author: Bradley, J.:

text:
    In the Matter of the Application of HARMON T. HARRIS, Appellant, v. BOARD OF SUPERVISORS OF NIAGARA COUNTY, Respondent.

      Improper assessment of tax — application to county judge to have it refunded, — an appeal lies from his order to the General Term,— Oode of Civil Procedure, sec. 1857— 1869, chap. 855, sea 5, as amended by chap. 695 of 1871, 1884, chap. 141 — when a tax will not be refunded because of am, error in the manner of assessing it — when an original act is not revived by the repeal of an amendatory act— Constitution, amt. 8, sec. 16 — when the subject of am, act is embraced in the tide — 1881, chap^ 13 — when an act will be held valid in part and void as to the residue.

    The assessors of a town improperly assessed one not a resident of the county for unoccupied lands belonging to him situated within the town, instead of assessing the lands as non-resident lands. The owner having voluntarily paid the amount of the tax levied against him sought to have the amount of the tax refunded, under the act of 1871, as having been illegally and improperly assessed and levied.

      Held, that an order made by a county judge, upon an application for the refunding of a tax illegally or improperly assessed or levied, is an order made in a special proceeding, and as such reviewable upon appeal at the General Term under section 1357 of the Oode of Civil Procedure, despite the fact that the provision giving such an appeal contained in section 5 of chapter 855 of 1869, as amended by chapter 695 of 1871, was omitted in the said section as re-enacted and amended by chapter 141 of 1884.
    Section 4 of 1 Revised Statutes, 389, provides that “ when the line between two towns or wards divides a farm or lot the same shall be taxed, if occupied, in the town or ward where the occupant resides. ” This section was amended by chapter 287 of 1871, which substituted for the original section a new one which contained substantially, with but slight modifications, the provisions of the original section. The act of 1871 was repealed by chapter 355 of 1872.

      Held, that the repeal of the amendatory act did not revive the original act, and that after the passage of the repealing act no action could be taken under the original section of the Revised Statutes.
    Chapter 695 of 1871, amending section 5 of chapter 855 of 1869, authorizing the refunding to a person of “the amount collected from him of any tax illegally or improperly assessed or levied,” was intended to relieve persons, by reimbursement thereof, from taxes which were not legally chargeable to them or on ' their property, i. e., from taxes which they should not be required in any manner to pay. The act refers to the tax itself rather than to the method of maxing the assessment or levy; to an illegal rather than to the erroneous assessment or levy of a legal tax.
    Chapter 13 of 1881 is entitled “An act for the relief of the towns of Newfane, Wilson and Lewiston, to abolish the office of railroad commissioners of said towns, and to enable each of said towns to adjust its indebtedness and issue-bonds therefor.” The eighth section reads as follows: “ Any and all pieces or parcels of land situated and,embraced within the boundaries of the towns of Somerset, Newfane, Wilson and Lewiston, in the county of Niagara and State of New York, except such pieces or parcels of land as by. law were-taxable in other towns prior to the general railroad bonding act of 1869;, and all personal property therein liable to taxation, shall be assessed for all taxes levied in said towns for the purpose of paying and liquidating any and all obligations or indebtedness of the towns aforesaid respectively.” The tenth section reads as follows: *• This act shall be deemed and taken as a general act and shall take effect immediately.”

      Held, that the act was a local one, and that the attempt in the tenth section tamalee it a general one was ineffectual.
    That the subjects and methods of relief specified in the eighth section of the act . were sufficiently expressed in its title to satisfy the requirements of section 16-of article 8 of the Constitution.
    That as the town of Somerset was not mentioned in the title the act was as to it void, but that its validity, in so far as the towns named in the title were concerned, was not thereby affected.

      (¿ware, as to how far the provisions of the said section (8) modified, as to the said three towns, the general statutes in respect to exemptions, and as to the manner of assessing personal property within them.
    Appeal from an order, made by tbe County Court of Niagara county, directing tbe board of supervisors of that county to refund certain taxes paid by tbe appellant.
    During tbe years 1881, 1882.and 1883, the appellant owned and occupied' a farm of 221 acres, situated in tbe towns of Wilson and Porter, in tbe county of Niagara, and resided on that portion of the-farm lying in tbe latter town. Tbe town line intersected tbe farm so that 161 acres of it were in the town of "Wilson and sixty acres in the town of Porter. Tbe assessors of tbe town of Porter assessed the entire farm to the appellant each of those y ears, and the assessors of the town of Wilson each of the same years assessed to him the 161 acres in that town. The collector of each town was directed by the tax warrant issued to him by tbe respondents to collect of tbe appellant tbe taxes based upon those assessments. He paid tbe tax assessed and levied on the 161 acres for the town of Porter for the years 1881 ($3U32) and 1882 ($35.38), and tbe collector of tbe town of Wilson collected of him for each of those years tbe tax so assessed and levied for that time, which in 1881 was ninety-three dollars and ninety-six cents and in 1882 ninety-one dollars and ninety cents. In December, 1883, the appellant made application on affidavits to the County Court of that county for an order directing-the respondents to refund the amount of taxes so collected of him by the collector of the town of Wilson, and directing the vacation of the assessment of that town for the year 1883, and for any other relief or direction to relieve him from double taxation on said 161 acres in the town of Wilson to which he might be entitled in the premises. The County Court by order directed that the taxes so-paid by the appellant on the assessment of the 161 acres for the town of Porter be refunded to him, and that the assessment made-for that town of the 161 acres in the year 1883, be vacated and stricken from the roll. Prom that order this appeal is taken.

      J. W. Higgins, for the appellant.

      John H. Pound, for the respondent.
   Bradley, J.:

The application was made to the County Court, pursuant to Laws-1869, chapter 855, section 5, as amended by Laws 1871, chapter 695, which provided that upon the order of such court, made on application of the person aggrieved, the board of supervisors should “ refund to such person the amount collected from him of any tax illegally or improperly assessed or levied.” The counsel for the respondents-contends that the court cannot review the order appealed from because (as he says) the provisions of the act referred to, vesting power in the County Court to make the order and giving the right of appeal, have been eliminated from-it by an act passed April 14,1884, amending that first referred to. This contention might be effectual if there were no other statute affording right to appeal. The order was made in a special proceeding and is not impaired by the act of 1881, referred to. The right to appeal is given by Code of Civil Procedure (§ 1357).

It is claimed on the part of the respondents that the right of the' town of Wilson to assess that poi’tion of the farm situated in that town was given by Laws of 1881, chapter 13, which is entitled “An act for the relief of the towns of Newfane, Wilson and Iewisr ton, to abolish the office of railroad commissioners of said towns, and to enable each of said towns to adjust 'ts indebtedness and issue bonds therefor.” And particularly by section 8 of the act which provides that any and all pieces or parcels of land situated and embraced within the boundaries of the towns of Somerset, Newfane, Wilson and Lewiston, in the county of Niagara and State of New York, except such pieces or parcels of land as by law were taxable in other towns prior to the general bonding act of eighteen hundred and sixty-nine, and all personal property therein liable to taxation, shall be assessed for all taxes levied in said towns for the purpose of paying and liquidating any and all obligation's or indebtedness of the towns aforesaid respectively.”

On the part of the appellant it is contended that this section, in view of the title of the act, is in violation of the Constitution.

Preliminarily to the consideration of that contention and the act, the question properly arises whether, at the time of the assessments, .there was or was not any existing general statute authorizing assessment in the town where the owner resided of an entire farm ■occupied by him and intersected by a town line, or whether the provisions of section 4 of 1 Revised Statutes, 389, which provided that when the line between two towns or wards divides a farm or lot, the same shall be taxed, if occupied, in the town or ward where the occupant resides,” were repealed by chapter 355, Laws of 1872, repealing chapter 287, Laws of 1871, which made an amended substitute for that section 4 of Revised Statutes, and whether, without the aid of chapter 13, Laws of 1881, the 161 acres of the farm within the town of Wilson were properly assessable in that' town.

The act of 1871 amended that section 4 of Revised Statutes by making a complete substitute for it, and the act of 1872, chapter 555, repealed that of 1871. The provisions of that section 4 of Revised Statutes, so far as retained, were transferred to and ingrafted into the act of 1871, which became the only statute on that subject, and that section of the Revised Statutes ceased to have any force as distinguished from the act of 1871, which did not repeal, but merely amended it. The question arises whether the repeal of the amending and substituted act revived the amended section or operated to repeal- its provisions. It will be observed that .substantially the provisions of this section of Revised Statutes were-contained in the act of 1871, with but slight modifications, -and so far as modified has no relation to the situation in this case. .

To determine this question it is« only .necessary to follow an adjudication of the Court of Appeals, which requires the* conclusion that the provisions of this séction 4 of the Revised Statutes were repealed by the act of 1872, repealing the amendatory act of 1871. (People v. Supervisors, 67 N. Y., 109.)

