author: Dtkman, J.:

text:
    THE NEW YORK INFANT ASYLUM, Appellant, v. THE BOARD OF SUPERVISORS OF WESTCHESTER COUNTY and Others, Respondents.

      Charitable corporations — when entitled to exemption from, taxation under section 4 of 1 Revised Statutes, 388 — when the collection of a tax will he restrained by a temporary injunction.

    The plaintiff is a charitable corporation created by special acts for the purpose of taking charge of foundlings and other infants, and providing for their support and moral, physical, intellectual and industrial education; and of providing, also, such lying-in wai'ds and such methods of care and guidance as shall tend to prevent the maternal abandonment of homeless infants, and diminish the moral dangers and personal sufferings to which homeless mothers are exposed. It was also authorized to establish and maintain schools. Certain real estate acquired and used by the corporation for the purposes for which it was created was assessed by the town assessor and returned to the board of supervisors. A tax having been levied upon it and a warrant issued to the collector this action was brought to have the assessment vacated and the collection of the tax enjoined. Before an answer was served a temporary injunction was granted restraining tbe collection of tire tax, but the same was subsequently vacated upon the defendants’ application.

      Held, that the purposes for which the plaintiff was created were substantially the same as those for which poor-houses and alms-houses are instituted, and that it was entitled to the exemption from taxation conferred upon the latter by section 4 of 1 Revised Statutes, 388.
    That its property being exempt from taxation was beyond the jurisdiction of the assessing officers, and that the assessment and levy were void.
    That the court erred in vacating the temporary injunction.-
    Appeal by tbe plaintiff from an order made at Special Term vacating and setting aside a temporary injunction order restraining the collection of a tax.

      Clark Bell, for the appellant.

      George W. Hunt, for the respondent.
   Dtkman, J.:

The plaintiff in this action is a charitable corporation organized under a special act of incorporation passed in 1865 and subsequently amended. (Chap. 106, Laws of 1865; chap. 263, Laws of 1872; chap. 90, Laws of 1877.) The object of the corporation is to take charge of foundlings and other infants and provide for their sup port and moral, physical, intellectual and industrial education; also to provide such lying-in wards and methods of care and guidance as shall tend to prevent the maternal abandonment of homeless infants and diminish the moral dangers and personal sufferings to which homeless mothers are exposed. Schools may also be established and maintained by the corporation.

In pursuance of its charter and to perpetuate the objects of its organization the plaintiff has become the owner in fee of about fifty acres of land in the town of Eastchester, Westchester county, on which are buildings and structures suitable for its purposes. Lying-in wards and places for the reception of homeless mothers and infants are provided, and a school-house and school are also maintained, and all the property is devoted to the benevolent and reformatory objects of the institution.

The assessors of the town of Eastchester have assessed this property for the year 1882 on a valuation of $2,500. The assessment-roll was delivered to the supervisor .of the town, who carried the same to the board of supervisors of the county of Westchester. That body levied the tax in pursuance of the assessment, and delivered a warrant for its collection to the receiver of taxes of the town.

The object of this action is to procure the judgment of the court declaring the tax against the property of the plaintiff illegal and void and restraining its collection. A preliminary injunction was obtained, which was vacated on motion, and the appeal from that order brings the case here.

There has been no answer, and all we can now determine is whether the dissolution of the temporary injunction was wise or unwise. Yet we must make some examination of the case in the solution of this question.

The statement made shows that all the property of the plaintiff included in the assessment is lawfully devoted to the care, custody, education and maintenance of destitute mothers and children, which are the same general purposes for which poor-houses and almshouses are instituted, and they are exempt by law from taxation. (1 R. S., 388, § 4.) The incorporation and organization of this asylum was for the same object intended to be fostered by -this exemption of alms-houses and poor-houses, and the same immunity should be secured to it as to them. (Hebrew Orphan Asylum v. The Mayor, 11 Hun, 116.)

If, therefore, this property of the plaintiff was exempt from taxation then it was beyond the jurisdiction of the assessing officers, and the action of the defendants in making the assessment and levying the tax is void and null. The result is that the tax is illegal. (Matter of New York Catholic Protectory, 77 N. Y., 342.)

If, therefore, the tax in question be illegal there is power and authority in the courts to protect the plaintiff against its enforcement. In the assessment and levy of taxes the officers on whom the duty is devolved possess only the authority conferred by statute; and when that power is absent or exceeded, their acts are void. (Nat. Bank of Chemung v. City of Elmira, 53 N. Y., 49.)

The case of the Orphan Asylum, referred to above, was an equitable action to set aside a tax imposed on the plaintiff’s property, and the action was sustained and the plaintiff had the judgment.

. If the position of the plaintiff in this action be finally sustained, then these defendants have no tax and no claim against the property. Tlien their action is a nullity, and their attempt to charge the property is % wrong and an opp2'ession entirely without authority or justification and a plain case is presented for the interposition of a court of equity. The preliminary injunction should be continued pending the litigation.

The order vacating the injunction should be reversed, with costs and disbursements, and the motion to vacate the same denied, with ten dollars costs.

Barnard, P. J., and Pratt, J., concurred.

Order vacating injunction order reversed, with costs and disbursements, and motion to vacate denied, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    In the Matter of the Estate of CATHARINE MARIA MANICE, Deceased.

      Will — in case of inevitable repugnancy the latest beguest prevails — one of several executors who takes no part in the management of the estate is not entitled to share in the commissions — 2 H. 8., 93, sec. 58, as amended by chap. 362 of 1863.
    A testatrix gave and "bequeathed to her son "William “ the china dinner set marked T. Q. M., the bedstead and wardrobe in the second story front room” in her house in Madison avenue, in New York. She then gave and bequeathed to her daughter Caroline her “ mosaic and pearl .pin, also the furniture in my second story front room, namely, bureau, wcvrdrobe, chairs, table, sofa, carpet and curtains.”

      Held, that as the wardrobe was specifically mentioned in each bequest, and as there was no ambiguity in the language employed, there was an invincible repugnancy between the two claims, and that force and effect should for that reason be given to the last bequest to the exclusion of the first.
    Under section 58 of 2 Itevised Statutes, 93, as amended by chapter 362 of the Laws of 1863, providing that “ on the settlement of the account of an executor or administrator the surrogate shall allow him for his services, and if there be more than one shall apportion among them, according to the services rendered by them respectively,” certain commissions, the surrogate has no power to give any portion of the commissions to one of the executors who has taken no part in the management and settlement of the estate.
    Appeal from portions of a decree made by tlie surrogate of Queens county upon the final settlement of tlie accounts o.f the executors of Catharine Maria Manice, deceased.

      Frederick W. Ad'ee, for W. De Forest Manice, individually and as executor, appellant.

      John U. Henshaw, for Caroline A. Grant individually and as executrix, respondent.
   Dykman, J.:

This is an appeal from a portion of the decree of the surrogate of Queens county, on the final accounting of the executors of Catharine Mai’ia Manice, deceased.

The first question has relation to the ownership of a wardrobe specifically bequeathed by the testator. The first part of the will is as follows: “ I give and bequeath to my son William De Forest Manice the china dinner set marked I. F. M., the bedstead and wardrobe in the second story front room * * * in my house in Madison Avenue in the city of New York.” Then follows this clause: “I give and bequeath to my daughter Cai’oline Amelia Grant my mosaic and pearl pin, * * * also the furniture in my second stoxy front room, namely: bureau, wax-drobe, chaii’S, table, sofa, cax’pet, and curtains.”

The wardrobe is thus specifically mentioned in both of these clauses, and there is no ambiguity in the language employed. The wox’ding of the two bequests forbids the inference that the article was bequeathed to the two jointly, and there is an invincible repugnancy between the two clauses, and both cannot stand. Under these circumstances the rule must be applied which gives force and effect to the last clause to the exclusion of the first, (Jar. on Wills, 472.) We are aware that this is considei’ed a desperate remedy, tut we find no reasonable intei’pretation that will.give force and effect to both clauses of this will x-especting the wardrobe.

Our conclusion is, that the decree of the surrogate should be affirmed on this point.

The next question has refei’ence to the commissions of the executors. There were tlix-ee named in the will, William De Forest Manice, a son, and Caroline A. Grant and Fraxices Isabella Smith, two dauglxtex’s of the testatrix. The will was proven June 3, 1878. Letters testamentaxy were issued to the son on the same day and to Mrs. Smith, June 21, 1878. Mrs. Gi’ant did not qualify until March 11, 1879, but she never took any part in the administration of the estate. The statute is this: “ Ou the settlement of the account of an executor or administrator, the surrogate shall allow to him for his services, and if there shall be more than ene, shall apportion among them according to the services rendered by them, respectively, over and above his or their expenses,” commissions at certain rates. (3 R. S. [5th ed.), 179, § 64 [58].) The statute, therefore, furnishes the rule of apportionment and requires the surrogate to apportion the commissions among the executors according to the services rendered by them respectively. No discretion is bestowed on the surrogate, and it seéms to follow necessarily that where no services have been rendered by one of several executors the surrogate can apportion to him no commissions. Such we understand to be the case of Mrs. Grant; she rendered no services and took no part in the settlement of the estate, she cannot therefore receive commissions.

