text:
    Robert Wyllie and Jane Wyllie, App’lts, v. James Palmer, Jr., and Joseph W. Palmer, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Master and servant—Negligence.

      The citizens of Auburn purchased a quantity of fireworks of defendants, who sent a man with them to take charge of the display, and also a young man nineteen years o d. The committee appointed by the citizens took charge of the arrangements, and while the chairman and the man sent by defendants were firing some set pieces, the chairman sent the young man with another of the committee to fire rockets. In doing this a rocket was accidentally discharged, which injured plaintiff. Held, that in firing the rockets the young man was the servant of the committee and not of the defendants, and that they were not liable for his negligence.
    Appeal from a judgment dismissing the plaintiff’s complaint upon the merits, entered upon a nonsuit directed at the Cayuga circuit in June, 1890 ; and from an order denying the plaintiff’s motion for a new trial made upon the minutes.

      James R. Cox, for app’lts; Nathaniel Foote, for resp’ts.
   Lewis, J.

The citizens of Auburn, wishing to have an exhibion 1888, at a public meeting held in that city, appointed a committee consisting of George H. Battams, J. H. Pearson and others to take charge of the preparations for.and arrangements of the exhibition. Battams was-chairman of the committee and entered into negotiation by correspondence with the defendant^, who resided in the city of Rochester and were manufacturers of fire works.

Under date of June 12th, Mr. Battams writes:

“We have decided to have a four hundred dollar display.. Will you please inform me what you will give for that * * *. Please give us a fine display.”

Defendants wrote under date of May 22d : •

“We enclose program of exhibition * * *. We also enclose printed sheet giving full instructions for firing the display.”' Defendants wrote under date of June 14th :
“We understand that we have your positive order for display to cost four hundred dollars net including expense of man and we enclose you programme representing the goods we will send. * * * We will put our best work in it and you will be pleased.”

The defendants shipped the fireworks to the committee by rail. The committee received them and paid the freight thereon from Rochester; and on the 3d day of July the defendants sent to Auburn their employee, Mr. Royce, an expert in fireworks. They also sent with him a lad nineteen years old by the name of Kemitz, who was in their employ. When the time for exhibiting the fireworks arrived, on the evening of July 4th, the committee, of which Mr. Battams was chairman, assumed control of the general management of the exhibition. Battams and Royce, at the places selected by Battams, arranged that part of the fireworks known as the fixed pieces. It was arranged- that the rockets should be fired at a place away from the fixed" pieces. Kemitz -was with. Battams and Royce assisting in putting up the frames of the set pieces; and while they were thus engaged, and after they had fired some of the set pieces, Mr. Pearson, one of the committee, came to where they were and inquired of Mr. Battams if he should not go to work and fire some of the rockets. Battams replied: “Yes; take the young man Kemitz, and you and he can fire off the rockets,” and they went to where the rockets were. and commenced firing. Pearson testified: “ I got the order from the chairman of the committee to go and fire them, and I suppose I was in charge of them.” He testified that he considered that he was in charge of it, and that Kemitz did as he directed. Kemitz, while firing the rockets, negligently and carelessly exploded a rocket which was lying upon the ground, and not arranged to be then exploded. The rocket flew along horizontally, struck the plaintiff, who was standing in the street witnessing the,exhibition, breaking and burning her arm.

The sole question presented by this apjDeal is, was Kemitz, while firing the rockets, the servant of the committee, or of the defendants.

There is no evidence in the case that the defendants sent Kemitz to have charge of the explosion of the rockets, or that they expected that he would be employed at that work. While Kemitz testified that he had theretofore had some experience in firing rockets, there was no evidence that the defendants considered him competent to do such work. He was sent there for one purpose, and one only; to assist Boyce in arranging the fixed pieces. Battams, as chairman of the committee, assumed to direct Kemitz to assist Pearson in firing the rockets. Boyce gave him no directions about firing the rocketsi While Boyce was sent as an expert to look alter the mechanical part of the work, the committee assumed the general management and direction of the exhibition. The defendants had sold and shipped the fireworks as requested, and pursuant to' the request of the committee had sent Mr. Boyce to take charge of the display. When Battams assumed to direct ■the boy to- fire the rockets, a kind of work the defendants had not sent him to do, it must be held, we think, that the boy was not when thus engaged the servant of the defendants. To hold the defendants liable for the acts of the boy when he was under the direction of the committee, and was doing work the defendants had not directed him to do, would be doing violence to the rule of law which is well stated in Shearman & Redfield on Negligence, § 73, as follows: “He is to be deemed the master who has the supreme choice, control and direction of the servant, and whose will the servant represents; not merely in the ultimate result of his work, but in all its details. * * * Servants who are employed and paid by one person may nevertheless be, ad hoc, the servants of another in a particular transaction, and that, too, where their general employer is interested in the work. They may, without consulting their master, but in good faith, assist a person independently employed to do something which shall benefit their master, but with which neither he nor they have any right to interfere, and in which they act entirely under the control of such other persons. In none of these cases is the nominal master responsible to strangers for their acts or omissions.”

The trial court correctly held that ‘the defendants were not responsible for the negligence of Kemitz.

The judgment and order appealed from should be affirmed.

Dwight, P. j., and Macombeb, J., concur.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Homer Knapp, Resp’t, v. Leo J. Hall, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Deed—Building restrictions—Injunction.
    The common source of title of the parties subdivided a large tract of land, and to induce persons to purchase represented that each of the lots lying west of a certain street were to be conveyed subject to restrictions, including one forbidding building within a certain distance of the street line. All the deeds except that to defendant contained such restriction. Held, that to entitle plaintiff to an injunction restraining defendant from building within such distance it was necessary to show that he or his grantor were induced by such agreement to purchase, and also that defendant had knowledge or notice of these paroi promises of the grantor at the time of his purchase.
    (Macomber, J., dissents.)
    Appeal from an order of the Monroe special term entered in the office of the clerk of Monroe county on the 29th day of August, 1891, denying defendant’s motion to vacate and set aside an injunction order granted herein on the 5th day of June, 1891.

      Theodore Bacon, for app’lt; John F. Dor thy, for resp’t.
   Lewis, J.

Frederick S. Minges and others, being the owners of a tract of land in the city of Rochester, subdivided it into 117 city lots and caused a plan of the said subdivision to be made and filed in the Monroe county clerk’s office, and it was designated as the Beechwood tract. They put the lots in the market for sale, and, for the purpose of inducing persons to purchase the same, they represented and stated that each of the lots in the tract lying west of Chamberlain street were to be sold and conveyed subject to certain restrictions, among which was one that the buildings or dwelling houses to be erected upon the lots should stand not less than fifteen feet from the front of each lot.

On the 5th day of October, 1888, said owners sold and conveyed to one James Marden lot 76 and others upon said Beech-o wood track On the 18th day of December, 1890, the plaintiff in this action-purchased from Marden lot Ho. 76. Prior to the 10th day of April, 1891, Minges and others had sold and conveyed or entered.into contracts to sell and convey all the lots upon said tract lying west of Chamberlain street, except lots Ho. 77 and 78, and the covenants and restrictions mentioned were inserted in each of these deeds and contracts. These lots were part of the Beechwood tract and were west of Chamberlain street. On the 10th day of April, 1891, Minges and others conveyed to the-appellant, Leo J. Hall, lots 77 and 78. The deed of these lots did not contain any of the restrictions mentioned. On obtaining title to said lots 77 and 78, the appellant commenced erecting a building upon lot 78, which building extended to within seven feet of the street in front of the lot. The respondent, on the 15th day of June, 1891, commenced this action to enjoin and restrain the defendant during the pendency of the action and perpetually, by the judgment of this court, from erecting any building upon his lots extending nearer than fifteen feet to the street in front of them, and procured a preliminary injunction order restraining the appellant from continuing the erection of his building nearer than fifteen feet to the front line of his lot The injunction order, was based upon the verified complaint and upon affidavits. Defendant moved ex parte upon the plaintiff’s papers for an order vacating the injunction, which was denied. He then moved the court at special term, upon a verified answer and upon affidavits, to set aside the order. His motion was denied and he appealed from the order denying his motion to this court

The contention of the respondent is that the owners of this tract of land, by their paroi representations to the purchasers of the various lots, imposed upon the whole tract the restriction as to the location of the houses upon the lots. As stated, the various conveyances containing the restrictions purported'to restrict simply the land described in each conveyance. In order to be entitled to an injunction restraining the appellant, it was necessary, under . the rule of law invoked by the respondent, that his papers upon which the injunction order was based should clearly and- satisfactorily show that the appellant purchased his lots with notice of these paroi declarations and promises of the general grantors.

