text:
    JOHN N. BOUGHTON, Executor, etc., of DAVID FLINT, Deceased, and others, Appellants, v. MARY FLINT, Executrix, etc., Respondent.

      Surrogate — jurisdiction of, ovei'disputed claims.

    A surrogate has no jurisdiction upon a final accounting to hear and determine the validity of a disputed claim against the estate of a deceased person.
    Where, upon a final accounting, the executrix presents an account in which is contained an item for money paid by her to a creditor, in settlement of a claim against the estate, which item is objected to and attacked by her co-executor and by the other persons interested in the estate, .the surrogate has no jurisdiction to determine as to the validity of the same, or to refer the same to an auditor. (Per Smith, J.)
    Appeal from a decree of the surrogate of Erie county, ou the final settlement of the accounts of Mary Flint, executrix, and John N. Bougbton, executor, of tbe last will and testament of Daniel Flint, deceased.

      L. P. & E. B. Perhvns and Thos. Gortell, for tbe appellants.

      Jacob Stern and T. Q. Beecher, for tbe respondent.
   Smith, J.:

On tbe accounting before tbe surrogate, tbe respondent and executrix, Mary Flint, presented a claim against tbe estate of tbe testator, in ber own behalf, to tbe amount of $800, with interest from April 15, 1859, for moneys alleged to have been placed in tbe bands of tbe testator, on deposit for tbe said respondent, who was tbe testator’s wife. She also claimed .to be credited in ber account as executrix, with tbe sum of $l,/T56-$y°-tr, alleged to have been paid by her in full of a promissory note of tbe testator, held, at tbe time of bis death, by Mary Brown, who, as appeared from tbe evidence, was tbe mother of Mrs. Flint. These claims were allowed by tbe surrogate, after having been contested by Mr. Bougbton, tbe executor and tbe other parties, who now appeal. Tbe claim for tbe alleged deposit was beard before tbe surrogate. Tbe claim for tbe alleged payment to the creditor, Mrs. Brown, was referred by tbe surrogate to an auditor, who reported, in favor of the executrix, and his report was confirmed by tbe surrogate.

After some controversy in tbe courts on the subject, it seems now to be settled tbat a surrogate has not jurisdiction upon a final accounting to bear and determine tbe validity of a disputed claim against tbe estate of a deceased person. Tbe Court of Appeals is understood to have so held in the case of Tucker v. Tucker (4 Abb. Ct. App. Dec., 428; S. C., 4 Keyes, 136; see, also, The Matter of the Estate of John Shaw, 1 Tucker, 352, and the cases there cited in the opinion of the surrogate of New York; Shakespeare v. Markham, 10 Hun, 311; Magee v. Vedder, 6 Barb., 352; Wilson v. The Baptist Education Society, 10 id., 308; Disosway v. The Bank of Washington, 24 id., 60; Curtis v. Stilwell, 32 id., 354.) The debts and claims against the estate, which the surrogate is authorized to settle and determine (2 R. S., 95, § 71), are those only which are undisputed. (Id.) The question whether the surrogate bad jurisdiction of the claim presented by the executrix as such, for money paid for her, upon the demand of the creditor, Mrs. Brown, which was disjauted by Boughton, the co-executor, is not so clear. Had the claim been disputed by both executors on being presented by the creditor, the surrogate would not have had jurisdiction to try it. Does tbe fact tbat the claim was admitted and paid by one of the executors, without the consent and knowledge of tbe other (he objecting to the claim and disputing it, when informed of it), confer jurisdiction upon the surrogate to investigate, settle and allow it, as a charge in favor of the executor so paying, on the final account; it being then contested by the co-executor, and by some of the parties entitled to distribution.

I am not aware of any case in which the precise question has been considered. The presentation of a claim against the estate to one of several executors, or administrators, is undoubtedly sufficient on the part of the creditor, without presenting it to the others. (Knapp v. Curtiss, 6 Hill, 388, per Bronson, J.) And one of several executors or administrators may pay claims presented against the estate, without the knowledge and concurrence, and even against the will of his co-executor or co-administrator. The general rule is, tbat several co-administrators or co-executors are. in law. but oue person representing the testator, and acts done by one in reference to the delivery, sale, gift or release of the testator’s goods, are deemed the acts of all. (Murray v. Blatchford, 1 Wend., 583; Wheeler v. Wheeler, 9 Cow., 34; Stuyvesant v. Hall, 2 Barb. Ch., 151; Jackson v. Robinson, 4 Wend., 136.) But one administrator or executor acting without the concurrence of his associates, so acts at his peril, and if he pays a claim that is not a valid obligation against the estate, or if he pays more than is due, or to become due, he does it at the risk of being adjudged guilty of a devastavit, and of being obliged to account for what he has improperly paid out. (Murray v. Blatchford, supra) That there are cases in which the person entitled to the personal estate may be relieved against the acts of the executor, and a debtor or creditor, is shown by numerous authorities, some of which are cited by Emott, Circuit Judge, sitting for the Chancellor, in Murray v. Blatchford (supra). Among them is the case of Alsager v. Johnson (4 Ves., 217; Alsager v. Rowley, 6 id., 718), in which it appeared that an action at 'law was commenced against executors by an alleged creditor of the testator, the residuary legatees applied to the executors to be permitted to defend, which was refused, a verdict was had, and under it the prothonotory awarded a large sum as due. The legatees filed their bill against the plaintiff in the action, and the executors, impeaching the demand and charging collusion, the legatees were relieved, although there does not appear to have been proof of a fraudulent collusion. Lord Eldon, not passing upon the question of collusion, said, he was inclined to think a decree might be made against the creditor, on the ground that, whether there was a debt due, and to what extent, had never been tried with that searching attention which the legatees had aright to expect from the executors. Now, in the present case, the co-executor and some of the legatees objected to the allowance of the claim of the executrix before the surrogate, on the ground that a considerable part of the debt had been paid by the testator in his life-time. The issue thus made, the surrogate assumed jurisdiction to try, and he ordered it to an auditor, whose report he confirmed.

I cannot resist the conclusion that in so doing the surrogate exceeded his jurisdiction. If he had jurisdiction'his decree bars the legatees from proceeding in any other court, and their right to an action in equity against the executrix and creditor is cut off. I cannot think such a result was intended by the statute which makes the final settlement of the accounts of the executor or administrator conclusive evidence that the charges made in such account, for moneys paid to creditors, etc., are correct. (2 R. S., 94, § 65.) The statute relates, in my judgment, to charges for payment of undisputed debts, and no others. In this respect, sections 65 and Y1 are to receive a like construction. The case of Shakespeare v. Markham (supra) seems to be an authority for this conclusion. There a question arose as to the jurisdiction of the surrogate to try a claim which was held originally by the executor and three others, who subsequently assigned their interest to the executor. The claim was disputed by some of the persons entitled to share in the distribution of the estate, and this court held that the surrogate had not jurisdiction to try the claim. The executrix must resort to her action for this claim, when the defendants may avail themselves of such defense as they may have. This question of jurisdiction does not appear to have been raised before the surrogate; it is, nevertheless, available on appeal, but as it is now; presented for the first time, the appellants are not entitled to costs.

We also think the surrogate erred in excluding testimony as to the amount actually paid by the executrix upon the note held by Mrs. Brown. The executrix was only entitled to recover what she actually paid.

Decree reversed and proceeding remitted to the surrogate of Erie county, without costs of appeal to either party.

Mullin, P. J., and Talcott, J., concurred.

Decree reversed and proceedings remitted to the surrogate of Erie, without costs of appeal to either party.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    SARAH E. HOLLISTER, Respondent, v. EDWARD L. HOPKINS, Impleaded, etc., Appellant.

      Bill of exchange — what is.

    This action was brought upon the following instrument: “ Rochester, July 17, 1875. Edward L. Hopkins. One month after date, pay to the order of Hollister & Co., seven hundred and eighty-two dollars and thirty-four cents, and charge the same to me, to apply on contract for your building on South avenue. (Signed) J. R. Flowerday.” The plaintiff proved the acceptance and indorsement of the instrument and rested. Defendant offered to prove that there was nothing due to the drawer of the instrument upon Ms building contract, at the time it was drawn, and that there was no consideration for the acceptance between the drawer and acceptor, which evidence was, upon plaintiff’s objection, excluded.

