author: Gilbert, J".:

text:
    In the Matter of the Application of DANIEL BOGART, Executor, etc., of DANIEL HEGEMAN, Deceased.

      Legacy — when vested — a debt due from, the legatee may be set off against it — right of a mortgagee to insure the property.

    A testator gave and bequeathed to his wife the use of all his property, both real and personal, during her life, and at her death he gave and bequeathed to his son, “his heirs or assigns,” the sum of $2,000.

      Held, that the son took a vested interest in the legacy at the time of the testator’s death, and that his children acquired no interest therein.
    The executors have a right to set off against a claim made for a legacy a debt due from the legatee to the testator, even though the debt has been, by the lapse of time‘subsequent to tlie lestator’s death, barred by the statute of limitations.

      A. mortgagee has a right to insure the property covered by the mortgage and add the amount of the premium to the mortgage debt, independent of any express authority so to do contained in the mortgage.
    Appeal from a decree of tlie surrogate of Queens county, settling the account of Daniel Bogart, as executor, etc., of Daniel Hegeman, deceased, and permitting him to resign.
    The testator died on May 24, 1867. By his will he gave and bequeathed to his wife, during her life, the use of all his property, both real and personal. At her death, he gave and bequeathed certain legacies to his daughter; and the will further provided, “At the death of my wife, Henrietta Hegeman, I give and bequeath to my son, Robert H. Hegeman, his heirs or assigns, the sum of $2,000.”
    The testator, at the time of his death, had notes made by his son amounting in the aggregate to $1,000. These notes were received by the executor, but never collected, and were, by the lapse of time subsequent to the testator’s death, barred by the statute of limitations. The surviving executor was credited with them as assets by the surrogate upon the passage of his accounts. The executor loaned money belonging to the estate to the son, secured by a mortgage upon real estate owned by him in Missouri. The executor paid six dollars and seventy-five cents for insuring the buildings upon the farm, although the mortgage contained no insurance clause

      Henry A. Monfort, for Henrietta, Sarah D. and Daniel A. Hegeman, legatees, appellants.

      Hiohard B. Tunstall, for Daniel Bogart, executor, respondent.
   Gilbert, J".:

I think that the surrogate correctly decided that the executor was entitled to be allowed the notes of Robert Hegeman, on turning over the assets in his hands to his successor. The statute of limitations was not pleaded before the surrogate by the maker of the notes, and it could not be by anyone else. It is a personal defense. Nor eren if that objection was properly before the surrogate, was it brought up by this appeal, for the maker of the notes has not appealed.

"With respect to the negligence imputed to the executor in omitting to collect those notes, we think the widow is precluded from alleging that fact.

The gift to her by the will was restricted to the income of the testator’s property during her life. That portion of the income accruing from the interest on the notes, was expressly relinquished by her. She gave to the executors receipts for such interest from time .to time, because she preferred to do so rather than have her son troubled by proceedings to collect it. She thus induced tlie delay on the part of the executors, of which she complains. It is a maxim that one cannot complain of a wrong when lie has consented to the act which occasions his loss. That completely refutes the allegation of negligence by the widow. She has no claim to the principal. ”

The other appellants are the children of the maker of the notes (a son of the testator). The will gave to their father, at the death of the widow, a legacy of $2,000. This is a vested legacy, although it is not payable until after her death, the rule being that when a' gift is made to A., for life and “ at ” or “ after ” his death to B., both gifts are vested at the instant of the death of the testator, the only difference between them being that one is in possession and the other in remainder. (Barker v. Woods, 1 Sandf. Ch., 129; Conklin v. Moore, etc., 2 Bradf., 179; Birdsall v. Hewlett, 1 Pai., 82; Williams v. Conrad, 30 Barb., 524-531; Ackerman v. Gorton, 67 N. Y., 63.)

The children have no interest in the legacy to their father. As between him and the executors, he is considered in equity to have an amount of the assets of the testator’s estate in his hands equal to the debt due from him. The executors have a right to set off the debt against a claim by him for payment of the legacy. The amount of that debt is only $1,000. (¥ms. Exr. [6th Am. ed.], 1413, 1415 ; Jeffs v. Wood, 2 P. Wms., 128; Sims v. Doughty, 5 Ves., 243; Stagg v. Beekman, 2 Edw. Ch., 89; Smith v. Kearney, 2 Barb. Ch., 533.) The right of the executor to retain, says Chancellor 'Walworth, in the last case, depends upon the principle that the legatee is not entitled to his legacy while he retains in his hands a part of the funds out of which that and other legacies ought to be paid, etc. it is no objection to the executor’s right to retain against a legatee the amount of a debt due the estate, that the same is barred by the statute of limitations. (Courtney v. Williams, 3 Hare, 539; Hill v. Walker. 4 K & J., 166; Coates v. Coates, 10 Jur. [N. S.], 532.) The maker of the notes testified in this proceeding that the notes had not been paid. Inasmuch as the children never acquired a right to insist on the collection of the notes, the omission to collect them cannot prejudice their interests.

The premium on the policy of insurance was properly allowed A mortgagee has a right to make such a payment for the protection of the estate mortgaged and to add the amount paid to the mortgage debt, independently of an express agreement authorizing such payment. That principle was very recently decided by the Court of Appeals.

There is no excess "in the commission allowed, the surrogate having disallowed commissions on the principal of the fund.

The decree of the surrogate must be affirmed, with costs.

BERNARD, P. J., and DykmaN, J., concurred!

Decree of surrogate affirmed, with costs.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel., JOHN GASS, Respondent, v. WILLIAM MORGAN LEE, Appellant.

      Constitutional law— “ Local act," “ Public officer ” — whata/re — Const., art. 8, sec. 18— does not prevent the legislature from, relieving a taxpayer from the payment of fees payable by him to an attorney conducting a tax sale.

    Section 8 of title 5 of chapter 497 of 1874, as amended by section 15 of chapter 77 of 1880, directed the attorney of the city of Poughkeepsie to advertise and sell real estate for the non-payment of taxes as therein prescribed, and provided that “the attorney conducting such sales, for the full performance of his duty therein, shall he entitled to demand and have a fee of five dollars for each par cel of land so ordered to be sold, in case the proceedings shall be stopped before sale, and a fee of ten dollars for each parcel that shall be actually sold.” Section 7 of chapter 344 of 1883 amended the said section so as to read as follows,- viz.: “ The attorney conducting such sales shall not he entitled to have or demand any fee or fees for the performance thereof.”
    Held, that although the act of 1882 was a “local” act, and the city attorney a “public officer” within the meaning of section 18 of article 3 of the Constitution, prohibiting the passage of a local bill creating, increasing or decreasing fees, per centages or allowances of public officers, during the term for which they are elected or appointed, yet, as the fees were in this case payable in the first instance, at least, by the taxpayer, and as this section of the Constitution was not intended to take away the power of the legislature to exempt taxpayers from the payment of such fees, the act was constitutional and valid.
    Appeal from an order granting a peremptory writ of mandamus. The relator was the owner of certain jeal estate in the city of Poughkeepsie, upon which' taxes for the year 1882 were duly assessed. The defendant was duly elected city attorney for the city, his term of office beginning January 1, 1882, and ending December 31, 1883. On the 7th of August, 1882, the common council of 'Poughkeepsie duly passed an order by which they directed the defendant, as city attorney, to advertise and sell relator’s real property for the taxes assessed thereon which were then unpaid, and the order was duly delivered to the defendant. On the 10th of August, 1882, the relator tendered to the defendant, as city attorney, the full amount of the tax assessed against his property, with penalty and interest. The defendant refused to receive the tax unless the relator would pay him in addition the sum of five dollars, as his fees, claiming that he was entitled thereto by virtue of the city charter:
    The court below made the order appealed from, granting to the relator a peremptory writ of mandamus, requiring the defendant to receive the tax without the fee.
    The sole question presented by this appeal was whether the defendant was entitled to the fee at the time of relator’s tender. It was conceded that defendant would be entitled to the fee claimed, under section 8 of title 5 of the city charter’, as amended by chapter 77 of Laws of 1880, were it not for the act of June 10, 1882 (Laws of 1882, chap. 344), which entirely abolished the city attorney’s fee on tax sales.
    On the part of the defendant it is claimed that chapter 344 of the Laws of 1882, so far as it abolishes the fee upon tax sales to which the city attorney was entitled at the commencement of his term of office, is repugnant to the provisions of section 18 of article 3 of the State Constitution, and is therefore unconstitutional and void.

      Guy O. H. Corliss, for the appellant.

      Abram J. Rose, for the respondent.
   Gilbert, J.:

That the statutes on which this case depends, viz.: Laws 1874, chapter 497; Laws 1880, chapter 77; Laws 1882, chapter 344; are “ local,” in the sense in' which that word is used in article 3 of the Constitution, has, we think, been settled by the Coui’t of Appeals, (Huber v. The People, 49 N. Y., 132; Kerrigan v. Force, 68 id., 381, and cases cited.) The appellant must also be held to be a “public officer” within the meaning of section 18 of that article. (Rowland v. The Mayor, 83 N. Y., 372, and cases cited.)

Nevertheless, we are of opinion, that the mandamus was properly awarded. The intent of the legislature, in entitling the city attorney to “ demand and have a fee ” for his services in respect to sales of lands for unpaid taxes, obviously was that such fee should be exacted primarily from the taxpayer. Whether under any circumstances a liability to pay such fee might devolve upon the city of Poughkeepsie, is a question which is not now presented. It is enough to hold that it was payable in the first instance, at least, by the taxpayer. The inhibition contained in section 18 of article 3 of the Constitution, does not take away the power of the legislature to exempt taxpayers from the payment of sucli fees. Such an exemption is certainly one of the effects of the act of 1882. (Chap. 344.) To that extent that act is valid (Kerrigan v. Force, supra), whatever may be its effect upon the right of the appellant to “ demand and have ” his fee from the city.

The order appealed from must therefore be affirmed, with ten dollars costs and disbursements.

DykmaN, J., concurred in the result; BarNard, P. J., not acting.

