author: Botty, J.

text:
    Charles H. Parke, Pl’ff, v. John Gilligan, Def’t.

      (New York City Court, Special Term,

      Filed September, 1895.)

    Pleadings—Defense—Assault.
    Allegations, .in an action for assault, that the defendant peaceably entered plaintiff’s premises for the purpose of affecting an arrest for a violation of the excise law, which he had reason to believe was being committed, and that he was assaulted without just cause by the plaintiff while-endeavoring to make such arrest, and that by reason thereof he was led to apprehend the plaintiff for interfering with him in the discharge of his duties as an officer and for assaulting him and that the charges subsequently made against the plaintiff and his consequent imprisonment were reasonable and just and made in good faith, and with reasonable and probable cause and that they were made for the sole purpose of preserving the public peace and in conformity with law, constitute a complete justification of defendant's acts.
    Action to recover damages for trespass and injury to plaintiff’s person. Plaintiff démurs to defendant’s plea of justification.

      Fromme .Brothers, for pl’ff; Frances M. Scott, Corp. Counsel, for def’t.
   Botty, J.

This action is brought by the plaintiff against the defendant to recover the sum of $2,000 as damages for trespass and injury to his person, etc. The complaint sets forth four distinct and separate cause of action, viz.: (1) Trespass, (2) assault, (3) false imprisonment, (4) malicious prosecution.

The first cause of action charges the defendant, who is a police officer, with trespass, in that on or about July 5, 1895, he unlawfully, willfully, illegally, and maliciously forced in the entrance or door leading to the plaintiff’s premises, a liquor store or saloon at No. 13 Sixth avenue, in this city. The second cause of action charges the defendant with having assaulted the plaintiff without justification or provocation, after forcibly entering the said premises as charged in the first cause of action. The third cause of action charges the defendant with having unlawfully and forcibly entered plaintiff’s said premises at the time above stated, and, after assaulting the plaintiff without cause or justification, and without charging him with any offense, took him by force into custody, and caused him to be imprisoned, without any cause, or without any right. The fourth cause of action charges the defendant with having falsely and maliciously, and without reasonable or probable cause, charged the plaintiff before a city magistrate with having committed the offense of assault, and procured the said magistrate to entertain said complaint, and detain the plaintiff on the said charge; that the plaintiff was put under arrest, and, after an examination had, was acquitted of the crime, and that the prosecution is wholly ended and determined ; that by reason of the premises the plaintiff suffered damages in the amount claimed by him.

The defendant, however, by way of defense, has interposed an answer admitting that he is a police officer, and that, while in uniform, at or about the time stated in the complaint, he arrested the plaintiff, caused him to be imprisoned, and that, after examination had upon the charges preferred by him against the plaintiff, the plaintiff was acquitted, and that the prosecution is wholly determined ; but he denies the several charges made against him, and by way of a separate and distinct answer and defense to each and every cause of action alleged in the complaint he avers that he is, and for a long time has been, a police officer, and, as such, was under orders from his superior officers to enforce the provisions of the excise laws, to prevent violations and arrest violators thereof; that early in the morning of July 9th, between the hours of one and five o’clock, he observed persons going in and out of No. 13 Sixth avenue, a liquor store or saloon, through a door leading thereto situated on West Third street, and that such persons, or divers of them carried in their hands small cans; that by reason thereof he was led to suspect and believe, and did in good faith suspect and believe, and had probable and reasonable cause for believing, that the statutes commonly known as the “Excise Laws ” were being violated; that accordingly, upon the said door being opened from the inside to admit one of said persons, the defendant entered the same, and that thereupon the person who opened the door violently and maliciously forced him (defendant), with the assistance of the plaintiff, out on the sidewalk, the plaintiff unlawfully and maliciously grasping him by the throat, and using vile and abusive language towards him; that he thereupon arrested and took the plaintiff into custody, and immediately conveyed him to the police station of the Fifteenth precinct, and caused him tobe there detained; that thereafter the plaintiff was taken before a city magistrate, charged with having prevented the defendant from making an arrest, and with having assaulted and interfered with him while attempting to discharge his duties; that the magistrate entertained the complaint, and, after examination, acquitted the plaintiff with a warning to him; that the complaint and arrest were reasonable and just, and made in good faith, with reasonable and proper cause, and that the same were made for the purpose of preserving the peace, and pursuant to the proper statutes and the order of his superior officers, and that he acted without malice. To the matters thus set up by way of a separate and distinct defense the plaintiff demurs upon the ground that the same are insufficient in law upon the face thereof.

The several charges, or either of them, as made by the plaintiff, if true, would render the defendant amendable to an action for damages. No officer has a right to force an entrance into any premises for the purpose of effecting an arrest for a misdemeanor which he may have reason to suspect is being committed thereon. Nor is he authorized to make an arrest without a warrant for a misdemeanor not committed in his presence. Code Or. Proc. § 177. If he effects an entrance by force under such circumstances, he may be ejected from the premises; but the person ejecting him has no right to use more force than is necessary to accomplish that purpose. Nor is the officer justified in arresting the person ejecting him for an assault under such circumstances. The defendant, however, as above shown, especially denies each of the several charges made against him. The issues thus raised must necessarily be tried before the court and a jury in orderly course of procedure.

The questions to be determined by the court at present arise upon the demurrer interposed by the plaintiff to the special or separate defense set up by the defendant in his answer, by which he shows that he peaceably entered plaintiff’s premises for the purpose of effecting an arrest for a violation of the excise law, which offense he had reason to believe was being committed, and that he was assaulted without just cause by the plaintiff while endeavoring to make such an arrest, and that by reason thereof he was led to apprehend the plaintiff for interfering with him in the discharge of his duties as an officer, and for assaulting him ; and the charges subsequently made against the plaintiff, and his consequent imprisonment, were reasonable and just, and made in good faith, and with reasonable and probable cause, and they were made for the sole purpose of preserving the public peace, and in conformity with law. The plaintiff, by demurring, admits the above facts alleged by way of separate defense, but it is urged by him that the same do not constitute a jurisdiction or defense. Upon a careful examination of the pleadings and the question of law involved, I am of the opinion that the facts set up by way of special defense,"to which plaintiff has demurred, constitute a complete justification of defendant’s acts in arresting the plaintiff for the assault committed upon him, and for interfering with him in the discharge of his duties as an officer, and that the same are properly and necessarily pleaded as a defense. See Bradner v. Faulkner, 93 N. Y. 515.

The demurrer must therefore be overruled, with costs, with, leave to the plaintiff to plead anew or amend on payment of $15 costs.

Ordered accordingly.


source: Caselaw Access Project

author: Fitzgerald, S.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Account of the Executor of Mary J. Havemeyer, Deceased.

      (Surrogate’s Court, New York County,

      Filed August, 1895.)

    Surrogates—Reference.
    Chapter 688 of 1894, amending section 1022 of the Code, does not apply to referees in the surrogate’s courts, so as to relieve them from the duty of filing separately findings of fact and conclusion of law.
    Accourthstg by an executor. The parties to the proceeding move for an order to send back the report of the referee for correction, and to require him to state his findings of fact and conclusions of law separately.
    Butler, Stillman & Hubbard, for executor.
   Fitzgerald, S.

A referee was appointed herein by the surrogate; under section 2546 of the Code of Civil Procedure, to examine the accounts of the executor, and to hear and determine all questions arising upon the settlement of said accounts which the surrogate had power to determine, The referee filed his report, and also three sets of proposed findings of fact and conclusions of law which had been passed upon by him upon their submission by the parties. The report or decision does not state separately the findings of fact and conclusions of law made by the referee, nor does it contain any of the proposed findings of fact and conclusions of law passed upon by him, although they were filed with it and the opinion of the referee in this office. This is a motion made by parties in interest for an order sending the report or decision back for correction, and directing the referee to state therein separately the facts found, and the conclusions of law, and also to embody and include -therein all the findings of fact and conclusions of law heretofore found by him at the request of either or any of the parties therein. Section 1022, prior to its amendment by chapter 688 of the Leiws of 1894, provided that the court or referee, in making a decision upon trial of the whole issues of fact, must state separately the facts found, and the conclusions of law. Section 2546, at the time of such amendment, declared—and it has never since been changed—that the provisions of the Code applicable to a reference by the supreme court apply to a reference by this court, so far as they can be applied in substance, without regard to the form of the proceeding. Section 1022, as amended, provides that the court or referee, upon the trial of the whole issues of fact, may file a decision stating concisely the grounds upon which such issues have been decided, and direct the judgment to be entered thereon. It is claimed that under sections 2546 and 1022, as amended, the referee herein is not required to make findings of fact and conclusions of law. The claim, I think, is untenable. Section 2545 requires the surrogate, upon the trial of an issue of fact, to file in his office his decision in writing, which must state separately the facts found, and the conclusions of law. It would .be highly improbable to suppose that the legislature, by the amendment mentioned, intended to create the anomalous condition of relieving referees appointed by this court from making the findings which are exacted from the court itself. The purpose was, no doubt, to simplify and improve the practice, for the benefit of the courts mentioned in section 1022, as well as for the benefit of referees appointed by such courts; and these courts are indicated by section 3347, subd. 7, of the Code. I think the application of the amendment is confined to these last-mentioned courts, and has no reference to this court or its referees. The referee should also embody in his decision all the findings of fact and conclusions of law found by him at the request of any of the parties. Nobis v. Pollock, 26 St. Rep. 155 Schultheis v. McInerny, 37 id. 537.

