text:
    LEOPOLD BOLLERMANN and JOHN B. BOLLERMANN, Respondents, v. CHARLES H. BLAKE, Appellant.

      Legitimacy — children born out of wedlock cannot by being legitimated by the law of another’ country acquire the right to hold real estate in this State — Inference of man'riage — Treaty.

    March 18, 1807, Charles Anton Bollermann was born at Mainz, in the Grand Duchy of Hesse, of parents who were residents and subjects thereof. In February, 1843, his parents were married at that place, in accordance with the-provisions of the laws of that place, and there signed and executed a certificate declaring “that they had already engendered together the following children,” namingthem, “which children they hereby duly acknowledged and legitimated.” By the laws of the said Grand Duchy, children so legitimated enjoy the same rights as if they were born in wedlock. There was no proof of any actual former marriage between the parties, nor was any evidence given to show whether the parents had lived together as husband and wife, or were reputed to be married, or that the children had been baptised or had been regarded as legitimate by their parents or by strangers.
    In an action of ejectment involving the title to real estate in this State, of which Charles Anton Bollermann, who was at the time of his death a citizen thereof, died seized.

      Held,, that the question whether or not Bollermann was legitimate or illegitimate was to be determined by the laws of this State. That the term illegitimate, as used in the statute of descents of this State, means a child begotten and born out . of wedlock. That the circumstances proved in this case were not only insufficient to authorize the inference of a marriage of Bollermann’s parents prior to his birth, but disproved the existence of any such prior marriage. That Bollermann was illegitimate and the real estate descended to his relatives on the part of his mother.
    Bollermann died May 18,1866, leaving as his heirs-at-law two brothers and a sister, all non-resident aliens. In 1845 a convention was made between the United States of America and the Grand Duchy of Hesse “for the mutual abolition of the droit d’ambaine and taxes on emigrants.” By article one thereof, every kind of droit d’aubaine was abolished, and article two provided that where a citizen of either country would be entitled to inherit real estate, were he not disqualified by alienage, he should be allowed a term of two years to sell the same and withdraw the proceeds thereof without molestation. In April, 1868, the legislature, by chapter 433 of 1868, released all the estate and interest of the State of New York in the real estate in question to the heirs-at-law of Bollermann. In November, 1868, the alien heirs-at-law conveyed the land to the defendant.

      Held, that under the convention made in 1845, the real estate vested upon Bollermann’s death in his alien heirs-at-law, subject to be divested upon their failure to sell the same within the two years.
    That the passage of the act of 1868 removed this condition and vested the estate absolutely in them.

      Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury. March 18,1807, Charles Anton Bollermann was born at Mainz, in the Grand Duchy of Hesse, of parents who were residents and subjects thereof. In February, 1843, his parents were married at that place, in accordance with the provisions of the laws of that place, and there signed and executed a certificate declaring “ that they had already engendered together the following children,” naming them, “ which children they hereby duly acknowledged and legitimated.” By the laws of the said Grand Duchy, children so legitimated enjoy the same rights as if they were born in wedlock. There was no proof of any actual former marriage between the parties, nor was any evidence given to show whether the parents had lived together as husband and wife, or were reputed to be married, or that the children had been baptised or had been regarded as legitimate by their parents or by strangers. This was an action of ejectment brought by the plaintiffs, naturalized citizens, who claimed to be third cousins of one Charles Anton Bollermann, who died intestate and seized of the premises on May 18, 1866. He left him surviving two brothers and one sister, all of whom were and continued to be subjects of. the Grand Duke of Hesse. One of the brothers, Joseph, died intestate in November, 1866, leaving his brother and sister his heirs-at-law, under conveyance from whom the defendant claimed. The question was whether Charles was illegitimate, in which case the inheritance passed to his mother’s relatives; or legitimate, in which case the plaintiffs claimed to be entitled.

      F. B. Coudert, for the appellant.

      H. A. Nelson, A. N. Wheeler and S. F. Prentiss, for the respondents.
   Gilbert, J.:

The statute of descents of this State provides that “ in case of the death, without descendants, of an intestate who shall have been illegitimate, the inheritance shall descend to his mother; if she be dead, it shall descend to the relatives of the intestate on the part of the mother as if the intestate had been legitimate.” (1 R. S., 753, § 14.) The term “ illegitimate, ” as used in this statute, means a child begotten and born ont of wedlock. (Miller v. Miller, 18 Hun, 507, and authorities cited.) Charles Bollermann, a bom subject of the Grand Duchy of Hesse, but a naturalized citizen of the United States, died seized of the lands in dispute, intestate and without descendants. The plaintiffs claim the lands by descent as collateral heirs of the intestate, but they are not of the blood of the intestate’s mother. The only relatives left by the intestate on the part of his mother were his brothers and a sister, under whom the defendant claims title, and they (the brothers and sister) were aliens. If, therefore, the intestate was illegitimate, the plaintiffs cannot be his heirs, for the reason that they are not his relatives on the part of his mother, and the only relatives of that description being aliens, the lands, but for the treaty hereinafter mentioned, would have escheated to the people. (1 R. S., 718, § 1.)

The court below decided that Charles Bollermann was born in wedlock, and the first question is whether the evidence warranted that decision. The only marriage between the parents of Charles of which there is any evidence occurred thirty-six years after his birth. It is conceded by the defendant that such marriage, according to the law of the domicile of the parents, where they were married, conferred upon Charles the personal status of legitimacy. No doubt that is correct. But it is a rule of the common law, with respect to the descent of real property, that the personal status of legitimacy acquired under foreign laws does not confer the right of inheritance. I cannot find any statute which changes that ’rule. The common law, in some cases, adopts the law of the country where a marriage occurred in determining the validity of the marriage contract; the distribution of personal property also is governed by the law of the domicile of the intestate, but the lex loci alone is applicable to the inheritance of real property. (1 R. S., 753, § 16; 4 Kent Com., 67, §§ 1, 8, note; Birtwhistle v. Vardill, 7 Cl. & Fin., 895-925.) In the case last cited it was held by the House of Lords in England to be a rule or maxim of the common law, with respect to the descent of land from father to son, that the son must be born after actual marriage; that such rule was juris positivi, annexed to the land itself, and could not be affected by a foreign law whereby the personal status as to legitimacy was conferred. This case also furnishes an answer to the criticism of the counsel for the plaintiffs that the rule stated was introduced by the statute of Herton, and the case shows that the reverse is the fact. That statute contains a declaration against a proposed innovation upon the common law whereby a child born out of wedlock might be legitimated by a subsequent marriage. (See 1 Ev. Stat., 168; 1 Reeve Hist. English Law, by Finlason, 299.) The act of 1828, which put an end to the operation of British statutes in this State, therefore, had no effect upon the rule of the common law above referred to. In the recent case of Miller v. Miller (supra) the point now under discussion received an elaborate consideration, and the court decided that the rule of the common law, as above stated, was still in force in this State. If we had any doubt upon the subject, that decision ought, upon the principle stare decisis, to be regarded as controlling until reversed.

The only evidence relied on to sustain the finding that the intestate was born in wedlock, consists of declarations of his parents contained in the official record of their marriage, which occurred thirty-six years after the intestate was born, namely: that they had engendered together seven children, whose names and the dates of whose births were given, and that they thereby acknowledged and legitimated said children. Upon these facts, and upon a supposed presumption in favor of legitimacy, the court below drew the inference that there had been a prior unceremonial marriage between the parents of the intestate, and that such prior marriage occurred before their eldest child was born. The fact that the parents had engendered together seven children, of whonx the intestate was one, especially when accompanied by evidence that the parents were .afterwards married, does not warrant the inference that the children were born in wedlock, and such an inference is repelled by the declaration of the parents, made simultaneously with their marriage, that they acknowledged and legitimated the children. For if the children were born in wedlock, what need or propriety was there of any acknowledgment or legitimation of them? Cohabitation as husband and wife in the absence of repelling circumstances may justify the inference that the parties so living together had been married, and that the offspring of such marriage are legitimate. But the engendering of children alone, even though they were born after the rrsual intervals, without some evidence that the parents had previously lived together, or had been reputed to be married, or that they had held themselves out as married persons, furnishes no basis for a presumption of the marriage of the parents or of the legitimacy of the children. ¥e cannot presume a marriage without proof, and from that alone presume the legitimacy of the children, or vice versa. One presumption will not aid the other. More especially is that the case when the object of the evidence is to prove a descent cast upon collateral heirs. The plaintiffs could maintain this action only by proving the descent of themselves and the person last seized from a common ancestor. As an illegitimate child can neither take nor transmit an inheritance except in the cases provided by the statute of descents before mentioned, it was incumbent on the plaintiffs to prove an actual marriage of the parents of the intestate before he was born. No such proof was given. Nor was any evidence offered of the existence of the usual family relations between the parents of the intestate and their children, or whether the parents were reputed to be married, or whether they ever lived together or in what manner they lived; or that their children had been baptized, or that the latter had ever been regarded by their parents or by strangers as legitimate before the formal marriage which occurred twenty-seven years after the youngest child was born. Without evidence of such or similar circumstances or direct evidence, a marriage cannot be proved; and when a formal marriage occurring after the birth of children is proved, accompanied by the declarations in the record thereof before referred to, and such record contains no allusion to a prior marriage, we think that the existence of such prior marriage is disproved. No doubt the mere fact that persons have been formally married is not sufficient to overcome proof of a prior informal marriage. But it is sufficient to repel an inference of such prior marriage from the birth of children only. The marriage relation rests upon present mutual consent. Cohabitation does not constitute marriage. It is merely evidence of it. But the birth of children may occur without such cohabitation. Hence, taking all the facts proved in this case, it is impossible to determine whether the parents of the intestate cohabitated or not as husband and wife. The only legitimate inference, from the fact of the actual formal marriage of the parents long after the birth of their children, is that no prior marriage of the parents ever occurred. If there had been a prior marriage there was not a shadow of ground for having a second marriage. On the contrary, as before intimated, the acts of formally acknowledging and legitimating the children were useless and inappropriate, except for the purpose of giving them that which they did not before possess, namely, the personal status of legitimacy. ¥e have examined the authorities cited on behalf of the plaintiffs. None of them countenance the idea that a marriage of parents or the legitimacy of children can, in a case of this kind, be established by presumption alone, without proof of such circumstances as tend to show that there had been that mutual interchange of consent which is requisite to constitute a valid marriage.

