text:
    The City of Gloversville, Resp’t, v. The Johnstown, Gloversville & Kingsboro Horse Railroad Co., Impl’d, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Injunction—Pendente lite.
    The granting or refusing of an injunction pendente lite rests in the sound discretion of the court of original jurisdiction, and its order will not ordinarily be reviewed unless there has been an abuse of that discretion.
    3. Same—Railroads.
    Defendant’s charter prohibited the use of steam power, and restricted it to the power or force of animals. By an agreement in writing the plaintiff _ granted defendant the right to use electricity as a motive power on certain conditions, and it was provided that nothing therein should be construed as acknowledging that the railroad may lawfully build or maintain its road upon the side of the street. In an action for a violation of this agreement in not moving its road to the middle of the street, an injunction was granted restraining the construction of said road on the side of the street during the pendency of the action. Held, that the granting of such injunction was not an improper exercise of discretion and woulq not be disturbed.

      Appeal from an order of the special term containing an injunction pendente lite, restraining the defendant from constructing or reconstructing its road along the side of South Main street, in the city of Glovers ville.

      Baker & Burton, for app’lt; Edgar A. Spencer, for resp’t.
   Mayham, P. J.

The defendant was incorporated by chapter 255 of the Laws of 1874. Section 3 of that chapter provides that The said railroad company is hereby prohibited from using steam as a motive power on said railroad, or from transporting or conveying freight thereon, and is hereby restricted to the business of taking and conveying persons or passengers over the said railroad in street railroad cars by the power or force of animals.”

On the 26th of April, 1892, the relator and the railroad company entered into an agreement in writing, whereby the relator granted the defendant the right and privilege to use electricity as the motive power for the propulsion of its cars, but it is insisted that one of the conditions of the relator’s consent was, that the defendant should remove the location of its tracks in the street of the relator to the middle of Main street, through which the route of the railroad track was constructed, and the relator charges in the complaint, and seeks to establish on the motion for an injunction, and in resisting the application of the defendant for its discharge, that the defendant is about adopting electricity as a motive power without so changing the location of its track, and that such change from animal power to that of electricity, without such change of the location of its route, will work irreparable injury to the relator.

The granting or refusing of an injunction pendente lite is usually in the sound discretion of the court of original jurisdiction, and the order of the special term will not ordinarily be' reviewed, without there has been an abuse of that discretion; and, while it is true that the general term has the power to review and reverse the order of the special term in a case of this character, that power should not be exercised in a doubtful case, when, if the injunction is vacated, the defendant might do acts which would render the final judgment ineffectual, if it should be finally held that the plaintiff is entitled to the relief sought in the action.

By the terms of .the relator’s consent in the' contract of July 5, ' 1883, the defendant was only authorized to lay its railroad tracks under the supervision of the trustees of the village and in the manner to be approved by them, and' it would seem that all the subsequent acts of the parties have been conducted with reference to that reserved right in the village, to which, by the charter, the city on its incorporation succeeded. By the fourth clause of the contract between the parties by which it was agreed that the motive power to be used by the defendant for the propulsion of its cars should be charged from animal to electricity, it is provided that “ nothing herein contained is intended to}> or shall be held to impair, modify, or construe any right or privilege, or claim of either party, except as above expressly provided, or contained, and nothing shall be construed as acknowledging on the part of the city, that said railroad company may lawfully build or continue its road upon the side of the street.”

Without discussing all the questions raised in this case and discussed on this appeal, we think we have gone far enough to show that the granting of this injunction was not an improper exercise of the discretion of the judge, by whom the order to show cause was granted, and that the special term of this court, by which the preliminary inj unction appealed from was granted, being a court of original jurisdiction vested with the exercise of a sound j udicial discretion in granting or refusing injunctions pendente lite, did not so far exceed the just exercise of its discretion as to justify this court on appeal in reversing the order and vacating the injunction. Van Dewater v. Kelsey, 1 Comstock, 533; Paul v. Hunger, 47 N. Y., 469; Calkin v. Manhattan Oil Co., 66 id., 557; Hudson River Telephone Co. v. Watervliet Turnpike & R. R Co., 121 id., 397; 31 St. Rep., 524.

Order for preliminary injunction affirmed, with ten dollars costs and printing disbursements.

Putnam and Herrick, JJ., concur.


source: Caselaw Access Project

author: Mayham, P. J.

license: Public Domain

text:
    Nannie L. Vaughn, Resp’t, v. Mary M. Strong, Adm’rx, App’lt. Thomas S. Vaughn, Resp’t, v. Mary M. Strong, Adm’rx, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Decedent’s estates—Evidence.
    Upon the reference of a disputed claim under the statute, where the issue was whether intestate received the money in question in trust for the plaintiff or in another capacity, it is error to allow a witness to testify, in reference to a conversation with intestate at the time of its receipt, that he was to take it in trust, as this was hut a conclusion of the witness upon the main question in the case.
    Appeals from judgments in favor of the plaintiffs, entered upon report of a referee.

      T. A. Lillie, for app’lt; W. Farrington, for resp’t.
   Mayham, P. J.

Appeal from a judgment entered in favor of the plaintiff upon the report of a referee, on a disputed claim presented to the defendant as administratrix of her deceased husband, Thomas J. Strong, and referred under the statute with the approval of the surrogate of Washington county.

The main contention in this case was whether the intestate received this money in controversy in trust for the use of plaintiff or in some other capacity.

The capacity in which such money was received by him is the vital question in this case. Any essential error in the receipt of evidence on this point cannot be overlooked on this appeal. Viewed in this light I think the question put to the witness Annie Vaughn, and the answer to the same, and the refusal of the referee to strike the same out, on motion of defendant’s counsel, at fol. 33 to 41 in the case, was error for which this judgment should be reversed.

The question allowed, if it did not call for, the conclusion of the witness, and the answer was but her conclusion upon the main question to be found by the referee in the case, as to whether or not intestate received this money in trust. The answer of the witness was:

“ My brother was to take it in trust in preference to Mr. Swift Mr. Swift thought he was capable, as he did a good deal of business, of investing the money to a better advantageand my brother said he thought he was capable of holding this money in trust for these three children, and then he said about the division between the children.”

The defendant moved to strike out so much of this answer to the question as does not give the conversation. This motion was denied, and the defendant duly excepted.

This answer was given under the objection that the witness should only state the conversation.

To another question put by the plaintiff’s counsel as to what was said about Strong (intestate) holding the money, which was also objected to, the witness answered: “ He was proposed to take it in trust for these children.” This answer the defendant moved to strike out as not being a part of the conversation, and as a conclusion, or deduction of the witness, which motion was not granted.

We think that these answers substituted the conclusion of the witness, who manifestly has a strong bias for her children, who were plaintiffs, for that if the court, and allowed her to make her own deductions from the conversation, instead of giving the conversation, and leaving the court to draw the proper conclusion from it.

It was for the witness to give the language used in the conversation, and for the court to pass upon its effect.

This rule is elementary, and is supported by a uniform current of authorities. This rule is well stated in Rice on Evidence, 326, and in Teerpenning v. Corn Exchange Ins. Co., 43 N. Y., 279, Allen, J., says: “ As a rule, witnesses must state facts, and not draw conclusions, or give opinions. It is the duty of the jury or the court to draw conclusions from the evidence, and form opinions upon the facts proved.”

It is true that this rule does not apply in the case of expert testimony. But in such cases the expert testimony is received in the nature of facts from the necessity of the case.

But in the case last cited it is held that the rule above stated should not be extended or enlarged.

This is not a case where the appellate court can see that the illegal evidence did not harm the defendant or affect the result.

It is unnecessary, therefore, to examine the evidence further or pass upon the weight of evidence offered by the respective parties for the purpose of determining the merits of the controversy.

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

Putnam and Herrick, JJ., concur.


author: Mayham, P. J. Putnam, J.

text:
    Nannie L. Vaughn, Resp’t, v. Mary M. Strong, Adm’rx, App’lt. Thomas S. Vaughn, Resp’t, v. Mary M. Strong, Adm’rx, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Decedent’s estates—Costs.
    Where the personal representative of a decedent is justified by the papers in his possession in believing that the claim presented is unfounded, and on two successive trials has succeeded, it cannot be said that he unreasonably resisted the claim or acted in bad faith so as to render him chargeable with costs on a final recovery against him.
    Appeal from order allowing costs against defendant as administratrix in each of the above proceedings.

      C. M. Ingalsbe, for app’lt; D. J. Sullivan, for resp’ts.
   Mayham, P. J.

This is an appeal from an order of a special term of this court, allowing costs against the defendant as administratrix in each of the above special proceedings. The proceedings arose out of claims presented by the plaintiff to the administratrix against the estate of the intestate which were rejected by the administratrix and referred under the statute. On the first trial before the referee the report was in favor of the defendant and from the judgment entered thereon an appeal was taken and the judgment reversed, on the ground of error committed by the referee in the admission of evidence on the trial On the second trial a like result was reached by the referee in favor of the defendant and the judgment entered thereon was again reversed, on the ground of the receipt of illegal evidence. On the third trial the report was in favor of the plaintiff, and on this trial the referee certifies that the claims were unreasonably resisted, and on a motion for costs at special term an order was made allowing costs in each of these cases.

