author: Brady, J.: Van Brunt, P. J.: Bartlett, J.:

text:
    In the Matter of JAMES H. BRESLIN In the Matter of CHARLES N. VILAS.

      fflccise laws— they do not prohibit hotel-keepers from selling intoxicating liquors to guests to be used with their meals.

    iJnderthe statutes of this State regulating the sale of spirituous liquors, hotel-keepers and inn-ke.cpers have a right to sell spirituous liquors to their guests ou Sunday to he used with their meals. (Bartlett, J., concurring on Ihe ground t-liat the long and uniform practical construction of the excise law should he deemed controlling.)
    The prohibition contained in section 21 of chapter 628 of 1857, against the sale or giving of any intoxicating liquors or wines on Sunday “ as a beverage,” was aimed at the bar or drinking .saloon of the hotel where drinks were indiscriminately retailed, and not to the furnishing of wines or liquors to guests in entertaining them.
    'The power of the board of excise is limited to the granting or refusing of a license; the statutes regulating the rights acquired by it, the restrictions to be observed and the punishment for each violation of its provisions.
    As the board cannot insert in the license a limitation, restriction or condi tion which is repugnant to the statute, a clause inserted in the licenses of hotel-keepers or inn-keepers absolutely prohibiting the sale of liquor upon -certain days named in them, is -unauthorized and nugatory.
    ■Certiorai to review proceedings upon a habeas,corpus.

    This is a proceeding brought to secure a judicial construction of •the excise laws of this State. The defendants -sold on Sunday, the .one to a regular lodger in his house, the other to a traveler who ■frequently takes his meals there, intoxicating wine to be consumed ■with the jespectiye dinners of ,-such lodger and traveler.
    Upon complaint ¡of Captain Alexander S. Williams, warrants were issued for their arrest, and being taken under such warrants the defendants are now brought before the court on habeas corpus.

      E. L. Andrews and Robert G. Ingersoll, for the petitioners Breslin and Vilas.

      E. H. Lacombe, for the respondent.
   Brady, J.:

This proceeding was instituted for the purpose of obtaining a judicial construction of the act of 1857 (chap. 628) and the acts amend-atory thereof and relating thereto regulating the sale of intoxicating liquors, and the question immediately involved is whether the keeper of an inn or hotel is prohibited from selling to his guests intoxicating liquors to be used with their meals on Sunday. It may not be inappropriate to say that the legislature óf this State has from the beginning of the present century been engaged in the effort to regulate the sale of intoxicating liquors, and these efforts seem to have culminated in the act of 1857, to which reference has already been made. It is not necessary to mention the several acts bearing upon the question, although reference may be made to one or more of them during the discussion of the question under consideration.

It must be said, however, that a distinction nas been made, and particularly in the latter acts, between the seller of liquors eo nomine, and the innkeeper or hotel keeper, who, as such, furnishes them for his guests. The Revised Statutes provided that no keeper of an inn or tavern, authorized to retail spiritous liquors, should on Sunday sell or dispose of them or any of them, except to lodgers in such inns or taverns, or to persons actually traveling oh that day in the cases allowed by law; and by the twenty-first section of the act of 1857 it was provided that no tavern or hotel keeper, or person licensed to sell liquors, should sell or give away any intoxicating liquors or wines on Sunday or upon any day on which a general .or special election or town meeting should beheld, within onerquarter of a mile from the place where such general or special election or town meeting should be held ,in any of the cities, villages or towns of this State .to. any person whatsoever as a beverage.

It will be perceived on reading this statute that the prohibition is against selling or giving away intoxicating liquors as a beverage, there being no prohibition in express terms against providing it for guests to be taken with meals. In other words, the design of the statute was to prevent the indiscriminate sale of intoxicating liquors as a drink upon the days named to the public generally.

The statutes are to be construed with reference to existing things, for the purposes of ascertaining what was the good which would result, or the evil that was to be overcome by their passage; and the evil to be overcome was the sale of liquor during the day without reference to meals and by the prohibition of which it ivas hoped that there would be no intoxication and consequently no riot or disturbance, or interference in any way with the peace which was regarded as indispensable upon the days named.

In the State of "Wisconsin, it was provided by statute that if any tavern-keeper or other person should give away or barter any intoxicating liquor on the first day of the week, commonly called Sunday, or on the day of the annual town meeting or the annual fall election such tavern-keeper or other person so offending should be deemed guilty of a misdemeanor. And the court said, in construing that statute in Jensen v. State (60 Wis., 531), “the evil to be suppressed or at least mitigated by the enactment of this law, was the drunkenness and general disorder which resulted from the unrestricted sale of intoxicating liquors on election days and town meeting days, which tended to the corruption of the elections held on such days, and which on Sundays disturbed the peace, quiet and order which ought to characterize that day.

[t is perfectly notorious that when the act of 1857 was passed the existence of a bar or drinking saloon as a part of the hotel was a distinguishing characteristic, and that there intoxicating liquors, drinks or beverages were to be obtained during the day without reference to meals. These were the chief sources of intoxication, because of the readiness with which the appetite could be appeased or gratified, and if the drinker felt so disposed, the ease with which he could go from one inn to another and vary whilst he increased the number of his drinks. Thus it was that the beverage was obtained which is alluded to in the statute.

The lexicographers give us as the primary meaning of the word beverage : “ Liquor to be drunk,” “ drink; ” although there are other naeanings but all involving the proposition that it is a drink. (See Worcester and Webster.) There seems to be little doubt that the prohibition against it on the days named as a beverage was aimed at the bar or drinking saloon already referred to, where drinks were indiscriminately retailed and from which unfortunate results were often manifest.

In the act oi 1813 (chap. 549), amendatory of the acts of 1857 (chap. 628) and 1870 (chap. 175), which indicates an intention on the part of the legislature to preserve the distinction suggested between the hotel and its bar-room or drinking saloon, it is provided that nothing contained in the fifth section which relates to the sale of liquor between one and five o’clock in the morning shall be construed to prevent hotels from receiving and entertaining travelers at any time subject to the restrictions contained m the act and the act amended. The word entertaining directly expresses the intention to make this distinction between the hotel as such, and the bar or drinking saloon; because we find that entertaining” is defined to be “ affording entertainment,” and that entertainment means “ a hospitable repast; ” a " banquet" and a banquet is said to be “a grand entertainment of eating and drinking,” “a sumptuous feast.” (See Worcester and Webster)

The view expressed of the effect of this phraseology of the statute is strengthened by the suggestion that the legislature were dealing with the subject of intoxicating drinks and no ether, and that the word “ entertaining ” could not have meant the mere service of food for which no legislation was required, it being the undoubted right of a hotel-keeper, with which even the legislature itself could not interfere, to receive persons for that purpose as well as for lodgment.

A kindred question was presented in Wood v. The City of Brooklyn (14 Barb., 425): The defendant passed an ordinance entitled A law to prevent the sale of certain commodities in the city of Brooklyn on Sundays,” the second section of which provided that no person should sell or dispose of any ale, porter, strong or spirituous liquors in that city on Sunday; and it was held to be void, so far as it related to the sale by inn-keepers to their lodgers and lawful travelers pursuant to their licenses, because in conflict with the provisions of the Revised Statutes, to which attention has already been called. (See 1 R. S., 678, § 4; Id. 676, § 72.) This ease is an express authority for the proposition that under the Revised Statutes the inn-keeper could sell to his lodgers or travelers spirituous liquors, and for the proposition also that a distinction was made against the indiscriminate sale of liquors on Sunday, and also to sustain the suggestion that there was designed to be a difference between the sale of intoxicating liquors to the general public and to the lodgers or guests of the hotel-keeper as such. The subject thus discussed is briefly considered. It might be extended by allusions to numerous cases in which inns and hotels, their origin, offices and extent, and the good and bad results flowing from their existence, have been given, described and commented upon. To indulge in this vein of thought would be to write an essay upon the subject which for the purposes of this controversy, however interesting it might be, is not necessary.

