text:
    In the Matter of the Application of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY, Respondent, to Acquire a Crossing of the BUFFALO, NEW YORK AND ERIE RAILROAD COMPANY, and the NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellants, over their Railroad in the Town of Erwin.

      Raib'oad crossing — the style and pattern of the “ crossing frogs” must he definitely , . fixed hy, the report of the commissioners.

    Upon the application of the petitioner, which sought to acquire the right to cross the road of the appellants, commissioners were appointed to appraise the damages and fix and determine the line, grade and manner of the crossing. Their report provided, as to the manner of crossing, that it should be the duty of • the petitioner to insert and place crossing frogs at the points of intersection of its tracks with the tracks of the appellants’ road, “ the said crossing frogs to be of a material, style and pattern approved by the engineers, both of the petitioner’s and repliants’ railroads, having charge of the division of the said railroads in which the said crossing is situated; and in case the said engineers do not agree in respect to such material, style or pattern, the undersigned commissioners will decide the question on the request of either engineer.”

      Reid, that as the portion of the report relating to the material, style and pattern of the crossing frogs was too indefinite and uncertain to .admit of enforcement by a judgment of the court, the report should he set aside.
    Appeal from the appraisal and report of commissioners appointed at Special Term to fix and determine the line or lines, grade or grades, and to fix the manner of the crossing of the railroad of the Buffalo, New York and Erie Railroad and the New York, Lake Erie and Western Railroad Company, by the railroad of the New York, Lackawanna and Western Railway Company, and the compensation to be paid therefor, and also from an order of the Special Term affirming such report.
    Tiie petitioner’s road, as located, proposed a crossing of the appellants’- road at grade. The commissioners in their report established the crossing at the place proposed by the petitioner and at grade. The ownership of the road proposed to be crossed was in the Buffalo, New York and Erie Railroad Company, but the same was operated by the New York, Lake Erie and Western Railroad Company, under a lease which transferred the management and gave possession of the entire route to the lessee for a number of years. The compensation awarded to the lessee for- the additional expense incurred in operating its road in consequence of the crossing, was $5,000, and for the use and occupation of the land used, by, the petitioner, $350 was awarded to the lessee and ten dollars to the lessor.

      David O. Robinson, for the appellants.

      J. MoGuire, for the respondent.
   Barker, J.:

The petitioner in locating its road proposed to cross the appellants’ road at grade, making a curve at the place of crossing at an angle of about twenty-five degrees. The commissioners in' their report adopted the place of crossing and did not change the curvature as established by the petitioner in its survey. The report sufficiently and satisfactorily provides for. signals, their location and management. As to the manner of crossing, the report provides that, “it is and shall be the duty-of the said, The New York, Lackawanna and Western Railway Company, to insert and, place - crossing frogs at the points of intersection of its tracks with the tracks of the Buffalo, New York and Erie Railroad and the New York, Lake Erie and' Western Railroad ; the said crossing frogs to be of a material, style and pattern approved by the engineers both of the petitioners and repliants’ railroads, having charge of the division of the said railroads in which the said crossing is situated, and in case the said engineers do not agree in respect to such material, style or pattern, the undersigned commissioners will decide the question on the request of either engineer.”

The said petitioner shall forever keep and maintain the said frogs and crossing in good condition and repair, and renew the same whensoever necessary, all of which construction and repair shall be at the sole expense of the said last mentioned company, and the said company shall insert the said crossing frogs with as little hindrance of the said railroad as shall be compatible with the safety of the setting and construction and with good workmanship.”

One of the objections made by the appellants to the confirmation of the report is, that the ^portion of the' report relative to pattern and material of the frogs to be used is indefinite, uncertain, and that the same cannot be carried into execution as, if adopted, the judgment of the court. By subdivision 6, section 28, of the general act under which these proceedings are conducted (chap. 140 of 1850; amended, chap. 583 of 1880), it is provided that “ every company whose railroad is, or shall be hereafter intersected by any new railroad, shall unite with the owners of such new railroad in forming such intersections and connections and grant the facilities aforesaid, and if the two companies cannot agree upon the amount of compensation to be made therefor, or the line or lines, the grade or grades, points and manner of crossing and connections, the same shall be ascertained and determined by commissioners, one of whom must be a practical civil engineer, to be appointed by the courts, * * * and said commissioners shall have full power to determine whether the crossing or crossings of any railroad, before constructed, shall be beneath, at or above the existing grade of any such railroad, and upon the route designated upon the map of the company seeking the crossing required to be filed by section 22 of this act, or otherwise.”

That portion of the report objected to, as not disposing of one. of the questions referred to the commissioners, demands serious consideration, as the question involved is one of practical importance to the appellants, and it is also one m which the public are largely-interested. When intersecting railroads cross each other at grade, a piece of mechanism, called by engineers and railroad men a frog, must necessarily be used in securing a safe and convenient crossing. This is recognized by the commissioners and concurred in by all.

The objection made to this part of the report is, that it does not determine and pass upon a material and important question necessarily involved in determining the material of which the frogs are to be made, and the style and pattern of their construction are left undetermined. To this extent the manner of crossing is left undecided. Without frogs in some form, or some other appliance which will serve as a safe substitute, there cannot be any secure or proper crossing constructed. The, officers and engineers representing the respective companies failed to agree on the mode and manner of making the crossing, and because of this disagreement these proceedings were instituted and the matter referred to the commissioners, and the style of the frogs and the material of which they are to be constructed were referred to the commissioners for their inspection and determination. The provision of the order remitting the question in controversy back to the engineers of the respective companies for their negotiation and-agreement is an evasion by the commissioners of a duty imposed upon them by statute. After the petitioner invoked the aid of the law, and applied to the court for its interposition in establishing the mode and manner of crossing, the appellants were relieved from all obligations to .attempt' by negotiations with the petitioner to agree upon those matters over which they were in dispute. The appellant may now properly demand that the law and its officers shall settle and adjust the matter in controversy, and that the same be finally determined in these proceedings. Suppose the engineers, after an effort to agree upon the form of the frogs, fail to' agree, then what is to be done to settle the controversy? The commissioners foresaw the situation the parties would be in in that event, and sought to provide for it by reserving to themselves the right to reconvene and resume the functions of their office and dispose of the question. This they cannot legally do as the statute is now enacted. When the commissioners made and filed their report all their powers and functions were ended, unless the court, on a proper application, referred the matter back to them for further action.

The petitioner, on its own motion, and in opposition to the objections interposed by the appellants, secured a confirmation of the report in all respects, and the court has adopted the report of the commissioners as its own judgment.

In case of a disagreement between the engineers of the respective companies to settle the undetermined question between themselves, either, under the order, should apply to the commissioners to interpose ; when, where and under what kind of notice will the commissioners reconvene ? Will they be required > to take further evidence on the subject if any is offered by either party? 'These queries are best answered by a statement of the law applicable to the case, that they have no power to reconvene and act as commissioners for any purpose. In disposing of the point we can say no more than this, the commissioners intentionally omitted to decide .upon one of the important matters submitted to them in which both parties, as well as the public, are interested, and for that reason their report ought not to have been confirmed. If it had been provided in the report that one or the other of the parties should have the right and privilege of selecting the frogs to be used, leaving the choice of material and pattern to such party, that would have been, in a sense, the decision of the matter; but such a disposition would be highly objectionable for the reason that it would be establishing a mode and manner of crossing which, in essential particulars, would necessarily be without the sanction of the commissioners or the approval of the court.

Where both companies concur in the manner in which the crossing is to be made, then the law does not interfere. Of course the court cannot, in any case, intervene and indicate in detail the character of construction or the mechanical appliances to be used. But when the manner of crossing is to be determined in a judicial proceeding, for the reason that the parties cannot agree, no plan or crossing should be adopted and put in use, which the court, after such an examination of the subject as it is able to make from the report of the commissioners and the evidence taken does not appear to be safe and proper.

It is the purpose of the statute that the report of the commissioners when duly affirmed shall have the same effect as a contract voluntarily entered into between the parties. The duties and acts enjoined upon each, by the report of the commissioners, are in the nature of covenants and may be enforced as such, and damages arising to either party in consequence of a breach of the same would be the basis of a civil action. It is clear, in our minds, that the appellants are right in demanding that the question left open and undetermined by the commissioners, be settled and determined in these proceedings. (In the Matter of the L. and B. R. R. Co., 19 Hun, 38.)

The point is made by the respondent that the order of confirmation made at the Special Term is not appealable, and that this court has no power to review its action, or that' of the commissioners. This court has heretofore held that the right of appeal exists and jurisdiction has been entertained in several cases. (19 Hun, 38, supra; S. C., 77 N. Y., 557.) We do not doubt but that the right of appeal is given by statute. This brings us to the question, whether the whole subject-matter shall be referred back to the commissioners, or only the question as to the form and pattern of the frogs which are to be used in constructing the crossing. It does not appear from the report that the commissioners in their own minds did determine that question, or that they gave it any consideration, and we cannot say how embarrassing and difficult the question may be to those who are competent to institute and determine the same. It is certain that it requires the skill and experience of a practical engineer to determine the question.

Conceding that we have the power to refer back particular questions for the further action of the commissioners, the one left undecided essentially pertains to the manner of crossing, and it may be that the commissioners will be unable to i-eadily dispose of the question, and may find it involved in so much difficulty that a grade crossing would not be, in their judgment, safe and practicable, and would after further inspection deem it best to recommend an overhead crossing. The respondents’ road crosses the existing road on a curve and that is a circumstance which will have some weight, how much we do not pretend to say, in determining which is the safest way to make the crossing.

