text:
    ISABELLA SMITH, Appellant, v. THE CITY OF BROOKLYN, Respondent.

      Oily — liability of, to one injured by falling on an icy sidewalk.

    This action was brought to recover damages resulting from injuries sustained by the plaintiff by reason of her falling upon an icy sidewalk in the city of Brooklyn, on December fourth. Heavy snows had fallen on November twenty-eighth and twenty ninth, and had subsequently melted, and the ice had been formed therefrom. No notice to the defendant of this condition of affairs was shown.

      Meld, that a dismissal of the complaint was proper.

      Appeal from a judgment in favor of the defendant, entered upon an order dismissing the complaint.

      P. Keady and B. F. Traoy, for the appellant.

      John A. Taylor, for the respondent.
   Dykman, J.:

The complaint in this action is, that the plaintiff slipped on an accumulation of ice and snow which had been unlawfully permitted, by the defendant, its servants and agents, to gather on the sidewalk of the street, and fell and broke her left arm, and sustained other serious injuries.

The negligence charged against the defendant is a failure to keep the walk in a safe condition.

The fall of the plaintiff was December é, 1882. The testimony on the part of the plaintiff showed that there had been snow and rain, and that it was like a piece of glass where the plaintiff was injured. One of the witnesses stated that snow fell about a foot and a foot and a-half on the twenty-fifth and twenty-sixth of November, and then had sleeted over. The same witness also said that it had snowed between the twenty-eighth and twenty-ninth of N ovember, and that between that “ it had rained and then frozen, and on the twenty-ninth it had slightly got covered — a light snow storm; ” and then she gave this testimony: Q. Do you know whether the snow or ice had been removed from the sidewalk, or any part of it? A. Unless it had drifted away, it had not been removed in any other way. * * * Q. About what quantity of ice did you notice on these flags; how wide and how thick ? A. An inch thick or more. Q. In what condition —■ lumpy or smooth ? A. Smooth, where the rain had washed along the sidewalk and froze and made it as smooth as a piece of glass. Q. A little snow had fallen pver this afterwards? A. Yes, sir.”

On her cross-examination this witness testified as follows: “ Q. When you say then that this ice was on the ground there, yon mean that this fall of snow lay there, I suppose ? A. Yes, sir; at the time — Q. You don’t pretend to say it had changed into ice three or four days before? A. Yes; the snow in certain places where it had drifted was in piles, up with rain and sleet, and freezing, this ice was there. ■ Q. That was some days after it fell when it began to rain and thaw? A. Yes, sir. Q. How many days after ? A. May be four or five, or a week. Q. The heaviest fall of snow occurred on the twenty-ninth? A. Yes, sir. Q. And some three or four days after when the temperature abated, it began to thaw and freeze. A. Yes, sir. Q. And as it melted that- congealed and formed ice ? A. Yes, sir. She also said that ice had been there three or four days before the accident. The fair deduction from all the testimony, is that the ice was one or two inches in thickness and covered with a slight fall of snow. The sidewalk was broken and disordered but the plaintiff fell on the ice and not on the broken flag. Besides that, the negligence charged was the failure to remove the ice, and the plaintiff cannot recover because the sidewalk was not in order and repair, for the reason that she sustained no injury therefrom. The snow had melted to water, which had become ice on the sidewalk, and that caused the fall and injury of the plaintiff.

• The complaint was dismissed at the circuit and the plaintiff has appealed from the judgment. The only neglect of the defendant consists in its failure to remove the ice from the sidewalk after its formation, t-liree or four days previous to the accident. There are about 500 miles of sidewalk in the city of Brooklyn, and in the cold season any portion of it may become coated with ice in a few hours or a few days, and no reasonable amount of inspection or care can prevent it.

This ice came from natural causes. The snow fell and was reduced to water by the temperature of the air, and that became ice from the samé cause. There was no agency of the municipality, and there was no actual notice of the existence of the obstruction. But it had continued three or four days. Had it become so notorious that the jury could be permitted to infer notice?

The cities are not insurers of the safety of their citizens while' walking or driving along their streets. They may and do become icy and dangerous, and horses and other animals may fall thereon and sustain injury, unless their owners use proper precautions to guard against such accidents. In our climate no reasonable amount of care can prevent the accumulation of ice and snow, and all that is required from municipal corporations is .reasonable care and diligence. And what is reasonable must be determined in view of all the surrounding conditions. Our seasons are fluctuating, the inspection of streets is not incessant, the officers and means provided for that purpose are limited, and after the exertion of all reasonable diligence, defects and obstructions will exist and injuries will result.

¡Such, in our view, is this case. We cannot convict the defendant of negligence, and if the case had gone to the jury and a verdict resulted to the plaintiff, we must have set it aside.

The judgment should be affirmed, with costs.

Barnard, P. J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    NEWLAND MAYNARD, Plaintiff, v. FORSTER J. MAYNARD, Respondent, and CECILIA PIENKOWSKA and Others, Appellants.

      Inheritance — when aliens can take land owned by a resident alien — right of the State to take the land — 1845, chap. 115 —1874, chap. 261 —1875, chap. 38.
    In 1852 certain real estate was conveyed to one Sendzemir and Ms wife. They were then aliens, hut they had filed with the secretary of stale the declaration required by the Revised Statutes to enable them to hold real estate in the State of New York. Thereafter, and without ever having been naturalized, they died, the wife in June and the husband in August, 1881. The husband left, as his heirs-at-law, brothers, sisters, nephews and a niece, some of whom were of full age and some minors, all being aliens and none of them having ever been in this country. After the husband’s death one. Maynard entered into possession of the land, and, in 1883, all rights of the people therein ' were released to him.
    In an action for a partition of the land:

      Held, that under section 4 of chapter 115 of 1845, as amended by chapter 261 of 1874 and chapter 38 of 1875, such of the alien heirs-at-law of' the husband as were minors and females, took an absolute, indefeasible estate in the land.
    That such of the male heirs, as were over the age of twenty-one years, took a title, which was defeasible by the State in proper proceedings to be instituted , by it, so long as they omitted to file in the office of the secretary of state the deposition or affirmation mentioned in the first section of the act.
    That until the forfeiture was so declared, the State had no rights in the land which it could grant or convey to a stranger, and that the alien heirs were entitled to hold and enjoy the same.

      Appeal from a judgment,'entered upon the report of a referee.
    The action was brought for the partition of certain real estate in the town of Oyster Bay, county of Queens. Notice of pendency of action was filed April 15, 1882. The people of the State of New York were originally made defendants, and they, the defendants Maynard, and the other defendants, each put in answers claiming, respectively, the whole title to the property in question. Subsequently the plaintiff abandoned his claim, and an act having been passed releasing the interest of the people to Forster J. Maynard, the people withdrew, whereupon the referee proceeded to decide the issues between the defendants, Maynard, on the one-hand and the remaining defendants on the other, in accordance with section 1513 of the Code of Civil Procedure. The action was referred to a referee, who rendered a report finding that the defendants Maynard were entitled to the whole property, and that the other defendants had lost all their rights by escheat. To-these findings the remaining defendants excepted, and appealed from the-judgment entered on the referee’s report.

      John M. Stearns, for the plaintiff.

      William H. Secor, for the defendants F. J. Maynard and wife,, respondents.

      Edgar Logam, and Ed/ward B. Hill, for the defendants Lesznowska and others, appellants.
   Dykman, J.:

This is an action for the partition of real property, and the facts-essential to the determination of the questions presented are these : The property in question was conveyed to Joseph de Sendzemir and Newland Mary de Sendzemir, who were then husband and wife, in February, 1852. They were then aliens, but had both filed in the office of the secretary of State the declaration necessary and requisite to enable them to take and hold real estate, but neither of them ever became naturalized citizens. The wife died in June, 1881, and the husband died in August, 1881, in possession of the property, but without having made any disposition thereof. Both died intestate, without children. The father and mother of the husband died before him, and his only heirs-at-law are his two brothers, Julian and Stanislaw Sendzemir, his two sisters, Pelagia Lesznowska and Cecilia Pienkowska, and his nephews, Stanislaw Sendzemir, 2d, Brainslaw Sendzemir and niece Alexandra Bakowska, children of his deceased brother Alexander Sendzemir. These are all defendants in this action, and are all aliens, and none of them have ever been in this country.