The brothers and sister of the intestate were his nearest relatives, and his only relatives on the part of his mother. Their alienage impeded their succession to the inheritance. The plaintiffs thus became the next collateral relatives. But the intestate being illegitimate, the plaintiffs, as already shown, were excluded from the inheritance, and the intestate’s brothers and sister, irrespective of the treaty between the United States and the Grand Duchy of Hesse, which will be noticed presently, were also excluded from the inheritance because they were aliens. Such facts, therefore, show a total failure of heirs, and if there were no other facts they would also show that the lands had escheated to the people of the State.

By virtue of the act of April 28, 1868, the legislature authorized the persons who would be heirs-at-law of the intestate, but for the disqualification of alienage, to take and hold the lands and released to them all the estate, right, title and interest of the people therein. The defendant holds under a conveyance made by a surviving brother and the sister. They are persons who are designated in the act, and we are of opinion that the intestate being illegitimate the defendant, by virtue of the grant from the brother and sister, acquired a valid title.

Upon the supposition, however, that the intestate was legitimate, the question arises whether the effect of the treaty referred to was to relieve his brothers and sister from the incapacity to take lands arising from their alienage. The treaty is a part of the supreme law of the land. The first article abolishes every kind of droit daubaine between the two contracting parties, their States, citizens and subjects. The term droit d’aubame includes escheats and the causes thereof. (Lawrence’s Wheat. Int. Law, 166.) It is immaterial to inquire what else it includes, as the State has released any right of escheat which it had. The second article of the treaty provides that “where, on the death of any person holding real property within the territories of one party, such real property would descend on a subject or citizen of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a term of two years to sell the same, which term may be reasonably prolonged according to circumstances.” Article third relates to personal property. The fourth article provides that “in case of the absence of the heirs, the same care shall be taken provisionally of such real and personal property as would be taken in a like case of property belonging to the natives of the country, until the lawful owner,, or the person who has a right to sell the same according to article second, may take measures to recover or dispose of the inheritance.” We are clearly of opinion that these provisions removed from the brothers and sister of the intestate the disqualification of their alienage. A power thus conferred by Jaw upon aliens to sell lands, the only impediment to their complete ownership of which is their alienage, necessarily implies a power to convey the whole estate therein. For they could not exhaust the power except by selling all their estate in' the lands, nor unless they made such a conveyance as would transmute the title thereto. In short a sale is nothing more or less than a transfer of ownership. The fourth article of the treaty treats the right conferred by the second article as a receiving or disposing of the inheritance. No doubt the intent was to confer the power to take and hold lands. Any other construction would frustrate the treaty. An authority to sell lands and appropriate the proceeds of the sale is equivalent to a grant of the ownership thereof. (See 1 R. S., 732, §§ 81-85.) Nor can a man sell lands which he was incapable of taking and holding. The limitation of two years in the second article has ceased to be of any importance, for the reason that before the expiration of that period the legislature of this State passed the act referred to, whereby the grantors under whom the defendant holds were expressly authorized to take, hold, sell and convey the lands in controversy. The intestate’ died May 15, 1866, and the act was passed April 28, 1868. Surely no greater effect should be' given to the limitation of two years than would be given to a condition of the like import. In that view of the subject the disqualification of alienage was removed by the treaty-making power, upon condition that the property should be sold within two years from the death of the intestate. Before the expiration of that period, however, the State which imposed - the disqualification, in the exercise of a co-ordinate power over this subject, abolished that disqualification. The condition that the land should be sold within a limited period was thus changed into a power to take and hold' the land without any condition whatever. Upon the death of the intestate therefore, the' estate vested in his brothers and sister, subject, however, to the contingency of being divested by a non-performance of the condition. But the removal of their disqualification to take and hold lands before' the- time limited for the performance of the condition, dispensed with the performance thereof and at once vested the estate absolutely in them. (Hall v. Hall, Ct. of Appeals, MSS.)

In no point of view, therefore, were the plaintiffs entitled' to recover. On the contrary, we are of opinion that the defendant established a title in himself.

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

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

Judgment reversed and new trial granted, costs to’ above event.


source: Caselaw Access Project

author: Gilbert, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HUGO FUNKE and others v. THE BOARD OF EXCISE OF THE TOWN OF FLUSHING.

      Beard of excise — power of a court to review its decisions on a e&rtiora/ri— 1878, chap. 549, § 4.
    The decision oi a board of excise denying an application, made in pursuance of section four of chapter 549 of 1873, to have a license revoked on tbe ground that- tbe licensee bas violated tbe provisions of tbe act, is not reviewable upon a certioraH, when tbe board bas not exceeded its jurisdiction or proceeded otherwise than in accordance with law.
    Certiorari to the board of excise of the town of Flushing, to review their decision upon an application made for the revocation of a license theretofore granted by them.
    On the 3d of September, 1880, a complaint, signed by the relators and verified by one of them, was filed with the board of excise of the town of Flushing, complaining of Charles J. Freygang, licensed innkeeper of the village of College Point, in said town, and charging that he had repeatedly sold and given away spirituous liquors and wines on Sunday, and especially that on Sunday, August 15, 1880, he had at his inn in College Point sold intoxicating liquor as a beverage to one L. A. Newcomb and various other persons, and praying that the license of said Freygang be revoked and canceled. The board thereupon summoned said Freygang before them to answer the complaint, and after having heard the evidence decided that it was not sufficient to warrant the revocation of the license

      Frederic G. Dow, for the relators.

      James H. Sanbrough, for the Board of Excise.
   Gilbert, J.:

We are of opinion that this certiorari was improperly allowed. There is no allegation that the defendants exceeded their jurisdiction, or that they proceeded otherwise than according to law. Conceding that the statute under which the defendants acted (Laws 1873., chap. 549, § 4) is mandatory, and casts upon them the duty of revoking licenses, yet that duty is dependent entirely upon their becoming satisfied that the licensee had violated some provision of the statute. The court cannot compel the defendants to be satisfied, or control their judgment in deciding upon the credibility of witnesses, or upon the effect of their testimony. If their determination is contrary to law, the court may reverse it. But the court has no power to revoke the license, or to order a re-trial, or to direct the defendants to revoke the license. (People v. Supervisors, 51 N. Y., 442, 446; People ex rel. Beller v. Dwight, 3 Hun, 306.) Even if the court had the power to cause the board to act again upon the complaint, it could not prescribe the decision which they should make. Successive decisions of the same kind might lead to other certioraris, but the result would be only to multiply utterly futile proceedings.

The certiorari should be quashed.

Barnard, P. J., concurred.

Present — Barnard, P. J.; Gilbert and Dykman, JJ.

Proceedings in case of Charles J. Freygang, quashed, with costs.

Proceedings in case of Joseph M. Donnelly, quashed, with costs.


author: Dykman, J.:

text:
    JEREMIAH SHELDON, Respondent, v. WILLIAM E. HAXTON, Appellant.

      Usury — validity of notes determined by the laws of the place where they are made.

    The defendant, having gone to the State of Illinois to receive money for the plaintiff, forwarded to him from time to time as the money was received, promissory notes, made and dated in Illinois and hearing interest at the rate of ten per cent per annum, a ratio of interest which was lawful in that State. One of the notes was made payable in this State, in the others no place of payment was specified.
    In an action brought upon the notes in' this State the defense of usury was set up.

      Held, that the validity of the notes was to be determined by the laws of the State of Illinois, and that being valid there, they were valid and enforceable here.

      Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover the amount due on five promissory notes. The defense was usury. The plaintiff resides in Dutchess county; the defendant had resided there, but before any of the transactions on which the action is based, sold his farm and removed to Illinois, and located at Kewanee, where he still lives.

      Herrick & Losey, for the appellant.

      Henry M. Taylor, for the respondent.
   Dykman, J.:

A promissory note made, dated and payable here, by a resident of the State of New York with no view to its use elsewhere, but without restrictions in that respect and specifying no rate of interest, if discounted in another state at a rate of interest lawful there, but unlawful here, is usurious and void. So the Court of Appeals decided in this State in the year 1864. This decision was criticised with some severity after its enunciation, and some courts even refused it obedience. Then in 1879 the case of Dickinson v. Edwards (77 N. Y., 573) went to the Court of‘Appeals and the judge pronouncing the opinion said it was the brother of Jewell v. Wright (30 N. Y., 259), and he made a vigorous review of that case and of the cases in which it had been assailed, and concluded by reaffirming the doctrine there set up. This conclusion received the concurrence of the court and the controversy over that question is at end.

In 1880, the case of The Wayne Co. Bank v. Low was decided in the Court of Appeals (81 N. Y., 566) on a question akin to that involved in the other two cases mentioned. That was an action on a promissory note dated and made payable in New York, but for the express purpose of being used in Pennsylvania in payment of another note for the same amount then held by the plaintiff. It was discounted at the rate of eight per cent, a rate of interest lawful in that State, and yet the court held that it was not usurious. This was on the ground that the note was a Pennsylvania contract, because it first had life in that State as a promissory note. In the opinion in this case, mention was made of the two. cases of Jewell v. Wright and Dickinson v. Edwards, neither of which was disapproved, and the distinction between the cases was clearly pointed out and shown.

