author: Davts, P. J.: Beady, J.:

text:
    HANNAH E. BROWN and JOHN L. BROWN, Executors, etc., of JOHN L. BROWN, Deceased, Appellants, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK.

      Appeal — time within which it must he taken — Substituted parties — rights of — light of appeal by — waiver of — Bemew of referee’s report — exceptions to report — improper evidence — Agreement by attorney for compensation — Gode, § 308 — counsel — fees of.

    While this action was feeing prosecuted fey the special administrator of the deceased plaintiff, an order was made on May 27,1876, referring it to a referee to ascertain and report the extent of the liens of the attorney for the plaintiff, and of certain persons employed as associate counsel upon the judgment recovered herein. On the twenty-sixth of June an order was made substituting the appellants as executors of the last will of the deceased, in place of the special administrator, and on the twelfth of July an appeal was taken fey them from the order of May twenty-seventh. Held, that the appellants took the proceeding into their hands, in the condition in which it was at the time of their substitution, and that as the time within which such order could fee appealed from fey the special administrator had elapsed, no appeal could fee maintained fey them.
    Upon the coming in of the report, an order was made substituting the plaintiff in place of the special administrator, and sending the report hack to the referee with directions to him to take further testimony, upon notice to the plaintiff as therein provided. In pursuance of this order further hearings were had, at which the plaintiffs appeared and gave testimony. Held, that as such appearance was compulsory, they were not thereby deprived of their right to appeal from the order.

      An appeal from an order confirming a referee’s report in such a proceeding, is governed by the provisions of rule 89, and not by those of rule 40.
    This action was brought in pursuance of an agreement between the plaintiff and his attorney that, in case of a recovery, the attorney should receive, in addition to his taxable costs and disbursements, the sum of $5,000 and one-lialf of all interest allowed upon the- claims prosecuted herein; thereafter the plaintiff recovered a judgment for $111,000, and subsequently, during the pendency of an appeal therefrom, settled the samefor $50,000, against the objection of the attorney. Subsequently the attorney applied, upon a petition, to have it referred to a referee, to ascertain and report the extent of his lien upon the judgment. Reid, that the agreement as to compensation was valid; that the court had jurisdiction to adjudicate summarily upon the extent of the attorney’s lien, and to refer the matter to a referee to ascertain and report the facts relating thereto.
    Where a party objecting to the confirmation of a referee’s report in such a proceeding, limits his exceptions to the findings of fact and conclusions of law of the referee, no question is raised by'them as to the admission of improper or illegal evidence, or as to any thing that occurred during the progress of the trial. If the party aggrieved desires to review these questions, he should specify, as part of his exceptions to the report, that it was founded on illegal evidence, and that the referee had improperly overruled his objections to the reception thereof.
    The lien of an attorney extends to the “agreed compensation” to be paid out of the judgment. The agreement operates as an equitable assignment of so much of the judgment.
    Section 303 of the Code abrogated all rules and provisions of law, preventing an attorney from agreeing with his client for the measure or mode of his compensation, and left the same to the agreement of the parties, express or implied.
    Where counsel are employed to assist in the trial of an action, they have no lien upon a judgment recovered therein, for the services rendered by them.
    The compensation to be recovered by them cannot he fixed upon a summary application in the action, hut must be established in the forms prescribed by law for the recovery of debts.
    Roue appeals from orders made at the Special Term, and four motions on the part of respondents to dismiss the said appeals.
    This action was originally commenced by the deceased, John L. Brown, on a claim, on which, after his death, William A. Sea ver, as his special administrator and successor in the action, recovered a judgment of $111,492.14.
    Subsequently, and pending an appeal from said judgment by the defendants herein, the said Seaver, without the consent and against the protest of the attorney and counsel for the plaintiff, so far as their rights were concerned, effected a settlement of the said judgment, and the same was duly satisfied on the 29th of May, 1876. The defendant retained in its hands $35,000 to satisfy and secure the payment of the claims made by the petitioners herein. On the 27th of May, 1876, an order was made on the petition of Oliver W. West, the attorney for the plaintiff, in his own behalf and in behalf of others employed as associate counsel in the case, referring it to a referee to ascertain and report the extent of their respective liens upon the said judgment. From this order and from three other orders made in the course of the proceedings relating to the ascertainment of these liens, these appeals were brought.

      Sullivan, Móbbe & Fowler, for the appellants.

      O. H. Hatch and F. A. Bangs, for the respondents West, Fullerton and Strahan.
   Davts, P. J.:

It was once said of a Scotch lawyer, “ It must be a clear case indeed that he will not confuse; ” but that noted adept in confusion could not well improve in that direction, upon the cases and papers in these several appeals and motions. There are four distinct appeals from preliminary interlocutory and final orders in the case, and the same number of motions to- dismiss the respective appeals. These are all to be regarded as heard or submitted together.

The first appeal is from the order of May 27, 1876, referring the petition, of the respondent West made on his own behalf, and on behalf of the respondents Fullerton and Strahan, to Referee Rug-gles, to inquire into, ascertain and report the extent of their liens respectively, upon the judgment recovered in this action, and the sums of money due them respectively for their services. When that order was made, the action was in the name of William A. Seaver, as special administrator of the estate of John L. Brown, deceased, against The Mayor, etc., of the City of New York, and the executrix and executor who are now appellants from the order, were not at that time parties to the petition and proceeding. Subsequently, and on the twenty-sixth of June, an order was made by the Special Term, substituting the appellants as executor and executrix of the last will and testament of John L. Brown, as parties plaintiff in the action in place of Seaver the special administrator. Prior to that time a hearing had been had before the referee, and he had made out and filed his report, and it was upon the motion to confirm such report that the present appellants were brought in as parties. The motion to confirm was denied, and the reference - was sent back for certain purposes to the referee. The appeal from the order of May twenty-seventh was not taken until July 12th or July 19th, 1876. The motion to dismiss this appeal is made on the ground that it was taken too late. It was taken more than thirty days after notice of the order, to the party who was plaintiff in the action, as special administrator and collector, at the time the order of May twenty-seventh was made. He had appeared by counsel before the referee as well as upon the motion, and in all the proceedings up to the time of the substitution of the present appellants. The appellants must be regarded as having taken the proceeding into their hands by their substitution in the condition in which it was at that time. The special administrator, before the substitution, represented their rights and interests, and as the time in which he could appeal had lapsed as against him, the appellants must- also be held to have had no right to appeal from the order of May twenty-seventh.

This motion to dismiss, therefore, is properly made and should be granted, with ten dollars costs besides disbursements.

The second appeal is from the order of June 26, 1876, denying the motion to confirm the referee’s report. That order substituted the present 'appellants as plaintiffs in the action, in place of the special .administrator. It referred the report back to Referee Rug-gles for the purpose of taking further evidence, and directed that the testimony already taken before him should “ stand,” and that the reference go on from day to day, upon service on the counsel for the executors of a certified copy of the order and notice of hearing ; and that upon the coming in of the report a motion to confirm the same be made upon five days’ notice to all parties interested. The appeal from this order was taken within thirty days. The order appears to have been made on motion of counsel for the present respondents, and to have been opposed by counsel for the appellants, and it cannot properly be said to- be an order made upon the motion of the latter, and on behalf of the appellants, although some portions of it appear in some respects to be favorable to them. As to them it was an order m invitum, and they are parties aggrieved by it, within the sense of that term as used by the Code. Their right to an appeal, we think, is not lost by their having appeared before the referee upon the specified notice, and given testimony in the proceeding. That appearance was compulsory, for the terms of the order in respect to the continuance of the proceeding before the referee were explicit and stringent. The motion, therefore, to dismiss the appeal from this order ought not to be granted.

