author: Pratt, J.

text:
    John Fraser, Resp’t, v. John H. Small, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Contract—Sale.
    After negotiations by letter and telegram, plaintiff, by telegram, accepted an offer of sale of ice, and ordered a shipment, saying he would see defendant the following Monday. Defendant ordered a cargo and requested a certified check therefor. Upon meeting to execute a contract for such sale, plaintiff disputed some of its terms, and defendant after endeavoring to explain them, remarked that as he did not understand it, they would call the trade off, to which plaintiff assented, but two hours later served a notice demanding delivery of the ice. Held, that the minds /of the parties never met as to the terms of the sale, and therefore there was no contract.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    Action for breach of a contract of sale.

      David J. Newland, for app’lt; Tompkins & Bannister, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered on a verdict of a jury. The complaint alleges a contract for the sale of ice to plaintiff and a refusal to deliver.

To prove the contract the plaintiff submits the following papers. A letter, dated July 11,1890, stating, “ Will you be kind enough to tell me by return mail your latest cost price, delivered here, for 200 or 250 tons of ice, and oblige.”

A telegram from Small to Frazer, dated July 12, stating: “ If ordered to-day, five twenty-five at dock, delivered now or later,”

A telegram from Frazer to Small, dated July 12, stating: “ I accept your offer. Deliver 200 tons in one week or later. Will see you Monday.”

A letter from Small to Frazer, dated July 12, stating: “ It was - lucky for you that you wired acceptance of my offer. The . asking price is to-night seven dollars per ton in-take weight, bill of lading.

^ “I have ordered a cargo for you. To make it secure, you **. had better send me a certified check for $500, which I will hold in my bank, Seventh National, N. Y.”

The appellant, in his answer, alleges a custom of buying and selling ice by the cargo, making the price per ton upon the “ intake ” weight in Maine, as shown by the bill of lading, or weigh-er’s certificate, and that his offer of $5.25 per ton to Fraser was based on “ in-take ” weight.

And appellant testified that he was engaged as a broker in selling ice on commission, and that on Tuesday, July 15th, after the letter of July 12th, defendant came to his office and selected a cargo of ice of about 200 tons in a vessel named the Lottie A. Walford, and that they then sat down to make out the contract, and that he, defendant, drew it up and read it over to plaintiff twice.

Defendant introduced in evidence the proposed contract, which is as follows:

“Maine Ice, Wholesale; Vessels for Ice and Coal.”
“ J. Henry Small, )
“ 24 Cortland St., N. Y, l
“New York, July 15,1890. )
“John Fraser, of Nyack, N. Y., agrees to purchase, and J. H. Small, agent, agrees to sell one cargo of ice, of about 200 tons, more or less; said ice to be merchantable ice, to be delivered at dock at Nyack, N. Y., or as near as water will permit, free of expense to said purchaser. Ice to be paid for on B. L. in-take weight in Maine. Ice and freight to be $5.25 per ton for ice and freight at dock at Nyack, N. Y. On receipt of B. L. said Fraser to pay for the ice. Freight to be paid to the captain when discharged.”

Defendant further testified that when Fraser came to the “ intake weight,” he made objections to that, and said: “This ice is to be weighed out to me, and put into my building weighed over the scales at Nyack.”

Defendant undertook to explain to him “in-take weight,” “F. O. B.,” and the way ice was sold, and finally said to him: “ As long as you do not understand this, we will call the trade off; ” he said: “Very well; we will call the trade off; ” and he shook hands and went out.

Defendant’s clerk testified to the same facts of the drawing up of the contract, of the misunderstanding as to “in-take weight,” and Fraser’s assent to call the trade off; and of Small’s reading the paper in Fraser’s hearing.

Plaintiff nowhere denies this testimony of the agreement to call the trade off; but introduces in evidence a paper notifying defendant that he shall require delivery of the ice, and on failure shall hold defendant for damages.

It is admitted that he served this paper (though dated the 14th) on defendant the same day, about two hours after he went out from the 'first interview.

Much testimony was given as to the general custom of selling ice on the “in-take weight,” the weight at the place of loading on bill of lading, and the signification of the letters “ F. O. B.,” free on board.

I think it is plain from the foregoing that the minds of the parties never met upon the terms for a sale of ice.

There is no evidence to dispute the fact that when the defendant sent the despatches and letter, he meant a sale of ice according to the custom of the business at “in-take weight.”

The plaintiff undoubtedly understood, or may have understood, he was to have it weighed out at the place of delivery.

The first telegram states the place of delivery at the dock, which -shows defendant intended to deliver by a vessel.

The same day the defendant writes a letter, which was called for by plaintiff’s first communication, and which must be regarded as a part of the negotiation, in which he refers to the asking price for ice as seven dollars per ton “in-take weight,” “bill of lading,” and in the margin of which were the words and figures, $5.25, F. O. B., plainly meaning the price and terms of the sale he proposed to make, and stating further that he had ordered a cargó for the plaintiff.

This letter should have apprised the plaintiff that the defendant intended to sell a cargo of ice as the letter indicated to those in the trade, to wit, a cargo of ice by weight as loaded.

It is doubtful if plaintiff believed the contract was complete, as he states in his telegram accepting the offer “ will see you on Monday,” showing that he deemed it necessary to arrange for some details or to make or receive some explanations.

That the defendant did not regard the contract closed is evidenced by the fact that he made out a written contract in due form which he asked the plaintiff to sign.

If, however, the telegram and letter of defendant dated the 12th of July can be regarded as constituting a contract, the plaintiff is not in any better position, as the letter plainly implies a contract according to the custom of the trade, i e., at $5.25 F. O. B. “ in-take weight,” as the only one defendant proposes to make.

We think that .upon all the circumstances of the case there was a failure on the part of the plaintiff to prove the contract set out in the complaint, and that a verdict should have been directed for the defendant.

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

Barnard, P. J., and Dykman, J., concur.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    John B. Dailey, Resp’t, v. Jacob Young, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Bbokbbs—Commissions.
    Plaintiff was employed by defendant to sell a house and negotiated with one D., who was not willing to pay the price. Defendant refused to take less but did not terminate the contract with plaintiff, and subsequently himself sold to D. at a less price. Thereafter he requested plaintiff to accept a certain sum for his services, which plaintiff agreed to do. Held, that the parties stood in the same position as if defendant had told plaintiff to sell to D. at the price he took himself, and that plaintiff was entitled to recover the amount named.
    Appeal from judgment in favor of plaintiff, entered upon verdict in county court.
    Action to recover commissions of a real estate broker for the sale of real estate in the city of Middletown.

      T. N. Little, for app’lt; B. F. Low (W.F. O'Neill, of counsel), for resp’t.
   Barnard, P. J.

The complaint avers an employment of the plaintiff by the defendant to sell a house and lot in Middletown, Orange county, which the defendant owned. That after the sale the defendant requested the plaintiff to accept $100, which was less than the value of the service, and that the plaintiff accepted this sum as the value of the work done. The answer dénies the complaint entirely.

It appeared on the trial that the contract of employment between the parties in respect to the price was that it was to be $4,500.. The defendant sold the house himself for $4,200. The plaintiff was in negotiation with one Donovan and had shown him the premises. Donovan would not pay the price and the plaintiff so informed the defendant He refused to take less, but did not terminate' the contract with the plaintiff. He was told that the proposed purchaser wanted an abatement of one or two hundred dollars. The defendant on this state of the facts agreed with the purchaser Donovan for $2,200, saying that “ as long as he was doing the business himself he would not have to pay any commission.” These facts if found by the jury put the parties in a position in respect to the subject of the contract, the same as if defendant had told plaintiff to sell to Donovan at the price he took himself. This was the view of the parties themselves, for defendant promised to pay the $100 agreed upon after he had sold to Donovan. Levy v. Googan, 9 N. Y. Suppl., 584; 30 N. Y. State Rep., 553.

The plaintiff was entitled to recover this sum and the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Julia P. Chevers, Resp’t, v. Carrie M. Damon et al.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Foreclosure—Costs—Service by publication.
    Where a judgment entered against a mortgagor contains nothing to show that the judgment creditors are partners, extrinsic proof would be necessary to render personal service on one binding upon the others, and hence the plaintiff in an action to foreclose the mortgage has a right, upon a refusal of an appearance for the absent judgment creditors, to serve them by publication, and the expense thereof is properly allowable in his bill of costs.
    3. Same—Settlement.
    Where the plaintiff in foreclosure has received his money and assigned the bond and mortgage under an order of the court directing him to do so if required by a subsequent mortgagee, this constitutes a settlement within the meaning of § 3353 of the Code.
    Appeal from order settling and allowing plaintiff’s costs in an action to foreclose a mortgage, upon a settlement of the action pursuant to an order of this court by assigning the mortgage to an assignee named by one of the defendants in this action, upon his paying the amount due on the mortgage the interest and costs; in so far as such order allows plaintiff $30, one-half allowance by statute, and $30 for publishing summons and notice.
    The defendants John Clark, Stewart ■ Clark and William Clark recovered judgment in the supreme court for the county of New York and also in the city court of New York, and filed transcripts thereof in the office of the clerk of the county of Westchester, whereupon said judgments were docketed by the said clerk of the county of Westchester on the first day of November, 1890, a date subsequent to the recording of the mortgage sought to be foreclosed in this action, and a transcript of the docket of judgments kept by the clerk of the county of Westchester will be found in folios 50 to 53 of the printed papers on appeal herein.
    The said docket shows a judgment in favor of John Clark, Stewart Clark and William Clark without in any manner designating them as copartners, and there is nothing that appears from the said docket to show that their interest might not have been several rather than joint.