The defendant Foster J. Maynard took possession of the property after - the death of the husband, and has held the same since that time under a claim of ownership, although he is not related to ■either the husband or the wife. All rights of the people of the State •of New York to this property were released to Foster J. Maynard ■by an act of the legislature, passed April 19, 1833. (Chap. 249, Laws 1883.) It was declared in that law that nothing Herein contained should impair any right of heir-at-law, devisee, grantee or ■creditor. The defendants, Pelagia Lesznowska, Cecilia Pienkowska •and Alexandria Bakowska, are all females, and the defendant Brainslaw Sendzemir was an infant at the time of the death of Joseph de Sendzemir.

The cause was tried before a referee, who decided that the defendant Foster J. Maynard was the sole owner .of the premises, and was ■entitled to judgment dismissing the complaint. From the judgment entered on this report all the defendants claiming to be the heirs of Joseph dc Sendzemir have appealed.

Joseph, de Sendzemir and his wife were both aliens, born in a strange country, under the obedience of a strange prince, or as Littleton has it, out of the ligeance of the king.” But they were resident aliens, and had filed the requisite declaration in the office •of the secretary of State to enable them to take and hold real estate. That was not necessary to enable them to take a fee simple in land, for they possessed that capacity under the common law. The only ■disability under that system was, that they could not transmit the same, and the king or the state might appropriate it by prerogative right, by the finding of an inquisition. (Wadsworth v. Wadsworth, 12 N. Y., 379; Thomas Coke on Littleton, vol. 1, p. 91.) But being alien residents, they fell within the statute of the State, to be hereafter considered.

The conveyance to Joseph de Sendzemir and wife vested the entire estate in each grantee. Each became seized of the entirety, and on the death of his wife the whole estate belonged to him a& the survivor. (Bertles v. Nunan, 92 N. Y., 152.) As, therefore, Joseph died intestate and seized of this property, it descended to-his heirs if there were any persons in existence answering that description with capacity to take the title, unless there had been an escheat to the State. By the common law an alien may acquire-title to real estate valid against all but the sovereign, and hold the same until inquest of office found. But he cannot hold the same against the paramount right of the State, and on his death the title escheats to the State without any inquest of office. (Goodrich v. Russell, 42 N. Y., 177.) But the severity of the common law has been ameliorated in this State by statutory enactments intended to soften its asperity and make it more conformable to the liberal tendency of modern progress in its abhorrence of forfeitures. '

The first to be considered here are the Revised Statutes of the State, providing that any alien who has come into the United States may make a deposition in writing that he is a resident of and intends always to reside in the United States and to become a citizen thereof as soon as he can be naturalized, and that he has taken such incipient measures as the laws require to enable him to obtain naturalization, which shall be certified and filed and recorded by the secretary of State. Any alien making and filing such deposition, is thereupon authorized and enabled to take and hold real estate, and during the next six years thereafter, may dispose of the same as if he were a native born citizen. (2 R. S. [6th ed.], 1096, §§ 15, 16). Then came the law of 1845, as amended; Laws of 1845, chapter 115 ; Laws of 1874, chapter 261; Laws of 1875, chapter 38; the last two being amendments of section 4 of the law of 1845, the only section of that law affecting this case.

By the last amendment that section reads as follows: “ If any alien resident of this State, or any naturalized or native citizen of the United States, who has purchased and taken, or hereafter shall purchase and take, a conveyance of real estate within this State, hag-died, or shall hereafter die, léaving persons who, according to the statutes of this State, would answer the description of heirs of such deceased person, or of devisees under his last will, and being of his blood, such person so answering the description of heirs or of srrch devisees of such deceased person, whether they are citizens or' aliens, are hereby declared and made capable of taking and holding, and may take and hold, as heirs or such devisees of such deceased person, as if they were citizens of the United States, the lands and real estate owned and held by such deceased alien or citizen at the time of his decease. But if any of the persons so .answering the description of heirs or of such devisees as aforesaid of such deceased person are males of full age, they shall not hold the real estate hereby made descendible or devisable to them as against the State, unless they are citizens of the United States, or, in case they are aliens, unless they make and file in the office of the secretary of State the deposition or affirmation mentioned in the first section of this act.”

Under- this statute, all persons who answer the description of heirs of a deceased resident alien, and who are of his blood, are made capable of taking and holding the lands and real estate owned by him at the time of his decease as heirs, whether they are citizens or aliens, as if they were citizens of the United States.

Joseph de Sendzemir, at the time of his death, was a resident alien and seized of these premises. He had filed the deposition required by law to enable him to acquire and hold real estate, and the provisions of the Revised Statutes enable resident aliens on. filing the required deposition to hold real estate as though they were citizens, free from the right of forfeiture by the sovereign power. (Wright v. Saddler, 20 N. Y., 320.) The statute of 1845, with the amendments, clothes resident aliens holding title to real estate with the same power possessed by citizens to transmit such title by descent to their heirs, and infuses an inheritable quality into the blood of the alien. Under that statute the female heirs of Joseph de Sendzemir and the male heir, who was a minor at the time of his death, possessed capacity to inherit his estate as ample as if they had been citizens.

There is a proviso against males of full age that they shall not hold the same against the State unless they are citizens, or make and file the deposition required by law. But this does hot render them incompetent to take the title. That in no case escheats to the State, without the finding of an inquisition, where there are heirs competent to take. Here all are competent to take, but the adult male heirs cannot hold against the State unless they become citizens or file the necessary deposition. The male heirs of full age take a title defeasible by the State, unless before the consummation of the proceedings instituted to declare the forfeiture they become citizens or file the necessary deposition. But if they do either, their right and title becomes absolute and indefeasible. (Goodrich v. Russell, 42 N. Y., 177.) Their defeasible title is good, except against the sovereign power of the State. Their alienage is a cause of forfeiture which may be established by a judicial proceeding instituted on behalf of the State for that purpose, and that may be defeated even after its commencement in the manner already mentioned. No such proceeding has been instituted, and therefore the State never acquired any right or interest in the premises. It follows that the State possessed nothing which it could grant or release to Foster J. Maynard, and that he took nothing under the act of the legislature releasing the interest of the State to him.

These considerations require a reversal of this judgment, but another question has been introduced into the case which requires examination. Assuming that the heirs of Joseph de Sendzemir are all Russian subjects, it is insisted that whatever rights they had in the property in question has been lost by the operation of the treaty between Russia and. the United States, concluded in December, 1832, the provisions of which was extended to the kingdom of Poland by the twelfth article. With full submission to the high authority of the Constitution of the United States, declaring that the Constitution and the laws of the United States, made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land, we find, on examination of the treaty, that it has no application to these defendants. The provisions invoked is contained in the tenth article of the treaty and is as follows: “And where, on the death of any person holding real estate within the territories of one of the high contracting parties, such real estate would, by the laws of the land, descend on a citizen or subject of the other party, who, by reason of alienage, may be incapable of holding it, he shall be allowed the time fixed by the laws of the country, and in case the laws of the country actually in force may not have fixed any such time, he shall then be allowed a reasonable time to sell such real estate and to withdraw and export the proceeds without moléstation. * * *

All views of the case lead to the conclusion that the title to the premises in question is vested in the appealing defendants, who are the heirs of Joseph de Sendzemir, and that the claim of the defendant Foster J. Maynard is without legal support and without merit.

These provisions have application when real estate would descend ■on a person incapable of holding the same by reason of alienage, but our examination of this case has taught us that the alien heirs -of Joseph de Sendzemir were capable of taking title to the lands in question, all their disabilities having been removed by our ¡statute. Aside from that, however, we have no proof respecting a reasonable time to sell the land and export the proceeds.

The judgment should be reversed and a new trial granted, ■reserving all questions of costs.

Barnard, P. J., concurred.

Judgment reversed and new trial granted at Special Term; reference vacated; questions of costs reserved.


author: Dykman, J. :

text:
    WILLIAM G. WALKER and DELOS P. PHELPS, Respondents, v. ISSAC A. ISAACS, Appellant.

      Execution against the person — irregularities in the recital — when amendable— stipulation not to sue for false arrest — power of the court to compel a party to make it— Code of Giml Procedure, secs. 723, 1372, 1489.
    Where an execution issued against the person of a judgment debtor is defective, in that it fails to specify by name the county to which an execution against property has been issued and returned unsatisfied, the defect may be cured by an amendment to the execution, to be ordered by the court under section 723 of the Code of Civil Procedure.