The order confirming the commissioners’ report is reversed, and the subject-matter referred back to the same commissioners to proceed under the order of their appointment, and until the coming in and confirmation of their report the appellants are restrained and enjoined from interfering with the use of the crossing by the petitioner in the mode and manner in which it is now used by the petitioner with costs and disbursements of this appeal to the appellants.

Haight and Lewis, JJ., concurred; Bradley, J., not sitting.

So ordered.


source: Caselaw Access Project

author: Barker, J.:

license: Public Domain

text:
    MARTIN MASON, Respondent, v. HENRY HACKETT, Appellant.

      Practice — Municipal Oowrtof the city of Rochester — institution of supplementary proceedings therein.

    The provisions of the Code of Civil Procedure relating to proceedings supplementary to execution are not applicable to a case in which the judgment, upon, which the execution was issued, was recovered in the Municipal Court of the city of Rochester, and the damages included therein are less than twenty-five dollars.
    Appeal from an order of the Monroe County Court, denying the defendant’s motion to set aside proceedings supplementary to execution, in an action in which judgment had been recovered in the Municipal Court of the city of Rochester in favor of the plaintiff and against the defendant, for twenty dollars damages and seven dollars and eighty-five cents costs, in all, twenty-seven dollars and eighty-five cents.

      Henry J. Sullivam, for the appellant.

      Chamberlawi c& French, for the respondent.
   Barker, J.:

By this appeal the legal proposition is presented, are the provisions of the Code of Civil Procedure, relative to proceedings subsequent to execution, applicable in a case where the judgment on which the execution issued was recovered in the Municipal Court of the city of Eochester for less than twenty-five dollars damages. We are of the opinion they are not. Transcripts of all judgments rendered in that court may be filed in the Monroe county clerk’s office, and if the recovery therein is for less than twenty-five dollars, exclusive of costs, the judgment is not a lien upon real estate. (Laws of 1880, chap. 14, § 246.) Such is also the effect of the statute relative to filing transcripts of judgments rendered in Justices’ Court. (Code of Civil Pro., § 3043.) All the provisions of this section are applicable to the said Municipal Court, and for the purpose of applying such parts of chapter 19 as are made applicable to that court, the same is deemed a Justice’s Court. (Sec. 3226.)

In section 3043 it is also provided that in case the judgment rendered in Justices’ Court is for a sum less than twenty-five dollars damages, the provisions of the statute relating to the satisfaction of an execution out of the judgment debtor’s real property are not applicable, and that executions issued on such judgments shall not contain any direction to satisfy the same out of the real property of the judgment debtor. Judgment creditors whose judgments are recovered in Justices’ Court, or in the Municipal Court of the city of Eochester, are thus by statute prohibited from attempting to enforce the same out of the real estate of the judgment debtor in all cases where the judgment is rendered for a less sum than twenty-five dollars, exclusive of the costs.

The judgment in this case was rendered in the Municipal Court for a sum less than twenty-five dollars damages, nevertheless the County Court held that the judgment creditor, for the purpose of enforcing its collection, might resort to proceedings supplementary to execution, as provided by chapter 17, title 12 of the Code of Civil Procedure. In this conclusion we think the learned court erred.

In this case the execution was in the hands of .the sheriff at the time these proceedings were instituted, and as the judgment was not a lien upon the real estate of the debtor, there was no execution against property within the sense and meaning of section 2436. The provision there is: At any time after the issuing of an execution against property, and before the return thereof, the judgment-creditor; upon proof by affidavit or other competent written evidence that the judgment debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment, is entitled to an •order requiring the judgment debtor to attend and be examined concerning his property. The word property, as.first used in this section, includes real as well as personal property. As used in this connection, it signifies such property as, by the general law relative to the collection of judgments, may be seized and sold thereon. The' act itself gives a definition of the scope and meaning of the word property, as used therein, and declares that, when used, it .means real and personal property. (Sec. 3343.) The phrase property, when used without qualifying words, embraces within its meaning both real and personal estate. It signifies the right one has in lands, and is universally used in that sense by the learned and unlearned, and by men in all stations of life. When used in last wills and testaments, ■or other instruments of conveyance, it is regarded as a term including all classes of property. (Doe v. Langlands, 14 East, 370; Prescott v. Hull, 17 Johns., 284; Bouvier’s Law Diet., “Property.”)

It is manifest, in view of all the provisions of the statute on this subject to which we have referred, that the word property has a meaning no less general and extensive than is given to it when used in the common speech of the people. It is made a condition to the .granting of, an order in supplementary proceedings that an execution in the first instance shall be issued against property. The question would be free from all doubt except for the amendment made to section 2458 in 1881, which provides, as the same now reads, that the judgment shall not be less than twenty-five dollai’s, including damages and costs. This provision was not intended to change the other provisions of the act that the judgment must be a lien upon real estate, and is susceptible of that construction. The amendment was doubtless made to authorize proceedings after execution on judgments rendered in courts of record, where the same' was a lien upon real estate, and there was no recovery for damages, but was rendered in favor of the prevailing party .for costs., Whenever the proceedings result in the appointment of a receiver, the title to all his real estate passes in trust to that officer, without any assignment of other conveyance by the debtor. (Secs. 2464, 2468.) We think it clear that it was not the intention of the legislature to devote the debtor’s real property to the payment of judgments against him, unless th$y, by the same statutes, became a lien thereon. The statutes relating to supplementary proceedings, and to the sale of real and personal property on execution', are m pari materia, and must be considered together. (Bunn v. Daly, 24 Hun, 520; Wing v. Disse, 15 id., 190.) The order appealed from is reversed, with ten dollars costs of this appeal and disbursements, and the motion to vacate granted.

Bradley and Lewis, JJ., concurred; Haight, J., concurred in the result.

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


text:
    THE FLOUR CITY NATIONAL BANK OF ROCHESTER, Respondent, v. THE TRADERS’ NATIONAL BANK OF ROCHESTER, Appellant.

      ■Certification of a d/raft by the bank at which it is pa/yable — it has the sarnie effect as the certification of a check — custom among banks — a bona fide purchaser is not affected, by it.

    The banks in Rochester were accustomed to settle the balances between themselves daily in cash, or by draft on New York, as the debtor preferred. It had also been customary for a bank at which a draft was made payable, upon presentation thereof by another bank, to certify the same and return it to the bank presenting it and allow the amount thereof in the settlement of the balances of the day. A draft, payable at the plaintiff’s bank on December nineteenth, was on that day there presented for payment by the City Bank of Rochester, and after having been certified as good the same was returned to the City Bank. The City Bank transferred it to the defendant bank in part settlement of the balance due it on that day. The defendant having sought to apply the draft in part payment of the balance due from it to the plaintiff on that day, the plaintiff refused to receive it upon the ground that the City Bank was on that day, and had been on several days prior thereto, indebted to it in an amount exceeding the amount of the draft, and that the said City Bank was insolvent.

      Held,, that the plaintiff was bound to receive the certified draft.
    That the certification of the draft was equivalent to the certification of a check, and the certified draft was a negotiable instrument which did not become due until presented for payment.
    That the expectation of the plaintiff, founded upon the custom of the banks, that the City Bank would return the draft to it the next morning to be used in discharge of its indebtedness, in no way affected the rights of a bona fide purchaser of the draft without notice.

      Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This action was brought to recover the sum of $800 claimed to be a balance due the plaintiff from the defendant on the 19th day of December, 1882. The defendant interposes a counter-claim, founded on the plaintiff’s certification of an acceptance, made the same day, which had come to the defendant’s hand. The parties are national banks doing business in the city of Rochester, in, which place the City Bank of Rochester, a State bank, was. at that time also located and doing business. The cause was tried at the Monroe Circuit, without a jury, and the plaintiff recovered its demand, and from the judgment entered on that decision the defendant appeals.

      ’William F. Cogswell, for the appellant.

      Thomas C. Montgomery, for the respondent.
   Barker, J.:

The plaintiff and defendant in the regular course of banking business, had mutual accounts, called by bankers an exchange account, which was balanced each day, and such balance paid the next morning in cash or by draft on New York, at the option of the debtor bank. Each of these banks kept a similar account with the City Bank of Rochester, but as between the defendant and the City Bank, the balance was paid at the close of each day’s transactions. It was the custom of these banks, in dealing with each other,, when one held a check, note or acceptance, payable at one of the other banks, to present it for payment at siich bank on the day it became due, and instead of receiving payment thereon, have it certified in the form hereafter mentioned by the bank at which it was payable, and for the bank presenting it to hold the same until the balance of the current day’s business was paid and the same was entered in the exchange account at the time of the certification. The case states that a similar custom prevailed among all the banks in the city of Rochester.

The City Bank held a draft drawn by a Boston house on D. Gorden, of Rochester, payable to the order of its cashier, which was accepted by the drawee on the fifteenth day of December, and by him made payable at the plaintiff’s bank, which fell due on the nineteenth of December. This draft was on that day presented by the City Bank to the plaintiff’s bank for payment, and the teller indorsed thereon the customary certification, which was in the following words: “ Certified: J. Thompson, Teller, Flour City Bank,” and returned the draft to the City Bank and charged the acceptor’s account with the amount of the same. On the same day there was a balance due on the daily exchange account to the Traders’ Bank, from the City Bank, of $8,000. Such balance was paid by the cashier of the City Bank during the business hours on that day. And among other things, Cordon’s acceptance, as certified, was taken by the Traders’ Bank in payment. On balancing the exchange account of the same day between the Flour City Bank and the City Bank there was .due to the former from the latter more than $800, and there was a much larger sum due from the City Bank to the Flour City Bank on the .previous day’s balance of the same account. There was due the Flour City Bank from the defendant, the Traders’ Bank, at'the end of the Same day’s business, as the balance of the exchange account between them, more than $800, and the next morning the defendant offered Gordon’s acceptance, as certified, to the Flour City Bank toward the payment of such balance, which was refused and returned to the defendant. This .action is to recover such balance from the defendant.