      Charles B. Meyer, for app’lts, Clark and Clare; Jarvis W. Mason, for resp’t.
   Pratt, J.

The judgments recovered by the members of the firm of Clark & Brother would not necessarily show that a partnership existed between them. They were all proper parties to the foreclosure. Prima facie they were necessary parties. A service upon one only of them would not suffice to extinguish the rights of the others without the aid of extrinsic proof.

The plaintiff’s attorney applied to appellants to voluntarily appear in the action for the, absent defendants. When that request was refused, the plaintiff was entirely in the right in publishing the summons to bring them in.

The appellants are in error in their contention that there has been no “ settlement ” of the action. The plaintiff has received his money. If he has not discharged the cause of action, it is because at the instance of appellants the plaintiff was required to assign the cause of action.

We think that is a settlement of the action within the meaning of the statute.

The taxation was right and the order appealed from is affirmed, with ten dollars costs and disbursements.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Romaettie Dunworth, App’lt, v. Samuel Dunworth, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Deed—Reformation—Fraud—Limitation.
    Plaintiff and her husband by separate deeds conveyed lands owned by them and took back a mortgage to themselves jointly for the purchase money. On foreclosure thereof the property was bid in for plaintiff, but the deed was given to her husband alone, who retained it unrecorded for four years, and represented to plaintiff that the deed was taken in her name. Plaintiff did not discover the omission of her name until after her husband’s death, in 1888. In an action to reform the deed, Held, that the facts would justify a finding of fraud and that the statute of limitations was not a bar to the action.
    Appeal from judgment dismissing the complaint on the ground that the action was barred by the statute of limitations.
    Action to reform a deed from Nathaniel H. Clement, as referee in a foreclosure action, to James A. Dunworth, the husband of the plaintiff and father of defendant.

      F. X. Donoghue (Isaac N. Mills, of counsel), for app’lt; Hess, Townsend & McClelland, for resp’t.
   Barnard, P. J.

The facts out of which the controversy arises are these: The plaintiff was the wife of James Dunworth. The husband owned a parcel of land individually and the plaintiff owned two separate parcels in her own right. The husband and wife by separate deeds conveyed to Stephen Hasbrouck the pieces on the 1st of May, 1871, and a mortgage was given back to husband and wife granting all the three pieces for $18,000, to secure the purchase money.

This mortgage was foreclosed in the name of husband and wife as plaintiffs and sold on the 7th of December, 1872. The property was bid in by the plaintiff’s attorney for the plaintiffs but the deed, was given by the referee to the husband alone without the knowledge or direction or assent of the wife.

The plaintiffs’ attorney in the foreclosure action either did not examine or be did not observe that the deed was to the husband alone until a very recent date, within a few weeks preceding the trial of the action. The deed was delivered by the referee to the husband, and he kept it some three or four years unrecorded and then directed his attorney to record it. The plaintiff’s husband died in 1888. The plaintiff was sick at the time of the sale under the foreclosure and did not discover the omission of her name until after her husband’s death. The husband informed the plaintiff that the deed was taken in her name. He so told others, and it is found in the case that it was left out by mistake. The evidence will justify a finding of fraud. Justice required that the husband should protect his wife in the same. If a mistake was made and the husband kept the deed unrecorded until after the sale had ceased to be an object of interest and inquiry, and if he then took the deed and kept it so that the wife could not and did not see the mistake, and he was keeping her quiet by a statement not based on the truth, it would furnish a case which, whether he designed to defraud or not, would legally amount to fraud. The court of appeals in Reitz v. Reitz, 80 N. Y., 538, class mistake and fraud together as furnishing a basis for relief within six years of the discovery of the facts. “It was his duty to take the conveyance in the name of his principal, and he cannot profit by his omission to do so or successfully invoke against her or those claiming under her a statute which was designed to prevent, not to encourage fraud.” Besides, if the deceased husband of plaintiff was a trustee and agent only, and took the title in his own name without his wife’s knowledge, he never repudiated the trust which the law jmt upon him. He is proven to have acknowledged his wife’s title a few months before his death.

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

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


author: Peckham, J.

text:
    Mary Timlin, Adm’rx, etc., Resp’t, v. The Standard Oil Co. of New York et al., App’lts.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Nuisance—Liability of lessor and lessee.
    The Standard Oil Oo. took a lease of a certain shed in the name of the Acme Co., occupied it and sublet a portion to the other defendants, individuals dealing in oil. The wall of the portion sublet fell, killing plaintiffs’ intestate, who was at work on the railroad track adjoining the premises. The court charged that the individual lessees were liable unconditionally if the jury came to the conclusion that the wall was in a dangerous condition and a nuisance at the time they took their lease, although they may then have known nothing of the dangerous condition of the wall and may possibly have remained ignorant without being guilty of negligence up to the time when the accident occurred. Reid, error.
    2. Same.
    The liability of a grantee or lessee of real estate with a nuisance upon it arising from the premises being out of repair does not arise upon the mere execution of the lease, there must he notice of the existence of the nuisance or time enough must have elapsed in which knowledge of its existence would be obtained by the exercise of reasonable diligence.
    3. Same.
    The Acme Company could not escape liability because of its non-possession, if the premises were a nuisance, where it permitted the Standard Company to take possession in its stead. It was under an obligation to show exactly what the relationship was, or else to bear the result of a possible unfavorable inference by the jury.
    4. Same—Liability of owner.
    The owner of premises must use reasonable care to inform himself of the condition of the property which he proposes to let, and if at the time of leasing he know, or if in the exercise of reasonable care he would become informed of the fact that the property has upon it a nuisance dangerous to the public or to an adjoining owner, he must abate it before he leases, and if he do not he is liable to respond in damages to any one injured in consequence of and by the nuisance.
    5. Same.
    Where the lessees of property sublet it or a portion of it they must stand at such time as owners thereof for all purposes connected with their leasing.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff, entered upon a verdict upon a trial at circuit.

      Matthew Hale and Louis Marshall, for app’lts ; E. Countryman, for resp’t.

       Reversing in part 26 N. Y. State Rep., 42.

   Peckham, J.

The plaintiff brought this action to recover damages arising from the death of her husband, which occurred in the city of Albany in September, 1885, and for which she claimed the defendants were liable. She recovered a judgment at the circuit which has been affirmed at the general term, and from the judgment of affirmance all the defendants have appealed to this court. The Mew York Central & Hudson River Railroad Company owned the premises upon which the wall stood, the falling of which caused the death of the plaintiff’s intestate. For a number of years past a firm named Strain & Reynolds had leased these premises from the railroad company, and in December, 1876, they subleased a portion of them to defendants Murphy & Liscomb for one year from May 1, 1877, and those defendants occupied such portion up to 1884 as tenants of the firm by reason of yearly renewals of the lease, either orally or in writing. In 1884, the firm of Strain & Reynolds became the agents of the Standard Oil Company of Mew York.

In July, 1884, the Mew York Central Railroad Company, still being the owner of the whole premises, leased them to the Acme ■ Oil Company, one of the defendants, for five years from May 1, , 1884. The firm of Strain & Reynolds in or about May, 1884, as agents of the Standard Oil Company, renewed ■ the lease for one year to defendants Murphy & Liscomb of that portion of the premises which they had theretofore leased to such defendants, and this lease was on the 1st of May, 1885, again renewed by Strain & Reynolds as such agents and in writing for one year from that date. The individual defendants occupied the portion of the premises leased to them, and the Standard Oil Company occupied the balance, and such relative occupation existed on the 12th day of September, 1885, when the plaintiff’s intestate was killed. The lease from the railroad company to the oil company contained a provision for its termination at any time before the expiration of the five years, at the option of the railroad company, by giving sixty days written notice to the oil company of its option to so terminate it

The lease from Strain & Reynolds to Murphy & Liscomb contained a similar clause providing for its termination in the same way. This option was in existence when the lease was renewed May 1, 1885. There is no direct evidence of the transfer by the Acme Company of its interest, or any portion thereof, in the lease above described to the Standard Company, or any other corporation or person.

The property thus leased from the railroad company is situated on the west side of, and immediately adjoining lands belonging to the Delaware & Hudson Canal Company, and the Canal Company thereon laid its tracks, which at this point run about north and south. On September 12, 1885, the property was separated from that of the Deleware & Hudson road by a brick wall about eleven feet high and one foot wide, running north and south for a distance of about 111 feet, the wall being laid wholly on the land of the Central Hudson Railroad Company, but within two inches of the line between the two companies. From the top of this wall there had been a shed roof running towards the west, which tipped in that direction, so that the water shed was away from the lands of the Delaware & Hudson Company. The wall formed the eastern boundary of the property leased to the Acme Company, and the property thus leased, and consisting of not much more than a rough shed, was used as a sort of storage place for oil, and was but one story high. It was all one building at the time Strain & Reynolds leased it from the railroad company, and they leased the northern end to the individual defendants. There was never any dividing brick wall between the northerly portion occupied by them and the southerly portion occupied by the oil company. There was simply a fence or board partition running east and west, and nailed against posts, so as to distinguish the parts occupied by each respectively. No barrels of oil were ever put against this brick wall by any of the parties. The brick wall from the northerly to the southerly end was one continuous wall with an angle, which was sixty-eight or seventy feet from the northerly end, and in the part occupied by the individual defendants.