It seems to follow that unless there is some other statute (to which attention has not been called) authorizing it, the 161 acres of the farm lying in the town of Wilson were not, at the times in question, assessable in and "for the towmof Porter. The statute provides that, between the first days of May and July in each year, the assessors shall proceed to ascertain, by diligent inquiry, the names of all the taxable inhabitants in their respective towns, and also all the taxable property, real and personal, within the same. (1 R. S., 390, § 8). That every person shall be assessed in the town where he resides, when the assessment is made, for all lands then owned by him within such town and occupied by him, or wholly unoccupied. (1 R. S., 389, § 1). That lands occupied by a person other than the owner may be assessed to the occupant as lands of non-residents, or if the owner resides in the county in which such lands are located, to such owner. (1 R. S., 389, § 2, as amended by Laws 1878, chap. 152, § 1.) That unoccupied lands not owned by a person residing in the town where the same are situated shall be denominated lands of non-residents, and shall be assessed as hereinafter provided. (1 R. S., 389, § 3 ; N. Y. & H. R. R. Co. v. Lyon, 16 Barb., 654.) There does not appear by statute any authority to levy a tax against a person not a resident' of the town where the assessment is made, except in the single instance of lands occupied therein by a person other than the owner when the latter resides in the county, in which case the tax on the land may be assessed to him, although, he does not reside in the town. In this case no person other than the owner occupied this 161 acres. It therefore seems that there was no authority, unless given by the act of 1881, to levy a tax in the town of Wilson on that land to Harris personally, and that' the assessment could be made in that town as non-resident land only. And by the provisions of section 8, chapter 13, Laws 1881, there is no authority given to assess land in that town against a non-resident of it, but to assess the land merely,, and for the manner of doing it reference must be had to other statutes.

If the views above given in respect to the other statutes on the subject are correct, it follows that section 8 of the act of 1881, if' valid, confers no right to assess t;he 161 acres otherwise than as nonresident land, and it becomes unimportant whether or not the section last referred to is constitutionally valid. The .inquiry is pertinent. Were the taxes of 1881 and 1882 in questidn illegally or improperly,assessed or levied in the town of Wilson, within the meaning or provisions of Laws 1871, chapter 695 ?

The assessors’ duties in assessment of non-resident lands are well defined by the statute. (1 R. S., 391, §§ 11, 12, 13.) The name of the owner or occupant (in such case) is not to be inserted in the roll in .a manner to indicate that the assessment is made to or against him, nor is the collector to have direction by the warrant issued to him to collect the taxes bn such assessments. Unless such tax is voluntarily paid it is ultimately produced by sale of the land in the manner prescribed by the statute. All lands (except as otherwise specially provided) in the State are to be assessed in the respective towns and wards where situated. And there are two methods of' assessment dependent upon the fact of residence of the owner. If he resides in the town where the land is located the assessment is made to him, and if he does not the assessment is made of the land but not'to him. In the former case he is charged personally with the tax levied, in the'latter not. (N. Y. & H. R. R. Co. v. Lyon, 16 Barb., 654, 655; Rundell v. Lakey, 40 N. Y., 513; Hilton v. Fonda, 86 N. Y., 347.)

The land was chargeable 'with the tax, based upon the assessment of the assessors of the town of Wilson ; but the manner of making the assessment was irregular and illegal, because it was assessed to-the owner (appellant) who was not a resident of that town, which resulted in the direction by the respondent’s warrant to the collector to collect the amount of the tax of him. All this came from the improper action of the assessors of the town of Wilson in respect to the manner of making and entering their assessments on the roll. -If, however, the action of the assessors had been entirely regular,, the taxes would have become liens on the appellant's land when.' levied by the board of supervisors. (Barlow v. St. Nicholas National Bank, 63 N. Y., 399.) And eventually he would have been required to submit to collection of them by the sale of his land so assessed, unless he voluntarily paid them.

The statute of 1871, providing for the refunding througli the ■direction of the order of the County Court, was evidently designed to relieve, by reimbursement, persons from taxes which were not legally .chargeable to them or on their property — taxes which they should not be required in any manner to pay. The taxes so levied upon the assessments of the assessors of the town of Wilson do not ■seem to come within the spirit and meaning of the provisions of the act of 1871, requiring direction of the County Court to refund. The terms illegal or improper assessment or levy of tax in that act fairly interpreted, had reference to the tax itself rather than tq the method of making the assessment or levy — to an illegal tax rather than to the erroneous assessment or levy of a legal one. (In re New York Catholic Protectory, 77 N. Y., 342.) In view of the purpose of this proceeding and appeal, as indicated by the contentions of counsel and the order appealed from, interpretation in that respect of the act of 1871 does not necessarily require consideration here. The appellant was burdened with double taxation on the 161 acres, and this proceeding was instituted to relieve that land from assessments of one of the towns. And the substantial question presented by the contention in behalf of the parties in this court is, which town was entitled to the benefit of the assessment of that portion of the premises lying in the town of Wilson ? The County Court held and directed that the tax levied thereon by the town of Porter, and paid to the collector of that town for 1881 and 1882, be refunded, and 'that the assessment for 1883, made by the assessors of Porter, be vacated, and went no further. In this the County Court was right. Those taxes being unauthorized, the assessment and levy of them were illegal. That, in effect, determined that the 161 acres were not assessable in the town of Porter.

The learned counsel for the appellant assumed, on the argument, ■that without the aid of the act of 1881, the assessment could not he properly made of the 161 acres by the assessors of the town of Wilson, and that the result of this proceeding depended upon the «determination of the question whether or not section 8 of that act was in violation of section 16 of article 3 of the Constitution, which provides that “ no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” His contention is that the act comes within that constitutional inhibition. The act in question is a local one; and the attempt in the tenth section to define it as a general act is ineffectual. The purpose of the act, as expressed in the title, is: “ For the relief of the towns of Newfane, Wilson and Lewiston.” The title should have a fair and reasonable interpretation, not an unnecessarily restricted one. It is not important that it might have been more explicit than it is. It is only necessary that the general subject of the act be expressed in the title. The details may constitute its provisions. And whatever legitimately comes within the general purpose appearing in the title is permissible. The purpose of relief in respect to the three towns mentioned in the title seems to justify all the provisions relating to them in section 8. The specific matters expressed in the title are in the line of relief for those towns, and do not in terms or by necessary implication limit to those specific purposes the general one before referred to. The subject of the application of this constitutional provision to statutes has frequently been before the courts And the following are some of the cases where it has been considered: People ex rel. City Railroad Company v. Briggs (50 N. Y., 553); In re Prospect Park and Coney Island Railroad Company (67 id., 378); In re Mayer (50 id., 504); Neuendorff v. Duryea (69 id., 557); Kerrigan v. Force (68 id., 384); Billings v. The Mayor (68 id., 413); In re Van Antwerp (56 id., 261; affirming 1 T. & C., 423); In re Volkening (52 id., 650); People ex rel. Grissler v. Dudley (58 id., 323); In re Sackett (74 id., 95); Faulkner v. Dansville (1 Hun, 593 ; 4 T. & C., 87); De Camp v. Eveland (19 Barb., 81); People v. Havemeyer (4 T. & G., 365, 378); Freeman v. Panama Railroad Company (7 Hun, 122); Hurlburt v. Banks (52 How., 196; affirmed 67 N. Y., 568); In re Metropolitan Gas-Light Company (85 N. Y., 526); In re Upson (89 id., 67).

The more serious question is upon the provisions of section 8 of this act. Included in that section is another town, Somerset. This is not referred to in the title. The question arises whether that vitiates the entire section, or whether that town may be treated as a surplusage there and rejected, and the residue of the section be permitted to stand. The other towns, and each of them, seem to be distinct from that and from each other, so far as appears by the act, in respect to the relief which was designed by it to be afforded, and the elimination of that town from the provisions of the section will leave it complete and perfect in terms as to the others. And there seems to be no apparent occasion for presumption that the insertion of the town of Somerset was an essential element to produce the passage of the act. , In such cases the rule requires that the invalid portion thus contained in an act be rejected, and effect given to the residue as valid. In People v. Briggs (50 N. Y., 566), the court, by Church, C. J., say: “ It is a universal rule that where a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void, unless the provisions are so connected together in subject-matter, meaning or purpose, that it cannot be presumed the legislature would have passed the one with-the other.” (See, also, In re Met. Gas-Light Co., 85 N. Y., 527.) Reference is made by counsel to In re Paul (94 id., 197) as authority upon his contention that section 8 is violative of the Constitution and void. It will be seen that that case does not necessarily have any material application to the question here. There the first section of the act included the designation of the places in which certain business should not be carried on within a single phrase, “ rooms or apartments * * * which are used as dwellings for the purpose of living, sleeping, or doing household work therein.” This included not only tenement houses known as such, but rooms in all dwelling houses used in like manner, while the title of the act merely referred to the manufacture of cigars, etc., in the tenement houses ” in the city of New York. The section by its terms was not susceptible of the division of provisions so as to refer severally to the two classes of houses. The court very properly held that it would be an act of legislation to treat the section as applicable only to tenement houses, so as to conform it to the title. Finch, J., in the opinion of the court, says: “Nor will it do to avoid the difficulty by saying that, as the phrase ‘ dwelling’ includes within it tenement house, we may hold the section good as-to a part of its meaning, and repudiate it as to the balance, for that in ■.this case would be an act of legislation.” If this first section had mentioned severally dwelling house and tenement house, the court might have held it valid as to the. latter and rejected the former, within the reasoning applied.