Upon the affidavits used at the special term on this motion and the papers and proceedings on which this motion was made, we cannot agree either with the referee or the learned judge at special term that these claims were unreasonably resisted.

The uncontradicted affidavit of the administratrix shows that she found among the papers of the deceased papers and documents in his own handwriting, from which she had a right to assume that the fund in dispute in these proceedings had been properly disbursed by him in his life time, and that none of the money received by him remained in his hands or estate at the time of his death.

Add to this the fact that on two successive trials two intelligent referees had found that the estate represented by the administratrix was not liable for these funds, and it is difficult to see how it can be said that the administratrix had unreasonably resisted the payment of this claim.

The law seems well settled that an administrator will not be charged with costs for resisting the allowance of a claim referred under the statute where such administrator has acted with reasonable and good faith in resisting the claim although it be finally allowed.

In Johnson v. Myers, Ex’rx, 103 N. Y., 666 ; 3 St. Rep., 655, which arose on a disputed claim, the court in discussing the question of costs against the executor, say : “We discover no trace of bad faith in the defense interposed, but much to j ustify the inquiry and examination which it compelled. For this reason, we think, costs should not have been awarded, and we, therefore, reverse the order appealed from.” And this seems to have been the rule under the Revised Statutes, and has not been changed by the Code. Nicholson v. Showerman, 6 Wend., 554; Pursell v. Fry, 19 Hun, 595; Bailey v. Schmidt, 19 St. Rep., 50; Fredenhurg v. Biddlecome, 17 W. Dig., 25; see, also, Redfield’s Surrogate’s Practice, 529, 530.

Applying this rule to the case .at bar, we do not see how costs, as such, can be charged against the defendant in these proceedings.

But the learned judge in the order allowing costs directs that they shall be allowed the same as though it was an action in the supreme court from the commencement.

In this we think the learned judge erred. Hallock v. Bacon, 45 St. Rep., 489. The reference in this case was a special proceeding, and not an action, and we do not see upon what principle the costs as in ordinary action could be allowed, if. at all. The judgment in which the costs in this order were inserted has been reversed at this term.

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

Putnam, J.

The payment of plaintiff’s claim was not unreasonably resisted, and, therefore, plaintiff should only recover his disbursements. The same rule should govern the granting of costs on reference under the statute as in an action against executors and administrators.. Civil Code, §§ 1835, 1836. Had it appeared, however, that the payment of the claim in suit was unreasonably resisted or neglected, I am not prepared to say that costs could not have been properly allowed under § 3240, Civil Code. It has been suggested that, although a reference under the statute is a special proceeding, § 3240 (supra) does not apply, because, as held in Larkins v. Maxon, 103 N. Y., 680; 3 St. Rep., 642; Birdseye Stat., vol. 3, 2614, 2615, § 317 of the Code of Procedure is yet in force, and that section regulates the award of costs on such a reference. By § 3250, Civil Code, it is provided that the title therein as to costs (including § 3240, supra), shall not affect any provision of any other unrepealed statute regulating the costs in any particular case. But in fact § 317, supra, does not regulate the award of costs in such a case. It is silent upon that subject It merely provides that the prevailing party may recover his referee’s fees and disbursements. It strikes me, therefore, that § 3240, supra, may apply to such a reference, and that when the payment of a claim against a deceased party is unreasonably contested, the court may award costs in addition to the disbursements which the prevailing party is entitled to under the provisions of § 317 of the Code of Procedure.

Herrick, J., concurs.


author: Per Curiam.

text:
    Peter Rice, Resp’t, v. Patrick Daly et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Mortgage—Evidence.
    In an action upon an alleged lost purchase money bond and mortgage, the existence and validity of which were denied, evidence was admitted of payments by one who had, before such payments, conveyed his interest in the property to defendants and had since died. Held, error.

      % Same.
    Evidence of plaintiff as to transactions with and declarations of the mortgagee, since deceased, are inadmissible, in such a case, under § 829 of the Code.
    Appeal from judgment in favor of plaintiff, entered upon findings of the court approving the verdict of a jury, and from order denying defendants’ motion to set aside the verdict and for a new trial.
    The action was to foreclose an alleged lost and unrecorded mortgage.
    The defense was, that no mortgage existed, and that the defendants were purchasers in good faith for full value, and without notice.
    The plaintiff claimed to be the assignee of an alleged lost and unrecorded mortgage, alleged to have been executed by the father of the defendants in April, 1871, to one Samuel Norris, for $2,500. It was claimed that Norris had bequeathed this alleged mortgage to his wife, although no proof of that fact was given, and that she, on the 21st day of July, 1882, assigned it to her cousin, John P. Bice, who, in turn, on the 24th day of July, 1888, had assigned it to his brother, the plaintiff. The mortgage was alleged to have been lost in 1882, before these assignments, by the widow of Norris, who was the executrix of his will.
    The elder Daly, who had purchased these premises of Norris, had, on November 6, 1872, conveyed them to his three sons, Thomas, Patrick, Jr., and William j.
    William J., February 3, 1876, conveyed his undivided one-third interest to the defendants and died in 1885.
    On the trial plaintiff was allowed to give evidence as to an interview between Norris and the defendants and William J. Daly, in which Norris said he was not going to have the mortgage recorded, and that William gave the mortgage to Thomas, who put it .in his pocket. He was also allowed to testify to payments of interest made bv William after 1880.

      G. C. & J. B. Keeler (A. T. Clearwater, of counsel), for app’lt; John R. De Vany (J. Newton Fiero, of counsel), for resp’t.
   Per Curiam.

In this case we think some incompetent evidence was inadvertently received, which may have influenced the result, and hence that a new trial should be granted.

The defendants, Patrick Daly, Thomas Daly and Patrick Daly, Jr., only answered, and it was the issue made by their answers to the complaint and the reply to one of said answers that was tried.

The action was upon a bond and mortgage, the existence and validity of which was disputed by defendants. The plaintiff, against the objection of defendants, was allowed to show that one "William Daly had made payments on said mortgage after 1880. This evidence was important and may have influenced the verdict. We are unable to see how the statement or the acts of William Daly could be held competent against the defendants. No fact was shown upon the trial rendering such evidence proper. It did not appear when this evidence was given what interest, if any, William Daly ever had in the mortgaged premises, except from the statements contained in the answers. But the answers alleged the death of William Daly and that he conveyed to the defendants in 1876, prior to the transaction of the payments on the mortgage which the plaintiff was .allowed to show. Afterwards the deed from William Daly to the defendants, executed in 1876, was read in evidence.

Therefore, when the plaintiff was allowed to show the payments so made by William Daly there was no evidence in the case showing such evidence proper against the defendants, and in fact he being deceased, and having in T876 conveyed his interest in the mortgaged premises to the defendants, the evidence so received was, we think, clearly incompetent.

It was also error to receive the testimony of plaintiff as to the transactions with and declarations of Norris, the deceased mortgagee. The facts so testified to by the plaintiff relate to a personal transaction between the witness and the deceased party against persons in occupation of the mortgaged premises and who presumably (at that stage of the trial when this evidence was so received), and in fact, derived their title or interest in said premises through or under the deceased party. The evidence so received cannot be deemed unimportant and may have had weight with the jury.

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

Mayham, P. J., and Herrick, J., concur.


author: Freedmam, J.

text:
    Jacob K. Hetch, App’lt, v. T. Brigham Bishop, Def't.

      (New York Superior Court, General Term,

      Filed December 5, 1892.)

    Bail—Sufficiency of sureties.
    Defendant was arrested on an order of arrest and gave bail required by the order, the sureties justified before a commissioner of deeds, and a judge approved the undertaking ex parte and defendant was released. XTpon service of the undertaking plaintiff's attorney served notice of exception to the sureties, which was returned because of the aforesaid approval. On motion to compel the receipt of such notice, the motion was denied,

      and. it was ordered that if plaintiff declined to permit the approval of sureties to stand the order of arrest might be considered vacated. Held, error; that the approval was merely formal and did not bind the plaintiff; that he had a right to examine the sureties, and that it was only after such examination and the final approval thereon that the sheriff is exonerated from liability.
    Appeal from order.

      Myer J. Stein, for app’lt; William E. Stillings, for the sheriff, in opposition.
   Freedmam, J.

The material facts to be considered on this appeal are as follows:

The action is for malicious prosecution. On the 26th of May, 1892, the defendant was in the custody of the sheriff under and in pursuance of an order of arrest theretofore granted in the action, which required the sheriff to hold him unless he gave bail in the sum of $1,000. On the day named the defendant did give such bail to the sheriff. The undertaking delivered for that purpose was executed by the wife and the son of the defendant as sureties, who therein claimed that they were permanent residents of the city of Mew York, although they then temporarily resided at Clifton, M. J. Bach of the sureties made an affidavit of justification before a commissioner of deeds in the office of the sheriff. The sheriff thereupon released the defendant from custody.