Order affirmed, with costs and disbursements.


author: Dyeman, J.:

text:
    In the Matter of the Application of the NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, Respondent, to Acquire Lands of the NEWBURGH AND NEW WINDSOR TURNPIKE ROAD COMPANY, Appellant.

      Turnpike company — crossing of its road by a railroad company — right of the latter to move the road and construct a new bridge for it— the right of the turnpilce company to collect tolls is not affected by the removal.

    A turnpike company was created by chapter 91 of 1806, and authorized to build a draw bridge across the mouth of a creek, now called Quassaic creek. The act also authorized the company, after the bridge had been constructed and accepted by certain officers, acting in behalf of the State, to erect a turnpike and gate upon the bridge and collect tolls from all persons using the same. After the bridge had been constructed and used for many years, a railroad company located its line so that its road crossed the creek at the place where the bridge was erected. It accordingly built a new bridge for the turnpike company about forty feet west of the old one, and constructed a new road, connecting the new bridge with the unaltered portions of the old road.

      Held, that power to construct the new bridge and road for the use of the turnpike company was- conferred upon the railroad company by section 24, and subdivision 5 of section 28 of chapter 140 of 1850, and by section 4 of chapter 19 of 1851.
    That the construction of the new bridge to the west of the old one and the removal of the road did not amount to a discontinuance of the old road and the opening of a new one, and in no way destroyed or affected the right of the company to collect tolls from all persons using its road and bridge, as changed by the railroad company.
    Appeal from an order made at Special Term, confirming tbe report of commissioners appointed to ascertain and appraise tbe damages to be paid by tbe above-named railway company to tbe above-named turnpike company.

      James W. Taylor, for turnpike road, appellant.

      O. F. Brown, for railway company, respondent.
   Dyeman, J.:

In tbe location and construction of tbe railroad of tbe petitioners on the right bank of the Hudson river, it becomes necessary to lay it on tbe old bed .of tbe Newburgh and New Windsor turnpike road. This turnpike road was constructed by a company formed under a law of the State enacted in April, 1806, for its incorporation. Power was conferred on the company to build a draw-bridge across the mouth of Chambers creek, now called Quassaic creek, the dividing line between the city of Newburgh on the north and the town of New Windsor on the south. That bridge was to be constructed- with a draw gate. After the completion of the road and bridge, and after an affirmative report by the commissioners appointed by the persons then administering the government of the State, that the same were workmanlike, according to the true intent and meaning of the law, the company was to receive permission to erect a turnpike and gate on the bridge and collect toll and duty from all persons using the same. All these conditions received compliance and the company went into full life and operation, and has so continued to this time. The railroad is located so that it will cross the creek at the place where the draw-bridge is erected, and a new bridge has been built across the creek for the use of the turnpike company, about forty feet west of the railroad, and a new road has been constructed west of the railroad, in conformity with the removal of the bridge, to lead to and from it, so as to be used in connection therewith in the same manner as the old one.

Commissioners have been appointed, in pursuance of the provisions of the general railroad law of the State, to appraise the damages of the turnpike company, and they have awarded the sum of $300. In their report, however, they have stated that such allowance was confined to the actual value of the property taken and does not embrace any . allowance for deprivation of franchise or the right to collect toll. This report has been confirmed and the order of confirmation provides that the turnpike company is not deprived of its franchise nor of its right to collect toll, and that the rights and privileges of the company in the road and bridge as they will exist after their restoration by the railroad company, as provided by law, will be the same as they now are in the old structures, including the same rights to collect toll on the new bridge as restored, as now exist in respect to the present bridge.

We now'have an appeal from the order, and the complaint is that the franchise of the turnpike company is destroyed and that it will have no right to collect tolls on the new bridge, because it will not be the one provided for in the act of incorporation. We must give examination to the questions thus presented.

It is among the provisions of the,general railroad law of the State that every corporation formed in pursuance thereof- shall have power to construct their road across, along or upon any turnpike on condition of its restoration to its former state or to such state as not unnecessarily to have impaired its usefulness. (Sec. 28, chap. 140, Laws of 1850, subd. 5.) A further provision of the same law is, that whenever the track of a railroad constructed thereunder shall cross a turnpike, the same may be carried under or over the track, and where an embankment or cutting shall make a change in the line of such turnpike desirable, the company may take such additional lands for the construction of such turnpike on such new line as may be deemed requisite by the directors. The same, when so taken, shall become part of such intei’secting turnpike, in such manner and by such tenure as the adjacent parts of the same turnpike may be held for highway purposes. (Sec. 24, chap. 140, Laws of 1850.) Again : In case any railroad shall occupy or cross any turnpike, the railroad company shall pay such turnpike company all damages it may sustain by reason of the occupancy or crossing of the same, the damages to ■ be ascertained and paid in the same manner as is provided by law for the assessment and payment of damages in case of taking private property for the use of railroad companies. (Chap. 19, Laws of 1851, § 4.)

These statutory provisions are adapted well to this case, and provide a system by which railroad corporations may exercise the right bestowed on them to occupy the road-bed of a turnpike or highway and restore it to the public again without unnecessary destruction of its usefulness. Plainly by subdivision 5 of section 28, above cited, a railroad may be constructed on a turnpike road, and as plainly the obligation is imposed on the railroad corporation to restore it to usefulness, not unimpaired it may be, but to practical utility. This railroad company, then, has lawfully appropriated the bed of the turnpike for the track of its road, and as it cannot be restored without a change and removal, an implication of power and authority so to do is easily collected from the statutes already referred to. It is manifest that if the track is laid along or upon a highway, the highway must itself be removed away from the track, or its usefulness will be impaired. The track of the railroad cannot be constructed and maintained upon a highway, and the usefulness of the latter not be impaired unnecessarily, as required by section 24, without a removal or change in the highway. It may be that such removal or change cannot be made without the taking of other lands, on to which it shall be removed. (People ex rel. Green v. D. and C. R. R. Co., 58 N. Y., 164.) Plainly, therefore, change and removal of the turnpike road may be effected under the railroad law. -It is urged by the appellant, however, in further objection, that even though such provision be made for the restoration of the turnpike road for highway purposes, yet there exists none for changing the location of toll bridges and toll gates. In our view nothing can be conceded to this position. Bridges across water ways and culverts to permit the flow of surface water are necessary on all highways intersected by such water streams. They are an essential part of the road, and a turnpike company is bound to erect them and keep them in repair wherever they are necessary, though the act of incorporation be silent on the subject of bridges entirely. (The People v. Hillsdale, etc., Co., 23 Wend., 254.) It is also urged that the change of the turnpike road and the substitution of a new bridge across the creek in a different place, amounts to a discontinuance of the old road, and the opening of a new one, and hence the turnpike company will have no right to collect tolls on the new bridge. To this contention we cannot yield assent. It overlooks the important fact that what has been accomplished is an alteration of the turnpike road. (Brown v. N. Y. C. R. R. Co., 34 N. Y., 407.) A restoration and not a destruction. For all purposes it is the same turnpike road, and the statute already quoted provides in terms that the land taken for the change in the,-line of the turnpike road shall become part of such intersected turnpike in such manner and by such terms as the adjacent parts of the same turnpike may be held for highway purposes. The land on which the alteration is constructed is therefore a constituent portion of the old turnpike road, and the new bridge is in place of the old one, and is an essential part of the same road. Both are held by the same tenure as the adjacent parts of the turnpike, and the legal rights, duties and ■obligations bestowed and imposed by the -.original turnpike charter are now in full force and operation. The right to exercise the franchise of the turnpike company is neither impaired nor interfered with. Neither is its right of property, beyond appropriating the old bed of its road, for which compensation has been awarded by the commissioners. It now owns the altered road and the new bridge. Any other construction of these statutory provisions would • render them altogether. nugatory. Followed to its legitimate result the contention of the appellant, if allowed, would compel a railroad corporation to buy out a turnpike company and pay for its franchises and its property, even for the appropriation of one single rod of its road, and disallow the restoration of the highway for which the legislature has so assiduously provided. These views are not antagonistic to the doctrine inculcated in the Binghamton and Chenango bridge case. The Supreme Court of the United States there held, that a legislative charter constituted an inviolable compact, and that another company would not be authorized within a limited distance. (The Binghamton Bridge, 3 Wall., 51.) But here no new turnpike company is authorized, no new road -is constructed and no right of the old company is abridged or interfered with.

The order should be affirmed, with costs and disbursements.

Gilbert, J., concurred ; Barnard, P. J., not sitting.

Order confirming commissioner’s report affirmed, with costs and , disbursements.


author: Dykman, J. :

text:
    In the Matter of the Application of THOMAS T. CHURCH for the Appointment of Commissioners to open Ninety-second Street in the town of New Utrecht.

      Constitution — an act is not “local ” beacmse it may be applicable to but few subjects— Const, art. 3, sees. 18, 23 — chap. 554 of 1881 does not conflict with them.

    Chapter 554 of 1881 conferred upon boards of supervisors power “to authorize in any county containing an incorporated city of one hundred thousand inhabitants or upward, when, any territory within such county and beyond the limits of such city has been mapped out into streets and avenues, in pursuance of law, the establishment of a plan for the grades of such streets and avenues, the laying out, opening, grading, construction, closing and change of the line of any one or more of them; to provide for the estimation and award of the damages to be sustained, and for the assessment on property intended to be benefited thereby, and fixing assessment districts,” etc.

      Held, that as the act applied to all counties containing an incorporated city of 100,000 inhabitants or upwards, it was not a local act within the meaning of section 18 of article 3 of the Constitution prohibiting the passage of local bills providing for the laying out or opening of roads, highways or alleys, or of section 23 of the same article requiring powers of local legislation to be conferred upon boards of supervisors by general laws.
    That although such power- was not expressly conferred by the act, the Supreme Court had jurisdiction to entertain an application for the appointment of commissioners to estimate and appraise the damages and benefits eccasioned by the laying out of a street directed to be opened by the board of supervisors as provided in the act.
    Appeal from an order made at a Special Term, appointing commissioners to appraise the damages and estimate the benefits to be occasioned by the laying out of a street in the town of New Utrecht, in Kings county.