Whether the provisions of section 8 of the act of 1881 in question can be so construed as to modify, as relates to the three towns, the general statute in respect to exemptions, and as to the manner ■of assessing personal property within them, does not arise for, nor have consideration in this case.

The conclusion follows, from the views above expressed, that the ■order appealed from must be affirmed.

Present — Smith, P. J., Barker, Haight and Bradley, JJ.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    AMARIAH H. BRADNER and DANIEL LOWREY, Respondents, v. JOSEPH HOLLAND and JOHN B. HOLLAND and DANIEL BUTTERFIELD, Executor, etc., of MELINDA H. BUTTERFIELD, Deceased, Appellants.

      .Judgment creditors’ action — when one action can be maintained to home applied in payment of the judgment legacies due sevei'ally to the judgment debtors defendants therein — when it may be brought to reach the interests of legatees before the will has been admitted to probate.

    The complaint alleged that an execution issued upon a judgment recovered by the plaintiffs against the defendants Holland had been returned unsatisfied; that one Butterfield died leaving a will by which she gave to each of the defendants Holland $4,000; that she appointed the defendant Butterfield executor of her will; that the same had been by him presented for probate, and that the defendants Holland had a beneficial interest in the estate of the deceased. It prayed that the plaintiffs’ judgment might be declared a lien upon the legacies, and that the executor be directed to apply them thereon when they became payable, and that the defendants Holland be restrained from transferring the said legacies, or any other property which could not be reached by levy and sale under execution, and that the executor be restrained from paying the legacies to them.

      Meld, that demurrers interposed by the defendants Holland severally upon the ground that there was an improper joinder of causes of action, as their interests in the legacies was several and not joint, could not be sustained.

      Quaere, as to whether the defendant executor could have demurred upon this ground. ^
    That the fact that the will had not been admitted to probate, and that no executor had been appointed when the action was brought, did not prevent the plaintiffs from maintaining it as against the Hollands.

      Quaere, as to whether the defendant Butterfield might have demurred upon the ground that he was not an executor in fact.
    Appeal from an interlocutory judgment, entered on a decision made at Special Term overruling demurrers to the complaint, with leave to the defendants to answer within twenty days on the payment of costs.
    The complaint charged that the plaintiffs recovered a judgment against the defendants Holland; that an execution thereon had been issued and returned unsatisfied ; that Melinda H. Butterfield died, leaving her last will and testament whereby she bequeathed to each of the defendants Holland four thousand dollars, and appointed the defendant Butterfield to be executor thereof ; that Butterfield had offered it for probate; that the plaintiffs believe and charge that the defendants Holland are owners or beneficially interested in real estate, and have in their possession some securities, etc., which ought to be applied to the payment of the judgment. And the relief demanded (amongst other things) is that the plaintiffs have a lien upon those legacies; and that the defendant Butterfield as such executor be directed to pay the same to them to apply on the judgment when the same become payable ; that the defendants Holland account for all property which they have which is not leviable by execution; that they be restrained from disposing of their property, including those legacies; and that defendant Butterfield as such executor be enjoined from paying the legacies to the defendants Holland or to any person for their use, etc. The demurrers were interposed severally by the defendants Holland on the grounds : (1.) That the complaint fails to state facts sufficient to constitute a cause of action. (2.) That there is a misjoinder of causes of action therein particularly specified. The defendant Butterfield does not appear.

      George Forster, for the appellants.

      James Wood, for the respondents.
   Bradley, J.:

The plaintiffs have a judgment against' the defendants Holland. The remedy at law has been exhausted by return of execution unsatisfied. This action is in the nature of a creditor’s bill brought to reach the property of those judgment debtors not subject to levy and sale by execution. It is at least proper to join all the judgment debtors as defendants. (Child v. Brace, 4 Paige, 309; Van Cleef v. Sickles, 5 id., 505.) The fact that the property sought by the action to be reached is owned by the judgment debtors in severalty is no ground of objection. The judgment is against both defendants, and the purpose of the action is to discover and reach their property to apply in payment of the judgment. It is in no wise important for the purposes of the action whether they own the property jointly or severally. The plaintiffs are in pursuit of the property of the defendants, the judgment debtors. The remedy in view is-an equitable and not an unusual one. The old Code (§ 167) did not, nor has the new Code (§ 484) in any substantial respect changed the rule in this class of actions as relates to the parties and the scope ,of the cause of action. And the provisions of those sections are so general “ as to justify the interpretations which shall be found most convenient and best calculated to promote the ends of justice.” (N. Y. and N. H. R. R. Co. v. Schuyler, 17 N. Y., 604.) And distinct rights of property of each of two or more defendants may be pursued by single action against both or all in behalf of creditors-to whom they are jointly liable and so charged by judgment, for the purpose of obtaining satisfaction of it. This rule is deemed a just and proper one to save necessity of multiplicity of suits. (Brinkerhoff v. Brown, 6 Johns. Ch., 139; Fellows v. Fellows, 4 Cow., 682; N. Y. & N. H. R. R. Co. v. Schuyler, 17 N. Y., 592, 605; Boyd v. Hoyt, 5 Paige, 65; Hammond v. H. R. I. & M. Co., 20 Barb., 378; Board of Supervisors v. Deyoe, 77 N. Y., 219; Garner v. Harmony Mills, 6 Abb. N. C., 212.)

The contention, therefore, that there is a misjoinder of causes of action because neither of the defendants has any interest in the-legacy bequeathed to the others of them is not well founded. The case of Nichols v. Drew (94 N. Y., 22) has no material application to any question in this one.

It is insisted by the learned counsel for the defendants that because they have no interest in common in the legacies, and Butter-field the executor named in the will has, and can have no relation to the legacies other than that of severalty, the complaint charges different and distinct causes of action as between the plaintiffs and defendants respectively, and malíes Butterfield a party as to each of them, and not with both in common in respect to the causes of action alleged, and that neither of the defendants Holland is concerned in the alleged cause of action against the other and Butter-field ; that is to say, that to the alleged cause of action against one of the defendants Holland and Butterfield the other defendant Holland is not a party, and therefore there is a misjoinder of causes of action. But it will be observed that the action has only in view the reaching and applying the property of the judgment debtors to the satisfaction of the judgment which is a legitimate purpose of single actions of the character of this one. It is unnecessary to consider the question that might have arisen if Butterfield had demurred. A person may not be improperly although unnecessarily made a party defendant under some circumstances. (Bailey v. Inglee, 2 Paige, 278.)

In the complaint it is alleged that the will had been offered by Butterfield and was awaiting probate at the time the action was commenced. The executor named in it was evidently made a party in anticipation that letters testamentary would be issued to him, and he thereby become a trustee of the fund to pay the legacies, and for the preservation of it for the purposes of the relief in view. It is unnecessary here to say and we do not consider the question whether or not he might by demurrer effectually object that not being an executor in fact, having received no letters testamentary, there was no cause of action alleged as to him. It is sufficient that he does not raise the question, and that the other defendants cannot by their demurrer. The fact that the will had not been probated when this action was commenced does not aid the defendants. The plaintiffs were at liberty by means of the action to restrain the disposition by them of their rights to the' legacies under the will (although such rights had not then been fully perfected by its probate) for the protection of the fund for application on the judgment, when the right in those defendants to the legacies should become fixed, and in anticipation of that event. Por the accomplishment of such purpose courts of equity will entertain actions and afford relief.

The judgment appealed from should therefore be affirmed, with costs, with leave to the defendants to withdraw their demurrers and answer over within twenty days on payment of costs.

Present — Smith, P. J., Barker, Haight and Bradley, JJ.

Judgment affirmed, with costs, with leave to defendants to withdraw their demurrers and answer over on payment of costs within twenty days.


author: Merwin, J.:

text:
    In the Matter of the Application of the NEW YORK WEST SHORE AND BUFFALO RAILWAY COMPANY to Acquire Title to Certain Real Estate of which WILLIAM A. JUDSON and SARAH J. JUDSON are the Owners or Persons Interested Therein.

      Seport of commissioners to appraise damages on taking land fen’ a railroad — appeal from the order confirming the report — errors in the minutes of the testimony must he corrected hy an application to the commissioners and not to the court.

