The originals of these contracts are in the possession of the plaintiffs, and ready to be produced at the trial. At the end of the year 1893, however, the said D. Gr. Yuengling, Jr., Brewing Company went out of business, and transferred all its business and assets to a newly-formed corporation, which is the defendant in this action, and was incorporated, as deponent is informed and believes, in December, 1893, under the name of D. G-. Yuengling Brewing Company, under the laws of the state of New York, for the purpose of re-organizing and carrying on the business of the D. Gr. Yuengling, Jr., Brewing Company. This new company is now carrying on the same business at One Hundred and Twenty-Eighth street, in the city of New York, at the former place of business of D. Gr. Yuengling, Jr., Brewing Company. Deponent is informed and believes that at or about the same time, to wit, in the month of December, 1893, the new company entered into an agreement with the former company, whereby the said new company, the defendant, was to buy in all the personal property, effects, and chattels of every kind, including- the stock in trade, good will, and book accounts of the said D. Gr. Yuengling, Jr., Brewing Company, the old company, in consideration whereof the defendant was to assume all the debts, obligations, and liabilities of every kind and description, of the D. Gr. Yuengling, Jr., Brewing Company. This agreement, as deponent is informed and believes, was, in the beginning of the year 1894, carried out between the parties to it. Nevertheless, the said D. Gr. Yuengling Brewing Company, the defendant in this action, has refused to perform, on its part, the contracts made with the plaintiffs by the D. G-. Yuengling, Jr., Brewing Company for the delivery of hops in the months of October, November, and December, 1894, and January and February, 1895, as alleged in the complaint, although the hopes due in these months were duly tendered by the plaintiffs to the said defendant at its place of business. The price of hops has, since the making of the said contracts sued on, greatly fallen. For this refusal to perform the said contracts, the plaintiffs have brought this action for the recovery of the sum of ninety-five hundred dollars ($9,500) as damages for breach of said contracts. The defendant’s answer is a general denial of the allegations of the complaint, excepting those relating to the incorporation of the defendant company and its refusal to accept the goods offered to it by the plaintiffs.
    (3) The assumption by the defendant of. the said contracts made by the D. Gr. Yuengling, Jr., Brewing Company with the plaintiffs is denied by the defendant’s answer. The plaintiffs, however, have no means to prove such assumption', all the evidence and information regarding this point being particularly inothe knowledge and possession of the defendant; also, the authority of the said David Gr. Yuengling, Jr., and the said John M. Moser, to enter into the said contracts with the plaintiffs on behalf of the D. Gr. Yuengling, Jr., Brewing Company, must be proven at the trial by the plaintiffs, as the said defendant denies the making of the contracts. The plaintiffs, however, have no means to prove the extent and scope of the authority of these parties to act for the D. Gr. Yuengling, Jr., Brewing Company, and the defendant is in possession of all the knowledge and. evidence regarding this matter, it being the successor of, and standing in the place of, the said D. Gr. Yuengling, Jr., Brewing Company, and it having possession of all the books of minutes and other records of the said D. Gr. Yuengling, Jr., Brewing Company, as deponent is informed and believes. Deponent is advised by his counsel, and verily believes, that an examination of the defendant, through David Gh Yuengling, Jr., who is its president, and an inspection of any and all agreements made between the said defendants and the D. Gr. Yuengling, Jr., Brewing Company, and all the books of minutes of directors’ and stockholders’ meetings, agreements of employment of the said David G. Yuengling, Jr., and John M. Moser, and other records of or in possession of the said defendant, relating to the assumption of all the obligations of D. G. Yuengling, Jr., Brewing Company by the defendant, and to the making of the said contracts, and to the authority of said David G. Yuengling, Jr., and John M. Moser, to make said agreements, is indispensably necessary to the plaintiffs, to enable them to prepare for trial in this action. The plaintiffs are unable to procure said evidence and information other than by the'examination of the defendant, through one of its officers, and the inspection of its said books and records aforesaid. Deponent verily believes that the said David G. Yuengling, Jr., the president of the defendant company, has full knowledge as to the matters hereinbefore set forth, as he was the manager of the D. G. Yuengling, Jr., Brewing Company, and, as such, conducted the negotiations with the plaintiffs, and signed the said contracts on behalf of said company, and is now the president of the defendant company, and has personally stated to deponent that the said contracts had been assumed by the defendant company, which statement, however, was subsequently contradicted by defendant’s attorneys.
    Your deponent further says that, as he is informed and believes, the D. G. Yuengling, Jr., Brewing Company is absolutely insolvent, and, after the transfer of its assets to the defendant, the plaintiffs will not be able to recover anything from it. This application is made in good faith, for the very purpose stated in this affidavit, and none other, and plaintiffs intend to use the testimony to be taken on the trial of this action. Ho previous application for the accompanying proposed order has been made.
    Antonio Knauth, for app’lts ; Moses Weinman, for resp’t.
   BARRETT, J.

A clear case was made out for the examination of the defendant’s president. It is true that the plaintiff's have in their possession the written contracts upon which they sue, but they have no proof that Yuengling and Moser were authorized by the corporation to execute these contracts on its behalf. Hop have they proof of the assumption by the defendant of such contract obligations. The application was not in the least speculative. It was a proper effort to secure legal evidence, and was fully justified by a declaration of the defendant’s president to the effect that the contracts in question had been assumed by. the defendant company. A proper case was also made out for the production by the witness-of books and papers, as authorized by the seventh subdivision of section 872 of the Code of Civil Procedure. The respondent is in error in supposing that the plaintiffs’ object was a discovery or an inspection of these books and papers. No such discovery or inspection is authorized under these proceedings. What the witness is required to do is simply to produce the books and papers upon his examination. The effect of the order in this is the same as a subpoena duces tecum upon the trial. What the plaintiffs would be permitted to do upon the trial, under a subpoena duces tecum, they may do now under this order,—no more; no less. Their object is to prove their case by the testimony of the witness, and by such documentary evidence as he may produce under the order. This is plainly a case where the proof of authority and assumption must, in the main, be documentary; and it was entirely proper to require the witness to produce such documentary evidence, not, as already suggested, for “inspection,n but as an adjunct to the examination of the witness, and to enble the plaintiffs to put the documentary evidence in as a part of such oral examination.

The order appealed from should be reversed, with $10 costs and disbursements of the appeal, and the motion to vacate the order should be denied. Upon the settlement of the order á date can be fixed when the examination under the original order should proceed.

All concur.


author: McELROY,

text:
    In the Matter of the Judicial Settlement of the Accounts of the Executor of the Will of Hannah P. Foster, Deceased.

      (Surrogate’s Court, Orange County,

      Filed December, 1895.)

