author: Stover, J.

text:
    In the Matter of the Probate of the Will of Ephraim H. Bender, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    1. Costs — Surrogate’s court — Witness’ ebbs.
    A surrogate cannot tax tor the attendance of an expert witness a greater sum than that prescribed as legal fees for witnesses by section 3318 of the Code.

      2. Same — Such compensation is not.
    Such compensation is not one of the reasonable and necessary expenses, which the surrogate may include in the taxation of the executor’s costs.
    .3. Same — Review.
    The supreme court is not precluded by the statement or finding of the surrogate that expert witnesses’ fees are taxable according to the practice in surrogate’s court.
    Appeal from a decree, allowing the executors’ costs and disbursements in the probate proceedings out of the estate.

      Robert J. Scherer, for app’lts ; Stedman, Thompson & Andrews (George L. Stedman, of counsel), for resp’ts.
   Stover, J.

The appeal is from so much of a decree made by the Albany’s surrogate's court on the 10th day of July, 1894, as allows f500, paid as a fee to an expert medical witness, as a disbursement. The proceeding in which the item of $500 was allowed was for the probate of the will o£ Ephraim H. Bender, and one of the questions for the surrogate to determine in this proceeding was the mental capacity of tbe testator at the time of the making of the will. The sole question presented here is as to the power of the surrogate to allow the item in dispute. Allowances <of costs in the surrogate’s court are regulated by the Code, and, unless authority can there be found for the allowance, the decision of the surrogate'was erroneous.

Section 2559 of the Code of Civil Procedure, relating to costs and disbursements in the surrogate’s court, is as follows:

“ Costs, when awarded by a decree include all disbursements of the party to whom they are awarded, which might be taxed in the supreme court. The sum allowed for costs must be fixed by the surrogate, and inserted in the decree.”

It will be seen that under this section no disbursements can be allowed, except such as are allowable in the supreme court; but the surrogate is made the taxing officer, instead of the clerk.

Section 3256 of the Code of Criminal Procedure specifies the disbursements which a party is entitled to, when costs are allowed, and is as follows :

“ A party, to whom costs are awarded in an action, is entitled to include, in his bill of costs, his necessary disbursements, as follows : The legal fees of witnesses, and of referees and other officers ; the reasonable compensation of commissioners taking depositions ; the legal fees for publication, where publication is directed, pursuant to law ; the legal fees paid for a certified copy of a disposition, or other papers, recorded or filed in any public office, necessarily used or obtained for use on the trial; copies of opinions and charges of judges; the reasonable expenses for printing the papers for a hearing, when required by rule of the court; prospective charges for the expenses of entering and docketing the judgment; and the sheriff’s fees for receiving, and returning one execution thereon, including the search for property; and such other reasonable and necessary expenses, as are taxable, according to the course and practice of the court, or by express provision of law.”

Section 3318 of the Code of Civil Procedure regulates the amount of fees to which a witness is entitled in an action in the supreme court, and is as follows:

“ A witness in an action or special proceeding, attending before a court of record, or a judge thereof, is entitled, except where another fee is specially prescribed by law, to fifty cents for each day’s attendance; and, if he resides more than three miles from the place of attendance, to eight cents for each mile, going to the place of attendance”

It will be seen by this section that the fees of witnesses are limited by law to the per diem compensation and mileage as fixed by statute, aud that the party to whom costs are awarded in an action is entitled to tax only the legal fees of witnesses, etc. The witness is compelled to attend upon payment of the fees prescribed by law, and has no right to demand more from the party. Hence, “legal fees," as used in the section fixing the costs, must mean only such fees as the party is legally bound to pay in order to secure the attendance of witnesses.

But it is claimed that expert witnesses are not within the statutory definition of “ witnesses,” but, by reason of the peculiar character" of their testimony, the compensation paid, whatever it may be, becomes a necessary disbursement in an action. No precedent is cited for such contention, nor do I think any can be found. It was held in Mark v. City of Buffalo, 87 N. Y. 184, that the sums paid an expert for plans and measurements in an action brought to recover for granite, dressed and prepared for use, in the construction of a city and county building, was not a necessary disbursement. And in Rotheray v. Rubber Co., 90 N. Y. 30, it was held that in an action brought, to compel the lowering of a dam, which set the water back upon plaintiff’s lands, items for engineer’s fees, maps, and services were not proper necessary disbursements in an action, and could not be allowed. As was said in Mark v. City of Buffalo: “ If such practice can be allowed, the precedent would draw after it every expense of preparation for trial, and open the door to a. flood of evil.” I do not think that there can be any distinction between the fees of an expert witness in actions of the character of those cited above and the one in the case under consideration. It, may be seen at once that the services of the engineer are as necessary in an action like that of Rotheray v. Rubber Co. as where those of a medical expert in the proceeding to determine the mental condition of the testator in the case under discussion. But it is contended by the respondent that this item was properly allowed under the last clause of section 3256. “ Such other reasonable and necessary, expenses as are taxable according to the course and practice of the court, or by express provision of law.” If I am correct in the views above stated, this was not an item taxable by express provision of law, and authority, if any, must be found under the other clause, viz.: “ taxable according to the course and practice of the court.”

The surrogate has made what is called a “finding” that expert witnesses’ fees are taxable according to the rules and practice of the surrogate’s court, and it is claimed that this court is precluded by such finding. I cannot consent to such a proposition. While it is true that in question of practice only, in other courts, this court will assume that the judges of the court itself are the proper judges of rules and practice (4 their own court, yet where, as in this case, such practice affects the substantial rights of the party, and not the conduct of the proceeding simply, but undertakes to enforce and create a; judgment against the party, under which he would be deprived of his property, this court should go beyond the finding of the surrogate, and determine for itself whether such action is within the authority of the surrogate, and whether he has power to make such rule or follow such practice; and while we may concede that the surrogate may make such rules and adopt such practice as he may relating to the conduct of proceedings in his court, he may not make a rule or adopt a practice which contravenes the statute, and under which a judgment may be entered against a party, and his property taken, without redress, and without right of review. The fact that the statute has expressly limited the allowance of witnesses’ fees to the legal fee is of itself a prohibition to the surrogate, or any officer acting under the statute, to allow more than the legal fees for the attendance of witnesses. The statute nowhere gives authority, to the surrogate to increase or allow other than legal witnesses’ fees, but expressly limits his authority ; so that, whenever the surrogate allows witnesses’ fees, he can allow only the legal fees, viz. the per diem allowance and mileage. I do not think the court is precluded by the statement or finding to the surrogate that expert witnesses’ fees are taxable according to the practice in the surrogate’s court; ■for, as we have seen, such practice, if it exists, must be without warrant of the statute or of precedent or of law in any manner, :and the surrogate’s court has no power to adopt a rule or practice which would permit the taxation of expert witnesses’ fees.

