text:
    Filed January 13, 1891.
    Edward J. King et al. v. Isaac Bernstein, Impl’d. etc.
   The motion to re-submit case for further settlement will be granted on payment of costs, including the disbursements of the argument already had of the appeal, and on compliance with directions contained in memorandum.


source: Caselaw Access Project

license: Public Domain

text:
    Frederick A. Schroeder et al. v. Daniel Frey et al.

   Re-argument ordered.


text:
    Henry C. Howell, Adm’r, App’lt, v. Allen G. Newman et al., Resp’ts.
   Motion denied upon payment of ten dollars cost-', and stipulating to argue at February term.


text:
    Mary C. Fairfield v. John R. Feagles.
   Motion granted unless appellant within ten days procures case to be properly certified and serves copies of the same.


text:
    Ludwig Rothschild et al. v. Henrietta R. Mooney.
   Motion denied.


text:
    In the Matter of the Last Will and Testament of Agnes L. Jones, Dec’d.
   Motion granted unless appellants pay ten dollars costs of motion, perfect appeal and stipulate to argue at February term. .


text:
    John Parker et al., Ex’rs, Resp’ts, v. Maria Linden et al., App’lts.
   Motion denied.


text:
    In the Matter of the Petition of Elizabeth G. Ciancimino.
   Motion denied.


text:
    Adolph G. Marshuetz et al. v. Frank G. Schirmer.
   Motion dismissed, as it appears from defendant’s papers that there is no appeal pending.


text:
    Joseph Feiber v. Joseph H. Lester, Jr., et al.

   Motion granted, with ten dollars costs.


text:
    The People ex rel. A. Bloomer Hart v. James Blackhurst, Treas., etc.
   Motion granted, with ten dollars costs.


text:
    The People ex rel. Corporation of St. Stephens v. James Blackhurst, Treas., etc.
   Motion granted, with ten dollars costs.


text:
    Clemens Miller v. Charles F. Rost.
   Although this court will not entertain the motion to compel acceptance of costs, they will resettle their order so that the defendant may have five days after entry of amended order to comply therewith. •


text:
    Filed January 16, 1891.
    Jennie Fogal, Resp’t, v. J. Seaver Page et al., Ex’rs, etc., App’lts.
   Motion denied.


text:
    John Glenn, Trustee, v. Robert A. Lancaster et al.

   Motion denied, with ten dollars costs to abide event of motion for new trial.


text:
    In the Matter of the Application of E. G. Ciancimino.
   Motion granted dismissing appeal, without costs.


text:
    Edward K. Collins, Ex’r, etc., App’lt, v. Sarah J. Collins, Resp’t.
   Motion denied.


text:
    In the Matter of the Petition of Courtlandt Palmer.
   There is no necessity for order to show cause, as the motion cannot he heard January term. Application may be made pn motion.


text:
    Augusta G. Genet, App’lt, v. The Pres’t. etc., Delaware & Hudson Canal Co., Resp’t.
   Motion denied. ,


text:
    Daniel E. Sickles, Sheriff, v. John C. Wildmerding et al. David A. Sullivan, Receiver, v. Same.
   Motion denied.


text:
    Filed February 11, 1891.
    In the Matter of Ann Bolton.
   Re-argument ordered.


text:
    Hugh N. Camp, Resp’t, v. Michael Redmond, App’lt.
   Application denied.


text:
    Rosalind C. Richmond, Executrix, etc., v. The Railway Register Mfg. Co.
   Application denied.


text:
    Laura F. Bradhurst v. Augusta C. Field.
   Order should he extended, upon giving such stipulation as would protect estate.


text:
    General Term—Second Department.
    Filed February 9, 1891.
    In the Matter of the Will of Joseph Gall.
   Order affirmed.


text:
    General Term—Third Department.
    Filed February 18, 1891.
    The People of the State of New York v. The Manhattan Insurance Co. of New York.
   Final order dissolving company and confirming appointment of receiver.


text:
    Bernard Rothschild et al. v. Theresa R. Hall et al.

   Motion to dismiss denied, with ten dollars costs.


text:
    John E. Kraft v. Samuel D. Coykendall.
   Motion granted. See order on file.


text:
    Absalom W. Dieter v. Francis C. Fallon.
   Motion for re-argument denied.


text:
    Roswell D. Gordon et al., App’lts. v. Clarence H. Joy, Resp’t.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    George E. Simmons; App’lt, v. The Common Council of the City of Cohoes et al., Resp’ts.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Byron Pond, Resp’t, v. Caroline L. Harwood, Impl’d, etc., App'lt.
   Judgment affirmed, with costs.


text:
    The People of the State of New York, Resp’ts, v. John Belknap, App’lt.
   Motion to modify judgment denied.


text:
    John C. Greene et al., Resp’ts, v. Anthony Walton et al., App’lts.
   • Motion to go to court of appeals denied.


text:
    The People of the State of New York, Resp’ts, v. George W. Tunnicliffe, App’lt.
   Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs, without prejudice.


text:
    Bernard Rothschild et al., App’lts, v. Theresa R. Hall et al., Resp’ts.
   Order reversed, with ten dollars costs and printing disbursements, and motion to vacate injunction denied, with ten dollars costs.


text:
    John Hooper, as Adm’r, Resp’t, v. The Johnstown, Gloversville & Kingsboro Horse R. R. Co., App’lts.
   Judgment of nonsuit affirmed, with costs.


text:
    Warren D. Fisher, App’lt, v. The Village of Cambridge, Resp’t.
   Judgment and order affirmed, with costs.


text:
    General Term—Fourth Department.
    Filed February 20, 1891.
    Albert A. Cornish, Resp’t, v. Cornelia Carpon et al., App’lts.
   Judgment affirmed, with cos'ts.


text:
    Edward Sayer, Resp’t, v. Edward Furey et al., App’lts.
   Judgment affirmed, with costs.


text:
    The Utica, Chenango & Susquehanna Valley R. R. Co, Lessor, and The Delaware, Lackawanna & Western R. R. Co., Lessee, Resp’ts, v. The Utica Belt Line Street R. R. Co., App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Albert O. Briggs, App’lt, v. Harvey Austin, Resp’t.
   Judgment.affirmed, with costs.


text:
    In the Matter of the Probate of the Last Will and Testament of Joseph Banning, Deceased.
   Decree of the surrogate’s court-of Madison county affirmed, with costs.


text:
    George B. Shearer, App’lt, v. A. Edwin Benedict, Resp’t.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Charles A. Stone, as Overseer, etc., Resp’t, v. Thomas Delaney, App’lt; Charles A. Stone, as Overseer, etc., Resp’t, v. Sherman B. Loomis, App’lt.
   Orders affirmed, with ten dollars costs in one case and disbursements in both.


text:
    Miles C. Comstock, Resp’t, v. George Barnard, as Assignee, etc., Impl’d, App’lt.
   Order affirmed, with ten dollars costs and disbursements. Merwin, J., not sitting.


text:
    William D. Bailey, App’lt, v. The Rome, Watertown & Ogdensburg R. R. Co., Resp’t.
   Judgment and order affirmed, with costs.


text:
    The People ex rel. Henry T. Noyes, Resp’t, v. The Board of Canvassers of Chemung County, App’lt.
   Order affirmed, with costs. Following People v. Board of Canvassers of Albany County, 46 Hun, 390; People v. Board of Canvassers of Seneca County, decided by the fifth department. Jan. 23, 1891, 35 N. Y. State Rep., 1000; affirming same case reported, 34 N. Y. State Rep.. 8.


text:
    Jora W. Barton, Resp’t, v. The N. Y. C. & H. R. R. R Co., App’lt.
   Judgment and order reversed and a new trial ordered on payment by the appellant of the respondent’s costs of trial and of this appeal, on the ground that the verdict was contrary to the weight of evidence.


text:
    Wole Barnett et al., Resp’ts, v. The Phœnix Ins. Co. of Brooklyn, N.Y., App’lt.
   Judgment and order affirmed, with costs.


text:
    Charles D. Collins, App’lt, v. The Village of Little Falls, Resp’t.
   Motion to open default denied, unless the appellant shall, within ten days, serve a case and exceptions, and pay ten dollars costs and two dollars and sixty-five cents disbursements, in which event the default is opened.


text:
    In the Matter of the Application of The Binghamton Trust Co. to be designated a depositary of court funds, under rule 68 of this court.
   Application granted, and order filed with and entered by the clerk of Broome county.


text:
    Wilson H. Gardinier, App’lt, v. The Oswego City Savings Bank et al., Resp’ts.
   Motion for re-argument denied.


text:
    In the Matter of the Estate of George Clark; Daniel B. Bennett, App’lt, v. Miles C. Comstock, Resp’t.
   Motion denied, with ten dollars costs. Papers and per curiam memorandum filed with the clerk of Broome county.


text:
    Isaac W. Barton, app’lt, v. Frederick Stienburg, Resp’t.
   Judgment and order affirmed, with costs.


text:
    William D. Burrill, App’lt, v. Sophia Becker, as Adm’rx, Resp’t.
   Judgment affirmed, with costs.


text:
    The Phœnix Nat’l Bank, Respt, v. Horace K. Thurber, Impl’d, App’lt.
   Interlocutory judgment affirmed, with costs, but with leave to the appellant, on payment of the costs of the demurrer and the costs of this appeal, to withdraw his demurrer and answer within twenty days after a copy of the judgment of this court affirming-the judgment of the special term shall have been served.


text:
    Minnie L. Culver, Resp’t, v. Frank Filkins, App’lt.
   Judgment of the county court of Schuyler cout ty affirmed, with costs.


