author: Herrick, J. Mayham, P. J. (dissenting). Barnard, J. Edwards, J.

text:
    The People ex rel. John I. Platt et al., App’lts, v. Frank Rice et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Contempt—Effect of appeal.
    An appeal from a judgment restraining action on the part of a defendant, and a stay of proceedings thereon, does not affect the validity or effect of the judgment pending the appeal, and the defendant is not absolved from the duty of obedience to it or permitted to do that which the judgment prohibits.
    2. Same—Illegal return.
    That the only other return is illegal is no excuse to the canvassing hoard for canvassing the forbidden return.
    3. Same—Order to show cause.
    An order denying a motion for an order to show cause why the defendants should not he punished for contempt in pursuance of the provisions of § 2269 of the Code, where the defendants appeared and opposed the granting of it, prevents any further application or proceeding by the relators to punish defendants for the alleged contempt, unless leave is given to move upon the same papers.
    4. Same.
    Such order is not a short notice of, or a substitution for a notice of, motion.
    5. Same—Appealable.
    Such order is final and appealable to the general term.
    6. Same—Delay.
    Delay in relator’s taking proceedings on account of the alleged disobedience will not defeat the motion, unless it is shown that such delay injured the defendants or prevented them from interposing some answer to the motion, that could have been asserted, if the application had been sooner made.

      I. Same—Void order.
    A party who violates an order, however irregular it may be, or improperly or without authority granted, if not void upon its face, is properly adjudged guilty of contempt.
    Appeal from two orders denying orders to show cause.

      Leavttt, Wood & Keith (John B. Leavitt of counsel), for app’lts ; J. Newton Fiero, for resp’ts.
   Herrick, J.

After the state election in 1891 a controversy arose in the county of Dutchess, over the canvass by the board of county canvassers of the vote for state senator, the county clerk as secretary of the board of canvassers refused to sign the statements of canvass as made by the board of canvassers, and said board thereupon by resolution appointed John J. Mylod, one of its members, secretary pro tern, and directed him as such to sign and attest said statements, which he did, and such statements so signed by him, were transmitted to the governor, secretary of state and comptroller, to be canvassed by the defendants as the state board of canvassers.

Proceedings were thereupon instituted against the defendants composing the state board of canvassers, to prevent their canvassing the statement or return signed by “ Mylod,” and on December 7, 1891, at a special term of the supreme court, an order was granted containing the following provision : “ It is ordered that a writ of peremptory mandamus■ issue out of and under the seal of this court commanding and requiring the said state board of canvassers, that they issue a certificate of election to the office of senator in the fifteenth senatorial district of this state, disregarding the so-called return of the board of county canvassers of the county of Dutchess, which is signed by John Mylod, as secretary of state board pro tem, and is not signed by the county clerk of Dutchess county or certified under the seal of said county clerk, but that instead thereof they consider only such return from the county of Dutchess as may hereafter be filed containing the signature of the county clerk of the county of Dutchess and the chairman of said board of county canvassers, and issued under the seal of said county clerk, and in their certificate of election the said state board of canvassers certify and declare that the person who appears upon the certified returns and statements made by the board of canvassers of the counties of Columbia, Putnam and Dutchess in pursuance of the statute and the order of the court, to have received the greatest number of, votes, was duly elected senator from the said fifteenth senatorial district.”

This order was affirmed by the general term and was then taken to the court of appeals. See People ex rel. Daley v. Rice, 129 N. Y., 449; 41 St. Rep., 938.

' It appeal’s from the opinion of Judge Peckham that two grounds were urged in the court of appeals for sustaining the order in question, one that the return of the county canvassers referred to in said order was not certified by the county clerk, and the other that the county canvassers illegally threw outvotes that had been counted for Mr. Deane by the inspectors of election and illegally transposed votes canvassed by said inspectors. Votes counted for Mr. Deane were given to Mr. Osborne.

That the board of county canvassers illegally canvassed the returns from the inspectors of election in the whole county, and made np their own canvass in opposition to such returns. As to the first ground, the court held that it was not necessary that the returns of the board of county canvassers should be signed and certified by the county clerk, and in disposing of that question the court said: “We think that, under all the facts, the steps taken to certify and authenticate the statements were valid, and the proceedings by which they were sent to and received by the secretary of state and other state officer, were sufficient to entitle them to be filed and considered by the board of state canvassers as the properly certified result of the canvass of the board of county canvassers. The other grounds for directing the state canvassers to omit to canvass this return remains to be considered.”

The court then, after reciting the facts as to the second ground of objection to canvassing such return, proceeds as follows:

“ Upon these facts standing uncontradicted, we think the court below in its proper branch would have the power to command the state canvassers to canvass without regard to such a return. As it contained the result of an illegal and erroneous canvass by the board of county canvassers in excess of its jurisdiction, and which thereby would alter the result of an election, the court should not permit it to be canvassed. * * * If another return should be duly sent to the board, properly authenticated, and containing the result of the legal action of the board of county canvassers, the state board should canvass it.”

“We think, as a result, that the order for the writ and the writ itself, should be modified by striking out the provisions requiring a return to be certified by, and to come from the county clerk of Dutchess county, and issued under his seal, and " as so modified the order is affirmed.”

The remittitur of the court of appeals upon such decision was as follows: “ It is ordered and adjudged that the order of the special term herein dated December 7, 1891, and the order of the general term affirming the same, and the same writ itself be modified by striking out the provision requiring a return to be certified by and to come from the county clerk of Dutchess county and issued under his seal, and that the said order, so appealed from, as so modified, be affirmed, without costs.”"

Striking out the provision in the order of the special term requiring a return to be certified by and to come from the county clerk of Dutchess county and issued under his seal, the order issued by the special term would read as follows:

. “ It is ordered that a writ of peremptory mandamus issue out of and under the seal of this court commanding and requiring the state board of canvassers that they issue a certificate of election to the office of senator in the fifteenth senatorial district of this state, disregarding the so-called return of the board of county canvassers of the county of Dutchess, which is signed by John Mylod as secretary of said board pro tem. But that instead thereof they consider only such return from the county of Dutchess as may hereafter be filed; and that in their certificate of election the said state board of canvassers certify and declare that the person who appears upon the certified returns and statements made by the boards of canvassers of the counties of Columbia, Putnam and Dutchess, in pursuance of the statute and the order of the court, to have received the greatest number of votes was duly elected senator from the said fifteenth senatorial district.

Whatever other return the board of state canvassers, might canvass, they were thus expressly forbidden by an order of the special term of this court, affirmed by the general term, and the court of appeals, to canvass the so-called “ Mylod ” return yet, in the evening of the same day that the opinion of the court of appeals was handed down, and after the same had been read by counsel for the defendants and, as appears from the case, communicated to at least some of the defendants, but, I infer before the filing of the remittitur and the entry of an order making the judgmeat of the court of appeals that of the supreme court, the board of state canvassers met and canvassed the votes for senator in the fifteenth district, and in doing so they failed to disregard the “ Mylod ” return. They used that return in making their canvass.

Without discussing the question whether or not there was a corrected return before the board which they could and should have canvassed, it is sufficient to say that there was an order of the special term affirmed by the general term, and the court of appeals in force, directing a mandamus to issue to the defendants, forbidding the use of the “Mylod ” return in making their canvass. This order has been served upon the defendants, and they had appealed from it, and knew the result of such appeal. Whether or not the remittitur of the court of appeals had been filed or judgment entered thereon when the defendants acted in making the said canvass, it seems to me, is not important. The order affirmed by the general term was in full force until the judgment of the court of appeals was made that of the supreme court.

In Sixth Ave. R. R. Co. v. Gilbert El. R.R. Co., 71 N. Y., 430, it is held that an appeal from, a judgment restraining action on the part of a defendant, and a stay of proceedings thereon, does not affect the validity or effect of the judgment pending the appeal. The defendants are not absolved from the duty of obedience to it or permitted to do that which the judgment prohibits. The same may be said in reference to the order providing that a mandamus issue directing defendants to disregard the Mylod ” return. If, when the defendants canvassed the “ Mylod ” return, the judgment of the court of appeals was not made that of the supreme court, then the order of the general term was in force. If, on the contrary, its remittur was filed and order entered thereon, the judgment of the court of appeals affirmed that of the general term as to the “ Mylod ” return.

The only papers before the special term on this application, and before this court, are those of the moving parties; their statements are uncontradicted; the defendants have submitted no opposing affidavits or records, and from the record as it now is, before this court, the fact seems to be established that while the order of December 7, 1891, held by the court of appeals to have been properly granted, on the papers on which it was based, was in full force, providing for the issuance of a mandamus to defendants directing them to disregard the “ Mylod ” return; the defendants deliberately disobeyed such order and canvassed the “Mylod” return.