Application granted.


author: Kennedy, S.

text:
    In the Matter of Application to Subject to the Transfer Tax the Estate of Lydia C. Ray, Deceased.

      (Surrogate’s Court, Madison County,

      Filed July, 1895.)

    Tax—Tbansfee—Exemption.
    Section 2, chap. 399 of 1892, which exempts from the provisions of the transfer tax law a legacy to the husband of á daughter of testator, includes the husband of a deceased daughter, though he has remarried.
    Proceeding to subject to the transfer tax the estate of Lydia C. Ray, deceased.

      M. É. Barlow, for George H. Hunger.
   Kennedy, S.

Lydia C. Ray died at Canastota, in this county, May 12, 1893, leaving, her surviving, neither husband nor descendants. She left personal property, the value of whichj after deducting the payment of debts and funeral expenses, amounted to the sum of $9,353, and real estate of the value of $450. She left a will dated March 24,1885, bequeathing and devising the use of all her property to her son-in-law, Gfeorge H. M unger, with the right to appropriate so much of the principal as circumstances might require for his comfort, convenience and support; the remainder, at his death, to go to Colgate University. Munger married the only child of the testatrix in 1863. This daughter died April 12, 1879, leaving no children. From the death of Mrs. Ray’s husband, in 1873, until her death, in 1893, she and said Munger have lived together, caring for each other as mother and son.

' It is claimed on the part of the state that the legacy to Mr. Munger is liable to a transfer tax, for the reason that, said Munger’s wife having died prior to the death of the said testatrix, he is not the “husband of a daughter.” We do not think that a proper construction of the statute will justify this conclusion. The language of the act in relation to taxable transfers of property, so far as it applies to this proceeding, is as follows:

“ When the property or any beneficial interest therein passes by any such transfer to. or for the use of any father, mother, husband, wife, child, brother, sister, wife or widow of a son, or the husband of a daughter, * * * ■ such transfer of property shall not be taxable under this act, unless it is personal property of the value of the ten thousand dollars or more.” Laws 1892, ch. 399, § 2.

• If it be conceded that, in a technical sense, a man whose wife is dead is not a husband, still, in a sentimental and social'sense, by common usage as well as by statute, such a person, upon the settlement of estates especially, and in some other matters generally, is recognized and designated as “ husband ” instead of “ widower,” which perhaps more accurately describes his relation to his dead wife; but, if the wife survives the husband, she is described sometimes as “ wife ” and sometimes as “ widow.” Thus, letters of administration in cases of intestacy must be granted, in certain cases, to the surviving “ husband ” or “ wife,” although previous to 1893, if the wife survived the husband, letters were to be issued to the “ widow,” but never to a “ widower.” The Code of Civil Procedure provides that if a man having a family die, leaving a “ widow ” or minor child or children, certain enumerated articles are to be set aside for them, and if a married woman die, leaving surviving her a “ husband ” or minor child or children, the same class- of articles and amount of property are to be set apart for them, with the same effect and for their benefit. Without exception, the statutes of this state, the opinions of its courts, and all text books discussing the legal rights of the husband where the wife is dead invariably describe and designate him as a “husband,” the word “ widower ” never being used for that purpose. The word “husband” or “surviving husband” has become so imbedded in our statutes and in all legal phraseology that it it has the same force and meaning and the same legal effect as if he had been described as “ widower.”- If the legislature had intended not to use the word “ husband ” in the same sense as it has always been used by the laws of this state and by its courts, it would have made its meaning clear, definite,-certain, by saying the “ husband of a daughter, if she be living.” By omitting to restrict this exemption to a husband whose wife was living, it seems very clear that the word “ husband ” is here used in its general and accepted sense, which not only common usage but the statutes of this state make use of, and as the word is ordinarily used and understood in speaking of a surviving “ husband.”

But it is urged that, the transfer act having made use of the words “ wife ” or “ widow ” of a son, and omitted - to say “ husband ” or “ widower ” of a daughter, there is valid ground to claim that it was not intended that the husband of a daughter should be exempt unless the daughter was living, upon the theory that a “ husband ”.is a man who has a wife, but that in case his wife is dead he is not a “ husband,” and not, therefore, within the exemptions of the law. Perhaps there might be some force in the suggestion were it not for the fact that in all our" statutes sometimes the word “wife”, and sometimes the word “ widow ” is used, referring to a woman whose husband has died, both words meaning in the settlement of estates the same person, who is entitled to the same legal rights; while, upon the other hand, the word “ widower ”-is never used to designate a man whose wife has died, but always the word “ husband.” So that, when the act says “ wife ” or “ widow ” of a son, we think it clear that it was intended that the husband of a daughter, though she be dead, is entitled to the same exemptions as if his wife were living. No satisfactory reason can be urged why the “ widow of a son” should be exempt, "and the “ husband of a dead daughter ” not exempt. Both sustain the same relative relation to the decedent. Both should be 'equally entitled to be exempted from the operation of the law. Neither justice nor necessity gives to the widow of a son any superior claim to be exempted from this taxation, and both should stand upon the same footing. If the word “ widower” had ever been used in the statutes to describe a man whose wife were dead, there might be some grounds to draw the distinction claimed by the state in this proceeding. The absence of the word “ widower ” does not suggest that the word “husband” was used in any limited or restricted sense, but, upon the other hand, it is to. be given its ordinary legal significance, which custom and long usage and the law and the courts have given it.

For all legal purposes, the man whose wife is dead continues to be her husband, and such he is declared to be by law, and as “husband” he is entitled to certain rights in her property. A misdescription in the name of a person or corporation to whom a devise or bequest is made of no avail, provided the devisee is clearly and distinctly known. But, if a claim of the state in this proceeding is correct, certain rights conferred upon the “husband” or any legacies to him as husband ” could not be enforced, because he is not correctly described as “ widower.” Wills take effect upon the death of the testator, but, upon the construction claimed in this case, all legacies given to a “ wife ” must lapse and be void, unless given to a widow,” because there would be no “wife” in existence to take the property. For centuries the wore} “ husband,” and not the word “widower,” has been used in law to describe a person whose wife was dead ; and from this long usage we think it clear that the originators and draftsmen of the transfer act used the word with the same force, effect, and meaning that it had theretofore had, and did not intend to ‘use it in a technical and restricted sense, but designed to place the husband of a daughter on the same footing and equality as the wife or widow of a son. Had the word “ wife ” alone been used, it might have been strongly argued that the legislature intended to limit the exemption to children by marriage whose wives or husbands were living at the death of the testator or intestate; but, having removed all uncertainty in this respect by saying that the “ wife or widow ” of a son shall be exempt, we think it equally clear from the manner in which the word husband ” has been used and construed in the statutes, that it is not intended to treat them differently and to exclude the husband of a deceased daughter from the benefits of the act, for the same description and phraseology are used in designating the rights of the husband in the transfer act as in the other statutes of the state.

Thus far we had written when first appraised that said Hunger had remarried during the lifetime of the testatrix, and was living with his wife at the time of Mrs. Ray’s death. As we have construed the word “ husband ” to mean the same as if the statute had said “ husband ” or “ widower ” of a daughter, we are confronted with the definitions of the word “ widow ” as stated in the various dictionaries, to wit: “ An unmarried woman whose husband is dead; ” “ one who has lost her husband by death, and who has not taken another; ” “ whose husband is dead, and who remains unmarried,”—and by the argument, based on these definitions, that in order to be a widow she must remain unmarried. The question at issue is not whether these definitions are correct, but what is the legal import,' meaning, effect and object of the words “ wife or widow of a son,” or “ husband of a daughter,” as these words are used in this and other statutes of this state, or, if the language made use of to express the intention of those who prepared and passed the law is not clear, what construction will best accomplish the design ? - The fact that the statute itself has not made remarriage during the lifetime of the ancestor a bar to exemption from the tax, is some evidence that it was not so intended to operate, for in many cases such persons would have a family to support which would be benefited by the exemption, and this fact may have been one of the reasons that influenced the legislature to adopt this provision. Again, a legacy would not ordinarily be given to the “ widow ” of a son, or to the “ husband ” of a deceased daughter, were it not for the fact that the relation of son-in-law or daughter-in-law continued or was supposed to exist by legal fiction, if not in fact. A woman, though the wife of another, is still the widow of her former husband ; though married to another woman, the husband is still the widower of his former wife ; and, this being so, both come, not only within the language of the law, but within its just and reasonable construction. The law invests-them with the name of “husband ” or “ wife ” or “ widow,” for certain legal purposes, and under these names, although the designation may not come within the definition of the dictionary, property may vest in them, whether it comes to them by legacy or otherwise. Notwithstanding the definitions of the words “ wife," “ widow ” and “ husband,” we apprehend it is not our- duty to accept them in place of the statutes of this state, which make use of these words, whether correctly or not, tó designate persons entitled to certain legal rights. The words “ wife,” “ widow ” and “ husband ” have obtained a legal use and significance in the settlement of estates which may ■ not correspond to the technical definition of 'the lexicographers, but it is the duty of courts to give that effect to these words which long use and custom have sanctioned. Until the legislature has removed all doubt by plainly saying that the “ husband of a daughter, i£ she be living,” or the “ widow of a son, if she be unmarried,” are exempted from the tax, courts are justified in giving the interpretation to the transfer act which will make effective the objects of the law, and confer upon heirs and legate.es the benefit which the legislature intended. An order will therefore be entered exempting the beneficial interest of said Hunger from taxation.

