text:
    Nen York Central and Hudson River Railroad Company, App’lt v. Louis F. Haffen, as Commissioner, etc. et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 15 1895.)

    Injunction—Preliminary.
    The filing of a map by the board of street opening, showing a proposed street, will not be enjoined pendente lite in an action by an abutting property owner where such filing will not harm the owner if it shall finally be determined that the city has no right to open the street described therein.
    Appeal from an order, denying a motion to continue a temporary injunction, and vacating the same.

      Ira A Place, for app’lt; Geo. L. Sterling, for resp’ts.
   Per Curiam.

It is the plaintiff’s contention that the maps showing certain streets through and over property belonging to it should not be filed by the defendant, because :

“E'irst. The plaintiff having acquired and devoted the lands for depot and station purposes, the city has no authority, without express statutory permission, to take such parcels for any other public use. Second. The city is prohibited by section 957 of the consolidation act from laying out streets through or upon the depot or station grounds of any railroad, * * * unless with the consent of the said railroad company. * * * ”

The claim of the plaintiff that the parcels of land in controversy constitute a part of the station of the Grand Central Depot is controverted by the defendants, and, after an examination of the record, the conclusion is reached that this question ought not to be passed upon by the court upon affidavits; that there ought to be, in justice to both parties, a decision of the controverted question of fact based upon testimony resulting from a trial of the issues, and not upon ex parte affidavits ; and that such trial should be unembarrassed by any suggestions on this review which should appear to favor the contention of one or the other of the parties. The affirmance of the order without other comment will" accomplish this result, and at the same time work no injury to the plaintiff should its contention be sustained by the courts, for the filing of the maps will not harm the plaintiff if it shall finally be determined that the city has no right to open the streets described therein. It has been held that the filing of such a map does not create such a cloud upon title as will relieve a purchaser from completing his purchase. Forster v. Scott, 136 N. Y. 577; 49 St. Rep. 699; Wagner v. Perry, 47 Hun, 516; and certainly it cannot harm the plaintiff, as pending the final disposition of the suit it will have no occasion to dispose of the property affected. An injunction pendente lite should not, therefore, be granted.

The order should be affirmed, with $10 costs and printing disbursements.


source: Caselaw Access Project

author: Yan Brunt, P. J.

license: Public Domain

text:
    Hannah Nirdlinger et al., Pl’ffs, v. Meyer A. Bernheimer et al., Resp’ts, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Tenants in common—Dealings between.
    Where several persons buy land, taking title in the name of one of them, to manage, etc., a purchase by him from one of the others is not presumptively fraudulent; nor is he compelled to show affirmatively, in order to sustain the transaction, that it was just and fair as in the case of trustee- and cestui que trust.

    Appeal from a judgment, entered in favor of the tenants.

      James W. Hawes and L. M. Linde, for app’lts; Geo. H. Yea-man, for resp’ts.
   Yan Brunt, P. J.

Prior to December, 1855, Mayor Arnold, the firm of Bernheimer Bros., composed of Isaac Bernheimer, Herman Bernheimer, and Simon Bernheimer, and the firm of Arnold, Nusbaum & Nirdlinger, composed of Simon W. Arnold, Ernst. Nusbaum, and Jacob Nirdlinger, purchased certain lands in Minnesota, the said Mayor Arnold and the said two -firms having a. one-third interest each in the enterprise. The title was taken partly in the name of Isaac Bernheimer, partly in the name of Simon W. Arnold, and partly in the joint names of the two. The title subsequently, and before the commencement of this action, became vested solely in Isaac Bernheimer. On the 24th of December, 1855, the parties interested in the enterprise entered into an agreement for the purpose of avoiding any doubts or uncertainties in regard to the rights of the several subscribers in the said lands, and to make the same secure to all the subscribers, their heirs and assigns. In that agreement, Isaac Bernheimer and Simon W. Arnold declared that they held the said lands and premises in trust for the-purpose of superintending, managing, selling, and conveying the same, and any part thereof, from time to time, and upon such terms as in their judgment should seem best; and for the purpose of collecting and receiving the rents and profits thereof, which they were to divide and pay over, together with the proceeds arising from such sales, between the several subscribers, in the proportions mentioned ; and also for the purpose of making partition and division of the said premises between these subscribers, and to grant and convey, by good and sufficient deed of conveyance^ the part or portion set off and allotted to each subscriber individually, their heirs and assigns, or otherwise, as might be agreed upon by the parties. While Jacob Nirdlinger was a member of the firm of Arnold,'Nusbaum & Nirdlinger, at Philadelphia, Frederick Nirdlinger was a subpartner with Jacob, but was not a member of the firm. On the l7th of January, 1859, the partnership between Jacob Nirdlinger and Frederick Nirdlinger was dissolved, and thereupon they executed an instrument in writing declaring that the said Frederick Nirdlinger and the said Jacob Nirdlinger were equally interested in said Minnesota lands. On the 1st of February, 1859, the parties to the instrument of the 24'h of December, 1855, executed another instrument in respect to certain portions of their land, defining their interests, etc., therein. Frederick Nirdlinger died intestate in 1873, before the commencement of this action. In November, 1882, this action was commenced by the plaintiffs, as his heirs and widow, to establish their right in the lands in question. Isaac Bernheimer never seems to have been apprised of the interest of Frederick Nirdlinger in the portion which he supposed to belong to Jacob Nirdlinger, except just prior to the commencement of this action. In July, 1887, Jacob Nirdlinger and wife conveyed his interest in the lands in question to Isaac Bernheimer, for the consideration of $9,000. On the 19th of November, 1889, judgment was rendered in this action, holding that Frederick Nirdlinger had an interest in the property and assets, and, to ascertain what the interest was, the plaintiffs had a right to an accounting as against Bernheimer. From that interlocutory judgment, Bernheimer appealed to this court, where it was reversed. ' 11 N. Y. Supp. 609. From such reversal- the plaintiffs appealed to the court of appeals, and- in April, 1892, the court of appeals reversed the judgment of the general term, and sustained the referee. 30 N. E. 561.