If the rights and interests of the appellant to the lands which he holds under a deed containing upon its face no restrictions are to have easements or servitudes imposed upon them by the paroi declarations and promises made to others by his grantors, the proceedings should not be based upon shadowy and uncertain evidence. The respondent was required to show that the appellant at the time he took his title had notice of the alleged restrictions -upon the lots, and that when he or his grantor Harden purchased the plaintiff’s lot-, their grantor agreed that the restrictions mentioned should be imposed upon the whole tract. If neither the plaintiff nor his grantor was influenced in purchasing the lot by any promises or declarations of their grantor, as to the restrictions upon the whole block, there is- no equitable ground for the plaintiff to ask for relief. If the appellant was ignorant of any restrictions when he took title to his lots, it would not be claimed that he could be bound by the paroi statement made to others by his grantors. Ho authority to which we have been referred has ' gone to the extent of holding that a grantee’s lands could have imposed upon them by oral declarations restrictions of which he had no knowledge at the time he took his title. In the case of Tallmadge v. The East River Bank, 26 N. Y., 105, which goes as far, if not farther, than any other case to sustain the respondent’s contention, the grantee had ample notice when he took title of the restrictions upon his premises, and the plaintiff took his title upon assurances that the restrictions were imposed upon the defendant’s land. The only evidence in the case which .the plaintiff can claim tends to show notice to the appellant, is contained in the 7th subdivision of the complaint and in the respondent’s affidavit of the date of June 13, 1891. In the complaint it is stated that the defendant Hall, before- the purchase of lots 77 and 78, had knowledge and notice that such restrictions and covenants had been imposed upon all lots of the tract lying west of Chamberlain street, and which included the lots of the appellant. The complaint does not state any facts upon which this assertion that the defendant had knowledge and notice was based. And, in the absence of the statement of the facts, the statement in the complaint fails to prove anything. The plaintiff’s affidavit states that prior to the 10th day of June, 1891, he had several conversations with the defendant Hall regarding the erection of his building on lot 78 of the Beech wood tract nearer than fifteen feet to the front of said-lot; that in the course of said conversations the defendant stated to the plaintiff in substance that he, the said Hall, knew the said Beechwood tract was restricted, but that he purchased his lots 77 and 78 on said tract without restrictions, and paid a big price for the privilege of utilizing them as he saw fit. The conveyance of "the lots to Hall was dated April 10, 1891, two months prior to the 10th day of June mentioned in the affidavit.

The affidavit fails to state that the appellant admitted that he knew of the restrictions at the time he purchased his lots. His statement that he purchased his lots without restrictions and paid a large price for the privilege of utilizing them as he saw fit negatives the idea that he could have known of the restrictions at the time he purchased his lots. The affidavit of the appellant read upon his motion to dissolve the injunction states positively that he had no knowledge or information of the alleged restrictions at the time he took his title, and the affidavits of his grantors, Frederick S. Hinges, Gass Williams and Emma H. Williams, .state that the lots were not restricted and that they never informed the appellant of any restriction upon the lots at any time. All the evidence furnished by the respondent to show that he or his grantor, Harden, were influenced in their purchase of the lots by any promises of their grantors, is contained in the third and fifth subdivisions of the plaintiff’s complaint The statements therein are made upon information and belief, without giving the source of the information and belief. Such statements prove nothing. It it stated in the fifth subdivision of the complaint that at the time plaintiff entered into his contract with Harden for the purchase of the lot, he was informed that the covenants and restrictions had been inserted in all the deeds and contracts made, and that the grantors had promised and agreed to insert the same in .all subsequent deeds and contracts for the sale of lots upon the tract. The complaint fails to state where or from whom he obtained his information. It must be held, we think, that the plaintiff failed to show that he or his grantor was influenced by any promise or agreement of the owners of the land to impose the restrictions upon all the lots to be conveyed. We think the 2")laintiff failed to show facts entitling him to the injunction and that the order appealed from should be reversed, with ten dollars costs and disbursements, and that the motion to dissolve the injunction should be granted, with ten dollars costs of motion.

Dwight, P. J., concurs; Hacombeb, J., dissents.


text:
    Minnie Bonnett, Resp’t, v. Theodore Townsend, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Justice’s court—Undertaking oh .appeal.
    Where the undertaking furnished on appeal from justice’s court was-sufficient at the time it was given, and the appellant has complied with the provisions of the Code in bringing his appeal, the county court has no-power to require another undertaking because of the insolvency or death of the surety.
    Appeal from a judgment of the Niagara county court dismissing an appeal from a judgment of a justice’s court entered in the office of the clerk of that county on the 1st day of June, 1891, and from three orders granted in that action.

      Armstrong & Duclcwitz, for resp’t; Henry M. Davis, for app’lt..
   Lewis, J.

The appellant appealed from a judgment obtained against him by the respondent in a justice’s court to the county court of Niagara county. The judgment appealed from was for-the sum of $115.20 damages. The appellant, in his notice of appeal, asked for a new trial in the county court, and, for the purpose of effecting his appeal, gave the undertaking required by § 3050 of the Code of Civil Procedure. One John Humphrey was the sole surety upon said undertaking. Humphrey thereafter, and in the year 1883, died. The appeal remaining undetermined, the respondent, in the. month of March, 1891, moved the county court for an order requiring the appellant to cause to-be executed and filed a new undertaking with new sureties, and it being made to appear to said court, by affidavits presented on the motion, that the surety Humphrey had died, and that there-was no property within the state of New York belonging to the-estate of the surety, and that the circumstances of the estate had: become so precarious that there was reason to apprehend that the: undertaking was not sufficient for the security of the respondent, Ordered that within thirty days after the service of a copy of the-order upon the appellant’s attorney, the appellant cause to be executed and filed a new undertaking with new and 'sufficient sureties, and that if he fail to give the undertaking as required, his-appeal be dismissed, with costs to the respondent. The appellant', having failed to give the undertaking as required by the order, an order was made on the twenty-fifth day of May dismissing the-appeal, with costs to be taxed, and judgment was thereupon-entered for the amount of the judgment in the justice’s court, with interest, costs and disbursements taxed at $62.72; and the-appellant thereupon appealed from the judgment and said orders, and his contention is that the county court had not the ptiwer to-grant the orders. The appellant, when he appealed, gave a sufficient undertaking; • the justice’s return had been filed and the-action was at issue in the appellate court.

The power of a court to require security for the payment of a. judgment and costs is purely a creation of the statute, and authority therefor must be found in the statute,or it does not exist. Republic of Honduras v. Soto, 112 N. Y., 310-313; 20 St. Rep., 749. We are aware of but two sections of the Code of Civil Procedure authorizing the granting of an order requiring the giving of a new undertaking in case of the insolvency of sureties, and they are §§ 1308 and 3276.

Section 1308 lias no application to this case, as it does not apply to appeals from, justices’ court to the county court It is a part of chapter 12, which has relation only to appeals to the court -of appeals, to the supreme court or superior city courts, and to appeals from final determinations in special proceedings. Section 3276 forms part of the title in reference to security for costs in cases referred to in that title and does not apply to appeals to the county court. The case of Elson v. Murray, 27 Hun, 536, has no application here. The decision in that case was placed upon the ground that the appellant in giving an undertaking perpetrated a fraud upon the court She procured her husband to become the surety upon the undertaking, knowing that he was not worth a dollar, and that he had just before signing the undertaking testified on proceedings supjilomental to execution that he had no property of any kind. The appeal in that case was dismissed upon the theory that the appellant had failed to give the undertaking required by the Code, and hence her appeal was ineffectual. In the case at bar the undertaking furnished by the appellant was .sufficient at the time given. The appellant having complied with the provisions of the Code in bringing this appeal, and the action being at issue in that court, we do not think the court had power to require another undertaking because of the insolvency or death of the surety.

It follows that the judgment and orders appealed from should be reversed, with costs of the appeal

Judgment reversed, with costs.

Dwight, P. J., and Macomber, J., concur.


author: Maynard, J.

text:
    Mary E. Sanger et al., App’lts, v. John C. Merritt, Jr., et al., Ex’rs, et al., Resp’ts.

      (Court of Appeals,

      Filed March 1, 1892.)

    Ejectment—Title—Allotment on Land.
    On. a former appeal in this case the court held that the allotment in 1793 of land to Hartt, plaintiffs predecessor in title, was void as in violation of the act for the prevention of fraud; that there was no evidence that he was one of the proprietors or even a freeman of the town before the allotment, or that the. partition was in accordance with the statute, or that he had taken the necessary possession' of the land claimed to have been allotted. Held, that on the second trial plaintiff failed to make good her title; that the devise to Hartt, plaintiff’s predecessor, by his father, of land of which the latter was not a proprietor, and the production of an instrument, signed by said father and twenty-three others, .not witnessed or acknowledged, in which they recite that they are the subscribers and proprietors of the land in question, did not establish title against defendant.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment dismissing plaintiff’s complaint

      Joseph H. Chócete, for app’lts ; Thomas Young, for resp’ts.

       Affirming 39 St. Rep., 894.

   Maynard, J.

The plaintiff seeks to recover the possession-of 259 acres of pine brush land, in what is" known as the third division of the Baiting Place Purchase, in the town of' Babylon, formerly Huntington, in the county of Suffolk. The-defendant puts the plaintiff’s title in issue and alleges title in himself by adverse possession. Both parties concede that, by virtue of certain royal or colonial grants, the title was originally vested in the town of Huntington in its corporate capacity. The plaintiff claims that in 1793, one John Hartt became seized of the lands, and that by sundry mesne conveyances she has succeeded to his right of possession.

"When the case was before this court upon a former appeal, 120 N. Y., 109; 30 St Rep., 870, it was held that the plaintiff' had failed* to show title in Hartt from the town of Huntington, principally because the allotment of 1793, under which she claimed, was void for want of conformity to the requirements of chap. 44 of the Laws of 1787, entitled “ An act for the prevention of frauds.” It was also held that Hartt’s title could not be supported upon the theory that he was one of the proprietors of the land and that the allotment vested the legal title in him through a partition between the owners, for the-reasons: First. That there was no evidence that he was one of' the proprietors or even a freeman of the town before the allotment. Second. That the so-called partition was not in accordance with the statutes then in force regulating partitions; and,. Third. That the allotment would not operate as a valid paroi partition, unless the allottee had taken exclusive possession of the land under it; of which there was no evidence whatever.

