text:
    In the Estate of Jesse Hoyt, Deceased. Matter of the Claim of Aaron Kahn, as Attorney, etc. Matter of Mary Irene Hoyt’s Application of April 18, 1887, for an Allowance.

      (Surrogate’s Court, New York County,

      Filed May 17 1887.)

    1. Attorney’s lien—To what it attaches—When no lien.
    The daughter of decedent commenced a proceeding in the surrogate’s court for the revocation of the probate of an instrument that had been adjudged to be decedent’s last will. One Kahn appeared as her attorney and continued to act as such for a considerable time, when au attempt was made by said daughter to dismiss him and employ another to act as her attorney. An agreement was entered into by which Kahn was retained as attorney pending a reference to settle the amount due, and another was. employed to act as addititional attorney with him. This was to be without prejudice to Kalin’s lien. The surrogate upheld the probate of the will,, and the said daughter appealed to the supreme court. The ;aid daughter was a beneficiary under said will of the income of a certain fund held in trust. Held, that Kahn’s lien would continue in force until it should be perfected by a judgment in his client’s favor in the court to which resort was finally had, or until in that tribunal a judgment was recovered against er, by which it would be determined that she had never had any just-cause of action, and that there ivas, therefore, no foundation for any lien.
    2. Same—Not a lien on the income of trust fund.
    The testator directed his trustees to collect the income of ; he trust in behalf of his daughter, and to apply the same “as the same ni.i,y be required, for her use and benefit, for and during her natural life, in 1;¡. most bounteous and liberal manner as to expenditure, and so as to prom lie her convenience and comfort.” Held, that said daughter could not incumber said income by contract providing for its pledge, transfer or alienation. And that no attorney could, upon her retainer, secure a lien thereon. Quare, whether a creditor of said daughter could lay hold of any surplus income-of the trust for her benefit.
    3. Same—Surrogate’s court—Practice—Substitution of attorney.
    An order was asked displacing the “ additional attorney ” as such. Held,. that an order substituting one attorney for another is merely an incident in the progress of a cause, and no such order can be made by ¡> court in which no cause is pending to which such order can relate.
    4. Same—The surrogate loses jurisdiction when appeal is perfected.
    The surrogate, after the appeal was perfected, could make no direction-as to the payment of said attorney’s claim, as the proceedings out of which they sprung were no longer pending before him.
   Rollins, S.

On October 3, 1882, Mary Irene Hoyt, the-daughter of this decedent and his only next of kin, commenced in this court a proceeding for the revocation of the probate of an instrument that had been theretofore adjudged and decreed to be her father’s last will and testament.

Aaron Kahn, Esq., appeared as her attorney in such proceeding, and continued to act in that capacity with her approval and by her direction until March 20, 1885, when she advised him that she would no longer require his services. Shortly thereafter, and while this probate controversy was still pending and undetermined, Miss Hoyt applied to the surrogate, by F. J. Dupignac, Esq., as her attorney, for an order directing the executors of this estate to pay her the sum of $80,000, to be charged against her as beneficiary under her father’s alleged will, or as his next of kin, accordingly to the probate of such alleged will should be upheld or overturned.

Mr. Kahn claimed the right to appear in opposition to this application, upon the ground that, as the contestant’s attorney of record, he had a lien upon her interest in the estate, and he protested that no moneys should be paid to her thereout, pusuant to the motion of any attorney other than himself, until such attorney had been regularly substituted in his stead, either upon his (Mr. Kahn’s) consent, or upon payment to him of such sum as, after proper inquiry, might be found to be his due.

The questions involved in this claim have never been determined by the surrogate. A course was agreed upon and adopted by counsel for the contestant and for Mr. Kahn respectively, which made it unnecessary to decide whether the latter’s claim of hen was or was not well founded, or to what, if well founded, it attached, or whether the fact that Mr. Kahn was still the attorney of record for the contestant in the revocation proceeding did or did not preclude her from presenting through another attorney an application for an allowance out of this estate. An order of reference was entered, by consent of counsel, under the following circumstances: In the course of a discussion in open court as to the possible delay that might be occasioned in the trial of the probate controversy by Mr. Kahn’s opposition to the motion for the $80,000 allowance, Mr. Fullerton who was then acting as one of the contestant’s counsel, stated that if Mr. Kahn would waive service of papers he would then and there move for an order substituting Mr. Dupignac in his (Mr. Kahn’s) place as contestant’s attorney, upon such terms as might be found just and reasonable after an investigation before a referee. To this proposition Mr. Kahn through his counsel acceded.

It was then suggested that as Mr. Kahn might, by an out-and-out substitution pending a reference,lose the benefit of whatever hen he might have obtained upon his Ghent’s cause of action and upon any decree that might be made in her favor in the probate proceeding, his rights should be protected by continuing him as one of her attorneys; this with the understanding that Mr. Dupignac’s attorneyship should also be recognized, and that Mr. Kahn should not thereafter interfere in the direction or control of the cause. An order was thereupon entered whereby the referee therein designated was directed to take evidence as to “the value of the services rendered by the said Kahn for the said Mary Irene Hoyt, and the moneys he has received from her during the period of such services, and the sums he has properly disburséd on her account, and to report the said evidence to this court, together with his opinion thereon, with all convenient speed.” The order contained also the provision following: “That in the meantime and until the further decision of this court upon the coming in of the referee’s report, Miss Mary Irene Hoyt may appoint another and additional attorney to the said Aaron Kahn, without prejudice however to any lien that the said Kahn now has upon all the papers in his possession and the funds in court for his fees (for services) heretofore rendered in the matter.”

The foregoing order of reference was entered on April 18, 1885. On November 1, 1886, the referee filed his report. A few days later, the surrogate, on Mr. Kahn’s application, granted an order for Miss Hoyt and the executors of this estate to show cause why such report should not be confirmed, and why an order should not be entered directing, among other things, the payment to Mr. Kahn of $15,145.68 (being the amount found by the referee to be still due- to him as contestant’s attorney) out of any moneys then in the hands of the executors due or owing to the contestant under her father’s will, and in case no moneys should be due or owing to her, then out of the first moneys that should come to the hands of the executors applicable to payment of the testamentary provision for her benefit.

The motion for the confirmation of the referee’s report was made before the surrogate on November 29, 1886. Prior to that date there had occurred the events following:

On August 28, 1886, the surrogate had rendered a decision adverse to the contestant’s petition for revocation. On October 6, a decree had been entered confirming the probate of the will. On October 11, the petitioner had filed notice of appeal to the supreme court. On November 15, that appeal had been perfected by a deposit in this court of $250 in lieu of an undertaking.

Upon the facts above stated I proceed to consider—

1st. Whether the moving party herein has a lien as attorney upon any interest of the contestant in this estate, and, if such lien exists, then to what it attaches or relates; and

2d. Whether the surrogate now has authority to direct that the sum found by the referee to be due from the contestant to Mr. Kahn, or any sum whatever, be paid to him by the contestant herself or by the executors and trustees of this estate

First. Prior to the enactment of the first part of the Code of Civil Procedure, an attorney in an action could not claim a lien for his services until he had obtained a verdict, or, perhaps, it is safe to say, until the actual entry of a judgment in his client’s favor.

The recognized basis of that lien was the right of the attorney to resort to the fruits of a judgment in compensation for his services in obtaining it. In Baker v. St. Quintin (12 M. and W., 441, 451), Baron Parke described the charging hen of an attorney as merely a claim to the equitable interference of the court to have the judgment held as security for his debt.” Lord Cockbtjrn pronounced it in Mercery. Graves (Law Rep. 7 Q. B., 499, 503), as “a claim or right to ask for the intervention of the court for his (attorney’s) protection, when, having obtained judgment for his chent, he finds there is a probability of the chent depriving him of his costs.”

The hen of an attorney upon a judgment recovered in the courts of this state was formerly hmited to his taxable costs, but by the Code of 1848 an attorney’s compensation was made to depend upon the contract, express or implied, between himself and his chent, and his charging hen has since been held to cover his entire compensation for services in the action; which compensation, in the absence of a definite agreement as to its amount, has been measured by the reasonable value of such services. It is only, however, since section 66 of the Code of Civil Procedure was amended by chapter 542 of the Laws of 1879, that the hen of an attorney in a judicial proceeding has extended to the cause of action,” and has attached itself to such cause of action from the commencement of such proceeding. Theretofore the fact that an attorney had commenced a suit upon a retainer to prosecute it gave him no lien upon what might be recovered in the event of its successful prosecution. Rooney v. Second Ave. R. R. Co., 18 N. Y., 368 ; Shank v. Shoemaker, 18 id., 489; Pulver v. Harris, 52 id., 73; Wright v. Wright, 70 id., 96; Coughlin v. N. Y. C. and H. R. R. R. Co., 71 id., 443.

The cases just cited hold that until the entry of judgment a party might formerly have effected a settlement or compromise with the opposing party without consulting his attorney, and that such settlement or compromise the attorney would ordinarily have been powerless to prevent.

This doctrine was subject to the limitation that any settlement so effected by the parties to an action, in fraud of an attorney conducting it, and with an intention of depriving him of his compensation, would be set aside, so as to allow him to proceed for the collection of his costs. Coughlin v. N. Y. C. and H. R. R. R. Co. supra; Talcott v. Bronson, 4 Paige, 501; Ackerman v. Ackerman, 14 Abb., Pr., 229 ; Tullis v. Bushnell, 65 How. Pr., 465.