      Held, that the instrument was a bill of exchange, and not a mere assignment of a fund, and that the evidence offered was properly rejected as immaterial and irrelevant.
    Appeal from a judgment entered upon the direction of the court at the Monroe Circuit, held by Mr. Justice Dwight.
    This action was brought against the defendant as the acceptor of a draft, drawn in these words:
    “ Rochester, July 17,1875.
    Edward L. Hopkins. One month after date pay to the order of Hollister & Co., seven hundred and eighty-two dollars and thirty-four cents, and charge the same to me, to apply on contract for your building on South avenue.
    (Signed) J. R. FLOWERDAY.”
    The plaintiff proved the acceptance by E. L. Hopkins and the indorsement of the instrument, and rested. The defendant moved for a nonsuit on the ground that the instrument proved was not a bill of exchange, but was merely an assignment of a fund, and the plaintiff could not recover without showing the existence of such fund. The motion was denied, and the defendant excepted. The defendant then called the drawer and offered to prove that when the instrument was drawn he had ceased to work on the building mentioned in the instrument, and that the drawee owed him nothing. Also, that there was no consideration for the contract between the drawer and acceptor. The evidence was excluded. Judgment was thereupon ordered for the plaintiff.

      A. J. Wilhin, for the appellant.

      J. B. Perhins, for the respondent.
   Smith, J.:

The instrument in evidence was a bill of exchange, payable, at all events, and not on a contingency ; payable, also, in money only, and not out of a particular fund. The direction to charge the same to the drawer, to apply on contract for building, did not make the draft payable out of moneys due or to become due on the contract. It was simply a direction to the drawee how to reimburse himself. (Macleod v. Snee, 2 Strange, 762; Munger v. Shannon, 61 N. Y., 251, per Dwight, C., p. 256.)

The evidence offered was immaterial and was properly rejected. There was no ofEer to prove the entire answer, or to show that there was no consideration between the drawer and the payee.

The judgment should be affirmed.

Mullin, P. J., and Talcott, J., concurred.

Judgment affirmed.


text:
    THE PEOPLE ex rel. THE NIAGARA BRIDGE AND CANANDAIGUA RAILROAD COMPANY, Appellant, v. THE LOCKPORT AND BUFFALO RAILROAD COMPANY and others, Respondents.

      Application for change of railroad route — chcup. 140 of 1850, and chap. 560 of 1871 — the notice — must he personally served.

    The notice required by the statute (§ 22 of chap. 140 of 1850, as amended by chap. 560 of 1871) to be given on an application for a change of the proposed route of a railroad company, must be personally served.

      Quaere, whether, in a case where personal service is impracticable, the court would have power, under the seventh subdivision of section 14, to direct service to be made in some other mode.
    Appeal from an order of the Erie Special Term held by Mr. Justice Barker, and from the judgment entered thereon, dismissing a writ of cerliorari directed to Ur. Justice Daniels to remove certain proceedings instituted before him, for the appointment of commissioners to change the proposed route of the Lockport and Buffalo Railway Company.
    The proceedings for a change of route were commenced by the relator and appellant, under section 22 of the general railroad act (L. 1850, ch. 140, as amended in 1871, L. 1871, ch. 560), and were dismissed by Justice Daniels on the ground that the service of notice on the contestants, Payne and "Western Brothers, whose property would be affected by the proposed change of route, was not sufficient to give jurisdiction.

      A. P. Laming, for the relator and appellant.

      K O. Sprague, for the respondents.
   Smith, J.:

The statute requires that the notice to be given of an application for a change of the proposed route of a railroad company, organized under its provisions, shall be a ten days’ notice, in writing, and that it shall be given "to the company and to the owners or occupants of lands to be affected by the proposed alteration. (L. 1850, ch. 140, § 22, amended by L. 1871, ch. 560.) The statute is silent as to the mode of service of such notice. The provisions of section 14 of the act of 1850, respecting the service of a petition by the company, with notice of the time and place when it will be presented to the court for the purpose of acquiring land covered by its proposed route, have no application. It follows that the service intended by the statute is a personal service, none other being specified or indicated- (Rathbun v. Acker, 18 Barb., 393; McDermott v. Board of Police, 25 id., 635, 646.) It is possible that in a case where personal service is impracticable, the court, on such fact being shown, would have power, under the seventh subdivision of section 14, to direct, service to be made in some other inode, but, without deciding that point, it is enough to say that no such direction was made in this case.

It appeared affirmatively, before Justice Daniels, that due personal service was not made on Payne, or on Western Brothers. In Payne’s case the notice was left with his wife, at his dwelling-house, he being absent from home, but within the State and in an adjoining county, and the notice did not come to his hands till within the ten days. “Western Brothers” are a firm, composed of Abijah Western, William W. Western and Orrin Western, each of whom resides in this State. Of the lands laid down on the map of the relator as owned by them, a part was owned by Abijah Western and Alanson I. Pox, who lives in this State ; another part by the heirs of A. H. Ames, and the remainder by the firm of Western Brothers. The entire parcel was leased to James D Western and Abijah Western. James D. Western lived in Tonawanda, and was in the actual occupancy of the premises. Abijah Western had an agent, Hector M. Stocum, who also occupied the premises as such agent. Stocum was the only person served with notice. As Stocum occupied as an agent, and not in his own right, it is at least doubtful whether the service on him affected even his principal; but however that maybe, James D. Western, who occupied with him, was equally entitled to notice, and, as he had none, the service, for that reason, was clearly insufficient.

The service of notice on all the parties entitled to notice was a prerequisite to the appointment of commissioners. (In re Long Island R. R. Co., 45 N. Y., 364; In re Norton v. The Walkill Valley R. R. Co., 63 Barb., 77, 81.) The proceeding was, therefore, properly dismissed for want of jurisdiction.

Order and judgment affirmed, with one bill of costs and disbursements to the respondents.

Mullin, P. J., and Talcott, J., concurred.

Ordered accordingly.


text:
    RICHARD SMITH, Plaintiff, v. THE CITY OF ROCHESTER, Defendant.

      Common council of Bocliesler —power of, oner fire depa/i'tment— liability of city for negligence of a member of the fire department.

    A committee of the common council of the city of Rochester directed the fire department of the city to assemble in. front of the city hall, at midnight, on the 31st of December, 1875, to celebrate the incoming of the centennial year. This action was brought to recover damages for injuries sustained by plaintiff who was struck by one of the hose carts through the negligence of the driver.

      Held, that the common council had no authority to direct the fire department to so assemble, and the city was not responsible for injuries occasioned thereby. That even if the common council had authority to so direct, yet the city would not be liable for the negligence of a member of the fire department while engaged in the performance of his legitimate duty as such, whether in exercising, as directed by the common council, or in endeavoring to prevent or extinguish a fire.
    Motion by tlie plaintiff for a new trial, on exceptions taken at tbe Monroe Circuit, before Mr. Justice Dwight, and ordered to be beard at tbe General Term in tbe first instance.
    This action was brought to recover for injuries caused by tbe negligence of tbe driver of a bose cart, wbo is alleged to bave been acting at tbe time in tbe employment and under tbe direction of tbe defendant. Tbe bose cart was driven along a public street of tbe city of Rochester; in tbe night time, in obedience to an order of a committee of tbe common council, directing tbe fire department of tbe city to assemble in front of tbe city ball, at midnight, on tbe 31st December, 1875, to celebrate tbe incoming of what is known as tbe “ centennial year.” It was alleged that, by tbe carelessness of tbe driver, tbe horses and bose cart were driven against tbe plaintiff, tbe night being very dark, and be was knocked down and injured. Tbe plaintiff was nonsuited on tbe opening of bis counsel.

