author:
Martin, J.
      Merwin, J.

text:
    Christina C. Whitney, Resp’t, v. Emily Whitney et al., Impl’d, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    1. Will—Action foe construction—Code Civ. Pro., § 1866.
    Section 1866 of the Code does not authorize the maintenance of an action by an heir at law for the construction of a will where the sole purpose is to test the title to real property and the plaintiff has a full, adequate and immediate remedy at law. (Merwin, J., dissents.)
    2. Same—Construction.
    A testator by his will gave a certain farm to one of his executors in trust to lease or sell the same and pay over the rents or avails thereof to testator’s son in such sums as he might deem prudent to meet the personal necessities of the son, and it was provided that if the son returned home and became steady the trustee might, if he thought best, convey the farm to him. The residuary estate was also left in trust to sell and divide the proceeds as soon as possible. The son returned and lived upon the farm until he died but no conveyance had been made to him. Held, that it was the testator’s intent that such son should have the full benefit of this farm and if he should die leaving any portion of it unexpended that it should vest in his heirs ; and that on his death the title to the farm vested in his children subject to his wife’s dower.
    . Appeal from a judgment entered in Broome county April 6, 1891, on the report of a referee, construing the will of Joshua Whitney, deceased. The case contains all the evidence.
    The complaint alleged that on the 20th day of February; 1844, 'Joshua Whitney made his last will and testament in due form of law to pass real and personal estate; that he died at Binghamton, M. Y., on the 13th of April, 1845, leaving said last will and testament without having revoked or altered the same; that said will was duly proved and admitted to probate pursuant to law on the 4th of April, 1855, as a will of real and personal property, and letters testamentary were duly granted to Thomas G. Waterman, Franklin Whitney and Washington Whitney, who duly qualified as such executors and assumed the execution of the will; that all of said executors have since died; that George Whitney named in said will died in the year 1863, and the defendants George Whitney, Rhoda Whitney and Charles W. Keeler were entitled to whatever interest in the estate of the testator said George , Whitney would have been entitled to as a residuary devisee if living; that Franklin Whitney named in said will died before the commencement of this action, and the defendants Jane C. Haskins, ' Pamelia W. Rogers, Caroline W. Ronk, Fannie C. W. Smith and the plaintiff were his children, and entitled to whatever interest in the estate of said testator Franklin Whitney would have been entitled to as residuary devisee if living; that Washington Whitney named in said will died before the commencement of this action, and the defendants Franklin Whitney, Eufus P. Whitney, Henry J. Whitney, Frederick A. Whitney and Frank H. Whitney were entitled to whatever interest in the estate said Washington Whitney would have been entitled to as residuary devisee if living ; that Pamelia W. Waterman, named as one of the four beneficiaries in the residuary clause of said will, died before the commencement of this action, and her heirs and next of kin on or about August 12, 1867, assigned and released their interest, right and title in the estate of said testator to the other residuary devisees and legatees, or to their representatives; that Emily Whitney is the widow of Charles Whitney, who died on or- about the 26th of April, 1885; that Washington Whitney, named as trustee in said will of the Conklin farm, died on or about the 14th of March, 1875, • and during his lifetime did not convey any portion of said farm; that the defendants Mary Lawrence and Jennie Whitney were the children of Charles Whitney, and with the defendant Emily Whitney are in possession of the Conklin farm, and have been since the death of Charles Whitney, and are' receiving the use, rents and avails of the same; that upon the death of Charles Whitney the Conklin farm, not having been disposed of by Washington Whitney, passed to the representatives or successors in interest of the residuary devisees under said will; that the defendants named as representing or being successors in interest to said George Whitney, deceased, are entitled to one-third of said farm; that the plaintiff and the defendants named as representing or being successors in interest to said Franklin Whitney, deceased, are entitled to one-third of said farm; that the defendants named as representing or being -successors in interest to Washington Whitney, deceased, are entitled to the remaining one-third interest in said farm ; that ike defendants Emily Whitney, Mary Lawrence and Jennie Whitney being in possession, claim to be entitled to and to own said farm.
    The plaintiff demanded judgment for a construction of said will and that the farm be decreed to belong to the representatives or successors in interest of the residuary devisees named in said will, and that the defendants Emily Whitney, Mary Lawrence and Jennie Whitney be perpetually enjoined from impeaching or otherwise making any claim in contravention of such judgment or decree.
    The defendants admitted many of the allegations of the complaint, but denied that upon the death of Charles Whitney the Conklin farm passed to the representatives or successors in interest of the residuary devisees under said will. They also_ alleged that the plaintiff had not the right to maintain this action; that the complaint did not state a cause of action; that by the terms of the will all the beneficial interest in said farm was vested in Charles Whitney, and upon his death descended to his heirs or personal representatives. They also set up the statute of limitations.

      The evidence disclosed that Joshua Whitney, then of the village of Binghamton, Broome county, N. Y., made his last will and testament under his hand and seal in due form to pass real and personal estate, which was dated February 25, 1844, of which the following is a copy: .
    “ I, Joshua Whitney, qf Chenango, Broome county, and state of New York, do make my last will and testament in the manner and form following, that is to say:
    “I give, devise and bequeath unto my wife Julia, and Mary, my daughter, the balance now remaining of my homestead or farm, containing about one hundred and fifty acres, including the land and premises now occupied by Whitney and Doolittle, also the buildings and lots parts of said farm, and as at present either under contract or lease, together with all my household furniture, farming tools, live stock, farming produce either harvested or growing at my decease, carriages, sleighs and harnesses. The real property to be held by them as tenants in common until the death of my wife, when the real as well as personal, property before described shall be equally divided between my daughter Mary and Franklin Whitney in fee; but inasmuch as my wife may prefer receiving in lieu of the provisions aforesaid - a fixed annual sum of money; now it is my will that if my wife shall agree with my son Franklin to pay her in lieu of the provisions aforesaid a fixed annual sum of monéy, and shall fully enter into and complete such agreement, then it is my will that the said real, and personal property shall forthwith be vested in my said son Franklin and daughter Mary, one-half to each in fee. The above devise and bequest to my wife is in lieu and in full for her right of dower in my estate.
    “I give and devise to Washington Whitney the Conklin farm of about one hundred and sixty acres, being the east part of lot No. 2, Bingham’s patent, S. S. Susquehanna river, occupied at present by Whitney and Conroy, the same to be held in trust, that is to say, after the expiration of the present lease to William-Whitney, recently made-, he the said Washington may either lease the same, or if he should think best, may sell or dispose of it, and to pay over to my son Charles the rent, interest, or avails of , said farm in such sums as he, the said Washington, may deem most prudent to meet the personal necessities of the said Charles, and to guard against his improvidence. It is, however, my will that if Charles should return home and become steady, and wish to occupy said farm, the said Washington may, if he thinks best, convey the same to the said Charles.
    “ Having heretofore advanced to my son Virgil Whitney in lands, money, etc., what I consider to be his just share of my estate, I, therefore, do not make any devise or bequest to him in this my last will and testament.
    “ Having also, heretofore, advanced to my son Vincent Whitney in lands what I consider to be his just share of my estate, I, therefore, do not make any devise or bequest to him in this my last will and testament.

      “ Having also, heretofore, advanced to my son Joshua Whitney in lands, money, etc., what I consider to be his just share of my estate, I, therefore, do not make any devise or bequest to him in this'my last will and testament.
    “I give and bequeath to the heirs of William Whitney, deceased, all advances made him in his lifetime, and also two thousand acres of land on St. John’s river, Florida, formerly owned by said William.
    ‘‘I hereby appoint Thomas Gf. Waterman, Franklin Whitney and Washington Whitney my executors of this my last will and testament; I give, devise and bequeath unto my said executors, the survivor or survivors of them, and to their heirs and assigns, all the residue of my property, real, personal and mixed, wheresoever situated, in trust, and for the uses and purposes hereinafter expressed, that is to say, in trust that they, the said executors, the survivor or survivorsi of them, shall as soon as may be after my decease, collect, sue for and recover the money or moneys due or owing or which shall thereafter become due by reason of any bonds, debts and demands; and to sell and dispose of all my real estate, wheresoever situated and every part and parcel thereof, and convert the same as soon as conveniently may be into ready money, for the uses and purposes hereinafter mentioned; and on such sale or sales to make and execute to the purchaser or purchasers all necessary assignment or assignments, writings or deeds to the same purchaser or purchasers, and to their several heirs or assigns, as may be proper and necessary for the purpose of giving to them, or any of them, the legal and equitable right and claim to the same, and every part thereof. And I do further direct that when all the above recited property shall be sold, disposed of, and converted into ready money in the maimer above directed, or otherwise, which may or shall remain after the payment of my just debts and necessary expenses, shall be divided in just and equal proportions, share and share alike, between the following of my children, to wit: Unto Pamelia Waterman, George Whitney, Washington Whitney and Franklin Whitney, after deducting from the share or proportion of each the sums which they have respectively received of me for their advancement in the world, to wit: From the share of Pamelia Waterman, seven thousand dollars, for farm house in village, furniture hitherto given, and the. one-fourth part of the spring property; from the share of George Whitney, the sum of three thousand five hundred dollars, for farm on which he now lives; from the share of Washington Whitney, the sum of four thousand■ dollars, for the farm where E. Brown now lives, and goods had of J. Whitney & Son ; from the share of Franklin Whitney, the sum of five thousand dollars, for goods and village property, also fifty acres of land of lot No. 7, and part of Cook’s bond; 1 do hereby authorize the said executors, if they should think best, to divide among the said heirs in just and equal proportions, as heretofore mentioned, all and singular the real and personal property so devised and bequeathed to the said executors in trust, after paying as before mentioned all my just debts and necessary expenses.