In the case now here we have an action on five promissory notes, all made and dated at Kewanee, in the State of Illinois, with interest at ten per cent, and without place of payment specified, except in one which is payable at Poquag, in this State. The defendant went from this State to the State of Illinois, received there money belonging to the plaintiff, and forwarded these notes in suit therefor, from time to time as the money was received. . So that the obligation, for the discharge of which these notes were given, had its origin there, and the notes themselves were there made by the defendant when he was there, either temporarily or as a resident.

The defense is usury, and at the Circuit the plaintiff had a verdict. As the charge was given it must be assumed here that the jury found that the transaction was not a cover for usury, and that in the State of Illinois the rate of interest reserved was not unlawful.

The question is, what jurisdiction shall give the law of the contract. In other words, are these notes Illinois contracts, for if they are, the lex loci contractus gives the rule of government including the rate of interest. These notes were all made in the State of Illinois and there had inception as valid legal contracts. They are therefore valid wherever taken, and as the action on them is here our courts must enforce the contract. The designation of a place of payment in one of the notes is not an essential part of the contract and cannot be given legal consequence.

In the case of Wayne Co. Savings Bank v. Low, it is said: “ It cannot be contended that a party who goes into another State and there makes an agreement with a citizen of that State for the loan or forbearance of money lawful by the laws of that State, can render his obligation void by making it payable in another State according to whose laws the contract would be usurious.

"We think the whole teaching of that case is in favor of the plaintiff here. Besides that, in the case of Pratt v. Adams (7 Paige, 617), it was held that a promissory note made in New Orleans, payable in New York, with ten per cent interest, was not void for usury. To tbe same effect is Cutler v. Wright (22 N. Y., 472).

Our conclusion is that these promissory notes were Illinois contracts, valid there and valid everywhere, and that the defense of usury cannot pi’evail against them here.

The judgment must be affirmed, with costs.

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

Judgment and order denying new trial affirmed, with costs.


author: DyKMAN, J.:

text:
    In the Matter of the Application of the PROSPECT PARK AND CONEY ISLAND RAILROAD COMPANY to acquire lands of MICHAEL SHEEHY. SAME to acquire lands of JOHN C. VAN SICKLER and JACOBUS RYDER.

      Gommissionei's to appraise damages caused to tlie owner of land, l>y reason of its being taken by a railroad — when a second report will be held conclusive.
    Where the report of commissioners appointed to appraise the damages resulting to the owners of land, by reason of its being taken for railroad purposes, has been set aside by the General Term, on the ground that they erred in only awarding nominal damages to the owners, and a new set of commissioners has been appointed who have made their report, by which nominal damages only are awarded to the owners, the court will not in the absence of fraud, corruption, misconduct or misapprehension, set aside the last report and appoint a new set of commissioners.
    Appeal from the report of commissioners appointed to appraise the damages to be awarded to the owners of land to be taken for railroad purposes, and from an order made at Special Term confirming the same. ■ .

      Benjamm G. Hitchings, for the appellants, Sheehy, Ryder and Van Sickler.

      John H. Bergen, for the railroad company, respondent.
   DyKMAN, J.:

So far as we can do so, we have settled tbe law of tbis and other similar cases in tbis court. In May, 1878, tbis court beld that tbe rule of damages in tbe matter was tbe same as that laid down in tbe matter of the Utica Railroad Company (56 Barb., 457), wbicb was tbe difference between wbat tbe place as a whole would bring in tbe market without the railroad, and wbat tbe residue will bring after the railroad is constructed, and that everything wbicb will depreciate tbe value of that residue is to be taken into account. Again, in September, 1878, on a motion for a reargument, we held that the land owners are entitled to the actual value of land taken, and the depreciation of tbe residue of tbe lot from which it is taken, and also to any depreciation caused by tbe use to wbicb tbe land taken is to be appropriated. We set aside tbe first report of commissioners to' ascertain the compensation to be paid to tbe land owners, because we concluded they bad adopted an improper measure of. dajnages. We at tbe same time appointed new commissioners who have likewise awarded nominal damages, and now we have their report before us on appeal also. We think tbis report must give us pause. It is not sufficient for its nullification that we are dissatisfied with the'finding, nor that we would not reach tbe same conclusion. Tbe facts are not for us nor for our determination. Tbe law constitutes tbe commissioners tbe tribunal for their decision. If there has been carelessness, irregularity or misconduct on tbe part of tbe commissioners, or if they have adopted improper rules of law, their report may be set aside.

Tbe only complaint here is that tbe measure of damages adopted by tbe commissioners was improper. Tbis position cannot be assumed and it has no evidence for its support. On the contrary, it must be assumed that tbe commissioners were made aware of tbe decision of this court on that question, and that such decision was a law unto them, and that under such rule they have found, after examination and investigation, as a fact, that there results no damage to the land owners. Over tbis question we have no control. We cannot make a determination of it ourselves. We can only appoint commissioners for that purpose. Tbe legislative provision that the second report of commissioners shall be final and conclusive on all the parties interested, though very emphatic, does not deprive tbe parties of the right of review nor prohibit the exercise of the supreme superintendence possessed by this court over all inferior tribunals and bodies. Such power may be exerted in the correction of errors or misconduct which would set aside the report of a referee or the verdict of a jury. (Matter of New York Central, etc., R. R., 64 N. Y., 60.) Yet this expression of the legislative will, is entitled to respect and certainly means something, and where two sets of commissioners have reached the same result, in the absence of fraud, corruption, misconduct or misapprehension, there is not sufficient reason for setting aside the last report and 'appointing a new set of commissioners. There must be an end in this kind of litigation as well as in actions of law. This court has endeavored to secure; compensation to the land owners on this avenue under the belief that justice so required. But, as already stated, we cannot determine the facts relating to the amount and quantity of such compensation. We organized the body designated by law for the decision of that question, and we have an honest report. If it is a mistaken one it must stand and be final, as would the verdict of a jury on a disputed question of fact.

The order appealed from must be affirmed, but without costs.

The same result follows in the case of John C. Van Sickler and Jacobus Ryder.

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

Orders and reports of commissioners affirmed, without costo»


author: DyxmaN, J.:

text:
    HORACE INGERSOLL, Respondent, v. JOHN W. MANGAM and others. JOHN J. COGER, Purchaser, Appellant.

      Proceeding to compel a pwrchaser under a mortgage foreclosure to complete his purchase —whether the appointment of a guan'dian ad litem for an infant defendant dispenses with the necessity of wring him with the summons.

    In this action, brought to foreclose a mortgage, an infant defendant was not served with a summons, but a guardian ad litem, whom his mother procured to be appointed for him, appeared in the action and put in an answer. The purchaser at the sale refused to complete his purchase; because the infant defendant had not been served.

      Held, that there was too much doubt about the validity of the proceeding to authorize the court to compel the purchaser to pay the money and accept the deed.
    Appeal from an order made at Special Term granting the plain7 tiff’s motion to cpmpel the purchaser at the sale under the judgment in this action to complete his purchase.
    The action was brought to foreclose a mortgage, and one William Mangam, sued as William Moore, an infant under the age of fourteen, and a non-resident of this State, was made a party defendant, as an owner of the equity of redemption in the mortgaged premises.
    Upon an investigation of the proceedings under the foreclosure, it appeared that the infant defendant, William Mangam (sued as William Moore), was not served with the summons in the action. It further appeared from the record and moving papers that the said infant resides with his mother at Vineland, N. J., and has no general or testamentary guardian.
    It further appeared that the mother of the said infant petitioned this court for the appointment of a guardian ad litem for him, and on her application such guardian was appointed, who appeared and answered for the infant.
    The purchaser thereupon declined t<? take the sheriff’s deed, on the ground that the summons was not served on said infant defendant, neither was an order for substituted service procured, and that this court did not obtain jurisdiction of the person of said infant, and his equity of redemption was not barred.

      S. M. & D. E. Meeker, for John J. Coger, purchaser and appellant.
    In all actions, save partition, the provisions of the Code of Civil Procedure apply, and an infant must be served with process in order that the court may obtain jurisdiction of his person. {Glover v. Hawes, note to Parks v. Pa/rks, 19 Abb., 161; Grant v. Van, Sehoonhoven, 9 Paige, 255; Onta/rio Bank v. Strong, 2 id., 301; Goolc v. Parren, 34 Barb., 95.)

      John B. Perry, for the respondent.
    The petition of the mother with whom the infant lived, the order made on her petition for the appointment of a guardian ad litem, and his .consent, affidavit, appearance and answer, gave the court jurisdiction of the person of the infant. “An infant defendant must appear by guardian.” (Code, § 471; Barnard v. Heydrieks, -49 Barb., 62 [1866]; JDisbrow v. Folger,- 5 Abb. Pr., 53; Rogers v. McLean, 31 How. Pr., 279 [1866]; Bosworth v. Va/ndewalker [1873], 53 N. Y., 597; Grant v. Van Sehoonhoven, 9 Paige, 255.)
   DyxmaN, J.:

This action was for the foreclosure' of a mortgage and one of the defendants was an infant. He was not served with the summons) but his mother procured the appointment of a guardian ad litem for him, who appeared in the action and put in an answer. Judgment was taken in the action, under which there was a sale to John J. Coger, who declined to take the deed and complete the sale, because the infant defendant had not been served. An order was made at Special Term requiring him to complete his purchase, from which he has appealed.

Ye think there is quite too much doubt about the question to require the purchaser to pay the money and accept the deed.

The question was up in the Court of Appeals, in the case of Bosworth v. Vandewalker (53 N. Y., 597), but the court decided the case on the presumption of jurisdiction in the absence of proof that there was no service; but in the opinion care is taken to say that “ we avoid passing upon the question, whether if it appeared that there was no service of process upon them, the proceedings for the appointment of a guardian ad litem and the putting. in of a general answer by her would give jurisdiction.”

We do not find that tbe question has been taken from this state of uncertainty, and the teaching of the case cited seems to be that but for the intendment of law that the Superior Courts have jurisdiction both of the subject-matter and the parties, until the contrary is shown, the validity of the judgment in that ease would not have been sustained.