text:
    Edgar Denton, as Receiver, etc., App’lt, v. Schuyler D. Fraser et al., Resp’ts.
   Judgment reversed and new trial ordered, with costs to abide the event. Held, the plaintiff was entitled to have the questions as to the validity of the judgment of September 1,1879, tried, notwithstanding the recitals in the deeds executed by the sheriff.


text:
    Alexander Archibald, App’lt, v. Elisha B. Grant and Adelbert S. Jones, Resp’ts.
   Judgment affirmed, with costs.


text:
    Frank McIntosh, Resp’t, v. The Delaware, Lackawanna & Western R. R. Co., App’lt.
   Judgment and order affirmed, with costs.


text:
    Michael J. Fennell, Resp’t. v. The Delaware, Lackawanna & Western R. R. Co., App’lt.
   Judgment and order affirmed, with costs.


text:
    Newell B. Miller, as Treasurer, etc.. Resp’t, v. Robert H. Doxtater et al., App’lts.
   Judgment and order affirmed, with costs.


text:
    G. Pomeroy Keese et al., Resp’ts, v. The Cooperstown & Charlotte Valley R. R. Co. et al., App’lts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Dwight H. Foster, Resp’t, v. Charles R. Hinton, App'lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Thomas Marshall Bleakley, Trustee and Executor, etc., et al., App’lts, v. John J. Johnston et al., Resp’ts.
   Interlocutory and final judgments affirmed, with costs, with leave to the plaintiffs to amend their complaint upon payment of the costs of demurrer and of this appeal.


text:
    Isaac J. Squires, Resp’t, v. Silas S. Cartwright, as Pres’t, et al., App’lts.
    Order reversed, with ten dollars costs and disbursements, with leave to apply at special term for permission to file and serve a bond as required by chapter 673, Laws of 1887, mine pro tune.

   Per Curiam memorandum filed with the clerk of Broome county.


text:
    The People of the State of New York v. E. Remington & Sons. In the Matter of the Claim of the National Herkimer County Bank.
   Order affirmed, with ten dollars costs and disbursements.


text:
    New York Common Pleas—General Term.
    Filed February 2, 1891.
    Mina Eichner, Respt, v. The Liverpool & London & G. Ins. Co., App’lt.
    Appeal from fourth district court.
   Per Curiam.—The application for leave to appeal to the court of appeals denied, without costs.


text:
    Thomas S. Jube, Resp’t, v. John A. Hodge, App’lt.
   Re-argument ordered.


author: Allen, J.

text:
    The People v. Patrick Brady et al.

    Motion to vacate judgment entered on forfeited recognizance.
   Allen, J.

A proper certificate of the district attorney having been filed, this application is granted.


text:
    The People v. Luther Lasher and John N. Carnie.
   Motion for remission of forfeiture. Application granted.


text:
    Filed February 26, 1891.
    Jas. J. Donovan, Resp’t, v. Margaret O’Rourke, App’lt,
    Appeal from judgment tenth district court.
   Judgment affirmed, with costs.


text:
    John J. Babcock, by Guardian, Resp’t, v. Ira S. Elkins et al., App’lts.
    Appeal from final order of the ninth district court.
   Final order affirmed, with costs.


text:
    Jacob Guthorn, Resp’t, v. Isaac Keller et al., App’lts.
    Appal from judgment of the fourth district court.
   Judgment reversed, new trial ordered, costs to appellant, to abide the event.


text:
    Samuel M. Blakely, Resp’t, v. Augusta L. Goldmark, App’lt.
    Appeal from judgment of the eleventh district court.
   Judgment reversed, new trial ordered, costs to abide event.


text:
    Dominick Falk, App’lt, v. Louisa Emder, Resp’t.
    Appeal froin judgment of the eighth district court.
   Judgment affirmed, with costs.


text:
    Annie Steinhardt et al., Resp’ts. v. Elizabeth Klaber, App’lt.
    Appeal from judgment of the eleventh district court.
   Judgment affirmed, with costs.


text:
    Filed February 27, 1891.
    Annie Radzik, Resp’t, v. Harris Kosinsky, App’lt.
    Appeal from judgment of the fifth district court.
   Judgment affirmed, with costs.


text:
    Silas Swarz, Resp’t, v. Patrick Kennedy, App’lt.
   Judgment reversed, with costs to appellant.


text:
    Wm. G. Flammer, Resp’t, v. John P. Holzderber, App’lt.
    Appeal from judgment of the eighth district court.
   . Ordered, that Uie judgment be affirmed.


text:
    Chas. Buchheister, Resp’t, v. John Donnelly, App’lt.
    Appeal from judgment of the fourth district court.
   Judgment affirmed, with costs.


text:
    Michael Moloughney, Resp’t, v. Joseph J. Kelly, App’lt.
    Appeal from judgment of the eighth district court.
   Judgment affirmed, with costs.


text:
    Stephen M. Roberts, Resp’t, v. Alexander R. Chisolm, App’lt.
    Appeal from judgment of the sixth district court.
   Judgment affirmed, with costs.


text:
    Minnie Warren, Resp’t, v. Andrew D. Allen, App’lt. Wm. O. Person v. Same.
    (Argued together.)
    Appeal from judgment of the eleventh district court.
   Judgment re\ersed, with costs.


text:
    Annie Flynn, by Guardian, Resp’t, v. Robert Manchester, App'lt.
    Appeal from judgment of the second district court.
   Judgment reversed, new trial ordered, with costs to abide event.


text:
    Evelyn Stafford, Resp’t, v. C., Herbert Diamond, App’lt.
    Appeal from judgment of the eleventh district court.
   Judgment reversed, new trial ordered, costs to abide the event.


text:
    Filed March 3, 1891.
    John De Ruyter, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    Appeal from judgment of this court, entered on referee’s report.
   Judgment affirmed, with costs.


text:
    Thos. S. Jube, Resp’t, v. John A. Hodge, App’lt.
    Appeal from final order of the eleventh district court.
   Final order reversed; the reversal on the former argument to stand.


text:
    Abraham Phillips, Resp't, v. Elisha G. Selchow et al., App’lts.
    Appeal from judgment of the fifth district court.
   Judgment affirmed, with costs.


text:
    Chas. W. W. Savage, Resp’t, v. Jas. W. Ketcham, App'lt.
    Appeal from order made by Hon. H. W. Bookstayer, J., and from judgment.
   Judgment and order affirmed, with costs.


text:
    Filed March 4, 1891.
    Hugh McCann, App'lt, v. The Sixth Ave. R. R. Co., Resp’t.
    Appeal from order made by Hon. J. F. Daly, Oh. J.
   Order affirmed, with costs.


text:
    Filed March 5, 1891.
    Heinrich Michelsen, App’lt, v. Solomon Maduro, Resp’t.
    Appeal from judgment of this court.
   Judgment affirmed, with costs.


text:
    Filed March 6, 1891.
    Emily Vincent, Resp’t, v. Ludger C. Vincent, App’lt.
    Apneal from order of special term, by Hon. R. A. Pryor, J.
   Order affirmed, with costs.


text:
    Samson Wallace, Resp’t, v. The Manhattan Railway Co., App’lt. Karl M. Wallace, Resp’t, v. Same, App’lt.
    Appeal from order of special term.
   Order affirmed, with costs.


text:
    Richard Roberts, Resp’t, v. Ella M. Pike, as Ex’rx, App’lt.
    Appeal from judgment of this court.
   Judgment affirmed, with costs.


text:
    August Kalbreier, Resp’t, v. Joseph Stein, App’lt.
    Appeal from order granting a new trial.
   Order affirmed, with costs.


text:
    Filed March 9, 1891.
    Henry B. Broyer, Resp’t, v. Jacob Ritter, App’lt.
    Appeal from judgment of the city court.
   •Judgment affirmed, with costs.


text:
    Wm. Riedell, Resp’t, v. Jas. A. Flack, as Sheriff, etc., App’lt.
    Appeal from judgment of this court.
   Judgment affirmed, with costs.


text:
    Henry E. Hall, Resp’t, v. Julia Dennerlein, App’lt.
    Appeal from order of the special term hy Hon. H. Bischoff, J.
   Appeal dismissed, with ten dollars costs.


text:
    Filed March 10, 1891.
    Jas. H. Ferguson et al., Resp’ts, v. Henry J. Allen, App’lt.
    Appeal from judgment of this court, Hon. Henry Wilder Allen, J.
   Judgment affirmed, with costs.


text:
    Filed March 11, 1891.
    Sam. M. Pettengill, Resp’t, v. The Metropolitan Transit Co., App’lt.
    Appeal from order of the special term by Hon. H. W. Allen, J.
   Order affirmed, with costs.


text:
    Filed March 12, 1891.
    Geo. E. Sterry, Resp’t, v. The N. Y. El. R. R. Co., App’lt.
    Appeal from judgment on referee’s report.
   Judgment affirmed, with costs.


author: Per Curiam.

text:
    Watts D. Gardner, Resp’t, v. P. Jarvis Patten, App’lt.
    Appeal from judgment of this court, Hon. H. W. Allen, J.
   Per Curiam.

There is no finding of the trial court that the amount sued for here became due under the same contract as the amount for which the plaintiff’s assignor recovered in the prior action.

