text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. MARGARET SMITH, Appellant.

      Hvidence —Accomplice — one purchasing liquor in violation of the excise law is not an accomplice of the seller — Code of Criminal Procedure, sec. 399 — The question ■ whether the witness was an accomplice is to he decided hy the court.

    The defendant was convicted of a violation of the excise law, in selling beer in quantities of less than five^gallons without a license. All the evidence under which he was convicted was given by tbe person to whom the sale was made. The defendant objected that, under section 399 of the Code of Criminal Procedure, prohibiting a conviction “ upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime, ” she could.not be convicted upon the uncorroborated testimony of the witness.

      Held, that the objection was untenable.
    That, as the excise law made only the person selling, and not the purchaser, guilty of a criminal act, the purchaser was not an accomplice, within the meaning of the said section of the Code.

      It seems, that under the circumstances of this case the question whether or not the witness was an accomplice was properly decided by the court, instead of being submitted to the jury.
    Appeal from a judgment of tbe Court of General Sessions of tbe county of New York, by which the defendant was convicted of a misdemeanor.

      Howe <& Hummel, for the appellant.

      Jno. Vincent, assistant district-attorney, for the People.
   Daniels, J.:

The defendant was convicted of the offense of violating the excise laws by making a sale of beer in quantity less' than five gallons, without license, to the complaining witness. Tl^e' evidence was wholly given by him to establish the alleged violation of the statute, and it was insisted in the defendant’s behalf that she could not be convicted upon it without further proof, tending to connect her with the commissions of the offense. This objection was presented under section 399 of the Code of Criminal Procedure, which has in terms, prohibited a conviction “ upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” But this witness in no manner participated in x the act declared by, the statute to be an offense. That was made out by the sale itself without license, and the person making the sale is the only one declared by the law to be criminal. The purchaser has been subjected to no criminal accountability whatsoever, and by the mere purchase he could not be a participant in the performance of the act which the statute has declared to be an offense. That was performed wholly and exclusively by the defendant, foi she, unaided by the purchaser, acted alone in making the sale. An accomplice is a person involved either directly or indirectly in the commission of the crime. To render him such, he must in some manner, aid, or assist, or participate in the criminal act, and by that connection he becomes equally involved in guilt with the other party by reason of the criminal transaction. This witness incurred no such relation to the offense committed, and therefore was not an accomplice within the meaning of this section of the Code. A point similar to this arose in Com. v. Willard (22 Pic., 476), and Com. v. Downing (4 Gray, 29), and it was held by the court pronouncing those decisions that such a purchaser was not an accomplice. A similar principle was also observed and applied in Campbell v. Com. (84 Penn. R., 187); State v. McKean (36 Ia., 343); Trustees, etc., v. O’Mailey, (18 Ill., 407); Smith v. State (37 Ala. [N. S.], 472); People v. Farrell (30 Cal., 316).

It has been urged that the question whether this witness was an accomplice or not should have been submitted to the jury, but that point was not raised upon the trial. And if it has been, the case of Com. v. Glover (111 Mass., 395) differed so far, in its controlling circumstances, from the present case as to render it inapplicable to the one now before the court upon this point.

The judgment from which the appeal has been taken snould be affirmed.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Barrer, J.;

license: Public Domain

text:
    PHILLIP PHŒNIX and GEORGE HENRY WARREN, as Only Surviving Trustees Under the Last Will and Testament, and Codicil Thereto, of STEPHEN WHITNEY, Plaintiffs, Appellants and Respondents, v. PHILLIP PHŒNIX and Others, as Executors, etc., MARY CAROLINE WARREN and Others, Defendants, Appellants and Respondents.

      Trust to lease, manage and sell and, reinvest the proceeds of real estate— the commissions of the trustee are to be based upon the value of the real estate and not upon the value of an estate for the life during which the trust continues — Where a trust embraces only a portion of a residuary estate to be divided by the trustees, the trustees are entitled only to commissions on the poi'tion embraced in the ii'ust — A trust continued for the benefit of the widow on the death of her husband —is not a basis f 'or a second allowance of full commissions to the trustee.

    Appeals by the plaintiffs from certain portions of a judgment and by the defendants from the entire judgment, entered upon the report of a referee in an action brought for the passing and allowance of the plaintiffs’ accounts as trustees, etc. After holding that under the provisions of the testator’s will, the offices of executor and trustee were distinct, and that the executors and trustees were entitled to full commissions in each capacity, citing Valentine v. Valentine (2 Barb. Ch., 430); Drake v. Price (5 N. Y., 430); In the Matter of Carman (3 Bedf., 46); Hall v. Hall (78 N. Y., 535); Hurlbwrt v. Durant (88 N. Y., 121); The estate of James I. Roosevelt (Surrogate’s Ct., Daily Begister, June 1, 1882).
    The court at General Term said: “ The other question presented by the defendants, as appellants, arises on their appeal from that part of the referee’s finding, allowing commissions to the trustees oh the body of the real estate, held in trust; they insisting, that if commissions are allowed for the management of the real estate, they should be based upon the value of the life estate, and not upon the value of the fee thereof.
    “ The trusts created are express trusts, such as are retained and legalized by the statute relating to uses and trusts. (1 R. S., 728, see. 55.)

      “ By the eighteenth clause of the will, the trustees were empowered to lease the real estate for a term of years, to improve and repair the property, to sell, convey, and convert into money, portions of the real estate, and to reinvest the same in other real estate and- to invest the personal estate in real property, as the trustees in their judgment deemed for the best interests of the beneficiaries.
    “ To carry out these provisions of the will, it was essential and necessary, that the trustees should be vested with the title of the real estate, during the continnance of the trust.

      A trust is always constituted through the medium of a legal estate and a trustee. Such an estate is a present estate, and by the settled principles of law, is equal in quantity % and duration to the legal purposes of the trust.
    “ By the sixtieth section of the statute (1R. S., 729), relating to uses and trusts, it is provided, every express trust valid as such in its creation shall vest the whole estate in the trustees, in law and equity, subject only to the execution of the trust, and the persons for whose benefit the trust is created shall take no estate or interest in the land, but may enforce the pi-ovisions of the trust in equity.

      “ Upon the termination of the trust, the title to the real estate will vest in the remaindermen without a conveyance from the trustees by operation of the statute. But this does not change the proposition, that during the continuance of the trust the title is complete in the trustees..
    “ The testator made no provision in his will for compensating the trustees for taking upon themselves the onerous duties and obligations imposed upon them in carrying out the wishes and directions of the testator. From the omission to fix their compensation, or to declare that they should have none, the law implies that he intended that they should have such just and reasonable reward as should be given them by the courts having jurisdiction to supervise their actions and adjust their accounts, as between themselves and the cestui que trusts.

      “ In Meacham v. Sternes (9 Paige, 398) it was held that where the instrument creating the trust contains no provision as to the compensation which the trustees are to receive for their services in the execution of the trust, the Court of Chancery, upon an accounting by the trustees, will allow them the same compensation by way of commission as is allowed to executors and guardians for similar services.
    “ In that case the trust was created by a debtor in his property for the benefit of his creditors. The rule, as established in that case by the chancellor, has been applied uniformly to testamentary trustees, and their commissions are fixed and governed accordingly.
    H In a trust of this nature, where the entire control and management of the real estate is confided to the trustees, the decisions are uniform in holding that their commissions are to be cast upon the value of the real estate as a safe, prudent and uniform mode of ascertaining the valúe, of the services rendered by the trustees.

      “ In McWhorter v. Benson (Hopk. Pep., 42) the rule, and the reason of it, is stated as follows : c The amount of property confided to an executor, administrator or guardian, and passing through his hands, is a basis upon which his reward may be easily computed. The custody and care of the estate are his duty; and his services in general bear a just proportion to the amount of the estate Though the value of his services may not be in exact proportion to the value of the estate, yet in the general course of these affairs the amount of the estate indicates with sufficient exactness the extent of his labors, cares and services and their reasonable value.’

