author: Pryor, J. Daly, Ch. J. (dissenting)

text:
    John Hoey, Pres’t, etc., Resp’t, v. Thomas F. Gilroy, Com’r of Public Works, et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 20, 1891.)

    1. Municipal corporations—Obstructions in street.
    An iron awning 110 feet long, supported by iron pillars placed along the inside of the curbstone, the roof being ten feet above the sidewalk, is. essentially a permanent structure, and is an unlawful encroachment upon the highway unless justified by competent authority.
    3. Same—Permanent awnings cannot be legalized by ordinance.
    The common eouncil of the city of New York has no power under the consolidation act to authorize the erection or maintenance of such a structure.

      3. Same—Estoppel.
    The city is not estopped from claiming the structure to he an unlawful encroachment by the giving of a stipulation in a former action that if it was modified to conform to the city ordinance it might be maintained as modified, which modification was made at great expense.

      4. Same—Oakriers.
    The fact that the owner of the structure is a common carrier, and that the awning is used to protect the goods carrried by it, gives such owner no special privilege to maintain the same.
    Daly, Oh. J., dissents.
    Appeal from a judgment in equity enjoining defendants from removing an awning erected and maintained in a public street.

      Ira D. Warren, for app’lts; William D. Guthrie, for resp’t.
   Pryor, J.

The plaintiff sues, as president of Adams Express Company, an unincorporated association, to restrain the defendants, as officers of the municipality of Mew York, from doing an act which, they allege, is incumbent upon them by express and imperative provision of statute, namely, the removal of an obstruction and encroachment on a public street. The plaintiff had judgment, and the question here is whether, upon the uncontroverted facts of the case, that judgment be tenable in law.

The evidence was quite conclusive that, by the structure complained of, the interests of adjacent proprietors sustained material injury; but that fact is of no importance in the litigation, since the defendants represent only the public right, and are not authorized to redress a mere private wrong. If the act from which they are restrained be not an unwarrantable invasion of a public right, the injunction properly issued and individuals must be left to vindicate their own interests by the means which the law provides for their protection.

The question, then, is generally, whether the structure of plaintiff, which defendants threaten to remove, be an infringement of the public right. Or, specifically, whether it be an unauthorized encroachment on the highway.

In the opinion of the learned trial judge, the structure is described as “ about 110 feet in length, the roof being constructed Of light corrugated iron, supported by iron columns about Si-inches in diameter, placed from 12 to 12i feet apart, and next to and along the inside of the curbstone; the lowest point of the roof being about 10 feet above the sidewalk.” The structure, therefore, covers the entire sidewalk for a distance of 110 feet; and the pillars upon which it rests are imbedded in the soil of the street. It is essentially a permanent structure.

That such a structure, so situated, is an encroachment upon the highway, and unless justified by competent authority an unlawful encroachment, is an unimpeachable proposition of law. “ It is clearly agreed to be a nuisance to dig a ditch, or make a hedge over-thwart the highway, or to erect a new gate, or to lay logs of timber in it, or generally to do any other act which will render it less commodious." Bacon’s Abridg., “Highway ” D. “If a carrier carries an unreasonable weight, with an unusual number of horses, it will be a nuisance to the highway, by the common law. So, if a man erects a gate across a highway, though it be not locked, but opens and shuts freely; or if he puts his wood-stack in the street before his house, and leaves sufficient passage for travelers.” Comyn’s Digest, “ Chimin,” A 3. “ The primary use of a-highway is for the purpose of permitting the passing and repassing of the public, and it is entitled to the unobstructed and unimpeded use of the entire width of the highway for that purpose: ” and hence “ the storing of a wagon in the highway is a nuisance. ” Cohen v. The Mayor, 113 N. Y., 535; 23 N. Y. State Rep., 509. “At common law any encroachment upon a public highway was considered to be a purpresture; that is to say, the making of that several and private which ought to be common to many; ” and, being a nuisance per set “the defendant cannot avoid liability on the ground that the proof does not show that the people sustained or would sustain any actual damage; or that the inconvenience would be counterbalanced by the public benefit.” The People v. Vanderbilt, 28 N. Y., 396; The King v. Ward, 4 Adol. & Ell., 384. “ The public are entitled to the use and enjoyment of the whole of the highway, and no individual can appropriate any portion of it to his own exclusive user and shield himself from responsibility by saying that enough is left for the accommodation of others. Hence, any obstruction of a public street, although in the prosecution of a lawful business, is indictable as a public nuisance, although room enough be left for the accommodation of the public.” Hart v. Mayor, 9 Wend., 571; The King v. Russell, 6 East., 427; The King v. Cross, 3 Campb., 224; The King v. Jones, id., 229. “ The law has always regarded any unauthorized, continuous obstruction of a public highway as a nuisance per se. The general principle is settled that any obstruction .of a public highway, for an unreasonable length of time, however lawful the business which is sought to be prosecuted, is indictable as a public nuisance, although room enough be left for the accommodation of the public.” Moore v. Jackson, 2 Abb. N. C., 211. “A purpresture is a clandestine encroachment or appropriation upon land or water that should be common or public.” Coke Litt., 277b; Anderson’s Diet, of Law, “ Purpresture.” “Any permanent or habitual obstruction of a public street is an indictable nuisance, although room enough was left to pass, and although that upon the whole such a change in the character of the street would be a public benefit.” Davis v. Mayor, 14 N. Y., 524, 525. “Any use of a public street incompatible with' the public use, if unauthorized by law, whatever may be its degree, is a public nuisance,” and hence, “ it was conceded that the erection of the shed or awning in question, if without lawful authority, would be a public nuisance.” Trenor v. Jackson, 15 Abb., N. S., 120, 126. “The public are entitled to an unobstructed passage upon the streets, including the sidewalk, ánd a hole in the sidewalk is an obstruction. Clifford v Dam, 81 N. Y., 52 ; See The People v. Cunningham, 1 Denio, 524; Thorpe v. Brumfitt, L. R., 8 Ch. App., 650; Cushing v. Adams, 18 Pick., 110; Comm. v. King, 13 Metc. (Mass.), 115 ; Harrower v. Ritson, 37 Barb., 303; Dickey v. Tel. Co., 46 Me., 483; Wright v. Saunders, 65 Barb, 214; Reg. v. Tel. Co., 31 L. J. (Eng.), 167; Adams v. Rivers, 11 Barb., 390 ; Ely v. Campbell, 59 How., 333; O’Reilly v. Mayor, id., 277; Lavery v. Hannigan, 52 Super., 466; Richardson v. Barstow, 26 Abb. N. C., 150; 36 N. Y. State Rep., 983; Farrell v. The Mayor, 5 N. Y., Supp., 580, 672; 22 N. Y. State Rep., 469; Callanan v. Gilman, 107 N. Y., 360, 369 ; 12 N. Y. State Rep., 21; McCaffrey v. Smith, 41 Hun, 117 ; 4 N. Y. State Rep., 11; Hallock v. Scheyer, 33 Hun, 111; Emmons v. Campbell, 22 id., 582; Knox v. Mayor, 55 Barb., 415.