      1. Limitation—Executor—Sbt-off.
    An executor has an equitable lien upon, and a right to retain out of, a legacy an amount due from the legatee to the testator, and this right is unaffected by the fact that such debt is barred by the statute of limitations.
    2. Executor—Assets—Satisfaction.
    A debt, due the testator from one to whom he has given a legacy, is an asset of the estate in the hands of the legatee, and is a satisfaction of the legacy, to the extent of such asset.
    8. Same.
    Where a creditor bequeaths a legacy to his debtor, and either does not notice the debt or mentions it in snob manner as to leave his intention doubtful, and after his death the security for the debt is found uncanceled among the testator’s property, courts of equity do not consider the legacy to the debtor as necessarily, or even prima facie, a release or extinguishment of the debt, hut require evidence clearly expressive of the intention to release; and, if such intention does not appear clearly expressed or implied on the face of the will, evidence from other sources will he proper.
    4, Wills—Bequest to debtor.
    A bequest to a debtor of the testator does not, of itself, extinguish the debt.
    B. V. Wolf, for executor; Dill & Cox, for contestants.
   McELROY,

Special Surrogate. — The note above mentioned was made July 15, 1.882, payable one day after date, with interest. On the 19th, day of July, 1889, the testatrix made her will, whereby she bequeathed to her son Albertus A. Foster the sum of $200. At this time more than six years had elapsed' since the making of this note, and no interest, or any part of the principal of said note, had been paid. Under Schedule B. of the account filed, the executor credits himself with the following item: “ Promissory note of Albertus A. Foster, by limitation of law not collectible, $150." Under Schedule G of said account, the executor also credits himself with the following item: “Paid-legacy to Albertus A. Foster, $200.” The executor contends (1) that, the statute of limitati- n: having run against the note-, the executor could not apply the legacy of $200, or so much thereof as might be necessary to pay said note; (2) that by the provisions of said will the legacy of $200 was intended to be in addition to any indebtedness her son Albertus A. Foster might owe her.

The statute of limitations ordy affects the legal remedy, and in no case operates as a discharge or satisfaction of a debt. It does not even raise a presumption of payment, but is merely a bar to the remedy by action. That an executor has equitable lien upon and a right to retain out of a legacy an amount due from the legatee to the testator, and that this right is unaffected by the fact that such debt is barred by the statute of limitations, is well established, Rogers v. Murdock, 45 Hun, 30; 9 St. Rep. 660, and cases cited.

The testatrix, by her will, disposes of the greater part of her household furniture, beds, bedding, etc., by specific legacies, and the eighth clause of her will is as follows:

“Eighth. I order, direct and empower my executor hereinafter named to sell, as soon after my death as he shall deem it advantageous to my estate, all the rest and remainder of my personal property and estate, and all my real estate of which I may die seised, at public or private sale, at his discretion, and convert the same into money; and I give, devise, and bequeathed the proceeds of the sale of said real and personal property as follows : To my son John S. Foster, the sum of one hundred dollars ($100). To my son Albertus A. Foster, the sum of two hundred dollars ($200). To my husband, George A. Foster, all the rest, residue and remainder of the proceeds of the said sale of real and personal property and estate, for and during his natural life; and from and after Ins death I give, devise, and bequeath the same to my own children, share and share alike. I order and direct my said executor, after making the said sale, and paying the legacies to John S. and Albertus A. Foster, to safely invest the balance of the proceeds of said sale, and keep the same safely invested for and during the natural life of my husband, George A. Foster, and pay the interest and income arising therefrom, after deducting legal expenses, to my said husband, George A. Foster, as soon as received.”

The executor of this estate was directed to convert the personal property and estate, and all real estate, into money, from which was to be paid the legacies to John S. and Albertus A. Foster’. The only question to detemine now is, was this note for $150, made by Albertus A. Foster, an asset of his- estate? A debt due the testator from one to whom he has given a legacy is an asset of the estate in the hands of the legatee, and is a satisfaction of the legacy, to the extent of such asset. Clarke v. Bogardus, 12 Wend. 69; In re Bogart, 28 Hun, 468 ; Rogers v. Murdock, 45 Id. 32 ; 9 St. Rep. 660; Smith v. Murray, 1 Dem. Sur. 34; In re Colwell, 15 St. Rep. 742. When a creditor bequeaths a legacy to his debtor, and either does not notice the debt, or mentions it in such a manner as to leave his intention doubtful, and after death the security for the debt is found, uncanceled, among the testator’s property, the courts of equity do not consider the legacy to the debtor as necessarily, or even prima facie, a release or extinguishment of the debt, but require evidence clearly expressive of the intention to release; and if such intention does not appear clearly expressed or implied on the face of the will, evidence from other sources will be proper. No evidence, however, was offered on the part of the executor upon this accounting, so we are obliged to determine the intention of the testatrix from her will; and after a careful examination of this will, I fail to find expressed' intention on the part of the testatrix to give this legacy of $200 to Albertus in addition to the debts he owed the testatrix. At the time she made her will this son, Albertus, owed the the testatrix another note for $25, which the account shows to have been collected by the executor, but no mention is made of either note in testatrix’s, will. While it is true, that the testatrix, in plain language, directs that, from the proceeds of sale, John S. is to receive a legacy of $100, and Albertus is to receive a legacy of $200, and the balance is then to be invested for the use of her husband, it is equally true that nowhere in the will does the testatrix say, or even intimate, that in collecting the assets of her estate, and converting the same into money, this executor was not to consider this $150 note as the law says it is, viz. an asset of the hands of the legatee.

In the case of Smith v. Murray, supra, Surrogate Rollins says:

“Nobody would contend that the mere gift of a legacy is of itself, and necessarily, a manifestation of an intent on the part of the testator to remit a debt due him from the legatee.” Smith v. Kearney, 2 Barb. Ch. 533, 547-549; Wright v. Austin, 56 Barb. 17 ; Close v. Van Husen, 19 Id. 509 ; Rickets v. Livingston, 2 Johns. Cas. 100.

I am therefore of the opinion that this executor should have applied this legacy of $200 to Albertos A. Foster, or so much thereof as may be necessary, towards the payment of this note for $150, and interest from July 15, 1882, to the date of the death of testatrix, and that the account should be amended and settlement made in accordance with the foregoing, and so order.

Decreed- accordingly.


author: TOMPKINS, S.

text:
    In the Matter of the Application for the Probate of the Will and Codicil of George Van Houten, Deceased.

      (Surrogate’s Court, Rockland County,

      Filed December, 1895.)

    1. Will—Execution.
    Where the attestation clause and the surrounding circumstances satisfactorily establish the due execution of the paper, it should be admitted to probate, even though it is'in direct opposition to the testimony of both subscribing witnesses.
    2. Same.
    It is not essential that the witnesses should actually witness the contact of the point of the pen and the paper in every case where the testator fails to acknowledge the signature as his signature.
    3. Same.
    The testimony, in this case, was held to be sufficient to establish that the statute was complied with and that the paper was signed by the testator in the presence of the witnesses.
    Application for the probate of the will and codicil of George Van Houten, deceased.
    Frank Comesky, for executors ; Alonzo Wheeler and A. T. Fallon, for legatees ; Garrett Z. Snider, for contestant,
   TOMPKINS, S.