An analysis of the statute has led to the conclusion that hotel-keepers and inn-keepers under its provisions have a right to sell spirituous liquors to their guests on Sunday to be taken with their meals. But even if this view, as a legal deduction from the various statutes, be incorrect, another principle of law presents itself which must be applied, viz., that since the passage of the act of 1857, and until within a very recent date, a period extending over thirty years, the practical construction of the act has been such as is herein stated, and it must be assumed that this construction has been known to every legislature which has assembled since 1857, and yet no act has been passed interfering with it in any way.. “ Such a construction presents itself to a court with a force that is not easy to resist,” says Cooley on Constitutional Limitations (p. 81 and cases cited). And in the cases of Stewart v. Laird (1 Cranch, 299); Martin v. Hunter's Lessee (1 Wheat., 352); Cohens v. Virginia (6 id., 418); Packard v. Richardson (17 Mass., 144); In re Warfield (22 Cal., 59), and Scanlan v. Childs (33 Wis., 663), and in Sedgwick on Statutory and Constitutional Laws (212, 213, 214 [2d Am. ed.]), the doctrine is asserted and maintained that in construing an act the court may properly refer to the history of the times and situation of the people when it was passed for the purpose of determining its meaning, scope and intention, and that a contemporaneous is generally the best construction of a statute, giving as it does tbe sense of the community to the terms made use of by the legislature. The dictum in 3 Pickering, 518, is singularly felicitous. “ Contemporaneous exposition,” it is said, “of doubtful provisions in all instruments, and particularly in legislative enactments and constitutional charters, are held to be legitimate and useful sources of construction; what has been done in the beginning and has continued to be done for a long series of years, without any question as to the rightful power and authority on which such rights have been granted, may be presumed by succeeding public agents to have been rightfully and properly done,.” And these all illustrate the old maxim, “ Contemporáneo, exjpositio estfortissimo lege”

These conclusions are not at all affected by the form of the license. A critical examination, assisted by the deliberate and mature consideration and comparison of the act of 1857 and the several amendments thereof, suggested by the argument at the General Term, demonstrated that the power of the board of excise is limited to the granting or refusing of licenses. If the license be granted, the statutes regulates the rights acquired by it, the restrictions to be observed and the punishment for each violation of its provisions. It cannot, therefore, either enlarge or diminish these rights and obligations, or interfere with them in any way. The officers composing it cannot insert in the license a limitation, restriction or condition which is repugnant to the statute; but if they do so, it is void, and hence the clause in the relators’ license absolutely prohibiting the sale of liquor upon certain days named in it, is, as the result of our construction and interpretation of the statute, unauthorized and nugatory. It follows that the arrest of the relators was unwarranted and they should be discharged.

Ordered accordingly.

Van Brunt, P. J.:

In concurring with the opinion of Mr. Justice Beady, and in addition to what has been so well said by him upon this appeal, it may not be out of place to consider the necessary results which must follow the construction sought to be placed upon the excise laws by the respondent. It is true that the court is bound to expound the law according to the expressed intention of the legislature, no matter what consequences follow such construction, because any other course makes the court usurp legislative functions, which it should never attempt to exercise, as no such power has been committed to it by the organic law of the land. But in ascertaining what the intention of the legislature was in the enactment under consideration, the consequences arising from one interpretation which may be avoided by another may properly be considered.

By section 21 of the act of 1857 (chap. 628), it was provided as follows : “ No inn, tavern or hotel keeper or persons licensed to sell liquors, shall sell or give away any intoxicating liquors or wines on Sunday or upon any day on which a general or special election or town meeting shall be held * * * to any person whatever as a beverage.” By the act of 1873 (chap. 549, § 5) this section was amended by striking out the words or person licensed to sell liquors” and inserting instead thereof the words “any other person.” If, therefore, the words u as a beverage ” are to be interpreted to include the drinking of any kind of wine or liquor at any time or under any circumstances except where the same is drunk for medicinal or sacramental purposes, then no person either upon a Sunday or upon any election day, general or special, could supply at his own table to members of his own family a single glass of wine.

The language of the section is broad and explicit, and exempts no person from its inhibition. If the wine is to be drunk under any circumstances, the person giving it to another is liable to the penalty prescribed by the act. I can see no escape from this conclusion if the broad definition suggested is given to the words as a beverage.” It is clear that the legislature never intended to enact a law of the tyrannical character which the present law would be if such a construction is put upon it, and we necessarily must see whether some other reasonable interpretation may not be adopted which will better subserve the ends which the legislature desired to attain by its enactment. It is evident that by the section under consideration the legislature did not intend to absolutely prohibit the sale or giving away of intoxicating liquors or wines on Sundays or election days by the keepers of inns, taverns or hotels, or other persons, because they have not so enacted, but have limited the prohibition to the selling or giving away as a beverage. There is in this language an express recognition of a right to sell or give away 'ch will not be in contravention of the statute.

It may be urged that tbis language simply permitted a sale or giving away upon those days for mechanical, chemical or medicinal purposes and for sacramental use. In answer to this suggestion it may be sufficient to observe that articles for mechanical, chemical and sacramental purposes are not the subjects of Sunday trading and that wine or liquors for medicinal purposes are usually procured from other sources. It seems to be clear, therefore, that the legislature at the time of the enactment of the provision in question, had in view other circumstances in which it might be proper to sell or give away intoxicating liquors and wines on Sundays and election days. An examination into the origin of the word “ beverage ” shows clearly what was intended.

The word “ bever ” which is the root of the word “ beverage ” means “ a little repast between meals,” and the word beverage” came into use and was largely applied to mixed drinks, something made expressly for the occasion, although by many writers it has been used to apply to any pleasant drink. And it, therefore, seems to me that the legislature had this derivation plainly before it in the use of the word in the act in question. This interpretation gives to the whole act full force and effect and avoids the evidently erroneous conclusions which the broadest definition of the word would entail. A consideration of another provision of the law also sustains this interpretation. Section 5 of the act of 1870 (chap. 175) as amended in 1873 (chap. 549), contains a requirement that all places licensed shall be closed and kept closed at all times when selling is not authorized by law, and it is further provided that nothing therein contained shall be construed to prevent hotels from receiving and entertaining travelers at any time, subject to the restrictions contained in the act as amended. It is evident from the position of this exception in the section referred to, that the exception was only intended to apply to the command that all licensed places should be kept closed during certain hours, in order that the business of hotels, viz., the receiving and furnishing entertainment to travelers should in no way be interfered with by the provision that all licensed places should be kept closed. It is here clearly assumed that the right of hotels to entertain travelers existed under the other provisions of the act, and it was to prevent the operation upon hotels of the provision for closing that the exception was inserted and for this purpose only.

Mr. Justice Beady in his opinion has conclusively shown that the right to entertain travelers justifies the furnishing of food and wine to be drunk therewith, and if the legislature intended the word beverage ” to apply to all wines furnished to be drunk at any time, the right to entertain travelers would not have existed independent of the exception referred to, which right, as has been shown, is clearly recognized by the exception. It is true that in the act of 1855 (chap. 231) the word beverage may have been construed to include the use of wines and liquors under any circumstances except for mechanical, chemical, medicinal or sacramental purposes, but the act of 1855 was passed for a very different purpose and for a very different object from that which actuated the legislature in the enactment of the act of 1857 and the amendments thereto. The word beverage may have been used in the act of 1855 in a broader sense than may have been entirely correct, and yet in the act of 1857 it may have been used, as it undoubtedly was, in its true and more restricted meaning. It seems to be evident, therefore, that there was no intention on the part of the legislature to impose any greater restraint than that which is so clearly indicated in Mr. Justice Beady’s opinion.

Bartlett, J.:

I concur in the result reached by my associates on the ground that the long and uniform practical construction of the excise law should be deemed controlling in the determination of these appeals. I cannot believe that the legislature would have tolerated for thirty years the failure of the authorities to enforce the law, if that body had intended by a statute enacted as long ago as 1857, to prevent inn-keepers from furnishing wine to guests and travelers with their meals on Sunday.

Order reversed and defendants discharged.


source: Caselaw Access Project

author: Daniels, J.: Bartlett, J. :

license: Public Domain

text:
    WALTER WESTON and ALFRED J. WESTON, Plaintiffs, v. JAMES R. WATTS, Defendant and Respondent. In the Matter of ALEXANDER THAIN, Receiver, Appellant.

      Appointment of a receiver in an action for an accounting between partners — where the order is reversed the receiver’s fees must be paid by Hie unsuccessful pa/rty and not from, the property.

    In this action, brought by the members of a firm for an accounting, one Alexander Thain was, upon the application of the plaintiffs, appointed receiver of the property of the firm. Upon an appeal taken by the defendant from the order making the appointment the General Term reversed the order and directed the receiver to turn over to the defendant all the copartnership property which he held, and to render an account before a referee named in the order of reversal, who should fix the fees and compensation of the receiver which the plaintiffs in the action were ordered to pay.

      Held, that the direction as to the payment of the fees and compensation of the receiver was proper, as the court could not authorize the receiver to withhold from the defendant so much of his property as might be required to pay his costs and expenses,
    Appeal by Alexander Thain, receiver, from an order directing him within five days to assign, transfer and deliver to the defendant, all the copartnership property, stock, chattels, books, vouchers, accounts, ehoses in action and effects, received or held by him, or under his control, by virtue of his appointment as receiver.

      Alexander Thain, in person, and James Kearney, for the appellant.