      ■Quaere, as to whether it is sufficient to recite in the execution against the person “that an execution against the property of the judgment debtor has been duly issued to the sheriff of the county where the said judgment debtor resides, and returned unsatisfied.
    TJpon vacating an execution against the person for irregularities therein, the court may compel the defendant to stipulate that he will not sue for the arrest, or for false imprisonment under the execution.
    Appeal by the defendant from portions of an order made at 'Special Term, upon the hearing of a motion to vacate and set aside an execution issued against the person of the defendant.

      Daniel P. Hays, for the appellant.

      W. S. Logam,, for the respondents.
   Dykman, J. :

This defendant made a motion at Special Term to set aside an. execution in this action, issued against his person on the judgment, therein, for irregularity and as a nullity in that the execution did not specify the county to which an execution against the property of the defendant had been issued, and for the further reason that the execution against the person was not warranted by the complaint in the action. This last reason is plainly frivolous and unfounded,, because the complaint in the action was for the unlawful conversion of personal property. ■

The first point alone requires examination. The execution contains this recital: “ And whereas, an execution against the property of the judgment debtor has been duly issued to the sheriff of the county where the said judgment debtor resides, and returned unsatisfied.” In such a case as this no execution againt the person can he issued until an execution against property has been issued to the county where the defendant resides and returned wholly or partly unsatisfied (Code, § 1489), and such execution against the person must recite the issuing and return of such execution against the property specifying the county to which it was issued. (Code, § 1372.) The object of this last section is to prevent the arrest of a judgment debtor on a body execution before the remedy against his property .is exhausted, and to enable him to obtain appropriate-relief if any objection can be taken to any of the anterior proceedings. It is by no means clear under this view that the specification of the county in this execution is insufficient, but as the plaintiff has not appealed from the order that question cannot be examined or determined.

This case is not like Reilly's case (58 How., 218), because there no county was specified. The language was there the proper county.” That gave no information to the defendant, while here he was informed that the execution against his property had been issued to the county where he resided. The execution was not void and the defect was curable by amendment. ' The court may at any stage of the action amend any process or pleading, by correcting any mistake or by inserting an allegation material to the case. (Code, § 723.)

In the case of Thayer (20 Hun, 547) the execution against the person failed to require the sheriff to return it to the proper clerk, within sixty days from its receipt, and it was there held that the execution was not void, and that an ordér to amend the same should be granted as a matter of course. In the case of Douglas v. Haberstro (88 N. Y., 618) the body execution did not direct the time of the return, and the Court of Appeals decided that the omissions was a mere irregularity and might be supplied by amendment.

The motion to set aside the execution was granted “ provided and upon condition that the defendant stipulates not to sue for the arrest or for any imprisonment on or hy virtue of said execution, and in default of said stipulation being made and delivered to the-plaintiff’s attorney within five days after seryice of a copy of this order: it is ordered, that said execution be and the same hereby is amended nunc pro tunc as of the date when the same was issued by inserting at the end of the fifteenth line thereof the words the county of Rockland,’ so that when so amended the said execution will recite that an ‘ execution against the property of the judgment-debtor has been duly issued to the sheriff of the county of Rock-land, the county where the said judgment-deb tor resides, and returned unsatisfied; ’ and as so amended that the said execution-stand.”

From the portion of the order requiring the stipulation and amending the execution, if it was not given, the defendant has made this appeal. We have stated that the omission in the execution might be supplied by amendment, and so we find the last portion of this order unobjectionable. Our conclusion is also that the requirement of the stipulation to refrain from suing for false-imprisonment, was a proper exercise of the power of the court.

The error in the execution was, at most, but technical and harmless. The defendant was informed by the recitation that an execution against his property had been issued to the county of his residence, and this enabled him to institute an inquiry in the proper place if any mistake had intervened. The whole object of the legislation in his favor was thus accomplished, and he has sustained-no injury and been the victim of no wrong. The papers ■before us show that everything was, in fact, regular and the first 'execution went to the county where tbe defendant resided.

The power of the court to require stipulations as a condition of relief has been so generally and so frequently exerted, and is so well ■settled, that we do not enter on its examination. If it is to be ■denied or limited, it should be by a court whose decisions have binding authority over the whole State.

The order should be affirmed, with costs and disbursements.'

Barnard,-P. J., and Pratt, J., concurred.

Order affirmed, with costs and disbursements.


text:
    In the Matter of OWEN T. COFFIN, Surrogate of Westchester County.

      Interest on trust funds held by a surrogate— when the surrogate should be compelled to pay it oner to the county treasurer —1884, chap. 350. • .,
    Where a General Term, acting pursuant to chapter 350 of 1884, makes an order directing a surrogate to pay over and transfer to the treasurer of his county all moneys and securities on deposit with him, or in his court, in trust for the several estates and persons to whom the same is payable, as appears by the accounts examined and approved by the said General Term, as provided in the said act, the order should require the surrogate to pay over not only the principal of the various funds received and held by him, but also all interest received by him from the persons with whom the said funds have been deposited.
    Motion by the surrogate of Westchester county to modify an •order made by the General Term of the Supreme Court in the ■Second Department, in December, 1881, approving the report of a referee, appointed under chapter 350 of 1881 to examine the books of the said surrogate and report thereon to the court,and directing the surrogate to transfer and pay over the securities and funds in luis hands to the county treasurer.

      Owen T. Coffin, for the motion.

      Dmid Cromwell, county treasurer, opposed.
   Dykman, J.:

It was made the law of this State by chapter 350 of the Laws of ■ 1884, that the Supreme Court, at the first General Term thereof after the passage of that law, should appoint a suitable person for each county in the department to examine the books, accounts and vouchers of the Surrogate’s Court of the county for which such appointment is made. That such person should proceed to make such examination and report, to the General Term appointing him, the amount of money and securities then on deposit with such surrogate or his court, the names of the estates or persons to which the same are credited, the original amount of such account, when and by whose order paid into such court, the payments made on each account, and the persons or party to whom paid, the places where such moneys have from time to time been deposited, or the securities in which the same is invested, the amount of any accrued interest on each account or fund, and the balance of such account then remaining in the hands of such surrogate, and where the same is deposited or in what securities invested. It was further provided by the law that after such reports were examined and approved by the General Term, an order should be made accordingly, and by the clerk transmitted to the surrogate, and that such surrogate should thereupon make an order directing the payment and transfer, and should pay over and transfer to the treasurer of the county all moneys and securities on deposit with him or his court in trust for the several estates and persons to whom the same is payable as appeal’s by the said accounts of the surrogate so approved ; and that the county treasurer should receive and dispose of the same in the manner provided by section 2537 of the Code of Civil Procedure. By this section of the Code it is provided that all moneys collected by or paid to the county treasurer as therein prescribed, must be held, managed and invested and disposed of by him in like manner as money paid into the Supreme Court in an action pending therein. Por the purpose, of carrying into execution the provisions of this law, the General Term of the Supreme Court for the Second Department, at the September term in 1884, appointed a referee to make the examination of the books and accounts of the Surrogate’s Court of the county of Westchester, and make a report thereon to the court as required by the act.

That referee performed the duties of his office and made a report of his proceedings to the court at the December term, in 1884. In his report he stated in detail all the facts required to be found, and that there remained in the hands of the surrogate, Owen T. Coffin, at the date of the report, which was December 8, 1884, the sum of $11,889.51.

This report after examination received the approval of the General Term, and an order was made accordingly, which was transmitted to the surrogate, and he obeyed the same so far as to transfer to the county treasurer all the securities deposited with him, and the principal of all moneys so held by him, but failed to pay over the interest which he had received on the moneys while they had been under his control. The amount of such accumulated interest found in the hands of Surrogate Coffin, by the report of the referee, was $1,470.91. Thereupon, the surrogate submitted a motion to the General Term, in February, 1885, to modify the order of the court confirming the report of the referee, so that the order may direct the payment, by the surrogate to the county treasurer, of the principal or balance of the moneys, or confirming those so made without interest thereon, except the balance of the proceeds of the sale of the estate of J ohn H. Price, deceased, amounting to $1,631.45, which have been distributed and paid, and also striking from the report the sum of $157 as belonging to the estate of Henry Muller, deceased, which was paid before the date of the report.