On May 26, 1892, the undertaking was approved ex parte by a judge of this court. On June 1st the sheriff served a copy of the undertaking upon the attorney for the plaintiff, and upon the same day the said attorney duly served upon the sheriff and upon defendant’s attorney notice of exception to the sufficiency of the undertaking and of the sureties. This notice was returned by the sheriff to plaintiff’s attorney with a notice to the effect that the return of the notice of exception was for the reason that the undertaking, and the sureties thereon, had been approved by a judge of this court before the receipt of the notice of exception. Theieupon, the plaintiff’s attorney, upon an affidavit showing the facts, and alleging that he had not examined the sureties or consented to the approval of the undertaking, that he believed the sureties to be insufficient, and that the defendant would probably escape, and insisting upon his right to examine the sureties, moved that the sheriff be compelled to receive the notice of exception and that the ex parte approval of the undertaking be cancelled. After a hearing this motion was denied and an order entered denying the same and providing, further, that if the plaintiff should decline to permit the approval of the sureties to stand, the order of arrest might be considered vacated. From this order the plaintiff appealed.

This order cannot be sustained. The plaintiff had not waived his right to the examination of the sureties and had proceeded regularly to enforce it. The ex parte approval of the undertaking was not necessary under § 576 of the Code of Civ. Pro., and as it was without any notice to the plaintiff or his attorney, it was, to say the least, merely formal and did not bind the plaintiff.

Under § 577 the sheriff was bound to serve a certified copy of the undertaking upon plaintiff’s attorney, and the latter had ten days thereafter to serve notice that he did not accept the bail Such notice having been duly and immediately given, it became the duty of the sheriff or the defendant, under § 578, to serve notice of justification before a judge .of the court, and under § 580 the sureties should have attended pursuant to such notice for the purpose of justification and submitted to an examination by plaintiff’s attorney touching their sufficiency. The manner of the examination is in the discretion of the - judge, but, if required by the plaintiff’s attorney, the examination must be reduced to writing and subscribed by the bail. It is only upon the conclusion of such an examination that the contested sufficiency of the bail is to be finally determined, and if then the judge finds the bail sufficient, he must, under § 581, annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk, and thereupon, and not before, the sheriff is exonerated from liability. The language of the section last referred to is too plain to admit of dispute.

For the reasons stated, the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted

Gtlderslebve, J., concurs.


author: Dugro, J.

text:
    Frederick L. Degener, Resp’t, v. John T. Underwood et al., App’lts.

      (New York Superior Court, General Term,

      Filed December 5, 1892.)

    New trial—Failure to serve notice oe trial.
    A new trial will not be granted because of a failure to serve notice of trial, where the appellants fail to seek relief by motion to vacate the proceedings before the referee before presentation of their defense.
    Appeal from judgment in favor of- plaintiff, entered upon report of a referee.

      James A. Hudson, for app’lts ; J. E Ludden, for resp’t.
   Dugro, J.

There is authority for the proposition that where a defendant appears and makes defense, a new trial will not be , granted because of a failure to give notice of trial, Younge v. Fisher, 2 Dowl, N. S., 637; Doe d' Antrobus v. Jepson, 3 B. & Ad., 402; Thermolin v. Cole, 2 Salk, 646; see 3 Wait’s Pr., 31 and 397; 2 Eumsey’s Pr., 405 ; but, regardless of this, it is quite certain that the appellants should be held to be debarred from now raising any question as to the service of a notice of trial, because of their loches in not seeking relief by motion to vacate the proceedings had before the referee prior to the presentation of their defense. By the order of July 9th, the clerk was directed to enter judgment as of the 9th day of April, 1891. The judgment thus to be entered was for the sum found by the referee, with interest thereon from April 2d to April 9th, and the costs and disbursements, in all $40.53 less than the amount of the judgment entered by the clerk. The entry of the judgment should be corrected accordingly.

A careful examination of the case discloses no error requiring reversal.

The judgment entered as ordered to be corrected is affirmed, with costs.

Freedman and Gildersleeve, JJ., concur.


author: Clement, Ch. J.

text:
    Mary L. O’Flyn, Pl’ff, v. George A. Powers, Ex’r, et al., Def'ts.

      (City Court of Brooklyn, General Term,

      Filed October 31, 1892.)

    1. Executors and administrators—Sale op real estate—Limitation.
    The statute of limitations is suspended as against a debt due from the decedent to the executor from the time of the death to the first accounting, not only in the proceeding to prove the same, but also in any proceeding or action to enforce it.
    3. Same.
    Plaintiff’s grandmother devised her residuary estate to defendant in trust for her children, with power of sale of the real estate for the purpose of paying off encumbrances, or for any other purpose which, in his discretion, may render it advisable so to do. Defendant accounted for the first time seventeen years after testatrix’ death, and, at such time, a claim in his favor was allowed, and the proceeds of a sale of real estate was directed to be applied thereon. Seld, that the claim was not barred by the statute, and that he had the right, under said power, to sell the real estate for the payment of the balance of said claim.
    Submission of controversy without action.

      W. J. Gaynor, for pl’ff; Fred. Ingraham, for defts.
   Clement, Ch. J.

This case is submitted to the general term, without process, pursuant to § .1279 of the Code, and the facts appear in the printed record.

By § 2740 of the Code, it is provided that, from the death of the decedent until the first judicial settlement of the accounts of the executor, the running of the statute of limitations against a debt due from the decedent to the accounting party is suspended, but that, after the first judicial settlement, the statute begins again to run against the debt. This section was passed in lieu of § 37 of chap. 460 of the Laws of 1837, as amended by chap. 594 of the Laws of 1868. By § 37, the proof of the claim of an executor or administrator could be made, .either on the return before the surrogate of a citation for that purpose, or on the final accounting, and the statute of limitations was not available as a defense, provided the same was presented at the accounting, and providing the claim was not barred by statute at the time of the-death of the testator or intestate. In the Matter of Ryder, 129 N. Y., 640; 41 St. Rep., 557. The claim of Mr. Powers was allowed on the first judicial settlement of his accounts on April 14, 1890, and such allowance was affirmed by the court of appeals. In the-Matter of Powers, 124 N.Y.,361; 36 St. Rep., 347. Judge Bradley, in that case, says, “ The contention that it was not within the legislative contemplation that the suspension of the statute of limitations should be continued beyond six years succeeding one year after the granting of letters testamentary or of administration, has no support in .the plain language of the provision above-mentioned.’’ While Judge Bradley limits the application of his decision to the proceedings in the surrogate’s court, yet his associates held that the proceeds of sale of real estate made as late as 1883, and before the claim was proved, should be retained on account of said claim. If the executor could retain such proceeds, it would seem that he had. a right to sell other property to realize the balance. Section 2740 reads, that the running of the statute of limitations against the debt is suspended from the death to the first judicial settlement, and we think that it means the debt, not only in the proceeding to prove the same before the surrogate, but also in any other proceeding or action wherein the claim is sought to be enforced.

We doubt if an executor could institute proceedings for the sale of real property for the payment of debts until he had proved his claim on a judicial settlement of his accounts. This is not the rule in the case of other creditors, as they may proceed without a judicial settlement. The latter clause of § 2740 is suggestive of the idea that the statute°of limitations is suspended as to all proceedings. If the object of the section was to suspend the statute only for the purpose of proving the claim against the personal property, it would be inferred that the executor had realized all that could be collected prior to the judicial settlement, § 2514 of Code, subd. 8; '§ 2729, and it was not necessary to add to the section that, after the first judicial settlement, the statute begins to run against the debt. Judge Bradley said, on the question whether Mr. Powers could apply the proceeds of sales óf land to the payment of his debt, “ The power was given to the executor to sell for any purpose which, in his discretion, should render it desirable so to do. This placed it within his power to make sale when, in his judgment, it was required to pay debts, taxes or other expenses within his trusts, and to the extent by him deemed necessary for such purpose; subject, however, to the qualification that some permissible occasion existed for the exercise of his discretion in that respect.” We have already noted that one sale was made in 1883, more than three years after the granting of letters, and ten years after the death of Mrs. Macomber, and when the debt of Mr. Powers had outlawed but for the provisions of § 2740. The decision of. the court of appeals on the question of the application of the proceeds of sale was made substantially on the same briefs as in this case, and seems to us to be an adjudication on the questions submitted, and we place our decision solely on the authority of that case.

Judgment in favor of the defendant, George A. Powers, as executor, that he has power under the will of Sarah Macomber to make the sale and conveyance in the submission referred to, and may make the samé and convey a good title in fee thereby, and that said sale shall be specifically performed, with costs to defendant, George A. Powers, executor, to be paid out of the estate.

Osborne and Van Wyok, JJ., concur.


author: Osborne, J.

text:
    Michael Moylan, Resp’t, v. Nickels Davids, App’lt.

      (City Court of Brooklyn, General Term,

      Filed December 14, 1892.)

    Masteb and servant—Negligence.
    While plaintiff was engaged in unloading a boat for defendant by means of tubs raised and lowered by an engine, he was injured by the fall of a tub. It appeared that the tub fell by reason of the blunder of a stable-' man while he was being instructed by defendant’s engineer in the method of operating the engine in obedience to defendant’s orders. Held, that this was not one of the risks assumed by an employee, and that the question of negligence was one for the jury.
    Appeal from judgment in favor of plaintiff, and from order-denying motion for a new trial.

      Thomas S. Moore, for app’lt; George G. Reynolds, for resp’t.
   Osborne, J.