      Treadwell Cleveland, for the defendant, respondent.
   Daniels, J.:

The appellant was appointed receiver at the instance and on the application of the plaintiffs in the action, and under such appointment he obtained possession of the property now in controversy. After his appointment an appeal was taken by the defendant from the order making it, and after the hearing of the appeal the order appointing the appellant was reversed, and he was directed, as he has been by the order from which he has now appealed, to transfer and deliver tbe property and effects in bis bands to tbe defendant. He was further ordered to file an account of His proceedings before a referee appointed to take and state the same, and bis fees and compensation as receiver, were directed to be paid by tbe plaintiffs in tbe action. From these facts it becomes evident that the appointment of tbe appellant as receiver was upon an application adverse to the defendant, and without tbe authority of the law. And having been made in that manner, there seems to be no legal ground upon which the receiver can be directed to withhold so much of the property from the defendant, as may be required to pay his commissions and expenses, but those expenses should be paid, as they have been directed to be, by the plaintiffs who obtained the appointment. So far as the defendant is concerned the appointment was an unauthorized one, not made for his benefit in any manner, but through which property was taken from his possession by the receiver and withheld from him without any legal authority justifying the proceeding. It was an invasion of his rights, for which there is no law requiring him or his property to pay the expense, but, on the contrary, so far as the law provides for the payment of legal expenses, they are to be defrayed by the unsuccessful party in the litigation. To take a person’s property from him by an unauthorized proceeding and place it in the hands of a receiver, and then subject him to the expenses of the proceeding, would be very transparently unjust, even if the courts had the power to do that. Cases are not uncommon where the result would be ruinous to the injured individual. All the property a person may have in trade may, upon an unauthorized application, be taken from him and placed in the hands of a receiver, and after vindicating his right to be relieved from the proceeding, if he should be obliged to bear the expenses of it and compensate the receiver for his commissions and disbursements, or in default of doing so his property should be appropriated to securing' that end, he might, under the forms of law, be financially ruined; for that there seems to be, and probably will not be, any authority vested in the courts,, for their duty is to right the wron® when its existence may be made to appear and protect the injured party against its consequences ; and that can be no otherwise done than by restoring to him the property of which he may have been divested by the unauthorized interference of the court. As little as that he certainly is entitled to, and the receiver who has acted under the appointment obtained upon the application of the adverse party must look to that party for his fees and compensation. If the court could impose upon the defendant, or the property ordered to be restored to' him, the obligation first to pay the .receiver, it might with the like reason apply the same principle to every case where one man may be deprived of his property through legal proceedings wrongfully instituted against him by another person. If such a principle is applicable at all it must be a general one. charging the property with the fees of ofiicers where it may have been replevied or taken under an attachment; and the same rule would restrain the discharge of a person in custody under an order of arrest until the fees of the officer should be paid. Such cases would be equally meritorious, in the claims presented as the present case, which in principle cannot be distinguished from these others. It is sufficiently injurious for a person to have his property taken from him, or his person subjected to arrest, without right; and upon no legal princijile can the wrong be aggravated in such a manner as to order him to pay the expenses of the proceeding. This was considered in the examination of a claim for costs and expenses under an attachment in Bowe v. United States Reflector Company (36 Hun, 407), where it was determined that even the legislature could not in this manner subject the property of one person to the expenses illegally created at the instance of another.

The fundamental law of the State will not permit that to be done, for it has been provided by section 6 of article 1 of the Constitution of the State, that no person shall be deprived of life, liberty or property without due process of law. And a legal proceeding by which he may be divested of his property which is unauthorized, and afterwards set aside, cannot be such due process. The law cannot sanction the taking of one man’s property, in this manner and subjecting it to the expenses or obligations of another. (Embury v. Conner, 3 Comst. 511, 517.) Hue process of law requires something more than an unauthorized legal proceeding, set aside by the final action of the courts. This subject was examined in Stuart v. Palmer (74 N. Y. 183) where it was said that this provision is the most important guaranty of personal rights to be found in the Federal or State Constitution. It is a limitation upon arbitrary power, and is a guaranty against arbitrary legislation. No citizen shall arbitrarily be deprived of his life, liberty or property, * * * whether the proceeding be judicial, administrative or executive in its nature * * * This great guaranty is always and everywhere present, to protect the citizen against arbitrary interference with these sacred rights.” And it requires a proceeding “ which proceeds upon inquiry and renders judgment only after trial. (Id., 190, 191.) It certainly will not sanction the forfeiture of a person’s property to pay the expenses of a proceeding taken against him which is afterwards set aside at his instance as unwarranted.

In Verplanck v. Mercantile Insurance Company (2 Paige, 438), the property of a corporation was taken from it and placed in the hands of a receiver by an order of the vice-chancellor, reversed on appeal, and the chancellor directed the restoration of the property, without providing for subjecting it, or the party entitled to receive it, to the payment of any fees or expenses to the receiver. A demand of this nature by the. receiver was evidently, in that case, not considered to be worthy of either examination or discussion.

In French v. Gifford (31 Iowa, 428), this subject was discussed in the opinion of the court, where it was said: “We think it would be an unjust and inequitable rule if, in all cases, the receiver should be entitled to his compensation from the fund in his hands, without reference to the legality of his appointment. Under the operation of such a rule innocent persons might be made to suffer great loss.” It was further added that costs were adjudged against the unsuccessful party, “ unless there exists some equitable consideration to justify a different disposition, or the case is otherwise provided for by law.” (Id., 431.)

The claim now made in behalf of the receiver has, by no law, been imposed upon the defendant. Neither is there any equitable principle which should require him to pay, before he can secure a return of his property, the expenses of the unlawful proceeding by which it has been taken and withheld from his possession. To require that payment from him, or his property, would be a wrong which the court has neither the power, nor the disposition, to inflict upon him. It may be a hardship upon the receiver himself, but it is one of the risks which he has voluntarily assumed. He could have avoided it by declining to accept the appointment or protected himself against the loss of his commissions and expenses by first requiring security from the plaintiffs for their payment. If they cannot now be made to pay, it is more just and equitable that the receiver shall be deprived of his fees and expenses, than it vrould be to require the defendant to defray the expenses of an unauthorized proceeding and the cost of depriving him thereby of the possession of his property.

The order from which the appeal has been taken should be affirmed, with the usual costs and disbursements

Van Brunt, P. J., concurred.

Bartlett, J. :

The appellant, Alexander Thain, was appointed receiver of the firm of Weston Brothers and Watts in this action, and the order appointing him was reversed by the General Term upon an appeal to which he was not a party. The order of reversal directed him to turn over to the defendant all the copartnership property which he held and to render an account before a referee named therein, who should fix the receiver’s compensation, which the plaintiffs in the action were ordered to pay. The receiver did not comply with this order of the General Term, whereupon the defendant obtained a Special Term order requiring him to do so ; and from the latter order the receiver now appeals.

By this appeal he practically asks the General Term to modify its former order in the action, made without notice to him, so far as it commands him to deliver all the partnership property to the defendant, before his compensation shall have been fixed and its payment definitely provided for. He claims to have incurred certain liabilities in the due discharge of his trust, more than equal to the amount he has received, and argues that he ought not to be compelled to turn his receipts over to the successful party to the litigation, and look to the other (who may be irresponsible) for his fees and expenses.

The case of Galster v. Syracuse Savings Bank (29 Hun, 594), is authority for the proposition that an order ought not to be made directing a receiver to pay over the entire fund, without authorizing him to deduct his commissions, or in some way providing for their payment. In the case at bar, however, the payment of all proper commissions and exjienses to which the receiver may be entitled is provided for by charging them against the plaintiffs, who procured his appointment under circumstances -which the court has held to have been insufficient to warrant a receivership, and who, so far as appears, are of sufficient pecuniary responsibility to pay the receiver’s charges. Indeed, even if the unsuccessful party were unable to pay the receiver, it may well be doubted whether any authority exists to enforce payment of his commissions out of any portion of the property or fund belonging to the party who has succeeded in vacating the receivership. It would be a pretty severe rule, even if constitutional, which should compel a litigant to pay the expense of having his own property illegally taken out of his custody for a while. There might be cases, where a receiver was erroneously appointed but not under such circumstances as to make the appointment absolutely void, which would warrant an order that his disbursements be paid out of the fund, as, for example, where the property consisted of a herd of cattle for which the receiver had to buy fodder. In such a case it would be fair and just to charge the successful party with the cost of feeding, for he would have had to incur it if the animals had remained in his own custody. But commissions and all disbursements, except such as would have been necessary if the custody of the property had remained unchanged, seem to me to stand on a different footing. I do not deem it essential to the determination of the present appeal, however, to lay down any general rule as to the source of the compensation of a receiver whose appointment has been vacated, as erroneously or improvidently made but not absolutely void. It is enough to say that the successful party in this proceeding should not be compelled to contribute to the compensation of the receiver, inasmuch as proper provision for liis fees and disbursements has been made by charging them against the plaintiffs, at whose instance he was appointed.

For this reason I think the order appealed from should be affirmed.

Order affirmed, with ten dollars costs and disbursements


author: Van Brunt, P. J.:

text:
    In the Matter of the Application for Probate of a Codicil to the Will of JOHN F. DELAPLAINE, Deceased.

      Probate of will — jurisdiction of the surrogate to grant or refuse it — actual production of the paper is not essential — when the instrument need not be attested.

    A. petition presented to the Surrogate’s Court of the county of New York for the prohate of an instrument purporting to be a second codicil to the will of one J. F. Delaplaine, alleged that he died in February, 1885, in the city of New York, leaving in the said city personal assets of great value; that the said codicil was entirely holographic and was executed in Vienna, Umpire of Austria; that it did not purport to have been executed in the presence of any person as a subscribing witness, but was executed in accordance with the law of the said Empire of Austria, in which the decedent then had his residence and permanent domicile; that it was not produced before the surrogate for the reason that it was in the possession of a certain Austrian court therein specified, which court would not suffer it to be removed from its files.