The defendant sets up in its. answer 'Gordon’s acceptance, as certified by the plaintiff, as a counter-claim. The City Bank did not open for the transaction of business after it closed on the nineteenth, and it was then insolvent and the balance due by it to the plaintiff, as before mentioned, remains unpaid.

The act of the plaintiff in certifying Gordon’s acceptance, and chai’ging.the amount to his account, was in legal effect a payment,, and discharged the acceptor and drawers and the bank became a debtor to the holder for the amount of the same. By the law merchant, the certificate of a bank indorsed on a draft made payable at its counter, that the same'is good is equivalent to an acceptance by the bank. It implies that the acceptor has funds in the bank sufficient to pay the same, and that they are intended to be used for that purpose, and that the bank is authorized to make the application. It is an undertaking on the part of the bank that it will hold such funds for the use of the holder of the paper and pay them over to him on return of the draft. On these propositions, as thus stated, there is no disagreement between the counsel for the respective parties.

The Special Term held that the bank’s obligation, assumed on making the certificate, was not negotiable in the sense of that term, and that its promise was past due when the draft and the certificate thereof was transferred by the City Bank to the defendant.

Accepting these propositions as sound law, the legal conclusions reached by the decision of the Special Term would be correct that the defendant received the draft subject to the offsets and counterclaim existing in' the plaintiff’s favor at the time of the transfer as between it and the City Bank. In these views of the learned judge we are unable to concur; on ,the contrary, we concur with the defendant in its contention that the plaintiff’s obligation, based on the certificate, possesses in a legal sense all the features of negotiability, and was not due until demand of payment and return of the certificate. Therefore the defendant was entitled to offset its claim as holder of the plaintiff’s obligation arising out of its certification,

In considering the nature and extent of the plaintiff’s liability arising out of the certification, it is important to keep in mind that the liability of the original parties to the draft terminated with the making of the certificate, and at the ^ame time the bank’s liability commenced, which is an original one based upon a good consideration moving'from the holder. It is in short a contract partly written and partly in parol, to be enforced according to the intent and meaning of the parties. If the certificate had" been placed upon a check drawn on the plaintiff’s bank by one of its customers, there would be no room for a diffei’enee of opinion as to the nature and effect of the bank’s undertaking, and that the same would not ■mature until after a demand made, and that the same would be regarded as a negotiable instrument in-the commercial sense of the term.

The ■certification by a bank of an acceptance made payable at its counter, by one of its customers, has the same significance, and imports the same obligation on the part of the bank as a like certification of a check drawn on it, and has the same legal effect. In one instance it is an admission that the acceptor, and in the other that the drawer, has money on deposit in the bank, with which to pay the paper when presented for payment, and the bank will retain the money on deposit to pay the holder, and will retain the same on deposit subject to the order of the holder. In the case of The Merchants' Bank v. State Bank (10 Wall., 648), in stating the bank’s liability based upon the certification of a cheek, the court said: It is an undertaking that thé check is good then and shall continue good, and this agreement is as 'binding on the bank as its notes of circulation, a certificate of deposit, payable to the order of the depositor, or any other obligation it can assume. The object of certifying a check, as regards both parties, is to enable the holder to use it as money. The transferee takes it with the same readiness and sense of security that he would take the notes of the. bank. It is available also to him for all the purposes of money. Thus it continues to perform its important functions until, in the course of business, it goes back to the bank for redemption, and is extinguished by payment.” Prior to and subsequent to the decision of this case, the courts of this State had given the same interpretation to the contract of certification, and held the bank’s liability to pay as broadly as stated in the portion of the opinion we have quoted. (The F. and M. Bank v. The Butchers' and D. Bank, 28 N. Y., 428; S. C., 14 id., 623; Meads v. The M. Bank of Albany, 25 id., 143; 2 Daniels on Negotiable Instruments, 254.) In Mead’s case one of the instruments, certified by the bank at which it was made payable, was a note, and the other was a check, and the cdurt held the bank alike liable on each, and, ■as to the note, the court remai’ked: “ The presentation of the note at the counter of the bank on its maturity, for payment, was in the ordinary course of business, and so was the making of the certificate then and there indorsed by the teller, certifying that the same was good. The legal effect and force of such certificate.was that the maker had deposited funds in the bank to meet said note, and that the bank then held the same on deposit for that purpose, and would pay the amount upon request.” In the case now here, the transaction in legal effect was a deposit of the money by the acceptor of the draft with the bank making the certificate, and not a loan in the ordinary acceptance of that, term. This view of the transaction is taken by all the courts. It is a well settled law that, where money is placed on deposit, the depositor is not liable to an action, and the statute of limitations does hot commence to run on his obligation, until after a demand of payment is made in pursuance with the terms of deposit. And such is this case, though it is in the power of the owner of the deposit to make it due and payable at any time, by its own act of making the demanfi. (Munger v. Albany City Nat. Bank, 85 N. Y., 587.)

If the object of the certificate is understood by both parties to be for the purpose of enabling the holder to use it as money, and the transferee may take it with the same sense of security as he could the notes of the bank, it is inconsistent with such views as to the nature and effect of the contract to. say, that it is not negotiable and is due when issued.

We have thus far viewed the case without considering what t^.e effect of the custom of dealing between .the banks has on the legal rights of the parties. We are unable to discern any fact of circumstance connected with the custom which affects the legal rights of the defendant. It paid a full consideration for the certified draft, and it was ignorant of the circumstance that, on the day of the certification, the City Bank was a debtor to the plaintiff, or that the balance of that day’s transaction would leave the City Bank a debtor in a further sum to the Flour City Bank. The expectation and understanding on the part of the Flour City Bank, when pt made the certification that the City Bank would return it the next mQrniug to be used in discharge of its obligations, is not sufficient in and of itself to deprive a holder, taking title through the City Bank, of the protection which it has, arising out .of the circumstance that it was not due and was also negotiable.

The defendant, conceding that it knew the fact that the City Bank paid the balances against it, at the close of each day’s 'transaction, to the plaintiff in certificates of this character, it was still justified in receiving this paper, for it hail no reason to suppose that the City Bank would not, in some proper way, discharge all its obligations to the plaintiff if the balance was found to be against it. Suppose that the City Bank was the agent of the drawer of the draft for the purpose of collecting the same, and on receiving the certificate had returned it to them, can it be said that the plaintiff could offset its balances against the City Bank;and thus deprive the holder of the payment which the acceptor made % The law, by placing upon the plaintiffs obligation the features of negotiability and treating the same as not due until after demand puts an end to the plaintiffs contention.

Judgment reversed, new trial .granted, with costs to abide the event.

Haight and Bradley, J J., concurred.

Judgment reversed and new trial granted, with costs to abide the event.


author: Barker, J. :

text:
    MILLISON A. RIVARD and Others, Appellants, v. ANNA MARIA GISENHOF and Others, Respondents.

      Deed — what words create an estate in fee tail — construction of the word “ heirs ” — IB. S., 732, sea. 3.
    The owner of certain real estate conveyed the same by a quit-claim deed, in which Millison Fisher, his mother, and Louisa F. Harvey, his sister, were named as parties of the second part. By the deed the premises were bargained, granted, etc , “unto said party of the second part, to the said Millison during the term of her natural life, and to the said Louisa F., and to her heirs by George S.' Harvey, her present husband, forever.” By the habendum clause the premises were to be held “to bhe said party of the second part, and the heirs of the said Louisa F. by the said George S. Harvey, her present husband, to the sole and only proper benefit and behoof of the parties of the second part, and the heirs of the said Louisa F. by George S. Harvey, her present husband, forever.’1

      Held, that under the deed the mother took4an estate for life, and that the daughter took an estate in fee tail, which was by virtue of section 3 of 1 Revised Statutes, 722, converted into a fee simple absolute.
    Appeal from a judgment dismissing the plaintiffs’ complaint, in. an action of ejectment, tried at the Monroe Circuit without a jury.
    On the 7th of September, 1858, Augustus N. Fislier was ,tbe owner in fee of the premises in question, and, on that day, in consideration of the sum of one dollar, as expressed on the face of the deed, he granted and conveyed the same by qnit-claim deed, in wbicb Millison Eisber, who was bis mother; and Louisa E. Harvey, who was bis sister, were named as. parties of the second part, and then follows the provisions of the deed in the following words: “ That the said party of the first part, in consideration of the sum of one dollar in band paid by the parties of the second part, the receipt whereof is hereby confessed and acknowledged, has bargained, granted, sold, reraised and quit-claimed, and by these presents does bargain, sell, remise and quit-claim unto said party of the second part, to the said Millison during the term of her natural life, and to the said Louisa F., and to her heirs by George S. Harvey, her present husband, forever.”
    The habendum clause is in the following words: “ Together with all and singular the hereditaments and appurtenances thereto belonging, or in anywise appertaining, and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title and interest, claim and demand whatsoever of the party of the first part, either in law or equity of, in and to the above bargained premises, with the said hereditaments and appurtenances, to have and hold the said premises to the said party of the second part and the heirs of the said Louisa F., by the said George S. Harvey, her present husband, to the sole and only proper benefit and behoof of the parties of the second part and the heirs of the said Louisa F., by Geoge S. Harvey, her present husband, forever.”
    At the time of the execution and delivery of this deed, George S. Harvey, the husband, was alive, but died in the lifetime of Louisa F., his wife. The plaintiffs are the children of Louisa F. Iiarvey, begotten by her husband, the said George S., and were born at the time of the execution of the deed. Millison Fisher and the said Louisa F., both died before the commencement of this action. In her lifetime Louisa F., by warranty deed sold and conveyed the premises to one Frank Gisenhof, under whom the defendants claim title to the premises.
    The Special Term held that Louisa F. under a:id by virtue of the deed took a fee in the land, and that the plaintiffs never had any title or legal interest therein.