      George B. Ely, for ¥m. Rockwell and others, appellants.

      N. S. Clement, for the petitioner, respondent.
   Dykman, J. :

In 1869 an act of the legislature constituted certain town officer’s of some of the outlying towns in the county of Kings, commissioners, to lay out a plan for streets and roads in those towns respectively ; chapter 670, Laws .of 1869. Among them was New Utrecht. On these commissioners power was conferred to lay out streets, roads and avenues in such towns conformable to plan of streets of the city of Brooklyn, terminating at the city line, or as nearly as might be practicable and judicious. Their power in this regard was exclusive and no road could be projected without their consent, without special legislative action ; after the adoption of their plan no street could be laid out in those towns not in accordance therewith, and if any building was thereafter erected on the line of any street on said plan, no compensation could be obtained by the owner thereof on the opening of the street. The plain object of this law was to establish a uniform system of streets to be thereafter opened. In performance of the duties imposed on them by this law, these commissioners prepared a map, including among others the town of New Utrecht, and laying out the whole area of that town in projected avenues and streets, similar do those in Brooklyn city. Among others was Ninety-second street, '.beginning at Seventh avenue and running thence to Fourth avenue, with a uniform width of eighty feet, and from Fourth avenue to the Shore road a uniform width of sixty feet. This street was projected through the lands of all the landowners opposing this proceeding.

This law was amended by chapter 581 of the Laws of 1874, but in no way material to the present inquiry. The law as it stands amended has received compliance, and there is no complaint of irregularity or omission.

By chapter 554 of the Laws of 1881, the legislature amended fhe act conferring powers of local legislation on boards of supervisors, so as to authorize the board of supervisors in any county ■containing an incorporated city of 100,000 inhabitants, where territory within such county and beyond the limits of the city, had been mapped into streets and avenues in pursuance of law, to establish a plan of their grades, and lay out, open, grade and construct the same, and to provide for the estimation and award of damages and for the assessment of benefits. This amended law confers all the powers that have been exercised here, and the objection raised is not to the regularity of the proceedings.

After this amendment in December, 1881, the board of supervisors of Kings county instituted proceedings under and in pursuance of the laws already noticed for the opening of Ninety-second street, in the town of New Utrecht, which have been conducted .so far as to apply for commissioners of assessment and award preparatory to opening the street. These proceedings require no detailed examination as no question arises thereon.

Objection was made to the appointment of these commissioners, ■on the ground ■ that the action of the board of supervisors was unauthorized by the amended law of 1881, ana also because that law was in contravention of the State Constitution. These objections were put aside at Special Term and the order was made from which we have this appeal.

The first question raised requires little examination, for the law as it is written has been followed in all the proceedings. The letter of the statute does not kill, and its spirit maketh alive. The subsequent law of 1881 was made in full view of tbe statute of 1869, and both are in full harmony. The case provided for in the later, is precisely the situation left by the proceedings under the-earlier.

The important question comes on the constitutionality of the law of 1881. The Constitution of the State prohibits the granting of legislative power to county boards except by general laws, and also prohibits the legislature from providing for laying out, opening and constructing streets except by general laws. (Art. 3, §§ 18, 23.) If, therefore, this statute is inhibited by the fundamental law of the State, it is because it is local and not general. General laws for the purpose contemplated being unforbidden. A local law is one having application to a particular locality only, and having no force beyond a particular city or other political division, while a general law is its opposite, unlimited to any particular territory, and common and public in its operation and application.

If this law had application to all the cities of the State, it would clearly be unobnoxious to constitutional objection. It does apply to all counties containing an incorporated city of 100,000 inhabitants or upward. How many counties fall under its operation does not appear and cannot appear. It includes all of a certain class or description and is valid on its face. Invalidity will not be imputed to any such statute, neither will testimony be taken to destroy it. There is no rule by which it may be certainly determined when a law is local or general, and definitions are not easily framed for all cases. Yet legislative action is to be upheld when not plainly violative of the fundamental law. Everything is to be presumed in its favor, and in this case the presumption is that there are counties in this State falling within this law to make it valid and unobjectionable. It cannot be assumed that the legislature has exceeded its authority, and there is no evidence that it has so done.

In the Matter of New York Elevated, Railroad Company (70 N. Y., 327), the opinion of the court has this language : “ The law does not specify any particular elevated steam railway in actual operation, but in its terms applies to any and all such railways anywhere in operation. How are we to know that there was but one in operation at the time of the passage of the act ? Can a court take proof for the purpose of showing a statute, valid and regular upon its face, to be unconstitutional, and does the validity of a law which is required to be general, and which is general in its terms, depend upon the number of subjects upon which it can operate or upon the size of a class to which it applies? These questions must be answered in the negative. W e do not know and we cannot assume that the legislature knew that there was but one elevated steam railway in actual operation in this State at the time of the passage of the act.” This seems to cover the point under consideration and determine the validity of this law.

An objection was taken that the Supreme Court had no jurisdiction to appoint these commissioners, and in answer it is to be ’ said that the Supreme Court has general jurisdiction in law and equity, and the law which we have examined and pronounced valid, authorized the board of supervisors to lay out, open and construct this street in question. The Constitution requires damages sustained by land owners to be ascertained by a jury or by commissioners, as incident to the power to open this street; therefore the board did possess the right to make the application to this court, and they did authorize it to be made. The petitioner is a freeholder and owner of property within the assessment district, and was authorized to make the application for commissioners.

Objection was also made that no highway can be laid through improved land, except through the intervention of a jury to certify its necessity. This is one of the provisions of the general highway laws of the State' which have no application. This street is already laid out under the Laws of 1869. Neither has the general prohibition against laying out roads through buildings and inclosures any application.

Other points of a similar character were made and have received examination, but we find that the proceedings challenged are similar to those that have been taken, with much of repetition, and received sanction from the courts in numerous cases.

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

Barnard, P. J, and Gilbert, J., concurred.

Order affirmed, with costs and disbursements.


author: DvkmaN, J.:

text:
    In the Matter of ALEXANDER WALDRON, Deceased.

      JBhidence — proof of or testator’s signature, nota personal transaction with him— over what claims presented, try an executor■ a surrogate hp,s jurisdiction —Trust— when it does not prevent the running of the statute of limitation — when the statute does not run until after a demand made.

    Upon the final accounting of-Willimina and John H. Neilly, as administrators of Alexander Waldron, deceased, Willimina Neilly, as administratrix of the estate of Sarah Byron, deceased, presented a claim against the estate of Alexander Waldron. The claim was founded upon a paper dated November 4, 1828, signed by Alexander Waldron, by which he acknowledged that he had in his possession and held in trust for .his sister Sarah Byron, the sum of $268, being the balance of a sum which he and his brother had been directed to pay to their sister by their father’s will. He thereby promised to pay to her interest on the said sum as long as it remained in his hands, and to advance to her portions of the principal if necessary.

      Held, that the surrogate had jurisdiction of the claim.
    That the administratrix was properly allowed to prove that the signature to the paper was that of the deceased.
    That although the instrument did not create a technical trust, such as would take the case out of the statute of limitation, yet a demand was necessary to set the statute in operation, and that as none was proved, the claim was not barred.
    Appeal by Willimina-B. Neilly, administratrix of Sarah Byron, deceased, from an order by the surrogate of Rockland county disallowing a claim presented by her.

      George H. Forster, for the appellant Willimina B. Neilly, administratrix.

      George W. Weiant, for the respondents Henrietta Brooks and Caleb G-illeo.
   DvkmaN, J.:

On the final accounting of Willimina B. Neilly and John A. Neilly before the surrogate, as administrators of Alexander Waldron, deceased, Willimina B. Neilly presented a claim against the estate, which she held and made as administratrix of Sarah Byron, deceased, founded on the following instrument in- writing, made and executed by Alexander Waldron:

I do hereby acknowledge to have in my possession, and hold in trust for my sister Sally, the wife of George Byron, the sum of two hundred and sixty-eight dollars, being the balance due to her this day for her proportion of one thousand dollars, directed to be paid by my father in his last will and testament, by my brother Jacob Tobias and myself, to his daughter, for which sum I promise to pay my sister legal intei’est as long as the same remains in my hands, and from time to time, as her necessities may require, advance to her a proportion of the principal moneys, it having been agreed between me and her husband, the said George Byron, that said moneys'shall remain in my hands in trust for his wife and for her sole benefit. Witness my hand, this fourth day of November, 1828.
“ $268. ALEXANDER WALDRON.”

The signature to the paper was proven by Willimina B. Neilly, and the paper was offered in evidence. It was objected to as a transaction with Alexander Waldron, deceased, and that the witness could not testify respecting it; that it appeared on its face to be barred by the statute of limitations; that the claim could not be tried in the Surrogate’s Court. The evidence was excluded, and thus the questions are presented.

On the first point it is to be said that the witness testified to no transaction with the deceased. She merely proved the signature of the paper given to her mother and the transaction was between her father and mother and the deceased. This testimony, therefore, does not fall under the condemnation of the rule, invoked for that purpose.

It seems that an action was brought on this claim in the Supreme Court, and that it was there held, the surrogate had no power to adjudicate the same. This judgment was reversed by the Court of Appeals, where it was held the surrogate had jurisdiction. What further was determined by the appellate court is unknown to us, as the case is yet unreported.