      Held, that an objection, that the actual production of the testamentary paper before the surogate was essential to the exercise of his jurisdiction to grant or refuse probate, was properly overruled.,

      Bussell v. Hwrtt (87 N. Y., 19) followed.
    That the fact that the instrument offered for probate was unattested did not require the surrogate to dismiss the petition for want of jurisdiction.
    Appeal from an order of tbe Surrogate’s Court of tbe county of New York, made and entered on tbe 21st day of April, 18 87, dismissing motions made by tbe appellants to dismiss tbe special proceeding on tbe ground of want of jurisdiction in tbe surrogate to take proof of a will under tbe circumstances appearing in this proceeding.
    Tbe will and first codicil of tbe late John F. Delaplaine were admitted to probate by tbe surrogate of New York county on the 21st day of May, 1885. In June, 1886, Amelia A. Stolzel and Arthur F. Stolzel, two legatees under a subsequent codicil dated July 17,1883, commenced a proceeding in tbe Surrogate’s Court for tbe proof thereof. They did not produce tbe original codicil to the surrogate, stating in their petition, that it was in the possession of an Austrian court in which it bad been propounded for proof; that it bad not yet been proved and tbe court refused to allow it to be taken out of its possession.
    Tbe codicil propounded is holographic, and it is alleged in the petition that it is executed in accordance with tbe laws of Austria, of which country the testator was a resident at tbe time of its execution.
    'Further facts appear in tbe surrogate’s opinion. (See note.)

      Michael R. Cardozo, for Cruikshank, executor, appellant.

      Lucien B. Chase, for the appellant Chase.

      Joseph A. Welch, for Chambers, executor, appellant.

      H. W. Taft and D. H. Chamberlain, for the petitioners, respondents.
   Van Brunt, P. J.:

It may not be at all necessary to add anything to tbe opinion wbicb has been rendered by the surrogate upon the disposition of this motion. It may be proper however to consider, in view of the intimation of the Court of Appeals in the case of Younger v. Duffy (94 N. Y., 535), whether any change has been made by the Code of Civil Procedure in the practice and powers of the surrogate as they existed at the time that the question, in the ease of Russell v. Hartt (87 N. Y. 19) arose.

It is admitted by the counsel for the appellants that if no change has been made in the jurisdiction of the Surrogate’s Court by the present Code, that the decision in the case of Russell v. Hartt must be deemed conclusive as to the existence of jurisdiction in the Surrogate’s Court to entertain the application in question,

It is to be observed that the decision in Russell v. Hartt seems to be based largely upon, the ground of the extension of jurisdiction in the Surrogate’s Court by the provisions of chapter 460 of the Laws of 1837. The objection was taken that except in a case where a will of personal estate duly executed in this State by a person not a resident of this State shall in the first instance have been duly admitted to probate in the court of a foreign State or country, no authority has ever been given to a surrogate to act on a will the original of which could not^be produced before him.

The court held that the act is broad enough to cover the case, as it expressly authorizes the surrogate of each-county to take proof of the wills of all deceased persons where the testator not being an inhabitant of this State shall die out of the State leaving assets in the county of such surrogate, and then restores the incidental powers of surrogates and authorizes them to issue commissions to take testimony, to foreign countries. The court further held that as the surrogate has the power to issue commissions to take testimony in foreign countries, the issuance of such a commission makes the commissioners officers of the court for the purposes for which it was issued, and that in the execution of the authority conferred the commissioners stand in the place of and represent the court; and that the exhibition of an original will before them was substantially a production of the will before the court. In the case at bar the jurisdictional facts, although different, come under the same section of the act of 1837 as is mentioned in the case of Russell v. Hartt Section 2476 of the Code seems to be substantially an equivalent to tbe section of the act of 1837 referred to in the case cited.

The. decision, therefore, in the case above mentioned is distinctly to the effect that the production of an original will 'before commissioners appointed by the surrogate to take evidence, is substantially a production of the will before the Surrogate’s Court, and, therefore, the provisions of the Code which appear to require the production of a will in any case before the surrogate are complied with by the production of the will before tbe commissioners appointed by the surrogate to take proof in reference to its execution. The case of Younger v. Duffy (supra), does not in any respect conflict with this view. The question there before the court was as to the jurisdiction of the Supreme Court to entertain an action to prove a will, the original of which remained on file in the archives of the notary’s office at the city of Cadiz in Spain, from which the same could not by reason of the laws of Spain be taken for the purpose of being admitted to probate under tbe laws of tbe State of New Tort or for any other purpose whatsoever. The court simply decided that the fact that the will could not be obtained for production in the Surrogate’s Court of Richmond county, gave the Supreme Court jurisdiction to entertain an action under the provisions of section 1861 of the Code of Civil Procedure. But it was not decided and it was not intended to be decided that the Surrogate’s Court was deprived of jurisdiction to entertain proceedings for the probate of the will, simply because the will itself was not produced before the surrogate of that county.

There is no evidence of any intention upon the part of the legislature by the enactment of section 1861 to deprive the Surrogate Court of any jurisdiction which it otherwise had, but simply to confer jurisdiction upon courts to entertain an action to procure a judgment establishing a will under certain circumstances. It would be a forced application of the rule of repeal by implication to hold that, because of supposed inconsistencies between the provisions of section 1861 of the Code, and the jurisdiction which the Surrogates’ Courts had been accustomed to exercise, and which they would be undoubtedly held to have the right to continue to exercise were it not for these apparent inconsistencies, the jurisdiction of the Surrogate’s Court had been thereby abridged. Full force and effect can be given to section 1861 without in any respect infringing upon that jurisdiction which had been recognized by the Court of Appeals to exist in Surrogates’ Courts.

We are of opinion, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Daniels and Bartlett, JJ., concurred.

Order affirmed, with ten dollars costa and disbursements.
      The following is a copy of the opinion delivered by the surrogate:
      Rollins, S. Amelia A. Stolzel and Arthur F. Stolzel, as devisees and legatees under an instrument claimed to have been executed by this decedent on July 17, 1883, as a second codicil to a paper heretofore admitted to probate as his last will and testament, commenced in June last a proceeding in this court for the probate of such second codicil.
      It is alleged in their petition that the decedent died in February, 1885, in the city of New York; that he left in the said city personal assets of great value; that the paper under which the petitioners claim came into being in the city of Vienna, in the Empire of Austria; that it is holographic and bears the signature of decedent as its maker; that though it does not purport to have been executed in the presence of any person as a subscribing witness, it is, nevertheless, valid and effectual because it was executed in accordance with the laws of the said Empire of Austria, in which decedent then had his residence and permanent domicile; that it is not produced before the surrogate for the reason that it is in the possession of a certain Austrian court in the petition specified, which court will not suffer it to be removed from its files. Answers have been interposed on behalf of certain persons interested under the will as proved.
      It is insisted by tlie respondents that this court is without jurisdiction in the premises, first, because of the non-production of the instrument whose probate is sought; and, second, because of the conceded fact that such instrument is without subscribing witnesses.