The plaintiff’s intestate was a laborer in the employ of the Delaware & Hudson Canal Co., and on the 12th of September, 1885, he had gone to work to repair the tracks of that company opposite these premises. While working there the wall fell over and upon him and crushed him to death. The wall for about a distance of sixty feet fell over, the northern end of the fall being about five feet from the northern end of the wall. It is claimed that it was all on that portion of the premises which had been leased to the individual defendants. There was evidence on the part of the plaintiff tending to show that the wall had been in a leaning condition, out of plumb and dangerous for a number of years, and there was evidence from which a jury might infer knowledge by the oil companies of its condition and thrtt it was dangerous and liable to fall at the time when the lease was renewed in the name of the Standard Oil Company to Murphy & Liscomb in May, 1885. There was also evidence from which the jury might have inferred negligence on the part of the oil company if its officers or agents were ignorant of this dangerous condition of the wall at that time.

The plaintiff claims to hold all the defendants on the ground that they were all guilty either of letting premises with a nuisance upon them of a nature dangerous to the public or an adjoining owner, or of maintaining such nuisance on premises leased to them while such nuisance existed. The counsel for the Acme Company maintains there is no evidence to sustain a recovery against it. That company took the lease of the whole property from the railroad company. There is no evidence of any assignment or sub-lease to the Standard Company, nor any direct evidence upon the subject of the relationship between these two. The Standard Company admits for purposes of its own that it has been the owner of the lease from the time of its execution and that its liability is to be determined as if its name had been inserted in the lease. This does not absolve the Acme Company. The Standard may admit its own liability, but cannot by admission destroy that of the Acme Company to the plaintiff, if it otherwise exist So far as appears there has been at least entire acquiescence on the part of the Acme Company in the assumption of power by Strain & Reynolds, acting as agents of the Standard Company, to lease a portion of the premises to the individual defendants and in their reception of rent. The Acme Company might have thus acquiesced because they had transferred by assignment or sub-lease all their interest to the Standard Company at a time when they were entirely ignorant of the existence of any dangerous nuisance on the premises. They also might have acquiesced because while taking the lease in "their own name they really took it as partners or joint owners with the Standard Company, although no formal transfer of the legal title or any portion of it had been made.

An equally strong inference possibly might be drawn as to the existence of either fact, and generally such a condition of the evidence would be fatal to the position of the plaintiff, who asserted the liability of the Acme Company. But the nature of the relationship between the companies was a matter of evidence peculiarly, if not solely, within their power to prove. Prima facie the Acme Company, being the lessee, assumed the responsibility consequent upon such a position. If their relationship were such as to exempt the Acme Company from all liability, is it too much to assume that the fact would have been proved by it? If either one of two inferences could be drawn, the one inculpatory and the other exculpatory of the Acme Company, should not a jury be permitted to draw that one most favorable to the plaintiff, when the Acme Company with all the evidence in its own power and possession fails to produce it and to thus dispel the doubt ? I think the plaintiff’s evidence left the Acme Company under an obligation to show exactly what the relationship was, or else to bear the result of a possible unfavorable inference by the jury. See Schmidt v. Keehn, 32 N. Y. State Rep., 11, and cases cited in opinion; Stark. Ev., 9th Am., Ed., 762.

I think, therefore, we must place both companies in the same condition and examine their liability as depending upon the same facts.

The individual defendants were not what is termed tenants from year to year, which, for the purpose of terminating the tenancy, may require notice, but they were tenants under a lease for one year, which had been renewed orally or in writing annually, and which had terminated May 1, 1885, and on that date had been renewed in writing until May 1, 1886. The learned judge left it to the jury to say, upon all the evidence, whether the wall was in a dangerous condition and a nuisance in law against the adjoining owners and the persons living there at the time the Standard Company obtained the lease or the right to occupy under it, and, at the request of the Standard Company, he further charged that the plaintiff could not recover against that company unless they were satisfied by the evidence that the defendant knew, or ought to have known, or had notice that the wall was in a dangerous condition before May 1, 1885.

I think this was a correct statement of the law. Under this charge the jury could have found that the wall was in a dangerous condition and was a nuisance when this sublease was executed to the individual defendants May 1, 1885, and that the officers or agents of the company knew before that time, or ought to have known that it was in this dangerous condition. With this knowledge they were bound to enter upon the premises and repair the wall, or take it down, or adopt some steps to avoid the danger before they relet them. If they chose to relet, they took the responsibility. Gandy v. Jubber, 5 B. & S., 78; Sandford v. Clarke, 21 Q. B. D., 398; Clancy v. Byrne, 56 N. Y., 129 ; Ahern v. Steele, 115 id., 203; 26 N. Y. State Rep., 295. This does not impose the duty of constant care and inspection of premises upon an owner who has let them. It imposes upon him the duty of reasonable care to inform himself of the condition of property which he proposes to let, and if at the time of leasing he know or if in the exercise of reasonable care he would become informed of the fact that the property has upon it a nuisance dangerous to the public or to an adjoining owner, it imposes upon the owner and proposed lessor the duty to abate it before he leases such property, and if he do not, it leaves him with a liability to respond in damages to any one injured in consequence of and by the nuisance.

The companies occupied the position of owner of the premises in regard to their liability for a nuisance thereon when they came to sublet them. They were the immediate lessees of the whole ¡Di’operty from the owners of the fee, and when they proceed to sublet it or a portion of it, they must stand at such time as owners thereof for all purposes connected with their leasing. The fact that their lessors had the right to terminate their lease upon giving them a written notice of sixty days does not change the liability imposed upon them when they assumed to sublet a portion of the property with a known and dangerous nuisance thereon, a nuisance of such a character that it was liable at any moment to do damage to an adjoining proprietor or any innocent third person. They cannot be permitted to shield themselves under the plea that they are mere tenants, and that even as tenants they were not themselves occupying the premises, and were not, in any sense, owners thereof. While their lease lasted, and while they were in possession of the whole premises, they certainly had the right to repair them so as at any rate to abate a nuisance dangerous to third parties.

If, with the knowledge of the existence of such nuisance, they choose to sublet all or a portion of the premises, and thus secure compensation for the user thereof, every principle upon which an owner is held liable when he demises property under such circumstances applies to the tenant of the whole property who sublets any portion thereof on which the. nuisance, or any part of it, exists.

It was said by Eolger, J., in Swords v. Edgar, 59 N. Y., 28, at 38, which was the case of a pier out of repair, that it “ was in a ruinous and dangerous condition when it was demised. It was, up to the day of the demise, the duty of the defendants solely to see that it was in a safe condition. There is no suggestion in the case of want of knowledge on their part of its actual condition when leased by them, and the facts of the case are such as that they are chargeable with knowledge of its actual dangerous state.” And the learned judge in that case held that a lessor was guilty of a nonfeasance or a misfeasance if he have leased the premises in a dangerous condition for the public, instead of first making them safe.

In Todd v. Flight, 9 C. B., N. S., 377, decided in the common pleas in 1860, an action was held to lie against an owner who, with knowledge, leased his premises in a dangerous condition (to wit, in such a condition as to be a nuisance), where damage was caused to a third party after such leasing. The opinion was delivered by Erie, 0. J., who held the owner guilty of a wrongful act in knowingly renting premises in a condition dangerous to the public or an adjoining owner.

The case of Edwards v. N. Y. & Harlem R. R. Co., 98 N. Y., 245, holds no different doctrine. In that case it was stated in the opinion that the owner is liable if he create a nuisance and demise the premises with the nuisance on it. I think that even if he do not create it, yet if to his knowledge it exist on his premises at the time of the demise, and is of a character dangerous to the public or an adjoining owner, or if he were in truth ignorant, and yet by the exercise of reasonable care and diligence he would have known of its existence, there is no principle which can exempt him from responsibility any more than if he created the nuisance himself. The same principle would hold the lessee of the whole premises who, in his turn and with full knowledge or means of knowledge, leases to another the premises or any portion of them with the nuisance thereon.

The counsel for the companies says there was no attempt to charge them as owners of the premises. The court did, in fact, charge that the owner was not a defendant. It is plain the expression was used with reference to the owner of the fee. Whether they were called in express terms owners is immaterial. The court held them not liable unless they knew or ought to have known before May 1, 1885, the date of the sub-letting to Murphy & Liscomb, that the wall was in a dangerous condition amounting to a nuisance to adjoining owners or persons living there. This is the substance of the text of the charge taken in connection with the request of counsel to charge, which was granted.

It is true that the limitation as to the knowledge of the corporation before the first day of May, 1885, was spoken of only with reference to the Standard Company. But the request to charge was limited to that company, and notice to that company might be regarded as notice to the Acme Company in case the jury •should find the proper inferences above spoken of with reference to the liability of that company, and hence, if the counsel for the Acme Company were not satisfied with the limitation, he should "have brought the matter specifically to the attention of the court •and should have asked it to extend the charge in terms to the Acme Company. The cases have all been recently reviewed in the exhaustive opinion rendered in Ahern v. Steele, supra, and it is unnecessary to further elaborate the discussion. I have looked carefully over all the exceptions taken on the part of the counsel for the corporation defendants and find none upon which to base a reversal of the judgment in this case.

A somewhat different question is presented in the case of the individual defendants. By the charge of the learned judge they were held liable unconditionally, if the jury came to the conclusion that the wall was in a dangerous condition and a nuisance at the time Murphy & Liscomb leased the premises in 1885, although they then may have known nothing of the dangerous condition of the wall, and may possibly have remained ignorant without being guilty of negligence up to the time when the acci-dent occurred.