      “ I, Joshua Whitney, do hereby revoke all wills by me before ■at any time made.
    “In witness whereof, I have hereunto set my hand and seal this 26th day of February, one thousand eight hundred and forty-four.
    Joshua Whitney. (Seal.)”
    The testator died on the 13th of April, 1845. His will was duly admitted to probate, and letters testamentary duly granted to the executors named therein, who qualified as such and entered upon the duties of their trust. All of the executors named in said will '«died before the commencement of this action. The testator left him surviving Charles Whitney, a son who is mentioned in the will, and who was at the death of the testator thirty years of .age, -unmarried, of unsteady habits, away from home, and occasionally •«drank intoxicating liquors to excess. In 1851 Charles married -the defendant Emily Whitney. Charles Whitney died intestate ■on the 26th of April, 1885, leaving the defendant Emily Whitney, his widow, the defendants Mary Lawrence and Jane 0, Whitney, who are his only heirs at law and next of kin, both of whom being over the age of twenty-one years.
    In 1854 Charles Whitney returned home and wished to occupy the Conklin farm, and with the consent of Washington Whitney, the trustee named, moved upon the farm with his family, and re- . sided there until the year 1870 or 1871, when the house was burned and he moved elsewhere. ■ From 1854-, to 1885, the time of his death, he controlled the farm and received the income and rents therefrom. Since 1879, and during her father’s lifetime, .Mary Lawrence contributed to the support of her father and his family an amount which nearly equaled the value of the farm in -question, and with the improvements made by her exceeded its value. Washington Whitney, thq trustee named in said will, ■died about the 14th of March, 1875, and did not during his lifetime convey the Conklin farm. The 18th of March, 1875, Stephen ■C. Millard was duly appointed trustee in the place of Washington Whitney, deceased,, Millard never conveyed this farm. The funeral expenses of Charles Whitney amounting to one hundred ..and twenty-five dollars remain unpaid. The appellants were in possession of the farm and have been since the death of Charles Whitney. The farm .consists of about one hundred and sixty : acres, and is worth about four thousand dollars.
    Most of the foregoing facts were found by the referee, and as conclusions of law he held :
    “ First. That the said ‘ Conklin Farm ’ is vested in and belongs to, the representatives or successors .in interest of said residuary •devisees, namely: To each of the defendants, Ceorge Whitney, Rhoda Whitney and Charles W. Keeler, one-ninth thereof; to •■each of the defendants, Jane C. Haskins, Pamelia W. Rogers, ■Caroline W- Ronk, Fannie C. W. Smith, and the plaintiff, Christina 0. Whitney, one-fifteenth thereof: To each of the defendants, Franklin Whitney, Rufus P. Whitney and Henry J. Whitaiey, one-twelfth thereof; to the defendant, 'Fred. A. Whitney, one thirty-sixth thereof, and to the defendant, Frank H. Whitney, one-eighteenth thereof.
    “ Second. That the funeral expenses of Charles Whitney, deceased, amounting to about the sum of $125, with interest thereon from the 26th day of April, 1885, are a lien and charge upon said ‘ Conklin Farm,’ and should be paid out of the avails thereof.
    “ Third. That the plaintiff is entitled to judgment and decree perpetually enjoining and restraining the defendants, Emily Whitney, Mary Lawrence and Jennie Whitney, from impeaching or otherwise making any claim in contravention of such judgment and decree, or from making any claim to said ‘ Conklin Farm ’ or premises, or the rents, issues, and profits therefrom.

      “jFourth. That the plaintiff is entitled to a judgment for the-appointment of a receiver of said Conklin Farm ’ or premises,, its issues, rents, and profits, and to take possession thereof, and deliver the same to the plaintiff and the defendants named in the-first conclusion of law herein, together -with her costs and disbursements of this action to be taxed by the clerk of Broomecounty, N. Y, and paid out of said ‘Conklin Farm ’ or the avails-thereof, but without costs against the defendants, Emily Whitney,. Mary Lawrence and Jennie Whitney, and judgment is hereby-ordered accordingly.”
    The appellants requested the referee to find :
    “1. That had the value of said farm and the rents, issues,, profits and avails thereof been paid over to said Charles Whitney after the death of said Joshua Whitney in such sums as to meet, the personal necessities of said' Charles, the whole value of said farm would have' been required and paid over to said Charles before his death;
    “ 2. That upon the death of Charles Whitney all beneficial interest in said farm passed to the defendants, Mary W. Lawrence,, Jane O. Whitney and Emily Whitney;
    “ 3. That upon the death of Charles Whitney all of the beneficial-interest in said farm passed to the defendants Mary W. Lawrence- and Jane 0. Whitney, subject to whatever rights therein the defendant Emily Whitney acquired therein upon the death of Charles Whitney as the widow of said Charles ;
    “ 4. That the said farm did not pass and has not passed under the residuary clause in said will;
    “ 5. That no interest in said farm passed under the residuary-clause in said will;
    “ 6. That the said residuary clause in said will is void as a trust and no title to real estate passed under the residuary clause-in said will;
    - “ 7. That the plaintiff is not entitled to maintain an action fertile construction of the will in question ;
    “ 8. That the twenty years statute of limitations is a bar to the-maintenance of this action by the plaintiff;
    “ 9.' That the ten years statute of limitations is a bar to the-maintenance of this action by the plaintiff;
    “ 10. That the statute of limitations is a bar to the maintenance of this action by the plaintiff;

      “ 11. That by adverse possession the title of the defendants in said farm has become absolute;
    “ 12. As a question of loches, the court should refuse to entertain this action.”
    The referee refused to find as thus requested, and to such refusal the appellants duly excepted. They also excepted to the conclusions of law made and filed by said referee, and to each of such conclusions.
    There is nothing in the appeal book or judgment roll to show that the summons in this action was served upon any of the defendants except the appellants. On the trial, however, all the defendants, except the appellants, appeared by George Whitney, as their attorney, and he also appeared as attorney for them as respondents upon this appeal.

      A. D. Wales, for app’lts; F. F. Williams, for resp’t-pl’ff; George Whitney, for resp’ts-def’ts.
   Martin, J.

At the threshold of this investigation the question is presented whether this action can be maintained. . The action was in form an action in equity to obtain a construction of ¡the last will and testament of Joshua Whitney, deceased, but its manifest object and purpose was to determine the legal title to certain real estate which was in the possession of the appellants. The appellants contend that as the questions involved related to real estate only and did not include the consideration of any existing trust this suit cannot be maintained. It is quite obvious that while the determination of this case may have involved to some extent the construction of Joshua Whitney’s will, still such construction was necessary only to the extent of determining who had the legal title to the real estate in question, and involved no question as to any existing trust.

Whether, under such circumstances, a suit in equity can be maintained for the construction of a will and tlie determination of t.he title to the real property claimed under it, where the questions involved could be determined in an action at law to recover the possession of the .premises, is the precise question we are called upon to determine.

The question under what circumstances such a suit might be maintained was somewhat discussed in Bowers v. Smith (10 Paige, 193), and in that case Chancellor Walworth said: “I am not aware of any case in which an heir at law of a testator, or a devisee, who claims a mere legal estate in the real property, where there was no trust, has been allowed to come into a court of equity for the mere purpose of obtaining a judicial construction of the provisions of the will. On the contrary, the decision of such legal questions belongs exclusively to the courts of law, except where they arise incidentally in this court in the exercise of its legitimate powers; or where the court has obtained jurisdiction of the case for some other purpose.”

Again in Post v. Hover (33 N. Y., 602), Denio, Ch. J., said: The plaintiffs had no right to institute this suit, to settle the construction of the will. They were, at best, only heirs at law of the testator, and if the devise of the homestead was void, as they contend, they had only to bring their direct action in the nature-of ejectment to recover their shares in the premises. (Bowers v. Smith, 10 Paige, 193.) Although the supreme court has general, jurisdiction at law and in equity, it cannot entertain an action for equitable relief where such an action could not have been sustained in a court of equity, though they might have sued at law in another form of action."

Judge Folger, in Bailey v. Briggs (56 N. Y., 413), had the same-question under consideration, and stated the rule as follows: “ It is when the court is moved in behalf of an executor, trustee or cestui que trust, and to ensure a correct administration of the-power conferred by a will, that jurisdiction is had to give a construction to a doubtful or disputed clause in a will. The jurisdiction is incidental to that over trusts.” The rule as stated by Judge Folger was expressly approved by the court in Chipman v. Montgomery (63 N. Y., 230), and Allen J., said: “ It is by reason of the jurisdiction of the court of chancery over trusts that courts-having equity powers as an incident of that jurisdiction take-cognizance of, and pass upon the interpretation of wills. They do not take jurisdiction of actions brought solely for the construction of instruments of that character, or when only legal rights, are in controversy.” The same rule was recognized in Monarque v. Monarque (80 N. Y., 321).

In Dill v. Wisner (88 N. Y., 153), it was held that an executor could not maintain an action for the construction of a clause of a will disposing of real estate, unless he was invested with a. trust under the will in reference to the subject matter of the devise.

Again in Wager v. Wager (89 N. Y., 161), it was held that an heir-at-law or devisee, who claims a mere legal estate in real property, when there is no trust, cannot come into a court of equity for the mere purpose of obtaining a judicial construction of the-provisions of the will.

The question was also considered in Weed v. Weed (94 N. Y., 243), and Andrews, J., stated as the rule that: “ A devisee who-claims a mere legal estate in real property of the testator, where-there is no trust, cannot maintain an action for the construction of the devise, but must assert his title by ejectment or other-legal action, or if in possession must await an attack upon it and set up the devise in answer to the hostile claim.”