In deference to the elaborate and able argument of the learned trial judge, we have been at pains to collect the foregoing authorities ; but, in truth, the question in controversy is decisively determined against respondent by the adjudication of the court of appeals, in Hume v. The Mayor, 74 N.Y., 264, where it is held “ that a permanent wooden awning or roofing, covering the sidewalk and resting upon posts bedded in the street, .is an encroachment upon the street and a nuisance.” The only distinction between the case cited and the case at bar being that there the roof was of wood and here it is of iron, argument is unnecessary to show that the difference in no degree impairs the conclusiveness of the authority.

It results, therefore, that the learned trial judge erred in finding, as a legal inference from the uncontroverted evidence, that “ the said awning is not an obstruction or an incumbrance upon the sidewalk or street.” Whether he was equally in error in the conclusion that “the said awning is not a nuisance,” depends upon the validity of the proposition upon which he bases the judgment, namely, that the maintenance of the structure is authorized by law.

That the ordinance of 10th of May, 1886, if valid, suffices for legal justification of the structure, is too plain for controversy. The inquiry then is, had the common council power to authorize the structure ? That such power is not an original and inherent attribute of a municipal government is not a disputable proposition. Matter of Zborowski, 68 N. Y., 96; Davis v. The Mayor, 14 id., 506; The People v. Kerr, 27 id., 188. But the legislature, as representative of the sovereignty of the state, may, either directly or by delegation to its local agencies, authorize any use of a highway that is not incompatible with its public character, People v. B. & O. R. R. Co., 117 N. Y., 150; 27 N. Y. State Rep., 153, and respondent’s contention is that authority to legalize the structure in question was communicated to the common council by the consolidation act of 1882.

In ascertaining the charter powers of a municipality, “ the fundamental and universal rule is that, while the construction is to be just, seeking first of all for the legislative intent in order to gRe it fair effect; yet any ambiguity or doubt as to the extent of the power is to be determined in favor of the state as against the state’s grantee.” Dillon on Municipal Corporations, § 91. More particularly “statutes authorizing or legitimating acts and obstructions upon the highways, which would otherwise be nuisances, are strictly construed,, and must be closely pursued, and the authority given must be exercised with proper care.” Dillon, § 657. Observing the familiar canons of construction, the question is: Does the consolidation act empower the common council to authorize the structure as it is erected and maintained by respondent in a public street of the city ? The provisions cited in sanction of the structure are the following:

“ Section 86. The common council shall have power to make ordinances not inconsistent with the laws and constitution of this state. * * *
“ Subd. 4. To prevent encroachments upon and obstructions to the streets, highways, roads and public places, not including parks, and to authorize and require the commissioner of public works to remove same; but they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repair of a building on a lot opposite the same. * * * Subd. 8. To regulate the use of streets and sidewalks for signs, sign posts, awnings, awning posts, horse troughs, urinals, telegraph posts and other purposes.” The learned trial judge frankly recognizes the apparent inconsistency between subdivisions 4 and 8; but applying the rule of construction which subordinates a prior to a subsequent statute, he assumes that “ the latter provision shall prevail over the former, as it speaks the last intention of the lawgiver.” But, here are not several statutes enacted at different times, but two paragraphs of one and the same statute; and the rule, as we apprehend it, is that all the provisions of the statute must be construed together, and in such sense that each and every part shall operate with its intended effect. Broom’s Maxims, 577, 587. So interpreted the obvious import of the act is that the common council shall have power generally to regulate the use of streets for awnings and awning posts; but the power is coupled with the condition that it be not exerted contrary to law, and is restrained by the express and imperative proviso that “they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk.” By this construction effect is given to each term of the statute, and all its parts allowed to operate harmoniously; rather than,by application of an arbitrary rule, to nullify the effect of an essential provision. In People ex rel. O'Reilly, 59 How., 277, construing a resolution of the common council, purporting to permit licensed venders to occupy Forty-second street, the court, per Daniels, J., says: “ The charter of the city then in force authorized the common council to regulate traffic and sales in the streets; but it evidently was not intended that such authority should be exercised in the manner in which it has been by means of this resolution; for a succeeding subdivision of the same section declares that the common council shall have no power to authorize the placing or continuing of any obstruction upon any street or sidewalk.
“ These two provisions require, as they relate to the same subject, to be construed together, and the latter so far restrains and limits the former as to withhold by means of its terms such power as was attempted to be exercised through this resolution.” And, in Trenor v. Jackson, 15 Abb., N. S., 124, per Monell, J.: “It is claimed that the power given by the charter to pass ordinances for the regulation of the use of the sidewalks for awnings, etc., necessarily implies a power to allow or permit the continuance of awnings by individuals for private purposes. The difficulty in the position is that, even if it was competent for the legislature to give such power, it is not given in express terms, and being subversive of clear public right it cannot and should not be implied. It is, I think, very clear that a trust, created by law for a strictly public purpose, cannot be diverted from such purpose and converted into a private use. But, even if it can be at all, it must be done by express enactment, and never can be inferred from or as being incidental to other powers.” As bearing upon the point in discussion, the adjudication of the courts on the power of the municipality to authorize the shedding of the public piers, is instructive. In People v. Mallory, 46 How., 281, and Kingsland v. Mayor, 110 N. Y., 569; 18 N. Y. State Rep., 701, it was held that such power is not involved in a general statutory authority ; but in 1875, an act having passed expressly imparting to the department of docks the disputed power, the court of appeals ruled, in People v. B. & O. R. R. Co., 117 N. Y., 150; 27 N. Y. State Rep., 153, that the authorized license from the department sufficed to legalize the incumbrance.

Our conclusion, therefore, is that, since the structure in controversy is, in necessary effect, an encroachment and obstruction upon the highway, the ordinance of the common council is inoperative to validate it, because such ordinance is contrary to law and in violation of an express and imperative restriction on the powers of the municipal legislature.

The estoppel urged by respondent is clearly nugatory. The record discloses that, in a former action between these parties, it was stipulated by the corporation counsel that, if respondent would alter its structure so as to conform it to the ordinance, respondent might maintain the structure as amended, and that the structure was modified accordingly at a considerable expenditure of money. Hence, the learned trial judge found, as a conclusion of law, that “ the defendants are estopped by reason of the stipulation from claiming the awning to be an obstruction or incumbrance.” But no sort of ratification can make good an act without the corporate authority. Peterson v. Mayor, 17 N. Y., 449, 454. “ A statute cannot be evaded by estoppel.” The N. Y., etc., R. R. Co. v. Van Horn, 57 N. Y., 473. It is a self-evident proposition that an act of a municipal corporation, void for want of authority to do it, cannot be validated by an estoppel incurred by the corporation ; otherwise, all limitations on the power of such corporation, imposed by the legislature for the public good, might be evaded at the mere volition of the corporation. Northern Bank v. Porter, 110 U. S., 608, 619. The power of a municipal corporation has but one source; the public will is expressed by the legislature. Dillon on Municipal Corporations, § 39.

The learned trial judge finds that “ the Adams Express Company is a common carrier,” and that “ the awning is used as a protection to goods belonging to the public.” We are unable to perceive how these facts, if facts they be, are available to support the judgment We understand that, by virtue of its capacity as a common carrier, Adams Express incurs peculiar obligations; but we are not aware that its character confers upon it exceptional privileges; least of all to invade a public right for its private aggrandizement. Nor can we assent to the proposition, even if it be relevant to the controversy, which we do not perceive, that because Adams Express, by the awning, protects the goods of many, no matter how many, it therefore protects the goods of the public. In the legal sense the public is an abstract entity, very different in nature from a multitude of individuals.