It is quite true that in equity infants are viewed as wards of the court upon the service upon them of process to bring them in, but it has never been held that jurisdiction is obtained of the persons of an infant defendant in a foreclosure action until the service of process, even for the purpose of appointing a guardian ad litem,.

To require this purchaser to complete his purchase would be equivalent to compelling him to buy a law suit, and we do not think it should be so ordered.

The order appealed from should be reversed, with costs and disbursements, and motion denied, without costs.

Barnard, P. J., concurs on the ground that there is too much uncertainty, to require the purchaser to pay money and take the title. GilbeRt, J., not sitting.

Orders reversed, with costs and disbursements, and motion denied, without costs.


text:
    WILLIAM O. JACKSON, Appellant, v. ALBERT DAGGETT, as late Sheriff of Kings county, and WALTER THORN, his Deputy, Respondents.

      Failure of sheriff to return execution — action for, is assignable.

    A cause of action against a sheriff for his failure to return an execution against property within the time required by law, and for making a false return, is assignable and the assignee may bring an action thereon in his own name. CZabrishie v. Smith, 13 N. Y., 323, criticized and not followed.)
    Appeal from a judgment in favor of the defendants, entered upon an order dismissing the complaint, made at the Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Edward P. Wilder, for the appellant.
    It is not true that actions for damages for torts are not assignable. All snch actions which grow ont of wrongs affecting property survive and are assignable. For example: A right of action for fraud in obtaining a deed. (McMahon v. Allen, 35 N. Y., 403.) For misapplying funds. (Grocers’ National Bank v. Clark, 48 Barb., 26.) An action for the conversion of a chattel and for an injury to real or personal property. ( Waldron v. Willard, 17 N. Y., 466; Richtmeyer v. Remsen, 38 id., 206; Brake v. Smith, 8 N. Y. Weekly Dig., 486.) A right of action for an injury occasioned by negligence, such as firing fences (25 How., 285); for killing persons (Quinn v. Moore, 15 N. Y., 432); for killing cattle (22 Barb., 110); for other acts of negligence (30 N. Y., 594; 37 id., 648). Finally, an action against a sheriff for damages for neglecting to arrest has been held to be assignable. (Bininny v. Fay, 38 Barb., lb ) The measure of damages is the face of the execution, with interest. (Bank of Rome v. Curtis, 1 Hill, 275; Pardee v. Robertson, 6 id., 550; Ledymd v. Jones, 7 N. Y., 550; Bacon v. Cropsey, id., 200; Swezey v. Lott, 21 id., 484; Brookfield v. Remsen, 1 Abb. Ct. App., 210.

      Catlin, Austin & Backus, for the respondents.
   Dykman, J.:

This action is against the defendants as sheriff and deputy sheriff of Kings county, for the recovery of damages for failure to return an execution against property within the time required by law, and for a false return. The plaintiff is the assignee of the cause of action, and at the close of the testimony on this part on the trial, the complaint was dismissed on the ground that the cause of action was not assignable, and the plaintiff could not, therefore, maintain this action. An exception was taken to this ruling, and the first question for examination is thus presented. .

The ruling seems to have been made on the authority of the case of Zabriskie v. Smith (13 N. Y., 322.) That was an action for the recovery of damages for falsely and fraudulently representing a person as solvent, and in it the Court of Appeals held that the right of action was not assignable. So far as the determination of this question, is concerned, this case is not in harmony with the current of judicial authority. The question was examined on common law principles' and authorities, without any reference to our statutes on the subject which are controlling. In the opinion it is stated the power to assign and to transmit to personal representatives are convertible terms, and under our statute for wrongs done to the property, rights or interests of another for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death by his executors or administrators against such wrongdoer, and after his death against his executors or administrators in the same manner and with the like effect in all respects as an action founded on contract. (2 R. S., 447, § 1.) The next section takes out of the operation of this statute, actions for slander, libel, assault and battery, false imprisonment and injuries to the persbn. Now, it is entirely plain that the wrong complained of in Zabriskie v. Smith was an injury to the rights and pecuniary interests of the plaintiff’s assignor. This case was decided in 1855, and,'in Í859 there went to the Court of Appeals, for determination, the case of Haight v. Hayt (19 N. Y., 464), an action against a vendor of land for fraudulent representations as to incumbrances, which had been continued against the executor of the vendor, and the court there held that the right of action survived against the personal representatives, and the judge who prepared the opinion in Zabriskie v. Smith, wrote an opinion in this case in which he said the cause of action was a wrong done to the rights and interests of the plaintiff. This last decision was founded on our statute while the other was not, and the two cases are entirely inharmonious. Besides this, the case of Zabriskie v. Smith has been criticised in Johnston v. Bennett (5 Abb. [N. S.], 331), Fried v. New York Central R. R. (25 How., 285), Wade v. Kalbfleisch (58 N. Y., 280).

' This examination shows that the case of Zabriskie v. Smith is not authority sufficient to support this nonsuit, and that the principles decided in the case of Haight v. Hayt will sustain the action by the plaintiff. It has been held that an action for neglecting to arrest a debtor on an execution against his person, survives to the personal representatives of the judgment creditor and is therefore assignable (Dininny v. Fay, 38 Barb., 18); that an executor can maintain an action for a false return to final process (Williams Exrs. v. Cary, 4 Mod., 403; S. C., 12 id., 71); and that an action against a sheriff for default of his deputy in not returning an execution, survived to the administrator of the judgment creditor. (Paine v. Ulmer, 7 Mass., 317.)

Our conclusion is that this action is for a wrong done to the property, rights and interests of the assignor, and that the cause of action would survive alike in favor of the personal representatives of the injured party and against the personal representatives of the wrongdoer under our statute, and is, therefore, the subject of assignment.

It is claimed on behalf of the defendants that there are other facts in the case to support and justify the nonsuit. This argument is founded on the testimony introduced to show that the defendant in the execution had no property which could have been seized under the execution, and that the plaintiff in the execution had sustained no damage. It will be seen, however, that all these questions were for the jury, and could not. be determined by the court.

The judgment and order denying a new trial must be reversed, and a new-trial granted, with costs to abide the event.

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

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


author: DyKmant, J.:

text:
    In the Matter of the Guardianship of MARY LOUISE DE MARCELLIN, an Infant under the age of Fourteen Years.

      Guardian — when the wishes of the father, as to the person to he appointed, control.

    One Marcellin died, leaving Mm surviving a daugMer, about nine years old, a second wife and a paternal uncle and aunt. A day or two before Ms death, be banded to Ms wife a paper, upon wbicb be bad written ‘ ‘ Keep tbe children. Be a good Catholic, live a good Catholic and die a good Catholic, and pray, pray for me when I am dead.” Neither tbe father, tbe daughter, nor tbe stepmother bad any property. Tbe aunt bad some property and desired to be appointed guardian of tbe child.

      Held, that tbe surrogate rightly appointed tbe stepmother its guardian.

      Appeal from an order made by tbe surrogate of Kings county, denying a petition for tbe revocation of an order appointing a guardian and modifying tbe said order as to tbe security required of tbe guardian.
    On the 5th day of May, 1880, tbe surrogate of Kings county made an order appointing Annie T. de Marcellin guardian of tbe infant Mary Louise, nine years of age, upon condition, however, “ that she should give a bond with two sureties, which bond shall be in the penal sum of $1,000, and which, in addition to the usual conditions, shall be further conditioned that the said guardian shall and will well and suitably support, maintain and educate said infant.” This order was made after and upon petition by said Annie T. de Marcellin for such guardianship, and also after petition by Louisa de Marcellin- for the same, both petitions being heard and proofs thereupon being taken at the same time.
    Annie T. de Marcellin, the guardian so appointed, was the widow of Thomas A. de Marcellin, father of the infant, but she was not of kin to the infant. She did not comply with the order appointing her, in that she gave no bond of any kind.
    That fact existing for three months and more, the appellant here, Louisa de Marcellin, the aunt (sister of the father) of the infant, on the 10th day of August, 1880, presented to the same surrogate another petition reciting the facts and asking again for her appointment, and upon or during the hearing Annie T. de Marcellin presented another petition asking to be released from that part of the said order appointing her guardian which required her to give security to “support, maintain and educate said infant.”
    This petition was granted and the appellant’s petition was again denied, and on the 12th day of November, 1880, the order appealed from was made.

      A. J. Perry, for the appellant, for Louisa de Marcellin, aunt of infant.

      William D. Veeder, for the respondent, Annie T. de Marcellin, stepmother of infant.
   DyKmant, J.:

Mary Louisa de Marcellin is an orphan child, abSut nine years of age. Her only relatives, so far as we know, are a paternal uncle and aunt. At the time of the death of her father in January, 1880, he was living with his second wife, and this child resided with him. A day or two before his death and when he was beyond recovery, he wrote these words on a piece of paper and handed it to his wife: Keep the children. Be a good Catholic, live a good Catholic and die a good Catholic, and pray, pray for me when I am dead.”

Thereupon, after the death of her husband, the stepmother applied to the surrogate of Kings county to be appointed the general guardian of the child. The father left no property, and neither the stepmother nor the child have any. The application was opposed by the aunt of the child who has some property, and who desired herself to be appointed the guardian of the child. The surrogate appointed the stepmother, and from that order this appeal is taken.

It is plain, therefore, that this controversy has reference alone to the custody of this child. She has no property, and there is no allegation against the fitness of either of these applicants for such custody, except that the stepmother has no property.

It is quite true that in the ordinary view it seems more desirable that the child should reside with the aunt and enjoy the comforts of a home in her family, but this consideration cannot overcome the dying, wishes of her father. His declared will in relation to the custody and religious education of his child should be followed under the circumstances of this particular case. (Underhill v. Dennis, 9 Paige, 208.) He had the power to dispose of the custody of this child if he had exercised it in a legal manner, and we think his wishes, expressed as they were, should now control and be carried out, and that the surrogate exercised, his discretion well.