Ordered dccordingly.


text:
    In the Matter of the Judicial Settlement of the Accounts of John N. Woodbury, as Executor and Trustee of the Estate of Jennette Beebe, Deceased.

      (Surrogate’s Court, Madison County,

      Filed July, 1895.)

    1. Executors—Sale—Security.
    An executor has no right to sell personal property of an estate on credit except for payment of debts and legacies.
    2. Same.
    The approved security, required in such case, must be national and state bonds and mortgages on real estate.
    3. Same—Good faith.
    An executor, who sells personalty of the estate» and takes a note for the price without “ approved security,” is not relieved from liability, in case the note proves worthless, on the ground that he acted in good faith, though, before taking the note, he satisfies himself that it was such as business men ordinarily accept in commercial dealings.
    4. Same—Approval of security.
    Section 1717 of the Code requires the security, taken by the executor " upon the sale of personal property of the estate,- to be approved by the surrogate.
    5. Same—Expense of collection.
    The expenses, incurred in attempting to collect a note, taken by the ex- • ecutor upon the sale of personal property of the estate on credit, without the approved security required by section 2717 of the Code, will not be allowed to him on his acbounting.

      6. Same—Interest.
    Though an executor, who takes such a note, is liable for its amount in case it proves to be worthless, he will not be charged with the interest thereon, where the estate is indebted to him for commissions and money advanced in an amount exceeding such interest, and there are no assets which can be applied thereto.

      H. B. Coman, for executor; M. H. Kilsy and John B. Smith, for legatee.
   Kennedy, S.

Jennette Beebe died in the town of Smithfield, in this county, in 1873, leaving a farm of 160 acres and personal estate amounting to about $5,000. She left a will by which her husband and two young children were to have their support from her property until the children became twenty-one years of age, at which time it was to be disposed of according to the terms of the will. In the year 1876 the executor sold at auction the stock and farming utensils upon the farm. At the sale, property of the value of $391 was sold upon credit, a note being given by the purchasers thereof, due in nine months thereafter, with an indorser thereon. A short time after the sale, the makers of the note went into bankruptcy, and the indorser became irresponsible, so that when the note matured it was uncollectible. Before the executor took the note, he made inquiry of various persons as to the financial responsibility of the makers and indorser, examined the records of the county clerk’s office, and satisfied himself that the note was good, and such as business men would ordinarily accept in commercial dealings. Upon this accounting, the residuary legatee seeks to hold the executor responsible for the amount of the note, with interest from the time it was given, upon the ground that he had no right to sell the property on credit. The executor claims that he should not be held liable for the loss, because he acted in good faith and with reasonable care and diligence. He also claims exemption from liability for the reason that the note, with an indorser thereon, was an “ approved security,” within section 2717 of the Code, which is as follows (in part):

■ “ If an executor or administrator discover that the debts against any deceased person, and the legacies bequeathed by him, cannot be paid and satisfied without a sale of the personal property of. the deceased, the same, so far as may be necessary for the payment of such debts and legacies, must be sold. The sale may be public or private, and, except in the city of New York, may be on credit not exceeding one year, with approved security. The executor or administrator is not responsible for any loss happening on the sale when made in good faith and with ordinary prudence,” etc.

We must hold that neither the executor’s good faith and diligence nor the statute exempt him from liability for the loss. It will be observed that the executor has no right to sell upon credit, except for the payment of the débts and legacies of the deceased. As the testatrix left nearly $5,000 of personal property, while her debts amounted to only a few hundred dollars, it was unnecessary to sell it for the payment of her debts. As the legacies payable at the end of a year from the death of Mrs. Beebe amounted only to the sum of $1,042.88, while the legacy, to her daughter was not payable until she became twenty-one (many years after the action), it was unnecessary to sell on credit for the payment of any legacy. The sale, therefore, upon the executor’s theory of law, was not justifiable ; but, if it be assumed that it was necessary to sell the property for the payment of debts and legacies, the construction which we shall give to section 2717 of the Code renders him liable for the loss, because the note was not such an approved security as the law contemplates. In commercial dealings between private individuals and corporations, notes, bonds, stocks and other forms of contract may be taken for or as security for debts and other purposes, and may be recognized between the parties and by courts under the name of “ securities; ” but in legal proceedings the law requires security of a different character, and over which the courts have control,—a security which makes the debt assured ; something which makes its payment certain, which makes sure the performance of a contract, and prevents loss from insolvency or otherwise. This note, as between the makers and the executor, was not and could not be taken as a security, for the reason that it only changed the form of the debt from a book account to a promissory note. If added nothing whatever to the security or the safety of the debt; so that the only security that there could possibly be was the indorsement of one equally as irresponsible and worthless as the makers of the note.

The settlement of estates is a special proceeding, under the supervision and control of the courts ; and though the Code says that an executor or administrator may sell on credit for certain purposes with' approved security, we shall hold that in such cases approved security means national and state bonds and mortgages on real estate, because it is an investment for the time being of the assets of the estate, and courts have held rigidly to the rule that if trustees, without express authority in some legal form, invest in notes, stocks, or bonds, they will be held responsible for all losses occasioned by such investments. The courts, in so deciding, have imposed no harsh nor unreasonable rule upon them in the discharge of their duties, but have given them a safe, simple, and reasonable rule of conduct, easily complied with, and in obeying which they assume no risk, and the estate they represent can sustain no loss. We have said this note was not such a legal security as the executor was authorized to take, because it was not such a one as the courts recognize and approve in the care and management of estates by trustees. We go further, and say that if the executor had a right to sell upon credit and take the notes of purchasers, he would still be liable for the loss, because the security was not approved by the surrogate before it was accepted by him. The statute says that executors and administrators may sell upon credit with “approved security.” Approved by whom?

As the law is silent of this point, we Assume, in analogy to the law and practice in civil actions and other special proceedings, that the security is to be approved by some court having jurisdictiou of the matter. It is one o£ the duties of surrogates to direct and control the conduct of executors and administrators in the settlement of estates; but the construction of the Code sought to be maintained in this proceeding would enable them to exchange valuable assets of an estate for such alleged securities as in the end might prove worthless, or afford no adequate protection to an estate, and would exclude the surrogate from having any control or jurisdiction over one of the necessary, indispensable, and most important acts of an executor or administrator. If this right exists, the estate of the dead is placed in a most perilous, hazardous, and unprotected condition, because its assets would be placed beyond the control of the courts, and often in the hands of those who, however honest they may be, are personally irresponsible and unable to make good any loss which their acts may have brought on the estate. No greater opportunity for fraud and dishonesty could be devised than this statute as construed by the executor; no greater opportunity for carelessness and negligence, or for those acts, done in good faith perhaps, yet which are often so ruinous and disastrous to estates; it would simply be a legal shield for lack of judgment; vigilance, discretion, for all those acts by which heirs and legatees could be cheated, wronged, and deprived of that which rightfully belonged to them. If however, it be asserted that the law is so drawn that there are doubts as to whether approved security means such only as is approved by the surrogate and the courts of this state, instead of the executor, we think it the duty of courts to give the benefit of such doubts, if there are any, to the estate, and construe it in such manner as shall be harmless to an executor or an administrator, and at the same time protect the estate from all possibility of loss from their acts in the sale of property upon credit for the payment of debts and legacies.

But it is claimed that the word “security” does not necessarily mean state or national bonds or mortgages on real estate, for the reason that the word “security,” whenever used in the Code, means a bond or undertaking with one or more s/ireties, and that hence there is no positive rule or statute as to what will constitute a security in legal proceedings, so that a note or bond may be regarded as an approved security. We do not think such an inference is justified, but, on the contrary, hold that the law and practice of the courts in regard to bonds in actions and special proceedings suggest the conclusions that we have stated, for the reason that bonds thus taken must in all cases be approved by the court ara judge thereof.

In such cases the parties interested are afforded ample protection since they may cause a bondsman to be examined as to the character and amount of his property, his indebtedness, and. as to such other facts as will enable them to determine whether the security is ample and satisfactory, and if found insufficient, other bondsmen must be obtained, and besides this, if at any time the bond for any cause becomes inadequate, another one may be required to be given and approved by the courts; so that at all times during the pendency of an action a party entitled to a bond has am-pie protection from loss, while under the statute in question a bond would be no better than a note, both equally good'or equally valueless, because neither the executor nor the parties interested would have the power to compel a new bond to be given if its makers became insolvent or of doubtful responsibility. The fact that heirs and legatees would be powerless to protect themselves against the acts of an executor in taking bonds and notes and other pretended securities when he sells upon credit justifies the conclusions that approved securities, when taken by him on a credit sale, mean such only as are approved by the courts and by-surrogates, and not by the executor. For the reason stated, we must hold the executor liable for the $391, and also for a similar note of $30 which he has been unable to collect.

The executor has charged this estate for the expenses he incurred in attempting to collect said notes. These items we disallow, because it was through his own negligence in taking the notes that the costs were 'made. When he accepted the notes, he took upon himself the hazard or their nonpayment, and he has no right to subject this estate to the payment or expenses incurred through his own fault and neglect of duty. The surrogate of this county has had but one inflexible rule in regard to the sale of the assets of an estate by' executors and administrators, to wit, that they must be sold for cash, and that, if sold on credit, executors and administrators will be held personally liable for all losses and expenses that may occur by reason of such sale; and we must decline to make this case an exception from this safe rule of conduct in the settlement of estates.