The facts relating to the Price estate are these: In December, 1884, the surrogate made a decree for the distribution of the principal of $1,631.45 without interest, but when he was about to pay the same he informed the person who was to receive the money of the existence of the referee’s report in this matter, which charged him with interest, and that he intended to question his liability therefor. Thereupon, that person elected to receive the money without the interest. Then the principal was paid over without the interest pursuant to the decree, and vouchers were given therefor, and the'surrogate retained the interest, amounting to $372.04. Now he desires to have the whole sum and principal and interest omitted from the report. 'These facts entitle the surrogate to an omission of the principal sum from the report, but we will examine the question relating to the interest further on.

In relation to the sum of $157 in the Muller estate, the surrogate states in his affidavit on which this motion is founded that it was paid over on the 5th or 6th of December, 1884. That was two days before the date of the referee’s report, and probably after he had made his investigation. The order will therefore be modified in that respect. These are the two exceptional cases named in the notice of motion.

In the case of Carmellotte v. Guerber the surrogate received .$1,534.80, February 1, 1871. This money was deposited with the New York Life Insurance and Trust Company, where it drew interest, which was credited to the deposit down to the time of distribution, and then amounted to $107.06, but it was not paid over by the surrogate. The referee reports this sum still in his hands.

It is thus seen that with the exception of the Muller estate the surrogate disputes no fact reported to the court by the referee. The amount with which he is charged for interest has been received by him and accrued on the moneys and securities held by him in trust for the owners respectively. Yet he desires to retain it, and the reason assigned by him is, that the moneys on which this interest accrued came into his office for distribution, and his only duty was to retain the same for that purpose. So far as the duty of the surrogate goes in relation to distribution, that is the statutory requirement, and if he had held the same during the six weeks required for notice, and distributed the money then without interest, when none had accrued, his whole duty would have been performed. He would not be required to pay out more than he received. But the case presented is not that, nor like that. Here the surrogate received the money, but it was not called for, and he put it to usance where it earned interest, which accumulated and was credited to the principal, and became thus a part of the trust fund in his hands, or under his control, and belonged to the beneficiaries the same as the principal, and he is required to pay over all that he has received.

The law under which these proceedings were instituted plainly contemplated a case like this, for it required the referee to report the amount of any accrued interest on each account or fund, and the balance of such account then remaining in the hands of such surrogate. Clearly, the amount of accrued interest was to be included in tbe balance of tbe account, else its ascertainment would be an idle ceremony, and the balance of such account remaining in the hands of the surrogate is the amount which, by section 4 of the act, he is required to pay over and transfer to the treasurer of the county, because that is the amount appearing by the accounts of the surrogate.

By what rule of law or ethics can the surrogate separate the principal from the accrued interest and pay over the one and retain the other? How does he obtain any personal right or title to the accrued interest? We have been referred to no authority to justify the claim of the surrogate, and we have found none. In his argument he claimed the right under his possession, but if that was sufficient it would enable him to retain the principal likewise, for he had the same possession of both. Exalted ethics will not justify such a claim.

Our conclusion is, that the surrogate must obey the first order and pay over the interest found due by the report including that of the two cases where he has paid over the principal and retained the interest.

The motion for modification should therefore be denied, except as to the sum of $157 in the estate of Henry Muller, and the sum of $1,631.48 in the estate of John H. Price, and as to these the original order should be modified by their omission therefrom.

Barnard, P. J., and Pratt, J., concurred.

Order modified in accordance with opinion ; order to be settled by Dykman, J.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROBERT H. DRAKE, v. GARRETT BERGEN, a Police Justice of the City of Brooklyn, Respondent.

      Abandonment of families by h/usbands — prosecution for, ift'Broohlyn — 1871, chap. 395 — 1882, chap. 17.1 — the ofense to come thereunder must be committed within Kings county.

    Chapter 395 of 1871, authorizing criminal proceedings to be instituted against persons abandoning, or threatening to abandon, their families, only applies to cases in which the offense is committed in the county of Kings; it does not include the case of a woman coming into that county after her husband has abandoned her in another State.

      Bayne v. People (14 I-Iun, 181) followed.
    Such a case was not brought within the purview of the statute by the addition thereto, by chapter 171 of 1883, of the words “or who shall leave them in danger of becoming a burden upon the public, or who shall neglect to provide for them according to their means.”
    Certiorari to review the conviction of the relator by a police justice of the city of Brooklyn, upon a charge of abandoning his wife.

      Baldwin F. Strauss, for the relator.

      A. Simis, Jr., for the respondent.
   Dykman, J.:

This was a proceeding instituted before the defendant, a police justice of the city of Brooklyn, charging the relator with abandonment of his wife and child. The relator was convicted and has now brought the proceedings into this court by certiorari for review. The relator was married to his wife, Sophia Drake, about twenty-six years ago, and they have one child, a son, about twenty-three years -of age. The wife came to Brooklyn from Jersey City, where she lived for thirty-three years.

On her cross-examination she testified as follows : “ I have resided in Sackett street five or six weeks with a friend; not relative or paying board; I came to Brooklyn from Jersey City; lived there thirty-three years; been married twenty-six years to defendant; child is a boy twenty-three years; it is four years since I have seen or spoken to my husband, until his arrest; I last before saw him in New Bedford, Mass.; was there one day ; then lived in Greenville, N. J., with my brother; when we separated I lived in Greenville, N. J.; he left me no property.”

The brother of the wife testified that her husband left her in October, 1879. From the testimony taken together, it appears that the abandonment was in the State of New Jersey. The prosecution is under chapter 171 of the Laws of 1882, which is an act to amend chapter 395 of the Laws of 1871, entitled “An act in relation to persons who abandon or threaten to abandon their families in the county of Kings,” and we decided at the General Term in this district, in May, 1878, that the fact that a husband abandoned his wife and children in another State, and that the wife subsequently came to reside in Brooklyn, did not authorize proceedings against the husband under that act of 1871. Our decision proceeded on the ground that the abandonment of a wife by her husband was made by the statute a quasi criminal offense, and that the police magistrate of the city of Brooklyn liad jurisdiction only of crimes committed in that city, and that the. testimony of the wife disproved the abandonment there. (Bayne v. People, 14 Hun, 181.) This case falls directly within that decision.

It is true the amended statute of 1882 enlarges the statute of 1871 by an addition of the words “or who shall leave them in danger of becoming a burden on the public, or who shall neglect to provide for them according to their means; ” yet the crime is abandonment, and the words leave them,” refers to the original leaving, and if it is intended to make “ neglect to provide for them according to their means,” an additional or new offense, there is no proof here to make the husband guilty; there is no proof that he had any means. ¥e prefer to place our decision on the ground of want of jurisdiction in the magistrate to entertain the proceedings. The original law had relation only to abandonment in the county of Kings, and the amendatory statute was intended to have the same scope and be subject to the same.

The proceedings should be reversed.

Pratt, J., concurred; Barnard, P. J., dissented.

Judgment of Special Sessions reversed.


text:
    ESTHER WUNNENBERG, Appellant, v. THOMAS GEARTY and Others, Defendants. GEORGE MALCOM, Purchaser, Respondent.

      ■Service of summons by publication — what facts show inability to make a personal service— Code of Civil Procedure, see. 439.
    .In an action to foreclose a mortgage an order directing the summons to he served by publication on certain of the defendants was made upon an affidavit of one of the plaintiff’s attorneys, which stated, among other things, that since the commencement of the action he had made, and caused to be made, inquiries as to the residences of the defendants; that three of them, whose names he gave, were each non-residents of the State of New York, and that each of them resided at Balley-bag, county Monaghan, Ireland; that he was informed and believed that the summons could not, after due diligence, be served on said defendants, or either of them, and that it was necessary to serve the summons on them by due publication thereof.
    'The affidavit of one Burke was also presented, which stated that he had been directed to serve the summons on all the defendants; that he had served a number of them, but had been unable, with due diligence, to serve those named in the affidavit of the plaintiff’s attorney, and that the said defendants were non-residents of the"State of New York and resided in Ireland.

      Meld, that the fact that the plaintiff had been and would be unable, with due diligence, to make personal service of the summons upon those defendants, was sufficiently established to authorize the granting of an order directing its service by publication.

      Kennedy v. New York Life Insurance and Trust Company (32 Hun, 35); Carleton v. Carleton (85 N. Y., 313), distinguished.
    Appeal from an order made at a Special Term, denying a motion to compel a purchaser at a foreclosure sale to complete his pttrchase.