      John J. Snell, for the appellants.

      Jacob Spahn, for the respondents.
   Barker, J. :

The only question presented on this appeal is this, did the plaintiffs, as the children in esse of Louisa F. at the time of the delivery of the deed, take a fee in the whole or any part of the lands conveyed. If they did not, then the fee became vested in their mother, the said Louisa F. as the sole owner, and she, by her deed to Frank Gisenliof, conveyed a perfect title, and the defendants being the owners of such title by several mesne conveyances were entitled to judgment in their favor dismissing the plaintiffs’ complaint. All the parties agree that Millison Fisher took a life estate in the premises and acquired no other interest therein. It is therefore unnecessary to consider whether the habendum clause is in any respect repugnant to the premises of the deed, wherein by express terms her interest is described as a life estate.

The plaintiffs’ first position is that, by the terms of the deed, Millison Fislier took a life estate with a remainder in fee to their mother Louisa F., and to themselves as tenants in common. The deed conveys a present estate to those who may be held as the grantees therein and no attempt was made to create remainders. The conveyance is in presentí and an absolute title in the land vested in the parties of the second part on the delivery of the deed. It is argued in behalf of the plaintiffs that, as they were in being at the time of the delivery of the deed, they are among the grantees named therein, identified by and embraced within the words “ and heirs by George S. Harvey, her present hnsband.”

As their father and mother were both living, there were no persons in esse who ánswered to the description of heirs in consequence of the maxim: “ No one can be heir during the life of his ancestor.” (Broom’s Maxims, p. 393.) If, therefore, the deed is susceptible of the construction for which the plaintiffs contend, that it was the intention of the grantor to convey the premises to Louis F., and to them in fee, to be enjoyed after the termination of the life estate in Millison Fisher, it is void for uncertainty so far as those who claim to be included in the term heirs. (30 "Washburn Real Prop., vol. 3, pp. 239, 240.) There is nothing on the face of the deed indicating that the grantor intended by the words and phrases used to include among the grantees the children of Louisa F., then in being. If we could say that and hold such to be the intention of the grantor, then the position of the plaintiffs on this point would be entirely sound. Had the Husband of Louisa F. been dead at the time of the conveyance, then there would be some reason and authority for saying that the word heirs was used as a mere deservptio personarum, and that the grant was to them and their mother as tenants in common. As the husband was alive and no other words were superadded, indicating that after-born children were intended to be embraced in the word heirs, it would be mere assumption on the part of the court to say that the grantor intended to include them, and manifestly so, as there was a prior life estate to be consumed before those to whom the fee was granted could enter upon the enjoyment of the lands.

It is well established that when the grantees in a conveyance are mentioned and described as the children of “A.,” it is sufficiently -certain to make the grant valid, for by the use of that term reference is made to a class of persons in esse,' and they can be identified by proper proof. The case of Umfreville v. Keeler (1 Thom. & Cook S. C. Rep., 486), to which reference is made by the plaintiffs counsel, is not hostile to the views which we entertain on this proposition and is an authority in support of them. In that case the grantor was the mother-in-law of Elizabeth Umfreville, one of the grantees named in the deed, and Almond, her husband, was then living, and the parties of the second part in the conveyance were mentioned and described as “ Elizabeth Umfreville, wife of Almond Umfreville, and her heirs, the children of said Almond Umfreville.” The deed did not contain the ordinary habendum, clause, but purported to be a conveyance of the lands to the “ parties of the second part and their assigns forever.” It was held, as the term ££ heirs ” and children ” were both used in describing the persons to whom the conveyance was made, the word heirs should be rejected as mere surplusage, and the word children be regarded as a term used to embrace a class of persons well known, the court applying the maxim often used in the exposition of deeds and other writings, that “ surplusage does not vitiate that which in other respects is good and valid.” ' (Broom’s Legal Maxims, m. p. 486.) The court held that the true construction of the deed included the children of Elizabeth Umfreville, then in being, and that they took as tenants in common with her. In the opinion the court quotes with approbation this rule as laid down by 'Wasliburne, that “ a deed to the heirs of ‘A.,’ who is alive, is void unless there is something in the deed' itself that shows that by£ heir ’ was meant the children of the person named.” (Vol. 3, p. 20.)

All the works on the law of tenure unite in this proposition, that f rima fade, the word ‘ heir ’ is to be taken in its strict legal sense; but if there be a plain demonstration in the deed that the grantor used it in a different sense, such different sense may be assigned to it. We see nothing on the face of the deed to enable us to sáy that the word heirs was not used in its strict technical sense, and have reached the conclusion that the plaintiffs did not take a title in fee as tenants in common with their mother. The plaintiffs also contend if their first proposition is not adopted by the court as the true construction of the deed, then that their mother took only a life estate and that the fee vested in them; that the word ‘ heirs,’ as used in this deed, should be construed as a word of purchase and not of limitation.

In our opinion, by giving the words used by the grantor their well established legal signification, it becomes manifest that he attempted to create in Louisa F. an estate tail, and by force of the .statute 'it is turned into a fee; The provision is; “ All estates tail are abolished; and every estate which would be a fee tail, according to the law of this State as it existed previous to July 12, 1782, shall hereafter’ be adjudged a fee simple; and if no remainder be limited thereon shall be a fee simple absolute.” An estate tail is an estate of inheritance which instead of descending to heirs generally goes to the heirs of the donees body, or to him and particular heirs of his body. (1 Washb., 87.) That this conveyance at common law would have created an estate tail in Louisa F., does not admit of doubt. But it is contended by the appellants that, as the grant was to Louisa F., and to particular heirs of her body, those begotten by her then husband, it clearly indicates that the grantor used the word heirs as a word of purchase and not as one of limitation. As the father and the mother were then both living and other children might have been-born to them, we think the word heirs was used in its strict technical sense, and would have, if the' law permitted the intent of the grantor to prevail, embraced such after-born children as those entitled to share in ’ the inheritance. The word children in its primary and natural sense is a word of purchase, but the word heirs, and heirs of the body are, in their primary anil natural sense, words of limitation and not of purchase. (Schoonmaker v. Sheely, 3 Denio, 490; In re Sanders, 4 Paige, 293.) Kent says the term heir must, be used as a mere description of one or more individuals, or a new import given to it by superad ded or engrafted words of limitation varying its sense and operation, in order to make it a word of purchase. (Vol. 4, 222.) In this deed no words or phrases are used which can be construed as limiting or qualifying the meaning of the word heirs, so that by fair construction it can be held to be a word of purchase and thereby limit the estate, which Louisa E. took, to a life estate aud give to the children the fee.

In Brown v. Lyon (6 N. Y., 419) lands were devised to Olive Hall, “to have and to hold to the said Olive during her lifu, and then to descend to the heirs of her body, and to their heirs and assigns, forever; ” and it was held that these words would have, but for the statute, created an estate tail, and by force of the statute, the same abolishing all estates tail, Olive Hall, the grantee named, took a fee. So in the case of Schoonmaker v. Sheely (supra), the words used in the habencktm clause denning the estate of the devisee were “ to have and to hold,” describing the lands, “ unto my said son B. during his natural life, and after his decease to his heirs and to their heirs and assigns, forever,” and the same conclusions were reached. That it was the intention of the grantor to create an estate tail in his sister Louisa E. is supported by the following cases: Grout v. Townsend (2 Denio, 338); Vanderheyden v. Crandall (Id., 19); Van Rensselaer v. Poucher (5 Denio, 35); Lott v. Wykoff (2 Comst., 355); Barlow v. Barlow (Id., 386); Seaman v. Harvey (16 Hun, 75); Coe v. De Witt (22 id., 428).

The judgment should be affirmed.

Haight and Bradley, JJ., concurred.

Judgment affirmed.


text:
    JACOB FISHER, Respondent, v. STEPHEN M. CORWIN, Appellant.

      Practice — motion for anew trial on the ground of newly discovered evidence — it cannot he made after an appeal from the judgment.

    Upon an appeal from a judgment for $158 recovered by the plaintiff, the General Term ordered a new trial unless the plaintiff would stipulate to reduce the damages to sixty-one dollars and twenty-five cents. The plaintiff gave the ..stipulation, and the judgment as modified was affirmed. Thereupon the defendant without delay, but after more than four years had elapsed from the time of the entry of the original judgment, moved for a new trial upon the ground of newly discovered evidence.

      Held, that an order denying the motion should be affirmed, without examining as to whether or not the application was a meritorious one.
    ' Appeal from an order of the Monroe Special Term, denying the defendant’s application for a new trial upon the ground of newly discovered evidence.

      John W. BeeMey, for the appellant.

      George Bypsom, for the respondent.
   Barker, J.:

The issues in this action were tried by a referee who reported in the plaintiff’s favor, assessing his damages at $158, on which judg-^ ment was entered on the 8th day of December, 1877. The action was for conversion of personal property. From the judgment the defendant appealed to the General Term, and this court in October, 1881, ordered a new trial unless the plaintiff stipulated to reduce the damages to the sum of sixty-one dollars and twenty-five cents. Thereupon the plaintiff gave the required stipulation, and the judgment as ratified was affirmed. Thereupon and without.delay this motion was made at Special Term.