The decree should be modified by disallowing the allowance of $500, paid for expert witnesses’ fees, with the costs of this appeal.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    William Ramsey, Resp’t, v. William Robinson, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    JUSTICE’ COUBT — APPEAKANCE—yOLTOTABY.
    A defendant, who is brought before a justice of the peace under a warrant of arrest issued in a civil action, does not make such voluntary appearance as dispenses with the service of the summons.
    Appeal from a judgment entered in favor of plaintiff.

      Willard Robinson, for app’lt; Abner Robinson, for resp’t.
   Stover, J.

On the 1st day of May, 1894, the plaintiff made the following affidavit:

“ Belcher, 1 — 5—94.
“ I, William Ramsey, being duly sworn, depose and say that William Robinson did unlawfully remove one sheep and her lamb from off lands occupied by said William Ramsey to the said William Robinson’s land, and refused to return the same without any proof of said sheep and lamb being the property of said William Robinson. William Ramsay.
“ Subscribed and sworn to before me this 1st day of May, 1894.
John A. Gibson, Justice of the Peace.”

On this the justice issued a warrant of arrest, and, as the return certifies, on the 2d day of May the defendant was brought before the justice under arrest. The answer of the defendant was a plea of not guilty, and alleged that the defendant was the owner of the sheep mentioned in the complaint. The only “ complaint ’’ was the affidavit above referred to. Neither a copy of the warrant nor any paper was served upon the defendant at any time. On the appearance of the defendant under arrest, and his plea, the justice proceeded to take the testimony, and on the 5th day of May entered in his minutes a judgment in favor of the plaintiff. The return shows that on the 10th day of August the judgment was entered in the docket of the justice. The appeal was seasonably taken.

I think the justice was entirely without jurisdiction to enter the judgment. No summons was ever issued, or served upon the defendant, and his appearance before the justice under arrest,fin the custody of a constable, and a plea of not guilty, cannot be said to-be a voluntary appearance before the justice. An examination of the testimony further shows that there is no sufficient evidence to warrant a judgment in favor of the plaintiff, if an action was pending. The justice certifies that, the defendant having failed to prove that the sheep in question was not the property of the plaintiff, he thereupon proceeded to enter judgment against the defendant in the action. There is no sufficient evidence that plaintiff owned the sheep. The proceeding under review can scarcely be said to have been conducted under the form of law. •Judgment must be reversed, with costs in this court and the county court.

All concur.


author: Mayham, P. J Putnam, J.

text:
    Travelers’ Insurance Company, Pl’ff, v. Ann Healey, Impleaded, etc., App’lt, et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    1. Insurance — Life—Assignment.
    An objection that the assignment of a life insurance policy is not in writing as required by its terms, is available to any one who claims an interest therein.
    2. Same — Power to assign.
    A policy for the benefit of the wife of the insured, which provides that, in case of the death of the wife before the husband, the insurance shall go to their children, is not assignable during the life time of the husband.
    • 3. Same — Consent op husband.
    A mere delivery of such a policy by tfee husband and wife, to secure a. joint note executed by them, is not a. assignment of the policy, but operates only as a pledge of the wife’s co -tingent interest therein.
    4. Interpleader — When not lie.
    The company cannot maintain an action of interpleader against several claimants to a life insurance policy, whose rights, by its terms, are inchoate, and not matured, fixed and determined or settled at least so far as. not to depend upon the happening of a future event, which is certain to occur, but upon the order in which such event may occur the rights of the parties must depend.
    Appeal from a judgment in favor of some of the defendants.

      A. M. Comstock, for app’lt Healey; Wm. L. Learned, for the app’lt’s children; Geo.R. Donnan, for resp’ts Peterson and Packer; Hale, Bulkeley & Tennant (Matthew Hale, of counsel), for other resp’ts.
   Mayham, P. J

On the 23d day of May, 1874, the plaintiff issued its policy for $2,000 on the life of Alonzo H. Doty, which policy contained the following provisions, which are material for consideration on this appeal, for the purpose of determining who, if any, of the claimants were, at the time of the commencement of this action, beneficiaries entitled tó the proceeds of this policy.

“ This said sum insured to be paid at the office of said Co., in Hartford, Conn., to Josephine Doty (hereinafter called the ‘ Assured’), wife of the said insured, within ninety days after due notice and direct evidence that the death of the said insured has taken place during the continuance of this policy, and within that period of any year for which period the premium shall have been actually paid, and not otherwise. In the event of any indebtedness to the company, either on the part of the insured or assured, then such sum only as shall remain in excess of such indebtedness shall become due and payable as aforesaid. And, in case of the death of the said assured before the decease of the said insured, the said insurance shall be paid, when due, to their children, if any then living, or to their guardian, in trust, if they be minors. But, if neither said assured nor any such child shall survive said insured, then said insurance shall be paid to his executors, administrators or assigns. * * * Eighth. That this policy may be converted into cash, at the option of the holder, at any time after the expiration of fifteen years from the date hereof, for the amount indorsed on the back of this policy, corresponding to the age (nearest birthday) of the insured at the time of such conversion ; provided that this policy shall have been first paid up by the payment of ten full annual premiums, as herein stipulated. Minth. That no assignment of this policy shall be valid, unless made in writing indorsed hereon, and unless a copy of such assignment, shall be given to this company within thirty days after its execution ; and any claim against this company arising under this policy made by any assignee shall be subject to proof of interest. ’’

On the 13th of April, 1894, the insured borrowed of the defendant Ann Healey $600, and gave a joint note of himself atid the assured, Josephine, to Healey, for the same, and also delivered to her the policy in question, as security, which she has since retained. Mo assignment of the policy was made to her at that time, but on the 4th of April, 1890, Alonzo and Josephine executed and delivered to Healey a written assignment of all their right, title, and interest in the policy. On the 29th of October, 1886, Josephine and Alonzo executed an assignment of the policy to the defendants, Peterson & Packer, reciting in the same an indebtedness to them of $1,130.65, for which sum on the same day they perfected judgment against the defendants Alonzo and Josephine. On the 1st day of Movember, 1886, Peterson & Packer gave the plaintiff written notice of the assignment of the policy to them. On the 24th of May, 1889, Healey notified the plaintiff, by letter, that the policy had been verbally assigned to her to secure a $600 loan ; and on the 4th of April, 1890, she, by her attorneys, sent the plaintiff a copy of the written assignment of the policy to her on that day. On the 22d of October, 1891, Ann Healy commenced an action against the plaintiff to recover $740, in the complaint in which it is alleged that she “ elects that the same be converted into cash.” On the 17th of Movember, 1890,. an alleged guardian of the children of Alonzo and Josephine, ail of whom were infants, forbade, by letter, the plaintiff from paying anything on the policy, either to Healey or Peterson & Packer, and therein asserted that the children of Alonzo and Josephine had an interest in the policy. None of the claimants under the policy have demanded that this policy be converted into cash, under the provisions of the eighth clause of the same, except the demand made by Healey in her complaint in the action brought by her against the insurance company. Alonzo H. Doty and Josephine Doty are still living, as are the children. The learned trial judge found that the title to this policy was in Peterson & Packer, who held the first written assignment from the insured and assured, and are entitled to exercise the option given by the policy to the holder thereof; that the assignment to Healey was invalid, and that she had no interest in the policy ; - that the children of the insured and assured have neither of them any interest in the policy, actual or contingent. By the judgment, Ann Healey was perpetually enjoined from the further prosecution of her action against the plaintiff, and it directed the plaintiff to pay to,Peterso11 & Packer the proceeds of the policy, whenever they shall exercise their option, less $100 costs allowed to the plaintiffs in this action. From the judgment the defendants Ann Healey and Starks A. Doty and Carrie E. Doty, children of the assured, appeal.