I think the later cases, and especially the case of Ahern v. Steele, .supra, reported since the trial of this action, have cleared up any doubt which may have heretofore existed regarding the ground of the liability of a grantee or lessee of real estate with a nuisance upon it, arising from the premises being out of repair. Assuming the liability of the lessee under some circumstances, it does not arise upon the mere execution of the lease. There must be notice of the existence of the nuisance or time enough must have elapsed in which knowledge of its existence would be obtained by the exercise of reasonable diligence. Bor the error in the charge of the learned judge regarding the individual defendants there must be a new trial.

It might also be somewhat of a question whether they would be liable upon-the facts herein viewed in any light. They were never the lessees of the whole premises in regard to which the wall formed a continuous and solid boundary. Would it be maintained that tenants of rooms in a tenement house, or of flats in a building rented for that purpose, would be responsible to the public or to adjoining owners if they neglected to repair one of the main walls of the house which was out of plumb and dangerous to their knowledge ? Does the rule as to maintaining a nuisance upon real estate dangerous to the public apply in case of one who has but a possession of a portion of the premises and where the nuisance consists in the dangerous condition of a wall such as existed in this case ?

It is true there is a difference in the situation of the tenants in the tenement house and persons situated as were these individual defendants, assuming they had knowledge of the dangerous character ■of the wall. Exactly what their duty and liability were is .not entirely clear. A tenant at will of a house which was in a public highway and was in a dangerous condition and liable to fall at any time, has been held liable to indictment as maintaining a public nuisance. Reg. v. Watts, 1 Salk., 357. He was a tenant of the whole house, however, and not of only two or three rooms in it. The court held that the owner of the real estate was not looked to in such case; it was the occupant, and it was to guard the public safety that he was held, no matter how precarious his title was in point of time.

The questions as to the duty and liability of the individual defendants are important, but it is not necessary to now decide them. Another trial might so result that they would not arise.

For the error in the charge above alluded to, the judgment as to the individual defendants must be reversed and a new trial granted, with costs' to abide the event, but as to the corporation defendants it must be affirmed, with costs.

All concur.


author: Brown, J.

text:
    Charles Kerr, App’lt, v. The West Shore Railroad Co., Resp’t.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    1. Eminent domain—Right op bipabian owneb—Dbaw-bbidge in bailBOAD BBIDGE ACBOSS BAY.
    Where a riparian owner has been compensated for land under water taken by a railroad crossing a bay or indentation in front of his property, he is not entitled to have a draw-bridge erected in the road to permit the passage of vessels to his property, unless the bay was capable of and accustomed to be generally navigated.

      2. Same.
    That a vessel of light draft might at certain stages of the tide get nearer the shore than it could when the crossing was erected does not make it, in a general sense, a navigable part of the river.
    8. Same.
    The restoration of a private road leading to the docks upon a river is not a duty imposed upon a railroad company, and its loss or destruction must be deemed compensated by the award made by the commissioners in the condemnation proceedings.
    Appeal from a judgment of the general term of the third judicial department, which affirmed a judgment of the special term.
    The defendant is the successor of the New York, West Shore & Buffalo Eailway Company, a corporation which prior to the commcem.ent of this action had constructed a railroad along the west shore of the Hudson river partly upon and partly in front -of lands owned by the plaintiff.

      The plaintiff was the owner of a farm in the town of Marlborough, Ulster county, bounded on the east by the Hudson river and extending from the Orange county line northerly 4,000 feet. In 1876 the state made to him a grant of lands under water extending along the whole, front of said farm. The railroad was constructed partly upon the upland, partly upon land under water granted to the plaintiff, and partly upon land under water easterly of or outside of the plaintiff’s grant.
    Upon the southerly portion of plaintiff’s lands were two small docks at which vessels landed for freight and passengers before the construction of the railroad, and from which a road ran northerly through the plaintiff’s farm to the highway leading to the village of Marlborough.
    Upon the northerly part of the plaintiff’s premises there was a small bay extending into a stream called Jews’ creek up which for a short distance the tide ebbed and flowed.
    There was also a dock on this bay near the mouth of the creek where sand was shipped upon scows and sail vessels.
    The railroad crossed this bay a considerable distance from the shore line, and at the most northerly part of plaintiff’s premises was entirely outside of the land under water granted to the plaintiff.
    The two docks mentioned were wholly within the strip of land acquired by the railroad. Across the bay aforesaid the railroad was constructed upon an embankment of earth and stone the greater part of the way, but about opposite the mouth of Jews* creek there was an iron bridge seventy feet in length, the bottom of which was four feet above high water.
    In February, 1882, the commissioners of the land office made a grant to the railroad company of land under water upon which the road wás constructed, and subsequently the said railroad company instituted proceedings to acquire the title to plaintiff’s lands and such proceedings were thereupon had that an award of three thousand dollars was made and confirmed and paid by the railroad company to the mortgagee of the property as provided by the final order of the court.
    This action was commenced in 1877, and alleged the destruction of the docks aforesaid, the maintenance of an embankment across the bay at the mouth of Jews’ creek, which prevented the plaintiff from navigating said bay, and asked judgment that the defendant restore the highway leading to the docks and the water channel leading to the bay at Jews’ creek so as not unnecessarily to impair their usefulness.

      William Lounsbery, for app’lt; F. L. Westbrook, for resp’t.

       Affirming 25 N. Y. State Rep., 1086.

   Brown, J.

The proceedings taken by the New York, West Shore & Buffalo Railway Company to acquire a right of way across the lands now .owned by the plaintiff were effectual to vest in the railway company whatever title plaintiff or his grantors had either in the upland or in the land under the waters of the river. It is not a valid objection to proceedings taken by a railroad company to acquire lands for the purposes of its incorporation that it is under the waters of a navigable stream, and the titles which individuals may have acquired therein by grant from the state may be taken by the exercise of the power of eminent domain equally' with the upland. In re N. Y. C. & H. R. R. R., 77 N. Y., 248 ; N. Y., W. S. & B. R. Co. v. Walsh, 27 Hun, 57; affirmed on this point in 89 N. Y., 453.

Having paid the compensation awarded by the court for the land taken above and below high water mark in the manner' provided in the order confirming the commissioner’s report, the railway company owed no further duty to the plaintiff except such as was enjoined upon it by law.

This action seeks to compel the performance by the defendant of the duty imposed upon it by subd. 5, § 28, of the general railroad act, chap. 140, Laws of 1850, and the claim is:

First. That it has failed to restore a highway leading to the plaintiff’s docks on the southerly portion of his premises, across which the railroad was constructed, and
Second. That it has failed to restore the channel through which, before the construction of the road, vessels sailed into the bay near the mouth of Jews’ creek.

Upon the trial the plaintiff wholly failed to establish the fact that there was a highway leading to the docks. The court found that there was none and the evidence would not sustain any other conclusion. There was a private road leading from the highway across plaintiff’s lands to the dock, but the restoration' of such a road was not a duty imposed upon the railroad company, and its loss or destruction must be deemed compensated by the award made by the commissioners in the condemnation proceedings.

We need not consider in this case whether the defendant would be under a legal obligation to give an owner of lands under water, a part of which was taken for the railroad right of way, a crossing to that part of his grant which lies outside of the railroad, or whether § 44 of the general railroad act, relating to farm crossings, is applicable to property so situated.

Ho claim for such a crossing is made in the complaint and there is no finding or request to find that the plaintiff was the owner of any land under water outside of the railroad, and we are not called upon to determine the existence of a fact which the trial court was not asked to find.

The plaintiff, therefore, has no cause of action against the defendant resting upon any unlawful interference with his private rights in the property upon which the railroad was constructed or for damages to his adjoining property. All rights which plaintiff or his grantors had in the land have been duly acquired and áre now vested in the defendant. It remains to be seen whether he has any cause of action growing out of any interference with his rights in the navigable waters of the river.

The commissioners of the land office were authorized by the legislature to grant to the railroad company any land belonging to the people of the state required for the purposes of its road, and under the grant made by such commissioners to the defendant’s predecessor it acquired not only such reserved rights as the state had in the land theretofore granted to the plaintiff, but it also acquired the title of the state to such lands as the road occupied under water in front of plaintiff’s premises not included in the plaintiff’s grant, and under this grant and the condemnation proceedings the defendant’s title to its roadbed is apparently perfect and complete.

It appears that when the road was constructed across the bay,, near the mouth of Jews’ creek, it was about one hundred feet westerly from the channel of the river and several hundred feet, easterly of the shore line, and its effect was to intercept communication between the shore and the channel of the river and to. prevent the passage of vessels to a dock on the plaintiff’s property, near the mouth of the creek, as had been done before the road was constructed, and the question is presented, what duty does a railroad company under such circumstances owe to the owner of the upland?

The plaintiff’s private rights of property having been acquired by the defendant, the duty, if any, is not special to this particular case, but is such as is owing to every riparian owner whose access, to the channel of the river is cut off by the railroad embankment. The railroad company is the licensee of the state and its obligations are the same as would rest upon the state if engaged in the construction of a public work, except so far as they may have been enlarged by statute.

It is familiar law that the shores of navigable rivers and streams and the lands under the waters thereof belong to the state vnthin whose territorial limits they lie, and may be appropriated by the state to all municipal purposes. The state may authorize the construction of bridges, piers, wharves or other obstructions in navigable waters, and when such structures are not obnoxious to the regulations of congress and do not come in conflict with the paramount authority of the United States they are not nuisances. Willson v. The Blade Bird Creek Marsh Co., 2 Peters, 245; Gilman v. Philadelphia, 3 Wall., 713.