Defendant was the proprietor of a coal yard on Gowanus canal, and boats loaded with coal for defendant wer& brought up the canal to the dock at his yard, to be unloaded. In unloading, the coal was shoveled into large tubs lowered into the hold of the boat; there was a small engine on the dock, the rope used for hoisting the tubs wound around a drum on the engine and went up through a block on a derrick, and then down to the tub, to which it was attached by a hook. When a tub was filled, a signal was given to the engineer on the dock, who started the engine, and the tub was hoisted to a platform elevated above the dock. The coal was there dumped into cars and carried away, and the tub was then again lowered to be filled; this hoisting and lowering was regulated by levers or handles on the engine.

On October 6, 1891, plaintiff was employed by the defendant, together with one Tynan, to unload a canal boat, and they descended into the hold to shovel the coal into tubs, two of which were used, and the practice was to fill one while the other was being hoisted, emptied and relowered. Plaintiff had filled his tub, and it was in the act of being hoisted to the elevated platform when it suddenly fell, striking the plaintiff and injuring him severely, and plaintiff in this action seeks to recover damages for the injuries so received.

It appeared from the testimony of the witness Tynan, called on behalf of the plaintiff, and who saw the tub fall and the incidents connected with its fall, that defendant had in his employ one Gustave Bohnsack, as engineer, whose business it was to manage-the engine in such a way as to raise and lower the tubs; defendant also had in his employ an old man named Coyle, as a stable-man. Tynan further testified that, at the time the tub in question fell, Coyle had hold of the handles or levers of the engine, and was trying to hoist, and that, Bohnsack, the engineer, stood right behind him “ partly in a position so as by touching him by the arms to help him to hoist; * * *" he was instructing him to do this ‘ up and up ’; they used to let it go up, and when he said ‘ up, up ’ he raised it up gradually, you know, until it got so high, over our heads like; then he says to him let go,’ that was to let it go up, and ho turned around to let it come down; when he said let it go,’ that is, to go up, the old man turned it the other way, raised the other one; that let it down ; that is how it came right down ; at that time the old man (Coyle) had hold of the engine. * * *

“ Q. By the Court: How long had this old man been running the engine ? A. That was the first of my ever seeing him take hold of it, the time he got hurt.”

It thus appeared that the plaintiff was seriously injured while in defendant’s employ by the falling of the tub, and that the tub fell through the blunder of a stableman while he was being instructed by defendant’s engineer in the method of operating the engine in obedience to defendant’s orders. We are of the opinion that the case thus presented was sufficient to call upon the defendant to rebut, if he could, the legitimate inference of negligence which a jury would be justified in drawing from the evidence adduced. Accordingly, the motion to dismiss was properly denied, and the exception to such denial was not well taken.

It appeared from the defendant’s testimony that about two months prior to the accident he had told his engineer, Bohnsack, that it would be necessary, and that he wanted him to break in one or two of the other men so that they could run the engine when necessary, or when Bohnsack was absent, and defendant mentioned his brother and Coyle as the men that he wanted to have broken in. Bohnsack testified that, in accordance with the aforesaid directions which defendant had given him, he had called in Coyle just before the accident for the purpose of instructing him how to operate the engine, and his account of how the tub came to fall was as follows : “ As soon as the boy what was holding guy sung out for to go ahead, and we went ahead, and I was standing right behind Coyle and had my hands on his hands, and I thought that the top [tub (?)] was clear; I said a little more,’ and he must have just raised his right hand up a little, and, of course, down the tub came; I had my hand on his, stood behind him; T was in the act of instructing him ; I did not have my hand over his only so to say that I could guide him.” On cross-examination, he further testified: “ I had my hands on his hands not on his hands, but right behind him, the way that I stood behind him ; he must have made a wrong move in some way which let that down.”

We think that, on the whole evidence, it was the duty of the learned trial judge to submit the issue of the negligence of the defendant to the jury upon proper instructions. The learned counsel for the appellant has strenuously argued that the evidence, at .most, only justified a finding of negligence on the part of a fellow-servant of the plaintiff, for which appellant could not be held liable. We do not think that this contention can be maintained. It is well settled that the immunity of the master from the consequences of the negligence of a fellow-servant only applies when the master has, in the first instance, performed all his duty to his servants. One, and a very material duty of the master, is to employ skilful and competent fellow-servants. It cannot be contended that the stable-man, Coyle, was a skilful and competont engineer, for it plainly appeared that the accident which caused plaintiff’s injuries was due to his ignorance of the proper manner of working the engine. It certainly cannot be claimed that among the risks of plaintiff’s employment was a liability to injury arising in the course of instructing a stable-man how to run an engine. It is to be borne in mind that the evidence shows that the appellant himself directed his engineer to “ break in ” Coyle, so that he could run the engine.

The learned counsel for the appellant further contends that the act of the engineer in attempting to teach Coyle how to operate the engine at the time that he did was an independent act on his part, and that if the engineer was negligent in selecting an improper time to instruct Coyle, it was the negligent act of the engineer, for the consequences of which defendant cannot be held responsible. Conceding, for the sake of the argument, that this contention is a correct one, a complete answer to it is that the jury have found the fact to be otherwise. In- the course of his charge, the learned trial judge instructed the jury as follows: “ In order to find that Mr. Davids was negligent, you must decide that the engineer was careless in what he did, and that the engineer was, at the time, acting for Mr. Davids, because, if the engineer was acting on his own account, Davids would not be responsible for his acts. * * * If he (the engineer) was not acting for the' master, or under his direction, then Davids, tli" master, would not be responsible for the act of the enginev ¡ Under these instructions, the jury found for the plaintiff. j '

Certain exceptions were taken by the learned counsel for tl ' defendant to the refusal of the learned trial judge to charge as requested, but none of them seem to us to call for any special attention. The law applicable to the case, as laid down by the learned trial judge to the jury, covered the whole case, and was quite as liberal, we think, to the appellant as the case would warrant.

We are of the opinion that the judgment and the order denying motion for a new trial should be affirmed, with costs.

Van Wyck, J., concurs.


author: Finch, J.

text:
    The City of Rochester, Resp’t, v. William L. Quintard, App’lt.

      (Court of Appeals,

      Filed December 13, 1892.)

    1. Municipal corporations—Bonds—Constitution, Art. 8, § 11.
    The city of Rochester, containing over 100,000 inhabitants, is not precluded by the provisions of § 11, art. 8, of the constitution from issuing water bonds to the amount of §1,700.000 at four per cent and payable in fifty years, as its existing indebtedness and the newly authorized bonded debt does not reach ten per centum of the assessed valuation of the real estate of the city subject to taxation as it appeared by the roll's of the last preceding assessment for state or county taxes.
    2. Same.
    There is no restriction as respects city purposes put upon cities having the requisite population, except where their debt has already reached the maximum limit or has grown so near that the new debt proposed to be created "would cross the fixed boundary and exceed the permitted amount.
    Appeal from judgment of the supreme court, general term, "fifth department, granting judgment for plaintiff upon submission of controversy without action.

      Clark & Sedgwick, for app’lt; C. D. Kiehel, for resp’t.

       Affirming 48 St. Rep., 142.

   Finch, J.

The question involved in this appeal is the proper construction of § 11, article 8, of the constitution, and arises upon the following state of facts. The city of Rochester is shown to have had over one hundred thousand inhabitants at the date of the issue of the bonds, the validity of which is questioned; and at the same date had an existing indebtedness, which together with the newly authorized bonded debt did not exceed or even reach ten per centum of the assessed valuation of the real estate of the city subject to taxation as it appeared by the rolls of the last preceding assessment for state or county taxes. The legislature passed an act, chap. 358, Laws of 1892, authorizing the city to issue its bonds to an amount not exceeding $1,700,000 at a rate of interest not greater than four per cent and payable in not more than fifty years, in order with the proceeds to improve and extend its water supply. The city issued a part of the authorized bonds and put them upon the market at public sale to the highest bidder. The defendant bought $300,000 of them at a small premium, but refused to accépt and pay for them upon the ground that the city could not, under the constitutional restrictions, issue the bonds redeemable in fifty years, which was the term of credit Stipulated, but was confined to an issue running but twenty years and accompanied by a sinking fund sufficient to extinguish the debt at its maturity ; and that the act permitting the longer credit was unconstitutional and void. Formal tender of the bonds and demand of payment was waived and the purchaser’s refusal stands upon the constitutional objection alone. An agreed case was made upon which the general term held the •act to be constitutional and the bonds valid. The defendant thereupon brought this appeal.

The first paragraph of § 11, the construction of which is disputed, has no immediate and direct bearing upon the inquiry. It forbids any gift or loan of the municipal money or credit, any ownership of corporate or associate bonds, and the creation of any indebtedness except for county, city, town or village purposes, and except that lawful provision is permitted to be made for the support of the poor. An improvement of the water supply is a recognized city purpose, and a debt to accomplish that object is within the .exception of the first paragraph, and, so far as that is concerned, might be lawfully contracted to any needed amount and upon any term of credit deemed advisable The section then proceeds to put a further restraint upon a certain class of counties and cities in the contracting of debts, even for the permitted county and city purposes. It forbids such indebtedness beyond the amount of ten per centum of the last assessment valuation of real estate for state or county taxes, and makes void all indebtedness incurred in the future beyond that aggregate except as thereinafter provided. There are thus two limitations to the restraint founded upon the amount of existing indebtedness. It applies only to cities having 100,000 or more inhabitants, or counties containing such a city within their boundaries ; but cities with less than the prescribed population and the counties to which they belong are left free to contract any desired amount of indebtedness if only for county or city purposes.