    Where, upon an appeal from an order confirming the report of commissioners, appointed to appraise the damages to be occasioned by tbe taking of land for the purposes of a railroad, the respondent claims that the minutes of the testimony annexed to the report are defective, in that certain admissions made hy the appellant’s counsel are omitted therefrom, and moves to have the said minutes corrected, the court should, in the absence of all claims of had faith or culpable irregularity upon the part of the commissioners, refuse to determine the question and should allow an application to he made to the commissioners upon proper notice to have the minutes corrected so as to conform to the facts, and when so corrected to he filed nunc pro tuna.

    Appeal by tbe landowners from tbe order of tbe Oswego Special Term denying a motion to correct tbe printed case.
    Hpon tbe hearing before tbe commissioners, a stenographer was employed to take minutes, and bis report of tbe testimony and proceedings was attached to the report of tbe commissioners as being tbe minutes of the, testimony taken by them.

      The report of the commissioners having been confirmed at Special Term, the Railway Company appealed from the order of confirmar tion to the Special Term. 1
    The printed papers on such appeal having been served, the respondents therein, the landowners, made a motion at Special Term to have them corrected, claiming that they were defective in that they did not contain a certain admission of the attorney of the Railway Company as to the title of the landowners, and also an objection of the landowners based on such admission. The commissioners certified to such defects.
    On the part of the company it was denied that there was any such admission or objection. It was held at Special Term that upon the whole case the landowners failed to show themselves entitled to the amendments asked for.

      E. J. Richardson and A. L. Johnson, for the landowners.

      P. B. McLennon, for the company.
   Merwin, J.:

By the statute the commissioner’s were required to reduce the testimony taken by them, if any, to writing, and to make a report of their proceedings,- “ with the minutes of the testimony taken by them, if any.” (2 R. S. [7th ed.], 1551, § 16.)

The minutes are therefore a part of the report, and as such are filed and become a part of the case on appeal. If either side claims that the minutes as returned are incorrect, the query with us is whether the commissioners are not the ones to settle that matter in analogy to the settlement of a case on an appeal from a trial court. If the court, either at Special or General Term, should undertake on conflicting affidavits, to determine what evidence was taken or what admissions or objections were made before the commissioners, would it not be recognizing a rule of practice that in its operation would naturally lead to undesirable results? Would not this in effect allow a report to be contradicted and impeached by affidavit. (See Roch. and Gen. Valley R. R. Co. v. Beckwith, 10 How., 168; N. Y. and Erie R. R. Co. v. Corey, 5 How., 177.) The commissioners act in a judicial character with limited powers, and it is their record as a judicial body that comes up on appeal. Should the' appellate court, in the absence of bad faith or culpable irregularity, undertake to say for them what their record should be? We think not.

It seems to be conceded upon both sides that the amendments claimed are of a material character. Upon the papers before us it looks somewhat doubtful about an admission having been as formally made as is claimed by the landowners. Still at that stage of the case it may be that the attorney for the company supposed that the fee of the title was in Mr. Judson, but incumbered by a street; while at a subsequent period in the case, upon further information, it was claimed that the fee in that part covered by the street was out of Mr. Judson. An argument in this line might harmonize to some extent the conflicting views of the parties. ,

No bad faith is charged upon the commissioners, nor any irregularity. They did not in fact pass upon the correctness of the stenographer’s minutes prior to their being attached to and filed with their report. It was assumed that they were correct. We think we should assume that in case the commissioners are called upon to settle in fact the minutes, it will be done with proper regard for what in fact occurred.

In our opinion the report should be sent back to the commissioners for them to settle the minutes upon a hearing on notice. We must therefore reverse the order and allow the appellants to apply to the commissioners to correct the minutes of the testimony and proceedings had before them upon eight days’ notice. If the commissioners or a majority of them shall after hearing the parties conclude that the minutes filed are incorrect, they may correct them in such manner as shall make them conform to the evidence and admissions or objections in fact taken or made, and the- corrected minutes may be filed with the clerk nwiejpro twne.

As the question involved is new, the reversal will be without costs to either party.

Hardin, P. J., concurred; Follett, J., not sitting.

Order reversed, and leave given to apply to the commissioners upon eight day’s notice to amend their minutes of. testimony and proceedings, and if they, or a majority of them, shall allow any amendments, they shall certify and return the same to the county clerk who may file the same and attach them to the original report memo fro time.


author: Follett, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. JOHN BURNS, Appellant.
    Pkidence— when the declaration of a third person is admissible as against one accused of a crime — witness—his credibility may be impeached by proof of conviction of any crime — Penal Code, sec. 714.
    Upon the trial of the defendant upon an indictment for burglary the officer who arrested him testified that on calling at the house of the defendant’s mother he was informed by her that the defendant was in the house; that she then went back into the kitchen and upon returning said that the defendant had gone out by the back door; that the officer thereupon entered the house despite the resistance of the mother and found the defendant concealed behind a dpor about six feet from where the conversation occurred.

      Heed, that the evidence was properly admitted:
    (1.) Because the facts justified the’ inference that the answer was made by the defendant’s direction.
    (2.) That if the defendant did not wish to be bound by the answer which was made within his hearing he should have spoken.
    (S.) That the facts justified the inference that the mother and son were acting with a common purpose and design to enable the defendant to escape, and that the declarations of the mother were therefore admissible.
    One of the witnesses for the defendant testified on his cross-examination that he had been three times convicted of drunkenness and disorderly conduct.

      Held, no error.
    Section 714 of the Penal Code was intended to establish a uniform rule and permit the conviction of a witness for any crime to be proved, and allow the effect of such conviction, upon his credibility, to be passed upon by the jury.
    Appeal by the defendant from a judgment of the Court of Sessions of Jefferson county, convicting him of the crime of burglary in the third degree.

      Ilammibal Smith, attorney for the appellant.

      E. O. Emerson, district attorney, for the respondents.
   Follett, J.:

The defendant was convicted before the Court of Sessions of Jefferson county, of burglary in the third degree. The defendant appeals from the judgment, and asks for a reversal and a new trial upon the ground that errors were committed in the reception and rejection of evidence, and in the charge to the jury.

About six a. m., December 9, 1883 (Sunday), the defendant was found by a police officer in a grist mill. In the office of the mill were a safe and a money drawer, which some one had attempted by violence to open. These facts were not denied on the trial. Defendant testified that he entered the mill, but how, when, or for what purpose, he said he was unable to explain, by reason of intoxication on the occasion in question.

The defendant was arrested at his mother’s house about an hour after he was discovered in the mill. The officer making the arrest testified that he was met by the defendant’s mother at the outside-door of the hall, who, upon inquiry, said defendant was within.

The mother went back into the kitchen (apparently to call her son) and upon returning said : “ He (defendant) has gone out of the back door. ” Upon receiving this answer, the officer started to-enter the kitchen, the mother trying to stop him, and on reaching the kitchen, found defendant concealed behind a door about six feet from where the conversation occurred between the officer and the ■ mother. The remark above quoted was objected to by the defendant, upon the ground that the declaration of the witness was not made in the defendant’s presence, and was incompetent.

The evidence was admissible because . (1.) The facts justified the inference that the answer was by defendant’s direction. At first, the mother told the officer the truth, but after returning from the room where the son was found, told a falsehood in defendant’s interest, and with the evident intent of enabling the defendant to escape.

(2.) The facts justified the inference that the defendant, who was concealed behind an open door but six feet from the mother, was within hearing, and, unless he wished to be bound by her remark, should have spoken.

(3.) The falsehood of the mother, told under the circumstances described, and her attempt to prevent the officer from entering the room where the defendant was concealed, justified the inference that they were acting with a common purpose and design to enable defendant to escape, and the acts and declarations of the mother, were, for this reason, admissible against the defendant. (Kelley v. People( 55 N. Y., 565.)

One of the defendant’s witnesses testified, on cross-examination, that he had been three times convicted for being drunk and disorderly (misdemeanoi’s). The defendant objected to this evidence on the ground that it was immaterial. It was immaterial to the issue, but was admissible as affecting the credibility of the witness. (Oode Civil Pro., § 832; Penal Code, § 714.)

The defendant insists that the sections cited simply changed the mode of proving the fact of conviction, but did not affect the common law rule of the competency of the particular conviction offered to be proved, and that unless the conviction is for an infamous offense, or for an offense which directly 'affects moral chai’acter, proof of the conviction is incompetent for the purpose of affecting credibility.

Before the adoption of these sections, the rale as to the class of convictions which might be proved to affect credibility was not uniform, and depended mainly upon the opinion of the court as to whether the particular conviction was for an infamous or immoral offense.

In Carpenter v. Nixon (5 Hill, 260); Lake v. People (1 Parker, 495; affirmed, 12 N. Y., 358); People v. Satterlee (5 Hun, 157), it was held that the fact that a witness had been convicted of petit larceny (a misdemeanor’) was competent as affecting credibility, while in Greaton v. Smith (1 Daly 380), it was held incompetent to prove that the witness had been convicted of intoxication (a misdemeanor) for such purpose.

