text:
    RAMON M. ESTEVEZ and another, Respondents, v. EMILY E. PURDY and another, Impleaded, etc., Appellants.

      Usury —■ agreement that agent retain $350 as bonus, to be paid his principal — vitiates agreement, though made without knowledge of principal.

    An agent of the plaintiffs, authorized to loan the sum of $5,000 for them, arranged with the defendant to loan her that sum upon the agreement that he should retain therefrom $150 for his own services, and $350 l'or the plaintiffs as a bonus for the loan. The agent was not authorized to loan the money at a greater rate than seven per cent, nor was any part of the bonus received by the plaintiffs. Held, that the loan was usurious.

      Gondit v. Baldwin (31 N. Y., 219), Bell v. Bay (32 id., 165) distinguished; Algur v. Gardn&r (54 N. Y., 360) followed.
    Appeal from a judgment, recovered at Special Term, for the foreclosure of a mortgage and sale of the mortgaged premises.

      Moses Ely, for the appellants.

      Zimri W. Butoher, for the respondents.
   Daniels, J.:

The defense relied upon by the defendants, was, that the bond and mortgage in suit were given to secure the payment of a usurious loan of money from the plaintiffs to the defendant, Emily E. Purdy. The amount agreed to be paid by the terms of the bond and mortgage, was $5,000, with the lawful interest upon it; while the sum actually received by the borrower, was but $4,500. The loan was effected through the intervention of an agent, acting for and on the part of the plaintiffs ; and that business seems to have been intrusted exclusively to his control and management. The proofs showed, and the judge before whom the cause was tried found, that the difference between the amount of the sum secured, and that which was received by the borrower, was retained by the agent, who at the time stated that he was to retain $150 for his services, and the remaining $350 was to go to the plaintiffs as a bonus for the loan. It was further found, upon sufficient evidence, that the plaintiffs had not authorized their agent to loan the money at a greater rate of interest than seven per cent, and that no part of the bonus had been received by them, or applied to their benefit. And for that reason the court seems to have adopted the conclusion that the transaction was not usurious. In reaching that result, it was governed by what it was supposed had been settled as the law by the cases of Condit v. Baldwin (21 N. Y., 219) and Bell v. Day (32 id., 165). But in those cases the agents of the lender simply exacted from' the borrowers a sum of money for their own benefit, and which, it was understood by the borrower, was to be paid to, and appropriated by, the agent, as an inducement on his part to make the loan. The agreement for it was independent between the agent and the borrower, and not, in either instance, included in the terms on which the loan itself was made. While, in the present case, the agent exacted the bonus for his principals, the lenders, and the agent of the borrower assented to its reservation for them. It was so much claimed upon one side, and conceded upon the other, as a bonus for'the use of the money. The agreement for the loan was entire, and the stipulation for this reservation out of the amount was a portion of it. Before any money was paid, the agent exacted $350, on behalf of his principals, for the use of their money, beyond the seven per cent included in the bond and mortgage ; and the husband of the borrower, acting for her, yielded his assent to the demand made.

That was sufficient to create an agreement that the plaintiffs themselves should be paid the $350 for the use of the money loaned, over the statutory rate of seven per cent. It made a plain case of a usurious loan, which was not protected against the defense found to have been proved, by any thing contained in the cases referred to. The agent was authorized by the plaintiffs to‘loan their money, and the fact that they did not empower him to do so, at a greater rate of interest than seven per cent, could not render that legal, which the statute had declared to be unlawful. Whatever the authority of the agent may in fact have been, he did take the bond and mortgage to secure the payment of a loan of money, at a rate of interest exceeding seven per cent. And by undertaking, as the plaintiff's did, to enforce the security after they had notice that such was the case, they necessarily adopted the transaction through which it had been acquired. They could not enjoy the advantages expected to be gained by it, and at the same time avoid the effect of the unlawful agreement included in it. (Bennett v. Judson, 21 N. Y., 238.) This case has been dissented from in other respects, but so far as it relates to this point, its soundness has not been questioned. (Elwell v. Chamberlin, 31 N. Y., 611, 619, 620 ; Comyn on Conts., vol. 1, 220, 239, and cases cited; 1 Cow. Treatise [2d ed.], 71-76 ; Farmers' Loan and Trust Co. v. Walworth, 1 Com., 433; Palmerton v. Humford, 4 Denio, 166 ; Brown v. Lewis, 19 Barb., 574.)

The present case is not materially different from that of Algur v. Gardner (54 N. Y., 360), where it was held that the principal could not avoid the consequences of an usurious loan, by proof of the fact that his agent had no authority to lend the money at a greater rate of interest than seven per cent. That authority is decisive of the present controversy. Under the evidence in the case, which was found to be reliable by the court, the bond and mortgage were void for usury, and the complaint ought to have been dismissed.

The fact that one-half the amount secured was paid at one time by the borrower and then reloaned on the agreement that the mortgage should still continue to be a security for it, in no way improved the plaintiffs’ case. For, when the last loan was made, the agent reserved as a usurious bonus for the plaintiffs, as a condition for making it, the sum of $225 out of the amount. Before the plaintiffs commenced this action, they knew that the borrower claimed the transactions to be usurious, by reason of the payment or reservation of these amounts by way of bonus; and by afterward instituting it, they necessarily ratified what their agent had done in their behalf. They could not adopt it so far as it might prove beneficial, and at the same time disaffirm it so far as his acts might be detrimental to their interests.

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

Davis, P. J., and Brady, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Davis, P. J. :

license: Public Domain

text:
    HENRY COLTON and others, Executors, etc., of REUBEN PARSONS, Respondents, v. MARY A. FOX and ADA L. HOSMER, Impleaded, etc., Appellants.

      Will — trust—when void — illegal suspension of thepowen' of alienation.

    The plaintiffs’ testator, by his will, devised and bequeathed all the residue and remainder of his estate to his executors upon the following trusts, namely: “ to pay the income, rents, issues and profits thereof to my brothers R. and W., and to my sisters, F. and N., equally, share and share alike, during the joint lives of my said brothers and sisters; and after the several deaths of my said brothers and sisters, then to divide the real and personal estate equally among the children of my said brothers and sisters respectively, the said children to take the parents’ share; and I hereby expressly declare, that in case either of my said •brothers or sisters shall die, leaving the others surviving, then the income herein intended for the one or the other so dying shall be paid to the issue or representative of the one or the other so dying.” Held, that the trust was invalid as creating an illegal suspension of the power of alienation.
    Appeal from a judgment of the Special Term, made in an action brought for the construction of the will of Reuben Parsons, deceased.

      Thomas M. Webster, for the appellants.

      James Emott, for the respondents.
    The word “several” here means respective, as was held in Woodstock v. Shillito (6 Sim., 416). The children of each of the four brothers and sisters named in the will, who were living at the time of the testator’s death, took each a vested interest in the share bequeathed or devised to the parent for life, subject to. be divested pro tanto to let in after born issue, if any. (2 Jar. on Wills, 74, 76; Titus v. Weeks, 37 Barb., 136.) The share of-each of these children, in the event of such child dying before its parent, will pass to the personal representative of such child. It will not go over to the survivors. (Everitt v. Everitt, 29 N. Y., 39; Jenkins v. Freyes, 4 Paige, 47; Dingley v. Dingley, 5 Mass., 535; Atty.-Cen. v. Crispin, 1 Br. C. C., 386; Devisme v. Meller, id., 537; Middleton v. Messenger, 5 Yes., 136; Fox v. Fox, 19 Eng. Eq. Cas., 285.) The provisions of the statute forbidding the alienation by a cestui gue trust of his interest in a trust to receive the rents and profits of lands (§ 63, 1 R. S., 730), are not applicable to trusts of personal property. {Kane v. Gott, 24 Wend., 641, 662, Judge Cowen’s opinion ; Arnold v. Gilbert, 5 Barb., 590; Oruger v. Gruger, id., 225; Titus v. WeeJcs, 37 id., 136; Opinion of Denio, J., in Graff v. Bonnett, 31 N. Y., 9.)
   Davis, P. J. :

This suit was brought by the executors of Reuben Parsons to obtain a construction of the eighth clause of his will, in order to determine whether the trusts thereby created of his residuary estate are valid. That clause of the will is as follows: Eighth. I give and devise and bequeath all the rest, residue and remainder of my estate, both real and personal, to my executors hereinafter named; or the survivors or survivor of them, upon the following trusts, namely: to pay the income, rents, issues and profits thereof to my brothers, Roswell Parsons and William Parsons, and to my sisters, Fidelia Marcy and Nancy Charles, equally, share and share alike during the joint lives of my said brothers and sisters, and, after the several deaths of my said brothers and sisters, then to divide the said real and personal estate equally among the children of my said brothers and sisters respectively, the said children to take the parents’ share. And I expressly declare that, in case either of my said brothers or sisters shall die, leaving the others surviving, then the income herein intended for the one or the other so dying shall be paid to the issue or representative of the one or the other so dying.”

The appellants were sisters of the testator, of the half-blood. Neither of them is mentioned in the will. The intention of the testator to give to each of his.brothers and sisters of the whole blood, named in the eighth clause of his will, the income of one-quarter of his residuary estate during their respective lives,is entirely plain; and it is equally clear that he intended to give the principal, or corpus, of each quarter to the children of each of his brothers and sisters then in esse, or to be born thereafter; and the intention that the brothers and sisters of the half-blood should take nothing under the will follows by necessary implication.

With these several manifest intentions so palpably before us, it is our duty to determine whether or not the scheme adopted by the testator to carry them out, is so far in conflict with the law that it cannot be upheld.