The character and extent of an attorney’s lien are now defined by section 66 of the Code, as follows :

“ From the commencement of an action or the service of an answer containing a counter-claim, the attorney who appears for a party has a lien upon his client’s cause of action or counter-claim, which attaches to a verdict, report, decision or judgment in his client’s favor, and upon the proceeds thereof, in whosesoever hands they may come, and cannot be affected by any settlement between the parties before or after judgment.”

Surrogate Coffin lately held in Smith v. Central Ins. Co. (4 Dem., 75), that attorneys conducting special proceedings in surrogate’s courts, are not entitled to the benefits of this section.

In an earlier case Eisner v. Avery (2 Dem., 466), I intimated a contrary opinion, to which I shall, though somewhat hesitatingly, ahhere for the purposes of this motion.

Now, what is the “cause of action,” to which the lien of the moving party herein must be deemed to relate? Dr. Pomeroy in his work on “Remedies and Remedial Rights ” (section 453), thus defines that expression: “ Every action is brought in order to obtain some particular result which we term the remedy, and which when granted; is summed up or embodied in the judgment of the court. * * * Every remedial right arises out of an antecedent primary right and corresponding duty, and a delict or breach of such primary right and duty by the person on whom the duty rests. Every judicial action must therefore involve the following elements: A primary right possessed by the plaintiff and a corresponding duty devolving upon the defendant; a delict or wrong done by the defendant, which consists in a breach of such primary right and duty; a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict. Every action must contain these essential elements. Of these elements, the primary right and duty and the delict or wrong combined constitute the cause of action in the legal sense of the term. * * * The cause of action will, therefore, always be the facts from which the plaintiff’s primary right and the defendant’s corresponding primary duty have arisen, together with the facts which constitute the defendant’s delict or act of wrong.”

Now, applying this definition, which is stamped with the approval of the court of appeals in Veeder v. Baker (83 N. Y., 153, 160), to the case at bar, what is here the “cause of action\ ” If the contestant’s claim is well founded, her primary right growing out of her father’s intestacy, is to receive the share of his estate to which, under the Statute of Distributions, she is entitled as his only next of kin, The correlative duty of the persons holding that estate in the pretended capacity of executors and trustees under a pretended will, is to surrender to the contestant such portion thereof as is her due. The wrong which they are perpetrating consists in their undertaking to deprive her to the excess of the benefits which they admit belong to her under the will above the benefits that must accrue to her if that instrument is invalid and ineffectual. The obtaining of that excess is the remedial right which she is here seeking to secure.

If the decision and decree of the surrogate shall ultimately be sustained on appeal, it will be discovered that the contestant has never had any just “cause of action” at all, and that she, has therefore, never had any interest in this estate to which the hen of her attorney can at any time have attached. If Mr. Kahn’s hen is limited, therefore, to the surplus of what is his client’s due in case her father is discovered to have died intestate, above the sum to which she may justly lay claim in case the probate of his alleged will shah be justified, it follows that, in passing upon her apphcations for advances, her indebtedness to Mr. Kahn is not to be taken into consideration; for the surrogate has never hitherto directed, and, pending the appeal from his decree of October 6, 1886, can never hereafter direct, the payment of any advance to the contestant in excess of the sum to which he would be entitled as cestui que trust under the will. See my memorandum of January 13, 1883; July 23, 1883, and July 15, 1886, of which the first named is reported sub nom Hoyt v. Jackson (1 Dem,, 553.)

The lien of the moving party upon his client’s cause of action has been in nowise impaired therefore, by the payment to her of moneys to which the hen could in no contingency attach, and that lien can be in nowise impaired by like payments hereafter.

Unless he shall receive such balance of compensation as may be owing to him, Mr. Kahn’s hen upon such cause of action must continue in force until it shah be perfected by a judgment in his client’s favor, in the court to which resort shall finally be had, or until, in that tribunal, a judgment shah be recovered against her, by which it shall be finally determined that she has never had any just cause of action, and that there is, therefore, no foundation for any hen.

Second. There is another considerations which also impels me to the conclusion that the moving party herein has no lien as attorney upon the interest of his client as. beneficiary of the trust created by the will for her benefit.

Section 63, title 2, chapter 1, part 2 of the Revised Statutes (3 Banks [7th ed.], 2182), provides that “no person beneficially interested in a trust for the receipt of the rents, and profits of lands, can assign or in any manner dispose of,such interest.” This constraint has been declared by numerous decisions to be applicable to persons beneficially interested in trusts for the payment of income of personal property, as well as to persons so interested in the rents and profits of realty. Hallett v. Thompson, 5 Paige, 583; Clute v. Bool, 8 id., 83; Bramhall v. Ferris, 14 N. Y., 41; Graff v. Bonnett, 31 id., 9; Campbell v. Foster, 35 id., 361; Genet v. Foster, 18 How. Pr., 50; Manning v. Evans, 19 Hun, 500, 502; Cutting v. Cutting, 86 N. Y., 522, 546; Lent v. Howard, 89 id., 169, 181; Cook v. Lowry, 95 id., 103, 111; Tolles v. Wood, 99 id., 616.

The beneficiary of a trust for the receipt of income is. unable therefore to assign, dispose of, or in any manner mortgage or pledge his interest in such income, or to contract any debt which can create a hen upon it. A person to whom he is indebted may, in a court of general equity jurisdiction, and not elsewhere, and in a proceeding where an issue is directly made as to the amount necessary for the debtor’s support, and not otherwise, reach any trust income belonging to the debtor, in excess of the sums necessary for the education, support and maintenance of himself and family, and can reach naught besides. 1836, Hallett v. Thompson, supra; 1840, Clute v. Bool, supra; 1845, L'Amoureux v. Van Rensselaer, 1 Barb. Ch., 34; 1846, Rider v. Mason, 4 Sand. Ch., 351; 1847, Silleck v. Mason, 2 Barb. Ch., 79; 1849, Stewart v. McMartin, 5 Barb., 438; 1856, Bramhall v. Ferris, supra; 1857, Scott v. Nevins, 6 Duer, 672; 1859, Genet v. Foster, supra; 1865, Genet v. Beekman, 45 Barb., 382; 1865, Graff v. Bonnett, supra; 1866, Moulton v. De MaCarty, 6 Rob., 533; 1866, Locke v. Mabbett, 2 Keyes, 457; 1866, Campbell v. Foster, supra; 1877, Williams v. Thorne, 70 N. Y., 270; 1880, Manning v. Evans, supra; 1885, Tolles v. Wood, supra.

The court of appeals, in the case last cited, says: “The disposition of such an income (i. e., of income directed by a testator to be applied by his trustees to the use of a beneficiary) cannot be anticipated by the cestui que trust or encumbered by any contract entered into by him providing for its pledge transfer or alienation previous to its consideration; ” and the court say further, that “the creditor of such a beneficiary acquires a lien upon the accrued or unexpended surplus income, or that subsequently arising from such fund, superior to the claims of general creditors or assignees of the cestui que trust, by the commencement of an action in equity to reach and appropriate it to the satisfaction of his judgment.”

Now the testator in the case at bar has directed his trustees to collect the income of the trust in behalf of his, daughter, and to apply the same “as the same may be required for her use and benefit, for and during her natural life, in the most bounteous and liberal manner as to expenditure, and so as to promote her.convenience and comfort.” Whether the beneficiary can claim, under this provision, the entire income of the trust, or whether the trustees can withhold such portion as may not in their discretion be-found requisite for her “convenience and comfort” and her bounteous and liberal support,” and what disposition must be made of any surplus income that the the trust fund may yield in excess of the sums that may from time to time be applied to her use by the trustees, cannot be here and now determined. It may, perhaps, be doubtful whether under this testator’s will a creditor of his daughter can ever lay hold of any surplus income of the trust for her benefit, and it is clear that while the validity and integrity of that will are still in dispute, the sums, whose disposition for the contestant’s benefit the surrogate can direct, are precisely those sums which she “cannot encumber by any contract providing for its pledge, transfer or alienation,” and upon which, therefore, no attorney can, upon her retainer, have' secured a lien. Noyes v. Blakeman, 3 Sand., 531, 541;, affirmed, 6 N. Y., 567, 579, 583; Embree v. Franklin, 23 Hun, 203; Twopeny v. Peyton, 10 Sim, 487; Holmes v. Penney, 3 K. & J., 90; Hall v. Williams, 120 Mass., 344.

An order may be entered directing the executors ana trustees of this estate to pay the contestants the sum of $12,000.

Third. There remams to be considered the question, whether, apart from any supposed authority to direct the application of funds of this estate to the satisfaction of an attorney’s lien, the surrogate can now declare the amount of the moving party’s claim against the contestants and give direction for its satisfaction.

It is manifest that the surrogate has no jurisdiction in the premises except such as springs from his authority to prescribe the terms upon which he will direct the substitution of an attorney for the contestant in place of the attorney who instituted her proceeeding for revocation of probate. Counsel for Mr. Kahn asks that Mr. Dupignac be displaced as “additional attorney,” unless the moneys found by the referee to be due his client shall be paid, and asks that, in the event of its payment, Mr. Dupignac be substituted for his client, and the latter discharged from the contestant’s service.

No such direction can now be given for the reason that the proceeding out of which this controversy has sprung is no longer pending. Whatever power the surrogate may formerly have had to direct the conditions upon which a substitution of attorneys should be effected, no such power exists to-day.

It has been already stated that, before the submission of the motion to confirm the report of the referee, the probate controversy had been removed out of this court into the supreme court by appeal.