In Willson's case, Chief Justice Marshall said: “ The measure authorized by this act stops a navigable creek and must be supposed to abridge the rights of those who have been accustomed to. use it. But this abridgment, unless it comes in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court, can take no cognizance.”

There is no statute of congress applicable to this case. Jews” creek is not a navigable stream, and the question presented relates solely to the small bay of the river crossed by the railroad. The legislature may grant or confer an exclusive privilege in ■ tide water provided the right granted does not trench upon the powers granted to congress. People v. Tibbetts, 19 N. Y., 523 ; People v. Canal Appraisers, 33 id., 487; People v. Ferry Co., 68 id., 71. And the state may, for the purposes of commerce, partially hinder navigation by authorizing the construction of docks, piers and bridges which are within the demands of commerce and to which navigation to a certain extent is subject. D. & H. C. Co. v. Law rence, 2 Hun, 163; Bedlow v. N. Y. F. D. Co., 112 N. Y., 274; 20 N. Y. State Rep., 707.

The authority to convey lands under water for railroad purposes was conferred upon the commissioners of the land office by the general railroad law of the state.

The power is to be exercised for the benefit of the public and to promote commerce and the public interests, and the construction of the railroad upon the lands granted was a lawful act and not a nuisance. If it impaired the navigation of the river it is sufficient to say that the state authorized it. But the claim made by the appellant is that although it may be lawful to construct a railroad in the river, yet the owner of upland fronting upon every navigable bay or indentation in the shore across which the railroad passes is entitled to have a draw bridge erected in the road to permit the passage of vessels to his property, and this right of the upland owner is said to flow from the section of the statute which provides that every stream of water, watercourse or highway intersected or touched by the railroad shall be restored by the railroad company “ to its former state or to such state as not unnecessarily to have impaired its usefulness.” This provision was designed by the legislature to protect public rights, and so far as it applies to a navigable river it is the commerce thereon and the general right of navigation that is intended to be protected.

Hence it has reference to such streams and water courses as were before the construction of the road capable of and accustomed to be generally navigated. Public interests and not private convenience was thus guarded and protected.

27o general commercial interest was infringed in this case. The bay in question was not navigable in the ordinary meaning of that term. That a vessel of light draft might at certain stages of the tide get nearer the shore than it can now in consequence of the existence of the road does not make it, in a general sense, a navigable part of the river.

The plaintiff’s right to navigate the river is not impaired, only the approach to the shore of his property.

I do not see wherein the plaintiff’s case differs from that of Gould v. H. R. R. Co., 6 N. Y., 522, or Getty v. H. R. R. Co., 21 Barb., 617, or Ormerod v. West Shore R. R. Co., 21 Blatch., 106.

In the first case cited the plaintiff owned the upland, but had no title to the land below high water mark. The defendant’s road was constructed between high and low water mark under authority of the legislature and cut off the plaintiff’s access to the river. It was held in this court that the plaintiff had no private right in the waters of the river or in the shore and was not entitled to recover damages occasioned by the construction of the railroad. In Getty's case the plaintiff owned a farm situated on a bay or indentation of the river across the mouth of which the defendant had constructed its road, thus preventing access of vessels to the plaintiff’s land. Hnder the provisions of defendant’s charter he claimed that he was entitled to have a drawbridge constructed in the railroad to permit the passage of vessels to and from his docks.

The supreme court held that the word “ bay ” mentioned in the section referred to, which required the defendant to construct .draw bridges in certain bays “ to provide for free passage of such vessels as heretofore had passed or now can pass, etc.,” meant only such bays as had a general navigation and such as the public had an interest in.

Ormerod’s case was an action to restrain the construction of a railroad which would cut off the approach of vessels to certain brick yards situated within a small bay of the river.

The plaintiff was the owner of a sailing vessel navigating the river and having a contract to carry brick from said yards to the city of New York. The land under water where the road was constructed had been granted to the owner of the brick yards, and defendant had taken proceedings to acquire title thereto under the general railroad law.

The federal court held that there was no interference with the general navigation of the river, and that as the state had granted title to the lands under water, that title could be acquired by the defendant, and that the question was one solely of compensation between the defendant and the land owner.

We are of the opinion, therefore, that this plaintiff is not, as a mere riparian owner, entitled to the relief asked for and that, as such, he has by the construction of the railroad sustained no legal injury. So far as he had an ownership in the land taken he has been duly compensated.

The defendant, however, appears to have recognized the propriety of affording some access to the bay in question and constructed a bridge seventy feet in length under which scows can pass to and from the river, and in so doing it fully complied with the obligation imposed upon it by the legislature.

There is nothing in Langdon v. The Mayor, 93 N. Y., 129; Williams v. The Mayor, 105 id., 420 ; 7 N. Y. State Rep., 529, or Kingsland v. The Mayor, 110 N. Y., 569 ; 18 N. Y. State Rep., 701, that conflicts with the views here expressed.

The fact that the plaintiff has been compensated in the manner provided by law for the rights of ■which he has been deprived and the loss of property he has sustained by the construction of the railroad, sufficiently distinguishes those cases from the one under consideration.

The judgment should be affirmed, with costs.

All concur, except Parker, J., not sitting.


author: Haight, J.

text:
    John C. Onderdonk, App’lt, v. Andrew J. Onderdonk et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    Wills—Construction.
    By the will of testator plaintiff was disinherited and specifically excluded from the benefits of any of its provisions. By § 16 the residuum of the estate was divided into six shares, to he held in trust by the executors, the first to be applied to the use of testator’s daughter Sarah for life, then for her sister Catharine for life, and then the share to he paid to the next of kin of his first wife’s blood, with a provision that any invalid gifts, etc., should be added to this “ residue.” By § 40 he disposed of any legacy, devise, etc., lapsing or failing for any cause, and § 41 directed that all provisions which should be held illegal should be stricken out and not considered as affecting the valid provisions. Held, that plaintiff had no case as he could take nothing even though certain provisions imposed upon the beneficiaries by the 39th section were void.
    Appeal from a final judgment of the general term of the supreme court, second department, affirming a judgment entered upon the decision of the special term, sustaining a demurrer to the plaintiff’s complaint.

      Delos McCurdy, for app’lt; George W. Van Slyck, for resp’ts.
   Haight, J.

This action was brought to have certain provisions of the will of the late Horatio Gr. Onderdonk adjudged invalid, unlawful, indefinite, uncertain, void and of no effect, and that as to the property therein mentioned Horatio Gr. Onderdonk died intestate, and that the whole thereof vested in the plaintiff and the other heirs at law and next of kin of said deceased.

The complaint, among other things, in substance alleges that Horatio Gr. Onderdonk, late of Manhasset, died in the year 1886, leaving him surviving the defendant Andrew J. Onderdonk, Sarah Onderdonk, Catherine E. Onderdonk,Maria 0. Simms, Josephine D. Skillman, Francis Onderdonk and this plaintiff as his only heirs at law and next of kin; that at the time of his death he was seized and possessed of real and personal estate situate within the state of Hew York to the amount and value, as plaintiff is informed and believes, of two million dollars and upwards; that he left a last will and testament, bearing date the 15th day of December, 1885, and a codicil thereto, bearing date the 17th day of March, 1886, which will and codicil were duly admitted to probate as a will of both real and personal estate by the surrogate of the county of Queens, on the 1st day of June, 1886 ; that in and by such will the defendants, Sarah Onderdonk, Maria 0. Simms, Josephine K. Skillman, Catherine Elizabeth Onderdonk, Edward P. Simms, Harry Simms and Andrew J. Onderdonk, their survivors and successors, were appointed executors and trustees thereof, and that they have duly qualified and entered upon the discharge of their duties as such.

The will contains numerous provisions, many of which are not questioned. He gave and devised:

1. To his executors, the capital sum of ninety thousand dollars, in trust, to safely and profitably invest the same, collect the income thereof, and pay it to his daughter, Sarah Onderdonk, during her life, for her sole use, free from any husband’s or creditor’s claim; and after her death, without issue, to pay said income to her sister, Catherine E., during her life, for her sole use, free from any husband’s or creditor’s claims; and after said Catherine’s death, to pay over said capital sum per stirpes to her next of kin of the testator’s first wife’s blood legally entitled to it, as though it were her absolute property, and she had died unmarried and intestate. But if at said Sarah’s death she leave surviving issue, said capital sum shall be paid to such issue per stirpes, as if it was her absolute property, and she had died unmarried and intestate.
2. He gave to the executors the capital sum of eighty thousand dollars, in like trust for his daughter, Maria 0. Simms, during her life.
3. He created a similar trust to that of the first provision, in favor of his daughter, Josephine D. Skillman.
4. Created a similar trust in favor of his grandson, George 0. Linkletter.
5. Created a similar trust in favor of his daughter, Catherine Elizabeth Onderdonk.
6. Disinherited the plaintiff.
7. Created a similar trust to the amount of thirty thousand dollars in favor of his son Francis, but upon certain conditions, the non-performance of which works a forfeiture of his right to the same.
10. He gave to his son, Andrew Joseph Onderdonk, certain mortgages, judgments, claims and demands therein expressly enumerated which he estimates to exceed one hundred thousand dollars in value, but as a condition precedent he required his son Andrew to pay or secure the executors the principal and interest without discount or offset of certain notes, checks, due bills, bonds and mortgages, etc., therein specifically mentioned.
16. He provided that when the executors have paid all the debts, funeral charges and specific legacies, and have set apart the designated bonds for the several trusts, then all the rest and remainder is to be known and denominated the “residue” and shall be divided into six equal shares. These shares he gave to the executors in trust to safely and profitably invest, collect the income, rents and profits thereof; the first share to be held for the use of his daughter Sarah, who shall receive the income thereof during her life; and after her death, without surviving issue, to be held for the use of her sister Catherine E., who shall receive the income thereof during her life; and after her death such first share shall be paid to her next of kin of his first wife’s blood. Similar provisions are made in reference to the other five shares of the residue to other children, including his grandson, George 0. Linkletter, and then concludes the provision as follows:
“ My further will is that all my property not' herein otherwise legally disposed of, and any gifts, bequests or devises which are adj udged invalid, or which fail, lapse, cease, or are forfeited for violation or non-fulfillment of any condition precedent or subsequent, or for any cause, shall also pass, go over, belong and be added to this “ residue," and be apportioned and held on the same trusts aforesaid; but if this latter provision be illegal, unlawful or impossible, the same shall be distributed, per stirpes, among my first wife’s complying, unoffending descendants.”
39. Imposed many conditions upon the beneficiaries and made the executors the sole judges of their performance.
40. “ In case any aforesaid legacy, trust, income or devise is annulled, vacated, forfeited or suspended by death, vagueness, uncertainty, misconduct or non-performance of any condition; or shall lapse, cease or fail for any cause, and no valid order is hereinbefore made for its gift over or distribution to any specific person, fund or object, then I give the same one-third to the then living daughter of my brother James, and the then living son and daughter of my nephew, Joseph 0. Skillman, to be divided equally between them per capita, and the other two-thirds to Edward P. Simms, to be applied in his discretion for the use of Saint Peter’s Hospital, or Saint Catharine’s Hospital, or any other hospital in Brooklyn where he thinks it will do the greatest good.”
41. “ It is my will that in case any trust, bequest, order, provision or direction herein should be held illegal or void, or fail to take effect for any reason, that no other part of this will shall be thereby invalidated, impaired or affected; but that this, my will, shall be construed and take effect in the same manner as if the invalid direction or provision had not been contained therein. And if any preceding trust is valid in substance, but its final distribution is suspended beyond the time or lives limited by law, and so far is invalid, I wish the trust not to fail therefor; but that its duration be performed, modified and limited during the lives, and to the remotest period allowable. If any section contains both valid and invalid provisions, I wish the invalid provisions stricken out, and the valid provisions to remain in full force, and where any trust herein is made dependent oil and during the life of any grandchild, or specified person, who predeceases me, I wish the trust not to thereby fail, but that my youngest grandchild living at my death be substituted as the person on and during whose life such trust shall depend, continue and determine. If either A. J. Onderdonk or E. P. Simms predeceases me, then I substitute Harry Simms to execute the trusts mentioned in sections 13, 14 and 40.”

It will be observed from an examination of the provisions of the will to which we have referred, that conditions have beén imposed, and that in some instances an offending or non-complying beneficiary under the will forfeits such benefits; that after the execution of the trusts the remainder, in most instances, is devised to complying, unoffending descendants of the testator’s first wife’s blood.

The bequest to Andrew in the tenth item was upon the condition precedent that he pay certain notes, and some of the daughters were required to execute conveyances; and to enforce obedience to these directions certain conditions were imposed, none of which are improper nor are they here questioned. Those to which objection is chiefly made, and which it is claimed render the provisions of the will void, are included in the thirty-ninth item of the will. But we have not thought it necessary to consider or discuss them, for the reason that we are of the opinion that the plaintiff could take nothing even though the provisions complained of should be adjudged invalid. As we have seen he was disinherited, and specifically excluded from the benefits of any of the provisions of the will. He can only take as heir at law or next of kin. Unless, therefore, his father died intestate as to some property he could not recover in this action.

After the payment of the debts, funeral charges and legacies, and ino setting apart of the several trust funds provided for in the will, then under the sixteenth item, all the residue and remainder of the testator’s estate is collected into what is called by him the “residue.” This residue as he declares, embraces all of his property not otherwise legally disposed of, and any gifts, bequests or devises which are adjudged" invalid, or which lapse, cease or are forfeited for violations or non-fulfillment of any condition precedent or subsequent or for any cause, shall also pass, go over, belong and be added to this residue. The residue is given to the executors in trust, and divided into six equal shares. Each share is specifically disposed of. The rents, profits and income for each share is to be paid over during life to the beneficiary named, but in no case does the trust extend beyond the lives of two persons in being, and upon the conclusion of the life estate so created the remainder is directed to be distributed among the next of kin of the beneficiary, per stirpes, who shall be of the testator’s first wife’s blood.

There is nothing in this item that is vague, uncertain or unlawful, and with perhaps a single exception, covers every item of property which is not otherwise legally disposed of.

That exception appears in section thirty-two of the will, wherein it is provided that: “ If said Francis, by violating some conditions hereof respecting wines, spirits "or tobacco, fails to obtain or subsequently forfeits his contingent interest in my estate, and then has no lawful issue living, the income of the trust in his favor, accruing during his life, and while he has no lawful issue living, shall be paid to the persons, for the uses and in the proportion specified in section forty hereof. ”

That section we have already referred to, and to some extent it is a repetition of the concluding clause of section sixteen. It provides, as we have seen, that if any legacy, trust, income or devise is annulled, vacated, forfeited or suspended by death, vagueness, uncertainty, misconduct or non-performance of any condition, or shall lapse, cease or fail for any cause, and no valid order is hereinbefore made for its gift over or distribution to any specific person, fund or object, then he gives it to the persons and societies therein specifically named, thus covering and disposing of every conceivable portion of the estate that may remain undisposed of by other provisions of the will. This section should be construed in connnection with section sixteen as only pertaining to the estate remaining undisposed of by that section. The bulk of the residuary estate was disposed of by the former section, and if the disposition therein made should be unlawful, then it is provided that such estate shall be distributed per stirpes among the testator’s first wife’s complying, unoffending descendants; thus finally disposing of every part of the residuary estate covered by that section. The testator states that his first wife, upon her death, entrusted him with her estate, and that he considered it his duty to give to his children by her the benefit of the greater part of his estate.

The provisions of § 16 are in accord with this expressed intention. The provisions of § 40 were evidently intended to cover other property, and, therefore, not to operate to disinherit his children by his first wife. But the two sections taken together dispose of his entire residuary estate, of every nature and kind, including every legacy, devise, trust or income that shall lapse, cease or fail or be annulled, vacated or forfeited. The provisions of the latter are not questioned ; but those of § 16 are alleged to be invalid. We have, however, shown that there is nothing in its provisions that is vague, uncertain or unlawful. They are valid unless affected by the conditions imposed by § 39, but, under the provisions of § 41, all such provisions or orders as shall be held to be illegal shall be regarded as stricken out, and not as invalidating, impairing or affecting the valid provisions.

The demurrer herein was taken upon the sole ground that the complaint does not state facts sufficient to constitute a cause of action. USTo question is raised in reference to the jurisdiction of the court which we are called upon to consider.

We, therefore, conclude that the plaintiff failed to state a cause of action in his complaint, and consequently the judgment should be affirmed, with costs.

All concur.

       Affirming 26 N. Y. State Rep., 966.


author: Vann, J.

text:
    Elizabeth Lawton et al., Ex’rs, Resp’ts, v. Samuel G. Corlies et al., App'lts.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    1. Will—Construction op.
    Where the context of a will shows that the testator used the word “heirs,” or the expression “heirs-at-law” or “ next of kin" in a sense other than the primary legal sense, the actual intention must prevail over the' use of technical language.
    2. Same.
    Testator by the first clause of his will ordered and directed his estate to “be divided among my heirs at-law in accordance with the laws of the state of New York, applicable to persons who die intestate,” and that no bonds be given by the executors. By a codicil he changed the executors and authorized them to sell any real estate he might be possessed of at his decease, and to execute and deliver the deeds necessary to convey the same, and directed that they should have double commissions and give no bonds. He had personal estate only, amounting to $230,000, and left no ancestor, descendant or widow him surviving. Held, that the testator meant that his property should be divided according to law, the same as if he had not made a will, and that grand nieces and grand nephews were properly excluded from sharing therein.
    (Potter, J., dissents.)
    Appeal from a judgment of the general term of the supreme court in the first judicial department, affirming a judgment entered upon the decision of the court at special term.
    Action by executors for the construction of a will. The testator, Samuel Green, a resident of this state, died December 9, 1889, leaving a last will and testament dated March 25, 1880, and a codicil thereto, dated May 23, 1888.
    By the first clause of said will, he directed his executors to pay his debts and funeral charges as soon after his decease as they conveniently could.