Tested by these rules, it is apparent that the plaintiff failed upon the trial now under review to make good her title, and her complaint was properly dismissed. No such conveyance from the town of Huntington as the statute of frauds required was shown. But the plaintiff insists that title to the tract, of which these lands are a part, was shown to be in John Hartt and others, as tenants in common, and that a valid paroi partition between him and his co-tenants has been established It is. difficult to see, from the proofs in the case, how this contention can be upheld. It is evident that John Hartt was not one of the original proprietors of the town or of these lands, but it is sought, to invest him with all the rights of a proprietor because of a devise to him of some lands in the “ Baiting Place Purchase ” in the will of liis father, Cornelius Hartt, which was made and probated in April or May, 1794. But there is-no evidence that" the-father was one of the proprietors; nothing but a written instrument, dated May 28, 1767, produced from the records of the town clerk’s office, signed and sealed by Cornelius Hartt, and twenty-three others, not witnessed or acknowledged, in which they recite that they are the subscribers and proprietors of a tract of land in the Baiting Place Purchase. These recitals are not evidence of title against the defendant Hardenburgh v. Lakin, 47 N. Y., 109. The same is true of the other instruments upon which plaintiff relies. The defendant is not affected by their contents, as, he is not in privity with the parties who executed them, but is in by virtue of a hostile possession.

The plaintiff also failed to show any such entry upon, and exclusive possession of, the premises in dispute by John Hartt as are necessary to render valid a paroi partition thereof. No act of exclusive ownership or dominion is referred to; no actual possession proven; no claim of title even asserted. All that is shown is a receipt from the surveyor that on November 26, 1793, John Hartt paid sixteen shillings on account of some survey ; but whether of these lands or of others, which appear in the same book, is left to conjecture.

As the record does not disclose any material fact which impairs the force or application of the former decision in this case, the judgment appealed from must be affirmed, with costs.'

All concur.


author: Earl, Ch. J.

text:
    In the Matter of the Probate of the Will of Francis W. Lasak, Deceased.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Will—Probate—When executor cannot withdraw will from probate.
    After the proceedings for the probate of a will are before the surrogate, it is not solely the proceeding of the proponent, and so long as any person cited is before him in support of the will, he has no right upon the motion of any other party arbitrarily to arrest or dismiss the proceeding.
    2. Same—Costs.
    Where such parties cited by the proponent cross-examine the witnesses of the contestant and assume the position of proponents, if they fail in sustaining the will the surrogate can award costs against them!
    3. Same—Evidence.
    A daughter of the deceased was allowed to testify, without objection, to personal transactions and communications with the testator. The surrogate in his rulings recited that objection had been made. Held, that as the said recital wag not at the time challenged as untrue it must now be assumed as trac,_ and that moreover the surrogate had the power in the exercise of his discretion to strike out incompetent evidence even thougli it had been received without objection, where the pecuniary interest of the witness would be promoted by the contest.
    4. Same—Mental capacity.
    The undisputed fact that testator was left by his children in control of a large estate, and that he continued to manage and care for the same in an intelligent and satisfactory manner up to the time of his death, is entitled to great weight upon the question of his mental capacity to execute a will.
    Appeal from judgment of the supreme court, general term, second department, affirming decree of surrogate admitting will and seven codicils to probate.

      Robert Sewell, for app’lts; Edgar M. Johnson, for resp’t

       Affirming 32 St. Rep., 955.

   Earl, Ch. J.

Francis W. Lasak died in Westchester county on the 13th day of February, 1889, a very old man, leaving as his sole heirs and next of kin four daughters, Mrs. Cuthbert, Mrs. Chauvet, Mrs. McKenzie and Mrs. Schermerhom, and one granddaughter, Mrs. Ives. He left a very large estate which he disposed of by a will dated February 11, 1873, and by seven codicils thereto dated successively February 24, 1874; October 7, 1874; February, 1,1878; December 5, 1878; February 18, 1881; October 16, 1882, and April 14, 1884. He gave to Mrs. Cuthbert one-third of his residuary estate absolutely, to Mrs. McKenzie and Mrs. Ohauvet a life estate in one-third, and to Mrs.'Schermerhorn the income of $30,000, during her life, and he appointed John Gr. Wendel executor.

The executor petitioned the surrogate of Westchester county for probate of the will, and all the parties interested were cited. Mrs. Schermerhorn filed objections to the probate, specifying that the will was not properly executed, that the testator was not of sound mind and that the execution of the will was procured by fraud and undue influence. The surrogate after hearing the proofs admitted the will to probate, and his decision has been affirmed at the general term. The contestant has appealed to this court, and here she assails the surrogate’s decree on several grounds, none of which after careful consideration we believe to be well founded.

The surrogate did not err in finding that the testator was mentally competent and free from undue influence at the date of the will and codicils. The will and the successive codicils show a persistent scheme in the mind of the testator for the disposition of his property. For some reason which he deemed adequate, at a time when no one questions his competency, he determined to discriminate against the contestant. He gave her.in his will the. income of but $20,000, which he subsequently in the third codicil increased to the income- of $30,000.

There is no evidence showing any mental or physical failure on the part of the testator at the date of his will. The contestant gave some evidence that subsequently to that date he manifested great eccentricities of character, frequent lapses of memory and some decay of his intellect. That evidence standing alone might have justified the surrogate in refusing probate to some of the codicils. But opposed to that was the evidence of the subscribing witnesses, all men of intelligence, who had known the testator Well for a long time, who testified to the execution of the will and codicils under circumstances which forbid the inference of undue influence or fraud, and their evidence standing alone does not warrant a suspicion even that the testator did not have a sound and disposing mind down to the date of the last codicil. With all the other evidence must be taken the undisputed fact, entitled to great weight, that the testator was left by his children in control of his large estate, and that he continued to manage and care for the same, so far as appears, in an intelligent and satisfactory manner to the time of his death. Under such circumstances the testators competency was at least a question of fact for the surrogate, and his findings having been affirmed at the general term, we have no jurisdiction to interfere with them.

In the surrogate’s-court, upon the return of-the citations, besides the executor and Mrs. Schermerhorn, the three daughters, Mrs. McKenzie, Mrs. Ohauvet and Mrs. Outhbert, also appeared by their respective attorneys. After the subscribing witnesses to the will and all the codicils had been sworn and fully examined on behalf of the proponent, and cross-examined on behalf of the contestant, the counsel for the executor moved the surrogate to dismiss the proceedings for probate of the will and to dismiss him from the proceeding. He gave no reason for the motion, and his reason therefor is not apparent. The counsel for the contestant consented and urged that the motion be granted. The counsel for Mrs. McKenzie and Mrs. Outhbert thén announced that they appeared in support of the will; and counsel for the Children’s Aid Soqiety, a legatee, also announced that he appeared in support of the will The surrogate decided to hold the motion under consideration. The parties who thus became proponents of the will then rested their case, and the counsel for the contestant was directed by the surrogate to proceed with his evidence.

Subsequently the surrogate denied the motion to dismiss the proceeding, and the counsel for the contestant excepted to the ruling, and he now claims that that ruling was erroneous. After the petition was filed with the surrogate and the proper parties had been cited and were before him, he had jurisdiction of the subject matter and of the parties. It was a proceeding in rem to prove the will. All the parties could become actors therein. Code, § 2617. Any of them could contest and produce witnesses in opposition to the probate, and any of them could offer witnesses in support of the will and cross-examine the witnesses called in opposition thereto. In such a case, if all the parties cited, being of full age, should ask that the proceedings be dismissed, no one appearing in support of the will, it would be the duty of the surrogate to dismiss the proceeding. The same result could be produced if all the parties cited should formally admit that the will was not legally executed, or that the testator was incompetent. But so long as any person cited is before the surrogate in support of the will he has no right upon the motion of any other party arbitrarily to arrest or dismiss the proceeding. After the proceeding is once instituted, and the parties cited are before the surrogate, it is not solely the proceeding of the proponent. It is a proceeding in behalf of all the parties interested to prove the will.. If the proponent should die the proceeding would not abate. If he left successors to his interest, they would have to be brought in and be ma<\e parties to the proceeding as persons interested in the estate. If the proponent should refuse to introduce any evidence in support of the will, "any other party could produce and examine the witnesses.

In ordinary actions it is not always the absolute right of a plaintiff to discontinue his action. In all cases where a defendant becomes an actor and is interested in the continuance and trial of the action, as where he sets up a counterclaim or sets up a claim to property which is in litigation and asks in his answer affirmative relief in reference thereto, he may resist the discontinuance of the action, and then it rests in the discretion of the court whether or not the plaintiff shall be permitted to discontinue it. Carleton v. Darcy, 75 N. Y., 375; Matter of Waverly Water Works Co., 85 id., 478. So here it was, at least, in the discretion of the surrogate whether or not he would dismiss the proceeding on the motion of the executor.