This portion of the surrogate’s decree should, therefore, be reversed and the case sent back to him to apportion the commissions between William De Forest Manice and Frances Isabella Smith.

There should be no costs of this appeal

Present — Barnard, P. J., Dykman and Pratt, JJ.

Surrogate’s decree modified by reversing that part thereof which grants commissions to Mrs. Grant, and the proceedings are remitted to surrogate to apportion commissions between executors Manice and Smith. '


author: Dykman, J".:

text:
    FREDERICK F. MULLER, Respondent, v. ANNIE R. PLATT, Appellant.

      Married woman — is liable for the services of a music teaches' employed by her to instruct her daughters.

      A. married woman is personally liable for tbe value of services rendered by a music teacher, at her request, to her daughters, and for the value of sheet music furnished by him to them while giving them instructions in music.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

      William B. Martin, for the appellant.

      Edward 8. Clinch, for the respondent.
   Dykman, J".:

The defendant is a married. woman and has daughters. She employed the plaintiff, who is a music teacher, to give music lessons to her daughters and furnish them with sheets of music, or sheets on which musical characters were written or printed. He gave the instructions and furnished the sheets, and the amount of the claim is not seriously disputed. This action is brought for the services and the sheets of music, and the plaintiff has a judgment. The action is defended on the ground of the non-liability of the defendant as a married woman.

Married women have been held liable on contracts similar to this. In Tiemeyer v. Turnquist (85 N. Y., 516) the Court of Appeals held a married woman liable for groceries bought on her credit to be consumed by her family, including her husband. In the case of Conlin v. Cantrell (61 N. Y., 217) the same court held a married woman liable on a contract for services of a seamstress to do work for herself and her children.

We think these cases decisive of this and that the judgment should be affirmed, with costs.

Barnard, P. J., concurred; Pratt, J., not sitting.

Judgment affirmed, with costs.


text:
    CATHARINE A. VINCENT, as Administratrix, etc., Respondent, v. THE CITY OF BROOKLYN, Appellant.

      Gity of Brooklyn — liability of, for negligence — extent of the exemption created by section 39 of chapter 63 of 186 J, and section 27 of title 19 of chapter 863 of 1873.
    The provisions (sec. 39 of chap. 63 of 1862 and sec. 27 of tit. 19 of chap. 863 of 1873) exempting the city of Brooklyn from liability in damages for the nonfeasance or misfeasance of the common council, or of any officer of the city appointed by it, do not relieve it from liability for the damages occasioned by the death of a person lawfully in the municipal building, which was caused by an explosion of illuminating gas resulting from the negligence of the keeper of the building.

      FitzpaVrick v. Slocum (89 N. Y., 358) and Hardy v. Oily of Brooklyn (90 N. Y., 435) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The plaintiff’s intestate was hilled by an explosion of gas which occurred in the vault used by the receiver of taxes in the municipal building of the city of Brooklyn. The deceased was standing at the door of the vault waiting for the clerk to .bring therefrom a book which the deceased desired to examine.

      John A. Taylor, for the appellant.

      Jesse Johnson, for the respondent.
   Dykman, J.:

The plaintiff’s intestate received injuries from an explosion of gas in the municipal building of the defendant, which resulted in his death. A verdict went against the city on the trial, and there were special findings which with the general verdict justifies the assumption that the negligence of the building keeper brought about the injury and death of the deceased. The question for us, therefore, is whether from such assumption the city is liable to respond in damages for the negligence. Immunity from liability is claimed for the city under the provisions of chapter 63 of the Laws of 1862, section 39, also section 27, title 19, chapter 863, Laws of 1873, providing that the city of Brooklyn shall not be liable in damages for non-feasance or misfeasance of the common council, -or any officer of the city appointed thereby. This statute was supposed until recently to have the broad scope and effect now claimed for it, and in the case of Gray v. The City of Brooklyn (50 Barb., 365; 2 Abb. Ct. App. Dec., 267) the statute was allowed its full force in exemption of the city.

In the opinion of the Supreme Court it is said: “ The ordinary rule governing principal and agent between natural persons is changed by this restriction and made more favorable as to those municipal corporations in whose charter this provision is contained.”

In the prevailing opinion in the Court of Appeals it is said: “ The object of the legislature is clear, and that was to exonerate the city from liability on account of the omission and misconduct of its officers, and to impose all the legal consequences of their acts directly upon the persons who inight be guilty of such official misconduct.”

These views of the statute have prevailed since its enactment, and actions for rfegligence have not been commenced against the city during its existence. The conclusion of the Court of Appeals in the case cited, however, was not reached without dissent. Two members of that court put forth the opinion that tne statute might be upheld by applying it to cases in which the corporation is sought to be charged for the misfeasance or non-feasance of the officers as its agents, and that it did not follow that there was no liability of the corporation for a failure to perform a duty imposed on it by law.

This exemption statute came again under the consideration of the Court of Appeals in the cases of Fitzpatrick v. Slocum (89 N. Y., 358) and Hardy v. City of Brooklyn (90 id., 435). In neither of these cases was the question involved the same as that now before us, yet the statute came incidentally before the court in both cases, and in the opinion in the first case it is said: “We are of opinion that the exemption created by this section is not so broad as ■claimed,” * * * “ That section does not exempt the city from liability to discharge a duty resting upon it, and which it has not devolved upon any one of its officers.” * * *

The views here expressed are not in conflict with anything decided in the case of Gray v. The City of Brooklyn.” * * * It was not decided that where an absolute duty rests upon the city one who suffers injury from non-performance of that duty cannot, in any case, have his remedy against the city.”

The same views were reiterated by a unanimous court in the Hardy case, and although the cases are not binding on us as authority, because the questions there and here are not identical, yet they do contain such an emphatic and plain statement of the views of the Court of Appeals on the question involved in this case, that we do not feel at liberty to disregard them. The views of that court are plainly in favor of a recovery in this case, and it will be much better for this case to go directly to the Court of Appeals from an affirmance of this judgment.

The judgment should therefore be affirmed, with costs.

Barnard, P. J., concurred; Pratt, J., not sitting.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JETHRO W. WHEELER, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Bailroad company — power of the court to compel it to furnish reasonable travels ing facilities for the residents of places along its route — when such power should not be exercised.

    A peremptory mandamus was awarded in this ease commanding the defendant, a railroad company, to run upon its road from its station in Locust avenue, Queens county, and its station at Long Island city, in the morning and evening, such passenger trains as would, taking into consideration the usual business hours of the day in New York, afford reasonable and necessary railroad facilities to the residents and travelers at Locust station. The company ran one freight train, with a passenger car attached, from ’Long Island City, stopping at Locust station, in the morning, and ran it back to the city in the evening. There were but nine houses at Locust station, and but five persons holding commutation tickets. The receipts at that station fell from $374.69, in 1877, to $198.33 in 1881. The extra expense of maintaining the road-bed for full passenger travel would be about $1,500 a year. Prior to the present arrangement the company ran six or seven trains each way daily, and the average number of passengers from this station each way was less than one a day. Jamaica station, at which all trains stopped, was less than two miles from Locust station.

      Held, that the court erred in awarding the mandamus.

      Qucere, as to the power of the court to control a railroad company in exercising the power of regulating-the time and manner in which passengers and property shall be transferred, conferred upon it by section 9 of subdivision 3 of chapter 133 of 1880, so long as it does not suspend or cease to perform its duties as a common carrier.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury, awarding a peremptory writ of mandcmius compelling the defendant to increase the railroad facilities furnished by it at Locust avenue station.

      Edward E. Sprague, for the appellant.

      Marshall P. Stafford, for the relator.
   Dykman, J.:

This is an appeal from a judgment in favor of the plaintiff awarding a peremptory writ of mandamus commanding the defendant to increase its railroad facilities and run passenger trains over its railroad running between the stations of Jamaica and Springfield via the stations of Locust avenue, in Queens county, and stop the same at Locust avenue in such manner as to furnish reasonable facilities to the public to proceed from said station at Long Island City in the morning, and to return from Long Island City to said station of Locust avenue at night at hours having a reasonable regard to the usual business hours of'the day in the city of New York, and to furnish all necessary and reasonable railroad facilities to the public at Locust avenue station and in traveling thereto and therefrom. ¡

When this judgment was made there was a freight train with a passenger car attached running eastward from Long Island City, stopping at Locust avenue station in the morning and on its return in the evening, but no train from that station in the morning or to it in the evening. The number of houses at that station occupied by persons doing business in New York or Brooklyn in May, 1882, was five, and the number of houses built there since the construction •of the railroad is four. The number of commuters from the station in May, 1882, was five, and the receipts of the road at this station have been gradually diminishing from $274.69, in 1877, to $1.98.23, in 1881. The extra expense for maintaining the road-bed for full passenger travel would be about $1,500. During the sixteen months prior to the change complained of, from six or seven trains ■each way daily to one, the average number of passengers from this station was less than one each way daily. The station at Jamaica ■on this road, where all the trains stop, is about two miles from Locust station, and the relator can take the trains there by going about a mile and a-half.