The fifth finding is, that the work here sued for was done “ under the same agreement as to payment,” but not that it was under the same agreement as to work, and it expressly states that this was “ other work.” It would, therefore, appear that there were two agreements made, one for the work done in September and October, for which the plaintiff’s assignor sued, and another for work and materials furnished during the month of November, for which the assignor now sues; and that the case is within Zimmerman v. Erhard, 83 N. Y., page 78. Where goods were sold and delivered at different times, it was held that a separate cause of action arose for each sale and delivery, so that in making this assignment there was no splitting of a single demand. In addition it may be observed that in the case of Mills v. Garrison, 3 Keyes, 40, it was held that the debtor may waive the benefit of the rule that a single cause of action cannot be split, and as all the evidence in this case is not before us, it may be that there was proof which justified the finding of a waiver. There is nothing in the evidence to negative it, and the court, having refused to find that there was a single cause of action, and also has refused to find that no recovery must be had for this amouqt, we might assume that there was evidence before him to justify his refusal to find this request.

The judgment should be affirmed upon this record.


text:
    Filed March 13, 1891.
    Louis Tim et al., Resp’ts, v. Willy Spiegelberg, App'lt.
    Appeal from seventh district court.
   Judgment reversed and a new trial ordered, upon the condition that the appellant, within ten days, pay costs of former trial and appeal. Otherwise judgment affirmed, with costs.


text:
    New York Superior Court—General Term.
    Filed January 5, 1891.
    Johnson v. The Union Switch & Signal Co.
   Motion denied, with costs.


text:
    Schilling v. Bischoff.
   Motion granted, the case not having been argued, with ten dollars costs.


text:
    Filed February 4, 1891.
    The Marinette Iron Works Co., App’lt, v. Frank Reddaway, Resp’t.
    Appeal 'by plaintiff from order vacating attachment on ground of insufficiency of affidavit upon which attachment was granted.

      Lewis Sanders, for app’lt; Strong <6 Gadwalader, for resp’t.
   Per Curiam.

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


text:
    Edward Roberts, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.
    Appeal from judgment entered upon the decision of a judge at special term after trial of the issues.

      Dames & Sapallo, for app’lts; A. P. & W. Man, for resp’t.
   Per Curiam.

The judgment should be affirmed, with costs.


text:
    Lena Pappenheim, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.
    Appeal from judgment entered upon the decision of a judge at the equity term.
   Per Curiam.

The judgment should be affirmed, with costs.


text:
    Cornelia Gilman, Resp’t, v. Preble Tucker, App’lt.
    Appeal by defendant from judgment entered upon finding at special term.

      Gliarles J. Hardy, for app’lt; Hilaries B. Hughes, for resp’t.
   Per Curiam.

Judgment affirmed, with costs.


text:
    Filed February 13, 1891.
    Miller v. Fogg.
    Motion denied, with ten dollars costs.
   The court is of opinion that it is not a waiver of such an appeal to appear- and contest at a trial before the referee.


text:
    James P. Kernochan, as Ex’r, et al., Resp’ts, v. The New York Elevated Railroad Co. et al., App’lts.
    " Appeal by defendant from order denying leave to serve a supplemental answer.

      Samuel Blythe Rogers, for apj/Its; (?. 'Willett Van Nest, for resp’ts.
   Per Curiam.

Order appealed from affirmed, with ten dollars costs.


text:
    Henry Messenger, Resp’t., v. The Metropolitan Elevated Railway Co. et al, App’lts. John Messenger, Resp’t, v. The Same, App’lts.
    Appeals by defendants from judgments entered upon findings and at special term.

      Samuel Blythe Rogers, for app’lts; James B Lu-dlow for resp’ts.
   Per Curiam.

Judgments affirmed, with costs.


author: O’Brien, J.

text:
    Lewis Sanders, App’lt, v. Agnes Gordon Soutter et al., Resp'ts.

      (Court of Appeals,

      Filed April 14, 1891.)

    1. Executors and administrators—Release—Jurisdiction of surrogate.
    The jurisdiction conferred upon a surrogate’s court does not include power to annul or set aside a release made between parties interested in an estate and the executors on the ground of fraud. In order to obtain such relief resort must be had to a court possessing general equity powers and jurisdiction.
    3. Same—Pleadings.
    Plaintiff’s complaint alleged the death of defendants’ testator, qualification of the executors, misconduct on their part, that they had allowed a large part of ;lie assets to be used by a firm in which one was a partner, and which failed ; that one of the heirs died, leaving his share to his wife and children; that his executor had been discharged without securing his share in the first mentioned estate, and that he connived at the use of said assets by the firm; that the widow of said heir assigned all her interest in said share to one C., by whom it was conveyed to plaintiff; that the widow was appointed administratrix of her husband, and brought proceedings to compel defendants to account, who produced a general release from her, and an approval of her accounts and the proceeding was dismissed, and that such settlement and release were collusive and fraudulent. Held, that ’the complaint was sufficient for the purposes of an action to set aside the release, and settlement between the plaintiff’s assignor and the executors.
    Appeal from judgment of the supreme court, general term, first department, affirming a judgment and decree dismissing plaintiff’s complaint on the ground that it did not state facts sufficient to constitute a cause of action.

      Lewis Sanders, for app'lt; Delos Mc Curdy, for resp'ts.

       Reversing in part 36 N. Y. State Rep., 824.

   O’Brien, J.

On the trial of this action, at the special term, the plaintiff’s complaint was dismissed as to the defendants, Agnes Gordon Soutter and William K. Soutter, as executrix and executor of the will of James T. Soutter, without taking any proof, but on motion of their counsel that the complaint did not state a cause of action against them. This appeal, therefore, renders it necessary for us to examine the complaint for the purpose of determining whether it was so defective, in the allegation of facts, as to warrant the trial court in disposing of the case upon a motion to dismiss, based upon an inspection of the pleading alone. A cause of action will be deemed to be stated in a complaint whenever the requisite allegations can be fairly gathered from all the averments, though the statement of them may be argumentative and the pleading deficient in technical language. Zabriskie v. Smith, 13 N.Y., 330.

The rule that justifies the dismissal of a complaint for want of sufficient facts stated was laid down by this court in Marie v. Garrison, 83 N. Y., 14, 23. “A demurrer to a complaint for insufficiency can only be sustained when it appears that, admitting all the facts alleged, it presents no cause of action whatever. It is not sufficient that the facts are im'perfectly or informally averred, or that the pleading lacks definiteness and precision or that the material facts are only argumentatively averred. The complaint on demurrer is deemed to allege what can be implied from the allegations therein by reasonable and fair intendment, and facts impliedly averred are traversable in the same manner as though directly averred.”

The complaint in this case covers ten closely printed pages of the record, and it deals throughout with what appears on paper at least to be weighty and important matters. The precise lines upon which the plaintiff intends to try the case have not been very clearly or distinctly drawn, and the complaint in some respécts is wanting in that definiteness and degree of particularity essential to a complete and logical statement of a cause of action. The complaint can be examined in three aspects, and if, upon any view that can be taken of it, sufficient facts can be gathered from the averments to sustain any cause of. action whatever, the judgment, cannot be sustained. In so far as the statement of the plaintiff’s case can be treated as an action to create and enforce a lien in his favor, as an attorney, the complaint is, no doubt, fatally defective. Randall v. Van Wagenen, 115 N. Y., 527 ; 26 N. Y. State Rep., 438.

It is apparent, however, that such was not the purpose or theory of the action. The plaintiff cannot sustain the complaint except upon the theory that it states an independent cause of action in equity to annul and set aside a release made between his assignor and the representatives of the estate of James T. Soutter, which is alleged to be collusive, and to have been male to-defraud him of his rights under the assignment, and by force of which he was turned out of the surrogate’s court, where he was seeking to enforce his claim, and the proceedings dismissed; or that the case is one by a party interested in the estate of James T. Soutter, as the assignee of a legacy or share of the-estate, to call the executors to account in a court of equity,, under its concurrent jurisdiction, when special obstacles and embarrassments to such a proceeding in the surrogate’s court, are shown to exist; or for relief on both these grounds. The complaint alleges that Robert Soutter died July 18, 1873; that he left a will in which he disposed of his property, which was duly admitted to probate. By this will his widow, who subsequently re-married, and in the pleadings in this case is known as the Duchess d’Auxy, became entitled to all his household furniture, and one-half of the residue of his real and personal property forever. It is then alleged that the plaintiff became the owner of her interest in her husband’s estate by assignment for value received, dated on or about August 17, 1887, except the household furniture. It is true the complaint does not state in terms what property was embraced in or covered by the assignment to the plaintiff, nor what estate the Duchess d’Auxy had at the time of the assignment, nor even what property her husband had at the time of his death, but it does state some other facts from which it may be reasonably implied or inferred that, by the assignment, an interest was transferred to the plaintiff which he is entitled, in some form of proceeding, to enforce. It is alleged that on the 8th day of February, 1878, James T. Soutter, the father of Robert, died, leaving a will which was admitted to probate by the surrogate of Ulster county. That he left an estate of more than $1,100,000, one-tenth of which, by the will, was given to Robert, the husband of the Duchess d’Auxy, plaintiff’s assignor. That the defendants, Agnes Gordon Soutter, the widow, and William K. Soutter, one of the sons, qualified and were appointed executors of this will. That the widow took no active part in the management of the estate but entrusted the same to her son, the other executor, whose management she approved. That the son was engaged in business with another party as bankers and brokers, and that on the 28th of September, Í885, they failed, owing upwards of $2,000,000, and having less than $500,000 assets. That the executors were directed by the will to pay over in kind, in proper divisions, to his legatees, the state and other bonds comprising a large portion of his estate. The complaint then states various acts of the executors of James T. Soutter and the executors of Robert Soutter, acting together and in collusion, whereby about $800,000 of the funds of the estate of James T. Soutter were appropriated to their own use and lost, and that one Porter, the executor of Robert Soutter, obtained- his discharge without having collected or reduced to his possession the share of Robert in his father’s estate. If these allegations be true, it follows that Robert Soutter, who died only five months after his father, did 'not and could not have received, either in kind or otherwise, the large estate which, according to the statements of the complaint, he was entitled to receive under his father’s will. If the whole estate was wasted and lost by the executors, of course it could not have been distributed, and if three-fourths of it was lost by the personal misconduct of the trustee who had it in charge, as the complaint says it was, then it must follow that a large sum was due to the estate of Robert from the estate of his father, and that the representatives of Robert’s estate had a large claim against the representatives of the estate of his father which could be enforced in a proceeding for an accounting.