The counsel for Mrs. McKenzie and Mrs. Cuthbert cross-examined the witnesses of the contestant, and they assumed the position of proponents of the will, and if they had failed in sustaining the will the surrogate could have awarded costs against their clients, who were the adversaries of the contestant

After motion to dismiss was made on behalf of the executor, Mrs. Chauvet appeared as a contestant. Mrs. Ives, the granddaughter, also appeared as a contestant, and she called Mrs. Chauvet as a witness in opposition to the will. Mrs. Chauvet was sworn as a witness and gave evidence, bearing upon the contest, of personal transactions and communications with the testator. After she had given considerable evidence the counsel who supported the will made a motion to strike out her evidence, and the surrogate made the following ruling, as entered in his minutes: “ Objections heretofore made by counsel for the proponents to the testimony of the witness Mrs. Chauvet, so far as the same relates, to personal transactions or communications between the witness and the late Francis W. Lasak, are sustained, and so much of the testimony of the witness as relates to such personal transactions or communications is hereby ordered, upon motion of counsel of the proponents, stricken out.” To this ruling the contestants excepted. Mrs. Chauvet then withdrew as a contestant and also withdrew her appearance, and the surrogate still ruled that she was not competent to testify to any personal transactions or communications between her and the testator. It is claimed that the surrogate had no right to strike out evidence which- had been received without objection. While the record of Mrs. Chauvet’s evidence which was stricken out shows no objection thereto, the surrogate in his ruling recites that objections thereto had been made, and this recital was riot at the time challenged as untrue and must now be assumed to be true. But when evidence has upon any trial been received without objection, the trial judge may, in the exercise of his discretion, subsequently strike it out if it was incompetent when received. The discretion in such a case must be so exercised as not to mislead or place at a disadvantage the party who gave the evidence. Mrs. Chauvet was incompetent under § 829 of the Code to give evidence of the personal communications and transactions if her evidence was in her own interest; that is, if it was for her interest to defeat the will and thus cause the intestacy of her father.

Under the will she took for life the net income of one-third of the residuary estate. In case of intestacy she would take absolutely one-fifth part of her father’s whole estate. No proof was given before the surrogate to show which was of the most pecuniary value, the income of the one-third or the absolute ownership of the one-fifth. It does not appear how old she was, but from the extreme age of her father we may suppose that she had reached, at least, middle life, and as she was before the surrogate he could see about how old she was. From, the fact that she at first appeared as a contestant, and at all times appeared to desire the defeat of the will, shows that she thought that her pecuniary interests would be promoted by defeating probate. Under such circumstances we ought to assume, as the surrogate undoubtedly did, that the absolute ownership of -the one-fifth was of greater pecuniary value than the net income of the one-third, and that her pecuniary interests would promoted by the success of the contest before the surrogate; and hence the ruling of the surrogate was right.

The -other allegations of the appellant against the decree of the surrogate need no particular attention here, as it is very clear that they point out no error.

The judgment should be affirmed, with costs in this court against the appellant personally.

All concur.


author: Peckham, J.

text:
    Charles G. Pease, Ex’r, App’lt, v. Clara M. Egan, Individually, and as Ex’rx, Resp’t.

      (Court of Appeals,

      Filed March 1, 1892.)

    Mortgage—Subrogation.
    E. devised kis real and personal estate to his executors in trust to receive the income of the real estate and to pay one-third to his wife during life, and to apply the remaining two-thirds, less an annuity, to the maintenance and education of his children in equal shares, and to invest the surplus of the personal estate and accumulate the income and pay over to them the entire personal estate on their attaining their majority. Upon the death of his wife and the majority of the youngest child the executors were to sell the real estate and divide the proceeds equally among the children or their issue, or if they left no issue to the survivors. A mortgage of $18,-000 was paid off by the widow with the consent of the children, then of age, out of the personal property left by the testator, and she subsequently filedyn account with the surrogate setting forth such payment and asking credit for it, the children consenting to the account. Plaintiff’s testatrix, one of the children, married and died without issue, during the lifetime of the widow, giving all her property to plaintiff, her husband and executor. In an action by him. to be subrogated to the rights of the mortgagee and to have it satisfied out of the real estate; Held, that the daughter did not act as a mere volunteer in thus assenting to the payment of the mortgage, but did so to preserve the estate,which would have been sacrificed if it had then been foreclosed, and that plaintiff was entitled to the relief asked to the extent of one-half of the amount paid, providing the premises sell for twice the amount claimed.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon decision of special term dismissing complaint.
    John Egan, a resident of the city of Hew York, died on the first day of May, 1875, leaving him surviving his widow Clara M. Egan, one of the defendants herein, and two children, Clara E. and William Gr. Egan. He left a will which was duly-admitted to probate and letters testamentary issued thereon to the widow. At the time of his decease he was the owner of a house and lot in the city of New York, which was subject to a mortgage made by the testator and his wife to secure the- payment of $18,000. The mortgage became due on the 23d day of April, 1877. The son of the testator was born in 1851, and the daughter in 1855, and hence were at the time of the death of their father twenty-four and twenty years of age respectively, and when the mortgage became due both had attained their majority.
    By the terms of the will the real estate of the testator was devised to his executor in trust to rent the same and after the payment of taxes, assessments and necessary repairs and expenses, to pay one-third of the remaining income to the wife of the testator, and to apply the residue to the maintenance and education of his children (after deducting a small annuity to be paid his sister), until the youngest should attain the age of twenty-one and until the real estate should be sold as thereinafter directed. If there were a surplus of this portion of the income from the real estate arising during the minority of his children after their support and education were provided for, it was t,o be invested and accumulated for them and paid to them upon their reaching the age of twenty-one, together with all the personal property owned by the testator and not included in a small bequest to his wife. Upon the death of his wife and the attainment by his youngest child of the age of twenty-one years, the executors weré directed to sell and convey the real estate and give the proceeds equally to his children. If all his children attained the age of twenty-one years before the death of his wife, his executors were invested with power to sell the real estate before her death, provided she should consent thereto and she and her children should make some satisfactory arrangement securing to her the payment of an annuity equal in value to the portion of the rents and income of the realty already directed to be paid her in lieu of dower.
    If any of his children died before the time appointed for the sale and distribution of his real estate and should have legal issue, such issue was to take its parent’s share.
    If any child died without issue during his wife’s life or before the sale and distribution of ■ his' estate should have been made, and should leave a brother or sister or the issue of a brother or sister surviving him or her, then such share of the child so dying was to go to the surviving brother or sister' and the issue of any deceased brother or sister.
    These are all the provisions of the will which are material here. When the mortgage became due, in May, 1877, the widow with the consent of both children applied $18,000 of the personal property left by the testator to ‘the payment of the mortgage, which was thereupon satisfied of record.
    Subsequent to the payment of the mortgage the widow filed an account of her proceedings as executrix with the surrogate, which contained a statement of the payment of the mortgage with the personal estate to the extent of the $18,000, and she asked credit therefor in her account. The son and daughter consented to the passing of the account and signed a written consent and waiver of further notice. After the decree of th'e surrogate establishing such account, the daughter married the plaintiff and then made a motion to open the decree, which was denied. The court found there was no evidence that the daughter did not consent to the decree with full knowledge of the contents of her father’s will in regard to her interest in his estate. The daughter subsequently died without issue, leaving a will by which she gave all her property to the plaintiff, her husband, and named him. executor. The will was duly proved, and letters testamentary issued thereon to the plaintiff. At the time of the daughter’s death she left her brother surviving her. The plaintiff, after the death of his wife, commenced this action against the widow and the son of the testator Egan, and asked that the original mortgage for $18,000 upon the premises owned by the testator at the time of his death might be foreclosed and the premises sold and the moneys arising from such sale might be brought into court and the plaintiff paid thereout the sum of $9,000 and interest from May 1, 1888. The •plaintiff in effect asked to be subrogated to the right of the original mortgagee before^ the payment of the mortgage, which in equity should be regarded as assigned to him as executor of his wife by the mortgagee.
    After the commencement of this action the son died leaving a widow and one child. He left a will of which his widow was named executrix, and the same was-proved and letters duly issued thereon to her. The child was an infant under the age of fourteen years. Upon supplemental complaint the son’s widow and his child were made parties to the action and they came in and defended the same, the infant by her guardian ad liiem, who submitted her rights and interests to the protection of the court.

      Richard, L. Rweezy, for app’lt; Amasa A. Redfield, for resp’t

       Reversing 39 St. Rep., 528.

   Peckham, J.

The plaintiff’s complaint has been dismissed in the courts below for the reason, as stated, that no case for subrogation had been made out,, although the special and general terms arrived at this result by" different, and to some extent opposing views as to the construction of the testator’s will.' Wo think the construction adopted by the general term is the true one. The children under this will took an absolute title to the personal property of the testator (excepting a small portion bequeathed to the widow), upon their reaching the age of twenty-one years. This was not the case with the real estate. After the children arrived at the age of twenty-one years, the trustee was authorized to sell, provided the widow consented and an arrangement could be agreed upon respecting the payment of an annuity. This worked no equitable conversion of realty into personalty until an actual sale took place. Hone did take place. The title to the real estate remained in the trustee until it should -be sold, and if a child died without issue before the death of the mother and before any sale, the share which would otherwise have gone to such child or its issue upon the mother’s death and the subsequent sale and distribution of the proceeds of the real estate, went to the surviving brother or sister.