These streets of New York are the highways of the people; and their unobstructed and unimpeded passage is indispensable to the public convenience, and to the rapidly accumulating business of this active and teeming mart. Already they are inadequate to the necessities of the growing trade and the increasing population of the city, and we deem it urgently for the public interest that a claim to encroach upon and obstruct them should be challenged and defeated in the beginning, lest, by precedent and possession, it expand into proportions with which it will be impossible to cope. Happily, the well settled principles of our law are of sufficient energy to arrest the evil in its incip iency.

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

Bischoff, J., concurs.

Daly, Ch. J. (dissenting)

The plaintiff, the Adams Express Company, under sanction of an express ordinance of the common council, erected a permanent awning, supported by iron posts, over the sidewalk in front of its place of business in this city. The power of the common council to grant this permission is derived from the act of the legislature (Consolidation act, 1882), by which it is enacted that the common council shall have power to make ordinances to regulate the use of streets and sidewalks for signs, sign posts, awnings, awning posts and other purposes. This seems to be both ample and express grant of power to permit, under proper regulations, the use of the public streets for the purposes designated. The power is not inferred nor implied, but directly given. The legislature must be presumed to have known that in previous charters of the city, it had made similar grants of power to the common council to make ordinances to regulate the use of the streets for awnings and awning posts, and that such use had been open, common and general in all the streets of the city from time immemorial. It was not necessary, therefore, that the legislature, to authorize such use, should do more than provide for its regulation by the city authorities.

It is argued, however, that the whole effect of this enactment is destroyed by a prior provision of the same statute, by which the common council is authorized to make ordinances to prevent encroachments upon and obstructions to the streets, and that they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk, except the temporary occupation thereof during the erection or repair of a building on a lot opposite the same. The contention is that this general enactment' against encroachments upon the street overrides and nullifies the subsequent provision authorizing the erection of awnings and awning posts.

In construing the statute the rules of interpretation require the courts to give effect to all parts of the act so that all of them and all their clauses may be operative. If the general intent of the act and the particular intent are in conflict, the particular intent is an exception to the general intent. These rules require that we should first interpret the provision empowering the common council to regulate the use of the streets for awnings and awning posts as an express permission to use the streets for such purposes otherwise that clause of the statute will be wholly meaningless and inoperative; and, second, for the same reason, we must regard this clause as an exception to the general enactment against authorizing incumbrances and obstructions. In doing this we shall be violating no manifest intention of the act, for such intention, as is evident from the act itself, was that awnings and awning posts, signs and sign posts, were not encroachments nor obstructions such as the act was intended to prohibit There is a wide distinction between the erection of posts near the curbstone to support an awning, according to the immemorial usage of the merchants, traders and shopkeepers of the city, and such obstructions and incumbrances by goods, bales, boxes, carts and stalls, which actually impede the passage of pérsons and vehicles. It was evidently against the flatter and other and graver impediments that the general clause of the statute was directed, and not against the constructive incumbrance caused by awning posts. It is not to be assumed that the legislature intended to violate the organic law and appropriate any part of the public street to private use; but that in making this enactment it recognized a use of the street sanctioned by immemorial custom, and not falling within any of the constitutional prohibitions. In The People v. B. & O. R R. Co., 117 N. Y., 150; 27 N. Y. State Rep., 153, it was held that the municipal ordinance permitting the erection of sheds upon the public piers was authorized, holding that the legislature has power, and may delegate it to municipal authorities, to withdraw from public use what is in legal contemplation a public highway, and appropriate it to some other or quasi private use, subject only to the restriction that the new appropriation shall be in the direction of public utility. It seems clear that in the matter now before us for consideration such restrictions have been observed in authorizing, under proper regulations, a use of the streets to which they have always been subject by general public consent and custom.

Ho adjudication in the court of last resort is found upon the point here involved In Hume v. The Mayor, 74 N. Y., 264, it was held that an awning over the sidewalk supported by wooden posts bedded in the ground, made for private purposes, if unauthorized, is an encroachment upon the public street and a nuisance. But the court held it unnecessary to pass upon the question whether the city had power to authorize such a structure. In Trenor v. Jackson, 15 Abb., N. S., 115, a similar provision in the city charter of 1870 was held to confer no power to authorize the erection of awning posts, because: 1. The legislature had no power to appropriate public property to private use, and, 2. That the authority is not given by express terms. This is a special term opinion, per Monell, J., and entitled to the greatest respect, but the ruling of the court of appeals in People v. B. & O. R. R. Co., above, requires some modification of the learned judge’s views respecting the legislative authority over the subject in question.

The judgment should be affirmed.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Minnie Warren, Resp’t, v. Campbell et al., App’lts. Wm. O. Persons, Resp’t, v. Campbell et al., App’lts,

      (New York Common Pleas, General Term,

      Filed April 20, 1891.)

    District court—Amendment of return.
    It is too late to ask for an amendment of a district court return after the appellate court has intimated or announced its decision on the questions presented by the return as filed.
    Motion for leave to amend the justice’s return and to reargue the appeal upon the return so amended.

      Fromme Bros., for app’lts; Wm. N. Cohen, for resp’ts.
   Per Curiam.

When these appeals were reached for argument at. the February general term it did not appear from the justice’s return that at the time of defendants’ application for the removal of the actions to this court for trial an adjournment had been had on the application of the defendants, and in the absence of an adjournment on such application it was error for the trial justice to proceed, his jurisdiction being arrested by the application for removal, and for this error the judgment appealed from was directed to be reversed. This ruling was unquestionably correct. Code of Civil Procedure, § 3216; Hogan v. Devlin, 2 Daly, 184; People ex rel. Reynolds v. Fourth District Court, 13 Civ. Pro., 134.

The present application in substance is to permit respondent, after the appeal has been disposed of and determined adversely to him, to amend the justice’s return by the insertion of a statement to the effect that prior to defendants’ application for removal, an adjournment had been had upon their application, and for reargument of the appeal upon such amended return. We do not think that such practice should be countenanced as it would lead to uncertainty in the termination of appeals from district courts. It was the duty of respondent’s counsel to inspect the return before proceeding with the argument of the appeal, and if it did not sufficiently' or correctly represent the proceedings in the court below, and if the time intervening between the filing of the return and the hearing of the appeal was inadequate to permit of a proper application for an amendment of the return, he'should have protested against proceeding with the hearing of the appeal and requested an adjournment to enable him to make such application. It was too late for him to do so after the appellate court had intimated or announced its decision upon the questions presented by the return as then filed.

Motion denied, with ten dollars costs.

Daly, Oh. J., Bischoff and Pryor, JJ., concur.


author: Daly, Ch. J.

text:
    The Fire Department of the City of New York, Resp’t, v. James M. Hill, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed April 20, 1891.)

    Theatres—Building law—Liability of lessee.
    The lessee of a theatre is liable for a violation of the building laws in allowing persons to stand in the passageways, although he has let the privilege of giving performances to others, where it appears that he furnished the usual attaches, though they were subject to the orders of the person giving the performance, and that he was about the place and had promised a week previous to the violation complained of that he would look out thereafter and comply with the law. „
    Appeal from judgment eighth district court

      W. L. Findlay, for resp’t; Foster & Stephens, for app’lt.
   Daly, Ch. J.

It was established by satisfactory evidence that there was a violation of the building laws on the occasions complained of in the defendant’s theatre, in that the passageway at the back of the auditorium was so crowded with people standing there while the performance was in progress that persons going to or from their seats had to crowd through. There were from forty to fifty persons so standing. The question is, whether the defendant Hill is responsible for this violation of the statute. He was lessee of the theatre, but had let to Joseph Brooks, manager of Miss Dauvray, the privilege of giving performances therein for four weeks, and it was during such performances that the violations complained of took place.