      “ Thus a plain rule of calculation is afforded by th,e amount of property held in trust, a rule comprehensive as well as simple, and which in all ordinary cases is a very just criterion of the reasonable value of the services of the trustee. ( Wagstaff v. lowerre, 23 Barb., 209; Breen, Admr., v. Sanders / 18 Hun, 308 ; Matter of Edmard Schell, 53 N. Y., 263 ; Matter of Augustus H. Ward, 4 Pedf., 47; Mann v. Lawrence, 3 Bradf., 425; Savage v. Sherman, 24 Hun, 311; Matter of Moffat, Id., 327.)

      “ The last case cited was recently decided in this court and involves the same question as the one now before us, and approves the rule laid down in IkcWhorter v. Benson {su-prci). * * *

      “ The plaintiffs contend that they were entitled to commissions upon so-much and such parts of the undivided one-fourth part of tbe residuary estate as were, by tbe terms of the codicil, distributed to the grandchildren upon the death of the testator.
    “ Henry, one of the sons of the testator, was, by the terms of the original will,.given one-sixth part of his residuary estate, as mentioned in the eleventh clause of the will, upon the same trust as mentioned in the eighth clause of the will, which is set forth in the statement of the case. At the time of the making of the codicil Henry was deceased and left him surviving his wife Maria. In the codicil the testator refers to that event, and to the provision made for his son Henry by the eleventh clause of the will, and provides as follows:
    “ ‘ The gift and devise in the eleventh clause to Henry, and which by reason of his déath would be subject to distribution at my decease under the fifteenth clause, shall be_of one-fourth of my estate, real and personal, as expressed in the said eleventh clause, subject, however, to an annuity of one thousand dollars per annum, to. be paid quarterly to the widow of my son Henry, Mrs. Maria Whitney, during her life; for which a part of the fourth part, or share of my estate, which Henry would have had appropriated to his use, shall be set apart and held in 'trust by the executors and trustees during her life.’
    “ Samuel and Stephen, two of his sons, were also dead at the time of the making of the codicil, and had been provided for in the original will under the tenth and twelfth .clauses, and he revokes the same and directs his estate to be divided into four parts instead of six. He does, in terms, create a trust in a part and portion of the one-fourth part of his residuary estates in favor of Maria Whitney, Henry’s widow, to raise an annuity in the sum of one thousand dollars, and the balance of the one-fourth of the estate is given directly to his grandchildren.
    “ Over the parts and portions of the real estate which was thus given directly to grandchildren, as mentioned in this and the fifteenth clause of the will, no trust was created and the trustees had no power and control over the same. * * *
    “We, therefore, concur in the conclusion reached by the learned referee, that the trustees were not entitled to commissions, upon that portion of the residuary estate, which upon the death of the testator, vested directly in his grandchildren, in pursuance of the provisions in -the fifteenth clause of the will, and the third of the codicil. And as commissions were allowed them upon so much, as ifras invested, for the benefit of Henry’s widow, being the sum of nineteen thousand dollars, they have received all the compensation to which they are entitled.
    “ Further' commissions were claimed by the plaintiffs for receiving under the testator’s will, and turning over, upon the partitions made under the provisions of the sixteenth clause thereof, all those parts of the testator’s real estate which, upon such partition, was set apart in severalty to the trustees under the respective trusts created by the eighth, ninth and thirteenth clauses of the will.
    “ This, was disallowed, and we are of the opinion that the referee was correct in the conclusions which he reached in this particular. * * *
    “ The trustees also made a claim for commissions, for the turning over, upon the determination of the trust under the thirteenth clause of the will, upon the death of the testator’s son William, to the trustees under the trust created by the twentieth clause, all the one-third part of that portion of the testator’s real estate which, in the partition of 1861, had been set apart in severalty to the four trustees uuder the trust created by the thirteenth clause of the will.
    “At the time of the partition, made in the year 1861, William was alive, and the real estate which was assigned to the trust for his benefit was conveyed to the trustees for that purpose. William died in June, 1862, leaving a widow. A portion of the real estate partitioned in 1861, and set apart in trust for William’s benefit, remained unsold at that time.
    • “By the twentieth clause of the will it was provided, that if either of the sons of the testator should ,die leaving a widow him surviving, then the trustees were directed to apply to her use, during her widowhood, the net rents, profits and income of the one-third part of the shares, to the income of which her'husband was entitled during his life, in the real estate which might remain unsold at the time of the death of her husband.
    “The trustees claim that by this provision of the will a new trust was created, separate and distinct from the one then existing, and that they were entitled to commissions upon the body of the real estate, the income of which was given to the widow.

      “ The referee beld that it was not a new trust in any proper senser but was a continuation of the trust created by the thirteenth clause of the will, over a portion of the real property which remained, unsold, for the benefit of the widow.
    “We are of the same opinion, and sustain the referee in his rulings in this particular.”

      William B. Boss and John K. Porter, for the plaintiffs, appellants.

      J. Frederick Kernochan, for Maria W. Livingston and others, as administrator of William Whitney.

      Edward 8. Dakin, guardian ad litem of Stephen Whitney and others, infant defendants and appellants.
   Opinion by

Barrer, J.;

Beady, P. J., and Daniels, J., concurred.

Judgment modified as directed in opinion, and affirmed as modified without costs.


author: Barker, J'.;

text:
    DANIEL SWEENEY, Appellant, v. JOANNA L. ST. JOHN AND OTHERS, RESPONDENTS.
    Basement— how created — if by a writing, it must be definite in its terms— The presumption of a grant, ?ohm it is nut in this state applicable to the mere enjoyment of light and, air — A license as distinguished from an easement.

    Appeal by the plaintiff from a judgment directed by the Special Term, denying the relief asked for by the plaintiff and granting to the defendants affirmative relief.
    The plaintiff brought this suit in equity to restrain the defendants from interfering with his erection of certain fire escapes, and the closing up of the windows in a party wall, between the property of the plaintiff and the defendant St. John.
    The defendant Joanna L. St. John interposed as a defense, that the windows were placed in the party wall by an agreement entered into between herself and Mrs. Yan Zandt, the former owner of the plaintiffs’ property, while the party wall was being constructed, and for that reason she should not be deprived of the right and privilege of maintaining the windows as located. Such agreement being averred in the answer, in substance as followsThat it was understood and agreed by and between Mrs. Yan Zandt and herself, as part of the consideration and agreement for the erection and' maintaining of the party wall, that Mrs.- Van Zandt should permit the construction of the windows on each floor of said building, so to be erected npon the said lot No. 68 Chatham street, on the northerly side of the said building and in the party wall so. to be constructed as aforesaid.
    The defendants demanded that the complaint be dismissed, and asked for a personal judgment against the plaintiff in the sum of $5,U00.
    After holding that there was an utter failure to identify her with the instrument; that there was no proof that any person ever negotiated with Mrs.-Van Zandt on the subj'ect of placing windows in the wall, or that the paper was in her handwriting' or had her genuine signature attached thereto.
    That in view of the doubt expressed by the witness Bradshaw, as to who delivered the same to him, and the evidence of Mr. Sweeney, that he had no recollection of the fact, it could not be properly held, that Mr. Sweeney was the person who received the same from the hands of Mrs. Van Zandt, and delivered it to her agent, Mr. Bradshaw.
    That it therefore should be held upon this appeal that the conclusion reached by the trial court, that Mrs. Van Zandt gave consent in writing that the windows might be placed in the party wall, was unsupported by the evidence and should be reversed, and that the finding being unsustained, the decree could not be upheld in any of its provisions upon the other findings of fact as set forth in the decision.
    The court at General Term said: “ But if it be conceded as true that Mrs. Van Zandt did sign and cause to be delivered, the paper relied on as a consent, thenT remain of the opinion that the decree cannot be upheld.
    ■ “The instrument is insufficient to create an easement of the nature and character relied upon.
    “ The right to have light and air come uninterruptedly over the-lands of another, is an easement which can only be created by deed, or grant, or prescription from which the grant may be presumed, (2 Wash, on Beal Prop., 275, 277.)
    “ This paper writing has none of the requisite of a grant. It was not under seal — was not acknowledged —• there was no witness to-its execution and delivery, and it does not express any consideration. The privilege and right granted is not described with certainty, and is so vague and indefinite that it cannot receive an intelligent interpretation, describing and defining the estate created in favor of the grantee in the lands of the grantor.
    “ The witness Bradshaw is unable' to give the language of the instrument. By collecting together his various expressions as to its contents and the nature of the thing granted, and giving to the same the most favorable meaning in favor of the defendants’ contention, it may be read as if in the following language: ‘ I consent to the placing of windows in the party wall between my lot and Mrs. St. John’s lot, to continue until the space in the rear should be required for building purposes.’
    “ The number of windows to be used, where the same were to be located in the wall, or the size of the same, are not mentioned.