It should be denied with ten dollars costs and disbursements, to be offset against the costs and disbursements granted by the order dismissing the first appeal.

The third appeal is from the order of July 27, 1876, confirming the second report of the referee and overruling all the exceptions filed thereto by the appellants This appeal was taken in time, and is the one which brings up the merits of the case.. The motion to dismiss this appeal is made upon the ground that no case and exceptions, or case containing exceptions had been settled or served under rule 40, and that no motion for a new trial under rule 40, or otherwise had been made. We held at the time this point was suggested, that the case was not affected by the provisions of rule 40, but was governed by the provisions of rule 39, it being a reference other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases; and that the proper mode of review was by filing and serving exceptions within eight days after service of notice of the filing of the report of the referee, and which would properly be brought to a hearing upon such report and exceptions, on the notice on any party interested therein. The other grounds relate to the sufficiency or correctness of the papers served on the appeal. Leave was given to the appellants to make corrections in many important particulars, with the understanding that if made, the motion to dismiss the appeal would be denied. These corrections have been made in substantial compliance with the direction of this court.

The motion to dismiss that appeal should, therefore, be denied without costs to either party.

The fourth appeal is from the order of August 18, 1876. The motion to dismiss this appeal is made upon the ground that the printed papers served on the appeal do not contain all the papers recited in the order appealed from. In strictness, this objection appears to be well founded, for the order recites as part of the papers upon which it was founded all the papers and proceedings in this action, particularly said report of said referee, and the proceedings and testimony taken by and before him.” All these papers are not printed in the appeal papers from this particular order, but they are all before' us in the papers in the third appeal above mentioned, and there is a stipulation printed with the papers in this appeal, made on the part of the appellants, that those papers may be read and used as part of the papers on this appeal. Ordinarily this would not be permitted; but we see no objection, inasmuch as the appeals are here concurrently, to allowing it to be done to save expense to the parties in this case. The respondents do not complain of any prejudice thereby, and the only embarrassment occasioned, falls upon the court, which, considering how little it increases the general bulk, we are willing to overlook.

The motion to dismiss this appeal must, therefore, be denied without costs.

The appeals remaining undisposed of will now be considered in their order. The second appeal, which is from the order of June twenty-sixth, by which the report of the referee was referred back, and the appellants were substituted as parties to the action, and direction was given to the referee to proceed to take further evidence, and that the evidence already taken by him might stand, involves several questions.

First. The right to make any order of reference upon the petition of the respondent West. This question is based upon the alleged ground that the claims asserted by West cannot be determined by such a reference, but must be disposed of by an action at law, in which the appellants will be entitled to a trial by a jury. West was the attorney of the testator of the appellants, in the action brought against the city for the recovery of a large claim due him upon certain contracts. This petition asserts, that he undertook the prosecution of the action under a special agreement between himself and the testator, in relation to his costs and compensation, the substance of which was, that he should have, in case of recovery, in addition to the taxed costs and disbursements of the action, the sum of $5,000 and one-half of all interest that should be allowed and recovered upon the claims prosecuted in the action; that a recovery of upwards of $111,000 damages and costs had been liad in the action, and afterwards, while an appeal was pending, the action was settled or compromised between the present appellants and the defendants by the payment of the sum of $50,000 against the protest of West, the attorney; that upon his asserting a lien on the moneys to be paid on the judgment, the defendants in the action had retained in their hands a sum sufficient to cover the claim asserted, to abide the result of proceedings on the part of West to establish his alleged lien. So far as relates to West, we think the court had ample jurisdiction under the authorities to adjudicate summarily upon the existence and extent of the attorney’s lien. The first order, that of May twenty-seventh, was properly made for that purpose. (Rooney v. Second Av. R. R. Co., 18 N. Y., 368; McGregor v. Comstock, 28 id., 237; Clark v. Rowling, 3 id., 217; Richardson v. R. R. Co., 7 Hun, 69.) The proceeding was in the nature of a proceedings rem, and was properly carried on upon petition and reference. The original order was made upon notice to the then proper parties, and the order appealed from in this cáse substituted the appellants to a pending proceeding, in which they, by reason of their appointment as executrix and executor, had become proper parties. The court in making this order liad power to preserve in full force the proceedings already taken, and so far as the order does that, no objection can properly be made to it. The direction of the order that the evidence already taken should stand, was not intended as a decision upon the legality or propriety of such evidence. In its true construction it merely preserved the testimony already taken, subject as a matter of course, to such legal objections to its admissibility as the parties had a right to insist upon. The directions as to the proceedings in the further hearings of the reference, although stringent, were nevertheless discretionary, and the direction as to the hearing upon the report of the referee thereafter to be made were in violation of rule 39, and ought not to have been given; but the directions in that regard do not appear to have been prejudicial to the appellants, and a modification of the order in that respect would be of no advantage, because the report was brought to a hearing upon their exceptions to a final report, and there is nothing to indicate that they were at all prejudiced at that hearing by the direction in the order that it should be brought on in five days. There is no reason therefore, we think, for interfering with this order so far as it affects the respondent West, and as our conclusions in relation to the third appeal cover all objections in relation to the other respondents, we see no impropriety in our affirming the order of June twenty-sixth; but under the circumstances the affirmance should be without costs.

The third appeal is from the order of confirmation of the final report of the referee. It brings up all the important legal questions involved in the several orders and proceedings, as well as the merits of the respective claims of the appellants. This order overruled all the exceptions to the report filed by the appellants, and on this review the questions presented are, in strictness, those only which arise upon such exceptions. The exceptions, although very numerous, are all directed either to the findings of the referee upon questions of fact, or to his conclusions of law. It cannot be doubted that the testimony of the petitioner, West, in respect to the contract made between him and the appellants’ testator, was illegal and improper. It fell directly within the prohibition of section 399 of the Code, and ought to have been excluded. However, no objection whatever was made to it at the time it was given. The appellants were not then parties to the proceeding, and of course could not object. At the rehearing, after they had been brought in as parties, they did object to such testimony, and moved to strike out the same before the referee, and their objection and motion were overruled and denied by the referee, on the ground that the order sending back the reference directed that the testimony already taken should stand,” and this the referee thought took away his power to strike out or exclude any portion of it. We think he was wrong in this ruling, for while the order used language which would bear the construction given to it, it certainly was not intended by the court, because neither the questions nor the facts were before it to call upon the court to hold that the new parties should be bound, nolens miens, to receive any illegal testimony already taken. It would have been a better ground to Have denied the motion because the testimony had been received without objection on the former hearing by the then plaintiff in the action, and that it was too late to raise objections on the rehearing. But the same contract, almost identical in form and language, certainly so in substance, was proved by several other witnesses, and if the referee had struck out the testimony of West, as we think he ought to have done, there would still have remained abundant evidence to uphold his finding of fact as to the contract between West and the testator; and under such circumstances we do not think it our duty to reverse the order of confirmation, unless the question on this evidence is so presented as necessarily to compel us to pass upon its legality. We think it is not. The exceptions filed as already stated, are limited to the findings of fact and conclusions of law. No question is raised by them as to the admission of improper or illegal evidence, or as to any thing that transpired in the progress of the hearing before the referee. If the appellants desired to review the admission of testimony taken by the referee, they should have specified as part of their exceptions to the report that it was founded upon illegal testimony, and that the referee had improperly overruled their objections. In the absence of any such exception, and in the presence of the competent evidence to sustain the finding of fact, we are not called upon to interfere with the order of confirmation. We have already seen that West, in his relation of attorney, was entitled to enforce his lien for costs upon the fund recovered by the judgment. (Cases supra.) That lien, according to the decisions of the Court of Appeals, extends to the agreed, compensation to be paid out of the judgment recovered, for that agreement operated as an equitable assignment of so much of the judgment as was to measure the compensation. That was distinctly held by Rooney v. Second Av. R. R. (supra; see Sherwood v. Buffalo and N. Y. R. R. Co., 12 How., 136; Haight v. Holcomb, 16 id., 160, 173.)