This motion comes too late, and we all concur that the order should be confirmed without looting into the papers to see if there is merit in the case sought to be established. The defendant by his appeal secured a modification of the judgment to which the plaintiff assented, waiving the privilege of a new trial. It would be a great injustice to the plaintiff to open the issues for a retrial. It is not the practice to grant new trials upon the ground of newly discovered evidence after the judgment has been affirmed upon appeal. No case can be found where it has been done in a common law action. The practice has been, before and since the adoption of the first Code, not to entertain motions of this character after appeal from final judgment. The current of the decisions are not to entertain the motion after the entry of judgment, and it was so held in Jackson v. Chace (15 Johns., 354); Rapelye v. Prince (4 Hill, 125); Sheldon v. Stryker (27 How., 387); Peck v. Hiler (30 Barb., 656); Nash v. Wetmore (33 id., 155); Lawrence v. Ely (38 N. Y., 42).

It is a uniform rule never departed from, requiring all motions addressed to the discretion of the court, in which a party seeks relief through his mistake, inadvertence, surprise or excusable neglect, to be made within one year after its occurrence. (Code, § 724.) ■ This motion is of the same class as those enumerated in that section. More than four years elapsed from the time of the' entry of the judgment to the making of this motion. No judgment can ever stand if this is to be disturbed upon the grounds mentioned in the application.

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

Haight, Bradley and Lewis, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Haight, J.:

text:
    FREDERICK E. WILCOX, Respondent, v. JAMES CAMPBELL, Appellant.

      Covenant to pay mortgages — when it may be enforced by a grantee of the equity of redemption — measwre of damages for a breach of it.

    On February 12, 1877, Jane B. Wilcox owned a lot 187 feet front by 420 feet, deep, upon which were two mortgages. On that day she sold a portion thereof, 107 feet front by 420 feet deep, to the defendant, who by the deed assumed and agreed to pay the mortgages. Thereafter she conveyed the remaining 80 feet, by a quit-claim deed in the usual form, to one Bingham. The defendant having failed to pay the mortgages they were foreclosed and the whole Ft sold. Subsequently Bingham assigned his right of action to recover the damages occasioned by the failure of the defendant to pay the mortgages to the plaintiff, who brought this action thereon.

      Held, that the action could be maintained on the ground that the covenant of the defendant to pay the mortgages ran with the title and passed to Bingham when he purchased, and on the further ground that ^Bingham might be deemed to be an equitable assignee of the mortgages, and as such entitled to enforce the covenant.
    That the measure of damages was the value of the eighty-foot lot, provided that this did not exceed the amount of the two mortgages.
    Appeal from a judgment in favor of the plaintiff, entered in Monroe county, upon the report of a referee.

      J. A. Stull, for the appellant.

      J. db Q. Van VoorMs, for the respondent.
   Haight, J.:

On or about the 12th day of February, 1877, Jane E. Wilcox was the owner in fee and in possession of the lands described in the complaint, located on North St. Paul street, in the city of Bochester, being 187 feet front by 420 feet deep; the same was incumbered by a mortgage running to the Bochester Savings Bank, dated on the 1st day of November, 1874, conditioned for the payment of $3,000; and another mortgage, running to Barton J. Conkling, dated November 9, 1874, conditioned for the payment of the sum of $2,000. A bond, in the usual form, accompanied each mortgage. On the date first above mentioned, Jane E. Wilcox granted and conveyed to James Campbell, the defendant, a portion of the premises, being 1Q7 feet front by 420 feet deep, retaining to herself a strip of land 80 feet wide by 420 feet deep. The conveyance was made subject to the lien of the two mortgages mentioned; and the defendant, Campbell, in and by the covenant in the deed, assumed and agreed to pay ofi: the two bonds and mortgages and the money secured thereby, as a part of the purchase-money for the premises so conveyed to him. Thereafter, and on the 26th day of August, 1878, Jane E. Wilcox, by her quitclaim deed, granted and conveyed to Eucius C. Bingham all her estate, right, title, interest, claim and demand whatsoever, either in law or equity, with the hereditaments and appurtenances, to the eighty-feet parcel so previously retained by her. The defendant did not keep his covenant, and failed and neglected to pay the mortgages, or any part thereof, and subsequently, and on the 10th day of February, 1879, the whole of the mortgaged premises, including the portion conveyed to Bingham, was sold under a judgment of foreclosure made in an action in the Supreme Court instituted by the Rochester Savings Bank to foreclose its mortgage for non-payment. The entire amount realized upon the sale was used in the payment of the mortgage debts. Subsequently, and before the commencement of this action, Bingham, by an instrument in writing under his hand and seal, sold, assigned and transferred to the plaintiff all claims and demands, and all cause and causes of action, which he had against the defendant by reason of his failure to pay off and' discharge the mortgages. Under these facts the referee found as a copclusion of law that the plaintiff was entitled to recover of the defendant the value of the eighty-feet parcel at the time of its sale under the foreclosure judgment.

It is contended on the part of the appellant .that there is no privity of contract between the plaintiff and defendant, and that .consequently the plaintiff cannot’ recover. It first becomes important to inquire as to the nature of the claim that Mrs. Wilcox would have been entitled to enforce had she retained the title of the eighty-feet parcel. When the defendant purchased a portion of the mortgaged premises and assumed and agreed to pay the two mortgages that were liens upon the whole parcel, as between Mrs. Wilcox and himself, he became the principal debtor and personally liable, and the land conveyed to him primarily liable for the amount of the mortgage debts. So far as he was concerned Mrs. Wilcox stood in the relation of surety, and the land that she retained the title of became secondarily liable. If she had been compelled to pay the whole or any portion of the mortgage debts, she undoubtedly would have been entitled to maintain an action to recover the amount so paid, and would have been entitled to be subrogated to the rights of the mortgagees. (Comstock v. Drohan, 8 Hun, 374; affirmed in Court of Appeals, 71 N. Y., 9; Bowne v. Lynde, 91 id., 92; Brant on Suretyship, § 262; Ayers v. Dixon, 78 N. Y., 318.) If the defendant had paid and discharged the mortgages as they matured and became due, the parcel of land retained by her would Lave been relieved from the lien of the mortgages. If, in order to pay and discharge the mortgages, she is compelled to part with the parcel retained by her, she suffers damages and could maintain an action on the covenant.

In the next place it becomes necessary to determine whether or not her right of action passed to Bingham by her quit-claim deed. It will be observed, by the terms of tnis deed, that it conveys all her right, title, interest, claim and demand whatsoever, either in law or equity. After her conveyance it is clear that she loses nothing by reason of the failure of the defendant to pay off and discharge the mortgages, and thus relieve the eighty feet from the incumbrance. She conveys to Bingham w thout covenant, consequently no cause of action on Bingham’s part exists against her. She can maintain no action against the defendant, for the reason that she has suffered no damages, the default of the defendant in payment of the mortgages having occurred after she had parted with her title. If, therefore, any cause- of action exists, it must exist in favor of Bingham, for he is the person who suffers by reason of the non-payment of the mortgages. Under the- deed he took all claims or demands in law or equity that existed in favor of Mrs. Wilcox. The effect of the covenant of the defendant was to pay off and discharge the mortgages which were a lien upon this parcel, and if so, we fail to see why it is not such a covenant as would run with the title. (Torrey v. Bank of Orleans, 9 Paige, 649 ; affirmed, 7 Hill, 260; Russell v. Pistor, 7 N. Y., 171.)

The case of Hart v. Lyon (90 N. Y., 663), is clearly distinguishable. That action was brought to recover one-half of the valué of a party wall, built under a contract of adjoining owners, which provided that one should build, and that when the wall was used by the other, his heirs or assigns, he would pay the former, or his. legal representatives, one-half of the value. It was held, in that case, that “it was the plain import of the instrument that the portion which bound the heirs and assigns should be construed as perpetual, and as a covenant running with the land, while the other, being personal, could not be so regarded.”

We are aware that Andrews, J., in the case of Miller v. Winchell (70 N. Y., 437-440), has expressed a doubt in reference to the covenants affecting the land so as to pass by the conveyance, but the question was not involved in that case, and the learned judge does not pretend to have considered it.

If, however, we are in error in the conclusion which we have reached upon this question, still we are oí the opinion that the plaintiff can maintain his action upon the ground that he has become the equitable assignee of the mortgages and subrogated to the rights of the mortgagees. When the defendant accepted the deed, and by the covenant assumed and agreed to pay the mortgages, the morí gagees had the right to maintain an action against him directly to enforce the terms of his covenant. (Lawrence v. Fox, 20 N. Y., 268; Burr v. Beers, 24 id., 118.) Bingham, by the conveyance to him of the eighty-feet parcel, became the owner of the equity of redemption, and as such had the right after default to pay the mortgages. By so doing he would have become subrogated to the rights of the mortgagees and could have maintained the same action upon the covenant that they could have maintained.

It is true that Bingham did not voluntarily pay the mortgages after default. But he has been compelled to pay them by having his lands sold under the decree in foreclosure; but we fail to see how his equities are changed from what they would have been had he made the payments voluntarily. He has now been compelled to pay the mortgages, or a part thereof. To the extent of the payment made by him he becomes the equitable assignee of the mortgages and subrogated to the rights of the mortgagees, and as-such has the right to maintain the action against the defendant upon Ms covenant to recover the amount so paid. (Sheldon on Subrogation, §§ 45, 14.)