      “ The right to perpetually maintain, as now located, the twenty windows placed in the wall, would, in effect, deprive the plaintiff of all use of three-eighths of the party wall and largely destroy the value of the adjoining lot and prevent any alterations or enlargement of the building now on the same, or the construction of a new one.
    “ When parties to an instrument so indefinite as this fail themselves to agree upon and define its meaning and to settle disputes arising thereunder, the courts cannot be appealed to to determine the interests and rights of the respective parties, and the same must be regarded as an imperfect and incomplete agreement upon which no relief can be granted.

      c' The right awarded the defendant St. John to have her building lighted by the use of the twenty windows placed in every section of the party wall is, in the terms of the judgment, an easement, and for its enjoyment requires that she have an interest in the plaintiff’s land.

      “ For the reason we have mentioned the consent, if it was in writing, grants no interest of that nature and magnitude, and is not valid and sufficient for that purpose.
    “ The windows were in and had been used for a period of more than twenty years when the action was commenced. From such a user for this period the law will not presume that the use and enjoyment had its foundation in a grant executed and delivered by the proper parties with the intent and for the purpose of securing an easement to the owner of the building enjoying the same.
    “In this State the doctrine of the presumption of a grant is not applicable to the enjoyment of light and air, which the owner of a building enjoys by receiving the same from and over the open and unoccupied lands of an adjoining owner.
    “ To authorize the presumption of a grant in any case the enjoyment of the easement must not only be uninterrupted for tfie period of twenty years, but it must be adverse, not by leave or favor, but under a claim of right, and it must be with a knowledge and acquiescence of the owner.
    “ The placing of a window in one’s own house located upon his own land and overlooking the land of his neighbor is no encroachment of his neighbor’s rights and, therefore, cannot be regarded as adverse to ■ him. It is a mere enjoyment of a right for which no * action lies.
    “ These are the short grounds of 'the decisions where the law is stated more fully. (Parker v. Foote, 19 Wend., 309; Rogers v. Sawin, 10 Gray, 379; 2 Wash, on Real Prop., 316, 318; Palm,er v. Weimore, 2 Sandf. Supr. Ct. Rep., 316; Myers v. Oemmell, 10 Barb., 337.)
    “ This rule of law should have a full and unrestricted application in all the cities and populous communities in the State, where lands are divided up into small parcels and lots for business purposes and residences, and light and air are usually received into buildings erected thereon from public streets or open spaces reserved by owners on their own property.
    “When light and air are received through windows directly from the adjoining lands in which the owner of the building has no interest, he is in no way occupying the lands and premises of another, consequently there is no disturbance or interference with such owner’s estate.
    “As we have before stated, the proof fails to establish that Mrs. Van Zandt gave a written consent, or that the windows were put in the wall in pursuance of any contract, either written or oral, which was established on the trial.
    “ It only remains to. inquire if any other fact was established which entitles the defendant to the judgment dismissing the plaintiffs complaint and granting the defendants the relief awarded.
    “ The strongest statement which can be made from all the evidence in favor of the defendants’ contention is that Mrs. Yan Zandt knew that the openings were placed in the wall at the time of its erection, and that she, and they who claim under her, have impliedly consented to the use of the wall for that purpose for the period of over twenty years. This, in effect, amounts to a parol license and nothing more.
    “ Such license or permit is not in the nature of an agreement, and is without consideration and was intended to be temporary, and was therefore revocable at the pleasure of the licensor and those who claim under her as subsequent owners.
    “ A license is an authority to enter upon the lands of another to do a particular act or. a series of acts without possessing any interest in the lands. It is founded in personal confidence, is not assignable, and it may be valid though not in writing.
    “ A license to enter upon lands does not purport to convey any interest in the same. It is substantially a promise without a consideration, a consent that the licensee may enter and "enjoy without compensation to be paid to the owner.
    “ It differs from an easement, which is an interest in land and which by the requirements of the statute of frauds must be in writing.” (Fentiman v. Smith, 1 East, 107; Heulins v. Shippam, 11 Eng. Common Law Hep., 137 ; Mumford v. Whitney, 15 Wend., 387; Dolittle v. Eddy, 7 Barb., 78;- Morse v. Copeland, 2 Gray, 302; Wisemam, v. Lucksi/nger-, 81 N. Y., 36.)

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

      A. J. Rittenhoefer, for the respondents.
   Opinion by

Barker, J'.;

Daniels, J., concurred;

Brady, P. J., concurred in the result.

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


author: Davis, P. J.;

text:
    HANNAH MEAD, as Administratrix, etc., of CATHARINE McGUIRE, Deceased, v. LUCRETIA C. SMITH, Personally and as Executrix, etc., of CHARLES H. SMITH, Deceased.

      No exception.to a finding of fact is required by the Code of Oivil Procedure, in order to justify its review at General Term.

    After an examination of various questions of fact, and holding that one of such findings was not sustained by the evidence:
    The court at General Term said: “ The findings were, therefore, not correct, and yet for aught that appears they may have been regarded by the court as justifying’the conclusions of law.
    “ The question presented, therefore, is whether we are at liberty, without any exceptions to the findings of fact or the conclusions of law, to look into the evidence and determine that material facts which would uphold that conclusion were unsupported by evidence. Section 992 of the Code of Civil Procedure provides, among other things, that ‘ except as prescribed in section 1180 of this act an exception cannot be taken to a ruling upon a question of fact.’ Section 1180 relates only to the trial of challenges to jurors, and it provides that on such trials exceptions may be taken to determinations upon questions of fact. The provision of section 992 is a general one and applies to trials by juries, by the court and by referees; and the note to this section shows that it was intended to abrogate the practice' of excepting to findings of questions of fact upon conflicting evidence. Section 993 declares that a finding without any evidence whatever tending to sustain it is a ruling upon a question of law within the meaning of section 992, and on such a finding an exception would seem to be necessary. (Secs. 992, 991, 995, 996.) The language of section 993 is'not applicable to a case where there is evidence tending to sustain the finding, and the court or referee reaches a conclusion upon conflicting evidence.

      “ The several provisions of the Code are by no means clear and satisfactory, but we think it safe to say that their effect is to provide that no exceptions to a finding upon a controverted question of fact is necessary to be taken in order to justify a review of the evidence by this court for the purpose of determining whether the finding was against its weight. We are at liberty, therefore, in this case to reverse the judgment, if we come to the conclusion that the referee erred in his finding of material facts, because his conclusions were against the weight of evidence in the case; and upon this ground we think the judgment must be reversed and a new trial granted, with costs to abide the event.”

      James M. lyddy, for the appellant.

      J. W. Smith, for the respondent.
   Opinion by

Davis, P. J.;

Brady, J., concurred.

Present — Davis, P. J., Brady and Ingalls, JJ.

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


text:
    Florence M. De Meli, Respondent, v. Henry A. De Meli, Appellant.

   Order modified as directed in opinion, without costs to either party. Opinion by Davis, P. J.


text:
    Michael Moloughney, Jr., Respondent, v. John C. Kavanagh, Appellant.

   Order reversed, with ten dollars costs and disbursements. Opinion by Davis, P. J. .


text:
    George W. Beach and others, Respondents, v. The New York Fabric Finishing Company, Appellant, Impleaded with others.
   Order modified as directed in opinion. Opinion by Brady, J.


text:
    Alfred A. Freeman, Appellant, v. Harriet A. Coit, Respondent

   Motion for reargument denied. Judgment modified as directed in opinion. Opinions by Daniels, J., and Davis, P. J.


text:
    John L. Sutherland, Executor, etc., Respondent, v. Lauren C. Woodruff, Appellant. Same v. Same.
   Judgment affirmed with costs. Opinion by Brady, J.


text:
    James Williams, Respondent, v. Edward Freel and others, Appellants.
   Judgment affirmed, with costs. . Opinion by Daniels, J.


text:
    The People of the State of New York ex rel. The New York Medical College and Hospital for Women, Respondent, v. Allan Campbell, as Comptroller of the City of New York, Appellant.