—George Van Houten died, at the age of about eighty-four years, on the 15th day of August, 1895. On the 7th day of May, 1895, he executed the will now offered for probate. On the 29th of May, 1895, the paper propounded as a codicil to the will purports to have been executed. No objection is made to the will, but the probate of the codicil is objected to on the ground that it was not executed in conformity with the statute.

The contestant alleges : First, that it has not been shown that the alleged codicil was subscribed by the testator in the presence of the attesting witnesses; second, that it does not appear that he acknowledged his subscription or execution in the presence of the attesting witnesses; third, that it has' not been shown that the subscription was made in the presence of the attesting witnesses; fourth, that it does not appear that the testator declared the paper referred to as being the codicil of his last will and testament, and that it has not been shown that the testator, at the time of the alleged execution of the paper referred to, was of sound mind, or competent to make a will or codicil.

The last ground, viz. the incompetency of the testator, I understand, is not now urged ; hut the principal contention of the contestant’s counsel is that the alleged codicil was not subscribed by the testator in the presence of the attesting witnesses, and that the testator did not acknowledge his signature, and did not declare ' the mark made by him to he his signature, and that the attesting witnesses did not see the signature made by the testator.

The signature of the testator upon the alleged codicil appears in the form of a cross mark between the Chrisian and surnames of the testator, which were written by Mr. Huested, who prepared the will. The witnesses to this paper were Deuel and Banson. The testimony of Deuel as to what occurred at the time of the execution. of the paper is, in effect, as follows

He, Huested, and Banson went into the room, where the testator was sitting, together. Mr. Huested did some writing at a table in the room, and went to Mr. Yan Houten, and. read what he had written. Mr. Huested held the pen and wrote the testator’s name, and the testator held the penholder while Mr. Huested wrote. After the testator had hold of the pen in Mr. Huested’s hand, Mr. Huested asked Mr.Van Houten if that was his last will and testament, or words to that effect. The testator answered by an affirmative nod of his head. Mr. Huested wrote the words “George Van Houten" opposite the seal upon the codicil. “I saw it in this way: I was sitting five feet from Mr. Van Houten. Mr. Huested had the paper and the pen and he did the writing while Mr. Yan Houten held the pen. ' At that time I did not see what mark the pen made when Mr. Yan Houten had his hand on it. 1 don’t think I can swear whether the signature was made when Mr. Yan Houten had his hand'on the pen, or simply the cross mark. I am unable to say what mark or character of writing was made at the time Mr. van Houten had his hand on the pen. At the time Mr. Yan Houten had his hand on the pen, I think the paper was on a book held by Mr. Huested in his left hand, and he held the pen in his right hand, and Mr. Yan Houten put his hand on the holder of the pen; but what mark was made I did not see, and cannot swear to. I was looking at Mr. Van Houten when Mi'. Huested held the pen. When I signed the paper I did not observe the mark there,—did not look to see if it was there. I won’t swear that, when I signed my name, that cross mark was there opposite the seal.”

On the same subject the witness Banson testified that:

“Mr. Huested asked the testator .if we [meaning himself and Deuel] would do as witnesses to the codicil, and Mr. Yan Houten .replied, ‘Yes.’ Then Mr. Huested took the paper over to Mr. Yan Houten, and took a book from a table, and placed it upon Mr. Yan Houten’s knees, and then Mr. Huested took the pen in his hands while I stood looking down on them. Then he asked him if he declared that to be his codicil to his last will and testdrnent. He replied in the affirmative. Then Mr. Huested wrote, while Mr. Yan Houten had hold of the pen. I cannot say what writing Mr. Huested did on this paper while Mr. Yan Houten had the pen in his hands. I could not see the point of the pen. I could not see where the paper and pen came together.” The witness was not positive as to who signed first. While' the testator had his hand on the penholder the pen madé a scratching noise, as if its point had caught in the paper. This witness testified that, to the best of his knowledge, all of the writing above the signature of himself and Mr. Deuel, below the fold in the paper, was there at the time he signed his name. “I saw his hand upon the pen, ami the pen move as if making a mark, and I heard the pen scratch. I did not see the point of .the pen. Mr. Yan Houten’s hand prevented it. I whs about seven feet from him. The paper that I signed was the same paper that Mr. Van Houten wrote on. The paper was carried directly from the table to Mr. Van Houten. I saw Mr. Van Houten have the paper in his hands, and saw him. place his hands or fingers upon the top of the pen, and saw the hand move over the paper, and heard the scratch made by the pen. I had no glasses on.”

The witness’ eyesight is poor, and while on the witness stand, it was necessary for him to hold the paper from eight inches to a foot in front of his eyes in order to distinguish writing from the blank paper. The substance of the testimony of both witnesses is that, while they did not see the mark actually made upon the paper, and did not have their attention called to the particular mark or writing placed upon the paper by Van Houten after it was made, or before or while they were making their signatures; they, nevertheless, did see the testator’s hand upon the pen, and the pen, guided by Mr. Huested, pass over the paper, and Mr. Ranson heard the scratching sound, and was only prevented from actually seeing the mark made by Mr. Van Houten’s hand resting upon the pen. It was all done in one room, these four parties all being present, the witnesses being about seven feet from testator when the mark was made, and there was no other paper present than the one signed by the witnesses; and they signed the same paper which they saw the testator make some marks upon, and which was declared by him to be a codicil to his last will and testament in answer to Mr. Huested’s question. There appears upon the paper where the mark was made spattered ink, and indications of the point of the pen having caught in the paper while the mark was being made. This corroborates the testimony of Ranson, and the proponents claim that, at the time, in the presence of both witnesses, the mark was made by the testator. Certain it is that some mark was made by the testator upon the paper while the testator’s hands or fingers were upon the penholder. No other mark appears anywhere upon the paper except that at the foot of the instrument, and immediately preceding the attestation clause, immediately after it was declared in the presence of both witnesses to be a codicil, etc., and they immediately signed their names at the foot of the same page upon which the mark appears. The attestation clause is full and complete. S. B. Huested, who drew the will and codicil, and who, while not a lawyer, had drawn a number of wills, and had had considerable experience in the execution of wills, testified fully and in detail as to what occurred and what was done at the time of the execution of the codicil. After he had prepared the paper and read it over, “ paragraph by paragraph,” to the testator, the following occurred:

“We three (meaning the witnesses and himself) went into the room. I introduced Mr. Deuel to Mr. Van Houten as the teacher. I then sat down to the table and wrote the testamentary clause for the subscribing witnesses. Then I took a large book, and took it to Mr. Van Houten’s chair, placing it before him, and wrote his name, and asked him to place his hand on the pen, and he took hold of the top of the pen, and I made the mark. I then went to the table, read over the testamentary clause to the witnesses, and they came to the table, and signed it there. After Mr. Van Houten had signed .it, I asked him,.1 You declare this paper to be your codicil to your last will and testament.’ He said, ‘I do.’ And ‘ You request Mr. Ranson and Deuel to sign as witnesses ?’ And his answer was, ‘Yes.’ After that I read the subscribing clause for the witnesses, and they signed it in Mr. Van Houten’s presence.” The following question was asked : “ Q. Did hé sign in their presence? A. He did.”