The sister did die in the life-time of the mother, without issue and before .any sale or distribution of the proceeds of the real estate. The share of the sister in such realty, or its proceeds, upon her death without issue, passed to her brother by virtue of the will of the testator. Upon these facts the rights of the parties must be determined. At the time when the mortgage for $18,000 was paid by the widow and executrix from the personal estate left by the testator, the son and daughter, having arrived at the age of twenty-one years, were the absolute owners of that estate. The money was taken from that estate by their mother, the executrix, with their knowledge and consent, and for the purpose of paying the mortgage on the real property. It is a fact that was admitted upon the trial of the action that the condition of the real estate market in 1877 (the time when the mortgage was paid), was such that real property could not be disposed of except at great loss. In the answer of the adult defendants it was admitted that it was represented to the daughter, before the mortgage was paid, that it was necessary to pay the same in order to preserve the property covered thereby, and that it was necessary and to the advantage of all parties interested that the mortgage should be paid out of the personal estate of the testator, as in no other way could funds for such, purpose be obtained.

Inasmuch as there was an infant "defendant who could make no admissions, the general term thought the facts thus admitted by the adult defendants could not be regarded for any purpose in the consideration of the case. Assuming this to be correct, we still have the fact that the mortgage was due, and, from the terms of the will, it is apparent there were no funds provided thereby from which to pay it The condition of the real estate market was then such that real property could not be disposed of except at great loss. The interest of both children in the personal estate' was that of absolute 'ownership, while at the same time each had but a contingent interest in the real estate.

It is plain enough from these facts, as we think, that there was a necessity of raising money to pay this mortgage and that there were no funds for this purpose unless they were to come from the personal estate left by the testator. It is, therefore, true that a necessity existed to preserve the estate upon which the mortgage was a lien and that the only way of doing it was the way which was pursued. The burden of paying this mortgage was by the terms of our statute laid upon the devisee of the realty. 1 B. S., 749, § 4. Whether the daughter was the devisee of a portion of the realty (or its proceeds as representing the realty), was not certain at the timé when the payment of the mortgage was to be made. If she lived she would at some future time be entitled to a half of the realty or its proceeds, but no one could say she was when the money was paid entitled as devisee, for she was not. When she paid her share it could not be said she was paying her own debt in her character of devisee of the property mortgaged. She might or she might not be such devisee. Yet notwithstanding this conditional state of affairs it is still claimed that the devisees of the realty and the legatees of the personalty are the same, and hence when the personal estate was taken to pay the mortgage it was only the taking from one fund instead of another, .both of which, were owned by the same individuals, and for the jpurpose of paying a debt for the payment of which, so far as funds came to their hands from the testator, both were equally bound. This argument overlooks the contingent nature of the devise, and, therefore, overlooks the fact that neither child could at that time have been described as a devisee. The estate had vested in neither. Although it was but a contingent interest, yet each ■child had the right to protect it. When an incumbrance upon the realty became due and there was danger of a sacrifice or destruction of the estate by a sale thereof under the mortgage, each had the right to devote his or her property to the payment of the mortgage and the preservation of an estate which at the time .neither owned, but which might become theirs at some future time. A payment by either child at such a time, or an equal pay.ment by both, must be regarded as having been made with respect to the conditional character of the interest each had and with a right to be placed in the position of the original creditor when it .appeared that the payment of either had been made for the preservation of an estate or an interest therein which never could be his or hers.

We can regard the consent of the son and daughter to the use of "this personal property by the mother for the purpose of the payment of the mortgage as of no more materiality than the voluntary use of their own property by the son and daughter for the purpose of making such payment.

If a voluntary payment under the facts of this case would be no bar to the maintenance of this action, we see nothing constituting a defense in the fact that the daughter consented to such use by the mother. Of course the consent thus given operated as a justification to the mother to use the personal estate for the payment of the mortgage, and no attempt is now made to undo the consequences of such consent so far as she. is concerned. The decree of the surrogate, founded upon that consent, is a perfect bar "to any proceedings against the mother by reason of her use of chis property. Upon the question involved in this case, she must be considered as the agent of the daughter, applying the property of the latter, with her consent, to the payment of this mortgage, and making this application for the purpose of thereby protecting a contingent interest of the daughter in the property and saving it .from destruction. In this view it may be conceded the daughter .had perfect knowledge of the contents of her father’s will at the time she consented to this application of the personal estate to the payment of the mortgage, and it may be conceded she knew she •had only a contingent interest in the real estate incumbered.

We think, upon these facts, this action can be maintained. I -do not think the daughter occupied the position of a mere volunteer in thus assenting to the payment of this mortgage, fori think there is proof enough in this record of a necessity for her intervention for the preservation of the estate by means of the payment of such mortgage or some part thereof. She could not, of course, tell at the time of the payment whether her contingent would ever ripen into an absolute interest in the realty or its proceeds, but she certainly was not compelled to take the risk of either allowing a sale and consequent loss of the property under this incumbrance, or of paying a portion or all of it and losing it all upon the happening of the contingency which would terminate her interest. No rule of law would compel such an alternative. If not, then it seems to me the law would clearly imply a condition attendant upon her payment of the incumbrance or any part thereof, that in case it should turn out she had no interest in the property thus incumbered, she should have as a security for the repayment of her money the mortgage which she paid, at least to the extent necessary to enable her to obtain such repayment. The fact that in this particular case the contingency did not occur until the death of the daughter does not make any difference with the rule. The contingency might have been founded upon any other future event The estate of the daughter is as much entitled to the right as the daughter would have been had her contingent interest 'terminated upon the happening of some event other than her death at a certain time.

Every principle of equity would seem to call for the enforcement of this right in this case. One-half of the mortgage upon the real estate, in which, as it turns out, the daughter had no interest, has been paid with the property of the daughter, and the real estate, freed from this incumbrance, partly by means of the appropriation of the daughter’s property to pay the same, goes to the son and his heirs, and if this right of subrogation is not. recognized they may enjoy the fruits of property, a large portion of which was purchased and paid for with the money of another. As the facts have actually happened, the daughter was not responsible for the payment of any portion of the mortgage, and yet she paid one-half of it I think the principles to be extracted from the adjudged cases are sufficiently broad and explicit to permit and demand this right No contract is necessary upon which to base the right, for it is founded upon principles of equity and benevolence and may be decreed where no contract exists. Cottrell's Appeal, 23 Penn. St., 294.

The daughter, in fact, has' discharged a debt against another, and in the discharge did not act as a mere volunteer. This gives a right of subrogation. Id. The fact that if she had had an absolute interest in the property as devisee she would have been bound to pay the mortgage to the exoneration of the testator’s personal 'estate, does not make the mortgage debt her own. Whether she had any interest in its payment was based upon whether she was a devisee of the realty, and that was based upon a contingency which had not yet occurred; and when she paid the mortgage, or' some part thereof, she took the chance of paying a debt for which she was not responsible in order to' preserve an estate,-her interest in which was contingent. When the contingency' subsequently occurred which proved that she had no interest in the property which she had aided in preserving, justice demanded that her estate, which has thus suffered, should be treated as if it had paid the debt of another.

It was said by Chief Justice Marshall that equity would clothe the party thus paying with the legal garb with which the contract he has discharged was invested, and it would substitute the party paying, to every equitable interest and purpose, in the place ■of the creditor whose debt he has discharged. Lidderdale's Ex’rs v. Robinsons Adm'r, 2 Brock., 159, 168. This was said in relation to a surety in the particular case reported, but the principle is entirely applicable to a case like this.

In Cole v. Malcolm, 66 N. Y., 363, the doctrine was laid down by Earl, J., that the right of subrogation applies where a party is compelled to pay the debt of a third person to protect his own rights, or to save his own property.

I think precisely the same principle applies if, instead of the property being his own absolutely, there is a contingency upon which it may be his, and he desires to protect it and therefore pays the debt.

- The cases of Gans v. Thieme, 93 N.Y., 225, and Arnold v. Green, 116 id., 566; 27 St. Rep., 724, while not particularly in point here, are yet evidences of the rule that no contract need subsist upon which to base the right of subrogation and that"it is a remedy which equity seizes upon in order to accomplish what is just and fair as between the parties, where the party seeking the aid of the ■court and the benefit of the rule has been no mere volunteer and where his action is based upon general equitable rules which it is the particular province of a court of equity to .enforce. We think therefore that the plaintiff should succeed in his claim for subrogation to the rights of the mortgagee. As to the right of the plaintiff to recover the amount of the payment of $9,000, with interest, as prayed for, such right must depend upon the amount for which the mortgaged premises shall sell at the foreclosure sale to be decreed. It must be remembered that when the mortgage was paid the brother and sister •contributed each one-half of the amount necessary to pay it and that both of them then had but the same contingent interest in the realty or its proceeds. If the sale under the foreclosure should not realize enough to repay the advances each made, treating them as creditors, then each must abate pro rata. The result of this would be that in order to permit the plaintiff to recover the full amount paid and interest as asked for, the premises must sell for twice that sum, and otherwise the pro rata ■deduction must be made. This is fair and.equitable and as the plaintiff comes into a court of equity and asks relief, he must submit himself to one of the plainest principles in that court, and if- he seek equity he must do equity.

We think the judgment of the general and special terms must be reversed, and a new trial granted, with costs to ábide the event,

All concur, except Maynard, J., absent


author: Andrews, J.

text:
    Clara A. Lamb et al., Respt’s, v. Mary C. Forsyth et al., Applt’s.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Will—Residuary clause—What passes under.
    The "will of a testator devised a life estate in real property to his "wife,. “ and the remainder in fee * * * • to certain of my descendants as. hereinafter mentioned.” Two of the lots he gave to his daughter Sarah, for life, and in case she married and had children, to her descendants.. She married, and died childless, prior to the death of testator’s widow. Held, that testator did not die intestate as to these lots, hut that the same-fell into the residuary estate of testator, and passed under a general residuary clause ofhis will; although the word “ devise ” was not used in said 'clause, and although the clause apparently related only to the division of" certain personal property, yet there was no clear indication that the testator intended to limit the residuary clause to personal property.
    2. Same—Surplus.
    The fact that the word “ surplus ” has a more appropriate application to ■ personal property or money is not decisive against construing it as including real estate also.
    - Appeal from judgment of the supreme court, general term,, first department, affirming interlocutory judgment rendered upon, the report of a referee.