   Order affirmed, without costs. Opinion by Daniels, J.


text:
    Jane Crowley, Administratrix, etc., Appellant, v. George Palen and another, Respondents.

   Verdict set aside, new trial ordered, with costs to abide the event. Opinions by Daniels, J., and by Davis, P. J., dissenting.


text:
    In the Matter of Susan P. Lilienthal.
   Order reversed, rehearing directed, with ten dollars costs and disbursements to abide the event. Opinion by D aniels, J.


text:
    Henrietta Helmrich, Respondent, v. William T. A. Hart, Appellant.
   Judgment affirmed. Opinion by Davis, P. J.


text:
    In the Matter of Gershom A. Seixas.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    William R. Kirkland, Appellant and Respondent, v. Samuel K. Kille, Appellant and Respondent, Impleaded, etc.

   Judgment affirmed. Opinion by Daniels, J.


text:
    In the Matter of James A. Deering.
   Order modified as directed in opinion, and affirmed as modified, without costs to either party. Opinion by Daniels, J.


text:
    First National Bank of New York, Respondent, v. Continental National Bank of New York, Appellant.

   Judgment affirmed. Opinion by Daniels, J.


text:
    In the Matter of Ferdinand S. Hahn.
   Order affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


text:
    Charles R. Purdy and others, Respondents, v. Orlando L. Stewart, Appellant.

   Motion to modify order granted by providing that costs be set off against recovery (if any).


text:
    Jonathan Woodruff v. Charles G. Schneider.
   Motion denied.


text:
    The People of the State of New York ex rel. J. W. Sickels v. Court of General Sessions.
   Order affirmed. Mem. by Davis, P. J.


text:
    Ann Doyle, Executrix, Plaintiff, v. Peter Mulvihill, Defendant.

   Judgment ordered for defendant. Opinion by Daniels, J.


text:
    Harry L. Horton, Appellant, v. The Pacific National Bank of Boston, Respondent.

   Order affirmed, without costs. Opinion by Brady, J.


text:
    Charles Stanford, Respondent and Appellant, v. Williston B. Lockwood and others, Appellants and Respondents.

   Judgment reversed, new trial ordered, costs to abide event. Opinion by Brady, J.


text:
    Daniel E. Sickles, Respondent, v. The Manhattan Gas-Light Company, Appellant.

   Order affirmed. Opinion by Dwight, J.


text:
    George S. Scott and another, Respondents, v. Jane R. Stockwell, Administratrix, etc., and others, Appellants.

   Judgment affirmed,' with costs. Opinion by Davis, P. J. ;


text:
    Samuel B. Lyon, as Administrator, etc., Respondent, v. John Baxter, Appellant, Impleaded, etc.
   Order reversed, with ten dollars costs and disbursements. Opinion Per Curiam.


text:
    James Wilmore, Appellant, v. James A. Flack and others, as Executors, etc., Respondents.
   Judgment and order affirmed. Opinion by Dwigi-it, J.


text:
    John J. Townsend, Respondent, v. The New York Life Insurance and Trust Company, Appellant.

   Judgment modified as directed in opinion. Opinion by Davis, P. J.


text:
    Bernard S. Barac, Respondent, v. Edward Neuss and Samuel A. Hesslein, Appellants.

   Judgment affirmed. Opinion by Dwight, J.


text:
    Nicholas H. Babcock, Appellant, v. Joseph Emrich and another, Respondents.

   Judgment affirmed, with costs. Opinion by Davis, P. J.


text:
    Martha F. Sperry, Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.

   Judgment affirmed. Opinion by Dwight, J., and by Daniels, J., dissenting.


text:
    Ebenezer Gordon, Respondent, v. The Scovill Manufacturing Company, Appellant.

   Judgment reversed, new trial ordered, costs to abide event; Opinion by Daniels, J., and by Davis, P. ■ J., dissenting


text:
    The People of the State of New York ex rel. William F. Quinn, v. William R. Grace, Mayor of the City of New York.

   Writ discharged. Opinion by Dwight, J.


text:
    In the Matter of Peter A. H. Jackson.
   Decree affirmed with costs of appeal against the trustee personally. Opinion by Dwight, J. 1


text:
    John Meehan, Respondent, v. The Mayor, etc., of the City of New York, Appellants.

   Judgment reversed, new trial granted, costs to abide event. Opinion by Dwight, J.


text:
    Louis De V. Wilder, Appellant, v. La Fayette Ranney and another, as Executors, etc., Respondents.

   Judgment affirmed, with costs. Opinion by Daniels, J.


text:
    John B. Manning, Respondent, v. Bernard Reilly, Sheriff, etc., Appellant.

   Judgment reversed, new trial granted, costs to abide event. Opinion by Dwight, J.


text:
    The President, etc., of the Bank of Mobile, Respondent, v. The Phœnix Insurance Company, Appellant.

   Judgment reversed, new trial granted, costs to abide event. Opinion by Dwight, J.


text:
    Louise J. Van Buskirk, Appellant, v. The Mayor, etc., of the City of New York, Respondent.

   Judgment affirmed. Opinion by Davis, P. J., and Daniels, J.


text:
    Gustav Pantzar, Respondent, v. The Tilly Foster Iron Mining Company, Appellant

   Judgment and order affirmed. Opinion by Daniels, J.


text:
    The Society for the Reformation of Juvenile Delinquents in the City of New York, Respondents, v. George Nemback, Appellant, Impleaded, etc.

   Order affirmed, with costs. Opinion by Dwight, J.


text:
    James G. Johnson, Respondent, v. Bernard Reilly, Appellant.
   Judgment affirmed. Opinion by Daniels, J.


text:
    Emilio Sanchez Y. Dolz, Respondent, v. Atlantic and Gulf Stream Transportation Company, Appellant, Impleaded, etc.

   Order reversed. ' Opinion by Dwight, J.


text:
    Cyrus B. Lawrence, Respondent, v. Henry Tucker, Appellant.

   Order affirmed, with ten dollars costs and disbursements. Opinion by Brady, J.


text:
    The Belgian Glass Company, Respondent and Appellant, v. Theodore Pabst and Henry Esch, Appellants and Respondents.

   Judgment affirmed, without costs. Opinion Per Curiam.


text:
    The Bowker Fertilizer Company, Respondent, v. Lawrence N. Cox, Appellant.

   Order affirmed, with ten dollars costs and disbursements. Opinion by Davis, P. J.


text:
    John B. Johnson, Respondent, v. Catharine Williams, Executrix, etc., and another, Appellants.

   Judgment affirmed. Opinion by ' Daniels, J.


text:
    In the Matter of William Leonard.
   Order reversed, with ten dollars costs and disbursements, without prejudice to a rehearing before the Special Term. Opinion by Davis, P. J.


text:
    In the Matter of William Halsey, Deceased. In the Matter of Maria Halsey, an alleged Incompetent.

   Orders affirmed, with ten dollars costs and disbursements. Opinion by Daniels, J.


author: Smith, P. J.:

text:
    In the Matter of the Application of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY, Appellant, to Acquire Lands of SAMUEL E. HASKIN, Respondent.

      Eminent domain — measure of damages foi' land taken by a railroad company— the report of the commissioneo's cannot be affected, by a certificate, stating the rule adopted, in estimating the damages, subsequently made by one of them.

    A railroad company took proceedings to acquire title to a portion of four different parcels of land owned by one Haskin, one of which, containing about 223 acres, was called the Home Farm. It was used for raising blooded horses and fitting them for the market. The line of the proposed road crossed a half-mile track which had. been constructed upon it by Haskin to be used in his business. Testimony was received against the company’s objection and exception as to what,
    . in the opinion of the witnesses, would be the damage to the farm, as a stock farm, to hav'e the track destroyed, and as to “the value of the track to the Home Farm, as a stock-raising :farm, taking into consideration the stock upon it and its present use.”

