text:
    In the Matter of the Transfer Tax of the Estate of George William Sutton, Deceased.

      (Supreme Court, Appellate Division, Second, Department,

      Filed April 7, 1896,)

    1. Transfer tax—Equitable conversion.
    The doctrine of equitable conversion is not applicable to subject property to taxation.
    2. Same.
    The better rule is to assess the tax on the property transferred as the testator leaves it, without regard to the operation or effect of equitable rules that apply only to the administration of the estate.
    3. Same—Incumbrances.
    Where the testator’s entire estate is devised in trust, incumbrances on the land are not to be deducted from the personality, in determining the-transfer tax.
    James M. Hunt, for county treasurer; George A. Strong, for executor.
   BROWN, P. J.

The estate of the testator consists of both real and personal property (the real estate being subject to mortgages), and under his will, with the exception of a few legacies, the whole of it passes to the executor, in trust for the testator’s children and grandchildren. By the. provisions of the will, there was an equitable conversion of the real into personal estate; the executor being directed to convert the estate into money, and divide it into five shares, and to invest and hold one share for each child of the testator, and apply the net income thereof to the use of the child during its natural life, and upon its death to transfer the share to the issue of such deceased child per stirpes. The appraiser held that the whole estate was to be treated as personal property, for the purpose of determining the transfer tax. Upon appeal to the surrogate, the order entered upon the appraiser’s report was modified so as to exempt from the tax the equity in the real estate over and above the mortgages. From the order of the surrogate, the executor and the county treasurer have both appealed.

The questions presented to the court are: First, whether the real estate of which the testator died seised is, for the purpose of determining the transfer tax, to be treated as such or as personal property; second, if it is treated as real estate, whether in determining the amount of the tax, the debts of the testator secured by mortgages upon the real estate should be deducted from the personal property.

The claim of.the counsel for tlue county treasurer that the estate ¡should be considered personal property, for the purpose of taxation is not without force. There is a clear equitable conversion under the will, and the whole estate passes to the beneficiares as persona], property, and none of the real estate, as such, is transferred to them. The transfer tax is one upon the right of succession, and is levied upon successors in respect to the shares to which they succeed. In re Swift, 137 N Y. 77; 50 St. Rep. 81; In re Hoffman’s Estate, 143 N. Y. 327; 62 St. Rep. 245. In Hoffman’s Case it was said by Judge Finch that “the shares received, in the hands of the recipients, were the measures of the right which was subjected to assessment.” The tax is made a lien upon the property transferred, and may be enforced personally against the ■■successor charged. Laws 1892, c. 399, § 3. In view* of these decisions and this provision of the law, it is plausible to urge that the tax should be assessed upon the property in the form and ■«character in which it is transferred. This contention is supported by the decision of the snpreme court in Pennsylvania in Miller v. Com., 111 Pa. St. 321, and In re Williamson’s Estate, 153 Pa. St. 508. These decisions are, however, in conflict with the decision of the court of appeals In re Swift, supra, where it was held that the -doctrine of equitable conversion was not applicable to subject property to taxation. The question was referred to, but not decided In re Curtis, 142 N. Y. 219; 58 St, Rep. 348, Judge Finch saying that it was a difficult one. Swift’s Case was not one of an out and out conversion. It was there sought to apply the rule of equitable conversion, so aS to bring foreign real estate within the ■operation of our tax law. But I think it would be equally objectionable to apply the rule for the purpose of subjecting domestic real estate to taxation which would otherwise be exempt.

It has been said that the question of taxation is one of fact, and ■should not be made to turn on theories or fictions. In this case it is a fact that all the testator’s laud is transferred by his will for the use of his children. It is to be treated as personal estate only for •the purpose of administration; and it is to be treated so by force of ¡a rule of equity only, which at the present time, and perhaps for jears to come, will be a pure fiction. While the executor is directed absolutely to sell the land, an immediate sale was not contemplated by the testator, as he gave the “rent” to the life tenants. The land will therefore remain from which the life tenant will for ¡some time draw his or her income, and is in fact the tangible thing which is transferred by the will for the benefit of the testator’s children. There would, I think, be serious objection to a rule which would require th.e lax invariably to be imposed on the property in the form in which the transferee should receive it. Such a rule might permit personal property which under a will was equitably converted into real estate to escape taxation. The decisions upon this question are conflicting, and are -collected in Dos Passos on Inheritance Tax Law (2d Ed., note to pages 152-155). We are, however, of the opinion "the better rule is to assess the tax on the property transferred ■■as the testator leaves it, without regard to the operation or effect of equitable rules that apply only to the administration of the espíate. Such a rule is in accord with the policy of the law which exempts real estate transferred to or for the use of the persons-named in section 2 of the act, and in harmony with the fact, which doubtless dictates the state’s policy, that real estate always bears the burden of annual taxation, while personal property, to a very-large extent in proportion to its value, escapes taxation. The- ■ order, so far as appealed from by the county treasurer, must. therefore be affirmed. .

We are also of the opinion that the surrogate’s decision upon the second question presented was correct. By statute (Rev. St. pt. 2, chap. 1, tit. 5, § 4), it is provided that, when any real estate-subject to a mortgage executed by any ancestor or testator shall descend to an heir or pass to a devisee, such heir or devisee shall satisfy and discharge such mortgage out of his property, without resorting to the executor or administrator of his ancestor, unless-there be an express direction in the will of such testator that suck mortgage shall be otherwise paid. It is true that, under the will now before the court, the real estate is not specifically devised, nor is there any direction for the payment of the mortgages. The whole estate is transferred to the executor in trust for the benefit of the testator's children and grandchildren, and it is discretionary with the trustee to discharge the mortgages from either the real or personal estate. No conflict can therefore arise upon the question-from which class of property the mortgages shall be paid. If the property had been transferred directly to the beneficiaries either by will or the intestate laws of the state, the real estate would be compelled to bear the burden of the mortgages, and the tranfereewould have no right to have such debts discharged from the personal property. The same result must follow the devise in the will before us. It is of no importance to the executor or beneficiaries, except for the purpose of determining the tax from which fund the mortgages shall be paid ; and they cannot be permitted to be paid from the personal estate for the sole' purpose of increasing the exemption of real estate, or decreasing the amount of the tax to be paid. The testator has transferred his whole estate as a. single fund, for the use and benefit of his children. In holding-that, for the purpose of determining the tax, the real estate owned; by the testator at the time of his death must be treated as such,, we .could not extend that exemption beyond the value of the testator’s interest therein. It was such interest only that was transferred, and which will be held for the use of the beneficiaries, and such only that can be held to be exempt. This conclusion is sustained by the decision of this court1 in the First department in Re Livingston, 37 Supp. 463.

The order of the surrogate must be affirmed, without costs.

All concur.


source: Caselaw Access Project

author: BARTLETT, J.

license: Public Domain

text:
    Sanford S. Gowdey, as Executor, etc., Resp’t, v. Henry Robbins, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Bills and notes—Alteration—Burden of proof.
    Where a note bears marks indicating that it may have been altered' from the form in which it was first written, the burden of. explaining the apparent alterations in the instrument is upon the party producing the paper, who has had possession of it and who would benefit by the changes-made.
    2. Appeal—First instance.
    Even in the absence of an exception to the charge and of any request for a different instruction on the subject, the appellate court will grant „a new trial where the rule laid down by the trial court as to the burden .of proof may well have had a controlling influence upon the verdict.
    Appeal from a judgment for plaintiff entered on a verdict and from an order denying a motion for a new trial.
    S. S. Gowdey, for app’lt; Wm. Van Harnee, for resp’t.
   BARTLETT, J.

On May 1, 1878, the defendant, together with one W. A. Eobbins, since deceased, made and delivered to Henry A. Gowdey, the plaintiff’s testator, a promissory note, whereby they promised to pay $1,000 one year from that date to the order of the said Henry A. Gowdey, with interest at the rate of six per cent This suit was brought to recover the principal and interest due upon that instrument. The defendant admits the execution and delivery of the note sued upon, but claims to have paid $950 of the principal and all of the interest except $24. He was successful in making out this defense to the satisfaction of the jury, who rendered a verdict against him only for the amount which he conceded to be due, $74. To sustain the plea of payment, and also by way of counterclaim and set-off, the defendant relied upon a promissory note for $950, in which Henry A. Gowdey appears as maker and^-the defendant appears as payee. It bears, date on April 2, 1886, and is payable by its terms one day thereafter. After it had been produced and put in evidence, the-plaintiff admitted that the defendant was entitled to an offset of $150; and, although the -facts are not brought out very clearly on the record, it is manifest from the briefs and from the oral argument before us that the- point upon which the case turned was the-question whether this note, since its execution, had not been altered in date from 1885 to 1886, and in amount from $150 to $950. The learned- trial judge told the jury that there was no evidence it ever was altered, except such as appeared upon the face of the paper, and in this I am inclined to think he was right; but it seems to me he erred in adding, as he did, near the close of his charge, the following statement in respect to the burden of proof concerning the alterations in the instrument.

. ‘‘The defendant has produced a paper which, on the face of it, is a defense to this suit; and the duty of explaining it by showing that it is something else rests with the plaintiff in this suit. The plaintiff assumes the burden of showing that that note is other than whas it purports to be, or than what the defendant says it is.”