        First. Is the actual production of a testamentary paper before the surrogate essential to the exercise of his jurisdiction to grant or refuse probate? Certainly not in all cases. Section 2621 of the Code of Civil Procedure expressly declares that “a lost or destroyed will” can be proved in a Surrogate’s Court. But the respondents claim that only such cases as are covered by section 2621 are excepted from what they insist is the general rule, that without the physical presence of the paper sought to be established as a will the surrogate is powerless to adjudicate upon its title to probate. If there had been no change in the statute touching the jurisdiction of this court since the arising of the situation, upon which the Court of Appeals comments in Russell v. Hartt (87 N. Y., 19), the question here presented would be susceptible of an easy solution. That situation was as follows: The surrogate of Ulster county had admitted to probate an instrument that had never been produced before him, and that could not be produced for the reason that it was in the custody of a court in Scotland, which refused to give it up. That instrument disposed of real and personal property in Scotland, and of other real and personal property in tlie State of Hew York. It had been executed in accordance with the formalities both of the Scotch law and of the law of this State. The subscribing witnesses were examined in Scotland under a commission issued by the surrogate, and their depositions were admitted at the trial and constituted the evidence by which the decree appealed from was supported. In the course of an opinion, in which all his associate judges concurred, Finch, X, pronounced chapter 460 of the act of May 16, 1837, broad enough in its terms to authorize the surrogate to take proofs of an existing will without requiring its production.
      The provisions to which the learned judge referred were manifestly those contained in the first, seventy-first and seventy-seventh sections of the act.
      Section 1 gave to the surrogate of each county authority “ to take the proof of last wills and testaments of all deceased persons in the following cases ” — (naming them). Section 71 expressly abrogated the limitation imposed upon the surrogate’s authority by section 1, title 1, chapter 2, part 3 of the Revised Statutes, to the effect that “ no surrogate shall, under pretext of incidental power or constructive authority exercise any jurisdiction whatever not expressly given by some statute of this State.” Section 77 provided that “ on any proceeding oi matter in controversy before a surrogate, when the testimony of a witness in any other State or territory of the United States, or in any foreign place, is required by any party to such proceeding or controversy, the surrogate may issue a commission to take such testimony.”
      The act of 1837 was repealed in terms by the general repealing act of May 10, 1880 (Laws 1880, Chap. 245), but the provisions upon which rests the decision in Russel v. Hartt were substantially re-enacted in the Code of Civil Procedure: First. Section 1 of the old law reappears as section 2476 of the Code. To the surrogate’s court of each county the latter statute gives “ jurisdiction, exclusive of every other surrogate to take ike proof of a will in either of the following cases ” — (specifying them). A comparison of the language just quoted with the language of section 1 of the act of 1837 {supra), does not even faintly suggest the notion that by the latter statute the legislature intended to restrain the surrogate’s probate jurisdiction within narrower limits than had been fixed by the earlier, Unqualified authority “ to take the proof of a will” would surely he no less comprehensive than unqualified authority “ to take the proof of last wills and testaments of all deceased persons ; ” and while the authority conferred by neither of the statutes under consideration is unqualified, but in both of them is limited to certain specified “ following cases,” it will appear, when the two sets of “following cases” are juxtaposited, that while the field of the surrogate’s jurisdiction has been in no respect narrowed, it has been in some respects enlarged by the latter enactment. Second. It cannot be claimed that any change has been wrought in the character and the extent of the authority of this court by the repeal of section 71 of the act of 1887, which itself repealed the inhibition' of the Revised Statutes against the exercise by the surrogate of “ incidental powers; ” for, by subdivision 11 of section 2,481 of the Code, the surrogate is authorized “ to proceed in all matters subject to the cognizance of his court, according to the course and practice of a court having, by the common law/ jurisdiction of such matters, except as otherwise prescribed by statute, and to exercise such incidental powers as are necessary to carry into effect the powers expressly conferred.’’ It is true that section 2472 of the Code, which is now the source of the surrogate’s general jurisdiction, and which, in its first subdivision, empowers him “ to take the proof of wills,” and “ to admit wills to probate,” declares in its concluding sentence that the jurisdiction thus conferred “must be exercised in the cases and in the manner prescribed by statute.” But a like restriction, in words almost identical, was imposed by section 1, title 1, chapter 2, part 8 of the Revised Statutes (3 Bank’s 6th ed., 826), and remained unaltered upon the statute book until it was displaced by the corresponding provision of the Code. Third. Section 77 of the act of 1837 gave the surrogate authority to issue commissions for the examination of witnesses in other States or countries. It will, of course, be conceded that powers no less ample, are now conferred by the Code. (See section 2538, making applicable for Surrogates’ Courts, article 2 of title 3 of chapter 9, which relates to “ depositions taken without the State for use within the State.”)
      I have thus demonstrated that if the decision in Russell v. Hartt is not to be taken as controlling my disposition of the principal matter here in controversy, it is for some reason quite apart from any supposed variations between those sections of the act of 1837, upon which the decision rests, and cognate provisions in the law as it stands to-day. But the parties opposing the probate of the alleged codicil insist that lack of jurisdiction in the Surrogate’s Court to prove a testamentary paper not produced, and not sought to be established as lost or destroyed, is made apparent by reference to section 1861 of the Code. This section forms a part of article 3, title 3, chapter 15. The chapter is wholly concerned with certain special provisions regulating “actionsthe title is styled “Actions relating to the estate of a decedent; ” the article is entitled “Actions to establish or impeach a will;” the section provides that in certain specified classes of cases one may maintain an action to procure a judgment establishing a will. The first and second of these classes are-described as follows: “ Where a will of real or personal property, or both, has been executed in such a manner and under such circumstances that it might, under the laws of the State, be admitted to probate in a Surrogate’s Court, but the original will,” either (a) “ is in another State or country under such circumstances that it cannot be obtained for that purpose, * * * ”or(b)“hasbeenlostordestroyedbyaceidentordesign,’* The third class is thus defined: “Where a will of personal property, made by a person who resided without the State at the time of the execution thereof, or at the time of his death, has been duly executed according to the laws of the State or country in which it was executed, or in which the testator resided at the time of his death, and the case is not one where the will can be admitted to probate in a Surrogate’s Court under the laws of the State.”' ,
      The language of the first part of the first and the last part of the last subdivision certainly seems to involve the notion that inability to produce a will because of its detention in another State or country operates to prevent its admission to probate in a Surrogate’s Court, even though that court would else have undoubted jurisdiction in the premises. If, however, the statutes which confer upon the surrogate his authority in matters of probate contain no such restrictions and limitations as regards wills not produced in his court, but, on the contrary, are couched in terms sufficiently broad and general to justify him in taking the proofs of such instruments, it is plain, I think, that he is not to be ousted of his jurisdiction by mere inference and implication from words used by the legislature in conferring jurisdiction upon other tribunals. Suppose that among the cases specified in section 1861, as warranting the maintenance of an action to establish a will, was the case following: “Where a will has been executed under such circumstances that it might, under the laws of the State, be admitted to probate in a Surrogate’s Court, tut ” such will is worded in the German language, or is written on blue paper; it could scarcely be claimed that such a provision would, of itself, deprive the surrogate of authority to take proof of wills written on blue paper, or of wills expressed in the German tongue. There is no such virtue in a Tmt. • And that “but ” has no such virtue as it is employed in this section becomes manifest upon consideration of the last clause of its first subdivision — the clause relating to lost wills and wills that have been destroyed. The punctuation of the section is so faulty that upon a casual reading one may tail to note that that clause, like the one preceding, is connected -with clause first hy the word “but.” (I have made that fact conspicuous by the insertion of the word “cither” before the words “is in another State or country” in the foregoing quotation from the statute.)
      The implication that procedure by acti on is the only procedure whereby lost and destroyed wills can be proved, and that Surrogate’s Courts are, therefore, powerless in the premises, is no less definite and positive than the implcation that an action is the only proceeding for establishing wills detained in a foreign State or country and for that cause not producible. But there is not the slightest ground for supposing that the legislature or the codifiers intended that the provision which thus empowers courts of general jurisdiction to establish a lost or destroyed will should be taken as involving a denial of like authority to the surrogate. On the contrary, section 2621 of the Code, which went into operation simultaneously with section 1861, expressly provides that “ a lost or destroyed will can be admitted to probate in a Surrogate’s Court.” And it would appear from Mr. Throop’snote to section 1861 that the latter section does not embody an afterthought of the codifiers, but that when the iihraseology of the earlier was under consideration the commissioners had in mind the extension to all Surrogates’ Courts of that power of proving lost and destroyed wills which had been exercised by the surrogate of this county since 1870. That section 1861 should not receive the interpretation claimed for it by these contestants is apparent from another consideration. An examination of the statutes for which it has been substituted will show that those statutes furnished the appellant in Russell v. Hartt, with arguments against the authority there exercised by the surrogate, no less forcible than the arguments based in the case at bar upon the supposed restrictive language of the Code. Section 1861 is, in the main, a re-enactment with modifications of sections 63a, 68a and 63J, title 1, chapter 6, part 2, Revised Statutes (3 Bank’s 6th ed. 70, 71). Section 63a provided that ‘ ‘ a will duly executed according to the laws of this State, where the witnesses to the same reside without the jurisdiction of this State, or a duly exemplified or authenticated copy thereof, where the original will is in the possession of a court or tribunal of justice in another country or State whence the same cannot be obtained, may be proved in the Court of Chancery, upon a commission to be issued for that purpose on application to the chancellor.” Section 68a provided that “wills of personal estate, duly executed by persons residing out of this State, according to the laws of the State or country in which the same were made, may be proved under a commission to be issued by the chancellor.” Neither of these sections contains any express ref e'renco to the circumstance to which they both owe their origin — the lack of power in the Surrogate’s Court of that time to issue a commission for the examination of witnesses without the State. Sections , 63as-68a did not form a part of the Revised Statutes as originally enacted but were inserted after-wards. (Sec. 16, chap. 320, Laws of 1830.) In commenting upon their object and effect the revisers say: “ There was no provision in the old statutes, nor is any contained in the'new, relative to the proof of foreign wills. The above sections will remedy the omission in a manner which, it is believed, will be entirely safe.” (5 Edm. St., 631.)
      The sections here referred to continued in force uninterruptedly until their repeal in 1880, and that, too, without any modification except such as was occasioned by the abolition of the Court of Chancery, and the transference of its powers and jurisdiction to the Supreme Court. (Sec. 16, chapter 280, Laws of 1817.) That these sections lodged, first in the Chancery Court and thereafter in m its successor, exclusive jurisdiction of wills not producible because of their detention in a foreign tribunal, and of wills whose probate involved the examination of witnessess without the State, was strenuously urged before the Court of Appeals in Russell v. Hartt. But Finch, J., pronouncing the court’s opinion, expressly sanctions the contention of the respondents in that proceeding, that before the enactment of chapter 320 (supra), the Surrogate’s Court had had jurisdiction to take proof of foreign wills, and continued to have it thereafter, but that this jurisdiction was -‘so hampered and rendered ineffectual, incases where the witnessess could not be produced, by the inability of the Court to issue a commission, as to make necessary and occasion ” the grant of authority to the chancellor. This view of the matter was very clearly and forcibly enunciated by Surrogate Bradford in Isham v. Gibbons (1 Brad., 69), cited with approval in Russell v Hartt. I am satisfied that there are no such differences between sections 63a-69a, as thus construed, and section 1861 of the Code, as to warrant the notion that, by the latter enactment, the legislature intended to hedge about the probate jurisdiction of the surrogate with restrictions such as had never theretofore been imposed. Counsel for the contestants lay some stress upon the direction contained in section 2635 of the Code, to the effect that except where special provision is otherwise made by law, a written will, after it has been proved, “ must be retained by the Surrogate until the expiration of one year after it has been recorded * * * and must then be returned upon demand to the person who delivered it,” etc. This provision has taken the place of section 54, title 1, chapter 6, part 2, of the Revised Statutes (2 Rev. Stat., 66), which declared that “all wills, whenever proved according to law, except such as are required to he deposited,, shall, after being recorded, he returned upon demand to the person who delivered the same,” etc. The language of section 2685 involves no stronger implication that the production of a will must precede its admission to probate, than is involved in the provisons above quoted from the Revised Statutes, and the latter provisions were in force when the will which occasioned the controvery m Russell v. Hartt was admitted to probate. It would ho profitless to make detailed comment upon the result of comparing, section hy section, the terminology of the Code with that of the various statutes which it has supplanted. To any person who will undertake that comparison, it will clearly appear that, both in spirit and in letter, the later enactments contemplate an expansion rather than a contraction of the authority of this Court. If there he any difference at all, therefore, between the present situation and that which existed at the entry of the decree in Russell v. Hartt, it is a'difference which makes the decision in that case all the more controlling in this.