      E. G. Boardman, for the appellant.

      J. F. BulVwmkel, for the purchaser, respondent.
   Dykman, J.:

This is an action for the foreclosure of a mortgage. A sale of the property has been made under the judgment to George Malcom, who refused to complete his purchase. His refusal was based on the insufficiency of the affidavits on which was founded an order for the service of the summons, by publication, on certain defendants in the action. The specific objection to the affidavits is, that they do not show that the plaintiff was unable, with due diligence, to make personal service- of the summons. A motion was made to compel the completion of the purchase, which was 'denied, and the case comes to us on appeal from that order.

The material portions of the affidavit on which the order for service, by publication, was made, are as follows: One of the attorneys for the plaintiff says, in his affidavit, “that since the commencement of this action, he has made and caused to-be made inquiries as to the residences of the said defendants ; ” * * * “ that said defendants Elizabeth Boylan, Catharine Boylan and John Boylan are each non-residents of the State of New York, and that said defendants each reside at Bally-bag, county Monaghan, Ireland; that the said defendant Elizabeth Boylan is of full age, and that the defendants Catharine Boylan and John Boylan are each infants over the age of fourteen years. Deponent further says that, as he is-informed and believes, the summons herein cannot, after due diligence, be served on said defendants or either of them, and that it is necessary to serve the summons on them by due publication thereof.” The persons named in this affidavit are the defendants who were-served by publication.

There was also presented at the same time an affidavit of John E. Burke, who swears therein that he was directed by the plaintiff’s attorneys to serve the summons herein on the defendants herein, and for that purpose received copies of said summons; * * * that deponent has served said summons upon a number of the defendants herein; * * * that the plaintiff has been unable, with due diligence, to make personal service of the summons herein on the defendants Elizabeth Boylan, Catharine Boylan and John Boylan, or either of them, and that deponent cannot, after due diligence, serve the same upon said defendants, or either of them. Deponent further says that said defendants Elizabeth Boylan, Catharine Boylan and John Boylan are non-residents of the State of New York, and that each reside at Bally-bag, county Monaghan, Ireland.” There was also a verified complaint showing a sufficient cause of action.

The sufficiency of- these affidavits must be tested by the require-merits of the Code of Civil Procedure. Section 438 provides that an order directing the service of a summons upon a defendant without tire State, or by publication, may be made where the defendant to be served being a natural person is not a resident of the State. Section 439 requires the order to be founded upon a verified complaint, showing a sufficient cause of action against the defendant to be served, and proof by affidavit of the additional facts required by the last section ; and, also, where the application is made, as it was here, upon the ground that the defendant is not a resident of the State, that the plaintiff has been, or will be, unable with due diligence to make personal service of the summons.

Thus it appears that, in the case of a non-resident defendant, these sections require a verified complaint containing a cause of action against the defendant to be served, proof by affidavit of the non-residence, and that the plaintiff has been, or will be, unable with due diligence to make personal service.

In the case before us there was furnished to the judge who made the order a verified complaint, as required and positive proof by .affidavit, that all the defendants to be served by publication resided in Ireland. In addition to that he had positive proof that the .attorneys for the plaintiffs delivered copies of the summons to John Burke, with directions to serve them, and thus he had proof of ■some exertion and diligence to make a personal service; also, he had proof by the affidavit of one of the attorneys for the plaintiff that he was informed and believed that the summons could not after due diligence be served on the defendants, and this was supplemented by the affidavit of Burke, who was charged with the ■duty of making the service; that he had served the summons on a number of the defendants, but that he had been unable with due diligence to make personal service on the three defendants named, and he also proved the non-residence of those defendants.

If these statutory provisions are to receive a practical construction, they have been satisfied in this case. They do not require •extreme diligence or extraordinary exertion. They only require proper, suitable diligence, such as the circumstances require, and ■what was required in this case. After it was ascertained that the defendants to be served resided in Ireland, the strong natural presumption arose that they were there and could not be found in this State. Still, the efforts to make personal service did not cease, and a competent person was charged with the duty of finding all the defendants and making personal service. He received the summons and commenced the performance of his duty, and found a number of the persons to be served, but was unable after due diligence to find the three defendants named. Was not this reasonable diligence ? Did the circumstances of the case require more ? If so, what more? No diligence could result in personal service within the State, for the persons to be served lived in Ireland. An effort was made to serve all the defendants personally within this State, and, in view of the non-residence of the defendants in question, that attempt amounted to due diligence, and was all that could be required.

These defendants resided in Ireland, and while that fact did not dispense with the necessity for some effort to make personal service in this State, yet it does assist in the solution of the question of due diligence, and under all the circumstances of this case we conclude that the order of publication was founded on proof sufficient to sustain its validity. We cannot overlook the fact that objection to this order of publication is technical, and that title to real estate depends upon the validity of this judgment, nor to that other important fact that ample and liberal provision is made by section 445 of the Code to open the judgment for defendants served by publication, and permit them to defend even seven years after the filing of the judgment-roll. Such ai’e our conclusions, based on the peculiar features of this case, and although we have examined all the cases, we find ourselves antagonistic to no decision on the subject. The statutes in question have received practically the same-construction in all the cases, although the orders have sometimes-been held (invalid by reason of the insufficiency of the proof on which they were founded.

In the case of Kennedy v. New York Life Insurance and Trust Company (32 Hun, 35), no fact was stated in the affidavit from which it could even be inferred that an attempt had' been made to serve the defendant personally within the State, and it was held to be insufficient. In the case of Carleton v. Carleton (85 N. Y., 313), the affidavit simply stated that “the defendant has not resided within the State of New York since March, 1877, and deponent is informed and believes tbat defendant is now a resident of San Francisco, California.” There was no allegation in the affidavit that the summons had been placed for service, or that any effort had been made to accomplish personal service within the State, and it was held insufficient. So we are in conflict with no decision, and we believe our construction to be reasonable and the only one under which these statutes can be operated in actual practice.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the notice to compel the purchaser to complete his purchase, should be granted, with ten dollars costs.

Barnard, P. J., and Pratt, J., concurred.

Order reversed, with costs and disbursements, and motion granted, with costs.


author: Barnard, P. J.: Pratt, J.

text:
    AGNES L. PRICE, Respondent, v. SAMUEL L. MULFORD, Appellant, Impleaded with PETER S. WANDELL.

      Trustifunds — the statute of limitations does not begin to run until notice of the repudiation of the trust is given — the members of a firm are liable for trust funds used for its purposes by one partner.

    January 1, 1863, the firm of Mulford & Wandell held a certificate of indebtedness, signed by one Barry, for $1,350. At that time the firm was indebted to Wandell in the sum of $1,400. Wandell, who was then county treasurer, took the certificate of indebtedness, had himself charged with it on the books of the firm in satisfaction of his debt, and made ah entry on the books of the county treasurer to the effect that he had invested $1,350 of a trust fund, held under an order of the court, in the said certificate.
    In 1868 Wandell transferred the said certificate to his successor as a part of the said trust fund. In June, '1883 the beneficiary of the trust fund, to whom the certificate had been transferred under an order of the court, first became aware of what had been done, and brought this action against the two members of the firm to recover the sum so abstracted.

      Held, that the right of action was not barred by the statute of limitations.
    That the plaintiff was entitled to recover. (Pratt, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon tbe verdict of a jury and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    It appeared upon the trial that the defendants Samuel L. Mulford and Peter S. Wandell -were copartners, doing business at Stapleton, Richmond county, under the firm name of Mulford & Wandell, from 1862 to 1869. They were engaged in the sale of lumber and coal. The defendant Peter S. Wandell was, during a considerable part of the period of their copartnership, the county treasurer of that county. Dennis Keeley, payee in the certificate hereinafter referred to, was a customer and debtor of the firm. He received the certificate from the maker thereof for work done by him and being then indebted to the defendants’ firm, he, on or about the 1st day of December, 1865, indorsed and delivered this certificate to the firm as payment of a portion of such indebtedness and received credit therefor upon the books of the firm. • While this firm held it they received interest upon the amount named therein for two years. In 1863 Wandell took this certificate, charged it to himself upon the books of the firm, in satisfaction of a debt due from it to him, and invested a trust fund held by him as county treasurer in the purchase of it. This certificate was indorsed by the defendants in their firm name, per P. S. Wandell, then county treasurer, to E. P. Barton, county treasurer, the successor in office of Wandell, as of the date of January 1, 1868, and the sum of $1,397.25 (equivalent to the face of the certificate and accrued interest) was charged by Wandell to the “ court funds ” in the suit, of Conover v. Van Dyfce, and is so entered upon the “ ledger ” of the “ court funds ” in that county, and it was so entered upon said ledger prior to the time when the “funds” and “ledger” were turned over to Mr. Barton, the successor in office of Wandell.
    fey an order of this court, dated the ,18th day of June, 1883, the county treasurer of Richmond county, upon application made, was directed to pay the surplus moneys in Conover v. Van Dyhe to the plaintiff and her assignors as the heirs-at-law of one Nicholas Yan Dyke Price, deceased, and with such surplus moneys was this certificate.
    This action was then began by the plaintiff to recover from the defendants the sum of $1,397.25, being the amount abstracted from the court funds as aforesaid.