      J. JS. Mcvrtindale, for tbe plaintiff.
    When tbe corporation directs the use of tbe property of tbe fire department in any service, not of a public nature enjoined by law, but for private emolument, caprice, display or pleasure, it is just as much responsible for damages arising from negligent misconduct as any other person, or as for any other malfeasance. In this case the corporation was celebrating a great event, by fireworks and sports, and using the horses and cart for that purpose, and not in public service, when the injury complained of was inflicted on the plaintiff. (Oliver v. City of Worcester, 102 Mass., 499-500, and cases there cited; Thayer v. City of Boston, 19 Pick., 511; Dillon on Munic. Corp., §§ 778, 779, 780, 790 [2d ed.], and notes; Brice’s Ultra Tires [Green’s ed.], 265 and 269; 22 N. Y., 305, 306; 58 id., 639; 2 Den., 433; 62 N. Y., 170; Neuert v. City of Boston, 120 Mass., 338.) The corporation had the right and power tó require the appearance of the horses, cart and driver at the time and place designated, and, in execution of such power, to vest a committee with power to employ such horses and cart, and direct them to be present at the place appointed. The corporation is liable for the trespasses of its officers, acting pursuant to its orders, where the subject matter of the order is not ultra vires. (Dillon on Corp., §§ 769, 770, 780; Lee v. Village of Scmdy Hill, 40 N. Y., 442; Brice’s Ultra Tires [Green’s ed.], 265, 269; Angelí & Ames on Corp. [10th ed.], 326; 15 N. Y., 512, 519 ; 21 How. [U. S.], 209-210; 19 Pick., 511; 3 Bans., 44; 2 Hilt., 358; 5 Bosw., 414, 419, 420; Bastadle v. City of Syracuse, 3 N. Y. Weekly Dig., 467, Gen. T., 4th Dept.; S. C., 8 Hun, 592, fully reported; 1 T. & O., 537; 1 Hun, 343; S. C., 3 T. & C., 504.)

      J. B. Perhins, for the defendant.
    For the negligence of any person employed by the city, as a member of the fire department, the defendant is not liable. A person employed in this capacity is not deemed a servant of the corporation, for whose negligence it is hable. (Jewett v. New Ha/oen, 38 Conn., 368; O’Mea/ra v. Mayor, 1 Daly, 425 ; Wheeler v. Cincinnati, 19 Ohio, 19; Hofford v. New Bedford, 16 Gray, 297; Fisher v. Boston, 104 Mass., 87; Maximilian v. Mayor, 62 N. Y., 160.) If it was a legitimate use of the fire department, the city is not liable under the cases cited under the first head. If it was an illegitimate use, .then the whole thing was ultra vires, and there is no liability. (Mayor v. Cunliff, 2 Oomst., 165; Brown v. JJtica, 2 Barb., 104; Anthony v. Inhabitants of Adams, 1 Mete., 284; Morrison v. Lawrence, 98 Mass., 219; Dillon on Munic. Cor., §§ 767, 768, and cases cited.)
   Smith, J.:

The plaintiff seeks to hold the defendant liable in this action, on the principle that the employe is responsible for the negligence of his servant. The defendant is a municipal corporation. Its powers are largely vested in a body of public officers, known as the common council, under whose direction the person was acting, whose negligence (as is now to be assumed) caused the inquiry of which the plaintiff complains.

The rule which makes natural persons liable for the wrongful or negligent acts of their servants and agents, done in the course and within the scope of their employment, applies to corporations as well, whether municipal or created for purposes of pecuniary gain. (Lee v. The Village of Sandy Hill, 40 N. Y., 442, and cases there cited by Mason, J., p. MY.)

In this case, the driver of the hose cart was undoubtedly acting within the scope of his employment, provided the common council had authority to order the fire department to turn out on the occasion, and for the purpose above stated. To justify the conclusion that the common council had authority to make the order in question, it must appear that they were authorized by the charter of the city to do the act, or that they did it tona fide, in pursuance of a general authority to act for the city on the subject to which it relates. This is, in substance, the rule that was followed by the Supreme Court of Massachusetts, in the case of Thayer v. The City of Boston (19 Pick. R., 516), and by the Court of Appeals in this State, in Lee v. The Village of Sandy Hill (supra), and in view of what was said by the judges in those cases, the rule must be regarded by us as defining the extent to which the principle, which holds the principal liable for the act of his agent, is to be applied against a municipal corporation. As such a corporation is created for governmental purposes only, it possesses merely such powers as are expressly granted by law, or such as are necessary to cany into effect the powers expressly conferred. No act of its officers, ultra vires, will make the corporation, or the inhabitants of the municipality composing it, liable upon contract or in tort. The cases cited by the appellant’s counsel, in which municipal corporations have been held liable for the acts of their agents, were within the rule laid down in Thayer v. The City of Boston (supra). They are The Mayor v. Bailey (2 Den., 433), Turnpike Company v. City of Buffalo (58 N.Y., 639), Maximilian v. The Mayor (62 id., 170), Oliver v. City of Worcester (102 Mass., 499 and cases there cited), Neuerty. City of Boston (120 id., 338). A different rule is applicable to corporations created to carry on business for pecuniary profits. (See Bissell v. Mich. S. and Northern Ind. R. R. Co., 22 N. Y., 258, per Selden, J., p. 305, et seq.)

The question of the authority of the common council to order out the fire department of the city, at the time and place, and for the purpose specified, involves, then, two inquiries, the first of which is whether they were authorized by the charter to make the order. The provisions of the charter (Laws of 1861, ch. 143), in which the appellant’s counsel suggests the authority is to be found, will be briefly referred to. Section 222 provides that the common council may organize and maintain a fire department for said city, to consist of one chief engineer, four assistants, and so many fire wardens and firemen as may be appointed by the common council. And by section 223, it is enacted that the common council may make rules and regulations for the government of said engineers, wardens and firemen; may prescribe their respective duties in case of fire or alarms of fire; and may prescribe and regulate the time and manner of their exercise, and may impose reasonable fines for the breach of any such regulations. Those provisions are contained in title 8, headed: “Prevention and extinguishment of fires.” Section 40, vests in the common council the management and control of the prudential affairs of the city, and of its property, and the power to make such orders and by-laws relating to the same as it shall deem proper and necessary. These provisions are far short of giving authority to make the order in question. Their sole object, in vesting the common council with power over the fire department, is to prevent and extinguish fires. But the order directing the fire department to turn out, at midnight, to attend the “■ centennial ” celebration, had no connection with that object. However laudable the impulse by which the order was prompted, it was an excess of authority; like the action of the common council of Buffalo, in Hodge’s case (supra), in fxirnishing an entertainment for the citizens and guests of the city, on the fourth of July, at the public expense.

The order in question can not be regarded as a use of the power of the common council to regulate the exercise of the fire department. But if the order could be so regarded, it is enough to say that for the negligence of a member of the fire department while engaged in the performance of his legitimate duty as such, whether in exercising as directed by the common council, or in endeavoring to prevent or extinguish a fire, the city would not be liable.

The charter, in providing for the preservation of the city from damage and exposure to danger from fire, must be regarded as imposing a public duty for the public welfare, and the fire department when engaged in extinguishing fires, or in exercising pursuant to the orders of the city authorities, were performing a public, governmental act, for the general good, and an action will not lie against the city for their negligence while acting in the discharge of their official duty. (Jewett v. New Haven, 38 Conn., 368; O'Meara v. Mayor, 1 Daly, 425; Wheeler v. Cincinnati, 19 Ohio, 19; Hafford v. New Bedford, 16 Gray, 297; Fisher v. Boston, 104 Mass., 87.)

The appellant’s counsel also suggests that the power in question is included in the authority to regulate sports” (§ 40, sub. 4), and the exhibition of fireworks (sub. 6). The authority given for that purpose is one of police, by which showmen and exhibitors may be regulated and controlled, in the interests of the city. It was not intended that the common council should have authority to embark the city in enterprises of that character.

The second inquiry is whether the common council made the order bona fide, in pursuance of a general authority to act for the city on the subject to which the order relates. The principle involved in this inquiry applies only to those cases in which the rights of both the public and of individuals are involved, in which it can not be known at the time the act is done whether it is lawful or not. In Thayer v. City of Boston, the officers of the city, having authority over streets and public lands, took possession of land which the plaintiff claimed was a public highway. The Court held that the city was liable, as its officers, although they in fact exceeded their authority, yet acted in good faith, in pursuance of their general authority over the subject matter, and for the benefit of the city. The case of Lee v. The Village of Sandy Hill (supra) was of a similar character. But those cases have no analogy to this. In each of them, the authority of the agents of the • corporation to do the particular act depends upon certain apparent facts, which were ultimately adjudged not to exist. Here there was no doubtful question of fact, but the act of the common council was ultra vvres, as matter of law, upon the facts as they were known to be at the time. It follows that the city is not liable, and that the plaintiff was properly nonsuited.

The motion for a new trial should be denied, and judgment ordered for the defendant on the merits.

Mullin, P. J., and Taloott, J., concurred.

Ordered accordingly.


text:
    ELLA S. MORROW, by Guardian, etc., Respondent, v. JOHN J. OSTRANDER, Trustee, etc., Appellant.

      Memoranda — when admissible in evidence.