It is the duty of courts, if any construction can be given to the provisions of the will which will execute the intentions of a testator without violating law, to adopt such construction; but courts have no legal or moral power, however plain the intention of the testator, to make for him another will which shall consummate his intentions, where his own cannot stand in accordance with the law.

The true rule on this subject is expressed by Bronson, J., in Hawley v. James (16 Wend., at page 144). He says : “ The rule that the intent of the testator is to govern in the construction of wills has no necessary connection with the inquiry whether the devise or bequest is consistent with the rules of law. When we have ascertained what particular disposition the testator intended to make of his estate, then, and not before, the question arises whether the will is valid. If the disposition actually made is not inconsistent with the rules of law, the will is good, and must be carried into effect, whatever the testator may have thought about the legality of the act. And, on the other hand, if the disposition actually made is contrary to law, whether it happened through design or the want of accurate information, the will is worthless, and we have no choice but to declare it void.”

To this test the provisions of the will under consideration are to be brought. By them, all the rest, residue and remainder of the testator’s estate, both real and personal, is devised and bequeathed to his executors or the survivors or survivor of them, upon the trusts named, which are, first, to pay the income, rents, issues and profits thereof to my brothers, Roswell Parsons and William Parsons ; and to my sisters, Fidelia Marcy and Nancy Charles, share and share alike, during the joint lives of my said brothers and sisters.” This provision disposes of the rents, issues and profits in equal shares during the joint lives of the four persons named; and, standing by itself, the trust- would undoubtedly terminate on the death of either of them, because its limitation is upon the joint lives of them all. But clearly it was not the intention of the testator that, upon the death of either one or more, the trust should cease as to the survivors or survivor. He did not design that, upon the death of one, the other three should cease to receive the equal share of such rents, issues aud profits intended to be given to him or her during his or her life, and the important question is: What does the scheme of his will do with the share of such decedent % If it gives such share absolutely to his or her children, then there is nothing in conflict with the law in such a disposition. We have, therefore, to see whether the testator has disposed of the rents, issues and profits of any of his brothers or sisters who shall die, leaving the others surviving, in such manner that, if the scheme of the will be carried out, the whole fund in trust will be kept together undivided until the death of the last of his four brothers and sisters. To determine that, it seems necessary first to construe the last sentence of the eighth clause of the will. That sentence reads : “And I expressly declare that, in case either of my said brothers or sisters shall die, leaving the others surviving, then the income, herein intended for the one or the other so dying, shall be paid to the issue or representative of the one or the other so dying.” This is a manifest disposition, not of the corpus, or principal, of the trust fund, but of income to be paid directly by the trustees. If we bring this sentence in direct contact with the other provision of the will relating to income, perhaps it will aid us in ascertaining the true construction of the provision. Read together, the directions are, “ to pay the income, rents, issues and profits thereof to my brothers, Roswell Parsons and William Parsons, and to my-sisters, Fidelia Marcy and Nancy Charles, equally, share and share alike, during the joint lives of my said brothers and sisters. And I hereby expressly declare that, in case either of my said brothers or sisters shall die, leaving the others surviving, then the income, intended for the one or the other so dying, shall be paid to the issue or representative of the one or the other so dying.” Thus read, the provisions create a trust in favor first, of the four brothers and sisters during their joint lives; but, when the joint estate in trust thus created shall terminate' by the death of either of said brothers or sisters, leaving others surviving, then the trust is continued for the benefit of the survivors, and the share of the deceased is to be paid to his issue or legal representative. The language used indicates that the testator did not intend this provision to be limited to the death of one brother or sister, but to continue applicable to several deaths, and so long as there should remain a survivor ; and, therefore, he used the unusual yet not inapt phrase, “ then the income, herein intended for the one or the other so dying, shall be paid to the issue or representative of the one or the other so dying meaning by the phrase, “ one or the other,” the same as though he had said each one so dying. So that, to ascertain the meaning of the testator, the sentence may without impropriety be read: And I hereby expressly declare that, in case either of my said brothers and sisters shall die, leaving the others surviving, then the income herein intended for each one so dying shall be paid to the issue or representative of each one so dying.

If the eighth clause stood in this form alone, there would be no difficulty in saying that the testator intended to create a trust fund for the benefit of his four brothers and sisters, which should be indivisible until the death of the last survivor of them, and should be maintained as their several deaths occurred before the death of the last survivor by paying the share of each' one so dying to his issue or representative.

The share of any decedent of the four brothers and sisters leaving no issue, would go to the administrator or executor of the deceased brother or sister; and the provision for that purpose goes far to show the intention, on the part of the testator, to keep the trust fund intact and yielding an income to be divided in 'equal shares until the last of the four lives named in the clause shall have terminated. The other provision of the eighth clause looks very clearly to, and was intended to provide for, the final division of the trust estate. That clause reads: “ And after the several deaths of my said brothers and sisters, then to divide the said real and personal estate equally among the children of my said brothers and sisters respectively, the said children to take the parents’ share.”

It is claimed that this provision indicates the testator’s intention, upon the death of each one of the four brothers and sisters, to require the trustees to divide his or her share of the trust fund among the children of such brother or sister, and that the words “ after the several deaths ” should be construed as though read upon the respective deaths.”

But it is to be observed, firstly, that- this is not a provision for the division of a share or shares of the trust fund, but for a division of the whole. The lansruafi'e. “ then to divide the said real and personal estate,” obviously refers to and means “ the rest, residue and remainder ” of the estate, both real and personal, which the testator has put in trust; secondly, it is to be observed that it is not a share to be divided among the children of a deceased brother or sister, but a fund to be divided among the children of all the brothers and sisters ; thirdly, it is to be observed that this division is to be made “ after the several deaths of my said brothers and sisters,” which, in the connection in which it is used, is equivalent to saying, after all my said brothers and sisters shall have severally died. And though it may be true that the words “ several deaths ” may, under certain circumstances, be rendered respective deaths,” yet, when such reading would be in conflict with and defeat another provision relating to the same subject-matter which looks to a continuation of income and a distribution of it upon the respective deaths of beneficiaries, it will not do to give such a rendering to the words several deaths ” if used in connection with a division of the whole trust fund. All the provisions relating to the subject-matter in this eighth clause must be taken and construed together to ascertain the intention of the testator; and so taken they seem to us to develop with great plainness that his intention was that his entire residuary estate should be placed in trust in the hands of his executors for a period which should not terminate till the death of the last survivor of his four brothers and sisters ; and that while the income should be continuously divided during the whole period bounded by the life of the last survivor, yet no division of the corpus should be made until the last survivor should die; and this is what the will accomplishes by its provisions, if we hold them to be valid in 'law.

Ascertaining this to be the meaning of the eighth clause of the will, the only remaining question is, whether or not it is in conflict with the law.

Upon that question there can be no room for doubt. The statute expressly declares that the absolute power of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than twro lives in being at the creation of the trust. (Section 15, art. 1, tit. 2 and chap. 1, part 2 of the Revised Statutes.) The fourteenth section of the same article declares that every future estate shall be void in its creation, which shall suspend the absolute power of alienation for a longer period than is prescribed in this article. Such power of alienation is suspended when there are no persons in being by whom the absolute fee in possession can be conveyed/ Section 1, title 4 of the same chapter provides that the absolute ownership of personal property shall not be suspended by any limitation or condition whatever, for a longer period than during the continuance and until the termination of not more than two lives in being at the death of the testator. We do not think it is true that, in respect to the personal property embraced in the trust, there were, at the death of the testator, parties in being who could make a perfect title; for it seems to us impossible to say, with certainty, who will be the children of the respective beneficiaries of this trust at its termination by the death of all the brothers and sisters to whom a life-use in the trust is given.

From these views it follows that the judgment of the court below was erroneous and must be reversed.

Judgment should be entered construing the will in accordance with this opinion, with costs to the several parties, to be paid by the trustees out of the fund.

Daniels, J., concurred; Bradt, J., dissented.

Ordered accordingly.


author: Davis, P. J.

text:
    JOHN PARROTT, Appellant, v. GARDNER COLBY, Respondent.

      Corporation — Section 10 of chapter 40 of 1848 — liability of stockholders undw' — effect of extending time of payment of debt

    A corporation, created under the act of 1848, being, on the 8th of March, 1867, indebted to the plaintiff in the sum of $39,764.44, it was, on the 4th of August, 1868, agreed that he should accept, in full satisfaction of his debt, the sum of $25,000 in gold, to be paid as follows, viz.: $15,000 in gold coin and $10,000 in the note of the corporation, due January 4,1869. The note not being paid, the plaintiff brought an action thereon, on the 22d of January, 1869, and recovered judgment therein. Subsequently, this action was brought to charge the defend- . ant, as a stockholder of the corporation, on the ground that all the capital stock of the corporation had not been paid in, as required by the act. EelA, that the acceptance of the note did not merge or extinguish the 'original indebtedness, but only operated to extend the time of payment, and that, as the plaintiff had not brought an action against the corporation within one year from the time the original debt became due, viz., March-7,1867, the defendant was not liable.
    The liability of a stockholder in suplí cases cannot be renewed or extended by any renewal or extension of the indebtedness which the creditor may make with the corporation.
    Appeal, from a judgment in favor of the defendant, entered on the report of a referee dismissing plaintiff’s complaint.

      Albert Stiekney, for the appellant.

      William G. Wilson, for the respondent.
   Davis, P. J.