Then the complaint avers that the Duchess d’Auxy, on the fitb of December, 1888, obtained letters of administration, with the will annexed, of the goods, chattels and credits of Robert Soutter, her former husband; that she petitioned the surrogate of the proper county praying that the defendants, the executors of the estate of "James T. Soutter, account, and that their accounts be judicially settled; that such proceedings were had before the-surrogate that the said executors and all persons interested in the estate, including plaintiff, were cited; that the executors filed their accounts, but without vouchers, and exceptions were filed thereto in behalf of the plaintiff and the petitioner. Thus far the allegations of the complaint were sufficient by-reasonable inference and deduction to inform the court that the plaintiff, by the assignment to him, took an interest in the estate of James T. Soutter, and that he was a party to a proceeding in the surrogate’s court wherein his claim could be enforced. At this point it is alleged that he was turned out of the surrogate’s court and the proceedings for accounting dismissed, against his protest, by force of a release and settlement made between the plaintiff’s assignor, the-Duchess d’Auxy, individually and as administratrix of her husband’s estate, and the defendants, the executors of the estate of James T. Soutter, which settlement and release it is charged was-fraudulent and collusive and made and entered into between the-parties with the intent to deprive the plaintiff of his rights under the assignment. If, when this release was produced before the-surrogate, the plaintiff, who was a party to the proceeding, could have then and there contested its validity, and could have given proof of the fraud now alleged, he must be confined to that remedy and cannot be permitted to maintain an independent action to-try a question which he should have tried before the surrogate.

Equity will not interfere to set aside proceedings in an action in-another court upon charges of fraud which could have been tried' and decided in that action, or where relief is open in the action to-the complaining party by motion, appeal or otherwise. Foster v. Wood, 6 Johns. Ch., 87; Smith v. Nelson, 62 N. Y., 286; Stilwell v. Carpenter, 59 id., 414; Ross v. Wood, 70 id., 8-10; Hunt v. Hunt, 72 id., 227.

The plaintiff, so far as appears by his complaint, had the same-knowledge of the fraudulent character of the release, at the time that it was produced before the surrogate and the proceedings for accounting dismissed, that he had when he commenced this action. The complaint would not present a case for the interference of equity to annul the release and reinstate the proceedings for an accounting except for the rule, which seems to be well settled upon authority, that the surrogate was without power to try the-question of fraud in procuring the release, or to pass upon its invalidity on account of the methods claimed to have been used in procuring it. The surrogate’s court possesses such jurisdiction only as is expressly conferred by statute or necessarily implied from the powers conferred and does not include the power to annul or set aside a release, made between parties interested in an estate and the executors, on the ground of fraud. In order to obtain such relief resort must be had to a court possessing general equity powers and jurisdiction. Stilwell v. Carpenter, 59 N. Y., 414 ; Bevan v. Cooper, 72 id., 317; Matter v. Wagner, 119 id., 28 ; 28 N. Y. State Rep., 266.

The allegations of the complaint were broad enough and were sufficient, if true, to present to the court a case for setting aside the release and reinstating the proceedings for accounting where they were before the order of the surrogate dismissing them, even if it should be held that they were not sufficient for any other purpose. In order to obtain that particular relief it was enough to allege that the plaintiff was a party to the proceeding in which he was seeking to establish and enforce his claim, when, against his protest, it was terminated by a fraudulent release and settlement, against which no relief could have been obtained in the surrogate’s court. A court of equity possesses jurisdiction, concurrent with the surrogate’s court, to entertain an action or proceeding for an accounting by executors. Haddow v. Lundy, 59 N. Y., 320.

It seems to be the rule that the supreme court, in the exercise of its discretion, will decline to take jurisdiction of an action for an accounting by the representatives of the estate of a deceased person, unless special facts and circumstances are alleged showing that the case is one requiring relief of such a nature that the sur* rogate’s court is not competent to grant it, or some reason assigned or facts stated to show that complete justice cannot be done in that court. Wager v. Wager, 89 U. Y., 161; Chipman v. Montgomery, 63 id., 221; Anderson v. Anderson, 112 id., lio ; 20 N. Y. State Rep., 344; Haddow v. Lundy, supra.

But, when a court of equity obtains jurisdiction of the matter for some special purpose, as to set aside some fraudulent deed or settlement, made between the executors and parties interested in the estate, or to grant some other special relief not within the power of the probate court, it may, and very frequently does, retain the case for all purposes and decree a complete administration, settlement and distribution of the entire estate. 1 Pom. Eq. Juris., §§ 234, 235; 1 Story’s Eq. Juris. (13th ed.), chap. 7, §§ 423, 424; Fisher v. Hubbell, 1 T. & C., 97.

The grounds upon which the court below dismissed the complaint were, mainly, that there was no specific statement that the plaintiff’s assignment from the Duchess d’Auxy conveyed to him an interest in the estate of James T. Soutter. That, however, was a fair and reasonable conclusion and inference from the facts stated and which, for the purpose of this appeal, must be taken as admitted; and whether these allegations were necessary or not- in an action against the executors for an accounting we think, without expressing any opinion as to the merits of the case, that the complaint was sufficient for the purposes of an action to set aside the release and settlement between the plaintiff’s assignor and the executors.

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

All concur, except Ruger, Ch. J., not voting, and Finch and Gray, JJ., absent.


author: Finch, J. J.

text:
      In re Accounting of Byron D. McAlpine et al., Executors of Henry S. Potter.

      (Court of Appeals,

      Filed April 14, 1891.)

    1. Executors and administrators—Double commissions. ¡
    A will, in order to admit of double commissions, must clearly and definitely indicate an intention of the testator to end the executor’s duty at’ some point of time, and require him thereupon to constitute and set up one or more several trusts to be held and managed as such for the interest of the beneficiary.
    3. Same—Hale commissions on receipt op estate.
    Where the bulk of the estate comes to the executors already invested and in the form of securities which have not been turned into money, no law justifies the allowance of one-half commissions upon their estimated value in advance of their conversion into money or its equivalent.
    3. Same.
    The proper time for such allowance will be when the securities have been turned into money for the purpose of payment, or have been accepted by the legatees as cash without being converted.
    Appeal from judgment of the supreme court, general term, fifth department, modifying and affirming- decree of surrogate of Monroe county.

      S. D. Bentley, for legatees; Spencer Clinton, for ex’rs.

       Reversing 35 N. Y. State Rep., 706.

   Finch, J. J.

The principal question which is presented by this appeal is whether the commissions to be allowed are to be governed by the doctrine of Johnson v. Lawrence, 95 N. Y., 154, or Laytin v. Davidson, 95 id., 263. Both cases agree in the rule that double commissions to the same persons, first in the character of executors, and then in that of trustees, are to be awarded only when the will contemplates a several and separable action in each capacity, not at the same but at different stages of the administration, and that they are not to be allowed where the will makes no such separation, but blends the two duties, and commingles them without a severance. To the ordinary duties of an executor may be added the performance of a trust in such a manner that the two functions run on together. It is the duty of an executor as such to pay to a legatee the amount of the legacy in the manner and at the tune provided by tlie testator, and it does not change that duty that the payment of the principal is postponed and the income made payable annually in the meantime. A trust duty may thus be imposed upon an executor which thereby becomes and is made a function of his office. A will must go further than that to admit of double commissions, and must clearly and definitely indicate an intention of the testator to end the executor’s duty at some point of time, and require him thereupon to constitute and set up one or more several trusts to be held and managed as such for the interest of the beneficiary.

This will manifests no purpose of that character, for while it creates a trust and speaks of the executors sometimes as trustees, there is no provision in it which requires or contemplates a holding of any part of the estate by trustees as distinguished from executors. At its very outset it makes the executors either wholly and continuously such or wholly and continuously trustees, for in its first sentences it gives the entire estate in trust and directs the “ executors and trustees hereinafter named ” to retain it undivided till the period of distribution, and meanwhile to pay funeral expenses, debts, accruing taxes, repairs, reasonable insurance, one fixed and definite annuity, and aliquot parts of the net accruing income until the final distribution. There is no provision requiring any share or trust fund to be severed from the body of the estate, or to be ascertained as a residue of principal to be kept invested for its specific income payable to a beneficiary, but all duties without separation, whether imposed by the law or by the will, run on together mingled and blended to the end. An examination of the cases in which double commissions have been allowed will show that they were exceptional in their nature and contained provisions distinctly and definitely pointing to a holding by trustees as such after the duties of the executors were completed and ended. This is not such a case and double commissions were properly withheld.