The order must be affirmed, with costs and disbursements.

BaRNAed, P. J., concurred; Gilbert, J., if guardian a fit person.

Order affirmed, with costs and disbursement.


author: DyemaN, J.:

text:
    JAMES M. G. SMITH, as General Guardian, etc., of CARRIE B. SCOTT, an Infant, Appellant, v. JONATHAN C. ROBERTSON and ABIGAIL J. ROBERTSON, Respondents.

      Rights of an only child, born after the making of a will by the father — it may recover land soldby the executor under a power in the will — SR. 8. [6 thedJ], 64, §47 [49].
    On September 5, 1862, one Scott, being married, but having no children, made a will, by which he authorized his executor to sell all his property, both real and personal, and pay the proceeds thereof to his widow. On April 17, 1864, the plaintiff, the testator’s only child, was born, and about a month thereafter Scott died, leaving his will unaltered, his child not being in any way mentioned therein, and not being provided for by any settlement. On December 1, 1865, the executor named in the will sold certain real estate, of which Scott died seized, to the defendant for the sum of $3,200, $2,200 thereof being paid in cash, and the residue by discharging a mortgage upon the premises.
    In this action, brought by the plaintiff to recover the said land, subject to the dower of her mother:

      Reid, that the plaintiff not being provided for by or mentioned in the will, succeeded, under section 49 of 2 Revised Statutes, 65, to the same portion of her father’s real and personal estate as would have descended or been distributed to.her if her father had died intestate.
    That she was not confined to suing the devisee or legatee to recover the proceeds arising upon the sale made by the executor, but could bring an action against the grantee and recover the land itself.
    Appeal from a judgment entered upon an order dismissing the complaint, made upon the trial of this action by the court without a jury.
    The action was brought to recover the possession of two lots in the village of Middletown, Orange county.
    The lots in question were owned by John J. Scott, who died seized of said premises on the 12tlrday of May, 1864. He left him surviving his widow, Sarah A. Scott, and Oarrie B. Scott, his only child and heir-at-law.
    On the 5th day of September, 1862, after his marriage, but nearly two years before the child was born, John J. Scott made a will authorizing his executor to sell all his property, real and personal, and pay the whole of the proceeds to his widow. Nineteen months after this will was made (April IV, 1864) Carrie B. Scott, testator’s only child, was born. About a month after the birth of his child (May 12, 1864) John J. Scott died. His child “was unprovided for by any settlement, and neither provided for nor in any way mentioned in such will.”
    The defendants claimed to own the property in question by virtue of a conveyance from Israel O. Beattie, the executor of the last will and testament of John J. Scott, executed under the power of sale contained in the said will.
    They gave as the purchase-price $3,200 ($1,000 of which amount was paid in discharge of a mortgage on the premises which they assumed). They claimed, also, that they had made valuable improvements on the property.

      Winfield, Leeds (& Morse, for the appellant.
    When John J. Scott died the statute operated so as to. vest the title of his real estate in his child, and at the moment of his demise she became seized absolutely of the property in question. (2 ,R. S., 65, § 49; 3 R. S. [6th ed.], 64; Sanford v. Scmford, 61 Barb., 293; Mitohell v. Bain, 5 Paige, 588; Mason v. Jones, 2 Barb., 229; Rockwell v. Geery, 4 Hun, 606; Plummer v. Mwrray, 51 Barb., 201.) Plaintiff, as general guardian, being entitled as such to the possession of the ward’s real estate can maintain ejectment in his own name. (Tyler on Ejectment, 173, 174, 538; Wade v. Cole, Ld. Raymond, 130; Holmes v. Seely, 17 Wend., 75; Combs v. Jackson, 2 id., 153; 2 Kent’s Com., 228.)

      Stoddard & Donovan, for the respondents.
    The birth of the child did not operate as a revocation of the will. The uniform construction placed upon the statute in this State has been that the will remains and that distribution must be made under it. The remedy of the after-born child is against the devisees or legatees for the parts devised and bequeathed. (2 R. S., 65, § 49; id., §§ 42, 43, 45; Mitchell v. Bain, 5 Paige, 588; Scmford v. Scmford, 4 Hun, 756; Brush v. Wilkins, 4 Johns. Oh., 518; Goiheal v. Ootheal, 40 N. Y., 408; Sanford v. Sanford, 61 Barb., 297; Bromly v. Walker, 51 id., 202; Mason v. Jones, 2 id., 256; Rullmayne v. Rulhnayne, 3 Hun, 128.) If the will is not entirely revoked the absolute direction and power to sell and convert into money the real estate of the testator, given to the executor in said will, operated as an equitable conversion of the estate into money, and the conversion takes place at the death of the testator. (Horton v. McCoy, 47 N. Y., 26; Meakings v. Cromwell, 1 Seld., 136; White v. Howard, 52 Barb., 296; Bunce y. Vamdergriff, 8 Paige, 37; Stilboell, Exr., etc., v. Mott, 2 Sand. Ch., 58; Bogert v. Hertell, 4 Hill, 492.)
   DyemaN, J.:

¥e are called upon to find the true meaning of the following statute: “Whenever a testator shall have a child born after the making of a last will, either in the lifetime or after the death of such testator, and shall die, leaving such child, so after born, unprovided for by any settlement, and neither provided for nor 'in any way mentioned in such will, every such child shall succeed to the same portion of such parent’s real and personal estate as would have descended or been distributed to such child if such parent had died intestate, and shall be entitled to recover the same portion from the devisees and legatees in proportion to and out of the parts devised and bequeathed to them by such will.” (3 R. S. [6th ed.], 64, § 47, [49].)

By the common law, marriage and birth of a child subsequent to the making of a last will worked its revocation, but the mere birth of a post testamentary child never was given such operation.

This statute was doubtless designed to soften the operation of this severe rule of the common law on after-born children, which must often have resulted in their disherison. It is true there is in it no direct provision for revocation in the event of the birth of a post testamentary child, and yet it will be impossible to give full signification to the language employed without permitting a nullification of the effect of such a will in a case like the present. This child cannot succeed to the same portion of her parent’s real and personal estate as would have descended or been distributed to her in the event of the death of her parent intestate, if the will is permitted to remain in force, for the very obvious reason that the property must then take the direction given it by the will.

The father of the infant child in whose interest this action is prosecuted, made his last will and testament on the 5th day of September, 1862. He was then married but childless. This child was born to him April 17, 1864, about nineteen months after he made his will, and on the 12th day of May, 1864, he died. The will gives all tbe testator’s property to his wife, after the payment of debts, and gives the executor power to sell his real property. The testator, at the time of his death, was seized in fee of the premises in question, which were conveyed to the defendant in this action, who has been in possession thereof since that time, and now this action of ejectment is brought, in behalf of the infant child, for the recovery of the premises which would have descended to her, subject to the dower right of her mother, had her father died intestate. It was admitted and found that this child is unprovided for by any settlement and neither provided for nor in any way mentioned in her father’s will.

She stands, therefore, under the protection of this statute, which intended to provide for all persons similarly situated. TJnder it she must succeed to .the same portion of her father’s real estate as would have descended to her if he had died intestate. This is strong, emphatic language and must receive satisfaction, which can only be given to it in full by allowing her to recover the land. The last clause of this statute provides that such child shall be entitled to recover the same portion thereby secured to it, from the devisees and legatees, in proportion to and out of the parts devised and bequeathed to them by such will, and the argument drawn from this is that the succession provided for by this statute must occur under the will.

So far as this case is concerned, the answer to this argument seems plain. The recovery here provided for is against the legatees and devisees, who have received and taken possession of the property under the provisions of the will, and who would have shared the same with the after-born child in case of intestacy. Had there been here other children or heirs to whom the property was devised by the will, and who would have taken a share thereof by descent in case the father had died intestate, then this would present a case where the will would open to let in the after-born child, and to which this clause of the statute would apply. Now, however, there exists no person with whom she can be let in, and as there are no persons who, would have shared the property with her in case her father had left no will, so there is no case presented for opening the will to let her in, and none for an action under this provision. In no case do after-born children share under the will. They share under and by virtue of tbis statute, against and notwithstanding the will, and if no person exists who can share with them, they must take all as if no will was made. Such is the state of this infant child. She takes all, subject to the dower right of her mother, because there are no children or heirs who would have shared with her if her father had died intestate.

This land in question would have descended to this infant child as sole owner, had her father died intestate, whereas, now it has been conveyed to a stranger under the will, and is not in possession of a devisee against whom an action is given by this statute. Is the child, therefore, barred her action for the recovery of the premises because it did not go to devisees under the will, and has she her only remedy in following the proceeds of the sale ? We cannot so conclude. Such a construction of the statute would not permit her to succeed to the same portion of her parents real estate as would have descended to her if he had died intestate.

■We can find no way of giving full effect to the statute in question, but by holding that this child took title to the house and lot in question, by descent as in case of intestacy.

It seems somewhat remarkable that no case has arisen in this State directly involving this question, but so far as we can gather from cases where this statute has received attention, the judicial mind has inclined to the construction we adopt.

In the case of Mitchell v. Blain (5 Paige, 588), at the time of making his will, and at the time of his death, the testator had a wife and one child and the descendants of two deceased children, and after the making of the will, and before his death, he had another child bom not mentioned in the will nor provided for in any other way, and the chancellor said: “ The infant complainant in this case is, therefore, entitled to one-fourth of the real estate, subject to the mother’s right of dower therein, and to one-fourth of two-thirds of the personal estate, which is the share she would have been entitled to under the statute of distributions if her father had died intestate.”