The note in question has been produced upon the argument of the present appeal for our inspection, and it certainly bears marks indicating that it may have been altered from the form in which it was first written. The body of the paper—all but the signature -—is in the handwriting of the defendant, who has had possession of it always, and who would benefit by the changes which are alleged to have been made in the date and amount. Under such •circumstances, I understand the rule in this state to be that the burden of explaining that apparent alterations in the instrument is upon the party producing the paper. Tillou v. Insurance Co., 7 Barb. 565; O’Donnell v. Harmon, 3 Daly, 424. In the case at bar, the proper instruction to the jury would have been that if, from the appearance of the paper, they believed it had been .altered as alleged, then the burden was upon the defendant of ¡showing that the alteration had been made before the note was signed. No exception, however, was taken to the portion of the •charge which I have quoted, nor-did the counsel for the appellant make any request for a different instruction on the subject, which would have called the attention of the trial judge directly and -distinctly to the point,- and doubtless have led to a correction of the charge in that respect. But, even in the absence of an exception, I think we ought to grant a new trial under the usual cir-•circumstances presented here, where the rule laid down by the court as to the burden of proof may well have had a controlling influence upon the verdict.

The judgment should be reversed, and a new trial granted.

All concur.


text:
    Washington H. Bird, Resp’t, v. The New Jersey & New York Railroad Company, App’lt.

      (Supreme Court, Appellate Divison, Second Department,

      Filed April 7, 1896.)

    1. Record—Notice.
    A document, the record, of which is to give notice at the time of a particular state of facts, must contain, either in itself or by reference to other sources of information, some indication of the facts of which notice is to given.

      2. Adverse possession—What constitutes.
    Where an intending purchaser enters upon land which is the subject of the contract, his possession is deemed subordinate to the rights of the owner until the conditions entitling hiiq to a conveyance have been fully performed.
    3. Same.
    If there is a mere license, no adverse possession can arise out of the occupancy of the land by permission.
    4. Ejectment—Recovery.
    Where, in an action of ejectment, the trial'court, at the instance of defendant, finds that it had been in actual possession "of the strip of lundj described in the complaint,” and renders judgment for plaintiff for the same property, for the reason that defendant’s possession was not adverse, ■defendant cannot claim that the recovery was for a strip of land sixty-six feet wide, where the evidence showed that it had occupied a strip eighteen feet wide.
    .Appeal from a judgment in favor of plaintiff.
    Robert Thorne, for app’lt; George R Bristor, for app’lt.
   BARTLETT, J.

By the judgment in this action, the plaintiff lias established his right to the possession of a strip of land near Union Station, in the county of Rockland, occupied for railroad purposes by the defendant. The sufficiency of the proof of the plaintiff’s title is not questioned, except so far as the defendant ■claims that it is defeated by the evidence of adverse possession. In order to make out the defense of adverse possession, it was necessary to show that the railroad company had been in open, continued, and actual accupation of the premises in controversy for more than twenty years before the commencement of the action; and, furthermore, that such possession had been under a claim of title hostile to that of the plaintiff. The court found that, the defendant and his legal predecessor had been in open, continuous, notorious, and actual possession of the strip of land described in the complaint for more than twenty years, but held, in substance, that such possession was subordinate, instead of ••adverse, to the plaintiff’s title. A mortgage of the railroad property generally was made by the defendant’s predecessor in title on November 1, and recorded on December 30, 1870 The railroad ■company had not then taken possession of the land in controversy. 'The mortgage referred to the mortgaged railroad property “as the same is located by survey duly filed m the office of the clerk of the county of Rockland.” As a matter of fact, no such survey bad then been filed. In June of the following year, however, the railroad company filed in the office of the county clerk a profile and location of its right of w.ay, showing that the railway line was located upon the identical lands described m the complaint.

Upon these facts,, it is contended, in behalf of the appellant, that the mortgage constituted a claim of title to the lands in suit adverse to that of the plaintiff or his predecessors, and of which they must be deemed to have had notice, by reason of the record ■of the instrument. I do not think this position is tenable. No ■one inspecting the mortgage at the time when it was recorded ■would find anything in it to indicate that it could, by any possibility, refer to the premises which are the subject of this suit. It •spoke of a survey as having been already duly filed in the office ■of the county clerk. If the searcher had looked for that survey, he would have looked for it in vain. For the purposes of notice, I do not see on what principle it can be held that the profile, which was filed with the county clerk six months later, referred back to that instrument, so .as to constitute a part of it. A document the récord of which is to give notice at the time of a particular state of facts must contain, either in itself or by reference to other sources of information, some indication of the facts of which notice is to be given. So far as this mortgage referred to the survey, it referred to something which did not exist at the time of its record, or come into existence until long afterwards. The mortgage also purported to convey to the. mortgagees the railroad as the same was being constructed, including the roadway, lands, bridges, rails, embankments, and other superstructures built or being built at the time it was executed. It might be said that this provision was broad enough to cover the premises to which this suit relates, if the railroad company had then entered upon those premises; but the proof, shows that no entry was made upon the land in question until 1871, and probably not until 1872.

But even if a claim of title adverse to that of the record owners could be spelled out of this railroad mortgage and profile, and the filing of the same, the proof in this case shows very clearly that: the railroad company abandoned any such claim when, in the process of construction, the premises in controversy were reached. The civil engineer and surveyor who represented the corporation in acquiring its rights of way, and in negotiating with landowners for that purpose, had a conference with the agent of the lady who then owned this property. He promised to pay her $500 for the-use of the ground if the railroad company was allowed to occupy •it; and it is apparent that -it was on the strength of this promise, and only in consequence thereof, that the construction of the line was permitted over the land in question. The testimony of the-witness who represented the owner in the negotiations is not substantially contradicted by the civil engineer who acted in Behalf' of the railroad company. He himself stated that his business was-to go around and buy land, and that he offered to buy this property if the owners would give him a deed. He could not recollect offering or agreeing to pay anybody a specific sum for this land, but would not swear that he had not done so. There.is other testimony which sustains the statement made by the learned trial judge, in the course of bis opinion, that, “instead of claiming title, the defendant and its predecessors have all along been promising to pay the amount agreed to be paid when let into possession under the license.” Upon the entire evidence as to the circumstances under which the railroad company entered upon the property, it is quite clear that there was either an agreement to purchase for a specifieds sum, or-a simple license to occupy until some terms should be arranged between the parties. In neither case could the occupation be deemed adverse. Where an intending purchaser enters upon land which is the subject of the contract, his possession is deemed subordinate to the rights of the owner until the conditions entitling the buyer to a conveyance have been fully performed. In re Department of Parks, 73 N. Y. 560, 566. If there was a mere license, no adverse possession could arise out of the railroad’s occupancy of the land by permission. Borden v. Railroad Co., 5 Hun, 184, affirmed in 67 N. Y. 588.

Only one other point requires notice. The appellant contends that the plaintiff has been permitted to recover too much land, inasmuch as the evidence shows that it actually occupies a strip only eight feet wide, whereas the strip described in the complaint is sixty-six feet in width. I do not think this objection is available. At the express request of the defendant’s counsel, the trial court found that the defendant and its legal predecessor had been for more than twenty years in actual possession “ of the strip of land described in the complaint. This is a finding, made at the defendant’s own instance, that it was in occupation of the entire parcel which the plaintiff sought to recover. The request was made at the end of the trial, and in the light of all the evidence, .and the appellant has no ground for complaint because the court •complied with it.

The judgment should be affirmed, with costs.

All concur.


text:
    Patrick Jones, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Pbincipai, and agent—Gabbier.
    Agency to ship animals carries with it the power to make a contract as to the terms and conditions of the shipment.

      S. Same.
    Where the evidence of the intehigent execution of a contract limiting the carrier’s liability is uncontradicted, the contract will be held valid.
    Appeal from a judgment in favor of plaintiff and from an order -denying a motion for a new trial.
    ' Charles Howland Russell, for app’lt; Augustus R Weller, for resp’t
   BARTLETT, J.

I think the plaintiff was entitled to recover in this action but that the amount of the recovery should have been limited to $1,200. The plaintiff, through his agent, shipped a car load of polo ponies for transportation over the Erie Railroad, from Buffalo to New York. Near Middletown the freight train in which the animals were being carried became separated into three parts, and a collision occurred, which inflicted considerable injury upon a number of the ponies. The proof sufficied to establish the negligence of the defendant, and the only question really litigated related to the effect of a release denominated a “Uniform Live-Stock «Contract,” which was signed by the plaintiff’s agent at the time of the shipment at Buffalo. This agreement limited the liability of the carrier to a sum not exceeding $100 each for horses, and an aggregate amount not exceeding $1,200 upon any car load of animals. The learned trial judge correctly instructed the jury that the defendant had a right to make a contract of this kind, limiting .its liability, and that the plaintiff, when he intrusted his horses to ■the man who signed the release, gave that person the power to make such an agreement with the railroad company. In other words, the agency to ship the animals carried with it the power to> make a contract as to the terms and conditions of the shipment; so that, unless the plaintiff was able in some way to avoid the agreement which his agent signed, he was not entitled to recover more than $1,200 for the injury, suffered by the animals in consequence of the collision. The view of the evidence on which the case went to the'jury, so far as the validity of this release was-concerned, seems to have been that there was testimony from which it could fairly be inferred that the plaintiff’s agent was-misled by the shipping clerk of the defendant at Buffalo in regard to the character of-the'paper which he signed, and was given to-understand that it related to his own application for a pass on the freight train, as a caretaker of the animals, and had no reference’ to the transportation of the ponies themselves. It does not seem to me, however, that such a view of the evidence is warranted by the record. The plaintiff’s agent, who made the shipment, and brought the ponies down, did not say a word indicating that anything whatever occurred between him and the shipping clerk from which he could have received a false idea as to the character of' the release. According to his testimony, he signed the paper at-the request of the representatives of the,railroad at Buffalo, without reading it, or having time to read it, just before the train left-with the horses on board. He does not testify to any statement, made to him by any person ás to the nature or effect of the paper; nor does he say anything from which it can be inferred that he-believed it to relate .in some way to a pass for himself. The latter-suggestion must have come from the testimony of the shipping clerk, who, upon his cross-examination, stated that the plaintiff’s-agent carne into the office at Buffalo to get his pass, and was told, when requested to sign the contract, that he would not require any pass, inasmuch as his name was put upon the running bill which went with the train. But this same witness had previously stated that the release was signed by the plaintiff’s agent before-the ponies were upon the train, and while he still had plenty of time to read the contract; and subsequently answered two questions by the court, as follows: ' “Q. When you spoke to him, did you say that this was a live-stock release? A. Yes, I always-called them ‘releases.’ Q. Those are the words you used to-Smith? A. Those are the words.” The plaintiff’s agent, Smith, was not called to contradict the shipping clerk in this respect, so-that there is uncontradicted testimony in the case to- che t effect-that be was told what the instrument was at the time he signed it. This evidence, it seems to me, should have been deemed controlling, particularly in view of the fact that two documents were-signed by the plaintiff’s agent at the time of the shipment. One was the release relating to the animals, which bears the signature, “P. Jones, Shipper, by Charles Smith, Shipper’s Agent.” The-other was a release of liability for any inj ury which might be sustained by the caretaker. This bears the signature “Charles Smith, in charge.” It is apparent, therefore, that Smith must have known that he signed more than one instrument, and, having; heard one of them, characterized or described as a live-stock release, could not have supposed that it referred to anything else but the pones. There would have been a question for the jury on this branch of the case if he had testified to anything tending to show that he was misled us to the true nature of the contract limiting the liability for injury to the ponies, and had been able to deny the statement of the shipping clerk that lie called the instrument a live-stock release,” when he asked for the signature; but, in the absence of any denial in this respect,T think the contract should have been deemed valid and effectual. If it had been so regarded, the amount of the verdict would have •been restricted to $1,200. If the respondent will consent that the verdict be reduced to that amount and the' extra allowance-to $60, the judgment should be affirmed. Otherwise I think there-should be a reversal, and a new trial.