That the foundation of jurisdiction in such a case rests on the jurisdiction which a court of equity has over trusts was again recognized in Horton v. Cantwell (108 N. Y., 267; 13 St. Rep., 615).

In Anderson v. Anderson, 112 N. Y., 110; 20 St. Rep., 344, it.was said by Peckham, J.: “The jurisdiction of courts of equity in considering doubtful or disputed clauses in a will has been, held with entire uniformity by the courts of this state to result, from its jurisdiction over trusts, and that exists only when the-court is moved on behalf of an executor, trustee or cestui que trust. and to enforce a correct administration of the power conferred by the will.” After citing Weed v. Weed, supra, and stating the doctrine there held, the judge says : “ It is true that was an action for the construction of certain clauses in a will and hence is-not directly in point here. But it shows the tendency of the-court to continue in the same path it has tread for many years, by denying jurisdiction in equity in matters regarding wills separated from trusts and to send to the legal branch of the court questions of that nature for determination.”

This review of the authorities discloses that from 1843 until 1889 the highest courts and the most eminent judges of the state-have-uniformly held that an action in equity for the construction, of a will could be maintained only by virtue of its jurisdiction over trusts, and that such jurisdiction does not exist except where the action is brought by an executor, trustee or .cestui que trust to-enforce a correct administration of the powers conferred by the-will. While it has been held that where a trust existed and a suit in equity was brought to enforce the execution of it, the-court having thus acquired jurisdiction might in such a suit construe a will and determine such legal questions as might incidentally arise, still, no such jurisdiction has been held to exist except where the purpose of the action was to'enforce the trust-contained in the will.

Certainly this action was not brought to enforce the execution of any trust contained in the will of Joshua Whitney. The-learned referee has held that the trust created by the will was fully executed and that the power in trust to sell the premises or convey them to Charles terminated with his death; hence, there could have been no trust, or power in trust, which could have been enforced. The clear and manifest purpose of this suit was to establish the rights of the plaintiff and the' defendants other than the appellants to the premises in question. The rights claimed were as successors in title to the residuary legatees. Those were merely legal rights, and if the doctrine of the authorities cited is to control, should be enforced, as such, by an action of ejectment or other legal action. The doctrine of the cas%s cited requires us to hold that this action cannot be maintained unless sufficient authority to justify such an action is given by § 1866 of the Code of Civil Procedure,

The respondents contend that that section directs the exercise-of jurisdiction in such a case, even though no trust is involved. Its provisions, so far as applicable to this question,- are: “ The validity, construction, or effect, under the laws of the state, of a, testamentary disposition of real property, situated within the state, of of an interest in such property, which would descend to the heir of an intestate, may be determined, in an action brought for that purpose, in like manner as the validity of a deed, purporting to convey land, may be determined. The judgment in such an action may perpetually enjoin any party from setting up or from impeaching the devise, or otherwise making any claim in contravention to the determination of the court, as justice requires.”

They also cite Tiers v. Tiers (32 Hun, 184; 98 N. Y., 5681), Jones v. Jones (1 How. Pr. (N. S.), 510); Drake v. Drake (41 Hun, 366; 2 St. Rep., 578); Snell v. Tuttle (44 Hun, 324; 7 St. Rep., 615); Adams v. Becker (47 Hun, 65; 13 St. Rep., 41); and Read v. Williams (125 N. Y., 566; 35 St. Rep., 909), as sustaining their contention.

In the case oí Tiers v. Tiers, the question under consideration was not involved. While the court states in its opinion that the .action was brought under the authority of § 1866, it does not appear that any objection to the form oE the action or the jurisdiction of the court was raised or determined. In Jones v. Jones, which was a special term decision, it was held that § 1866 had •changed the law as it existed prior to the adoption of that section, and that under it an action between devisees for the construction •of a will might be maintained. In Drake v. Drake, if was held that under the rule established in Weed v. Weed (supra), the action •could be maintained, as it involved an important trust, and that the execution of that trust called upon the court for the exercise of its equitable jurisdiction. We do not find that this question was involved in Snell v. Tuttle. Ho such question seems to have 'been raised. In Adams v. Becker it was held that the rule had been changed by § 1866, and that under the provisions of that ¡section an action by an heir at law for the construction of a will •could be maintained. This question was not involved in the determination of the case of Read v. Williams. It is true that in that case Andrews, J., said that this section had extended the remedy so as to include suits for the construction of devises in behalf of heirs claiming adversely to the will, but it will be observed that the decision of that question was in no way involved in the case, and under what circumstances such a suit could be maintained was not considered- or determined.

On the other hand, it was held in Ruppel v. Schlegel (55 Hun, 183 ; 28 St. Rep., 382), decided in 1889, that an action by an heir-at-law could, not be maintained for the construction of a will. In Gage v. Gage (43 Hun, 501), decided in 1887, the same doctrine was enunciated, although the question was not raised. In Hovey v. Purdy (10 St. Rep., 40), decided in 1887, the doctrine as . it was established in Weed v. Weed, and kindred cases, was distinctly held. It will be observed that the cases of Horton v. Cantwell and Anderson v. Anderson were decided since the enactment of § 1866, and while they do not decide the question we are considering, they seem to recognize the rule as it previously existed. Thus we see that the authorities bearing upon the question whether such a change has been wrought by that section are not harmonious.

When we refer to the statutes that have existed relating to this ■subject we find that § 1866 of the Code was not new, but a rewision of § 1 of chapter "238 of the Laws of 1853, whiclp provided, “ The validity of any actual or alleged devise or will of real estate may be determined by the supreme court in a proper ■action for that purpose, in like manner as the validity of-any deed conveying or purporting to convey lands might be determined by such court; and thereupon any party may be enjoined from setting up or from impeaching such devise, as justice may require.” This section was amended in 1879 so as to read as follows : “ The validity of any actual or alleged devise or will of real estate may be determined by the supreme court in a proper-action for that purpose, in which all person^, interested, or who claim an interest in the question, may be made parties, and such action may be brought by any heir-at-law of the actual or alleged testator or testatrix, or by any devisee under any actual or alleged will; and thereupon after final judgment in such action any party may be enjoined from setting up or from impeaching such, devise or will, as justice may require.” Chapter 316, Laws 1879.

That section 1866 was intended as a substitute for the provisions of § 1 of chapter 238 of the Laws of 1853 is shown by Mr. Throop’s note to that section. He also specifies therein the amendments to the statute of 1853 intended, which do not include any that would increase the jurisdiction of the court so as to authorize this action. A comparison of the statute of 1858 with the provisions of § 1866, so far as they relate to the question-under consideration, shows that the only change made was that' the words “ validity, construction, or effect ” were inserted in place of the word “ validity.” It is claimed that this change in the phraseology of the statute has enlarged the jurisdiction of a court of equity to an extent authorizing this action, although the plaintiff’s legal remedy was full and adequate.

“ It is a cardinal rule of equity that it will not entertain jurisdiction of cases where there is an adequate remedy at law, or grant relief, unless for the purpose of preventing serious and irreparable injury. These principles are elementary and lie at the foundation of all equitable jurisdiction. Equity, therefore, interferes in the transactions of men by preventive measures only when irreparable injury is threatened and .the law does not afford an adequate-remedy for the contemplated wrong.” Thomas v. M. M. P. Union, 121 N. Y., 52; 30 St. Rep., 563.

“ In all cases where the plaintiff holds or claims to have a purely legal estate in land, and simply seeks to have his title adjudicated upon, or to recover possession against an adverse claimant who also relies upon an alleged legal title, there being no equitable-feature of fraud, mistake or otherwise, calling for the application of equitable doctrines or the granting of peculiar equitable reliefs, the remedy at law is adequate, and the concurrent jurisdiction of. equity does not exist. A suit in equity, under its concurrent jurisdiction, will not be maintained to take the place of the action of ejectment, and to try adverse claims and titles to land which are wholly legal, and to award the relief of a recovery of possession.” 1 Pomeroy’s Eq. Jur., 162, § 177, and cases cited in note 1. Where the construction of a statute has been settled by adjudication a mere change of phraseology made in the revision of it should not be deemed to change the law unless it appears evident that such was the legislative intent. DuBois v. Brown, 1 Dem., 317; Goodell v. Jackson, 20 Johns., 697, 722; In re Brown, 21Wend., 316; Taylor v. Delaney, 2 Caines' Cas., 143,151. So too the intention to change the rule of the common law will not be presumed from doubtful statutory provisions. The presumption is that no such change was intended unless the statute is clear and 'explicit in that direction. People v. Palmer, 109 N. Y., 110; 15 St. Rep., 78; Fitzgerald v. Quann, 109 N. Y., 441; 16 St. Rep., 395; Dean v. M. E. R. Co., 119 N. Y., 540; 30 St. Rep., 81.

When we consider the question before us in the light of the then existing statutes, of which § 1866 was a revision, the rules so uniformly established, that equity will not entertain such an .action, that courts of equity will not try adverse legal claims to real estate therein, that an action in equity cannot be maintained when a full and adequate remedy at law exists, the statement in :the note to § 1866 of the amendments intended, which do hot in-clude the one claimed, the presumption that no such change was intended, we are led to the conclusion that it was not the intent •of the legislature by the addition of the words “ construction or • effect” to so change the law as it then stood as to authorize the maintenance of an action in equity where the sole purpose was to test the legal title to real property, and the action of ejectment would afford a fulRand adequate remedy.