But even as to the cities which are within the restraint relating to the aggregate of indebtedness, an exception is foreshadowed which would permit it to be exceeded and which requires us to look forward to a further permission. Before reaching it, a sentence is interjected which was, perhaps, hardly necessary, but which forbids any municipality whose debt has already reached the prescribed amount from contracting any additional liability until that existing has been reduced below the permitted aggregate. We then reach the exception foreshadowed, which is of a two-fold character, and which is introduced in each of its terms by the phrase “ this section shall not be construed to prevent; ” that is to say, shall not so cover or affect or apply to the two contracts described as to make either unlawful. These are, first, the issue of revenue bonds in anticipation of taxes, provided that they are for amounts actually contained or to be contained m the taxes for the year when such bonds are issued an payable out of such taxes; and, second, the issue of bonds for .,! water supply, provided that their term does not exceed twenty years, and that they are accompanied by a sinking fund. It seems to me quite obvious that the provision as to term of credit and as to sinking fund is part of the description of the excepted contract, and qualifies the exception. It may be paraphrased thus: A city having the prescribed population and debt aggregating the specified per cent shall not add to its indebtedness, except that it may issue certain revenue bonds and needed water bonds, running twenty years, and accompanied by a sinking fund. That is, the permitted aggregate in a city having the prescribed population may be lawfully exceeded for two purposes only; one to anticipate taxes, the other to procure a water supply, but in each case the debt securities must be of the particular and specified character.

The appellant undertakes to pervert the expressed condition of the exception into a primary prohibition, and insists that a correct construction would make it read, that in no case shall water bonds be issued running more than twenty years. But that certainly contradicts the terms of the provision. The constitution puts no prohibition upon cities having less than the specified population, so far as city purposes are concerned. We held that in Sweet v. The City of Syracuse, 129 N. Y., 316; 38 St. Rep., 933, and the proposition is very clear and plain. Hor is there any restriction as it respects city purposes put upon cities having the requisite population except where their debt has already reached the maximum limit or has grown so near to it that the new debt proposed to be created would cross the fixed boundary, and exceed the permitted amount. The conditions must concur to make the prohibition applicable, and when they do concur so that it does apply, then there is the exception that water bonds of a certain prescribed form may still and nevertheless be issued. It would be an extraordinary and indefensible construction to say that a water-debt which the fundamental law so favors and deems of such imperative necessity that it permits it to be contracted even after the safe and prudent limit of debt has been reached should be hampered with restrictive provisions when no other debt existed at all, and there could be no more danger of injurious consequences than in the case of cities having less than the prescribed population.

The obvious theory of the constitutional provision is that the smaller cities of the state needed but one restraint, and that relating to the purpose and occasion of their indebtedness and not to its amount. Such cities were not likely with their smaller necessities to make large loans and contract heavy debts, and so were left without restriction upon amounts or ternis save such as the citizens might themselves impose. But the larger cities with their greater needs and the pressure of much more numerous non-taxpayers, and their swarm of claimants on the public treasury, did need restraint not only as to the purposes of the municipal indebtedness but as to its amount, and so the restriction in that respect also was imposed; and yet to prevent a greater evil which might result and open the door to a necessity of the gravest character,'it was enacted that even that.restraint should-not bar the further issue of bonds for a water supply; but since these would add to a debt already crowded to the extreme limit of prudence and safety, it was provided that such added debt should run for a moderate term of credit and be guarded by a sinking fund so as to reduce to the lowest reasonable point the continuance and menace of the debt already too large.

The city which availed itself of the exceptional permission could do so only upon the conditions which were attached with a view to making the added debt as little harmful as possible. Of course the line between the smaller and larger cities, those which did not and those which did call for a limit of permitted debt, had to be drawn somewhat arbitrarily, and was fixed at a population of 100,000 inhabitants as the most reasonable test capable of application.

There is no ground in the language of the constitutional provision, and no room in the reason which induced it, to give it the construction upon which the defendant rested his refusal.

The judgment of the general term should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    James H. Mullarky, Trustee, Resp’t, v. James Sullivan et al., App’lts.

      (Court of Appeals,

      Filed December 13, 1892.)

    Will—Construction—Children of deceased child.
    Testator by his will devised the remainder of his estate in trust to be divided into six shares, and the income applied to the use of each of six children during each of their lives; upon the death of any child leaving descendants, the descendants were to take the capital of its share; but if any child should die without leaving descendants, then to pay over the capital of such child’s share to the “ surviving brothers and sisters.” Held, that the words “ surviving brothers and sisters” excluded the children of a pre-deceased brother or sister.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment construing the will of James Sullivan.

      Wm. J. Gaynor, for app’its; Albert E. Lamb and Wm. N. Dykman, for resp’t.

       Reversing 44 St. Rep., 482.

   O’Brien, J.

This appeal calls for the construction of the will of James Sullivan, who died in the year 1866. The testator provided that all his real estate should be deemed converted into personalty, and then proceeds to make certain specific devises and bequests to his wife and certain of his children, the validity of which are not in question. The residuary estate was devised and bequeathed to his executors in trust to invest and hold the same in equal shares and to apply the income thereof to the use of such of his children as should survive him “ during the life of each of them severally, and upon the death of each of my said children to pay over the capital of the share of such child so dying to his or her descendants, if any, equally, to be divided between such descendants if more than one, and if any of my said children should die without leaving any descendant, then to pay over the capital of such child’s share to his or her surviving brothers and sisters.” The testator left surviving him six children, and consequently the executors were required by the terms of the will to divide the residuary estate into six equal shares and to pay the income thereof to each of the children respectively. Three of these children have since died, two of them without descendants, and the other leaving two children who are parties to this action. ISTo question seems to be presented by the record as to the disposition of the shares of the first two children who died, but upon the death of the third child, Frances, in April, 1891, without descendants, the question arose whether her share devolved upon her three surviving brothers and sisters or whether the two grandchildren of the testator above mentioned took such share of it as their parent would have taken if living. They are the children of Mary Ann Mullarky, one of the testator’s daughters, who died in 1874.

The courts below have held that the words “ surviving brothers and sisters ” include the children of a deceased sister and that, therefore, the share in question should be paid over to the three surviving brothers and sisters of the deceased child and to the two grandchildren of the testator, the latter to take the share which their parent would have been entitled to if living when the share was released from the trust. The three surviving children of the testator claim the whole share of Frances and have appealed from the judgment. While it is true that courts favor a construction which will permit the children of a deceased, child to take rather than one which will exclude them, 93 N. Y., 295; yet this principle can have no application in a case where the language of the will is plain and where the intention of the testator is so clearly expressed as to leave no room for construction. There is certainly no ambiguity in the language which the testator made use of in disposing of the trust shares to his children in case any of them died without issue. He has declared in the most explicit terms that in sucli event that the share should go to the brothers and sisters of the child so dying, and this disposition necessarily excluded the children of a pre-deceased brother or sister. In ascertaining .the intention of the testator we must give to his words their natural and ordinary meaning, and thus understood the appellants alone were obviously the persons upon whom he intended the trust share to devolve in the contingency which this case presents. In behalf of the grandchildren it is suggested that other parts of the will and the general scheme of the testator indicate an intent that they should take in the distribution of the share of Frances the same part of it as their mother would have taken if living. It is perfectly true that in determining what the testator meant every part of the will must be considered, and that the natural and ordinary meaning of the words of a particular clause may be modified by other provisions.

The testator made certain specific devises and bequests to certain of his daughters for life, then to their descendants, adding: “But if she leaves no issue surviving her, then to my other daughters that may be in life at the time of the death of my said daughter, and the child or children of any of my daughters that may have died, if such there be, taking per stirpes and not per capita.”

There can be no doubt that the testator plainly provided for a different disposition of the remainder in the specific devises and bequests, in case of the death of the life tenant without issue, than that embraced in the residuary clause with respect to the trust share of a child dying without descendants. But in both cases he uses plain and appropriate language to accomplish the purpose he evidently had in view. The difference in meaning and language between the two provisions is so pronounced that it seems to emphasize the different intention which the testator had rather than to furnish an argument in support of the proposition that the intent in both cases was the same. This conclusion cannot be reached without doing violence to language which is in itself perfectly plain. The court below seems to have arrived at the conclusion that grandchildren were included in the disposition made of the remainder in the trust shares on the ground that the words of survivorship referred to the time of the testator’s death. In some cases the words are so construed, but not in a case like this. It is only in the case of an absolute devise or bequest to one and, in case of his death, to another that the words are given such a meaning, and the rule has no application to a case where the first devisee or legatee takes a life estate Vanderzee v. Slingerland, 103 N. Y., 47; 2 St. Rep., 732; In the Matter of N. Y., L. & W. R. R. Co., 105 N. Y., 89; 6 St. Rep., 851; Fowler v. Ingersoll, 127 N. Y., 472 ; 40 St. Rep., 206; Mead v. Maben, 131 Ñ. Y., 255; 43 St. Rep., 167.

Neither the language of the residuary clause nor any provision of the will is in any respect ambiguous. The testator has succeeded so well in expressing his meaning and intention in clear and plain words that there is no occasion or necessity for construction, and the only function that courts can have in such a case is to enforce the will according to its terms.