A further question is raised over the allowance to executors of half commissions for receiving the funds of the estate. The law allows a specific rate for “ receiving and paying out all sums of money.” The statute indicates no division of thé commissions, which should apportion one-half to the receiving' and the balance to the paying out, though the courts have allowed it in proper cases. But the allowance here was premature. The bulk of the estate came to the executors already invested and in the form of securities which have not been turned into money. No law justifies the allowance of one-half commissions upon their estimated value in advance of their conversion into money or its equivalent. It was proper enough to allow one-half commissions upon all sums of money received, but until the securities become sums of money, either by conversion into cash or by their acceptance as cash by those entitled, the allowance is premature. The computation of the commissions at an earlier period pays for services before they are rendered and rests upon estimates of value which may be very different from the sums of money actually received and paid out. A time will come when the allowance may be entirely just and proper. That will be when the securities have been turned into money for the purpose of payment, or have been accepted by the legatees as cash without being converted. The allowance upon the securities was premature and without a statutory basis and must be reversed. I do not understand that any contrary rule was held in Matter of Accounting of Mason, 98 N. Y., 586. It was there said that at the distribution the trustees were entitled to half commissions for receiving and half for paying out the corpus of the estate, “ whether the funds be then in money or choses in action.” But the remark went upon the assumption that the trastees “had fully discharged their duties,” and so had paid over the whole fund, if not in cash, at least in securities which the legatees were bound to accept or voluntarily consented to accept.

The surrogate allowed to each executor full commissions for receiving and paying out the income of the estate, and the general term reversed, that in reliance upon Matter of Willets, 112 N. Y., 289 ; 20 N. Y. State Rep., 735. It is now claimed that the case was misunderstood and that the reversal was error. We said in that case that “when trustees account in reference to incomes which they are required annually to pay over and account for, no matter how much the principal may be, or how much the estate of the decedent may have been, § 2736 does not apply unless the income exceeds $100,000; and more than one commission can bo allowed only in case the sums upon whiph commissions are computed amount to at least $100,000.” The language seems decisive;. but our attention is called to a prior expression in the opinion that “ if this accounting had involved the whole of that estate the trustees would have been entitled to three full commissions ; ” and it is now said that the present accounting involves the whole estate. In some very loose and general sense that may be true, and yet not at all true as it respects the allowance of commissions. The accounting is final only as to the income received and paid out. As to the principal of the estate the final accounting has not been reached, and so the whole estate is not involved. When it is, § 2736 of the Code will apply. It is urged that the income accounted for does in fact exceed $100,000. The finding of the surrogate approved by the general term was the other way and it is not our duty to open that inquiry.

Some other questions are raised which we cannot determine without an investigation of the facts, which we ought not to be required to make. Thus it is said that the executors are overpaid by neglect to apply the decision of the general term and that one of the executors gets commissions twice over.

It seems to us best, therefore, to send'this case back to the surrogate for a new computation of commissions in accordance with the rules herein declared. And for that purpose we reverse the judgment of the general term and so much of the surrogate’s decree as relates to commissions, and order a new hearing before him in respect thereto, without costs to .either party as against the other.

All concur.


author: O'Brien, J.

text:
    The People ex rel. John F. Cline, App'lt, v. J. Hampden Robb et al., Commissioners, Resp'ts.

      (Court of Appeals,

      Filed April 14, 1891.)

    Municipal corporations—Police—Removal without trial.
    The relator, a park policeman, after examination by an expert in mental diseases, was reported as suffering from organic and progressive disease of the brain of an incurable character, liable to be associated at any time with mental disturbance and as likely to indulge in outbursts of insane temper, especially if he should drink strong liquors. Held, a proper case for removal, and in such a case it was not necessary to prefer formal written charges or to institute an inquiry in the nature of a trial thereon.

      Appeal from judgment of the supreme court, general term, first department, confirming judgment of police commissioners removing relator from his position as park policeman.

      Louis J. Grant, for app'lt; D. J. Dean, for resp'ts.

       Affirming 33 N. Y. State Rep., 808.

   O'Brien, J.

The relator was a member of the park police in the city of York, is a special organized by statute and under the exclusive control of the board of park commissioners for the sole purpose of preserving order in the Central Park and the other public parks in the city. On the 23d of October, 1889, the board was advised by its surgeon that the relator, then on the sick list, was suffering from mental disease. The surgeon also suggested to the board that the relator should be examined by some expert in such diseases, in order that his fitness for the performance of police duty in the parks might be determined. The board caused such an examination to be made, by an eminent expert in mental diseases, who reported that, in his opinion, it would be unsafe to continue the relator on the park police force, as he was suffering from “ organic and progressive disease of the brain of an incurable character.” On being informed of this fact, the board, on November 9,1889, passed a resolution removing the relator from the force and dropping his name from the roll.

The resolution specifying the cause of removal was entered in the minutes of the proceedings of the board. The relator procured a writ of certiorari to review the action of the board in dropping his name from the roll of park policemen. The general term dismissed the writ, and from that order the relator appeals to this court. It is urged, in support of the appeal, that the action of the board in dismissing the relator was illegal, as there was no trial or statutory investigation or opportunity given to the relator to be heard. With respect to the tenure or duration of a public employment, such as the relator had at the time of his dismissal, the general rule is that where the power of appointment is conferred in general terms and without restriction, the power of removal, in the discretion and at the will of the appointing power,. is implied and always exists unless restrained and limited by some other provisions of law. People ex rel. Sims v. Fire Commissioners, 73 N. Y., 437; Bergen v. Powell, 94 id., 591; Ex parte Hennen, 13 Peters, 230 ; Laimbeer v. Mayor, etc., 4 Sandf., 109; Avery v. Inhabitants of Tyringham, 3 Mass., 177; Blake v. U. S.; 103 U. S., 227; People ex rel. Keech v. Thompson, 94 N. Y., 451; People ex rel. Moore v. Mayor, etc., 5 Barb., 43.

This general rule was embodied in the constitution of this state in the following language: “ When the duration of any office is not provided by the constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment.” Art. 10, § 8.

The numerous cases to be found in the books in which this court has reviewed the action of the police commissioners of the city of New York, in dismissing members of the general police force, have no application to this case. The police department and the general police force of the city of New York is organized, and exists under a series of statutes, passed from time to time, and now collected in chap. 8 of the consolidation act. Laws of 1882, chap. 410, §§ 250-314. These statutes confer power upon the board of police commissioners to enact rules and regulations for the government of the force. The powers and privileges of the members of the force are enumerated and specified. Provision is made for a pension fund for the benefit of the families of such members of the force as die from injuries in the service and for the benefit of the members themselves, when disabled in the ser-, vice or upon retirement, after a certain period of service, upon the conditions specified in the statute. The members of this force cannot be dismissed at the will of the appointing power because the power of removal in. such cases is expressly restrained by statute.

The legislature has enacted that “ members of the police force shall be removable only after written charges shall have been preferred against them, and after the charges have been publicly examined into, upon such reasonable notice to the person charged, and in such manner of examination as the rules and regulations of the board of police may prescribe.” Laws of 1882, chap. 410, § 272. It is by virtue of this provision of the statute, concerning the organization and government of the general police force, that a member thereof is entitled to a hearing, in the nature of a trial, upon written charges and a review of the action of the police board by the courts. People ex rel. Miller v. Police Commissioners, 67 N. Y., 475. These provisions of law, however, do not apply to the relator, as the park police derive their appointment, powers and privileges from another statute, to which we must look for the relator’s right to question the action of the board of park commissioners in dropping his name from the roll.

The first legislation, authorizing the appointment of park policemen, is found in chapter 290 of the Laws of 1871, § 6. Power was there given to the commissioners of public parks to organize and appoint this force, to consist of such number of men as the board might from time to time deem necessary to preserve order in the public parks of the city. It was expressly provided that the force should be under the exclusive control and direction of the board, and might be, in whole or in part, discharged at pleasure. Bach member of the force was invested by his appointment with the same powers within the limits of the public parks as if he had been appointed to a similar rank in the force of the police department of the city, and might be allowed compensation by the board equal to that allowed to members of the general police force. Whenever, in the judgment of the commissioners, an additional force for the preservation of order in and about the parks became necessary, from special circumstances, the board were authorized to appoint such additional force temporarily.

The provisions of the act of 1871 in regard to the park police is now § 690 of the Consolidation Act. In this statute the power of removal by the board of park commissioners, which was the appointing body, was not only left without limitation or restriction, but it was expressly enacted that the board might discharge any member at pleasure. The power of the board under this statute to dismiss any member of the force at its will and pleasure cannot be questioned. Section 690 of the Consolidation Act which, as we have seen, contained all the provisions' of law concerning the appointment, removal, powers and duties of the park police, was amended by chap. 262 of the Laws of 1837, and it is under this statute that the right of the relator to retain his place on the force, until removed upon charges and after a hearing, is claimed. Upon a careful reading of this statute we think it is scarcely possible to reach the conclusion that any power previously existing in the board in regard to the removal of the members of the force was in any way curtailed or restricted. It is true that the provision found in the original act, to the effect that the board might discharge members of the force at pleasure, was omitted in the amendatory act of 1887. But this provision was never necessary to the exercise of the power of dismissal by the board. The absolute power of appointment carried with it the power to dismiss, in the absence of some provision limiting such power by express words of necessary implication. The words of the statute permitting dismissal from the service at pleasure added nothing to the powers of the board in that regard, and the omission of these words from the act of 1887 does not operate to take away any power which the board had before. The object of the amendment of 1887 was to confer additional powers upon the board and not to take away powers that existed before. The board was empowered to discipline and punish the members of the force for certain specified offenses by reprimand, forfeiture of pay with certain limitations, suspension without pay or dismissal. The commissioners were also empowered in their discretion to deduct or withhold pay, salary or compensation from any member of the force, for or on account of absence for any cause, without leave, lost time by reason of sickness or other disability ; provided, however, that the pay, salary or compensation so deducted should not, except in case of absence without leave, exceed one-half thereof.