These are the main facts and it will be seen that the defendant has not abandoned its line of road via Locust avenue station. It operates one train daily each way over this line, and has not abandoned the exercise of its corporate powers and’privileges. No action could be maintained to annul the franchise on the ground of non-user.

Is xhis, therefore, a case where the court should interfere to compel the defendant to impart further facilities to the station in question ? Railroad companies are trading corporations clothed with piublic functions in the sense that their ownership of property is private and their management is for the advantage of the corporation, yet in many essential particulars they differ from ordinary private corporations. Power is conferred on them to invoke the exercise of the right of eminent domain and they are endowed with franchises which they hold in trust for the public good. Their roads are public highways and the land over which they are constructed is condemned for a public use. They, therefore, owe a duty to the public to exercise the franchise granted them by the State.

But, while it is quite true that by the railroad law of the State, all railroads constructed under it are maintained for the public use, and the duty is imposed on them to furnish accommodations for the transportation of all persons and property on payment of fare, yet the law does not prescribe the times or manner of the performance of that obligation. On the contrary the railroad corporations have themselves the power to regulate the times and manner in which .passengers and property shall be transported. (Chap. 133, Laws 1880, sec. 2, subd. 9.) This provision of law vests these corporations with discretion respecting the mode of exercising their franchises, and so long as their operations are not suspended and their duties are not unperformed, the courts should not interfere, especially on the application of a private individual, to regulate the exercise of their discretion; without refusal or neglect to perform the duties of carrier, the courts should not so interfere.

Besides all this, who shall say what accommodations are reasonable. Railroad companies are expected to transport passengers, especially with great speed, and it is not practicable to stop all their trains at all places, or to establish stations to accommodate all persons. Many persons are compelled to go longer distances than this relator to take the cars, and it would be a great hardship to compel the railroad companies to establish and maintain stations and stop their trains to save travel for all in taking their trains. Another very serious question is whether the whole question does not belong in the field of legislation instead of the domain of jurisprudence, but we will not examine or discuss the question now.

Our view is that a case is not presented for the interference of the court, and that the judgment should be reversed, with costs.

Barnard, P. J., concurred; Pratt, J., concurred in the result.

Judgment reversed, with costs.


text:
    MARY ANN ROBERTS, Appellant, v. GEORGE W. DOTY, Respondent.

      Settlement of action — right of parties to do so, against the wishes of their attorney.

    In this action, brought to recover the value of services rendered to the defendant, the latter, after the joinder of issue, paid the plaintiff in full and procured an order at a Special Term discontinuing the action and striking it from the calendar. The plaintiff’s attorney, in his own interest, opposed the motion and appealed from the order.

      Held,, that as there was no evidence to show that the settlement was collusive or made with intent to defraud the attorney, the order was properly made and should he affirmed.
    Appeal from an order made at a Special Term, upon the defendant’s motion, discontinuing the action and striking the case from the calendar.

      W. Fm'rington, for the appellant.

      HaoJeett <& Williams, for the respondent.
   Dykman, J.:

This is an action for the recovery of money for services. After issue joined the defendant settled with the plaintiff and paid her in full, and on an affidavit of that fact moved the court at Special Term for an order discontinuing the action and striking the same from the calendar. That motion was opposed by the attorney for the plaintiff on-his own affidavit and in his own interest, but it was granted and he has appealed from the order.

It has not yet been decided, so far as we know, that the parties to an action cannot settle the same without the consent or intervention of their attorneys, and certainly no principle of justice or public policy can be violated by permitting such settlement. If the attorneys have a lien on the cause of action or counter-claim they may pursue it in a proper way, but it would be an extraordinary exertion of authority for a court to refuse permission to.parties to settle and discontinue actions and escape litigation, merely because their attorney raised objections to such settlement.

It is quite true that the courts have in some cases, both in England and in this country, permitted attorneys to proceed and try the cause for the purpose of collecting their fees _ where their clients made collusive settlements to cheat them. But aside from the objection that such practice is based on no principle, it has been carried quite far enough. It is sufficient here to say that there is no evidence of fraud or collusion in this settlement.

The order appealed from should be affirmed, with costs and disbursements.

Pratt, J., concurred; Barnard, P. J., not sitting.

Order affirmed, with costs and disbursements.


author: Barnard, P. J.:

text:
    ROBERT F. BRUNDAGE, Respondent, v. THE VILLAGE OF PORTCHESTER, Appellant.

      Contract to grade sheets — when the contractor is not chargeable with notice of the want of authority in the milage to make it — right to recover money wrongfully applied by the village to pay an invalid assessment — an action to recover it is barred in six years.

    The plaintiff entered into a contract with the defendant to grade an avenue in the village of Portchester for a sum named. After the completion of the work the defendant insisted upon deducting, and did deduct, against the plaintiff’s obj ection, the amount assessed for benefits resulting from the improvement upon two pieces of property owned by the plaintiff, from the amount due upon the contract and paid the balance due thereon to him, giving him therewith receipts for tlie amounts of the assessments. Subsequently, in actions brought by other persons who were assessed for the said improvements, the assessments were adjudged to be illegal and void upon the ground, among others, that the avenue graded was not a public highway. The balance due upon the plaintiff’s contract was paid to him in 1874. This action Was brought, in 1883, to recover the money so retained by the defendant and to have the assessments upon the plaintiff’s property, so far as thby were paid by such money, vacated and canceled.

      Held, that an action to recover the money so withheld by the defendant might have been brought by the plaintiff, but that this action was barred by the statute of limitations, as it was not brought within six years from the time 'when the plaintiff’s right to recover the money arose.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought to recover an amount which the plaintiff alleged was due to him upon a contract made with the defendant in 1874, which amount the defendant had wrongfully withheld and applied to the payment of certain illegal and invalid assessments imposed upon property belonging to the plaintiff. It was also sought to have the said assessments, to the extent of the money paid, canceled and vacated.

      Isaac N. Mills, for the appellant.

      Wilscni Btowti, Jr., for the respondent.
   Barnard, P. J.:

It was not claimed upon the trial that the assessments for grading Hoseco and Irving avenues were legal and valid assessments. The answer sets up facts going to show that the assessment was illegally imposed, and directly charges that Hoseco avenue was not a public highway and that the defendant had no right to take, any proceedings to grade the same. The judgment of Trage againstthe defendant, of Merritt against the defendant, were read in evidence, showing that the other avenue (Irving) was not a public highway, and that, therefore, any assessment was illegal to grade the same. These judgments were read in evidence without objection, and they established a judicial annulling of the assessments.

The case then becomes a simple one. The village attempted to grade two avenues without right, and impose assessments therefor. Brundage was a contractor to grade one (Hoseco) avenue, and he was assessed as an owner of land. Tlie defendant compelled the plaintiff to pay this assessment and illegally and improperly received his money. Though taken under the formality of law, it was in fact illegal. An action to recover back money illegally collected by a municipality under forms of law lies. (Horn v. Town of New Lots, 83 N. Y., 100.)

There is no distinction between an actual receipt of the money and an application of the amount of the assessment compulsorily and under duress of sale, forced from the plaintiff by means of a deduction from a legal claim. The claim was thereby extinguished if the assessment had' been good. The defendant did have the money by an expenditure for its benefit. The illegality of the assessment cannot be set up as against the contract with the plaintiff. The defendant had a general power over the streets in the village, and it had power to cause the streets to be opened and graded and worked The plaintiff was not bound to see if the particular street or avenue which he contracted to grade was legally opened and the assessment proceedings properly followed (Moore v. The Mayor, 13 N. Y., 238 ; Horn v. Town of New Lots, 83 N. Y., 100.)

Ve think, however, that the plaintiff’s claim is barred by the statute of limitations. The money was paid in 1874. The assessment as such has never been set aside, and tbe plaintiff does not ask to set it aside beyond the payment so made by him. The action is one purely to recover back money paid under duress. That action was barred in six years. (Code Civ. Pro., § 382.) It is the old action of money had and received. The basis is contract. The law implies a promise to pay back money which'the party receiving cannot, in equity and good conscience, retain. The action was perfect at. the instant payment was made. A payment before the tax assessment was reversed, would not have been voluntary. (Bank of the Commonwealth v. The Mayor, 43 N. Y., 184.) The assessment was a judgment, and defense to it was of no avail to defend against it while it was unreversed. The case cited does not hold that a payment made on a void assessment can be recovered beyond six years after the payment was made. The demand that the plaintiff’s ■ assessment be set aside, so far as the money in question paid, does not increase the time in which to bring the action.

The plaintifi’s claim to the money does not depend in any way upon the setting aside of the assessment. If it is in fact illegal, it is a mere cloud upon title which it was proper to remove, but whether it be removed or not, the plaintiff is entitled to the money illegally paid under it.

The judgment should be reversed and a new trial granted, costs to abide event.

Present —Barnard, P. J., and Pratt, J.; Dykman, J., not sitting.

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


author: Barnard, P., J.:

text:
    FREDERIC TAYLOR, Respondent, v. HENRY Y. ATTRILL, Appellant. HARVEY FISK and Others, Respondents, v. HENRY Y. ATTRILL, Appellant, Impleaded with Others. COLLIS P. HUNTINGTON, Respondent, v. HENRY Y. ATTRILL, Appellant, Impleaded with Others.