      The second clause is in these words :
    “ Secondly. I order arid direct that my estate be divided among my heirs-at-law in accordance with the laws of the state of ¡New York applicable to persons who die intestate, and that no bond of security whatever be required of my executors hereinafter named in the settlement and distribution of my estate, real or personal.”
    By the third clause he appointed his half brother, Caleb Coffin, and his friend, Edward P. Magoun, as the executors of his will, .and revoked all former wills by him made.
    By the codicil, after reciting the death of his half brother, Caleb, he appointed the plaintiffs as executrix and executor, respectively, “ in lieu of those named ” in the will, and authorized them to sell any real estate that he might be possessed of at his decease and to execute and deliver the deeds necessary to convey the same. He also directed that his executors should receive “double the amount of commissions allowed by the laws of said state as commissions to executors,” and that they should not be “ required to give any bonds or security.”
    He left personal estate to the amount of $230,000, but no real estate. He was never married, and left no ancestor, descendant or widow him surviving. His only heirs-at-law were Martha Green, a sister ; Herbert L. Coffin, a nephew, and Elizabeth L. Coffin, a niece, children of Caleb Coffin, his deceased half brother; Samuel G. Corlies, a nephew, and Amelia Hope Doeg, a niece, children of Phebe Corlies, a deceased sister; Clara W. Corlies, Anna W. Corlies, and Edmee A. Corlies, grand-nieces, and Howard W. Corlies, a grand-nephew, all infant children of John Edgar Cor-lies, who was a son of said Phebe Corlies.
    John Edgar Corlies died June 22, 1883, and Phebe Corlies, hi6 mother, died many years before.
    The testator was on friendly terms with the said John Edgar and also with his children, who have no property, but he was not in the habit of making them presents or doing anything for them, and while he had seen the two older children three or four times, he had never seen the others at all. There was no evidence that he “ entertained any more love and affection for any of his relatives than for the others.”
    Said Martha Green and Samuel G. Corlies are both lunatics; the former having been so adjudged March 17, 1838, and the latter April 25, 1877, and the committee of each is a defendant in this action.
    The special term held that the testator meant by the words “heirs-at-law,” as used in his will, that real estate should “follow the statute of descents and personalty the statute of distributions.” The grandnieces and grandnephew were, by the decree, excluded from sharing in the personal property, because the statute of distributions does not extend beyond brothers’ and sisters’ children.
    The general term took the same view and affirmed the judgment. The infant children of John Edgar Corlies bring this appeal.

      John M. Scribner, for app’lts; Wilson M. Powell and Leslie W. Russell, for resp’ts.
   Vann, J.

The appellants claim that the testator is presumed to have used the words “ heirs-at-law ” in their strict and primary acceptation as descriptio joersonarum, and that the context, “ in accordance with the laws of the state of Mew York,” determines the method of division and indicates an intention that the estate should be divided, per stirpes, among those who, as his heirs-at-law, would have succeded to his real estate if he had left any and had died intestate.

The respondents, aside from the executors, who are apparently neutral in this controversy, claim that the testator used the words “ heirs-at-law,” according to their common acceptation, to denote the class who receive the property of deceased persons; that the language of the will indicates that he owned real property at its date, and of the codicil, that he contemplated owning real estate at the time of his death, and that by the direction to divide his-property “in accordance with the laws of the state of Mew York applicable to persons who die intestate,” he meant that his real estate should be divided according to the statute of descents, and that his personal property should be divided according to the statute of distributions.

The question presented, although important, is so narrow as to ■greatly restrict discussion, so far as it bears directly upon the point involved. It depends upon the intention of the testator, which is to be gathered from the few words used by him in relation to the subject considered, if their meaning is doubtful, in the light -of the circumstances surrounding him when he used them. 4 Kent’s Com., 535. One object that he had in making a will was to avoid the appointment of administrators, and to relieve those who should succeed to his estate from the heavy burden of furnishing bail to the amount of nearly hah; a million of ■dollars.

Prominence was given to this feature in both the will and codi■cil, and in the latter, for further ease and convenience in settling his estate, he authorized his executors to sell and convey any real property of which he might die possessed. The unfortunate situation of one of his relatives, who would have been entitled to letters of administration if he had died intestate, in connection with the other circumstances, may have made this his sole object in making a will. 4 E. S., 2552, §§ 27, 28, 8th ed. With what intent did the testator direct that his estate should be divided among his heirs-at-law, in accordance with the laws of the state of Mew York applicable to persons who die intestate ? It is to be observed that he directed that his estate should be “ divided,” without using any other word importing a gift, devise or bequest.

This tends to confirm the theory, already suggested, that he intended to simply appoint executors to make the distribution, and to leave the distributees and the proportions to be determined by law. At the date of his will his heirs-at-law and next of kin were the same persons, as John Edgar Corlies, the father of the appellants, was then living. It does not appear whether at that time he owned real estate or not, except as a presumption may arise from his general reference to his estate as composed of both real and personal property. It does not appear that he owned real estate at the date of his codicil, except as a like presumption may arise from the language used by him in authorizing his executors to sell and convey. While he owned no realty at the time of his death, the will and codicil each speaks, as to existing facts, with reference to the date when it was written. It is clear, if he did not own real estate when he made the will or codicil, that he expected to own some at the date of his death, and his use of the word “heirs” is to be considered in the light of that fact. While technical words in a will, when uncontrolled by the context, are presumed to have been used in their technical sense, still the context may overcome the .presumption when it appears thereby, and from extraneous facts of the kind already alluded to, that the testator used the words in their common and popular sense. The context in the case in hand shows that the estate was to be divided in accordance with the laws of the state of Hew York applicable to persons who die intestate. The use of the words “ heirs-at-law ” in such a connection indicates, as I think, the legal heirs, in the sense of persons who would legally succeed to-the property in case of intestacy, according to its nature or quality, the heirs-at-law taking the realty and the next of kin the personalty. The cardinal idea seems to be that the division should be made in accordance with the statute in cases of intestacy. This, as was said by the learned general term, seems to be “ the plain import of the language used by the testator, * * * giving to the persons forming each of these classes whatever of the estate would go to them under the laws of the state. * * * As already suggested, there is nothing to indicate any. other purpose. It is precisely as if the testator had said, ‘ I do not intend that there shall be any dispute over my estate. I mean to declare that the persons who are recognized by the law of the state of Hew York as entitled to a portion of it shall have it to the extent that the law declares. My real estate shall be divided amongst those to whom it would descend, and my personal estate shall be distributed between those who would be entitled to it, just as if no will had been made. And I make this will only for the purpose of securing the co-operation of the executors whom I have named to take charge of my estate and protect it.’ ”

This construction is in conflict with no decision of this court to which our attention has been called, and it is in accordance with the recent case of Woodward v. James, 115 N. Y., 346; 26 N. Y. State Rep., 147, which we regard as controlling. In that case the testator gave to his wife one-half the income from all his property, of every kind, and the use of certain real estate during her life, and some specific personal property absolutely. He gave the remainder of the income to his “ legal heirs ” during the life of his wife, and upon her death he gave the “ reversion and ownership ” of all his property to his “legal heirs,” except that in case any of his “ legal heirs ’’ should attempt in any manner to interfere with or restrain his wife in the use and enjoyment of the property, such one of his “ legal heirs ” was to be forever debarred from any interest in his estate and the share that otherwise would have gone to him or her was to be divided among “ the remaining heirs, according to law.”

He left a brother, two half-sisters, and nine nephews and nieces, the children of a brother, a half-brother and a half-sister, respectively, deceased, and the plaintiff, a grandchild of a deceased brother. It was held that the words “ legal heirs ” as used in the will meant those who would take in case of intestacy and in the proportions prescribed; that the remaindermen, therefore, took per stirpes, and not per capita, and as, under the statute of distributions, representation goes no further than brothers’ and sisters’ children, and the rule of intestacy applies to the quantity of interest to be taken, the plaintiff had no interest in the personal estate.

We are unable to distinguish that case in principle from the one now under consideration. In that case, as in this, there was personal property to distribute, and a relative who would take under the term “ heir ” in its technical sense, who could not take under the statute of distributions; and it was held that “legal heirs ” applied to those who would take, and as they would take under either statute if there had been no will. The phrase “ according to law ” was relied upon as indicating the intention of the testator, if any share was forfeited, to have such share distributed as if he had died intestate. In this case the intention is indicated by a much stronger phrase, for the testator declares that he wants his property divided “ in accordance with the laws of the state of Hew York applicable to persons who die intestate.”

The appellants mainly rely upon Luce v. Dunham, 69 N. Y., 36; Keteltas v. Keteltas, 72 id., 312, and Tillman v. Davis, 95 id., 17.

In Luce v. Dunham, the testator devised certain real estate, being all that he had at the date both of his will and of his death, to his wife, and, after a bequést to her and others, directed that the residuum of his estate, real and personal, should be divided •among his “ heirs and next of kin in the same manner as it would be by the laws of the state of Hew York ” if he should •die intestate. The widow claimed that the use of the word “ heirs ” showed an intention to include her, but the court held that it related only to the realty devised, while the expression " next of kin ” related to the personalty bequeathed, and excluded her from sharing in the residuary estate, citing Murdoch v. Ward, 67 N. Y., 387. The substance of the decision was that the widow was neither heir nor next of kin, and that the reference to the statute did not extend either term to her.

The other two cases involved the question whether the widow was included by either form of expression, as used by the respective testators, and it was held that she was not They are not analogous in their facts to the case in hand, although the learned and extended discussion as to the meaning of the word “ heirs,” under varying circumstances, has a bearing more or less •direct upon the question involved here.

In Cushman v. Horton, 59 N. Y., 151, the court considered the question whether the testator meant his heirs apparent as they were at the date of his will, or his heirs actual, as they would be at the date of his death. All of these eases recognize the principle that where the context of the will shows that the testator used the word “ heirs,” or the expression “ heirs-at-law ” or “ next of kin ” in a sense other than the primary legal sense, the actual intention must prevail over the use of technical language. In every case the aim was to get at the intention, and when that was found, not by conjecture, but by careful study of all the provisions of the will, it was blindly followed. So in this case, after giving due force to the term “ heirs-at-law,” we think that the testator meant, as he said, that his property should be divided according to law, the same as if he had not made a will, and hence that the judgment of the general term should be affirmed, with costs to the respondents, payable out of the estate.