All concur.


author: PATTERSON, J.

text:
    Isabella R. Innes et al., Resp’ts, v. Manhattan Railway Company et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Elevated railroads—Abutting property.
    Where, on the trial of an issue of damages caused to certain abutting property by the construction of an elevated railroad, evidence is offered of the course of rents of adjacent abutting property, which was objected to on the ground that the property as to which the evidence was offered was entirely dissimilar in character, location and use from the property in suit, “arid also on other grounds,” the objection does not raise the point that-the evidence offered tendered to the court a different issue from that directly involved.

      2 Same—Decision.
    The fact that the decision of the court is in form a determination that the easements in and of themselves were of the value specified, does not call for a reversal where the court intended to find that the consequential damages to the fee values in consequence of the taking of the easements was the sum fixed upon.
    3, Same—Finding on appeal.
    The general term will supply a finding that the consequential damages, are in the amounts fixed by the trial justice.
    Appeal from a judgment in favor of plaintiffs.
    S. Smith, for app’ls; H. A. Forester, for resp’ts.
   PATTERSON, J.

appears that these causes were tried together upon substantially the same state of facts, the differences relating principally to values. They are the ordinary actions for an injunction and damages against an elevated railway company. The premises belonging to the plaintiff Isabella B. Innes are Nos. 269, 271 and 273 Third avenue, concerning which the court below found that the fee damage was $7,000, and the rental damage from the time that the plaintiff became the owner in severalty of the premises, which was July 23, 1888, is the sum of $1,889.21. In the case of Susan W. Innes,. who was the owner of 277 Third! avenue, the fee damage was fixed at $2,200, and the rental damage at $404.83; and in the William T. Innes action the fee damage was fixed at $1,600, and the rental damage at $404.83. The' proof usual in such cases respecting the effect of the construction, and operation of the elevated road was fully presented, and the only questions before the court are as to the admission of incompetent evidence, the reasonableness of the amounts awarded both. for fee damages and depreciation of rental values, and the form of-the decision entered by the justice before the case was tried. It is •claimed by the appellants that evidence was admitted on the sub-: ject of rental value incompetent under the ruling of the court of-} appeals in the case of Jamieson v. Kings Co. E. Railway Co., 147 N. Y. 324; 69 St. Rep. 688. In almost every appeal presented to us in this class of cases since the decision of the court of appeals in the Jamieson Case was announced in October last, we are urged under its authority to reverse the judgment appealed from. That we are compelled to do and have done whenever the record showed that a specific objection was taken, by which the pxact question was plainly raised, and when it must have been inferred that the incompetent testimony admitted might have affected the court in its determination of the real issues between the parties; We find in these cases that the objection taken by the counsel for the defendant does not raise the point. decided in the Jamieson Case. Mr. Thompson, the cashier of the Fifth National Bank, whose building is located at the southwest corner of Twenty-, Third street and Third avenue, a distance of two blocks above the, premises here involved, was called upon to testify respecting the-course of rents of the bank building for a certain period of time.; This was objected to upon the specific ground that the building about which the'witness was asked was entirely dissimilar in chaT-j -acter, location and use from the buidings in suit, “and also on, other grounds,”—but the other grounds are not stated. Under, .this specific objection the point was not raised that the evidence offered was tendering to the court a different issue to be tried from that which was directly involved in these cases. The point ¡ of the decision of the Jamieson Case is that, to allow evidence off the course of values of specific buildings other than the one the .subject of the action, is compelling the court to try collateral is- " sues, and, as was said in that case, leaving it to the court to try a! dozen issues over as many different parcels of property. The learned judge, in passing upon the objection taken in these cases, did say that the testimony was competent on the question whether: or not there was a serious impairment of the fee value, and that its was proper to show that the injury inflicted, namely, the trespass^ by the elevated road, limited the use of the, property, and was admissible on the question of fee damages; but the attention of the court was not called by the objection, nor, as it would appear, in any other way, to the real point involved in the decision of the; Jamieson Case. The objection went only to the location and ch'ár-¡ acter of the bank building, and not to the incompetency of any proof of the-general character of that offered, the counsel for the defendant stating that the only thing he wanted “to bring out is the very different character of this property. If that is brought out in the examination, I am perfectly satisfied to leave it in.” Therefore, for the want of a proper objection, we must disregard the exception to the ruling under consideration.

We have examined the proofs with reference to the amounts awarded by the court both for fee and rental value, and we are satisfied that such awards were not excessive, but-reasonable and moderate. The ordinary divergence observable in every case between the estimates of Mr. Martine, the professional witness for the plaintiffs, and Mr, Davis, the professional witness for the defendants, appears in this case, and the court, in the exercise of its judgment, has drawn its conclusion from this conflicting testimony. It is one we do not feel called upon, under the state of the evidence, to disturb. The awards for rental value are very moderate. As to fee value, the testimony showed that this property in Third avenue along the line of the elevated road had not increased in value in the same proportion that neighboring properties not affected by the presence and operation of an elevated road had done.

Concerning the objection to the decision of the court (which is in the short form) that the value of the easements appropriated by the defendants was a certain amount in each case, it is sufficient to say that, though in form a determination that the easements in and of themselves were of the value specified, it is obvious that the court intended to find that the consequential damages to the fee values in consequence of the taking of the easements was the sum fixed upon, and this mere technical error as to the form does not call for a reversal of the judgment, but simply for a finding by us that the consequential damages are in the amounts fixed by the trial justice.

On the whole case we see no good reason for doing otherwise than affirming the judgments with the modification referred to.

All concur.


author: PER CURIAM.

text:
    Mortimer J. Brown, Resp’t, v. Mills W. Barse, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Principal and agent—Liability.
    Where an agent presumes, without authority, to employ a broker to negotiate bonds for his principal, he is personally liable for the commissions agreed to be paid to the broker for negotiating the bonds.

      % Witness—Examination.
    Where, in an action to recover commissions for negotiating the sale of bonds, the defendant denies having employed plaintiff to make the sale, and, the plaintiff, on being asked, on cross examination, as to whether defendant had not befriended him, replies that he had complained of defendant’s treatment in a certain transaction, it is reversible error to allow plaintiff, on re-direct examination, to show that the transaction referred to was one in which he was employed by defendant to negotiate a loan for him, and in which the defendant, after plaintiff had succeeded in negotiating the loan, closed the transaction with the lender without plaintiff’s» knowledge, and thereby deprived him of his commissions.
    Appeal from a judgment for plaintiff, entered on a verdict, and’ from an order denying a motion for a new trial.
    William H. Page, Jr., for app’lt; Johnson & Lamb, for resp’ts..
   PER CURIAM.

This is an action to recover commissions on. a sale of $51,000 par value of the bonds of the Adirondac League-Club. The plaintiff testified to his employment by defendant, as* a broker, to negotiate a 'sale, and an agreement for compensation’ of five per cent, of the par value of the bonds. f Evidence was-given tending to show that the plaintiff induced Dr. Hoagland to-purchase the bonds. The defendant denied his employment of. the plaintiff. The case was submitted to the jury on two questions—the employment of the plaintiff; and whether the plaintiff had effected the sale. By their verdict the jury have determinedi both questions in favor of the plaintiff.

The main point urged on this appeal is that the verdict was* againgt the weight of evidence. We think that there was no such preponderance of testimony, on either side, as to justify us in setting aside any verdict the jury might render. After the sale to Dr. Hoagiand the defendant* telegraphed to the plaintiff: “You have made a good sale. I will arrange your commissions when I return.” This telegram tends strongly to show that defendant-must have had some agreement or arrangement with the plaintiff’ on the subject. If it be conceded that the telegram was compatible with the defendant’s acting in the matter only as the agent of the club, it is sufficient to say that the defendant makes no claim that he acted as agent, but denies utterly any employment of the plaintiff. Further, if defendant assumed to act as agent of the club, he still would be personally liable, for both his own testimony and that of the club officers proved that such action on his* part would have been without authority.