      William B. Hill, for app’lts; George F. Martens and Alfred 71 Thacher, for resp’ts.

       Affirming 37 St. Rep., 699.

   Andrews, J.

Anthony Lamb, a resident of the city of New York, died in May, 1855, leaving a widow and five children surviving him and the issue of four daughters who had died before him. He left a large real and personal estate. By his will he devised specifically each part of his real estate and bequeathed various legacies and annuities.

By the second clause of his will he gave to his wife a life estate-in certain lots in the city of New York, and following the gift of the life estate are the words: “And the remainder in fee I-give; and devise to certain of my descendants as hereinafter mentioned.”' By the sixteenth clause he disposed of the lands wherein a life-estate was given to his wife, to fo’ur of his children, as follows r; Two of the lots to his son John in fee simple, two to his daughter Agnes Richards for life, and at her death to her descendants then living, and two to his daughter Sarah (then forty years of age and unmarried) for life, and the remainder as follows: “And should she marry and have children I give and devise said lots at her decease to her descendants thtin living, if more than one, to be divided among them in the same manner as if she had died seized of the same, intestate, but if only one, then the whole to such only-descendant.”

The daughter Sarah married after the death of the testator and died September 3, 1886, childless. The widow of the testator-died" in October, 1889. ^

This controversy relates to the lands devised to Sarah in the sixteenth clause of the will. It is claimed on the part of the appellants that upon her death without issue the lots descended, to the heirs-at-law of the testator as in case of intestacy, subject-to the life estate of the testator’s widow.

It-is claimed on the part of the respondent that on the death of Sarah the fee of the lands passed under the twenty-third clause of' the will to the testator’s sons John, George and Anthony, and his daughter Agnes, as a part of his residuary estate. The construction of this clause is the only point in controversy, that is to say, whether the residuary clause relates to personalty only, or includes as well lapsed devises and any interests in realty not effectually disposed of in other parts of the will.

The devises and legacies are contained in the clauses of the will preceding the twenty-second. In some cases the devises to his-children and grandchildren are in fee. But the general scheme of the testator was to create a life estate in the first taker, with remainder to his descendants living at his death. The devise to his son John of a lot on Pearl street in the third clause; to his son George of lots on Third and Fourth streets in the fourth clause ; the devise in trust for the benefit of his son Anthony in the seventh clause; to the children of his deceased daughter Matilda-in the eighth clause, and the devises in the sixteenth clause to his-daughters Agnes and Sarah already mentioned were framed on this principle. All the living children were married and had issue at the' death of the testator, excepting the daughter Sarah and the son Anthony. In all devises of the character referred to, the final vesting of the fee under the will depended upon the contingency of the life tenant leaving descendants surviving him at his death. In the event of the death of any life tenant without, leaving issue or descendants, the fee was undisposed of unless it passed under the residuary clause. The scope of the residuary clause is, as we have said, the turning point in the case.

The twenty-second clause of the will commences as follows: “ Twenty-secondly. Of the rest, residue and remainder of my estate I give and .bequeath,” etc., and then follow bequests of sundry-pecuniary legacies to children and grandchildren.

The twenty-third clause is as follows: “Twenty-thirdly. If the said rest, residue and remainder of my estate shall not be sufficient to pay all the above-named legacies contained in the twenty-second clause of this my will, they are each to be reduced proportionately, according to the amount of such remainder. This reduction, however, is not to apply to the legacies granted by any other parts or clauses of this my will. If after the payment of all these legacies there should remain a surplus undisposed of, I do give and bequeath the same unto my sons John, George and Anthony, and to my daughter Agnes Richards, to be equally divided between them. .

The construction of residuary clauses in wills has been frequently before the courts. ■ Inhere the language is free from obscurity, then, of course, there is no difficulty. The intention of the testator is to be followed if the actual intention is discoverable-from the language employed. There is no rule of law which pre■vents a testator from restricting the operation of a residuary clause to a particular or specific residue. He may make the residuary clause general and comprehensive, so that it shall carry any residue, whether of personalty, or realty, or both, or he may confine its operation to property of a particular class or to a particular interest. But where the language of a residuary clause is ambiguous, the leaning of the courts is in favor of a broad rather than a restricted construction. It prevents intestacy, which it is reason7 able to suppose testators do not contemplate, and if the mind is left in doubt upon the whole will as to the actual testamentary intention, a broad rather than a strict construction seems more likely to meet the testamentary purpose, because such a clause is usually inserted to provide for contingencies or lapses and to cover whatever is left after satisfying specific and special purposes of the testator manifested in the other clauses of his will.

The court in Floyd v. Carow, 88 N. Y., 560, in considering the construction of a residuary clause in a will, said: “ The intention of the testator to restrict the operation of the residuary clause cannot be deduced from the mere absence of words in the will denoting that a particular interest or estate upon which the residuary clause is claimed to operate was in the contemplation of the testator when the will was made, or from the fact that the reversion was a mere expectancy dependent upon the failure of issue or other improbable contingency. A general residuary devise carries every real interest, whether known or unknown, immediate or remote, unless it is manifestly excluded. The intention to include is presumed, and an intention to exclude must appear from other parts of the will, or the residuary devisee will take.”

And in Riker v. Cornwell, 113 N. Y., 115; 22 St. Rep. 151, Gray, J., said : “I think the doctrine is firmly established by the reports of eases and the text books, that where the residuary bequest is not circumscribed by clear expressions in the instrument, and the title of the residuary legatee is not narrowed by words of special and of unmistakable import, he will takewhateyer may fall into the residue by lapse, invalid disposition or other accident” The contention here is that the residuary clause is not general but special, and refers to personalty only, and that the perusal of the will shows an intelligent use of appropriate .legal language throughout the instrument, and it is insisted that the language of the residuary, clause should, therefore, have a strict construction and that words therein should be deemed to have been used in their exact legal sense. The will indicates that it was drawn by a competent and experienced draftsman. The words “ I give and devise are used in all cases (except one) where the will disposes specifically of real property, and the words “ I give and bequeath ” in dispositions of personalty, and the use of these phrases are frequent In the. gift of life estates to the testator’s wife the words are “ I give and bequeath,” which is the exception. „ The inappropriate use of the words “ devise ” or “ bequeath" is not generally a very material circumstance, as they are often used indifferently in wills. O'Toole v. Browne, 3 El. & Bl., 572; Allen v. White, 97 Mass., 504. But their accurate and discriminating' use in a will containing many provisions has doubtless some significance. But-the intention of the testator to dispose of all his estate by his will is quite manifest. In respect to the lands embraced in the second clause, already adverted to, he first carves out a life estate in several pieces of property for his wife, and then says, “ the remainder in fee I give and devise to certain of my descendants, as hereinafter mentioned.”

By the sixteenth clause, remainders in these parcels are given as above stated. The remainder to the children of Sarah was contingent upon her marriage and the birth and survival of issue, . and in the event, unless the fee passed by the residuary clause, it did not pass under the will. It is possible that the testator did . not contemplate that the remainder would fail for want of issue-of his children. But this would not prevent their inclusion in the residue, if the words of the residuary clause are broad enough to comprehend them. The words are not to be narrowed upon the suggestion, although plausible, that the testator did not anticipate that any of his devises would lapse.

The - learned counsel for the appellant in his argument places-great stress upon the word “ surplus ” in the 23d clause. The language of the residuary gift, “if after the payment of these legacies there should remain any surplus undisposed of, I give and bequeath the same unto my sons John, George and Anthony, and to my daughter Agnes,”- etc., refers, it is claimed, to a surplus remaining after paying thereout the legacies given in the 22d clause, ascertainable on the settlement of the estate by the executors in the usual course of administration, and has no reference to contingent interests in land, which may fail by the non-happening of the event upon which they are limited.

The word “ surplus in the 23d clause relates to what remains of the “ rest, residue and remainder of my estate,” out of which by the 22d clause the legacies given in that clause are to be paid. The residue mentioned in that clause is of the estate, and the-word estate comprehends all the residue of the property not- otherwise disposed of, real and personal, unless a limited meaning is attached thereto, by the context. O’Toole v. Browne, supra. There are no words in the 22d clause which restrict the residue there mentioned to personal property.

If there had been no personal property out of which the legacies therein given could be paid, they would we think by necessary construction be chargeable upon any real estate undisposed of by the-will, or as to which the disposition of the will should fail. It would seem to follow that if the residue mentioned in the 22d clause comprehended both real and personal property, and they were blended together as the source from which the legacies were to be paid, that the surplus mentioned in the 23d clause was the surplus of the same residue after satisfying the legacies charged thereon, that is to say, any surplus either of real or personal property. The fact that the word “surplus has a more appropriate application to personal property or money, is not decisive against construing it as including real estate also. Byrnes v. Baer, 86 N. Y., 210; Chandler's Appeal, 34 Wisc., 505.