It is not desirable to discuss the merits of the case any further than is necessary to decide this appeal; a prejudgment of the merits of the principal case is to be avoided if possible, but on the case, as it now appears before the court, I cannot escape the conclusion that in canvassing the so called “ Mylod ” return the defendants were guilty of contempt of court; of course these views may be changed when the defendants submit their version of the transaction, and it is sincerely hoped that they will be able to show such a state of facts as will absolve them. The suggestion that the court of appeals in the case of People ex rel. Hasbrouck v. The Supervisors, 135 N. Y., 522; 48 St. Rep., 533, held that the return from Dutchess county attempted to be substituted in place of the “Mylod” return was invalid, is of not the slightest consequence in this case; we are only dealing with , the “ Mylod ” return ; it was the “ Mylod ” return the defendants were forbidden to canvass; it was the Mylod ” return "they canvassed; and the fact that there was another return, also illegal, which was attempted to be substituted in its place, makes no difference as to the duty of the defendants in reference to the “ Mylod ” return; the case of People ex rel. Hasbrouck v. Supervisors, did not deal with the “ Mylod return, and in no sense overruled People ex rel. Daley v. Rice, supra.

My attention has been called to the declaration of the court of appeals, in the case of The People ex rel. Derby v. Rice et al., 129 N. Y., 461; 42 St. Rep., 955, wherein it is Said in the case of an order like the one said to have been violated in this case: “ If we were free to consider and determine the right or propriety to order the writ of mandamus to issue in this matter, we should not hesitate to hold that it should not have been granted by the supreme court at a special term. Though the writ is in form one of peremptory mandamus, yet it is by force of its terms and commands, in effect an order which restrains the board of state officer engaged in the performance of, or about to perform, a duty imposed by the statute.”

The court based this declaration upon the provisions of § 605 of the Code of Civil Procedure. The opinion proceeds : “ However, because of the stipulation of the parties which accompanies the record here, and because of the failure of the defendants to the proceeding to raise the objection, we have concluded to overlook the question of jurisdiction, and to determine the questions at issue upon their merits.”

The cases of The People ex rel. Derby v. Rice and The Peope ex rel. Daley v. Rice et al. were companion cases; they appear to have been argued in the court of appeals upon the same day, and to have been decided upon the same day; the orders appealed from were made at and by the special term at the same time, and the stipulation referred to in the Derby case, embraces also the Daley case, as well as others; and like the Derby case no objections were taken in the court below to the power of the court to grant the order in question; both orders were affirmed by the court of appeals, the one in the Daley case having been modified as hereinbefore stated.

Unless the order is void upon its face for lack of jurisdiction on the part of the court which granted it, the party violating it is properly adjudged guilty of contempt. The People v. Sturtevant, 9 N. Y., 263.

“ No matter how erroneous the action of the court may have been in taking cognizance of the suit and awarding a mandatory process, unless there was an entire absence of judicial authority to act in the premises, it was the duty of the defendant to obey its commands until they have been revoked by an order made in the action in which they had been issued, either upon motion or appeal, or by some other method of direct review.” People ex rel. Cauffman v. VanBuren, 136 N. Y., 252; 49 St, Rep., 378.

The order in this case having been affirmed by the court of appeals, I do not feel at liberty to say it was a void order; I cannot assume that that court would affirm an order that is void upon its face, but on the contrary must hold that the fact that the highest court in the state has affirmed the order is decisive of that question, and that however irregular it may have been, or improperly, or without authority, granted, yet that it was not void upon its face; and as we have seen, it not being void upon its face, the party who violates it is properly adjudged guilty of contempt.

It may also be added that upon this motion the question of the authority of the special term to grant the order is not raised by the defendants. Indeed, it seems to me that the stipulation entered into by them upon the appeal would bar them from raising that question to a proceeding of this character.

Upon the state of facts here recited an ex parte application was made to Mr. Justice Barnard for an order directing the defendants to show cause why they should not be punished for contempt ; such application was denied with leave, however, to renew the same before some other judge. In denying the application the learned justice, in the course of his opinion, made the following statement:

“It was made a question, whether the county clerk must certify the return and the court of appeals subsequently held that a board of supervisors was empowered with the right to certify the return by another person than the county clerk, if he refused to sign the certificate. The appeal from Judge Edward’s order had only this point in it. Before the decision by the court of appeals, the supervisors had by the order of this court recounted the votes so as to elect Mr. Deane and the vote so recounted was certified by a new county clerk, the old one having been removed by the governor, and this amended return got to the proper officers before the decision by the court of appeals, so that when that decision came, the state canvassers had or aught to have had this corrected return. If the board violated its duty and counted the uncorrected return it was not a contempt of an order of any court. The order of the court simply provided a legal return of the canvass of the votes, and when it was filed the duty of the court was accomplished.”

The learned justice is in error in supposing that the only point to the appeal from Justice Edwards’ order, was, whether the county clerk must certify the return. As we have seen in the extracts we have made from the decision of the court of appeals, that was only one of the questions, and while the “Mylod” return was held legal in that respect it was held illegal on the other grounds. Again, with great respect, it seems to me that the learned justice erred in his statement that “the order of the court simply provided a legal return of the canvass of the votes. It provided a legal return of the canvass of the votes. It provided more, it provided that the “Mylod” return should not be canvassed.

Application upon notice was subsequently made to Justice Edwards, for an order to show cause, both sides were heard, and, without expressing any opinion of his own upon the merits, Justice Edwards announced that he would follow the decision of Justice Barnard and denied the application. The appeal here is from both orders.

The objection is made that no appeal lies from the order of Justice Barnard. It seems to me to be of no consequence whether it is appealable or not.

In that order permission was given to renew the motion, and hence, the subsequent motion at the special term over which Justice Edwards presided was regular. It is therefore unnecessary to consider whether or not an appeal lies from the prior order made at chambers by Justice Barnard.

The learned counsel for respondents also insists that the latter order of the special term, denying relator’s motion for an order to show cause, is not appealable. That the order in question being a mere denial of a motion for an order to show cause, did not affect a substantial right. That the order asked for by relators if granted could only have operated as a short notice of motion and the denial of the motion in no way prejudiced their rights.

I am of opinion, however, that the order in ' question did prej udice the rights of relators. It was an order made on a contested motion. The motion was made in pursuance of the provisions of subdivision 1, § 2269 Civil Code. The relators on making proof by affidavit that defendants had disobeyed an order of the court, served a notice for an order requiring the defendants to show cause why they should not be punished for contempt in pursuance of the provisions of § 2269 {supra). Defendants had notice of the motion, appeared and opposed the granting of it, and the motion was denied. If this order stands unreversed, it prevents any further application or proceeding by the relators to punish defendants for the alleged contempt. It is in effect a final order. By the well settled rules and practice of this court such an order no leave being given to move again on the same papers—prevents another motion of the same character. Seaman v. McReynolds, 52 N. Y., Supr. 543; Klumpp v. Gardner, 44 Hun, 551; 9 St. Rep., 355 ; Riggs et al. v. Pearsell et al., 74 N. Y., 370.

It is urged by appellant that although this court should not conclude to reverse the order in question, yet, that on the same affidavits and papers on which that order was founded, it could and should grant' an original order, directing the defendants to show cause as asked for by the relators. I think the position is not well taken. Assuming that a general term could properly, on an original application, grant such an order; yet such general term, in that view, possesses no more or other power than the special term, to commit for contempt in such a case, and as relators elected, on notice, to make their application at the special term, no permission having been given to renew the motion, it would not be proper for this court on the same papers to grant the order asked for. As we have no other or greater power (if we have any) than the special term, we are governed by the well established rule of practice that a motion being denied cannot be renewed on the same paper without leave.” It follows that the order in question is practically a final order, and amounts to a denial of relator’s motion to commit defendants for an alleged contempt. The order asked for was not a short notice of or a substitute for a notice of motion. It was a preliminary order necessary to be granted, in pursuance of the above referred to provision of the Civil Code in the proceedings to punish defendants for the alleged contempt. Hence, it is appealable. The People v. Healy, 33 How., 172; Livingston v. Swift, 23 id., 1.

If it stands unreversed, it certainly ends any attempt of relators to proceed against defendants for their alleged disobedience of the order of this court of December 7, 1891.

It is urged that the order appealed from was properly denied because of the delay in asking for it. It seems to me this position can be more properly considered on the final hearing of the case. But I am unable to understand how the delay in relator’s taking proceedings on account of the alleged disobedience of defendants of the order of this court, should defeat the motion, unless io is shown that such delay injured the defendants or prevented them from interposing some answer to the motion, that could have been asserted, if the application had been sooner made. The authorities to which my attention has been called are not parallel in Jourdon v. Hawkins, 17 John. 35, a motion was made for an attachment against the sheriff on account of acts of his deputy, after eighteen months delay. During the eighteen months the deputy and his sureties had become insolvent. Hence it appeared that the sheriff was injured by the delay in moving for the attachment. In the case of The King v. The Sheriff of Surry, 9 East, 467, the facts were the same as'in the case last cited. Rex v. Perring et al. late Sheriff, 3 Bos. &Pull., 151, was also a similar case and decided on the authority of The King v. The Sheriff of Surry, supra. It is possible that on the return of the order to show cause respondents may show that they have been injured by the delay, but no such injury appears in the papers submitted to us.

I have not consi dered what effect, if any, under the peculiar circumstances of the case, the fact (if it is a fact) that no mandamus under the order of December 7, 1891, was served, may have. That question was not discussed on the argument, and may be considered hereafter.