      Local action — against a director of a company for making a false certificate — the cause of action arises in the county in which the cei'tificate is recorded— 1875, chap. 611.
    This action was brought against a director of a limited liability company, formed under chapter 611 of 1875, to recover a debt due from the corporation upon the ground that the defendant had made and recorded a false certificate to the effect that the capital stock had been paid up in full. The certificate was signed and verified in the county of New York, where the defendant resided, and recorded in Queens county, where the principal place of business of the company was situated.

      Reid, that the cause of action was a local one; that it arose in Queens county and that the action must be there tried. (Pratt, J., dissenting.)
    Appeals from three orders made at Special Term, denying motions of the defendant Henry Y. Attrill to change the place of trial of the above entitled actions from the county of Queens to the county of New York.
    The motions were made upon the ground that the county of Queens was not the proper place of trial. The motions were argued together, the same questions being presented by each. The actions were brought to recover from the defendants certain sums of money «due to the plaintiffs from the Rockaway Beach Improvement Company (limited) as penalties for verifying and recording, as directors •of that company, a false certificate of full paid stock.
    The company was incorporated under chapter 611 of the Laws of 1875, and the certificate, though signed and verified in New York city, where the defendant resided, was recorded, as required by section 37 of said act, -in the office of the clerk of Queens county, that being the county in which the principal business office of said •company was situated.

      John JS. Parsons, for Henry Y. Attrill, appellant.

      Stewart & Boardman, for the respondent.
   Barnard, P., J.:

This action is brought by a creditor against a director of an incorporated company, for the reason that the defendant had made, and caused to be recorded in Queens county, a false certificate that the •capital stock of the company had all been paid in. The company was organized for building and carrying on a hotel in that county. The cause- of action is local, and must be tried in the county where the same or some part thereof arose. ( Veeder v. Baker, 83 N. Y., 156.) The action is given where a false report is “ made.” (Laws of 1875, chap. 611, § 21.)

The same act requires this certificate to be recorded in Queens county. (Sec. 37.) The liability of the director by that section is made absolute for all debts of the company until this certificate is “ made and reporded.” It is then only by the recording that the act is complete which releases the director personally. We think, therefore, that the word “made” in one section, and the words u made and recorded” in the other, intend'no different result. An unrecorded certificate is not made. The cause of action was one •originally in Queens county, and the order must be affirmed, with costs and disbursements.

Dykman, J., concurred; Pratt, L, dissented.

Order refusing to change the place of trial affirmed, with costs and disbursements.


author: Barnard, P. J.: Pratt, J.:

text:
    HOWARD NOTT POTTER and CLARKSON A. POTTER, Respondents, v. COLUMBUS O’DONNELL ISELIN, Appellant.

      Bight of way — when it is appurtenant to land and not an easement in gross— when it is not lost by the failure of one of the grantors to mention it in his deed to his grantee.

    In April, 1853, one Davenport owned a parcel of land in New Rochelle, fronting on Long Island sound. A private road ran through this land called Davenport avenue. In that year he caused a map of the land to be made, dividing it into plots. Upon this map appeared Davenport avenue and an avenue running from the east side of Davenport avenue to the iound, marked “Beach avenue.” He conveyed portions of the land at different times to different persons. In conveying some of the lots on Davenport avenue, which did not abut upon Beach avenue, he conveyed to the grantees, their heirs and assigns, a right of way 100 feet wide over Beach avenue as laid down on the map. The defendant acquired title to some of the lots so conveyed with the said right of way. The plaintiffs subsequently acquired title to the lots abutting upon Beach avenue, and to the avenue itself, from persons acquiring title thereto from Davenport.
    The plaintiffs having brought this action to 'restrain the defendant from exercising his right of way over the said land known as Beach avenue, and to establish the plaintiffs’ title thereto:

      Held, that the right of way acquired by the purchasers from Davenport was not , a right in gross, personal to the grantees, but was an appurtenance to the land and passed to the defendant.
    That the right of the defendant to the said right of way was not affected by the fact .that some of his grantors, acting under the advice of counsel and with the purpose and intent of destroying the right of way, omitted all reference thereto from the deeds by which they conveyed the land to their grantees.
    Appeal from a judgment in favor of the plaintiffs, entered upon tbe trial of this action by the court without a jury.
    This is an action to restrain the defendant from exercising a right of way over a certain strip of land 100 feet wide, extending from Davenport avenue, on Davenport Neck, New Rochelle, east to Long Island Sound (which strip of land is marked as Beach avenue upon the map hereinafter referred to) and to have defendant’s claim to such right of way declared “ a cloud upon the plaintiffs’ tide to the said premises and that the same be adjudged not to exist and to be removed.” The defendant claims a right of way over said Beach avenue by virtue of several mesne conveyances to him hereinafter mentioned.
    Prior to April 1st, 1853, Newberry Davenport was the 'owner of a certain parcel of land on the easterly part of Davenport neck, in the township of New Rochelle, through which ran a private road which he called Davenport avenue, leading from the public road on the mainland to the western part of the neck ; which parcel of land included the land now owned by the plaintiffs and by the defendant respectively, and also the said Beach avenue, the locus in quo. On or about April 1st, 1853, the said Newberry Davenport caused a map of his said land to be made, entitled “ Map of building sites situated on Davenport neck,” upon which map a strip of land one hundred feet wide, extending from the east side of Davenport avenue east to Long Island Sound, i§ marked as “Beach avenue.” By this map (by Davenport avenue as laid down therein) he divided his land into two parts, one having a water front, that on the Potter-Lawton side, and the other on the Iselin side, having no water front.
    This map also divided the farm into plots, and in his subsequent conveyances Newberry Davenport gave to certain purchasers on the side having no water front a right of way over Beach avenue'to the waters of Long Island sound.
    He conveyed the said right of way to them and to their heirs and assigns by the following description : “Also a Tight of way 100 feet wide, extending northeasterly from Davenport avenue along the south boundary line of the lands of George Snyder and Gyrus Law-ton to Long Island sound, which right of way is laid down as Beach avenue, on a map made by "William Bryson, dated April, 1853.”
    The defendant, who is the owner of a portion of the said lands, claims to be entitled to the said right of way. This right is denied by the plaintiffs, who are the owners of the land abutting upon Beach avenue, and of the avenue itself, their title thereto being derived from Newberry Davenport. It appeared that some of the deeds under which the defendant claimed, cbntained a clause conveying the right of way, while others did not. That the clause, was firs^ omitted by a grantor, with the purpose and intent to prevent his grantee from receiving or enjoying the said right of way; he having been advised by his counsel that the said right of way was in gross and personal, and that he could prevent its passage to his grantee, and so destroy and extinguish it.

      Martin J. Keogh, for the appellant.

      John B. W.hitmg, for the respondents.
   Barnard, P. J.:

The right of way conveyed by deed by Davenport to Banks & Yoorhies was not a right in gross and personal to Banks & Yoorhies, but was an appurtenant to the land conveyed by the deed. ' As such it passed to subsequent grantees of the property without any mention of the right of way in the deeds. As to Davenport, by his deed to Banks & Voorhies, Beach avenue was to be an open street forever. The authorities need not accept or work it, and without an acceptance the city, village or town would not be liable for the neglect to work it. As to the grantee and all successors in title, the street was Beach avenue, 100 feet wide from Davenport avenue to the sound.

The judgment should be reversed, with costs, and a new trial granted.

Pratt, J.:

"Where the owner of land lays it out into village lots, intersected by streets and avenues, and sells lots by reference to a map, which he has made and filed, on which such streets are delineated, th map becomes a part of the deed, and the streets on the map become an easement annexed to the estate granted. (Taylor v. Hopper, 62 N. Y., 619.) As between the parties, the dedication becomes complete on the delivery of the deed; and, thereafter, no act of the grantor can diminish the effect of the conveyance. (Id., 650

We think this principle requires the reversal of the judgment. The right of access to the waters of the sound — manifestly of much importance to the owners of lots having no water front — was effectually secured to them by the conveyance, which not only referred to the map, but granted forever a right of way over Beach avenue. v

The right thus created became appurtenant to the land conveyed, and passed with it under subsequent conveyances, though not expressly referred to. Such a right could not be abandoned by parole; the testimony of Lawton upon that point was, therefore, not competent to establish a surrender.

The judgment should be reversed, upon both law and facts, and a new trial ordered, with costs to the appellant.

Judgment reversed, with costs to the appellant.


author: Dykman, J.: Pratt, J.

text:
    HARRIET L. BULKLEY, Appellant, v. PETER STAATS, Executor, etc., of CHARLES CURRY, Deceased, Respondent, Impleaded with Others.

      —when a fund, held by an executor for a child, may be reached by one who Ms a claim, against the child for board and schooling, furnished at the request of the child’s general guardian.