In Sanford v. Sanford (61 Barb., 295) the plaintiff was a post testamentary child and the defendants were the widow and two children of the testator living at the time of the making of the will. Two actions were commenced by the plaintiff against the other heirs and the executors, one to enforce distribution of the personal property and the other to compel partition of the real property, and the two were consolidated into one. Here the devisees and legatees were children and heirs, and the court said: The plaintiff, therefore, succeeded to the same portion of his father’s real and personal estate as would have descended or been distributed to him if his father had died intestate, and he is entitled to recover the same portion from the devisees and legatees named in his father’s will, in proportion to and out of the parts devised and bequeathed to them by such will. * * * The plaintiff’s rights are the same as they would have been if his father had never made a will and had died intestate.”

The statute came again under consideration in Rockwell v. Geery (4 Hun, 611), and the judge who prepared the opinion said therein, “ Florence Geery comes within the provisions of this section, and as to her, Isaac Geery, her father, died intestate.”

If our view of this statute is correct there was no conversion of the land into money, because the sale was wrongful as against the plaintiff. The title to the land was already vested in her at the time of the sale.

The payment of the mortgage by the grantee of the executor cannot bar a recovery of the plaintiff in this action.

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

BarNArd, P. J., concurred; Gilbert, «H, not sitting.

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


text:
    THE PROSPECT PARK AND CONEY ISLAND RAILROAD COMPANY, Appellant, v. S. STRYKER WILLIAMSON and others, Respondents.

      Statutory proceedings of commissioners of highways — when they cannot be restrained by a court of equity.

    A court of equity cannot entertain an action to restrain commissioners of highways from continuing proceedings, instituted under the provisions of the statutes, to open a highway, on account of any irregularities occurring in their proceedings, unless it be shown that the assistance of the court is necessary to protect the complainant against irreparable damage and injury.
    Appeal from a judgment in favor of tbe defendants, entered upon the trial of this action by the court without a jury.

      John H. Bergen, for the appellant.

      Morris & Pearsall, for the respondents.
   Dykman, J.:

The plaintiff owns and operates a railroad from the city of Brooklyn to Coney Island, in the town of Gravesend, and, under the sovereign power of the State, has acquired land at the ocean shore in that town for the purposes of its road. In the years 1879 and 1880 proceedings were instituted for the opening of a highway, called Surf avenue, through this land, and the plaintiff thereupon brought this action, on the equity side of the court, to restrain the commissioners of highways from proceeding further in opening such highway.

The complaint charges irregularities in the proceedings for the opening of this avenue, and alleges that the same will cut the land of the company in two about 500 feet from the shore of the ocean, and will utterly destroy the same for the purposes for which it was acquired, and will cause irreparable injury to the plaintiff.

If there is any doubt about the insufficiency of this last allegation to bring this case within equity jurisdiction, it is answered by the finding of the trial judge, on amply sufficient testimony, “ that sueb portion of tbe property described in tbe complaint herein, over wbicb tbe said highway or avenue runs through and crosses, is not now used, and has never been used by the plaintiff for railroad or depot purposes, and is not necessary to the plaintiff for railroad or depot purposes; that the laying out of said highway or avenue, as proposed by said commissioners, will not destroy or interfere with the property occupied by the plaintiff for railroad or depot purposes, and will not prevent or impair the access of people transported on the plaintiff’s railroad, and will not cause any damage to the business of the plaintiff’s road or drive the patronage of the public away from the said road, nor affect the franchises of the plaintiff.” These findings strip from the plaintiff the right to invoke the aid of a court of equity for protection against irreparable damage and injury.

The commissioners of highways of the town of Gravesend are clothed with certain powers, and have imposed upon them certain duties, and were proceeding under statutory provisions to lay out this avenue when their movements were arrested by the commencement against them of this action to put an end to their efforts in that direction.

Our conclusion is that a court of equity cannot entertain the action. Whether the acts of subordinate bodies and tribunals, such as boards of supervisors, commissioners of highways of towns, and town assessors, and the like, are tainted with invalidity, or are irregular or void, depend upon principles purely and entirely legal, and must be determined by the letter and spirit of the law under which they proceed. No equitable principles can be involved, and courts of equity have never exercised jurisdiction in such cases, either in this country or in England. (Hyatt v. Bates, 35 Barb., 308; Mooers v. Smedley, 6 Johns. Ch., 28.) Chancellor Kent said, that “ in the whole history of the English Court of Chancery there is no instance of the assertion of such a jurisdiction.” Neither is there any necessity for such an assertion in this case. In the hands of all persons aggrieved by the action of the commissioners in this proceeding are placed ample means for their review in the courts of common law by certiorari or appeal, or if they have transcended their powers and acted beyond their jurisdiction they are left as trespassers amenable to the same tribunals.

In the case of the Albany Northern Railroad Company v. Brownell (24 N. Y., 345) the Court of Appeals held that an injunction suit would lie to restrain commissioners of highways from laying out a highway, over grounds acquired by a railroad corporation for the site of an engine-house necessary for the use at a station, and from taking possession of such site. That case, however, went on its own peculiar features, and the general doctrine in the opinion is in harmony with the views above expressed.

As the judgment must be affirmed we do not express any opinion on the other questions presented.

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

Judgment affirmed, with costs.


text:
    SUSAN E. MERRITT, Appellant, v. MARY M. ABENDROTH, Respondent.

      Devise — what woi'ds in, a/re sufficient to pass a fee in real estate.

      L testator, by a will made and proved in 1823, gave and bequeathed “ unto my daughter, Penelope Slater, at the decease of widow Penelope Merritt, all my right and title of the land and buildings thereon now in possession of the said widow Penelope Merritt, it being the equal undivided one-half of said property, together with the appurtenances thereunto belonging.”

      Hdd, that the devisee took a fee and not simply a life estate in the premises.
    Appeal from a. judgment in favor of the defendant, entered upon a nonsuit directed at the Circuit.
    The action was one of ejectment.

      Keogh & Boothby, for the appellant.

      Devid B. Ogden, for the respondent.
   Dykman, J.:

To carry a fee or estate of inheritance in lands at common law, the word heirs was necessary in a grant or donation. The rule came from feudalism, and like many other relics of that system, the reason for its introduction has long since ceased to exist. That reason was “ as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee’s estate in the land extended only to his own person and subsisted no longer than his life, unless the donor by an express provision in the grant, gave it a longer continuance and extended it also to his heirs.” (2 Black. Com., 108.) The rule soon came to be softened by the introduction of exceptions to it, and one of the earliest of these denied its application to devises by last will and testament, and permitted a fee to pass by those instruments where the intention of the testator to give such estate could be clearly ascertained from the language employed in the devise. By this exception to the old rule it became settled that the language of the will must be effectuated, and a fee must pass whenever such intent was plainly manifested, even in the absence of the word heirs. (4 Kent’s Com., 7.) Where, however, there were no words of inheritance, it was necessary to have language supplied from which an intent to devise a fee might fairly be inferred.

The plaintiff here brings ejectment on the following facts: The premises were owned in common by Gilbert Merritt, her grandfather, and his sister Sarah Carpenter. Gilbert Merritt died, leaving three •children, Delila Merritt, Hannah Merritt, the mother of the plaintiff, and Penelope Slater. He died leaving a last will and testament dated October 24,1823, and proved and admitted to probate December 1, 1823, containing the following provision: I give • and bequeath unto my daughter Penelope Slater, at the decease of widow Penelope Merritt, all my right and title of the land and buildings thereon, now in possession of the said widow Penelope Merritt, it being the equal one-half of said property, together with the appurtenances thereto belonging.” The widow Penelope Merritt died soon after the death of the testator, and Penelope Slater, the devisee named, came into possession of the premises under the will, and the defendant has title from her .through mesne conveyances.

The claim of the plaintiff is that only a life estate passed to Penelope Slater under the provision of the will above set out, and that on her death, Hannah Merritt, the mother of the plaintiff, became seized of one-third of the testator’s share of these premises by descent, as one of bis beirs-at-law, and tbat sbe now takes tbis estate as tbe only child and beir-at-law of ber mother, who died intestate.

As tbis will was made and went into effect previous to tbe Revised Statutes of tbis State it must be interpreted by tbe rules of which we have already spoken. Tbe intention of tbe testator to devise a fee, if discovered in tbis will, must be found in the words “ all my right and title of tbe lands and buildings.” These words comprehended all tbe testator’s interest in tbe premises, and the intent to pass it to tbe devisee named is clearly expressed. Tbis language plainly discovers an intent of tbe testator to devise all the estate be had in tbe land. He was tbe owner in fee of tbe undivided half of tbe premises, and bis language cannot receive the force of its significance without admitting bis intent to devise all be bad. In tbe case of Newkerk v. Newkerk (2 Caines, 345) tbe words of a devise were “ all my right in tbe patentees’ woods to my children, in case tbe same continue to inhabit tbe town of Hurley, otherwise not,” and they were held to pass afee, if tbe testator bad one. In tbe opinion in tbat case, which was previous to tbe Revised Statutes, it is said : “ It can hardly be doubted tbat a devise of a man’s right in lands will pass all bis estate and interest therein, and, of course, a fee, if be himself have one. Right is equivalent to all right, and if all bis right be devised, what is there left for others % ” Tbis case has’not been questioned in tbis State, and tbe reasoning satisfies tbe judgment and meets our approbation. We think it an irresistible inference from tbe language used by tbe testator in tbis will, that bis intent was to pass all tbe right and estate be bad in tbe land in question.

Tbe plaintiff cannot, therefore, be permitted to recover, and. tbe judgment must be affirmed, with costs.

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

Judgment affirmed, with oosts.


text:
    JOHN GRAHAM, Respondent, v. M. P. O’HERN, Appellant.

      New promise after a discharge in bankruptcy — am, action will lie upon the original debt— Trial by jury — what a’Waiver of the right to.