The judgment should, therefore, be reversed and judgment entered for defendants construing the will in conformity with this opinion, costs of all parties in all the courts to be paid out of the estate.

All concur.


text:
    Daniel C. Hewitt et al., App’lts, v. The City Mills, Resp’t.

      (Court of Appeals,

      Filed December 13, 1892.)

      1. Appeal—Taxation op costs—Code, § 3264.
    Plaintiff having obtained judgment entered the same and taxed his costs without previous notice, and the same day served defendant with notice of retaxation, and five days later the costs were relaxed without alteration. Defendants, eighty days after the service of a copy of the judgment, appealed to the general term. Held, that defendants’ appeal was too late, and that defendant’s motion to dismiss the same should have been granted.
    3. Same—Judgment.
    Where costs are retaxed and reduced upon the retaxation the judgment is not to bo changed, but the amount of the reduction is to be credited upon the execution.
    Appeal from judgment of the supreme court, general term, third department, denying motion to dismiss appeal.

      Edward, P. White, for app’lts ; Z. S. Westbrook, for resp’t

       Reversing 47 St. Rep., 933.

   Per Curiam.

On the 23rd day of May, 1892, the decision of the trial court and judgment thereon in this action were duly filed and entered in the clerk’s office of Montgomery county, the plaintiffs’ costs having been taxed and adjusted without notice. On the same day a copy of the decision and judgment witli notice of the entry thereof were duly served on the defendant. On the same day also a notice of relaxation of the costs was served, and five days later, on the 28th day of May, the costs were retaxed without alteration. The defendant appealed from the judgment to the general term of the supreme court on the 19th day of August, eighty days after the service of a copy of the judgment with notice of its entry. Plaintiff’s attorney immediately returned the notice of appeal as not having been served in time, and thereafter he made a motion at the general term to dismiss the appeal upon the ground that it had not been taken in time; and the motion having been denied he appealed to this court.

The sole ground upon which the learned counsel for the defendant seeks to maintain that his notice of appeal was served in ¿time is that the plaintiffs had procured a re-adjustment of their costs subsequently to the entry of their judgment.

We will call attention to the provisions of the Code bearing upon this point. Section 3262 provides that costs must be taxed by the clerk on the application of the party entitled thereto, and the amount thereof must be inserted by him in the judgment. The next section provides that the costs may be taxed on notice to the adverse party; and § 3264 provides as follows: “ Costs may also be taxed without notice. But where they are so taxed, notice of retaxation thereof must immediately afterwards be given, as prescribed in the last section, by the party at whose instance they were taxed, in default whereof the court must, upon the application of a party entitled to notice, direct a retaxation, with costs of the motion, to be paid by the party in default. The court may, in its discretion, upon the application of a party interested, direct a retaxation of costs at an\r time. Any sum, deducted upon a relaxation, must be credited upon the execution, or other mandate issued to enforce the judgment.”

It appears from these provisions that where costs are taxed without notice to the opposite party the amount of them as adjusted is to be entered in the judgment, and the judgment is to remain unaltered and is final in form and complete. If the costs are retaxed and reduced upon the retaxation, the judgment is not to be changed, but the amount of the reduction is to be credited upon the execution. Here, however, there was no change in the amount of the costs, and even if there had been a reduction of the costs upon the retaxation, the copy of the-judgment and notice of its entry would have been precisely the same as the copy ■and notice served. Under the provisions of the Code, as they now exist, we think there can be no doubt that the appeal was not in time, and the plaintiff’s motion should, therefore, have been granted.

The order of the general term should be reversed, and the motion to dismiss the appeal granted, with costs in this and the supreme court.

All concur.


author: • Finch, J.—The

text:
    The City of Poughkeepsie, Resp’t, v. William L. Quintard, App’lt.

      (Court of Appeals,

      Filed December 20, 1892.)

    Municipal Cobpobations—Poubhkeepsie—Renewal bonds.
    The city of Poughkeepsie is'not precluded by the provisions of its charter from issuing bonds under chapter 536, Laws 1889, in exchange for, or to raise money to pay maturing water bonds, as this is not incurring a new debt but refunding an existing debt.

      Appeal from judgment of the supreme court, general term, second department, granting judgment for plaintiff on submitted case.

      Clark & Sedgwick, for app’lt; C. B. Herrick, for resp’t.

       Affirming 47 St. Rep., 886.

   • Finch, J.—The

The question raised in this case is over an apparent collision between the terms of the charter of the city of Poughkeepsie and the refunding act of 1878. The former provides, § 125, chap. 523, title Y, Laws of 1883, that “ the common council shall not have power to borrow, and is hereby expressly prohibited from borrowing, any money on account of the city except as herein provided. The said council shall not create any pecuniary obligations whatever on the*part of the city which shall not be paj'able in the current year and which cannot be discharged from the income of the same year.” This provision, appearing first in the charter of 1854, was repeated in 1874, and has constantly remained as a restraint upon the city. Nevertheless a bonded debt was lawfully created to supply the city with water. That was done, not by an amendment of the charter, but by express legislative permission outside of it granting authority to borrow money for such purpose, Laws of 1867, chap. 333 ; and that permission was given without notice of, or reference to, the section of the charter prohibiting a loan. It operated as a permitted specific exception to an established general rule, and so construed the two acts could be read together without collision or contradiction. In 1878, chap. 75, and in 1889, chap. 526, what is known as the refunding act, was passed, which authorizes in two forms the extension of a bonded debt for a period of not exceeding thirty years, but at a lower rate of interest. This act applies to every village, city or county owing such debt and desiring to extend it through an added period of credit. It applies to all of them without reference to their charters or the acts under which the indebtedness was created, and is an enabling act of which any city may avail itself. The two forms of extension authorized are, first, an exchange of old for new bonds, securing the new credit at the lower rate of interest, and, second, to meet the emergency of a refusal by holders to make the exchange bond for bond, the issue and sale of new bonds, applying the proceeds to the cancellation of the old ones. The city of Poughkeepsie chose the latter course, but is met by a refusal of the purchaser to take the new bonds, upon the ground that it is a borrowing of money prohibited by the charter. It must be conceded that the transaction in form may be a borrowing of money, but in substance it is the very different case of refunding an existing debt.

There is a new creditor, and a reduced rate of interest, but the same old debt. The municipal liability is not increased, but merely suffered to remain; and not a dollar of new or added debt results. The transaction is no different from what it would have been if there had been an exchange of bonds. There, it is conceded, there would have been no borrowing of money, and merely an extension of credit. But the actual result and the contemplated purpose are exactly the same under the second form of refunding as under the first, and I do not think the permission of the enabling act comes into collision with the prohibition of the charter. That prohibition had an obvious purpose and meaning. It was to restrain the creation of a debt, not the extension of one already existing; to prevent a new liability, not to postpone payment of an old one; to shield the taxpayers from the waste and danger of extravagant and needless appropriations, and not to obstruct the convenient and beneficial extension of a proper debt lawfully incurred. Full force and effect can be given to each statute by reading them together, and construing them as if they were contained in one and the same act of legislation. It is our duty to harmonize them if possible, and I can see no more reason for deeming them inconsistent and repugnant than the provision of the charter and the original act authorizing the water debt. It is true that the refunding act is a general act applying to all the municipalities, and that circumstance is urged to show that it worked no repeal of the debt provision of the charter; but no repeal was necessary or intended. Here was in the refunding act a specific permission to do one particular thing granted to all cities, and so given to Poughkeepsie, and that particular intention to allow the refunding of its maturing debt is met by the general intention manifested in the charter not to permit any debt to be contracted at all, and in such a case, if there be inconsistency, the particular intention takes effect as an exception. Hoey v. Gilroy, 129 N. Y., 132 ; 41 St. Rep., 181. But I do not think that the refunding provision is within the spirit or intent of the charter prohibition. The object and purpose of the latter was to prevent something entirely different in substance and effect from that which the refunding act permitted, and the two statutes may be read together, and. each perform its proper office, and accomplish its appropriate duty, without necessary collision or inconsistency.

Nor do we encounter difficulty in the provisions of the charter which point out the mode of payment and the payment itself of a matured debt. They operate only when ultimate payment is required, and have no application when by the extension of the debt its payment is postponed in fact. What may seem payment in form is not so in truth, but a mode of substituting extended bonds for those matured, taking the form of payment solely to compel the substitution intended. I think substance would be sacrificed to form, the intention of one statute be defeated and of the other perverted, if we should construe them as hostile and inconsistent.

.The judgment should be affirmed, with costs.

All concur.


text:
    Isaac K. Cohn et al., Ex’rs, Resp’ts, v. The Metropolitan Railway Co. et al., App'lts.

      (Court of Appeals,

      Filed December 20, 1892.)

    Railroad—Elevated—Damages—Benefits.
    Plaintiff was the owner of a hotel in New York two blocks above the Forty-second street station, and there was conflicting evidence as to whether such station injured or benefited plaintiff’s hotel. The ex-peris also differed upon this point. Held, that all the facts were before the court for its judgment and that the inference of a special benefit was, not so conclusive as to make it an error of law to refuse to find as a fact that plaintiff’s premises were specially benefited by the existence of such station.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term for plaintiff.