The case is a very embarrassing and delicate one, involving as it does a proceeding against so considerable a portion of a coordinate branch of the state government, and I would gladly have been relieved from its consideration, but being here it must be treated the same as a proceeding against any other body of men, and so treating it I can, from the record before us and for the reasons herein stated, reach no other conclusion than that the defendants have disobeyed the order of this court and are in contempt.

I conclude, therefore, that the order of Justice Edwards should be reversed, with ten dollars costs and printing and other disbursements, and that the motion for an order to show cause should be granted.

Let an order be entered accordingly.

Putnam, J., concurs; Mayham, P. J., dissenting.

Mayham, P. J. (dissenting).

This is an appeal from two orders, one made ex parte January 31, 1893, by Justice Barnard, of the second judicial district, and one made on motion at special term June 3, 1893, in the third judicial district, by and before Justice Edwards.

Various objections are raised by the respondents to the consideration of these appeals by this court, some of which, at least, are worthy of careful consideration. The first objection of this class is that no appeal will lie from the order of Justice Barnard, made ex parte on the 31st of January, 1893.

It seems quite clear on authority, that an ex parte order cannot be appealed from as such. The only way such review can be had is by application to the special term, or the judge making the order, to vacate the same, which if refused, the order denying such motion is appealable. This was expressly held in a special proceeding in the case of Hoyt v. Mann, 7 St. Rep., 420, where the opinion was written by Daniel, J., and concurred in by Judges Van Brunt and Bradley. To the same effect is Schell v. Erie Railway, 51 Barb. R., 368, which was a special proceeding to remove the president of a railroad company, where it was held that the granting an order to show cause ex parte returnable at a future day, and granting a temporary injunction pending the motion, was not an appeable order, and until a hearing has been had on the return of the original order, or a motion to vacate or modify the same has been made, and decided, an appeal would not lie.

Upon this subject the cases are numerous and uniform. Savage v. Relyea, 3 How., 277 ; Lindsay v. Sherman, 5 id., 308; Bank of Genessee v. Spencer, 15 id., 14; Aldinger v. Pugh, 57 Hun, 181; 32 St. Rep., 513.

Nor is appeal allowable under the provisions of § 1356. In re Dunn, 14 N. Y., Supp., 14; 37 St. Rep., 802; In re Johnson, 27 Hun, 528; People ex rel. Common Council of Buffalo, 30 id., 636.

It would seem to follow therefore that the order made by Judge Barnard .ex parte on the 31st of January, 1893, was not appealable, and this appeal so far as it seeks to review that order, must be dismissed.

It is insisted by the learned counsel for the respondent that the order made by Justice Edwards at special term is not appealable, as it was a denial of an order to show cause, and therefore did not affect a substantial right. The language of the order is as follows : “ It is ordered that the motion for an order requiring the defendants to show cause why they should not be punished for a contempt of court, be, and the same is hereby denied.” Did such an order affect a substantial right so as to bring it within the provisions of § 1356 of the Code of Civil Procedure ? That section is as follows :

“ An appeal may be taken to the general term of the supreme court from an order affecting a substantial right, made in special proceedings, at a special term or trial term of the same court, or in the supreme court at a term or circuit, or made by a judge of the same court in a special proceeding instituted before him, pursuant to a special statutory provision, or instituted before another judge and transferred and continued before him.”

It can hardly be maintained that the desired order to show cause affected a substantial right. The refusal left the party still at liberty to move for the same relief in an ordinary motion on eight days’ notice.

Ho substantial right was affected by the refusal of the court or judge to grant an order to show cause. The order, if granted, could only operate as a short notice of motion, and its refusal in no way impaired or prejudiced the rights of the relator, and for that reason the order of the special term was not appealable under the provisions of the section of the Code above quoted. Rule 37 of the supreme court provides that all motions shall be brought on on notice of eight days unless a shorter term shall be prescribed. This is but an amplification of the provisions of § 780 of the Code of Civil procedure.

In Cross v. Clark, 1 Civ. Pro., 25, Daniels, J., in discussing the nature and effect of such an order, uses this language: “It was simply a substitute for an ordinary notice of motion, and it was within the usual power exercised by the court or judge thereof to make it.” “ Hor do we think the order in this matter one made by a judge- in a special proceeding instituted before him pursuant to a special statutory provisionas provided in the latter part of § 1356 of the Code of Civil Procedure, and made appeal-able under that section. It is not the decision of a single judge sitting at special term in a matter effecting a substantial right, which can be reviewed on appeal. Matter of Brady, 69 N. Y., 215-220. But, as we have seen, this order being only a notice of motion in effect, and in no way involving the merits of the controversy, of affecting a substantial right, does not, therefore, come within the rule laid down in the authorities referred to by the learned counsel for the relators. The question of the right of a citizen to invoke the aid of the court to compel the performance by a public officer of a public duty is not involved in these applications-for an order to show cause, or in the refusal to grant the order asked for on such application.

We are, therefore, clearly of the opinion that the granting or refusal of the order was discretionary, and as it did not affect a substantial right, is not appealable.

It is not impossible that a case might arise where haste was important, and the granting or refusing an order to show cause, as a short notice of motion, for reasons given in the moving papers, might affect a substantial right; but no such reason is given in the papers on this motion, and it is quite apparent from the relator’s delay in moving that no such reason exists.

This is not, therefore, such a case. As the granting or refusing of this order was, as we have seen, in the discretion of the judge or court, this court on appeal will not interfere with the exercise of such discretion unless there has been a clear -abuse of the exercise of such discretion. Morrison v. Agate, 20 Hun, 24, 25; Bryan v. Durrie, 6 Abb. N. C., 140. Certainly if what has been shown as to the nature of the order denying the relator’s application is correct, no abuse of the exercise of the discretion of the judge at chambers or special term has been shown.

The application for these orders was made to and refused by the same judge, whose orders the relators insist were disobeyed.

It is fair to presume that they knew better, than this court can, the nature of the orders made by themselves, and whether they had been contumaciously violated, and acting upon that knowledge they declined for that or other reasons to grant these orders. It is also urged with a great deal of force that the relators have delayed for more than a year in making this motion, and have by laches waived any alleged violation of the orders which might have occurred. It has frequently been held that laches in moving to punish an alleged contempt, is good ground for denying the motion. No sufficient reason is given for this delay. The authorities seem to be uniform in this country and England that an attachment for contempt should be moved for by the party claiming to be aggrieved, in a reasonable time. Eapalje on Con-tempts, § 92 ; Morgan v. Cheney, 1 Hill (S. C.), 145. In King v. Surry, 7 Tenn. R., 452, it was held that a delay of ten months barred an attachment. Rex v. Perring; 3 Bos. & Pull., 153.

In Johnson v. Hawkins, 17 Johns., 35, eighteen months delay was held fatal. On these grounds alone the orders asked for might have been properly denied. If the views expressed herein are correct it is probably unnecessary to go farther, as they would result in the affirmance of the orders and dismissal of the appeals. Again, as the order made by the special term sought to restrain a board of state officers from performing an act about to be performed in the discharge of a duty imposed by statute, that court had no jurisdiction to grant such an order, as the same could only be granted at a general term. Code of Civ. Pro., § 605; People ex rel. Derby v. Frank Rice et al., 129 N. Y., 461; 42 St. Rep., 955.

The order being void, the special term could not punish its violation as a contempt, even if it has been disobeyed.

But it is urged by the learned counsel for ■ the relators, that if neither of these orders are- appealable, it is the duty of this court, if satisfied that an offense was committed, to grant the same, and that with that view they have inserted in the notice of appeal an application to this court for such an order; and in support o£ this suggestion we are referred to §§ 2269 and 2271 of the Code, as authority upon this point. Section 2269 reads as follows: “ The court or a judge authorized to punish for the offense may, in its discretion, when the case is one of those specified in either of the last two sections and in every other case must, upon being satisfied by affidavit of the commission of the offense, either:

“ 1st. Make an order requiring the accused to show cause .before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offense; or,

“ 2d. Issue a warrant or attachment directed to the sheriff of a particular county or generally to the sheriff of any county, where the accused may be found, commanding him to arrest the accused and bring him before the court or judge, either forthwith, or at a time and place therein specified to answer for the alleged offense.”

Section 2271 also referred to by the relator as conferring this original authority upon this court reads as follows:

“ When the order to show cause or the warrant is returnable before the court, it may be made or issued as prescribed in the last section but one, by any judge authorized to grant an order without notice in an action pending in that court at which contested motion may be heard.”

These sections do not confer any original jurisdiction on the general term of this court, to perform the duty either of a special term or single judge and in the absence of express statutory authority it may well be doubted whether it has any original jurisdiction of matters of contempt, except perhaps the inherent power of punishing for contempts of its own orders.

Nor do we think either § 8 or 14 of the Code of Civil Procedure to which we are referred by the relator’s counsel, confers any such original jurisdiction on this court, even if the fact, authorized or justified any such belief that the acts of the defendants were contempts of the orders of a special term.

But the question having been raised it may not be improper to inquire what order if any of the supreme court has been violated by the defendants.