The respondent was a stockholder to the amount of $10,000 in a corporation created under the act of 1848, to authorize the formation of corporations for manufacturing, mining, mechanical and chemical purposes. (3 N. Y. Stat. at Large, 733.) By the tenth section of that act, all stockholders of every company incorporated thereunder, are declared to be severally individually liable to the creditors of the company to an amount equal to the amount of stock held by them respectively, for all debts ánd contracts made by such company, until the whole amount of capital stock fixed and limited by such company shall have been paid in, and a certificate thereof made and recorded, as prescribed in the eleventh section of the act. But the twenty-fourth section of the same act declares that no such stockholder shall be personally liable for the payment of any debt contracted by any company formed under this act, which is not to be paid within one year from the time the debt is contracted, nor unless a suit for the collection of such debt shall be brought against such company witliin one .year after the debt shall become due. The capital stock of tlie company, in which the appellant was a stockholder, was not all paid in, nor was the certificate filed, as required by the act. He was, therefore, personally liable for the debts of the company under the provisions of the act above referred to.

The company became indebted to' the appellant in the sum of $39,764.44, for loans and advances made by him to the company. This indebtedness was due on the 8th March, 1867. The referee finds that on the 4th August, 1868, it was agreed between said company and said plaintiff, by parol, that said company should pay,, and the appellant accept, in full satisfaction and payment of said indebtedness, the sum of $25,000 in gold coin, to be paid as follows: $15,000 in cash, and $10,000 in the note of the company. The company thereupon paid $15,000 in gold, and made and delivered to the appellant its promissory note, dated January 1st, 1868, whereby it promised to pay to the order of the appellant, twelve months after date, the sum of $10,000 in gold coin, for value received. This note was not paid at maturity; and on the 22d of July, 1869, the appellant commenced an action against the company on the promissory note in this court and recovered judgment thereon for $14,283.33 gold and $995.03 currency, which judgment remained wholly unsatisfied. This action was' brought to charge the respondent with an amount of said judgment equal to the amount of stock held by him. It clearly appears, and in fact is conceded by all parties, that the action against the company was not brought within one year from the time the indebtedness of $39,764.44 first became due; and it appears equally clear that the action was brought within one year after the note on which the judgment was recovered, became due. The real question in the case is, which was the indebtedness of the company to which the liability of the respondent as stockholder attached; the note or the debt for part of which the note was given ? It is very clear that had the original indebtedness remained in the form in which it stood at the time the note was given, to wit, on the 4th August, 1868, no action could have been maintained against a stockholder of the company to recover the whole or any portion of it, because the lapse of more than one year from the time when the debt fell due, without any suit having been brought against the corporation to enforce it, had completely discharged the stockholders of the company from personal liability.

We think the liability of stockholders in such cases cannot be revived or extended by any renewal or extension of the indebtedness which the creditors may make with the corporation. The question therefore in this case is, whether the making of the note under the circumstances found by the referee, was the creation

of a new debt, or a simple renewal or extension of a part of the old debt. It is a well settled general rule that a promissory note given •for an existing indebted ness is evidence merely of that debt and is not the debt itself; and it is extremely well settled in this State that the taking of a debtor’s note does not merge or extinguish the demand for which it is taken. (Gregory v. Thomas, 20 Wend., 17; Waydell v. Luer, 5 Hill, 448; Cole v. Sackett, 1 id., 516.) In Cole v. Sackett it was held that the original demand was not extinguished although it is expressly agreed to take the note in satisfaction; and the doctriue was reiterated and approved in Waydell v. Luer (supra). (See also, Hawley v. Foot, 19 Wend., 516, and Frisbie v. Larned, 21 id., 450, 452.) To these cases may be added Tobey v. Barber (5 Johns., 68). This last case is regarded as a leading one. (2 Amer. Leading Oases, 225 [243], and other cases there cited.) The operation of such a note is to extend the time of payment until the note becomes due, and if it be not then paid, the creditor may sue upon the original demand, though he must be able to produce at the trial the note for cancellation, or show its loss or destruction. (Oases above cited ; Muldon v. Whitlock, 1 Cow., 290.) The giving of a receipt in full on taking the note is no discharge unless the note be paid. {Schemerhorn v. Loines, 7 Johns., 313.) It appears, in this case, that there was no compromise of a disputed claim, for the corporation did not deny its obligation for the whole amount of its indebtedness to the plaintiff. There was simply an agreement on the part of the creditor to take a less sum than the whole amount concededly due. The note of the company was given in part composition of the less amount. It was not therefore an extinguishment of an indebtedness by way of accord and satisfaction. (Palmerton v. Huxford, 4 Denio, 166.)

In Waydell v. Luer, the Court of Errors did not shake or seek to impair the principle established by the authorities cited, that the naked promise of the debtor himself will not satisfy a pre-existing debt. On the contrary, that case recognized the existing law, and in reversing the judgment of the court below, as reported in 5 Hill (;supra.) based its decision upon grounds which are claimed not to be in conflict with that principle! We have not failed to consider the ingenious argument of the counsel for the appellant, based on the fact that the appellant, by suing on the note and putting it in judgment, has in substance elected to treat it as the debt owing by the corporation; and has, by merging this note in the judgment, not only prevented himself from pursuing any remedy on tbe old indebtedness, but also from surrendering the note as he would have been required to do, had he sued upon the original indebtedness. But these are acts of the appellant himself, to which the respondent in this case cannot justly be said to have assented, and they cannot, we think, deprive the respondent of the right to say that the taking of the note was a mere extension of the original indebtedness, and not a payment of it. If the argument of the appellant’s counsel be sound, it would not be in the power of a stockholder to protect himself against the acts of the corporation and its creditors, however long a time had expired after the maturity of the debt and after the-lapse of his liability thereupon, hy simply changing its form to a note or other obligation, and then proceeding to merge such note or obligation in a judgment. We think this case was rightly decided by the learned referee, for the reasons given in his opinion, and because after a full year has expired from the maturity of a corporate debt without suit, the statutory liability of a stockholder under the act of 1848 is completely discharged.

The judgment must therefore be affirmed.

Daniels and Beady, JJ., concurred.

Judgment affirmed.


author: Davis, P. J.:

text:
    HENRY R. WINTHROP, Individually and as Executor of the Last Will and Testament of MARGARET LOUISA WINTHROP, Deceased, and others, Respondents, v. WINTHROP McKIM, Impleaded, etc., Appellant.
    Will— condition — trust.

    Tlie plaintiffs’ testatrix devised one-half of her estate to her daughter, upon condition that, in anticipation of her marriage, whenever it should take place, all herproperty should be settled upon her for life, with remainder to her issue, or such person as she might appoint by her will; and, “from such marriage, until such settlement, unless it should be made before,” devised the income of the share to her executor in trust to pay over the- net income to her said daughter, with remainder, upon her death, to her issue. After the making of the will the daughter was married with the knowledge and approval of the testatrix, and had issue, but no settlement was ever executed. EM, that, upon the death of the testatrix, the share vested in the executor, as a trustee for the benefit of the daughter during her life, and upon her death, her issue would be entitled to the remainder.
    Appeal from a judgment entered upon the trial of this action by the court, without a jury.

      8. P. Wash, for the appellant.

      E. 8. Van Winkle, for the respondents.
   Davis, P. J.:

This is an action in partition, to which the appellant Winthrop McKim, who is an infant, is made a party defendant for the purpose of determining his rights, if any, in the will of Margaret Louisa Winthrop, his grandmother. The will of Margaret Louisa Winthrop was made and published on the 20th June, 1856. She had two children then living, Thomas P. Winthrop and Harriet R. Winthrop. Thomas was then about fourteen years of age, and Harriet about sixteen. On the 15th September, 1870, Harriet married Haslet McKim, Jr. The testatrix was then living, and was present at the wedding and approved the marriage. The infant appellant, Winthrop McKim, was born of this marriage on the 31st July, 1872, and during the lifetime of his grandmother, the said testatrix, who died on the twenty-sixth of February following. The will made certain provisions for the husband of the testatrix, and then gave the residuary estate to her two children in equal shares ; but, as to the share of the daughter, provided as follows: “ To my daughter, Harriet R. Winthrop, I give the other share of my said real and personal estate, to have and to hold the same to her and her heirs, executors, administrators and assigns forever, but on the condition in anticipation of her marriage whenever it shall take place a settlement of all her real and personal estate shall be made by some effectual deed to trustees, securing to her the net income during her life, and securing the remainder to her issue and next of kin after her decease, or in such manner as she may appoint by will, to and among her kindred, or any of them; the details of which settlement shall be approved by her father, if living. And from the marriage until such settlement, unless it be made before, I give the income of the said last mentioned share to the executor of this will, in trust, to apply the net income to her use. And I give the remainder to her issue, in fee simple,per stirpes, or, failing issue at her death, to her heirs at law or next of kin.”

No marriage settlement has ever been made by Harriet, nor were the provisions of the will in reference to such a settlement known to her until after the testatrix’s death.

The court below held that all the provisions of the above clause of the will, after that which standing alone would give an absolute estate to Harriet R. Winthrop, were conditions subsequent; that such conditions became impossible of performance, and were therefore void; and that Harriet (now Mrs. McKim) took an estate absolute, in fee; and that the infant appellant had no interest in remainder in the property.

The intention of the testatrix, in the above quoted provisions of her will, seems to us clearly apparent. She contemplated her daughter Harriet in two relations or conditions of life; the one as a single or unmarried person, and the other as a wife. And she intended to provide for her in both of these relations or conditions. If she remained unmarried, the intention of the testatrix was to give her an absolute estate, in fee, in all that portion of her property mentioned in the third clause of the will. But, upon the happening of her marriage, she intended to put the property beyond the control of a husband, and in such form that her daughter should enjoy the net income during her life, and that the remainder should go to the issue of the daughter) her heirs at law, or such of her kindred as she might appoint by will.