The amendment was intended to enable the board to enforce discipline in the force through a system of rewards and punishments, a power that, as was supposed, did not exist before, and it may very well be that a member of the force could not be thus disciplined or punished without an opportunity to be heard. The legislature evidently was of the opinion that the efficiency of the force would be improved by conferring power upon the board to punish the members of the force for certain offenses by withholding pay or by reprimand or dismissal from the service entirely; but by granting this disciplinary power the legislature did not take away or limit the absolute power of appointment and removal at pleasure that the board previously possessed. The statute confers upon the board of park commissioners very extensive and important powers and duties for the purpose of securing the efficient management and care of the parks, f It would be a very narrow construction of the statute to hold thaV; the board does not possess the 2)ower to dismiss a policeman for mental or jibysical capacity to perform the duties of the place, without the delays and formalities of written charges and a public trial or investigation in order to settle the question whether such incapacity, in fact, exists or not. The incapacity may be perfectly apparent and the necessity for prompt and immediate action urgent, and yet, if the contention of the learned counsel for the relator is to prevail, the board is without power to dismiss a member of the force who has become incompetent, and even dangerous, by reason of mental afflictions. It is supposed that the citizens conrposing the board of 2)ark commissioners will exercise the power of dismissal from the service only in the public interest and when such a course is demanded by the circumstances and urgent necessities of the 2>artic-ular case, and always with fairness and justice to the members of the force. We think that the action of the board, with referenpe to the relator,"was within the powers conferred by the statute. In such a case it was not necessary to prefer formal written charges or to institute an inquiry in the nature of a trial thereon. The board had the power to act upon its own knowledge of the situation or upon such information as it acquired from the report of its own surgeon and the expert, to whom the question was referred.

The order of the general term should, therefore, be affirmed.

All concur, except Finch and Gray, JJ., absent.


text:
    Ludlow W. Valentine, an Infant, by Guardian ad litem, Resp't, v. Herman T. Richardt et al., App'lts.

      (Court of Appeals,

      Filed April 14, 1891.)

    Deed—Fraud—Money judgment.
    During the life-time of plaintiff’s mother she conveyed certain. real estate to defendant Richardt; and this action was brought to set aside the deed, as without consideration and as procured by fraud, both of which were found as facts by the jury. R. had sold the property to innocent third parties, and received the money. Plaintiff’s complaint also asked “ for such further or different judgment or relief as may be just.’’ Held, that as defendant had conveyed the property away to a purchaser in good faith, and received the money, a court of equity had the power to cpmpel him to pay this money and its accumulations to plaintiff in place of the land, and that to this end a personal judgment was proper.
    Appeal from .judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff. New York who had been dealing in plaintiffs’ milk. Desiring to continue his dealings with the plaintiffs they required him to procure from his father-in-law, Charles Gedney, a guaranty, and thereafter he procured Mr. Gedney to execute and deliver to plaintiffs the following instrument:

      William C. Beecher, for app’lts ; Horace Secor, Jr., for resp’t.

       Affirming 35 N. Y. State Rep. 641.

   O’Brien, J.

The plaintiff is the infant son and sole heir at law of Catharine A. Valentine, deceased, and by his guardian ad litem brought this action to recover certain real estate which was conveyed by his mother in her life-time to the defendant Richardt. The litigation took the form of an action to set aside a deed given by the plaintiff’s mother to said Richardt on the 7th of June, 1886, of the house in which she then resided, in the city of Brooklyn, on the ground that, the conveyance'was without consideration, and was procured from the grantor by fraud and undue influence. This -charge presented a question of fact which was tried by the court with the aid óf a jury, and the findings are all in favor of the plaintiff. It is expressly found that the conveyance was without any consideration, and that it was procured by fraud and undue influence on the part of the grantee. These findings are conclusive upon us, as they are not without evidence to sustain them. It further appears from the findings that on the 27th of October, 1886, the defendant Richardt conveyed the property to one Susan A. Austin in consideration of $12,000, which was paid, and about a year thereafter she mortgaged the same to Elizabeth H. Lunt to secure the payment of $9,000, which was advanced on the faith ■of the mortgage.

The subsequent grantee and mortgagee above named were made parties to the action. The court found as to them that they took their conveyances respectively in good faith and for a valuable consideration and that the.action could not be maintained against them, and, so far as concerned them, dismissed the complaint. The court directed a money judgment against the defendant Richardt for the sum of $20,063.22, that being the value of the property at the time of the conveyance to him, with the interest tlicrcon from that date, with annual rests, he being a trustee ex maleficio. The only question of law involved in the case is whether this judgment could properly have been rendered against him upon the findings and pleadings in the case. The relief demanded in the complaint was that the conveyance by plaintiff’s mother to Richardt, and by him to Mrs. Austin, and the mortgage by her to Mrs. Lunt, be declared void and cancelled, and “for such further or different judgment or relief as may bo just.’’

The findings below are to the effect that the defendant Richardt, having procured the conveyance from the plaintiff’s mother by fraud and undue influence and without consideration, conveyed the property to bona fide purchasers, who are entitled to hold the same as against the plaintiff, though he is not. The plaintiff could obtain no relief in the action except as heir of his deceased mother, from whom the conveyance was obtained. He could not proceed in affirmance of her deed and recover damages on account of the fraud, as such an action could be maintained only by the personal representatives of the defrauded grantor. The principle upon which the judgment rendered in this case must rest is that the deed to the defendant being void for fraud and undue influence, the title to the land, as between the plaintiff’s mother and Richardt, remained in her and descended to the plaintiff at her death.

The plaintiff had the right to call upon Richardt to restore to him the property the possession of which had been acquired under a voidable conveyance. But the fraudulent grantee by his own act in conveying the land to a purchaser in good faith and without notice has prevented the plaintiff from recovering the land ; and, under such circumstances, it is but just and equitable that he should restore to the plaintiff its equivalent in money, not as damages, but as a substitute for the land itself. The fraudulent conveyance which the defendant obtained from, the owner o[ the-land enabled him to sell it to a purchaser in good faith, and the money that he received therefor, with the interest thereon, can, for all the purposes of this case, be considered in equity as the land itself. The court could render any judgment in the case consistent with the facts stated in the complaint and embraced within the issue. Code, § 1207; Murtha v. Curley, 90 N. Y., 372.

It is a familiar principle that a court of equity, having obtained jurisdiction of the parties and the subject matter of the action, will adapt its relief to the exigencies of the case. It may order a sum of money to be paid to the plaintiff and give him a personal judgment therefor when that-form of relief becomes necessary in order to prevent a failure of justice and when it is for any reason impracticable to grant the specific -relief demanded. Murtha v. Curley, supra ; Van Rensselaer v. Van Rensselaer, 113 N. Y., 208, 214; 22 N. Y. State Rep., 947; Bell v. Merrifield, 109 N. Y., 202, 207; 14 N. Y. State Rep., 796.

Had the defendant Richardt retained the property embraced in the deed to him by Mrs. Valentine he would be required, under the findings in this case, to restore the same to the plaintiff. He conveyed it, however, to a purchaser in good faith and received its value in money. A court of equity has the power to com-pcl him to pay this money and its accumulations to the plaintiff in place of the land, and to this end a personal judgment was proper.

The judgment should be affirmed, with costs.

All concur, except Ensrcii and Gray, JJ., absent.


author: Earl, J.

text:
    George E. Beakes et al., Resp’ts, v. Luiz A. Da Cunha, as Ex’r, App’lt.

      (Court of Appeals,

      Filed April 14, 1891.)

    1. Guaranty— Consideration.
    One K., son-in-law of defendant’s testator, had been dealing with plaintiffs who did business under the firm name of George E. Beakes. Upon-security being demanded, the deceased went with K. to see one of the-plaintiffs, and executed a guaranty whereby he became responsible to. “ George E. Beakes, Esq.,” for all milk sold to K. Held, that, asthere was-evidence sufficient, though slight, to show that defendant’s testator at the time he executed the guaranty knew that plaintiffs were doing business under the firm name of George E. Beakes, and intended that the guaranty sh -uld be for the benefit of the firm, it became a continuing guaranty, and the supplying of the milk was an abundant consideration to uphold it.

      2. Same—ÍTotice.
    The guaranty required notice to be sent to the guarantor monthly, if payment for the previous month’s goods had not been made. Held, that notice by mail was such as all the parties contemplated and intended at the. time the guaranty was executed.
    In November, 1886, the plaintiffs as co-partners were dealers in. milk in Delaware county under the name of George E. Beakes, and Ohestér L. Ketcham was a retail dealer in milk in the city of

      “New York, November 30, 1886.

      George E. Beakes, Esq. :

    1 hereby agree to become responsible for all the milk you may send to Chester L. Ketcham on his order, and I require of you a notice on the 20th of each month if payment for the previous month’s milk has not been made by that time.
    Charles Gedhey.”
    In reliance upon this guaranty the plaintiffs shipped a large -quantity of milk to Ketcham in the city of New York during the remainder of the year 1886 and the year 1887, and at the end of the latter year there was due from Ketcham to the plaintiffs on ■account of the milk so shipped $2,240.24 being the balance up-paid for milk delivered to him during the months of October, November and December, 1887. Gedney died on the 30th day of December, 1887, leaving a last will and testament in which the defendant was named executor. The will was admitted to probate and letters testamentary thereon were issued to the defendant, and the plaintiffs having presented to him as such executor a -claim for the balance due for the milk, and the claim having been disputed by the defendant, it was by agreement of the parties and with the approval of the surrogate, referred to a referee and tried before him. He reported in favor of the plaintiffs for the amount claimed. The defendant upon a case made ■and settled moved at a special term that the report be vacated and set aside, and the plaintiffs moved for the confirmation thereof. The report was confirmed and judgment having been -entered thereon the defendant appealed to the g'eneral term where it was affirmed, and then he appealed to this court.