The first order set out in the record was made on the 7th day of December, 1891, at a special term held at Albany by Mr. Justice Edwards, enjoining the state canvassers'and directed that a writ of peremptory mandamus issue out of and under the seal of the court commanding the state board of canvassers to issue a certificate of election to the office of senator in the fifteenth senatorial district of this state, disregarding the so-called return of the board of county canvassers of the county of Dutchess, which is signed by John Mylod as secretary of said board pro tem, and is not signed by a county clerk of Dutchess county; or certified under the seal of said county clerk. On the making of this order a stipulation was entered into by the parties interested, signed by their respective attorneys, staying all proceedings by the state board of canvassers, these defendants, until the decision of the court of appeals upon the above order and providing for an appeal to that court, the principal question being as to the authen- • ticity of the returns .made to such defendants signed by John Mylod as secretary pro tem as aforesaid.

The case shows that the appeal from said order was affirmed pro forma by the general term and heard and decided in the court of appeals on the 29th of December, 1891. On that day the court of appeals handed down the following decision :

“ It is ordered and adjudged that the order of the special term herein dated December 7,1891, and the order of the general term affirming the same and the same writ itself, be modified by striking out the provisions requiring a return to be certified by and to come from the county clerk of Dutchess county and issued under his seal and the said order so appealed from as so modified be affirmed without costs.”

The case does not show that any remittitur was ever filed making the decision of the court of appeals the judgment of the supreme court, although the affidavits of one. of the relators’ attorneys shows that one was prepared differing somewhat from the decision and handed to one of the counsel who had up to that time acted with the party opposing the validity of the Mylod returns. It is insisted by the learned counsel for the defendants that as the case has never been remitted to this court by the filing of a remittitur, that the matter is not properly here for consideration, and upon that point we are referred to the case of The People ex rel. Smith v. Village of Nelliston, 79 N. Y., 638, and also Bliss v. Hoggson, 84 N. Y., 667.

But we do not deem it necessary to pass upon that question in this case. I am inclined to the opinion that within the express decision of the court of appeals, so far as to the defendants as state canvassers, the Mylod returns were the valid returns, and the only ones which they were authorized to canvass, after the decision of the court of appeals, modifying that of the special term. The court of appeals, in passing upon the sufficiency of that return in this case, reported under the name of People ex rel. Daley v. Frank Rice, 129 N. Y., 124; 41 St. Rep., 938, by Beckham, J., says : “We think that under all the facts the steps taken to certify and authenticate the statements were valid, and proceedings by which they were sent to and received by the secretary of state and other state officers were sufficient to entitle them to be filed and considered by the board of state canvassers as the properly certified result of the canvass of the county canvassers.”

With this positive declaration by the court of appeals squarely overruling the decision of the special term, the order of which is made the basis of these proceedings for contempt, we see no escape from the conclusion that the defendants violated no order of any court. As this conclusion is emphasized by the decision of the court of appeals in Hasbrouck v. Supervisors, 135 N. Y., 522; 48 St. Rep., 533, where it was expressly held that the returns sought by the relators to be substituted for the Mylod returns were invalid. We, therefore, fully concur with Justices Barnard and Edwards, whose opinions we append and indorse, that the board of state canvassers, did no act which was a contempt, of any order of this court.

The orders appealed from must be affirmed, with costs and printing disbursements.

People ex rel. Platt and Ano. v. Rice et al.

Barnard, J.

No presumptive case is made out of contempt against the defendants for any violation of an order of the supreme court. The board of supervisors of Dutchess county canvassed the votes as to state senator by throwing out certain so-called marked ballots. The election law was imperative that such votes should be counted in the first instance. The clerk refused to sign the return and the board made Mr. Mylod its clerk, to certify its count. These returns, so certified, were forwarded to Albany. It was made a question whether the county clerk must certify the return and the court of appeals subsequently held that a board of supervisors was empowered with the right to certify the return by another person than the county clerk, if he refused to sign the certificate. The appeal from Judge Edwards’ order had only this point in it. Before the decision by the court of appeals the supervisors had by order of this court recounted the vote so as to elect Mr. Deane, and the vote so recounted was certified by a new county clerk, the old one having been removed by the governor, and this amended return got to the proper officers before the decision by the court of appeals, so that when that decision came the state canvassers had, or ought to have had, this corrected return. If the board violated its duty, and counted the uncorected return, it was not a contempt of an order of any court. The order of the court simply provided a legal return of the canvass of the votes, and when it was filed the duty of the court was accomplished.

Motion for order to show cause denied.

People ex rel. Platt and Ano. v. Rice et al.

Edwards, J.

This application to a special term of this court, under § 2269 of the Code of Civil Procedure, for an order requiring the board of state canvassers to show cause why they should not be punished for an alleged violation of an order of this court. The same application upon the same affidavits was heretofore made to Justice Barnard at chambers, who, under that section of the Code, had the same jurisdiction to issue an .order to show cause that the court has at special term. The learned justice who heard the application considered it deliberately, and came to the conclusion that the order ought not to be granted. In his written opinion he says that no presumptive case is made out for a contempt against the defendants for any violation of an order of the supreme court.

He further says that if the board violated its duty and counted the uncorrected return it was not a contempt of any order of any court. This court is now asked upon this application upon the same motion papers that were before Justice Barnard, substantially to review the decision of the learned justice, and to reach a different conclusion. It is maintained by the learned counsel for the relators that the justice to whom the prior application was made erred in his decision. I think if this were so the better practice would have been to have made this application at a special term held by the same justice, and if satisfied of any error of judgment no one would have been more prompt to correct it.

■ The duty of the court upon this application is very clear. I shall follow the decision of Mr. Justice Barnard, and if such decision be error the relators have a perfect remedy.

The application is denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People ex rel. Anna M. Hoffman, App’lt, v. The Board of Education of the City of New York et al., Resp’ts.

      (Court of Appeals,

      Filed January 16, 1894)

    Attorneys—Substitution.
    A motion for an order directing the former attorneys to turn over the papers in the case to the substituted attorneys is not properly made in the court of appeals, but should be made in the court below.

      Henry Schmitt, for motion; Nelson J. Waterbury and Nelson J. Waterbury, Jr., opposed.
   Per Curiam.

The relator retained attorneys in this proceeding, who appeared for her in the court below and who in her behalf appealed to this court from an adverse determination of the proceeding in that court. Subsequent to the appeal the relator’s attorneys, at her request, substituted another in their place. The attorney thus substituted, upon an affidavit that he had demanded from the former attorneys certain papers in the case which they had failed to deliver, has noticed a motion in this court for an order directing the former attorneys to deliver such papers to him. They have, in opposition to such motion, presented an affidavit in which one of them swears that he has in fact delivered to the relator personally all the material papers in the case which could be found in their possession, and that the only papers left are some unimportant ones, such as notices of argument and old stipulations to put over the case.

This would probably be a sufficient answer to the motion if it were properly here for us to decide. But upon an appeal to this court the record itself is not transmitted, and the case, for all general purposes, still remains in the court of original jurisdiction. A transcript only of the record is sent here. In all matters pertaining to the appeal itself, and to the proper hearing thereof, this court has jurisdiction, and also in regard to all applications which by statute may be made to this court after the taking of an appeal, but as to all other applications the case is regarded as still pending in the court of original jurisdiction, and such applications should be made to that court.

The motion is, therefore, denied, with ten dollars costs, with liberty to renew in the court below if relator should be so advised.

All concur.

Motion denied.


text:
    In the Matter of the Judicial Settlement of the Accounts of Sara N. Worthington et al., Executors, etc.

      (Court of Appeals,

      Filed January 16, 1894.)

    1. Executobs—Commissions.
    The commissions of an executor, until ascertained and liquidated at the times and in the manner authorized by law, are unassignable.
    3. Same—Pabty.
    Until such time, the assignee has no interest authorizing him to make a motion to open and amend a decree settling the accounts of the executors, or bring an appeal therefrom.
    Appeal by John A. Byron from order of the general term of the supreme court in the second judical department, made February 13, 1893, which affirmed an order of the surrogate of Westchester county, denying a motion to open and amend a decree, settling the' accounts of the executors and trustees under the will of Henry R Worthington, deceased.

      Alexander V. Campbell, for app’lt; William J. Jenue, for resp’t.

      Affirming 51 St. Rep., 555.

   Per Curiam.

This appeal has been taken from an order of the general term affirming an order of the surrogate refusing to open and modify a decree entered upon the final judicial settlement of the accounts of the surviving executors of the will of Henry R. Worthington, deceased.