      Held, that the evidence was improperly admitted.
    That the measure of the owner’s damages was the cost of constructing another training track upon his farm and not the damages (to which such testimony woiild appear to relate) which he would sustain if the stock, which he was then raising and training, were lost and this branch of his business destroyed.
    The validity of the report of commissioners appointed to appraise the damages resulting from the taking of land for railroad purposes cannot, after it has been signed and filed, be affected by a certificate signed by one of them setting forth the rule adopted by them in estimating the damages.

      Appeal from an order made at a Special Term, confirming the report of commissioners appointed to appraise the value of land to be taken by a railroad company.

      D. Fumsey, for railway company, appellant.

      W. F. Cogswell, for Iiaskin, respondent.
   Smith, P. J.:

This is an appeal by the railway company from the appraisal and report of commissioners appointed to appraise the compensation to be made for the real estate condemned for railroad purposes in this proceeding, and from the order of the Special Term ■ confirming said report and appraisal. The respondent is the owner of three separate farms in Avoca, Steuben county, and an outlying piece of twenty-four acres on the opposite side of the highway from one of said farms, upon all of which the railway company seeks to obtain a right of way. One of the farms contains 126 acres, another 223 acres and the third 221 acres. The quantity of land which the company takes from all the tracts is fifteen and sixty-five hundredths acres, and the compensation awarded by the commissioners is the sum of $14,500, in gross, there being no specification of the amount awarded for either piece separately. The farm of 223 acres, called the “ Home Farm,” was used by the respondent for raising blooded horses and fitting them for market, and he had constructed upon it a half-mile track to be used in his business. The route of the railroad crosses that track. The respondent was permitted to ask a witness what in his opinion would be the damage to the farm, as a stock farm, to have the track destroyed. The answer was, “ at least five thousand dollars damages.” Another witness testified in answer to a similar question that the damage would be from $5,000 to $10,000. A third witness testified to the number of crosses of imported blood that one of the respondent’s stallions had; and the respondent himself was permitted, as a witness in his owq behalf, to say that in his opinion “ the value of the track to the Home Farm, as a stock raising farm, taking into consideration the stock upon it and its present use,” was $10,000. All the testimony above stated was duly objected to, and the principal question in the case is whether the admission of the same or any part thereof was error for which the report and appraisal should be set aside.

The reported cases are agreed, substantially, that under the provisions of the general railroad act requiring commissioners of appraisal “ to ascertain and determine the compensation which ought justly to be made by the company to the person or persons interested in the real estate appraised by them,” the true measure of compensation is the difference between the market value of the entire single lot, farm or tract without the railroad, and the market value of the remainder thereof with the railroad. But in the application of the rule some differences have arisen. Thus it was held in some of the earlier cases that the commissioners are to consider how the taking of the land, not how the use of it in any particular mode, will affect the residue of the owner’s land. Upon that view of the matter evidence ofEered by the landowner to show that the land not taken would be greatly depreciated in market value by reason of the part taken being used for railroad purposes, also that the buildings on the residue would be expo§ed to be set on fire by sparks from the engines, or would be less desirable as a place of residence or business by reason of their proximity to the railroad, was held to be conjectural and inadmissible. (The Albany Northern R. R. Co. v. Lansing, 16 Barb., 68.) The same judge by whom the case just cited was decided at Special Term expressed similar views in The Troy and Boston Railroad Company v. The President, etc., of the Northern Turnpike Company (Id., 100), and The Canandaigua and Niagara Falls Railroad Company v. Payne (Id., 273). Those cases were followed in The Union Village and Johnsomoille Railroad Company v. Akin (53 Barb., 457), decided by the General Term in the third district. But in the case of The Utica, etc., Railroad Company (56 Barb., 456), it was held by the General Term in the fifth district that the compensation to be paid to the landowner is not limited to the actual value of the land taken, and to the depreciation of the residue of the lot from which it is taken, but he is entitled to recover also for any depreciation caused by the use to which it is appropriated. And it was decided accordingly in that case that the increase of risk by fire from locomotives, if any, is properly included in the estimate of damages for land taken for a railroad. The reasoning and decision in that case were approved and followed by the General Term in the third department, In the Matter of the New York Central and Hudson River Railroad Company (15 Hun, 63). We think the cases last cited give the better application of the rule.

We are of the opinion, therefore, that the respondent was entitled to introduce any evidence that tended legitimately to show in what respect and to what extent, if any, the part of his land not taken would be injured by the use of the land taken for the purposes of a railroad ; and we think, also, that in so doing he was not limited to the value of his land for ordinary farming purposes, but he might give evidence of its value for any other purpose to which it was adapted, including that of raising and training blooded horses and cattle, so far as it had been specially fitted for and appropriated to that use. His damages in those respects, caused by the construction and operation of a i-ailroad through his land, were the direct consequence of the taking of his property for public use. (Trustees of College Point v. Dennett, 5 T. & C., 217; Matter of the N. Y. Cen. and Hud. R. R. R. Co., 6 Hun, 149.)

But, under the rules above approved, much of the testimony offered by the respondent and received by the commissioners, to which attention has already been called, was inadmissible. The respondent seems to have been allowed to build up a case for damages upon the theory that the spoiling of his training track involved the loss not only of the stock which he then had on his farm in the process of raising and training, but also the destruction of that branch of his business. Upon no other idea could it have been held competent for him to show what damage the destruction of the training track would be to the farm “as -a stock farm,”. “ taking into consideration the stock upon it and its present use,” or to sliow what blood flowed in his stallions’ veins. The answers given by the witnesses to the questions referred to show that they had the same idea as to the nature and extent of the damages as was adopted by the commissioners. The true measure of damages in that regard, was what it would cost to make another training track upon the respondent’s farm. There is undisputed evidence in the case tending to show that a new track, substantially as good as the old one, could have been made on the farm for a few hundred dollars.

The respondent’s counsel insists that the error above pointed out was harmless, inasmuch as one of the commissioners has certified - that in estimating the damages caused by the destruction of the track, the commissioners adopted the basis above suggested as. the true one. As the Certificate was made after the commissioners had signed and delivered their report, and exhausted their powers, it was a nullity, and could not be regarded as a part of the appeal papers,, except for the fact that it was filed by the appellant, and therefore he cannot be heard to say that it is not properly brought up. But treating it as a part of the record, of what weight is it ? It will hardly be claimed that a similar error’ committed by a referee on the trial of a cause could be cured by a like certificate, signed by him after delivering his report, or that a certificate of jurors, to the effect that certain improper evidence received on the trial did not-affect their verdict, could be considered on appeal. It was held, in The People ex rel. Hodgkinson v. Stevens (5 Hill, 616), that the legal effect of a return made by inspectors of election cannot be varied by a supplementary statement, signed by a part of them and delivered after the time for returning has expired. The presumption is, that all evidence, whether proper or improper, received and retained by a trial court until its decision is pronounced, had its natural effect upon the decision, and that presumption cannot be overcome by any subsequent assertion of the' person or persons composing the tribunal by which the decision was made. But even if the certificate is treated as evidence that the single commissioner who signed it disregarded the improper testimony in question, how is it possible for him- to know what effect the testimony had upon the minds of his colleagues who concurred with him as to the amount of compensation ?

One of the commissioners, it is to be observed, dissented as to the amount. There was a wide difference upon that point between the witnesses called by the respective parties. The average estimate made by the witnesses called by the company was a little over $7,000, and that of the witnesses produced by the landowner was nearly $22,000. This difference of opinion on the part of the witnesses and of the commissioners can hardly be accounted for, except upon the idea that the witnesses for the contestant adopted the erroneous theory as to damages above pointed out, and the dissenting commissioner not being prepared to assent to it, was for that reason unable to agree with his colleagues.

The counsel for the respondent cites the case of Matter of the Boston Road, (15 W. Dig., 223), since reported in 27 Hun, 409. It was held in that case that the judgment of commissioners as to the amount of damages sustained by a landowner by reason of the widening of a public street could not be reviewed. The proceeding in that case was had under a special statute which made it the duty of the commissioners appointed under it to view the premises affected by the improvement, and to acquire information which there were no means of bringing before the court. (See Matter of William and Anthony Streets (19 Wend., 678; opinion of Bronson, J., 695, 696.)