It is insisted on the part of the appellant Healey that this policy, by its terms, after the lapse of fifteen years from its date, became payable in cash, at the option of the holder, and that by the delivery to her, without an assignment by the insured, as collateral to a loan, after ten years from the date, she became the holder, and, as against all but the plaintiff, the assignee, in law, of the policy ; and she insists that it does not lie with the other defendants to challenge her title on the ground that the policy, by its terms; required an assignment in writing. We think that that contention cannot, prevail. She did not acquire possession of the policy by any written assignment, as required by the terms of the contract itself, but received the same only as a pledge, or collateral security of a loan made to the insured. Such transfer was, at most, only a pledge, and gave the pledgee, if any right, only a special property right in the policy, which would divest the interest of the assured. It was, at most, an agreement to give a lien to secure the payment of of the $600. McFarland v. Wheeler, 26 Wend. 467; Bank v. Alcott, 46 N. Y. 12 ; McCaffrey v. Wooden, 62 Barb. 316-323.

Again, such transfer could not operate as a valid assignment by Josephine, one of the assured, for the reason that by chapter 248 of the Laws of 1879 she could not make a valid assignment of a policy on the life of her husband for her benefit without his consent in writing, during the life of her husband. Smilie v. Quinn, 90 N. Y. 496; Baron v. Brummer, 100 id. 376; Brick v. Campbell 122 id. 337; 33 St. Rep. 520. This policy was issued prior to the enabling act of 1879, and unless that act gave her power to assign this policy, she could not do so while her husband was living, she having at the time living children.

At common law, and by the act of 1840, and all subsequent a.cts down to the enactment of chapter 248 of the Laws of 1879, a policy on the life of her husband, for the benefit of the wife, was not assignable by her, where she had living children. The act of 1878 only authorized a married woman to make an assignment of such policy with the written consent of her husband, when she had no children living at the time. It will be observed, by an examination of all the decisions upon this subject, that the right to make such transfers has never been upheld, except where authorized by the express terms of the statute. In discussing this question, Potter, J., in Brick v. Campbell, 122 N. Y. 343 ; 33 St. Rep. 520, uses this language:

“So strictly have the courts adhered to the enabling acts passed by the legislature upon the subject of such policies, that they have refused to regard the general enabling acts in relation to married women and their separate property as having any reference or application to such policies.”

Independently, then, of the requirement of the policy itself that the transfer must be in writing, it seems quite apparent that no valid transfer of this policy was made to Healey. This conclusion is reached aside from, and independent of, the question raised and pressed by the learned counsel for the children of Alonzo and Josephine — that, as against them, no valid assignment of this policy, either to Healey or Peterson & Packer, has been or can be made, so as to divest the contingent interest of such children. Three contigent beneficiaries are named in this policy. The first taker is Josephine, the wife, if she survive her husband ; if she does not, then the second taker is her children or child of the insured living at the time of his death, or the descendants of any who may have died; and, in case no widow or descendants of the insured survive him, then his executors or administrators. This policy must be regarded as a contract made between the plaintiff and the insured for the benefit of the assured, named as beneficiaries therein. The rights of the beneficiaries, from the very nature of the contract, do not depend upon any privity between the insured and the beneficiaries named in the policy, and do not depend upon the principle enumerated in the somewhat criticised authority of the case of Lawrence v. Fox, 20 N. Y. 268. The rights of the assured rest in contract, and are capable of being enforced as other contracts, and stand where, at the maturity of the policy, the contract leaves them. Those rights, I think, may be regarded as vested rights, subject only to be defeated by the happening of a contingency provided for in the policy itself. It is quite true that form and character of such a contract are largely regulated by statutes in force at the time of the making of the contract, or by some subsequent statute which may operate retrospectively on the same.

It is insisted by the learned counsel for Peterson & Packer that, under the provisions of chapter 248 of the Laws of 1879, the wife who is named as beneficiary in this policy is fully authorized to-assign the same, with the consent of her husband, regardless of the claim of her children, as subsequent beneficiaries in the same policy. The provisions of that chapter are as follows:

“ All policies of insurance heretofore or hereafter issued within the state of New York upon the lives of husbands for the benefit, and use of their wives, in pursuance of the laws of the state, shall be from and after the passage of this act assignable by said wife, with the written consent of her husband ; or in case of her death, by her legal representatatives, with the written consent of her husband, to any person whomsoever, ór be surrendered to the company issuing the policy with the written consent of her husband.”

It is to be observed that this provision of statute makes no reference to policies for the benefit of children as well as for that of the wife. The policy under consideration provides for both these-classes of beneficiaries. It is true that the policy provides that it may be converted into cash after fifteen years," at the option of the holder. But can the assignee of one of the possible beneficiaries, without the consent of the other possible beneficiaries, be deemed the holder, as against the rights of the latter? The death of Josephine before the assignment would have devolved the benefits of this policy on her children, if her husband were at that time-living. It is difficult to see how any greater right could attach to her assignees than inherited in her at the time of. the assignment. The policy is a chose in action, which passes only by assignment - and as the same was not transferable by delivery, and negotiable only by assignment, it would seem to follow that the assignee took no greater interest than was possessed by the assignor at the .time of the assignment. Davies v. Austen, 1 Ves. Jr. 247; Greene v. Warnick, 64 N. Y. 220. Doubtless, Josephine could, at the time of making the assignment, with the eonsentof her husband, transfer to her assignee her contingent interest in the policy, and the assignee would, in'the event of her surviving her husband, realize on the policy; but if her husband survived her the right which belonged to her or her assignee would vest, by the terms of the policy, in her children. Under such conditions, can Peterson & Packer, as. assignees of Josephine be deemed the holder of this policy as against the children, so as to adopt the option of converting this policy into cash while their rights to the same still exist, and have not been extinguished ? Such a conclusion seems to be at war with the plain provisions and intent of the policy. The rights of children under a policy issued on the life of the husband for the benefit of the wife seem to have been guarded by the legislature, when they are not made beneficiaries by the terms of the policy. By chapter 821 of the Laws of 1873, the wife was authorized to assign a policy in her favor, with the consent of the husband, and will the same, when she had no children. This authority negatives the 1 existence of such right under that act when she has children. But it is insisted that, under the provisions of chapter 248 of the Laws of 1879, the powers of a wife to assign a policy was extended, and that with the consent of her husband, all obstacles in the way of an assignment are removed, and that the cases of Brick v. Campbell, 122 N. Y. 337; 33 St. Rep. 520, and Anderson v. Goldsmidt, 103 N. Y. 617, are authorities in support of that contention. The rights of children in a policy issued on the life of a husband for the benefit of the wife were not involved or discussed in the case of Brick v. Campbell, supra. In Anderson v. Goldsmidt, supra, the policy was unlike the one at bar. In that case the policy was issued to the wife, on the life of her husband, payable May 31, 1885, to the wife, and, in cage of her death before her husband, to her children. Before the period for the maturity of the policy fixed in it, she, with her husband, assigned it to the plaintiff in that action. She and her husband lived beyond the time of the maturity of the policy, and on the 31st of May, 1885, the personal representative of the assignee, who had died, sued upon the policy. The wife interposed a claim for the money, and it was paid into court; and the title to the same, in a litigation between the wife and the representative of the assignee, was held to be in the latter, notwithstanding the condition in the policy in favor of the children. In that case Judge Earle, after quoting the provisions of chapter 248 of the Laws of 1879, used this language:

“ The mere fact that she had children at the time of making the assignment did not render the assignment void. The statute, whether there be children or not, gives the wife, with the consent of her husband, the absolute power to assign or surrender the policy. It is quite true that the children had a contingent interest in the policy, which would have become vested in case the wife had died before the policy matured. But here she survived that period, and hence the contingency did not arise which gave the children any interest whatever in the policy.’’

It will be seen in the case from which the above quotation is made, that the whole case turned upon the fact that the wife survived the period at which the policy absolutely matured, to wit, May 31, 1885, when her right became absolute, and all possibility of a devolution of the benefits of the policy upon the children ceased. The policy under discussion in the case at bar matures and becomes payable at the office of the company within ninety days after notice of the death of the insured. Clearly, the rights of the beneficiaries named in the policy cannot be fixed or known until the death of the insured. That period has not yet arrived, arid until it does, in the language of Judge Earle, “the children have a contingent interest in the policy, which would have become vested, had the wife died before the policy matured.” It follows, therefore, from the authority of Anderson v. Goldsmidt, referred to by the counsel for the respondents, that the children in this cuse have a contingent interest in this policy, which will become absolute if Josephine die before the insured. Nor does the expiration of fifteen years, at which time the option of the holder to demand cash payment commences, constitute the maturity of the policy, so long as any contingency exists as to who shall be the ultimate beneficiary. It may be conceded that, if all contingency was removed, the person to whom the absolute right vests might, after the expiration of the fifteen years, exercise the option. But, so long as the ultimate right to this fund remains unsettled, none of the contingent beneficiaries can exercise the option. But, as Peterson & Packer have not assumed to exercise the option, the question of their right to do so is not before us. If we are right in our conclusions above, the rights of the respective parties to the proceeds of the policy in question cannot be determined in this action. The right of Josephine to this money depends upon her surviving her husband. The right of Peterson & Packer depends upon the title of their assignor, which cannot now be determined. The right of the children of the insured depends upon the death of their mother before that of their father, all of which events are in the uncertain future.

It is also urged by the learned counsel for the appellants Doty that this action of interpleader cannot be maintained for the reason that the parties named as defendants are notall demanding the same relief or right, as against the plaintiff. The complaint alleges the issuing of its policy on the life of Alonzo H. Doty; sets out the policy, and some of the acts done under it; also sets up the claim made by Ann Healey to recover $740, the present cash value of the policy, and her election to accept that sum in full satisfaction for the amount of the same. The complaint also sets upon the claim of Peterson & Packer as assignees of the policy. Ho claim to this policy or fund by Stark A. Doty and Carrie B. Doty, infant children of the insured, was made, against the plaintiff; but a letter from Peter Doty, claiming to be guardian of these children, was sent to the plaintiff, forbidding payment to either Peterson & Packer or Ann Healey, — claiming that the policy could not be properly assigned, and claiming that the infants had an interest in the policy. Under these facts, the plaintiff claimed, in its complaint, that as it acknowledged its liability on the policy the parties should inter-plead in this action, and settle the question as to the rights under the policy, between themselves, to the same. If the rights of these conflicting claimants were in a condition in this case, at the time of the commencement of this action, to be adjudicated and settled between themselves, then there was sufficient conflict between them to justify a bill of interpleader on the part of the plaintiff. Crane v. McDonald, 118 N. Y. 648; 80 St. Rep. 98. But can the rights of the conflicting claimants be definitely settled by an inter-pleader, so long as they are inchoate? The very nature of an interpleader seems to pre-suppose that the rights of the parties of the action are matured, fixed, and determined, or at least so far settled as not to depend upon the happening of a future event, which is certain to occur, but upon the order in which such event may occur the rights of the parties must depend. But, so long as the contingencies upon which the rights of the respective parties depend continue to exist, it is alike impossible to determine who is to be the ultimate beneficiary in this policy, or the amount of the liability of the plaintiff on the same. If Josephine survive her husband, so that the title vest in her assignee, then the whole face of the policy would be due, and pass to them, under the assignment, and a payment of $740 would not extinguish the plaintiff’s liability. If Josephine should die before the insured, as we have seen, the title to the policy, or the proceeds of it, would vest in the children, who, as holders of the same, could exercise the option of then demanding the cash value, or they could refuse to exercise the option, and thus postpone the time of payment until the death of the insured, when they could then demand the full face of the policy. Under such conditions, we do not think an action of interpleader will lie. The parties defendant do not claim the same thing. Healey claims $740 cash. Peterson & Packer claim to be adjudged entitled to the policy, with all benefits under it. The children claim a contingent interest in the policy, and ask that the adjudication as to the final right of the parties be postponed until, either by the death of the insured or Josephine, it may be ascertained who at that time shall be entitled to the beneficial interest under the policy. They make no claim against the plaintiff, but ask a postponement until their claim may mature. Hnder these conditions, it does not seem to us that, the requirements for an interpleader are met, even as laid down in Crane v. McDonald, Id., relied upon by the learned counsel for the plaintiff, who concede that in that case it was held “that the material allegations in a bill of interpleader are (1) that two or more persons have preferred a claim against the complainant; (2) that they claim the same thing; (3) that the complainant has no beneficial interest in the thing claimed; and (4) thaf he cannot determine, without hazard to himself, to which of the defendants the thing belongs”; citing Atkinson v. Manks, 1 Cow. 691, 703. It follows that, if such allegations are material in a complaint, they must be supported by the proof, before a decree can pass in' favor of the plaintiff. The proof in this case fails to establish the facts necessary to support such allegations : (1) All the parties defendant have not preferred a claim against the complainants. (2) All do not claim the same thing. (3) That the complaint has no beneficial interest in the thing claimed. (4) That the plaintiff cannot determine, without hazard to itself, to which of the claimants the thing belongs. For this reason, and the reason stated in this opinion on the other branch of this case, we think the judgment should be reversed. Judgment reversed, and a new trial ordered ; costs to abide the event.