I am satisfied that the statute was complied with, and that the-paper was signed by the testator in the presence of the witnesses. Where the attestation clause and the surrounding circumstances satisfactorily establish the due execution of the paper, it should be admitted to probate, even though it be in direct opposition to-the testimony of both subscribing witnesses. Trustees, etc. v. Calhoun, 25 N. Y. 423 ; Rugg v. Rugg, 83 id. 592. Here the attestation clause was complete, and stated all the formalities requisite to the due execution of the paper, and was read by Huested to them. The attestation clause is supported by the testimony of Huested. I am convinced that the testimony of the subscribing witnesses, unsupported by any other fact or circumstance, would require the probate of the paper. From their testimony it was-signed in their presence by the testator. It would not be in accord with the meaning or spirit of the statute to hold that it was essential that the witnesses should actually witness the contact of the point of the pen and the paper in every case where the testator fails to acknowledge the signature as his signature. The rule is that, unless the witnesses are present when the paper is subscribed, and witness the subscription, they must see the signature- and hear it acknowledged by the testator to be his own signature. In the cases cited by counsel for the contestant (Sisters of Charity v. Kelly, 67 N. Y. 409 ; In re Simmens’ Will, 30 St. Rep. 446 ; Woolley v. Woolley, 95 N. Y. 231, and others), the witnesses did not see the testator make his signature, and probate was denied, either because the witnesses did not see the signature, or have it acknowledged to be such by the testator. They are not applicable here, because I hold that the physical act of making the signature was done in the presence of both witnesses, and was seen by them within the meaning of the statute, although they did not, see the mark. I am satisfied that, when the witnesses saw Van Houten’s hand upon the pen, and saw it move over the paper, and heard the scratching noise upon the paper, he (Van Houten). was in the act of making the mark which now appears at the foot of the instrument, and which stands for his signature. In re Mackay’s Will, 140 N. Y. 615 ; 18 St. Rep. 558, probate was refused because the signature was not made in the presence of the witnesses, nor did they see the testator’s signature upon the paper, nor was any acknowledgment in respect to the subscription made by the testator.

The purpose of the statute and the several safeguards provided by it are to prevent perpetration of fraud. The testimony of witnesses before me renders it perfectly clear that the paper upon which Van Houten held and moved the pen was the same paper which he declared to be a codicil, etc., and the same paper signed by them and now offered with the will for probate, and that the mark now appearing at its foot was then made by him. With these facts so clearly appearing, no fraud can be accomplished by admitting the codicil to probate ; but, on the contrary, great wrong would be done, and the testator’s wishes and purposes would be thwarthed, if it was refused probate.

Motion of contestant denied.

Decreed accordingly.


author: WILLIAMS, J.

text:
    Johanna Kuechenmeister, App’lt, v. Vernon H. Brown et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    Negligence—Dangerous premises—Duty of occupant.
    It is the duty of the occupant of premises to keep the cover of a coal hole in the sidewalk in front of such premises safely secured in its place, and if, through his own carelessness or that of his agents or servants, it is left unsecured and the hole unprotected, he is guilty of negligence.
    Action by Johanna Kuechenmeister against Vernon H. Brown, as tenant of house No. 202 West Forty-fourth street, in the city, of New York, and John Jacob Astor, executor of William B. Astor, as owner of said premises, for personal injuries. A judgment of the trial term of the court of common pleas, in which the action was brought, dismissing the complaint, was affirmed by the general term of that court. Afterwards a motion for a reargument was granted, and the reargument now comes on fo'r hearing in the appellate division of the supreme court, pursuant to Const. 1895, art. 6, section 2.
    The case was tried before a court and a jury. At the close of the plaintiff’s evidence, the court dismissed the complaint The action was brought to recover damages for personal injuries, and was sought to be maintained upon two grounds,—the maintenance of a nuisance and negligence. The plaintiff testified on the trial that on the 22nd day of January, 1892, about eight o’clock at night, it being dark and snowing, while walking upon the sidewalk in front of the premises occupied by the defendant, she stepped upon the cover of the coal hole; it flew away, and she fell down into the hole as far as her knees, and, in falling, received the injuries complained of; that the cover was lying by the hole, and the hole was all open. She then called the defendant as a witness, and he testified that he was the occupant of the premises, and had been a year before the accident; that there was a connection from the sidewalk to the cellar of the house; that he used the cellar for coal, and the coal hole to put the coal in the cellar ; that the coal-hole cover, and the means of securing the same, were all in perfect condition at and prior to the accident, and, if the cover was properly secured in its place, it would be impossible for any one to fall into the hole. He also testified that he examined the coal hole immediately after the accident occurred, and found the cover properly secured in its place. No other witnesses were sworn, and upon this evidence the decision of the court was made.
    Edward Grosse, for app’lt ; Ira D. Warren, for resp't.
   WILLIAMS, J.

—The trial court erred in taking the case from the jury and dismissing the complaint. The question of the defendant’s negligence should have been submitted to the jury. Ifc is not necessary to determine whether the coal hole in the sidewalk was a nuisance, so as to render defendant liable for any damages resulting from its maintenance, regardless of the question of negligence. It is evident that no accident would have occurred, in the absence of negligence in keeping the cover properly secured. No one would have fallen into the hole, so long as the cover was kept in its pi ape by' the appliances provided for that purpose. The case may, therefore, be treated purely as one of negligence, and in this view the question of the defendant’s negligence was clearly for the jury. If the cover was unsecured and out of its place, and the plaintiff fell into the hole, as she testified she did, then, certainly, the defendant may be charged with negligence. It was his duty to keep the cover safely secured in its place, and. if, through his own carelessness, or that of his agents or servants, it was left unsecured, and the hole unprotected, then he was guilty of negligence. The appliances for securing the cover were below the walk, in the premises of the’defendant ; and the inference might well have been drawn by the jury that the condition of the hole and cover at the time of the accident was due to the act or neglect of the defendant, or his agents or servants. Whether the hole was uncovered, and the plaintiff fell into ifc, as she testified on the trial, was a disputed question of fact,' and should have been submitted to the jury. If the jury credited the plaintiff’s evidence, the inference might well have been drawn -that the defendant was guilty of negligence, which caused the accident and injury to the plaintiff.