        Second. The claim that this proceeding should be dismissed because the codicil, for whose probate it asks is unattested, rests upon a very slender foundation. I have already referred to the provisions of sections 2472 and 2476 of the Code of Civil Procedure, one of which gives to the surrogates of the State general authority to “ take the proof of wills” and “ to admit wills to probate,” and the other of which specifies the cases in which that authority may be exercised in any particular county by the surrogate of such county. One of the cases thus specified is described as follows: “'Where the decedent, not being a resident of the State, died within that county, leaving personal property within the State. ’> The case at bar, assuming, as it must of course he assumed for present purposes, that the allegations of the petition are true, indisputably falls within that description. '
      Now, there is in the Code another section (sec. 2611) whose last five words are claimed to deprive surrogates of the power of proving any wills whatever except such as are attested by at least two subscribing witnesses. It is certainly the chief, if not the exclusive, purpose of the section referred to, to prescribe by what law, foreign or domestic, the validity of the execution of a will shall be tested. It substantially declares that a will of personal property shall be deemed sufficiently executed in any of the following cases: First. Where it has been executed in, conformity with the laws of this State. Second. Where it has been executed without the limits of this State, hut in some other State of this country, or in the dominion of Canada or in the kingdom of Great Britain and Ireland, and according to the laws of the place of its execution. Third. Where it has been executed, not in conformity with the laws of this State hut in conformity with the law of its maker’s residence.
      Section 2011 is, in the main, a mere recasting of chapter 118 of the Laws of 1876, a statute which was in force from the time of its enactment until the adoption of the Code of Civil Procedure. It must certainly he admitted on all hands that during this interval the personal property-will of a decedent, who resided at the time of its execution in any State or territory of this country, would have been admissible in a Surrogate’s Court, despite the non-observance by the testator of the formalities of execution prescribed by our own laws, if he had duly observed the formalities of execution prescribed by the law of his domicile. Now there were, during that interval, at least ten of the States and two of the territories of the United States in which holographic wills that bore the name of no subscribing witnesses were entitled to probate; and such is the case to-day. Those States and territories are Arkansas, California, Dakota, Kentucky, Louisiana, Mississippi, Montana, North Carolina, Pennsylvania, Tennessee, Texas and Virginia.
      If these contestants put a correct interpretation upon section 2611, an unattested holographic will, executed by a resident of any of those localities, must necessarily fail of probate in this court, for the reason that the only provision for probate in that section is a provision that a will may be proved “ as prescribed in this article ” (art. 1 of tit. 3 of chap. 18), and that in such article, as they claim, no procedure is established for proving testamentary papers unattested by witnesses. If the latter of these two contentions were strictly correct, it would not, in my judgment, follow that such wills must needs be rejected, unless in article 1 (supra), or elsewhere upon the statute book, there appears some provision which prohibits their probate in Surrogates’ Courts. If general jurisdiction in the premises is lodged in those courts, and the legislature have neglected to point out the precise way in which that jurisdiction can be exercised, the surrogate is at liberty to adopt such modes of procedure as the exigences of the case demand. This would merely require a resort to the incidental powers with which he is vested by section 2481 of the Code. (Isham v. Gibbons, supra; Pew v. Hastings, 1 Barb. Ch., 452; Brick’s Estate, 15 Abb. Pr., 12; Tompkins v. Moseman, 5 Redf., 402; Kohler v. Knapp, 1 Brad., 241; Sipperly v. Baucus, 24 N.Y., 46.)

        In Seaman v. Duryea (10 Barb., 523), affirmed in the Court of Appeals (11 N. Y., 324), it was held that, although Surrogates’ Courts were courts whose jurisdiction was derived altogether from the statutes, nevertheless ‘' the authority' to do certain acts or to exert a certain degree of power, need not be given in express words. If the authority may be fairly and reasonably inferred from the general language of the statute, or if it be necessary to accomplish its objects, and to the just and useful exercise of the powers which are expressly given, it may be taken as granted.”
      In Campbell v. Logan (2 Brad., 90), Surrogate Bradford said : “ The Revised Statutes define the jurisdiction of the surrogate and direct its exercise ‘ in the cases and in the manner prescribed by the statutes of the ’State,’ but the power to take the proof of wills being given generally, the mode of its exercise in a case not provided for by statute must be regulated by the court in the exercise of a sound discretion, according to the peculiar circumstances of each particular case.”
      But not only is it true that no statute forbids the surrogate to admit to probate an unattested will of personal property executed in accordance with the law of the testator’s domicile; it is also true that the procedure established by article 1 (supra), does not pretend to relate exclusively to wills that have subscribing witnesses Some of the provisions of that article, for example, sections 2618, 2619 and 2620, especially concern wills of that description, and prescribe under what circumstances subscribing witnesses must be examined and under what circumstances their examination may be dispensed with. But other provisions of the article are broad enough to include every species of will covered by the terms of section 2611. Section 2614 declares the requirements of the petition for probate. It contains no intimation of a limitation to attested wills. Section 2622 establishes as the only prerequisite for the admission of any will described in section 2611 that the surrogate shall "inquire particularly into aD the facts and circumstances and be satisfied with the genuineness of the will and the validity of its execution.” Section 2623 provides that “if it appears to the surrogate that the will was duly executed, and that the testator was in all respects competent to make it, and was not under restraint, it must be admitted to probate.”
      I am of the opinion that neither of the objections of these respondents is well taken. They must, therefore, be overruled.


author: Barnard, P. J.:

text:
    ALFRED COLVILLE, Respondent, v. WILLIAM J. MILES, Appellant.

      Fa/rm lease —when the title to the crops remams in the lessor.

    In the spring of 1885 the plaintiff, who owned a farm with a large number of cattle thereon, leased the farm to one Kane under an agreement that Kane should have all the milk from the cows, and raise enough on the place to carry the stock, and that if there was not enough to carry them through the year he was to buy what was necessary; that the hay and gram should not be sold. Kane having fled in the fall of 1886 and left the cattle in a neglected condition the plaintifE took possession of the farm, and thereafter brought this action of replevin to recover the crops which had been attached by certain of the creditors of Kane.

      Held, that the plaintiff was entitled to recover as Kane never had any title to the crops.

      McGombs v. Becker (3 Hun, 343) distinguished.
    Appeal from a judgment entered in Orange county upon the verdict of a jury in favor of the plaintiff, against the defendant, and from an order denying a motion for a new trial made upon the minutes of. the justice before whom the action was tried.
    The action was In replevin, to recover the possession of certain hay, grain and grass attached by the defendant, Miles, as a constable, in actions in a Justice’s Court, against one Patrick Kane. In 1885 Colville made an agreement with Kane by which he leased to him his farm and cattle. By their agreement all the hay and crops produced on the place were not to be sold or removed by Kane, but were to be used to feed the cattle, and if there was any deficiency in feed, Kane was to supply it. This was an oral arrangement. Kane continued- to occupy the farm under this arrangement until October, 1886, when he absconded, left the farm, and abandoned the cattle, -leaving them in a starving condition and leaving his rent unpaid. He was considerably in debt when he absconded, and his creditors brought suits in a Justices’ Court against him and attached the crops then harvested, consisting of hay, straw, oats, and Hungarian grass, in the various barns on plaintiff's farm.

      M. N. Kane and H. A. Wadsworth, for the appellant.

      D. F. & H. Cedney, for the respondent.
   Barnard, P. J.:

The plaintiff was the owner of a farm in Orange county with a large number of cattle thereon. In the spring of 1885 he leased the farm to one Kane, under an agreement that Kane should have all the milk from the cows (about forty head). Kane was to carry the stock on the farm, raise enough on the place, and buy deficiency if any. The hay and grain could not be sold, but -it belonged to the cattle. Kane fled in the fall of 1885, and left the cattle in a neglected condition. The plaintiff at once took possession of his farm, but certain creditors of Kane had attached the hay, oats and straw as the property of Kane and for his debts. The sole question is one of law whether on this contract, Kane had ever a title to the produce of the farm which was reserved by the landlord for the express feeding of the cattle on the farm. Tflere is no reported cáse which has in it the facts of this case. In McCombs v. Becker (3 Hun, 342) the agreement was that.the tenant should pay for deficiency of hay in carrying through the landlord’s cattle and the landlord was to have excess. It was held in this case that the title to the hay was in the tenant. The fair intendment from the facts was that the usual incidents to an absolute tenancy prevailed, and that the tenant owned the title.