Putnam, J.

(concurring.) — Story, in his Equity Jurisprudence, remarks, in reference to a bill of interpleader (section 8Ó6):

“It is properly applied in cases where two or more persons severally claim the same thing, under different titles or in separate interests, from another person, who, not claiming any title or interest therein himself, and not knowing to which of the persons he ought to render the debt or duty claimed, or to deliver the property in bis custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims of the parties. He therefore applies to a court of equity to protect him, not only from being compelled to pay or deliver the thing claimed to both the claimants, but also from the vexation attending upon the suits which are, or possibly may be, instituted against him. ”

I think, under the doctrine just stated, this action was properly brought. Bach of the defendants claimed an interest in the policy of insurance described in the complaint. Bach claimed under such policy. Peterson & Packer urged that they were its absolute owners; the defendant Ann Healey made the same claim; while the defendants Doty asserted' that they were vested with a contingent interest in said policy, which, upon the death of Josephine Doty before the decease of her husband, would become absolute. Plaintiff admitted its liability under the policy in question to the legal owner thereof, either for the sum of $2,000 on the death of the insured, or for the sum of $740 when the action was commenced, if it should appear that such sum was then due under the option contained in the eighth clause of said policy. An action had been commenced by Ann Healey, who claimed to be the holder of the policy, to recover $740, under the provisions of the said eighth clause. Each of the defendants had served a notice upon plaintiff, forbidding the payment to Ann Healey of the sum claimed by her. When this action was commenced the plaintiff was placed in such a possession that if Ann Healey should recover judgment, and it should be compelled to pay the amount of her claim, it might be subjected to other actions by the other defendants, and hence would be liable to a double recovery under the same policy.

I think, therefore, that the conclusion reached by the learned trial judge — that the action was properly brought for the purpose of protecting plaintiff from a multiplicity of suits, and also from a double recovery — was correct. See Crane v. McDonald, 118 N. Y. 648; 30 St. Rep. 98. I am unable to agree, however, with his conclusion “that the defendants Starks A. Doty and Carrie E. Doty, or either of them, have no longer any interest, either actual or contingent, in said policy.” The instrument insured the life of Alonzo H. Doty in the sum of $2,000 for the term of his natural life ; said sum being payable to his wife, Josephine, or in case of her death before that of the insured, to their children, said Starks A. and Carrie E. Doty. It was held, of a similar policy, in Whitehead v. Insurance Co., 102 N. Y. 143, that the wife and children acquired a vested interest in the policy at the moment of its delivery to the insured. See U. S. Trust Co. v. Mutual Ben. Life Ins. Co., 115 N. Y. 152-157; 24 St. Rep. 1. So, in this case, on the delivery of the policy both the wife and children of the insured acquired a vested right therein, and I am unable to see why such right in the children does not still exist. " The defendants Packer & Peterson have not elected to convert the policy in cash, in pursuance of the provisions of the eighth clause therein, if they had the right so to do, and the trial court determined that the defendant Healey acquired no interest in the policy under the verbal assignment to her ; hence the question involved may be considered as if the instrument did not contain the said eighth clause. Here, then,'is a policy providing for the payment of $2,000 to the wife of the insured, if she should survive him, and, if not, to the defendants Doty, her children. She could, with her husband’s assent, assign her interest in the policy to the defendants Peterson & Packer, or to Healey, but she could not by such assignment interfere with or cut off the rights of her children. Their interest remains, the same as if the assignment of Peterson & Packer or Healey had not been made.. Chapter 248 of the Laws of 1879, which authorizes a married woman, written consent of her husband, to assign a policy of insurance taken for her benefit on the life of her husband, contains no authority for her to assign the interest by the express terms of the policy reserved to her children. Insurance Co. v. Weitz. 99 Mass. 157; Insurance Co. v. Burroughs, 34 Conn. 305; Chapin v. Fellowes, 36 Conn. 132. If the policy in question had not been made payable to the children in case of the death of Josephine prior to that of her husband, the former could, under the act of 1879, with the consent of her husband, have conveyed an absolute title to the policy. It has been held that under chapter 80 of the Laws of 1840, and the several acts amendatory thereof, children of a married woman who has a policy on the life of her husband, unless actually named as beneficaries In the policy, have no interest therein. Olmsted v. Keyes, 85 N. Y. 593-605. But in this case the policy is made payable to the children if the wife does not survive her husband. They are benefi caries therein, and I ain unable to see how she can extinguish their contingent interest. The case of Anderson v. Goldsmidt, 103 N. Y. 617-621, does not hold a doctrine contrary to the views above expressed. In that case the insurance was given upon the life of the husband, for the benefit of the wife, and, in case of her death before his, was payable to their children. It provided for the payment of $1,000 on May 31, 1885, or within sixty days after his decease, and after due proof of his death had been given, Prior to May 31, 1885, the wife, with the consent of her husband, .assigned the policy. The action was brought after May 31, 1885, the policy having then matured. When*the action was brought, the interest of the children, by its terms, had ceased. The wife»' was living, and under the terms of the policy the $1,000 was payable to her. When, the action was commenced, any contingent rights of her children therein had become extinguished by tin/ lapse of time, and the policy, by its terms, was payable to the widow or her assignee. It will be"seen that the question involved in this case was not before the court in the cases. In Connecticut M. L. Insurance Co. v. Van Campen, 32 St. Rep. 1125, I infer that the policy, by its terms, was not made payable to the children of the assured in case of her death, and hence the case is not in point I think, therefore, that, while the assignment to Peterson & Packer conveyed the interest of the insured and his wife in the policy in question, the interest of the children therein remained unaffected. Should the insured die before Josephine, Peterson & Packer will be entitled, as assignees of Josephine, to recover the sum of $2,-000. But, should Josephine die before her husband, the defendants Doty will receive the insurance money, no one authorized to do so having taken the benefit of the option in the eighth clause. The only effect of the assignment to Peterson & Packer was to place them in the place of Josephine, and the right of defendants Doty remained, and remains, unaffected. Yet, by the judgment rendered herein, their rights under the policy are cut off, although the defendant Josephine should not survive her husband, and although no one authorized to do so should ever exercise the option contained in the eighth clause of the policy. For the reasons above suggested, I concur with the conclusion reached by Justice Mayham, — that a new trial should be directed.