The selection by the testator of four of his living children as his residuary legatees to the exclusion of his daughter Sarah .and the children of his deceased daughters, is consistent with his general purpose and furnishes no ground for a construction limiting the scope of the twenty-third clause. Concededly he designed to give to the selected beneficiaries the residue of his personal estate, which, after paying the legacies given in the twenty-second clause and all charges of administration, amounted to about $45,000. The intention to prefer the four children named in the twenty-third clause is also apparent from the seventh clause ■of the will. By that clause a trust is created for the benefit of. his son Anthony, and he devises to a trustee the equal undivided half of a store and lot on Pearl street, in trust to apply the rents, and profits to the use of Anthony for life, with power to sell in •certain contingencies specified, and on the death of Anthony to sell the lot (if not sold before) and divide the proceeds among the ■children of Anthony or their issue living at his death. Then follows a gift over in these words: “And in case my son shall die without leaving any descendants, then the principal sum shall revert to and form a part of my residuary estate.”

It will be observed that the share of Anthony is given over on his death without leaving descendants, to the four residuary legatees specified in the twenty-third clause. The will shows an intention by the testator not to divide his estate equally among his ■children and the representatives of deceased children. The discrimination is marked throughout the will. It seems that the testator’s son Anthony is still living, but is childless, and it is prob•able that the trust estate will go to the residuary legatees under the disposition in the seventh clause.

The argument that the testator could not have intended to postpone the taking effect of the residuary gift beyond the ordinary period of' administration, and did not embrace devises that might lapse by the death of devisees without issue at a remote period, is entitled to but little weight in view of the provision as to the ■ultimate disposition of Anthony’s share contained in the seventh clause. There is no apparent reason why the testator should intend that the share of Anthony should, in default of issue, pass to the residuary legatees, and not the shares of the other children .in the same contingency. The.design may have been expressed in the case of Anthony with more distinctness than in the ether cases from the fact that having constituted a trust fund it was quite natural that the testator’s attention would be specifically called to its ultimate disposition when the trust should terminate.

We have been impressed in this case with the difficulty which •often attends the search for the intention of a testator. Many of the rules which courts have adopted as guides in ascertaining the intention of testators assume an intention from words, and phrases, where often it is very doubtful whether they were used with any intelligent n'ppreciation of the legal meaning given to them. But these rules have become in many cases rules of property and work out perhaps in the majority of cases results as nearly just as may be. It is better to adhere to them in their integrity than to permit exceptions upon slight grounds.

The rule that in the interpretation of wills residuary clauses are to be given a broad rather than a narrow interpretation, has a stronger foundation in natural reason than have some of the other rules adopted by courts.

In this case we do not think there is found in the will so •clear indication that the testator intended a restricted meaning to "the residuary clause as to justify the court in limiting it to personal property.

This leads to an affirmance of the judgment below.

Judgment affirmed, with costs.

All concur, except Maynard, J., absent


author: Gray, J.

text:
    Robert F. Shepard et al., App’lts, v. The Manhattan Railway Co. et al., Resp’ts.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Railroads—Elevated—Jury—Code Civ. Pro., § 970.
    The amendment to § 970 of the Code by chap. 208, Laws 1891, does not apply to the trial of equitable causes, but merely widens the right to a jury trial in those cases to which the section was previously applicable.
    .3. Same.
    In an action to restrain the maintenance of an elevated railroad, the defendant is not entitled, as matter of right, under such amendment, to a trial by jury of the question of past damages, but the granting of a motion therefor is still a matter of discretion with the trial court.
    (Earl, Ch. J., Peckham and O’Brien, JJ., dissent.)
    Appeal from order of the supreme court, general term, first department, affirming order directing the trial by jury of past or xental damages, unless plaintiff stipulates to waive such damages.

      W. G. Peckham, for app’lts; Julien T. Davies, for resp’ts.
   Gray, J.

This is one of the many actions brought to restrain "the defendants from maintaining and operating their railway in '.front of the complainants’ premises, with an accompanying demand in the complaint for incidental relief by way of past damages. A motion was made by the defendants for an order directing the questions as to the value of property and as to damages which the plaintiffs may be entitled to recover to be distinctly stated for "trial by a jury, pursuant to § 970 of the Code of Civil Procedure. 'The court thereupon made an order which recited that the defendants were “ entitled as a mattes' of right to an order directing "the framing of a question for trial by a jury as to the past or rental damages,” and that no question of the value of property :arose upon the pleadings; and thereupon ordered that the motion -should be granted, unless the plaintiffs- stipulate to waive absolutely all right to recover such past or rental damages, in which •event the defendants’ motion should be denied. Each party appealed; the plaintiffs, because of the requirement of a waiver as a -condition of a denial of the motion, and the defendants, because itheir application was denied as to the value of property.

The general term affirmed the order as made. A construction. of § 970 of the Code, as amended by the legislature in 1891,. (Oliap. 208, Laws of 1891), is involved. As it stood, its provisions were made to apply to a case “ where a party is entitled by the constitution or by express provision of law to a trial by a. jury of one or more issues of fact, in an action not specified in § 968." The amendment of 1891 added to that language these-words, or where one or more questions arise on the pleadings as-to the value of property, or as to the damages which a party may be entitled to recover.” The section was, also, so further amended as to call for an order “ directing all such issues or questions ” to be-stated for jury trial. By such alteration in the reading of the section, caused by the amendment of the legislature, the defendants contend that its provisions are made applicable to such actions-as these and entitle them, as a matter of right, to trial by a jury as to all questions of value, or of recoverable damages. I do not see how we can sustain the court below, without very much misapprehending the effect of the section. Lately, in the Lynch case,, we had occasion to consider the question of the right to the trial by a jury as to past damages, under this section as.it read before-the amendment of 1891. We held that the constitutional guaranty of trial by jury, which was invoked in support of the application there, did not apply. It was there considered, following the old rule, that as the action was one for a court of equity to determine, its jurisdiction continued, beyond its decree upon the equitable cause of action which granted the equitable relief, to assess, in its own discretion, the damages which might appear to have been sustained. As that jurisdiction had existed prior to the adoption of the constitution, the clause preserving inviolate the right of jury trial, as it had existed, did not apply. In this class of actions we have held the cause of action to be single and to constitute a claim for equitable relief.

The question then becomes this; can the section as amended be made to apply now to such purely equitable actions ? In so considering it, we may disregard the question-of constitutionality discussed by counsel. If we fail to find in the amendment of the section that the legislature has deprived the court of any of that equitable jurisdiction which it has always possessed and which, lately, we have recognized as continuing, such discussion becomes needlesss.

I think that this section never did apply to actions of a purely equitable nature, as are these, and that the amendment did not make it applicable. This conclusion seems logical and inevitable upon a careful consideration of its connection with the other-sections, as well as from its reading. • If this section now applies to purely equitable actions and creates a right in the party to have a trial by a jury of questions relating to the amount of damages,, then the power' of the court in equity is materially shorn and in a respect which is -fundamental. -For the verdict which the jury may render would be by the section made conclvsive in the equity action, and thus we would have a proceeding quite different from what was formerly a mode of inquiry to aid and to inform the conscience of the court in proceeding to assess the damages. It, would no longer be permitted to disregard the verdict if against its conscience, and to render a decree contrary to it, but would be ■compelled to accept it Only legal errors could be availed of to ■oppose the verdict In an action upon the equity side of the •court, in which the cause of action is one mainly and primarily for equitable relief, and where the recovery of damages is incidental to the main relief to be granted, shall we hold, in the absence of unmistakable language, that the legislature has deprived the court of that part of its ancient jurisdiction which authorized it to adjudge such incidental relief in damages as it thought proper, or to withhold it? I think it clear that we should not. I do not- think that any of the powers vested in courts under the constitution should be taken away by implication. • Yet .such would be the result if we affirm the orders below. We .should have to imply a legislative intention from the interpolation of the words in the section to take away some of the equity powers heretofore possessed by the court. The amendment does not convey such an intention ex proprio vigore, and to attach to it ■a meaning which would deprive the court of a power so important and which courts of equity jurisdiction have so long possessed, would be contrary to sound principles of statutory construction. To authorize and justify a construction of such destructive tendency we should have language clearly and unmistakably evidencing that as the purpose of the legislative body.

I think, too, that it is unnecessary to hold that the amendment in question has brought about any such result. The section in ■question, as it fairly reads, adds to the cases where trial by a jury ■of one or more issues of fact is a matter of- right, by the constitution or by express provision of law, questions which arise on the pleadings as to value, or as to recoverable damages, and which •are not precisely issues. The questions which arise upon the pleadings in this class of actions, as to the damages the plaintiff should recover, are not questions which either enter into the determination of the right to the equitable relief, or which come up for determination in the alternative, if equitable relief is denied. Allegations of damage from the trespass, or from the invasion of the plaintiff’s rights, are necessary; but the court .is not concerned with the amount in the trial of the cause of action. It looks to them no further than to determine if they are of such substance as to warrant the equitable intervention of the court Hence, it is apparent that a finding by a jury as to the amount of damages in such an action is quite unnecessary. It has no place in the trial*of the issue and could only be proper after an affirmative decision upon the right to the injunction, and in order to assess the damages which may be incidentally awarded.