In People v. Noelke (94 N. Y., 137) the defendant was sworn in his own behalf, and was asked on cross-examination if he had been. convicted in a Federal court of mailing lottery circulars (a misdemeanor under the statutes of the United States). The question was •objected to, but the witness was required to answer, and answered in the affirmative. This was held competent under the sections above cited. This decision is decisive of this question.

The design and the effect of the sections are to establish a uniform rule and permit the conviction for any crime to be proved, and whether it should affect the credibility of the witness is a question for the jury. Such is the rule in England, “a witness maybe questioned as to whether he has been convicted of any felony or misdemeanor.” (Taylor’s Ev. f6th ed.], p. 1244, § 1294.) Any other rule would be difficult of application, and dependent upon the view of the trial judge, as to whether the particular conviction should or might affect credibility.

In the opinion of this court, three convictions for drunkenness and disorderly conduct tend to affect the credibility and moral character of the witness; but the extent to which they should affect it is dependent upon the circumstances of the offense. In some cases the conviction of a particular misdemeanor might not and should not impair the credibility of a witness, while a conviction of the same statutory misdemeanor under other circumstances should and would .affect his credibility.

A witness employed in the, mill, who carried the key to a-particular outside door, and whose duty it was each evening to close and lock it, testified that he did not remember doing so on the evening before the burglary, but that it was his custom to do so every night. .The defendant objected to proving the custom of the witness, but stated no ground, except as it may be inferred, that it was on the .ground that the custom was incompetent. Without stopping to consider the sufficiency of the objection, or whether the evidence was not competent within the rule, that presumably a person performs- a particular act which he has long and regularly performed at a stated time at short intervals, as a duty and in the regular course of his daily vocation (Skilbeck v. Garbett, 1 Q. B. [N. S.], 846; Dana v. Kemble, 19 Pick., 112; People v. Bush, 3 Parker, 552), it is sufficient to say, on this question, that McDonald and Graves testified they together closed and left the mill at nine p. m. before the burglary, and McDonald swears he observed that this particular door was locked, and Graves testified that'his attention was called to the fact that McDonald examined the doors.

The defendant, though sworn in his own behalf, did not testify that he entered through an open door, and no evidence of any kind was given or offered tending to show that such might have been the fact. “ The rule undoubtedly is, that when a fact is conclusively proved by competent evidence, so that the court can see that no prejudice or injury could possibly have resulted from the admission of incompetent evidence to prove' the same fact, its ■admission will not be cause for interfering with the result or reversing a judgment; but the rule is to be cautiously applied, especially in criminal cases.” (Coleman v. People, 58 N. Y., 555, 561.) Erroneous rulings on a trial by jury in civil or criminal cases should be disregarded on appeal, if it clearly appears that the appellant was not injured thereby. (Shorter v. People, 2 N. Y., 193 Patterson v. The People, 46 Barb., 625, 627; Page v. Ellsworth, 44 id., 636.) Such was the rule before the Code of Criminal Procedure, which provides that on appeal the court must give judgment without regard to technical errors, defects or exceptions, which do not affect the substantial rights of the appellant (sec. 542), and the rules of evidence are the same in civil and criminal cases, except as otherwise provided by the Code of Criminal Procedure. (Sec. 392.)

No error was committed in the direction to the jury as to the effect which should be given to the defendant’s evidence that he was intoxicated upon the occasion in question. The evidence bearing upon this question was recited by the court, and the jury plainly charged in this connection that they must be satisfied beyond a reasonable doubt that the defendant intended to commit a crime. This, in effect,, was three times charged (fols. 204, 208, 218), and at 218 the court said : “You may take into consideration the intoxication of this defendant in determining the intent with which the defendant entered the building in question.” It was unnecessary to again repeat the instructions and employ the language of counsel. No errors were committed in refusing to instruct the jury as to the rules applicable to cases resting on circumstantial evidence. This was-not such a case. The mill was entered by violence. The money drawer and the lock of the safe had been tampered with. The defendant was found in the mill and was unable to give a satisfactory explanation of his presence there. These facts were testified to by eye-witnesses.

The judgment must be affirmed, the stay vacated, and sheriff' directed to carry into effect the judgment of the Court of Sessions.

Hardin, P. J., and Merwin, J., concurred.

Judgment of the Jefferson County Court of Sessions affirmed and stay of proceedings vacated, and sentence ordered executed.


author: Dykman, J.:

text:
    PIERRE G. VAN WYCK and Others, Respondents, v. NATHANIEL B. LENT and Others, Appellants.

      Commissioners of highways — right to home obstructions summa/rUy removed.

    Where a building stands in whole or in part upon a public highway and obstructs the travel of the public thereon, the commissioners of highways have power to cause its summary removal, even although there is still room enough left on the highway to enable the public to drive past the buildings with teams without inconvenience or danger.
    Appeal from a judgment of the County Court of Westchester county, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case.

      Frcmcis Larkin, for the appellants.

      M. L. Gobb, for the respondents.
   Dykman, J.:

This action is for trespass on land, and in the complaint the premises are described as commencing at the south-west corner of the upper landing road and Water street, and running westerly along the south side of upper landing road to the Hudson River railroad; thence southerly along the railroad to the land conveyed by Philip G. Yan Wyck to Patrick .McEntee; thence easterly along the said land conveyed to McEntee to Water street; thence northerly along the westerly side of "Water street to the upper landing road and place of beginning. The plaintiffs erected a' small weigh building on what they claimed to be their lot. The defendants claim that the building was on the street, and that they removed it by direction of the commissioners of highways of the town because it was an encroachment on the street and obstruction to public travel, and so a public nuisance. Two of the defendants were commissioners of highways, and the other defendants acted under their direction and in their assistance in the removal of the building. The cause has been tried and the trial resulted in a verdict and judgment for the plaintiffs from which the defendants have appealed, and also from an order denying a new trial. The trial was in the County Court where the action was commenced. If it shall be found on examination that this building stood in a public highway and so became an obstruction to public travel, there has been a miscarriage of justice and the judgment cannot endure. It was the claim of the plaintiffs that the lot described in his complaint was immediately north of the McEntee lot, and between that and the landing road, and that it was nineteen feet seven inches on Water street, sometimes called in the case Diver street, measuring from the south-west corner of the brick wall of the McEntee house.' The McEntee lot was fifty feet on Water street measuring from a brook north. The brick house had stood on the McEntee lot thirty years, and there was a piazza on the north side six feet wide. The building of the plaintiffs was placed close up to this piazza. As the measurement of the plaintiffs’ lot was from the brick wall of the house, this six feet occupied by the piazza belonged to the plaintiffs and was a part of this nineteen feet seven inches. Deducting this six feet left them but thirteen feet seven inches there. The building they put up and which the defendants took down and removed was twenty-four feet north and south, and twelve feet east and west, so that ten feet and five inches of it was on the road, wliich was there forty-two feet wide as near as can be gathered from the case. This undisputed fact is sufficient to call for a new trial, because when the commissioners of highways found this obstruction to the public travel they had sufficient power to cause its summary removal (Cook v. Harris, 61 N. Y., 448), and neither they nor those acting in their assistance can be held responsible in damages for such an exercise of official power. If this structure was placed on the highway so as to obstruct public travel; the commissioners of highways of the town in the disehai’ge of their duty to keep the same in order and remove all obstructions therefrom, might remove the same summarily. But there are other facts making strongly against this action. The McEntee building from the time of its erection was used for a public store and was a place of public resort, and the proof was abundant that all the space in front of that building had been used as a public highway during all that thirty years. Under that user by the public it became a public highway by our statute. This being so, not only a part but the whole of the building erected by the plaintiff was on the public highway. Again the cause was submitted to the jury by the charge of the trial judge, on the theory that the commissioners of highways had no power to tear down' the building and abate the public nuisance, provided there was room left to drive past the building with teams without inconvenience or danger. This question was asked by a juror of the-judge near the close of the charge. By a juror: “Whether the distance left across the street after the alleged obstruction of twenty-nine feet or thirty-one feet, if the jury are convinced there was room enough to pass, that is all there is about it ? By the judge: So I understand the law, that is, without inconvenience or damage. The judge had before that charged as follows: “Now, then, have they ” (the defendants) “ violated the law, as it has been defined and laid down in the books ? I have read the cases bearing upon it and I think they have, but if you find from the facts that there was this opportunity to pass and repass this building without injury or inconvenience to these people, then of course, applying the law as I give it to yon, you must find a verdict for the plaintiffs.” There were exceptions to this portion of the charge, and they must be allowed, for the charge left the jury to find for the plaintiffs if there was left sufficient space in the road to pass and repass by the public. About this there was no dispute, and the charge was in effect, as applied to the testimony, a direction to find for the plaintiffs. It'took from the consideration of the jufy the question of the width of the road, for in another place the jury was told as follows: “ The plaintiffs admit that this building, when it was erected as they erected it, projected over the line of the highway out into the highway from ten to eleven feet or twelve feet —■ somewhere thereabouts. The defendants claim that the whole building itself, to the whole extent of twenty-four or twenty-six feet, stood upon the highway. Well, now, which one of these is right? I don’t know as it is material.” Again, it was charged as follows: “ Whether it stood wholly upon the highway or only partly upon the highway, as admitted by the plaintiffs, does not seem to me to be the question at issue here, nor the question which is to determine, if I understand the law, your verdict in this case.” To these portions of the charge there were also exceptions and they are also erroneous.