      William M. Mullen., for the appellant.

      Edward B. Merrill and Henry D. Hotchkiss, for the respondent.
   Barnard, P. J.:

Wandell, one of the firm of Mulford .& "Wandell, received the money as county treasurer. This was a trust fund, as to which there is no statute of limitations unless notice of hostility to the trust is given. Somehow the beneficiary must be made aware that the trustee repudiates the trust and claims to hold in opposition to it. The case shows no such repudiation. IVandell is liable. Can he, by transfer to his firm, change the relation of the parties? •Surely not. The transfer was made with the full knowledge that the fund acquired by the partnership was a private trust fund in ¡the county treasurer’s hands. The partnership became, in law, ■trustees, and the beneficiaries neither knew of the transfer, or that their money was being held in opposition to them. A county treasurer could change the title to all the trust funds to himself indirectly if this rule prevailed. The action is not barred, and the judgment should be affirmed, with costs.

Dykman, J., concurred.

Pratt, J.

(dissenting):

Assuming this action to be one in which the plaintiff could recover, it appears to be a case in which there were concurrent remedies. The plaintiff had a clear remedy at law to recover from the defendant for money had and received, if the amount was known and certain. But it is equally clear that if the amount received by defendant was either not known or was uncertain, that •a court of equity could compel him to account and make discovery. The case is not one which was solely cognizable by the Court of 'Chancery, and hence would not have fallen within subdivision 6, section 91 of the old Code. (Foot v. Farrington, 41 N. Y., 164.) But in the new Code, the word “ solely ” was stricken out; and in the case of Carr v. Thompson (87 N. Y., 160), it was held by the ‘Court of Appeals that this provision of the statute is not limited •solely to actions to procure a judgment other than for a sum of money, but that it would apply to an action to procure a judgment for a sum of money, provided such action was one in which the Court of Chancery had jurisdiction, although it might not have-had sole jurisdiction, and the plaintiff might have had a complete-remedy at law. The effect of this decision is that the question whether subdivision 5 of section 382 is applicable does not depend upon the character of the relief which the plaintiff seeks, but it is. to be determined by the cause of action as it appears from the facts set forth in the complaint. If the cause of action there set forth is one in which the plaintiff might have sought his remedy in a court of equity, then the time of the accruing of such cause of action is postponed until the discovery of the fraud.

Neither can this question depend, on the fact that the plaintiff is informed as to the exact amount of her loss, as in this case. To hold that because when plaintiff discovered the fraud she also discovered* the exact amount of her loss, and hence had no need of the aid of a court of equity, and for this reason her cause of action is not within the statute, but would have fallen within the statute if she had been ignorant of the amount of her loss, and had required an' account of discovery from defendant to ascertain it, would be too narrow a construction of the statute to receive judicial sanction. The true test is this— considering the allegations of the complaint independent of the amount for which judgment is asked — is the case one in which the Court of Chancery had jurisdiction to grant relief? If it is, then it falls within the statute, and the fact that the case may be one in which the plaintiff could also have obtained relief in a court of law is of no consequence. It is a case in which, under the practice before the Code, there would have been concurrent remedies, and falls within the principle decided in Carr v. Thompson. If, therefore, the plaintiff’s right to recover depended solely on the question of the statute of limitations, I should be prepared to hold that her cause of action was within subdivision 5, section 382 of the Code, and did not accrue until the discovery of the fraud.

But a more serious question remains. It appears from the evidence that on January 1, 1863, the firm of Mulford & Wandell held a certificate of indebtedness signed by one John Barry, pastor * of the Catholic church of Richmond, for $ 1,350. This certificate-the firm had held for about three years. On this date the defendant Peter S. Wandell was treasurer of Richmond county, or was-about retiring from that office. As such county treasurer he held the sum of about $1,900, which was the share of Nicholas Yan Dyke in the proceeds of sale of certain lands which had been sold pursuant to a decree of the court in an action for partition. The firm were indebted to Wandell in the sum of about $1,400 for rent and other matters which was credited to him on the books of the firm. Wandell took the certificate, charged himself with the amount, $1,350, and then made an entry upon the county treasurer’s books to the effect that he had invested $1,350 of the trust fund belonging to Price in the certificate. On the appointment of his successor he indorsed the certificate with the firm name, and delivered it to his successor as and for so much of the trust fund aforesaid. At what precise time he made the entries on the books does not appear. The certificate was transferred to his successor in January, 1868. It does appear, however, that the firm never directly received any of the trust fund. The only fact proven from which it could be inferred that the firm had received any of this money was the indorsement of the certificate with the firm name, and its delivery, so indorsed, to the successor of Wandell. Unexplained, this might justify the inference that the-money which the books show was invested in this certificate had been paid to the firm when they parted with the certificate. I think, however, the facts as they appear in evidence, and about which there is substantially no dispute, negative any such inference. In order for the plaintiff to recover against the defendant Mulford it must appear that the firm received the trust fund, hi o act of Wandell can be made the basis of liability on the part of Mulford, short of putting the trust fund into the business. If Mulford is liable, it must be because the firm had the money, and it appears clearly, I think, that Wandell never deposited any of the money with the firm. There is no evidence that he did, and Mulford distinctly states that the firm never received it.

Neither can it be said that the firm had the benefit of the money. It does not appear when Wandell appropriated the fund. It cannot be assumed that he did it when he delivered the certificate to his successor, because he had made the entries in the book before that, and even if he did appropriate the money at that time, there is no evidence that he paid it- over to, the firm.

The transaction between Wandell and the firm was simply this: The firm owed Wandell and held the certificate; Wandell took the •certificate and canceled the firm indebtedness to himself. This was a bona fide transaction ; there was ample consideration to the firm to transfer the certificate, and ample consideration to Wandell to ■cancel the debt. There is no proof that the certificate was not .good at this date ; the interest had been paid on it, and Barton testifies that the interest was paid on it while he held it.. Beyond this, Mulford or the firm cannot be connected with the trust money.

If Wandell had embezzled the money before he took the •certificate, Mulford is not responsible because the certificate was .afterward transferred to the trust account. If the money was •embezzled after Wandell took the certificate, then clearly Mulford had no connection with the transaction. In neither case can it be said that the firm had the money or the benefit of the money.

That the effect of these transactions was to cheat the owner of the fund and to pay the firm debt to Wandell, is of no consequence; that is but an incident to the transaction, the trust fund might have been embezzled if Wandell had not taken the certificate, and the transaction between the firm and Wandell might have taken place and the trust fund remained intact; there is ,no necessary connection between the two events. It was a perfectly legitimate matter for Wandell to take the certificate in payment of his debt, and Mulford is not responsible for Wandell’s subsequent acts in relation to the certificate, unless he was a party to the transaction. He appears to have been entirely ignorant of Wandell’s conduct, and in my judgment is not responsible for the loss of the trust fund.

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

Judgment and order denying new trial affirmed, with costs.


author: Barnard, P. J.: Pratt, J.:

text:
    MARY C. REMER, as Administratrix, etc., of THOMAS A. REMER, Deceased, Appellant, v. THE LONG ISLAND RAILROAD COMPANY, Respondent.

      Negligence — what questions should be left to the jury.

    The plaintiff and her husband went to a ball ground, and in passing thereto from a street crossing the defendant’s railroad, walked along an embankment upon which the defendant’s tracks were laid. After remaining at the ball ground some twenty minutes, they started to re turn by the same way. The-embankment was narrow, the earth not reaching beyond the ends of the sleepers, and the banks descending rapidly to a ditch which, at the time of the accident, was about half full of water. When about 160 feet from the end of the embankment towards which they were going, they heard and saw a locomotive coming behind them. It was about 640 feet from them and was running alone at the rate of ten or twelve miles an hour; it could have been stopped in a distance of about 100 feet. The plaintiff and her husband tried to reach the end of the embankment, and the wife succeeded in doing so, hut the husband was struck by the engine and killed just as he was stepping from the track.
    In an action by the wife, as administratrix of her husband, to recover damages because of his alleged negligent killing by the defendant, the court directed a nonsuit to be entered.