In the present case the reserve is twofold. The fodder raised from the farm, for the cows, shall not be sold or removed iram the farm but it must be fed to .them. “It belonged to them.” By this limitation the title to the product did not go to the tenant but was received to the lessor, and at most Kane had a naked right of possession for the sole purpose of carrying out his contract, and when he abandoned that, he had no leviable interest in it. (Heald v. Builders' Ins. Co., 111 Mass., 38.)

The judgment should be affirmed with costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed with costs.


author: BaeNAbd, P. J.:

text:
    MARY E. ATKINSON, as Administratrix, etc., Plaintiff, v. MEYER ABRAHAM, Defendant.

      Contributory negligence — when the question should be left to the jury.

    Upon the trial of this action, brought by the plaintiff recover damages for the death of her intestate which was caused by his falling through a hatchway which extended from the sixth floor to the bottom of a building owned by the defendant, it appeared that the hatchway had been formerly protected by rails put in upright bars, and that the deceased, who leased the sixth floor from the defendant, notified him that they had been taken away and asked him to replace them, and that the defendant refused to do so, The deceased fell through the hatchway, which was distant three feet nine inches from the foot of the stairs, when it was dark and at about the time when it was being used by the defendant’s employes.

      Held, that the question of the plaintiff’s contributory negligence should have been left to the jury, and that the court erred in granting» a motion for a nonsuit.
    MotioN for a new trial directed at the Kings County Circuit to be heard iii the first instance at a General Term, after a motion for a nonsuit had been granted .at the conclusion of the plaintiffs case.
    The action was brought for the recovery of damages from the defendant, for fatal injuries received by one Simeon A. Atkinson by reason of falling through an unguarded hatchway in the defendant’s building. Upon the trial evidence was given tending to show that in May, 1883, the plaintiffs intestate hired from the defendant the loft or sixth story of the building owned by the defendant, known as and being No. 198 William street, in the city of New York. At that time the deceased entered into the occupancy of the loft so hired by him, and continued to occupy the same until some time in the month of December next ensuing, when his death occurred. The several floors of the building were variously occupied by different tenants. A hatchway, four feet and nine inches square, extended from the lower floor through the front portion of the several halls to the loft occupied by the deceased, where it opened in one corner of the room. Its position was between’ the front line of the building and the stairways connecting the several floors. This hatchway was provided with double trap doors, but was wholly unprovided with and unprotected by any bar, guard or railing, as required by law. No one saw the fall of the deceased through the unguarded hatchway, but it appears that early in the evening of December 6, 1883, at the close of his day’s work, the deceased left his son in the loft and started for his home; that immediately after-wards the son of the intestate heard an unusual noise below, and going down found his father lying unconscious immediately under the opening of the hatchway; that in going down stairs on that occasion his father started in the usual way.

      Hastings <& Southworth, for the plaintiff.

      Morris dk Pearsall, for the defendant.
   BaeNAbd, P. J.:

As between landlord and tenant it is a general rule that when a landlord owes a duty, either by his own agreement or as is imposed by statute, a breach of such duty causing damage gives a cause of action. (Willy v. Mulledy, 78 N. Y., 310.)

The proof shows that the deceased hired of the defendant the sixth story of certain premises in the city of New York. There was a hatchway extending from the bottom to the sixth story. It was the duty of the owner to provide and protect this hatchway by substantial railing and sufficient trap-door. (Chap. 625 Laws of 1871; section 487, chap. 410, Laws of 1882; chap. 547 Laws of 1874.) The hatchway had once been protected or at least uprights had been constructed in which to put the bars to protect' the opening. They had not been in place during the occupancy of deceased. He asked that they be put in and the defendant did not do it, saying that they had been taken away and he could not afford to replace them. Under this state of the proof there was a neglect of duty by tbe owner. The ease shows that evidence was given tending to prove that the deceased fell through the hatchway, December 13, 1883, and was hilled. The case should nave gone to the jury unless there was a failure to show a freedom from contributory negligence. It was possible to go down the .stairs without falling into this hatchway. It was three feet nine . inches from the foot of the stairs. The hatchway was habitually left open and at about the time of the accident was being used by the deceased’s employees. It was dark when the deceased went down and he fell through the open well hole. The case should have gone to the jury upon the question of the contributory negligence of the deceased. There is a certain assumption in favor of caution in the presence of known danger. The deceased must go up and down even if the hole was unprotected. He was not bound to get a light as a matter of law. He was bound to exercise the care which a prudent person would exercise under the circumstances of the case. All these things were for the jury. An accidental stumble, a moment of bewilderment, a misjudgment as to the foot of the stairs, might occasion the accident to a prudent person. The case of Totten v. Phipps (52 N. Y , 354), which closely resembles this one, was held to be a case for a jury. When the injury is from a defect known to the injured person the degree of care and caution required of him is a question for the jury. (Bassett v. Fish, 75 N. Y., 304; Palmer v. Dering, 93 id., 7.) The exception should be sustained and a new trial granted, costs to abide event.

Pratt, J., dissented.

Exceptions sustained and new trial granted, costs to abide event.


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    GEORGE BECHTEL, Plaintiff, v. THE VILLAGE OF EDGEWATER, Defendant.

      Construction of a charter defining the bounda/ries of a milage— when they vary with changes in the shore of a bay —1866, chap. 214.
    In the charter of the village of Edgewater (chap. 214 of 1866) the boundaries of the village are described as commencing at a point in the shore of the bay of New York, and as running finally “ in a due south-easterly line to the lower bay of New York, and tbence along the lower and upper bay of New York north-easterly, and northerly to the place of beginning.”
    Held, that it was not intended to give an absolute and fixed boundary at the shore as it then existed, but a shifting terminus at the shore as it might exist at any time thereafter, whether it should have been extended into the bay by natural cause or by artificial structures erected for the purposes of commerce.
    ' SubmissioN of a controversy upon an agreed statement of facts under section 1279' of the Code of Civil Procedure.
    The boundaries of the village of Edgewater, in the county of Richmond, as defined by the charter of said village, are as follows :

      “ All that certain tract of land in the towns of Middletown and Southfield, and county of Richmond, embraced within the following boundaries, that is to say: Commencing at a point on the shore of the bay of New York, where the center line of Arietta street, if prolonged, would intersect the shore of said bay, and running * * * thence in a due south-easterly line to the lower bay of New York; and thence along the lower and upper bay of New York north-easterly and northerly to the place of beginning, shall hereafter be known and shall constitute the village of Edgewater.”
    At the time of the passage of the act by the legislature (chap. 214, Laws of 1866), incorporating said village of Edgewater, there were but a very few grants of land under water which had been issued to the owners of the adjacent upland in said village, and scarcely any docks or piers had been built thereon, except the docks at Tompkinsville, Stapleton and Vanderbilt Landing, which were used for ferry purposes. Since that time, however, as the village progressed and the water privileges advanced in value, almost every owner of the adjacent upland along the entire eastern shore of said village, at least three miles in length, has obtained from the commissioners of the land office a grant of land under water. In some instances the owners have entirely filled in in front of the adjacent upland, so that where was formerly only water, now there are lands upon which are erected houses and other buildings. In other instances the owners have built out wharves and piers upon which have been erected storehouses and other buildings for commercial purposes, and gradually a large portion of the eastern line of the upland of said village lias been extended by accretion and filling in, until now highways and private roads run where formerly the waters of the bay of New York ebbed and flowed. The questions submitted were as follows:
    First.-— Does the boundary of the village of Edgewater, “ along the lower and upper bay of New Yorhf include within the limits of said village the lands under water, together with the docks, wharves and piers, and the improvements thereon erected, of which grants have been issued by the commissioners of the land office to the owners of the adjacent upland within the limits of said village ?
    Second.— If it does, then has the village of Edgewater such a territorial jurisdiction as to entitle its trustees to assess and levy taxes upon said lands under water, together with the docks, wharves and piers, and the improvements thereon erected as aforesaid ?

      Wm. M. Mullen, for the plaintiff.

      Stephen D. Stephens for the defendant.
   Barnard, P. J.:

The description of the village “ along the lower and upper bay of New York” was not intended to give an absolute and fixed boundary at the shore as it then existed, but a shifting terminus at the shore as it might exist, either by change in the natural banks or in the artificial shore. (Matter of City of Brooklyn, 73 N. Y., 179.) The village was extended to the bay, not as it existed at the passage of the act, but as it might exist after artificial structures were erected for the purposes of commerce. Whether a grant is permanent or shifting depends upon the construction of deeds and grants and upon the intent of the parties or upon the legislative intent. That this boundary was intended to be shifting, by the legislature, is very plain. The grant was to a village of municipal rights. It included all the upland along the bay of New York. The village was granted municipal privileges and no reason could exist why a narrow strip of land in front of the village should have been permitted to cut off the inhabitants from the bay or the village from jnrisdiction over the same after structures had been erected for commercial uses.