Section 303 of the Code abrogated all rules and provisions of law which before restrained an attorney in agreeing with his client for the measure or mode of his compensation, and left the same to the agreement of the parties, express or implied. This was disastrous, I think, to the morale of the profession, for, in the language of ComstooK, J., it made “ what was before not only illegal but disreputable, now lawful if not respectable.” (Rooney v. Second Av. R. R. Co., 18 N. Y., 373, supra.) The confirmation of the report overruling exceptions, so far as they relate to the respondent West, must, we think, be affirmed.

A different question is presented in respect to the claims of the respondents Fullerton and Strahan; and that question is raised by the exception to the finding of facts of the referee, and the conclusions touching those claims. These gentlemen'were employed by the appellant’s testator as associate counsel in the case. They occupied no other relation to the case than that of counsel; and, however meritorious their claim may be to the compensation awarded to them in the case, they had no lien upon the judgment in the action which entitles them to enforce their claims by this proceeding. No case has been cited to us, and we think none can be found, where the courts have held that persons who occupied the relation merely of counsel, acquired thereby a lien upon the recovery. Their claims, if disputed, can only be established in the form prescribed by law for the recovery of debts. The referee erred, therefore, in his conclusion that these gentlemen had liens upon the judgment which could be enforced in this manner ; and as the exceptions are broad enough to raise the question, we think we cannot do otherwise than reverse so much of the order as affects their claims. The order should, therefore, be modified so- far as to affirm the report, and direct the payment of the amounts established by the respondent West, and found to be a lien in his favor upon the moneys collected; and as to the residue the exceptions should be sustained, and the petition in respect to the claims of the respondents Fullerton and Strahan, denied; neither party to have costs as against the other on this appeal.

The fourth appeal is from an order made August 18, 1876, and while the appeals already disposed of were pending in this court. That order directed that $5,000, part of the amount found by the referee in favor of Mr. West, should be forthwith paid to him, on the ground that the same was conceded by the answer of the appellants to the petition to be due, and that there was no dispute before the referee to the right of Mr. West to that sum. There are several reasons why we think this order ought not to fiave been made;

First. The whole subject-matter of the claim and lien of Mr. West had been transferred by appeal to another tribunal, and the making of such order necessarily compelled an appeal therefrom, in order to make effectual any possible reversal of the order of confirmation.

Second. A stay of proceedings had been already granted by the court until the hearing of the pending appeals, and this order was made without modifying such stay, unless it operates, per se, as such modification.

Third. But principally, because it is made upon the mistaken assumption that it is conceded and admitted that the $5,000 was absolutely due to the respondent West. It is true that the answer of the appellant admitted that $5,000 was due to Mr. West, and that he had alien on the judgment therefor, but this was admitted only by way of negative pregnant. The answer in relation to the $5,000 is in these words: “ The respondent denies that any sum whatever is due to the said Alfred W. West, except the sum of $5,000 which they are ready and willing and have offered to pay. And the respondents for their further answer say, that the said West has no lien whatever upon the subject-matter of this action, or in any way except for the sum of $5,000 as aforesaid.” This denial that any thing more than $5,000 was due him, and that his lien was for no greater sum than that, is, of course, an admission of that sum, but in a form that expressly negatives all other liability. It was shown to the court, on this motion, that, by a previous order, the sum of $4,054.32 had been paid to Mr. West upon his alleged lien, being the amount of his taxed costs and disbursements. After such payment had been made upon the order of the court, we think it was entirely erroneous to hold that the admission of the answer, that $5,000 only was due to Mr. West, could be a sufficient basis to order judgment of that sum without, at least, deducting what had already been paid on the previous order, for it was clearly denied, and was in no wise the intention of the appellant to admit that West was entitled to both of such sums. That construction, under the circumstances, seems to us to have been unjust to the appellant, and although we now hold that both those sums, and more, were owing to him, we cannot regard it as proper to have made peremptory orders for the payment of the $5,000, because that sum was admitted in the proceedings to be due, but nowhere admitted to be due in addition to the $4,054.32 already paid.

We think the order was improper; and, inasmuch as the appellants were compelled to bring an appeal from such order, in order to preserve their rights, if any, under the former appeals, they ought to have costs on this appeal.

The order is therefore reversed, with ten dollars costs, besides disbursements; but it may be provided in the reversal that the sum of $5,000 paid under it should be credited to the appellants upon the amount declared due to the respondent West, by the affirmance of the order of confirmation of the referee’s report as to him.

Orders to be settled in this case before Presiding Justice Davis, on three days’ notice.

DaNeels, J., concurred.

Beady, J.:

A careful examination of the evidence in this case shows that the lien which is claimed by Messrs. Fullerton and Strahan is not established. The services rendered by them are shown and their value demonstrated, but the arrangement made with regard to them does not, as suggested, create the lien which must exist under section 303 of the Code, to insure the application of the fund to its payment in a summary proceeding. I concur, therefore, in the result.

Motion to dismiss appeal number one from order of May 27, 1876, granted with ten dollars costs and disbursements.

Motion to dismiss appeal number two denied with ten dollars costs and disbursements, to be offset against the costs and disbursements on the preceding order.

Motion to dismiss appeal number three denied without costs to either party.

Motion to dismiss appeal number four denied without costs.

Order of June 26, 1876, affirmed without costs.

Order of confirmation of the final report of referee so far modified as to affirm the report and direct the payment of the amount established by the respondent West, and found to be a lien in his favor upon the moneys collected, and as to the residue the exceptions sustained and the order in respect to the claims of the respondent Fullerton and Graham reversed. Neither party to have costs against the other on this appeal.

Order of August 18, 1876, reversed with ten dollars costs and disbursements, but it may be provided in the reversal that the sum of $5,000 paid under it shall be credited to the appellants, upon the amount declared due to the respondent West,’by the affirmance of the order of confirmation of the referee’s report as to him.


source: Caselaw Access Project

author: Davis, P. J.:

license: Public Domain

text:
    EUGENE M. KETELTAS and HENRY W. CLARK, as Executors, etc., of WILLIAM A. KETELTAS, Deceased, Appellants, v. MARY C. GREEN, otherwise Known as MARY C. KETELTAS, Respondent.

      Legacy — payment of, before expiration of yean' —when ewrrogate may order — It. 8., part 2, chap. 6, title 3, a/rt. 3, § 83.
    Section 83 of article 3, title 3, chapter 6, part 3 of the Revised Statutes, authorizing any person entitled to any legacy or to a distributive share of the estate of a deceased person, to apply to the surrogate, at any time previous to the expiration of one year from the granting of letters testamentary or of administration, to he allowed to receive such portion of such legacy or share, as might he necessary for his support, only applies to cases in which the title of the party to a distributive share is undisputed and free from doubt, and where such is not the case the surrogate has no authority to hear and determine proceedings instituted thereunder.
    Appeal from an order of tlie surrogate of the county of New York, directing the appellants as executors of W. A. Keteltas, deceased, to pay to the respondent $5,000, as a portion of her distributive share of the estate of the deceased, in proceedings instituted under sections 82 and 83 of 2 Revised Statutes (Edm. ed.), page 102.