Moreover, § 1866 provides that the question of the validity, •construction oy effect may be determined in like manner as the validity of a deed- purporting to convey land may be determined. "'Thus it would seem that the right to maintain such an action is limited to cases where a similar action might be brought to determine the validity of a deed. I am aware of no principle that would justify a court of equity in determining the validity of a •deed under which a person not in possession of real estate claimed title, as in such a case all the questions involved could be determined in an action at law for the possession of the premises.

Whether § 1866 is to be-construed as simply declarative of the Haw as it previously existed under the former statutes and •decisions, or whether it was intended to somewhat extend the remedy by a suit in equity so as to include the construction of a will where the party séeking it is in possession or for any other reason has no immediate remedy at law, we need not now decide. We are, however, of the opinion that the legislature did not Intend by this revision of the statute to confer such additional jurisdiction as would authorize the maintenance of a suit in equity to determine the title to real property, when the plaintiff has a full, -.adequate and immediate remedy by an action at law.

There has been no waiver or acquiescence on the part of the -appellants. They have insisted from the first that the suit could not be maintained. This they have done by answer, by objection to evidence, by motion to dismiss the complaint, by request to ■find and by exception to the rulings and decisions of the court upon such motions, objections and requests.

This case does not fall within the principle of Town of Mentz v. Cook (108 N. Y., 504; 13 St. Rep., 845). In that case, it was ¡alleged in the complaint and admitted by the answer that the ■plaintiff had no adequate remedy at law. In this, there was no such allegation; indeed, no allegation showing any necessity for áhe interposition of a court of equity. To this complaint the appellants answered that the plaintiff had not the right to maintain the action and that the complaint did not state a cause of action. Upon this state of the pleadings we do not think the appellants ■can be held to have waived their right to raise the question.

We are of the opinion that this suit could not be maintained, .and that the learned referee erred in not dismissing it.

When, however, we pass the question of the respondents’ remedy, and examine the question of their rights under the will of Joshua Whitney, our conclusion is that the construction given to the will by the learned referee cannot be sustained. It is contended by the appellants, and we think justly, that although the will in question contained no express devise of the Conklin farm to Charles Whitney or his heirs, yet, as its provisions, when construed in the light of the circumstances surrounding the testator when it was made, show that it was his obvious intent that Charles ■should have the whole benefit of the farm devised, there was a •devise by implication whereby the heirs of Charles upon his death became vested with the title in fee. On the. other hand, it is •claimed by the respondents that inasmuch as the trustee op-' pointed by the will of Joshua Whitney neglected to execute the power to sell the premises or to convey them to Charles during his lifetime, upon the death of Charles the title passed to the persons named in the residuary clause of the will or to their lieirs.

When we examine this will we find that it first makes prowision for the testator’s wife, daughter Mary and son Franklin. It ■■then gives and devises to Washington Whitney the farm in question, to be held in trust, with power to lease, sell or dispose of it, ¡and to pay to Charles the rent, interest or avails in such sums as he,' Washington, might deem most prudent to meet the personal necessities of Charles and guard against his improvidence. It then provides that if Charles should return home, become steady .¡and wish to occupy the farm, the trustee might, if he thought best, convey the same to him.

The testator then states that he has advanced to his sons, "Virgil, Vincent, "Joshua and William, their shares of his estate, ■and hence gives them nothing by his will.

Next he appoints Thomas G. Waterman, Franklin and Washington Whitney as his executors, and gives and devises to" them the residue of his property in trust to collect all debts due him, to sell and dispose of all his real estate as soon as might be, .and when the same was converted into money, the executors were to pay his debts, and divide the remainder equally between Painelia Waterman, George, Washington and Franklin Whitney, taking into account in determining the share of each the sum that he or she had received as advancements, which were therein ¡specified.

At the time this will was made, the testator was one of the leading citizens of the then village of Binghamton, was possessed of a ■considerable estate, and had seven sons and two daughters living; one son had previously died. By his will he made provision for ■each of them except those to whom he had already advanced their share, and as to those to whom he had made partial advancements, he provided for equalizing the amount that each should receive, including such advancements as had been made, so that each should receive what the testator deemed his or her proper-share of his estate. The whole purpose and purport of the will was to divide his estate among his children, including such amounts as had been advanced. When he came to the share which in the division of his property was plainly intended for Charles, he devised that in trust to Washington ‘to lease or sell and pay the rent, interest or avails in such sums as he should deem most prudent to meet the personal necessities of Charles, and to guard against his improvidence. Much stress is laid upon the words “ personal necessities ” by the respondents, and it is claimed that the use of those words indicates that the testator did, not intend a devise for the benefit of the heirs or family of Charles. We do not think the words are entitled to the significance claimed. The words “ personal necessities obviously were not used in the-sense of being synonymous with individual necessities, but in the 'sense and to convey, the idea that the property should be used for the support and maintenance of Charles and his family, if he should have one, rather than to permit the use of it in business, or for other speculative purposes. The statement that the rent, interest or avails were to be paid over to Charles in such sums as-Washington deemed most prudent to meet the personal necessities of Charles, and to guard against his improvidence, strengthens the view we have taken, and shows quite clearly we think that this farm was intended to be given to Charles, and he was to have-the whole benefit of it, and that the only purpose of appointing a trustee was to prevent the dissipation of the property by his improvident habits. This view is still further strengthened by the-provision that if Charles should return home, and become steady, and wish to occupy the farm, the trustee, if he thought best, might convey it to him. We think the primary purpose of the testator was to properly and justly divide his property among his; children, and that his secondary purpose, which related exclusively to the property intended for Charles, was'that the property devised to a trustee for Charles should be preserved by the trustee-for his use, which would include providing for his family, if he had one.

If the trustee thought best he might convey the title to Charles; if not it was to remain in the trustee for Charles’ benefit.- Looking at the residuary clause of the will we find that the residuary-estate was given and devised to trustees to collect the debts and sell the land of which it consisted as soon as might be and- divide-the avails between certain of his children. The division was to-occur as soon as such collections and sales were made, unless the executors saw fit to divide the real and personal estate without sale, when a division might be sooner made. Surely the testator could not have contemplated the sale of the farm in question, or that it should form any portion of the property to be divided among the residuary legatees, or that the division-bj the executor of the residuary estate should await Charles’ death. The" testator -evidently -intended to dispose of all his property by his will and to include in the residuary clause only what remained, excluding that mentioned in the preceding provisions and by its terms disposed of, including that intended for Charles. When we consider, all .the provisions and the general scope and apparent purpose of this will, it becomes quite manifest that the testator intended that -Charles should have the full benefit of the Conklin farm, including its value as well as its- use, and if it was not disposed of during his life that it should descend to his heirs.

Although a gift by express terms is not made in a will, a legacy by implication may be upheld where the words of the will leave no doubt of the testator’s intent and can have no other reasonable interpretation. ’ Matter of Vowers, 113 N. Y., 569; 23 St. Rep., 715; Masterson v. Townshend, 123 N. Y., 458, 461; 34 St. Rep., 104; Matter of Lapham, 37 Hun, 15; Woodward v. James, 115 N. Y., 356; 26 St. Rep., 147; Phillips v. Davies, 92 N. Y., 199; Jackson v. Bellinger, 18 Johns., 368; Sturges v. Cargill, 1 Sand. Ch., 318; Cropton v. Davies, L. R. (4 C. P.), 159, 166.

In Matter of Vowers, the testator died leaving a widow but no -children. His will, after a provision made for his wife, contained the following clause; “ This provision to be accepted by my wife in lieu of her dower right and distributive share in my estate. She may make her election whether, she accepts this provision of my will within sixty days of the time of proving the same.” The widow within the time specified made her election, rejecting the provision. The residuary estate was given to a nephew of the testator. In proceedings for the probate of the will it was held that aside from her dower right the widow was entitled to such share of the personal estate as the law would have given her had the. deceased died intestate, and that although there was no express devise of such share there was a bequest by implication.

In Masterson v. Townshend, the testator devised a half interest in real property to his executor to collect the rents and pay over $600 to his wife as long as she remained unmarried and to pay the balance to his brother, but in the discretion of his brother and the executor, if it should ■ be deemed advisable to sell, then the executor was authorized to sell and from the proceeds to pay to the wife $600 as long as she remained unmarried, and upon her marriage or death all the proceeds were to be paid to his brother. The widow remarried, and it was held that there was a devise by implication of the real estate by the testator to his brother subject only to the trust made for the testator’s widow.

In the Matter of Lapham, a testator by will, which contained a general residuary clause, bequeathed to his aunt for the exclusive benefit of her four children the sum of $2,000, the interest and principal, if necessary, to be used for their education. There was no express direction to pay the fund or any portion of it to the children -in any event, but it was held that the direction to do so was fairly implied, and that the title to the fund vested in tbe four children in equal shares.

In Woodward v. James it was held that the devise of an estate to a perkon as trustee was raised by implication as the exigencies and situation required it and that intention was indicated by the will.

In Phillips v. Davies it was held that" a power of sale was conferred upon the executors by implication extending it beyond that specifically mentioned in the will.

In Jackson v. Bellinger, H., by his will, devised as follows: “ My will and personal pleasure is that my son John shall have the farm which I now live upon, two. of the best negroes, all of my wearing apparel and three geldings, but if my said son may happen to die unmarried, without lawful issue, then it is my will and pleasure that- the said estate shall descend to my next-heir of the name of ¡EL, and that he may not sell, exchange or dispose of any part of said estate without the consent, approbation and concurrence of my executors.” The testator died in August, 1775, leaving five sons and eight daughters. John, the devisee, died April 20, 1817, unmarried and without issue, leaving one sister and nephews and nieces. It was there held that John, the devisee, took an estate tail by implication and that the devise over, depending upon indefinite failure of issue,was not good as an executory devise, and the estate tail being converted into an estate m fee simple by the statute it descended on the death of John to his heirs at law according to the statute regulating descents.