In the Lynch case we held that the section, as it was, did not require a trial by a jury in these actions, and authority in its amended reading must be found in the mere addition to the cases where the party was' entitled to have issues of fact stated and tried by a jury of other cases in which he might have any questions as to value, or as to the' amount of damage, similarly stated .and tried. Preceding this section is § 968, which requires a trial by jury in certain actions, unless waived or referred, and § 969, whicti provides for the trial by the court of an issue of law in any action, or of an issue of- fact in an action not specified in § 968, or wherein trial by jury is not expressly provided for by law.

Then follows the present section and, taken together with the preceding sections 968 and 969, they comprehend and provide for the mode of trial of all legal actions in which are presented issues of fact and of law. By the amendment of § 970 the legislature confers the further right upon a party to have specific: issues framed for a trial by a jury where questions as to value, or of recoverable damages, arise upon the pleadings; not, however, by an obvious implication from the recital premising the provision of the section, in actions in equity, where the actual and main issue is the right upon the allegations to equitable relief by way of an injunction; but in those actions where such questions-so affect the main issue between the parties as that the cause of action for equitable relief being determined adversely, the court may proceed to grant some legal relief, or to award damages; or where, to a legal claim, an equitable defence is interposed, in which ■ case the court might direct any question, or the issue of fact, to be tried by a jury; or where in an action for specific performance damages for breach of contract are sought. The section would cover all such and other cases which might be imagined. The very next following section (971) seems to recognize the integral right and jurisdiction of a court sitting in equity to dispose-of equitable actions in its own way. It reads that “ in an action where a party is not entitled, as of right, to a trial by jury, the-court may, in its discretion, upon the application of either party, or without that application, direct that one or more questions of fact arising upon the issues be tried by a jury and may cause these questions to be stated, etc.”

Does not that section directly apply to such actions as these and recognize the right of a court of equity and authorize it to-avail itself of the aid of a jury to inform its conscience as to any assessment of damages ? Observe the distinction between § 970, which makes the finding of a jury “ conclusive in the action,” and § 971, which contains no such provision. It seems to me very clear that we cannot give to § 970 the meaning attached to it below, and contended for here, without more or less importing contradiction into the legislative provisions as contained in it and. the following section.

It was formerly the rule, and we reasserted it in the Lynch case;, that in an equity cause trial by a jury is not a matter of right. Section 970 was deemed not to have altered the rule, and § 971 expressly authorizes. the court, in the exercise of its discretion,, to send questions of fact arising upon the issues for a jury trial. Does it not follow, logically, if not irresistibly, that the amendment of § 970 does not apply to the trial of equitable causes, but merely widens the right to a jury trial in those cases to which: the section was previously applicable. It is a conclusion which is the safer, therefore, and the wiser to adopt. I say wiser, because if we adopt the literal reading of the section it might work mischief and delay. A multitude of questions might be raised as to its applicability to cases to which it ought never to be permitted to extend. Such might be cases of equitable accountings ; or where the cause involved a long account, which would be compulsorily referable; or of stockholders’ actions against directors or trustees, to compel them to make good,losses of the corporation alleged to be due to mismanagement; op cases where the amount of the damages is not stated for a recovery, but as a videlicet to allegations of wrong doing: as of trustees, or of corporate directors.

I think, therefore, we must conclude that it was error for the court below to hold that the defendants were entitled, as matter cf right, upon their application under § 970, to an order stating the questions of past damages for trial by a jury, and that the granting of such an order still rests in the sole discretion of the trial court sitting in equity.

The orders appealed from should be wholly reversed and the application under § 970 denied, with costs to the plaintiffs in the action.

Andrews, Finch and Maynard, JJ., concur; Earl, Ch. J., Peckham and O’Brien, JJ., dissent


text:
    Henry M. Livingston, Pl’ff, v. The New York Elevated R. R. Co. et al., Deft’s.

      (Court of Appeals,

      Filed March 1, 1892.)

    Appeal from order of the supreme court, general term, first department, affirming order granting motion for a jury trial.

      Charles Gibson Bennett, for pl’ff; Jiilien T. Davies, for def’ts.
   Gray, J.

For the reasons stated in the opinion in the case of ¿Shepard against these defendants, the orders appealed from .should be wholly reversed and the application under § 970 be denied, with costs to the plaintiff in the action.

Andrews, Finch and Maynard, JJ., concur; Earl, Ch. J., Peckham and O'Brien, JJ., dissent


author: Bookstaver, J.

text:
    Barnet Goldstein, Resp’t, v. Mary H. White et al., App’lts. Barnet Gurewitz, Resp’t, v. Mary H. White et al, App’lts. Hyman Ostrowsky, Resp’t, v. Mary H. White et al., App,lts.

      (New York Common Pleas, General Term,

      Filed January 4, 1892.)

    1. Master and servant—Wages dependent on performance.
    Unless there is a special agreement to the contrary, work, whether measured by the job or by time, must be finished in order that there shall be a right to pay for it.

      % Same—Payment.
    Plaintiff denied having received his wages for the previous week, but defendant’s books, which were unimpeached, showed that he had been. paid up to the Saturday preceding his leaving, although it was the rule to. keep back a week’s wages as security for faithful performance of the work. Held, that the weight of evidence was on the side of defendants, and that a finding for plaintiff should be reversed.
    3. Same—Evidence.
    In an action to recover for piece work, it appeared that defendant had a system of checks which showed the amount of work each workman had on hand, and that the plaintiffs had a large quantity of work on hand the morning they left. Held, error to refuse to admit evidence as to how much they earned weekly, in order to show that such work was not completed when they left.
    Appeals from three separate judgments rendered in the district court of the city of New York for the fifth judicial district

      Julius Levy, for resp’ts; Luden B. Chase, for app’lts.
   Bookstaver, J.

three actions were made returnable at

the same time and all were for wages. The answers were the same in each case, consisting of a general denial and pleading payment and failure of the plaintiff to perform conditions precedent. By consent the three actions were tried as one. Defendants were makers and sellers of women’s clothes, doing business-under the name of White, Howard & Co. Plaintiff Goldstein was employed by them by the week, and sued for pay for a week, a day and a half, amounting in all to $24.50. The other two-plaintiffs were employed by the piece, and sue for work done, amounting in the case of Gurewitz to $46, and in the case of Ostrowsky to $37.

Unless there is a special agreement to the contrary, work, whether measured by the job, Cunningham v. Jones, 20 N. Y., 486; Smith v. Brady, 17 id., 173; Lawrence v. Miller, 86 id., 131, or by time, Waters v. Davies, 55 N. Y. Supr. Ct., 39; 8 St. Rep., 162, must be finished, in order that there shall be a right to. pay for it. In other words, there must be performance or a waiver of conditions precedent before there can be a right to-recovery. Phelan v. Mayor, 119 N. Y., 86; 28 St. Rep., 683; Avery v. Willson, 81 N. Y., 341. The plaintiff Goldstein admits in his testimony that he left in the middle of the week; consequently he could not recover anything for the portion of the week he worked, unless there was a waiver of further performance on .defendant’s part. This was attempted to be shown on plaintiff’s-part by some evidence to the effect that Mrs. White, one of the defendants, discharged them, but the testimony on the defendants’ behalf we think overwhelmingly confutes this, and shows that the real cause of the difficulty was an attempt to force the defendants to pay a disputed claim of another employee by leaving their employ in a body. As to the week’s wages prior to the week he left, it is true he denies having received it, but defendants’ books which weré in no wise impeached show that he was fully paid up to the Saturday preceding his leaving, and that, although it is a rule of the defendants to keep back one week’s wages as security for the faithful performance of the work by those employed by the week. This fact sharply called the attention of defendants’ witnesses to the fact of payment, and we fail to see how they could have testified to the payment without being guilty of both falsifying their employers’ books and committing perjury, neither of which are we willing to impute to them from anything appearing in the return.

The plaintiffs Gurewitz and Ostrowsky both swear that they had fully finished all the work given them' by the defendants before they left on a Tuesday noon. But the defendants had a system of tickets and a method of keeping accounts, by which it could be readily and accurately ascertained what work had been finished each day. Bach night the bookkeeper’s duty was to learn what had been finished by each piece-worker during the day, and write it with the date upon a ticket in the workman’s presence, and it is not probable that any workman would allow any error to pass uncorrected, as on its correctness depended his pay. All the tickets from the date of the last settlement in full with these two plaintiffs were offered in evidence on the trial, as were also the accounts between these parties. In addition to this, every Friday night the bookkeépér got from each piece-worker a list of work then unfinished in their hands. Such a list was made from information furnished by plaintiffs on Friday, April 17th, preceding Tuesday; April 21st, when they all left A comparison of the tickets, the accounts and these lists show that seven garments were unfinished, and in Ostrowsky’s hands, on the morning of Tuesday, the day he left, and that eight unfinished garments were in Grurewitz’ hands. It seems to us quite improbable that all of these garments could have been finished in half a day. Besides, several witnesses on defendants’ behalf positively testify that none of them were finished.

Defendants’ bookkeeper was asked to state what the plaintiffs had earned weekly while in defendants’ employment This was objected to by plaintiffs’ counsel, and the court sustained the objection. • We think this error in view of the extraordinary claim made by the two plaintiffs as to the work they must have done on Tuesday morning. The answer partly given shows that they must have accomplished more than three times the amount of work done in at least one week before, in half a day. Where, as in this case, it is uncertain which party should succeed, it was held in Strawbridge et al. v. Vandenburgh, 32 St. Rep., 493, that the court will reverse for slight errors, and we think that course should be followed in this case.

Judgments reversed and new trial ordered, with costs to appellants to abide the event

Bischoff, J., concurs.