To accomplish these objects the testatrix provided, first, for a settlement to be made by her daughter in anticipation of marriage, by some effectual deed to trustees, the details of which should be approved by her father if living. But she did not intend that a failure to make such settlement should, under any circumstances, have the effect to prevent her daughter from enjoying the benefits of her bounty after her marriage. She therefore anticipated the possibility of an event which has actually occurred, to wit, her daughter’s marriage without having made any ante-nuptial settlement. For that purpose she added the clause to her will under which the appellant claims an interest in remainder. By that clause slie declares that unless the settlement mentioned in the preceding provisions be made before marriage, she gives, from the marriage of her daughter, until such settlement be made, the income of her daughter’s share to the executor of her will in trust, to apply the net income to her use during her life and the remainder to her issue in fee simple per stirpes; or failing issue, at her death to her heirs at law or next of kin.

It is claimed on the part of the respondent that these provisions were all made in contemplation of a marriage subsequent to the death of the testatrix, and that the marriage of her daughter having in fact occurred before her death, and with her approval, the conditions have become impossible of performance. But this position does not seem to us to be well taken. The testatrix of course knew that her will would only speak from the time of her death; and she may be assumed to have supposed that the marriage of her daughter would not occur until after that event. But this being so, cannot change provisions which clearly look to a settlement both ante and post-nuptial, the latter on failure of the former, and also to the complete disposition of the property on failure of both. The first provision, to wit, that which relates to an ante-nuptial settlement, applies to a marriage whenever it shall take place. There can, it seems to us, be no doubt that if Harriet B. Winthrop before her marriage with Mr. McKim had made such a settlement upon herself as is provided for by this provision of the will, that fact would have operated upon the estate she took under the will, and subjected it to the control of its provisions. Having married without any such settlement, the condition which required it failed to operate, and thereupon the provision which disposed of the estate until such settlement should be made after marriage, came into complete operation. It was not the intention of the testatrix to take the control of the property absolutely out of the hands of her daughter, because on failure of an ante-nuptial settlement she still left it in her daughter’s power to choose her own trustee by a post-nuptial settlement; but, until that should be done, the testatrix placed the estate in the hands of a trustee of her own choosing, and disposed of the remainder on her daughter’s decease, in substantially the same manner as she intended it to be disposed of in case a settlement should be made.

The argument that the condition subsequent failed by becoming impossible of performance, and therefore that the estate goes in fee to the daughter, is fairly met in two ways: first, that both of such conditions have not failed, because it has not become impossible, after the provisions of the will were fully known to the daughter, to make the post-nuptial settlement contemplated by the testatrix ; second, that even if both of the conditions have failed by becoming impossible of performance, as supposed, the consequence is not that Mrs. McKim takes the fee absolutely, because another consequence is very plainly provided by the will to attach to the failure to make any settlement, and that is, the gift of the income of all the property to the executors in trust to apply the net income to Mrs. McKim’s use, and a devise of the remainder to her issue or heirs as therein directed. It does not seem to us doubtful that Mrs. Winthrop, the testatrix, in case of the marriage of her daughter, meant to place her gift in subjection to a settlement to be made before or after marriage, or to put it into the hands of a trustee of her own choosing for the benefit of her daughter and her daughter’s children. It is no reason, because the former of these intentions fails for any cause whatever, that therefore the latter, which is clearly expressed in the will, should be defeated. Where such a construction would defeat a manifest intention of the testatrix it ought not to be adopted. When the will of Mrs. Winthrop became operative, it found her daughter Harriet a married woman without a marriage settlement; and it contained a provision disposing'of all the share which was intended to be given to her absolutely if unmarried, in accordance with the wishes of the testatrix if she were married. That provision cannot be disregarded. These views require us to hold, that the share of Mrs. McKim is now vested in the executor of the will as a trustee for her benefit during her life, and that at the termination of the trust by her death, the appellant, as her issue, will be entitled to the remainder.

The judgment of the court below, so far as it affects this question, must be reversed, and judgment entered in accordance with this opinion ; the costs of both parties on this appeal to be paid out of the estate.

Daniels and Brady, JJ., concurred.

Ordered accordingly.


text:
    ROBERT H. FISHER and others, Appellants, v. MAYOR, Etc., OF THE CITY OF NEW YORK, Respondent.

      Order appointing commissioners of assessment — mistake in na/rm of commissioners— Assessment — presumption of payment of.

    By an order of this court, made in 1837, John Dusenbury and two others were appointed commissioners of assessment. Subsequently the oatli of Ojiarles Dusenbury and the two other commissioners was filed, and all subsequent proceedings and reports were signed by Charles Dusenbury and the two other commissioners, no objection appearing to have been made by any of the parties.. Held, that it would be presumed that Charles Dusenbury was the person intended to be appointed, and that the name of John was inserted in the original order by mistake.
    When more than twenty years have elapsed since the imposition of an assessment, a presumption arises that it has been paid. Such presumption is, however, a prima facie one merely, and may be repelled by other evidence.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    The complaint alleged that the defendants had had in their possession $13,800, an award which had been made to certain owners of property in New Yrork city, these plaintiffs. That the defendants had paid of said award the sum of $11,059.43, leaving $2,740.57 in their hands. The defendant pleaded: first, the six years statute of limitations; second, that the $2,740.57 were retained to pay an assessment theretofore made upon the plaintiffs’ lands and due and payable from them. The plaintiffs replied, alleging no knowledge or information sufficient to form a belief as to the proceedings resulting in the said assessment set up in the answer as imposed on their property; and they denied that the said assessment remained due and unpaid to the defendant until the 24th day of April, 1862, or that on the day last mentioned the sum of $2,740.57 was due thereon for principal and interest, from the plaintiffs' to these defendants.
    The plaintiffs further alleged that the said assessment was illegally imposed, and, soon after' the assessment and claim therefor, the amount thereof was paid to the defendants by the ancestor of the plaintiffs and the owner of said premises, one Fisher, now deceased, and the said assessment was marked paid on the public records of the said defendants; soon after which the said assessment was discovered to be illegal and of no validity, and thereupon the defendants voluntarily returned and refunded the amount so paid to them by the said Fisher, deceased, on said assessment.

      Philip 8. Crooke, for the appellants.

      David J. Dean, for the respondent.'
   Davis, P. J.:

When this case was before the court on the former' appeal, several questions now raised were disposed of, as appears by the opinion of the court in Fisher v. The Mayor (3 Hun; 618). The court adheres to the opinion then pronounced. It was not shown on the trial, that any order of the court confirming the report of the commissioners of the assessment- in 1887, had ever been made. The admission was only to the effect that after diligent search in the office of the clerk, that order could not be found. We think, however, that the other facts in respect to the proceedings in which the order became a requisite step, were sufficient to uphold the presumption that the order was properly and formally made. The memorandum of the entry of the making of the same, in the official register of the then corporation counsel, tended to corroborate that presumption. We think it was properly admitted in evidence; but if there were doubt on that subject there is still enough to uphold the presumption, in the absence of any proof tending to show that the order was not made, beyond that showing that at this late date it could not be found in the office of the clerk. It appeared that the order appointing the commissioners was granted June 6th, 1835. That order recited the facts in the petition, described the premises, and appointed John Dusenbury and two other persons commissioners. -On the tenth of June following, the oath of Charles Dusenbury and of the two other commissioners named, was Hied. On the same day, the petition was presented to have the rule and order of June sixth so amended as to bring in other lands, which petition was granted on the nineteenth November following. On the 19th of December 1836, proof of publication and notice that the commissioners would present the report for confirmation on December 22d, 1836, and that the same had been filed, was made; proof of publication in the Evening Post and the New York Times, and the additional report of the commissioners was also filed, which corrected their former report as to several entries. On January 4, 1837, the report of Charles Dusenbury and the two other commissioners named was filed, stating the assessment of loss and damage to George Eisher, and also reporting the opinion of the commissioners of the benefit to various lands of part of the plaintiffs, as well as of other persons. These several reports appear to have been signed by Charles Dusenbury as well as by the other commissioners ; and no objection appears to have been made that Charles Dusenbury was not in fact the person appointed, or intended to be appointed, by the original order, instead of John Dusenbury. It is fair, therefore, to presume that Charles Dusenbury was the person intended to be appointed, and that the name John was inserted in the original order by mistake ; and that the court, in all the various steps and proceedings, as well as the parties in this suit, recognized Charles Dusenbury as one of the commissioners. Besides, it appears by section 188, chapter 89, of the Laws of 1813, that it was competent for two of such commissioners to proceed and .perform the duties of the appointment, and the section declares that their acts shall be as valid and effectual as the acts of all of the said commissioners. ¥e think, therefore, that the objection that Charles Dusenbury appears to have acted instead of John Dusenbury, was not well taken.