It is unnecessary to discuss the criticism made on the form of the complaint, because any defect in that respect, if such there-were, was cured by the evidence and the verdict.

The admission of the testimony of the plaintiff as to a transaction had between himself and the defendant, other than the one the subject of this action, presents a question more doubtful. The plaintiff, on his cross-examination, had been asked whether the defendant had not befriended him. He said no; that he had complained of the defendant’s treatment in one transaction. On! the redirect examination the witness was allowed, against the defendant’s objection and exception, to state what that transaction was. The statement was, in effect, that defendant had employed the plaintiff as broker to obtain a loan on securities; that the* plaintiff had substantially succeeded in negotiating the loan with a trust company, when the defendant, without plaintiff’s knowledge, visited the president of the company, and closed the negotiation himself, depriving the plaintiff of his commission. We cannot see that the cross-examination warranted the admission of this evidence. The transaction was not called out by the cross-examination. This error we think too serious to be overlooked. The effect of the evidence was to prejudice the jury against the defendant, and might lead the jury to believe that, if the defendant bad once, by sharp practice, deprived the plaintiff of his commission, he might be repeating his course in the transaction the subject of this litigation.

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


author: RUMSEY, J.

text:
    Harmon Hendricks, Individually and as Trustee, etc., Resp’t, v. Albert Hendricks et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed April 19, 1896.)

    Wills—Bequest—Vesting.
    Where the income of a trust fund is to be used for the support, care and maintenance of a beneficiary, and the whole of it is to be devoted for that, purpose, and the trustees are bound so to use it at such time and manner as is for the best interest of the cestui que trust, the whole income vests iu the cestui que trust.
    Appeal from a judgment in favor of plaintiff.
    'George W. Wickersham, Joseph H. Adams, Alfred Lyons, and Christian G. Moritz, for app’lts; S. P. Nash, M. H. ' Cardozo, Gratz Nathan, and Edward S. Eaufman, for resp’t.
   RUMSEY, J.

— The plaintiff is a trustee under the will of Charlotte Gomez, deceased, and he brings this action for an accounting as such trustee, and that the court may declare who are entitled to the funds in his hánds, his trust having determined, and to direct the payment of such funds to the proper person. There is no dispute as to the facts. They are that in the month of February, 1848, Mrs. Charlotte Gomez made her will, and that she died on the 1st day of December, 1849, and her will was admitted to probate. She was at that time a widow with two daugters, one of whom, Emmeline, died in 1885; the other, Matilda, died on the 6th day of December, 1893. The defendant Edmund Hendricks is the administrator of Matilda Gomez, and among the other defendants are the heirs-at-law of Harmon Hendricks, a brother of Mrs. Charlotte Gomez. It appeared from the account of the plaintiff that as trustee under the will of Charlotte Gomez there was in his hands for distribution, besides the principal of the trust fund, something over $30,000, which had been saved out of the income since the trust was created. The question presented was whether, under the will of Charlotte Gomez, this saving belonged to Matilda Gomez, the cestui que trust, and therefore was to be paid over to her administrator, or whether it passed to the heirs of at law of Harmon Hendricks under one of the provisions of her will. The referee came to the conclusion that this sum did not vest in Matilda Gomoz during her life, but was undisposed-of income, and passed to the heirs of Harmon Hendricks under the will. The correctness of this conclusion is challenged by the administrator, and that presents the only question which is to be decided in this case.

The first clause of the will of Mrs. Gomex gave to her executor the sum of $12,000, invested in Croton water stock, “to be held by them in trust to apply the yearly income and dividends thereof in and towards the support, maintenance and clothing of my daughter Matilda, during her natural life, charging on them that while her unhappy state continues they carefully attend to her wants and necessities in the said application of the said interest, income or profits to her said maintenance, support and necessities.” By the second clause of the will she devised the residue of her estate to trustees to pay over to her daughter Emmeline, with certain limitations, which are not material here. By the fourth clause, in case Matilda survived Emmeline, Mrs. Gomez bequeathed all the property, real and personal, devised to be held in trust for Emmeline, to her executors, “ to be held in trust to apply the rents, income, dividends and profits of all and singular the same to the support, maintenance, wants and necessities of my said daughter Matilda during her natural life, and after her decease to transfer, convey and set over all and singular the same, my real and personal estate so left in trust, to the children and lawful heirs of my brother Harmon Hendricks.” Emmeline, as has been seen, died before Matilda, and thereupon the trustees took the whole estate in trust for Matilda, under the last provisions of the will. Matilda Gomez was an inmate of an insane asylum at the time of her mother’s death, and she continued in that condition until the time of her death, in 1893. The income which was not necessary to be used for her support was deposited by the trustees from time to time in different savings banks in the city, where it remained, and where it was at the time this áction was brought. In concluding whether this income vested in Matilda Gomez absolutely as cestui que trust under this will, at the time when it was earned, as claimed by her administrator, it is necessary to ascertain what is the intention of the testator, for in this, as in all other cases, the intention of the testator'is the sole thing to be ascertained in the construction of a will. In looking for that intention, which must be sought in the words of the will itself, so far as may be, it is first to be noticed that in no one of the clauses of the will does the testator make any provision for an accumulation of income. In the first clause she provides for the payment of the income to the maintenance and support of her daughter Matilda. In the second clause she requires the trustees to pay the income to her daughter Emmeline. In neither clause does she make any provision for the disposition of undisposed-of income. It is clear that she intended that Emmeline should receive all the income of the trust fund created by the second clause of the will. If she had a different intention as to the share of Matilda in the first clause, it is probable she would nave said so. The amount of the trust fnnd disposed of by the first clause of the will is $12,000, which stands, as she says, at 5 per cent., the yearly interest then being $600. It was quite clear that that sum was not much, if any, more than sufficient to meet the yearly necessities of her daughter Matilda, with such reasonable provision for contingencies as a careful person would make, and there was every reason to suppose that all of that income wonld be required for the purposes of the trust. As a matter of fact, it appeared that for the thirty-six years during which Matilda received only the income of this $12,000, and until the death of Mrs. Adolphus, the surplus above what was required for her necessities, with compound interest as allowed by the savings bank, amounted to-only $2,700,' so that it is quite clear, that substantially the whole income was required for Miss Gomez’s support. There is good reason, then, with regard to that fund, why the testator should not have made any provision for the undisposed-of income. But if she thought that the income of $12,000 would be sufficient to maintain her daughter in the asylum, she must have known that, if Matilda outlived Emmeline, the income which her trustees would receive under the fourth clause of the will would be very much -more than the sum required to supply her simple wants in the asylum, and, if she had intended to make any different disposition of that increased income than of the smaller income provided for by the first clause, she would undoubtedly have done it, and, as she did not do it, it is fair to assume-.that she intended the income in each case to' take the same direction. 1 Besides that, we see, in looking at the fourth clause, that the devise over after the death of Matilda excludes the income and includes only the real and personal estate left in trust. If it was intended that the income should pass, certainly these words, which are practically words of exclusion of the income, would not have been used. The fact that the income was more than sufficient for the wants of Matilda Gomez affords no inference that there was any intention to accumulate the income, because no accumulation of income is allowed except for one who is a minor at the time of the death of the testator, and no construction of the will which would admit of the intention to accumulate can be indulged in in the face of the rule that an intention which is contrary to the statute will not be inferred unless it is absolutely necessary to infer it. Van Nostrand v. Moore, 52 N. Y. 12; 2 Jarm. Wills (5th ed.) 842; Roe v. Vingut, 21 Abb. N. C. 404; 17 St. Rep. 123. By the terms of the trust in the first clause the trustees are directed to apply the yearly income to the support and maintenance of Matilda; and by the fourth clause they are directed to apply the income, dividends and profits of all and singular the estate to the same purpose. It is contended on the part of the respondents that this provision gives.to the trustees a discretion as to how much of the income of the trust estate shall be applied to the use of the cestui que trust. We do not think so. The direction in the will is to apply the “yearly income,” “the income, dividends and profits of all and singular the real and personal property.” These words leave no discretion in the trustees as to the amount of income which shall be applied, but they directly require the particular portion of the income specified in the will to be applied to the purposes for which it is intended. The only discretion in the trustees is a discretion as to the time and manner of the application. It was not left to their judgment to say whether or not she required all the income, nor whether a particular portion only should be devoted to that purpose, but the will expressly prescribed that all of it was to be applied- to the purposes of the trust. In the case of Bronson v. Bronson, 48 How. Prac. 481, the trustees were directed to apply to the sole and separate use of the cestui que trust the income of her portion of the estate, and the court held that under that provision the whole of the income vested in the daughter. In Beevor v. Partridge, 11 Sim. 229, the will bequeathed to trustees certain money for the maintenance, support, and benefit of the testator’s three children in such shares and proportions and manner as the trustees should think proper, but the court in that case held that the whole income was to be given for the benefit of the children, and that the whole income belonged to them, and the trustee had no discretion as to the amount which should be applied. The same rule was laid down in the-case of Webb v. Kelly, 9 Sim. 469, and in the very recent case of Gasquet v. Pollock, 1 App. Div. 512. The trust in that case was to collect and receive the income and apply the same to “ the use of my daughter Maria,” who was not of sound mind; and this court there held that the trustees had no discretion as to the amount of the income which should be applied, but the title to the whole of it vested in the daughter. There aromases, to be sure, some of which are referred to by the learned referee in his opinion, in which it was held that the trustee had discretion as to how much of the income should be devoted to the purposes of the trust. But in each one of those cases the court decide upon the ground that the words used were apt* to vest in the trustee a discretion as to the amount of the income to be applied to the purposes of the trust. The case of McKnight v. Walsh, 24 N. J. Eq. 498, did not involve the question here presented. In that case the devise was, “ he, my said executor, appropriating and expending the legal interest arising from said sum toward the proper maintenance and education of such children.” -The court held, not that the executor had' discretion as to how large a portion of the income should be paid for the benefit of the children, but it was not proper for a trustee to pay the whole interest of the trust fund to the father of the children, to be used for the benefit of the children, and thereby abandon all exercise of his own discretion. The case does not bear at all upon the questions presented here.