It remains for us to make disposition of the question arising on the statute of limitations. The legal effect of this instrument was to constitute the deceased man a depositary of the fund, with an agreement to pay interest thereon, and the principal from time to time. He agreed to hold the money in trust for the benefit of his sister, and in the general acceptation of the term a trust was created, but not such an one as to take the case out of the operation of the statute of limitations. It was the same trust that always comes out of the relation of borrower and lender or bailor and bailee, and the various other relations where confidence and trust are reposed, but not a technical or continuing trust falling within the peculiar jurisdiction of a court of equity. In fact, since the joinder of legal and equitable jurisdiction in the same court, technical trusts within the exclusive control of equity, so as to prevent the application of this statute, are by no means numerous. The deceased became the debtor of his sister, and at any time she might have collected the claim by an action at law. In fact, he owed her the money at the time, in conjunction with her other brother, and this was but an acknowledgment of his personal liability, with a promise to pay interest until the payment of the principal. It has been said that this was a deposit of money, and it was so in the obligation it imposed. A deposit of money with a bank or private person creates a trust, yet it is a loan, payable on demand, and the depositary is not in default and no action will lie against him for the money until payment has been demanded. Downes v. Phoenix Bank (6 Hill, 297); Payne v. Gardiner (29 N. Y., 146); Boughton v. Flint (74 id., 476) were much like this case. The executrix, who was the wife of the deceased, presented a claim against the estate of $800 for money in the hands of the testator on deposit, and it appears from the opinion of the court that the sum was the proceeds of certain notes and a hond and mortgage taken by the testator in his own name for real estate belonging to the wife. All the money was received by him, and she requested him to retain it until she called for it, and he assented. On the facts, the court held that, aside from the question of coverture, an indebtedness existed enforceable at common law in an action for money had and received; that the transaction was a simple deposit, and that the statute of limitations did not commence to run until demand for the money.

Here the six years’ statute of limitations was applicable, but there is no evidence of any demand, and therefore the statute never commenced to run. It follows that the claim is not barre.d by this statute.

In all points, therefore, the decree is erroneous and should be reversed, with costs.

GilbeRT, J., concurred; BarNArd, P. J., dissenting

Decree of surrogate reversed, with costs.


author: DtKMan, J.:

text:
    JOSEPH BUCKHOUT, Respondent, v. CHARLES RALL, Appellant.

      Constitution, art. 6, seo. 15 — jurisdiction of the County Court — chap. 480 of 1880 is invalid — effect of amending a section of an act after its repeal.

    Section 1 oí chapter 467 of 1870 conferred, upon County Courts jurisdiction over civil actions in which, the relief demanded did not exceed $1,000. This section was repealed by chapter 417 of 1877. The whole act of 1870 was repealed by chapter 345 of 1880, which took effect September 1, 1880. By chapter 480 of 1880 the said first section was amended so as to give the County Court jurisdiction when the relief demanded did not exceed $3,000.

      Held, that chapter 480 of 1880 must be considered as having revived the repealed section of chapter 467 of 1870, or as having force and validity as a new'law.
    That the jurisdiction conferred upon the County Court by the act of 1880 exceeded the limit prescribed by the fifteenth section of the sixth article of the Constitution, and that the act was therefore invalid and void.
    Appeal from a judgment of the County Court of Westchester eqjmty in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the judge’s minutes.
    The action was brought to recover damages for an assault and battery. The plaintiff demanded $2,000 and recovered $230. The jurisdiction of the County Court was not questioned by the pleadings or upon the trial.

      Wm. Gr. Valentine, for the appellant.

      Smith Lent, for the respondent.
   DtKMan, J.:

This is an action for assault and battery. The offense was established on the trial and the plaintiff had a verdict, and the case would require little examination here but for a question now to be stated.

The action was brought in the County Court and the complaint demanded judgment for $2,000, and now the jurisdiction of that court is challenged for that reason. As this is a question to be started at any stage of the action it must receive examination now.

The County Court is of limited jurisdiction and can exercise only such powers as are conferred upon it by the Constitution and the enactments of the legislature.

In the State Constitution of 1870, the provision is, that the County Courts shall have the powers they now possess until altered by the legislature. They shall also have original jurisdiction in all cases where the defendants reside in the county, and in which the damages demanded shall not exceed $1,000, and also such appellate jurisdiction as shall be provided by law, subject, however, to such provision as shall be made by law for the removal of causes to the Supreme Court. They shall also have such other original jurisdiction as shall from time to time be conferred upon them by the legislature.

It is thus seen, that the provision of the Constitution respecting the original jurisdiction of this court, in common law actions is restricted and confined to cases where the defendants reside in the county, and in which the damages demanded shall not exceed $1,000, and so far it is self-executing. It supplies a specific rule, and requires no legislation for that purpose.

. "Where no constitutional restriction is imposed on the law making power of the State it is free to act within" the scope of its legitimate province. The object of the paramount law is not to grant or confer legislative power, but to limit and restrain its exercise. In the absence of such limitations the power to make laws is omnipotent, yet limitations may be implied as well as expressed, and such restriction is the main object and purpose of the State Constitution. The legislature cannot exercise judicial authority because that has been intrusted exclusively to the courts, and this is an instance of implied restraint on the law making power.

When the Constitution in terms prescribed the original jurisdiction of the County Courts of the State, it confined the same to cases where the defendants resided in the county and the damages demanded did not exceed $1,000, and their jurisdiction was thus limited as to persons sued and the amount claimed. In this view, the bestowment of such other original jurisdiction as shall from time to time be conferred upon them by the legislature does not authorize the extension of their jurisdiction to other parties or •greater amounts, for certainly one maybe done as well as'the other. If the jurisdiction of these courts may be enlarged to $3,000, restrictions on the amount demanded may be altogether removed and they may be made co-ordinate in this respect with the Supreme Court. It would require explicit language to justify such a construction, as by it the local character of the courts woidd be substantially destroyed.

"We are not inclined to a latitudinarian construction of the fundamental law of the State. "When constitutional limitations are imposed on the legislative power, either expressly or by plain implication, they should be followed by the courts. They cannot be disregarded without infringir g on the reserved rights and powers of the people withheld from their legislative representatives.

• A tendency towards local administration is plainly discernible in the present State Constitution. Actions brought in the County Coui-ts must be against residents of the county. This is a specific requirement, and under the provision for other original jurisdiction it cannot be disregarded. These words must find satisfaction in bestowing power on the legislature to confer original jurisdiction in other hinds of actions and proceedings aside from those specifically named.

The history of the legislation on this subject, is as follows:

Soon after the adoption of the present Constitution, the legislature in obedience to the requirements of that instrument, made a law with specific provisions relating to the jurisdiction of County Courts in civil actions, and limited the same to cases where the demand for relief did not exceed $1,000. (Laws of 1870, chap. 467, § 1.) Then this section 1 was repealed in 1877 (Laws 1877, p. 474, chap. 417), but the whole subject was again regulated by the legislature the same year when the jurisdiction of the County Courts was again enlarged, but the recovery in civil actions was still restricted to $1,000. (Code Civil Proc., § 340.) In the year 1880, the remainder of chapter 467 of the Laws of 1870 was repealed, but the repealing act did not have effect until the 1st day of September, 1880. (Laws of 1880, chap. 245, p. 373.) Again, in the year 1880, a law was passed, providing that the County Courts in addition to the powers they then had should have jurisdiction in civil. actions where the relief demanded was the recovery of a sum of money not exceeding $3,000, or the recovery, of personal property not exceeding in value $3,000. (Chap. 480, Laws of 1880,*p. 690.) It is a fact, that although section 1 of chapter 467 of the Laws of 1870, was repealed by chapter 417 of the Laws of 1877, as above stated, yet the whole of chapter 467 of the Laws of 1870, was repealed by chapter 245 of the Laws of 1S80, but as this last repealing act did not take effect until the 1st day of September, 1880, and as chapter 480 of the Laws of 1880, was passed May 28, 1880, amending section 1 of chapter 467 of the Laws 1870, it is presumed that law is valid. It must be-received as reviving the first section of the law of 1870, or as having force and validity as a new law, at all events, it is now the last expression of the legislative will and must be received as its latest intention. That law confers jurisdiction on County Courts in civil actions where the relief demanded is a sum not exceeding $3,000, or the recovery of personal property not exceeding that value.

We have therefore no difficulty in ascertaining the present state of legislation on the subject under examination, but the last enactment is beyond the competency of the legislature. The examinations made lead to the conclusion that the jurisdiction of the County Courts, in cases like the present, was limited by the Constitution to actions where the amount demanded did not exceed $1,000, and the law of 1880, enlarging such jurisdiction to $3,000, was an invasion-of that limitation, and is inoperative and void.

It results that the County Court had no jurisdiction of this action, and that the judgment appealed from must be reversed, with costs.

GilbeRt, J., concurred; JBarNArd, P. J., dissenting.

Judgment and order denying new trial reversed, with costs.


author: DykmaN, J.:

text:
    THE COMMISSIONERS OF CHARITIES OF THE COUNTY OF KINGS, Appellants, v. JAMES RICHMOND and Others, Respondents.

      Kings county insane asylum — right of, to receive property belonging to a paup&r lunatic — 1844, chap. 174, see. 8 — what may be shown as a defense in an action under it.

    Section 8 of chapter 174 of 1844 provides that if any person, admitted and received as a pauper lunatic into the lunatic asylum on the county farm in the county of Kings, be entitled to or possessed of, or shall, during his continuance in the asylum, become entitled to any wages,.money on deposit or other personal property, it 'shall be lawful for the superintendent of the poor of the said county to demand and sue for and recover such wages, moneys or personal property,’ and apply them when so received for and towards the expenses which have been or may be incurred in the support of the lunatic.

      Held, that the act only applied to those cases in which a person, both a pauper and a lunatic, was duly and lawfully received and detained in the said asylum.
    That in an action to recover money on deposit belonging to a person who had been received into and detained in the asylum, he might show that he was not a lunatic nor a pauper, and that he was wrongfully and unlawfully taken to and detained in the asylum.
    The care and custody of the insane in this State is now regulated by chapter 446 of 1874.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of this action by tbe court without a jury.
    Tbe defendant Richmond was detained, at tbe expense of tbe county, for nineteen months in the Kings County Insane Asylum, he having been admitted and classified as a pauper patient. After he had been there.for about eighteen months, the Board of Charities Commissioners ascertained that he had over $2,000 on deposit with the co-defendant. It thereupon, by resolution, directed that such measures be taken as may be necessary for the purpose of reimbursing the county for the expense it had incurred in his support and maintenance.
    The county, in virtue of the provisions of sections 8 and 9 of chapter 174, Laws 1844, has a lien or claim on “the wages, money on deposit or other personal property ” of a person admitted as.a pauper into any of the county institiitions.
    Prior to his reception into the asylum, two physicians had eertified under oath that they had personally examined him and that he was insane and a proper person for care and treatment under the provisions of chapter 446, Laws 1874.
    It was claimed by the defendant that the act of 1844 was uncon-' stitutional and that it had been impliedly repealed by the act of 1874, chapter 446.
    The plaintiffs contended (1) that the question as to the legality of the detention of Richmond in the asylum by the medical superintendent must be governed by the act of 1874, which is a substitute for all prior enactments relating to the same, subject, and the regularity of the commitment thereunder could not be controverted by the defendant; (2) that the rights of the county, which is a body corporate and a political-division of the State, could not be prejudiced by the acts of officials intrusted with the admiili&tration of the lunacy laws; that these officials are not, in a legal sense, the servants or agents of the county, but public officers selected in the manner prescribed by statute law, from which they derive all their authority.