An order substituting one attorney for another is merely an incident in the progress of a cause, and no such order can be made by a court in which no cause is pending to which such order can relate. When the question as to the substitution of attorneys first arose and the reference here in question was ordered, it was doubtless supposed by all parties that it could be speedily terminated, and that, during the pendency of the proceeding for probate, the referee’s report would be submitted to the surrogate for Ms consideration and action. That expectation has not been realized. The moving party herein must therefore seek in some other tribunal the relief to which he may deem himself entitled.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    David Kent, Resp’t, v. John H. Brinckerhoff, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Mabbted women—When wife justified in leavinq husband—Liability OF HUSBAND FOB SEP abate suppobt.
    In an action for necessaries furnished to a married woman who had left her husband on the eve of being confined. Reid, that if the jury, from the evidence, believed the state of hostility in which the parties at that time lived was dangerous to the health of the mother and the expected child, ' they were authorized to find the wife justified in leaving the husband’s house and going to her relatives.
    Appeal from a judgment entered upon a verdict rendered by a jury in favor of plaintiff at the Dutchess county circuit.
    Louisa Brinckerhoff, the wife of the defendant, left her husband’s house about January 9, 1886, and went to the house of her grandfather, Elijah Odell. She was there delivered of a child on the eleventh of February following. In August of that year she first went back to his house. During the mtervening time, an action for divorce had been brought, tried and decided against the plaintiff in jliat suit. While Mrs. Brinckerhoff was at her grandfather’s, he furnished her with board, care, washing, lodging, nursing, attendance and transportation, to the amount of $395. This claim of Mr. Odell was assigned to the plaintiff, who brought this action to recover it.
    The charge of the trial judge was as follows:
    “Now, to justify this wife in leaving her husband, I charge you that you must find that he was guilty of cruel or inhuman treatment, or of such conduct as rendered it unsafe and improper for her to reside with him. As to cruel and inhuman treatment, of course, physical violence constitutes such, and so also do menaces, threats of physical violence. I charge you, further, -that there might be cruel and inhuman conduct where there was no actual physical violence. Constant reproaches, ebullitions of temper, constant false accusations, the constant subjection to degrading indignities of speech, might so impair the health of the wife, and be so dangerous to her health, as would constitute it unsafe for her further to reside with him. In the same way as to the question of this child. Of course, it w.:s her duly to do all she could, becoming pregnant, to safely bring that child into the world. Both the law and moralty required that of her. If the suggestion was made that she should get rid of the child, to use her language, and by abortion, or a premature birth of the foetus, prevent the actual birth of a living child to the living world, it was suggesting a crime to her, and it was her duty to resist it; and when the time for her pregnancy came, if she had reason to apprehend that that child would not be safely delivered there, that is, that there would be any foul play about it, then, of course, she was justified in leaving and going somewhere else. But you must say, was there such a fear ? Was there a real fear at that time of any foul play with regard to the child ? If there was, then, if there was no other violence than that, I charge that that was sufficient ground for her leaving him. But to justify her leaving him on that ground, you must believe that there was. and that she had the right to seriously apprehend that. Of course, if you find that the fi.ther did not make such a proposition at any time, the whole claim is groundless In the same way about physical violence. You have got to find at the time she left there was actual danger of physical violence being offered to her. If there was, then she was justified. But if there was not such actual imminent danger, she was not justified. All of these quarrels, so far as they existed in their past life, were not sufficient ground for leaving, unless they amounted to such a constant thing as to impair the health, the peace of mind of this plaintiff—of the wife. If they did go that extent-to impair the health, then she was justified.”

      Thompson, Weeks & Lown, for resp’t; John P. H. Tallman, for app’lt.
   Pratt, J.

The jury were distinctly charged that unless the wife was justified in leaving her husband, the verdict must be for defendant.

The circumstances under which the wife would be justified in leaving home were stated, we think, correctly.

The principal exception is to that part of the charge which states that indignities short of actual physical violence, might justify the wife in leaving her husband’s roof, if so constant and continued as to impair her health and render it unsafe for her to live with him.

The charge had reference to a pregnant woman on the eve of being confined, and if the jury, from the evidence, believed the state of hostility in which the parties at that time lived was dangerous to the health of the mother and the expected child, we think they were authorized to find the ■ wife justifiable in leaving the husband’s house and going to her relatives.

The request to charge, so far as they were legally sound, had already been charged.

As the value of the services was conceded, it was not error to decline to receive a verdict for the smaller sum.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Barnard, P. J.

text:
    Henry A. Blake, App’lt, v. Richard Crowley and Isabella Corbett, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887)

    1. Foreclosure of a chattel lien — Warrant of seizure — When granted—Code Civ. Pro., § 1738.
    A warrant of seizure may he granted in cases of foreclosure of a lien upon a chattel, where the chattel is not in the possession of the plaintiff who has the lien. Code Civ. Pro., § 1738.
    2. Same—Affidavit.
    The affidavit to obtain the warrant of seizure is not required to- state that the claim is above all counter-claims.
    3. Same—Practice—Breach of contract—Code Civ Pro., § 636.
    “Breach of contract” has a definite meaning as used in Code Civil Procedure, section 636, and does not include the foreclosure of a chattel mortgage, even though there was,a failure to pay according, to promises made.
    4. Same—Not entitled to trial by jury.
    An action to foreclose a chattel lien is not one in which either party can demand a trial by jury.
    5. Same—Rights of mortgagee.
    The mortgagee is entitled to hold the chattel, to have the balance due on it adjudged, and to have a judgment to collect the amount due out of the proceeds of the chattel.
    Appeal from an order vacating a warrant of seizure in an action to foreclose a chattel lien.

      Charles W. Seymour, for appl’t; William J. Bulger, for resp’ts.
   Barnard, P. J.

A warrant of seizure may be granted in cases of foreclosure of a lien upon a chattel, where the chattel is not in the possession of the plaintiff who has the lien. Code, §§ 1737, 1738.

The provision in section 1738, that the proceedings to. procure the writ and those after its procurement shall be similar to the provision in respect to attachment, was not. intended to require the affidavit to state that the claim is> above all counter-claims, as in section 636 of the Code. This section only applies to attachments in actions to recover damages for breach of contract.

There were three other cases in which attachments were proper, but it was only in cases for breach of contract that ■section 636 applied. Breach of contract has a definite meaning and does not include the foreclosure of a chattel mortgage, even though there was a failure to pay according to promises made. The affidavit is, therefore, sufficient. The action is not one in which the defendant Crowley can demand a trial by jury. Crowley assigned property to defendant Corbett, and she assigned it to plaintiff to secure Crowley’s debt. The complaint avers that only a portion of this debt has been paid. An action at ldw cannot reach the proper remedy. The plaintiff is entitled to hold the chattel, to have the balance due on it adjusted, and to a judgment to collect the amount due out of the proceeds of the chattel.

The order vacating the warrant should, therefore, be reversed and the case restored to the special term calendar for trial, with costs and disbursements.

Pratt, J., concurs; Dykman, J., not sitting.


author: Dykman, J.

text:
    People ex rel. Robert F. Woehr v. Colonel Edward Fackner, Commanding Officer of the Thirteenth Regiment National Guard, State of New York.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Military law—Militia—Reduction of non-commissioned officers— Military Code, § 50.
    A non-commissioned officer in the New York state militia is not entititled to an opportunity for a hearing and vindication from charges, before he can be reduced to the ranks for cause, on the application of his immediate commander.
    Writ of certiorari to review the proceedings of the commandant of the Thirteenth regiment N. G. S. N. Y.

      Russell Benedict, for relator ; Almet F. Jenks, for def’t.
   Dykman, J.

This is a proceeding by certiorari to review the action of the defendant, who is a colonel of a regiment of New York state militia, and when he enlisted and became a member of that organization he consented to all the laws and regulations appertaining thereto, and agreed to abide by and obey them, and be bound and controlled by them in all matters relating to his military fife and conduct.

One section of the military code of this state provides for the reduction of non-commissioned officers in the ranks by the commander of the organization to which they belong. Section 50, Military Code.

That statute is supplemented by the military regulations of the state, which also have the force of law, providing for the reduction of non-commissioned officers to the ranks, for cause, on the application of their immediate commander.

■The relator was a non-commissioned officer of his company, and his captain addressed a written communication to the defendant as colonel of the regiment and its commanding officer, requesting the reduction to the ranks of the relator, among others, for disobedience of orders.

Upon that request the relator was returned to the ranks by order of the defendant.

Now the relator insists that he should be afforded an opportunity for a hearing, and vindication from the charge before his reduction to the ranks for cause.

The military regulations of the state, however, provide for the return of non-commissioned officers to the ranks either upon their own request approved by their immediate commander, or for cause upon the application of their immediate commander, or by the sentence of a court martial.

That regulation seems to be a sufficient vindication and. justification of the action of the defendant brought under review by this writ, and sustains his proceedings.

The proceedings should be affirmed with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Henry E. Begwelin, Resp’t, v. Elizabeth R. Lee, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    1. Pleading—Complaint—Demurber—Sufficiency of complaint
    In an action brought for the specific performance of a contract for the sale of land, the complaint averred an agreement between the parties which was set forth at length and annexed to the complaint. By the agreement itself the defendant’s name purported to have been signed through one Edward A. Lovell.' On demurrer because the complaint did not state facts sufficient to constitute a cause of action; Held, the complaint was good that if the attorney had no power, that must be averred by way o” answer Buffalo Union v. Bitter, 87 N. Y., 250, distinguished.
    2. Same—When receipt of benefits binds party receiving.
    The complaint also averred a part payment of the purchase money and an acceptance by her. Held, that if the defendant knew of the agreement being made in her name and took the benefits of it she is bound by the agreement.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint in an action for the specific performance of a contract to convey real estate. The grounds of the demurrer were that the complaint did not state facts sufficient to constitute a cause of action. It appeared on the argument below that the only defect which the defendant found in the complaint was that it did not state, and. the contract sued upon did not show upon its face, that the agent who signed for the defendant "was duly authorized to do so.