      Held, that this was error; that the question as to the defendant’s negligence, and the deceased’s contributory negligence, should have been submitted to the jury.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the circuit.
    This action was brought by the plaintiff as administratrix to recover damages caused by the killing of her husband by an engine of the Long Island Railroad Company. It was brought to trial before Mr. Justice Cullen and a jury, on tlie 19tli day of October, 1883, and upon the close of the plaintiff’s case the complaint was dismissed on the ground of contributory negligence on tlie part of the deceased. Hpon the trial testimony was given tending to show tbat on tlie 19th day of November, 1882, the plaintiff and her husband attended a ball game at a certain place in Kings county, near the line of defendant’s railroad. They walked along a portion of defendant’s tracks, which were laid upon an embankment, upon each side of which were ditches, extending for a distance of about 300 feet. The top of the embankment was narrow, the ends of the sleepers extending beyond it. It was about seven feet bigb, and its sides sloped steeply down to the bottom. After staying at the ball grounds about twenty minutes Mrs. Remer, who was in delicate health, felt cold, and they started to go back the same way. When Mr. and Mrs. Remer had got to a point near the middle of the embankment Mrs. Remer heard some one shouting, and looking back saw an engine approaching them. The only way of getting off the track wás to jump down the bank into the ditch. The evidence showed that persons had at times got out of the way of passing trains in this way, by jumping into .the ditch and climbing out beyond it, but there had been considerable rain just before the day of the accident and the ditch on that day was half full of water. They started for a street crossing about 160 feet ahead. The engine at this time was about 640 feet away from them, and was running at the rate of about ten or twelve miles an hour, and they thought that they could reach it in time. The evidence of an experienced engineer showed that an engine running at this rate can easily be stopped in 100 feet. They continued to hurry as much as Mrs. Remer was able, and reached the street crossing. Mr. Remer helped Mrs. Remer on the platform, but just as he placed one foot there himself the engine struck him, hurling him eighty-five feet, and killing him instantly.

      Erastus New, for the appellant.

      E. B. Hinsdale, for the respondent.
   Barnard, P. J.:

Assuming that the deceased was improperly upon the track of the defendant, still it must be conceded. that the defendant was not thereby excused from a fair and even diligent effort to save him. Whether this effort was made was a question for a jury to answer. The defendants’ driver saw the deceased upon the track some 640 feet off. He could have easily stopped the locomotive. There was evidence tending to show that it was difficult to leave the track at the point where deceased was when first seen, and there is proof that he made great efforts to get to the end of the trestle work and beyond the ditch on the side of it, so as to leave the track. He failed by the fractional part of a minute, probably three seconds, and was killed. As a general rule, the question of contributory negligence is for the jury. The case must be so plain to justify a nonsuit upon that ground, that a verdict, if found, would not be permitted to stand. If a different deduction can be made from the evidence in respect thereto, it is for the jury to say whether it is made out. The railroad track leads to a public ball ground from a ■street-car crossing. Many people used the railroad track to get to it. The trespass was an involuntary one, and if he did all he could be properly asked to do to escape the peril in which he was suddenly placed, the jury may find no contributory negligence upon his part.

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

Pratt, J.:

The fact that deceased was upon the railroad track does not of itself render it impossible for the plaintiff to recover in this action. Por, notwithstanding the trespass, it was still the duty of defendant to exercise diligence and care to avoid the loss of life. The question whether the company exercised such care is not an easy one to determine, for, upon several important matters, the witnesses do not agree. Some of the witnesses testify to a condition of the bank and ditches, which should have been ample notice to the engineer to stop his train as soon as he saw the deceased upon the track. Had he stopped thus promptly, the injury would not have taken place. Other witnesses testify to a condition of the bank and ■ditches, from which the engineer might well have expected that deceased would safely go down the bank and thus escape from peril. If he had reason to believe deceased could safely go down the bank and escape danger at any time, he might well negl ect to stop the train until he had reason to suspect deceased was not going to take that course.

On the whole, we think, the question of defendant’s negligence should have been submitted to the jury, and, likewise, the question of contributory negligence of deceased.

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

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


author: Pratt, J.: Barnard, P. J.

text:
    STEPHEN SWEET, as Survivor of SWEET & FINNEGAN, Respondent, v. ALEXANDER TAYLOR, Appellant.

      Partnership — right of a surviving partner to recover firm assets from the executor of a deceased pa/rtner.

    The plaintiff and one Finnegan carried on business as partners until the death of the latter. Prior to his death, Finnegan had deposited money belonging to the firm in a bank in his own name. The bank failed and thereafter the amount of the deposit was paid in installments by the receiver to the defendant Finnegan’s executor. The defendant, although knowing that the money so deposited belonged to the fund, having refused to pay over the same to the-plaintiff, the surviving partner, this action was brought to recover it.

      Held, that the action could be maintained by the surviving partner for the- recovery of the entire amount. (Barnard, P. X, dissenting.)
    Appeal from a judgment in favor of plaintiff for $304.37, entered upon the report of a referee.
    This suit was brought b}^ the plain tiff as survivor of the firm of Sweet & Finnegan, to recover of the defendant Alexander Taylor, $106.86.
    The proof showed that the plaintiff and one John Finnegan were-partners in the hotel business at Middletown, N. Y'., from June 20, 1871, to April 21, 1873; that the partnership was dissolved on the 21st of April, 1873, by the death of Finnegan, leaving the plaintiff the-survivor of the firm. At the time of Finnegan’s death there was deposited to his individual credit in the Wallkill National Bank, $712.38. The plaintiff claimed and the referee found that though the money stood in the individual name of Finnegan, it was firm assets, and belonged to Finnegan & Sweet. The bank became insolvent during Finnegan’s lifetime, and the receiver thereafter paid the-money to Finnegan’s executor in installments from time to time. As Finnegan’s executor received these installments, he paid over one-half of each installment to the plaintiff, and this continued until the last installment was paid, to wit, $106.86. No part of this last installment was paid to the plaintiff. The plaintiff now brings this action against Alexander Taylor, individually, to recover this last installment.

      Winfield, Leeds cB Morse, for the appellant.

      Decker o& Little, for the respondent.
   Pratt, J.:

The plaintiff as survivor is entitled to the assets of the late firm. If the defendant knowingly received money which belonged to the plaintiff as survivor of Sweet & Finnegan, he received it to plaintiff’s use, and cannot in an action shelter himself under his representative capacity. If he could not bind the estate by his contracts, still less can he bind it by conduct very closely resembling a tort. The question, then, is whether the money was shown to be assets of the firm of Sweet & Finnegan. It was so described in the inventory filed by the defendant in discharge of his duty as executor. It appears that defendant has conceded the fact so to be by his previous payments on account.

The witness Bonnell testifies to statements of Finnegan in his lifetime to the same effect. Independent of plaintiff’s testimony, it was fully proved that the money in suit belonged to Sweet & Finnegan. It is therefore not very material whether plaintiff’s testimony to the conversation between Finnegan and Taylor was properly admitted. Cary v. White (59 N. Y., 336) seems to sustain the ruling of the referee.

This action was therefore well brought, and plaintiff has proved his cause of action. The fact that defendant as executor of Finnegan has brought an action against this plaintiff for an accounting has no relevancy in this action.

However that may terminate, the judgment appealed from must be affirmed, with costs.

Dykman, J., concurred.

Barnard, P. J.

(dissenting):

Assuming that the deposit was of partnership moneys, and Taylor knew of it, the case was simply one in which a partner having the firm moneys died. Sweet could not have maintained an action at law to recover it in his partner’s lifetime. The executor, was bound to collect the deposit and administer it with the assets of the deceased. The surviving partner, it is true, is entitled to( the firm assets as survivor in trust for the creditors. This right would not give an action at law against the executor of the deceased’ partner. The deceased had a right to the custody of the money, and the money passed to the executor. The surviving partner is entitled only to such portion of the sum as may be due upon ah accounting after the debts are paid.

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

Judgment affirmed, with costs.


author: Pratt, J. :

text:
    In the Matter of the Several Accountings of DAVID HAWLEY, as Guardian and Trustee of ADAM MORTIMER SINGER, Etc.