Under his agreement with Brooks, the defendant was to furnish, among others, “the usual attaches before and behind the curtain, * * * ticket sellers, ticket takers and necessary ushers.” The person who admitted the bearers of tickets which did not entitle the holders to seats, and the persons whose duty it was as ushers to seat the audience and conduct them through the aisles and passageways, were employed and paid by defendant. It was shown, however, that they were subject to the orders of Brooks’ representatives, who had the right to admit whomsoever they pleased to the theatre, and that the persons who crowded the passageways on the occasion in question were admitted by the latter.

It was, however, made clear by the evidence that the defendant was frequently in and about the theatre during these performances, and knew that the passage-ways were obstructed by persons standing therein; and having had his attention called to the violation of the law by officers of the department, had promised to look out thereafter and comply with the law. This was a week before September 30th, the day of the violation for which the penalty was inflicted, and the defendant was in and about the theatre after making such promise. Nevertheless, the infraction of the law continued.

From the defendant’s promise it is to be inferred that he had the power to correct the abuse complained of; and it is quite certain that by the terms of his lease to Brooks he did not, in any way, relinquish his possession and control of the premises. He merely let to Brooks the privilege of giving performances, and therefore parted with no rights beyond those necessary to the full exercise of the privilege. His reserved rights included ample power to see that no violations of law were committed in the theatre. If he had had no notice that such violations were committed during the period covered by his lease to third parties, he might not be responsible; but after notice it was his duty to issue such instructions and take such measures to see that they were carried out as would be reasonable under the circumstances. Failing in that the justice was authorized to find that he allowed the passage "way to be obstructed by persons standing therein as complained of, and the judgment for the penalty should not be disturbed.

We held in the case of The Fire Department v. Stetson, 14 Daly, 125; 6 N. Y. State Rep., 255, that to recover the penalty given for the violation of the act prohibiting the standing of persons in the aisles or passage-ways of a theatre during a performance, it is not necessary to prove that the manager of the theatre knew that any persons were standing in the passage-way at the time in question, or that he gave permission to any one to stand in the passage-way. That a number of tickets for a performance were sold by his agents after they knew the seats in the house were filled is .sufficient proof to sustain a judgment in the absence of evideiice that such sale was in opposition to the defendant’s wishes.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    In the Matter of the Application of The Abyssinian Baptist Church of the City of New York to change its Name to the Antioch Baptist Church of the city of New York.

      (New York Common Pleas, General Term,

      Filed April 20, 1891.)

    1. Religious Corporations—Change op name.
    The court has power to revoke an order authorizing a change of name where it is made to appear that an objection to such change existed which was not fairly and fully brought to the notice of the court on the application for such order.
    8. Same.
    Differences having arisen in the Abyssinian Baptist Church, its pastor resigned, but thereafter, with certain members of the congregation and officers, held services in a different place in the city under the same name. The latter body, in the name of the church, made this_application for a change of name, stating that another organization called itself by the same name, which occasioned confusion, which petitioner desired to avoid,and_also preserve its identity, and that no loss or injury would result to any individual or corporation if the change was granted. Held, that as the actual facts were not set forth in the petition, the order making the change was properly vacated with leave to renew the application on notice to the other congregation.
    Appeal from order vacating an order authorizing a change of name.

      Charles F. Moody, for app’lts; Geo. M. Curtis, for resp’ts.
   Daly, Ch. J.

It appears from the papers in the case that the Abyssinian Baptist church, in the city of New York, was incorporated in the year 1859, under the act of the legislature of that year (Laws of 1859, chap. 410), and commenced then to hold its stated services at No. 166 Waverly place, its pastor being the Bev. William Spelman. In the latter part of the year 1885 •differences arose in the church over the management of the pastor, •and two parties were formed, one of which, having control of a meeting of the congregation, deposed the pastor and sought by legal proceedings to enjoin him from intruding into the pulpit of the church. These proceedings were subsequently discontinued by consent, the pastor having voluntarily resigned on October 21, 1885; and. thenceforward he, with certain members of the congregation, deacons and trustees, commenced to hold religious .services at 167 West Twenty-sixth street From that time there have been two bodies worshipping under the name of Abyssinian Baptist church, one in the original place of worship in Waverly place and the other in Twenty-sixth street

On October 10, 1889, a body called the Southern New York Baptist Association, the functions, jurisdiction and powers of which are not described and perhaps are not necessarily involved in this controversy, adopted a resolution reciting that its time and patience had been unduly consumed in the matter of the conflicting Abyssinian churches, and resolved to recognize both of them if they would assume new names, and refusing to recognize either under the name Abyssinian.

The Twenty-sixth street congregation thereupon held a meeting ■on March 5th, 1890, and adopted resolutions reciting that as they were assured that to drop the name Abyssinian and adopt a new name would not annul their right to the church estate in Waverly Place, they resolved to drop the said name and adopt the name Antioch, and empowered the board of trustees to take proceedings to effect the change. On June 11th, 1890, a petition was presented to this court on behalf of “ The Abyssinian Baptist church of the city of New York to change its name to the Antioch Baptist church of the city of New York,” giving as a reason for the change that another religious organization of the Baptist faith now holding services at No. 166 Waverly Place in ■said city calls itself and is known by the same name as the petitioner ; that this occasions much confusion, which the petitioner desires to prevent hereafter, and also to preserve its own identity. The petition also recites the action of the Southern New York Baptist association and the resolution of the meeting of the Twenty-sixth street congregation ; and states that “ no loss, detriment, injury or disadventure will result to any individual, corporation or association if the prayer of this petition be granted.” Thereupon an order of this court was made ex parte on June 17th, 1890, authorizing such change of name on and after July 21st, 1890, after due advertisement as required by law. Chap. 323, Laws 1853 ; chap. 464, Law 1847; Code, §§ 2410-2418.

In November, 1890, the Waverly Place congregation, under the name of the Abyssinian Baptist church of the city of New York, moved this court upon affidavits to vacate the said order, claiming to be the only religious corporation bearing the disputed name, setting forth that it had worshipped in Waverly Place, for over thirty years, that its pastor was the Rev. Robert D. Wynn, who was chosen in November, 1885, after the resignation of the Rev William Spelman, that the court had been imposed upon by the lattar’s petition, that his congregation had usurped the name of the corporation, and that the order made on his application for a change of name was calculated to affect the legal status and name of the Abyssinian Baptist church.

Affidavits in answer were filed by the petitioners and replying affidavits were submitted, and upon all the papers the court, at special term, vacated the order for a change of name, with leave to renew the application thereafter on giving proper and legal notice to all parties interested and on payment of ten dollars costs to the attorney for the motion. Prom this order the present appeal is taken.