In Sturges v. Cargill it was held that where the language 'of a will necessarily confines the interest of the parent to his life, the courts, in construing it, will lay hold of slight circumstances to raise a gift in the children, and avoid imputing to the testator the extraordinary intention of giving the property to the devisee or legatee over, and leaving the issue of the tenant for life unprovided for. In that case D. 0., by his will, after providing for his wife, divided his real estate in five portions, which were nearly equal. He first gave one of the portions to his executors in trust,, and they were to hold it for the separate use of his daughter Jane-during her life; but the will was silent as to the trust estate after her death. The next portion he gave to his son Thomas in fee. The next portion he gave to his executors in trust, for the use of' the wife of his son Henry during her life, and on her death the-estate was to descend to Henry’s children. The fourth portion, was given to trustees in like manner, for the use of his son ¡Edvyard during life, and after his death the estate was to go to Edward’s, heirs. And the fifth and last portion he gave in part to his son David in fee, and in part to David for life, with remainder to his right heirs. The residue of his estate the testator gave to his executors in trust, to divide among his children and daughter-in-law before named, to, and for the same estates, uses, limitations- and trusts as before provided. He authorized his executors to-sell any of the real estate, and on their selling any they were to-arrange it so as to make up the share out of which it was sold equal to the other shares, so that no one of his children or suchdevisees should be losers by such sale or less benefited by his bounty thereby devised to them severally and respectively. At. the date of the will his daughter Jane had a large family of children, and her husband was, in the testator’s opinion, unfit* to manage her estate. lío reason or circumstance appeared which could have induced the testator -to omit a provision for these children. On the construction of the will, held, that the effect of the devise was to vest the first parcel in the trustees in trust for Jane for life, with remainder to her children.

In Cropton v. Davies a testator devised three free-hold houses to trustees in trust as to the first two and receive the rents and pay the same to his wife during her life or widowhood, and after,, her decease or second marriage as to the first upon trust to convey and assign the same to his daughter E. A. M., her heirs and assigns forever, as to the second in similar terms to his daughter C. E. M., and as to the third upon trust to apply the rents for the .advancement and benefit of my grand-daughter M. A. C., until she attains the age of twenty-one years, but in case my said granddaughter should die under that age, then I devise the said dwelling house, etc., to my daughters, E. A. M¡ and G. E. M., their heirs and assigns, as tenants in common. Held, that the trustees took a legal estate in fee in the three houses, and that the granddaughter by implication took an equitable estate in fee in the third house subject to defeasance in the event of her dying under twenty-one years of age.

Where a will is capable of two constructions, one of which will exclude the issue of a deceased child, and the other include such issue, the latter construction should be adopted. Matter of Estate of Brown, 93 N.Y., 295, 299.

As when we consider all the provisions of this will we come unhesitatingly to the conclusion that it was the testator’s intent that Charles should have the full benefit of this farm and if he should die leaving it or any portion of it unexpended it should vest in his heirs, the authorities cited seem to justify us in holding that upon the death of Charles the .title vested in Mary Lawrence and Jane 0. Whitney, subject to any dower the widow might have therein. This determination is eminently just and equitable and •as it carries into effect the manifest intent of the testator, should, we think, prevail.

We are of the opinion that upon the death of Charles the real -estate in question descended to the appellants, Mary Lawrence and Jane 0. Whitney, subject to any right of dower their mother may have therein.

Why the moneys advanced by one of the appellants for the •support of Charles and his family, which was nearly equal to the value of the farm, should not have been declared a lien upon it as well as his funeral expenses, the effect of § 21, chap. 2, part 2 of the Eevised Statutes, and several other interesting questions were presented in this case, but the view we have taken of those -already considered renders their examination and decision unnecessary. We think for the reasons already stated the judgment should be reversed.

Jndgment reversed and a new trial ordered, with costs of this appeal against the respondents to abide the event.

Hardin, P. J., concurs.

Merwin, J.

I think that, under § 1866 of the Code, the action is maintainable. I concur, however, in the construction given by Brother Martin to the will, and upon that ground favor a reversal.


source: Caselaw Access Project

license: Public Domain

text:
    William H. De Mott, App’lt, v. Francis M. Kendrick, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    Appeal—Limitation op time—Notice op entry op judgment.
    A notice of entry of judgment served before the amount of the judgment has become fixed by readjustment of costs after notice, does not. limit the time to appeal.
    (Merwin, J., dissents.)
    Appeal from an order of the Onondaga special term, denying: a motion by the plaintiff to compel the defendant to accept a. notice of appeal from the judgment herein, entered in Oneida county April 10, 1891, and also denying the plaintiff’s motion tocona pel the defendant to receive notice of exceptions to the report of the referee upon which the judgment was entered. The action was brought for an accounting between the plaintiff and defendant, who were copartners, and the report of the referee directed a judgment settling the affairs of the copartnership and for the recovery of a judgment by the defendant against the 'plaintiff.
    On the 10th of April, 1891, the attorneys for the defendant entered the judgment and taxed costs without notice to the attorney for the plaintiff. On the same day they served upon the plaintiff’s attorney a copy of such judgment with a notice of the entry thereof, and their bill of costs, with a notice that the same would be readjusted by the clerk of Oneida county on the 13th day of April, 1891, at two o’clock p. M. No othér notice of the entry of said judgment or of the adjustment or readjustment of the costs was served upon the attorney for the plaintiff. On the 23d of October, 1891, the plaintiff filed with the clerk of Oneida county a notice of exceptions to the report of the referee and a notice of appeal by the plaintiff from said judgment. On the same day the attorneys for the defendant were served with a notice of appeal and with a notice of said exceptions. The attorneys for the defendant returned the notice of appeal and notice of exceptions' to the attorney for the plaintiff _ on the same day, with written notice that the same were served too late and after the time to appeal had expired.
    The order appealed from denied the plaintiff’s motion “ on the ground that said notices of appeal and of exceptions were served too late and were not served in time, more than thirty days having elapsed between a service of a copy of the referee’s report, notice of filing thereof, a copy of the judgment with a notice of the entry thereof and the service of the notice of appeal and notice-of exceptions.”

      W. A. Matteson, for app’lt; Qoodier & Wolcott, for resp’t
   Martin, J.

As the appellant’s motion was denied upon the ground that more than thirty days had elapsed after the service-of a copy of the judgment with a notice of the entry thereof, and. before the service of the notice of appeal, we think it is fair to presume from the order in this case that the motion was denied upon the ground that the appellant’s time to appeal had expired, and, consequently, the court had no power or authority to grant the order.

The only question we need consider is whether the service of a copy of the judgment herein, with a written notice of the entry thereof, at the time when it was served was sufficient to limit the appellant's right to appeal.

The appellant’s claim is that the judgment that was entered, and of which a notice was given, was not then a final and perfected judgment, but was uncertain and liable to be changed, and, hence, that a notice of its entry before it had been perfected and become final was insufficient to limit his time to appeal.

In Sherman v. Wells, Pres., etc. (14 How. Pr., 522), the general term of the first district held that while the amount of the costs is kept open, no notice of the entry of judgment can be given which will limit the time to appeal. Mitchell, J., in delivering the opinion of the court in that case, said: “The appellant is to appeal within thirty days after written notice of the judgment is given to him. This must mean of, a judgment so perfected in form that on the very day on which the notice is given of its entry the appellant has on the record a knowledge of all the matters necessary to the perfection of an appeal, and of a stay upon it. One of these matters is the amount of the judgment, and that depends on the amount of the costs. So that while the amount of the costs is kept open, no notice of the entry of judgment can be given which will limit the time to appeal.”

The doctrine of that case was followed by the general term of the seventh district in Champion v. Plymouth Congregational Society (42 Barb., 441). In the opinion of the court in that case the doctrine laid down in the Sherman case was quoted with approval, and it was distinctly held that a notice of the entry of judgment served before the costs were finally adjusted did not have the effect to limit the right of the opposite party to appeal to the general term.

In Thurber v. Chambers (60 N. Y., 29), it was held that where a decree in a partition suit awards costs, a notice of judgment served prior to the taxation and entry of the costs does not limit the time for appeal. The same, doctrine’ was held in Beinhauer v. Gleason (44 Hun, 556; 9 St. Rep., 91).

These authorities seem to justify the appellant’s claim and to establish the doctrine that a notice to limit the time of appeal can only be given when the amount of the judgment including costs as. well as damages has been finally adjusted and determined by the clerk, who is the taxing officer.

The respondent, however, contends that the doctrine of the first two cases has been in effect overruled by the cases of Wilson v. Palmer (75 N. Y., 250) and Yates v. Burch (87 id., 412.)

In Wilson v. Palmer, a judgment was perfected by the final adjustment of costs by the clerk on August 3, 1877, and a copy thereof with notice of entry was served on the same day. On the 30th of the same month, on application to the court for an order for a retaxation of the costs, an order was granted by the court striking out an item of one dollar and twenty five cents. It did not appear that the judgment was actually modified. An undertaking., on appeal was filed and served August 30, 1878. Oh a. motion to dismiss the appeal on the ground that it was not perfected within one year, it was held that as the appeal was not perfected within one year from August 3, 1877, it was too late, and that no other notice to limit- the time of appeal was necessary, although the taxation was corrected on August 30th. It is quite-obvious that the costs in that case were finally adjusted, by the-clerk upon notice to the adverse party on August 3, when the-notice to limit the time to appeal was given, as it appears from the report of the case that the taxation was corrected by an order of the court granted on a motion for relaxation made by the appellant. In other words, the correction m that case was made on an appeal to the court from the decision of the clerk, and not upon a readjustment of the costs by the clerk. While the report of that case is meager, it shows that the judgment had become fixed and was final so far as any act of the clerk as taxing officer was-concerned before the notice was served.