    Upon the trial of this action, brought by the plaintiff to recover for the breach of a contract made with her by the defendant’s predecessor, the principal issue of fact was as to the genuineness of the signature of the school commissioner, Strough, to a certificate that she was qualified to teach. Upon the trial Strough was called as a witness, and testified that to the best of his knowledge and belief he did not sign or issue the certificate. He also testified that he kept a book, in which he entered the certificates issued by him during the month in which the certificate in question bore date. The counsel for defendant produced this book and offered it in evidence to show that it contained no entry of the certificate in question. Upon plaintiff’s objection, the book was excluded. Held, that its exclusion was error.
    The counsel for defendant asked Mr. Strough whether, during his term of office, he was accustomed to issue such certificates except upon a personal examination of the applicant, which question was,, upon the objection of plaintiff’s counsel, excluded. Held, that this was error.
    Appeal from a judgment of the Jefferson County Court, entered on a verdict in favor of the plaintiff, and from an order of the said court, denying a motion for a new trial made on the minutes, and on a ease and exceptions, and also from an order of the county judge declining to pass upon the question of the trustee’s good faith

      This action was brought to recover for an alleged breach of contract in refusing to permit plaintiff to teach the school in defendant’s district during the school year of 1875-76.

      D. O’ Brien (Lansing A Rogers), for the appellant.

      W. F. Porter, for the respondent.
   Smith, J.:

That the defendant’s predecessor in office had authority, on the last day of his' term, to employ a teacher for the ensuing year, provided he acted in good faith, with due regard to the interests of the district, cannot be questioned ; and whatever his motive may have been, if the plaintiff entered into the contract with him in good faith, and was ready and willing to perform on her part, the district is liable for the refusal of the defendant to permit her to teach the district school for the time agreed on. If, however, both parties to the contract acted collusively, with intent to defraud the district, or to embarrass the defendant in the discharge of his duties and the exercise of his authority as the trustee of the district, the contract was void for that reason. And the fact that the contract was made on the last day of the term of the outgoing trustee, was a circumstance for the jury to consider in determining whether the parties to the contract acted collusively. If the contract was valid, and was broken by the defendant, the plaintiff, if ready, willing, and offering to perform, was entitled to recover the wages stipulated by the contract, unless it appears that, by a reasonable effort on her part, she might have procured like employment elsewhere.

In accordance with these principles the cause was tried, and we would have no difficulty in affirming the judgment but for one or two rulings of the judge, on questions of evidence, which we are constrained to hold were erroneous and prejudicial to the defendant.

1. By the terms of the contract the plaintiff was to obtain a certificate from the school commissioner, Mr. Strough, that she was qualified to teach before commencing her school in the defendant’s district. At the trial she produced and put in evidence a paper purporting to be what is called a “ first grade ” certificate, signed by Mr. Strough. The genuineness of the signature of the certificate was contested, and formed the principal issue of fact in the case. Upon that issue Mr. Strough was examined as a witness on the part of the defendant, and testified that, to the best of his knowledge and belief, he did not sign or issue the certificate in question. He also testified that he kept a record of the certificates issued by bim. He produced a book wbicb contained a record or memorandum kept by him of tbe certificates issued by bim during tbe month of November, 1815, in wbicb month tbe certificate in question bore date, and was alleged by tbe plaintiff to have been issued; and on bis being asked to turn to tbe memorandum for tbat month, tbe plaintiff’s counsel objected tbat it was an attempt to corroborate tbe statement of tbe witness by bis own memorandum. Tbe court then asked tbe witness if tbe book was one tbat be was required to keep by law, and on bis answering tbat it was not, tbe court decided tbat tbe memorandum was not competent, and tbe defendant’s counsel excepted. Tbe defendant’s counsel then offered to show tbat during tbe fall of 1815 tbe witness kept a book, in wbicb be made entry of all certificates issued by bim, specifying tbe grade of tbe certificate, and tbe person to whom issued, and tbat it contained no entry or mention of tbe certificate produced in evidence. Tbe court excluded tbe offer, and tbe defendant’s counsel excepted. Tbe County Court seems to have excluded tbe memoranda on tbe ground tbat they were not required to be kept by law. Whether or not tbe memoranda were admissible, tbe reason assigned for excluding them was not sound. There is no distinction, in this respect, between entries wbicb are required to be made officially or in tbe course of business, and those wbicb are made voluntarily outside of tbe routine of tbe business of tbe party making them. Formerly, in this State, tbe rule admitting entries was restricted to those made by a person in tbe course of bis business duties. (Bank of Monroe v. Culver, 2 Hill, 531; Merrill v. The Ithaca and Owego R. R. Co., 16 Wend., 599.) But tbat restriction no longer exists. In Halsey v. Sinsebaugh (15 N. Y., 485) it was held tbat, in general, a memorandum made at or about tbe time when the event or transaction mentioned in it took place, and where tbe author swears tbat be knows it to have been correct when made, may be read to tbe jury in connection with tbe oral testimony of tbe witness. Tbe memorandum in tbat case was tbe minutes of testimony taken by the counsel upon a former trial of the cause, tbe matter to be proved being what a witness had sworn to on that trial, and it was held to be admissible. The rule there laid down was approved, and followed in Guy v. Mead (22 N. Y., 465). In that case it was held, that upon the question at what time the latter of two indorsements upon a promissory note was made, a paper is admissible evidence, which contains a computation of interest upon the note by a witness who swears that, when he made it, the note bore but one indorsement, but who has no recollection of the date of the computation independent of the paper.

The two cases referred to show that the entries of the school commissioner, in the case at bar, were not inadmissible for the reason that it was not his duty to make them. The present case differs from those cited in two particulars, but we think they do not take it out of the rule. They will be briefly adverted to.

In the two cases cited, the witness had no recollection of the fact sought to be proved, independently of the memorandum, while in this case the witness Strough had some recollection of what occurred at the time when the certificate in question was alleged to have been given, but he was not able to speak positively on the point, and went no further than to deny the giving of the certificate, according to the best of his knowledge and helief. TIis recollection being indistinct, but so far as it went, being in accordance with the memorandum, why was not the latter admissible as independent corroborating testimony ? To exclude it, if it was honestly and correctly made, would be to reject a very satisfactory mode of arriving at the truth. At an early day the rule was that such a memorandum as is above described might be used to refresh the recollection of the witness, but could have no force as evidence, unless the witness, after referring to the memorandum, had a recollection of the facts to which the memorandum related. But that rule was abrogated by later decisions, which held that in such case a memorandum might be read as evidence of the fact contained in it, although the witness may have totally forgotten such facts at the time of the trial, not that the total want of recollection of the witness is a requisite to the admissibility of a memorandum made by him, but that it is no objection to its admissibility; much less does a partial failure of the recollection of the witness constitute a reason for excluding his memorandum. Another respect in which the present case differs from those above cited, is that in this case the evidence furnished by the memorandrun of the witness is of a negative character, while in the cases cited the memorandum contained positive affirmations as to the fact in dispute. But if the entries were accurately and promptly made, the absence of an entry on a particular day is some evidence that no certificate was granted on that day,, and to that evidence, though slight perhaps, we think the defendant was entitled.

2. It appeared in evidence that the plaintiff was not examined by the commissioner, Mr. Strough, in respect to her qualifications as a teacher. Mr. Strough was asked whether, during his term of office, it was his custom to issue certificates of the first grade without a personal examination of the candidate. He was also asked whether he in fact signed or delivered any certificates-of the first grade during his term, without a personal examination of the candidate. A general objection to each question was sustained, and the defendant’s counsel excepted. It is to be assumed, for the present purpose, that an answer to those questions would have shown that the usual custom of the witness was- not to issue a certificate till he had examined the applicant. The presumption would then have arisen that in this instance there was no departure from the usual course, and consequently that as there was no examination, no certificate was issued. (Greenl. Ev., § 40, note 6, and cases there cited.) We think the exclusion of each of the items of testimony above considered was erroneous. That the rulings were prejudicial to the defendant, cannot be doub'ted.' The testimony offered in each instance bore directly upon the genuineness of the certificate, and its exclusion may have turned the scale in the plaintiff’s favor.

The judgment and the order denying a new trial should be reversed and a new trial ordered, costs to abide the event. As the plaintiff has no present right to costs, the appeal from the order refusing to pass on the good faith of the defendant need not be considered, and a reversal of that order also follows as matter of course.