      H. W. Ciarle and S. P. Nash, for the appellants.

      C. B. Smith, for the respondent.
   Davis, P. J.:

This was an application under sections 82 and 83 of article 3, title 3, part 2, chapter 6 of the Revised Statutes, relative to the duties of executors and administrators. (2 R. S., §§ 82, 83, p. 98.) Section 82 is as follows: “ Any person entitled to any legacy or to a distributive share of the estate of a deceased person, at any time previous to the expiration of one year from the granting of letters testamentary, or of administration, may apply to the surrogate, either in person ór by his guardian, after giving reasonable notice to the executor or administrator, to be allowed to receive such portion of such legacy or share as may be necessary for his support.”

The application was made by the respondent, as widow of the testator, William A. Keteltas, under the above recited statute, and under the ninth clause of the will of the testator, which directs his executors to divide and pay his residuary estate “ between and among his next of kin, according to the statute of the State of New York, now in force, concerning the distribution of personal estates of intestates, in like manner as though he had died intestate.” The respondent filed her petition claiming that she was the widow of the deceased and was entitled to a share in the distribution of the residuary estate, as directed by the ninth clause of his will. The appellants denied the marriage of the respondent with the testator, and denied that, under the provisions of his will and by their true construction, she was entitled to any distributive share in his estate. These questions have been tried and passed upon by the surrogate, and found and determined favorably to the respondent. There seems to be no reason to doubt but that the surrogate correctly found upon the question of marriage; the proof was abundant upon that point-. The marriage took place a few months before the death of the testator, prior to which and for many years the- respondent and the testator had been living together in cohabitation without the sanction of any marriage ceremony. The marriage was an act of justice on his part which ought long before to have been performed, and in tenderness to his memory ought not now to be disputed. If there was no question but that of the respondent being defacto et dejure the widow of the testator, we think we should be entirely justified in affirming the order; but at tbe time the will was made her relations to the testator were quite otherwise than marital.

The will provides that $10,000 be invested and the interest and income thereof paid to her during her natural life; and in this provision of his will the testator describes her as “ Mary C. Green, now living with me.” Her subsequent marriage to him does not affect this provision for her, nor does there appear to be any question as to her right bf dower springing out of such marriage. But the question whether she is entitled to come in under the. ninth clause of his will and claim as a distributee of the residuary estate is earnestly contested by the appellants. It depends upon the construction to be given by the court to the ninth clause, when read in connection with all the provisions of the will. It is claimed by the appellants that this question is one which the surrogate had no jurisdiction to determine under the eighty-second section of the statute above recited, upon an application for the payment in advance of a portion of a distributive share; but that that section applies only to cases where the title of a party to a distributive share is undisputed and free from doubt. There is, it seems to us, great force in this objection. The language of the section clearly indicated that the proceeding under it was intended to apply only to cases of undisputed right. “Any person entitled to any legacy * * * may apply,” etc. It does not read any person who claims to he entitled; and the subsequent provision providing only for notice to executors and administrators, and not, to all persons interested in the construction of the will, tends strongly to show that it was not designed to authorize the surrogate to act under this section in directing advancements, if the application was not made by a “ person entitled,” without controversy, to a legacy.

It should be recollected that the proceeding under the eighty-second section is a special one, for a particular purpose, wholly distinct and independent of the general provisions relative to the final settlement of estates and payment of legacies, and its proper determination requires us not to confound it with such statutes. Even under somewhat similar provisions of the statute relative to the payment of debts by order of the surrogate to creditors of the testator, the courts have held — and it seems now to be the settled law— that the surrogate has no jurisdiction to hear and determine contested claims. (2 R. S., 116, § 18; Magee v. Vedder, 6 Barb., 352; Tucker v. Tucker, 4 Keyes, 136.) The principle of those cases seems to us to be applicable to the case before us. Provision in section 82 is made for notice to the executor or administrator, but no notice is provided for to the next of bin, or legatees, or devisees under the will, who are the parties most interested in a contested question of this character. Nor is there any mode of bringing them before the surrogate, as parties to such a contest for the construction of the will. But in a proceeding for that purpose before any other tribunal, or in proceedings before the surrogate for the final settlement and distribution or payment of legacies and distributive shares, they would not only be proper but necessary parties, because their rights would depend directly upon the determination of the questions involved. The learned surrogate passed upon this case upon the authority of Luce v. Dunham (14 S. C. N. Y. [7 Hun], 202), in which construction was given to a somewhat similar residuary clause of a will, and the widow of the testator was held under the peculiar phraseology of the will to be embraced in the words heirs and next of kin.” That case and the cases cited in the opinion of Justice DaNiels, cannot be said to have so fully disposed of the question involved in this case as to leave no serious doubt of the construction to be given to the will of this testator. There is an element of difference between the cases which raises a delicate, and perhaps difficult question, to be considered; and it should only be determined by the Surrogate’s Court, in proceedings under the general statutes above mentioned, or in an action or proceeding for a proper construction of the will in a court having jurisdiction of all the parties to be affected. We do not intend to intimate any opinion as to how the question ought to be decided.

We think that the surrogate had not jurisdiction in this special proceeding to adjudicate upon the construction of the will, touching the disputed rights of the parties under the ninth clause.

The order appealed from must, therefore, be reversed; but the circumstances of the case are such that no costs should be charged upon the respondent. The costs of the appellant, both on this appeal and on the proceedings below, may be allowed to them as a charge upon the estate, as was directed in Magee v. Vedder (supra).

Beady, J., concurred. Daítiels, J., concurred in tbe result, but not for want of jurisdiction.

Order reversed; no costs to be charged upon respondent; appellants’ costs, both on appeal and proceedings below, allowed to them as a charge against the estate.


text:
    ROBERT P. GETTY and others, Respondents, v. EDWARD C. DONELLY, Impleaded with others, Appellant.

      ’Fraudulent concealment — right of party injured by — Affirmative representations — not necessa/ry to sustain action.

    A portion oí the owners of a tract of oil lands, conspired together to sell the same at an advanced price to a company to be organized by them. In pursuance of this plan they prepared an agreement for the purchase of the lands and subsequent formation of a company, by which they and certain other persons agreed to subscribe $5,000 each, although they did not then intend to, nor did they ever pay any portion of the amount so subscribed. One Donelly was induced to sign the said agreement, the persons preparing the same concealing from him, with the intent to defraud and deceive the said Donelly, the fact that the land to be purchased by the company belonged to them. Subsequently the company was formed and the lands were conveyed to it, at a price largely in excess of that paid for it by the persons getting up the said company.
    In an action by Donelly to compel the said persons to account to him for his proportional share of the profits, realized by them upon the sale of the land to the company, held, that he was entitled to recover the same, although at the time of signing the agreement no affirmative representation in relation thereto was made to induce him to become a party thereto.
    Appeal on the part o± the defendant Donelly, from a judgment entered upon the trial of this action at the Special Term.
    The facts are stated in the opinion of the court.

      F. M. Bangs and M. W. Devine, for the appellants.

      John E. Devlin, for Jeremiah Devlin and another, respondents.
   Davis, P. J.:

This is an appeal from so much of the judgment of the Special Term in the above entitled action as denied judgment in favor of the appellant Donelly, against the defendants Devlin and Spaulding, executors, etc., and others. The case does not contain the evidence upon the trial, but it contains the pleadings of all the parties, the findings of the court, and proper exceptions thereto for the purpose of raising the question presented, which in substance is, that upon the findings of the court, the appellant Don-elly was entitled to judgment against certain of his co-defendants. In the opinion of the court below, it is said in respect to the claim of this appellant: “A claim was made on behalf of the defendant Edward C. Donelly, but we are unable to see upon what ground a recovery in his favor can be based, as the foundation of the recovery is fraud, and no fraudulent representations whatever were made to him, or to any person representing him. No recovery, therefore, in his favor can be sustained.”