All concur, except Potter, J., who dissents.

       Affirming 35 N. Y. State Rep., 600.


author: Lawrence, J.

text:
    In the Matter of the Estate of Samuel Lyman, Deceased.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Executobs and administbatobs—Limitation—Judgments against testatoe.
    A claim arising upon a judgment recovered against the testator or intestate is not barred by the statute of limitations upon a refusal to refer, so as to deprive the creditor of the right to compel the executor to-account.
    Appeal from an order of the surrogate of the county of New York, directing the administratrix of Samuel Lyman, deceased,, to render and file her account, on the petition of the Stuyvesant Safe Deposit Company, claiming to be a creditor of said estate.

      Sackett & Bennett, for administratrix, app’lt; Miller & Wells, for S. S. D. Co., resp’t.
   Lawrence, J.

The Stuyvesant Safe Deposit Company alleges in its petition that the estate of the deceased is indebted to it on two certain judgments, recovered in the court of common pleas of the city and county of New York, by one De Forest Fox against, the said Samuel Lyman, in his life tim^, and that the petitioner is the owner and holder of said judgments by virtue of assignments thereof duly made by said Fox to said petitioner, and is a creditor of said deceased.

The answer to the petition is, that the administratrix, more than six months after letters of administration had been granted herein, under an order of the surrogate’s court, duly advertised for claims, once a week for the period of six months; that the proof of claim of the petitioner was presented to the administratrix, who disputed the same and gave notice thereof to the petitioner, which notice contained an offer to refer said claim under the statute; that said offer has not been accepted, and that more than six months have expired since said claim was disputed, and that said claimant has. not commenced an action for the recovery of said claim, wherefore the administratrix claims that the claimant is barred from maintaining this action.

It is further alleged, as a separate defense, that Fox held certain collateral security, belonging to the decedent, from the sale of which he realized a very large sum of money, for which neither he nor petitioner has accounted, but which was applicable to the payment of said claim, if any existed.

The surrogate ordered the administratrix to account. It was held by the court of appeals in McNulty v. Hurd, 72 N. Y., 518, that a judgment against a deceased person, although disputed or rejected by his personal representatives, need not be sued over in order to authorize a decree for its payment by the surrogate. If this be so, it is difficult to see how the claim arising upon the judgment can be barred by the statute of limitations, upon a refusal to refer.

In McNulty's case, Church, Oh. J., says: “ We think that there-is a distinction between judgments against the testator or intestate- and other claims. A judgment is an adjudication of the rights of the parties in respect to the claim involved.

“ It imports absolute verity. It cannot be disputed in the sense contemplated by the statute any more than a judgment against, the administrators. In the same sense it is final and conclusive. The statute recognizes a distinction by giving priority to judgments over each other according to date of recovery and over other debts. Section 27. This right of priority might be interfered with if a new judgment was necessary in case of dispute, and thus a right secured by statute might be seriously impaired or entirely destroyed by the construction claimed. We are of opinion, therefore, that a judgment against a deceased, even if disputed or rejected by executors or administrators, need not be sued over in order to authorize a decreee for its payment by the surrogate.”

It is doubtful whether the other matters set up by way of defense could be tried by the surrogate. Stilwell v. Carpenter, 59 N. Y., 414; McNulty v. Hurd, 72 id., 518. Even if cognizance could be taken of them, an account between the parties would still be necessary.

We are of the opinion, therefore, that the order of the surrogate should be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.


author: Daniels, J.

text:
    Increase M. Grenell, App’lt, v. Sarah A. Stillwell, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Injunction—Breach of covenant as to realty.
    Plaintiff applied for an injunction to restrain the erection of a building by defendant on her premises consisting of four stories, with bath rooms and water closets on each floor, on the ground that it was a type of a tenement house and a violation of an agreement that only private houses should be erected on the lots of the parties thereto. Defendant, in opposition to the motion, showed by the affidavits of herself, the architect and' i others that the building was intended for a private residence and would i be occupied by herself and her family as such. Held, that an injunction, was properly denied.

      Appeal from an order denying a motion for an injunction.

      Geo. W. Carr, for app’lt; Blair & Keeler, for resp’t.
   Daniels, J.

The plaintiff, as the owner of real estate on the north side of Ninety-first street, applied for an injunction to restrain the erection of a building by the defendant on the south side of Ninety-second street. The preceding owners of these and other parcels of land in the vicinity entered into and recorded an agreement, by which it was agreed “ that whenever the said lots owned by them, or any of them, .or any of the said lots, should be improved, that the first buildings to be erected on the said lots, or any of them, should be for private residences only.” 'The defendant proposed to erect on her lot a building twenty-eight feet in front and rear, and seventy-eight feet and two inches in depth, of four stories in height, with a basement and cellar. The building was to be built with brick and stone. The plan of the building is stated to exhibit in the second and third stories, “ eight rooms each, with a long hall running through the centre of said floors, and with two bath rooms and water closets on each of said floors. And,

“ The fourth or top story of said proposed building is arranged similarly to said second and third stories, except that there is but one bath room and one water closet on the floor, but there are four wash basins and two additional rooms, two main front and rear rooms, being divided each into three, making ten rooms on said floor."

It has then been added that,

The first story is laid out similarly in the rear part thereof to the second and third stories, but in the front part there are two large rooms divided by sliding doors, with a hall on the east side of the building leading to an open reception room in the centre of the floor opposite the stairs, making seven rooms in addition to one bath room and one water closet The basement story is planned for seven rooms, besides a bath room and water closet.

The building is affirmed to be “ a type of a tenement house,” and charged to be in violation of the obligations created by the agreement. This has been attested by the plaintiff and two other persons making affidavits in her behalf. But it has been positively denied by the defendant, who swears that the building is designed for a private residence, and that it is intended, and will be, permanently used and occupied by the defendant and her family as and for a private residence, and for no other purpose. This is in like manner confirmed by her mother, with whom the defendant resides, by her brother and by the architect, and more than a dozen other persons whose affidavits are in the case.

If it be assumed that the complaint presented a case for the injunction, it has been fully answered by the defendant’s answer and these affidavits. They have left no ground on which an injunction coyld be either issued or sustained.

The order should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., concurs.


author: Van Brunt, P. J.

text:
    In the Matter of The North River Bank.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Banks — Receiver—Priority — Deposits made on eve op insolvency.
    Respondents sent their bookkeeper to the bank with a letter inquiring as to its solvency, with directions to deposit a certain sum on receiving a favorable answer. The money was deposited, and the bank failed two hours thereafter. Held, that a summary order directing the receiver of the bank to repay that sum was improperly granted, as there was no proof that it ever reached his hands; that as it went into the general fund, it may have been paid out during the time the bank continued business.
    2. Same.
    Preferences of this kind should not be established by a summary proceeding, but the party should be remitted to his action.
    Appeal from order directing the receiver of the North River Bank to pay to Thomas B. Kniffen and George B. Tooker the sum of $533.42 and interest.

      Durnin & Hendrick, for app’lt; Chas. H. Johnson, for resp’t.
   Van Brunt, P. J.

The respondents presented a petition to the court setting out the appointment of the appellant as receiver of the North River Bank, a domestic corporation. That they had kept an account in said bank for several years, and that on the 12th of November, 1890, they sent by their bookkeeper a note to the president of the bank, and the sum of $533,42, to be deposited in case a favorable answer to said note was received. That by said note inquiry was made as to the truth of certain rumors affecting the solvency of said bank, and the bookkeeper upon being assured of the solvency of the bank deposited said sum of money between 12:30 and 1 o’clock, p. M., of that day.

That on the same day, at 2:15 P. M., the bank closed its doors and was insolvent, and demanded that the court should order a repayment of said sum of money by the receiver.

The petition was supported by the affidavit of the bookkeeper wherein he states that the president assured him of the solvency of the bank, and that relying upon such assurance he deposited the said sum of money with the bank.

The receiver, in opposition to the witness, produced the affidavit of the president of the bank, denying any recollection of any inquiry by the bookkeeper of the petitioners as to the solvency of the bank, and stating that if he did represent the bank to be solvent that he did so in good faith, without any fraudulent intent.

The court granted the motion; upon the order thereupon entered this appeal is taken.

The court below seems to have granted the motion upon the authority of Cragie v. Hadley, 99 N. Y., 131. We think that upon an examination of that case it will be seen that, even if for no other reason, the motion should have been denied because one of the elements stated to be essential by that case was absent in the case at bar. The amount deposited by the petitioner had gone into the general funds of the bank. There is no proof that it ever reached the hands of the receiver, and there is no proof but that it has lost its identity. There is no pretense that any particular $533.42 which came into the hands of the receiver was the $533.42 deposited by the plaintiffs; non constat, but that may have been paid out during the one to two hours that the bank was doing its business.

Unless the money can be traced the petitioners could claim no preference. But beyond this we do not think that preferences of this kind should be established in this summary way. The party should be remitted to his action, upon the trial of which the witnesses could be orally examined and cross-examined and the truth of this claim should be established in the ordinary way. It is true that the receiver is an officer of the court and in the disposition of the funds in his hands is subject to the order of the court, but he also represents the creditors of the corporation and they should not be deprived of the right of having claims which may seriously affect them established by common law proof.

This summary proceeding has been too often resorted to to establish priorities of claims which would not for a moment stand the test of investigation in open court.

We think, therefore, that the order was improperly granted and should be reversed, with ten dollars costs and disbursements, and the motion denied, with leave to the petitioners to bring an action to establish the claim made herein.

Daniels, J., concurs.