    When a debtor bas promised to pay a debt from wbicb be bas been discharged by proceedings in bankruptcy, an action will lie upon tbe original debt, and need not be brought upon tbe new promise.
    After a trial bad been commenced before a jury and tbe plaintiff bad rested bis case, tbe questions of law were, at tbe suggestion of tbe court, submitted to it for decision, and tbe jury was thereupon discharged without objection. Tbe court subsequently made and filed findings of fact and of law, and decided the case in favor of tbe plaintiff.

      Held, that tbe defendant could not complain on appeal that be bad been deprived of his right to a trial by jury.
    That not having stated at the trial that be desired to introduce further testimony, that be could not complain on appeal that be bad been deprived of tbe right to do so.
    Appeal from a judgment in favor of tbe plaintiff, entered upon findings of fact and of law, made and signed by tbe court.

      Daniel T. Kimball, for the appellant.

      Caldwell & Vanderwater, for the respondent.
   Dykman, J.:

Tbis action is against tbe drawer of a sight draft, accepted on presentation but not paid on maturity. Tbe draft was dated March 19, 1866, and ¡payable ten days after sight. On tbe 25th day of July, 1868, the defendant received a discharge, under tbe United States bankrupt law, from all debts owing by him on tbe 29th day of June, 1868. Subsequent to tbe discharge, and previous to tbe commencement of tbis action, tbe defendant promised tbe plaintiff to pay tbe draft. These facts were undisputed at tbe trial, and judgment went for tbe plaintiff, from wbicb tbe defendant bas brought tbis appeal.

Tbe effect, in law, of a discharge in bankruptcy is to release the bankrupt from bis legal obligations and bar tbe remedy of bis creditors; but it leaves tbe debt unpaid and the moral obligation for its payment undischarged, and thus there remains a sufficient consideration to support a subsequent promise to pay the debt, and such promise confers a right of action on the original demand.

So far as the remedy goes, the new promise is now considered as a waiver of the bar to an action created by the discharge in bankruptcy. The discharge furnishes the bankrupt with a defense which he may relinquish by an after promise to pay.

In the case of Shippey v. Henderson (14 Johns., 178) the defendant had promised to pay, after dischai’ge under the insolvent laws of the State, and it was held that the declaration on the original cause of action was well enough in analogy to the case of infancy and cases where the action is barred by the statute of limitations, and that the promise revived the precedent consideration, the remedy only having been suspended.

It is true there has been some contrariety of judicial opinion on this question, and in the case of Depuy v. Swart (3 Wend., 139), Judge Maeot held that the new promise constituted the cause of action, with the original demand for its support as consideration.

In the case of Wait v. Morris (6 Wend., 394), the declaration was on a promissory note with a plea of discharge under the insolvent laws, and a replication of subsequent promise and ratification, and Chief Justice Savage in the opinion of the court said it was settled that the mode of declaring was right, and cited Shippey v. Henderson. Finally in Dusenbury v. Hoyt (53 N. Y., 523), it was held by the Court of Appeals that the original debt may be considered the cause of action for the purpose of the remedy, and the creditor may bring his action thereon and prove the new promise upon the trial in avoidance of the discharge. It seems to result that the' judgment was well given for the plaintiff so far as this question goes.

It is also objected by the defendant that he has been deprived of the right of jury trial, and to cross-examine the plaintiff and call the defendant to contradict him. We do not find this claim substantiated by the facts. The trial was commenced at the Circuit before a jury, and after the plaintiff had rested his case and the defendant’s discharge had been read in evidence, the trial judge said: “ Now you had best leave this matter to me, and give me a chance to look into my books. I’ll be back here next week; if you don’t I shall direct a verdict for defendant.” Then the case states: “ The questions of law are submitted to the court for decision, which is reserved.”

This was on the sixteenth day of April, and on the tenth day of May following, the judge made and signed findings which recited that the action was tried before the court without a jury. We think this was regular. The case presented only a question of law. All the facts were undisputed, and the suggestion of the judge that the matter should be left to him was assented to, and the questions of law were submitted to him. This clearly amounted to a consent that the cause be taken from the jury. The counsel for the defendant was present and witnessed the discharge of the jury from the further consideration of the cause, and made no objection thereto. Under the circumstances this was assent and a waiver of the jury.

In respect to further testimony, it is sufficient to say that none was offered or suggested, and there was no request for further cross-examination of the plaintiff. It must have been understood by court and counsel that the testimony was at an end. At all events if there was desire to introduce further testimony or to further cross-examine the plaintiff, it should have been manifested at the trial. No intimation of that kind having been then made the trial was properly closed.

The judgment must be affirmed, with costs.

GilbbRT, J., concurred; BarNArd, P. <1., not sitting.

Judgment and order denying new trial affirmed, with costs.


text:
    JAMES BIGLER and others, Respondents, v. WILLIAM PINKNEY, Survivor, etc., Appellant.

      Costs — when the party finally successful cannot have costs of an int&rmediate unsuccessful appeal.

    When a judgment recovered by the plaintiff is affirmed at the General Term but reversed by the Court of Appeals (by which latter court a reargument is ordered at General Term), “ with costs of the appeal to this court (the Court of Appeals) to abide the event of the action,” and thereafter the judgment is, upon a reargument had at the General Term, again affirmed, the plaintiff cannot include in his bill of costs, the costs of the ffist appeal to the General Term.

    Appeal from an order-denying a motion for a retaxation of the •osts herein

      James K Hill, for the appellant.

      E. A. Brewster, for the respondents.

       See First National Bank of Meadville v. Fourth National Bank of New York (23 Albany Law Journal 275).

   Dykman, J.:

This appeal is from an order readjusting costs. The plaintiffs had judgment on the report of a referee, and the defendant moved for an order requiring the referee to make further findings and was denied his request. Then he appealed to the General Term from this order of denial, and from the judgment, and both were affirmed in the General Term. Thereupon the defendant took an appeal to the Court of Appeals where the judgment and the order were both reversed. The motion for additional findings was granted and a direction made that the cause should be heard on such additional findings and the case. The further decision was that the defendant have costs of the appeal from the order, in both courts, and that the costs of the appeal to the Court of Appeals from the judgment should abide the event of the action. The costs of the appeals from the order were adjusted and paid.

There was a reargument of the cause at the General Term after the additional findings were made by the referee, which resulted in affirmance of the judgment, and thereupon the plaintiff taxed costs of the appeal from the judgment to the General Term, costs of the appeal to the Court of Appeals and costs of the reargument at the General Term.

Complaint was made by the defendant of the allowance of the costs at the General Term, and the order appealed from disallowed the charge for printing, for the reason, as we assume, that the defendant paid for the printing.

The objection raised to the allowance of costs in the Court of Appeals cannot be sustained. Under the decision of that court they went to the party eventually succeeding in the action, and so far the plaintiff is successful.

The allowance to the plaintiff of the costs in the General Term presents a question more serious. The plaintiff there had a judgment of affirmance, and the order entered on the decision of the Court of Appeals provided that such judgment be and the same hereby is reversed, with costs to the Court of Appeals to abide the event of the action.” This is an action of law and costs follow success, but here the plaintiff sustained defeat. The decision of the Court of Appeals does not make the costs of the action abide the event but only the costs of that court, and there has been no decision affecting the costs in the General Term ; as therefore the judg-' ment of the plaintiff was reversed he cannot be allowed costs of the General Term. Ninety-five dollars allowed to the plaintiff for such costs must therefore be disallowed and stricken out, and the order appealed from must be modified in that respect and as so modified affirmed, without costs to either party.

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

Order modified in accordance with opinion. Order to be settled by Uykman, J.


text:
    EZRA FINCH, Administrator, etc., Respondent, v. GEORGE HULL, and others, Appellants.

      Legacy — when charged upon real estate.

    A testator, by his will, provided as follows : After all my lawful debts are paid and discharged I give and bequeath to my wife, Deziah Hull, all my real and personal estate for her use and disposal during her life, to keep, use and dispose of as she may think proper. I also give and bequeath to her the sum of $1,000, to be disposed of, after death or during her life, as she may please. The rest of my estate, after deducting the above mentioned $1,000, I give and bequeath as follow's: * * * .”

      Held, that the legacy of $1,000 given to the wife was a charge upon the real estate of the testator.
    Appeal from .a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to obtain a judgment directing the sale of certain real estate in the city of Brooklyn for the payment of a legacy of $1,000, bequeathed to the plaintiff’s intestate by her former husband, Mark Hull, and charged by his will, as was alleged, upon the said real estate, which was then in the possession of the above named defendants, the children of the testator.

      Jacob S. Van Wyck, for the appellants.

      A. C. Fancher and D. M. De Witt, for the respondent.
   Dykman, J.:

The object of this action is to procure a judgment of this court charging a legacy of $1,000 on land, and directing the sale thereof for its payment. It is not necessary to the existence of a charge that the intention to make it be in express terms, for if an intention to create a charge can be fairly implied from the whole will, it is equally effective.

Generally where a testator devises the remainder of his property, real and personal, after payment of debts and legacies, an intention to charge the payment of legacies on the whole fund will be implied. In the case of Hoyt v. Hoyt (17 Hun, 192), the testator in the first clause of his will directed the payment of all his just debts, and by the second he-gave $1,500 to each of certain legatees named, and by the third he gave and devised “ all the rest, residue and remainder of his real and personal estate to ” persons named, and it was held that the legacies given by the second clause were charged upon the real estate. The language here is as follows: “ First. After all my lawful debts are paid and discharged, I give and bequeath to my wife Deziah Hull, all my real and personal estate for her use and disposal during her life, to keep, use aud dispose of as she may think proper. I also give and bequeath to her the sum of $1,000, to be disposed of, after death or during her life, as she may please. The rest of my estate, after deducting the above mentioned $1,000, I give and bequeath as follows: At the death of my wife, twenty-five dollars to my eldest daughter Mary Jane, and the remainder, with the above exception, be equally divided among my three remaining -children, George, Emeline S. and Mark Hull, Jr., or to their heirs if they shall be deceased.”