At the time of its entry his power to adjust or re-adjust the costs was at an end, and hence it was that the notice of entry of judgment was held effectual to limit the time of appeal. .

The question under consideration in this case was not involved in the case of Yates v. Burch. The question in that case arose-under a section of the Code of Procedure which provided that an action should not be brought on an undertaking given on appeal, “ until ten days after the service of notice on the adverse-party of the entry of order or judgment affirming the judgment appealed from.”

In discussing the question of the sufficiency of the notice in that case, it was said: “ On the other hand, in Wilson v. Palmer (75 N. Y., 250), .upon facts quite similar to those before us, it was-held that the time to appeal ran from the entry of judgment containing the sum of costs as first adjusted. The appellants object that this was under another statute. This is so; but, as will be seen, its provisions are broader than those under-review, and the reasoning of the court in that case may well include and be decisive of this. In neither was the judgment in fact changed, although in both the costs were reduced; but under the statute governing the rights of the parties- here, it would seem to be sufficient to give notice of the entry of the order or judgment of affirmance, without stating the amount of costs awarded;while under the other statute, when notice is required, it must be of the order, or of the judgment or order; not of • the entry merely. The object of the different provisions is manifest. In the one case, to notify the appellant that the contingent obligation of his surety has become fixed; in thé other, to give the-party such information of the terms or amount of the order or judgment as will enable him to state it in the undertaking required upon appeal.”

The court then remarked that: “ The argument, as well as the-decisions, in Sherman v. Wells and Champion v. Plymouth Congregational Society apply only to the latter case; ” that the notice-required by the statute then under consideration was of the entry of the judgment or order of affirmance only, and not of the costs- or damages awarded, and then stated: “ There is a difference in the phraseology and the object of the two statutes,- and the construction applied to one need not be extended to the other.”

This examination of the decision in the Yates case renders it quite manifest that the court in that case did not intend to and did not decide the question involved in the case at bar. Nor did it-overrule or question the authority of the decisions in the Sherman and Champion cases.

We think the cases relied upon by the respondent are clearly distinguishable from the Sherman and Champion cases, and from the case at bar. As we have already seen, in the Palmer case the. costs had been finally adjusted by the clerk, so that his jurisdiction over the question of costs was at an end when the notice to-limit the time to appeal was served. In that case the clerk’s authority to tax or retax the costs was spent. He had no power to act further in the matter. The judgment was absolutely final so-far as any act of his in regard' to the costs -was concerned. But-in the Sherman and Champion cases, as in the case at bar, the-clerk still had power, and it was his duty, to readjust the costs. There had been no final and conclusive adjustment of them by him, and hence the judgment was not final, as its amount had not. been, finally determined when the notice was given by which the time to appeal was sought to be limited.

The party who undertakes to serve a notice of the entry of judgment, so as to limit the time to appeal, is held to very strict practice. Good v. Daland, 119 N. Y., 153; 28 St. Rep., 935.

We are of the opinion that the notice of entry of judgment-having been served before the amount of judgment had become fixed by readjustment of costs after notice to the appellant, it did. not limit his time to appeal.

Nor do we think the rule, as it existed before the adoption of the Code of Civil Procedure, has been changed by § 3264. It seems that that section was intended as simply declarative of the practice as it existed at the time of its adoption. Mr. Throop in his note to that section says: “ New in form, but according to the éxisting practice as recognized in numerous cases,” citing Stimson v. Huggins, 16 Barb., 658; Macomber v. Mayor of N. Y., 17 Abb. Pr., 35; Henry v. Bow, 20 How. Pr., 215; Hoffnung v. Grove, 18 Abb. Pr., 142; Champion v. Plymouth Cong. Soc., 42 Barb., 441; Petrie v. Fitzgerald, 2 Abb., N. S., 354; Watson v. Gardiner, 50 N. Y., 671.

These considerations lead us to the conclusion that the order appealed from should be reversed, and the motion granted.

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

Hardin, P. J., concurs.

Merwin, J.

(dissenting)—I am inclined to the opinion that the order in this case should be affirmed. The judgment sought to be appealed from was at its entry a complete judgment The costs had been taxed as the party had a right to have them taxed under § 3264 of the Code. That section provided for a retaxation and then provided that, “ any sum deducted upon a retaxation must be credited upon the execution, or other mandate issued to enforce the judgment.” So that apparently the judgment in form remained as entered but could be enforced only for the proper amount No modification of the form of the judgment was provided for. It would seem to follow that the judgment, as entered, was the one to be appealed from and the one and the only one of which a copy could be served.

Under the old Code, the costs could not be regularly inserted in the judgment without taxation upon notice, and the judgment was therefore incomplete until such taxation. The difference in that respect in the present Code renders inapplicable the cases decided under the old Code. This distinction is not considered in Beinhauer v. Gleason, 44 Hun, 556; 9 St. Rep.. 91. The question was not involved in Beinhauer v. Gleason, 15 St. Rep., 227, Affirmed, 119 N. Y., 658; 29 St. Rep., 994.

The case of Wilson v. Palmer, 75 N. Y., 250, seems to be in point. Here, as there, no other judgment was ever entered and it does not appear that the judgment has been modified. Yates v. Burch, 87 N. Y., 412, is in the same direction. I think, therefore, the order should be affirmed.

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


author: Martin, J. Hardin, P. J. Merwin, J.

text:
    Mathias Schenck et al., Resp’ts, v. Arthur B. Erwin, Def’t. Francis Erwin, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    Supplementary proceedings—Third party order—Jurisdiction.
    A county judge of a county other than that of the debtor’s residence has no authority to grant a third party order. Where such order was granted, and the county judge of the debtor’s residence, before whom supplementary proceedings had been instituted, subsequently made an order directing such third party to pay over to a receiver, Held, that no jurisdiction over such third party had been acquired, and that such order was unauthorized.
    Appeal from an order made by the county judge of Chemung -denying motion that an order made by said judge requiring appellant to pay the receiver appointed in supplementary proceedings $129 out of a legacy be. vacated. Plaintiff recovered a judgment against Arthur B. Erwin before a justice of the peace in Steuben county, and a transcript was filed and judgment docketed in the clerk’s office of Chemung county, and an execution was issued to the sheriff of that county and returned unsatisfied. Supplementary proceedings were instituted before the county judge of Chemung county, and defendant Arthur B. Erwin was examined, he then being a resident of Ghemung county. Subsequently plaintiffs obtained an order from the county judge of Steuben county for the examination of Francis Erwin, the appellant, concerning the property of.the defendant, and on the examination of Francis and the previous examination of defendant, the county judge of Chemung made an order requiring Francis, to pay to the receiver $129, the amount of the judgment and. costs in the supplementary proceedings.

      Spencer & Mills, for app’lt; Leslie W. Wellington, for resp’ts.
   Martin, J.

On February 12, 1891, the county judge of Chemung county made an order requiring the appellant to pay to the receiver herein the sum of one hundred and twenty-nine-dollars. The single question in-this case is, whether the judge-making that order had jurisdiction. If he had no jurisdiction to-make the order, then he erred in refusing to vacate it. He acquired no jurisdiction over Francis Erwin, who was examined as; a third person having property of the judgment debtor, under or by virtue of the order issued by the Steuben county judge. -The county judge of Steuben county had no authority to issue such an order. It could be issued only by the county judge of Che-mung county. Merrill v. Allin, 46 Hun, 623; 13 St. Rep., 20. The county judge of the latter county made no such order,, hence there was never any valid order to examine the appellant, as such third person. There was an attempt to institute the: • special proceeding provided for by subdi 3 of § 2432 of the Code, but it failed. There was no proceeding -under that provision of the Code in which the county judge of Chemung county could, make any valid order whatever.

Nor do I think that in the proceedings instituted before him under snbd. 1 of § 2432 he in any way acquired jurisdiction of the appellant or jurisdiction to make the order requiring him to-pay the sum named to the receiver. The appellant was not even, examined under the order in that proceeding. He was examined only in a proceeding commenced before another county judge, who had no authority whatever to entertain it, and neither judge obtained any jurisdiction over the person of the appellant.

These views lead me to the conclusion that the order appealed, from should he reversed.

Hardin, P. J.

Upon reflection I yield to the views expressed in the foregoing opinion, and vote for a reversal.

Order reversed, with ten dollars costs and disbursements.

Merwin, J.

The cases of Cooman v. Board of Education of Rochester, 37 Hun, 96, and Woodman v. Goodenough, 18 Abb., 265, sustain the proposition that the county judge of Chemung county had no jurisdiction to make the order complained of. See also Riddle & Bullard Suppl. Pro., 3d ed., 320. The appellant was not a party to the proceeding before that officer, and did not appear therein. The service of notice by the plaintiffs’ attorney could not take the place of a third party order.

Besides a case was not made that justified an order requiring the appellant to pay. It was not shown that he had money in his hands that belonged to the defendant. It may be that he owed .the defendant a portion of his legacy, or had in his hands a mortgage from which at some future time he would have the means to pay the legacy, but that was not enough. West Side Bank v. Pugsley, 47 N. Y., 368.