The assessment of 1837 was not barred by lapse of time. It was a lien upon the premises, which might have been enforced, as in the nature of a mortgage, as was held by this court in the opinion already referred to, and was subject only to a presumption of payment. Such presumption was applied by law prior to the act of 1848, and, as was stated by Bronson, J., in Henderson v. Henderson (3 Denio, 314), was a prima facie presumption which may be repelled. If the plaintiffs were not bound to reply to the answer setting up the lien of' the assessment and the right of the city to reserve such lien by retaining the' money in question, yet they assumed to reply; and, in doing so, they only alleged payment in a form which, upon their own showing, appears to have been no payment. (See Doughty v. Hope, 1 Comst., 79.) Upon the question of fact, whether the presumption of payment, assuming it to have been available to the plaintiffs under the pleadings in this action, was rebutted, there was certainly some evidence for the consideration of the court. First, the proceedings whicli were taken to collect the assessment, by sale of the assessed premises, under the statute, in 1838; second, the refunding, to Leonard Fisher, on the 14th of May, 1852, of the moneys paid on such sale, on the discovery that the sale was invalid by reason of certain irregularities in making the same, the operation of which was to restore the assessment as an unpaid one in May, 1852 (Mayor v. Colgate, 12 N. Y., 140); and, third, the delay in prosecuting this action for seven years after it must have been well known to the plaintiffs that the moneys now demanded were retained by the defendants expressly on the ground of their lien on the premises for the assessment of 1837.

It is not necessary to consider the question whether the defendants’ plea of the statute of limitations is or is not well taken in this case. For the reasons above assigned, and for those assigned when the case was formerly before us, we think the judgment should be affirmed.

Daniels and Brady, JJ., concurred.

Judgment affirmed.


text:
    In the Matter of the Petition of THOMAS GARDNER to Yacate an Assessment for Regulating, Grading, etc., One Hundred and Thirty-eighth Street from Fourth to Eighth Avenue.

      Commissioner of public works — Chap. 574 of 1871 — chap. 313, 1874 — Assessment— “frauds”— what a/i'e not.

    When tlie commissioner of public works, in pursuance of section 5 of chapter 574 of 1871, completes any work, the contract for which has been abandoned by the contractor or forfeited for his misconduct, he is not required to comply with the restrictions and obligations of the general statute relating to the advertising and letting of contracts for public works.

      Tlie facts that an assessment imposed upon a lot exceeds in amount one-half its valuation by the assessors, and that those making the assessment have adopted an erroneous principle of assessment, do not constitute “ frauds,” but are at most mistakes of law and misapprehension of official duty, and they cannot, under chapter 313 of 1874, be made a ground for vacating the assessment.
    Appeal from order of the Special Term, denying petitioner’s motion to vacate an assessment for regulating, grading, etc., One Hundred and Thirty-fifth street, from Fourth to Eighth avenue, in the city of New York.

      James A. Deermg, for the appellant.

      William Barnes, for the respondent.
   Davis, P. J.:

The court below found that: It does not satisfactorily appear that the fraud and legal irregularities alleged in the petition to have been committed in the proceedings relative to said assessment, have been committed,” and thereupon denied the prayer of the petition. We are at liberty, upon this appeal, to look into the facts of the case for ourselves; but we think that upon general principles, when a trial court has passed upon facts, its finding should be accepted by us as conclusive unless it appears very clearly to be wrong. It appears in this case that the contract made with Kehoe was abandoned by him after a small portion of the work under it had been done. - It appears also quite satisfactorily that Kehoe, while pursuing the work under his contract, committed divers depredations, in carrying off and disposing of valuable sand found in the road, without making any compensation therefor, and that no damages for the breach of his contract had ever been recovered by the city against him; nor has any suit been commenced therefor. We do not think these facts, however clearly shown, constitute a fraud on the part of the city or its officers which should be allowed to vitiate the assessment for the work done on the street.

Ivehoe was not paid for some portion of the work done by him, but it appears that the commissioner of public works had certified that he was entitled to be paid for work done under his contract to the amount of $3,032.29, and that that sum formed a part of the total cost of the improvement assessed upon the owners of lands benefited. After Kehoe had abandoned the work an act was passed by the legislature of this State, on the 30th March, 1871 (chap. 227), particularly relating to this work, and which is in the following words:

“ Section 1. The commissioner of public works of the city of New York is hereby authorized and directed to immediately cause One Hundred and Thirty-fifth street, from the Harlem river to the Eighth avenue, to be regulated, graded, curbed, guttered and flagged.
§ 2. The board of assessors in the city of New York are hereby authorized and directed to assess upon the property to be benefited, in the manner provided by law for making assessments for local improvements, the expenses which shall be actually incurred by the mayor, aldermen and commonalty of the city of New York, for such regulating, grading, curbing, guttering and flagging; which sums so assessed, shall be a lien upon such property, and all provisions of law relative to the collection of assessments for local improvements in said city shall apply thereto. •
“ § 3. This act shall take effect immediately.”

This statute is especially limited in its operation to One Hundred and Thirty-fifth street, from Harlem river to the Eighth avenue ; and it places the whole matter of regulating, grading, curbing, guttering and flagging that street in the hands of the commissioner of public works. By section 5 of chapter 574 of the Laws of 1871 (vol. 2, p. 1234), it is also provided that, whenever any contract for public work shall be abandoned by the contractor, or declared void by reason of any action of the contractor, etc., the commissioner of public works shall have the authority to proceed with the work contemplated in said contract in such manner as shall seem to him to be for the best interests of the city; and the board of assessors of the city of New York are directed and authorized to assess upon the property intended to be benefited, in the manner provided by law for making assessments for local improvements, the expenses which shall be actually incurred by the city for such work.

It has been held by the Court of Appeals that a statute of this character relieved the particular work done under it from the obligations and restrictions of the general statutes which require the advertisement and letting of contracts for public works to be made in a prescribed manner. (Greene v. Mayor, Ct. Ap., MS. opinion Rapallo, J.) That case, as decided in this court, is reported in. 1 Hun, 24. The Court of Appeals reversed the judgment of this court, and according to the decision of that court the commissioner of public works had full authority, under this act, to make the contract for the completion of the work; and upon a motion to vacate an assessment, the ground ordinarily taken in this class of cases, of want of notice by advertisement or otherwise, will not be available.

Two other grounds for vacating the assessment are urged by the counsel for the appellants with much ability and ingenuity. They are these: First. That by statute, assessments of this character cannot exceed one-half of the valuation of the lands by the assessors for purposes of general taxation. And that the relator’s lots are, in fact, assessed for this improvement for a sum considerably exceeding one-half of such general assessment.

Second. That the assessments were made upon an erroneous principle, by which the lots were assessed, not with any view to the benefit actually received, or their respective value, but in accordance with a general system of dividing the gross cost of the improvement by the whole number of lineal feet of the frontage of lots along the street, and. imposing upon each lot an assessment in proportion to its number of lineal feet; and that this proceeding was done in this case by the clerks in the assessors’ office without personal examination into the benefits received by the several lots, or anything more, on the part of the assessors, than finally giving their sanction to the mathematical results at which these clerks had arrived. We are relieved from any expression of opinion whether these grounds are founded in fact, or, if so founded, whether they can stand the test of judicial scrutiny. If true, as alleged, they are not frauds,” but, at most, mistakes of law and misapprehension of official duty, and cannot, under chapter 313 of the Session Laws of 1874, page 366, amending section 7 of chapter 580 of the Session Laws of 1872 (page 1412), be made á ground for vacating the assessments. The remedy for such error is by eertiora/ri, or some proceeding different from the present which does not seek to correct but to annul the assessment. It follows from these views, that the order of the court below should be affirmed, with ten dollars costs besides disbursements.

Daniels and Brady, JJ., concurred.

Ordered accordingly.


author: Davis, P. j.:

text:
    THE NATIONAL BANK OF FAIRHAVEN, Respondent, v. THE PHOENIX WAREHOUSING COMPANY, Appellant.

      JSstoppel — -when party estopped from denying incorporation of lank — National lank heated in anoth&r State — right to keep office for discount in this State — 1JJ. S. (2d ed.), 708, §§ 6 and 7.
    Where, in an action upon a promissory note made by the defendant, it appears that he has been in the habit of dealing with the plaintiff as a corporation, and did so deal with it in respect to the note in suit, he is estopped from denying the fact of its incorporation.
    A national bank, organized and doing business in another State, is prohibited, by 1 Eevised Statutes' (2d ed.), 708, sections 6 and 7, from keeping an office of discount or deposit in this State, and cannot maintain an action upon any note discounted by it at such office.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought upon six promissory notes made by the defendant to the order of The Architectural Iron Works, and by it indorsed to the plaintiff.
    The referee found that the plaintiff was a bank duly incorporated under the laws of the United States, doing banking business in the State of Massachusetts; that the defendant was a corporation; that six notes were made by the defendant to the Architectural Iron Works, and, before maturity, were duly indorsed to the plaintiff;' that said notes were due and unpaid.

      F. E. Dana, for the appellant.

      John Winslow, for the respondent.
   Davis, P. j.:

The plaintiff' sufficiently proved its incorporation under the general banking laws of‘the United States by the production of the certificate of the comptroller of the currency. The point that a copy and not the original certificate was produced, was distinctly waived, and cannot now be urged. Besides, it appeared by the evidence in the case, that the defendant was accustomed to deal with the plaintiff as a corporation, and did so deal in respect of the notes in suit. The defendant was thereby estopped from denying the incorporation of the plaintiff. (Palmer v. Lawrence, 3 Sandf., 161; Steam Wav. Co. v. Weed, 17 Barb., 378; White v. Coventry, 29 id., 305; Sands v. Sill, 42 id., 651; White v. Loss, 15 Abb. Pr., 66.) There was sufficient evidence to show the making of the notes by the defendant. Its incorporation was admitted by the answer. The signatures of the president and secretary to the motes in suit were proven. That was enough to show, prima facie at least, that the notes were properly made on behalf of the •corporation, and to devolve the burthen on the defendant to show that they were made without authority and outside of the business of the corporation. No attempt was made to do this.