At the time of the death of the testator, he was seized and possessed of the land and premises described in the complaint, and we think the legacy of $1,000 was an absolute gift, and was charged on the land. The general rule seems to be that where a rest or remainder of property, real and personal, is to be created by first satisfying legacies previously given, an intention of the testator to create a charge may be fairly inferred; but here the intention is hardly left for inference. It is quite plainly expressed. The language is: “ The rest of my estate, after deducting the above mentioned $1,000, I give and bequeath as follows.” "We think this made the legacy of $1,000 a charge on the testator’s real property.

This was an absolute vested legacy, and payable to the legatee in her lifetime or to her personal representatives after her death.

As there was no personal property of the testator from which the legacy in question could have been paid, and as it never has been paid, it was and is a charge on the land in question, and the judgment appealed from is just and right, and must be affirmed.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Dykman, J.;

text:
    MARY WRIGHT, Appellant, v. GEORGE M. TERRY and others, Respondents.

      Rea/rgument at General Term,— the cowt cannot allow the appellant to amend his case, and, hear the rea/rgument on such amended case.

    Motion for a reargument.
    The court at General Term said: “ The plaintiff’s counsel asks for a reargument of this case in the General Term on an affidavit that all the testimony in the case was not printed, because he only deemed it necessary to comprise in the exceptions such testimony as raised the point upon which the case turned at the Circuit. In his points on this motion he says: ‘ If the court is of opinion that upon the order of the Circuit judge it became necessary to print and include in the exceptions the whole case and all the evidence, he asks a rehearing, and to be permitted to print the case.’ Certainly a rehearing at General Term will not permit him to print his case, and we can give him no relief in that direction.
    “We decided the case on the record sent to us. We found an action for malicious prosecution without’ proof of want of probable cause or malice, and the trial judge had nonsuited the plaintiff. It is fundamental that in such an action the plaintiff must prove both want of probable cause and malice, and there was no such proof sent to us. Our determination could not have been otherwise than it was. In fact our decision is not complained of. The counsel for the plaintiff seems to go upon the idea that in granting a rehearing the General Term has the power to give permission to make or print a new case. This is a mistake. If we granted a rehearing it would be had on the same record.”

      Moody B. Smith, for tlie appellant.

      Wm. Wickham, for the respondents.
   Opinion by

Dykman, J.;

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

Motion denied, without costs.


author: DykmaN, J.;

text:
    In Matter of FRANZ RUST to Reduce an Assessment.

      Proceedings to reduce assessments in the city of Brooklyn — the whole amount of any deduction should he made from the part remaining unpaid —1875, chapter 688, § 30.
    Appeal by the petitioner from an order made in a proceeding for the reduction of an assessment for a local improvement in the city of Brooklyn. There had been a trial and the judge had found that in October, 1873, an assessment for a local improvement was laid on the land of the petitioner and confirmed, of $809.02; that the expense of the improvement for which the assessment was laid was increased in dollars and cents, by reason of fraud and irregularity, to the extent of twenty per centum thereof in excess of the fair value of the actual improvement; that the aggregate amount of such assessment was so increased by the sum of $161.80 ; that' the assessment was payable in ten installments, of which the petitioner had paid six, amounting to $683.63, of which $185.11 was for principal and $198.22 was for interest.
    The judge then found as a conclusion of law that the amount of the original assessment, upon which the order of the court could operate, was the sum of $323.61, because the original assessment was discharged and canceled by payment to the extent of $185.11. The court reduced the assessment from $323.61 to $258.89. The petitioner claimed that it should have been reduced as follows:
    The amount of original assessment unpaid............. $323 61
    Amount representing frauds, etc.............$161 80
    Interest on $161.80 for five years at 7 per cent.. 56 63
    Amount of reduction...................$218 13 218 13
    Proper amount of assessment.................... $105 18

      This deduction was made under the provision of section 30 of chapter 633 of the Laws of 1875, by which any assessment in the city of Brooklyn may be reduced to the extent the same may have been increased in dollars and cents, by reason of fraud or irregularity, so long as the proportion of such assessment, which is the fair value of the improvement, shall not be disturbed thereby.
    The court at General Term said : “ The finding here is, that the whole assessment was increased to the extent of $161.80, and we think that sum should be deducted from the whole and not from the amount remaining unpaid, and we must assume that the proportion of the fair value of the improvement which shall have been assessed on the land of the petitioner is not more than $647.22, the amount that will remain after the unlawful increase of twenty per centum is deducted, and, therefore, we think the sum of $161.80 should be deducted from the amount remaining unpaid, and that the petitioner should not be compelled to pay beyond the amount that will remain unpaid by deducting that sum from ,the whole assessment and making the calculation of interest on the remainder and giving him credit for the payments he has made for principal and interest.
    This is not a proceeding to vacate an assessment, and therefore the rule adopted in the Matter of IAma (77 N. Y., 170) does not apply.
    The order appealed from must be verified in accordance with this opinion.

      John T. Barnard, for the petitioner, appellant.

      John D. Pray, for the city of Brooklyn, respondent.
   Opinion by

DykmaN, J.;

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

Part of order appealed from modified in accordance with opinion.


author: Gilbert, J.;

text:
    ADDISON J. LYON, Appellant, v. PETER KRAMER, Respondent.

      Conversion of a building — what amounts to.

    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the Circuit. The action was brought to recover for the conversion of a building and its contents which were alleged to belong to the plaintiff.
    The defendant was the owner of a lot fronting on Fourth avenue, in the village of Mt. Yernon, Westchester county. On it was a small frame building belonging to the plaintiff, used by him as a law office, and containing some articles of office furniture. The front building came near the sidewalk, and between this building and the next building on the street, also belonging to the defendant, was a vacant lot owned by the defendant. The office had a front door opening into the street, and a back door. Along the front of ' the vacant lot was a fence, with a gate. While the plaintiff -was away, the defendant caused the fence in front of the vacant lot to be extended along his (defendant’s) lot, in front of the plaintiff’s office, close to but without touching it, thereby cutting off' all ingress thereto from the street. The defendant never interfered in any way with the building or its contents, and never took possession of it or exercised any control over it. The plaintiff brought this action-agáinst the defendant for the conversion of the office and its contents.
    The court at General Term said: “ The erection of the fence was a palpable invasion of the plaintiff’s possession. It obstructed ingress and egress to and from his building. It does not appear whether his building stood close to the line of the street or not, but the fact, however it may be, is not material. The stoop or platform was part and parcel of the building, and the fence ran across that. As owner and occupier of the building, the plaintiff had an easement in the space between the street and the entrance to the building, and the fence encroached upon and obstructed that easement. The creation of such an obstruction was an actionable wrong and entitled the plaintiff to nominal damages at least. (Dixon v. Glow, 24 Wend., 191; Ashby v. White, 2 Id. Raymond, 938; Emhrey v. Owen, 6 Exoh., 368.) There was evidence, also, which would have justified the jury in finding that the building was a chattel. It was upon the defendant’s land but the plaintiff claimed to be the owner, and the defendant, in his answer, admitted that the plaintiff was the reputed owner of the building. It might well be inferred, therefore, that the parties had agreed that the building should be considered' as not annexed to the freehold, in which case it would be a personal chattel. (Smith v. Benson, 1 Hill, 176; Mott v. Palmer, 1 Comst., 564; Ha/rris v. Frink, 49 N. Y., 28; Tifft v. Horton, 53 id., 382.) Any distinct act of dominion wrongfully exerted over the property of another in denial of his right, or inconsistent with it, is a conversion. The evidence was sufficient prima faeie to show that the building of the fence was such an act of dominion. The nonsuit, therefore, was erroneous, and the judgment must be reversed and a new trial granted, with costs to abide the event.”

      Pelham L. McClellan, for the appellant.

      Martin J. Keogh, for the respondent.
   Opinion by

Gilbert, J.;

BarnArd, P. J., concurred; Dykman, J., not sitting.

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


text:
    Clinton H. Sage v. Peter G. Van Alst.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

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


author: Barnard, P. J.

text:
    James P. Howland and Ezra H. Horton, Respondents, v. William Buckout, Appellant.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Thomas J. Washburn, Appellant, v. Hester Acker, Respondent.

   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Daniel McCarty v. Thomas Holman.
   Motion denied. Opinion by

Gilbert, J.;

Dykman, J., not sitting.


author: Dykman, J.

text:
    George D. Cragin v. Eliza Quitman.
   Motion denied, with costs. Opinion by

Dykman, J.

Barnard, P. J., not sitting.


text:
    Joseph M. Hurlbut, Appellant, v. S. Foster Dewey, Respondent.

   Judgment affirmed, with costs. Order refusing new trial upon newly discovered evidence affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    In the Matter of Peter M. Baum, an attorney.
   Motion to disbar Peter M. Baum granted so far as to suspend Mm from practicing in all tbe courts of tMs State for one year from due entry of order. Opinion by

Dykman, J.;

Gilbert, J., being for granting tbe petition entirely.


text:
    Joseph T. Pike, Appellant, v. David Bingham, Respondent.
   Order affirmed, with costs and disbursements. Opinion by

Dykman, J.


text:
    Andrew A. Demarest, Respondent, v. Mariah A. Peirson and Edward Peirson, her husband, Appellants, impleaded with Mary Jarvis and another.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Gilbert, J.;

Barnard, P. J., not sitting.


author: Barnard, P. J.;

text:
    Walter H. Mead, as Executor, etc., Appellant, v. Henry Pfeiffer, Respondent.

   Judgment reversed and new trial granted, and appeal from order granting extra allowance dismissed, costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    In the Matter of the Application of the Mayor, etc., of New York to Acquire Lands.
   Keargument ordered.

Dykman, J., and Barnard, P. J., disqualified.


text:
    Edward C. Beirne, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

   Judgment affirmed, with costs. Opinion by

Dykman, J.