The appellant claims no other interest in the estate of the decedent than that derived from an assignment by one of the executors of his commissions. This executor was subsequently declared a lunatic and removed for mental incapacity, and died before the remaining executors had rendered an account. The executrix of the removed and deceased executor was made a party to the accounting, and the surrogate rendered a decree in which it was, among other things, adjudged that the removed executor was not entitled to commissions because he took no part in the management of the estate, or in the making and keeping of the accounts of the executors. The appellant was not cited nor heard in this proceeding, and we think it is clear that he had no such vested title, either legal or equitable, to any share or interest in the assets or property df the estate to be distributed upon the accounting or affected by it, as conferred upon him the right to be made a party to the proceeding or to be heard upon the settlement and entry of the decree. It may be conceded that the assignment of the commissions was made for a good consideration and that the removed executor had actively participated for many years in the management and administration of the estate, and that his representatives were, therefore, entitled to some consideration upon the final allowance of commissions by the surrogate. The difficulty in the way of the appellant is of another kind. Until ascertained and liquidated at the times and in the manner authorized by law, the commissions are not subject to the executor’s disposal, but the right to them is inchoate, and upon grounds of public policy unassignable. There is no fundamental distinction in this-respect between public and private trusts, where the statute fixes the compensation and prescribes that it shall not become due and payable until the services have been rendered, or at stated periods during the term of service. It is well settled that a public officer cannot, during his official term, and before his salary or fees become due and payable, make a valid assignment of such salary or fees. Bliss v. Lawrence, 58 N. Y., 442; Bowery Nat. Bk. v. Wilson, 122 id., 478 ; 34 St. Rep., 43. It is believed that the efficiency of the service to bé rendered depends upon the enforcement of such a rule. If the emoluments of the office might be separated from it and transferred to another, it would leave the duties of the office as a barren charge to be borne by the incumbent. It is evident that transfers of this kind would not tend to promote activity and care in the discharge of official obligations. The same considerations forbid the recognition of an assignment by an executor of his commissions in advancement of the time prescribed by law for their adjustment. When the hope of compensation is gone, a strong incentive to diligence and zeal is wanting, and the temptation to be content with a lax or perfunctory administration of the trust becomes more persuasive.

As the appellant failed to establish a valid title to any interest in the estate of the decedent, we are not required to consider the other questions discussed upon the argument of the appeal.

The order of the general term must be affirmed, with costs.

All concur, except Bartlett, J., not sitting.

Order affirmed.


author: Finch, J.

text:
    Barclay Haviland, Resp’t, v. Martha T. Willets et al., App’lts.

      (Court of Appeals,

      Filed January 16, 1894.)

    1. Reformation—Fraud.
    Where there is a mistake of law on one side, and either positive fraud on the other, or inequitable, unfair or deceptive conduct, which tends to conceal the truth, it is the right and duty of equity to award relief, especially where the instrument is utterly without consideration.
    3. Same—Estoppel.
    A residuary legatee, who, in ignorance of his rights, gives a release of his interests under the residuary clause, and does not, after knowledge of the law and the facts, revoke the release, give any notice of change of intention, or make any complaint, is estopped from recovering back sums, paid out subsequently in the course of administering the estate, from the administrators or the persons to whom they were paid.

      Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made February 13, 1893, which denied a motion for a new trial and affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.
    This action was brought to set aside a release executed by plaintiff of his interest in the estate of Isaac B. Haviland, deceased, and for ^n accounting by the administrator with the will annexed of said" Haviland, and a determination of the amount due plaintiff as his legatee, heir-at-law and next of kin, and such, other and further relief as might be just and proper.
    The following is a copy of the release:
    “ Know all men by these presents, that whereas, Isaac E. Haviland, late of the town of Oyster Bay in the county of Queens and state of New Tork, departed this life in said town on the twenty-ninth day of November in the year 1885, leaving a last will and testament bearing date the fifteenth day of March in the year 1855, which was duly proved and admitted to probate by and before the surrogate of the county of Queens on the eighth day of December in the year 1885, and letters testamentary thereunder were on said last-mentioned day duly granted and issued by said surrogate to Stephen Taber, the sole surviving executor in said will named;
    “And, whereas, Barclay Haviland of Millbrook, in the county of Dutchess, is the sole heir-at-law and next of kin of the said Isaac B. Haviland, deceased;
    “And, whereas, the said testator in and by said will, did, after making certain bequests therein set forth, including a legacy of two thousand dollars to the said Barclay Haviland, devise and bequeath the rest, residue and remainder of his estate, real and personal, to his nephews, Stephen Taber and Samuel T. Taber, in equal shares;
    “ And, whereas, the said Samuel T. Taber died in the lifetime of said testator, leaving him surviving two children, Martha T. Willets and S. Phebe Taber Willets, his only issue;
    “And, whereas, the greater part of the estate and property owned by the said Isaac B. Haviland at the time of making said will, came to him on the part of his wife, Ruth Titus Haviland, who was related by blood to the said Stephen Taber and the said Samuel T. Taber, and it was the intention of the said testator in making his said will to devise and bequeath to the said Stephen Taber and Samuel T. Taber that part of his estate which so came to him from his' said wife, with such further increase and accumulations thereof as might accrue and come to his hands ;
    “And, whereas, it is the desire and intention of the said Barclay Haviland to carry into effect in all respects the intentions of said Isaac B. Haviland, as above recited, and which are well known to him to bé as aforesaid, and to waive, relinquish and give up any and all right, title and interest which he in ay have acquired in the estate, real and personal of said deceased as such heir at law and next of kin by reason of the death of the said Samuel T. Taber, as aforesaid, to the end that the said surviving children of the said Samuel T. Taber may in all respects receive the same estate, rights and interests in the estate of said testator as they otherwise might have, had they been named as substituted residuary devisees and legatees in said will in the place and stead of their said father in the event of their said father dying in the lifetime of the said testator;
    “ And, whereas, an appraisement of all the estate, real ánd personal, whereof the said Isaac E. Haviland died seized or possessed, has been made by the said Stephen Taber and submitted to and accepted by the said Barclay Haviland, and has been mutually agreed upon by and between the parties hereto, to be for the purposes of this instrument and the settlement of the estate of said testator, the sum of one hundred and ninety thousand dollars ;
    “ And, whereas, it has been determined by the said Barclay Haviland, and agreed by and between him and the said Stephen Taber, individually, and as executor as aforesaid, that the said Barclay Haviland shall take and receive one-tenth part of the said estate, real and personal, at the valuation and appraisement aforesaid, subject, however, to the payment of the general and specific legacies given by said will (excepting the legacy therein given to said Barclay), the commission of said executor, and the expenses attending the administration of said estate, in full for his rights and interest in said estate; and that the residue of said estate, subject to the payments and deductions aforesaid, shall be divided and distributed as follows : One-half thereof to the said Stephen Taber, and one-quarter thereof to each of the said Martha T. Willetts and S. P. Taber Willets, to be received and held by them absolutely as their own property, free from any and all claim of the said Barclay Haviland, his heirs, executors or administrators thereto;
    “And, whereas, the said Barclay Haviland is about to grant, release and convey to the said Stephen Taber, by deeds of conveyance bearing even date herewith, all his right, title and interest of, in .and to any and all real estate whereof the said Isaac E. Haviland died seized, possessed or entitled to, and to release and convey to the said Stephen Taber, as executor as aforesaid, all hi's, said Barclay Haviland’s right, title and interest in and to all of the personal property and estate whereof the said Isaac E. Haviland died possessed and entitled to, saving and reserving only to the said Barclay Haviland the said one-tenth part of said estate at the agreed valuation and appraisement above recited, and subject to the payments and deduction from said estate hereinabove referred to, to the end that the said residue of said estate of said testator, real and personal, then remaining shall be divided and distributed among the said Stephen Taber and Martha T. Willets in the manner and in the proportions aforesaid, which division and distribution among such last named persons the said Barclay Haviland hereby requests and directs the said Stepen Taber to make, both individually and as such executor shall and will make, but only upon such request and direction and upon the faith of this instrument, the statements herein recited and such request and direction ;
    “ And, whereas, the said Stephen Taber, as such executor, in part performance of the agreement and understanding above recited and- set forth, has this day paid and transferred to the said Barclay Haviland the cash and securities, and the said Barclay Haviland has accepted the sum of eighteen thousand dollars as part of the said one-tenth pa^t of the estate of the said Isaac E. Haviland, deceased, and the said Stephen Taber, individually and as such executor, has agreed to account for and pay over to the said Barclay Haviland the balance or remainder of such one-tenth part, subject to the deduction and payments aforesaid, upon or before the final division and distribution of such estate to be made as aforesaid between the said Stephen Taber and the said Martha T. Willets and S. Phebe Taber Willets;
    “Now, therefore, this instrument witnesseth, that the said Barclay Haviland, in consideration of the above recited premises and of the sum of one dollar to him in hand paid by the said Stephen Taber, individually and as executor of the last will and testament of Isaac E. Haviland, deceased, the receipt whereof is hereby acknowledged, has remised, released, assigned and transferred, and by these presents doth for himself his heirs, executors and administrators, remise, release, assign and transfer to the said Stephen Taber, as such executor as aforesaid, all right, title and interest, claim and demand of the said Barclay Haviland of, in and to any and all of the personal property and estate whereof the said Isaac E. Haviland died possessed or in any way entitled to, of what nature or kind, wheresoever situated, to have and to hold the same unto the said Stephen Taber, as such executor, and his successors, for the purpose of distribution between himself and the said Martha T. Willets and S. Phebe Taber Willets in manner and form hereinabove recited and set forth.