      Samuel B. Rogers, for app’lt; A. J. Murray, for resp’ts.

       Affirming 45 St. Rep., 937.

   Finch, J.

The only exception argued on this appeal is to the refusal of the trial judge to find as a fact that the plaintiff’s premises were specially benefited by the existence of the elevated railway station at Forty-second street. It is conceded that the court - correctly decided as a conclusion of law that any benefit resulting from the operation and existence of the railway was to be taken into account in determining whether the plaintiff's abutting property had in truth suffered an injury; but the complaint made is that the refusal to find the requested fact became an error of law since the uncontradicted proof established the existence of such special benefit. We are asked to consider that question in the light of the alleged gross injustice of the award to the plaintiff of about thirteen thousand dollars for damages asserted to exist only in the brain of his expert; and our attention is drawn to the fact that the plaintiff has been offered for his property and has refused nearly double the value which his expert put upon it. If the amount of the award was subject to our review we might feel the force of these suggestions and perhaps differ seriously from the court below; but that possibility must not divert us from the only question which we have a right to consider, and that is whether it was proved beyond contradiction that the station at Forty-second street conferred a special benefit upon the plaintiff’s property. The request refused was framed by the defendants and if it conveyed an idea different from what is now desired, that is no fault of the court which acted on it-

The proof given was of two sorts: first, facts; and, second, opinions of experts. The substantial facts on one side were, that the property was situated on the corner of Forty-fourth street and Sixth avenue, and so two blocks above the Forty-second street station; that it had been steadily used as a hotel, although of bad reputation and immoral character; that the station at Forty-second street received and discharged a large number of passengers who spread in every direction and came from many quarters ; and that some of these passed and repassed the plaintiff’s hotel, in which liquor was sold and a bar maintained. The proper inference to be drawn from these facts is not beyond dispute. The corners adjacent to the station would seem to be specially benefited so far as occupied for purposes which thrive best where there is most of a crowd, but that a hotel two blocks away is specially benefited by the station is not a necessary, even if it be a probable inference. On the other hand, it was proved that from 1878 to the date of the trial the actual rental value'of the property had remained about the same, notwithstanding the general rise of values in that part of the city, and so the inference was possible that the railway, with its station, had proved an injury and not a benefit, either general or special; and a similar inference might flow from the further fact sworn to, that the fee value during the same period had largely diminished. So far as the facts are concerned they opened the door to conflicting inferences, and we cannot say that those asserted by the defendants were necessary and inevitable. When we turn to the opinions of the experts we find to some extent a similar conflict. While the one testifying for the defense infers a benefit from the proximity of. the station, the expert of the plaintiff denies it, saying that while a station near by might benefit a liquor store, it was a disadvantage to the apartments upstairs.

On this state of the proof we might readily frame an opinion of ■ bur own, but we cannot say that the inferences are all one way, or that a contrary opinion might not lawfully be formed. The trouble is in the very nature and character of the requested fact itself. It is one quite difficult to prove or disprove, in the absence of much more precise facts than are to be found in this case, and, indeed, is very largely a matter of inference from circumstances which do not always impress different persons alike. It was possible to infer that the station two blocks below was of no special or peculiar benefit to this hotel, and that conclusion was easy to the court which determined that the railway had proved seriously detrimental to the property. All the facts of the situation, so far as proved, were before the court for its judgment, and whatever we may think about them we are unable to say that the inference of a special benefit was so conclusive and inevitable as to make it an error of law to refuse the finding requested.

It follows that the judgment must be affirmed, with costs.

All concur.


author: Peckham, J.

text:
    The People ex rel. John McMillan, App’lt, v. The Board of Supervisors of Cayuga County, Resp't.

      (Court of Appeals,

      Filed December 20, 1892.)

    Town bonds—Application of railway tax in town, after bonds are paid.
    A municipality which has issued bonds pursuant to the provisions of law, in aid of a railroad corporation, is not entitled to the fund arising from the payment of taxes by the company on an assessment upon its property within the limits of such municipality, wlfere the taxes thus paid were assessed upon the property of the railroad company subsequent to the time when the bonds had matured and been paid in full.

      Appeal from judgment of the supreme court, general term, fifth department, affirming order of special term denying motion for peremptory writ of mandamus compelling defendant to rescind certain resolutions directing the treasurer of Cayuga county to set apart and pay over certain moneys.

      S. Edwin Day, for app’lt; Wm. B. Woodin, for resp’t.

       Reversing 45 St. Rep., 89.

   Peckham, J.

The sole question in this case is whether a municipality which has issued bonds pursuant to the provisions of law, in aid of a railroad corporation, is entitled to the fund or any portion thereof, arising from the payment of taxes by the company on an assessment upon its property within the limits of such municipality, where the taxes thus paid were assessed upon the property of the railroad company subsequent to the time when the bonds issued by the municipality had matured and been paid in full by it. The bonds mentioned in this record were issued under the authority- of chapter 433 of the Laws of 1866, as amended by chapter 377 of the Laws of 1867, both acts relating to the construction of the Southern Central Bailroad and both being passed for the purpose of facilitating the construction of that road.

The towns claim the benefit of the moneys paid for taxes upon the property of the railroad within their respective borders after the payment of the town bonds, because as they allege, the provisions of § 4 of chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871, so direct. The bonds of all the different towns were made payable within twenty years from their issue, some of them being payable at the expiration of nine, and the longest at the expiration of seventeen years from that time. The act, chapter 433 of the Laws of 1866, under which, as amended by the act of 1867, the bonds were issued, provided that the bonds should be issued for a term not exceeding thirty years. These two special acts relating to the Southern Central Bailroad contained no provision for the payment to the towns of the amount of the taxes collected from the railroad company upon its property within the towns respectively. Assuming that the provisions of the act of 1869, as amended by that of 1871, cover the bonds issued under the acts specially applicable to the Southern Central Bailroad. the respondents claim the right of the towns to the payment of the taxes spoken of, for thirty years after the issuing of the bonds.

The material portion of the amended act of 1871, § 1, Under which this claim is made, reads as follows: * * * “All taxes, except school and road taxes, collected for the next thirty years, or so much thereof as may be necessary in any town, village or city, on the assessed valuation of any railroad in said town, village or city, for which said town, village or city has issued or shall issue bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county in which said town, city or village lies. It shall be the dntv of said treasurer, with the money arising from taxes levied and collected as aforesaid, which has heretofore been or shall hereafter be paid to him (including the interest thereon), to purchase the bonds of said town issued by said town to aid in the construction of any railroad or railroads, when the same can be purchased at or below par; the bonds so purchased to be immediately cancelled by said treasurer and the county judge, and deposited with the board of supervisors. In case said bonds so issued cannot be purchased at or below the par value ■ thereof, then it shall be the duty of said treasurer, and he is hereby directed, to invest said money so paid to him as above mentioned, with the accumulated interest thereon, in the bonds of this state, or of any city, county,' town or village thereof, issued pursuant to the laws of this state, or in the bonds of the United States. The bonds so purchased, with the accumulated interest thereon, shall be held by said county treasurer as a sinking fund for the redemption and payment of the bonds • issued or to be issued by said town, village or city, in aid of the construction of said railroad or railroads.”

The claim of the respondents is founded upon that portion of the act which provides that “All taxes * * * collected for the next thirty years * * on the assessed valuation of any railroad in said town * * * shall be paid over to the treasurer of the county,” etc. The respondents completely ignore the balance of the section, which provides what shall be done by the county treasurer with the moneys thus collected. The resolution which has been passed by the board of supervisors is not warranted by any provision of the statute. The resolution directs the county treasurer to forthwith place a certain named sum. to the credit of the town. The statute provides for the county treasurer making a certain disposition of the funds raised by taxation from the railroad property, and it is never placed to the credit of the town in the manner provided for in the resolution adopted by the board.

The authorities of a town have no right under this act to divert or appropriate these taxes for other purposes. Bridges v. Supervisors., etc., 92 N. Y., 570; Matter of Clark v. Sheldon, 106 id., 104-110; 8 St. Rep., 537. The moneys never come into the hands of the county treasurer for any other purpose than that mentioned in the section and they must be held and invested in' the mode directed. It is absurd to provide for payment of money to a county treasurer to be expended by him for the benefit of a town by the purchase of its bonds, which it has already paid in full -and cancelled. It is equally absurd to provide for the investment by such county treasurer of such taxes in certain other classes of bonds in order to form a sinking fund for the payment of bonds already paid in full. And yet the section provides for only these two dispositions of the moneys arising from these taxes, and the treasurer is at liberty to make no other. The disposition provided for is impossible in this case, because there are no bonds outstanding, and it was to constitute a _ fund for their payment that the disposition of the taxes was provided for in the statute.

The simple reading of the statute shows that this is the true construction of the act and no argument can, as it seems to us, make it any plainer. The direction that these taxes shall be paid for thirty years is founded upon the prior direction in the same section that the bonds shall “ become due and payable at the expiration of thirty years from ‘ their date.’” In respect to the length of the time for the maturing of the bonds the acts of 1869 and 1871 differ from the special acts under which the bonds herein were issued, as the special acts provided for a term not exceeding thirty years, and the bonds were in truth made payable and were paid much earlier.