The case of Miller v. Winchell (supra) fully sustains this view of the case. In that case one Parr was the owner of the land, and as such executed a mortgage upon the premises to the defendant. The defendant agreed by parol to pay two former mortgages on the premises, and after deducting the amount thereof paid to Parr the balance-secured by his mortgage. Parr subsequently sold and conveyed the premises to the plaintiff with covenant of warranty subject to defendant’s mortgage. In an action to compel the defendant to pay and cancel of record the prior mortgages, or have the amount thereof indorsed upon his mortgage, it was held that the promise of the defendant to pay the mortgages, being oral, could not pass by the conveyance to the plaintiff as annexed to the land, and that the plaintiff could not recover upon the theory that the defendant’s promise was made for his benefit, as at the time it was made he had no relation to, or interest in, the lands; but it was also held that the mortgagee could maintain an action on the promise of the defendant, and that the plaintiff, on paying the mortgages, would be entitled to be subrogated to the remedy of the mortgagee against the defendant upon his agreement.

Bingham has assigned his cause of action to the plaintiff; the plaintiff, therefore, stands in his place and stead, and is entitled to the same recovery that Bingham would have been entitled to had he been plaintiff herein.

Again, it is contended on the part of the appellant that the referee adopted a wrong measure of damages. We are, however, inclined to think not. The eighty feet parcel yas lost to Bingham by reason of the failure of the defendant to keep his covenant; the loss, therefore, to Bingham was the value of the lot at that time. It is true that in case Bingham had raised the money and paid off the mortgages, he would only have been entitled to recover back the amount of money so paid, and for this reason would not be entitled to recover more than the amount of the mortgages. The amount of the mortgages, however, exceeded the value of the eighty feet parcel, and it does not appear that he was able or could raise the money to satisfy or pay off the mortgages.

Again, it is claimed that the referee erred in rejecting the testi•mony of Eev. Mr. Sproull and Ezra Taylor. Sproull and Taylor were both sworn as witnesses for the defendant. Thé testimony excluded called for the declarations of Mr. and Mrs. W ilcox as to the value of the property in the spring of 1879. Evidence was given tending to show that Mr. Wilcox, the husband of Mrs. Wilcox, acted for her as her agent. It is, therefore, quite possible that this evidence would have been competent in case Mrs. Wilcox was the plaintiff herein; she had, however, sold and conveyed this land to Bingham nearly a year before the alleged declarations in reference to its value were made, and which. were sought to be proved. It is a familiar principle, too well established to be questioned, that the subsequent declarations of a grantor or assignor cannot be given in evidence as against his grantee or assignee.

. Again, it is claimed that the referee erred in excluding the offer of the defendant to show that there were taxes upon the premises which Mrs. Wilcox ought to nave paid, and that because of her failure to pay the taxes the foreclosure action was brought. No defense of the kind was set up in the answer, and we fail to see how the evidence could have been properly received.

The judgment should be affirmed.

Bradley and Childs, JJ., concurred.

So ordered.


author: Haight, J. :

text:
    In the Matter of the Application of the NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, Respondent, to Acquire Lands of ISAAC H. SUTHERLAND, Appellant.

      Appraisals of damages f 'or land taken for a railroad — reversed because of the reception of evidence of benefit to adjoining land — when the error is not owed by statements in the report showing that it was not affected by it.

    Upon a hearing before commissioners appointed to appraise the damages to he sustained by a landowner by the taking of a portion of his land for railroad purposes, and after evidence had been given tending to show that the company proposed to erect a depot in the vicinity, a witness, who owned land adjoining that to be taken, and who had testified that he had some knowledge of the eflect upon the value of land of the location of a railroad depot near to it, was asked, and against the landowner’s objections and exceptions allowed to answer, the following question: “ What, in your opinion, will be the effect of the proposed improvement upon the land proposed to he taken in these proceedings upon the adjoining lands? ” He answered, “ My judgment is that the value of the remaining portion would be advanced. ”

      Held, that the admission of the testimony was an error, under the provisions of the statute prohibiting the commissioners in fixing the amount of the compensation from making “any allowance or deduction on account of any real or supposed benefits which the parties interested may derive from the construction of the proposed railroad, or the construction of the proposed improvement connected with such road, for which such real estate may be taken.”
    That the error in admitting the evidence was not cured by the insertion in the commissioners’ report of the statement, that in fixing the amount of such compensation they did not make any allowance or deduction on account of any real or supposed benefit which the owner or persons.interested might derive from the construction of the road.

      Matter of New York, Lackawanna, and Western Railway Oom/pany (29 Hun, 1) followed.
    Appeal from the appraisal and report of the commissioners, appointed to appraise the damages to be occasioned by the taking of land for the purposes of a railroad, and from an order of the Monroe Special Term confirming the same.

      H. H. Woodward, for the appellant.

      Davy & Ma/urer, for the respondent.
   Haight, J. :

Proceedings were instituted by the respondent for the purpose of acquiring the lands described in the petition for the purposes of its incorporation. The only error which we discover in the proceedings appears in the testimony taken before the coinmissioners. Lucius 8. May was sworn as a witness for the petitioner and testified that he resided at Pittsburg, N. Y.; that his place adjoins the Isaac Sutherland place on the east; that his land adjoins the lands of the Sutherland heirs on the north-west. He then says: “ I have some knowledge of the effect of the value of lands as affected by the location of railroad depots. Q. What, in your opinion, will be the effect of the proposed improvements upon the land proposed to be taken in these proceedings upon the adjoining lands ? ” (Objected to as incompetent and immaterial. Objection overruled, to which ruling counsel for the owner then and there duly excepted.) The witness answered: “ My judgment is that the value of the remaining portion would be advanced.” Evidence had already been given tending to show that the railroad company contemplated locating a depot in that vicinity.

The statute provides that “the commissioners shall ascertain and determine the compensation which ought justly to be made by the company to the owners or persons interested in the real estate appraised by them, and in fixing the amount of such compensation said commissioners shall not make any allowance or deduction on account of any real or supposed benefits which the parties interested may derive from the construction of the proposed railroad or the construction of the proposed improvement connected with such road, for which such real estate maybe taken.”

The rule upon which commissioners should determine the compensation which ought justly to be made by the company to the owner, is well settled by authority. The owner should be awarded the market value of the land actually taken, and in addition thereto the depreciation in the market value of the lands remaining as compared to their former market value. (In the Matter of the New York, West Shore and Buffalo Railway Company, to Acquire Lands of John N. Dudleston, 29 Hun, 609-611.)

The evidence objected to appears to us to be in direct conflict with the provisions of the statute quoted, and was improperly received. The commissioners, in their award, state that in Axing the amount of such compensation, they did not make any allowance or deduction on account of any real or supposed benefits which the owner or persons interested might derive from the construction of the road. It is now contended on the part of the railroad company that because of this statement appearing in the award, that the error in admitting the evidence was cured. The commissioners, however, do not state that they disregarded this evidence or that it had no influence on their minds in determining the amount of compensation which ought to be awarded. This question received ■consideration in this court in the case of the Application of the New York, Lackawanna and Western Railway Company, to Acquire Lands of Samuel E. Raskin (29 Hun, 1-5). It was there held that the presumption is, that all evidence, whether proper or improper, received and retained by a trial court until its decision is pronounced, had its natural effect upon the decision, and that presumption cannot be overcome by any subsequent assertion of the person or persons composing the tribunal by which the decision was made.” It is often the case that commissioners, in determining the compensation which ought to be made to the owner, adopt a wrong basis in determining the amount, and the courts frequently reverse and order new appraisals. We think the court ought not to hold because the commissioners inserted in their report the statement that they had adopted the basis provided by statute in determining the amount of compensation that ought to be made, that it is bound by such statement and cannot correct the error.

The appraisal should be set aside and the order reversed, with costs of this appeal to the appellant, and a re-appraisal ordered before new commissioners to be appointed by the Special Term.

Bradley, Angle and Childs, Jd., concurred.

So ordered.


text:
    SAMUEL McBLAIN, as Assignee, etc., Appellant, v. CHARLES M. SPEELMAN, Respondent.

      General assignment— the assignee acquires title to the property, on its execution cm3 delivery — 1877, chap. 466.
    On September thirteenth a general assignment for the benefit of creditors was made, executed, acknowledged and delivered to the plaintiff, the assignee, who, on that day, signed the assignment and acknowledged his execution of the same in acceptance of the trust. Thereafter, and on September fifteenth, the assignment was duly recorded. The plaintiff took possession of the goods on September fourteenth. On the same day an attachment was procured by creditors of the assignor, under which a levy was made the next day, and prior to the time of recording the assignment, upon goods in the possession of the plaintiff, which were subsequently sold under a judgment recovered in the action in which the attachment was issued.

      Held,, that the title to the goods vested in the assignee upon the execution and delivery of the assignment, and that the title of the assignee thereto was prior to that acquired under the attachment. ■

      Warner v. Jafrary (96 N. Y., 248) followed; Bennie v. Gaige' (24 Hun, 128) overruled.
    Appeal from a judgment in favor the defendant, entered in Yates county upon the decision of the court at circuit, on a trial without a jury. ■ ■

      F. O. Mason, for the appellant.

      Samuel R. Stern, for the respondent.
   Haight, J.:

This action was brought on the part of the plaintiff to recover the value of certain goods, which, it is claimed, the defendant unlawfully took from his possession. The facts are undisputed, and are substantially as follows : On the 13th day of September, 1833, the firm of Rippey & Barnes made, executed, acknowledged and delivered to the plaintiff an assignment of the goods in question,, in trust for the benefit of creditors. The trust was duly accepted by the plaintiff, who acknowledged'the same September 13th,'and on the 15th day of September, 1883, at eleven o’clock a. m., the assignment was recorded in the office of the clerk of .the county, and afterwards and within the time prescribed by statute, the assignee filed his bond, approved by the county judge, and the inventory and schedules required by law. On the 14th day of September, 1883,. the plaintiff,. as such assignee, took possession of the goods and commenced taking an inventory of the property; on the same day the firm of Crouse & Walrath procured an attachment against Bippey & Barnes, and on the following day, between the hours of eight and nine o’clock in the forenoon, the defendant, as sheriff of Yates county, by virtue of the attachment, levied upon and took possession of the goods in question, and subsequently they were sold upon an execution issued on the judgment recovered in the action. The attachment papers were served on the plaintiff on the 18th'day of September, 1883. No application was made by any one to vacate or modify the attachment, and the same remained in full force and effect until the goods were finally applied by sale on an execution issued on the judgment recovered in the action. The court held and decided that the warrant of attachment under which the defendant seized the property in question was a lien paramount to the title of the plaintiff under the assignment; that the assignment did not vest in the plaintiff the title to the property until recorded.