      Theo. N. Melvin, for app’lt; Sewell, Pierce & Sheldon, for resp’t.
   Barnard, P. J.

The complaint avers an agreement between the parties which is set forth at length and annexed to the complaint. By the agreement itself the defendant’s name purports to have been signed by the defendant through Edward A. Lovell. It is a fact of no consequence that the signature was made by another than the defendant herself. The complaint avers it to be her act and she admits the fact by the demurrer. The case is not like the Buffalo Institution v. Bitter (87 N. Y., 250. The contract in that case was made with, and signed by one Formes as president of the institution.

The court held that the contract was one between individuals and that the words as president did not bind the institution but that they were descripta persones. The con-contract itself was made upon the condition that the institution would accept and approve the purchase. Here the contract is between the two parties. It is in writing. It is signed by both of them and has been fully executed by the payment of a portion of the purchase money. A tender has been made of the remainder and a deed demanded, which has been refused. If the attorney had no power, that must be averred by way of answer. The complaint, besides this, avers a part payment of the purchase money, and an acceptance by her in part payment of the purchase money therein described. This ratified an unauthorized signature. If she knew of the agreement being made in her name and took the benefits of it, she is. bound by the agreement.

Judgment affirmed, with costs.

Pratt and Dykman, JJ., concur.


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    George Lorey, App’lt, v. Frank Hall and Ephraim D. Slater, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    1. Negligence—Master and servant—Duty oe master.
    It is the duty of the master to use proper care and prudence in the selection of the place and appliances used hy his servants in the discharge of the duties of his employment. Such duty is imposed upon him hy law and implied against him by the contract with the servant. The servant has a right to shape his conduct and action in reliance upon the protection and security which a proper discharge of the legal duties and obligations of the master would afford.
    2. Same—Duty of servant.
    Where the servant has a full knowledge and comprehension of the instrument furnished (in this case a laddpr) he cannot claim compensation for injuries resulting from its voluntary use.
    Appeal from a judgment entered in favor of defendants upon the report of a referee.

      King & Clement, for app’lt; Freeman & Green, for resp’ts.
   Dykman, J.

action was commenced for the recovery of damages for personal injuries.

The defendants were the proprietors of a skating floor in the city of New York used for roller skating, and there was ■a suspended gallery in the centre of the room about twelve feet above the floor. It was about fifteen feet square, surrounded by a railing about three feet high, and was for the exclusive use of the musicians- who furnished the music for the patrons of the rink while it was open and in use.

Access was gained to the gallery by the use of a ladder, which was drawn up by the musicians when not in use by them and kept on the gallery, and when it was required by "them to make a descent, it was lowered and placed in posi • tion by them for that purpose.

The lower end of the ladder when in use rested upon the main floor of the room, and the upper end rested against the "floor of the gallery, in a space made vacant in the railing by the opening of a gate therein, and when thus placed in position the upper end of the ladder projected two or three feet above the floor of the gallery.

The ladder in use at the time of the accident had been used for that purpose about two months every afternoon and evening except Sundays, and had been used during uhat time by the plaintiff for the purposes for which it was designed, and was sufficient for such purpose in point of strength and dimensions.

A short time previous to the accident the band master provided a strong leather strap with a buckle to fasten the ladder at the top when in use, and it was sufficient for that» purpose and the plaintiff had been cautioned against the danger of using the ladder unless it was fastened or held.

In the evening of the 10th day of April, 1885, after the labors of the musicians were over for the night, the plaintiff lowered the ladder to the main floor, but did not fasten the same, although the strap provided for that purpose was convenient and within his view.

When the ladder was so placed it slanted at an angle of about seventy degrees, and the plaintiff stepped from the floor of the gallery on to the ladder with his back towards the same holding the side of the same next to his right hand, and reached his left hand for his brass instrument, when the foot of the ladder slipped on the main floor and fell with the plaintiff, who thus sustained a permanent injury to his right ankle joiht.

The cause wag tried before a referee who found the plaintiff guilty of carelessness contributing to the injury, and made a report against him, and from the judgment entered upon that report the defendant has appealed.

The relations created and existing between the plaintiff and the defendants brought them under the operation of several principles and rules of law which are well settled and well understood, but not always easily applied.

The duty rested upon the defendants to use proper care and prudence in the selection of the place and appliances used by the plaintiff in the discharge of the duties of his •employment, and such duty was imposed upon them by the law and implied against them by their contract, and the plaintiff had the right to shape his conduct and action in reliance upon the protection and security which a proper discharge of the legal duties and obligations of the defendants would afford.

And yet these rules are not always applicable. Because, although the legal assumption is that the master has a more comprehensive view and knowledge of the machinery and appliances to be used than his employee, yet in point of fact such assumption is frequently overcome by the facts of the case, and the character of the instruments to be used.

When, therefore, it plainly appears as it does in this case, that the servant has a full knowledge and comprehension of the instrument furnished, he cannot claim compensation for injuries resulting from its voluntary use. The ladder furnished by the defendants did not break or give way and was not defective in point of strength or dimensions. If anything was essential to the security of the persons using the same, it was spikes or sharp irons at the bottom of the sides or hooks at the top. But those were ■only necessary by way of precaution to render the ladder more secure and safe, and not to made it sufficient, and the ladder as it was made was within the full view and easy comprehension of the plaintiff. His knowledge equalled that of the defendants, and he used the ladder voluntarily in full view of its dimensions and strength, and the security it afforded.

If, therefore, the ladder was not secure when placed by the plaintiff upon the main floor at an angle of seventy •degrees, yet he so placed it and had a full knowledge of the situation and the danger which he encountered, and the resultant injury came through his own fault and neglect. He cannot claim any imposition by the defendants. They did not furnish him an inadequate utensil which he could not comprehend. He was their equal in point of knowledge of the instrument furnished, and its sufficiency for the purposes for which it was intended. The case of Marsh v. Chickering (101 N. Y., 396), seems to be ample authority, for what has been written.

The judgment should be affirmed, with costs

Barnard, P. J., and Pratt, J., concur.


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    Mary E. McKenna, as Adm’rx, etc., of John M. McKenna, deceased, App’lt, v. The East River Ferry Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Negligence—Contributory negligence—Boarding a ferry boat.
    In an action to recover damages for an injury resulting in the death of intestate, received while boarding one of defendant’s boats, it appeared that there was a storm of rain, mingled with snow, at the time of the disaster, and the deceased stepped aboard of the boat as the bridge man was drawing the same up to the bridge, and while there was yet a space between the' boat and the bridge, and as he stepped he slipped, and his foot went down into that space and was caught and crushed. Held, that the intestate was-guilty of contributory negligence, and could not recover. The fatal step of the deceased, taken while the bridge man was in the performance of a, duty in his presence, which would insure his safety, was incautious and careless.
    Appeal from a judgment of nonsuit rendered against the plaintiff, at the Queens County circuit court.
    This action was brought to recover damages for personal, injuries, resulting in the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant in conveying and transporting the said plaintiff’s intestate from James’ Slip, in the city of New York, to Hunter’s Point, in Long Island City.
    It appeared from all the evidence that the deceased stepped, on board before the boat was made fast to the dock, and while the employees were winding up the chains, which, made some noise. At the time he stepped aboard, the boat, was some distance away from the dock. The dock was. slippery on account of the rain and snow, which were falling. He slipped and his foot went between the boat and the bridge. The gates between the ferry entrance and the bridge had been open some time before the boat came in, and when it was at a distance of twenty feet from the bridge; before the boat came up to the bridge the passengers were standing on the bridge beyond the gate, and were all waiting on the bridge
    The slip was full of ice and it was hard to make a landing..

      Benjamin W. Downing, for app’lt Shipman Barlow, Larocque & Choate, for resp’t.
   Dykman, J.

The intestate of the plaintiff sustained an injury to his foot while he was boarding one of the ferry boats of the defendant, which resulted in his death, and this-action is brought for the recovery of the damages sustained therefrom.

The trial of the cause was terminated by a dismissal of the complaint, and the plaintiff has appealed from the judgment.

A perusal of the testimony on behalf the plaintiff discloses an evident failure to exhibit the negligence of the defendant. as the sole cause of the injury which brought death to the deceased man.

There was a storm of rain mingled with snow at the time of the disaster, and the deceased stepped aboard of the boat as the bridge man was drawing the same up to the bridge, and while there was yet a space between the boat and the bridge, and as he stepped he slipped and his foot went down into that space and was caught and crushed.

That fatal step of the deceased, taken while the bridge man was in the performance of a duty in his presence, which would ensure his safety, was incautious and careless.

The unsteadiness of the vessel, the slippery condition of the deck, the precarious foothold he was certain to obtain, and the visible space over which he was compelled to step, were sufficient admonition to the deceased of the danger he would encounter by omitting to wait until the boat was made fast and steady.

Our conclusion is that the complaint was properly dismissed, and that the judgment should be affirmed.

Barnard, P. J., and Pratt, J., concur.


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    William H. Owens, Resp’t, v. Henry T. Cromwell, App’lt.

      (Supreme Court, General Term, Second Department

      Filed May 9, 1887.