It is true, the foundation of such recovery is fraud; such a fraud as would make the defendants charged therewith, trustees in respect of the profits made in the purchase of the lands, but it is not necessary that such fraud should be established by direct or personal fraudulent representations. The evidence given on the trial being omitted in this case, we cannot now assume that there was any given except sufficient to uphold the findings of the court. From these findings it appears that the defendants sought to be charged, purchased the property at a cost of about $25,000 ; that they combined together to put off the property at the price of $125,000, representing that it was thereafter to be purchased for the subscribers to an agreement for the purchase of such property at that price ; that they became subscribers themselves to such agreement to the amount of $5,000 each, without any intention or expectation of paying any part of their subscriptions; that 'they procured five other persons to sign the agreement knowing that they did not intend to pay their subscriptions; that by the terms of the paper, Daniel Devlin was made, and agreed to act as trustee for the subscribers thereto, and received in that capacity all payments made by them; that such defendants concealed and suppressed the fact that Devlin was in reality acting for himself and his associates Ark-enburg and Bryan as sellers, and not as buyers of the property; that the appellant Donelly was the last of twenty-five subscribers to that instrument that he paid his subscription to Devlin, and received from him a receipt in the words and figures following:

“New Yoke, April 11, 1865.
“ Beeeived of Edward 0. Donelly $5,000, being the amount of his subscription for his proportion of purchase of the oil lands and leases described in the agreement dated February 2, 1865, from-which a company is to be organized as soon as the deed is received for the property.
“DANIEL DEYLIN, Trustee?

The court further finds that the intent and design of said Arken-burg, Bryan and, Devlin, in signing the said agreement of February 22, 1865, was to effect a sale of the property therein described at a profit to themselves in money and stock, in excess of the profit in money or stock which would be realized by the other subscribers to the agreement; and that it was also the intent and design of said Bryan, Arkenburg and Devlin, to cast upon the plaintiffs and the other bona fide subscribers to said agreement, the whole risk of the adventure, and not to be participants or partners of the plaintiffs or such other subscribers to said agreement in such risk; and that in collecting or receiving the aforesaid payments of money under such agreement, it was not the intent and design of said Devlin, Arkenburg and Bryan to receive or dispose of the same m trust for the purchasers, but to receive such payments in trust for the sellers of said property, and to distribute such money among themselves, and one Atwood, as sellers of said property at a profit; which intent and design the said Devlin, Arkenburg, Atwood and Bryan at all times concealed from the plaintiffs and from said Atwood; and that it was their intent to deceive and defraud the plaintiffs * * * and Donelly; that at the time when the appellant Donelly, made his subscription to the agreement, and when he made the payment thereunder, he did not know, and was not informed, that any of the lands or leases had already been purchased by them or by any person for them, or any or either of them.

It is also found that a corporation called the Federal Oil and Ooal Company was formed upon the basis of said agreement and lands; that Donelly had received a certificate for 3,200 shares of the Federal Oil and Ooal Company, which he produced upon the trial of the action, and offered to cancel or transfer the same as the court should direct; that said stock of said company was worthless; that the said Donelly did not ascertain the said fraud until the commencement of this suit, and has never done any thing to ratify the said fraudulent acts. Upon these, and various other .facts material to the controversy, found by the court, we see no reason why it should not have been held that the suppression and concealment of the truth from Donelly by the defendants were equivalent to a false representation. The agreement itself to which he subscribed, contemplated very clearly a purchase to be made, and not one already made, and it clearly contemplated in respect to him, that he should enjoy the advantage of such purchase at the price at which it should be in fact made, as well as his co-subscribers. All the agreement contains upon that subject is to be regarded as an express representation of the purpose for which the subscriptions were to be used by Devlin as therein named, on behalf of all the subscribers, and the same idea pervades the receipt which was given to him. -It would be a severe rule, we think, to hold that his right to participate in the profits of the lands to be purchased for the purpose of organizing a company, did not exist, because the fraud practiced upon him-was accomplished by concealment, instead of misrepresentation, of actual and material facts of the transaction. He came in as he supposed, and was entitled to suppose, upon a precisely equal footing with all the other subscribers. His action was influenced by the same belief, and the court has substantially found that he was deceived and defrauded by the acts of the parties, although no oral representations were, in fact, made to him. If it had been disclosed to him by the defendants, who had already purchased and were owners of the lands, that they occupied the relation of owners to the property, and were themselves selling to the subscribers under the agreement for the purpose of organizing a company at a price fixed by themselves without regard to the cost, Donelly would have no cause to complain, but the whole theory of the case is that they had already become purchasers and owners at a comparatively small cost, and that for the purpose of making a very lai’ge profit upon their purchase, they indxrced Donelly and other Iona fide subsci’ibei's to the agreement, to enter into a joint adven-' ture with themselves upon the basis that the moneys subscribed were to be used in thereafiter making a purchase of the lands referred to in the agreement at the price at which they could be bought of their owners, and that each participant in the joint adventure of purchasing- such lands to constitute the capital of the corporation to be created, should stand upon an equal footing in the profits to be derived from them by means of using them as such capital; and this required at the hands of the vendors frankness and fair dealing toward their associates, and permits them to occupy no other or better relation to the lands than that enjoyed by all the associates in the enterprise. When this case was in the Court of Appeals (54 N. Y., 403), the principles which govern it, were laid down in such form as leaves, in our judgment, no doubt of the right of the defendant Donelly to relief upon the facts found by the court. It will not be necessary to have a new trial in order to ascertain what judgment should be rendered in his favor. That can be ascertained upon settling the order to be entered upon the reversal of the judgment below.

The case is one in' which we think relief can be properly granted as between co-defendants. (Elliott v. Pell, 1 Paige, 263; Jones v. Grant, 10 Paige, 348; Code, §§ 118, 274; Livingston v. Mildrum 19 N. Y., 440; Kay v. Whittaker, 44 id., 565, 576; Getty v. Devlin, 54 id., 415.)

The judgment with respect to Donelly, the appellant, should be reversed and a judgment entered in his favor upon the findings of the court below.

The respondents on this appeal claim to review the order of the court made March 1, 1875, authorizing the defendant Donelly, to answer at that time as of September 22, 1868. The appeal papers contain nothing but the order of the court allowing the answer, and the answer itself. The order recites that it was made upon affidavits, and the pleadings in the action, including the proposed answer and other papers. None of the .papers thus recited are properly before us, and this is probably a sufficient reason why we should decline to review the order. Certainly so far as it was discretionary in the court to make it, we cannot say from the appeal papers what facts were shown to justify the exercise of such discretion, but counsel for the appellant, Donelly, has appended to his points an affidavit on which the order was made. From that affidavit it appears that the plaintiffs in the action had consented by stipulation that the time of the defendant, Donelly, to answer tbe complaint should be extended until the expiration of twenty days’ notice to bis attorneys, and had waived verification of the answer, so that as between plaintiffs and defendant the time to answer does not appear to have expired. This affidavit sets forth a state of facts, from which it appears to us that the order as an exercise of discretion was proper. The attorney of Donelly had appeared in the action, as he testified, under the conviction that the complaint stated every thing essential to protect the rights of Donelly and that there was no necessity for an answer by him, but only that proper proof should be presented on his behalf, that on the 28th of November, 1878, an order was made in the action authorizing the amendment of the complaint, which-seems not to have been served on Donelly’s attorneys and which contained a provision that would cut off Donelly from any right to answer or any right to recover against the defendants, and thereupon he made application for permission to put in an answer which would preserve his rights. The court heard counsel on both sides and granted the order. If we hold in the action that Donelly had any rights that ought to be preserved, we see no ground for holding that the discretion of the court in permitting him to answer was abused. 'Without considering the question whether the order was appealable or passing upon that point, we think it should be sustained on the ground that it was not an abuse of discretion.

The order should, therefore, be affirmed, without costs.