What was the width of the public highway at that point, and whether the building demolished was erected entirely within its bounds, as the defendants claimed, were questions of great materiality in the proper determination of this action. But the charge that the commissioners could not summarily abate the nuisance if the public could pass round it is plainly erroneous. The highways of the State are made for and devoted to public travel, and the whole public have the right to their use in their entirety, and when obstructions to public travel are found within their bounds, the commissioners of highways are clothed with power to remove them without waiting for the slow process of law, even though travel be not absolutely and entirely prevented.

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

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

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


author: Dykman, J.: Pratt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM H. McDONOUGH, Appellant, v. THE BOARD OF SUPERVISORS OF QUEENS COUNTY, Respondent.

      Audit of a claim by a hoard of supervisors — the acceptance of the cmovmt allowed prevents any prosecution f or the residue of the claim.

    The relator presented to the board of supervisors of Queens county a claim amounting to $1,890.49 for services alleged to have been rendered by him to the county under a contract. The board adopted a resolution directing the county treasurer to pay to him the sum of $165.25, “ being the amount in full due him from Queens county under his contract with said county.” In June, 1883, the relator assigned his claim for the amount audited to one Miller, who received the same from the county treasurer.

      Held, that the acceptance of this amount concluded the relator and prevented him from further prosecuting a claim for the residue of his bill.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of tbe issues herein by a jury.

      William O. De Witt, for tbe appellant.

      John J. Armstrong, for tbe respondent.
   Dykman, J.:

Tbis is a proceeding by mandamus to compel tbe board of super visors of Queens county to audit and allow a claim of tbe relator for $1,333.80. Tbe claim comes in tbis way: There was a bridge to be constructed at Blissvilie, over Newtown creek, which there forms the boundary between tbe counties of Kings and Queens, and tbe bridge was to be made and paid for by tbe two counties, each paying one-half of the expense. Tbe relator was appointed tbe supervising engineer of the work, and there is some obscurity respecting tbe terms of his employment and tbe amount of bis compensation. He claims that be was to receive five per cent on tbe entire cost of tbe work, and tbe defendant claims that be was to receive five per cent on tbe contract price of tbe work, to be done in pursuance of tbe plans and specifications. In tbe view now to be taken, it will not become necessary to determine that question. Tbe relator was employed to prepare plans and specifications for tbe building of the bridge, and to superintend the work in Septemher, 1880. He drew tbe papers and continued to superintend tbe work of construction until December 2,1881, when he was discharged therefrom. Soon after that he presented a claim for services claimed to have been rendered by him under his employment for $1,890.49. This bill came before the board of supervisors of Queens, county for action, and was refereed to an appropriate committee. The committee made a report and recommended the adoption of a, resolution auditing and allowing the bill at $330.50, one-half payable by each county. • Thereupon the board adopted a resolution directing the county treasurer of Queens county to pay the relator $165.25, being the amount in full due him from Queens county under his contract with said county.” In June, 1883, the relator assigned this claim so audited to Anthony Miller, and he has received the amount from the county treasurer. This was after the commencement of these proceedings. Tet it was held by the trial court that the relator was concluded by this audit and payment, and the case seems to fall easily within the principle. The claim was audited at the-amount specified as a full payment, and the relator might accept it or institute legal proceedings for the enforcement of his whole demand. He elected to accept the amount offered on the terms and conditions imposed of payment in full, and he cannot now repudiate his choice.

The trial court held very properly that the relator was not entitled to extra compensation for delay in the completion of the work, nor to any allowance or commission on the cost of constructing the exterior approaches to the bridge.

The judgment should be affirmed, with costs.

Pratt, J.:

The relator held a claim against the county of Queens which was presented in due form, by him, to the board of supervisors of that county. A large portion of the claim was rejected and the bill was audited at the sum of $165.25 ; this bill so audited was assigned to one Anthony Miller, and the treasurer of Queens county was by the terms of the assignment directed to pay the said sum to the assignee; the amount was subsequently paid by the county treasurer to Miller, who gave his receipt therefor; the assignment and receipt for this claim estop the relator' from maintaining this proceeding.

The board of supervisors have power “to examine, settle and allow all accounts chargeable against such county.” (1 R. S., 366, 367, § 4, sub. 2.) Their act was a judicial act and adjudicated the amount the relator was entitled to receive. (Brady v. Supervisors, 10 N. Y., 260; Martin v. Supervisors, 29 id., 645.) Their audit was in the nature of a judgment against the county. A party cannot accept the benefit of a judgment and at the same time appeal from it. (Knapp v. Brown, 45 N. Y., 209; Bennett v. Van, Syckel, 18 id., 481; Kelly v. Bloom, 17 Abb., 231.)

By accepting the amount of the audit, the relator waived his right to further prosecute his claim.

The judgment should be affirmed, with costs.

Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    JANE Z. LAUREA, Respondent, v. CONSTANTINE BERNAUER, Appellant.

      Penalty — when a sum stipulated to he paid in case of a hr each, of the contract is to he treated as a penalty and not as liquidated damages.

    A written contract for the exchange of lands, after setting forth the terms of the exchange, contained the following clause: “ Either party failing to comply with this agreement shall forfeit to the other the sum of one thousand dollars.”

      Held, that the sum named was a penalty and not liquidated damages, and that a party seeking to recover for a breach of the contract should be confined to the damages proved to have been actually sustained thereby.
    Appeal from a judgment of the County Court of Kings county in favor of the plaintiff, entered upon a verdict directed by the court.

      Horace Qrrnes, for the appellant.

      A c& J. Z. Lott, for the respondent.
   Dykman, J.:

This is an action on a written contract for the exchange of real property, for the recovery of damages resulting from a failure to perform. Tbe contract is in writing, signed by both tbe parties, and after providing for the exchange and the terms thereof, contains this clause : Either party failing to comply with this agreement shall forfeit to the other the sum of one thousand dollars,” and the plaintiff in his complaint demanded judgment for $1,000. The cause was tried in the County Court of Kings county, where the action was commenced, and after the failure of performance was established the' county judge held and decided that the sum named in the contract was fixed damages, and finally directed a verdict for the plaintiff for that amount. To this there was exception, and we have thus again for decision the question often presented and seldom determined with entire satisfaction to the judicial mind. Like all questions pertaining to contracts, it must be referred to the intention of the parties for solution, and their intent and meaning must be colleetéd from the instrument, considered in its entire scope and tenor. In this instance the meaning of the parties is not so obscure.as in some cases where the same questions have been presented. Their object was to effect an exchange of real property, and after providing for that they say that either party failing to comply with this agreement shall forfeit to the other the sum of one thousand dollars.” It was a case where the damages to result from failure of performance could be easily and certainly ascertained, and the parties did not undertake their determination. They employed no language indicative of an intention to liquidate and fix the damages, but did name a forfeit, a word peculiarly descriptive of a penalty — not that any particular word or phraseology will ever be entirely controlling against the fair construction and meaning of the entire instrument; that will never be permitted. But where, as in this case, there is nothing to countervail the well settled legal signification of the terms employed, they will be permitted prevalence. The contract declares the provision to be a forfeit, and so the parties must have intended. The sum named does not measure or liquidate the damages. The agreement makes no such profession and indicates no such design. The parties call the sum a forfeit, and thus clearly indicate their intention to make it a penalty. Having prescribed a forfeiture as a means of enforcing the performance of this contract, the parties rested there as they do in a penal bond or undertaking, and relied on the courts to determine tbe actual damages sustained in the event of nonperformance ; otherwise some language would have been employed indicative of an intention to liquidate the damages. There is but little legal authority in this class of cases, because each case depends mostly on its own peculiarities. One general rule, however, is that where the word penalty or forfeiture is used, that is generally conclusive and against liquidated damages. (Bayley v. Peddie, 16 N. Y., 471; Richards v. Edick, 17 Barb., 260.) On the whole examination and consideration of this case our conclusion is, that the sum of $1,000 named in the agreement as a forfeit,' was intended as a penalty and not for liquidated damages, and that the recovery in this action must, in any event, be confined to the damages actually resulting from the failure of the defendant to carry out the contract on his part.

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

Barnard, P. J., concurred.

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

Judgment of County Court reversed and new trial granted, costs to abide event.


text:
    In the Matter of the Application of JOHN LYNCH and JOHN McKEON, Executors, etc., of THOMAS HUGHES, Deceased, to Mortgage, Lease or Sell Real Estate, etc.