    1. Riparian rights—Right to water—User.
    The plaintiff’s farm was at the upper end of a certain pond Having no defined stream, the water in said pond in consequence of defendant's claim, situated on a small stream, spread out into a smaller pond and these waters thus dammed, set back through a channel which connected the two ponds. The waters of said pond ebbed and flowed through this channel for nearly a century, according to the use or disuse of the dam on the stream. In order to utilize said pond and the water stored there, the channel was afterwards dredged out by defendant’s father, three or four feet, so that said pond could be drawn down below the natural bottom of the connecting channel. The right to so draw it down had not been acquired from the plaintiff as to the land he owned. Held, that it was the user and not the mere existence of the artificial part of this channel of which plaintiff could complain.
    2. Same—Adverse user—What is.
    Whenever the water had been drawn below the natural iow water mark, le plaintiff had insisted upon and received compensation for the damage from the defendant. Held, that there had never been an acquiescense in an adverse user.
    Appeal from a judgment entered on a decision rendered at the Orange county special term, granting the plaintiff an injunction prohibiting the defendants from drawing the water in a certain pond below a certain level, etc.

      M. N. Kane, for resp’t; E. A. Brewster, for app’lt.
   Pratt, J.

The defendant’s interference with the plaintiff’s water rights in this case presents two phases: One, the ordinary case of flooding his land by means of flush-boards on his dam, which presents chiefly a simple question of fact. The other, the withdrawal of the water from the farm under circumstances quite peculiar, but no more difficult to resolve when they are once clearly understood.

It seems that plaintiff’s farm is at the southwesterly end of Haggard’s pond, a body of water having no defined stream, which, m consequence of defendant’s dam, spreads out into a smaller pond, and these waters, thus dammed, set back through a channel which connects the two ponds. Thus the waters of Haggard’s pond have, as it were, ebbed and flowed through this channel for nearly a century according to the use or disuse of the dam on the stream.

' The plaintiff’s farm is located at the part of this Haggard pond most remote from this connecting channel. It is obvious that the natural high water mark in the stream would indicate the natural high water mark in this “setback”— the Haggard pond. It is also obvious that the natural low water mark of the stream might be lower than that of the set back, for this reason: The natural bottom of the connecting channel would control the flow of water out from this set back.

In 1845, defendant’s father, while occupying the mill privileges and riparian rights on the stream and at this channel, conceived the idea of utilizing this set back pond as a reservoir in aid of his mill pond on the stream, by dredging this connecting channel to the depth of three or four feet below its natural level. In other words, he formerly could use the waters of this set back pond only to the depth of say four feet below natural high water mark; but by means of the dredgings he secured an increased storage depth of say eight feet by lowering this natural dam—the natural bottom of the channel. In ordinarily wet seasons there would be no occasion to use the artificial part of this channel, but, in times of great drought, he would sometimes draw down the set back pond so that the land at plaintiff’s end of the pond would be laid bare. On such occasions plaintiff’s father demanded payment for this interference with his right to have the water of the pond on his farm, and defendant’s father conceded the wrongful interference and paid for it. Once he refused, but there was a law suit and he was made to pay for it. That was in 1881-'1882.

It is thus obvious that plaintiff’s predecessors in title, so far at least as this evidence discloses, have always insisted on the right to this water in the set back pond, to the level of the natural bottom of this connecting channel, and there is no evidence of its actual use by anybody except on these conditions. There was no injury to the farm unless the water was drawn so low that the artificial part of the channel began to operate.

The simple fact that the artificial part of the channel was there under the water, no matter when it was dredged, whether in 1845 or in 1745, had no effect on plaintiff’s rights, until it was used in its distinctive capacity, to produce injury by drawing the water to a lower level than thus natural low water mark. It was as harmless as an unopened jackknife in a man’s pocket. It did no more injury to plaintiff’s father’s farm than a sunken log in plaintiff’s stream or a shovel full of earth removed from its bottom. But instantly when it began to operate so as to draw the water from the set-back pond to a level below the natural bottom of this connecting channel as nature left it, then, and not until then, did it begin to exhaust the natural body of water which the farm owner was justly entitled to keep for his own uses. It was therefore the user and not the mere existence of the artificial part of this channel of which the farm owner had the right to complain.

I have carefully examined the evidence, and find it sufficient to sustain the findings of the learned trial judge that, by means of the artificial part of the channel, the defendant, at the times indicated, improperly deprived the plaintiff of water which nature would otherwise have supplied for his stock and other purposes; and I am clear that there has never been an acquiescence in an adverse user.

The finding that the flush boards occasionally flooded plaintiff’s lands above natural high-water mark, is also sustained by sufficient evidence. It may very well be that the particular facts stated by the surveyors and engineers were not contradicted; but it is equally true that the inferences deducted from those facts were directly in conflict with inferences properly drawn from facts which old farmers and observers saw on the stones and land through their spectacles. They said that the water was higher in the pond than they had ever seen it before, and verified their observations by marks on the stones and wall about the pond. The engineers show that it ought not to have been: but the answer is, that it was higher all the same.

The findings relative to the extent of the inquiry, are also supported by the evidence.

The judgment should be affirmed, with costs.

Dykman, J., concurs Barnard, J., not sitting.


author: Barnard, P J.

text:
    Francis C. Hill and Sarah Hill, Resp’ts, v. Stephen A. Palmer and Albert W. Palmer, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Contract—Construction of.
    The plaintiffs and others owned certain lands, which all the owners agreed to sell to one Leon De Bost, and they also agreed to pay one Augustus De Bost a certain sum as commissions for the sale thereof. There being a question made as to the title of one of the other owners, the purchaser refused to take the title until the difficulty was removed. The defendants bought the plaintiffs’ interest in said land, and in the contract for the purchase was inserted the following: “ And also the parties of the first part (the defendants), jointly agree to protect and preserve harmless, the said parties of the second part (the plaintiffs), from any and all liability and damages arising from and under this sale of this land, by reason of any contract made with Leon B. De Bost.” * * Augustus sued, and recovered a judgment against the plaintiffs for the proper proportional part of the commission as upon a good sale.. The actions were separate, and in each case De Bost got judgment. These judgments were reversed at the general term, but at a large expense. Held, that the contract covered the costs of defending against the claim of Augustus.
    Appeal from a judgment entered on the verdict of a jury at Suffolk county circuit court, in favor of plaintiff.

      John V. B. Lewis, for app’lts, Thomas Young, for resp’ts.
   Barnard, P J.

The plaintiffs owned three-tenths of certain lands in Suffolk county. Cornelia Palmer owned one half- and a corporation called the Albert Palmer Company, owned one-tenth. The remaining tenth was owned by a Mr. Weed. All the parties agreed, on the 4th of March, 1881, to convey the property to Leon B. Be Bost for $45,000. The deed was to be delivered April 1, 1881, and the title was to be a good title and free from all incumbrances except those specified in the agreement amounting to $5,650. The purchaser was not bound to take unless all the several parts of the entire title were good.

. On the 4th of March, 1881, the date of the agreement to sell to Leon B. Be Bost, the several owners executed a paper to Agustus B. Be Bost, in which a debt of $5,000 was acknowledged to him for services as broker in effecting the sale, and they each agreed to pay the proportion thereof according to the interest they each had in the title, out of the first moneys received from Leon B. Be Bost upon the completion of the sale.

On the 1st of April, 1881, the contraer was not carried out. There wag a question made as to the title of the Albert Palmer Company tenth, and the purchaser refused to take the title until this difficulty was removed.

On the 6th of April, 1881, Stephen A. Palmer and Albert Palmer bought the plaintiff’s three-tenths. In the agreement for this purchase there was inserted the clause which is the basis of this action:

“And also the parties of the first part (the Palmers) jointly agree to protect and preserve harmless, the said parties of the second part (Francis and Sarah Hill) from any and all liability and damages arising from and under this sale of this land, by reason of any contract heretofore made with Leon B. Be Bost * * .”

Augustus B Be Bost sued and recovered a judgment against the plaintiff, for the proper proportional part of the commission as upon a good sale. The actions were separate and in each case Be Bost got judgment.

These judgments were reversed by the general term, but at an expense of $895.75. The reason of the reversal was that the title of the Hills was good, and that they were ready and that the purchaser might have taken their title, but without it there was no liability for the commission.

We think the contract covered the costs of defending against the claim of Augustus B. De Bost. The evidence in the case shows that the contract to sell to Levi B. De Bost, did not expire on the 1st of April, 1881, by reason of his failure. A delay was agreed upon to complete the chain of title in the Palmer Company tenth.

Under the circumstances surrounding the contract containing the covenant of indemnity, it appears that the Palmers agreed to buy out the plaintiffs and take the risk of defending Be Bost.

It was known to all that if the contract was good, the commissions were due. It was good if the sale was carried out. The indemnitors to the Hills took the plaintiffs’ title to themselves, while the plaintiff was under a valid agreement to convey to another person. In the fall of 1882, Leon B. Be Bost obtained a decree for specific performance of the contract, the decree covering not only the interests of the Palmers, which they owned at the original agreement, but also the three-tenths bought of the plaintiffs.

The words of the indemnity were designed to put the defendants in the place of the plaintiffs, in respect to the contract. They chose to recite in it that the agreement was dead by the fault of Be Bost, but the fact was otherwise. The costs incurred in defending Augustus Be Bost grew directly out of the failure of the defendants.