      E. H. Benn, for app’lt; Richard L. Sweezy, for resp’ts.

       Affirming 35 N. Y. State Rep., 564.

   Earl, J.

The written guaranty upon its face appears to be for the benefit of George E. Beakes, individually, and not for the benefit of any firm, and hence the defendant claims that the plaintiffs as co-partners cannot have the benefit of the guaranty, and his counsel relies upon the case of Barns v. Barrow, 61 N. Y., 39. But this case is clearly distinguishable from that. There was evidence sufficient, although quite slight, to show that the defendant’s testator at the time he executed the guaranty knew that the plaintiffs were co-partners doing business under the firm name of George E. Beakes, and that he intended that the guaranty should be for their benefit. He knew that the milk which Ketcham had been receiving came from Sidney Center, Delaware county, and that that which he intended to receive after the execution "of the guaranty was to come from the same place, and the guaranty was intended to cover that milk, by whomsoever shipped. The busi • ness was carried on in the name of George E. Beakes, and the guaranty was intended for that business and to secure the payment o£ the milk shipped in that business to Ketcham. We cannot disturb the- finding of fact upon this point in favor of the-plaintiffs, and must, therefore, hold that the guaranty is available to them.

It is further claimed on the part of the defendant that the notice required by the written guaranty to be given on the twentieth of each month was not in fact given. Where any statute or the terms of any contract require notice to be given, and there is. nothing in the context of the statute or the contract or in the circumstances of the case to show that any other notice was intended, a personal notice must always be given. But the context or the circumstances of the case may be such as to show that a personal notice was not intended, and in such a case a notice by mail, which is the ordinary mode of giving notices in business transactions, is. authorized. Here Gedney lived in the city of New York, and this business was transacted in Delaware county, where the manager of the business resided, and it cannot be supposed that the parties had in contemplation a personal notice to be served in the city of New York on the twentieth of each month of any default in payment for the previous month’s milk.

The exigencies of the case were not such as to require such a notice, and it cannot he supposed that the parties intended it. A notice by mail would accomplish all the purposes which the guarantor had in mind in requiring it, and the acts of the parties show that they understood that was the kind of notice to be given. The evidence tends to show and authorizes the finding that the notices by mail were given as required by the guaranty on the-20th of each month, and that Gedney received them, making no complaint at any time that they were sent to him by mail, or that he did not promptly receive them, or that he was entitled to personal notice. Taking the circumstances of the case into consideration, and the conduct of the parties, it is quite clear that the notice by mail was such as all the parties contemplated and intended at the time the guaranty was executed.

The further claim is made on the part of the defendant that th& guaranty is not upheld by any sufficient consideration. Previous to the execution of the guaranty Ketcham had been receiving-plaintiffs’ milk through the Milk Exchange, some sort of a corporation or association existing in the city of New York. It is inferable that Ketcham desired to engage in dealings directly with the plaintiffs, and that he procured the guaranty in order that he might have future credit with them. This was a continuing guaranty intended to secure credit to Ketcham, and on the faith thereof the plaintiffs shipped milk to him and gave him credit, and thus under all the authorities there is abundant consideration to uphold the guaranty. Church v. Brown, 21 N. Y., 315 ; City National Bank v. Phelps, 86 id., 484; Rector, etc., v. Teed, 120 id., 583; 31 N. Y. State Rep., 908.

Ketcham was called as a witness on the part of the plaintiffs, and lie gave evidence of conversations which he had had with the-testator, and the defendant objected that he was not a competent-witness to prove such conversations. He was not a party to this action, nor was he interested in any way therein. There is no dispute about his liability to the plaintiffs, and if the defendant should he compelled to pay this judgment, his liability would then be transferred from the plaintiffs to the defendant, and would be no less than it was before. He could not, therefore, be excluded as a witness under § 829 of the Code.

During the progress of the trial various exceptions were taken on. the part of the defendant to the rulings of the referee upon questions of evidence. We have carefully scrutinized them all and do not think any of them point out material error. We will notice but one. While George E. Beakes was testify, ing as a witness on the part of the plaintiffs, for the purpose of showing that he had mailed notices, as required by the guarantv, to Gedney on. ■ the 20th of each month,' he was asked this question : Will you state whether or not it has been your custom to be at home on the 20th of every month?” This was objected to on the part of the defendant as immaterial and irrelevant, and the objection was overruled. The precise form of the question is undoubtedly open to criticism; but the meaning of the question is quite apparent. What the plaintiffs were seeking to learn by this -inquiry was whether he made it a rule, or made-it his business to be at home on the 20th of every month for the purpose of transacting the business required to be done at that time, and such an inquiry was certainly unobjectionable.

The very satisfactory opinions delivered by the referee and at the general term - render it unnecessary that more should be written now.

The judgment should be affirmed, with costs.

All concur, except Finch and Gray, JJ., absent.


author: Ruger, Ch. J.

text:
    The People ex rel John Davidson et al., Resp’ts, v. Edward Gilon et al., Assessors, App’lts.

      (Court of Appeals,

      Filed April 14, 1891.)

    1. Municipal coepobations—Assessments—Hobse bailboads—Repaving OB STBEET.
    Street railroads are not, as a matter of course, benefited by repavement of the streets through which they are laid, and if they are not so in fact, théy cannot he assessed with the expense of such improvements.
    2. Same.
    Under the provisions of the charter of the city of New York, a street railroad- is not liable to he assessed for repaving, even though it was benefited thereby.
    3. Same—Appeal.
    The question as to whether the street railroad was benefited by such repavement is one of fact to be determined by the assessors, and cannot be reviewed by the general term in the absence of any evidence on the subject.
    Appeal from judgment of the supreme court, general term, first department, reversing decision of board of assessors making assessments on property of relators, for expense of paving Madison avenue, New York.

      D. J. Dean, for app’lts; Truman II. Baldwin, for resp’ts.

       Reversing 33 N. Y. State Rep., 838.

   Ruger, Ch. J.

This is an appeal from a judgment of the general term in certiorari proceedings, reversing an assessment made by the board of assessors, upon the ground that they omitted to assess the tracks of the New York & Harlem Railroad Company for a share of the expenses incurred in repairing Madison avenue in the city of New York. The proceedings were instituted under the provisions of the Code, and the facts appear in the return made by the board of assessors to the certiorari. It appears therefrom that the relator was the owner of a house and lot on Madison avenue, subject to assessment for the expense of repaving such street, and the railroad company was the owneijof a double track surface horse railroad in the same street. The re-pavement was constructed of granite blocks laid over the face of the entire street, including the space between the railroad tracks.

It is claimed by the relator that the railroad was benefited by the improvement, and, for that reason, should have been assessed for a share of the expense in making it. No evidence was given by him showing the benefit received by the railroad from such improvement, and the case was heard before the general term upon the return of the defendants certifying that the railroad acquired no benefit by the repavement of the street.

The questions presented are, first, whether the railroad was liable, under the charter, if benefited, to be assessed for the expense of the improvement, and, second, whether the general term was authorized to determine that it was so benefited and reverse the ■opposite finding by the board of assessors and require the imposition of an assessment upon it. The sole authority for making improvements in streets and levying assessments therefor in the city of New York is found in the provisions of its charter, and unless the power of assessing street railroad companies is •conferred thereby, the assessors have no authority to assess such property. The fact that the rails, ties and tracks of a street surface railroad are property and subject to taxation generally affords no ¡sufficient reason for taxing them for street improvements, unless the law has made them specially assessable for such purposes.

The scheme of the charter of New York, and of municipal corporations, generally, in this state, has been to assess the burdens of street improvements, in some form, upon the property benefited, and it is upon that theory that such assessments have usually been justified. It cannot be said, we think, as a matter of •course, that street railroads are benefited by repavement of the streets through which they are laid, and if they are not so, in fact, it -would be contrary to the general policy of the law to tax them with the expense of such improvements. It is the general custom of municipal corporations, in granting privileges to railroad •companies to occupy streets, to impose terms as a condition to the exercise of such right, and such 'conditions are "undoubtedly lawful and may be enforced in some form for the benefit of the municipal corporation making such grants. These conditions frequently refer to repairs upon the streets, or contributions to the public treasury in lieu thereof, and, when imposed, usually define the right of the corporation to levy taxes and the limits of the liability of the railroad corporation to pay them.