We have, then, this situation of affairs: that the income of the trust fund was to be used for the support, care, and maintenance of Matilda Gromez, and that the whole of it was to be devoted to that purpose, and that the trustees were bound so to use it at such time and manner as was for the best interest of the cestui que ."irust. Whenever such a case as that presents itself, the rule is that the whole income vested in the cestui que trust. If it so vested, then certainly, at her death, it belonged to her administrator, and it did not pass to the heirs of Harmon Hendricks as undisposed of income. For this reason we have- come to the conclusion that so much of the judgment as directs that the undisposed of income and its increase shall be paid to the heirs at law of Harmon Hendricks is incorrect,' and the judgment must be .modified by striking out that portion thereof, and directing instead that the remainder of undisposed-of income in the hands of 'the trustee after paying the charges against it as directed by the judgment should be paid over to the administrator of Matilda Gomez.

The judgment is therefore modified accordingly, and, as modified, is affirmed, with costs to the appellant to be paid out of the funds in the hands of the substituted trustee.

All concur.


text:
    John J. Carmody, Resp’t, v. City of Mount Vernon, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    Municipal corporation—Civil service regulations—Instruction.
    Civil service regulations of Mount Vernon should be construed in. the light of the rule that general words will be restrained to things of the same kind as those particularized in a subsequent clause.
    Appeal from a judgment in favor of plaintiff, entered on a decision of the county judge after a trial without a jury.
    David Swits, for app’lt; Milo J. White for resp’t.
   BARTLETT, J.

The plaintiff recovered judgment for thirty-seven days’ services in November and December, 1894, as an inspector on the work of grading and macadamizing Sixth avenue in the city of Mount Vernon. The sole ground of objection to this judgment is that the plaintiff was thus employed without having passed a civil service examination.

The civil service regulations prescribed by the mayor of Mount Vernon, which were in force at the time of the plaintiff’s employment, classified the officers and employes of the city under several schedules. The only one which could be construed to include the position occupied by the plaintiff was Schedule B. Examinations were essential to valid appointments to places embraced in that schedule. It included “all clerks, copyists, recorders, stenographers, bookkeepers, and others rendering clerical services, and not included in Schedule A, and all policemen, firemen, messengers, orderlies, court attendants, guards and keepers in jails and prisons, and all persons employed or appointed in the public service, and not specially included in Schedules A, 0, and D, viz.: Police department, chief, assistant chief, patrolman, station-house keeper, sanitary inspector.” The county judge held that the words, “all persons employed or appointed in the public service and not specially included included in Schedules A, 0, and D,”would extend to the plaintiff’s position were it not for the succeeding clause, following the videlicet. That clause, in his opinion, operated as a limitation upon the preceding phrase “all persons,” so that these general words were restricted in their application, and included only the specified classes of appointments in the police and sanitary service of the city. According to this construction, the position óf an inspector of grading and macadamizing was not covered at all by the civil service regulations of Mount Vernon at. the time the plaintiff’s services were rendered, or it belonged to a class outside the regulations, for which no examination was then, required.

I think the views of the Teamed trial court in this respect were correct. It was proper to' construe the civil service regulations of Mount Vernon, just as it would be to construe a statute, in the light of the rule that general words will be restrained to things of the same kind as those particularized in a subsequent clause. See Smith v. People, 47 N. Y. on page 337; Sedg. St. Const. (Pom. Notes) 360. The mention of the police department, police officers-' and sanitary inspectors in the last clause of Schedule B was needless and meaningless unless the intention was to qualify the general language which preceded it.

We are not called upon in this case to consider or determine the-effect of the new constitution (article 5, § 9) upon regulations established by municipal authorities under the civil service law-chapter 354, Laws 1883, as amended by chapter 681, Laws 1894). The plaintiff was employed, and all his work was done in 1894, before the new constitution went into operation.

The judgment should be affirmed, with costs.

All concur.


text:
    Z. Edwards Lewis, Resp’t, v. George K. Thompson, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)
    1. Trespass—Treble, damages.
    The Code of Civil Procedure confers the right to maintain an action for the recovery of treble damages only upon the owner of the land.
    2. Same.
    Notwithstanding his claim for treble damages under the statute, the tenant is entitled, at common law to recover his actual damages, if he proves to the satisfaction of the jury that he was in possession and occupation of" the premises upon which the tree cutting was done.
    Appeal from a judgment in favor of plaintiff.
    Henry G. K. Heath, for app’lt; 0. H. & J. A. Young & Terry, for resp’t.
   BARTLETT, J.

This suit differs in some respects from the ordinary action of trespass for the disturbance of possessory rights. The complaint not only states facts sufficient to constitute a cause of action in such a suit, but the prayer for treble damages indicates that the purpose of the plaintiff was to enforce the statutory remedy given by section 1667 of the Code of Civil Procedure where the trespass consists in cutting down trees, and the stipulation in the record to the effect that the action was brought under that section leaves no doubt on the subject. It does not seem tome, however, that the plaintiff has established such an ownership in the land upon which the trees are alleged to have been cut as to-entitle him to the remedy provided for by that section. The plaintiff was merely a lessee for years of the premises upon which the trees stood. The Code of Civil Procedure confers the right to-maintain an action for the recovery of treble damages, in such cases, only upon i!ie owner of the land. I do not .think a lessee-for years is to be deemed an owner, within the meaning of the-statute.

The provision of the Code is as follows:

“If any person cuts down or carries off any wood, underwood, tree, or timber, or girdles or otherwise despoils a tree on the land of another, without the owner’s leave; or on the common, or other land, of a city, village, or town, without having right or privilege in those lands, or license from the proper officer; an action may be-maintained against him, by the owner, or the city, village, or town, as the case may be.”

This provision was derived from a similar one in the Revised Statutes, in these words:

“ Every person who shall cut down or carry off any wood, underwood, trees, or timber, or shall girdle or otherwise despoil any trees on the land of any other person, without the leave of the-owner _ thereof, or on the land or common of any city or town, without having any right or privilege in such commons, and without license from the corporation or proper officers of such city or town, shall forfeit and pay to the owner of such land, or to such city or town, treble the amount of the damages which shall be-assessed therefor in an action of trespass, by a jury, or by a justice of the peace in cases provided by law.” 2 R. S. (2 ed.) 261, 262.

The provision just quoted from the Revised Statutes was itself based on an earlier enactment, to be found in the Revised Laws, which provided, in substance, among other things, that if any person should cut any wood, underwood, trees, or timber on the land of another, or carry off the same, “without leave or permission of the owner or owners thereof," such person should pay “ to the owner or owners of such land treble the value of the wood, underwood, trees, or timber cut or carried off as aforesaid, to be recovered, with costs, in an action of trespass, before any court having cognizance of the same, by the owner or owners of the land on which such trespass shall have been committed.” 1 Rev. Laws, pp. 525, 526.

It will be observed that under the Revised Laws the recovery provided for was merely three times the value of the wood cut or carried away. The Revised Statutes enlarged the measure of possible recovery to three times the damage done by the trespass. See Revisers’ Notes, Appendix to 3 Rev. St. (2 ed.) 716; Van Deusen v. Young, 29 N. Y., on page 25. This may be; and ordinarily would be, very much more than simply the value of the wood. Thus, in Argotsinger v. Vines, 82 N. Y. 308, where the trespasser had cut timber from twenty-two acres of woodland on a farm, it was held that the measure of damages was the difference in the value of the farm with the timber on it and after the timber had been cut.

In all this legislation relative to the recovery of treble damages for trespasses of this character, the remedy has been given to the owner or owners of the land upon which the trespass was committed. That the owner or owners of the freehold must be meant seems to me to be shown by the restriction of the damages in the early statute to three times the value of the wood cut. A tenant or lessee fop years would have no property or interest in such wood. It would belong to the owner of- the inheritance, and he alone could recover its value at common law. The right to recover three times its value was given-to him; and I think the term 41 owner ” or “ owners,’ having been used in this sense in the Revised Laws, was used in the same sense in the Revised Statutes and in the present Code of Civil Procedure, whose provisions on this subject are unquestionably based on those of the Revised Laws. The same conclusion as to the meaning of the word ■“owner ” in enactments of this sort is sustained by authority. No -case in this state has fallen under our notice in which a suit founded upon section 1667 of the Code has been maintained or attempted by any person who was not an owner of the fee of the -land where the trees or timber grew. Similar statutes exist, however, in many other states, and we find adjudications in Illinois, Michigan, and Mississippi to the effect that it is essential, to enable plaintiff to recover under such enactments, that he should be the owner of the freehold. 'In Illinois, in an early case, which has been repeatedly cited with approval, the statute gave the owner a certain penalty for each tree of a .particular description cut upon his land without his permission, and authorized him to recover the -penalty in an action of debt, tinder this statute, it was held that the party seeking to recover the penalty must aver in his declaration, and prove on the trial, that he was the owner in fee simple ■of the land on which the trespass was committed. Edwards v. Hill, 11 Ill. 22. In Michigan the statute closely resembles our¡ ■own, providing that persons who cut down or carry off any wood,' underwood, trees, or timber without leave of' the owner of the land, shall be liable to the owner in treble damages; but if the, trespass is involuntary, or the defendant had probable cause to believe the land was his, only single damages are recoverable, as is the case under the Code in this state. Code Civ. Proc. § 1668, subd. 1. In Achey v. Hull, 7 Mich. 424, the supreme court ofj Michigan, speaking through Campbell, J., said of this statute that; it was not framed to protect possessory rights, “ but was made to. give to the owners of the fee a right to sue in the form of trespass for the enumerated injuries to their inheritance. If the tenant in possession, whether owner or not, seeks damages for the disturbance of rights merely possessory, he is still left to his common-law action. But here the damages which are alleged to be trebled are not damages to the temporary possession, but to the freehold.” Under a like statute in Mississippi, the trial judge charged the jury that the possession of the locus in quo alone was sufficient to authorize the plaintiff to maintain the action. The supreme court held that this instruction was erroneous, inasmuch as the cutting of the tress was an injury to the freehold; and therefore the plaintiff, claiming the statutory penalty, must be the real or apparent owner of the freehold.” McCleary v. Anthony, 54 Miss. 708.