There is no provision of the Code expressly giving the court power to revoke or vacate its order authorizing a change of name, but such power is inherent Courts of record proceeding according to the course of the common law have absolute control of their own orders and judgments and power to modify or vacate them whenever it is required in the interests of justice. It belongs to the inherent essential powers of the court to exercise so efficient a control over every proceeding as to effectually protect every person actually interested in the result from injustice and fraud. Baldwin v. The Mayor, 42 Barb., 549; Lowher v. The Mayor, 5 Abb., 484.

In the matter of authorizing a change of name, the court is bound to make the order asked for if there is no reasonable objection to the petitioner's assuming the name proposed. If there be a reasonable objection the court may refuse to make the order ~ and so it is manifest that where an objection exists which has not been fully and fairly brought to the notice of the court, the power to revoke the order must exist, for no record founded upon fraud or imposition or ignorance of the facts can be suffered to remain when the court, either upon its own motion or upon the application of innocent third parties affected thereby, deems it proper to vacate it

In its petition for a change of name, - the Twenty-sixth street-congregation did not set forth the actual facts with respect to the two bodies claiming to be the Abyssinian Baptist church. If it had, the court would have seen that there was but one corporation of that name, with two congregations claiming to be such corporation, and would, of course, have refused to change the corporate name without proof of corporate authority for so doing and without fair notice to both parties.

This would have led to an inquiry as to whether the body which continued to worship in the original building in Waverly Place, or that which opened a place of worship in Twenty-sixth ■street, was the original corporation; and the court'might have ■deemed that the fact that the pastor of the latter body, Mr. Spelman, who claimed to be still pastor of the Abyssinian church, had formally resigned that office to the church in Waverly Place before he led his section of the flock to Twenty-sixth street was a •concession that thé Waverly Place congregation was the Abyssinian church, that he was no longer pastor of it and that his application assuming to be on behalf of that corporation should be denied.

After the order for a change of name was made these facts were presented to the court by a congregation claiming to be the only ■corporate body incorporated by the name of the Abyssinian church, and supporting its claim by strong proofs. It became apparent that if this body was the corporation, it was injured by a record purporting to be granted upon application of the corporation for a change of its name, and the facts presented to the court showed a reasonable objection to the granting of the original order, viz.: That it was possible that the corporation had not asked for it. It was the duty of the court, therefore, to set aside such order and, while granting leave to renew the application, to provide for notice to a party directly interested as claiming to be exclusively entitled to the name proposed to be changed.

The order appealed from should be affirmed, with costs.

With respect to the application of Mr. Mornay Williams to file an affidavit denying certain charges made against him, his application is granted and his affidavit so filed may be annexed to the ■record in this case.

Bischoff and Pryor, JJ., concur.


author: Peckham, J.

text:
    In the Matter of the Petition of William C. Camp for Accounting.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Guardians—Accounting—Estoppel—Tenant by Curtesy.
    Calvin B. Camp was in 1868 appointed general guardian of his four children to receive an award made to them for lands of their deceased mother taken by the city, and received such award, and receipted therefor as guardian, but no inventory was filed. In a proceeding, in 1888, to compel him to account, he claimed a life interest in the fund as tenant by the curtesy. Held, that he was entitled to such interest; that the fact that he signed the receipt given to the city authorities as guardian did not estop him from showing the truth as to his personal interest in the fund.
    '3. Same.
    Where land in which one has an estate as tenant by the curtesy is sold, the moneys obtained for the purchase represent the land, and the tenant by the curtesy is in any event entitled to interest thereon for his life.
    8, Same.
    When appellant as guardian received the fund, for the forthcoming of which he gave security, he took it subject to his individual right to the use of the same for his own life.
    4. Same.
    There is no power in the surrogate to compute the value of the life estate, and deduct the gross sum arrived at from the original fund, and direct the guardian to pay over the balance.
    5. Same—Statute of limitations.
    Although the guardian may cease to be such upon the ward coming of age, yet so long as the property remains in his possession as guardian, and. unaccounted for, he must remain liable to account.
    6. Same—Jurisdiction of surroqate.
    The fact that the guardian had lost the fund paid to him, and was insolvent, gave the surrogate no power to decree the payment of the fund to the ward. The surrogate has no general jurisdiction over a guardian as a trustee.
    Appeal by Calvin B. Camp from an order of the general term of the supreme court modifying, and as modified affirming, a decree of the surrogate of Kings county, made upon an accounting by the appellant as guardian of the petitioner, William CL Camp.
    From the record it appears that the surrogate of Kings county,, on the 16th day of May, 1888, duly issued a citation to Calvin B. Camp, citing him to appear at a surrogate’s court for the purpose of rendering and settling his account as such guardian. The citation was based upon a petition of William 0. Camp, from which it appeared that the petitioner was one of four children of the above named Calvin B. and Mary E. Camp, and that the latter had died intestate in Brooklyn on the 25th of October, 1866, seized of certain real estate known as ¡¡STo. 138 Columbia Heights, in said city, leaving her husband surviving her and her four children as her heirs-at-law. Prior to her death proceedings had been commenced by the city to acquire title to the northern portion of the premises above mentioned, and such proceedings resulted after her death in an award of $26,000 to the petitioner and his brothers and sisters. The petitioner further showed that the father of the petitioner was appointed his guardian, and also the guardian of his brother and sisters, by the surrogate of Kings county, on the 17th of February, 1868, they all being at that time under the age of twenty-one years, and that on the 18th of February, 1868, as such guardian, his father received from the city comptroller the above sum of $26,000, and that one-fourth of such sum belonged to the petitioner. The fact of the receipt of such money became for the first time known to the petitioner within a year of the institution of these proceedings to compel an accounting.
    His father, as such guardian, has never returned or filed any inventory of the property which came into his hands, nor has he ever accounted for or paid over to the petitioner any part of such property.
    The guardian appeared on the return day of the citation by his attorney, and filed a paper in the form of an objection to proceeding with the accounting, for the alleged reason that his guardianship of the petitioner ceased on the day of , 1872, on the petitioner then becoming of age, and that the present proceedings were on that account barred by the statute of limitations.
    The surrogate overruled the objection and directed the guardian to file his inventory and account, and he put his decision in the form of an order from which an appeal was taken by the guardian to the general term, which in all respects affirmed the same. Thereupon the surrogate again directed the guardian to file his inventory and account, etc. In obedience to such order the guardian filed his account, which was of a most general nature, and from which and from his statement accompanying it, it appeared that he had made certain payments which he claimed to charge the petitioner with, and. which if allowed would show that he had more than paid out for the benefit of the ward the moneys which he had received. His statement showed that he made no separate investment of the moneys, but had used them with his own in the business in which he was then engaged and in which he lost very heavily, and which he was obliged finally, for want of funds, to wind up and discontinue.
    The petitioner filed an objection to such account, because it gave no items of expenditure, charged the guardian with nothing in the way of interest on the moneys, gave no vouchers and failed to comply with the surrogate’s order to file an account, while admitting that the entire fund was used by the guardian and lost.
    The surrogate referred the account to a referee to hear and determine the questions arising upon the settlement of the account and the exceptions thereto. Before the referee the guardian insisted that by his statement already filed it appeared that the fund of $26,000 was not such a fund as he should account for as general guardian, nor could any portion of it be enforced to be distributed among the heirs at this time or at any time prior to his decease. The objection to proceeding with the accounting was then overruled, and the guardian excepted. Hearings were then had before the referee, and he finally made his report. He found as a fact that the city of Brooklyn had taken- the whole of the lot 136, in the exercise of its right of eminent domain, for public use, and for which an award of $26,000 was made as compensation, and that the sum was paid to Calvin B. Camp, who received it and receipted to the city therefor, adding the word “ guardian ” to his signature, and that he received the moneys as guardian.
    The other facts as to the failure of appellant to file any inventory or to account for any portion of the moneys thus received, and his use of the moneys in his business and his losses therein, were also found by the referee, together with the fact that the guardian was forty-five years of age when he received the money in February, 1868. As a conclusion of law the referee found the guardian liable to account for the amount he received, but that he was entitled to be credited as against that sum with the value of his life interest on the IRth of February, 1868, and the value of such life interest in the share of the petitioner was determined to be, as computed by the Northampton tables and the rules then in force, $3,943. That amount the referee deducted from the share of the petitioner, leaving the guardian liable for the sum of $2,557, with interest thereon from February 18, 1868, which the referee computed with annual rests, and gave judgment for the sum of $9,857.91, with interest from May 15, 1889, the date of his report, besides costs. The surrogate approved and confirmed the report, and judgment was finally entered for $10,244.43 against such guardian. He appealed to the general term of the supreme court. The petitioner also appealed, claiming that the court erred in allowing the guardian the value of an alleged life estate in the moneys he received as guardian. The general term modified the judgment so as to charge the guardian with the full sum received by him, with interest from the time he received it, which amounted in the case of the petitioner to $25,249.14, and to that sum interest was added from September 19, 1889, the date of the decree entered upon the report of the referee as confirmed by the surrogate, together with costs.