We are asked to hold the executor liable for interest on the notes in question from their date to the present time. This we should do were it not for the fact that an adj ustment of his accounts shows that he has advanced to the estate $332.95 more than he has received; his commissions, amounting only to-the sum of $152.12, are unpaid,—making in all $485.07, which cannot be collected from the estate. Moreover,- his executorship and trusteeship have been running for twenty-one years, requiring much time, care, and responsibility, for which he only gets his commissions, being only about seven dollars a year for his services, —a very inadequate, but still his only legal, compensation. Under such circumstances, it would be, unjust to charge him with interest.

The respective counsel will readjust the accounts in accordance with the above conclusions.

Ordered accordingly.


author: Betts, S.

text:
    In the Matter of the Application for Probate of the will of Lucy H. Eakins, Deceased.

      (Surrogate’s Court, Ulster County,

      Filed July, 1895).

    Wills—Execution—Attestation.
    The showing to a witness a piece of blank paper, with no signature or writing apparent upon it and saying, “this is my will ” or, “ I have made my will, I want you to sign it,”—is not an acknowledgment of a subscription thereto by the testator, within the meaning of the statute.
    Proceeding for the probate of the will of Lucy H. Bakins, deceased.

      Benjamin M. Coon {Peter Cantine, of counsel), for proponent; Jas. A. Ryan, for contestant.
   Betts, S.

Lucy H. Bakins died at Glaseo, in this county, on November 17, 1893 ; leaving, her surviving, Sarah J. Maginnis, a daughter, and John S. Bakins and Georgé H. Galvin, sons, all of full age. She was possessed of certain real estate, estimated to be worth about $5,000, and personal property, about $200. On January 21,1895,—over one year and two months after her death,— application is made by petition in this court for the probate of a paper writing alleged to be the last will and testament of deceased, bearing date August 15, 1890, by Sarah J. Maginnis, one of the executrices named therein. The son George H. Galvin files verified objections to the probate of the will, the principal one insisted on at the trial being that the paper was not executed in accordance with the statute. The following is a copy of the paper offered for probate:

“ Mattie Holsten.

“ Catharine McFetridge X

“ Brooklyn, August 15, 1890.

“ I will and bequeath to my daughter Sarah J. Maginnis my House and Lot'lcnown as a 107 Driggs St. and all my Household effects my clothes and everything belonging to me in Any way and appoint her and Mrs. Sarah J. Quinn of 124 South first St., Brooklyn executriss of this my last will and testament.

Lucy H. Bakins.”

There was no attestation clause.

This paper writing is very peculiar. It bears the appearance of having "been written by deceased,-or some one entirely unfamiliar with drawing wills, and is apparently all in the same handwriting, including the signature. The writing (exclusive of the signatures of Holsten and McFetridge) occupies about three-fourths of what is apparently the second page, or inside page, of a small sheet of note paper folded in two leaves. About one-third of the second leaf, or third and fourth pages, of this sheet, has been torn off, and the remainder of said third and fourth pages is entirely blank. On what I should consider the first page of this document is written “ Mattie Holsten" and “ Catharine McFetridge X” So that the first that is met with, in an examination of this remarkable document, is what is claimed to be the signatures of the witnesses. The signatures of the alleged witnesses precede the alleged will, and -are on the reverse side of the paper from which the writing is.

Catharine McFetridge, of Brooklyn, N. Y., being too ill to come to Kingston, and it appearing that Mattie Holsten was her daughter, and necessarily in constant attendance upon her, an order was made for their examination before Hon. George B. Abbot, surrogate of Kings county. By consent of parties this examination was taken at the bedside oi' Mrs. McFetridge by the clerk of the surrogate’s court of Kings county. It appeared from the evidence of these two witnesses that they were on their way to church, when deceased called them in the basement of the house in Brooklyn, in which all three lived, and said either, “This is my will. I want you to sign it,” or, “I have made my will. I want you to sign it. Just put your name here," placing her hand on the back of it, according to Mattie Holsten, and saying either, “This is my will,” or “I made my will. I want you and your daughter to sign it,” according to testimony of Catharine McFetridge. She did not use the word “witness.” The witnesses did not see the inside of the paper, nor the signature of deceased. They did not know that there was any writing at ail' upon the paper, nor did she sign it in their presence, nor tell them she had signed it, or in any way acknowledge that she had signed it. Neither of the witnesses knew her signature, or had ever seen her write. It appears that Mattie Holsten signed her own name, and, as her mother had forgotten her glasses, she also signed her name, Catharine McFetridge; Mrs. McFetridge making her mark - at the end of the signature, and the deceased saying that would do. The paper was laid on the table by deceased, and lay there while being signed by Mattie Holsten for herself and her mother. The witnesses both testify they were on their way to church at the time of signing, but it does not appear from the testimony whether it was Sunday or not. August 15, 1890, was Friday. Lucy H. Maginnis and Sarah J. Maginnis, granddaughters of deceased, and daughters of Sarah J. Maginnis, legatee and devisee named in the paper, both testified that the paper offered for probate, and the signature thereto, were in the handwriting of Lucy H. Eakins; also, that they had heard deceased say that she had made a will, and everything she had should be their mother’s after her death.

The legislature of this state deemed it proper to throw certain safeguards about the proper execution of a will. This is eminently proper and just. A will, by its very nature, has no force and effect during the lifetime of the person making it. While granting the right to an individual to determine to whom his property shall belong after his death, the state very properly directs, as a precautionary measure to guard against fraud, imposition, or avarice, the methods by which that right must be exercised. Among them are the following:

“Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: (1) It shall be subscribed by the testator at the end of the will. (2) Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowledged by him to have been so made to each of the attesting witnesses. * * * (4) There shall be at least two attesting witnesses, each of whom shall sign name as a witness, at the end of the will, at the request of the testator.” 2 Rev. St. p. 63, § 40.

It is claimed by the contestant that the requirements of subdivisions 2 and 4 of this section were not complied with, in that there was no signing in the presence of the witnesses nor acknowledgment of it, and that the witnesses did not sign at the end of the will. If I am correct in my view of the law as to the first proposition of contestant, it is unnecessary to consider the second. Here, at least, was no subscription by the testatrix in the presence of each of the attesting witnesses, or pretense of it. It is equally clear that there was no acknowledgment by the testatrix to each or either of the two attesting witnesses. Showing a witness a piece of blank paper, with no signature or w'riting apparent upon it whatever, and saying, ‘‘This is my will,” or “I have made my will. I want you to sign it,” is not an acknowledgment of a subscription thereto by the testatrix, within the meaning of the statute. Attesting witnesses, by their nature, name and designation, are to attest or witness something, and that something is the signature to the will. Two comparatively recent cases decided by the court of appeals deny probate to wills in which the facts are much stronger for probate than this case. Mitchell v. Mitchell, 77 N. Y. 596; affirming, 16 Hun. 97; In re Mackay’s Will, 110 N. Y. 611; 18 St. Rep. 558. In the first case, the deceased came into the store where the two witnesses were, and handed, out a paper, and said, “I have a paper that I want you to sign.” One of them took the paper, and partly opened it, and saw what it was. The witness probably, from his testimony, saw the signature. The testator said: “This is my will. I want you to witness it.” Then the two witnesses signed the paper under the attestion clause. It does not appear that the other witness saw the testator’s signature. The testator then took the paper, and said, “I declare this to be my last will and testament.” At the time of this transaction the paper had the name of the deceased at the end of the paper, but the witnesses did not see him sign, nor was there any acknowledgment by him of his signature in their presence, unless the facts above stated are such an acknowledgment. It will be seen that in this case there was an attestion clause. The deceased had actually subscribed at the end of the will, one witness probably saw his signature, and the declarations of deceased were much stronger than in the present case, yet probate was refused. In the second case cited the subscribing witnesses came to the dwelling house of the deceased by previous appointment, and the deceased said, “Gentlemen, what I sent for you for was to sign my last will and testament.” Thereupon he took from his writing desk t'he instrument offered for probate, and, laying it before the witnesses, said, “It is now all ready, awaiting your signatures.” Both of the witnesses then signed, one of them making a remark showing that he understood it was a will. At the time of exhibiting the instrument to the subscribing witnesses, he told them it was his will, but handed it to them so folded that they could see no part of the writing except the attestion clause, and they did not see either his signature or seal. Judge Earl, in delivering the unanimous opinion of the court, says:

“The witnesses should either see the testator subscribe his name, or he should—the signature being visible to him and to them—acknowledge it to be his signature; otherwise imposition might be possible, and sometimes the purpose of the statute might be frustrated."

Probate was refused in this case; in pry opinion, a much stronger case than the one now before me.

Considerable stress is laid by proponent on this being a holographic will, and it is insisted by that in the probate of such a will the same rigid rules of construction should not be applied as when a will is prepared, and its execution supervised, by a careful attorney. It may be that is so, and there are many cases that hold that a substantial compliance with the statute is sufficient, but there are no cases that hold that the requirements of the statute can be dispensed with in the execution of any kind of a will. This is not a case of negative testimony only,—the' witnesses not recollecting whether certain acts were done or not,—but they testify positively that they were not done. The burden of proof is upon proponent to satisfy the court that the requirements of the statute were complied with. It is not a pleasant duty for a court to deliberately set aside a document apparently designed by the deceased to effect a disposition of her property after her death. Courts, however, must carry out the will of the legislature in regard to proper execution of wills, and, where certain rules have been prescribed for the transmission of property, would-be testators must bring themselves within those rules, in order to take advantage of their benign provisions. The statutes of descent and distribution are now so just and equitable that those desiring a different disposition of their propery must clearly manifest and carry out their disposition so to do within the prescribed forms of law. Probate of the paper offered as the last will • and testament of Lucy H. Bakins is denied, and a decree may be handed up to that effect. The good faith of the executrix named in the paper offered for probate not having been questioned, costs are awarded to proponent and contestant, payable out of the estate.