In the light of these authorities, and having regard to the course of legislation in our own state in reference to treble damages for trespass in cutting trees, I am satisfied that the term “owner,” in section 1667 of the Code of Civil Procedure, does not extend to a lessee for years. This view takes nothing away from the right of the tenant, who may always maintain his common-law action for trespass based upon the fact that he is in possession. And in the present suit the plaintiff, notwithstanding his claim for treble damages under the statute, was entitled at common law to recover his actual damages, if he proved to the satisfaction of the jury that he was in possession and occupation of that part of the premises upon which the tree-cutting was done, although merely as tenant. Starkweather v. Quigley, 7 Hun, on page 29.

The issue of actual occupation was in the case, because the written lease under which the plaintiff claimed did not distinctly indicate the extent of the leased property, and the evidence in behalf of the plaintiff was sufficient to sustain a finding in his favor .oil that issue.

The judgment should therefore be affirmed if the plaintiff will stipulate to reduce the judgment.to $50 and costs; otherwise, the judgment should be reversed, and a new trial granted.-

All concur.'


author: BROWN, P. J.

text:
    Bertha Egener, Resp’t, v. New York and Rockaway Beach Railway Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)
    2. Railroads—Damages—Improper construction.
    By the common law, the relation of dominant and servient tenements, does not apply between owners of adjacent lands in respect to surface waters, and the lower proprietor may raise the surface of his land and make erections thereon, though the effect thereof may be to obstruct the flow of surface water from the lands above to the injury of the owner thereof.
    3. Same.
    A railroad corporation, in the absence of negligence and unskillfulness in the construction of its road bed. is not liable to a land owner for injury from the overflow of surface waters occasioned by the obstruction of the load bud.

      3. Same.
    There is nothing in the business of a railroad corporation that should deprive it of the benefit of the rule where the obstruction is not wanton or unnecessary.
    4. Same.
    Such company is not required to construct culverts or passageways, through its embankment for the passage of surface waters from the lands-of others.
    Appeal from a-judgment in favor of plaintiff.
    Alfred A. Gardner, for appl’t; E. W. Tyler and William L. Mathot, for resp’t.
   BROWN, P. J.

— The plaintiff is the owner of land in Queens-county which adjoins the defendant’s railroad. Prior to October, 1891, the railroad tracks were supported by a trestlework of wood. During that month the defendant filled in the trestlework with earth and stone, and constructed a solid embankment for its roadbed. The. court found that prior to the erection of the embankment the surface water from the plaintiff’s premises flowed therefrom upon the defendant’s premises, and through the trestlework to the westward. The embankment interrupted this flow of surface water, and caused it to accumulate and stand on plaintiff’s-property. During a severe storm some large stories were washed from the embankment against the plaintiff’s house, breaking the walls thereof, and causing it to be flooded with water. The judgment appealed from awarded the plaintiff $250 for damages sustained prior to the trial, and from and after the period of sixty-days from the date of the service of the judgment enjoined the defendant from the further maintenance of its embankment, except upon the condition that it carie proper means to be taken (such as culverts, sluiceways, side drains, and passages for water, or other proper appliances) to prevent the casting upon the plaintiff’s premises of stones, earth and water, and to prevent the damming up and accumulating by said embankment of surface water upon said premises. The amount awarded to the plaintiff for damages was fully sustained by the proof, and the conclusion was permitted that the injury to the building was primarily caused by the stones and rocks which had been permitted to lie loose upon the embankment, and which, loosened by the rain, rolled therefrom, and broke through the wall of the house. This result was attributable to the negligent and unskillful manner in which the embankment had been constructed and maintained, and for the injury thus inflicted the defendant is liable. There is no ground, therefore, we think, to disagree with the trial court in the disposition made of this branch of the case. We shall therefore confine our consideration of the case to a review of that part of the judgment which enjoined the defendant from maintaining its embankment, except upon the condition that it construct drains to carry off the surface water. As stated by the learned trial judge, the rule of the common and civil law differs as to the right of drainage of; surface waters between owners of adjacent lands, and the decisions. of the courts of the different states of this country are not in harmony upon the question. By- the civil law the question is governed by the law of nature, and the lower proprietor is bound to receive the natural flow of surface waters from the land above him. But by the common law the relation of dominant and servient tenements does not apply between owners of adjacent lands in respect to surface waters, and the lower proprietor may raise the surface of his land, and make ereetions thereon, although the effect thereof may be to obstruct the flow of surface water from the lands above to the injury of the owner thereof. In Barkley v. Wilcox, 86 N. Y. 140, the court of appeals treated this question as an open one in this state, and in an opinion which reviewed many authorities held that the rule of common law was most consonant with the demands of justice and the one best adapted to the conditions of our society. That was an action, however, between private individuals, and at the close of the opinion the court stated that it did not mean to say that there might not be cases which, owing to special conditions and circumstances, should be «exceptions to the rule declared. The learned judge who decided this case was of the opinion that it was one that should be excepted from the operation of this rule. With that conclusion I am unable to agree, as I think it opposed to the decided weight of authority upon the question presented. Nearly all the cases cited by the respondent to sustain the judgment are from the- courts of states where the rule of the civil law prevails, and for that reason need not be referred to. The Missouri cases eited — McCormick v. Railway Co., 70 Mo. 359; Shane v. Railway Co., 71 id. 237 — as well as some earlier cases in that state, were, however, distinctly overruled in the late cases of Abbott v. Railroad Co., 83 Mo. 271, and Jones v. Railway Co., 84 id. 151. The facts of Abbott’s Ciase were very similar to those in the case before us, and the subject was» very fully discussed in the opinion of the court. After reviewing many reported cases in Missouri and other states, the court unanimously held that a railroad corporation, in the absence of negligence and unskillfulness in the construction of its roadbed, was not liable to a landowner for injury from the overflow of surface waters occasioned by the obstruction of the roadbed. The same rule is applied between railroad corporations and adjoining individual owners in Kansas (Railroad Co. v. Hammer, 22 Kan. 763; Railroad Co. v. Riley, 6 Pac. 581), in Nebraska (Morrissey v. Railroad Co., 56 N. W. 946; 57 N. W. 522), in Indiana (Railroad Co. v. Stevens, 73 Ind. 278), in Minnesota (Pflegar v. Railway Co., 29 Minn. 510), in Wisconsin (O’Connor v. Railway Co., 52 Wis. 526; Johnson v. Railway Co., 80 id. 641), in Maine (Greely v. Railroad Co., 53 Me. 200; Morrison v. Railroad Co., 67 id. 353), and in Massachusetts (Walker v. Railroad Co., 103 Mass. 10; Cassidy v. Railroad Co., 141 id. 174). Coming to. our own state, the rule was applied in Waffle v. Railroad Co., 58 Barb. 413, and in Wagner v. Railroad Co., 2 Hun, 633. In the Wagner Case the facts were very similar to the case at bar. The plaintiff’s claim was that the defendant could not lawfully make any embankment on its own land which would obstruct the natural flow of surface water, but was bound, by means of culverts and drains, to provide for the disposal thereof! This claim was overruled, and a judgment in favor of the plaintiff was reversed. I do not deem it essential to a proper discussion of the questions presented to refer to the cases relating to the1 interference with natural water courses, nor to cite further authorities relating to the right of surface drainage between adjoining owners who are private individuals. The authorities upon the-latter question are too numerous to be cited within the limits of an ordinary opinion, and they will be found referred to in the-opinions of the cases I have cited.

I have referred to the cases against railroad corporations exclusively for the purpose of showing that in no instance, before this, case was decided, has it been held that such corporations were to-be deemed exceptions to the general rule of the common law which permits a lower proprietor to obstruct the flow of surface-water from the higher lands surrounding him. I do not think that the special conditions and circumstances alluded to by the court of appeals in Barkley v. Wilcox, supra, had reference to-the character of the owner of the lower estate, or the business-there conducted, but in the character of the formation and use of the surrounding territory from which the surface water should-flow. Palmer v. Waddell, 22 Kan. 352. Such was the opinion-of Chief Justice Beasley, exprested in Bowlsby v. Speer, 31 N. J. Law, 351. After stating the general common-law rule that no-right of any kind can be claimed in the mere flow of surface-water, and that neither its retention, diversion, repulsion, or altered transmission can cause an actionable injury, he said :

How far it may be necessary to modify this general proposition in cases in which, in a hilly region, from the natural formation of the surface of the ground, large quantities of water in times; of excessive rain or from the melting of heavy snow, are forced, to seek a channel through gorges or narrow valleys, will probably require consideration when the facts of the case shall present the-question. It would seem that such anomalous cases might reasonably be regarded as forming exceptions to the general rule.”