The offer of the defendant to show failure of consideration of the notes, in whole or in part, was properly rejected; it was not accompanied with any offer to show that plaintiff was not a holder of the paper in good faith and for value in due course of business; and it already appeared that its notes had been discounted or taken in renewal of discounted paper, in due oourse of business. It was of no importance that, after the non-payment of the notes at maturity, the plaintiff had received collateral security from the indorsers of the notes. That fact could not affect the plaintiff’s right to enforce the notes still held by it as the principal indebtedness. There is nothing in the point that the referee allowed interest on the notes. The law awards interest, and the court or a referee may compute it without any other proof than what appears on the face of the notes.

This disposes of all the points of the appellant but one, and that seems to us altogether more serious.

The plaintiff was a banking corporation, organized under the laws of .the United States, doing business in the State of Massachusetts. It was, therefore, a foreign corporation, and as such was subject to the restraining laws of this State whenever it attempted to do hanking business within this State.

The defendant offered to show, “ that at the time of the discount of the original notes and of the discount of the notes in suit, plaintiff had an office in the city of Now York for banking purposes, and that these notes were discounted at that office.” The proof of the offered facts would prima fade show an illegal discounting of the paper in this State, in direct violation of the statute, which prohibits all corporations, not authorized by the laws of this State, from keeping an office in this State for the purpose of discount or deposit (1 R. S. [2d ed.], 708, §§ 6, 7), and would have devolved upon the plaintiff the necessity of showing that it was authorized by law to keep such office and discount the notes in this State.

The authorities settle that there can be no recovery in the courts of this State upon paper thus discounted by a corporation acting in violation of our statutes. (De Groot v. Van Duzer, 20 Wend., 390; New Hope Delaware Bridge Go. v. The Poughkeepsie Silk Go., 25 Wend., 648; 1 R. S. [2d ed.], 708, §§ 6, 7.) Section 2 of article 1, title 4, chapter 8, part 3 of the Revised Statutes (2 R. S., 458), provides that where by the laws of this State any act is forbidden to be done by any corporation of this State, without express authority of law, and such act is done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of, or entered into in consideration of such act. The provisions of these statutes are still in force, and we see no reason why they are not as applicable to the national banks located and doing-business in other States, as to /my other class of foreign corporations. It is no answer to say that the evidence already given by the plaintiff showed that such offer was not founded in fact. The defendant was not estopped by that evidence from showing the fact to be otherwise, and in accordance with the assertion of its offer. It seems highly probable that it would have failed in the attempt; but that is no legal reason for denying the right to give evidence, tending to prove the offered facts, for the consideration of the referee.

-The exception to the refusal to permit proof under the offer was well taken; and for this error the judgment must be reversed and a new trial granted, costs to abide the event.

Daniels and Brady, JJ., concurred.

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


text:
    ROBERT MARTIN, as Executor, etc., Respondent v. CATHERINE NESTOR ENNISMON HICKS, Appellant.

      Order refusing to postpone trial — appeal from — remedy.

    No appeal lies directly to tlie General Term from an order made at the Circuit refusing- to postpone the trial of a case.
    Tlie remedy is, in tlie first instance, by non-enumerated motion at Special Term.
    Appeal from order made at the Circuit denying a motion to postpone the trial of the above entitled action.

      John A. Wright. for the appellant.

      Joseph Laroque, for the respondent.
   Davis, P. J.:

We are of opinion that no appeal lies directly to the General Term from, an order made at Circuit refusing to postpone the trial of a case. The correct practice in such cases is laid down in volume 3 of Wait’s Practice (at page 77), as follows : “ Where a party defendant feels himself aggrieved by a refusal to postpone the trial, whether such refusal be made on a trial by jury or a trial by the court, he may withdraw from the trial; and, if the trial proceeds, and the cause is decided against him, he may, upon affidavit showing the application to postpone, the papers upon which it was founded, its denial, and that a decision has been made against him, make a non-enumerated motion, at Special Term, to set aside such decision. He may also remain and try the case on the merits, and, in case of a decision against him, either .pursue the same course to obtain a new trial, or may, if the trial was by jury, under section 265, move at Special Term, on a case, for a new trial, alleging, as one of the grounds, the refusal to postpone the trial; or, if the trial was by the court, he may then, under section 268, appeal directly to the General Term, alleging, as cause for reversal, the refusal to postpone. (Howard v. Freeman, 3 Abb. [N. S.], 292; Ogden v. Payne, 5 Cow., 15; Hooker v. Rogers, 6 id., 577; People v. Vermilyea, 7 id., 369 ; Brooklyn Oil Works v. Brown, 38 How., 451; S. C., 7 Abb. [N. S.], 382; Miller v. Porter, 17 How., 526.)

The appeal from the order of the Circuit Court should, therefore, be dismissed, with costs.

Daniels and Brady, JJ., concurred.

Appeal dismissed, with costs.


author: Davis, P. J.: Brady, J.

text:
    HARRIET ADA TRUBEE, Respondent, v. GEORGIA V. ALDEN, Appellant.

      Pendency of suit in another State— attachment issued, in — effect of, on attachment in this State.

    Plaintiff brought an action against the defendant, in the State of Connecticut, to recover certain personal property, which was seized by the sheriff and released upon the execution of a bond for its appraised value, $14,000. Subsequently she brought this action, in this State, to recover damages for the conversion of this same property, and attached property of the defendant of the value of $31,000. Held, that the plaintiff should be allowed to attach only so much property as was necessary to secure the additional amount claimed in this action, unless she elected to abandon the suit in Connecticut, in which case she might retain her attachment for the full amount. (Brady, J., dissenting.)
    Appeal from an order made at the Special Term, denying a motion to vacate an attachment issued in this action in the sum of $31,961, with interest.
    This action was brought to recover damages for the alleged conversion of a large amount of personal property.
    The affidavits of the defendant and her counsel, read upon the motion to vacate the attachment, show that before this action was commenced, another action for the same cause was brought by the plaintiff against the defendant, in the Superior Court of Fairfield county, Connecticut; that in said action the personal property forming the subject-matter of both suits, was attached by the sheriff of Fairfield county, Connecticut, and taken into his actual, manual possession, and that, subsequently, bonds were given by the defendant for the same in the amount fixed by the court as the value of the articles according to the statutes of the State of Connecticut, namely, $14,000.

      Wm. II. Anthon, for the appellant.

      D. G. Birdsall, for the respondent.
   Davis, P. J.:

The plaintiff sued the defendant in Connecticut in an action of trover for the identical goods which form the subject of her claim in this action. The goods were seized by the sheriff in the suit in Connecticut by attachment, and released on valuation, and on the execution of a bond of $14,000. That suit is still pending. The plaintiff has since commenced this action, and sued out an attachment for the full amount of the claim, and attached defendant’s property. It is well settled that the pendency of a suit for the same cause of action in another State is no bar to an action therefor in this State. On this point the authorities are numerous. But it does not by any means follow that the court will not take ■notice of the fact of such pendency in considering questions affecting provisional remedies. If, for instance, a defendant has been arrested and given bail in another State for a cause of action, and afterward comes into this State, will the court permit the plaintiff, by a new action brought here for the same cause, again to arrest and hold the defendant to bail, and still continue his suit, and enforce his bail in the former State? The discretion which courts possess over provisional remedies would require sharp inquiry, whether in such a case prosecution had not degenerated into persecution, and to take care that its process was not used for the latter purpose. Each case would be governed by its own circumstances, but in no case, I apprehend, where good bail for the full amount had been put in, in due course, in the action pending abroad would the court permit the same thing to be repeated here without the discharge of the bail there, or clear proof that the defendant was fraudulently evading his obligations to them, or doing some other act that made it imperative to secure the personal remedy here ? I see no reason why the same rule should not apply to attachments. In this case, the plaintiff, for the identical cause of action, has attached, in Connecticut, the property of defendant, to release which, a bond which must be assumed to be good, for $14,000 has been executed. Why should she be permitted, in another action for the same cause, to harrass the defendant by attachment here, except to an extent for which she has not adequate security there ? It is said that her claim exceeds $14,000. Very well, she may then have, under provisional remedy here, an adequate additional security, but why a cumulative one for the whole amount? I think the courts of this State ought not to surrender their discretion over provisional remedies by holding that because actions may be brought here for the same causes for which suits are pending in other States, that, therefore, pending such actions, the plaintiff may arrest persons or attach property, regardless of the same or similar steps taken in her other suits.

I do not agree, therefore, with the conclusion of my Brother Brady but think that the attachment in this case should be modified to cover a sum adequate as additional security, unless the plaintiff choose to abandon the similar proceeding in Connecticut, in which case the order should be affirmed.

Daniels, J., concurred.

Brady, J.