    One Curry died leaving a will by which he gave to his only child, a daughter about eight years old, all his property, with the income and profits thereof. He directed his executor to take charge of his property and rent his real estate until his daughter should come of age, and requested him to provide her with a suitable home and see to her education and pay for the same out of his property, authorizing him to sell the real estate during her minority, and the furniture if he thought it best for the interest of the child. The executor qualified and one Griffin was appointed general guardian for the child. The guardian placed her at the plaintiff’s boarding school, and there is now due to the plaintiff for board, tuition and supplies furnished some $484.

      Held, that the plaintiff could maintain an action against the executor, the general guardian and the infant, to procure a judgment compelling the executor to pay from the funds in his hands belonging to the child such amount as might be necessary to satisfy the plaintiff’s claim. (Pratt, J., dissenting.)
    Appeal from a judgment in favor of the defendant Staats, entered upon the report of a referee.

      Edward 0. Pelavan, for the appellant.

      Elbert P. James, for the respondent.
   Dykman, J.:

Charles Curry died leaving an only daughter named Ella Curry, about eight years of age. He also left a last will and testament by which he gave all his property to this daughter, with the income and profits thereof. By it he also desired his executor, the defendant Peter Staats, to take charge of his property, rent out the real estate, take care of his household furniture and other property until his daughter attained the age of twenty-one years. Then follow these words: And I do request that my said executor shall provide my said child with a suitable home, and see to her education and pay for the same out of my said property, and to sell and convey my real estate- at any time during the minority of my said daughter, and also sell my furniture at any time, if in his judgment it will be for the interest of my said child.”

The will was proved and Staats became the executor, and the defendant Herbert Griffin was appointed the general guardian of the child Ella. He placed her at school with the plaintiff, who is the proprietor of a boarding school, and there is due to her for board, tuition and supplies furnished to the child, $434.68.

This action is brought to procure the application of the money of the child to the payment of the plaintiff’s claim, and there is sufficient for that purpose now in his hands. It is to be noticed that by this will the property is all given to the child absolutely, and then the executor is clothed with a power of sale. Then the executor is requested to take charge of the property, rent the real estate, provide the child with a suitable home, see to her education and pay for the same out of my said property.” So it comes to this: the executor holds property belonging to this child, out of which he is to pay sufficient to provide her with a suitable home and her education. The fund is held in trust for that purpose, and its application can be enforced by the courts. It is quite, immaterial what the action is called which is instituted to enforce this duty resting on the executor. There is but one form of action in this State. (Code Civil Pro., § 3339.) In the administration of justice our courts are untrammeled by distinctions between legal and equitable remedies. They are all abolished, and parties are no longer turned out of court.because they make mistakes in the remedy they pursue. On the contrary, if the case they make entitles them to any remedy, it must be granted where an answer .has been interposed, even in disregard of the prayer for relief. (Emery v. Pease, 20 N. Y., 62.)

.In view of these principles there has been an evident.miscarriage of justice in this case. This is not an action to reach assets and apply them to the payment of a claim. It is an action, to compel the performance of a duty; or, if you please to call it so, an action to enforce and compel the execution of a trust. The contract for the maintenance and education of this child was made by her guardian with the plaintiff, with the knowledge of the executor, and the justice of the claim is manifest and undisputed. The executor has in his hands a fund expressly appropriated by the will to the payment of claims like that of the plaintiff, and the court will compel its application in this ease. A trust has been created by the will for the payment of this and other similar debts, and the courts are bound to take care that the trust is executed. The assets and property of this estate were placed under the jurisdiction of the court by the creation of the trust. (Benson v. Le Roy, 4 Johns. Ch., 650.)

No difficulty will be experienced in entering the proper judgment. It wras proper to make the infant child and her genez’al guardian parties to the action, to the end that they might be afforded an opportunity to dispute and litigate the plaintiff’s claim. Besides, it is the property of the child in the hands of the executor which is sought to be applied to the payment of the claim. The execzztor is a proper party, because he is to be forced to the pcz’forznance of his duty. The jzzdgment will be in form against all the defendants for the amozznt of the plaintiff’s claim, to be paid by the executor out of the funds in his hazzds appropz-iated to that purpose by the will.

The judgment should be z-eversed, the order of z’efez’enee vacated, and a new trial gz’anted at the ciz-cuit, costs to abide the event.

Barnazzd, P. J., concuzTed.

Pratt, J.

(dissenting):

That a meritoz’ious cause of action should be completely proved, no suggestion made of a defense upon the merit, and yet the complaint be dismissed with a double bill of costs, is a reproach to the administz’ation of justice. Whether the plaintiff should have been allowed judgment izi her favor against the guardian in this equitable action, though the cause of action was a legal one, and whether judgment should have gone against the infant defendant, for the reasons furnished, are questions which it will not profit to discuss, as no appeal is taken fz-om the judgment in their favor. As to the defendant executor, we think the complaint was properly dismissed. Under the circumstance of the case it should have been done without costs.

The judgment appealed from should be modified by striking out the costs allowed Peter Staats; and thus modified it should be affirmed, without costs.

Judgment reversed and new trial granted at circuit.


author: Dtkman, J.: Brown, J.: Barnard, P. J.

text:
    IDA I. ROSS, Appellant, v. JOSEPH ROSS, Jr., Respondent.

      Action for divorce — power of the Special Term to review the report of a referee — he can only refuse to confirm it because of fraud or collusion — Code of Civil Procedure, secs. 1128, 1229.
    An action, brought by a wife for an absolute divorce upon the ground of the defendant’s adultery, was sent to a referee to hear and determine. After his report in favor of the wife had been made and filed, but before a judgment had been entered thereon, the court, upon the motion of the defendant, reopened the case and sent it back to the referee for further proof. The order provided that the defendant might introduce any newly discovered evidence, and might re-examine any witness who desired to change his testimony; that he might be examined under oath if he desired, and that the plaintiff might be examined in her own behalf, in case the defendant was examined in his behalf, and that she might introduce evidence in rebuttal, and to sustain and corroborate her evidence, in so far as it was impaired by the newly discovered evidence of the defendant. In pursuance of this order the referee took additional evidence and reported it to the court, but declined to consider it or to make a new report, holding that he had no power to do so. The defendant then moved to have the orders theretofore made so amended as that the court decide the case on all the testimony taken. This motion was denied.
    The plaintiff having moved to have the report of the referee confirmed and for judgment in her favor, the court denied the motion, vacated the order of reference and restored the case to the calendar of the court for trial

      Held, that the court had no power to make the order. (Barnard, P. J., dissenting.)
    Upon an application to confirm the report of a referee in such cases the court at Special Term has no power to examine the case upon'the merits, or reverse the report for errors and irregularities committed upon the tidal. It can only refuse to confirm the report where fraud, collusion or some similar cause be proved.

      Appeal from ai order made at a Special Term denying a motion to confirm the report of a referee and vacating an order of reference and directing that the action be restored to the calendar for trial, and also from an order denying a motion to resettle this order.

      W. A. Beach, for the appellant.

      Winchester Britton, for the respondent
   Dtkman, J.:

This Is an action by a wife against her husband for the procurement of an absolute divorce on the ground of his adultery. The action was, by consent, referred to a referee for hearing and determination, and the cause was tried before him, and he made and filed his report in favor of the plaintiff. After that, and before any motion for confirmation of the report or a judgment thereon, the defendant made a motion to the court to i’eopen the case foi' the purpose of introducing on his behalf additional evidence alleged to have been newly discovered. That motion was granted on condition that the defendant should stipulate in writing to proceed before the same referee to introduce such additional evidence as should have been newly discovered since the referee made his report, and such evidence in rebuttal as might be offered by the plaintiff. Other conditions were also inserted in the order which are immaterial here.

This order was afterwards modified and resettled by an other order for that purpose, by which it was provided that the case be sent back to the same referee for further proof; that the defendant might introduce any newly discovered' evidence and re-examine any witness who desired to change his testimony; that the defendant might be examined under oath if he desired; that the plaintiff might give evidence in rebuttal, and to sustain and corroborate the plaintiff’s evidence in so far as it was impaired by the newly discovered evidence of the defendant, and be examined in her own behalf in case the defendant was so examined in his behalf. Neither of these orders contained any directions to the referee, but there was no appeal from either.

The referee proceeded under the order and took a large mass of testimony under the plaintiff’s objection. He declined to pass on the additional evidence, holding that his only power under the last order was to take it and report it to the court. Then the defendant moved the court to amend the original order of reference, and the order last noticed, so that the court should decide the case on all the testimony taken under both orders. This motion was denied. Thereupon the plaintiff moved, on the referee’s report and the testimony taken and proceedings had down to the time of filing the report, for its confirmation and for judgment thereon. This motion was denied, and it was further directed in the same order that the ■order of reference be vacatéd and the case restored to the calendar of the court for trial. The plaintiff has appealed from this last order and thus brings the case before the General Term. As the referee made no second report after the final close of the testimony the defendant’s attorneys served a notice of election to end the reference.

This history of the case instructs us that the practice pursued has been irregular and erroneous. In ordinary actions where a referee is appointed to try the cause his report stands as a decision of the ■court and judgment may be entered thereon by the clerk, .as directed therein, on filing the report. (Code Civil Pro., § 1228.) Matrimonial actions, however, are governed by peculiar rules prescribed for them alone, and for well recognized reasons judgment in such actions must be rendered by the court (Code of Civil Pro., § 1229), that is, it must be directed by the court, and cannot be entered by the clerk without such direction.