Mullin P. J., and Talcott, J., concurred.

Ordered accordingly.


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    JOHN F. KILMER, Respondent, v. JEREMIAH O’BRIEN and another, Impleaded, etc., Appellants.

      Appeal from a judgment entered on the report of a ref 'wee in the County Court— it is not neeesswi'y to move for new tt'iaf in the County Court.

    Under the provisions of the Code of Civil Procedure an appeal will lie to the G-eneral Term from a judgment entered upon the report of a referee, in an action pending in a County Court, upon a case and exceptions settled by such referee; and a prior motion for a new trial in the County Court, upon the exceptions and the decision of the referee is no longer requisite or proper.
    Motion to dismiss an appeal from a judgment of the Orleans Oounty Court, entered on the report of a referee before whom the cause was tried in the County Court. The action was brought in' the County Court to foreclose two mortgages. The ground of the present motion was that no motion for a new trial has been made in the County Court.

      Q. F. Fanforth, for the motion.

      J. Va/rt Voorhis, opposed.
   Smith, J.:

In the case of Hacker v. Ferrill (66 Barb., 559), decided in this department in April, 18Y3, it was held that an appeal will not lie from a judgment entered on the report of a referee, in an action pending in a Oounty Court, upon a case and exceptions settled by such referee, when it does not appear that a motion for a new trial was made in the County Court upon the exceptions, or that the decision of the referee on the trial, or in his report, had been reviewed in the County Court. That decision was followed in Dahash v. Flanders (2 N. Y. S. C. [T. & C.], 445), and in Murray v. Vanderveer (13 N. Y. S. C. [6 Hun], 302).

When those cases were decided, it was supposed that the Code of Procedure, which abolished writs of error and appeals in civil actions as they had existed previously to its adoption, and which restricted the review of a judgment or order to the mode prescribed by the Code (§ 271), had also swept away the exceptions which, by the provisions of the Revised Statutes, were to be returned with the record from the common pleas (2 R. S., 423, § 78), and upon which the Supreme Court was authorized to give judgment and grant a new trial. (Id. § 80.) That such was the effect of the Code, was inferred merely from certain of its provisions. One was the provision which gave the County Courts authority to grant new trials, or affirm or reverse judgments in actions tried in those courts upon exceptions or case made subject to an appeal to the Supreme Court. (§ 30, sub. 13.) Another was the provision which gave, in an action brought by appeal from a Justice’s Court, and retried in the County Court, the same power to the latter court over its own determinations and the verdict of the jury, as is possessed by the Supreme Court in actions pending therein. (§ 366, sub. 5, as amended in 1862.) Still another was the provision giving to the County Court, in the class of actions above mentioned, authority to entertain a motion for a new trial on a case and. exceptions, or otherwise, before or-after judgment. (Id., sub. 6.) Those provisions were regarded as implying that’the County Court had exclusive original jurisdiction to entertain a motion for a new trial on exceptions, as well as to review the verdict of a jury, in an action tried in that court, and that the jurisdiction of the Supreme Court therein was purely appellate. (Carter v. Werner, 27 How. Pr. R., 385; Simmons v. Sherman, 30 id., 4; Boughton v. Mitchell, 29 id., 68, reporter’s note; Dahash v. Flanders, supra.)

The provisions above referred to seem to have been changed materially by the Code of Civil Procedure. It is true that the jurisdiction of the County Court, in granting new trials, is quite as broad as formerly, that court having the same power and authority, in all respects, in an action or proceeding of which it has jurisdiction, which the Supreme Court possesses in a like case. (§ 348.) But several important changes in the practice relating to exceptions and motions for a new trial have been introduced by the new Code, which are applicable to County Courts and the Supreme Court alike. They are contained in the first title of chapter 10, entitled: “ Trials generally; including exceptions and motions for a new trial.” The provisions of that title are applicable to proceedings taken on or after the 1st day of September, 1877, in the Supreme Court, a Superior City Court, the Marine Court of the City of New York, or a County Court. (L. 1876, chap. 449, known as the “temporary act; ” § 5, subds. 7, 4, as amended by chap. 318 of Laws of 1877, called the “suspending act;” §5, subd. 1.) Section 996 of the new Code provides that a ruling to which an exception is taken, as prescribed in the four sections immediately preceding it, can be reviewed only upon an appeal from the judgment, except in a case where it is expressly prescribed by law that a motion for a new trial may be made thereon. The rulings referred to are those of a court or referee, upon a question of law, arising upon the trial of an issue of fact (§ 992), including a refusal to find as requested upon a question of fact, or a finding without evidence to sustain it, upon the trial of an issue of fact by a referee, or by the court without a jury (§ 993), and generally any other ruling upon a question of' law which is excepted to, including a charge to the jury. (§ 995.) And it is expressly prescribed that a trial by a referee can not be reviewed by a motion for a new trial, founded upon an allegation of error in a finding of fact, or ruling upon the law, except in a case where the report rendered upon the trial of an issue of fact directs an interlocutory judgment to be entered, and further proceedings must be taken before a final judgment can be entered. (§ 1002.) In such excepted case it is provided by section 1001 that a motion for a new trial, upon exceptions, may be made at the General Term, after the entry of the interlocutory judgment, and before the commencement of the hearing directed therein. The “ General Term ” intended by section 1001, when the action is in the County Court, is any term of that court, held pursuant to an appointment made as prescribed by law. (“ Temporary act ” swpra, § 6, subd. 3.)

The present action, however, is not one provided for by section 1001. It falls within section 1002, and cannot be reviewed by a motion for a new trial in the County Court. If, then, the provisions of the new Code apply to the present motion, the decisions made under the former Code have no bearing on the question.

The appeal in this case was brought under the old Code, but at the time when the present motion was noticed the new Code had taken effect. At that time, consequently, a motion for a new trial in this action could not have been made in the County Court, and the only mode of reviewing the decision of the referee was by appeal to this court. It would be an anomalous proceeding to grant a motion to dismiss an appeal for a lack of compliance with a rule of practice which had been abrogated by statute before the motion was noticed, and when the effect of granting the motion would be to leave the appellant remediless.

In view of the change wrought by the new Code as above pointed out, we think the proper course is to deny this motion without costs, to vacate the order heretofore made by us declining to hear the appeal, and to permit the parties to withdraw the papers submitted at the April term, and again submit or argue the cause on the appeal.

Mullin, P. J., and Talcott, J., concurred.

Ordered accordingly.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. NATHANIEL GREEN and another, Respondents, v. WILLIAM H. SMITH, County Judge, and another, Appellants.

      Special proceeding — review of, on certiorm'i — costs upon — Qliap. 270 of 1854, § 8.
    On an appeal to the Court of Appeals, in a proceeding brought into the Supreme Court by a common law certiorari, directed to an officer or tribunal other than a court, the successful party is not entitled to costs as a matter of course; whether or not costs shall be awarded rests in the discretion of the court.
    Appeal from an order of the Special Term in Monroe county, held by Mr. Justice Dwi&ht, striking out of the judgment in this cause the costs taxed in favor of the appellants.
    This was a common-law certiorari directed to the county judge of Ontario county, issued for the purpose of reviewing his adjudication in a proceeding to bond a town. On the return the General Term gave judgment for the relators, which was reversed in the Court of Appeals. The appellants procured costs of the appeal to the latter court to be inserted in the judgment entered on the remittitur, which contained no direction as to costs. On motion of the relators, the Special Term struck out the costs, and from that order this appeal is brought.