Daniels, J., concurred Beady, J., took no part.

Judgment as to Donelly reversed and judgment entered in his favor upon the findings of the court below. Order authorizing defendant Donelly to answer affirmed without costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE LAW v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE COUNTY OF NEW YORK and ANDREW H. GREEN, Comptroller, etc., Respondents.

      Illegal assessment — how corrected — review of, wpon certiora/ri.

    Where the commissioners of taxes and assessments of the county of New York return to a writ of certiorari, issued to review an illegal assessment, that the assessment rolls and papers relating thereto have passed out of their hands, and been filed in the office of the comptroller of the city, and are then under his charge, the writ should be quashed as to them.
    Nor can a judgment be pronounced in such a case, requiring the comptroller to correct the records in his office.
    The proper remedy in such a case is to bring an action against the city to have the assessment vacated, the tax declared illegal, and to restrain the enforcement thereof.
    Certiorari to review tbe assessment of certain taxes, imposed on the lots of the relator.

      Michael Ganfield, for the relator.

      J. A. Beall, for the respondents.
   Davis, P. J.:

The relator shows a clearly meritorious case for relief. His premises, known for the purposes of taxation as “ ward 6, ward No. 392, Mott street,” have been duly assessed from year to year from 1870 to 1875, both inclusive, and the taxes imposed thereon have been paid by him' in each year. The same premises, under the description of “ ward 6, ward No. 392, North street,” have been assessed in each of said years, and taxes have been imposed thereon which have not been paid. The lot runs, on one of its sides, from Mott street through to North street. Its entire depth, according to the diagram returned by the commissioners, is ninety-seven feet eight inches on the line which runs through to North street, and ninety-seven feet nine inches on the line which does not run through; and it has an irregular or diagonal fronting on North street for the greater part of its width, produced by the fact that North street does not run parallel with the line of the lot. Enough appears on the papers returned to show that this is a clear case of double assessment and taxation. The affidavit of the relator, on which the writ was granted, shows that the fact of such double taxation was not known to him until about December 1,1815; that he immediately thereafter made application to the commissioners of taxes and assessments to remit, and cause to be canceled, the erroneous and duplicate taxes. • The commissioners did thereupon remit and cause to be canceled the double tax for the year 1815, but refused to take any action in respect to the other taxes, on the ground that they had no power to remit or cancel the same. The commissioners of taxes and assessments return to the writ that there are no records or rolls in the office of the commissioners of taxes and assessments, showing the making,' levying, payment or the return for the non-payment, of any tax on the lots of the relator designated and described in said writ, for the years 1810 to 1815, both inclusive. They further return, that upon the records of assessment valuations for the years 1810 to 1815, both inclusive, there are entries being the valuations of ward 6, ward No. 392, Mott street, and also entries being the valuations of ward 6, ward No. 392 North street. They also return a diagram of the lot taken from the assessment map of that ward, and this comprises the whole of the return made by them. This return only shows that the lot assessed as ward 6, ward No. 392, Mott street, is the same as that assessed as ward 6, ward No. 392 North street; ” and that the records of the commissioners contained evidence, that the alleged assessed valuations of the lot were made, as alleged by the relator.

The comptroller returns that the rolls and records of the department of finance show that the lot designated and described as ward 6, ward No. 392, Mott street,” was assessed for taxes for each and every of the years named, as the same are entered in the book of the receiver of taxes, which entries show that the same were assessed to the relator in each year, and the tax thereon imposed was duly paid, and that for the same years the lot designated as “ ward 6, No, 392 Worth street,” was assessed in three of the years to the relator, and the other three to some other person or without the name of any owner or occupant, and that the taxes have not been paid, and that upon the book of arrears of taxes in the bureau of arrears, such taxes are entered in a form showing that the same are unpaid and in arrear. He returned also that the lot was sold for arrears of taxes for the year 1870, imposed on “ward 6, ward No. 392, Worth street,” to W. B. Honenstein, for the sum of $386, and certified that these are all the rolls and records with the finance department so far as the same relate to the making, levying, payment or acceptance of the tax upon the lots and premises mentioned and described. These returns, we think, show with sufficient distinctness, the double assessment and taxation imposed upon the lot of the relator, of which he complains. It is apparent how the mistake occurred, when we look at these returns in connection with the affidavit of the relator which show in substance, that the lot has for twenty years been assessed as fronting on Mott street, and that shortly before 1870, Worth street was laid out diagonally across part of the rear of the lot so as to give an irregular frontage on that street; and that since that time the assessors have made duplicate valuations of the lot as one fronting on each of said streets. There has been no intentional wrong, but a mistake, which operates as a legal wrong.

The commissioners of taxes and assessments had clearly no power to make duplicate assessments, without subdividing the lot and imposing separate assessments on each portion thereof; and their error and all the consequences which have followed from it, ought certainly to be corrected by some form of proceeding either by the city authorities or by the courts. The grave question in the case is, whether this can be done in the present proceeding, by certiorari.

The commissioners of taxes and assessments corrected the assessment for the year 1875, for that assessment still remained within their jurisdiction. They held that the several assessments for the years preceding 1875 had passed beyond their jurisdiction, and that they had lost all power to make the desired correction. In this conclusion, we think the commissioners were correct. It was held in People v. Commissioners (43 Barb. 494), that this court could not relieve an aggrieved party, upon certiorari directed to the commissioners, where his property had been improperly and unjustly assessed, if the assesment rolls had been delivered to the supervisors. This was put upon the ground that the commissioners had no longer any control over the assessment and could not correct or remit it. And in the People v. Reddy (43 Barb. 540), where it appeared that the assessment roll had been delivered by the assessors to the supervisors of the town duly certified, and was no longer in the possession or control of the assessors, the court held that it could render no judgment or certiorari that could affect the assessment roll or correct' any error, although satisfied that there was clear error in the proceedings. And in The People ex rel. Marsh v. Delaney et. al., Assessors (49 N. Y., 655), it was held that if the roll has been delivered to the. board of supervisors, the power of the assessors over it has ceased, and the certiorari should not be allowed, and if allowed, should be quashed, even if return be made. These cases seem to establish that the commissioners in this case cannot be required on this writ to correct the assessment rolls, which have been returned in the several years from 1870 to and including 1874, because they have no control or jurisdiction over the same. All that remains with them is the evidence on their books that the assessments were duplicated on the relator’s lot, and a direction to them to correct that record would be of no value to the relator, but, on the contrary, would be injurious to him by destroying a part of the evidence of the fact of double assessment alleged by him. Nor do we see any ground upon which judgment can be pronounced against the comptroller directing him to correct the records existing in his office. He has no jurisdiction or power over them for that purpose, but is a mere agent of the city and county for the purpose of receiving and preserving the records, and taking steps, through the proper officials, for the collection of the taxes. If there were no other reason why judgment of the character sought for could not be pronounced against the comptroller, the absence of the city as a party to the proceeding would be a sufficient one, because it is the corporation that is alone interested in the enforcement of the taxes that have been imposed improperly upon the plaintiff’s lot, and the corporation ought to be made a party to, and be heard in, any proceeding taken for that purpose. The corporation counsel, on the service of the original motion papers for a writ of certiorari, appeared on behalf of the city, but no process has been issued against the city, nor is it made a party to the writ, and no return has been required of it. It is not perceived, however, that it would be of any service in this particular, proceeding if the city were made a party, because it is not the province of the writ to restrain by injunction the collection or enforcement of illegal taxes, but to correct errors that have been committed by officers or boards clothed with authority tq impose them. The error is so palpable in this case that we regret that we are unable on this proceeding to grant the relief sought for, but we think the relator’s remedy must be had in another form, by action to vacate the assessment, and declare the tax illegal, and restrain the enforcement thereof. The necessity of this can, however, and ought to be prevented by the action of the city authorities. The common council, sitting in their duplicate capacity of supervisors and board of aldermen, ought to direct the cancellation of the tax, and the refunding of the moneys paid by the purchaser at the sale, and thus save the necessity of any further litigation and expense.