      Wm. Sullivan, for the appellants.

      Benj. G. Hitehings, for the respondents.
   DykmaN, J.:

The defendant Richmond presented himself at the hospital under the charge of the plaintiffs and applied for admission for treatment for a bodily ailment, and was so admitted. This was on the 8th day of July, 1878. He was not a pauper and did not represent himself as such, but offered to pay his'board. This offer was refused, and the person receiving him informed him he would be taken without pay. This person, however; took from him forty-nine dollars in money and a watch of the value of twenty-five dollars. He remained in the hospital three days, when he was discharged. He then attempted to leave and demanded his money and his watch. He was then taken to the alms-house, and from there- to the asylum by the employes of the plaintiffs against his • will, and detained there until the 8th day of August, 1878, when he was sent to the insane asylum, another department of the institution under the charge of the plaintiffs, forcibly and against his will, wliere he was detained and restrained of his liberty until the 8th day of March, 1880. He was not insane at the time of his imprisonment nor at any time during his confinement in the asylum. Certificates of insanity were procured by the agents of the plaintiff from physicians in their employ at the time of his incarceration, without the application of any person and without notice to the defendant. These facts are foitnd by the judge before whom this cause was tried, and he also found that the defendant was detained illegally and without due process of law.

This action is for the recovery of board and maintenance of the defendant Richmond during the time he was an inmate of the lunatic asylum under the circumstances detailed, and for the confiscation of certain funds on deposit with the other defendant belonging to him and their appropriation to the payment of the judgment.

It may be admitted that by devolution of authority the plaintiffs may maintain an action like this in a proper case. But that they can be permitted to seize any citizen at will, procure certificates of his insanity from their own physicians without notice, shut him up in their asylum, confiscate his estate for their charges, is a proposition quite novel and somewhat startling, and yet it is the proposition of the counsel for these plaintiffs that the validity of an adjudication of insanity cannot be assailed in an action of this description, but that the right of recovery rests solely on the fact of maintenance in the asylum at the expense of the county.

It is written in the Constitution of the United States that no State shall deprive any person of life, liberty or property without due process of law, and the Constitution of our own State provides that no member of the State'-shall be deprived of any of the rights or privileges secured to any citizen' thereof, unless by the law of the land or the judgment of his peers, nor be deprived of life, liberty or property without due process of law. It was in Magna Charta that no freeman should be taken or imprisoned, * * * but by the lawful judgment of his peers or by the law of the land, and these are for the security of precious privileges to all people. Plainly the incarceration of the defendant Richmond was in violation of these guarantees of personal liberty, and if there be any statute in justification of such action, they are violative of these constitutional provisions and invalid. But there are none. The care and custody of the insane in this State is now regulated by chapter 446 of the Laws of 1874, and instead of being left to the mercy of strangers or officers whose interest or caprice it may be to pick them up and place them in confinement in case of the refusal or neglect of any committee or guardian of a lunatic or his relatives to confine and maintain him, or where there is no committee guardian or relative of sufficient ability to do so, then it is the duty of the overseers of the poor or constables to report the same to the superintendent of the poor who shall apply to the county judge or surrogate who may issue a warrant to apprehend the lunatic. And thus these proceedings must now be initiated, and as if to guard against what has come to pass in this very case, a section of this same law is that no physician who is a regular professional attendant in an asylum shall certify to the insanity of any person, for the purpose of committing him thereto.

It thus appears that neither these plaintiffs nor any of their officers or employes had any authority to institute proceedings in lunacy against the defendant. Richmond, and that their proceedings were absolutely void; nay, more, they were wrongful. It cannot be that they can set up such proceedings as a foundation for the recovery of the board of the person they have thus wronged during the time of his unlawful imprisonment.

The statute of 1844, chapter 144, under which this action is brought, is not for such a case. That gives an action to recover and receive the money on deposit of a' lunatic patient received and admitted into this asylum as a pauper lunatic. This man was neither a pauper nor a lunatic, and thus two essential elements for the action are therefore wanting.

The judgment should be affirmed, with costs.

BaRNARd, P. J., concurred; Gilbeet, J., not sitting.

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    PHILIP BITTER, Appellant, v. MARY ELIZABETH JONES and Others, Respondents.

      Resulting trust — when implied —power of a court of equity to enforce it.

    In 1866 the plaintiff purchased certain real estate and took a cónveyance thereof in his own name. In 1867 he conveyed it to a third person, upon the agreement that he should convey it to the plaintiff’s wife, which was done upon the same day. No consideration was paid to the plaintiff, by his grantee or by his wife. The plaintiff intended that the property should he given to his wife in some way for his benefit, and that it should be held by her in trust. It did not appear that the plaintiff knew that the conveyance to his wife was absolute in character. No creditors asserted any right to the property.
    In an action brought by the plaintiff against the heirs-at-law of his deceased wife, to have the ownership, title and possession of the property restored to him:

      Held, that he was entitled to recover.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action by the court without a jury.
    The plaintiff having caused certain real estate owned by him to be conveyed to his wife during her lifetime, brought this action after her death against her nieces and the children of deceased nieces, to enforce a resulting trust, which he claimed existed, and prayed that he might be fully restored to the ownership and possession of the property, and that the full title thereof might result back to and vest in him in fee simple.

      Franklwi Bartlett, for the appellant.

      8. M. dk D, E. Meeker, for the respondent Alfreeta Klinek.

      S. Cr. McDonald, for respondents Heath and others.
   Dykman, J.:

The plaintiff in this .action purchased the property in controversy in the year 1866, and paid for it, and took a deed of conveyance for it in his own name. With no intention to perpetrate a fraud, and with a perfectly laudable design, the plaintiff caused this property to be conveyed to a third person in the year 1867, under an agreement that he should convey the same to the plaintiff’s wife, which he did on the same day. Neither of them paid any COnsideration for these conveyances, and there are no rights of creditors intervening. It is found as a fact, that at. the time of the transfer of the property to his wife, the plaintiff intended that it should be given her in some way for his benefit, and that it should be held by her for him in trust. Since the conveyance to him the plaintiff has occupied the property as a residence. His wife died without will or deed to reinvest him with the legal title, and now the same is claimed by the defendants as her heirs at law, and this action is brought for his relief. His complaint was dismissed by the trial court, and we have the case on appeal from that' judgment.

The defense of. the action seems to be rested on the statute declaring that where a grant shall be made to one person and the consideration is paid by another, no use or trust shall result in favor of the person making the payment, but the title shall vest in the alienee. (1 R. S., 728, § 51.)

The-first thing to be said about this defense is, that the statute cannot be interposed by these defendants because the case- does not fall within it: The state of facts embraced in its provisions has no existence in the case. The consideration here was paid by the plaintiff and the grant was to him. Afterwards he caused a transfer of the title to another person, who, on the same' day .in execution of the trust on which he received it, executed a conveyance to the wife of the plaintiff. This was also procured by him with the intention that it should be in some way for his benefit, and that it should be held by his wife for him in trust. The title, therefore, went to her on the condition prescribed by the plaintiff of holding the same for his benefit. The defendants have no greater or higher rights than the wife took by the deed of. conveyance to her, and in legal contemplation she received the title for the purpose of holding the same in trust for the plantiff.

There is neither testimony nor- finding that the plaintiff had knowledge of the character of the conveyance to his wife or consented that it should be absolute.

The conveyance to the wife was in execution of the trust, under which her grantor received the title from the plaintiff, and she received the same on an implied trust to hold the same for the plaintiff. Such trust resulted from the situation and action of the parties, from their obvious intention and from the manifest justice of the case, and its establishment is not violative of any statute. (Foote v. Bryant, 47 N. Y., 544.) For the purposes of this action it may be assumed that the plaintiff had no knowledge that the conveyance to his wife wa£ absolute on its face, without expressing the trust which he intended to impress on the title. (Siemon v. Schurck, 29 N. Y., 615.)

So we have a case where the owner of land for no consideration, without intention- to evade the law, and with no object against public policy, has caused it to be conveyed to another for his benefit, to be held for him in trust. Without his knowledge or assent the deed is absolute on its face. This situation impresses the property with a trust, which a court of equity will enforce to prevent fraud .and injustice. (Lounsbury v. Purdy, 18 N. Y., 519.)

It is now too late to refuse relief in a case like this. The naked title to these premises descended to the defendants from the plaintiff’s wife, and they must now yield it back. She received the property by an absolute deed, but in fact in trust, and her obligation was to reconvey to him on demand, and the performance of that duty could have been enforced against her.

The statute against the creation of a trust, unless by writing, does not embarrass; it cannot be invoked to protect these defendants, for that would result in their assistance in the perpetration of a fraud on the plaintiff. That is never permitted. (Ryan v. Dox, 34 N. Y., 312.) Another reason is, that section 10 of title 1, chapter 7 of part 2 of the Revised Statutes (2 R. S., 135) is, that nothing therein contained shall be construed to abridge the power of the ■court to compel specific performance of agreements partly executed.

The imperious demand of justice in this case- is for the administration of relief to the plaintiff. As a provision against the uncertainties of a precarious manner of life, he placed the legal title to the property in question in his wife, in trust to hold the same for him, and to be surrendered on demand. Without execution of the trust she departed this life. That event does not leave the plaintiff helpless, and equity jurisprudence will fall far short of its high prerogative if relief is denied him in this case.