And in Hoyt v. City of Hudson, 27 Wis. 656, Chief Justice Dixon, after quoting this passage from Judge BEASLEY’S opinion, said:

“ This exception or suggested exception seems sound and just. The rule itself is established in favor of agriculture and the right., of every one to make the most profitable use of his own land. But when, in such exceptional cases, it appears that considerable-tracts of land are drained through ravines or narrow valleys, and would otherwise be submerged or greatly injured by the accumulation ond presence of surface water, so that the rule would operate adversely to the interests of agriculture, and be productive of more harm than good,-it would seem that it ought to give way, or its application be suspended.”

The case of Palmer v. Waddell, 22 Kan. 352, was one of the-[character here mentioned, but the supreme court of that state in Railroad Co. v. Riley, supra, expressly refused to extend the exception to a case of the obstruction of an ordinary flow of surface water by a railroad embankment; saying of Palmer v. Waddell, that it was an extreme case, and limited to surface water from hilly regions and high bluffs draining considerable tracts of land through a gorge or ravine. Exceptions founded upon the character of the land seem just, as they limit the operation of the rule-to the obstruction and drainage of waters made necessary by the reasonable use and improvement of the lower estate. But there is nothing in the business of a railroad corporation that should' deprive it of the benefit of the rule where the obstruction is not wanton or unnecessary. Such corporations hold title to their land with the same rights and obligations of ownership as a private individual. It is essential to the proper conduct of the business of a railroad and the safety of the public that the roadbed-should be constructed in a solid and substantial manner, and as-nearly level as possible. This necessity demands that hills be leveled and hollows and depressions filled up, and the stoppage of the flow of surface water necessarily follows. This condition is so well known that it must have been within the contemplation of the legislature in authorizing the creation of such corporations and defining their powers. The omission to impose any obligation upon such corporations in reference to surface drainage other than such as would flow from their ownership of land indicates-quite clearly to my mind that it was not intended that they should form an exception to other landowners in respect to the obligation in reference to the disposal of surface water. If the railroad crossed a gorge or ravine which drained a large territory, a case-would probably be presented which would not be held to be justified in enacting a solid embankment, but would be bound to-construct a culvert, and permit the water to follow its natural channel. But where such conditions do not prevail I think they are-subject to the same rule as applies to the private owner. Moreover, in view of the rule of law prevailing in this state there would be serious objection to compelling the defendant to conduct away the surface water by means of drains, ditches, and culverts. The-rule is quite -well settled that an owner of land cannot, by drains or other artificial means, collect surface water into channels, and discharge it upon the land of his neighbor. Noonan v. City of Albany, 79 N. Y. 475. This is the rule, both of the civil and common law. I do not see, therefore, how the defendant can be compelled to carry off the water that flows from the plaintiff’s lands by means of drains and sluiceways. Where is it to be discharged? Rot on the next lower proprietor, certainly. For such on act the defendant would be liable. Hogenson v. Railway Co., 31 Minn. 224. It is quite plain, I think, that in a jurisdiction where the-common-law rule prevails, it must be applied to all adjoining owners of land, no matter what their character or business, unless-the formation of the territory is such that the role would operate adversely to the interests of a large number of persons. There is nothing in the testimony which brings this case within this exception to the rule, and any injury sustained by the plaintiff which arises solely from the setting back upon her property of surface water must be regarded as damnum absque injuria.

The judgment, so far as it restrains the defendant from main-tainting its embankment in front of the plaintiff’s premises except upon the conditions therein stated, must be reversed. So far as it awards damages for past injury, it is affirmed, without costs.

PRATT, CULLEN, and HATCH, JJ., concur; BARTLETT, J., dissents from that part of the decision directing a reversal.


author: BARRETT, J.

text:
    In the Matter of the Appraisal of the Property of John F. Houdayer, Deceased.

      (Supreme Court Appellate Division, First Department,

      Filed April 10, 1886.)

    1. Transkeb tax—What subject.
    A balance due by reason of funds deposited by a nonresident testator in a bank to his credit as trustee is'not taxable.
    1. Same.
    As to residents, the transfer tax is a tax upon the right of succession under a will, or by devolution in case of intestacy.
    3. Same.
    , But this rule has never been extended in terms to nonresident decedents.
    Appeal from an affirmance by a surrogate’s court of an order fixing and imposing a tax.
    J. Culbert Palmer, for ápp’lt; Emmet R. Olcott, for resp’t comptroller.
   BARRETT, J.

The question here is whether the balance due the decedent at the time of his death, resulting from deposits made by him individually in a trust account which, as trustee under the will of Edmund Husson, deceased, he had opened in the Farmers’ Loan & Trust- Company of this city, was “property” of the decedent “within this state,” within the meaning of taxable transfers act (Laws 1892, c. 399, § 1, subd. 2.) It is well settled that the legal relation which existed- between the decedent, as such trustee, and the Farmers’ Loan.& Trust Company, was that of debtor and creditor. The deposits became the property of the trust company, and thereupon the company became indebted to the depositor for the amount so. deposited. Here, however, even this decision existed only between the decedent in his representative capacity (as trustee under the will of Edward Husson) and the company. Individually, he occupied no contract relation towards the company. His individual deposits simply went to swell the trust account. Ordinarily, it would have required an accounting . in equity to separate the individual from the trust deposits, and to appropriate the general bank balance in accordance with just principles. Here this separation was amicably arranged between the decedent’s estate and the trust estate, but this was merely a friendly substitute for an accounting. Precisely what the decedent had, individually, within this state was a right to an accounting in equity with regard to a debt due by the company to himself as Hus-son’s trustee. We do not think that the debt was properly within -this state, within the meaning of the taxable transfers act. Much less was the right to an accounting with respect to such debt. It is provided, by section 22 of the act in question, that the word “property” as used therein, shall “include all property or interest therein, whether situated within or without the state, over which this state has any jurisdiction for the purposes of taxation,’—no more, and no less; not property generally, it will be observed; not even property as defined by the statutory construction act, passed later in the season of 1892, for much of what is within its definitions is property over which the state cannot, as against nonresidents, have any jurisdiction, Thus, the act is in harmony with the authorities which hold that the power of taxation of a state is limited to persons, property, and business within her jurisdiction. Foreign Bond Case, 15 Wall. 300. This jurisdiction, however, is not what the state may choose to assert, but what, as matter of fact, it possesses. Here, for instance, this state has no jurisdiction over the person of the decedent. He was, in fact, a nonresident of this state. It does not appear that he transacted business within this state. So the jurisdiction upon that head was also lacking. The question remains as to his property. It was distinctly held, in the Foreign Bond Case, supra, that debts have no situs independent of the domicile of the creditor, and that such debts are the property of the creditor, and follow his domicile. It is of no moment, in the application of this rule, where the debtor resides or does business, or where he may be found. A debt can have no locality separate from the party to whom it is due. The debt there was evidence by the bonds of a domestic corporation; but, as such bonds were not within the taxing state, as, in fact, they were in the actual possession of the owner at his foreign domicile, the supreme court of the United States held that the property evidenced thereby was not within the taxing state, and was not taxable there.

Thus, clearly, this state had no jurisdiction, for the purposes of taxation, over the right in action here possessed by the decedent. It asserted no such jurisdiction in the act in question, nor could it have done so. Its jurisdiction, so far as nonresidents decedents were concerned, was limited to property which had a visible and tangible existence. As to visible and tangible property, the fiction of a legal situs at the domicile of the owner gives way to the fact of the actual situs. With regard to ehoses in action, however, and intangible property generally, the legal situs is, to all intents and purposes, the actual situs. People v. Commissioners of Taxes, 23 N. Y. 224. The debtor is not the debt, and jurisdiction over the debtor is not, for the purposes of taxation, jurisdiction over his obligation. There is jurisdiction to attach, but not to tax, the debt. The right to attach proceeds upon the jurisdiction over the resident debtor. There is jurisdiction to compel such debtor to pay what he owes his creditor to the latter’s creditor. In that case the attachment does not create the obligation. It enforces it. The tax, however, creates the liability, and also-enforces. it. That can only he done when the person or the-property of the creditor is within the jurisdiction. The state-cannot create a liability in its own favor against the nonresident, creditor by the mere exercise of jurisdiction over the resident', debtor. It can enforce an existing liability, but it cannot create one. This rule is in entire harmony with that laid down in the-Whiting Case, lately decided by this appellate division. The tax was there imposed upon corporate bonds which were not, as in'the Railroad Bond Case (15 Wall. 300), in the actual possession of the decedent at his foreign domicile, but were, in fact, on deposit in a safe-deposit company in this city. These bonds were essentially property. They were not, like shares of stock, mere evidences of an interest in the corporation. They were saleable and repleviable as ordinary chattels They required no written transfer to pass the title thereto. The fiction of the legal situs might, well give way with respect to coupon bonds, thus passing from band to hand by delivery, the same as chattels generally. If such bonds are brought here for permanent safe-keeping, they, are not. only within the jurisdiction of the state in a technical sense, but are within the principle upon which all taxation rests, namely, the-protection of our laws, and the protection of the system inaugurated by those laws and guarded by its ministers. So far as the-securities in that case were bonds of the United States, another-question arose, namely, whether, as to a nonresident decedent, the-tax was to be treated strictly asa tax upon the right of succession. Of course, if it was in any just sense a tax upon property, the-bonds of the United States were specially exempt.