      Surrogate — power to oven deiyrees— Code of Uml Procedure, sea. 3481, sub, 6 — intermediate accounting by a guardian or trustee — no decree can be entered, by the surrogate.

    David Hawley acted as testamentary guardian and trustee of Singer from October 81, 1817, to November 5,1884, when Singer became of age. During this time tbe accounts of Hawley were, upon his application, twice passed in the Surro. gate’s Court and decrees allowing such accounts were entered in that court on December 30, 1878, and January 10, 1881. After Singer came of age, and while proceedings instituted by Hawley for a final accounting were pending, Singer presented a petition to the surrogate praying that the former decrees might be vacated and opened so as to enable the petitioner to contest the amount of the commissions and other allowances made therein to the said Hawley. The petitioner was represented on the previous accountings by the clerk of the Surrogate’s Court, who acted as his guardian ad litem.

      Held, that the surrogate erred in denying the petition.
    That power to grant the application was conferred upon him by subdivision 6 of section 3481 of the Code of Civil Procedure.
    That the fact that the infant was represented upon the former hearing, or that the error alleged was one of law only, was not an insuperable bar to the application.
    That the decrees should be set aside for the further reason that the surrogate had no power to render them, as the accountings were intermediate and not final accountings, and as no authority to enter any decree in intermediate accountings instituted upon the application of the guardian or trustee is conferred by the Code of Civil Procedure.
    Appeal from an order of the Surrogate’s Court of Westchester county, denying a petition of Adam Mortimer Singer, to have certain decrees theretofore made vacated and opened.
    On January 10, 1876, David Hawley, of Yonkers, qualified as ■executor of the will of Isaac M. Singer, deceased. Under that will he became the testamentary guardian and trustee of several of the children of the deceased, and among others of Adam Mortimer Singer.
    On the 31st of October, 1877, Mr. Hawley passed his accounts as executor, and a decree was made on that accounting directing ■a distribution of the estate in his hands; a part of which estate came to him as testamentary guardian and trustee of Adam M. Singer.
    ° Afterwards, in the Surrogate’s Court, Mr. Hawley passed his accounts as such testamentary guardian and trustee, and upon such accountings decrees were made — one on December 30, 1878, and •another on the 10th day of January, 1881.
    After Adam Mortimer Singer attained his majority, and on November 5,1884, Mr. Hawley filed a final account, of which he prayed a settlement. The ward filed objections to that account. Thereafter the ward filed a petition, addressed to the surrogate, referring to the decrees upon the various accountings and asking that they might be opened, vacated, modified or set aside so far as to. permit the petitioner to contest the allowance of commissions made to Mr. Hawley, as executor and as guardian and trustee, upon the manufacturing stock and also allowances of money’; and so far also as to allow the ward to contest certain directions contained in such decrees and the distribution of the proceeds of realty, and the allowance of commissions to Mr. Hawley upon the United States bonds and other items. Mr. Hawley filed a written answer to this petition, controverting some of its most important allegations ; and upon these papers the application to open the decrees was brought to a hearing before the surrogate December 12, 1884. The surrogate denied the application. Upon the prior accounting the clerk of the Surrogate’s Court was appointed and acted as guardian ad litem for the infant.

      G. E. Tracy, for Adam Mortimer Singer, appellant.

      F. JST. Bangs, for guardian and trustee, respondent.
   Pratt, J. :

We have the same power upon this appeal as the surrogate had upon the original application, and his determination is to be reviewed as if the original application was made to this court.. (Code, § 2481, sub. 6.) The application should have been granted. Subdivision 6 of section 2481 was intended to give to the surrogate-a broader jurisdiction than he possessed before the enactment of the present Code. (See notes to the section in Throop’s Code.) This jurisdiction is not'limited by subdivision 11 of section 3347. That provision applies solely to the mode of procedure. It has no application to the power given to the surrogate by section 2481. That is general, and may be exercised with reference to all decrees or orders, whether made before or after September 1, 1880. By section 2482 the provisions of chapter 18, relating to the jurisdiction of the Surrogate’s Court, are expressly made applicable to all estates, whether the decedent died before or after that chapter took effect. The petition shows sufficient cause for setting aside the decree and allowing the petitioner to be heard upon the question of the guardian’s fees. The fact that the infant was represented upon the hearing before the surrogate, or that the error alleged is purely one of law, is not an insuperable bar. The rule that the remedy for an error in law when the party was represented on the trial or hearing, is by appeal only, is well applied when the party aggrieved is an adult and selects his own counsel, or when being an infant, the question has been fairly presented to and decided by the court, but when being an infant it is apparent that the claim made against him has no authority in law to support it, and that the guardian has wholly neglected the infant’s interests, the rule cited can have no application.

The power to set aside or reopen decrees for reasons of this character is inherent in a court of equity, and is a matter of common and frequent exercise; and the power conferred by the Code upon the Surrogate is to be exercised in like cases and in the same-manner as a court of general jurisdiction exercises such power. (Sec. 2481.) It cannot be doubted that the Supreme Court has power to vacate and set aside its own decree under circumstances similar to those presented in this proceeding; such a power is absolutely essential to the due administration of justice. (Sipperly v. Baucus, 24 N. Y., 46, and cases cited.) The surrogate had, however, no power to render the decrees in question, and for that reason, if none other existed, they must be set aside. The accounting appears to have been had upon the petition of the guardian. Upon presentation of the petition to the surrogate a citation was issued, and upon the return of such citation the same proceedings were had as would have been had upon a judicial settlement of the guardian’s accounts. We do not find in the Code any authority whatever for these proceedings. The provisions of the Code regulating the accounting of testamentary trustees are to be found in title 6, chapter 18, and those relating to the accounting of testamentary guardians in title 7, article 3, chapter 18. Referring now to testamentary guardian, it is provided by section 2856, that a judicial settlement of such guardian’s accounts may be had in the same cases in which a guardian appointed by the •surrogate may have a judicial settlement of his account. Such proceedings are provided for in sections 2817 and 2850, and can be had •only when the ward has attained his majority or a successor to the guardian has been appointed.

Turning now to the provisions regulating the judicial settlement of the accounts of testamentary trustees, it is provided in sectiori 2810 that such settlement may be had on the petition of the trustee when one year has expired since the probate of the will, or when the trusts have been or are ready to be fully executed, and such •accounting contemplates a distribution of the trust fund. It is apparent that these provisions have no application to the case under consideration, and that whether we regard Mr. Hawley as a testamentary trustee or a testamentary, guardian, he was not at the time of the presentation of his several petitions to the surrogate entitled to a judicial settlement of his accounts. It is further provided, however, by section 2802, that a testamentary trustee may at any time file an “ intermediate account ” with the surrogate having jurisdiction of the estate, and substantially the same provision is contained in section 2855 in reference to testamentary guardians. By •section 2511, subdivision 9, the expression intermediate account,” is defined to be an account filed in the surrogate’s office for the purpose of disclosing the acts of the person accounting and the •condition of the estate or fund in his hands, and not made the subject of a judicial settlement,” and by subdivision 8 a judicial settlement ” is defined to be “ a decree of the Surrogate’s Court whereby the account is made conclusive upon the parties to the special proceeding, either for all purposes or for certain purposes specified in the statute.”

I have now referred to all the provisions of the Code relating to accountings or settlements of accounts of guardians or trustees. From these citations it appears there are two classes of accountings provided for. The first are intermediate ” or to be made during the execution of the trust. Upon such accounting no decree is required, and the surrogate has no jurisdiction to make any. There is no authority for the citation of the beneficiary and no jurisdiction to make any order that will conclude any person interested in the trust Such accounts are intended solely as landmarks along the line of the execution of the trust, and are solely for the information of the beneficiaries and not for the benefit in any way of the trustee. The second are judicial settlements of accounts, and are had upon notice to all parties interested and contemplate a trial, a judicial determination and a judgment; they are conclusive upon all who have notice, but they can be instituted in such a case as the one under consideration, only after the ward arrives at the age of twenty-one years. As all the proceedings before the surrogate were had during the infancy of the ward, there was no case made for a judicial settlement of the guardian’s accounts. The surrogate had no jurisdiction to make any decree that would conclude the infant, and the decrees entered by him were without authority and are as to the infant void.

The decrees should be vacated and set aside, with costs to be paid. by the guardian personally.

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

Decrees vacated, with costs to be paid by guardians personally.