To prevent fraud and compel the performance of trusts and contracts are well recognized heads of equity jurisdiction, and all these .are presented here.

Our conclusion is that the plaintiff is entitled to relief, and that the judgment should be reversed and a new trial granted, with costs to abide the event.

Raenaed, P. J., and Gilbeet, J., concurred.

Judgment reversed and new trial granted, with costs to abide event.


text:
    THE PEOPLE OF THE STATE OF YORK ex rel. FRANCIS M. CRAFTS v. THE FIRE COMMISSIONERS, RESPONDENTS.

      Charter of the. city. of Brooklyn — construction of sec. 7 of chap. 377 of 1880 — what officers are removable without trial.

    An assistant superintendent of telegraphs in the fire department in the city of Brooklyn is not employed .“on the force for extinguishing fires,” within the meaning of those words, as used in section 7 of chapter 377 of 1880, providing that “no person employed on the police force, or on the force for extinguishing fires, shall he removed without cause, and then only after a public trial. ”
    The interpretation heretofore put upon the clause, “ on the force for extinguishing fires,” which makes it include all officers of the fire department, enumerated in section 9 of title 13 of the charter, reviewed and held to be erroneous.
    The maxim noscitur a sociis applied.
    CeetióRAbi to review the action of the fire commissioners, in removing the relator from his position as assistant superintendent in the fire department of the city of Brooklyn.

      Sidney Williams, for the relator.

      John A. Taylor and F. W. Gatlin, for the respondents.
   Gilbert, J.:

The relator was an assistant superintendent of telegraphs in the fire department of the city of Brooklyn, and was removed from that office without a trial. If he was employed on the “force for extinguishing fires,” within the meaning of section 7, of chapter 377, of the Laws of 1880, such removal was illegal. It is provided by that" section, that the officer or officers at the head of every department may appoint and remove “his or their clerks and assistants and other subordinates” without a trial, upon filing with the city clerk the reasons therefor, which reasons shall hot be questioned in any other place, and that “ no person employed on the ¡police force, or on the force for exti/ngxdshing fires, shall be removed without cause, and then only after a public trial.” The interpretation heretofore put upon the last clause of this section is, that it includes all officers of the fire department enumerated in section 9 of title 13 of the charter. (Chap. 863 of 1873.) Upon a review of the subject, we think that construction is erroneous for two reasons: 1. The enumeration in said section 9, embraces officei’s of the present department of buildings as well as officers of the fire department, for, at the time it was made, those departments were united and constituted a single department. 2. The 'first clause of section 7, of the act of 1880, authorizes the removal, without a trial, of “ clerks, assistants and other subordinates,” a comprehensive phrase which includes many of the officers enumerated in said section .9, of title 13 of the charter. Recourse elsewhere must therefore be had, for the purpose of ascertaining the meaning of the phrase, “ force for extinguishing fires.”

The prohibition contained in said section applies to this force and the “police force.” The charter of the city defines the phrase “ police force.” That definition excludes the superintendent, operators and assistant operators of the telegraph, and includes only the men to whom is assigned direct and actual police duty. (Laws 1873, chap. 863, tit. 11, §§ 6, 7.) The force for extinguishing fires is not defined, unless the term “ firemen ” may be so regarded. (Id., tit. 13, § 9.) But a telegraph superintendent or his assistants cannot reasonable .be held to belong to the “ force for extinguishing ■fares” when officers who perform the same functions are excluded from the “police force.” For the legislature could not have intended to protect officers of the same grade, and having the same kind of duty to perform when employed in the fire department, but to withdraw that protection when employed in the police department. The object of the statute was to prevent arbitrary removals from office for political or sinister reasons, and it applies to • both “forces” alike. In order to ascertain what officers the legislature intended to designate by the phrase “ force for extinguishing fires,” I know of no better rule to adopt than the familiar one of noscitv/r a, sociis. Guided by that rule, and recurring to the above definition of the words “police force,” the intention of the legislature becomes apparent. (Corning v. McCullough, 1 N. Y., 47, 63 ; Aikin v. Wasson, 24 id., 482 ; Coffin v. Reynolds, 37 id., 640.) It was to restrict the power of removal, only, of that class of employes in the fire department who fall under the designation of firemen, that such restriction should apply to all of that class from the highest to the lowest, and that it should not apply to clerks, assistants and other subordinates, whose duties do not directly pertain to the extinguishing of fires.

The writ of certiorari should be quashed, but without costs.

Baenaed, P. J., dissenting.

Present — Baenaed, P. J., GilbeRT and Dykman, JJ.

Writ of certiora/ri quashed, without costs.


author: GILBERT, J.:

text:
    FERDINAND GUTBRECHT, Appellant, v. THE PROSPECT PARK AND CONEY ISLAND RAILROAD COMPANY, Respondent.

      Notice of appeal — subscription of, by appellant or Ms attorney — amendment of— Code of Oiml Procedure, secs. 3046, 3049.
    Prior to the amendment of section 3046 of the Code of Civil Procedure, in 1882, it was not necsssary that a notice of appeal should he actually subscribed by the appellant or his attorney; it was sufficient if the name of the appellant’s attorney, with his business address, were indorsed upon the back of the notice.
    An omission to subscribe a notice of appeal may be cured by amendment under section 3049 of the Code of Civil Procedure.
    Any act on the part of the appellant which constitutes a step in the proceeding to appeal, and which evinces his intention in good faith to perfect and prosecute his appeal, is a sufficient ground for an amendment under the said section.
    Appeal from an order of the County Court of Kings county, dismissing an appeal from a Justice’s Court, and denying a motion for leave to amend the notice of appeal.
    This action was brought in a Justice’s Court in Brooklyn. It was tried and judgment given ‘for the defendant, and in due time plaintiff took an appeal from the judgment. In so doing his proceedings were as usual, and regular, except that the notice of appeal was not subscribed by any person. It was, however, indorsed “Notice of Appeal. 0. J. Patterson, Plain tiffs Attorney, 346 Pulton Street, Brooklyn.”
    The defendant moved in the County Court to dismiss the appeal for want of a subscription to the notice, and plaintiff moved for leave to amend the notice (if necessary). The court held that it had no power to permit the amendment, and granted the defendant’s motion, and from this decision the appeal is taken.

      Charles J. Patterson, for the appellant.

      John II. Bergen, for the respondent.
   GILBERT, J.:

The notice of appeal in this case was not subscribed either by the appellant or by-his attorney, but it was indorsed on the back with the name of the plaintiff’s attorney and his business address. As the law then stood, all that was required to perfect an appeal was the service of a written notice of appeal. In Burrows v. Norton (2 Hun, 550), it was held that such a notice of appeal as was given in this case was sufficient.

In July, 1882, section 3046 of the Code of Civil Procedure was’ so amended, as to require an actual subscription of the notice of appeal. This amendment, however, does not affect any proceeding had prior thereto.

But assuming that the notice of appeal was insufficient, it was not an absolute nullity. It could be amended by virtue of section 3049 of the Code of Civil Procedure. (Burrows v. Norton, supra.) That section authorizes the appellate court to allow an amendment to be made upon such terms as justice requires, where the appellant has omitted to do any act necessary to perfect the appeal. This language is very comprehensive and was intended to prevent all injury to appellants, arising from mere technical variances or omissions. Any act on the part- of the appellant which constitutes a step in the proceeding to appeal, and which evinces his intention in good faith to perfect and prosecute his appeal, is a sufficient ground for an amendment. (Sherman v. Wells, 14 How., 522 ; Jackson v. Fassitt, 33 Barb., 645 ; Burrows v. Norton, supra.)

¥e think, therefore, that the court below erred in disallowing the proposed amendment in this case, and that the order appealed from should'be reversed, with ten dollars costs and disbursements.

Barnard, P. J., and DyemaN, J., concurred.

Order dismissing appeal and refusing amendment reversed, with costs and disbursements and amendment allowed.


text:
    In the Matter of the Judicial Accounting of JACOB STORM, as Surviving Executor and Trustee, etc., of ABRAHAM STORM, Deceased.

      Executor — liability of, for money paid to 7m coexecutor and misappropriated by him.

    The appellant, Storm, paid to his coexecutor Haight, the sum of $1,200 in good faith, and for the purpose of having him discharge therewith a legacy of that' amount given to Haight’s wife. At the time the payment was made, Haight was reported to he wealthy and Storm believed him to be perfectly solvent. Haight having misappropriated the money, the surrogate, upon Storm’s accounting, charged him with it.

      Eeld, that this was proper; that Storm parted with the possession of the funds of the estate at his peril, and was answerable for the acts of his coexecutor in the same manner that he would have been for the acts of a stranger to whom he might have intrusted them.
    Appeal from an order of tbe surrogate of Westchester county disallowing an item of $1,200, with which the appellant, Storm, had credited himself on the accounting, and refusing to allow him to give further evidence as to the circumstances under which and the purposes for which he had paid the said amount to his coexecutor.

      Wm. F. Purdy, for Jacob Storm, appellant.

      H. 0. Griffin, for Oscar Barker, respondent.
   Gilbert, J.:

The appellant, Jacob Storm, and Henry L. Haight, were executors and trustees under the will of Abraham Storm, deceased. Haight died in 1881. Upon the accounting of Storm in the Surrogate’s Court he had credited himself in his account with the sum of $1,200, paid to bis coexecutor, Haight, to pay legacies. This sum was misappropriated by Haight and was lost to the estate. The surrogate disallowed the credit. Storm then moved for leave to produce evidence that he believed, when he paid said sum (o Haight, that the latter was perfectly solvent, that he was reputed to be wealthy, and that the sum lost was intrusted to Haight in good faith, for the purpose of discharging a legacy to Haight’s wife.