      Surrogate — jurisdiction of — he may entertain a petition to have a sale of real estate sold widen' an orden' of his court to pay debts, set aside.

    At a sale of xeal estate made by an executor under an order of the surrogate for the payment of the debts of the deceased, a portion thereof was purchased by one Wolfe, who thereafter paid ten per cent of the price bid, the auctioneer’s fees and the cost of having a search made. The examination of title showed defects in the proceedings instituted to procure the sale, and that the Bureau of Inspection of Buildings in New York had directed the owners of the buildings on the premises to have them removed.

      Held, that the surrogate had power to entertain a petition presented by Wolfe setting forth these facts, and praying to be relieved from his purchase and to have the money he had paid out refunded to him.

      Appeal by George Wolfe from an' order, made at tbe Surrogate’s Court of Westchester county, denying an application made by him to be relieved from a purchase of real estate at a sale thereof by an executor under the order of the surrogate to pay debts of the deceased testator. t
    The application was denied upon the ground that the surrogate had no power or jurisdiction to entertain the application or to give any relief to the petitioner.

      Joseph FeUretoh, for George Wolfe, the appellant.

      Frank E. Blackwell, for Lynch, surviving executor and respondent.
   Dykman, J.:

George Wolfe became the purchaser of certain real property sold by John Lynch, as executor, under an order of the surrogate, for the payment of the debts of his decedent. His bid was $5,325, and he paid down $532.50 for ten per cent thereof, and twenty dollars auctioneer’s fees, besides $105 which he has paid for a search against the property. The examination of the title disclosed some irregularities in the proceeding which led up to the surrogate’s order of sale, and also an order of the Bureau of Inspection of Buildings of the Fire Department in the city of New 'York, requiring the owners of the buildings on the premises to remove them. On the discovery of these difficulties, Wolfe presented his petition to the surrogate, disclosing them all, and ashed to be relieved from his purchase and have his money refunded which he had paid out.

The surrogate refused to entertain the proceedings and denied the application on the ground that he possessed no power or jurisdiction to grant any relief. The question for us therefore relates to the power of the surrogate to entertain the proceedings and grant the desired relief. The application is for an order directing the executor, over ráhora the surrogate has full control, to repay money he has ■ received in virtue of his office, while acting in obedience to an order of the surrogate. In this examination it matters not whether the application is meritorious or otherwise, or whether the facts set out in the petition are true or untrue. That must be determined by the' surrogate, provided he entertains the application.

Surrogates have power to direct the disposition of real property, and interests in real property, of decedents for the payment of their debts and funeral expenses, and the disposition of the proceeds thereof. (Code of Civil Pro., § 2472, sub. 5.) They may also exercise such incidental powers as are necessary to carry into effect the powers conferred expressly. (Code, § 2481, sub. 11.) These provisions clothe those officers with power to make all necessary orders to carry into effect their decree of sale, and at last to compel an executor to execute a deed in consummation of his sale or to pay back to a purchaser his deposit paid at the sale.

This seems to be sufficiently clear under the provisions of the Code of Civil Procedure, even if it was not so before, and the view is sustained by the Court of Appeals In the Matter of Dolan (88 N. Y., 309).

The order of the surrogate should be reversed and the proceedings remitted to his court with directions to entertain the application and administer the proper relief; costs to be paid out of the estate.

Pratt, J., concurred.

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

Order of surrogate reversed and proceedings remitted to him, with direction to entertain application and administer the proper remedy.


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    MICHAEL COYLE, Respondent, v. HENRY E. PIERREPONT, Jr., and Others, Appellants.

      Negligence — liability of one renting machinery, which is run by an engineer selected by him, to a third person injured by the negligence of the engineer.

    The plaintiff was employed by a stevedore to assist in unloading a vesáel. Tlie stevedore leased from the defendants an engine and boiler, which was in charge of and run by an engineer employed by the said defendants. Four wooden boxes were placed in a sling and hoisted by a rope running through blocks. The engineer hoisted and lowered as directed by the stevedore’s men. The plaintiff claimed that the engineer lowered the boxes too rapidly and then stopped suddenly, thereby causing a box to fall from the sling upon the plaintiff and injuring him. The machinery was in good order and there was no evidence to show that the engineer was incompetent:

      jBeld, that the plaintiff could not recover, for two reasons:

      Fvrst. Because the defendants had fully performed their duty when they furnished suitable and safe machinery and a competent engineer.

      Second. Because, even if they had failed so to do, they were not liable to the plaintiff therefor,- as the relation of master and servant did. not exist between them.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Thomas 8. Moore, for the appellants.

      J. I). Bell, for the respondent.
   Dykman, J.:

/ This is an action for the recovery of damages resulting from personal injuries sustained by the plaintiff. At the time of the accident he was in the employ of Michael Gillen, a stevedore, who was employed by the owners of a vessel to unload her cargo of castor oil contained in wooden boxes about two feet square and weighing about 200 pounds each. To obtain the power for hoisting, Gillen leased of the defendants an engine and boiler in charge of their engineer, who had charge of the engine. Four of the boxes were placed in a sling and hoisted out of the vessel by means of a rope running through two blocks; one fastened to the dock and the other suspended from a crane above the deck of the vessel. The power came from the engine, and Gillen’s men had charge of the unloading. Two of his men, called gang-way men, told the engineer when to hoist and when to lower, and he obeyed their directions. It was the claim of the plaintiff that his injuries came and were caused by lowering the boxes too fast, and then stopping them suddenly, whereby they fell out' of the sling and struck him. The defendants controverted this position, but the jury found for the plaintiff, and so the facts must be assumed in favor of his contention. The verdict came, however, under a charge that the defendants stood in the' place of the engineer and were responsible to the plaintiff for his acts. To this there was an exception and we must ascertain whether it was erroneous. A few additionable facts are important. The plaintiff was not the servant of the defendants, and they owed him no duty resulting from any privity between them. They might be liable to him or any other person by directing the commission of an act eminently dangerous to the lives of others, or •which when done would be the creation of a nuisance. Neither of these positions can be assumed in this case. The machinery here was perfect and in order, and there is no evidence that the engineer was incompetent, unless such incompetence may be inferred from the fact that he allowed the boxes to run down too fast, and that is not a legitimate inference, because the hoisting and lowering was under the direction of the gang-way men of Gillen. Besides-all this, there is nothing to show negligence of the defendants in his employment, and the simple fact charged against him does not show incompetence: The defendants performed their contract and duty when they furnished suitable and safe machinery and a competent engineer. The engine might become unsafe or disordered by use, or the engineer might make a mistake in the performance of his duties, * but that was as well known by Gillen and the plaintiff as to the defendants; and if injury came from either of these causes, the defendants are not responsible when they furnished an article not dangerous in itself, in good order and condition, and in the possession and control of a competent person. Besides all this, the defendants owtd no duty to the plaintiff to furnish safe machinery or a safe engineei, because the relation of master and servant was not established between them. In the case of King v. New York Central and Hudson River Railroad (66 N. Y., 181), it was decided that where the owner of a piece of machinery, not in its nature dangerous, allows another person competent to manage it to take and use it, and. while in the possession and use of the other it becomes defective and injures a third person, the owner is not liable. The difference between that case and this is, that here the injury was caused by the misconduct of the engineer, and there it came from a defect in the machine; but so far as liability of these defendants is concerned, it is an authority in their favor. The case of Burke v. De Castro, etc. (11 Hun, 354), was precisely like this, except that the injury came from a defect in the rope used for hoisting, and the Supreme Court in this district decided that the defendant owed the plaintiff no duty in regard to the machinery rented to his employer, and that the action could not be sustained. We cannot find that this decision has been disturbed by the Court of Appeals, and although in that case also the injury came from a defect in the rope, yet we think the principle decided will include and control this case.

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

Pratt, J., concurred.

Present — Barnard, P. J., Dvkman and Pratt, JJ.

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


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    JOHN W. GILLIES and BREWSTER J. ALLISON, Appellants, v. AUGUSTA KREUDER, Respondent, Impleaded with Others.

      Pmdanoe — a judgment creditor does not claim, or hold an interest under the debtor within the meaning of section 829 of the Code of Civil Procedure.

    Upon the trial of an action, brought by judgment creditors of a deceased debtor to set aside conveyances made by him to his wife as fraudulent as against his creditors, the wife, the defendant, was allowed to testify as to personal transactions between herself and her deceased husband.

      Held, no error; that the plaintiffs did not hold or claim under the husband in such a sense as to bring them within the provisions of section 829 of the Code of Civil Procedure.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.

      Geo. W. Weiant, for the appellants.