It is, therefore, not to be doubted that the direction that the taxes for thirty years should be paid to the county treasurer, when read in connection with the whole section, means and was -intended to mean that the taxes should beso paid during the period of the running of the bonds to maturity.

Mow, assuming that the acts of 1869 and 1871 are applicable to the bonds issued under the special acts, which is what the respondents claim, we must at the same time keep the purpose of the general acts in view, and the language used therein must be viewed with reference to the whole subject matter upon which the enactment is to operate. When thus regarded, it is seen that the direction to pay the taxes for thirty years is not a purely arbitrary perod of time selected by the legislature without particular purpose, but that it obviously has reference to the period when the bonds spoken of in the same act would necessarily mature. It is, we think, plain from a perusal of the whole language of the acts upon this subject that the purpose was to provide this aid to the towns only during the period when the bonds were outstanding and by the terms of the acts not payable. This purpose is to be attributed to the act when applying this provision to bonds issued under special acts and payable in less than thirty years from their date. In no case, however, could such payments be made after the expiration of thirty years even if bonds were still outstanding. We are aware of no principle in law or equity by reference to which a party who is the principal debtor can be regarded as subrogated to the rights of his creditor by the payment of the debtor’s own debt at-the time it matures and according to his promise. The fact that during some portion of the time of the running of the bonds the town had the right to call upon the county treasurer to expend the taxes spoken of for the benefit of the town, as provided for in the statute, and neglected to enforce such right for more than six years after the last taxes were collected, prior to the payment of the bonds, can furnish no ground for the application of any principle of subrogation. It has also been said in some of the reported cases that the act itself appropriates the moneys to the purposes mentioned therein, and the statement is unquestionably correct. The appropriation is made, however, only during the time there are bonds outstanding, and subsequent to that time there is no appropriation because there are no bonds to be paid.

The orders of the general and special terms should be reversed and the mandamus granted in regard to all cases where the bonds were paid, before the assessment and collection of the taxes upon the property of the railroad company in the respective towns, with costs to the relators in all courts.

All concur.


text:
    The Village of Oneida, Resp’t, v. The Board of Supervisors of Madison Co., App’lt.

      (Court of Appeals,

      Filed December 20, 1892.)

    Town bonds—Sinking fund—Villages.
    A village is a municipality and comes directly within both the language and purpose of chap. 398 of Laws of 1868, as amended by chap. 396 of the Laws of 1874, and where it has issued bonds ‘for a railroad, the fact that it also forms a portion of a town does not affect the question of its right to benefit by said act.
    Appeal from judgment of the supreme court, general term, fourth department, in favor of plaintiff upon submission of controversy.
    . John Jü. Smith and Charles A. Hitchcoclc, for app’lt; B. A. Hansom, for resp’t.

       Affirming 40 St. Rep., 985.

   Peckham, J.

The village of Oneida is a municipal corporation created under the laws of this state and forms a part of the town of Lenox in Madison county. It is averred in the statement of facts agreed upon that commissioners were duly appointed for the village by the county judge in 1868, pursuant to the provisions of chap. 398 of the Laws of 1866, and they or their successors in office, duly appointed, have continued in office from that time. On or about July 1, 1868, the commissioners borrowed upon the faith and credit of the village $31,000, and duly executed bonds therefor as provided by § 2 of the above cited act, and the money thus borrowed was paid by the commissioners to the officers of the Few York & Oswego Midland Railroad Cómpany and was by them used in the construction of the railroad.

These bonds are still outstanding. Prior to the passage of the act, chap. 296 of the Laws of 1874, the property of the railroad company was exempt from taxation. The first section of that act repealed all laws exempting such property from taxation and enacted that all the real and personal property of the corporation should thereafter be subject to taxation.

The second and third sections of the act of 1874, read as follows:

Sec. 2. “All moneys to be collected upon the real and personal property of- the said corporation, and upon said real property now or hereafter used or held, or which may hereafter be used or held by any receiver, or successor of said corporation, for county taxes in any of the towns or municipalities by which bonds have been issued in aid of the construction of the Few York & Oswego Midland railroad, are hereby appropriated to said towns or municipalities, respectively, and shall be paid over to the commissioners of such towns or municipalities, appointed pursuant to an act entitled ‘An act to facilitate the construction of the Few York & Oswego Midland railroad, and to authorize towns to subscribe to the capital stock thereof, passed April fifth, one thousand eight hundred and sixty-six,’ or any act supplemental thereto or amendatory thereof, and the said moneys shall be by said commissioners expended for and applied to the payment of the interest on said bonds, or to the principal thereof.”

Sec. 3. “ It shall be the duty of the collector of taxes of each such town or municipality to pay over to the said commissioners of his town or municipality the amounts of the county taxes collected by him from the said corporation, or the real and personal property thereof, within five days from the time the same is collected ; and the said commissioners shall give to the said collectors a receipt for the amount of county taxes so received, which said receipt shall be returned to the treasurer of the county in which the said collector shall reside.”

The case also contains the statement, in substance, that from the year 1882 to the year 1889, both inclusive, the board of supervisors of Madison county levied upon the town of Lenox for county purposes a certain named sum in each year as a tax, which was duly collected by the town collector from the taxable inhabitants and property of the town and by him paid over to the county treasurer, and that of the said tax, and being a part thereof, there was in each year levied and collected from that part of the railroad running through the village of Oneida a certain named sum which was paid by the collector of said town to the county treasurer, and no part thereof was ever paid to the commissioners of the village, but it was paid out by the treasurer for general county purposes on the first day of June in each year, respectively, commencing with the first of June, 1883, for the tax of 1882, and ending with the first of June, 1890, for the tax of 1889.

The question is whether the village of Oneida is entitled to these moneys under the provisions of §§ 2 and 3 of the act of 1871. The supreme court has held that the village is entitled to such'moneys excepting that portion which was paid out by the county treasurer in 1883 and 1881, more than six years prior to submitting this case for decision, and as to that portion the court held the village was barred from a recovery by the statute of limitations. The .plaintiff has not appealed from the judgment and the question of the bar of the statute does not enter into the controversy.

The defendant objects to the recovery on the ground that no tax for county purposes was ever levied upon the village of Oneida as a distinct municipality, for the reason that the village is a part of the town of Lenox, and has no separate relation to the county treasurer in the payment of county taxes. It is urged that it is the town that pays such taxes, and no municipality as such which is within the town and forms a part thereof pays any county tax other than as a part of such town.

We think the purpose of the act is entirely clear. It was enacted in order that any municipality that had issued bonds in aid of the railroad therein mentioned should have the benefit of the taxes arising upon the property of the company situated within such municipality for the payment to the extent of such taxes of the interest and principal of such bonds. No reason can be imagined why a village which had issued such bonds should not have the benefit of these taxes. It is a municipality, and it, therefore, comes directly within both the language and purpose of the act, and the fact that it also forms a portion of a town does not in this instance in the least affect the question. It is true that the village does not as a village pay a county tax, but a proportionate amount of money for such tax is raised upon the property of the railroad company therein and forms part of the amount paid in the town for county taxes.

The objection of the defendant goes more to the method or means of carrying out the plain intention and purpose of the act than it does to its construction.

In this particular case it is, as we think, fully obviated by the facts agreed upon, which show the specific sums actually paid in each year by the railroad company upon its property within the village, and hence the exact sum thus paid may be directed to be repaid.

In any event, however, we think the objection does not form an insuperable obstacle to the enforcement of the act even in a case where the municipality, as such, makes no separate payment of county taxes apart from the town of which it forms a portion. 1

In this case the parties have arrived by, some method at the exact sum which the railroad company has paid for county taxes upon its property within the village, and we have no doubt such fact can always be arrived at with reasonable certainty. There are the assessors’ books of the town, and from them it is probably not at all difficult to ascertain what property of the company was situated in the village, and how much it was assessed for, and what proportion such assessment bore to the total assessment upon the property of the company within the town which included the village, and from these and other data readily obtainable the exact amount could be easily ascertained. This amount being once determined, the other provisions of the act may be readily carried out in the case of this village as well as if it were the case of a town alone.

We are disposed to construe the act liberally with a view to carry out its object, which is plainly manifest by the language actually used, and we ought not to permit such object to fail in the case of any municipality because the act does not specifically point out the method of procedure, so long as the facts to be ascertained are capable of ascertainment without any violation of the letter or spirit of the enactment.

It is asked which municipality should obtain the benefit of the act in case the town of Lenox and the village had each issued bonds. The question does not arise here, and that fact is enough upon which to base a refusal to decide it.

Even if a case might be imagined where it would be difficult, if not impossible, to carry out the provisions of the act, such case forms no reason for our refusal to enforce the act in those cases where no such trouble exists and where its provisions are sufficiently plain and explicit to admit of its being fully executed.

The defendant raises the question that the bonds of the village were not authorized to be issued.

The case admits that they were duly issued by commissioners duly appointed. It is no business of the county to raise any such' objection. The village keeps its faith and makes no intimation of the invalidity of its bonds and pays its interest thereon. We see no reason for holding them invalid. The legislature would seem to have recognized the validity thereof and provided a means for forming a fund for their payment.

The only other question made is one in regard to parties.

We think the village had the right to maintain the action against the defendant and the judgment must, therefore, be affirmed, with costs.

All concur.