In the case of Gilmore v. City of Utica, 121 N. Y., 561; 31 N. Y. State Rep., 880, it was held that the private owners of property fronting on a street in said city have no vested right, or claim, de jure, that a railroad company lawfully operating its road in the street shall repair or bear the expense of repairing it In that case the city charter specially authorized the common council to require street railroads to repave between their tracks and at least two feet on each side thereof, when the common council deemed such re-pavement necessary; but it was held that this provision was directory, merely, and that an assessment upon the - lot owners for the expense of a repavement was not. erroneous because it omitted to assess the property of the street railroad therefor. Ho such provision is contained in the charter of Hew York, or the law authorizing street railroads therein, and a solution of the first question must, therefore, be found by an examination of the provisions in the charter relating to the powers of the municipal authorities in respect to local improvements and assessments. If the power of making such assessments is not found in the charter, then they do not possess it, for they have no authority on the subject except such as the charter confers upon them. These powers are found in chap. 410, Laws of 1882, in the sections hereinafter referred to from title 2, headed “Assessments for improvements, other than opening and closing streets. For -what purposes assessments may be imposed and how." Section 865 states that the board of assessors are “ charged with the duty of making the estimates and assessments required by law for building wells, erecting pumps, pitching, paving, regulating and repairing streets, relaying pavements, constructing sewers, fencing vacant lots and public slips and all other improvements directed by corporation ordinance, for which an assessment may be made.” By § 868, it is provided that “ all assessments hereafter imposed for local improvements in said city shall be made by the board of assessors ” upon certificates of the expense thereof, made to it by the head of the department charged with the execution of the work and of the comptroller, certifying the interest of installments advanced or payments made on account of such work, and continues that “ thereafter the said board of assessors shall assess upon the property benefited, in the manner authorized by law, the aggregate amount of such certificates.” By § 878 it is made lawful for the mayor, aldermen and commonalty to cause street improvements and an estimate of the expense thereof to be made and a “just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefited thereby in proportion, as nearly as may be, to the advantage each shall be deemed to acquire.” These provisions are simple and unambiguous, and if it was deemed desirable for any reason to extend their operation, there seems to be no fonndation for a construction which should authorize a departure from the plain signification of the language of the statutes. The owners and occupants of houses and lots are obviously benefited by improvements in the streets on which they reside, and which add to the value of their property, and increase the comfort and convenience of living in such localities, and are, therefore, properly subjected to the expense of making them. Others may be benefited by such improvements; but their interest is generally so remote, uncertain and indefinite, that it has not usually been regarded as liable to be taxed for such purposes. This is plainly indicated by the provisions of the charter relating to the enforcement of the collection of such assessments, and making them liens upon houses and lots alone. And a further indication is found in the sections defining the persons who may petition for such improvements, and the safeguards' thrown around assessable property to protect it from excessive valuation. • Sections 870, 878. These privileges are conferred upon the owners and occupants of houses and lots alone.

In pursuance of these provisions the common council required the work in question to be constructed, and ordained, “that the board of assessors be and they are hereby directed to make a jus1; and equitable assessment of the expenses of conforming to the provisions of this ordinance among ihe owners and occupants of all the houses and lots intended to be benefited thereby in proportion, as nearly as may be, to the advantages which each may be deemed to acquire.4 In accordance with this requirement the assessors imposed upon the owners and occupants of houses and lots on the line of this improvement its entire expense. The general term, upon the assumption that the railroad company was benefited by the re-pavement in question, and that all persons benefited were liable to assessment, have reversed the determination of the assessors, and required them to make a new assessment, imposing a part of the expense upon the railroad company.

We think this decision finds no support in the provisions of the charter. Property like that in question has been for a long course of years exempt from assessment for local improvements in New York, and no reason is perceived for now making a change in their practice.

By §175 of chap. 86 of the Laws of 1813 it was provided that it shall be lawful for the city authorities to pave the streets and lay “ a just-and equitable assessment thereof among the owners and occupants of all the houses or lots intended to be benefited thereby, in proportion as nearly as may be to the advantage which each shall be deemed to acquire.” Under this act assessments for street improvements in New York were made from the time of its enactment until the passage of the consolidation act in 1882. These provisions were substantially re-enacted in that act, and • since that time the charter has been the measure of the authority of the assessor of New York in making assessments of property for the payment of the expenses of street improvements. During ■a period of nearly eighty years these statutes have been practically construed "by tlio municipal authorities to authorize assessments for sucli purposes to be .imposed upon the owners and occupants of houses and lots alone. For a large portion of this period surface street railroads operated with horses have been in use in the city of New York and have not been made liable to the payment of taxes for street improvements, either by the laws of their creation or by the charters of that city as construed by the municipal authorities, and they have not hitherto been supposed to be subject to such taxes and have not been taxed therefor. The authority derived from this cotemporaneous construction of the charter is entitled to great weight and should not be lightly disregarded.

The departure from this long-continued practice, contemplated by the judgment appealed from, is attempted to be justified by a reference to the provisions of §§ 868 and 899 of the charter, which, it is claimed, authorize an assessment for such expenses upon all property benefited thereby. It is. argued that the language of these sections authorizes such an inference and that an assessment which does not embrace such property in its estimate is erroneous. A careful reading of these sections fail to show, we think, any warrant for the inference attempted to be drawn from them. Section 868, as we have before seen, provides that when the expenses of the improvements shall be certified that “ thereafter the said board of assessors shall assess upon the property benfited, in the manner authorized hy law" the aggregate amount of such expenses. The construction of this section adopted by the court below is that it authorizes a tax for local improvements upon any and all property benefited thereby, ignoring the limitation imposed upon the authority conferred by the use of the qualifying terms “in the manner authorized by law.” This section does not purport to define the subjects to be assessed, except in general terms, and refers to other provisions for the mode in which such assessments shall be made. We are thus thrown back upon the express provisions, hereinbefore referred to, to determine the mode required to be pursued in making such assessments. That mode is provided by the subsequent section (878) specifically defining the property liable to assessment It would seem to follow that this section is not an authority for the proposition contended for.

Neither do we"think § 899 can be construed as enlarging the subjects of taxation for street improvements. That section is found under title 8, entitled “Vacating and Modifying Assessments.” This section, after defining certain omissions, irregularities and defects in assessments, provides that their existence shall not be sufficient reason for vacating or setting such assessments aside, and continues by providing that “ all property in said city benefited by any improvement or other public work * * * shall be liable to assessment for such improvement or work, and all assessments for any such improvement or public work shall be valid and binding, notwithstanding any such omission, irregularity, defect in authority or technicality.”

It will be seen that this provision is general in its terms and is used in connection with a subject not pertaining to the purpose of this inquiry. The law makers were then treating of the causes which should invalidate assessments after they were made, and not of the power intended to be conferred upon the municipal authorities in making them. That subject had already been specially dealt with in § 878, and treated with particularity and detail by express provisions, and it is not at all probable that the law makers intended to reopen the question and introduce a new class of subjects for taxation by the indefinite language contained in this general provision. They had already expressly defined the property which would be benefited by local improvements and was liable to assessment therefor, and it is unreasonable to suppose that they intended by this provision to confer an uncertain and indefinite power upon the municipal authorities to tax all and any property for the expense of an improvement which might, possibly be benefited by it.' Owners and occupants of houses and lots on adjoining streets, the traveling public generally and real estate owners in the vicinity may reasonably be supposed to derive benefit from an improvement in their neighborhood; but it cannot be said that it was intended by the provision in question to require their taxation for the purpose of defraying its expense. Settled rules of construction subordinate general expressions used in a statute to the specific provisions on the same subject; for it is said that “ in covenants and laws that are in other respects equal, that which is particular and applicable to the present case takes the place of that which is general. ” Potters’ Dwarris on Statutes, 134; Sedgwick on Statutes, 360. The reasonable construction of the sentence quoted is to apply it, therefore, to such property only as the statute had previously defined to be benefited, and such as the municipal authorities were permitted by the charter to assess for such improvements.

We also think there was no foundation for the conclusion reached by the general term, that the railroad company were benefited by the improvement in question. The burden of showing that such property was liable to assessment lay upon the relator,, and unless he caused it to appear in some way from the record that it was benefited, no error affirmatively appeared in the record. The court below assumed this fact and based their assumption, as appears in their opinion, upon the circumstance that the pavement between the tracks afforded a foot path for the horses employed on the railroad and warranted an inference that it was,, therefore, benefited thereby.

It seems to us that this inference is not well founded. It is doubtless possible to conceive of a case where such a pavement might be of benefit to a horse railroad company,' but we do not think that it can be said to be so generally, or even in any case unless exceptional circumstances make it so appear. The fact whether certain property is benefited by a particular improvement in a street depends upon the peculiar circumstances surrounding the property, which may exist in one case, and be absent, in another, and these can be made to appear only by evidence of such circumstances. This information is not contained in the case, and could not be made known to an appellate tribunal except by evidence. There is no claim in the case but that the. previous pavement between the rails afforded the railroad company a good track for its horses, or that any reason existed why they should wish to make a change. The suggestion made in the opinion below that a solid stone track was necessarily an improvement upon any other track for horses is, I think, unwarranted by observation or experience; but, however this may be, the question was one of fact, to be determined by the board of assessors, and could not be reviewed in these proceedings by the general term in the absence of any evidence on the subject. The board of assessors have returned that the company was not benefited by the improvement, and we are bound to assume that that board performed its duty, and reached that conclusion after inquiry and an inspection of the property proposed to be assessed. Such board is, by the charter, made the exclusive judge (subject to review by the board of revision) of the property supposed to be benefited, and the extent of such benefit, and their determination of such question, cannot be reviewed upon certiorari, except for errors of law. Section 2140, Code of Civil Procedure. They had the power to assess upon their own knowledge and judgment, after an inspection of the property, and, in the nature of things, that knowledge and the grounds of their determination could not be reproduced before an appellate tribunal in such manner as to enable a legal review thereof to be had. Matter of Cruger, 84 N. Y., 619; The People v. McCarthy, 102 id., 630; 2 N. Y. State Rep, 546.

For the reasons stated the order of the general term should be reversed, and the writ dismissed, with costs.

All concur, except Finch and Gray, JJ., absent


text:
    The People ex rel. D. Willis James et al., Resp’ts, v. Edward Gilon et al., Assessors, App’lts.

      (Court of Appeals,

      Filed April 14, 1891.)

      D. J. Dean, for app’lts; Truman H. Baldwin, for resp’ts.

       Reversing 33 N. Y. State Rep., 842.

   Ruger, Ch. J.

This case does not differ in any material respect from that of the People ex rel. Davidson against the same defendants, and is, necessarily, determined by the conclusions reached in that case.

The order of the general term should be reversed and the writ dismissed, with costs.

All concur, except Finch and Gray, JJ., absent