That case is plainly distinguishable from the present one. The act of 1850 provides for the examination of witnesses and gives a right of appeal. And it is well settled that the testimony is a part of the report, and that if the commissioners have adopted an erroneous principle in estimating damages their appraisal will be set aside.

The conclusion is inevitable that a wrong principle has been-followed in estimating damages to the “Home Farm,” and as the appraisal is in gross, the error cannot be corrected, except by setting aside the entire report and ordering a new appraisal.

The report and order should be set aside and the case sent to new commissioners, to be appointed by the Special Term, with directions to report the damages to each farm and the twenty-four acre piece separately ; ten dollars costs of this appeal and disbursements to be paid by the respondent.

Present — Smith, P. J., and Hardin, J.

So ordered.


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    In the Matter of the Petition of HEZEKIAH ALLEN for Leave to Resign his Office as Trustee of Certain Trusts Created by the Will of JAMES S. WADSWORTH, Deceased.

      Trustee — not entitled to commissions on principal, upon his wlunta/ry resignation — right of, to commissions upon income — when he is not deprived of them by the fact that the income was received by the beneficiary directly — interest upon the amount of commissions not drawn-— costs upon his application for leave to resign.

    One of three trustees applied to he allowed to resign on account of the impaired state of his health. It appeared that the petitioner’s state of health was not such as to absolutely disqualify him from discharging the duties of his trust. On the contrary, it appeared that he attended to a large amount of other business, some of a trust nature, and it was to be inferred from his testimony that he desired to be relieved from this trust in order that he might be better able to attend to the others.

      Held, that he should not be allowed commissions upon the principal of the estate which had been received and held by him.
    Upon the petitioner’s appointment it was agreed between him and his two co-trustees, who were beneficially interested in the trust, that the trust estate should be held and managed by the trustees, for the purposes of the income, rents, issues and profits thereof, so that each of the two trustees who were beneficiaries should have the rents, etc., of a certain specified portion of the estate. It was also agreed that the interest upon the incumbrances on the trust property, and all taxes,' etc., should be paid from the income so to be received. The property was subsequently so divided, and the income was so received by the trustees beneficially interested.

      Held, that this agreement dfd not deprive the petitioner of his right to receive commissions upon the income of the trust estate.
    That he was entitled to receive his commissions upon the gross amount of each year’s receipts of inceme to be computed for each year separately at the statutory rates.
    That he was not entitled to interest on his yearly commissions, as he did not demand them until he applied for leave to resign.
    That it was proper for the court to direct that neither party should have costs of the proceedings, and that the petitioner should pay the fees of the referee.
    Appeal from an order of the Monroe Special Term allowing the trustee named in the above entitled matter to resign and fixing the compensation to be paid to him.
    The appeal is brought by his co-trustees, who are beneficiaries in the trust.

      J. B. Adams, for Charles F. and James W. Wadsworth, appellants.

      A. J. Abbott, for Hezeldah Allen, respondent.
   Smith, P. J.:

The petitioner asks leave to resign his trust on account of the impaired state of his health, and as it is undisputed that the reason assigned exists and that no harm will come to the estate by his being relieved from the trust, that part of the order which permits him to resign should be affirmed. The only question is as to terms. The order gives him one-half of one commission upon the value of the corpus of the estate, and directs that neither party have costs of the proceedings, and that the petitioner pay the fees of the referee.

Should the petitioner be allowed commissions, and if any, what? The will of General Wadsworth, among other provisions, devised certain lands to his three sons, Charles, Craig and James, in trust, to receive and pay over the rents and profits of one-third thereof to each of said sons annually, during his life; on his death, such third to go to his lawful issue, or, in default of issue, to the surviving sons of the testator. The will authorized the sons to sell the trust estate or any part of it, provided all three should unite in the sale and conveyance. It also provided that whenever there should be less than three trustees competent to act, it should be the duty of the survivor or survivors to apply to a proper court for the appointment of other trustees, and that no binding act should be done until such appointment. The three sons entered upon the trust. Craig was judicially declared to be of unsound mind, and the petitioner, Allen, was appointed in his place. Soon after, Craig died, and the one-third of the trust estate, which his children took in fee, was set off to them in partition. By a written agreement between Allen and his co-trustees, it was provided that the remainder of the trust estate should be held and managed by the trustees for the purpose of the income, rents, issues and profits thereof, so that each of the surviving sons should have the rents, etc., of a certain specified portion of such remainder. The same agreement provided that the portion of such remainder, to the rents of which Charles was entitled by such arrangement, should be sold from time to time, as soon as fair prices could be obtained therefor, and the proceeds applied in extinguishing any incumbrances on the trust property; also that Charles should pay from the rents thereof all interest upon incumbrances, and all taxes and insurance upon that portion of such remainder, to the rents, etc., of which he was entitled. No part of such remainder was sold by the trustees. Charles and James have had possession of the several portions of said trust estate to the rents of which they were entitled respectively by the agreement above mentioned, and have received the rents thereof, the gross amount received by Charles being $10,QCO a year, and that received by James being $6,500 a year. The corpus of' the trust estate remains substantially unchanged, and will be transmitted to the person appointed to succeed the petitioner as one of the three trustees.

We are unable to concur in the opinion of the learned judge at Special Term, that the petitioner is entitled under the circumstances to commissions upon the capital of the estate. It is true he received the capital jointly with his co-trustees, but, as was said at Special Term, the one-half commissions given by the statute for receiving is to be allowed only on the accounting when the trust fund is to be finally paid over and the trust discharged. If, for any reason, the trustee does not perform the duty, his right to the commissions is not complete.” The testimony of the petitioner himself shows that his state of health is not such as to absolutely disqualify him from performing the duties of the trust; on the contrary, he has a large amount of other business, some of a trust nature which he attends to. And as was said at Special Term, it is to be inferred from his testimony that he desires to be relieved from this trust in order that he may be better able to attend to the others; so that in making this application he consults largely his own convenience and not the interests of the trust. If he is allowed commissions on the corpus of the estate, a precedent will be set which will authorize his successor to make the like claim, under like circumstances, and the process may be repeated without limit, so that the estate may be depleted by taking from it a full commission on the capital (which exceeds one hundred thousand dollars in value), whenever one of the trustees is permitted to resign for his convenience. We think the rule adopted by Vice-Chancellor Sandford, In the Matter of Jones (4 Sandf. Ch. R., 615), should control this case so far as the claim to commissions on the capital of the estate is concerned, and we therefore deny them.

With regard to the income, the case is different. That has been received, and also, as is to be presumed, appropriated' from year to year, in accordance with the purposes of the trust. In respect to that, the duty of the trustees has been fully performed and the estate will not be subjected to double commissions, if the claim of the petitioner is allowed. It is urged that he is not entitled to commissions on the income because none of it has passed through his hands, and that view of the matter was taken at Special Term. But the very agreement by which the beneficiaries were permitted to take the rents, provided that the property should be held and managed by all the trustees for the purposes of income, and that a portion of the rents and income received by Charles, one of the beneficiaries, should be applied in a particular manner to the benefit of the estate. The arrangement by which each of the two beneficiaries was to have possession of a part of the trust estate and receive its income, was quite as much for their convenience as for that of the petitioner. It in no degree relieved him from responsibility to the remaindermen for the proper management of the estate, and the proper application of its income. For this responsibility, and for such care and oversight as it required of him, he is entitled to compensation.

The suggestion that one of his co-tnistees engaged to save Allen harmless frorh any ultimate loss to the estate, has not been overlooked, There was some conversation to that effect when Aben accepted the trust, but evidently it was not much relied on, as it was not reduced to writing. If the parties had intended a binding agreement of that nature, which, necessarily, must have run during the continuation of the trust, and might have outlived each of the parties, it is not to be supposed that they would have left it to the “ word of mouth.” Besides, the offer of compensation made to the petitioner by his co-trustees, during the pendency of the hearing before the referee, shows that they supposed him entitled to receive pay.