There should be judgment for the defendant upon the submitted case, with costs.

Peatt, J., concurred.

Judgment for defendant, upon submitted case, with costs.


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM R. GRACE and Others, Respondents, v. SYLVESTER GRAY and Others, Assessors of Long Island City, Appellants.
    Certiorari to review erroneous assessments —1880, chap. 369.,
    A motion to quash a writ oí certiorari issued to review assessments for taxation under chapter 269 of 1880, upon the ground that neither the petition nor the . writ show that the relators ever appeared before the assessors or made any objection during the period in which the assessments were open for inspection and corrections, should not he granted.
    Appeal from an order made at the Kings County Special Term, and entered in Queens county, denying a motion to vacate a writ of certiorari to review assessments for taxation on real estate in Long Island City and referring the matter to a referee to take proofs. The motion to quash was made on the filing of the return and was based on the defect claimed to exist, both in the petition and the writ, that they did not show that the relators had ever appeared before the assessors or made any objection during the period while the assessment-rolls were open for inspection and corrections
    W. J. Foster, for the appellants.

      Geo. F. Blackwell, for the respondents
   Barnard, P. J.:

If the writ of certiorari should be quashed there would be no trial according to chapter 269, Laws of 1880. The several petitioners aver an inequality in the assessment in respect to the individual case of the particular petitioner, and by the act they are properly joined. The return is not final, and when the parties desire to give evidence in support of their petition the court may take evidence. Tliis testimony by tlie act “ shall constitute a part of the proceedings upon which the determination of the court shall be made.” The act, therefore, was designed to destroy, in respect to the writ of certiorari to review assessments, the conclusiveness of the return. A new tribunal was made with power to review the case upon the return and any evidence taken in support of the petitioners. The only condition to the allowance of the writ is that it shall be allowed within fifteen days after the completion and delivery of the assessment-roll and the posting or publishing notice thereof as required by the act. There are facts which can be disputed by evidence in the face of a return to the contrary. The case of The People ex rel. Mutual Union Telegraph Company v. Commissioners of Taxes (99 N. Y., 254), arose in the city of New York. The court held that the law of 1880 did not dispense with the provision of chapter 302, Laws of 1859 in relation to assessments in the city of New York. The order should be affirmed, with costs and disbursements.

Pratt, J., concurred.

Order affirmed with costs and disbursements.


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    In the Matter of the Estate of MARY E. MILLER, Deceased.

      Collateral inheritance tax —1885, chap. 483 — the term “ lineal descendant ” does not include nephews and nieces.

    The term “lineal descendants,” as used in section 1 of chapter 483 of 1885, which imposes a tax upon all property which passes by will or by the intestate laws of this State to any person other than “ to or for the use of father, mother, husband, wife, children, brother and sister, and lineal descendants born in lawful wedlock, and the wife or widow of a son and the husband of a daughter,” includes only the direct descendants of the testator or intestate, and does not include the children of brothers and sisters of the deceased.
    Appeal from an order of the Surrogate’s Court of Orange county confirming the report of an appraiser of the property of the estate of Mary E. Miller, deceased, subject to the collateral inheritance tax.

      Mary E. Miller, of New Windsor, Orange County, N. Y., died September 30,1886, owning real and personal property, and leaving a will in which she devised a portion of her estate to her nephew John Blackburn Miller, the son of a deceased brother of testatrix. Pursuant to the provisions of chapter 483 of the Laws of 1885, the surrogate appointed an appraiser of the property of said testatrix, who gave the notice required by said act, and made and filed his report, whereupon the surrogate made an order adjudging among other things that the property devised and bequeathed to said John Blackburn Miller in and by the will of said Mary E. Miller, deceased is not exempt -from taxation under said act, and directing the executors to pay a tax thereon amounting to $12,213.05. To such portions of said order, said J ohn Blackburn Miller in due time excepted and appealed to this court.

      E. A. Brewster, for John Blackburn Miller, appellant.

      Russel Headley, district attorney of Orange county, for the People, respondent.
   Barnard, P. J.:

Construing the act of the legislature (chap. 483, Laws of 1885) as a whole, the legislative intent is plain. The title specifies its purpose to be to tax gifts, mgaci es and collateral inheritances in certain cases. By the first section all property which passes by will or under the laws governing the descent and distribution of real and personal property in cases of intestacy to any person or persons or corporation “ other than those to or for the use of father, mother, husband, wife, children, brother and sister and lineal descendants born in lawful wedlock, and the wife or widow of a son, and the husband of a daughter, and the societies, corporations and institutions now exempted by law from taxation” are made subject to tax. The claim that lineal descendants refers to lineal descendants of nephews and nieces of a testatrix rests solely upon the punctuation, and if the construction be limited strictly,to it, a child’s child will be excluded, and the nepliew’s child included among those who take property free from the tax. Neither the grammatical construction of a sentence nor the punctuation controls the reading when from the whole act the meaning is plain. The term lineal descendants only includes the direct descendants of the testator or intestate. The act would fail if the lineal descendants of father, mother, wife and of brother and sister were among the excepted instances who had no descent from the testator or intestate. The descendants must be the testator’s or intestate’s descendants in the direct line. By the second section the act provides for remainders which were to pass to the class or classes not excepted after a life estate to those who could take free from tax. The section is more carefully drawn. The persons who can take the life estate without tax are “ father, mother, husband, wife, children, brother and sister, the widow of. a son, or a lineal descendant.”

There is no doubt but that the classes of those who could take the life estate are the same as those who took without a tax, if an absolute property was given them by the first section. By the ninth section of the act, the classes are again stated who are not subject to tax as follows: Father, mother, husband, wife, lawful issue, wife or widow of a son, or husband of a daughter.” There is no warrant in this section to class the children of brothers and sisters among the lawful issue of the deceased. The term lineal descendants must, therefore, be limited to children of the deceased, and to their children and children’s children, and not be held to include the children of brothers and sisters of deceased.

The order should, therefore, be affirmed with costs and disbursements.

Pea.it, J., concurred.

Order of surrogate affirmed with costs.


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    IGNATZ OESTERREICHES, Appellant v. GEORGE W. JONES and Others, Respondents.

      Judgment — it is irregular to enter judgment before issues are tried, allhoug/i a demurred' to a counter-claim has been sustained.

    In this action, brought to recover damages for injuries occasioned by the defendants’ neglect, the complaint alleged that the defendants were the owners of a building, a part of which was rented to the plaintiff, and that they opened a place in. the roof and carelessly left it unprotected,whereby the rain injured the plaintiff’s goods. The defendants’ answer took issue upon the facts and set up a counter-claim based upon an averment that the plaintiff had, without the defendants’ consent, made a structure upon the roof which was against the city ordinance, and that the defendants were compelled to repair it at an expense of $250. A demurrer interposed to the counter-claim having been sustained the plaintiff entered up judgment thereon, with costs.

      Held, that an order of the Special Term setting it aside as irregular was properly made and should he affirmed.

      Robinson v. Had (85 Hun,214) and Armstrong v. Humming» (22 id., 570) followed.
    Appeal from an order made at tbe Kings County Special Term vacating a judgment in favor of tbe plaintiff on tbe ground tbat it was irregularly entered.

      Henry Wehle, for the appellant.

      Smith & Dougherty, for the respondent.
   Barnard, P. J.:

Tbe complaint is framed to recover damages of tbe defendant for injuries inflicted by tbeir neglect, tbe averment being tbat they are tbe owners of a building, a part of wbicb is rented to tbe plaintiff, and tbat they opened a place in tbe roof and carelessly left it unprotected, whereby tbe rain injured tbe plaintiffs goods. Tbe answer took issue upon tbe facts and set up a counter-claim. Tbis counter-claim was based upon an averment tbat tbe plaintiff bad, without tbe defendants’ consent, made a structure upon tbe roof, wbicb was against tbe city ordinance, and that tbe defendants were compelled to repair it at an expense of $250. To tbe counterclaim tbe plaintiff demurred and bad judgment thereon in his favor. Tbe plaintiffs entered up judgment thereon, with costs. Tbe order at Special Term set aside tbis judgment.

Tbe moving papers sufficiently indicated tbe irregularity. The entry of a judgment while tbe issues of fact were undisposed of was given as tbe reason for tbe motion, wbicb the plaintiff’s attorney says be is advised and believes to be irregular. It was irregular. This was so held in Robinson v. Hall (35 Hun, 42 N. Y. Sup. Ct., 214) where a portion of tbe complaint was held bad on demurrer. Judgment was entered thereon, and tbe court at Special Term set it aside as irregular, citing many authorities. The same thing was held in Armstrong v. Cummings (22 Hun, 570). Tbe demurrer in tbis case was to one defense in an answer The demurrer was sustained, and the court held that the costs were not. capable of assessment. They were interlocutory and not final, and could not be enforced until the final judgment was rendered.

Order affirmed, with costs and disbursements.

Dykman, J., concurred; Pratt, J., not sitting.

Judgment and order affirmed, with costs.