Probate denied, with costs to both parties payable out of the estate.


author: Calder, S.

text:
    In the Matter of Proceeding for the Probate of Will of JANE Menge, Deceased.

      (Surrogate’s Court, Oneida County,

      Filed July, 1895.)

    1. Will-Execution.
    Where the attestation clause of a will is complete, reciting; the requisite formalities, and the will on its face is in due form, the testimony of the scrivener and one of the witnesses to the will, though contradicted hy the other witnesses, is sufficient to prove that testator signed the will before the attestation clause was signed by the witnesses.
    2. Same.
    Where the testator, in reply to the scrivener’s question as to whether he wished certain persons present to act as witnesses to his will, answers in the affirmative, such statement amounts to a sufficient publication of the will and request to the witnesses to attest the same.

      Proceeding for the probate of the will of Jane Menge, deceased.

      Boherl 0. Jones, for proponent; Charles A. Miller, for contestants ; G. Lansing Jones, special gnardian for John Menge.
   Calder, S.

The usual answer of mental incapacity and undue influence was introduced in this proceeding, which was afterwards amended to include allegations of noncompliance with the requirements of the statute in reference to the execution of the instrument offered for .probate. Upon the amendment the contestants rely, no testimony being offered to sustain the other objections. The statute provides that certain formalities must be complied with to entitle a will to be admitted to probate. It is not necessary that any particular form be followed, or that any rigid rule of construction of the statute be imposed. Any other interpretation would be to confine the execution of testamentary documents within a narrow compass, and would in many instances defeat the expressed intentions of a person. The statute is satisfied if there be. a substantial compliance with its requirements.

The instrument in question was prepared by George R. Wright, at the home of the decedent, and witnessed by William Hughes and Alexander E. Morgan. By the evidence of Wright it appears that the testatrix, after requesting that some paper be handed him, said, “I want you to draw a will for me.” It was drawn in her presence, pursuant to her directions. The witnesses were summoned, and Mr. Wright, according to his testimony, said : “Mrs. Menge, here are Mr. Morgan and Mr. Hughes. Do you wish them to act as witnesses to this, your will ?” To which she replied, “Yes, I do.” Holding the will in his hands, he said, “You will have to sign it then.” She answered, “I cannot write my name.” She placed her fingers on the penholder and Wright wrote her name. The witnesses then signed their names. After the will was folded up, Wright said, “Mrs. Menge, what shall I do with this will?” She said, “You can give it to me.” Hughes agrees with him as to what occurred in the presence of the subscribing witnesses. Upon the other hand,. Morgan testifies that Wright held up the paper in his hand, and asked the testatrix if she wanted them to sign “those papers that the witnesses signed $heir names to the instrument before the testatrix signed; that at no" time was the word “will” mentioned, or was there anything said or done to indicate that the instrument was declared by the testatrix to be her last will and testament, or that she requested them to sign any will as witnesses. He therefore testifies against the execution of the will. The evidence of the subscribing witnesses is ordinarily, in a great measure, accepted as a true statement of the facts, but it is not conclusive. It is subject to be contradicted by other evidence, and in some cases by surrounding circumstances. It has been held not fatal to the valid execution of a will where one of the attesting witnesses has denied that the usual formalities have been observed. In re Cottrell, 95 N. Y. 329 ; Orser v. Orser, 24 id. 51. It is evident that the testatrix understood the testamentary character of the instrument she signed. The scrivener had with him a book of forms, and it is to be presumed that he followed the directions therein contained. The witness Morgan may not have given such attention to the formalities as to impress upon his mind what was actually said and done. His recollection may be faulty, without intending to misstate any of the 'facts. All the circumstances attending the execution are corroborative of the evidence given by Wright and Hughes, and their evidence may be considered a true statement of the transaction. The attestation clause is complete, reciting the requisite formalities, and the will on its face is in due form. Following the rule laid down in Orser v. Orser and In re Cottrell, above cited, the attestation clause must give some weight in determining this controversy. The will was, therefore, signed by the testatrix in the presence of the witnesses, after which the witnesses signed; and, if this contest is to succeed, it must be on the lack of publication and request for the witnesses to sign. The onus is upon the party seeking to sustain the instrument. The only evidence upon the question of publication and request is the statement made by Wright to Mrs. Menge, and her affirmative answer in response thereto. If this be not a sufficient publication and request,, the probate, of this instrument must be denied. It must be presumed from this evidence that Wright was acting for the testatrix, and what he did was with her consent, and by her directions. When he made the statement to the witnesses, to which she answered in the affirmative, it is the same as though the words were uttered by herself. Gilbert v. Knox, 52 N. Y. 125; Peck v. Cary, 27 N. Y. 9. It is not necessary that the publication and request be embodied in separate statements. All that the statute requires is that the act of publication and the act of requesting the witnesses to sign shall both be performed. These acts are distinct in their nature or quality, but their performance may be joint or connected.” Coffin v. Coffin, 23 N. Y. 9. Nor is it essential that any precise words may be used, or the exact phraseology of the statute employed, to observe the formalities with reference to the publication and request. The communication made by the testatrix through Wright was made known to them that the instrument' was her will, and that they should sign the same as the attesting witnesses. This constituted the observance of the requisite legal formalities. Coffin v. Coffin, 23 N. Y. 9; In re Hunt, 110 id. 278; 18 St. Rep. 118; Lane v. Lane, 95 N. Y. 494; Darling v. Arthur, 22 Hun, 84. A due execution having been established, a decree admitting the instrument in question to probate should therefore be entertained, with costs to the proponent, payable out of the estate.

Decreed accordingly.


author: Sheldon, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Flora E. Hartman, as Administratrix of Esther F. Hartman, Deceased.

      (Surrogate’s Court, Herkimer County,

      Filed July, 1895.)

    1. Witness—Section 829.
    The assignee of a claim against a decedent’s estate may testify as to conversations, in which he took no part, between the. decedent and the assignor, concerning the assigned claim.
    2. Interest—Unliquidated damages.
    An unliquidated claim against an estate, which is to be adjusted and paid in the course of administration, will not draw interest.
    Judicial Settlement of the Accounts of Flora'E. Hartman, as administratrix of Esther F. Hartman, deceased.
    Flora E. Hartman, the administratrix, who was a daughter of decedent, presented two claims against the estate. One claim was for services performed under an agreement with decedent, during a period of nearly fourteen years prior to her death, amounting to' $2,163. The other claim was for services rendered to decedent by Douglas Hartman, claimant’s brother, and for disbursements by him, amounting to $2,105.98, which said Douglas Hartman assigned to her. On the hearing, Flora E. Hartman, the claimant, was permitted to testify in her own behalf as to conversations between decedent and Douglas Hartman concerning the claim which he had assigned to her. She testified that she heard the conversations, but did not take any part therein. This testimony was objected to on the ground that it involved personal communications with decedent, in violation of Code Civ. Proc. § 829»

      Steele & Prescott, for claimant; Henderson & Bell, for contestant William Hartman ; JS. B. Mitchell, for contestant Eugene Hartman.
   Sheldon, S.

The referee erred in striking out the testimony •of the claimant concerning conversations, between the decedent Esther F. Hartman, and Douglas Hartman, and in excluding other conversations offered in evidence between the same persons. The witness was a party, and interested in the. event; but the offered evidence was not concerning any personal transaction or .communication in which the witness had or took any part, in any manner, so far as appeared. The evidence was therefore competent. O’Brien v. Weiler, 140 N. Y. 281; 55 St. Rep. 637; Cary v. White, 59 N. Y. 336 ; Simmons v. Havens. 101 id. 427.

The question of the allowance of interest is not free from difficulty. It is stated in the briefs of the parties opposing the claim, that the claim exhibited does not demand interest. I have not been furnished with such claim, and cannot determine as to the •correctness of that statement. Upon the evidence, however, I ^cannot find support for the allowance upon the claim of Flora E. Hartman for her services. It is difficult to see any' material dis-" tinction between the facts of this case and the facts in the case of Littell v. Ellison, 44 St. Rep. 22, which can aid the claimant. It may be that the facts in this case are less favorable to the requirements which must exist before interest can be allowed than in the Ellison Case. In the Ellison Case there was á breach of contract at the date of the death. In this case the evidence discloses, and the referee has reported, that, if Mrs. Hartman did not1 sell her property during her lifetime, Flora was to have her pay out of it after her mother’s death. The intention was, evidently, that, the claim should be paid in the course of administration, as a claim against the estate; and the claim being an unliquidated one, to be adjusted and paid in the course of administration, it will not draw interest.

The statute of limitations is not a bar to the claim of Flora E. Hartman, for services, or any part of it; and whether it may be a bar to any portion of the Douglas Hartman claim may better be determined after a rehearing, which will be necessary on account of the error of the referee in striking out the evidence of Flora E. Hartman, as above stated.

Motions denied and rehearing ordered.


author: McAdam, J.

text:
    Henry M. Taber et al., Resp’ts, v. Manhattan Railway Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed October 24, 1895.)

    Contempt—Injunction against bail1way— Condemnation proceedings.
    The refusal of a railway company to obey an injunction against its operation, or the alternate provision in the order for the payment of a certain sum as the value of the easements, is not punishable as a contempt, "Where the company instituted proceedings to condemn the easements and paid the award therein made before the contempt proceedings were commehced.
    Appeal from an order, finding the defendants guilty of contempt in disobeying an injunction contained in the judgment.