      William C. Beecher, for app’lt; Joseph H. Choate, for resp’t.

       Reversing 32 N. Y. State Rep., 886.

   Peckham, J.

It is important at the outset to. determine the precise ownership of the fund of $26,000 received by the appellant from the city of Brooklyn. He claims a life interest as tenant by the curtesy, while the petitioner asserts that whatever right the appellant may have had in the real estate, the specific fund in question represents solely the interest of the four children as heirs in such property, and he says that the appellant had no right or title to it excepting as guardian of his infant children.

The referee has found that the appellant had an interest in the fund as tenant by the curtesy, and the petitioner objects to such finding as having no evidence to support it.

I think there is evidence to uphold the finding, and it therefore becomes conclusive on us. The receipt given by the guardian to the city when the money was received shows that it was for land taken for Brooklyn Heights improvement, and that it was paid to Calvin B. Camp, guardian. Mr. Camp swore on the hearing before the referee that during the year 1866 condemnation proceedings were instituted by the city to condemn the property in question, and that the sum of $26,000 was received by him, and it was paid for property that the city took for the purpose of the Brooklyn Heights improvement; that he was in possession of the property when it was taken, and the title to it stood in his wife’s name, and the sum paid was the identical sum of money paid as damages for taking the lot or premises in question. This I think clearly shows that the sum paid was for the whole interest in the property, and at any rate the evidence is sufficient to permit such, an inference, and the referee has drawn it. I think there is no doubt that this is the real truth of the case. The fact that the appellant signed as guardian the receipt which he gave to the city authorities, does not estop him from showing the truth as to his personal interest in the fund thus paid to him. No one has been deceived by such signature as to the rights which the appellant had in such fund.

This finding of the referee is not affected by anything in the act for the improvement of Brooklyn Heights, or in that consolidating the cities of Brooklyn, Williamsburgh, etc., referred to in the record. They provide for the payment to the parties entitled of the amount of the awards made for the taking of their interests, but the clear inference to be drawn from the evidence in this case sustains the finding of the referee that this award was for the entire fee in these premises. There can really be no reasonable doubt of the correctness of this finding. The fund under such facts would represent the real estate for which it was paid, and the rights of the several parties in and to the real estate would be the measure of their rights to the fund representing it. This real estate was owned by Mrs. Camp at the time of her death, but proceedings were instituted to condemn it prior to that event

But for such proceedings the appellant would have taken the real estate in question for life, as tenant by the curtesy, and as such would have been entitled to its possession and to the receipt of the rents and profits. Hatfield v. Sneden, 54 N. Y., 280; approved in Bertles v. Nunan, 92 N. Y., 152 at 160, per Earl, J.

Where land in which one has an estate as tenant by the curtesy is sold, the moneys obtained for the purchase represent the land and the tenant by the curtesy is in any event entitled to interest thereon for his life. Sweetapple v. Bindon, 2 Vern., 536; Cunningham v. Moody, 1 Ves Sr., 174-177; Dodson v. Hay, 3 Brown Ch., 405 ; Dunscomb v. Dunscomb, 1 Johns. Ch., 508.

In Cunningham v. Moody, and Dodson v. Hay, supra, the principal of the sums in which the parties had an interest as tenants by the curtesy seems to have been paid to them without question as to their rights, while in Sweetapple v. Bindon and Dunscomb v. Dunscomb, supra, the parties themselves asked that the principal sum be invested and the interest only be paid them for life.

There can be no doubt that the appellant was at least .entitled to the use of this fund for life, either in the shape of an investment by others and the payment of the interest thereon to him. during that time, or else in the shape of the payment of the principal of the fund to him, with or without the exaction of security, and with a right on his part to the interest thereon during his life.

At the time when the money was paid by the city, the fund was in truth under the control of the court in the condemnation proceedings. It was raised for the purpose of paying for the property taken by such proceedings, and the court might, as it seems to us, on the application of the city or of the father of these infants, have made an order providing for the payment of the fund to the father, with or without his giving security for its safe keeping during his life, or providing for its investment and the payment of the interest thereon to him for the term of his life. This might have been done under the general power of a court of equity to order a tenant for life of a personal estate, before its delivery to him, to give security for its forthcoming or else to provide for the investment of the fund and for the payment of interest only to him during his life. Covenhoven v. Shul er, 2 Pai., 122-132; Tyson v. Blake, 22 N. Y., 558; Smith v. Van Ostrand, 64 id., 278-281; Livingston v. Murray, 68 id., 485.

But generally, before making an order for such security, there must be some fact alleged and proved tending to show the property would be unsafe and insecure in the hands of the tenant for life. 1 Story Eq. Jur., § 604, and note; Hudson v. Wadsworth, 8 Conn., 348; Langworthy v. Chadwick, 13 id., 42; Clarke v. Terry, 34 id., 176.

However, instead of resorting to the power of the court in the very proceeding in which the fund arose,' it would seem that another course was taken. The only testimony upon the subject is that of the appellant himself, and he is very vague, saying at one time that he signed the receipt for the money as guardian at the instance, as he supposed, of the supervisor or comptroller, but on further examination he admitted he did not remember at whose instance he signed it. The record shows the appointment by the surrogate of Kings county of the appellant as guardian upon bis own petition, and the approval of his bond on the 17th of February, and the payment of the money to him on the 18th of February, 1868, as guardian. The corpus or principal of the fund did not belong to the appellant as owner, and it is also true that the right to the use of it did so belong to him during his life, while the right to the actual custody of the fund was subject to the regulation and control of the court When, therefore, the appellant, as guardian, received the fund, for the forthcoming of which he gave security, he took it subject to his individual right to the use of the same for his own life.