      H. L. Gomstoclc, for the appellants.

      E. B. Pottle, for the respondents.
   Smith, J.:

The question in this case is, whether, on an appeal to the Court of Appeals, in a proceeding brought into this court by a common-law certiorari directed to an officer or tribunal other than a court, the successful party is entitled, of course, to the costs of the appeal. The question has been before the courts frequently, since the adoption of the Code, but the decisions are not altogether harmonious. Most of the cases agree in holding that a common-law certiorcuri is a “special proceeding,” as defined by the Code and distinguished from a “ civil action ” (§§ 1 to 3); and to that position the counsel on both sides in this case assent. It is also agreed by counsel that section 318 of the Code of Procedure does not apply to the case, as that section relates exclusively to cases in which the decision of a court of inferior jurisdiction in a special proceeding is brought into this court for review; and in' the present proceeding, the county judge did not act as a court;

The only provisions of the Code which give an absolute right to the costs of an appeal to the Court of Appeals are contained in title 10, which is headed “ Of the costs of civil actions.” That title forms a portion of the second part of the Code, which, by section 8, relates to civil actions commenced under the Code, except when otherwise provided therein, and which is entitled “ Of civil actions.” Notwithstanding this apparent limitation of the right to costs of an appeal to actions, as distinguished from special proceedings, it was held at an early day, by the Superior Court of the City of New York, in The People ex rel. v. Sturtevant (3 Duer, 616), with the sanction of two, at least, of the justices of that court (id., p. 613, note a), that those provisions of the Code which relate to costs upon appeals are apjalicable to appeals in special proceedings, as well as to those taken in civil actions, strictly so called. As the counsel for the appellants herein is understood to rest his claim to costs in this proceeding upon the views which the court expressed in that case, it may be well to state them with more particularity. The case was this: The Court of Appeals, in affirming the final judgment or order of the Superior Court, in a proceeding against the defendant therein as for a contempt, had awarded to the relators the costs of the appeal, and the remittitwr having been sent down, the question before tbe Superior Court was whether the costs which the defendant was required to pay were those prescribed by the Code, or those which were taxable under the Revised Statutes. The court held that the costs to be inserted in the judgment were those given by the Code (§ 301, sub. 6), on appeal to the Court of Appeals. The argument on which the decision rested was that the title of the second part of the Code, “ Of civil actions,” is narrower than its contents, and is defective; that the provision of section 8, in the preliminary title, declaring that part second relates not only to civil actions commenced under the Code, but also (with the exception of the first four titles) to appeals to the Court of Appeals and other courts, was plainly unnecessary (assuming that appeals are properly comprehended under the general head of civil actions), unless appeals in' other cases than in actions under the Code were meant to be embraced; that title 11 óf the second part of the Code, which is headed “ Of appeals in civil actions,” relates to appeals in special procedings as well; that evidence of this is found in section 333, in the second chapter of that title, which provides that “ an appeal may be taken to the Court of Appeals in the cases mentioned in section 11,” among which are appeals from a final order in a special proceeding; that the object of section 333 is to indicate the cases by a reference, without enumeration, to which the provisions of the chapter, and all general provisions throughout the Code in relation to appeals to the Court of Appeals, shall be construed to apply, and that the construction and effect of every section containing such a provision are consequently the same as if in each an appeal from, a final order were separately mentioned; that the appeals to the Court of Appeals, which are referred to in the title “ Of costs,” are the same that the chapter “ Of appeals ” has declared may be taken, and consequently, that to every appeal so taken the provisions that govern the allowance of costs must be construed to apply. Other provisions of the Code were referred to, a proper construction of which it was held led to the same result. If the argument advanced in that case is sound, and it must be said that it is a very cogent one, it would seem to follow that the appellants herein have an absolute right to the costs in question, unless the right has been taken away by legislation subsequent to the adoption of the Code.

The third section of the act of 1854 (chap. 270) provides that in special proceedings and on appeals therefrom, costs may be allowed in the discretion of the court. It is not known that the act of 1854 had been passed when the decision in The People v. Sturtevant was made, as the date of the decision is not given by the reporter, but the statute is not mentioned in the case; and, undoubtedly, if then in existence, it was not brought to the attention of the court. The third section of the act, so far as it applies to special proceedings which were within the provisions of the Code respecting costs, as construed by the Superior Court, necessarily repealed or modified those provisions; for there can be no absolute right to costs which can only be allowed in the discretion of the court. The question then arises, whether the third section of the act of 1854 applies to all special proceedings and appeals therefrom, or whether it is limited by the first section, as 'the counsel for the appellants contends, to appeals from a Special to a General Term of either of the courts mentioned therein, in proceedings originating in the Special Term. If the latter construction is the correct one, the third section has no application to the present case. The question thus presented has been the subject of conflicting decisions. Without referring to all of them, it is enough to say that The People v. Heath (20 How. Pr., 304) is a leading case in support of the limited construction for which the appellant’s counsel contends. It was decided by a divided court, but was cited with approbation by Mr. Justice Woodruff in the Court of Appeals, in The People v. The Board of Police (39 N. Y., 506). In the latter case it was held that costs are not awardable on a common-law certiora/ri / and a judgment of the Supreme Court allowing costs in such case, was reversed. The act of 1854 was not referred to in the case, although it was cited by the judge who wrote the opinion in the Supreme Court (People ex rel. Cook v. Board of Police, 26 How., 450), and was commented on in Heath’s case. The remarks of Mr. Justice Woodruff in the subsequent case of The People v. O’Brien (6 Abb. [N. S.], 63), in which the point was ruled the same way, seem to indicate that the attention of the learned judge was not called to the statute. Those cases and many others were reviewed by Mr. Justice Johnson in the case of The People v. Fuller (40 How., 35), decided by the General Term in this department in September, 1870. He was of tbe opinion tbat tbe decisions of tbe Court of Appeals in tbe cases above cited, were in conflict witb the earlier adjudications of tbat court in The People v. Wheeler (21 N. Y., 86), and The People v. Van Alstyne (3 Keyes, 35), and be came to tbe conclusion tbat tbe provisions of tbe third section of the act of 1854 above referred to, were in no respect limited by tbe preceding sections of tbe act, and were manifestly so regarded by tbe Court of Appeals in tbe case last cited. He also held tbat a common-law eertiorci/ri is a special proceeding within tbe letter and spirit of tbe Code, and tbat this court has tbe power to award costs in such cases in its discretion. The other members of tbe court, Mullin, P. J., and Talcott, J., concurred witb him in deciding tbe case in accordance witb tbe views expressed in bis opinion.

We have not been referred to any subsequent case in the Court of Appeals which, in any way, impairs tbe authority of tbat decision, and we are not only bound to follow it according to tbe rule of stare decisis, but we think tbe decision is correct. It is to be observed tbat the legislature at their last session, repealed tbe first two sections of tbe act of 1854, and incorporated their provisions in tbe Code of Civil Procedure (§§ 1356, 1358 and 1359), leaving tbe third section in force, standing alone. (Laws of 1877, chap. 417, § 1, subd. 28, last clause.)

As tbe section now stands there can be no doubt tbat it is of unlimited application to all special proceedings and appeals therefrom, and the late action of tbe legislature is an indication tbat in their opinion it previously bad tbe same scope and effect, and was not dependent for its cons traction, upon tbe preceding sections.

On tbe whole we think we must follow tbe case of The People v. Fuller, and we therefore hold tbat as costs were not given by tbe Court of Appeals to tbe appellants, they are not entitled to them and tbe order of tbe Special Term should be affirmed. But, as tbe question relates wholly to costs and is not well settled, no costs are given on this appeal.

Mullin, P. J., and Talcott, J., concurred.

Order of Special Term, striking out costs, affirmed without costs.


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    FIRST NATIONAL BANK OF ROME, Respondent, v. GEORGE F. WILSON, Impleaded, etc., Appellant.

      Supplementcvry proceedings— Gode, § 292.
    In order to authorize the making of an order before execution returned requiring a judgment debtor, who has property which he unjustly refuses to apply to the payment of the judgment, to appear and be examined, it should be shown that a demand has been made upon the-debtor to apply his property to the satisfaction of the judgment, and has been refused by him.
    Appeal from an order of the Special Term in Oneida county denying a motion to set aside an order in supplementary proceedings, granted by the county judge of Oneida county.
    The order of the county judge was made under the second subdivision of section 292 of the Code. It recited that proof had been made to the judge, by affidavit, of the recovery of judgment, and issuing of an execution, not returned, and also recited that it appeared satisfactorily to the judge that the debtor (the appellant) “has property and rights in action consisting of mortgages and other choses in action, which are not subject to levy and gale on execution, which he unjustly refuses to apply toward the satisfaction of said judgment, as stated and set forth in said affidavit.” The order required the debtor to appear before the judge and answer concerning his property, and forbade him to transfer his property, etc.

      K. Oa/rroll, for the appellant.

      John 8. Balcer, for the respondent.
   Smith, J.:

The principal point made by the appellant’s counsel is, that the affidavit presented to the county judge was not sufficient to give him jurisdiction, inasmuch as it did not state that a demand had been made of the debtor to apply this property to the satisfaction of the judgment. The language of the affidavit, on that subject, is a transcript of the statute. It states a conclusion merely, and not facts. ¥e are of the opinion that in proceedings under this statute, the proof made on the application for the order, should show facts and circumstances, in order that the judge may decide whether there has been an unjust refusal, although, doubtless, the practice has been otherwise, to a large extent. The defect, however, is not jurisdictional. The averment, in the language of the statute, is enough to give jurisdiction. The defect is an irregularity which may be waived or amended. In this ease it was amended by the affidavits read on the part of the respondent in opposition to the motion. Those affidavits allege a demand and refusal. That, we think, is enough, in view of the liberal construction required to be given to the provisions of the Code. (§ 461.)