"When, therefore, the report of a referee to'try and determine ■such an action is presented to the court at Special Term there is power and jurisdiction to approve, or refuse approval for fraud, collusion or similar causes (Schroeter v. Schroeter, 23 Hun, 230), but not on the merits. They must be examined in some other manner. Such a report stands as a decision of the court in matrimonial actions • as well as others, and all errors and irregularities committed on the trial, and which were the subject of consideration by the referee, must be reviewed and corrected by a tribunal empowered to reverse and annul the report. Such power is not possessed by the Special Term, to which the report is presented, for approval and confirmation. All that can properly be done there is to grant or deny the motion, and then sugIi order so made can be reviewed on appeal.

When, therefore, the report of the referee in this action was presented to the court at Special Term for confirmation, it was not within its competence to review or reverse his decision, or nullify •or vacate the order of reference. The cause had then been tried in one of the three modes of trial provided by our practice, by a co-ordinate branch of the Supreme Court possessing ail the powers of a justice of that court on a trial. A decision had been rendered against which neither fraud, collusion nor irregularity was alleged. No case was presented for vacating the order of reference, and no motion made for that purpose. But for. the embarrassment created .by the order sending the case back to the referee to take further testimony, the order refusing confirmation of the referee’s report might be reversed and judgment ordered for the plaintiff. There was no appeal from that order, but an inquiry may be made into its effect now. One plain thing to be said about it is that it could not legalize the testimony of the parties to tlio action, or render them competent witnesses by a provision for their examination. Rules of testimony cannot be prescribed by court orders. In so far as they were competent witnesses, or were rendered so by the course of procedure on the trial, their admissibility depended on the rules ■of evidence applicable to the case, which could not be arrested or varied by this order.

The order as resettled does not re-open the case, but merely sends it back to the referee for further proof, to receive newly discovered evidence, and re-examine witnesses who desire to change their testimony. No discretion is given to the referee, and so he was ■clothed with no new power. Tie had been appointed to hear and ■ determine the action, had performed the duty and filed his report. ITis functions had, itierefore, ceased, and he was not rehabilitated by this order. It maj' be that an order can be made at Special Term in an action which has been tried before a referee to hear and determine, re-opening the case and sending it back to the referee to take farther proof and then make a new and final report on all the testimony. But that is not this case, because that was not here done ; what was done here was to send the cause back to a referee whose only power was to hear and determine, after his judicial functions had ceased,, without opening the case and without directions to him, even to receive or consider it, or return it to the court. The original report’ was left undisturbed and, as has been already stated. j

On the 26th day of November, 1880, a motion made by the defendant to amend the original order of reference and the order permitting further proof, so that the court should decide the case on all the testimony taken under both both orders, was denied by the court. Thus then the case stood when the order appealed from was made. It had been referred for hearing and determination to a referee who had decided it and made and filed his report. It could not, therefore, be tried or decided by the court because another mode of trial had been adopted and pursued. Additional testimony had been taken which could not be considered by the referee because his judicial powers in the case had terminated, nor by the court because the case was not there for trial. The court could order no independent judgment in the case. It could render judgment on the referee’s report, or decline so to do; but as we have already seen, such refusal must have been based on something outside of the questions decided by the referee. If he committed errors they must be corrected on appeal, not on a motion for judgment. It follows that the additional testimony can be assigned no legal place or position in this case because neither the referee nor the court can give it consideration, and neither have assumed so to do. Nay more, the court denied a motion to make an order that would enable it so to do. It was ignored on the motion for judgment, and was not then before the court, that motion being founded on the referee’s report and the proceedings antecedent thereto. So, therefore, it is that the report of a referee, equivalent to a decision of the court, has been rejected and the order of reference vacated,, without a single allegation against it by a court which had it not for review, which had no competency to vacate the order, and which was not requested or moved so to do. The plaintiff has a report in her favor and we have looked into the case to find if any reasons' exist against its confirmation, and we discover none. Our conclusiono, therefore, are that the additional testimony has no place in this action, and cannot be considered for any purpose. That the plaintiff, with the regular and unimpeached decision of the referee in her favor, is entitled to judgment thereon.

The order appealed from is, therefore, reversed, with costs and diebursements, the motion to confirm the referee’s report is granted, and judgment is directed to be entered thereon in favor of the plaintiff for an absolute divorce against the defendant pursuant to the report, with costs.

If any further order is required for allowance or alimony, application must be made therefor to the Special Term.

Brown, J.:

The parties to this action are husband and wife; the wife seeks a divorce from the husband, on the ground of adultery. The action was regularly referred to a referee to hear and determine the issues, and the referee reported in the wife’s favor. After the report had been filed, and upon defendant’s motion, an order was made reopening the case and sending it back to the referee for further proof. A large amount of testimony was taken under this order.

The referee refused to report anew, holding that under the order sending the case back to him he had no power, except to take the testimony and report to the court. After this, the defendant served a notice to discontinue the reference. Upon a motion subsequently made by the plaintiff, and which appears to have been made on all the testimony taken in the case, the court refused to confirm the referee’s report, and set aside all proceedings, vacated the order of reference and directed a new trial at the Circuit. Other motions were made and orders entered, subsequent to the first report of the referee, which it is unnecessary to notice here.

Under section 1228 of the Code, a referee’s report, in an action where the whole issue is one of fact, stands as the decision of the court, and in an ordinary case, judgment is entered thereon by the clerk.

It is provided, however, in the following section, that this direction does not apply to matrimonial causes; but in that class of actions, the testimony and other proceedings must be certified to the court by the referee, and judgment must be entered by the court. (Sec. 1229.)

In construing this section, the courts have held that this did not authorize the Special Term, upon a motion to confirm the report, to examine the evidence for the purpose of reviewing the findings and decision of the referee, but that the purpose of this provision of the statute was to require the fiat of the court as a safeguard against irregularity, collusion or fraud.

If, for any reason, the proceedings before the referee do not warrant the entry of a judgment conformably to his decision, no judgment can be rendered, and the motion for judgment must be simply denied, and the party who desires further relief must make application therefor. (Schroeter v. Schroeter, 23 Hun, 230; Anonymous, 3 Abb. New Cases, 161.)

It would follow, from this construction of the statute, that that part of the order appealed from, which sets aside all proceedings before the referee and sends the case to the Circuit for a new trial, was wholly unwarranted. If there appeared sufficient grounds for not entering the judgment, in conformity with the referee’s decision, the motion should have simply been denied. There does not appear to us, in the proceedings and testimony before the referee, any sufficient reason for denying the motion; there is no irregularity, no collusion or fraud; and examining the case upon the referee’s report and the testimony taken by him prior thereto, we think the report should have been confirmed and judgment entered in favor of the plaintiff.

If it is desired to review the findings of the referee, such review cannot be had in this proceeding. It must be had by direct appeal from the judgment in the manner pointed out in the Code. (Secs. 992, 994 and 997.)

Upon this appeal we can only review the order which refused to confirm the report. "We think that order was erroneous, and that the report should have been confirmed.

It is claimed, however, and very strongly argued, that the proceedings had in the action and the orders made subsequent to the filing of the referee’s report, if they did not, in direct terms, annul and set aside the report, must be construed to have had that effect.

The order of September 29th, which resettled the order of September 15th, and which is the only one it is necessary to consider, contains no direction as to the referee’s report. It reopens the case for further proof and it permits witnesses who may desire to change their testimony to be re-examined, and it contains further provisions in reference to the examination of the plaintiff and defendant which were clearly beyond the power of the court to make.

I think this order was wholly irregular, and so far as it affected the decision of the case which had already been made, absolutely void.

The referee’s report stood as the decision of the court. Having made it he became functus officio. He had no further power over the action except to settle the case on appeal. (Nelson v. Ingersoll, 27 How., 1; Pratt v. Stiles, 17 id., 211.) Hpon an order for a new trial, the case would not be remitted to him for retrial, without an express order of the court. (Devlin v. The Mayor, 6 Daly, 488.) A new trial could undoubtedly be granted for newly discovered evidence, and it may be conceded that upon a proper motion for such relief a new trial could be granted before the same referee, but such is not the order in this case. It reopens the case for further jproof, that is, it allows proof in addition to that already taken to be introduced into the case, witnesses who desire to change their testimony already given may be re-examined, from which it must be assumed that if they did not desire to change their testimony, the evidence already given was to stand in the case; this was very far from ordering a new trial. It would seem that the purpose of the court 'was to direct the referee to take further proof in the case and then review his decision and make a new report. The court had no power to do this. It might as well be claimed that one judge at Special Term could direct a case which had been tried before another judge to be reopened and further testimony taken. The referee was a co-ordinate branch of the court. His powers in deciding the case were equal to those of a judge at the Special Term. A new trial was the one thing the court had the power to direct, but an order for a new trial would necessarily have set aside all prior proceedings and reopened the whole case and the trial would have been had de novo.