■ If they had paid the commission there would have been no suit. They failed to execute the Be Bost contract and they agreed to save harmless the plaintiff from damages which resulted to the plaintiffs under it. If the Be Bost action had been affirmed there is no doubt but that the costs would have followed the decision under the indemnification clause in this agreement. The proof is very convincing that the clause was designed to cover the costs of a defense .against a claim under the Be Bost agreement.

It was provided by it that if any claim should be made against the plaintiffs they should at once notify a specified attorney as the attorney of the plaintiffs, “at the proper costs and charges of the parties of the first part (defendants).

Albert Palmer employed the attorney, or at least controlled the answers of the plaintiffs, and it was stated when the agreement of indemnity was signed that the contract “covered both claims,” referring to .the commission and the specific performance of the Be Bost contract, and that the plaintiffs were “to step out from under the whole thing; lands, these two prospective law suits and everything, which ■Mr. Palmer said was in assent to Mr. Hill’s proposition.”

It was therefore the understanding of the parties outside of the covenant.

It was executed in accordance with that verbal agreement, and the words of the writing are broad enough to cover the claim, construed in the light of the circumstances surrounding the execution of the paper.

The question of the surrender of the covenant was one entirely of fact.

The proof is substantially confined to two people, Mr. TTill and Mr. Palmer.

The finding could not be disturbed in any event, but it is proper to say that it is in accordance with the probabilities of the transaction.

The judgment should therefore be affirmed, with costs.

Pratt and Dykman, concur.


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    Stephen Jenny et al., Resp’ts. v. The City of Brooklyn, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887)
    1. Negligence—City of Brooklyn—When proof sufficient to go to jury.
    In an action for damages resulting from the “blowing out" of a fire hydrant, in the city of Brooklyn. Held, that when an accident in the-ordinary course of events would not happen without great neglect, the facts proven to that end may go to a jury.
    3. Same—Liability of city of Brooklyn under Laws 1873, chap. 863. title 19, § 37.
    Laws 1873, chapter 863, title 19, § 37, does not exempt the city of Brooklyn from liability when the injury results from work done, originally" defective or continued after notice. Following Seifert v. City of Brooklyn. 101 N. Y„ 136.
    ApPEAL from a judgment rendered on a verdict for plaintiff on a trial at Kings county circuit.

      Almet F. Jenks, for app’lt; John M. Stearns, for resp’t.
   Barnard, P. J.

There was sufficient proof of negligence to go to the jury. The injury was alleged in the complaint to have resulted from the blowing out of a hydrant put in one of the streets of the city by the defendant through one of its departments. The proof shows that this hydrant was put in position in November, 1884. It was proven that it blew out in June, 1885, in the night.

There was no eye witness, but the circumstances pointed unmistakably to the fact that the hydrant was detached at its elbow under the gutter of the street. The water came from that place after the accident and the hydrant was gone from its place. The hydrant was put there to stand, the pressure of the water and it failed in less than a year.

When an accident in the ordinary course of events would not happen without great neglect, the facts proven to that end may go to the jury.

If the case was properly for a jury, then the proof that the elbow was well made as proven by the workmen who-did it or caused it to be done, only makes a question of fact for the jury.

Upon the whole case it is a fair conclusion that there was a neglect in the construction of the appurtenances to the hydrant. Assuming this to be the fact the city is liable under the case of Seifert v. City of Brooklyn, (101 N. Y., 136.)

It was held in that case that section 27, title 19, chap. 863,. Laws of 1873, did not exempt the city from liability when the injury resulted from work done originally defective or continued after notice.

The jury found that the hydrant was originally constructed without due care.

The judgment should be affirmed with costs.

Pratt and Dykman, JJ., concur.


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    In the Matter of the probate of the will of Mary Ann Boury, deceased.

      (Supreme Court, General Term, Department,

      Filed May 9, 1887.)

    1. Attorney and client—Execution op will—What attorney can TESTIFY TO.
    On the probate of a will, the attorney who drew the will can properly testify to the facts; and the declarations of the deceased in respect to the-execution and accompanying it, are admissible, and are not within the principle of disclosures between attorney and client.
    3. Physician and patient—What physician can testify to.
    The family physician, on the probate of a will, can testify to family events in no way connected with physical complaints, and which were not obtained for the purpose of treating a patient.
    3. Will—Probate—Undue influence.
    The testatrix, who was a woman of the mental capacity to make a will, made a will, and reaffirmed it within two months, and a month later made a new will. This last will was more favorable to her son than the previous one, and he was shown to have importuned the testatrix to change the will first executed. The testatrix lived for about a year after the execution of the last will, and during that time made declarations on different occasions inconsistent with any dissatisfaction with said son, and expressed her confidence in him. There was nothing to show that on such occasions, the testatrix did not speak her mind freely and without domination or fear. Held, there was no proof of undue influence.
    Appeal from the decree of surrogate’s court of Kings county, admitting a will to probate

      Bergen & Dykman, for proponents and resp’ts; C. W. Pleasants, for contestants, app’lts; Roger A. Pryor, of counsel for app’lts.
   Barnard, P. J.

We deem the exceptions taken upon the trial of not sufficient weight to reverse the decree.

One of the proponents, Mr. Lanahan, was permitted to testify to declarations made by the deceased in respect to her son Edward Boury. It subsequently appeared that these declarations were not made while the will was under consideration, but had been made in reference to other business when the deceased and the witness sustained the relation of attorney and client. The evidence stricken out is returned, and there is nothing in it beyond what is preserved in the case. . The witness was permitted to state that for many years the deceased constantly reported that the troubles of • her son Edward had caused her family to be involved in financial and domestic affairs. The rejected evidence goes no further than this, except that specific complaints are made. The attorney who drew the will could properly testify to the facts, and the declarations of the deceased in respect to the execution and accompanying it, are admissible, and are not within the principle of disclosures between attorney and client. The evidence of the witness Johnson was not within the rule excluding communications between physician and patient. Nothing he said was acquired for the purpose of the employment. It was merely af amily physician testifying to family events, in no way connected with physicial complaints. The admission of the testimony of Edward Boury was objected to in many parts of his narrative. Some were o'f instances of events which were not of personal transaction with the deceased, and some are admissible, because he was the principal point of assault in the case, and he had a right of reply when the proponents of the old will and the contestants of the new one had given testimony in reference to the transaction as to which he was permitted to give in reply his version of the facts.

The letters from Lanahan to Mrs. Boury were properly admitted. Lanahan had testified to the letter from Mrs. Boury to him, and these letters to her were proper, to give the court the entire case, so far as it depended upon the correspondence. The answer of the witness Gill was prop - erly stricken out. It was not responsive to the question, and he was permitted to make a proper answer, which was, whether the subject of the will was discussed before July 21, 1884. He had endeavored to insert in his answer matter not called for by the question. There is, therefore, nothing to call for a reversal for material errors in the admission or the rejection of evidence. Matter of Ross, 87 N. Y., 514. The decree must therefore be examined upon the merits and upon the entire body of the evidence given in support and in opposition to the will.

It appears from the will that the testatrix, at her decease, resided in Kings county. She had made a will in April, 1884, and had re-executed it in June, 1884.

On the 21st of July, 1884, she executed the will in question. She died on the 13th of April, 1885. The two papers are essentially different in plan and result, and still have a certain similarity. Edward Boury was her only son, and heir at law. There was a Miss Marie B. Mattingly, who had been brought up in testatrix’s family, 1 and was a daughter of an adopted daughter of the deceased. By the will first executed she had one-fifth of the estate.

By the last will she gets $6,000 a year for life. By the first will the son got the use of four-fifths of the estate, with the remainder to his four children equally. By the last will he gets, after deducting $30,000 for the use of three of his four children and after paying an annuity of $300 a year to Cora Boury, one of the children, during life, the use of all the estate for life, with remainder to his children, excluding Cora Boury. The executor in the first will was Mr. Higgins, in the last will Edward A. Boury, the testatrix’s son. There is nothing in the testimony from whiqh it can be claimed that the testatrix was a person of unsound mind. The entire testimony shows her to have been a woman of strong mental power. _ Ho instance of incapacity, nothing incoherent or ■eccentric is shown. She was a self-possessed woman, with a firm will, to the time of her death. The case therefore is the case of a woman entirely competent to make a will, but it is alleged that she was unduly influenced by her son to make the last will. The ground of the claim is stated in the testimony of Thomas E. Ward, to the effect that on the next day after the last will was executed the testatrix said to him that “she had made a new will through the importunity of Mr. Boury.” * * She said he had been rude towards her; she undertook to bare her arm by putting up her sleeve to show h'ow hard he had taken her by the arm.

Q. In the endeavor to get her to change her will? A. Yes, sir.

The same general fact is testified to by Dr. Gill. I think an examination of the evidence disproves this testimony. In the first place, Miss Mattingly lived in the same house during the whole time covered by the evolution of the last will, and much violent language is given by her between mother and son, but no violence. In the second place, the last will was drawn under the direction of testatrix. It was read to her in the presence of three witnesses. She stated the reason for the change in that she had had a very long interval of estrangement from her son. That she trusted him at the point of death and that blood was thicker than water. She showed no fear, she stated no acts of violence, and changed the will after it was prepared to insure a fixed annuity to Miss Mattingly. The testatrix lived many months after this and made no change in the will, although she knew its contents and effect. In the third place, the testatrix subsequently made declarations inconsistent with the testimony tending to show a dissatisfaction with the will and with her son. She repeatedly stated her confidence in her son and an expectation that, he would transact her business after the date of the disputed will. The occasions were different, and in none of them could it be inferred that the testatrix did not speak her mind freely and without domination or fear. The part taken by the son in conveying the instructions for the will is of no importance in view of the fact that the testatrix adopted the instructions as her own and- approved the will after it was prepared and executed it. The case is not one where the inference against one who writes himself heir is called for.