Prior to the passage of chapter 348 of the Laws of 1860, there can be no doubt but that the’ title of the assigned property passed to the assignee upon delivery and acceptance by him of the assignment, and we do not think that this act changed the law in that regard. (Syracuse, B. and N. Y. R. R. Co. v. Collins, 57 N. Y., 641; Brennan v. Willson, 71 id., 502.)

The legislature, by chapter 466 of the Laws of 1877, repealed chapter 348 of the Laws of 1860, and enacted a more complete and perfect law upon the subject, the first section of which provides that the act may be cited for all purposes as the general assignment act of 1877. The second section provides rhat “ every conveyance or assignment made by a debtor of his estate, real or personal, or both, to an assignee for the creditors of such debtor, shall be in writing and shall be duly acknowledged before an officer authorized to take the acknowledgment of deeds, and every such conveyance or assignment shall be recorded in the county clerk’s office of the county where such debtor resided or carried on his business at the date thereof. An assignment by co-partners shall be recorded in the county where the principal place of business of such eo-partners is situated. When real property is a part of the property assigned, and is situated in a county other than the one in which the original assignment is required to be recorded, a certified copy of such assignment shall be filed and recorded in the county where such property is situated. The assent of the assignee, subscribed and acknowledged by him, shall appear in writing, embraced in or at the end of, or indorsed upon the assignment, and before the same is recorded, and if separate from the assignment, shall be duly acknowledged.” Then follow provisions with reference to the making and filing of schedules, giving of bonds, etc.

It is contended on the part of the respondent that all of the requirements of this section must be complied with; that they are prerequisite to the passing of title; that the .assignment must not only be in writing and duly acknowledged, but that the assent of the assignee, subscribed and acknowledged in writing, embraced in or at the end of, of indorsed upon the assignment, shall appear, and the assignment shall be recorded.

In the case of Hardmann v. Bowen (39 N. Y. 196), the plaintiff. claimed title to the property through an assignment in trust for t)re benefit of creditors. The defendant, as sheriff, claimed to hold the property by virtue of a seizure upon an attachment. The assignment was made on the thirty-first of December ; the plaintiff took possession on the following day ; the assignment was not acknowledged by the assignor when it was delivered, but was proved by a subscribing .witness on the third day of January and recorded in the office of the clerk of the county. The sheriff seized the goods by virtue of the attachment on the second day of January. The court held that although the assignment had been executed and delivered to the plaintiff, and he had taken possession of the. goods, that the title did not pass to him for the reason that the statute' required that the assignment should be acknowledged by the assignor,. •and that such acknowledgment was necessary before delivery. This decision was made under the act of 1860, and the court remarks, in answer to the argument, that at common law no acknowledgment was required in order to pass title. That the act was intended to “ introduce a new law in regard to assignments. It requires every assignment * * * to be acknowledged before an officer authorized to take acknowledgments before delivery, and the certificate of acknowledgment to be indorsed upon the assignment. The language is peremptory,” etc.

In the case of Britton v. Lorenz (45 N. Y., 51), Gbover, J., in commenting upon the act of 1860, says that the intention of the .act “was to prevent fraud by setting up fictitious transfers of property claimed to have been made for the benefit of creditors and by such means prevent its application by the course of law to the payment ■of the debts of the owner. Such frauds may be practiced with equal success where it is necessary to resort to intrinsic proof to show the trust for creditors, as when such trusts appear upon the face of the instrument,” etc.

In the case of Rennie v. Gaige (24 Hun, 123), the assignment was executed and acknowledged by the assignor on the 18th day of September, 1877, and its acknowledgment was duly certified by a ■commissioner of deeds on that day. On the following day the assignment was handed to the assignee, who thereupon orally assented to act, and immediately delivered the instrument to the county clerk for record, and on the same day he took possession of the assigned property; after which, and on the same day, the property was seized by the defendant Dunn, as sheriff, under an attachment. Five days thereafter the assignee signed and acknowledged his assent to act as assignee; whereupon the instrument was again recorded in the office of the clerk of the county. The General Term of the Third Department held that the title to the property had not passed to the assignee at the time of the seizure under /the ■attachment, for the reason that the assignee had not accepted the trust in writing as required by the statute. This decision was made under the law of 1877, and the opinion goes to the extent of holding that the assignee must not only accept, but that the assignment must be recorded before title vests in the assignee.

This decision of the Third Department is broad .enough to cover the question we have under consideration, but we are unable to’reach the conclusion.there expressed in reference to the recording. There is no question but that at common law the title passed on delivery, and the rule is well established that acts in derogation of the common law must be strictly construed. We have looked in vain to find any expression in the general assignment act indicating a change of the rule in this regard, This result appears to have been reached in the case of Warner v. Jaffray (96 N. Y., 248), and that decision we regard as controlling upon the question. It is true that in that case it was finally disposed of on other questions, but this question appears to have been raised and discussed and under one view of the case was necessary to be decided.

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

Bradley and Childs’, JJ., concurred.

Judgment reversed and new trial ordered, with costs to abide the event.


text:
    JONAS JOHNSON, Plaintiff, v. LYDIA E. ROGERS and GEORGE W. ROGERS, Defendants

      Deed from, a husband to a wife is void at law — when it will,not be sustained in eguity.

    On September 13, 1862, Abel Easterbrooks, for the nominal consideration of one dollar, executed,and delivered to his wife a deed of certain premises, which was duly recorded. January 15, 1S65, the wife died. January 30, 1865, Easterbrooks conveyed the premises to his daughter, under whom the defendants claim. The plaintiff, an illegitimate son of the deceased wife, brought this action in ejectment to recover the possession of the land.

      Held, that it could not be maintained as an action at law, because the wife could not receive a conveyance of real estate from her husband.
    That it could not be maintained as a suit in equity, because the facts disclosed were not such as to call for the interposition of a court of equity.
    Motion for judgment upon a verdict of the jury in favor of the plaintiff directed by the court at the Steuben Circuit, the exceptions having been ordered to be heard at the General Term in the first instance and judgment to be in the meantime suspended.

      E- O. English, for the plaintiff.

      A. S. Kendall, for the defendants.
   Haight, J.:

Abel Easterbrooks, on September 13, 1862, was the owner in fee and in possession of the lands in question. On that day he executed and delivered to Elizabeth Easterbrooks, his wife, a deed thereof, without consideration other than one dollar as expressed therein, and the same was recorded in the office of the clerk of the-county. Easterbrooks and his wife lived together as husband and wife upon other lands' owned by him until the death of Mrs. Easterbrooks, January 15, 1865. On the 30th of January, 1865, Easterbrooks conveyed the premises in question by deed to his daughter Louisa Smith; The defendants are in possession as grantees under her. The plaintiff was the illegitimate son of' Elizabeth Easterbrooks, and her only heir-at-law. He now brings-this action in ejectment to recover the possession of the premises.. Whether or not Mrs. Easterbrooks died intestate does not appear.

The question presented for our determination-is the validity of the deed from Abel Easterbrooks to his wife Elizabeth Easterbrooks. In other words, can a husband deed to his .wife ? The authorities-are conflicting and leave the question in doubt. In the case of Meeker v. Wright (76 N. Y., 262), the argument of Danforth, J.,. would seem to support the deed, but his opinion was- not concurred in by a majority of the court. In the case of Thompson v. The Commissioners, etc. (79 N. Y., 54-63), the plaintiff at the time of the execution of the mortgage was the owner in fee of one-third of the premises. She subsequently received a deed from her husband of the other two-thirds. It was held that the defendants were-not in a position to raise the question as to plaintiff’s right as grantee of her husband; and Miller, J., in concluding his opinion, says : Under recent legislation the husband has a right to convey to his wife,” citing the case of Meeker v. Wright (supra). In the case of Bertles v. Nunan (92 N. Y., 152), Earl, J., in delivering the opinion of the court, says that the common-law disability of husband and wife, growing out of their unity of person, to convey to each other still exists.

Inasmuch as the determination of this question was not necessarily involved in the case of Bertles v. Nunan, we must regard the question as unsettled by the Court of Ap’peals and consequently open for consideration in this court. At common law neither husband nor wife could convey to each other for the reason that in law they were regarded as one person. It thus becomes a question as to how-far the unity of person between husband and wife has been abrogated by the statutes upon that subject. And in construing these statutes we must bear in mind the rule that statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language of the statute absolutely requires.

Section 3 of chapter 200 of the Laws of 1848, as amended by chapter 375 of the Laws of 1849, is as follows: “ Any married female may take by inheritance or by gift, grant, devise or bequest, from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property, and any interest or estate therein,.and the rents, issues and profits thereof, in the same manner and with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband nor be liable for his debts.”

Under this statute the married female may take and hold property, real and personal, by inheritance, gift, grant, devise or bequest from any person other than her husband. The words “ other than her husband ” leaves her without power to take from him other than that which she before possessed at common law. This statute does not purport or intend -to abrogate the unity of person farther than to prevent the disposal of the wife’s property by the husband, or of making the sazne liable for his debts. Under this statute, the disability of the husband and wife to take lands by conveyance from each other, has been expressly held in the case of Winans v. Peebles (32 N. Y., 423) and White v. Wager (25 id., 328). But it is contended that this statute has-been subsequently amended, and that consequently these authorities are no longer applicable.