We think the surrogate decided correctly. While an executor is not chargeable for a devastavit of his coexecutor, yet he is chargeable with all the assets of the deceased which have been actually received by him. He is not discharged from liability by showing that he intrusted such assets or any part thereof to his coexecutor for the purpose of administration. It was his duty to conduct such administration himself, and he is answerable for his coexecutor in the same manner as he would have been for a stranger to whom he had intrusted such assets. In other words, he parted with the possession of the funds of the estate at, his peril. The : rule is well settled, and it is too important to be relaxed. (Croft v. Williams, 28 Hun, 104; Clark v. Clark, 8 Paige, 153 ; Adair v. Brimmer, 74 N. Y., 539.)

The order must be affirmed, with ten dollars costs and disbursements.

BarNard, P. J., and DykmaN, J., concurred.

Order of surrogate affirmed, with costs and disbursements.


text:
    JOSEPH F. KNAPP, Appellant, v. THE CITY OF BROOKLYN, Respondent.

      Assessment — no action to vacate it can be brought in the city of ’Brooklyn — 1874, chap. 313, sec. 3.
    The prohibition contained in section 3 of chapter 313 of 1874, providing that no action should thereafter he commenced for the vacation of any assessment, or to remove a cloud upon title, and confining owners of property in such cases to proceedings under chapter 338 of 1858, is applicable as well to the city of Brooklyn as to the city of Now York.

      Appeal from a judgment in favor of the defendant, entered upon an order sustaining á demurrer to the complaint.
    The complaint alleges that the defendant levied an assessment for a local improvement, known as grading and paving Halsey street, upon the lands of plaintiff, which was valid upon its face and constituted a lien upon said lands, but was actually illegal and void, by reason of facts dehors the record. That the expense of the local improvement, for which the assessment was laid, had been increased in dollars and cents by reason of the illegal action, frauds and irregularities of the officers of the defendant to the extent of twenty-ñve per cent thereof. That the plaintiff, in ignorance of these facts, paid the assessment in full. The plaintiff demanded judgment that the said assessment be reduced and that he recover the money which represented the fraudulent increase.
    The complaint is demurred to on three grounds:

      First. That the court has not jurisdiction of the subject-matter of the action.

      Second. That two causes of action have been improperly united therein, in that one is for the reduction of an assessment and the other for the recovery of money.

      Third. That the complaint does not state facts sufficient to constitute a cause of action.
    The court at Special Term sustained the demurrer and ordered judgment for the defendant.

      John T. Barnard, for the appellant.

      John A. Taylor, for the respondent.
   Gilbert, J.:

If an action of this kind can be sustained, the complaint in this case is fatally defective because it does not set forth the facts upon which the allegations that the assessment “has been increased in dollars and cents by reason of the illegal action, frauds, and irregularities,” which the pleader had in mind, was founded. The averment presents a mere conclusion of law, and tenders no issue of fact.

But passing that defect, we are of opinion that the prohibition contained in section 2 of chapter 312 of the Laws of 1874, namely, that no action should thereafter be commenced for the vacation of any assessment, etc., etc., but that owners of property should thereafter be confined to their remedies in such cases to the proceedings under the act thereby amended, is applicable alike to Brooklyn and New York. The only effect which that act had was to amend chapter 338 of the Laws of 1858. Although the latter act when passed was limited to the city of New York, yet it was subsequently extended and made applicable to the city of Brooklyn. (Laws 1862, chap. 63, sec. 43 ; Id. 1871, chap. 483, sec. 1; Id. 1873, chap. 683, tit. 18, sec. 38.) The last two acts are, in respect to the question before us, mere re-enactments of the act of 1862.

The amendment of the act of 1858, enacted in 1874, was not merely another amendment of the former act as originally passed, but affected it as it stood after the amendment of 1862. After the latter act was passed it became requisite, in order to give the act of 1858 its true and full legal effect, to read and interpret it in the same manner as if the amendment of 1862 had been incorporated therein originally. (Board of Excise v. Curley, 9 Abb. N. C., 100; S. C., 69 N. Y., 608; Ely v. Holton, 15 N. Y., 595.) So read, the amendment of 1874 is operative in favor of Brooklyn as well as New York.

The relief sought in this action is a reduction of the assessment, and then the recovery of a sum paid in excess of the amount of the assessment after such reduction shall have been made. We think that a reduction of the assessment would vacate it pro tanto, and therefore would be in the teeth of the prohibition contained in the act of 1874. (Eno v. The Mayor, 7 Hun, 320.)

The judgment should be affirmed, with costs.

Present — Gilbert and DtKman, JJ.; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


author: Dykman, J.;

text:
    ANNA SEIDLINGER, Respondent, v. THE BROOKLYN CITY RAILROAD COMPANY AND Others, Appellants. LOUIS SEIDLINGER, Respondent, v. THE SAME, Appellants.

      Negligence — passenger injured by a collision between a coal ca/rl and a horse car— when the question of the defendant’s negligence should be left to the jury.

    Appeals from judgments in favor of tbe plaintiffs, entered upon tbe verdicts of juries, and from orders denying motions for new trials, made upon tbe minutes of tbe justice before whom tbe actions were tried.
    The two actions were tried together. In the first, tbe plaintiff, Anna Seidlinger, and in the second, her husband, sought to.1 recover the damages occasioned by injuries sustained by the plaintiff Anna, by reason of the defendant’s negligence.
    Anna Seidlinger, the wife of Louis Seidlinger, was a passenger on the car of the defendant’s horse railroad, going north on Eirst street. A one-horse coal cart’belonging to the individual defendants was about to deliver a load of coal on the east side of the street. There was an opening in the sidewalk for the reception of the coal, and the driver of the coal cart undertook to lead the horse on to the sidewalk and so draw the cart over the coal hole; a small bridge was laid down outside the curb-stone to grade the rise from the carriage-way to the footpath. The sidewalk was not of sufficient width to take on the horse and cart at a right angle with the street, and So the horse was led on at an angle more or less acute. "When the cart had proceeded so far that one wheel was over the curb-stone, and the other on the ascending bridge, the horse was unable to take it. up or bold it, and he allowed it to run back until both wheels reached the carriage-way. All this time the street car was' approaching and, without stopping, undertook to pass, when the horse backed and struck the rear of the cart against the car and caused the injury complained of to Mrs. Seidlinger. The cart driver all the time held the horse by the head, but was unable to control him after he commenced to run backwards.
    The court at General Term said: “At the close of the testimony for the plaintiff, a motion was made to dismiss, on the ground that no negligence of the defendants had been shown, which was renewed at the end of the testimony. It was both times denied, and that is now set up for error, on the claim that no want of care is manifested. We cannot so decide. There was a ton of coal on the cart-and but one horse to manage it. There was a coal hole in the sidewalk for its reception. The cart could have been backed up until the wheel struck the curb-stone and then the rear end of the cart would have been near the opening. The coal would have then fallen from the cart near the orifice and all would have been well. The horse and cart could not stand square across the sidewalk, and to endeavor to drive on it at an accute angle with a ton of coal, was a hazardous undertaking, as the result showed. Whether it was proper under all the circumstances to adopt this latter mode was a fair question for the jury, and the finding is against it. It could not well have been else. Backing to the sidewalk and dumping the coal would have been attended with no danger, while the attempt to attain the sidewalk was full of peril.
    “ Then as to the driver of the horse car — he had. an open car with passengers sitting near the end of the seats, where collision with a vehicle would almost certainly result in injury. The horse had backed the cart down until the rear end was within two feet of his car, and still he was not under full control, yet the driver made no pause, but kept on his way, in the expectation, doubtless, that he could pass. While the case against the company was not so strong as that against the cart owners, yet we cannot say there was no evidence for the jury. It was a fair question for that body, and there was testimony that he was requested to stop by the driver of the cart, when he found he was in trouble and his horse was out of his control. If the jury so found, then the car driver was placed on his guard, and proceeded at his peril. There was .testimony sufficient to sustain the verdict.”

      Winchester Britton, for the railway company, appellant.

      Chas. J. Patterson, for Parkinson and McEnaney, appellants.

      A. H. Dailey, for the respondents.-
   Opinion by

Dykman, J.;

Barnard, P. J., concurred;

Gilbert, J., dissented.

Judgments and orders denying new trials affirmed, with costs.


author: DyKMAN, J.;

text:
    In the Matter of the NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY to Acquire Land of ELIZABETH L. CHRYSTIE and Others.

      Costs — when but one bill of costs can be taxed by the defendants, although they have appeared by different attorneys.

    Appeal from an order made at a Special Term, denying a motion to modify an order theretofore made herein by Judge Cullen.
    This is a special proceeding to acquire title to lands owned by Elizabeth L. Chrystie, and of which Adams & Lang are lessees. Elizabeth L. Chrystie and Thomas W. Chrystie appeared and answered separately by Tillotson & Kent, their attorneys. Adams & Lang appeared and answered separately by W. W. Badger, their attorney.
    Appeals were taken by the parties above named by their separate attorneys from the orders of the Special and General Terms, and the proceedings were finally dismissed in the Court of Appeals, with costs. On July 10, 1882, Judge Cullen made an order on the remittitur from the Court of Appeals, allowing costs in the Supreme Court to each of the defendants.
    The court at General Term said “ The decision of the Court of Appeals in this matter was that the order of the General Term be reversed and proceedings dismissed, with costs. Then the Special Term order of this court, making the order of the Court of Appeals the order of the Supreme Court, gave costs to each of the appellants. This was beyond the order of the Court of Appeals and was done without notice. The Court of Appeals dismissed the proceedings, with costs, and therefore that must be held to intend costs of the proceeding in the Supreme Court. Yet it can only intend one bill of costs, and the order of the Special Term awarding costs to each appellant was unwarranted and should have been modified, and the order refusing such modification should be modified so as to allow one bill of costs in this court and the Court of Appeals to be taxed.

      G. F. Brotan, for the appellants, Elizabeth L. Chrystie and others.

      Wm. W. Badger, for railway company, respondent.
   Opinion ,by

DyKMAN, J.;

Gilbeet, J., concurred;

Barnaed, P. J., not sitting.

Order modified by allowing one bill of costs to be taxed and such costs to include costs in this court.


author: G-ilbeet, J.;

text:
    THEODORE KOLYER, Respondent, v. GEORGE BENNETT, as Executor, etc., of ELIZA A. KOLYER, Deceased, Appellant.