It is claimed by the learned counsel for defendant Healey that, under the contract of insurance, Alonzo H. Doty must be deemed the “holder,” and entitled to convert the policy into cash, under the eighth clause thereof. If this position is correct, probably the delivery of the policy to defendant Healey by the insured in consideration of the loan of $600 might be effectual to transfer the same. Marcus v. Insurance Co., 68 N. Y. 625. In the case cited it was held that a life insurance policy could be transferred by a mere delivery, without an assignment in writing, although the policy, by its teams, requires a written assignment. If the insured, Alonzo fl. Doty, was the “holder” of the policy, within the meaning of the eighth clause of the policy, that provision in the contract was entirely for his benefit, and he could transfer his separate interest in the policy alone, without hie wife joining in the transfer ; and, as to an assignment of his separate interest under the contract of insurance, the act of 1879 did not apply. Hence I am inclined to believe that if the position of the counsel is correct, that Alonzo H. Doty should be deémed the holder of the policy, his conclusion that the defendant Healey was entitled to maintain her action is also correct.

The question therefore arises, who was the holder of the policy ? By it an insurance was effected for the benefit (1) of the wife, (2) the children, and (3) the estate of the insured, in case his wife and children did not survive him. -Does the word “ holder" mean the party having possession of the policy, or the person or persons to whom it is made payable ? IE a promissory note is made to several persons, and in possession of one, each of them is the legal owner and holder. The possession of one is that of all. If a note is made to A., but in possession of A’s agent, A. is still the holder. I am inclined to believe tliot this policy, which secured the payment of $2,000 to Josephine Doty on the death of her husband, or, in case she did not survive him, to. her children, or, if neither wife nor children survive him, to his personal representa-. tives, must be deemed held by the parties to whom it was payable, and that the possession of the policy by the insured, or by either of such parties, must be considered the possession of all. If the policy had been for the wife’s benefit alone, she would have been the holder, and could have exercised the option in the eighth-clause, or could, with her husband’s consent, have assigned the policy, and her assignee could have exercised such option. In such a policy as the one under consideration, in which several parties are interested I am inclined to think that the option can only be made by all these parties together; that the word “ holders ” means the persons to whom the policy is by its terms payable, — the owners thereof." I conclude, therefore, that the trial judge was* right in holding that the defendant Healey was not entitled to maintain her action against the plaintiff. For the reasons first suggested, the judgment should be reversed, and a new trial granted ; costs to abide the event

Herrick, J., dissenting.


text:
    Osmer B. Wheeler, App’lt, v. Edward F. Robinson, Resp’t, et al., App’lt.

      (Supreme Court, General Term, Third, Department,

      Filed May 14, 1895.)

    1. Vendor and purchaser — False representations.
    Where the vendor states that he does not know the exact number of acres contained in the parcel sold, but thinks that there is a specified number, he can be held liable for a false representation only in case he had no reasonable grounds for such belief.
    3. Same — Rescission.
    If the purchaser desires to repudiate the transaction on account of false representations, he must do so as soon as the fraud is discovered.
    Appeal from a judgment adjudging a deed and mortgage void.

      John P. Roosa, for app’lt Wheeler; Daniel Finn, for app'lt Merchants’ & Manufacturers’ Nat. Bank; T. F. .Bush, for resp’t
   Stover, J.

The false representations relied upon to defeat the plaintiff's claim are that the plaintiff falsely and fraudulently represented that the premises consisted of 1,200 acres of good quarry land, and that he was the owner thereof, free and clear of incumbrance ; that he knew, from his experience and inspection, that the stone was pure blue stone, easily elevated and quarried ; and superior to other quarries in the vicinity where the premises were situated ; that he had quarried stone, and had made money in working the quarries; also, that he owned certain lands, which it appeared, he did not own ; and that he had represented that certain docks which were on the premises were owned by him. Further, it is alleged that the premises did not contain 1,200 acres of land ; that it was not good quarry land ; that the plaintiff did not own certain docks; and that he was not the. owner of the premises, free and clear; but that he had agreed to sell and convey the same to one Thomas W ilson and others, the legal title to be taken by one Everett, in trust.

As to the allegation that there were not 1,200 acres of land in the premises, it appears that the tract of land sought to be conveyed was wild, uncultivated land, and described in the deed as portions of certain lots, situated in the town of Forestburgh, and the referee has found that the purchase price was.agreed upon on a basis of $10 per acre. The referee has found that at the time of the negotiations, the plaintiff represented to the said defendant that said premises consisted of 1.200 acres of good quarry land.” He has also made a further finding “ that the plaintiff told Bobinson, before the contract dated February 10, 1893, was executed,, chat he was selling all the property he owned on the westerly side of the railroad; that he had built the stone docks at his own ex- and that he was selling his right in the docks; that he thought that there were about 1,200 acres in the tract, but was not positive as to the exact number o£ acres.” The docks were built alongside the railroad, and were, it seems to mp, apparently upon railroad lands. The referee has found also “ that there was not altogether, including the land covered by the pond or reservoir of the canal company, to exceed 1,120 acres”; and that there were seventy-five acres of this subject to some rights of the canal company. It is true, as contended by the defendant, that a material misrepresentation as to the quantity of land might be sufficient to invalidate a deed, and it has been held that where the owner of a farm-innocently, but untruly, states the quantityof land contained therein, and-a purchaser, in reliance upon the statement, enters into a contract and takes a deed, and subsequently discovers that the quantity is materially less than that stated, he is entitled to the interposition of a court of equity to correct the mistake. Paine v. Upton, 87 N. Y. 327. That case, however, went upon the theory that there was a mutual mistake upon a material .fact, but no fraud or misrepresentation, it being understood that both-parties entered into the agreement upon the understanding that there was a certain number of acres, and that a material variation entitled the purchaser, not to avoid the entire contract, but to abate the price. There is no question of a mistake of fact in this case, but it is alleged that the plaintiff has made a false representation. How, what is the false representation that he has made? I think we must assume that the plaintiff is entitled to the benefit of the finding set forth, viz., “that he thought there were 1,200 acres, but he was not certain as to to the exact number of acres.” How, if, under such a statement of facts, the defendant had bought 1,200 acres of land, and his deed covered 1,200 acres of land, it might be said that he had relied upon the statement of the plaintiff in that regard. But it must be, I think, quite evident that he did not and could not have relied upon the statement of the plaintiff as to the quantity of land described. This was a tract of wild land. There had been various conveyances from time to time. Defendant had an abstract of the premises, and was notified of these conveyances at the time; and yet, knowing the uncertainty that was existing, and the -plaintiff having told him that he did not know the exact number of acres in the lot,, he takes a deed describing a tract of land which contains -various reservations, with reference to deeds by which such reservations were created, and ■containing this statement:

“ This description being intended to include all the lands owned by said Wheeler; known as lots 33, 31, and 35, in the first division of the Minisink patent, which lies west of the lands of Port Jervis, Montieello and Hew York Railroad Company.”