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

All concur.


author: PER CURIAM.

text:
    Board of Home Missions of Presbyterian Church et al., App’lts, v. Mayor, Aldermen and Common Council of the City of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    Taxes—Exemption— Missionary corporation. ,
    The property of a missionary corporation is taxable where it is subject to a lease. So held, where the property, until noon of the day after the tax books were closed, was subject to a lease executed by the grantor of such corporation, though it was in good faith preparing to occupy the premises for its own purposes.

      Appeal from an interlocutory judgment sustaining a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action.
    The complaint is as follows :
    The plaintiffs, by Parsons, Shepard & Ogden, their attorneys, complain of the defendants as follows : The plaintiff, the Board of Home Missions of the Presbyterian Church in the United States of America, is a domestic corporation, created by and under the provisions of chapter 287 of the Laws of 1872, as amended by chapter 227 of the Laws of 1880, and chapter 835 of the Laws of 1892. The plaintiff the Board of Foreign Missions of the Presbyterian Church in the United States of America is a domestic corporation, created by and under the provisions of chapter 187 of the Laws of 1862, as amended by chapter 826 of the Laws of 1894. No officer, member or employe of either of the plaintiffs receives or ever has received, or is or ever has been entitled to receive, any pecuniary profit from the operations thereof, except reasonable compensation for services in effecting their purpose. In the month of June, 1893, the plaintiffs purchased, and have since owned as tenants in common, the following described property in the city of New York : Beginning at a point formed by the intersection of the westerly line or side of Fifth avenue with the northerly line or side of Twentieth street, and running thence westerly along the said northerly line of Twentieth street one hundred and ninety-two (192) feet; running thence northerly, and parallel with the westerly line or side of Fifth avenue, ninety-two (92) feet to the center line of the block between Twentieth and Twenty-First streets; running thence easterly, and parallel with the said northerly line or side of Twentieth street, and along said center line of the block, one hundred and ninety-two (192) feet to the westerly line or side of Fifth avenue; and running thence southerly, along said westerly line or side of Fifth avenue, ninety-two (92) feet, to the point or place of beginning. Said real property was purchased by the plaintiffs to be held and used exclusively for carrying out thereupon the missionary purposes of the plaintiffs to the extent of one-quarter; from the remaining three-quarters rents to be obtained to be applied exclusively for carrying out the missionary purposes of the plaintiffs. Since the purchase of said, property it has not been in actual use for the purposes of the plaintiffs, because of the absence of suitable buildings and improvements thereon, but the construction of such buildings and improvements was in good faith contemplated by the plaintiffs at the time of the purchase of the said property, and was not immediately begun owing only to the fact that portions of said property were then in possession of tenants holding under leases from the former owner thereof, which did not expire until the 1st daj' of May, 1894, and from which tenants plaintiffs were unable to obtain possession of the premises so leased. Down to the said 1st day of May, 1894, the rents under said leases were received by the plaintiffs, and used by them exclusively for their missionary purposes. On the 1st day of May, 1894, the construction of the buildings and improvements necessavy to 'make the said property suitable for the said purposes of the plaintiffs began, and has since been in actual progress, and since that time no rents, profits, or income have been derived from it. As the plaintiffs are informed and believe, some time in the year 1894, the defendants'caused the said property to be assessed, for the purposes of taxation, at the sum of $285,000, and thereafter the board of aldermen of the city of New York by ordinance confirmed the said assessment, and imposed upon the said property a tax of- $5,101.50 for the year 1894. Thereafter, and on or about the 1st day of September, the defendants caused the assessment rolls showing the said assessment and the amount of said tax to be delivered to the receiver of taxes of the city of New York, with a warrant by the said board of aldermen, under their hands and seals, annexed thereto, directed -to said receiver of taxes, commanding him to collect the said taxes; and the defendants intend, unless said tax, with interest thereon, shall be paid in 'full, to advertise the said property for sale, and sell the same at public auction, under the provisions of law relating to the enforcement of taxes .upon real estate in the city of New York. The plaintiffs are both corporations organized, as herein-before stated, under the laws of the state of New York exclusively for missionary purposes, and such property of the plaintiffs as is held by them exclusively for such purposes, or, though not not in actual use therefor by reason of the absence of suitable buildings or improvements thereon, is designed for such use, and upon which the construction of such buildings or improvements is in progress or in good faith contemplated by the plaintiffs, is, as the plaintiffs are informed and believe, exempt by law from taxation. The facts giving rise to the exemption of such property from taxation do not appear upon the record of said, proceedings .taken by the defendants to assess and enforce against it the said tax, and the said proceedings are upon their face regular and valid, and the said assessment and tax, upon the face of such proceedings, appear to be, and are, a lien upon the plaintiffs’ said property, and a cloud upon their title thereto. The illegality of the said assessment and tax forms no. part of the record, and can be established only by extrinsic evidence. " The plaintiffs on the 4th day of February, 1895, duly presented'to the Comptroller of the city of New York for adjustment the claim upon which this action is founded. More than thirty days have elapsed since such claim was presented, and the said comptroller has neglected and refused to make an adjustment thereof for thirty days after such presentment. Wherefore the plaintiffs pray that the said assessment and tax upon the plaintiffs’ said property may be. declared to be illegal and void, and that the defendants, their agents, and attorneys, may be forever enjoined and restrained from in any way asserting the validity of said assessment, or collecting or enforcing the payment of the said tax, and that the plaintiffs may have such other and further relief as may be just.
    The following is the opinion of Mr. justice BEACH on sustaining the demurrer to the complaint:

      The date fixing the status of property for taxation appears to be the second Monday of January in each year. Taking a view-more favorable to plaintiffs, and extending the period to April 30th, or the earliest moment of May 1st, when the tax books are closed, it is still a fact that, from January to the date last mentioned, the plaintiffs received rents and profits from the premises under leases which did not expire until May 1st at noon. During the taxable period the property was not in actual use by the plaintiffs, nor held exclusively for the purposes of the corporations, but from it they derived 61 rents, profits or income,” and, therefore, they are not entitled to exemption under the provisions of chapter 498, Laws 1893.
    Judgment for defendants on demurrer, with costs. Leave to plaintiffs to amend within twenty days, on payment of costs.
    H. B. Closson, for app’lts ; W. L. Turner, for resp’ts.
   PER CURIAM.