He was the heir at law and the only one, and the will was made by a capable testatrix who understood it.

Ho doubt the son solicited the change, but there is no reason to believe that he unduly influenced his mother to change the will. Matter of Martin, 98 N. Y., 193.

The decree of the surrogate should therefore be affirmed, with costs.

Pratt, J.. concurs; Dykman, J., not sitting.


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    Francis M. Arming et al., Resp’ts, v. Ramon Monteverde, App’lt.

      (Supreme Court, General Term, Second Department.

      Filed May 9, 1887.)

    1 Pleading—Attachment—Conversion—Sufficiency of averments.
    The complaint in an action stated that the defendant collected from various persons a considerable sum of money, all which sums were the property of the plaintiffs;.that they were entitled to the immediate possession thereof, and that the defendant wrongfully converted the same to his own use. Held, that an attachment was proper as for a conversion of personal property.
    2. Same—Form of affidavit—When statement may be in the disjunctive.
    The affidavit in support of the attachment averred that the money had “ been disposed of by said defendant with intent to defraud these plaintiffs, or is concealed by him with the like intent.” Held, that a statement in the disjunctive is proper, where the facts stated show that the case falls under one or another of the two clauses of a statute.
    Appeal from an order denying a motion to vacate an. attachment.

      Jose G. Moralles, for app’lt; Hirsh & Rasquin, for resp’ts.
   Barnard, P. J.

The complaint states that the defendant collected from various persons “a considerable sum of money, all which sums were the property of the plaintiffs, and they were entitled to the immediate possession thereof,” and that the defendant wrongfully converted the same to his own use. If the money was to be identically delivered to the plaintiff; if the defendant was simply a messenger, having in his possession the defendants money, with the only duty of delivering the same money to the plaintiff, an appropriation of the same would be a wrongful conversion in the fullest sense. Under such circumstances he would have no more power to convert the same than he' would if the property consisted of personal articles other than money. It would certainly be competent, under the complaint, to prove ownership specifically in the money itself, and therefore an attachment is proper as for a conversion of personal property. The affidavit in support of the complaint is not so plain in respect to a conversion. That states that the plaintiff employed the defendant to collect the moneys from persons living in Venezuela. That the defendant collected $3,300, and wrongfully converted the same to his own use. This seems inconsistent with a technical conversion. When, the moneys were received they were not necessarily to be paid in specie, but with other moneys.

But assuming a debt only, defendant admits that the money was misappropriated, and the affidavit avers that this was done to defraud the plaintiff, or that the moneys are concealed with a like intent.

A statement in the disjunctive is proper, where the facts stated show that the case falls under one or another of the two clauses of a statute. Van Alstyne v. Erwine, 11 N. Y., 331.

The order should therefore be affirmed, with costs.

Pratt and Dykman, J., concur.


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    John J. Lehr, Resp’t, v. The Steinway and Hunter’s Point Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Negligence — Street railroad — Overcrowding — Riding on front PLATFORM.
    The plaintiff gave up his seat inside the defendant’s street car to his wife, and found it so uncomfortable by reason of the crowded condition of the car, permitted by the defendant, that he was obliged to seek a place upon the front platform. Erom this he was pushed by other passengers and injured. By reason of the crowd the driver was unable to use the brake td avert the injury. Held, plaintiff was not guilty of contributory negligence in riding on the front platform under the circumstances, and that the defendant was guilty of negligence in allowing the overcrowding.
    Appeal from from a judgment entered upon the verdict of a jury in favor of plaintiff and order denying a motion for a new trial on the judge’s minutes.

      Phillips & Wray, for resp’t; Wingate & Cullen, for app’lt.
   Pratt, J.

The motion for nonsuit was properly denied. "While it might be argued from the testimony that the injury was not caused solely by defendant’s negligence, yet, the inferences to that effect were for the jury to draw, not for the court.

The question whether the plaintiff was guilty of contributing to the accident, was properly left to the jury in the issue whether the plaintiff, under all the circumstances, did any thing that contributed to the accident which an ordinary prudent man might not have done.

A prudent man might well give up his seat inside a car to his wife, riding upon the front platform without being sub- • jected to the charge of negligence. What ninety-nine out of every hundred prudent men would'do under a given class of circumstances, cannot be regarded as an negligent act.

The plaintiff, having given up his seat to his wife, found it so uncomfortable, by reason of the crowded condition of the car, permitted by the defendant, that he was obliged to seek a place upon the platform.

At this time there was no seat furnished him in the car, and therefore the statute invoked by the defendant has no application.

If the testimony of the plaintiff was to be believed, he was fully justified in seeking a place upon the front platform, which, at the time he attempted to secure a place there, was not so overcrowded as to render it unsafe for him to stand there. It is not the case of a passenger thrusting himself upon a platform so full of passengers that he is .unable to maintain his foothold.

The_ whole difficulty seems to have been, that after the plaintiff had boarded the car and-paid his fare, the conductor permitted other passengers to get on, and thus not only to push the plaintiff from his place, but prevent the driver from using his brake. It is apparent that if the driver had at once applied his brake when the plaintiff cried out to him to stop the car, the accident might have been averted.

The evidence justified the jury in finding that the defendants’ servants negligently permitted the car to be overcrowded so as to throw the plaintiff from the car, but also so as to render it impossible for the driver to take proper precautions to prevent accidents. Upon the plaintiff’s evidence the issue might be raised whether the driver was inattentive to duty or was guilty of any omission without which the injury would not have occurred. But it is claimed that plaintiff should not have attempted to get upon the front platform while the car was in motion. The obvious answer to this is, that this act did not cause the accident, for he had already got there, besides, he asked the conductor to stop the car before he- left the rear platform where there was then sufficient standing room. It is true the evidence is contradictory upon all the issues, but the case -was fairly submitted to the jury and the evidence is sufficient-fo sustain the verdict.

The judge’s charge presents no error of which the defendant can complain. It may well be doubted whether it was not in some respects too favorable to defendant.

We have examined the exceptions taken during the trial, but find none to warrant setting aside the verdict. The defendants’ requests were properly referred, and the amount of the verdict cannot, under the proofs, be said to be excessive.

Judgment affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


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    Rowland Brill, as Executor, etc., Resp’t, v. William H. Wright, as Executor, etc., et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    1. Wii-l—Construction.
    The language of the controlling portion of a certain will is: “First. After all my lawful debts are paid and discharged, I give and bequeath to Job S. Benjamin the sum of $2,000. to be paid to him within three months after my decease.” “ Secondly. I give and bequeath all the rest and residue of my real and personal estate, of whatsoever name or nature, to James O. Cronk and Matilda Cronk, to each the one-half part.” Held, it was the intention of the testator to have his debts and the legacy to Benjamin paid, and that he devoted to that purpose all his property without distinction between personalty and realty, and to bestow upon the residuary beneficiaries the remainder and that alone; that if there remained_nothing after the satisfaction of these two primary objects, they took nothing.
    2. Same—Payment of debts and lesaoies—Personal property liable.
    The fundamental rule is that the personal property is the primary fund for the payment of legacies and debts. The rule prevails in all cases where-an intention of the testator to charge his real property with such payment, cannot be collected from the terms of his will.
    3. Same—"When intention inferred.
    It is not requisite that such intention should be written in express terms. If it may be reasonably and naturally gathered from the entire instrument, then it may be imputed to the testator and inferred by the court.
    Appeal from a judgment declaring the legacy of $2,000 given to J. S. Benjamin a charge upon the real estate of which Mr. Seaman died seized.

      O. D. M. Baker, for resp’t; Herrick & Losey, for app’lts.
   Dykman, J.

This is an action for the recovery of a legacy and for the procurement of a judgment charging the payment of the same upon the real property of the "testator.

The language of the controlling portion of the will is this: “First. After all mylawful debts are paid and discharged, I give and bequeath to JobS. Benjamin the sum of $2,000, to Ido paid to him within three months after my decease.” “Secondly. I give and bequeath ail the rest and residue of my real and personal estate, of whatsoever name or nature, to James O. Crank and Matilda Cronk, to each the one-half part thereof.”

The defendant, William H. Wright, was appointed sole executor, and the will contained no power of sale.

The fundamental rule is that the personal property is the primary fund for the payment of legacies and debts, and that rule prevails in all cases where an intention of the testator to charge his real property with such payment cannot be collect'd from the terms of his will.

Yet it is not requisite that such intention should be written in express terms. If it may be reasonably and naturally gathered from the entire instrument, then it may be imputed to the testator and inferred by the courts.

It is plain, therefore, that the determination of this and all other cases depends upon the peculiar language of the will, and no material aid can be afforded from adjudicated cases, although we must carry with us in our search for the intention of the testator the light furnished by the decisions of the courts.

The will under consideration is short, but full of meaning, and the scheme of the testator is well defined and his intention easily discovered.

In the first place he devoted all his property to the payment of his lawful debts, and gave nothing to any one until they were discharged. After that, and from what then remained,_ he gave a legacy of $2,000 to his nephew, Job S. Benjamin. "Then after all he gave the residue of his property to the two Cronks, one-half to each.'

So from first to last he mingled his property and reft no trace of distinction between his personalty and his realty.

The funds for the payment of debts were to be furnished "by the consolidated estate, and the legacy was to be paid from the same source, and, last of all, the residue of the property so consolidated was given to the two residuary beneficiaries.