      “ And for the consideration aforesaid the said Barclay Haviland hath remised, released and forever discharged, and by these presents doth remise, release and forever discharge, the said Stephen Taber, both individually and as such executor, his heirs, executors, administrators and successors, of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues and sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, premises, variances, trespasses, damages, judgments, extents, executions, claims and demands whatsoever, in law or in equity, which, against the said Stephen Taber, either individually or as such executor, the said Barclay Haviland ever had, now has, or which his heirs, executors or administrators hereafter can, shall or may have, for, upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these presents, and particularly arising and growing out of the estate, real and personal, or either, whereof the said Isaac E. Haviland died seized or possessed or entitled to, and the administration, settlement, disposition and distribution of said estate, real and personal, or either, saving and reserving, however, only to said Barclay Haviland, his executors or administrators, the balance remaining due or unpaid to him of the said one-tenth part of said estate at the appraisement and valuation aforesaid, subject to the payment from said estate of the general and specific legacies and commissions of said executor and the expenses of administration as aforesaid, and which balance so remaining of said one-tenth part of said estate, subject as aforesaid, the said Stephen Taber, individually and as such executor, hereby agrees to account for and pay over to the said Barclay Haviland.
    “In witness whereof the parties hereto have hereunto set their hands and seals this eighteenth day of March, in the year one thousand eight hundred and eighty six.
    “Barclay Haviland. [l. s.]
    “ Stephen Taber,
    “ Individually and as JSxecutor. [l. S.]”
    The material facts are stated in the opinion.
    . John JR. MacArthur and William II. Arnoux, for app’lts; Guy C H Corliss, for resp’t.

       Reversing 51 St. Rep., 747.

   Finch, J.

The instrument which equity is asked to cancel and set aside as the deserved relief in this action is a long document, carefully and thoughtfully prepared, loaded with estoppels as the product of numerous recitals, and revealing everything essential to the intelligent action of the plaintiff, except the one single truth which was the most vital of all. That was left to a possible inference, which, it is true, a man of ordinary ability ought to have drawn, which this plaintiff, if attentive and not negligent, might have easily drawn, but which according to his evidence and the findings of the trial court, utterly escaped his observation. We are required, therefore, to assume, however doubtful the proposition may seem to any of us to be, that he signed the agreement in ignorance of his actual rights, and through a mistake either of law or of fact The circumstances surrounding his action are somewhat unusual, and while in the main undisputed, are yet in many directions open to doubts and conflicting inferences which for us must be solved by the findings.

Isaac E. Haviland married Ruth Titus in 1825. At that time he was worth but a small amount, while his wife had property of her own valued at about thirty-six thousand dollárs. Ho children were born of the marriage, and in 1850 the wife died, leaving a will by which she gave all her property to her husband. It is a natural supposition that the gift may have been the subject of consideration between the two before that will was made, and that the wife, preferring her husband to the total exclusion of her kindred, may have expressed some wish that-in the end it should go back to them. At all events a conviction of the justice and propriety of such a result became firmly fixed in the mind of the husband, for after his wife’s death he explained to his father and his brother, who is the present plaintiff, his intention to give substantially the property which came from his wife to her relatives, and made his will in 1855 upon that basis. At such date he was worth about forty thousand dollars, of which he gave to his father $2,000, and to this plaintiff also $2,000, and beyond a few small legacies, bequeathed the entire residue to his wife’s two nephews, Stephen Taber and Samuel Taber. Within a few years thereafter the testator became insane. In 1860 Samuel Taber was appointed committee of his estate, but himself died while the lunatic was living, so that the share bequeathed to him in the will of Isaac lapsed and became undisposed of by that instrument. Samuel left two daughters, Martha Willetts and Phebe Willetts, who were his sole heirs and next of kin, and who are made parties defendant in this action. Upon the death of Samuel Taber the care of the lunatic’s property was given to Stephen as committee, and he so managed the estate that it increased from forty thousand dollars to almost one hundred and eighty thousand dollars during the life of the testator. How this increase was accomplished we do not know, but even if favored by fortunate changes of values, it either arose from the care and judgment of the wife’s relatives, or from a proportionate increase in the value of the property which came from her. In 1863 the testator’s father died, and in 1885 the testator himself died, leaving his brother, Barclay Haviland, his sole heir-at-law and next of kin, and as such entitled to take the whole of the legacy to Samuel which lapsed by his death during the life of the testator, and upon that ownership Barclay stands as plaintiff in this action.

Soon after the funeral the plaintiff, accompanied by his daughter, Mrs. Otis, went with Stephen Taber to the trust company in whose custody the will had been placed and there read it. Stephen Taber by its terms had become the sole surviving executor. He was a man of conceded business ability, and had been the committee of the deceased, becoming thereby fully acquainted with the situation and amount of all his property. He naturally represented the wife’s kindred, of whom he was one, but as executor owed the duty of impartial justice to the legatees as between each other whenever his conduct necessarily affected their relative rights. The plaintiff is described as an “ old farmer,” and so entitled to some degree of judicial sympathy. His age was seventy-three; in his own right he was poor; but nothing indicates that he possessed less than the average ability of the farming population, which it is not necessary to underrate. For the trouble which arose did not so originate, but sprang from unfamiliarity with legal doctrines and legal rules which in the beginning equally misled both parties. It is not at all doubtful that at the reading of the will both Barclay and Stephen mistakenly supposed that the one-half of the residue bequeathed to Samuel passed to his two daughters, and neither suspected that in truth the whole of it, amounting to almost $80,000, was the absolute property of the plaintiff by reason of the lapse which had occurred. At that time, in the course of the conversation relating to the will, Stephen said that Samuel’s share would go to his children and they would represent him. That was the belief of all parties honestly indulged, and its confirmation by Stephen, speaking of it as a matter of course, tended necessarily to prevent any doubt on the subject from entering the mind of the plaintiff. From, that time on the mistake operated upon and to some extent controlled his action. Stephen, however, was quick to see how the great increase in the value of the propei'ty had made the testator’s scheme of distribution quite inequitable relatively to his known and declared intentions. Some part of the increase was the product of that portion of the estate for which the testator was not indebted to the bounty of his wife, and if his insanity had not intervened, he himself probably would have changed the will so as to meet the changed conditions. The will was not yet proved. How early insanity began might become a troublesome question ; and both prudence and justice dictated to Stephen a distribution more favorable to plaintiff, and he accordingly proposed that since at the date of the will nine-tenths of Isaac’s property had come from his wife and one-tenth only from his own effort, the increase should be called $150,000, and that should be divided in the same proportions. This proposal gave to the plaintiff $15,000, and adding to that, as was promised, the two legacies to his father and himself, made him the possessor of $19,000, which for him was a. fortune. He did not at the time make any answer. Why he did not accept at once is possibly explainable upon the theory that he desired a more liberal division and hoped to get a better one if he should be slow in its acceptance, but whatever he obtained beyond his legacy he looked upon as bounty bestowed upon equitable considerations, and did not suspect for a moment that he was legally entitled as his own" to all that was offered and three times as much in addition.

The mistake common to both soon became the mistake only of one. The findings show that the executor knew the legal consequences of the death of Samuel when the final arrangement was made, but do not determine at what precise time he obtained that knowledge. It appears, however, that he took the will to his counsel, Judge Grarretson, for probate; and the latter says that he expressed to Stephen an opinion that the legacy lapsed; that the latter was surprised and doubtful, and requested that the question should be examined; that such an examination was made and the result communicated to Stephen. The will was probated on December 8th, and it was more than three months thereafter before the parties met to resume a discussion of the ultimate distribution. We cannot escape-the belief that at some time during this interval, and probably in its early days, Stephen knew the truth from-the counsel he had employed. Having this knowledge, the executor sent for Barclay. Instead of disclosing the very grave mistake which both had made, he drew a paper on the lines of his original propositions, but which contained no statement of the facts, made no revelation of the existing and vital mistake, left Barclay still in the dark, and was devoted solely to the-desired distribution. To that the executor obtained plaintiff’s signature, and, not yet contented, took him to his coynsel to have the-agreement firmly riveted by a more formal paper.

What followed furnishes the appellants with the facts upon which they ground their principal argument. They say that Barclay came into court with a falsehood in his mouth ; that in his complaint he alleged that the paper which he signed was described to him as a mere receipt; that he did not read it, but signed it in reliance upon that statement; whereas in truth it was correctly read to him, and he was furnished with a copy to enable him to follow the reading, and was permitted to keep that copy in his own possession. So' much is true, and the court basso found. It tends to discredit Barclay and requires that we accept his statements with some degree of caution. It is then added that the release as read to him recites the death of Samuel in the testator’s lifetime; the consequent lapse of the legacy to him; the position of Barclay as sole heir and next of kin of the deceased ; that it then in terms releases and gives up any right which has resulted to the plaintiff; that so it put him on his guard and warned him at least that he was parting with a possible right, and raised the duty of inquiry; that, beyond that, Grarretson told him that by the lapse he, as heir and next of kin, was vested with the ownership of Samuel’s legacy; and that the plaintiff without denying the fact answers only that he did not hear the statement; and so his claim of ignorance is improbable and unworthy of belief, and should not be allowed. The argument is quite strong, but fails of being conclusive because it does not take into account the point of view from which Barclay was all the time observing the proceedings and his mental attitude towards what was transpiring before him. He was inattentive and even negligent, but it was because he thought money was being given to him, that he was parting with nothing, that no diligence on his side was needed, and that all the precautions were required for the executor and to protect him in the arrangement. Bearing that in mind, we can see how Barclay could' have run the gauntlet of the long recitals and of the counsel’s legal opinion, without having his pre-conceived and settled notion of the situation shaken or dislodged. There is thus raised a question of fact, and we ought not, therefore, to dispute the finding that Barclay did not know his legal rights when he signed the release and the executor did.