The writ in this case must be quashed, but without costs.

Beady and Daniels, JJ., concurred.

Writ quashed, without costs.


text:
    In the Matter of the Petition of GEORGE H. BURMEISTER to Vacate an Assessment, etc.

      Assessments in New Toi'h — mention of — Paving and repaving — us used in'chap. 580, of 1872, and chap. 818, of 1874 — Distinction between sidewaUc and carriageway.

    Semble, tliat the terms “paving ” and “repaving,” as used in the acts of 1872 and 1874, regulating actions to he brought to vacate assessments in the city of New York, apply only to the paving and repaving of the carriageway, and do not include the flagging of sidewalks or the setting of curb and gutter stones.

      Matter of Phütips (60 N. Y._, 16) explained.

      Appeal from an order of the Special Term vacating an assessment.

      J. A. Beall, for the appellant.

      P. A. .Hargous, for the respondent.
   Davis, P. J.:

The petition in this case was filed to vacate an„ assessment confirmed December 19, 1872, upon two lots, being ward Nos. 16 and 29, in block No. 277. The assessment was laid for regulating, grading, setting curb and gutter stones, and flagging the street on which the lots of the petitioner are located; and the ground on which the petitioner seeks to vacate the assessment is, as stated in the petition, that the said street had already been paved at the expense of the owners and occupants of the adjoining ]ots, previous to the pavement charged for in the assessment. To prove the previous assessment and payment thereof, the petitioner produced an extract from an assessment list for resetting curb and gutter, and flagging Forty-sixth street from Broadway to Hudson river, confirmed on the 7th of February, 1865, from which it appeared that an assessment was imposed on lot No. 29. He proved that that assessment had been paid. There was no proof in the case that a previous assessment had been laid and paid on lot No. 16. But the order vacates the assessment as to both lots. This is a palpable error, growing out of an oversight or misapprehension of the facts proved, for which the order below must be reversed and a rehearing ordered.

But there is another question in the case which deserves attention. It was not proved that Forty-sixth street, at the point covered by the assessment of 1872, had ever been paved at all. The assessment vacated by the court below is for regulating, grading, setting, curb and gutter stones and flagging, and not for paving; and the assessment of 1865 was also for resetting curb and gutter, and and flagging Forty-sixth street. The ordinance produced, which was passed in 1870, directs that the street be regulated and graded and curb and gutter stones set, and sidewalks flagged a space four feet wide in the center thereof where not already done. This uriex-plained, might, under the authorities relied upon by the petitioner, be deempd to be a repaving, and to be within the term “ repavement,” as used in the exception contained in section 7, chapter 580 of the Laws of 1872, and section 7, chapter 313 of the Laws of 1874.

In the Matter of Phillips (60 N. Y., 16), it was supposed by the learned judge who pronounced the opinion of the court, that flagging and paving were synonymous terms, each substantially embracing the same subject; and that the paving of streets in the city, and the flagging of sidewalks and setting curb and gutter stones, were things done under the same ordinance and regulations, as part of the paving of streets. It did not appear in that case that these things, by long established usage, as well as by the city ordinances, which with respect to them have the force of law, are in fact entirely distinct and independent things, and that the long recognized rule in the imposition of public burdens that streets should be paved once at the expense of the property owners, and that thereafter the burden of keeping them in repair should he upon the general public as represented by the city government never applied in the city to the sidewalks, and curb and gutter, in front of the premises of the owners of lots. The distinction was recognized as early as 1824, by an ordinance which was in these words:

“ Whenever the carriage-way of any of the streets in the city of New York, or part of the same, not less than the space or distance between and including the intersection of two streets, shall he repaired or newly paved and the crosswalks laid, and the sidewalks extended to the width required by law at the expense of the individual owners of the lots in the same, and the work approved by the chief of bureaus having special cognizance thereof, such streets or parts of streets shall forever thereafter be paved, repaired and repaved at the expense of the corporation, but this section shall not he construed to apply to sidewalks, but to the pavement or carriage-way of streets onlyP (Revised Ordinances 1838 and 1839.)

In the Revised Ordinances of 1866, chapter 14, entitled, “of paving, repaii’ing and repaving the carriage-ways of streets and avenues.” Chapter 15 is entitled, “ of flagging and laying and repairing sidewalks and curb and gutter stones.” And section 2 of chapter 14, contains the ordinance of 1824 above quoted. The ordinances of the city have always treated tbe flagging of sidewalks and the paving of carriage-ways of streets, as separate and distinct subjects ; and section 14 of chapter 15 provides in respect to such sidewalks, curb and gutter, as follows:

§ 14. The owner or owners, lessee or lesses, occupant or occupants of any house or other building or vacant lot, fronting on any street or avenue, shall at his, her or their charge and expense, well and sufficiently pave according to the ordinances, and keep and maintain in good repair the sidewalks, and curb aud gutter of such street or avenue in front of any such house, or building or vacant lot.”

Sections 15,16,17, 18 and 19 of the same chapter provide that in case the owners, lessees or occupants of lots fail to pave or repair the sidewalks and curb and gutters as the case may require, the street commissioner may order the same to be done, and the expense thereof shall be recovered of the owner, lessee or occupant, together with ten dollars as a penalty.

This was the condition of the law as to paving streets and flagging sidewalks, and maintaining the latter, and the gutters and curbs in front of lots in repair at the time the act of 1872 was passed, and the distinction between the paving of streets or carriageways, and the maintaining of sidewalks and curbs and gutters along the sides of the streets was not only well understood, but was observed in all letting of works and contracts. No person who took a contract in Jubo verba, iov paving a street, was ever supposed to have aiiy thing to do with the flagging of sidewalks.

It did not appear in re Phillips upon what portion of the street the flagging mentioned in that case was laid, for the court says: £: The precise character, extent or cost of the work for which the present assessment was made does not appear on the record.” In this case it clearly appears that the flagging was laid on a portion of the sidewalk, being a strip in the center thereof four feet in width. ■ The reason for excepting from the prohibition of the acts of 1872 and 1874, cases for the repavement of the carriage-way of streets, does not apply to the reflagging of sidewalks; and we have no doubt that the exception of the acts of 1872 and 1874, of cases of repavement of streets, was only intended to apply to that kind of repavement which, by long existing ordinances of the city, was chargeable only to the city. And bad the ordinances and facts appeared in re Phillips, as they will appear in this case when properly proved on a new hearing, the opinion of the learned judge would undoubtedly have recognized these facts and declared the law with respect to them. Regulating and grading a street is not repaving it, although it is certainly a part of the process of repaving.

If nothing more is done than the mere regulating and grading, those acts are not a complete repavement within the meaning of the exception. What appears by the ease to have been done in 1865 was the resetting of the curb and gutter and flagging the sidewalk, and these acts do not include the paving of the carriageway of the street. It is probable from what appears that the street in the part embraced in the assessment has never been paved at all, but is in the condition of a large number of the streets of the city, without pavement of the carriage-way but with sidewalks graded, and with flagging covering a part of the width of the sidewalk for the use of foot passengers, and with curb and gutter for the protection of the sidewalk. However these facts may be, they can of course be shown upon a rehearing of the petition. We are of opinion that the case was not brought by the proof within the exception of the acts of 1872 and 1874, but it is not necessary to pass upon that question because the case should be sent back for a rehearing upon the point first suggested. Nor is it necessary to determine whether the law of the case in respect to the publication of the ordinances is that laid down by this court in re Peugnet (5 Hun, 434), and lately affirmed by the Court of Appeals.