The point is made that a copy of the affidavit was not served with the order. The Code does not require a copy to be served. An affidavit need not be made. The proof may be by affidavit, or otherwise. (Code, § 292.)

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

Mullin, P. J., and Talcott, J., concurred.

Order affirmed, with costs, etc.


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    ALPHA BARNES and OCTAVIUS O. COTTLE, Executors, etc., of HIRAM FISH, Deceased, Appellants, v. AMANDA BARNES and ROXA L. ARNOLD, Respondents.

      Application for a portion of a legacy for the support of the legatee — 3 B. 8., 98, §§ 83, 83 —what must be shown to authorize the order — Bond—form of.

    The respondent, a legatee for life in the rents etc., of certain property devised by the will of appellant’s testator, applied to the surrogate to be allowed to receive such part of the legacy as was necessary for her support, under the statute authorizing the surrogate to allow this to be done, upon it appearing to him that the assets in the hands of the executor exceed, by one-third, all debts, etc., then known, upon the execution of a satisfactory bond for the return of such portion, with interest, whenever required. A bond was tendered by the petitioners conditioned for the refunding of such moneys “ as may be necessary to enable the executors to pay and discharge the debts of the testator, and the legacy having priority to hers.”

      Upon appeal from an order made by the surrogate directing the payment to the petitioner of a portion of her legacy, 7ield, that, in order to give jurisdiction to the surrogate, it must appear that there is a surplus of assets by at least one-third; and that as, in this case, no proof on this point appeared to have been taken before the surrogate, the order was unauthorized.
    That the bond did not conform to the statute, which required it to be conditioned for the refunding of the money whenw&r requwed,, and not simply, if necessary for the payment of debts and prior legacies.
    Appeal from an order of the Surrogate of Oliautauqua county, directing executors, the appellants herein, to advance a portion of a legacy.

      Morris <& Russell, attorneys for the appellants.

      II. C. Kingsbury, attorney for the respondents.
   Smith, J.:

The respondent, Amanda Barnes, a legatee for life, in the rents, issues and profits of certain property demised by the will of Hiram Fish, deceased, to his executors, in trust, applied to -the surrogate, previous to the expiration of one year from the granting of letters testamentary, to be allowed to receive such portion of her legacy as was necessary for her support. The statute under which the appli-. cation was made, provides that if it appear to the surrogate, that there is at least one-third more of assets in the hands of the executors, than will be sufficient to pay all the debts, legacies, and claims against the estate, then known, he may, in his discretion, allow such portion of the legacy to be advanced, as may be necessary for the support of the person entitled thereto, upon a satisfactory bond being-executed for the return of such portion, with interest, whenever required. (2 R. S., 98, §§ 82, 83.)

In the present case, the surrogate made an order on the 18th July, 1877, directing the executors to pay over to the said Amanda Barnes, from the income of the estate of the testator, certain sums, at certain dates therein specified, on the tender to said executors or to any one of them, of a suitable bond approved by the surrogate, for the protection of said executors, or within three days thereafter.” The case states that on the hearing before the surrogate a bond was presented, executed by the said Amanda and her sureties, in the penal sum of $1,000, conditioned that the said Amanda should refund to the executors all such moneys “ as are paid to her to apply upon ber legacy, on demand, with interest, or such ratable part thereof as may be necessary to enable the executors to pay and discharge the debts of the testator, and legacies having priority to hers.” The bond was approved by the surrogate.

It seems to be essential to the jurisdiction of the surrogate in a proceeding under the statute referred to, that it should appear to him that there is a one-third surplus of assets. It does not appear by the terms of the order, or otherwise, that any proof was presented to the surrogate or that he made any determination on that subject. The order recites the presenting of the petition, and the petition set forth, among other things, that the estate amounts to over $16,000; that the debts are of a very small amount, and that after the payment of the debts and expenses and $2,000 of legacies, the petitioner is entitled to the use of the remainder of the estate, during her life. Even those averments, if proved, would be insufficient, the amount of the debts not being specified. The order is not, of itself, presumptive evidence of the existence of a fact essential to the jurisdiction of the surrogate to make the order. Jurisdiction cannot be acquired by assuming it.

.But if that difficulty could be obviated, another, of an insuperable character, exists in the fact that the bond required by the order, and tendered by the petitioner, does not comply with the statute. By the statute, the bond is to be conditioned for the refunding of the money whenever required, so that the executors may be protected in any contingency, as, for instance, in case the will should be set aside, and they be called to account to the heirs. Such a bond was not required, in terms, by the order, and evidently was not intended to be required, for the bond tendered and approved by the surrogate only requires the money to be refunded, in ease it is needed to pay debts or legacies.

"We regret to be forced to the conclusion that the order is erroneous, for there is reason to think the petitioner, who is shown to be aged and needy, is able to make a case entitling her to relief, under the statute. But we- see no way to avoid a reversal of the present order, with costs to be retained by the executors, out of any moneys in their hands belonging to said petitioner.

MuuLiNj P. J., and Talcott, J., concurred.

Ordered accordingly.


author: Saimi, J.:

text:
    SARAH HAGADORN, Respondent, v. RICHARD A. KEARNEY, Appellant.

      Impeaching cha/racter of witness — rebutting testimony — lohat admissible as.

    Upon the trial of an action for assault and battery, tbe defendant having called several witnesses who testified to tbe bad character of the plaintiff, a milliner, who had testified in her own behalf, she was recalled and asked: “ How was it as to the better class of ladies in the village patronizing you up to that time? ” Held, that the question was improper, and that.the court erred in allowing if to be put and answered against the objection and exception of defendant’s counsel.
    Appeal from judgment in favor of the plaintiff, entered on a verdict rendered at the Orleans Circuit.
    Action of assault and battery. Defense, a denial.

      J. H. White, for the appellant.'

      A. G. Eiee, for the respondent.
   Saimi, J.:

The defendant having given testimony, by several witnesses, tending to show that according to the speech of people, the general moral character of the plaintiff and her sister, Mrs. Strouss, who had testified as witnesses in her behalf, was bad, the plaintiff, in reply testified that she and her sister carried on the millinery business in Medina, at the time of the alleged assault and battery, and her counsel then put to her this question, “ Iiow was it as to the better class of ladies in the village patronizing you up to that time?” An objection and exception were taken, which raise the inquiry, whether the question was competent and proper. If competent at all, it was for the purpose of sustaining the plaintiff and her sister as witnesses, against the impeaching testimony introduced by the defendant. Was it admissible for that purpose ? The general rule is, that testimony impeaehing the general reputation of a witness may be met by fresh evidence in support of his character, or by evidence attacking the general character of the impeaching witness. In addition to this, the impeaching witnesses may be cross-examined as to their means of knowledge, or the grounds of their opinion. (2 Phil. Ev. [4th Am. ed., with C. & H. and Edwards’ notes], 955, and note 598, p. 958; 1 Gr. Ev., p. 461.) In The People v. Mather (4 Wend., 229), several persons having testified to the bad character of one Gregory, a witness called on the part of the people, the public prosecutor proposed, by way of supporting his credit, to introduce witnesses to show that the reports against him had originated from a particular party or body of men, and were founded on a particular transaction, which had been intentionally perverted to injure his character. The offer was excluded, and the Supreme Court sustained the ruling, on the ground that the testimony woiild have introduced a collateral issue tending to embarrass and delay the trial, and probably, in no respect, subserving the ends of justice. IVIarcy, J., in delivering the opinion of the court said, that the proposition was asking for a greater latitude of inquiry than would be safe to grant. If the main issue formed by the pleadings is to be tried with reasonable expedition, collateral issues must be avoided, as much as possible. These issues are more likely to multiply in ascertaining the interest or testing the credibility of witnesses than in any other incidents of a trial.” Fortunately, at this day, questions respecting the interest of witnesses seldom occupy the courts, but the comments of the learned judge, as to the tendency of the multiplication of issues in testing the credibility of witnesses, are as pertinent now as they were at the time when they were written. The present case illustrates their force. The counsel for the respondent attempts to justify the reception of the evidence in question, on the ground that the fact of the good standing and character of the plaintiffs’ customers, warrants the inference that in their estimation, the plaintiff’s character was good, and in that way it tended to repel the impeaching testimony.