      Seth B. Cole, for the respondent.
   Dykman, J.:

This is an action by judgment creditors of Charles Kreuder, now deceased, to set aside conveyances from him to his wife as fraudulent against creditors. The cause was tried before a referee and decided in favor of the defendant, and he has found that the conveyances were all made by the husband to his wife in good faith and in the discharge of obligations he was under to her. Tliat tbey were not made in fraud of creditors, and are not fraudulent but valid conveyances. There is testimony to sustain the finding, and the case is well decided on the facts. The objections to the testimony of the wife, respecting personal transactions with her deceased husband, were properly overruled. The plaintiffs do not hold or claim under the husband. Moyer v. Moyer (21 Hun, 67) is not an authority for the plaintiffs. In that case the. defendant claimed to hold under the deed from the deceased, and evidence of personal transaction between them was inadmissible as the plaintiffs also claimed to hold under their father.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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    LAWRENCE CAREY and WILLIAM CAREY, Respondents, v. THE LONDON PROVINCIAL FIRE INSURANCE COMPANY (Limited), Appellant. SAME v. NORTHERN ASSURANCE COMPANY OF ABERDEEN AND LONDON, Appellant.

      Insurance upon a leasehold interest — right of the lessee to recoves' the profits, cm’ising from a sub-lease, lost by reason of the fire.

    Tlie complaint in tliis action alleged that the plaintiffs, the lessees of certain huildings in the city of Now York, in February, 1888, received from the defendant, an insurance company, a policy of insurance upon their lease of the buildings. The rent reserved by this lease was $8,750 a year, while the plaintiffs had sub-let the premises so as to yield them an annual profit of $2,250. In May, 1883, the premises were damaged by fire and rendered untenantable until October of the same year. During this period the rent falling due upon the lease to the plaintiffs, and that falling due upon their leases to the subtenants, was suspended by virtue of the provisions thereof.
    This action was brought to recover the amount of the profit which would have accrued to the plaintiffs upon their sub-leases had not the premises been injured by the fire.

      Held, that a demurrer interposed by the defendant, upon the ground that the complaint did not state facts sufficient to constitute a cause of action, was frivolous and that a judgment in favor of the plaintiffs was properly ordered thereon.

      Appeals from an order, made at a Special Term, overruling as frivolous a demurrer interposed by tbe defendant in eacb of the above entitled actions, and directing a judgment to be entered in favor of the plaintiffs.

      QarUsle Norwood, Jr., for the appellant.

      J. Stewart Boss, for the respondents.
   Dykman, J.:

The defendant .introduced a demurrer to the complaint in both of these actions, and the plaintiff moved for judgment on the demurrers, as frivolous. The motion was granted and the defendant appealed.

The plaintiffs were lessees of certain buildings in the city of New York at an annual rent of $3,750, and procured from each of the defendants a jiolicy of insurance “ on their lease of the brick building.” This was in February, 1883, and in May, of the same year, the premises leased were damaged and partially destroyed by fire, so that they were untenantable and the plaintiff and this sub-tenant were deprived of the use and enjoyment thereof from May until October pf the same year, during which period of time the rent ceased by the terms of the lease to the plaintiff, and their lease to their sub-tenant was on the same terms. In the complaint the plaintiff says : “ The rent reserved in and by both of said leases ceased for said period (from May to October) and these plaintiffs were therefore by reason of said fire caused to sustain loss and damages on the said lease in the sum of $812.50, being the amount of the profit upon their said lease so insured as aforesaid, which would have accrued to them between said 29th day of May, 1883, and October 9, 1883, had not said premises been destroyed by fire as aforesaid. This allegation is founded on the following facts, also stated in the complaint: The plaintiffs had relet the premises for four years and upwards at $6,000 a year, being a profit to them of $2,2'0 a year. These companies, by the policies in suit, undertook and agreed to indemnify the plaintiffs against such loss as they might sustain in their proprietory interest in the premises during their term, or the continuance of their lease. The measure of their loss is the value of the premises, subject to the rent, and that value-seems to have been established by the rent they were to receive beyond that they were to pay. We have no other facts that will set up a drawback for repairs, or insurance, or any other subject. This is within the rule laid down in Niblo v. North American Company (1 Sandf., 591). In the first condition in both of these policies it is provided that in ease of such destruction by fire of the above described premises, that the lease held by the assured shall be by its terms and in fact canceled, then this company shall be liable to pay in a way specified ; but that contingency did not come, and so this condition is inoperative.

Our conclusion is, that these complaints state a cause of action and that the demurrers are not well taken.

The order appealed from should be affirmed, with costs.

Barnard, P. J., and Pbatt, J., concurred.

Orders overruling demurrers as frivolous affirmed, with costs.


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    In the Matter of the Accounting of THEODORE J. DENTON, as Executor, etc., of THEODORUS B. DENTON, Deceased.
    Will— construction of a legacy — when it should be paid to the legatee, although her " interest is not an absolute one.

    The will oí a testator contained the following provision: “ I give and bequeath to my daughter Elizabeth ,1. Mead the sum of twenty-five thousand dollars, and do order and direct that eight thousand dollars of said sum be paid over to her son Theodore D. Mead when he shall arrive at the age of twenty-one years, * * * but in case my said grandson Theodore D. Mead shall die before arriving at the age of twenty-one, without leaving lawful heirs him surviving, I then give and bequeath the said eight thousand dollars, which I have hereinbefore directed to be paid unto the said Theodore D. Mead, to his surviving brothers and sisters in equal proportions on the death of the said Elizabeth J. Mead.” The executor paid over the $35,000 to the daughter. The son, upon coming of age, and during the lifetime of the mother, sought to compel the executor to account for the $8,000, upon the ground that under the will he should have held that amount during the son’s minority and paid it to him when he came of age:

      Meld. that it was the duty of the executor to pay the $35,000 to the daughter, and that upon so doing he was discharged from all further liability therefor.

      Appeal from a decree of the surrogate of Orange county, upon the settlement of the accounts of an executor.

      William Vanamee, for Theodore D. Mead, legatee, appellant.

      D. F. da H. Gedney, for executor, respondent.
   Dykman, J.:

This is an appeal from a decree of the surrogate of Orange county, made on the settlement of the accounts of Theodore J. Denton, the executor of the last will and testament of Theodoras B. Denton, deceased.

The controversy is presented by the following provisions of the last will and testament of the deceased: “Third. I give and bequeath to my daughter Elizabeth J. Mead, the sum of twenty-five thousand dollars, and do order and direct that eight thousand dollars of said sum be paid over to her son Theodore D. Mead, when he shall arrive at the age of twenty-one years, * * * but in case my said grandson Theodore D. Mead shall die before arriving at the age of twenty-one, without. leaving lawful heirs him surviving, I then give and bequeath the said eight thousand dollars, which 1 have hereinbefore directed to be paid unto the said Theodore D. Mead, to his surviving brothers and sisters in equal proportions on the death of the said Elizabeth J. Mead.”

The will was executed July 13, 1864, and the testator died January 29, 1865. The will was proved and admitted to probate February 22,1865, and letters testamentary were issued to Theodore J. Denton alone, and he lias ever since acted as the sole executor of the will.

On the fourth day of March, 1865, the executor paid to Elizabeth D. Mead the legacy bequeathed to her of $25,000. Theodore D. Mead, the grandson named in the will who was to be paid $8,000 of the legacy given to his mother, reached the age of twenty-one years July 20, 1883, and he and his mother are both living. Theodore D. Mead now claims that it was the duty of the executor under the will to retain in his hands and preserve for him the sum of $8,000 to be paid to him on his majority, and that the payment to his mother was unjustifiable. On the other hand, the executor claims that he was not only justified in the payment to Mrs. Mead, but that be was required to make such payment to her by the terms of the will. That such payment discharged him, and that Mrs. Mead received the same as trustee for her son.

The surrogate sustained the executor and gave him a full discharge, and Theodore has appealed. Our view coincides with that of the surrogate. In the first place the gift is absolute of the whole sum of $25,000. Then the direction is that $8,000 of that sum shall be paid to her son Theodore, when he shall arrive at the age of twenty-one years. If he dies before reaching that age, without lawful heirs, then the sum is given to his surviving brothers and sisters on the death of his mother. So that in the event of his death while under twenty-one, without lawful heirs, his mother is to have the use of the same during her life; and if he survives until that period, then she has the use of the money during his minority.

By the fourth clause of the will the testator recognizes the gift as absolute to the daughter in the first instance, and directs that the several bequests before made to his daughters be subject to redemption for advances made to them respectively. It was the intention of the testator that the gift should be absolute to Mrs. Mead ; that she should receive the money and have the use and benefit of it either during the minority of her son or during her own life, according as he should live or die, and pay it over in accordance with those events.

The testator in the language quoted does not give the sum of ■$8,000 to Theodore, and does not speak of it as the sum given to him, but as the sum which I have hereinbefore directed to be paid unto the said Theodore D. Mead.”

Our conclusion is that the executor was required to pay the whole legacy of $25,000 over to Mrs. Mead, and that the decree of' the surrogate should be affirmed.

BarNArd, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.