—Judgment affirmed, with costs, on opinion of special term.


author: VAN BRUNT, P. J.

text:
    McAveney v. Brush et al.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    1. Contempt—Damages.
    The general term, on reversing an order refusing to punish defendant for contempt in giving a bond with fictitious sureties to discharge a mechanic’s lien, should not impose as a fine the amount of the bond, but should remit the matter to the special term for further procedure,

      2. Same.
    In such case, the fine must he limited to an amount sufficient to Indemnify the aggrieved party for the actual loss or injury sustained, so far as it is in excess of $250 and costs.
    Re-argument,
    George S. Daniels, for app’lt; Hector M. Hitchings, for resp’ts.
   VAN BRUNT, P. J.

—For the reasons stated in the opinion of Mr. Justice Daly upon the decision of the appeal taken from the above-mentioned order to the general term of the court of common pleas, we are of the opinion that there was power in the court to punish for the contempt charged. We, think, however, that the court should have remitted the matter to the special term for further procedure, instead of attempting to fix the penalty to be imposed because of such contempt. Indeed, the may not have had the power to impose the fine sought to be imposed by the general term of the court of common pleas upon their decision of the previous appeal, as the fine must be limited to an amount sufficient to indemnify the aggrieved party for the actual loss or injury sustained (section 2284 of the Code), só far as it was in excess of $250 and costs. The court, under circumstances similar to those in the case at bar, may possibly have the.power, as a condition of waiving the imprisonment which it has the right to impose, to exact the performance of conditions which it cannot impose as a fine.

The order appealed from should therefore be reversed, with $10 cost and disbursements, and the matter remitted to the special term for further action.

All concur.


text:
    The People ex rel. American Flag Company, Resp’t, v. Edward P. Barker et al., as Commissioners, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Taxes—Assessment—Statement.
    The action of the assessors in accepting part of a statement made by a corporation as to the taxable value of i'ts property, and disallowing the residue, without evidence other than such statement, is erroneous.

      2. Same—Deduction op debts.
    The debts of a corporation may be deducted from the assets, though represented by the debentures, some of which have not been issued.
    Appeal from an order vacating the assessment.
    R. S. Barlow, for app’lts; W. M. Rosebault, for resp’t.
   PER CURIAM.

— Order affirmed, with costs and disbursements, upon opinion of the court at special term.

The opinion of Mr. Justice Ingraham at special term is as follows:

I do not think there was anything before the tax commissioners to justify them in making assessment that they did. Under chapter 456 of the Laws of 1857, the commissioners were required to ascertain the valuation of the whole property owned by the corporation, whether real-and personal, or both, in. order to ascertain the capital which was the subject of taxation (People ex rel. Eq. G. L. Co. v. Barker, 144 N. Y. 94; 63 St. Rep. 33), and from the aggregate deduct the debts of - the corporation, and any exemption allowed by law. The only evidence before the commissioners appears to have been the two statements made by the company, and an affidavit of its president, by which it appears that the total assets of the company, including all its property, were $197,988.90; that the liabilities were debenture certificates actually issued, amounting to $148,300, and certificates agreed to be issued ior services and property purchased, and for which the company was indebted $55,650, making an aggregate of $203.950,—show-ing the coporation to be insolvent. It is stated in the first statement rendered that the capital stock actually paid in, of $400,000 was “paid by sale of good will, and service; ” but there is nothing to show that at the time the statement was made, on the second Monday in January, 1894, this good will and services for which the capital stock was issued was of any value, and that fact is accompanied by the express statement, under oath, that the total gross assets of the corporation were $197,988.90. It is true, the statement made by the corporation is not conclusive upon the tax commissioners, but at the same time they must have some evidence before them to justify their action. They could have required the officers of this corporation to appear before them and submit to an examination as to the property owned by the company for which this capital stock was issued. They omitted to require such testimony, but, according to their return, did accept the statement of the officers of the company as to the amount of its assets, disallowing certain alleged indebtedness because the statement said that the debentures representing that indebtedness had not been issued. In that the commissioners were clearly in error, as the amount of the indebtedness for which the company had agreed to issue these debentures is just as much the indebtedness of the company as if the debentures had been issued. The commissioners having accepted this statement of $197,988.90 as the total gross assets of the company, the court cannot say, upon the evidence before it, that they should have found that the capital stock of $400,000 was unimpaired. On the contrary, I am of the opinion that, upon the evidence before the board, there was nothing upon which to sustain such a finding. I think, therefore, the proceeding of the tax commissioners must be reversed, and the assessment vacated.


author: PATTERSON, J.

text:
    The People ex rel. William M. Dean, App’lt, v. William Brookfield, as Commissioner, etc., Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    1. Municipal corporation—Officers—Removal.
    The superintendent of street improvements in the city of New YorK cannot he discharged from office on a mere notice of intended consolidation of his office with another office and request for his resignation.
    2. Certiorari—Review.
    Section 2141 of the Code does not authorize the appellate court to adjudicate the rights of the relator, in such case, upon any state of facts arising after the unlawful action was taken by which he was deprived of his office.
    C. Blandy, for relator ; W. L. Turner, for resp't.
   PATTERSON, J.

—This cause- comes before the court on a writ of certiorari to review the action of the commissioner ot public works of the city of New York in discharging the relator from a position he held in that department from the year 1886 to the 81st of July, 1895, on which last-mentioned day he was dismissed from his position, by a communication sent him by the respondent, and which contained the following announcement: “Your ■services as superintendent of street improvements will not be required after this date.”

The relator was head of a bureau within the meaning of section ■48 of the consolidation act. He was the superintendent of street improvements. Bisection 817 of the consolidation act (subdivision 4) it is provided that there shall be created a bureau for 'grading, flagging, curbing, and guttering streets, the chief officer •of which shall be called the “ Superintendent of Street Improvements,” and that is the position the relator filled at the time referred to. Section 48 of the consolidation act, to which allusion has been made, also • provides that no regular clerk or head of a bureau shall be removed until he has been informed of the cause ■of the proposed removal and has been allowed an opportunity of making an explanation, a true account ,of which is to be entered on the record of the department. On the 9th of July, 1895, the commissioner of public works sent to the relator a letter asking for his resignation, and stating that it had been determined to abolish the office of superintendent of street improvemenrs on and after August 1, 1895. It is claimed by the respondent that this determination to abolish the office referred to was arrived at from reasons of economy, and that he found it expedient to abolish the distinctive office of superintendent of street improvements, and to transfer the performance of the duties of that office to another bureau, namely, that of the water.purveyor.