      Davies & Rapallo and E. G. James, for app’lts; J. E. Parsons, for resp’ts. i
   McAdam, J.

Without determining the effect of the various extensions and Stays, but assuming that the court below was right in deciding that there had been a violation of the injunction-, questions arise that require serious reflection. The fine imposed was $14,750, being the difference between $30,250, the amount awarded in condemnation proceedings, and $45,000, the sum for which the defendants were, by the judgment of this court, permitted to purchase the easements they had wrongfully appropriated to their own use.

It is objected that the fine was arbitrarily imposed, and not assessed upon legal principles. The fine authorized is limited to indemnification, and when the actual loss or injury is not shown it cannot exceed the costs and $250 in addition thereto. ■ Code, § 2284. Where actual loss or injury is claimed, the proof thereof must be according to the rules of law applicable to an action for such damages. Dejonge v. Brenneman, 23 Hun, 332; Sudlow v. Knox, 7 Abb. Pr. (N. S.) 411; Luedeke v. Cowrsen, 3 Misc. Rep. 559; 52 St. Rep. 516; Tinkey v. Langdon, 60 How. Pr. 180; Simmonds v. Simmonds, 6 Week. Dig. 263. The only proof furnished here is in the fact that the amount of the award in the condemnation proceedings was §14,750 less than the sum at which the defendants were, by the judgment o£ this court, privileged to purchase the easements. The question, then, is whether these two records legally establish plaintiffs’ loss or injury to the extent, claimed.

The action for past damages and injunctive relief was commenced before the condemnation proceedings were instituted, and no doubt led to their institution, with the probable design that, if the commissioners made an award more favorable to the defendants than that of this court, as a condition of/obviating the injunction, they would act upon such award, and prevent the further prosecution of the action. Whether such a course is commendable need not be discussed, for a party proceeded against is entitled to use all legal avenues of escape from his pursuer. The commissioners made the more favorable award to the defendants, and they paid the amount into court, thereby acquiring title to the easements long before the proceeding to punish for contempt were instituted. The adjudication in condemnation proceedings established for all time and every purpose the value of the easements taken. Oberfelder v. Met. El. R. Co., 138 N. Y. 181; 52 St. Rep. 158.

In an action for injunctive relief, the provision for the payment of the fee damage, as the equivalent of the property takien in avoidance of the injunction, is putely matter of grace or favor to the defendants. It is simply a privilege of which they may avail themselves, rather than an option which they can be held to have accepted as a binding election on their part by the mere failure to stop their trains or remove their structure. Such payment is at the pleasure of the defendant, and neither party has the right to compel the court to make the provision. Galway v. Met. El. Ry. Co., 128 N. Y. at page 149; 40 St. Rep. 145; Eggers v. Man. Ry. Co., 27 Abb. N. C. at pages 469-471; 42 St. Rep. 123; Mead v. Railroad Co., 24 N. Y. Supp. at page 909. It is inserted more to serve public convenience that any equity due to the defendant. The plaintiff’s remedy in such a case is to recover damages to the rental value for the time the easements were wrongfully used, and to enjoin their further use until title is acquired; the relief being a money judgment for such damages, and an injunction to prevent further trespasses.

The incidental fixing of a sum at which the defendant may purchase the easements is to facilitate the acquirement thereof without the expense or delay of new proceedings, not to supersede or impair the constitutional mode of obtaining the property by condemnation. Such a finding does not operate as an adjudication on value, in the sense which concludes the parties to the record. It becomes operative only in cases where the defendants avail themselves of the.privilege accorded, and then only by the voluntory act. It is in the nature of a continuing offer to sell,—inefficacious without binding acceptance,—and bears but slight resemblance to the judgment which creates an estoppel and is available in subsequent proceedings as res adjuclicata. That the accord of a judgment, in order ,to conclude either of the parties litigant, must be conclusive upon both, is elementary. 1 Grreenl. Ev. § 524; Nelson v. Brown, 144 N. Y. 384; 63 St. Rep. 697.

Condemnation proceedings are to enable the defendant to acquire title to the easements by making full compensation therefor, and the question of value presents the main, if not only, issue for determination. Hence, the award of the commissioners is conclusive upon the subject. Oberfelder v. Railroad Co., supra. The pendency of an action for injunctive relief (In re Metropolitan El. Ry. Co., 55 Hun, 198, 200; 27 St. Rep. 576), or a judgment in equity (In re Metropolitan El. Ry. Co., 12 N. Y. Supp., at page 504), is no bar to proceedings for condemnation. This is so on principle as well as authority. When the commissioners appointed in such proceedings award the damages, and the same are paid, the equity action as to injunctive relief abates, for it yields in this respect to the statutory remedy. Id. The judgment in the equity action being no bar to the condemnation proceedings, and not conclusive therein on the subject of value, it follows that the controlling evidence thereof is that furnished by the award of the commissioners, and that alone. There is, therefore, nothing in the case establishing loss or injury to the ■ extent of $14,750, and the fine imposed and fixed at that sum is without warrant in law, for which reason, if no other, the order appealed from would have to be reversed. ' •

If we placed our decision solely on the ground of excessive damages, it might be proper to remand the case to the special term for a reassessment; but another and more serious question presents itself. The injunction issued by this court ended, by-force of law, November 27, 1893, when the commissioners’ report was confirmed and the award paid ( Watson v. Met. El. Railway Co., 29 St. Rep. 513; Manhattan Railway Co. v. Taber, 60 St. Rep. 781; Gardner v. Gardner, 87 N. Y. 14, 17, 18), and contempt proceedings cannot be maintained, after an injunction has been dissolved, abrogated, or otherwise ended, to punish a party for a previous violation of the mandate (Peck v. Yorks, 32 How. Prac. 408 ; Moat v. Holbein, 2 Edw. Ch. 188: Murad v. Thomas, 6 St. Rep. 662). In Watson v. Railway Co., supra, the general term of this court held that it was error to refuse to permanently dissolve the injunction in an equity action against the elevated railroad, similar to this action, after the confirmation and payment of the award of commissioners in condemnation proceedings. The ground of the decision was that the acquisition by the railroad company of title and right of possession to the property, which the injunction was intended to protect, ipso facto ended the injunction. Sedgwick, O. J., said:

“The substantial provision was that, when the plaintiff ceased to own, and the defendants became owners, the injunction should not be continued further. The judgment did not intend that, if the defendants became owners, on whatever terms, they should not enjoy the legal consequences of being owners! * * * In my judgment, if, in fact, the defendants have become the owners of that part of the plaintiff’s easement, which the injunction prevented them from further using, the plaintiff has ceased to have a right to an injunction.”

In Railway Co. v. Taber (plaintiff’s appeal from stay under section 3379 Code; supra), Follett, J., said:

When the final order has been entered, and the award has been paid or deposited, the plaintiff is entitled to the possession of the property condemned.”

In Peck v. Yorks, supra, the court held that the reason of the rule which prevents a prosecution for a statutory offense, or an action to recover a penalty, after the repeal of the statute which made the act criminal or imposed the penalty, “ applies with full force to the case of an injunction vacated or modified, and all acts in violation of it previously.” Judge Johnson said:

“An injunction, which is but an order of the court, can have no more force or extended operation after it is set aside or modified than a statute repealed or modified, in regard to acts previously done. In either case, the rule being abolished, the infraction of it is abolished also, and nothing remains on which a conviction can be based.”

The injunction having been abrogated and dissolved, by operation of law, November 27,1893, the order made by Judge Dtjgro on February 27, 1894, did not and could not revive it, or save any rights under it. The order punishing the defendants for contempt was not made until June, 1895, long after the injunction had spent its force. It is, therefore open to the objection held to be fatal in the cases last cited.

The condemnation proceedings resorted to by the defendants hav.e long beSn recognized as a proper alternative for the avoidance of the injunction in elevated equity suits (Story v. Railroad Co., 90 N. Y. 179; Glover v. Railway Co., 51 N. Y. Supr. Ct. 1; Blumenthal v. N. Y. E. Railway Co., 42 St. Rep. 683; American Bank Note Co. v. New York El. R. Co., 129 N. Y. 252; 41 St. Rep. 531; Galway v. Met. El. Railway Co., 128 N. Y. 139; 40 St. Rep. 145; Lewis, Em. Dom. § 634), and this whether the suit is commenced before or after the condemnatiou proceedings are instituted—the commissioners’ award in either instance being regarded as controlling in its effect when followed by payment in some form authorized by law. The jurisdiction of such proceedings rests exclusively in the supreme court. Const, art. 1, § 7; Code¡ § 3360. The court has no power directly to interfere with or limit the exercise of the right of eminent domain. Whether such right shall be put in motion for. any particular purpose, and' whether the exigencies of the occasion and the public welfare justify its exercise, are questions which rest entirely with the legislature. Beekman v. Railroad Co., 3 Paige, 45; Harris v. Thompson, 9 Barb. 350; Railroad Co. v. Brainard, 9 N. Y. 100; People v. Smith, 21 id. 595 ; In re Fowler, 53 id. 60; In re Union Ferry Co., 98 id. 153: Gilmer v. “Lime Point,” 18 Cal. 229; Lent v. Tillson, 72 id. 404; Water Works Co. v. Burkhart, 41 Ind. 364; Haverhill Bridge Prop’rs v. County Com'rs of Essex, 103 Mass. 120; Coster v. Tide Water Co., 18 N. J. Eq. 54, 518.