Upon this state of facts it was competent for equity to cancel and set aside the release. I have narrated the details at some length in order that the basis of that conclusion may be clearly seen, and its doctrine may not be misinterpreted. Assuming, as counsel for the appellants contends, that Barclay’s mistake was one of law, and that the general rule excludes equitable relief for such a mistake, when it is one of law pure and simple, and no other elements are present, it is still obvious that the doctrine does not cover the entire array of facts here disclosed. It is equally well settled that where there is a mistake of law on one side, and either positive fraud on the other, or inequitable, unfair and deceptive conduct, which tends to confirm the mistake and conceal the truth, it is the right and duty of equity to award relief. All the cases which deny a remedy for mere mistake of law on one side are careful to add the. qualification that there must be no im proper conduct on the other. Stillman v. Wing, 7 Hill, 159; Flynn v. Hurd, 118 N. Y., 26; 27 St. Rep., 744; Vanderbeck v. City of Rochester, 122 N. Y., 285; 33 St. Rep., 381. There was in this case evidence of a studious concealment of the precise point essential to the free and intelligent action of the plaintiff by the executor, in whose position and ability some confidence was reposed. No effort or suggestion was made by Stephen to rectify the mistake under which Barclay was acting, and even the statement of his counsel, made at the last minute, occurred after Barclay was already bound, was directed to Stephen and not to the plaintiff, and was couched in legal terms, which the latter might not have apprehended even if he had heard them. And that he remained mistaken to the end is indicated by the fact that just before the release was read Barclay asked Stephen to intercede with Martha and Phebe to procure him a larger share, to which Stephen answered merely, “ We will see about that.” Sothatupon the facts there is evidence to support the finding of Barclay’s mistake and the legal conclusion founded thereon. Much more should the rule we have asserted apply in a case where the release is utterly without consideration, and where its true. legal effect is simply an authority by Barclay to Stephen to give away the former’s property through ignorance on his part of his ownership.

But while we follow the courts below thus far, we cannot approve of the relief awarded to its full extent, and that for reasons which originate in Barclay’s conduct after the execution of the agreement. Under it Stephen paid over to Barclay eighteen thousand dollars, and to Phebe Willets one thousand dollars, but died in April, 1886, without making further payments. Two days after his death the plaintiff was fully apprised by his own selected counsel of his entire legal rights, and no longer labored under any mistake either of fact or of law. Nevertheless, for more than three years thereafter, he remained utterly silent, never in any manner revoking the authority which he had given, knowing that the estate was being administered in accordance with it, and making no complaint of mistake or wrong, and giving no notice of any change in purpose or intention. After Stephen’s death, Thomas Taber and Martha Willets were appointed administrators with the will annexed, and paid over large sums, in pursuance of the agreement, to the two daughters of Samuel, without even an intimation from plaintiff of any objection or disapproval, and after Barclay had obtained a full knowledge of all his rights. There seems to be a disagreement between the court and the defendants’ counsel as to the amount so paid, but whatever it be, we are of opinion that the plaintiff is estopped from recovering back either from the administrators or from the persons to whom the payments were made, all sums paid after Barclay knew his rights, which he himself fixes as two days after Stephen’s death, and covers all the payments made by the administrators. The agreement was his specific direction to those who were administering the estate to make the payments which they did make; if he intended not to be bound it was his duty to speak, and he had full opportunity to do so: silence misled to their harm both the administrators and the supposed legatees; the former made and the latter accepted the money as rightfully payable and due, and the one incurred risk and the other may have spent the money or changed modes of life in consequence, and certainly thereby incurred an unknown and unsuspected obligation, if required to return the fund. Under such circumstances the plaintiff is estopped from a recovery. The moment he learned his real rights it was his duty to speak, he had full opportunity to speak, and he knew that his silence would necessarily mislead the other parties to their harm. Erie Co. Sav. Bk. v. Roop, 48 N. Y., 298 ; Blair v. Wait, 69 id., 113; Viele v. Judson, 82 id., 32; The Queen v. Lords of the Treasury, 16 Q. B., 357; Brisbane v. Dacres, 5 Taunt., 144. Indeed, if the case should be reduced down to its simplest elements, and treated from the moment in which Barclay knew his rights on the basis of a mere gift which he had authorized the representatives of the estate to make out of his own share, he could not recover back from the donees the gift so far as executed. It cannot be that a gift voluntarily made, without mistake or fraud, can be at will recovered back; and from the day when Barclay knew that the lapsed share was his, every payment made to Samuel’s daughters was his payment because made by his direction and authority, with full knowledge of both law and facts, and by the assent of his silence during more than three years. We have been unable to see any ground on which the payments made after Stephen’s death can be re-claimed. But the judgment covered the whole lapsed legacy, and possibly would have even invaded Stephen’s rightful share. The case must go back for a re-trial. The plaintiff may then have judgment for the cancellation of the release, so far as lawful payments have not been made under it, and for so much of the residuary share bequeathed to Samuel as, on an accounting, is shown to be its amount, less the amount paid to plaintiff over and above his legacy, and less also the sums which have been paid before the commencement of this action to Martha and Phebe Willets by the administrators. The balance of the lapsed share remaining after those deductions is all that the plaintiff will be entitled to recover.

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

Judgment reversed.

All concur, except Bartlett, J., not sitting.


author: Haul, J.

text:
    Alfred A. Blair et al., Resp’ts, v. James A. Flack, as Sheriff, etc., App’lt.

      (Court of Appeals,

      Filed January 16, 1894.)

    1. Appeal—First instahce.
    A point, not taken on the trial, cannot be raised on appeal.

      '£. Same.
    A defense, not set up in the answer or alluded to on the trial, is not available on appeal.

      3. Evidence—Documentary.
    A copy of an affidavit purporting to have been made by defendant, where the original, in an action by a third party against him, was presented in court and used by his attorney as an original, genuine paper, is not inadmissible on the ground that there is no proof that the defendant signed the original. •
    4. Former adjudication—Parties.
    Persons not parties to an action are not bound by the judgment therein.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made December 6,1892, which affirmed a judgment in favor of plaintiffs entered upon a Verdict, and also affirmed an order which denied a motion for a new trial.
    This action was brought against defendant, as sheriff of the city and county of Mew York, to recover the amount of a check given by one Horace J. Adams to take the place of certain property levied upon by defendant by virtue of an attachment obtained in an action brought by plaintiffs against the Illustrated Mews Company.
    The facts, so far as material, are set forth in the opinion.

      Abram Kling, for app’lt; Herbert T. Keteham, for resp’t.

       Affirming 50 St. Rep., 479.

   Haul, J.

The plaintiffs obtained an attachment against the property of the Illustrated Mews Company, which was placed in the hands of the defendant as sheriff, and he, by virtue thereof, levied upon certain property as belonging to the news company. Mr. Adams claimed that the property belonged to him, and by an arrangement between him, Mr. Costa, a clerk of one of the sheriff’s deputies and the attorney of the plaintiffs, he, Adams, gave a check to Costa to take the place of the property attached, and that property was then delivered to Adams and disposed of by him. The sheriff drew the money on the check, and Adams, claiming that the property attached belonged to him, and that the check simply took the place of it, commenced an action against the sheriff to recover the money, and he recovered judgment, which was paid by the sheriff. These plaintiffs were not parties to that action, and, therefore, were not bound by the judgment recovered therein. After the plaintiffs had recovered judgment in the action in which the attachment was issued, and had failed to collect the amount thereon, they commenced this action against the sheriff, claiming that the check was depositied by Adams as absolute security for the payment of any judgment they should recover. Upon the-trial they gave evidence tending to establish their claim that the check was deposited for the purpose alleged by them, and Costa and Adams testified on behalf of the defendant that it was deposited simply to take the place of and to stand for thfe property attached. The trial judge charged the jury that if the arrangement as to the check was as claimed by the plaintiffs they were entitled to recover; but that if it was as claimed by the defendant he was entitled to their verdict. The charge was not complained of or excepted to, and the jury rendered a verdict in fa.vor of the plaintiffs.

The defendant upon this appeal alleges several errors, for which he claims the judgment should be reversed:

1. It is claimed that the sheriff was not liable for the contract made by Costa, a clerk in the employment of a deputy sheriff, who was not known to the sheriff, and was in no way authorized to represent him. The answer to this is that no such point was taken upon the trial. It could have been raised by exception to the charge to the jury, or by request to charge; but if it was not, and it was not mentioned as one of the grounds for a nonsuit. There was absolutely no claim upon the trial that Costa was not authorized to represent and bind the sheriff by the arrangement he made as to the property attached; While the plaintiffs’ attorney was under examination as a witness, and was testifying as to the arrangement as to the attached property and the check made between him, Costa and Adams, he asked: “ Will you state what conversation took place at that time ? The counsel for the defendant then said: “ To preserve oiir rights we object to the declaration of Costa against the defendant.” The judge overruled the objection, saying: “ Under the declaration of counsel that it will be connected I will allow it to be given.” And the witness then testified to the arrangement made by Costa acting for the sheriff. Evidence was subsequently given tending to show Costa’s authority, and the recognition of that authority by the sheriff, and the objection to his evidence was in no way subsequently renewed. In the subsequent stages of the trial, we think it was assumed that Costa was authorized to act for and bind the sheriff, and, as a witness for the defendant, he did not deny his authority.