The case of Pratt v. Stiles (17 How., 211), is somewhat analogous to the case under consideration. That was an equitable action to redeem a mortgage upon a team of horses. It was referred to a referee to hear and determine, who reported that the plaintiff was entitled to redeem. After the report was delivered the plaintiff mo^ed to reopen the case and send it back to the referee to take an account of the value of the use of the horses from the commencement of the action. The order was granted and under it the referee took proof and made a second report of the value of the use of the horses, and judgment was entered upon the two reports. On appeal the court held that the value of the use of the horses was a part of the plaintiff’s cause of action and reversed the judgment and all proceedings subsequent to the first report. The court say there was no way after the report was delivered to raise the question as to the value of the use of the horses, except upon an application for a new trial. “ The- report of the referee upon the whole case stands as the judgment of the court. * * * The court doubtless had the power to set it aside for any irregularity or to open the ease for retrial before the referee on the ground of surprise, mistake, or newly discovered evidence. This is the only mode in which the omission of the referee to take the account of the use and value of the horses can now be rectified. The order of the court referring it back to the referee to take such an account I think was an irregularity. The whole case must be opened for retrial before the referee.” In the case cited, the original report was allowed to stand. So, in this case, the court might have set aside the report for irregularity, or for collusion between the parties, or for fraud, or it might have granted a new trial for newly discovered evidence, but it had no power to make the order that was made.

The referee’s report stands as the decision of the court, and nothing short of an absolute order of the court can set it aside. It follows, therefore, that the service by the defendant of the notice discontinuing the reference had no effect upon the action. It is further argued that the plaintiff is estopped from denying that the case was properly reopened before the referee because she accepted the costs which were imposed as a condition of the granting of that order. The plaintiff is undoubtedly estopped from denying whatever may be the fair construction of the order, but the defendant has had the full benefit of the order on his part. The evidence which he desired to give was taken by the referee and reported to the court. The difficulty now is, that no proper place can be assigned to it in the action. It is not the plaintiff’s fault that such is the case. ' The case was properly tried and a decision regularly rendered, and until that decision is set aside in some one of the proceedings provided by law, it stands as the decision of the court. The report and all proceedings in the action prior to it seem to have been entirely regular, and we think it should have been confirmed.

The order appealed from should be reversed, with costs, and an order entered confirming the report and directing judgment for the plaintiff in conformity with the referee’s decision.

Barnard, P. J.

(dissenting):

It was competent after judgment for the court to grant a new trial for newly discovered evidence. In this case the application for a new trial on that ground was made by the defendant before judgment, but after report was made. The court sent the case back to the same referee for further proof and permitted the defendant to give the newly discovered evidence, for which the report was sent back because it seems to have been alleged that a witness, or some witnesses, desired to correct her or their testimony, it was provided that any witness examined on the trial could correct his testimony. This order was not appealed from, and for that reason became a part of the history of the case. A great amount of evidence was taken under it. The referee should have passed upon the case again after all the evidence was in. The original order of reference to him to hear and determine stood in the case. His report was sent back for further proof, and that proof was taken. An' objection to the proof did not remove the order sending the case back without an appeal from .the order. The evidence then was a part of the case and the referee was to hear and determine. He did not consider the evidence or determine the issue thereupon, but returned the same to the court. It was entirely irregular for the court to try the case upon the evidence thus taken without consent; but whoever did try it must hear the additional evidence. The court, however, did consider the whole case and revoked the order of reference and sent the case back for a new trial at the regular Special Term. If I am right that the referee should have made a new report, then he failed to do so and the defendant under the Code terminated the reference by notice. The action being for a divorce the report of the referee was not final. Judgment at last must come from the court. The additional evidence taken should have been- considered by the court upon the motion to confirm the original report, if the referee was not to consider it. It was taken under an order concurred in by both parties.

The order should be affirmed, with costs.

Order reversed, with costs, and motion for judgment of divorce granted.


author: Pratt, J. :

text:
    LEWIS ROBERTS, Appellant, v. EDWARD B. COBB, as Executor, etc., of ABBY C. BARKER, Deceased, Respondent.

      Promissory note — what is a sufficient consideration therefor — promise to contribute to pay off a church debt if others will do so — when enforceable.

    The defendant’s testatrix, an aged and infirm woman, was a member of the First Baptist Church at Tarrytown. She contributed to the support of the church and had given it a legacy of $2,000 by her will. A aew church was about to be dedicated. It was subject to a mortgage of $15,000. The pastor called upon her to see if she would contribute to pay oil this debt. She first promised, conditionally, to give $5,000, hut subsequently, by the advice of a friend, declined to do so, but said that if the pastor would make an effort to gain subscriptions enough to raise the whole debt she would be willing to contribute $2,500 in cash. The pastor thereafter succeeded in procuring subscriptions and pledges for the remainder of the debt. He then called upon testatrix, who said that she was sorry she could not fulfill her promise to pay in cash but that she would bo willing to give a note for the amount which she would take up. She accordingly gave the note and delivered it to the pastor, who delivered it to the trustees of the church. Five hundred dollars was subsequently paid upon it. Thereafter it was indorsed and transferred to the plaintiff to secure a loan of $2,000, which he made to the trustees, who used the money in paying off the debt.

      Reid,, that the note was supported by a good and sufficient consideration; that the plaintiff had a good title thereto and was entitled to recover.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe verdict of a jury directed by tbe court, and from an order denying a motion for a new trial made upon the minutes of the justice before whom tbe action was tried.
    Tbe action was brought upon a promissory note given by tbe defendant’s testatrix, whereby she promised to pay to tbe trustees of tbe First Baptist Church of Tarrytown $2,500, at or before her demise, with interest semi-annually.
    Tbe defenses were that tbe note was without consideration and that it was procured by undue influence, fraud and misrepresentation, and that the plaintiff had knowledge of those facts when he took the note.

      Henry 0. Griffin, for the appellant.

      William A. Beach, for the respondent.
   Pratt, J. :

I think this judgment should be reversed. Two questions were litigated on the trial — one of fact the other of law. The question of fact was whether or not the note in suit was the voluntary act, of the maker, if she was in fit condition of mind to be bound by her act.

The question of law was whether or not there was any consideration for the note. Upon the question of fact there was evidence showing that Mrs. Parker, the maker of the note, was aged and infirm, afflicted with partial blindness and curvature of the spine, she was very nervous and easily excited. She was a member of the First Baptist Church of Tarrytown, having, as she expressed it, a deep sense of personal unworthiness, but, withal, was intelligent, of unquestionable pecuniary ability and fairly disposed to contribute the sum ($2,500) specified in the instrument. She had already contributed toward the church expenses in several ways.

The church edifice had been erected and was about to be dedicated. It was subject to a mortgage of $15,000.

The old lady had made her will in which she had provided a legacy of $2,000 for her church. The time for dedication of the church was approaching, and with it the natural desire among its officers and friends to relieve it from debt. The pastor called upon Mrs. Barker and among other things mentioned the subject of her making some contribution.

It seems to have been expected that she could or would contribute about $5,000. She declared that she was able to give this sum, and would do so if Mr. Cobb, her business adviser, would approve of it.

She subsequently informed the pastor that Mr. Cobb had advised that she should not do so. The evidence is not wholly clear as to the time, but it is fairly apparent that at one of the interviews she promised to contribute $2,500 in cash, and said that she did no know whether she could give the $2,500, besides $2,000 in her will or uot; but that if she could not, she would destroy her will and make a new one. During these negotiations she was informed that the whole mortgage debt was $15,000.

She said that she wanted to see the whole debt paid, and that if the pastor would malee an effort to gain subscriptions enough to raise that debt in any way, she would be willing to give $2,500 and would contribute in cash towards it.

The pastor said that he would make the effort, and that with her assistance he thought the debt could be raised. Up to this time the pastor had made no definite effort to raise the amount of the debt. Thereafter'the pastor made effort to procure the balance of the $15,000, and succeeded in obtaining the pledge of various persons of the requisite amount. He thereupon called on Mrs. Barker again and informed her of the results of his efforts. She said that she was sorry she could not fulfill her previous promises to give $2,500 in cash, but that she would do something towards it and would be willing to give a note which she would take up. This was but a few days before the note was signed. •

The pastor subsequently called on her, having previously prepared the instrument at her request, intimated his expectation that she should sign it. She went up stairs, procured a pen, signed the note, and delivered it to the pastor, who thereupon delivered it to the trustees of the church. Subsequently $500 was paid upon the note to the trustees. Thereafter the trustees borrowed $2,000 in cash from the plaintiff, and having indorsed the note transferred it to him as collateral to the loan. They applied this money towards, and with other moneys thus raised, paid off the debt of the church.

Speaking now with respect to the question of fact, to wit, that the note wras obtained by fraud or undue influence, it would seem quite clear that there was no such degree of evidence as to warrant or justify the court in finding either fraud, undue influence or misunderstanding on Mrs. Barker’s part. On the contrary, however, it is clear that she loved her church and sincerely and intelligently united with its friends in desiring to see it free from debt. Indeed she had already determined to bequeath $2,000. And now the practical question was how to carry this out. Should she increase the sum to $2,500 and pay it in cash during her lifetime, or contribute this sum now and also leave $2,000 legacy to be paid after her death. I fail to find anything in this evidence indicating the slightest fraud, imposition, undue influence or misunderstanding.