It is not to be assumed, however, that the plaintiff’s patrons necessarily knew the general speech of people concerning her, and if that assumption were warranted, the plaintiff had no right to avail herself of testimony that merely raised an inference that her reputation was good. The inquiry was as to her reputation, according to the speech of peojfie, as shown by the testimony of persons acquainted with it. If she had enjoyed the business patronage of ladies of good standing, she could have called them as witnesses to state what they knew of her general reputation, and thus she would have kept strictly within the issue. But by the course pursued, a collateral issue was presented, as to the number and standing of her patrons, and their opportunity of knowing the speech of people concerning her, which the defendant was not required to be prepared to try.

If the testimony was admissible, it would be equally competent to sustain a witness whose general character is assailed, by showing that he had held a responsible public office, or a place of trust, or that he was a church member in good standing, or in short, by proving any other fact from which a good reputation would ordinarily be inferred.

We are of the opinion that the testimony was improperly received, and we cannot say that it had no influence in producing the verdict of the jury.

For this reason we think the judgment should be reversed, and a new trial ordered, costs to abide event.

Mullin, P. J., and Talcott, T., concurred.

Ordered accordingly.


text:
    MARION B. P. WILSON, Respondent, v. CYRUS B. LAWRENCE, Interpleaded with the CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Policy upon life of husband for benefit of wife — not assignable by her — Qhap. 277 of 1840.
    A life insurance company issued a policy of insurance upon the life of plaintiff’s husband, payable at his death to her, her executors, administrators or assigns, the policy reciting the payment of the first premium therein by her. In fact, the policy was issued upon the application of the husband and the first, and all subsequent premiums were paid by him.

      Held, that the policy was designed as a provision for the support of the wife during widowhood, and was within the equity of the statute in regard to insurances effected by husbands for the benefit of their wives and children (chap. 277 of 1840, and the acts amendatory thereof); and that an assignment thereof, made prior to the passage of chapter 21 of 1878, was void and incapable of enforcement.

      Appeal from a judgment entered on the decision of the late Mr. Justice Rawson, at the Ontario Special Term.
    Action to recover $2,500 upon a policy issued by the Connecticut Mutual Life Insurance Company, upon the life of the plaintiff’s husband. He died on the 12th September, 1815. Pursuant to an order of the court, the insurers, who were originally made defendants, deposited the money in court, and the present defendant, Lawrence, who claims under an assignment from the plaintiff, was substituted in their place. The contest is between him and the plaintiff; she claiming that the assignment was procured by coercion, and also that it is void on the ground that her interest in the policy was not assignable. The judge at Special Term found that the assignment was not procured by coercion, but he held the assignment void on the ground that the plaintiff’s interest was not assignable, and he ordered judgment for the plaintiff, entitb'ng her to the money paid into court.

      H. M. Field, for the appellant.

      JR. P. Willson, for the respondent.
   Smith, J.:

When this case was before the court on a former appeal (8 Hun, 593), the fact had been found that the consideration for the assignment of the policy to the defendant was $2,000, received by the plaintiff and her husband. Upon that state of facts it was held that a restitution of the policy to her, and a cancellation of the assignment, ought not to be decreed by a court of equity without requiring her to restore the money so received by her.

At the second trial, now under review,, it was found that nothing was paid to the plaintiff, and that the only consideration for the assignment was the cancellation and delivery to the plaintiff’s husband, of his promissory notes for $2,000, held by the defendant. Hpon this showing, it is claimed on the part of the respondent that she is entitled to the relief asked, without restoring to the defendant that which he parted with. In our opinion, the equity of the case is not changed by the findings. The uncontradicted evidence shows that the plaintiff signed and acknowledged the assignment, and put it in her husband’s hands, at his request, to enable him to deliver it to the defendant in payment and satisfaction of his debt. The judge found that she was not induced to assign the policy by fraud, undue influence, or coercion. She voluntarily gave to her husband the control of the policy for his accommodation, to pay his debt to the defendant. Although the assignment was directly from the plaintiff to the defendant, that was but the form of the transaction adopted by her and her husband to enable him to effect his purpose. In short, her husband was the principal actor in the transaction with the defendant, and she advanced a part of her separate estate, at his request, to pay his debt, and for such advance she has in equity a claim against his estate. Inasmuch, therefore, as her principal could not cancel the transaction without restoring what he received under it, she is bound by the same rule, and is not entitled as matter of equity to a cancellation of the assignment, unless that which the defendant parted with is restored to him.

These equitable considerations are of no moment, however, if, as the respondent’s counsel contends, the assignment was absolutely void. It is insisted that the policy was a special provision made by the husband for his wife’s support during widowhood, under the statute of 1870 (chapter 277), and the several acts amending it, and, therefore, was not assignable by him, according to the construction given to that legislation by the courts. This claim presents the principal question in the case, and one not free from difficulty.

The assignment in this case was executed the 2d April, 1873. The act of 1840, as amended by several statutes prior to that date (Laws of 1858, chap. 187; 1862, chap. 70; 1866, chap. 656; 1870, chap. 277), enabled a married woman to cause to be insured, for her sole use, the life of her husband, for any definite period, or for the term of his natural life. The insurance might be effected by herself, and in her name, or in the name of any third person, with his assent, as her trustee. In case of her surviving such period or term, the policy money would be payable to her, to and for her own use, free from the claims of the representatives or creditors of the husband, or any party claiming under him. But such exemption would not apply to the excess over $500 of the premium paid in any year out of the property or funds of the husband; such excess, with the interest thereon, would inure to the benefit of the husband’s creditors. (Laws 1810, chap. 211.) The second section provided that the amount of the insurance might be made payable, in case of the death of the wife before the period at which it should become due, to her husband, or to his, her or their children, for their use, as should be provided in the policy of insurance, and to their guardian, if under age. (Laws 1866, chap. 656.) The Court of Appeals has held, in two separate cases, that a policy issued under that act, for the benefit of a wife, or, in case of her dying before her husband, of her children, is not assignable by her during the life of her husband. The first case (Eadie v. Simmon, 26 N. Y., 9) was decided in 1862. The policy bore date 6th of May, 1852. The report of the case does not show that the policy referred, in terms, to the act of 1840, but its provisions for payment to the wife, for her use, or in case of her death before her husband, to her children, for their use, or-to their guardian, if under age, showed clearly that it was framed in view of the statute. The other case (Barry v. Brune and ano., 59 id., 587) was decided in 1815. • The policy was issued in 1868, in conformity with the act, as was found by the trial court. Those cases furnish the rule of law for our guidance, and the only question remaining is, whether the policy in this suit was made under the act of 1840. It does not refer to the act, in terms, and its only provision respecting payment is that the company will pay to the assured (the plaintiff), her executors, administrators or assigns. The policy purports to be a contract with the wife, and it recites the payment of the first premium by her. On its face, it is a policy which would have been valid at common law, which recognized an insurable interest of a wife in the life of her husband. But the court found, on the last trial, that the policy was issued upon the application of the husband, and that he paid all the premiums. Those circumstances, and the fact that the policy was not payable till his death, warranted the further finding of the trial court, that the husband designed the policy as a provision for the support of the plaintiff during widowhood. The policy is, therefore, to be regarded as within the equity of .the statute, and consequently not assignable. The circumstance that the policy made no provision for children, does not militate against the idea that it was made in view of the statute, as there is no evidence that the plaintiff or her husband had children. These views do not conflict with the decision on the first appeal, as it there appeared that the premiums were paid by tbe wife.

It seems that by an amendment passed 23d of June, 1873 (L. 1873, ch. 821), a policy issued under tlie act of 1840 may now be transferred by the wife, by will or deed duly acknowledged, in case sire bas no child or issue of a child. But as that act was passed subsequently to the execution of the assignment to the defendant, it does not affect the present case.

A qtoint is made that the order of substitution having been made without notice to the defendant was void, and the court had no jurisdiction. At most, the order was irregular. The- defendant waived the irregularity by appearing and answering, and so this court held on the former appeal.

We think the judgment should be affirmed, witb costs.

Mullin, P. J., and Talcott, J., concurred.

Judgment affirmed, witb costs.