If these views are correct, the petitioner is entitled to one-third of one commission on the gross amount of each year’s receipts of income, to be computed for each year separately at the statutory rates.

The disposition we have made of both branches of the claim for commissions is supported by the case of Cairns v. Chaubert (9 Paige, 160). There an executrix was allowed commissions on securities transferred by her to legatees with their consent, for their use, the same as if she had actually received and paid over the money; but commissions were denied on the amount of certain bridge property not actually sold, in the income of which she had an interest for life. And the reason assigned by the chancellor for refusing the latter item was that if the executrix died, leaving that property unsold it would be necessary that a new personal representative of the testator should be appointed to perform that part of the trust.

As to the amount of'commissions allowed, the proof is that the rents have amounted to $16,500, annually, one commission on which is $355 dollars, to one-third of which the petitioner is entitled. The respondent’s counsel assumed in his printed brief that the period for which rents have been received upon which commissions should be computed is nine years. Taking that as a basis the total amount of commissions to which the petitioner is entitled is $1,064. 97.

The petitioner is not entitled to interest on his yearly commissions as he did not demand them until he asked leave to resign.

As each party succeeds in part and fails in part, we think neither is entitled to the costs of this appeal as against the other, and that so much of the order of the Special Term as relates to costs and referee’s fees should be affirmed.

The.result is that the order of the Special Term should be modified by striking out the provision for commissions therein contained, and inserting in lieu thereof a provision for commissions as herein above indicated, to be paid out of the income of the estate and as so modified, affirmed.

Hardin, J., concurred.

Present — Smith, P. J., and Hardin, J.

Order of Special Term modified, as indicated in the opinion, without costs of this appeal to either party. •


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    In the Matter of the Application of JOSHUA WADLEY and JOSHUA L. WADLEY, Respondents, for Leave to Issue Execution against JOSEPH DAVIS, Deceased, for the Sale of Real Estate Owned by JOSEPH H. DAVIS, LUCY ELLEN DAVIS and HARRIET A. DAVIS, Appellant.

      Special T&rm — adjournment of, to clumbers of the justice — contested motions cannot be brought on at the term held at chambers except by consent— Code of Oivil Procedure, seas. 37, 2.39.
    Contested motions requiring notice cannot be beard at a Special Term adjourned by tbe justice bolding it to bis chambers, unless by tbe consent of all the parties.
    Tbe fact that tbe order adjourning tbe court to tbe chambers of tbe justice stated that it was “ for ex parte business only,” does not prevent tbe justice from hear- ' ing, if be sees fit, contested motions brought on by consent.
    Appeal from an order of the Oswego Special Term, granting leave to issue an execution.

      William Tiffany, for the appellants.

      Oyrus Whitney, for the respondents.
   Smith, P. J.:

This is a proceeding under section 1381 of the Oode of Oivil Procedure. It was commenced by the service of an affidavit, notice of motion and order to show cause, on the appellants personally, on 25th November, 1881, returnable at an adjourned Special Term of this court, at the chambers of one of the justices of the court, at which time and place the order appealed from was made. The only question is, whether the order, being one which could only be made on notice, was properly made at a Special Term held at the judge’s chambers and not at the court-house.

The contention of the appellants’ counsel is that although under the Code a Special Term of' this court may be adjourned to the chambers of any judge oí the court residing within the district (sec. 239), yet that no contested matter, requiring notice, whether a trial or a litigated motion, can be brought on at such adjourned term except by consent of all parties.

Section 239 which gives the authority so to adjourn, expressly provides that “ an action triable by the court, without a jury, which was upon the calendar of the term before it was adjourned, may be tried at a term so adjourned and held at chambers, by consent of both parties, but not otherwise.” Section 37 df the Code provides that “the parties to an action or special proceeding, pending in a court of record, may, with the consent of the judge who is to try or hear it without a jury, stipulate in writing that it shall be tried, or heard and determined, elsewhere than at the court-house.” This implies that the several matters to which the section relates cannot be brought on elsewhere than at the court-house except by consent. The section is sufficiently comprehensive to embrace the present case which is a special proceeding (Marine Bank of Chicago v. Van Brunt, 49 N. Y., 160), and the order under review was made upon the only and final hearing thereof, and is the determination of the same. The reviser’s note to section 37 indicates that it was intended as a modified substitute for section 41 of chapter 470, Laws 1847, which' contained a like provision in respect to “ all cases or proceedings in law or equity in the Supreme Court or County Courts.” The only modifications intended, as also appears from the reviser’s note, were to extend section 41 so as to include all courts of record and confine it to trials without a jury. Section 41 evidently included contested motions and in that respect it was not intended to be restricted by section 37 of the Code. Ex parte motions may, of course, be heard at terms -adjourned to the judge’s chambers, and contested -motions also, by consent, but not otherwise. This construction is reasonable. The statute requires the appointed times and places of holding the terms of court to be published, for the information and convenience of attorneys and suitors, and they are supposed to arrange their business with reference to them. Under section 239, every special term may be adjourned to any future day and to the chambers of any judge within the district, however remote from the county for which the term was originally appointed. If -attendance at such adjourned terms could be compelled by notice, much inconvenience, expense and embarrassment to the profession and their clients would be the result, and the object of the statute requiring appointments of terms to be published would be, in a great measure, thwarted. The respondents are not helped by the order to show cause. That was but a mode of giving notice of the motion and besides no excuse was shown for not giving the usual eight days’ notice.

The point was taken by the appellants’ counsel that the motion was improperly entertained, for the reason that the order adjourning the court to the judge’s chambers, as entered, specified that it was “for ex fiarte business only.” That provision was for the judge’s convenience only. If he saw fit to hear litigated motions brought on by consent he could do so; but as the statute stands in the way of the present order it mu-t be reversed.

As the question is new, no costs are given.

■ Order reversed, without costs to either party.

Hardin, J., and Barker, J., concurred.

So ordered.


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    SAMUEL FELT, Appellant, v. GEORGE H. DORR, as Assignee, etc., Respondent, and Others.

      Supplementary proceedings — requirements of an execution issued upon a judgment recovered against an assignee for the benefit of creditors— Code of Civil Procedure, sec. 1871 — the assignee may be examined although proceedings for the settlement of 7m accounts are pending.

    During the pendency of an action brought by the plaintiff against Felt & Bell, as partners, upon a note given by them, they made a general assignment for the benefit of creditors to one Dorr. Thereafter Dorr was, upon his own application, made a party defendant and allowed to answer. The plaintiff recovered a judgment against Felt & Bell, and Dorr, as assignee, for damages and costs. Subsequently, upon an affidavit showing, among other things, that an execution issued “against the property of the said George H. Dorr, as ■ assignee,” had been returned unsatisfied, an order requiring him to appear and be examined in supplementary proceedings was granted.

      Held, that the order should be vacated on the ground that it did not sufficiently . appear that the execution had directed the sheriff to satisfy the judgment out of the trust property held by the assignee, as required by section 1371 of the Code of Civil Procedure.
    That the fact that proceedings for the settlement of the assignee’s account were ponding before the county judge of a county other than that in which the order was made, would not have prevented the granting of the order had the issue and return of a proper execution been shown.

      Appeal from an order made by the County Judge of Jefferson county, setting aside supplementary proceedings against the respondent.

      O’Brien & Emerson, for the appellant.

      Waylcmd F. Ford, for the respondent.
   Smith, P. J.:

The plaintiff sued John Felt and Thomas H. Bell, partners, on a promissory note made by their firm. After suit, Felt & Bell assigned all their property to the defendant Dorr, in trust, for the benefit of their creditors. Thereupon Dorr applied to come in and defend such suit as assignee, and he was accordingly brought in as a party defendant and he answered the complaint. Judgment was recovered in the action, against Felt & Bell, and Dorr, as assignee, for $633.71 damages, and ninety-one dollars and twenty-one cents costs. Execution was issued for the costs included in said judgment against Dorr, as. assignee, and returned unsatisfied. Upon an affidavit setting forth the facts of said judgment, execution and return, an order was made by the county judge of Jefferson county for th'e examination of Dorr, as such assignee, supplementary to execution. Dorr thereupon applied to the said judge' to vacate such order, which was done, and the plaintiff appeals.