1 think, therefore, that the order appealed from should be .reversed.


author: Merwin, J. Martin, J.

text:
    The Village of Stamford, App’lt, v. John H. Fisher, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    Tillages—Hawkses and peddlers. •
    One who goes about monthly from house to house in a village delivering goods previously ordered, and at the same time takes orders for future delivery, but does not expose his goods for sale on the streets, is not engaged in peddling in the streets within the meaning of ehap. 465, Laws 1888, authorizing village trustees to regulate hawking and peddling on the public streets.
    (Martin, J., dissents.)
    Appeal from a judgment of the Delaware county court, reversing a judgment rendered in a justice’s court, upon a trial before the justice and a jury. The action was to recover a penalty for peddling in the public streets of the village of Stamford with- ' -out having obtained a license therefor. The defense" was that the •defendant was not a peddler within the meaning of the statute •authorizing villages to prohibit peddling in the streets without a license.
    The plaintiff was a duly incorporated village, incorporated by ■chap. 798 of the Laws of 1870. Chap. 465 of the Laws of 1883 provides as follows: “ The trustees of any village in this state incorporated under special act of the legislature, and who have not the powers hereinafter conferred, shall, from and after the passage of this act, have power and authority to restrain, regulate or prevent hawking and peddling in the streets, except the peddling and sale of meats, fish, fruits and farm produce, to regulate, restrain or prohibit sales by auction, and grant licenses to peddlers and auctioneers, and fix the amount to be paid •.therefor."
    Pursuant to the provisions of that statute, the board of trustees -of the village of Stamford, on the 8th of September, 1890, passed .a resolution as follows :
    “ Resolved. That from and after the passage of this resolution all persons are prohibited from hawking or peddling in the public streets within the corporate limits of the village of Stamford, or selling at auction in the streets of said village of any goods, wares or merchandise of any kind or description, excepting •meats, fish, fruits and farm products, until such person or persons •shall have first obtained a license therefor as provided in the next section.”
    The section that followed, after stating the manner in which licenses should be obtained and the price to be paid therefor, pro■ceeded as follows: “ Any such person failing or refusing to comply with this resolution, or to procure such license or pay such fee shall forfeit the sum of ten dollars and costs of prosecution for -each offense as a penalty therefor.”
    The judgment of the justice was reversed upon the ground that the defendant was not a hawker or peddler, or engaged in peddling in the public streets of the plaintiff.

      0. L. Andrus, for app’lt; K D. Wagner, for resp’t
   Merwin, J.

On the 8th September, 1890, the board of trustees •of the village of Stamford, the plaintiff above named, passed a ■resolution reading as follows :

‘‘ Resolved: That from and after the passage of this resolution all persons are prohibited from hawking or peddling in the public streets within the corporate limits of the village of Stamford, or selling at auction in the streets of said village of any goods, wares • or merchandise of any kind or description, excepting meats, fish, fruits and farm products, until such person or persons shall have first obtained a license therefor as provided in the next section.” The section that followed, after stating the manner in which licenses should be obtained and the price to be paid therefor, proceeded as follows: “ Any such person failing or refusing to comply with this resolution, or to procure such licenses or pay such fee shall forfeit the sum of ten dollars and cost of prosecution for ■each offense as a penalty therefor.”

These resolutions were passed under the authority given by ■chap. 465 of the Laws of 1883, which provided as follows: “ The trustees of any village in this state incorporated under special act of the legislature, and who have not the powers hereinafter conferred, shall, from and after the passage of this act, have power .and authority to restrain, regulate or prevent hawking and peddling in the streets, except the peddling and sale of meats, fish, fruits and farm produce, to regulate, restrain or prohibit sales by auction, and grant licenses to peddlers and auctioneers, and fix the amount to be paid therefor.”

The claim of the plaintiff is that, on or about the 29th October, 1890, the defendant was a peddler, and as such was engaged in peddling goods, other than the excepted articles, in the public ■streets of the village of Stamford without a license, and that thereby he incurred the penalty of ten dollars. The plaintiff recovered. before the justice. The county court reversed the judgment upon the ground, as indicated by the opinion of the county judge, that the evidence before the justice did not show that tho ■defendant was a hawker or peddler or engaged in peddling in the public streets of the village.

There is no particular dispute about the facts. The defendant resides in the village of Oneonta, which, we may assume, is a few miles distant from Stamford and in a county adjoining Delaware ■county. On the 29th October, 1890, the defendant was in the village of Stamford with a horse and wagon. Upon that occasion he stopped at several residences and in each case took from his wagon one or more small packages of tea and coffee, and in one ■case a cup and saucer and plate and in another case a bottle of lemon extract, and delivered them in the house, receiving then, the pay therefor. In every instance these deliveries were made.in pursuance of orders taken by him about a month before. Im some of the cases when he made these deliveries, he solicited and took orders for like articles to be delivered about a month thereafter. It does not appear where the goods came from that were delivered, nor whether the defendant was owner. There is evidence that he had a place of business in Oneonta and did not have-any in Stamford.

In substance, the defendant went from house to house and obtained orders for standard goods to be delivered in the future, and thereafter, with a horse and wagon and prepared packages, made deliveries in pursuance of the orders and received then the pay and at the same time took or solicited like orders for subsequent delivery. The claim of the defendant is that this manner of doing business did not make the defendant a peddler. Reliance is placed on the circumstance that, the defendant had no goods except, what had been previously bargained for. It is therefore argued, that there was no carrying to sell or exposing for sale, which are claimed to be essential characteristics of the occupation of a-peddler.

Our statute does not define the term peddler. We may, however, to some extent infer the legislative idea from the provisions of title 4, chapter 17, part 1 of the Revised Statutes, entitled “ Of Hawkers and Peddlers.” By § 1 of that title, as amended by chapter 72 of the Laws of 1880, it is provided that “No person shall be authorized to travel from place to place within this state-for the purpose of carrying to sell, or exposing for sale, any - goods, wares or merchandise of the growth, produce or manufacture of any foreign country other than family groceries and provisions, unless he shall have obtained a license as a hawker and peddler in the manner -hereinafter directed.” Inferentially, it may be said that a person who travels from place to place for the-purpose of carrying to sell, or exposing for sale, any goods, wares- or merchandise would be deemed a peddler. The ordinary meaning of the term is, one who travels about the country with merchandise for the purpose of selling it. 2 Bouvier Law Diet.

In Rex v. McKnight, 10 Barnwall & Cresswell, 734, the defendant, as agent for a party living in a neighboring village, went about the country once a fortnight getting orders for tea and' on. a subsequent occasion made deliveries. This was held not to be an exposing for sale, or carrying to sell, within the meaning of an act requiring any peddler or other trading person going from town to town or to other men’s houses, carrying to sell or exposing to sale, any goods, wares or merchandise, to take out a license. Emphasis was placed on the circumstance that the bargain for the; goods and the delivery were on different occasions.

A similar view is taken in Commonwealth v. Ober, 12 Cush., 498; Com. v. Gardner, 133 Pa. State, 289; Ballou v. The State,, 87 Ala., 145. In the latter case it is said that the distinctive feature of a peddler is that he goes from house to house carryingjbis articles of merchandise with him and concurrently sells and. delivers. In Com. v. Eichenberg, 140 Pa. St., 160, it seems .to have been held 'that a merchant going about the county and getting orders which he subsequently fills, is not a peddler. In Graffty v. The City of Rushville, 107 Ind., 502, it was held that it made no difference whether the goods were taken along for ■present delivery or orders taken for future delivery.

It will be noticed that the .statute of 1883 gives authority to regulate or prevent hawking and peddling “ in the streets,” while it gives authority to regulate or prohibit sales by auction without that limitation. This is a circumstance that may be properly ■considered in determining whether the defendant was within the prohibition. He did not in fact, in the street, sell or offer to sell any goods. The case of Bradley v. The City of Rochester, 26 St. Rep., 823, cited by the counsel for plaintiff, involved a different question.

A penal statute is to be strictly construed. Cameron v. Seaman, 69 N. Y., 401; The City of Buffalo v. Mulchady, 1 Sheldon, 431. Many of the evils that are supposed in some of the cases to attach to the business of the peddler would not occur in business done after the manner of defendant. If a merchant living at Stamford, by himself or his agent, had been accustomed to do just what the defendant did, it would hardly be claimed that he was a peddler. Still the statute makes no distinction in the matter of residence.

The foregoing considerations lead to the conclusion that the defendant was not shown to be engaged in peddling in the streets of the village within the meaning of the statute. It follows that the judgment should be affirmed.

Judgment of Jhe county court -of Delaware county affirmed, with costs.

Hardin, P. J., concurs.

Martin, J.

(dissenting.)—The evidence in this case reveals that the defendant’s method of transacting business in the village of Stamford was that he made business trips to that village about once a month for the purpose of selling at retail and delivering to individuals for use in their families tea, coffee, crockery, groceries and other commodities in which he dealt. On those occasions he delivered goods of the kind mentioned that had been ordered on his preceding trip, collected pay therefor, and solicited and took orders for other goods to be delivered on his succeeding trip. His goods were transported in a peddler’s cart, drawn by a horse ■driven by him from house to house in the village, and left standing in the street while he delivered goods from his cart and solicited trade from the occupants of such houses.

The only claimed or pretended distinction between the defendant’s method of transacting business and the method adopted by ■an ordinary peddler is, that the defendant solicited trade when •delivering goods that had been previously ordered, and subsequently delivered them and solicited other trade, the only difference being that the commodities in which he dealt were not delivered at the time the trade was solicited. That this difference in method changed the character of the defendant’s occupation from that of a peddler to some kind of an unnamed trader, is the-contention of the defendant, and it seems to be the conclusion of' a majority of this court. In that conclusion I cannot concur.