      Legacy —when payable before the expiration of one yea/r from the testator’s death.

    Appeal from a judgment in favor of the plaintiff, entered upon an order sustaining a demurrer to the answer, and granting leave to the plaintiff to issue execution upon the judgment.
    The action' was brought to recover a legacy.
    The court at General Term said: “No doubt this action was prematurely brought, unless the will contains an express direction for the payment of the legacy to Theodore Kolyer within one year after the death of the testator. (2 R. S., 90, sec 43; Code Oiv. Proc., sec. 1819; Brad/ner v. Faulkner, 12 N. Y., 474; Wheeler v. RutJwen, 74 id., 431.) The will bequeaths to each of several grandchildren of the testatrix named therein, .certain pecuniary legaciés, and also bequeaths to her son, Theodore Kolyer, the sum of $2,000, ‘ which sum (the will proceeds to direct) shall be kept to his refusal in the hands of my daughter, Mrs. Sarah Jane Bennett, and paid to him only in the way and manner as he may request.’ The will then directs as follows: ‘All these before named sums of money bequeathed to my grandchildren shall be paid to each and every one by my hereafter named executor at the elapse of six months after my death; but the money bequeathed to my son Theodore shall be paid over to my daughter Sarah Jane Bennett and by her properly invested to stand to his refusal as formerly stated.’
    “ It will be readily perceived that the sole object of this clause was to designate the time for the payment of legacies. The naming of Theodore therein, we think, shows the intention of the testatrix that the time so fixed should apply to and govern the legacy to him as well as the other legacies. The language employed could have been intended to make no other qualification touching the legacy to Theodore, than that it should be paid to her daughter and not to the legatee personally. "Without such qualification, the direction might have been construed as a change of the previous clause whereby the legacy to him was bequeathed, and a repetition of the direction for its payment to her daughter can have no other significance.
    “ Unless the testatrix intended to prescribe a time for the payment of all the legacies, the insertion of Theodore’s name therein was useless and nugatory.
    “We think, however, that the court erred in granting leave to the plaintiff to issue execution for the enforcement of the judgment, and that the judgment should be modified by striking out the clause which grants such leave. Inasmuch as the defendant is acting in a representative capacity, he should have leave to plead anew.”

      Albert G. McDonald, for the appellant.

      M S. Pride for the respondent.
   Opinion by

G-ilbeet, J.;

DykmáN, J., concurred;

BaeNAed, P. J., not sitting.

Judgment modified by striking out leave to issue execution, and as modified affirmed, with costs. Leave "given to appellant to plead anew.


author: Gilbert, J.

text:
    THOMAS N. AVERY, Respondent, v. ALEXANDER FISHER, Appellant.

      Partnership — assignment of firm assets by one partner to pay a firm debt — the fact that the paA'tner was an infant cannot be set up by a third person.

    Appeal' from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought by the plaintiff upon a claim held by the firm of Hunt & Avery against the defendant, which had been assigned to him by Avery for an indebtedness due him from the firm. One of the defenses was that Avery was- an infant and incapable of assigning the claim.
    "With reference to this the court at General Term said: “ The indebtedness of the firm of Hunt & Avery to the plaintiff was satisfactorily established. One partner has by virtue of the partnership relation, authority to transfer partnership property in payment of a partnership debt. An assignment made for that purpose by one partner in the partnership name, is binding upon the partnership. (Everit v. Strong, 7 Hill, 385; Mdbbett v. White, 12 N. Y., M2; Graser v. SteMwagen, 25 id., 315.) The fact that the copartner who made the assignment, in this case was at the time an infant does not invalidate the assignment, for the reason that infancy is a personal privilege, an.d no one but the infant can take advantage thereof (Slocum v. Hooker, 13 Barb., 537); and for the further reason, that infancy does not incapacitate a person from becoming the agent of another. Where a partnership is created between an adult and an infant, the relation of mutual agency, growing out of the partnership relation, exists to the same extent ■as if both the parties were adults. The contract of partnership being legal and binding per se upon the adult and equally so upon the infant until disaffirmed by him, it follows that the partnership must be bound by the act of the infant partner at any time before an actual disaffirmance by him of the partnership agreement.” {Sage v. Sherman, 2 Oomst., 426; Coll. Part., § 12; Story on Agency, § 7.)

      Erastus Coons, for the appellant.

      W. A. Hunt, for the respondent.
   Opinion by

Gilbert, J.

Present — Barnard, P. .T., Gilbert and Dykman, JJ.

Judgment affirmed, with costs.


author: Gilbert, J.;

text:
    EFFIE E. CLARK, Appellant, v. CHARLES W. CLARK, Respondent.

      Ante-wuptial agreement— the mutuality of the stipulations is a sufficient consideration — it need not he acknowledged.

    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    The action was brought by the plaintiff to recover land in Orange county. The defendant denied that the plaintiff was the widow of the former owner, and algo set up an ante-nuptial contract, by which the parties agreed that neither should have any right or interest whatever in or to the property of the other, either real, personal or mixed.
    With reference to this agreement the court at General Term said: “ There can be no question of the validity of the ante-nuptial contract in this case, unless the evidence be sufficient to show that some fraud or deception was practiced upon the plaintiff, whereby she was induced to sign such contract. The mutuality of the stipulations in the contract constitutes a sufficient consideration to each of the parties thereto for the rights relinquished by the other. (Pe Barante v. Gott, 6 Barb., 492; Pierce v. Pierce, 71 N. Y., 154.) No doubt the court will scrutinize such contracts very closely and will prevent their being made the instruments of oppression, deception or fraud; but, when freely and fairly entered into, upon sufficient consideration, they ought, like all other contracts, to be upheld. Marriage alone may not be a sufficient consideration. It was held in Curry v. Curry (10 Hun, 366) that it is not. It is unnecessary to express an opinion upon that point. We therefore, forbear to do so. But we cannot concur in the observation of the learned judge in that case, that ante-nuptial contracts are against public policy. Ou tbe contrary, we think that the current of decisions respecting marriage settlements shows that when such contracts are freely and fairly entered into, they are generally conducive to the welfare of the parties thereto and subserve the best purposes of the marriage relation.
    “ The agreement in this case recites the object for which it was made, namely, ‘to spare any litigation or hard thoughts which .might after such marriage arise in relation to the property now or which may hereafter be owned by either of the parties.’ And it is based upon the relinquishment by each of all the marital rights in the property of the other. Certainly, in any view of the case, such an object is a meritorious one, and the consideration ought, as well upon the general principles governing contracts of all kinds as •upon considerations of public policy in the particular case, to be held sufficient. * * * The agreement, therefore, must be held to -be a perfectly valid and proper one, and the only remaining question is, whether it was necessary that it should be acknowledged. We think it was not. It is not a conveyance within the definition •of that term contained in 1 Revised Statutes, 762, section 38, for the title to the real estate of either of the parties thereto is not .affected by it, either in law or in equity. It is a mere executory agreement, which can be made effectual only by a decree for the specific performance of it, or by way of equitable estoppel.”
    The judgment must therefore be affirmed, with costs.

      Allison d¿ O'Neill, for the plaintiff.

      William Vanamee, for the respondent.
   Opinion by

Gilbert, J.;

Dykman, J., concurred;

Barnard, P. J., not sitting.

Judgment affirmed, with costs.-


text:
    William H. Tice, Respondent, v. Philetus R. Sloat, Appellant.

   Judgment and order denying new trial affirmed, with costs. Opinion by Barnard, P. J.; Dykman, J., not sitting.


text:
    Diana Morris, Appellant, v. Charles Wall and others, Respondents.
   Judgment affirmed, with costs, according to stipulation, for non-service of case. Gilbert, J., not sitting.


text:
    Charles H. Roosevelt, Appellant, v. The Village of New Rochelle, Respondent.

   Judgment and order denying new trial affirmed, with costs. Opinion by Gilbert, J.; Dyeman, J., dissenting.


text:
    Louisa J. Hollis, Individually and as Executrix, etc., Respondent, v. George Hollis and others, Appellants.

   Judgment affirmed for non-submission of papers, as by stipulation, with costs.


text:
    The People of the State of New York, Respondent, v. Angelo Cometti, Appellant.

   Judgment affirmed. Opinion by Dye-maN, J.; Barnard, P. J., not sitting.


text:
    Mary Boyle, Administratrix, etc., Respondent, v. Bessie B. St. John, Executrix, etc., Appellant, Impleaded, etc.

    (No. 2.)
   Judgment and order overruling demurrer of Bessie B. St. John affirmed, with costs. Opinion by Barnard, P. J.


text:
    In the Matter of the Petition of William H. Platt.
   Order discharging Platt from custody affirmed, with costs. Opinion by Dyeman, J.


text:
    Levi W. Flagg, Respondent, v. Samuel Swift and others, Appellants.

   Order of city court of Yonkers affirmed, with costs and disbursements. Opinion by Gilbert, J.


text:
    Benjamin F. Washburn, Appellant, v. Martin L. Ehrgott, Respondent.

   Judgment and order denying new trial reversed, and'- new trial granted, costs to abide event. Opinion by Barnard, P. J.


text:
    John T. Harrold, Respondent, v. The New York Elevated Railroad Company, Appellant.

   Order denying new trial upon newly discovered evidence affirmed, with costs. Opinion by Dyeman, J.


text:
    David H. McAlpin, Respondent, v. Caroline Voytits, Appellant, Impleaded, etc.

   Order refusing to vacate injunction affirmed, with ten dollars costs and disbursements. Opinion by Gilbert, J.


text:
    Theodore L. Terry, Respondent, v. Stephen A. Marshall and others, Appellants.

   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by Barnard, P. J.; Dyeman, J., not sitting.


text:
    David Cromwell, as County Treasurer of the County of Westchester, Appellant, v. George W. Davids and Thaddeus Davids, Respondents.
   Judgment affirmed, with costs. Opinion by Barnard, P. J., Dyeman, J., not sitting.