As to residents, the tax has been repeatedly held to be a tax. upon the right of succession under a will, or by devolution, in case of intestacy. In re Swift, 137 N. Y. 88; 50 St. Rep. 81; In re Merriam’s Estate, 141 N. Y. 484; 57 St. Rep. 593. This precise rule has never yet been extended in terms to nonresident decedents, and that question is an open oné, unless, indeed, the general rule which the court of appeals laid down in the Swift and Merriam Oases was intended to cover nonresident as well -as residents decedents. There would certainly seem to be a distinction-, between the two classes. In the case of residents, the right of' succession or devolution is given by the state which imposes the-tax. The state may limit the right as it pleases. Consequently,, it was held, in the Merriam Case, that, assuming that the legacy there in question vested “at the moment of,the testator’s death,, yet, in contemplation of law, the tax was fixed on the succession at the same moment of time.” Can this be said where the estate- or legacy vests under the laws of a foreign state? Does not the-person in whom the estate vests, and who comes to this state to-secure possession of property of the decedent situated here, so - come possessed of the legal title to such property? The right of! succession is not conferred upon him by the laws of this state, bnt by_the laws of the state where the decedent resided and died. It. would seem, therefore, that, as against such a person, the tax, however it may be obscured or styled, is essentially a tax upon property within our jurisdiction, and not upon the right of succession thereto. If it is upon the right of succession, then, plainly, it is a tax upon a right granted by a foreign state. If it is not a tax upon such right, then it is'simply a tax upon property acquired through the instrumentality of a foreign succession law; and that, in substance, is what it is. In common parlance, it is a succession tax; but, in legal parlance, it is, as was intimated in Re James, 144 N. Y. 10; 62 St. Rep. 855, “a tax upon property in this state passing from nonresident decedents.” The latter case distinctly holds'that “it is the property of the decedent which is sought to be subjected to the tax,” and that “the right of the state to impose the tax is based upon its dominion over what property is situated within its territory.” But, whether the court was right or wrong in the Whiting Case, with regard to the bonds of the United States, there can be no doubt that it acted upon the principle that the property was tangible. There is nothing,' therefore, in that case which militates against our present conclusion; nothing in the majority opinion suggestive of the view that debts or dioses in action, apart from the negotiable evidences thereof, may be included in the area of property of a nonresident over which the state has jurisdiction ; nothing, certainly, in the minority opinion.

These considerations may not seem to be in entire harmony with some of the positions taken in the Romaine Case, 127 N. Y. 88, 89; 38 St. Rep. 76. The facts there, however, differed somewhat from the facts of the present case. It appeared that Mr. Bomaine was, at the time of his death, and had been for three years prior thereto, the lessee of a box in a safe-deposit company in this city, in which he kept certain securities, consisting of stocks and bonds of different corporations, and a mortgage upon real estate here, as well as several pass books showing deposits by him in various savings banks. The relation of bailor and bailee thus existed between him and the safe-deposit company. It was said that the property contained in the safe-deposit box was property protected by our laws. And so it was. So far as the coupon bonds were concerned, the case is in harmony with the later authorities. As to the stocks, however, the correctness of the decision under the James Case depends upon a consideration as to which the record was silent, namely, whether the stocks were of domestic or of foreign corporations. As to the deposits in the savings banks, there is a distinction between the Romaine Case and the present, in that there the pass books were permanently guarded in the safe-deposit box in this city. This distinction, we confess, seems to be shadowy, and we prefer to rest our judgment upon what we conceive to be the correct principle, supported, as we are, in that view, by the doctrine of the later cases in the court of appeals, as well as by the deliberate judgment of the supreme court of the United States in the Railroad Bond Case.

The conclusion at which we have arrived is amply supported, not only by what was said in the James Case, and also by the ih' lustrative reasoning in the Phipps Case, 77 Hun, 325; 59 St. Rep. 769, which latter case was affirmed (143 N. Y. 641; 60 St. Rep. 874) upon the opinion of Yan Brunt, P. J. In thus substantially adopting the views of the presiding justice in that case, and in subsequently asserting similar views in the James Case, the court of appeals has undoubtedly limited the Romaine Case to the strictest application of its special facts, and has emphasized the general principle which was enforced in the Railroad Bond Case. Speaking, in the James Case, of a similar act to that now under consideration, Gray, J., said :

“ We do not think it was the intendment of the act of 1887 to reach, for purposes of taxation, and personal property that was not within the state, either in fact, or because of the domicile here of its owner. The reading of the act does not authorize us to construe it as an effort to tax that over which there was no jurisdiction, and it would be highly improper to impute to the legislature such an intention."

This language is equally applicable to the act of 1892, and we think it is decisive- of the present appeal.

The order appealed from should be reversed, with costs.

YAN BRUNT, P. J., and RUMSEY and INGRAHAM, JJ, concur.; O’BRIEN, J., concurs in result.


author: GAYNOR, J.

text:
    Frank W. Hawley, Pl’ff, v. Herman Kountse et al., Def’ts.

      (Supreme Court, Kings Special Term,

      Filed March, 1896.)

    1. Usury—What is.
    The exacting and receiving of an option to purchase of the lender shares of stock at a fixed price for the making of the loan, in addition to local interest, are a violation of the usury statute. " '
    3. Same—Private barkers.
    Private bankers by usury forfeit the interest only.
    3. Injunction—Securities.
    An action will lie to declare void a contract for a loan because of usury, and to enjoin the sale of shares of stock which have no fixed or market value, deposited as security for such loan, where the remedy at law is inadequate.
    Action tb declare void a certain contract for a loan, and to enjoin the sale of certain shares of stock pledged by plaintiff to deffendants as security for such loan.
    James McKeen, for pl’ff; George W. Yan Slyck, for def’ts.
   GAYNOR, J.

No doubt the defendants exacted of the plaintiff, in addition to lawful interest, that he give them the option to purchase of him the shares of stock at the price fixed, for the making of the loan; otherwise there was no reason or consideration for the option. The exacting and receiving of this option in addition to lawful interest was a violation of the usury statute. Cleveland v. Loder, 7 Paige, 557. The shares of stock covered by the option are included with shares deposited as collateral to the loan, and the defendants are about to sell all of the shares, the loan being in default. This action is brought to have the contract of loan adjudged void, and to enjoin the sale of the shares of stock, and have them surrendered. The defendants are “private bankers.” The banking laws, revised and combined into one act in 1882, applied generally to banking associations” and “individual bankers” (Laws 1882, c. 409), who were thereby allowed to enjoy the privileges of and do business under the banking laws, subject to the supervision of the state banking department. The said act relieved them from the forfeiture of the principal for usury under the general usury laws, and subjected them instead only to a forfeiture of the entire interest, or, if the usury should be paid, to a penal action to be brought within two years for the recovery of twice the amount thereof; the declared purpose of the act being to put state bank associations and bankers in this respect upon the samé footing as national banks. Sections 68, 69. But these sections also expressly included and gave the same relief to “ private bankérs,” although the act did' not subject them to it or to public control, viz. to the jurisdiction of the banking department It was doubted if these provisions applied to any but “banking assoóiati'ons"and “individual bankers,” who, as has been seen, conducted business under the regulations of the banking laws, and the supervision of the state, and thereby became in a sense public bankers; but they were held to apply to private bankers also. Perkins v. Smith, 116 N. Y. 441; 27 St. Rep. 541. This construction made the act incongruous, in extending this privilege to persons nót answerable to its provisions, or embraced within its general scope and policy. In the new revision of the banking laws in 1892 (chapter0 689) the designation of private bankers was dropped in the réndering of the said sections 68 and 69 of the act of 1882 (section 55), but in the schedule of repealed acts at the end, while the said act of 1882 is included, the said sections are expressly exempted from repeal. The act of 1892 being restricted to banking associations and individual bankers authorized and controlled thereby, I can see no object in thus keeping alive the said two sections of the act of 1892, unless to continue to “private bankers” the immunity against forfeiture of the principal, under the general usury laws, for in all else the said sections are fully incorporated in tire new act. To give such immunity to money lenders who choose to call themselves private bankers, and refuse to subject themselves to public regulation and supervision, while subjecting to such forfeiture all individuals who do not thus dub themselves, seems strange; but it has to suffice with the court that the legislature has so enacted.

As forfeiture of the principal may not be decreed against the defendants, it follows that the plaintiff is not entitled to an injunction pending the action to prevent the defendants from selling the shares as collaterals to pay the debt. They have the right to sell them to pay the debt. They may not, however, lawfully retain the proceeds to pay the interest; nor may they hold or sell them under the option. Chapter 237 of the Laws of 1882 has no application to this case, as it Only makes lawful the payment of “any sum of money to be agreed upon in writing ” for advances of money upon warehouse receipts, bills of lading, certificates of stock, and certain other specified collateral securities. The exaction in excess of interest in this case was not of a sum of money, nor was it provided for by a written agreement. I think this action is maintainable. The said shares of stock are of no fixed or market value, as the company in which they are has not got into full operation, and in an action for their conversion, or for replevin, or for the statutory penalty of twice the amount of the usurious exaction, it would be difficult, if not impossible, to prove a sum certain. Such an action is therefore not an adequate remedy. The jurisdiction of equity in cases of usury is ancient, and has been aided by our usury statute. 1 Rev. St. p. 771, pt. 2, c. 4, tit. 3; Laws 1837, c. 430; Allerton v. Belden, 49 N. Y. 373.

Ths injunction is continued pending the action, unless, the defendants offer to receive the principal of the indebtedness in full, and surrender up the notes and the collateral and the option, in which case the injunction will be modified upon an application upon five days’ notice, so as to allow the said shares of stock to be sold as collateral to pay the principal.