It will be observed that there was no charge made against the relator, and that there was no ground indicated to him as that upon which he was to be discharged. By the letter of July 9th, no information was given to him of the reason of the contemplated abolition of his office; and in the communication of July 31st there was simply a notice that his services were dispensed with. Under the provisions of the statute, the relator was clearly entitled to distinct notification, and to a hearing, and could not summarily be dismissed without it. It was competent for him to •claim, before the commissioner, that there had been no consolidation ; that he could not be discharged in mere anticipation of that •consolidation of the offices; and that no action could be taken to remove him until after a consolidation was effected, if consolidation were permissible. That it was permissible seems to result from another provision of section 48, which enacts lhat any head •of a department may, with the consent of the board of estimate and apportionment, consolidate any two or more bureaus established by law, and may change the duties pf any bureau. But it appears by the return that application was not made by the commissioner of public works for authority to make the consolidation until the 5th of August, 1895, and that a resolution was not passed giving the authority so to lj until the 30th day of August, 1895. Therefore, by the return it appears that the dismissal of the relator was made merely in contemplation, and not as a consequence, of the consolidation of the two bureaus. His independent bureau still existed, and he was clearly entitled to the office, and to discharge its duties, at the time he was dismissed by the commissioner of public works.

With what transpired subsequent to the dismissal of the relator we have nothing to do, for it does not affect the lawfulness of the act of the commissioner of public works at the time that act was committed.

It is claimed by the respondent that the dismissal would become operative on the ¿1st day of August, 1895, and that the relator would, therefore, have merely a claim for one month’s salary; and it is suggested that, under the provisions of section 2141 of the Code of Civil Procedure, the court has power to modify the commissioner’s determination so as to make it binding on the relator from the date last mentioned. But we do not consider this provision as authorizing us to adjudicate the rights of- the relator upon any state of facts arising after the unlawful action was taken by which he was deprived of his office.

It is sufficient, for all purposes of this case, that the relator was unlawfully discharged, and is entitled to be restored to the position as of the 31st day of July, 1895,- with the costs of this proceeding.

All concur.


author: GAYNOR, J.

text:
    William B. Ridenour, Pl’ff, v. Board of Education of City of Brooklyn, Def’t.

      (Supreme Court, Kings Special Term,

      Filed January, 1895.)

    1. School teachers—Discharge.
    The teacher of a public school in the city of Brooklyn is an employe, not of the city, but of the board of education,'and.is not protected by chapter 577 of 189S.

      2. Same—Bight to trial.
    Chapter 556 of 1894 does not give the teacher, in such case, the right to a trial.
    M. S. Towns, for plff ; A. G. McDonald and Alfred C. Mudge, for def't.
   GAYNOR, J.

—The plaintiff seeks to enjoin the defendant, the board of education of the city of Brooklyn, from summarily dismissing. him from his place as teacher in the public schools of the city of Brooklyn, claiming that he may not be dismissed except for cause found after a trial by the board upon charges. He makes this contention upon two stated grounds, viz: First, that he is an honorably discharged soldier of the war of the Rebellion; and, second, that the general school laws of the state entitle all teachers in the common schools to the protection of such a trial.

1. There is a general statute that no honorably discharged soldier or sailor of the war of the Rebellion, “holding a position by appointment in any city or county,” and “receiving a salary from such city or county,” shall be removed therefrom “except for cause shown after a hearing had.” Laws 1892, c. 577. This statute expressly excepts positions having a definite term fixed by law, and relates only to positions over which the power of removal may be exercised at pleasure. It also needs to be observed that it relates, in terms, only to positions in cities and counties. It does not cover appointees under the state government, nor in towns, villages, or school districts. The plaintiff is concededly not holding a county position. If, there, he is not holding a position by appointment in the city of Brooklyn, viz: under the city government, and receiving a salary from the city, he does" come under the protection of the veteran statute. He is an employe of the board of education. It is not a part of the corporation of the city of Brooklyn, but is itself a local school corporation, like every board of school-district trustees throughout the state (General Corporation Law, § 3), and is, like every such board, an integral part of the general school system of the state. It is a state and not a city agency, doing state and not city work and functions. Education is not city, village, county, or town business. It is a matter belonging to the state government. From its comprehensive foundation by chapter 75 of the Laws of 1795, down to the recent codification of our school laws (“Consolidated School Law,” Laws 1894, c. 556), our state system of education has remained a consistent whole. The present board of education of the city of Brooklyn is as distinctly a part of that whole as is any school district in the state. It is the lineal successor to the powers and duties formerly performed by the trustees of the several school districts of Kings county.

The city of Brooklyn was incorporated in 1834. Laws 1834, c. 92. Its first charter is silent concerning public education. It conferred no power in respect of it upon any board or officer of the city. It left all the school districts of the locality as they had previously existed and been governed, viz. by the district trustees and the town commissioners. Rev. St. 1830, pt. 1, c. 15. The next year the legislature made it the duty of the common council to appoint the trustees of the several school districts, ,and also the commissioners, instead of being elected as formerly. Laws 1835, c. 129, § 15. The legislature did not thereby make them city officers. It often happens that city officers are required by the statute to appoint individuals to do specified state duties; but that does not make such appointees city officers, or make the city liable for their acts. Ham v. Mayor, etc., 70 N. Y. 459 ; New York & B. Saw Mill & Lumber Co. v. City of Brooklyn, 71 N. Y. 580 ; Lorillard v. Town of Monroe, 11 N. Y. 392. By chapter 63 of the Laws of 1843 the common council was required to appoint two or more persons from each school district, to constitute a board of education of the city of Brooklyn, and this was its creation. By the said statute the said board was given the control and direction of the common schools of Brooklyn, and all of the powers (under the general state school laws) of trustees of school districts (who were thus, locally, done away with,) but under and subject to rules and regulations, not inconsistent with the said laws,' which the common council was required to make; and the members of the common council were, ex officio, made school commissioners. The treasurer of the city was, ex officio, made custodian of all school moneys, but to the board of educatioh was given the spending of the same. By chapter 143 of the Laws of 1850 the whole city was made one school district for the purposes of, taxation, the building and repairing of schools, and the support of the schools; but the board of education was directed to divide the city into districts for the purpose of regulating attendance, Reference to the duties of school commissioners prescribed by the Revised Statutes (supra) will show that this transferred to "the board of education all such duties, and thus the members of the common council ceased to be school commissioners. This act also empowered the board of education to make rales for its own government, and for the government and discipline of the schools, thus taking that power from the common council. The foregoing acts (and several others which I do not need to cite) were not amendments of the charter of Brooklyn, but separate and distinct school laws. They cannot be construed as making the local school system a part of the city corporation, but manifest a contrary purpose. By the act consolidating the cities of Brooklyn and Williamsburg and the town of Bushwick, the system created by these acts was recognized, and in so many words continued. Laws 1854, ch. 384, tit. 11, § 13. That is all there is in this charter of the new city upon the subject.