It would seem, therefore, that the condemnation proceedings in the supreme court, followed by payment of the award, effectually terminated this action so far as injunctive relief is concerned. For these reasons the defendants were not amenable to process for contempt of this court for the acts complained of, and the order appealed from must be reversed, with costs.


author: Follett, J.

text:
    Sarah L. Myers et al., Resp’ts, v. Thomas Bolton et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Tenants in common—Liability inter se.
    Lessees who, while in possession of the demised premises, become ten-, ants in common thereof with other parties, must account to such parties for their portion of the subsequently accruing rents.
    2. Contract—Construction.
    Where the owner of land leases the right to cut ice from a pond thereon and then leases the land to another person without any mention of the previous lease, and the latter lessee, who was the lessor’s agent to collect, rents, accounts for the rents paid by the former lessee, such course of dealing establishes the fact that the pond was not intended to be included in the subsequent lease.
    3. Accounting—When action lies.
    An action for the recovery of such a sum of money as may be found due on an accounting will not be dismissed upon the trial on the ground that an action at law might have been maintained for the recovery of the money demanded.
    Appeal from a judgment in favor of plaintiffs.

      Alex. Thain, for app’lts; James R. Marvin, for resp’ts.
   Follett, J.

This action was begun April 29, 1889, to compel the defendants Thomas Bolton, Henry B. Bolton, and William H. Birchall, -to account for moneys collected and received from property owned in common by the parties to the action. John W. Bolton and Catharine E. Bolton were joined as defendants because they refused to be joined as plaintiffs, but no judgment was demanded or rendered against them. All of the defendants served a joint answer, and the referee, in his decision, stated the accounts as between all of the parties to the action, finding that Sarah L. Myers, Mary A. Littlewood (plaintiffs), John W. Bolton, Catharine E. Bolton (two of the defendants), were each entitled to recover of Thomas Bolton, Henry B. Bolton, and William H. Birchall $3,826.49, with interest from August 1, 1894. A judgment was entered in favor of the plaintiffs for the amount found due them, but no judgment has been entered in favor of John W. Bolton and Catharine E. Bolton, or either of them. All the testimony in respect to the accounts was given by Thomas Bolton and Henrv B. Bolton, two of the appellants. There was no conflict therein, and the appellants are not in a position to urge that the referee should not have believed the evidence. The only other testimony related to the value of legal services rendered upon.thé retainer of the defendants in matters arising ont of the estate, and was given by four attorneys, three of whom were the attorneys and counsel who conducted the trial, and whose names appear on the briefs in this court. While many of the referee’s findings of fact were excepted to by the appellants, none of them were challenged on the argument or are challenged in the brief, except that part of the sixth by which it is found that Thomas Bolton and Henry B. Bolton received $1,000 from William H. Birchall for the use of a house rented to him by them. Thomas Bolton testified that the Bronx Company, hereinafter mentioned, had an account with Birchall; that the rent was charged to him in that account, and credited to the estate. Under this evidence the referee correctly found that the rent had been paid by Birchall, and had passed into the hands of the three appellants who composed the firm of the Bronx Company.

The finding of fact must be accepted by this court aá supported by the evidence. In 1880, Ann Bolton was the owner of a tract of land at Bronxdale, which was divided by the Bronx river; the land on the west side being in the city of New York, and that on tho east side in the town of Westchester. On this land were valuable mills, used for the purpose of manufacturing. She was also the owner of several houses at Bronxdale. Prior to March, 1880, she leased to A. C. Chandler the right to cut ice from a pond on her land, for $600 per year. The lessee enjoyed the privilege and paid the stipulated rent until July 9, 1889. In March, 1880, Thomas Bolton, Henry B. Bolton, and William H. Birchall were partners under the firm name of the Bronx Company, and March 1, 1880, Ann Bolton leased to the firm a portion of the tract of land divided by the Bronx river for five years from March 1, 1880, with the privilege of ten years, for the annual rent of $4,500, payable yearly. The pond from which the privilege to cut ice had been previously granted to Chandler was part of the premises leased to the company, but from the date of the lease to the death of Ann Bolton the Bronx Company collected the rent from Chandler, and credited it to Mrs. Bolton. September 29, 1882, Ann Bolton died, seized of all this property, 'and leaving Thomas Bolton, Henry B. Bolton, John W. Bolton, sons, Catharine F. Bolton, Emily B. Norris, Sarah L. Myers, and Mary A. Little wood, daughters, her only heirs and next of kin. William H. Birchall, a nephew, had been adopted by her, and reared in the family as her son. She left a will, by which she bequeathed to her daughter Catharine her household furniture and clothing, devised to Henry B. Bolton a house and lot, and bequeathed $1,500 to her executors, to be invested, and the income to be paid to the trustees of a church. She devised and bequeathed the remainder of her estate to her seven children and to her adopted son, to be divided equally among them. She nominated her sons Henry B. and Thomas Bolton, as executors, giving them power' to sell and convey any or all of her real estate at public or private sale. November 20, 1882, the will was duly admitted to probate by the surrogate’s court of the county of Westchester, and letters testamentary thereto were issued to the executors therein nominated who immediately entered upon the discharge of their duties, and have ever since continued to act as executors. From th.e death of the testatrix until July 9,. 1889, one of the houses left by her was rented to and occupied by William H. Birchall for $150-per year. In 1887, Emily B. Norris died intestate, leaving no descendants, but leaving a husband, to whom letters of administration on her estate were granted October 11, 1889, and November 22, 1889, he assigned his wife’s share of the rents arising from the estate of Ann Bolton to Thomas Bolton and Henry B. Bolton. On the 9th of July, 1889, the greater part of the real estate left by the testatrix was condemned by the ci¡ty of New York, under chapter 522 of the Laws of 1884, for the pur-' pose of establishing Bronx Park and Parkways, for which $267,-324.40 damages was awarded, paid, and divided among the devisees according to their respective interests. In April, 1887, four of the buildings on the property leased to the Bronx Company were destroyed by fire, on account of which $28.000 was received by the company from'insurance companies for the loss. Thereafter the firm erected new buildings at a cost of $5,501.05 more than the sum received for insurance.

Upon the death of the testatrix the title to her real estate vested in the eight devisees, subject to be divested by the execution of the power of sale contained in the will; and until the power was executed the deviseés were entitled to the possession of the realty, subject to then existing leases,' and were entitled to collect the rents from the lessee, and receive the profits from that portion not leased for their own use. The executors, as such, had no power to collect the rents accruing after the death of the testatrix on the leases made by her, orto receive the income of the portion of the realty not held under such leases. In re Bolton, 5 Misc. Rep. 475; Clift v. Moses, 44 Hun, 312 ; 7 St. Rep. 691; affirmed, 116 N. Y. 144; 26 St. Rep. 405. The Bronx Company was the agent of the testatrix in her lifetime for the collection °of the rents from the occupants of the property, and was accustomed to credit her in account with rents due from the firm. After her death the company credited “Ann Bolton’s Estate” with the rents due'from. the firm in an-account kept with the estate, and also credited to the estate in that account the rents collected from other tenants occupying the land of the estate. This seems to have been done by the acquiescence'of all the devisees. In this account the firm charged the estate with taxes, insurance, and other expenses paid. By this course of dealing the members of the firm became liable to the other devisees for their just proportion of all rents collected after the "death of the testatrix, subject to the legal charges for moneys paid out. The amount due the estate of Ann Bolton for rents collected by the firm prior to her death belonged to her executors, who have accounted therefor in the surrogate’s court. Such rents are not involved in this suit. The appellants insist that the accounting should have been' upon the theory that the parties to this action were tenants in common, and that none of them was liable to the others for use and occupation of the realty. The error of this position arises -from the fact that the Bronx Company occupied a large share of the realty from the death of the testatrix to July 9, 1889, when it was taken by the city, under a lease by which the firm agreed to pay rent at the rate of $4,500-per year. The individual members of this firm were not in possession as tenants in common of the realty covered by this lease, but the firm was in possession as tenants upon a stipulated rent, and the members of that firm must account to the owners of the property upon the rules applicable to cases between landlord and tenant. As tenants holding under a lease, the firm cannot charge for improvements made by it, nor for expenses incurred for the restoration of the buildings in excess of the amount received for insurance. Whether the policies from which the appellants received $28,000 insured the interests of all the owners or only the interest of the firm does not appear, but that questioti. is not material, because appellants have not been charged with that sum, through credited with premiums paid. The remainder of the realty not covered by the lease to the Bronx Company was leased to other persons, the' tenants paying rent at stipulated rates,, which was collected by the company. For such rents the defendants are liable to account to their cotenants upon the principles applicable to cases between tenants in common.- The case does hot Show that the appellants made any .improvements upon the property not covered by their lease, or that they expended any sums on account thereof which were not credited to them by the referee.

It is urged that the three appellants? should not have been charged for rents severally collected by the two executors; Thomas and Henry B.' Bolton. This would be an unanswerable proposition had it not appeared by the evidence of the defendants themselves that the amounts so collected were paid over to the firm of which the three were members. The firm having received this money, all the partners, knowing the source from which it came, are liable to account therefor to the persons entitled thereto.

It is urged that Birchall should not have been charged for the rent of the house occupied by him. He was not directly, as an individual. He had agreed to pay a stipulated rent for the house, and it was credited in the account of the firm with the estate "as received. Birchall is liable to his cotenants for rent which he had agreed to pay for any part of the property.