It was entirely right to give the receipt as guardian, for we must assume it was as guardian that he received the fund, but that does not conclusively determine the rights of the respective parties in it. Suppose some other person had been appointed guardian upon these same facts, the father having the right to the use of the fund for life. Would the receipt of the fund by the guardian affect the right of the life tenant to its use, or give to the ward any greater interest therein than the right to receive the corpus of the fund from the guardian upon the death of the life tenant ? The fault of the reasoning of the petitioner is, it seems to me, in the claim that because the appellant received this fund as guardian therefore it necessarily follows that upon the coming of age of the ward the latter is entitled to the immediate delivery of the fund to him. This does not at all follow, nor does its denial in any degree tend to the changing of the character in which the appellant received the fund.

The facts show that the fund he received was subject to the right of the tenant for life to use it during his life, and that right is not subject to the right of the ward, when he comes of age, to demand the immediate delivery of the fund to him.

The truth is, the claim of the petitioner to an immediate payment to him of the corpus of this fund is based upon no principle, when the facts of the case are considered.^ The right of the appellant to the use of this fund for. life cannot be successfully controverted. He did not lose that right by admitting the receipt of the fund as guardian of the infant heirs. They did own the corpus, and their title was not increased, nor their right enlarged, by the appellant admitting that he received, and by receiving, the fund as guardian. Upon this question of title and right, it may be assumed the fund still remains intact in the appellant’s hands. What has the appellant done to forfeit the use of the fund for his life? And what right would the petitioner have to demand its payment to him because he had arrived at the age of twenty-one years ? It all hinges upon the effect to be given to the appointment of the appellant as guardian, and his admission that Be received the fund as guardian. I cannot see in those facts anything inconsistent with the right of the appellant to the use of the fund for life. Of course when the ward became of age he was entitled to an account as between himself and the appellant, his guardian, but the right to demand payment of the corpus to him does not necessarily follow and attend upon the recognition of the right to call the guardian to account. While a court of equity may impose upon a tenant for life of personal property as a condition of the delivery of the property to him that he shall give security, it does not at the same time authorize the remainderman to claim the payment to him of the fund in which another has a life estate upon his giving security to the tenant for life that he will be paid the interest on the fund as long as he lives.

It may very well be that the guardian would not have obtained the possession of the fund in his character of mere life tenant without giving security for its forthcoming at the proper time. But, by being "appointed guardian his right as life tenant is not reduced, and by giving security he obtains possession of the fund, the use of which for life he is entitled to, and the production of which at the proper time, to wit, the expiration of his life estate, he has given security for. Hence, when the ward becomes of age he has no right to demand from his guardian the immediate payment to him of a fund which the guardian holds under such circumstances. In such case the accounting takes place as an ordinary one for all purposes of stating the account between the parties, but the order does not provide for an immediate payment to the ward of the corpus of any fund held by the guardian subject to his own or some other person’s right to a life interest therein.

It appears in this record that when the appellant was appointed guardian he gave the bond provided for by statute, and we must in the absence of the bond assume that it provided security for the faithful discharge of the trust reposed in him and for obedience to all the lawful directions of the surrogate, and for the rendering of a just and true account of the property received by him, and of the application thereof. There is, therefore, proper security for the ultimate payment to the ward" of the corpus of this property when it becomes payable to him by the death of the tenant for life. The interest on such corpus during the life of the life tenant the ward has never been and is not now entitled to. It appears, however, that the appellant has in truth lost the fund which he received and that he is unable to repay the same, having used it in his business, in which he lost heavily and which he was finally compelled to abandon, and the appellant may probably fairly be regarded as an insolvent.

What order may be made in such a case depends upon the question of the extent of the jurisdiction of the surrogate, which I shall discuss later on.

Holding, as we do, that the appellant had a life estate in the fund, we do not know of any power in the referee or the surrogate to compute its value and deduct the gross sum arrived at from the amount of the original fund. The appellant has never consented to any such computation and deduction, and there is no statute that we are aware of which vests the right in the court to compel him to consent Without his consent, and in the absence of such statute, it cannot be done.

It may be that on the accounting hereafter it may appear that there are some valid charges against the portion of the fund eventually coming to the petitioner. His proportionate share in the necessary legal expenses incurred in maintaining against the opposition of the city a right to an award from the city for the property taken, would seem to be a proper charge against the fund. Also the amount paid by the guardian in compromise of a judgment against the ward after he became of age and at his request If the facts should appear as claimed it would look as if these were proper charges. We do not, however, decide the questions, as they may again arise upon the accounting and upon possibly a different state of facts.

Hitherto it has been assumed that the right to demand an accounting was entirely clear. The appellant claims, however, that the statute of limitations is a bar, as the ward became of age in 1872, and these proceedings were not instituted until 1888. He says there is no trust in the relationship of guardian and ward, and that there can be no guardian to one who has arrived at his majority, and that from such moment the right which the former ward holds is simply one to call the guardian to account, which right ceases at the most in ten years, and he cites the case of the Matter of Hawley, 104 N. Y, 250; 5 N. Y. State Rep., 620, as authority for his position. That case does hold that one who is appointed a testamentary guardian is not a trustee within the meaning of the statute applicable to accountings of testamentary trustees even though the will designates him as a “ guardian and trustee,” provided the will creates no trust In the course of his opinion, Rapallo, J., said that in order to constitute a testamentary trustee, it was necessary that some express trust should be created by the will, and that although every guardian was in a general sense a trustee, as he deals with the property of others confided to his care, yet he was not such in the sense in which that term was used in courts of equity and in the statutes.

Some judges have rested the foundation of the jurisdiction of chancery over guardians upon this very doctrine of trusts. Duke of Beaufort v. Berty, 1 P. Wms., 702 ; Wellesley v. Wellesley, 2 Bligh H. R., 124, per Lord Redesdale. They were cases of personal trust relating to the proper custody of the infants, and it is claimed that the trusts spoken of in equity are applied only to property, and especially to real property, and not to persons. 2 Story Eq. Jur., § 1330. The power is also referred to the general power of the crown or of the state as parens patriae, to care for infants. Id., § 1332, note 6, etc.

But I do not regard the matter as very important upon this question. The guardian has obtained possession of the fund as guardian, and he deals with it, not alone in his own right as life tenant in this case, but he also deals with it as the property of others confided to his care. In this sense he occupies the position of a trustee so far as to prevent the running of any statute of limitation in his favor regarding the property entrusted to him. Although he may cease to be guardian upon the ward coming of age, yet so long as the property remains in his possession as guardian and unaccounted for he must remain liable to account. This is no hardship upon the guardian, nor can it be the means of sustaining stale claims against him as such. The moment the ward arrives of age he may cite the guardian to account, and now by the Code of Civil Procedure, § 2849, following the provisions of the Revised Statutes, vol 2, p. 152, § 12, the guardian may in any case where a petition for an accounting may be presented by any other person, present one in his own behalf and an accounting may then be had. Thus either party may claim an accounting the moment the ward attains his majority.

The last question arises upon the nature of the jurisdiction of the surrogate, based upon the fact that the appellant has lost the fund which was paid to him. Does that fact make any difference in the power of the surrogate over the subject? If the fund were safe and in the hands of the appellant, we hold that on the accounting the surrogate could not make any order for its payment by the appellant to the petitioner or any other person. Upon the authority of Seaman v. Duryea, 11 N. Y., 324, it is settled that the power of the surrogate to compel a guardian to account is not limited to determining the balance remaining in the hands of the guardian, but he may decree that the guardian pay over such balance to another guardian appointed in his stead or to the ward if he has attained his majority. Of course this refers to a case where the ward is entitled to immediate payment of such fund. It can have no application to a case like this, where the ward is not yet entitled to payment.