A purchaser of land may rely upon the representations of the vendor, but, if he intends to rely upon such representations, he-ought, at least, to obtain by his deed, and his deed should describe, the interest and the extent of the purchase made by him. A purchaser ought not to be allowed to shut his eyes, either carelessly ■or willfully, and receive a conveyance of property without using the ordinary means and care that a business man of ordinary capacity would use under the circumstances, and then afterwards claim that, at the time his deed was executed, he understood that some other or different estate or interest was to be granted by the deed. To permit this practice would be to open the door to fraud, and. would invite purchasers of land to speculate at the expense of vendors, if, when called upon to perform on their part, they were permitted to repudiate their contracts upon such excuses. The rule should not be extended, but should be applied only in cases where the evidence is clear, and where the party claiming the benefit of the rule has exercised that care that the law requires of men who engage in business transactions. There is a wide difference between a mutual mistake and a false representation that induces a purchase. In this case the vendor says he does not know the exact number of acres, but thinks there are 1,200. He can bo held liable for a false representation only in case he had not rea sonable grounds for this belief, as stated ; and, in order to avoid the deed, there must be a finding to that effect.

Another representation made was that the land was quarry land. The evidense shows that the first contract was entered into in the winter, when there was some snow and ice on the ground, but that some of the quarries were being worked at the time. The defendant’s claim is that he at that time could not see the property. But the evidence shows that he did go upon the property, and that he did look at a portion of it, at least. He testifies that, in March following the sale, he employed experts, and went over the lands for the purpose of determining their value as quarry lands, and there was nothing to prevent his making a full examination when the snow went off in the spring. The original contract for the sale of the property provided that the defendant should executo his bond and mortgage for the purchase price. When the timo -came for the delivery of the deed, there having been some nego tiations before that, and the defendant having had the abstract ex amined by his counsel, the defendant made a demand for a modification of the contract; and the referee finds' that the defendant was relieved from executing the bond mentioned in the contract for the reason that, on account of the premises being covered witfc snow and ice, he was unable to see the premises, and was forced to rely upon the representations made bv the plaintiff respecting the same. Defendant testifies that he made the statement that he relied upon plaintiff's statement at the time the contract was made. It is difficult to see why the defendant should be relieved from the payment of the purchase price if he relied upon the representations of the plaintiff. The very fact, it seems to me, that he was relieved from the personal obligation to pay the purchase price ' secured by the mortgage, after he had contracted to give his bond, indicates that he did not rely upon the representations of the plaintiff, but protected himself by having the - property itself only liable for the balance of the purchase price.

I shall not discuss the other representations, upon which considerable time was taken on the argument, and which seems to have impressed the referee as to the payment for the release of the. quarry rights of other persons. A large amount of testimony was taken on this subject, but it- is clear that this was a matter that was understood perfectly by the parties at the time the deed was given, the deed itself referring to quarry rights, and an abatement, of purchase price to the extent of $500 was agreed upon, on account of the existence of those rights.

The other representation is as to the failure of title. The evidence shows that there had been a contract to convey the premises to Everett as trustee, but, upon the trial of the cause, deeds and releases were presented releasing whatever interest the trustee or the beneficiaries under the deed had in the premises. It appears that the property had for thirty years been in the possession of the plaintiff, and, at the time the deed was delivered, an abstract was-furnished, which abstract showed the conveyance to said Everett-by the plaintiff. The referee has found that the interests of the parties under that deed had been conveyed to the plaintiff at the time of the trial of this action, and has not found that the conveyance to the trustee was valid, but only that it was a cloud upon the title. I am unable to see how the statement of plaintiff, conceding the most claimed from it by defendant, can be construed as a false representation as to title. The defendant Robinson entered upon the premises after the delivery of his deed, and continued in possession down to December, 1891, after the commencement of this action, when he sent notice to the plaintiff that he would give him possession of the property, and plaintiff thereupon took possession of the property. At this time, default had been made under the conditions of the mortgage, and this action had been brought for foreclosure. There was no offer to reconvey, and the referee does not find that there was any intent to abrogate the sale. The referee finds:

“ That the defendant Robinson is not entitled to recover as damages any part of the loss he sustained in operating the quar-' ries, as the main part of the business was carried on by him after he had discovered the fraud, or had reasonable grounds to suspect that he had been deceived. That the defendant Robinson, about the 1st of April, 1891, went over the property, and looked at and examined the quarries.”

It was the duty of the defendant, if he desired'to repudiate the transaction on account of the false representations, to do so as soon as the fraud was discovered. It would seem, from the finding of the referee quoted above, that he went on with full knowledge of the fraud, if any had been perpetrated upon him, and had continued the quarrying down to and after the commencement of this action. From the language used by the referee, it is quite evident that he has been misled as to the effect of the agreement with regard to the quarry rights, and has attached more or less weight to the representation made to the plaintiff in regard to the quarry rights of various parties in occupancy of the premises. And so as to the deed to the trustee, which is found to be a cloud upon the title. It would be very difficult to find from the evidence in this case that there was any false representation with regard to that deed, as the abstract was in possession of the attorney for the defendant for some time before the conveyance to him was made.

The referee having found, upon insufficient evidence, as I think,' upon some of the material branches of the case, we cannot say how far his findings upon the other questions involved have been affected by these erroneous findings. I think the judgment entered upon the report of the referee should be reversed, a new trial granted, and the referee discharged.

All concur.


author: Mayham, P. J.

text:
    The People ex rel. Obrando Dexter, App’lt, v. Elijah A. Palmer et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed May 14, 1895.)

    Taxes — Assessment—Certiorari.
    On a certiorari under chap. 269 of 1880, the return made hy the assessors is not conclusive upon the officers making it.
    Appeal from an order dismissing a writ of certiorari.

      J. P. & W. P. Badger, for app’lt; John P. Kellar and J. W. Webb, for resp’ts.
   Mayham, P. J.

The respondents, in their return to the writ of certiorari in this matter, state, among other things, that they assessed the relator’s property “at its true value, as it would be appraised in the payment of a just debt, due from a solvent debt- or.” The case was not heard at special term upon the petition of the relator and the return, but a reference was awarded, and there was proof taken before the referee, tending to show that the real estate of the town of Waverly was not assessed at its full and true value in the year in which the assessment in question was taken, but that it was that year assessed at about thirty-five per cent, of its real value. At the hearing before the referee the respondents introduced evidence, under the objection of the relator, that the relator’s property in question was not assessed at its full value, and proof made by the respondents that the relator’s property, which was assessed at $4,800, was really worth from $10,000 to $12,000.