In the revised charter of Brooklyn, passed in 1873 (chapter 863, tit. 16), it is provided as follows: “There shall be a department of public instruction which shall be under the control of a board of education, and all provisions of law relating to the present board of education of the city of Brooklyn shall apply thereto, except so much as relates to the appointment of the members thereof.” And then it makes the change that the mayor shall appoint the members with the approval of the common council. This is all that that act contains on the subject of education. It nominally creates a department of public instruction, but puts it under control of the board of education, which was and always had been a corporate entity itself, having a treasury, and capable of holding property, of contracting, and of suing and being sued, and which had always held, as it still hoids, title to all of the school propeity within the city. Allen v. Brooklyn, 8 Blatchf. 535 ; Fed. Cas. No. 218. It was not brought into existence by this act, but had theretofore existed, and was to continue under the distinctively school laws which I have cited, and by one of which it was created in 1843, and also-subject to the general school laws of the state.

The present charter (Laws 1888, ch. 583, tit. 17) is, in the respect under consideration, a re-enactment of the charter of 1873. It also contains some of the provisions of the said school laws cited above,—among others, those making the city treasurer ex officio treasurer of the board of education, and giving the board of education the powers, and subjecting it to the duties, of trustees of school districts throughout the state. By it, also, the mayor has the sole power of appointing the members of the board. This charter is a revision, and combination into a single act, of all local and special acts relating to the corporation of the city of Brooklyn. At its end is a clause repealing all prior local and special acts relating to the “ corporation of the city of Brooklyn * w or to the administration of the property or affairs of said corporation.” This carefully limited repealing clause did not repeal the local school laws relating to the common schools in the city of Brooklyn, but left them intact. It is obvious that it was not meant to work such repeal, for the board of education and the schools'are governed under them, as they have been from the beginning, and by virtue of them all the local school property is vested in the said board, and owned by it, and not by the city.

The plaintiff being an employe of the board of education, and it not being part oí the corporation of the city oí Brooklyn, as I conclude from the foregoing, the veteran statute affords him no protection. Moreover, the plaintiff does not receive a salary from the city, but from the board of education; and its moneys are made up of state school moneys raised by taxation, and invested state school funds, as well as from local taxation.

2. In respect of the plaintiff's claim that the general school laws of the state entitle him to a trial, this is the only provision upon, the subject, viz.:

Nor shall any teacher be dismissed in the -course of a term of - employment, except for reasons which, if appealed to the superintendent of public instruction, shall be held to be sufficient cause for such dismissal. Consolidated School Law (Laws 1894, ch. 556, tit. 7, art. 6, § 47). .

This language does not give to the teacher the right to a trial. People v. Thompson, 94 N. Y. 451; People v. Morton, 148 N. Y. 156. The relation between the plaintiff and board of education is simply the contract one of employer and employe, Consolidated School Law, tit. 7, art. 6, § 47 ; and for a breach of his contract of service by a dismissal without cause the board would be liable to him in an action for damages. Gillis v. Space, 63 Barb. 177 ; Wait v. Ray, 67 N. Y. 36. The by-laws of the- board provide for “ annual salaries ” and “ yearly salaries ” for teachers (article 11), and they are part of the plaintiff’s contract of employment. People ex rel. Hoffman v. Board of Education, 143 N. Y. 65 ; 60 St. Rep. 350. But, as it has recently been declared the law of this state that a hiring at a year’s salary is only a hiring at will (Martin v. Insurance Co., 148 N. Y. 117), that would seem to be the-plaintiff’s case, unless the reqirement of the general school law .that teachers be employed for a term, read into and with the said by-laws, saves him.

The motion to continue the temporary injunction is denied.


text:
    Patrick Skelly, Resp’t, v. Metropolitan Elevated Railway Company et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    1. Elevated railroads—Injunction.
    Before a court can; in an action against an elevated railway company for damages and an injunction, make a decree for an injunction unless-the corporation pays upon the tender of a deed conveying the easement, , independent of any other consideration, the party required to tender the deed must show that he has title to that which he is required to convey.

      2. Same.
    Where a company is in possession, it is necessary'to show, upon the part of a party seeking to disturb such possession, some title anterior to the-commencement of the possession of the company,
    3. Same—Burden of proof.
    The burden of establishing this proposition is clearly upon the plaintiff» and where that burden is not met, a recovery cannot be sustained.
    Appeal from a judgment in favor of plaintiff.
    Sidney Smith, for app’lts ; E. D. Hawkins, for resp’t.
   VAN BRUNT, P. J.

—This is an action brought for an injunction against the operation and maintenance of the elevated railway in front of the premises known as “ No. 1222 Second, avenue,” and the premises in the rear thereof, and for rental damage to said premises. The objection was taken upon the trial, and also by the exceptions filed to the decision of the court, to the right of the plaintiff to recover, upon the ground that he had proved no title to the premises to which the easements alleged to have been taken by the defendants were adjacent, prior to the year 1889, the defendants’ road having gone into operation, and the easements having been taken by the defendants, in the y,ear 187.9. The only evidence upon the question of title is a statement of one of the witnesses, Joseph Kalish, that he bought the premises 1222 Second avenue from a builder in 1884, and he showed that he was in possession of these promises up to the time that he conveyed the same to the plaintiff in 1889, which deed was offered in evidence.

It is to be observed that an injunction is ordered unless the defendants pay upon the tender of a deed conveying these easements. It necessarily follows that, before the court can make a decree of this description, independent of any other consideration, the party required to tender the deed should show, that he had title to that which he was required to convey; and where it appears, as it does in the case at bar, that the title to the adjacent lot certainly does not extend further back than 1884, and that at that time the defendants were in possession of the easements, it would seem that there was no evidence that he had a good title to tender, so as to comply with the condition upon which he would be entitled to the injunction. That it is necessary, in order that there should be a recovery for these easements, that a title should exist and be proven in the plaintiff, seems to be established by the cases of Dean v. Met. E. Railway Co., 119 N. Y. 540; 30 St. Rep. 81; and Hughes v. Met. E. Railway Co., 130 N. Y. 40 St. 587.

. It seems to be assumed, in too many of these cases, that all that it is necessary to prove is that the plaintiff is the present-owner of the abutting lot, and that the defendants are operating their elevated railroad, in order to entitle the plaintiff to recover. We think that the possession of the elevated railroad was notice to all the world of a claim upon the part of the defendants in respect of that property, as has been, held in the case of Mitchell v. Met. E. Railway Co., 56 Hun, 543; 31 St. Rep. 625; Id., 134 N. Y. 11; 45 St. Rep. 318. The railroad being in possession, it was necessary to show, upon the part of a party seeking to disturb that possession, some title anterior to the commencement of the possession of the defendants. These easements are matters which may be severed from the adjacent property,—may be the subject of conveyance or the subject of possession ; and as a result some’'title anterior to possession must be proven as the basis of an injunction, and a reasonably good title should be shown in order to entitle a party to payment as a condition, of conveyance. The burden of establishing this proposition is clearly upon the plaintiff; and, that burden not having been met in the case at-bar, the recovery had cannot be sustained.

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

All concur.