(dissenting):

The defendant seeks to have the attachment issued against her vacated upon the ground that before this action was commenced, she was prosecuted by the plaintiff in trover in Connecticut for the recovery of the identical goods and chattels which form the subject or basis of her claim in this proceeding, and that an attachment was issued against the property seized, which was released from that process, only on her giving a bond in the sum of $14,000, which was the estimated amount of its value. She also asks to have the attachment vacated upon the further ground, that this court ought not to take cognizance of actions of tort committed in another State between residents of that State, and further upon a technical ground also which will be mentioned hereafter. In reference to the second ground stated it may be said here, that the plaintiff alleges herself to be a resident of Brooklyn in this State, and that seems to be a sufficient answer to the point taken. If any other be necessary it may be given as follows: actions to recover injuries to personal property may be maintained wherever jurisdiction of the parties can be obtained. The action in other words is transitory. The ruling in Maloney v. Dows (8 Abb. Pr., 316), has no application to such cases. (McIvor v. McCabe, 26 How. Pr., 257; Smith v. Cuver, 1 Daly, 508.) In regard to the first ground stated, it must be said that there is no authority to sustain it. It has been held in numerous cases, that the pendency of an action in another State is no defense to an action here for the same cause although the recovery of a judgment might be. (Brown v. Joy, 9 Johns., 221; Walsh & Gallagher v. Durkin, 12 id, 99 ; Mitchell v. Bunch, 2 Paige, 606; Hecker v. Mitchell, 5 Abb., 453; Osgood v. Maguire, 61 Barb., 54; Burrows v. Miller, 5 How., 51; Cook v. Litchfield, 5 Sandf., 330; Republic of Mexico v. De Arangoia, 5 Duer, 64-3; Williams v. Ayrault, 31 Barb., 364; Strong v. Stevens, 4 Duer, 668.) It has not been adjudicated, in an-y case to which our attention has been called, that an attachment issued in such a suit between the same parties has been admitted to be a bar or good defense. It has been held that an attachment levied upon a debt or claim at the instance of a creditor of the owner of it, is a good defense to an action by the latter, against the debtor. The decisions rested upon the ground that if both actions were allowed to proceed in favor of different claimants in different jurisdictions, the unfortunate debtor might be compelled to pay twice. Such were the cases of Embree v. Lla/rma (5 Johns., 101); Wheeler v. Raymond (8 Cow., 311); and the case of Burrows v. Miller (5 How. Pr., 51), is no broader in its dictum. In this case there is but one claimant in both actions and payment in either would determine the other. The satisfaction of a payment in either would destroy a judgment in the other and the remedy to. accomplish that result would be simple and sure. It must be said also that in the action commenced in Connecticut the bond is quite insufficient to cover the damages claimed in that action and equally so in this. If the recovery in that State were more than the amount of the bond, it would not be secured by the result of the attachment proceedings, a circumstance which, if the question considered were res nova, would have an important bearing upon the treatment it should receive. It must also be said that the plaintiff alleges this action to be commenced to recover damages in addition to those sought to be obtained in the action in the other State, and thus makes the gravamen of the suits different. It is not necessary however to pursue this subject further. If the property attached had been sufficient to pay the plaintiff’s debt, that fact would not constitute a good defense. Hecker v. Mitchell, 5 Abb., 453.) This rule seems to be a harsh one, and doubtless is; but it results from the application of the authorities on the subject of another action pending in another State, which rest upon the principle that it is payment or satisfaction alone, under the foreign proceedings, which is regarded by our courts. (Burrows v. Miller, suqora.) When the property seized is not sufficient to meet the claim made its hardship is not so apparent. The proper remedy, in cases like this, would seem to be a motion to compel the plaintiff to elect in which action he will proceed, and to confine him, when the choice is made, to the one selected. Whether that be a correct view or not, however, it appears that the first ground stated is not available to the defendant. The technical point alluded to is, that the approval of the undertaking, given when the attachment herein was applied for, was not indorsed on that instrument but on the affidavit. This was an oversight of the justice presiding at the chambers, and it was corrected at once on his attention being called to it. There is no reason for disturbing the order made at Special Term, and it must be affirmed, with costs. Justices Davis and Daniels do not concur in these views. I do not regret that the result arrived at by them is adverse, because, as I have suggested, I think the rule declared a harsh one; but it is the necessary sequence of the cases affecting the question, and I have yielded to the doctrine of stare decisis. It is well to depart from that doctrine occasionally, perhaps constantly, but such a course must unsettle the practice and the rules of law. If a party may be a suitor he cannot be deprived of the remedies granted by the law of his forum. If he can, then he is' only a quasi suitor.

I still adhere to the view that the remedy is by motion to elect.

Order modified so that the attachment be made to include such an amount only as will be equal to the difference between the amount of the bond given in Connecticut and plaintiff’s entire debt, unless plaintiff, within twenty days, stipulates to discontinue the action pending in Connecticut, in which ease, order affirmed.


author: Brady, J.:

text:
    PETER B. ROSS, Appellant, v. PETER B. ROSS and CORNELIUS P. ROSS, Executors, etc., and others, Respondents.

      Statute of limitations — mutual accounts— Gode, § 110 — revival of old, debt by new promise.

    Accounts are mutual where each party makes charges against the other.
    Where an executor, in preparing an inventory of the estate, included therein a promissory nolo given by him to the testator, which note was then outlawed: held, that this was a sufficient acknowledgment in writing, within section 110 of the Code, to remove the bar of the statute of limitations.
    Where an instrument has been executed between persons standing in the relations of parent and child, guardian and ward, physician and patient, or solicitor and client, it rests upon the party seeking to avail himself of the benefit thereof to show it to be fair and just, and that its execution was not procured by fraud or undue influence.
    If, upon an appeal from a decree of the surrogate, one of the respondents wishes to raise any question between himself and any of the other respondents, he must himself appeal from the decree.
    Eule 51 only allows a respondent to specify, in his answer, items as to which the decree is erroneous as against him and in favor of the appellant. It does not authorize a review of claims of the appellant against the estate, generally, which have been allowed, or of similar claims of the respondents which have been disallowed.
    Appeal from a decree of the surrogate of the county of New York, in the matter of the final accounting of the executors of William S. Ross, etc.

      L. 8. Chatfield, for the appellant.

      Charles H. Glover, for the executors.

      W. A. Halbert, for the respondents.

      Gideon J. Tucker, for the respondent Mrs. Uglow.

      Walsh, Halbert <& Eckerson, for the respondents J. H. and E. M. Ross.
   Brady, J.:

Peter B. Ross, who is the appellant, claims immunity from the payment of certain notes charged against him, on the proposition that the statute of limitations has applied. There are two answers to this.

First. It appears that there were mutual accounts between the testator and him, mutual dealings and reciprocal demands, extending certainly from April I, 1863, to January 1, 1873. The notes were dated in the months of October and November, 1860, save one of them, which had no date. The account rendered by appellant is for rents collected from April, 1863, to December, 1872, and for services for which no dates are given. Those were doubtless rendered during the period included between the several dates given. The account on the other side, and in favor of the testator, was composed of bonds, and the notes, and the accumulating interest. There can be no doubt that the relations thus existing established a mutual account.' Accounts are mutual where each party makes charges against the other. (Tucker v. Ives, 6 Cow., 193; Kimball v. Brown, 7 Wend., 322; Chamberlin v. Cuyler, 9 id., 127; Edmondstone v. Thomson, 15 id., 554; Catling v. Skoulding, 6 T. R., 189; Sickles v. Mather, 20 Wend., 72.) When there is a mutual open current account and reciprocal demands, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side. (Code, § 95.) Secondly. Although the statute of limitations has applied the debt may be revived. (Code, § 110.) The revival must be by acknowledgment or promise in writing, signed by the party. It must be an unqualified admission of the debt, and indicate an intention or willingness to pay it, or justify the presumption of such intention or be of such form that a promise to pay may be implied from it. (Turner v. Martin, 4 Robt., 661; Loomis v. Decker, 1 Daly, 186; Com. Mut. Ins. Co. v. Brett, 44 Barb., 489; McNamee v. Tenny, 41 id., 506; Bloodgood v. Bruen, 4 Seld., 368; Frost v. Bengough, 1 Bing., 266; Mosher v. Hubbard, 13 Johns., 510; Winchell v. Hicks, 18 N. Y., 560.) In the inventory made by the appellant, as one of the executors of the testator, and verified in the usual form, these notes were set out as assets of the testator. This was held by the referee to be a written and signed acknowledgment of the existence of the notes from which a willingness or promise to pay them could be implied. This conclusion was clearly correct. It seems to be impossible, reasonably, to draw any other inference from the statement of them as assets, when the appellant had it in his power to characterize them as outlawed and valueless. He could have, at least, assumed that attitude, but there is no evidence that he did so. He made no request or demand to have it done by his co-executor. There is evidence also tending to show a recognition of the validity of the notes, by accepting them as a part of the sum of $15,000 to which he was entitled from the estate of the testator. The question or issue thus presented is in conflict, perhaps, on the evidence, but the referee has given the estate the benefit of that circumstance. It is not necessary, however, to invoke it. The statement of the notes as assets is in itself sufficient to take them out of the statute. The insertion by an insolvent debtor in the inventory of his debts, of one otherwise discharged by the' statute, is a sufficient acknowledgment to revive the obligation to pay. (Bryar v. Willlocks, 3 Cow., 159; Stuart v. Foster, 18 Abb. Pr., 305.) In the latter case it was said, per Jamís, J.: “ The Code does not define what the writing shall be; it merely requires the acknowledgment or promise to be contained in some writing, signed by the party charged, and, for aught I can see, it can as effectually be made in a general assignment for the benefit of creditors as in any other instrument.” The result of these considerations is that the notes were not barred by the statute of limitations.