Plainly, it was the intention of the testator for them to take nothing until after the payment of the debts he had contracted and the legacy he bequeathed, and for them to take what thereafter remained and such remainder only.

The residuary clause of the will has no subject for its operation, except the debts and the legacy. No other portion of the testator’s property was disposed of so that the land in question could constitute the residue.

It was the intention of the testator to have his debts and the legacy to his nephew paid, and to that purpose he devoted all his property without distinction between personalty and realty, and to bestow upon the residuary beneficiaries the remainder, and that alone, and if there remained nothing after the satisfaction of these two primary objects, then they took nothing.

These considerations conduct us to the conclusion that the legacy to the nephew was a charge upon the consoli • dated estate, and so upon the land in question, and must be paid therefrom.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


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    James W. Dixon, Resp’t, v. Henry W. Dixon, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9. 1887.)

    1. Practice—Examination of party before trial.
    Order for the examination of a party before trial can be granted ex pwte and requires no notice,
    3. Same—Affidavit—When sufficient.
    The complaint in the action was for the board of the defendant, with rooms. The answer averred payment. The affidavit for the examination of defendant before trial, stated that the testimony of defendant was material and necessary to the defense in the action, that the payment in full relied upon by the defendant as a defense, was made in part by said defendant, and “as to that, he, and he alone can testify, and his testimony is absolutely necessary to prove said defense.” Held, That the affidavit was sufficient to obtain an order to examine a party.

      3. Vacating ex" parte order—Code Civ. Pro., § 773.
    The judge who makes an ex pwrte order has the right to vacate it ex parte under Code Civ. Pro., § 773.
    Appeal from an order vacating an order which vacated another order for the examination of a party before trial.

      Arthur Van DeWater, for resp’t; Henry A. Root, for appl’t.
   Barnard, P. J.

The judge who granted the order to examine the defendant had jurisdiction. Section 870, Code.

The order required no notice. It was based upon an affidavit which stated facts, showing a necessity for the examination of the party defendant. The order was granted and became a proceeding in the action which could not be regarded as a nullity. The application to the judge ex parte was irregular without notice, and no doubt could be vacated ex parte. It was vacated, and then a motion was made to set aside the order vacating the order which set aside the order for examination. The appeal does not really bring up the merits of the question, which seems to be whether the affidavit for the examination was sufficient.

It seems to be sufficient under the very strict rules applied to such cases. The complaint is for board of defendant, with rooms.

The answer avers payment. The affidavit states the issue, and continues : “ That the testimony of said Henry W. Dixon is material and ^necessary to the defense in this action;” that the payment in full relied upon by the defendant herein as a defense was made in part by said defendant; and “as to that, he and he alone can testify, and his testimony is absolutely necessary to prove said defense.”

This was enough to obtain an order to examine a party, if the order had been to examine a witness other than a party the application would fall under subdivision 5 of section 872, and special reasons for examining the witness would be called for. This affidavit even fills that requirement. It states that the defendant is on the point of leaving the state; that the issue is complete and would be reached before his return, and “it is absolutely necessary to take his deposition for use upon the trial of the action.”

The affidavit is informal, perhaps, in not showing that the defendant was compelled to leave the state, either for sickness or other controlling reasons; but on a fair reading that seems to be the result of the statement as it is in the affidavit. As has been observed, the present affidavit does not directly reach the question. The order was granted and vacated ex parte, and restored ex parte. The only question is whether Judge Barrett could ex parte vacate his own ex parte order.

Such a right is given by section 772 of the Code. The order simply vacated another order obtained without notice. The order for the Examination was executed before the same was vacated, and from the papers there is not the least reason to doubt the good faith and necessity of the application. It was taken to prevent delay, and the deposition was concluded by the respondent after he had obtained the ex parte stay to vacate the order.

The order should be reversed, with costs and disbursements.

Pratt and Dykman, JJ., concur.


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    Third National Bank of the City of New York, Resp’t, v. James E. Dutcher, Sheriff, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)

    Sheriff—Seizure by—Assignment—Title.
    The plaintiff made loans of money to one Innis, to be used in payment for certain dye woods, and as collateral security for the payment of the promissory notes of Innis to the plaintiff, for the money so loaned, he delivered the bill of lading of the wood to the plaintiff and also executed a bill of sale of the same to one Jordan, the managing director of the plaintiff, in the plaintiff’s behalf. The wood was delivered tó and received by an agent of Jordan, and stored by him, and never went into the rightful possession of Innis thereafter, though a part of it was wrongfully used by a firm of which Innis was a member. Subsequently the sheriff, defendant herein, seized so much of the wood as remained by virtue of an execution against the property of Innis. Jordan executed an assignment of the bill of sale of the wood to the plaintiff, who commenced this action. Held, that the seizure by the defendant was while the possession was held, for the bank (plaintiff) under a perfect title and therefore wrongful as. against it.
    Appeal from a judgment entered at circuit in favor of plaintiff. Action tried without a jury.

      Hackett & Williams, for app’lt; Thompson, Weeks & Town, for resp’t.
   Dykman, J.

This is an action for the recovery of damages for the unlawful conversion of personal property.

The plaintiff made loans of money to George Innis to be used in payment for certain dye woods and as collateral security for the payment of the promissory -notes of Innis to the plaintiff for the money so loaned; he delivered, the bill of lading of the wood to the plaintiff and also executed a bill of sale of the same to Conrad M. Jordan, the managing director of the plaintiff, in the plaintiff’s behalf. The wood was transported to the city of Poughkeepsie, by direction of Mr. Jordan, who appointed an agent to receive-the same, and it was received and stored by him, and never went into the rightful possession of Innis thereafter. This-is a statement of the legal effect of the facts proven and found, but not a statement in detail. All this came to pass prior to the 28th day of July, 1884, when the defendant, who was .the sheriff of Dutchess county, seized so much of the wood as remained, by virtue of an execution against the property of George Innis, but a large quantity of the same had been improperly used by the firm of which George Innis was a member. Mr. Jordan executed an assignment of the bill of sale of the wood held by him to the plaintiff, and this action was thereupon commenced.

There is no evidence of a written assignment of the bills of lading to the bank, but they were delivered to the president under and in pursuance of an express agreement for the hypothecation of the goods mentioned therein as security for the loan. Neither does the form of the bills appear in the case, but they were lawfully acquired by the plaintiff for a valuable consideration, and under all the circumstances attending the transaction their delivery without indorsement constituted a valid transfer. Merchant’s Bank v. U. R. R. and T. Co., 69 N. Y., 373. Beyond the bills of lading, however, there was a bill of sale to Mr. Jordan for the benefit of the bank, and under it the wood went into his possession; so that the seizure of the same by the. defendant was while the possession was held for the bank,, under a perfect title, and therefore wrongful as against it.

Every element necessary to constitute a valid cause of action against the defendant in favor of the plaintiff is present, and the judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


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    Matter of the Application of August Nicol et al., for a mandamus against the Board of Education of the City of Brooklyn et al.

      (Supreme Court, General Term, Second Department,

      Filed May 9, 1887.)
    Schools—City of Brooklyn—Board of education—Power of.
    The board of education of the city of Brooklyn have entire charge and direction of the public schools in that city. The making of rules and regulations for instruction and discipline are given to the board. The courts cannot determine the propriety of the teaching of a subject unless some law forbids it. The discretion of the board cannot be reviewed as to this, nor its determination at what point or number the receiving of scholars in any certain school must stop.
    Appeal from an order denying a motion for a writ of mandamus.

      William J. Gaynor, for appl’ts ; F. F. Dana, for resp’ts.
   Barnard, P. J.

No cause is made for a peremptory writ of mandamus. The relators are shown to be children residing in a district in Brooklyn in which the defendants provide public schools. The district is known as No. 24. In 1883, the school became crowded, and the defendants in the manner provided by law caused to be erected a branch school in the same district. This branch school receives a younger grade of scholars, and has a capacity of 616 pupils. It was supposed to be of sufficient capacity when built not only to relieve No. 24, but to receive the children of the entire district. The district has increased so rapidly that the branch school has been crowded to overflowing since it was • built; with a seating capacity of 616, the average attendance lias been over 1,000. Of course it should not be, but the state directs the parent to send his children to school, and fails to provide for the scholar ; but it is apparent that there is no neglect upon the part of the defendants. The board can only determine the number and location of schools, and ask for an appropriation. The common council must assent to the purchase, chapter 143, Laws of 1850, section' 14. It appears that the board have asked for a new primary school in that vicinity, and that the purchase has been made and the building is now being erected. New buildings for schools, including additions , to old buildings, are completed, or in the process of erection, to the number of fourteen. District No 24 has more than doubled since the branch school was built, and the defendants cannot be charged with neglect for a failure to keep pace with its growth in school accommodation. It is not the province of this writ to determine the-propriety of teaching music and drawing. By chapter 143, Laws of 1850, the board of education have entire charge and direction of all of the public schools of the city. The rules and regulations for instructions and discipline are given to the board, subject only to the provision that they be not inconsistent with the laws of the state. The courts cannot determine the propriety of the teaching unless some law forbids it. The discretion of the board cannot be reviewed. This result must equally follow the determination of the board at what point or number, the receiving of scholars in any certain school must stop. This school is oyer full, and it is not the province of the court to adjudge that more could be received by giving a larger rotation of scholars, so as to enable all to be received. That is particularly a question for a board of education.

The order should therefore be affirmed with costs.

Pratt J., and Dykman, J. J., concur.