2. The plaintiffs put in evidence what they claimed to be a copy of an affidavit made by the sheriff and used by his attorney in the action of Adams against him. It is now objected that there was no proof that the sheriff signed the original affidavit It was presented in court and used by the sheriff’s attorney as an original, genuine paper, and for reasons more fully stated in the prevailing opinions in the court below, we think the evidence was sufficient to authorize the introduction of the copy in evidence.

3. It is contended on behalf of the defendant that the trial judge erred in excluding the judgment roll in the action of Adams against the sheriff. The plaintiffs were not parties to that action, and were not bound by the judgment rendered therein. The precise statements contained in the judgment roll were not important or material. The defendant had the benefit of the proof that Adams claimed the proceeds of the check in that action and recovered the same. If the plaintiffs established that the check was deposited for their security as claimed by them, then the sheriff was_ bound to keep it for them, and if he delivered the property attached to Adams under an arrangement so loose and uncertain that he could not defend the check or its proceeds against him, that was his misfortune, and Adams’ recovery against him furnished no defense to this action. If the check was deposited under the arrangement claimed by the sheriff, then, even if the money remained in his hands, the plaintiff would not be entitied under the arrangement to receive it. So in any' event the judgment roll was immaterial. But, as before stated, the defendant had the full benefit of the recovery by Adams in that action.

The defendant further claims that he was bailee of the check and its proceeds, and that he should have been permitted in defense of this action to show that the true owner of the property had taken it from him by legal process. The answer to this is that no such defense was alleged in the answer, or claimed or even alluded to upon the trial.

We have now noticed all the points made by the defendant against the plaintiffs’ recovery, and while we fear that injustice has been done to him by the verdict of the jury, we find no legal error upon which a reversal of the judgment could be based.

The judgment must, therefore, be affirmed.

All concur, except Bartlett, J., not sitting.


author: Earl, J.

text:
    Stephen D. Simonson, as Sole Surviving Executor, etc., Resp’t, v. The New York Insurance Company, App’lt.

      (Court of Appeals,

      Filed January 16, 1894.)

    Corporation—Officer.
    Where the salary of the president of a corporation is fixed at a certain amount, the presumption is that a person, acting as such, serves for the salary attached to the office upon an understanding between him and the corporation, but such presumption, though conclusive if not rebutted, is merely prima facie and rebuttable by facts and circumstances.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order made May 9, 1892, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.
    The nature of the action and the facts, so far as material, are set forth in the opinion.

      Wheeler H. PecJcham, for app’lt; Sidney T. Bawson, for resp’t.

      Revising 46 St. Rep., 962.

   Earl, J.

John W. Simonson died December 28,1882, leaving a will in which his widow and the plaintiff, his son, were appointed executors. The widow died April 23, 1883. On the 31st day of March, 1884, the plaintiff commenced this action to recover the salary of the testator as president of the defendant at the rate of $5,000 per annum, from the 31st day of October, 1881, to the time of his death, and the plaintiff has recovered judgment as claimed in his complaint. The question for our determination is whether there is any evidence in this record upon which the recovery can legally stand. We think there is not.

On the 10th day of January, 1881, at a meeting of the directors of the defendant, the salary of its president was fixed at $5,000, and its secretary at $2,500, per annum. Prior • and subsequent thereto to the time of his death the testator was the president of the defendant and acted as such ; and if there were nothing else the plaintiff would be entitled to recovery the salary as claimed. The presumption would be that the testator served as president for the salary attached to the office, and that such was the understanding between him and the defendant. But that is merely a prima facie presumption which is conclusive if not rebutted, but rebuttable by facts and circumstances put in evidence. It is not sufficient as the basis of a claim for the salary when it is entirely inconsistent with all the other aspects of the case as conclusively proved.

How, what are the other facts? The testator was the principal manager as well as president of the defendant prior to September 27, 1881, and some time before that date, on its behalf, he entered into negotiations with the Standard Fire Office, Limited, of England, for a transfer of all its business and risks to that company, and on that date the two companies entered into an agreement, in substance as follows: After reciting that the Standard company was desirious of acquiring and purchasing the business and good will of the Hew York city company, and that the Hew York city company was desirious of re-insuring its risks and withdrawing from business, the Standard company agreed to re-insure all the risks of the Hew York city company which should be in force October 1,1881, at 12 o’clock noon, and to that end to use its best endeavors to substitute its policies in place of the policies of the Hew York city company, and to cancel and discharge the surrendered policies. The Hew York city company agreed to continue active business until October 1, 1881, at noon, and thereafter, at the risk, expense and for the account of the Standard company, until such time as the Standard company should have become authorized to transact business in the different states in which the Hew York city company had agencies. It was further agreed that the agents that should be appointed by the Standard company, whether they were those then acting for the Hew York city company or not, should be required to use their best efforts to obtain the surrender of the outstanding policies of the Hew York city company, and that if, notwithstanding every exertion so made, it should happen that persons holding such policies should refuse or neglect to make such surrender or exchange within one year from that date, then the Standard company was to use its best endeavors to cancel such policies by paying the holders thereof the return premiums as provided in the policies, and the Hew York city company agreed to turn over all its business to the Standard company on the 1st day of October, 1881, at noon, all losses sustained under the policies by the Hew York city company, and expenses up to October 1, 1881, at noon, to be paid and discharged by the Hew York city company. It was further agreed that the Standard company would assume and the Hew York city company would assign the lease of the premises occupied by it for its offices. This agreement alone, if there were nothing else, would present very strong evidence that the salary of the testator as president was not to survive beyond the month of October, 1881. The defendant transferred all its business to the Standard company and was to go out of business. Can it be presumed that the salary of the testator, fixed for an active, going company, was thereafter to continue? Such a presumption would be against all experience. But there are other facts. On the same 27th day of September, the testator, by a written agreement, entered into the employment of the Standard company as its resident manager in the United States, at a salary of $7,500 per annum and a commission of ten per cent, upon the profits of the business under his charge, and he agreed to devote his entire time and energies to the services of the Standard company, unless specially authorized by letter from the general manager for the time being to undertake any other duties, and to carry on its business with energy and vigor, and to use all lawful means to transfer the business of the New York city company to the Standard company. So, not only did the defendant transfer all its business to the Standard company, but the testator entered into the service of that company, agreeing to give it his whole time and all his energies, and he was to receive a salary larger by $2,500 per annum, besides the commissions, than he had been receiving from the defendant. Can it be presumed that his salary as president of the defendant was to continue, and that such was the understanding between him and the defendant, and that thus he was to have two salaries amounting to $12,500 per annum, besides the commissions ? We think the plaintiff should have given some proof that after the testator entered into the service of the Standard company, which succeeded to all the business of the defendant, it was understood between him and the defendant that his salary of $5,000 was to continue.

But there are still other facts. Prior to October 1, 1881, the testator signed the monthly checks for his salary and the salaries of the secretary and other employees in the office of the defendant, and he signed a check for his salary for the month of October, 1881. Never after that did he sign or request any check for his salary or make any claim for salary, although he signed the monthly checks for the salaries of the secretary and other clerks of the defendant. He drew his salary for the month of October probably because he had entered upon the business of that month before the transfer to the Standard company was fully accomplished. It is thus clear that he did not understand that he was entitled to any salary after October from the defendant; and this is made still plainer by another circumstance. At a regular meeting of the directors.of the defendant in February, 1882, he proposed that the secretary, after the first day of May, following, be employed by both companies, and that his salary of $2,500 be paid, $1,500 by the Standard company and $1,000 by the defendant until it was wound up. The salary of the secretary of the defendant was fixed at $2,500 at the same time the salary of its president was fixed at $5,000. If it was then understood that the salary of the testator, as president of the defendant, was still continued at $5,000, then was the time to deal with it, and it undoubtedly would have been dealt with in some way.

ít is also a significant fact that ‘no claim for this salary was made even in the lifetime of the widow of the testator, and that it was first claimed in July, 1883.

Upon the trial the plaintiff, as a witness on his own behalf, gave some evidence tending to show the rendition of some services by the testator as president of the defendant from October 31st, 1881, to the time of his death, and that he had express permission of the Standard company to act as president of the defendant. These services were largely of a formal character and such as he was bound to render under his contract with the Standard company. They were not to interfere, and did not interfere, with the services due to the Standard company under his contract with it. Whatever these services were, for reasons we have given, we do not think that they were rendered under any contract or understanding between him and the defendant that he was to be compensated for them by the salary now claimed.

This is not a case of conflicting evidence or of doubtful inferences. The whole evidence, fairly considered, disproved the claim of the plaintiff, and there was nothing for the consideration of the jury.

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

Judgment reversed.

All concur, except Beckham, J., not voting, and Bartlett, J., not sitting.