The next question presented on behalf of the appellants is, the exclusion of the receipt of May 7, 1873, signed by the testator, acknowledging the receipt of the balance of one dollar from the appellant, in full of interest on his bonds, notes and other instruments of indebtedness. This paper was obtained on a morning succeeding a night during which the appellant had watched or attended his father. It was signed in the bedroom of the testator. The latter, who was upward of eighty-three years old, had been ill for some time previous to the signing, having periods of great anguish from physical suffering, ending in coma. As said by the counsel for the respondent: He was dying from suffocation. His nights were sleepless. In the day he passed from periods of physical anguish when he was gasping for breath to periods of stupor, in which alone he found relief.” It is true that when he was relieved from pain or roused from his stupor his mind was clear, and he was capable of understanding, and apparently appreciating, what was said to or required of him. He was, nevertheless, a sick and suffering man, and subject, necessarily, to influences founded upon close relations, either of love, affection, or business. The appellant occupied toward him three distinct relations. He was his agent, attorney, and son. On the morning when the receipt was signed, and when the appellant was with him after a night of watchfulness, he was heard to ask : What do you want me to do ? or, What shall I do ? Mrs. Westerfield, his daughter, and the subscribing witness to (he receipt, was then called, and the paper signed. The body of the receipt was in the appellant’s' handwriting. There was evidence to show that the ink used in writing the date and signature, was different in color from that employed in writing the rest of the paper, but this circumstance is not material.

The question asked by the testator indicated importunity: What do you want me to do ? or, What shall I do ? There is no evidence of any previous meeting in which any such transaction as this was foreshadowed. The evidence, indeed, warrants the conclusion, that prior to the day on which the receipt was signed and within a few days of it, the interest was regarded by the testator as a charge against the appellant. The receipt having been obtained under the cii'cumstances stated, and, in view of the relations existing between the testator and the appellant, it was presumptively fraudulent and void. It was not necessary, therefore, on the part of the estate to show a want of consideration, mental infirmity, or incapacity in the first instance. A court of equity interposes its benign jurisdiction to set aside instruments executed between persons standing in relations of parent and child, guardian and ward, physician and patient, solicitor and client, and in various other relations in which one party is so situate as to exercise a controlling influence over the will and conduct and interests of another ; and this power will be exercised unless the instrument is satisfactorily shown to be fair and free from improper influence by the party seeking its benefit, the burden of which rest upon him. (Mason v. Ring, 2 Abb. Pr. [N. S.], 322; Sears v. Shafer, 6 N. Y., 268; Comstock v. Comstock, 57 Barb., 453; Evans v. Ellis, 5 Den., 640; Howell v. Ransom, 11 Paige, 530; Brook v. Barnes, Exr., 40 Barb., 521; Story’s Eq. Jur., §§ 309 to 315.) The appellant has failed to overcome the presumption against the validity of the receipt, and the case presents a valuable illustration of the soundness and integrity of the rule by which that paper is disarmed of effect. The chief questions raised in favor of the appellant are thus decided against him. The exceptions taken on his behalf during the accounting are of no value. If any of them were, it is quite apparent, in' the view taken of his appeal, that they refer to subjects which could not at all, with one exception, prejudice his case. The exception referred to relates to questions excluded upon the ground that they were designed to reveal transactions or communications had with the deceased, and they were properly excluded. We are constantly impressed with the ingenuity displayed in efforts to overcome the salutory operation of section 399 of the Code, which excludes claimants from-declaring their transactions and communications with deceased persons, and are gratified to find that the courts are alert to frustrate them. Yarious theories, specious and plausible, are presented, but they are met by a simple interpretation of the statute which overcomes them all.

The result of these considerations is, that the appellant takes nothing by his appeal. There are, however, other questions for examination. Mrs. Uglow, a residuary legatee, is charged by the executors’ account with the sum of $934.26, being the amount of the two bills paid by-the executors and debited to her. She took no appeal from the decree, but claims that under rule 51 of this court she can ask a modification thereof, and upon the ground that it is erroneous as against her and in favor of the appellant and all other parties in interest. The petition of appeal by Peter B. Ross, who is the appellant, presents no question relative to Mrs. Uglow’s account, and the decree against her is not in his favor as contemplated by the fifty-first rule under which she claims a modification of the decree. When, according to that rule, the appellant wishes to review the decision as to the allowance or rejection of any particular item of the account, such item shall be specified in the petition of appeal, and the respondent then, in his answer to the petition, may also specify any items of the account as to which he supposes the sentence or decree is erroneous as against him and in favor of the appellant. And upon the hearing of the parties upon such appeal, the sentence or decree may be modified as to any such items in the same manner as if a cross-appeal had been brought by such respondent. This rule is similar to one adopted by the late Court of Chancery (rule 118), and the interpretation of’that rule by that court was to the effect that if the respondent wished to raise questions between himself and other respondents he must appeal. (See Collins v. Hoxie, 9 Paige, 81-87.) Such seems to be the import of rule 51. If the executors were appellants, for example, and the respondents presented a claim against the estate which was rejected, or demanded an allowance which was refused, and which therefore involved a sentence against her and in favor of the appellants, it could be set up by answer and should be considered as a part of the appeal. The rule seems to furnish the opportunity of setting off claims by review and, is therefore rather a means of defense than assault. This effect does not infringe upon the statute iu relation to appeals from surrogate’s decrees. The statute declares that the Supreme Court si) all prescribe, by rule, the course of practice on such appeals (2 R. S., 611, § 120), and it has declared the course by rule 51. It was proper, as contemplated, that between the appellant and respondent, as far as the decree affected each other’s claims or reciprocal demands directly, the one against the other, that the case should be heard as two appeals, the one against the other, but it was not designed to interfere between the statute and respondents, as between each other, and settle their differences presented thus collaterally. If the converse of this proposition be adopted, then all of the respondents become appellants, each as to the other, and none of them would comply with the statute regulating appeals and requiring security to be given when taken. (2 R. S., 610, § 108.). It may be supposed that the decisions of the Court of Appeals declaring that in most, if not all, cases of appeals from the decision of the surrogates, the whole case is to be examined by that court, as well upon the facts as the law, are in conflict with this view; but these cases in this respect only distinguish such appeals from ordinary cases, in which that court would not review questions of fact. . (Robinson v. Raynor, 28 N. Y., 494; Schenck v. Dart, 22 id., 420; Canjolle v. Ferrie, 23 id., 90.) And this is because the appeal is in the nature of an equitable review. (Clapp v. Fullerton, 34 N. Y., 195, 196.) The exercise of this power and duty is limited to the questions presented by the appeal, and is so declared; and these questions are again controlled by the practice which the Supreme Court has adopted. Whatever is reviewed in the court below is considered there. The respondent, except for the purpose of showing that the Supreme Court erred in refusing to determine them, could not present to the Court of Appeals and require them to hear any questions which she brought to the consideration of the Supreme Court, not as appellant but as respondent, under the fifty-first rule. If, in other words, the respondent’s case was not within the rule allowing her to answer the petition of appeal, and to present the questions arising upon it, she would not be heard in the Court of Appeals; there would be no question presented by the appeal on her behalf. It may be said in addition that, if the case were open to review, there is little doubt that the decision of the referee in regard to Mrs. Uglow’s claim could be sustained. The respondents, John H. and Edward M. Ross, also seek, under the fifty-first rule, to assail the claim of the appellant herein, Peter B. Ross, for services as agent and attorney, which was allowed to him. They are not in the position to do this, being respondents, and not having appealed.

The same reasoning applies to them as to Mrs. TTglow. There ,is no decision against them in favor of the appellant. The allowance of the appellant’s claim affects them individually, each for an aliquot part; but the decision or sentence is against the whole estate, and not against them or either of them individually. Aside from this conclusion, however, it may be said that the claim of Peter B. Ross, the appellant, though not one which commends itself to the consideration of the court, has, nevertheless, legal vitality. The executors do not seem to question it, and the evidence given in relation to it is sufficient to warrant the conclusion that it was just. There is no evidence tending to show that there was no occasion for the services, or that they were not in fact rendered. They were accepted as constituting claims running together with demands against him, and establishing the existence of mutual accounts, which operated favorably to the estate, and prevented the application of the statute of limitations to demands against him in its favor. There is no good reason why the allowance to the appellant should be disturbed. A son may have, a valid claim against his father and may, from their relations, be unable to make satisfactory proof of it after the death of the latter, unless the restriction created by section 399 of the Code be waived, on the trial, in a liberal spirit, for the promotion of justice. "Whether such a claim should ever be urged except in cases of great emergency, based upon necessity, is a matter about which there might be a difference of opinion; but in legal contemplation the laborer is worthy of his hire, even though he be a son seeking compensation from his father, provided he has arrived at manhood and is no longer, therefore, subject to his control. The respondents, John H. and Edward M. Eoss, for these reasons, accomplish nothing with respect to the appellant’s claim, admitted by the surrogate. The same result must follow their attempt to disturb the allowances made to the various counsel. The appeal, in this respect, is predicated of the proposition that the surrogate has no power to make them; but the respondents are mistaken; since the adjudications cited on the subject were made, the legislature has provided that the surrogate of this county may grant allowances in lieu of costs, to counsel, in any proceedings before him, in the same manner as is now prescribed by the Code of Procedure in civil actions. (Laws of 1870, vol. 1, chap. 359, § 9, p. 828.) The allowance seems to be excessive, but the estate was large, amounting to $200,000 and upward, and the litigation about the accounts protracted and not free from difficulty. No appeal has been taken from this part of the decree.

The respondents, John H. Ross and Edward M. Ross, assume the right to attack the allowances, under the provisions of rule 51, but they cannot successfully do so. If we were satisfied, on the case as presented, that a deduction should be made, we should not hesitate to aver it, ex débito justiiice, under the suggestion made in Devin v. Patchin (26 N. Y., 448). In accordance with the views thus expressed of the questions considered on this appeal, it becomes our duty to affirm the surrogate’s decree. It is ordered accordingly, with costs to the respondents, the executors, only.

Davis, P. J., and Daniels, J., concurred.

Decree affirmed, with costs to the executors.