It is urged that the referee erred in charging the appellants with the amount which they credited the estate as received from Chandler, upon the ground that the pond from which the ice was cut was on the land leased to the Bronx Company. Although the appellants’ lease did, in terms, cover the pond, it is plain, from the course of dealing between Ann Bolton in her lifetime and the firm, that it was understood between them that the rent due from Chandler did not belong to the company, but to her; and after her death the rént was collected by the firm from Chandler, and credited to the estate, thus clearly showing that the rent from Chandler did not belong to the Bronx Company.

The appellants insist that the court erred in not allowing them the amount which was found due to the executors from the estate of the testatrix on their accounting in the surrogate’s court. To this there are several answers: (1) The amount found due the executors on the accounting was not established on the trial of this action. (2) That amount, whatever it was, is not a claim in favor of the three appellants,- but it is a claim of two of the appellants in their representative capacity. (3) This independent claim of the executors against the estate is not set up in the answer in this action as a counterclaim.

There is no reason for dismissing the complaint against Catharne E. and John W. Bolton. No claim was made against them, and they were.made parties defendant simply because they would riot join as plaintiffs. They filed no exceptions, and have not appealed.

It was not error to refuse to credit the appellants with the $1, 819.63.paid by Thomas Bolton, March 31, 1887, on the bond held by Sarah L. Bolton, for this sum had been charged in the executors’ account" rendered in the surrogate’s court, and had there been allowed to them.

It appears that one Gfirsch held a mortgage upon three houses belonging to the estate, which was given by Ann Bolton in her lifetime. One of these houses was devised to Henry B. Bolton, who, and Thomas Bolton, agreed between themselves that $1,500 of the principal sum should be charged upon Henry’s house and $500 should be charged, upon the premises devised to the eight devisees. This mortgage had been paid by the firm, and charged on its books, three-fourths of the sum paid to Henry B. Bolton and one-fourth of it to the estate, according to the agreement; and the referee credited the appellants' with the amount charged by them against the estate. In this there was'no error.

After issue was joined in this action, the parties stipulated that the trial involved the examination of a long account, and that it be referred to William M. Hoes to hear and determine, and an order was entered. On the trial the defendants moved that the complaint be dismissed on the ground that the cause of action set out therein was legal, and not equitable, ones. An action for the recovery of such a sum of money as may be found due on an accounting will not be dismissed upon the trial on the ground that an action at law might have been maintained for the recouery of the money demanded. An action for the recovery of this sum, either at law or through an accounting, required the examination of a long account, and could not be tried before a jury. Under the reformed procedure-such actions are not dismissed because erroneously named, or because allegations appropriate to a legal cause of action are contained in the complaint in a suit for equitable relief.

The action seems to have been carefully and fairly tried and disposed of by the learned referee, and we-find no error in the record calling for the reversal of the judgment, which should be affirmed, with costs.

All concur.


author: Lewis, J.

text:
    Roger Kane, as Administrator, etc., Resp’t, v. Mitchell Transportation Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Master and servant—Fellow.
    A deck hand of a vessel, in discharging a cargo of wheat into an elevator, is not a fellow servant of a scooper employed by the superintendent appointed by the elevator company.
    8. Bailases—Excessive.
    Where the deceased, who was a sober, industrious, unmarried man, about twenty-six years of age, and earned about (1400 during each season of navigation, left a widowed mother and adult brothers and sisters, a verdict for $3000 damages for his death was held not to be excessive, though he was not shown to have ever have contributed to their support.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      F, E. Tarsney, for app’lt; John ■Laughlin, for resp’t .
   Lewis, J.

The deceased, Edward O’Toole, on the 22d day of October, 1892, was working as a scooper, assisting in unloading a cargo of grain from a steam barge, known as the “A. Folsom” which belonged to the defendant. The grain was being elevated into the Evans elevator, in the city of Buffalo. While thus engaged, a piece of timber, belonging to and used upon the deck of the vessle, was negligently allowed to fall down the hatchway of the vessle into the hold by one of the deck hands of the vessel. In fallgni, it struck and killed the deceased. The deck hand was, at the thing ,in the employ of the defendant, working upon the deck of the vessel, and had occasion to move the piece of timber. There is no controversy as to the foregoing facts, and no question is made as to the deceased being free from negligence contributing ot his death.

Two questions, and two only, are agreed by the appellant’s counsel. It is his contention that the deceased and the deck hand were both in the employ of the vessel, and were therefore fellow-servants. The business of transferring grain from vessels into elevators at the port of Buffalo has been carried on for years by all the elevators of the city in the following manner.

At the opening of navigation in the spring of the year, each elevator appoints what is known as a .“boss scooper” for the season of navigation. He is given the entire charge of elevating grain out of vessels into the elevator. For that purpose he has charge of that portion of the machinery of the elevator which is used in connection with the vessel. He employes and discharges and pays his assistants, who are known as “scoopers.” Neither the elevator nor the vessel has anything to say or do as to whom he shall employ. He, with his men, attends to removing the grain from the hold of the vessel. A uniform price for this work is charged by all the elevators of the city. The charges are paid by the vessel. As a matter of convenience to all parties concerned, Mr. Cook, who is the general secretary of the association of the elevators of the city, receives from all the vessels the money paid for elevating grain, and, at the end of each week, he pays to the boss scooper his proportion of the moneys so received during the week, and pays the balance thereof to the elevator. The proportion to which each .is entitled is fixed by agreement between the elevator and the boss scooper at the commencement of the season. The boss scooper divides the money paid to him among the scoopers in his employ, pro rata, according to the number of hours each has worked during the week, retaining therefrom to himself an amount equal to that coming to the scooper who has worked the greatest number of hours during the week. Neither the master nor the owner of the vessel has anything to do with selecting the elevator. That is. determined by the consignee of the cargo. The master places his vessel at the elevator, and attends to moving his-vessel when it becomes necessary so to do to facilitate the unloading of the cargo. After the scoopers have removed all the grain they can with their shovels, the vessel’s crew attend to-sweeping the decks and the hold of' the vessel. The work of sweeping the decks is sometimes commenced by the vessel’s crew before all the grain is removed. The boss scooper has-no supervision or control over the vessel or its crew, nor of 'the work performed by them in about the vessel, while the-work of unloading is in progress.

A Mr. Eagan was the boss shoveler at the Evans elevator, and was in charge of the work of unloading the cargo of the Folsom at the time of the accident. He employed his assistants. including the deceased. It is true, as claimed by the appellant’s counsel, that the scoopers and the crew of this vessel were engaged in a common undertaking. The scoopers were removing grain out of the vessel. The' crew were sweeping up-its decks. All of this work was necessary to be done to put the vessel in condition to take on and transport another cargo, it cannot, however, with any propriety be claimed that they had a common employer. While the money received by the scoopers came to them indirectly from the vessel, it was not •received by them pursuant to any contract or arrangement between them and the owner of the vessel. The latter, so far as appears, had no knowledge as to the portion of the elevator charges the scoopers were entitled to. Had the owners of the Foslom refused to pay for elevating the grain, neither the deceased not Eagan could have maintained an action against the vessel for services performed.

The defendant would not have been liable for the negligent act of a scooper while he was engaged in removing the cargo. The deceased and the deck hand were not, we think, fellow servants, within the meaning of the rule exempting an employer from liability for an injury to one employe by the act of another. Under the evidence, the case was properly submitted to the jury. Our conclusion is sustained by the following cases: Suenson v. Steamship Co., 57 N. Y. 108; Standard Oil Co., 118 id. 571; 29 St. Rep. 855; Johnson v. Netherlands. Am. Navigation Co., 132 N. Y. 576; 13 St. Rep. 783.

The appellant’s counsel contends that the verdict was excessive. He claims that, under the evidence, the plaintiff was pot, in any event, entitled to more than nominal damages. The verdict was for $3,000. The deceased was twenty-six years old at the time.of his death. He was unmarried. He was an industrious, sober man. -He had been working for a number of years, during the season of navigation, in the city of Buffalo, shoveling grain from elevators. He earned at that busiuess, upon an average, about $400 a season. He left a widowed mother, sixty-five years of age, who resided in Ireland with a brother of the deceased. He had no property. He left brothers and sisters, some of whom reside in Ireland; the others, in this country. All of them were adults, aud were supporting themselves. The deceased was the youngest of the family. He was not shown to .have ever contributed anything to the support ©f his mother or his other relatives. Under these circumstances, it is claimed by the appellant that the next of kin suffered no pecuniary loss by his death.

It is impossible to lay down any well-defined rule to guide courts and juries in determining what pecuniary damages, if any, the next of kin sustain in these negligence cases. Whether a young child will live to arrive at an age when he will be able, by his labor, to accumulate property, and, if so, whether his next of kin will ever derive any benefit from his earnings, cannot in any way be demonstrated; and yet verdicts of substantial amounts, in actions for the negligent killing of small children, are sustained. And such verdicts are sustained in the case of the death of people who are quite advanced in years. While the deceased had not been in receipt of an income which enabled him to lay by very much of his earnings, what his'income might have been in after years, had he lived, cannot, of course, be known. The jury were furnished all ;he light upon the subject that the circumstances of the case permitted, and they determined that the next of kin had sustained $3,000 damages by the dee’eased’s death. That sum is probably larger th an we would have awarded, had the question been before us for decision. The jury, upon whom, under our system of administering justice, is imposed the duty of deciding such questions, determined the amount, and ¿we cannot say that it was so large as to indicate that any improper influence probably entered into their deliberations.

The judgment and order should be affirmed.