That it is competent for the legislature, in the exercise of the-police powers of the state, to prohibit persons from hawking or peddling without a license, or to delegate to the trustees of a village the power to pass an ordinance regulating hawking and peddling in the streets, was correctly held by the learned county judge.

The principal and practically the only question which arises on. this appeal is, whether the trial court was justified by the evidence in the case in finding that the defendant was engaged in the business of hawking or peddling in the streets of the village of Stamford without having obtained a license therefor. That he.had obtained such license is not pretended. So that the question, is, was he engaged in hawking and peddling in the streets ?

In determining the construction to be given to the words of a statute or ordinance, it is always proper to consider the purpose-for which it was enacted, and the mischief it was intended to prevent or remedy. The manifest purpose of the ordinance or resolution adopted by the trustees of the plaintiff was to protect the.local merchants of the village, who had fixed places of trade-therein and were taxpayers, against traveling traders or peddlers,,, who had no such places of trade and who contributed nothing by way of taxes to the support of the village improvements, schools, or other local interests, and also-to protect its inhabitants from, the arts, importunities and dishonest practices of that class of traders.

The theory upon which statutes and ordinances of this character are said to be founded is, that a sound public policy demands-that merchants who have fixed places of trade in a municipality, and are thus directly amenable to the legal and social restraints-which must influence the business conduct of a merchant depending for his patronage upon the inhabitants of the place where he resides, should be protected from, and not brought in competition with, peddlers or transient traders, who have no place of business-in the village or city, have contributed nothing by way of taxation to the benefit of the place, and who go from house to house-to ply their trade. And that public policy also requires that the-inhabitants should be protected from the invasion of their homes-by transient traders, who are ofttimes unscrupulous, dishonest and dangerous persons. Morrill v. The State, 38 Wis., 433; Commonwealth v. Gardner, 133 Penn. St., 289; Graffty v. The City of Rushville, 107 Ind., 502.

Assuming that such was the purpose of the ordinance under-consideration, it is quite obvious that the business carried on by the defendant was within its spirit and purpose, and, I think, within the letter of its provisions. Had the defendant delivered his-goods when he solicited his trade, no doubt would exist that he-was a hawker or peddler. Does the fact that he solicited trade at one time, and delivered his goods at another, essentially change-the character of his vocation ? As was said by Mitchell, J., in Graffty v. The City of Rushville, supra: “If the itinerant trader may avoid an ordinance enacted to subserve the ends which we have supposed, by going from house to house, making sales, merely exhibiting samples, of his wares, leaving another to follow to deliver the goods, or making the delivery by any other method, all the evils which were intended to be guarded against remain; while none of the protection contemplated is afforded.”

In that case it was held that going from house to house, selling or offering goods for sale at retail to individuals not dealers in such commodities, whether they be carried along for present delivery, or the sales be made for future delivery, constituted the person so selling a hawker or peddler within the meaning of a statute to restrain hawking or peddling.

I cannot think that his manner of doing business made the defendant any less a hawker or peddler than if he had delivered his goods when he solicited his trade. It may be that he intended thereby to avoid the ordinance; but it -does not seem to me that his effort should succeed.

The word “ peddler ” is defined by Webster as: “One who peddles; a traveling trader; one who carries about small commodities on his back or on a cart and sells them; ” by Worcester as: “A traveling merchant; one who travels around the country carrying commodities for sale ; ” by Johnson: “ One who travels the country vending small commodities; ” by Bouvier: “ Persons who travel about the country with merchandise for the purpose of selling it.”

“ The leading primary idea of a hawker and peddler is that of an itinerant or traveling trader, who carries goods about, in order to sell them, and who actually sells them to purchasers, in contradistinction to a trader who has goods for sale and sells them in a fixed place of business.” Commonwealth v. Oler, 12 Cush., 495.

In the City of Chicago v. Bartee (100 Ill., 57), it is said : “ The term ‘ peddler ’ is defined by high authority to be one who deals in small or petty things, and this coincides with the popular meaning of the word, and we must conclude, as required by the canons of interpretation, that such is the sense in which it is employed in the charter. The term peddler ’ is used in the charter in its general and unrestricted sense, and fully embraces persons engaged in going through the city from house to house, and selling milk in small quantities to different persons; nor can it matter that appellee had regular customers to whom he daily sold his milk.”

It seems to me that the defendant’s business was that of a peddler within the definitions given. He was a traveling trader or merchant, was traveling through the country with merchandise for sale and for the purpose of selling it. That was his business in Stamford, and he was engaged in no other there. The. claim that because, he made an executory contract to sell rendered the contract and delivery under it any the less a sale, I do not believe. Indeed, no sale was. consummated or executed until the goods were delivered. If by taking orders for commodities to be subsequently delivered, instead of delivering them when ordered, the itinerant trader or peddler may evade such an ordinance when his trips are made monthly, he can as well evade it by the same method when his trips are weekly or daily.

The question of the time which may intervene between his trips can in no way change the principle. If he would not be a peddler in one case he would not in the other. Can it be that the man who peddles milk from house to house ceases to be a peddler when he is told by his customers the quantity or kind of milk or cream they will want the following day or on his next trip ? Or does the meat or fish peddler cease to be such when they are told by their customers on each trip what they desire or will require for the next day, or the next week, or the next month ? I think not. It cannot be that a transient trader or itinerant merchant who travels from house to house through a village for the purpose ' of selling his wares, having no fixed place of business in the municipality, is changed from a peddler to a person following some unnamed vocation by the fact that he solicits his trade in advance and then furnishes his- commodities to his customers, when he both sells and delivers them in the village. The defendant was not a commercial traveler, as a commercial traveler sells at wholesale to dealers to sell again. The defendant’s sales were to customers for their own use, and at retail. ’

In Village of Deposit v. Pitts (18 Hun, 475), where an ordinance was passed forbidding the sale of goods at public auction, except by residents, without a license, it was held' that when defendant put up goods for sale at a certain price, and if they were not taken at that price offered them again at a lower one and so on until they were taken or withdrawn, it was a sale at auction within the meaning of the ordinance. If such a sale is to be construed as a violation of an ordinance forbidding sales at auction, surely the defendant’s business should be construed as a violation of the ordinance against hawkers and peddlers in this case. If the defendant in that case could not evade the ordinance by the method adopted, the defendant in the case at bar cannot by his method evade the ordinance in question in this case.

I am thus led irresistibly to the conclusion that, under the evidence in this case, the jury was fully justified in finding that the defendant was engaged in the business of hawking or peddling in the village of Stamford.

It is, however, claimed by the defendant that if he was engaged in hawking or peddling, still his business was not carried on in the street, and hence did not come within the provisions of the ordinance under consideration. I do not think this claim can be upheld. He was engaged in selling and delivering goods from house to house, employed a horse and cart for their transportation, stopped in front of each house leaving his horse and cart in the street, removed the goods from the cart and delivered them to his customers and solicited other trade. This I think constituted peddling in the public streets of the village. If not, then the milk peddler, the meat peddler, the fish peddler, the fruit-peddler, the tin: peddler and the peddler who transports his wares in trunks or in a pack carried in his hand or on his back, would all be exempt from the operation of the ordinance, as they trade in the houses of those with whom they deal and not in the streets. The construction contended for would nullify the ordinance and render it practically inoperative.

While penal statutes should be strictly construed, they should not be so strictly construed as to defeat the essential purposés of their enactment, when the intent is clear, but on the contrary, their language should be understood in the common, customary and popular signification. Merriam v. Langdon, 10 Conn., 469.

“ The paramount object, in construing penal as well as other statutes, is to ascertain the legislative intent; and the rule of strict < construction is not violated by permitting the words to have their full meaning, or the more extensive of two meanings, when best effectuating the intention. They are, indeed, frequently taken not in their strict technical sense, if that would defeat, but in a more popular sense, if that will uphold, and carry out, the intention of the legislature, but in the widest sense, sometimes even in a sense more Wide than etymologically belongs or is properly attached to them, in order to carry out effectually the legislative intent, or, to use Lord Coke’s words, to suppress the mischief and advance the remedy.' Nor is the rule of strict construction ever violated by permitting the words of a statute to have their full meaning, or by the application of common sense to its terms, in order to avoid an absurdity. They are, therefore, to be held to embrace every case within the mischief, if also fairly within the words read with such corrections as the court may make to avoid insensibility.” Bndlich on the Interpretation of Statutes, § 337.

If we give the ordinance in question such a construction, accord to the words their full meaning, and hold that it embraces every ease within the mischief intended to be suppressed which is fairly within the words used, it becomes quite evident that the defendant’s business was within its inhibition, and that the jury was justified in finding that the defendant was a hawker or peddler in the streets of the plaintiff, and liable to the penalty imposed.

No case has been cited, and I have found none decided by the courts of this state, where the question involved in this case has been determined. It has, however, been decided by courts outside of the state, but their decisions are in direct conflict. I think those cases which hold a doctrine which would render the defendant liable are based upon better reasons that those that hold the opposite doctrine, and consequently should be followed.

The principle involved in this case is an important one, and its decision may be far-reaching in its consequences. If the doctrine of the opinion of my brother Merwin is to prevail, many, if not most, of the ordinances of the various cities and villages in the state may be easily evaded, their purpose utterly thwarted and a source of large revenue to those municipalities entirely cut off.

These considerations lead me to dissent from bis opinion and to the conclusion that the judgment of the county court should-be reversed, and the judgment of the justice's court affirmed, with costs to the appellant