The surrogate has no power in such case to decree the payment by the guardian to the ward, even if the fund remained in the guardian’s hands, and it is difficult to see how he obtains any greater right in the case because it appears that the guardian has lost the money. Having no right to order its payment to the ward if the guardian still had it, no such power arises from the fact that the guardian has it not. The surrogate exercises only such jurisdiction as has been specially conferred by statute, together with those incidental powers which may be requisite to carry out such jurisdiction. Riggs v. Cragg, 89 N. Y., 489; Matter of Underhill, 117 id., 471; 27 N. Y. State Rep., 720.

Section 2821 of the Code gives the same authority to surrogates to appoint guardians which the chancellor had December 31,1846, and §§ 2847 et seq,, give the authority to a surrogate to compel a guardian thus appointed to account Payment in a proper case is part of an accounting, and where a surrogate has power to order an accounting he has power to decree payment of whatever sum is found due and then payable to the ward. But the difficulty here is that the ward is not entitled to payment at present, and an order in regard to the fund, directing its payment to some third party or into court, would not be one which naturally grows out of a power to direct an accounting, but could • rest only upon a power to see that a fund once rightfully in the hands of a guardian and lost by him should be in some way made good before the time arrived when it would become payable to the ward, and during the time when the use of it would belong to the party who had in truth lost it I do not think this power comes under any legitimate exercise of the power to decree an accounting. The surrogate has no general jurisdiction over a guardian as a trustee. That power remains in the court of chancery or in its successor, the supreme court In re Andrews, an infant, 1 Johns. Ch., 99. The surrogate has power now to decree the accounting and to take and state the account, but for whatever remedy there may be in regard to an enforcement of the present liability for the safety of the fund, so that it shall be forthcoming at the proper time, resort must be had to a court of equity. What remedy a court of equity could furnish is a question not now before us. It might be claimed that it has the same power it would have had if the money had been paid over under its order to the life tenant upon his giving the required security that it should be forthcoming when properly payable at his decease. The life tenant having thus obtained possession of the fund for his life and the security being sufficient, has the court, upon proof being made that he has lost the fund and is insolvent, power to order its repayment into court and to enforce such order by process of contempt, or is the security which was exacted when the money was paid over the only source of indemnity for the loss ? If so, could it be resorted to on proof of the loss and the insolvency of the life tenant, or must the remedy upon the bond be postponed until the death of the life tenant ? In other words, would proof of the loss and the insolvency of the life tenant be regarded as a present breach of the condition of the bond ?

Lord Hardwicke, lord chancellor, said, a court of equity would decree a legatee to refund his legacy in order to allow the payment of a debt due from the estate. Hawkins v. Day, Ambler, 160. This was not based upon any statute, but upon the inherent power of a court of equity having general jurisdiction over the subject matter to see to it that justice was done. These questions do not arise here and we are not only not called upon, but it would be useless for us to give an opinion thereon in advance of their presentation. I only allude to the matter to show that while they are novel, important and not easy of solution, the question immediately before us has not been decided without consideration of the possible consequences which may flow from our decision.

The result is that the order of the general term and the decree of the surrogate must be reversed, with costs, and the accounting of the appellant must be proceeded with in conformity with the views herein expressed.

All concur.


text:
    George Moore et al., Ex’rs, Resp’ts, v. The New York Elevated Railroad Co. et al., App’lts.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Former adjudication.
    Any fact once found and embodied in a judgment must be regarded as final and conclusive between the parties thereto and their privies whenever and wherever the question subsequently arises.
    3. Railroad—Damages—Interest.
    In actions for damages caused by the erection and operation of an elevated railroad, while the jury have the right in their discretion to award interest upon unliquidated damages incapable of liquidation by computation, yet they are not bound to do so, and a direction by the judge that plaintiff is entitled to interest from a certain day in each year is error.
    Appeal from judgment of the New York superior court, general term, affirming judgment entered upon verdict of jury.

      Brainard Tolles, for app’lts; A. Edward Woodruff, for resp’ts.

       Reversing 36 N. Y. State Rep., 81.

   Peckham, J.

The defendant’s counsel seeks to review the decision of the trial court in refusing his request to rule “that the findings and decisions of the court in the judgment roll put in evidence, to the effect that the injury to the plaintiff by reason of the existence and operation of the elevated railroad before her building during the period covered by that judgment was $300 a year, is conclusive as evidence upon that point.”

We think the point is not presented with sufficient clearness. The judgment roll is not attached to the record herein, and we have no means of knowing what its contents were, or what facts were decided in it. The defendants’ counsel, in his request to the court, assumes to describe it, and the court denies the request, but whether such denial is based upon a disbelief of the correctness of the request of counsel, as matter of law, or because of his mistaken recital of the contents of the roll, does not appear.

We cannot assume error, and hence even if we should hold that the judgment would be conclusive between the parties to this action upon the fact of the amount of injuries sustained by the plaintiff by reason of the existence of the railroad and its operation during the period covered by such judgment, we cannot say that the judgment contains any finding or decision of that nature, and therefore we cannot say the court committed any error in refusing to rule upon the subject in accordance with the defendants’ request. Speaking generally it may be said that any fact once found, and embodied in a judgment, must be regarded as final and conclusive between the parties thereto, and their privies, whenever and wherever the question subsequently arises.

The judgment herein must, however, be reversed for misdirection contained in the charge of the learned judge to the jury. There was conflicting evidence as to the amount of damage caused to plaintiffs’ property by the erection and operation of the defendants’ railroad. The court said to the jury “ that the evidence shows that a loss has been occasioned to the plaintiff, and that loss is put by the defendants’ experts at the sum of $200 a year; and you must find a verdict for the plaintiff in not less than the sum of $200 a year, and such sums for interest as I shall hereafter refer you to.’’ In a subsequent portion of the charge the learned judge said: “ How if the plaintiff is entitled to recover, she is entitled to recover at least the sum of $200, as I told you, and she is also entitled to recover interest on that $200 from the first day of May of each succeeding year. * * * She was entitled to it at that time; she is entitled to recover interest from that time. * * * Your verdict must be for a sum in gross, and it must include the yearly interest that I have mentioned.’’

This charge was erroneous. In actions of this nature, while the jury have the right in their discretion to award interest upon unliquidated damages, incapable of liquidation by computation, yet they are not bound to do so. Walrath v. Redfield, 18 N. Y., 457, 462; Home Ins. Co. v. Penn. R. R. Co., 11 Hun, 182, 188 ; Mairs v. Manhattan Beal Estate Ass'n, 89 N. Y., 498; Duryee v. Mayor, 96 N. Y., 477, 499. We do not know what principal sum the jury found as damages upon which to base the calculation for interest, and it does not appear what the amount of interest was which the jury allowed, and we cannot therefore make an order granting a new trial in the alternative unless the plaintiff consent to deduct the interest

The exception to the charge of the learned judge was sufficiently specific to raise the question.

The judgment must be reversed, and a new trial granted, costs to abide the event

All concur, except Gray, J., absent.