Counsel seem to have united in the view that the only questions in the case were for the court. If this was the fact, the court was justified in disposing of the case without the verdict of the jury. (Dillon v. Cockcroft, 90 N. Y., 649.) But I do not think the evidence justified the inference or finding of fraud or undue influence upon or misapprehension by Mrs. Barker. It is not impossible, however, that the whole case was disposed of at the circuit upon the question of the consideration for and want of title to the note. I think that, in either view, the court erred in its disposition of the case.

As I read the evidence, this lady had a common interest with the members and' friends of the church society in clearing up its indebtedness. The prosperity of the church largely depended upon this result. If freed from debt its annual expenses would be decreased. Her contributions, either directly for the purpose, or indirectly through its pew rents, might be thus decreased in the future. Its charitable demands upon its members might be either lessened or its income might be applied in other channels of Christian work. This lady was apprised of the proposed effort to raise this debt. She said to its pastor, in substance, I will unite in this effort; if you will make the effort I will contribute. If she- regarded the pastólas the representative of the trustees, she then said to them, in substance, I promise to pay $2,500 cash toward a fund to pay off this debt if you will raise the balance. If she regarded the pastor as speaking wholly for himself, she said the same thing to him. If she regarded the pastor as her representative to initiate this work, her statement was equivalent to this: Go make this effort to raise $12,500 to be applied towards the payment of this debt; tell others that if they will raise $12,500, I will pay $2,500, the balance of a fund sufficient for, and to be applied to that end ; procure their promises upon the faith of my promises.

He then and there accepted her offer, undertook the effort, promised to do the work in consideration of her promise, and thus a valid engagement arose. It was, perhaps, unnecessary the pastor should have accepted the offer, for he acted upon it at once. ( White v. Baxter, 71 N. Y., 254.) lie proposed to render his services to raise the balance if she would promise pay the $2,500. She accepted the offer, and made the promise. It was a promise for a promise; a promise made to him for the benefit of the church, and its proper representatives might doubtless enforce the performance of her obligation in their behalf, under Lawrence v. Fox.

In an other view it was an authority to the pastor to pledge her promise to every other person who would contribute.

The fund when raised by him would have been a trust for the benefit of the church to be applied to a specific purpose, and either the church or any one of the contributors of the fund could have invoked the equity power of this court to enforce the trust. Since White v. Baxter, I fail to see why this would not have been a valid engagement. There was the effort to be made either by the pastor or the church. It is said that their effort was no benefit to the lady. White v. Baxter answers that that element need not necessarily appear, saying “ it cannot be supposed that the defendant would have made the agreement in question unless he believed it would benefit him in some way. Of this he was the sole judge, and the validity of the contract does not depend on the correctness of his judgment in this respect.” (71 N. Y., 261.) Lindell v. Rokes (21 Am., 395 ; S. C., 60 Mo., 249) is on the same point. But we have already indicated that there were benefits to be derived by this good woman from this promise, in the gratification of her spirit of charity, her desire for the greater usefulness of the church untrammeled by debt, its power to devote its resources more largely to other fields of Christian work, the lessening of her own moral obligations, contributing through pew rents and other ways towards the payment of interest on the debt, her desire to secure the $12,500 from other sources for the same purpose, the interest which might be stimulated among others for the good of the church and its work, and other desires which a woman in her condition might well entertain for the success of her chosen church.

Who shall appraise these considerations ? Who shall impeach the value which the Christian may place upon such considerations ?

It follows, of course, that if there was a valid original promise to pay $2,500 on condition that the remaining $12,500 should be raised, the performance of that engagement creates a liability to pay the former sum to somebody, either to the pastor for the benefit of the church, or to the church directly. Hence of course the note was a mere payment or performance of that obligation. The element of a gift is not in this case. The note was in no proper sense a gift, nor was it given or accepted upon that 'theory. There was an antecedent contract obligation on her part. She owed $2,500 and gave her note to pay it.

The remaining point, the plaintiffs right to recover, is too clear to require extended consideration. The proof shows that he toot this note as collateral to a present loan to the church of the amount unpaid upon it ($2,000).

The plaintiff advanced this sum to be specially applied to the extinguishment of the mortgage debt. The note was thus appropriated to the purpose for which it had been given.

The judgment should be reversed with costs to the appellant, and since the case was submitted as involving questions of law only (m/\ra), the plaintiff should have judgment absolute for the amount of the note, interest and costs.

Present — Barnard, P. J., ■ and Pratt, J.; Dykman, J., not sitting.

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


author: Pratt, J.:

text:
    JAMES B. LOCKWOOD, Sole Testamentary Trustee of the Estate of BENJAMIN F. COOPER, Deceased, and Others, Respondents, v. WILLIAM T. BRANTLY, as Administrator, etc., Appellant, and Others.

      Service of summons by publication — in what class of actions an order for such service may be made — what facts show that the defendant cannot be served within the State.

    This action is brought by the testamentary trustee of one Cooper against the defendant, the administrator of one Brantly, who had been appointed in Maryland, and the Utica Steam Cotton Mills, to procure certain shares of the stock of the said company, standing on its books in the name of the said Brantly, to be transferred to the plaintiff upon the ground that the stock had been held by the said Brantly as security for a loan made to the said Cooper, which had been fully paid and discharged:

      Held, that the action was one in which an order might properly be made for the service of the summons by publication upon the foreign administrator.
    •The plaintiff’s affidavit stated positively that the defendant administrator then was, and had long been, a resident of the city of Baltimore, and that the deponent had been informed by one Sterling that the said defendant was in Baltimore a day or two before the time of making the affidavit.

      Held, that this proof was sufficient to establish the fact that the said defendant could not after due diligence be found within this State.

      Garleton v. Carleton (85 N. Y., 313) distinguished.
    Appeal from an order made at a Special Term denying a motion to vacate an order for the service of the summons on the defendant Brantly, as administrator of William F. Brantly, by publication, and refusing to set aside a service of the same made thereunder.
    The plaintiff, the sole testamentary trustee of the estate of Benjamin F. Cooper, deceased, claimed that the said Cooper had transferred six shares of stock of the Utica Steam Cotton Mills to the said William T. Brantly to be held as collateral security for a loan. That the loan had been fully paid and satisfied, but that the defendant administrator refused to transfer the said stock to the plaintiff, or to the executor of the said Cooper’s estate, though often requested so to do.

      Howard H. Bayne, for Brantly, administrator, appellant.

      Henry Cooper, for the respondent.
   Pratt, J.:

This appeal is from an order denying a motion to set aside an order of publication and service of summons and to dismiss the action. The suit is brought against defendant, a foreign administrator, and the Utica Steam Cotton Mills, to recover twelve shares of stock claimed to be the property of the plaintiff and one Cooper. The complaint alleges that this stock stands in the name of defendant’s intestate on the books of the Utica Steam Mills Company, and that defendant refuses to surrender the same. It is, therefore, an action purely to reach tins stock and have it transferred to the name of the true owner. The property is in this State and the action is one in equity to enforce a trust upon, or determine claims in respect thei-eto. Such an action is well brought against a foreign administrator. (Gulick v. Gulick, 33 Barb., 102; McNamara v. Dwyer, 7 Paige, 239 ; Field v. Gibson, 56 How., 232; Brown v. Brown, 1 Barb. Ch. R., 189.) We think the allegation in the complaint bring the case clearly within the rule, that authorizes a suit to be maintained to prevent a failure of justice. The relief sought has no reference to any assets of the estate of which defendant is administrator The object is to compel the Utica corporation to issue stock to the plaintiff in place of certificates now held by defendant as administrator. .

The Utica corporation cannot be impleaded in Maryland, and if this suit cannot be maintained the plaintiff is without adequate' remedy. There is no question concerning wasting of assets or distributing the estate, as the property is alleged not to belong to the estate, but the defendant has come with a quasi possession and claims an interest therein as administrator. The complaint was sufficient in substance and form to meet the requirements of section 439 of the Code of Civil Procedure and, together with the affidavit,, conferred jurisdiction for granting the order. The affidavit positively states that defendant now is, and long has been a resident of the city of Baltimore and that deponent was informed by one Sterling that defendant was there a day or two before the time of making the affidavit. This proof wras sufficient to éstablish the fact that after due diligence the defendant could not be found within the State. Under the authority of Carleton v. Carleton (85 N. Y.,. 313), it is.probable that mere proof that defendant was a resident of the city of Baltimore at the time would not satisfy the provisions of the Code, but the proof here shows that he was actually there at the time. Where a party is shown to be actually at a certain place out of the State, it follows that he cannot, with any amount of diligence, be found within the State. The plaintiff elected to serve the defendant personally without the State, and this was equivalent to publication and deposit in the post-office. -

We think the requirements of the statute have been complied with and that the order appealed from should be affirmed, with costs.

Present — Barnard, P. J., and Pratt, J.; Dykman, J., not sitting.

Order affirmed, with costs.