The, first act bearing upon the question is that of chapter 90, Laws of 1860, the first section of which provides that the property, both real and personal, which any married woman now owns as her sole and separate estate, that which comes to her by descent, devise, bequest, gift or grant, that which she acquires by her trade, business, labor or service carried on or performed on her sole and separate account, etc., shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, etc.

Section 2 of the act provides that she “ may bargain, sell, assign and transfer her separate personal property and carry on any trade or business, etc., on her sole and separate account.”

Section 7 provides that she may “ sue and be sued in all matters having relation to her property, which may be her sole and separate propertj’-, or which may hereafter come to her by descent, devise, bequest, or the gift of any person except her husband, in the same manner as if she were sole.”

Section 8 provides that her bargains and contracts in reference to her separate property and that which comes to her from any person except her husband, shall not be binding upon her husband or render him or his property in any manner liable therefor.

There is no provision in this chapter repealing or amending section 3 of the Laws of 1849. There is nothing in the provisions of the chapter which amends or repeals the former act by implication. It is true that the words other than her husband ” do not appear in section 1 of the act; but that section does not purport to give to the married female any other or greater powers to take and hold property than she before possessed. The chief purpose and object, of this later legislation evidently was to empower her to use, collect and invest in her own name her separate property, without' the interference or control of her husband, and to empower her to bargain, sell, assign and transfer the same, and to carry on a separate trade or business of her own. In short the acts of 1848 and 1849 gave to the married female the right to take and hold property in her own name, and the act of 1860 gave her the right to manage it and carry on a separate business, and to sue and to be sued in reference to her property; that it was not the intention of the legislature to amend section 3 by striking out the words “ other than her husband,” we think is clearly apparent from the fact that in sections 7 and 8 the words except her husband ” were still retained.

The next legislation upon the question is by chapter 172 of the Laws of 1862. That act amends section 7 of-the Laws of 1860 by leaving out the words except her husband.” It also amends seetion 8, but retains the words “ except her husband.” Section 3 of the Laws of 1849 is not amended or repealed, and there is nothing in the amendment of 1862 that is in conflict with the provisions of section 3.

It is now argued that because of the amendment of 1862 of section 7, leaving out the words “ except her husband,” that that discloses a legislative intent to abrogate the common-law rule of unity of person to the extent that a husband may now convey real estate directly to his wife. Such, however, does not appear to us to have been the purpose of the amendment. If it was, why should the words have been retained in section 8 of the act, and why is section 3 of the act of 1849 left unchanged? The reason is quite apparent; the section (sec. 7, chap. 90 of ,1860) provided that “any married woman may, while married, sue and be sued in all matters having relation to her property, which may be her sole and separate property, or which may hereafter come to her by descent, devise, bequest, purchase, or the gift of any person except her husband,” etc. Under this provision, while she could sue and be sued in reference to all of the property which she acquired from other sources than her husband, she could not sue or be sued in reference to property that she acquired from him. If, therefore, the husband should, through fraud or conversion, procure money or other property, and then give the same to his wife, the wife would be protected in the retaining of the 'possession of the property, for, having received it from her hnsband, she could not be sued therefor. No matter whether she was authorized to take and hold property from her husband, the effect of the act was to prevent her from being sued. It was to remedy this defect that the act of 1862 was passed, in which the words “ except her husband ” were properly left out of section 7, but still retained in section 8. No other legislation appears to have affected the question. It consequently appears to us that section 3 of the act of 1849 is still in full force, unrepealed, and that the words therein contained, “ other than her husband,” prevent her from taking title by grant of her husband. That this-is so would appear to be the legislative interpretation, for by chapter 472, Laws of 1880, it authorized husband and wife to make partition between each other. If they could previously deed one to the other, then this legislation was unnecessary.

Again, it is claimed on the part of the plaintiff that the deed is good in equity. Without stopping to consider the form of action which he has instituted, we áre of the opinion that the facts disclosed by the case are not such as to call for the interposition of a court of equity.

The case of Hunt v. Johnson (44 N. Y., 27) is the most favorable decision to the plaintiff’s claim to which our attention has been called. The conclusions reached by Hunt, commissioner, have been questioned and criticised upon the ground that the authorities upon which he relies do not sustain the position taken by him. (See 13 Alb. L. J., 110.) But conceding the rule to be as he states it, the wife is not here asking to have the deed to her, upon the nominal consideration of one dollar, established by a court of equity, but her illegitimate son, a stranger to Abel Easterbrooks and his daughter, and if a court of equity will not interfere as between persons standing upon the same meritorious consideration, as between wife and child of the grantor, it will not in favor of a stranger who has no claim upon the grantor for support and maintenance. (Winans v. Peebles, supra; White v. Wager, supra.)

A new trial should be granted, with costs to abide the event.

Childs, J., concurred ; Angle, J., dubitatu/r.

Motion for new trial granted, with costs to abide the event.


text:
    In the Matter of the Judicial Accounting of ASA H. BAKER, as Administrator with the Will Annexed and Trustee under the Will of CYRUS A. BAKER, Deceased.

      Commissions — right of a trustee, removed during the continuance of the trust, to commissions upon thepn'incvpal.

    The person named as executor and trustee in a will having refused to serve, the surrogate appointed one Baker to act as administrator with the will annexed and as a substitute trustee. Subsequently the letters so issued to Baker were revoked on account of his failure to provide new sureties on his bond in the place of those who had been released upon their application. Upon the accounting Baker was allowed commissions upon the estimated value of the real estate left by the testator.

      Meld, that this was error.

      Matter of Allen (á9 Hun, 7) followed.
    Appeal from a decree of the Surrogate’s Court of Cayuga county awarding Asa H. Baker, as administrator and trustee, full commissions on the estimated value of the real es'tate of wbicb Cyrus A. Baker died seized.

      Frcmk 8. Wright, for Oscar Tryon, appellant.

      Mortimer V. Austin, for the respondent Asa H. Baker.

      8. Edwi/n Day, for the respondent Ellen A. Baker.
   Haight, J.:

Cyrus A. Baker died, leaving a last will and testament in wbicb he named a certain person as executor and trustee. The person so named resigned and refused to serve, the surrogate thereupon appointed Asa H. Baker administrator with the will annexed and successor trustee May 25, 1882. Baker entered upon bis duties as such administrator and trustee, and continued to act until December 26, 1883, when bis letters were revoked by the- surrogate on account of his failure to provide new sureties on bis bond in the1 place of those who had been released on their application. Prior to bis removal be bad bis accounting as administrator and trustee, and on such accounting commissions were allowed him on the estimated value of the real estate left by the testator, which was estimated at the sum of $12,750. Subsequent to- the removal of Baker, Oscar Tryon was appointed administrator and trustee. On the 23d of April, 188é, the new administrator and trustee moved the Surrogate’s Court to open the decree of settlement in so far as it related to the commissions allowed Baker on the real estate. The surrogate thereupon issued citations to the parties interested, and on the return day thereof, and on the consent of the counsel for Baker, ordered that a rehearing be bad and allowed on the merits. After such rehearing the surrogate by another decree ordered and adjudged that the former decree be modified by deducting the sum of two dollars and eighty-one cents therein erroneously allowed, but ordered and adjudged that the sum allowed as commissions upon the real estate be retained by Baker. From this last decree appeal is now taken to this court.

The only question presented for review is as to whether or not the surrogate properly allowed Baker commissions on the estimated value of the real estate. The will of Cyrus A. Baker, deceased, after nominating and appointing an executor and trustee, gave, granted, bequeathed and devised all of his real estate to the executor so named, in trust and for the purposes named in- his will. No question was raised upon the argument but that the surrogate had power, under the provisions of the Code of Civil Procedure, to appoint a trustee possessing the like powers of the trustee named in the will. Under the Revised Statutes, trustees are entitled to the sainé commissions as allowed by law to executors and administrators. Where, however, the person is both executor and trustee in respect to the same fund at the same time, he is entitled to receive commissions in one capacity only. (Hall v. Hall, 78 N. Y., 535.) Was he then entitled to receive commissions as trustee upon the real estate ? In the case of the petition of Allen for leave to resign as trusteee, etc. (reported in 29 Hun, 7), the question of commissions was -the subject of consideration by this court. It was then held that where the trustee petitioned to be relieved from the duties of his trust, before finally executing the same, that he was not entitled to commissions on the capital of the estate. It was also held that, although he had received the capital, the one-half commission given by statute for receiving, could not be allowed him, for the reason that they are allowed only on the accounting when the trust is finished and the fund is to be finally paid over and the trustee discharged. That if, for any reason, the trustee does not perform the duty of his trust, his right to commissions is not complete.

The case under consideration is distinguishable in this regard. Baker was removed oh account of his failure to furnish proper sureties upon his bond, instead of being relieved upon his own request. We are of the opinion, however, that this distinction does not help his claim. When he entered upon his duties as administrator and' trustee, he was aware that the statute and the Surrogate’s Court required him to give and maintain security for the discharge of his duties, failing in this it was the plain duty of the surrogate to remove him. The removal was on account of his own neglect to comply with, the order of the surrogate. He had not completed his trust. Under the circumstances of the case it appears to us that the case of Allen (supra) is controlling and should be followed.

So much of the order as is appealed from should be reversed and the decree of the surrogate modified,'by deducting therefrom the commissions allowed Baker upon the real'estate, with costs'of this appeal, to be paid by the respondent Baker.

Barker, Bradley and Lewis, J J., concurred.

So ordered.