Dorr having intervened in tiie suit, as assignee, upon his own motion, it is to be presumed that he did so for some purpose which he regarded as beneficial to the trust estate in his hands; and he having interposed a defense, in which he was unsuccessful, and having been charged with costs in the judgment, he was liable to be proceeded against by proceedings supplementary to execution, for the collection of such costs, upon an affidavit showing the proper facts, the same as any other judgment debtor. He was the trustee of an express trust (Cunningham v. McGregor, 12 How. Pr., 305 ; Conger v. H. R. R. R. Co., 7 Abb. Pr., 255), and the Code provides that in actions brought against trustees of an express trust, costs must be awarded as in actions against such persons defending in their own right, but they are exclusively chargeable upon and collectible out of the estate or fund he represents, unless the court directs them to be paid personally for mismanagement. (Code Civil Pro., § 3216.)

As Dorr was not charged personally with the costs, and they were payable only out of the fund in his hands, it was essential to the validity of supplementary proceedings against him, under the first subdivision of section 2432 of the Code, to show by competent proof the return unsatisfied of an execution requiring the sheriff to satisfy the judgment out of the trust property in his hands. Section 1371 of the Code provides that “ an execution against real or personal property in the hands of an executor, administrator, heir, devisee, legatee, tenant of real property or trustee, must substantially require the sheriff to satisfy the judgment out of that property.” The affidavit on which the judge acted in granting an order requiring Dorr to appear and be examined was defective in that particular. In respect to the contents or requirements of the execution issued and returned, the only averment was that it was an execution “ against the property of the said George Ii. Dorr, as assignee.” The execution was not set out in full, nor was a copy of it annexed to the affidavit, so that the only information which the judge had as to its contents was that which was given by the averment referred to. That was not enough. Simply describing the defendant as assignee was not a compliance with the statute. As was said by Harris, J., in Olmsted v. Vredenburgh (10 How. Pr., 215), which was a case under a similar provision of the old Code (§ 289), “ it is not enough in such a case that the execution describes the defendants in their representative capacity. This would not prevent the sheriff from levying * * * upon the individual property of the defendants.” The statute “is imperative that the execution shall require the officer to satisfy the judgment out of the property which, according to the judgment, is liable for its payment.” There was no evidence before the judge that the execution contained that requirement. For this defect in the proof the order was properly vacated.

It is insisted by the respondent’s counsel that as the county judge of St. Lawrence county has sole jurisdiction of the trust proceeding, that Being the county in which the principal place of business of the copartner^ was situated at the time of the assignment, the proceedings pending before him for a settlement of the accounts of the assignee, were a bar to the proceedings before the county judge of Jefferson, otherwise the plaintiff herein would obtain a preference over other creditors. The position is unsound. The latter proceedings related merely to the costs which the assignee had incurred in the business of his trust, and for which the trust property was liable in full. The fund to be distributed among creditors, in the proceedings before the county judge of St. Lawrence, is what shall remain after payment of costs and all other expenses incurred in the administration of the trust. (See People v. Cohocton Stone Road, 25 Hun, 13, 18.)

But for the defect in the proof above pointed out we affirm the order, with ten dollars costs and disbursements.

Hardin and Macomber, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    RALPH W. CARROLL and Others, Appellants, v. JOHN LUFKINS and Others, Respondents. JAMES E. GALLAGHER and Others, Appellants, v. JOHN LUFKINS and Others, Respondents.

      One should not act as a referee in a case in which the attorney who appears for one of the parties is at the same time acting as referee in another case in which the first named referee is an attorney for one of the parties — waiver of objection — what constitutes. - ' ,

    Where it is shown that each of two attorneys (appearing, respectively, for different parties interested in two different actions, in each of which a reference has been ordered) has the cause of the client of the other in his hands to .decide as a referee, a due regard for judicial propriety and for the pure administration of justice requires that upon the application of the opposing party in either action, made in due season and under circumstances-showing that he has not-waived his right to object, the court should vacate the reference and set aside the report, if one has been made.
    The question whether or not the referee has been influenced, or is likely to be influenced, by the relation adverted to is immaterial.
    A party cannot however, after having permitted the reference to proceed and taken the chance of success, with full knowledge of the existence of the relation, move to set aside an adverse report upon that ground.
    Appeal from an order of tbe Cattaraugus Special Term, denying a motion on the part of-the plaintiffs in each of the above
    entitled actions to set aside the referee’s report in said actions.

      George 11. Phelps, for the appellants.

      Mr. Pumsey, for the respondents.
   Smith, P. J.:

The two actions were tried by the same referee, Mr. E. D. Loveridge, of Cuba. The attorneys of record, of the only two defendants who appeared in either of the actions, were Messrs. Cary, Jewell and Rumsey, of Olean. Each case was decided in favor of the defendants. The grounds of the motion are, first, that while the cases were pending before the referee, Mr. Cary, one of the defendants ’ attorneys, was acting as referee in two other cases in which Mr. Loveridge was attorney, and secondly, that the referee in the cases before us decided corruptly.

In regard to the latter charge, there is not a particle of evidence to sustain it. The allegations in the moving affidavits, relied upon to support the charge of corrupt and collusive conduct, so far as they consist of averments of fact, are overwhelmingly contradicted by the opposing affidavits, and so far as they consist of inferences and suspicions, as they do for the _ most part,, the circumstances on which they rest, are satisfactorily explained or denied.

The only question, therefore, is whether the fact of the existence of mutual, cotemporaneous references, as above stated, requires that the reports should be set aside. I am not aware that the precise question has been decided, but upon principle and in accordance with repeated decisions in analogous cases, it seems to me that where it is shown that each of two attorneys in different actions has the cause of the client of the other in his hands to decide as a referee, a due regard for judicial propriety and for the pure administration of justice requires that upon the application of the opposing party in either action, made in due season and under circumstances not amounting to a waiyer, the court should vacate the reference and set aside the report, if one has been made. The question whether the referee has been influenced, or is likely to be, ;by the relation adverted to, is immaterial. He may be affected by •>t unconsciously, and the rule suggested should prevail if for no other reason than to protect referees from temptation and the suspicion of having been influenced by improper motives. (See Yale v. Gwinitz, 4 How., 253; Dorlon v. Lewis, 9 id., 1; Gray v. Fisk, 42 id., 135; Livermore v. Bainbridge, 44 id., 357; Stebbins v. Brown (65 Barb., 272).

•But, as above suggested, the objection growing out of the existence of such a relation between the referee and the opposing attorney may be waived. A party knowing it has no right to lie by, and move to set aside an adverse report upon that ground alone, aftei permitting the reference to proceed and taking the chance of success. The plaintiffs in these cases are in that position. The cases were referred to Mr. Loveridge, 2d December, 1881, with the consent of the attorneys of both parties. He made his report on the 30th of March, 1882. The affidavits show that the attorney for the plaintiffs herein knew, as early as the third of March, that the Cranston case had been referred to Mr. Cary. As to the other case, the attorney states in his affidavit that it was referred to Mr. Cary over six months prior to the date of the affidavit, which was sworn to on the first of April, 1882. The • statement is made by him, not on information and belief, but positively as of his own knowledge. ..Inferentially he knew of the pendency of the reference all that time, he not alleging to the contrary, although he takes pains to say that he did not know when the reference was ordered. It was, in fact, ordered in 1879.

The plaintiffs’ attorney attempts to excuse his delay after the third of March, by saying that it was at the request of Mr. Henderson, the plaintiffs’ counsel in the Cranston suit, but that is denied by Mr. Henderson. If the attorney knew of the pendency of one of the references to Mr. Cary when he consented to refer these cases to Mr. Loveridge, that is a defense to the motion. If he did not know of that fact then, he certainly knew of the Cranston reference as early as the third of March. He might, at any time after that, have given notice of motion to vacate the order of reference to Mr. Loveridge and (have procured a stay of proceedings, but having neglected to do so, and having waited till he found out that the report was against him, he was too late.

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

Hardin, J., concurred; Barker, L, not sitting.

So ordered.