The first point urged by the appellant for a reversal of the ■order of the special term and the judgment entered in pursuance thereof is that the defendants, by their return to the writ of certiorari, made by them under oath, are estopped, and that the return is an estoppel of record against them, and that it was error to receive evidence of the real value of the relator’s property in contradiction of or at variance with the return, and that for the purposes of this proceeding the real value of the relator’s property must be taken to be the value as fixed by the relators in their return. At common law and under the Code of Civil Procedure (section.2188) a return seems conclusive upon both parties as well as the court. People ex rel. Peck v. Commissioners, etc., of Brooklyn, 106 N. Y. 67.; 8 St. Rep. 664. But by chapter 268 of the Laws of 1880 it was provided that in the certiorari provided for in that act to review the correctness of an assessment—

“ If upon the hearing it shall appear to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence or may appoint a referee: to take such evidence as the court may direct, and report the same to the court, and such testimony shall constitute a part of the proceedings upon which the determination of the court shall be made.”

In the ease at' bar a reference was ordered by the special term on the motion of a relator, and without opposition on the part of the respondent; and on such reference a large amount of testimony was taken, which, with the writ and return, seems to have been considered by the court at special term on the final hearing,, the relator objecting to the consideration by the court of any evidence taken before the referee on the application of the respondents tending to increase the valuation of the relator’s property above the sum fixed in the assessment, which, by the return, the respondents had alleged was assessed at its true value as set forth in the return. If the respondents and the town, which they, as. assessors, represented, are concluded by the return, then the receipt and consideration of such evidence by the court was error, for which the determination of the special term should be reversed. The question is, therefore, sharply presented whether the assessors, in this class of certiorari, are concluded by their re-torn to the writ, or whether, when the relator, by refusing to adopt the conclusiveness of the return, obtains a reference, and thus opens the field to extraneous evidence, and thus by proof seeks to assail its correctness, can prevent the respondent from showing the property in 'question1 was undervalued in the assessment and return, for the purpose of showing that there was in fact no inequality in the assessment of the relator's property as compared with other property in the town. The case discloses that the relator, on grievance day, appeared before the assessors, and sought to reduce the valuation of the property in question from $4,800 to $2,00; but it also appears that he refused to answer pertinent questions propounded to him by the assessors on that hearing, and his testimony on that occasion furnished the assessors no reliable data for determining the real value of his property ; so that, unless the assessors are concluded by their return, there was apparently no impropriety, on the hearitg before the referee, in ascertaining by proof the real value of this property.

We are referred to no case in which it has been determined that the return in a case like this conclusive on the officers making it. The case of People ex rel. D. & H. C. Co. v. Parker, 117 N. Y. 86 ; 26 St. Rep. 498, is not an authority upon this question. It is true that the court in that case, in discussing the effect of the act of 1880 on the writ of certiorari, uses this language : “ In all this we observe the old writ, whose functions and character were well settled and understood, was applied to a new purpose, and molded so far, and only so far, as was necessary to accomplish the review desired.” This language, we think, falls far short of sustaining the contention of the relator, that the assessors and town were estopped by the return. Under the old'writ,, to which the learned judge refers, the relator would be concluded by the return. Under the modification he may attack it, and show r.he actual and relative value of the relator’s property as compared with other property on the same assessment roll. The new purpose embodied in the act of 1880 is that of determining by proof the equality or inequality of assessments on the same assessment roll, and the “ new process ” is “ molded ” “ so far as was necessary to accomplish the review desired.” Section 3 of the act of 1880 makes it the duty of the assessors to return the assessment roll or other original papers acted on by them, or certified or sworn copies of the same, and the return may concisely set forth such other facts as may be pertinent or material to show the value of the property assessed. Can it be fairly claimed that the opinion of the assessors that"they had assessed this property “at its true value as it would be appraised in the payment of a just debt,” would be such a statement of fact as. would estop them and the town, which they represent, even if the. return, upon an allegation of fact could be held an estoppel ? It was, at. most, but a conclusion or opinion of the assessors, which they were not required to give in making their return to this writ. But it is also urged by the relator that the respondents are concluded by the return from giving the evidence objected to, assuming that the return is but an answer in an action. If this were an action gov: erned by the ordinary rules of pleadings in actions, the contention of the relator would be entirely sound. But it is not quite clear that the petition, writ and return, in a certiorari proceeding, can be governed by the technical rules in an ordinary pleading. It is not an action in any of its essential features, but a special proceeding, and necessarily governed by rules peculiarly adapted to-such proceedings, and not by the analogies of pleadings in either common law or equitable actions. It will be observed that the language used by the respondents in their return as to the value at which the relator’s land was assessed, and by which it is ulaimed by the relator that the respondents are estopped, is precisely identical with the language used by them inlhe fourteenth paragraph of the return as to all the property assessed in that town, and yet it is insisted by the relator, and properly so, that that allegation may be controverted by proof; and, upon the proof offered by the relator, it seems to have been established that the balance of the property of the town was assessed only at about thirty-five per cent, of its real value. The petition of the relator sets up that the assessment of the relators real estate is unequal, as compared with the assessment of other real estate of the town. The manifest purpose of the legislature in providing this remedy by certiorari and allowing the return to be assailed by proof, was to furnish a means by whic h inequalities of assessment might be corrected, but that means would fail if, as in a case like this, the assessors of a town have assessed the property at a percentage far below its true value, and the relator is permitted to show the true value of all other property in the town, and then to insist that his property, at the assessed value, is rated at its true value. It was to prevent such results that the legislature provided that “such testimony shall const!tute a part of the proceedings upon which the determination of the court shall be made.” Much of the confusion in cases of this character arises out of the well-known and almost universal .practice of assessors; as in this case, of assessing property at but a fraction of its true value, and then, in verifying the. assessment roll, swearing that they have assessed property at its full, true value. But rather we are not called upon to correct that abuse on this appeal, but rather to see whether, from the whole record, including the evidence taken in this proceeding, such an inequality exists in this assessment as justifies the court in setting aside the assessment; and in doing this we think we must consider as well the evidence offered by the relator as that offered by the respondent, notwithstanding the objection taken by the relator that the respondents were estopped from giving the evidence offered by them by their return. People ex rel. Warren v. Carter, 47 Hun, 447; 14 St. Rep. 439; People v. Keator, 36 Hun, 592. In People v. Smith, 24 Hun, 71, Leabned, J., discussing the effect -of evidence, offered on certioraris of this kind says:

“Not only may the court take testimony, or appoint a referee for that purpose, but such testimony shall constitute part of the proceedings upon which the determination of the court shall be made; that is, the courtis to determine upon testimony to be taken. Thus the rule that the return is conclusive is swept away in this proceeding, and the court is to receive other testimony on which to determine whether the assessment is illegal, erroneous, or unequ'al.”

We are clearly of the opinion that the evidence offered by the • respondents, tending to prove the real value of the relator’s land in question, was competent. That being so, the special term wras called upon to consider the evidence upon the question of fact as to whether or not the relator’s property was unequally assessed as compared with assessments in that town, and upon such examination and consideration that court has found against the relator. We think his finding is fully sustained by the evidence.

The order and judgment appealed from must be affirmed, with costs.

All concur.