The order should be reversed and a rehearing ordered, with ten dollars costs of appeal, and disbursements to the appellants to abide the event.

Ready and Daotels, JJ., concurred in the result.

Order reversed; rehearing ordered with ten dollars costs of appeal, and disbursements to abide event.


author: BRADY, J.:

text:
    JOHN A. CLUSSMAN, Respondent, v. THE LONG ISLAND RAILROAD COMPANY, Appellant.

      Rail/road compam/y — liability of, for approaches to telegraph office opeo'ated by it.

    A railroad company having a telegraph office in one of its stations for the use of the public, is responsible to one of its passengers, who is injured solely because of the company’s negligence in failing to keep in proper condition the structure or platform erected by them, over which the passenger, in alighting fro°m the cars, must pass to reach the telegraph office.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The complaint alleged that the plaintiff, while traveling on the defendant’s railroad, alighted from the cars of the defendant at Medford station, upon the platform adjoining said station belonging to and in charge of defendant. That said platform was out of repair, and was so carelessly and negligently kept by said, defendant that one of the planks thereof, not being properly fastened and supported, turned under the foot of the plaintiff, and thereby the ankle of the plaintiff was violently wrenched and sprained, so that plaintiff was thereby seriously injured,- bruised and wounded, etc.

      A. J. Yanderjpool and Robert S. Green, for the appellant.

      T. E. Tomlinson, Jr., for the respondent.
   BRADY, J.:

The plaintiff was injui’ed while going from the defendant’s car over one of their station platforms, to send a telegram from an office in the station. It appeared on the trial that they employed the operator, but that the business was joint in some respects. The receipts from the public were divided between them and the Western Union Telegraph Company, although in what proportion does not appear. The Western Union Telegraph Company were not, however, under any obligation to keep the station in repair in any respect whatever.

They placed the instrument and connecting wires in the station, of which they occupied' so much as might be necessary for that, purpose.

The telegraph was for the use of the public, including of course the passengers carried by the defendant,' and they were invited by the receipt of telegrams for rapid transit, to go to the operator in the station when they desired to avail themselves of the privilege thus afforded them.

The use of the platform or structure of the defendant, therefore, by a passenger seeking to engage the operation of the telegraph is one which they ask him to make for their own benefit, and they become thus insurers against loss of life, limb or health, arising from such use, if guilty of negligence, and the person injured is free from any degree of negligence contributing to the injury received. The principles enunciated in the case of Hurlbert v. New York Central Railroad (40 N. Y., 145) are applicable to this case.

The rule thus declared would seem to be appropriate, if a stranger walking over the platform of the defendant to the operator’s room or department, was injured through their carelessness.

They invite each person to employ the telegraph they have thus placed within his reach, and to which he cannot have access without traversing the path which they have prepared for him.

He has a right to rely upon the safety of the structure, and the defendant should see to it that it is as he believes it to be. The indifference to the safety of limb and life which signalizes so many of our public enterprises must be condemned, and the persons engaged in. them held to strict accountability. If this be not done the people will be subjected to even greater dangers than exist, and which are avoided in other countries by a proper regard for human safety. The indifference suggested seems to increase in the same ratio that its danger is enlarged, and it would seem to be true, that as the necessity for security becomes more apparent the indifference seems to be magnified. .The examination of the platform of a station at stated periods, a comparatively insignificant service in the amount of labor to be bestowed, would enable the company to avoid actions like this, in which the result, however successful to the suitor, rarely compensates him for the pain, suffering and loss, which make up the total of his injuries.

This appeal presents the single question discussed because the others are all involved in it. The proposition which is now designed to be stated is this, namely: that a rail-road company, having a telegraph in one of its stations open to the public, is responsible to one of its passengers who is injured through their negligence alone, while going to it over their structure or platform, by which it is made accessible. And it follows that the passenger is not to be prevented from a recovery, save where he has by some act of his contributed to the injury received. In this case there was no negligence on the part of the plaintiff, but the benefit of such an element, if it existed, was given to the jury by the charge. The judgment should, therefore, be affirmed.

The law as expounded is in harmony with the principles of natural justice and equity, and should prevail. The damages were not excessive.

Judgment affirmed.

Daniels, J., concurred. Davis, P. J., concurred in the result.

Ordered accordingly.


author: Beady, J.:

text:
    THE MAYOR, etc., OF THE CITY OF NEW YORK, Respondents, v. THE NORTH SHORE STATEN ISLAND FERRY COMPANY, Appellants.

      Oloud upon title — presumption as to regularity of acts of public officers — justifies action to remote.

    This action was brought by the city of New York to have a certain lease declared void, as a cloud upon the title to certain lands owned by it. The lease, which was executed by the department of docks in pursuance of a statutory authority conferred upon it, was regular on its face, but it was claimed was invalid on account of the omission of certain statutory formalities. Held, that although no presumption as to the validity of the lease arose, by virtue of the statute, from its execution and delivery, yet as such presumption was created in favor thereof by the general presumption of law as to the regularity of all acts of public officers, that the action was properly brought and could be maintained.
    Appeal from an order made at the Special Term overruling a demurrer to the complaint, interposed by the defendant, on the ground that the complaint did not state facts sufficient to constitute a cause of action.

      Luther R. Mcwsh and Wm. F. Shepard, for the appellants.

      H. F. Rories and James Me Narnee, for the respondents.
   Beady, J.:

The plaintiffs claim title to certain land and land under water which are in the possession of the defendants, who hold such possession under and by virtue of a lease executed to them by the department of docks in the city of New York. The plaintiffs seek in this action .to have the lease removed as a cloud upon their title. The lease is one made by the department mentioned, under the authority conferred by a statute, which is referred to in the preamble to the lease.

The lease is not alleged by the plaintiffs to be void upon its face, but in consequence of the omission of certain statutory formalities which are of substance, and prerequisites to the exercise of such authority. The lease is not void upon its face, therefore, but valid, because it is the act of public officers vested with power to perform it, and because of the presumption of law in favor of the legality of such acts. When the defendants, for example, are assailed in their possession, they exhibit the lease, and the possession is maintained. It is not until proof is made of the omission to observe the formalities mentioned, that the lease fades away as an authority to keep the possession.

The apparent vitality of that instrument does not depend upon the statute, which is silent upon the subject of presumptions growing out of its execution and delivery, but upon the presumption of law in regard to the acts of public officers having the power to do the act complained of. When we have ascertained this to be the character and effect of the instrument, the objections to a right of action in its present form are swept away, because it is conceded by the defendant’s counsel, and he has cited many cases establishing the rule, that when the defect appears upon the face of the record, through which the opposite party can alone claim, there is not such a cloud upon the title as the court can be called upon to remove in tbe exercise of its equitable powers, but when extrinsic evidence, and particularly oral evidence, must be resorted to in order to establish tbe invalidity of tbe record or instrument, then there is a cloud upon tbe title which a court of equity will intervene to remove. (Heywood v. City of Buffalo, 14 N. Y., 534; Scott v. Onderdonk, id., 9; Ward v. Dewey, 16 id., 519; Marsh v. City of Brooklyn, 59 id., 280.)

In the first case stated, as the record is void upon its face, no possible injury or impediment can grow out of its presence, but when, as in the second case, the assailant must attack it by evidence aliunde, he cannot sell without imposing the burden of a litigation upon his vendee. Hence there is a marked and substantial difference between the two elements.

For these reasons, which are substantially a repetition of those assigned at Special Term, the order appealed from should be affirmed, with leave to the, defendants to answer on the payment of costs.

Davis, P. J., and Daotels, J., concurred.

Order affirmed, with leave to defendant to answer over on payment of costs.