In February, 1893, the appellant Augusta Nirdlinger and others served a supplemental answer, claiming relief as against their co-defendant Isaac Bernheimer, the' object of this answer be- ' ing to set aside and vacate the deed of Jacob Nirdlinger to Isaac Bernheimer, and to hold him responsible for large sums of money alleged to have been realized from sales by him of the lands in question, and converted it to his own use, and for fraudulent concealment of the real amounts alleged to have been received by him. Bernheimer replied, and the issues raised by these pleadings as between the defendants were the main issues which were disposed óf before the referee. The grounds upon which it was sought to set aside and vacate the deed from Jacob Nirdlinger to Isaac Bernheimer were that it was obtained by fraud, and that Jacob Nirdlinger was incapable of the transaction of business at the time of the making of the deed. Upon the trial before the referee of the issues raised by the supplemental answer, the same was dismissed upon1 the merits, and the issues raised by the said answer were adjudged and determined against the appellants, the widow and heirs and administrator of Jacob Nirdlinger. The referee also passed the accounts of Isaac Bernheimer and his executors. From -this judgment this appeal is taken.

The main question presented upon this appeal is as to the correctness of the referee’s ruling in refusing to find the contract of sale and the deed of conveyance made by Jacob Nirdlinger to Isaac Bernheimer, for one-half of his interest in the money and lands belonging'to said trust, to be fraudulent, and procured by Bernheimer from Jacob Nirdlinger by fraudulent representations and concealment, and that the same were unfair, inequitable, and unjust, and ought in equity to be set aside.

After an examination of the evidence pertinent to this issue contained in this voluminous record, and a careful consideration of the arguments and briefs of counsel submitted upon the hearing of this appeal, we might very well rest our decision upon the grounds stated by the referee in his opinion. It seems to us that the whole structure which has been built up by the appellants rests upon a false assumption of the relations which existed between Jacob ISTirdlinger and Isaac Bernheimer. They aré likened to those existing between a trustee and cestui que trust, strictly speaking. Upon an examination of the relations of the parties to this enterprise, it will be seen that the sole relation which existed between them was that of partners in this real-estate enterprise, and that the sole duty which each partner owed to the other was that of fair dealing. One partner could not take any secret or unlawful advantage of the situation to the detriment of the others • but, in his dealings with the others in reference to the copartnership property, there is no presumption of fraud; neither is he compelled to show affirmatively, in ■ order to sustain the transaction, that it was just.and fair as in the case of a trustee and a cestui que trust. One partner has the right to buy out the interest, of his copartner in the joint enterprise; and, unless he misleads him or deceives him by some action upon his part, the fact that he has made a good bargain will not avoid the transaction. We-think that, when these principles are applied to the transaction between Jacob ISTirdlinger and Isaac Bernheimer in regard to the-purchase by Bernheimer of Nirdlinger’s interest, there is no difficulty in coming to a conclusion. There is no evidence whatever of the suppression by Bernheimer of a single fact from the knowledge of ISTirdlinger. He threw open his books to ISTirdlinger and his agents, one of whom was an expert accountant. Hirdlinger had independent advice. He employed his own counsel. Bernheimer refused to fix a price, and refused to make any representation in regard to the lands; and it was only at Nlrdlinger’s repeated solicitations that Bernheimer finally made-the purchase. It is also to be observed that ISTirdlinger made bis own investigation in regard to the value of this land. It is true, it is claimed, on the part of the appellant that these investigations were originally made some time before the sale was actually completed, and that there bad been a change in the condition of these lands during the intervening period ; but he sought information again after the expiration of this time, and before the transfer was made. It .is also claimed that, prior to the transfer, there were sales made of which Jacob Nirdlinger was ignorant; but these transactions were spread upon Bernheimer’s books, and Nlrdlinger’s agent had access to those books, and must have been aware of those sales. If Bernheimer was procuring a sale of these lands at a price1 so-much below their value, why could not ISTirdlinger have sold them to some one else? There, was nothing in the way, if this was so desirable a bargain, and these lands were of so great value, to-prevent him from finding other purchasers than Bernheimer.

It sought to impeach this sale by expert testimony in regard to the value of these lands where the whole title could be acquired by the purchaser,, which character of evidence is of but little weight in determining what was the value of a small undivided interest in, these lands. We might discuss in detail the evidence-which has been offered, but it would serve no useful purpose. Upon this general question, we can only state the impressions which the facts appearing upon the record have made upon our minds; and we can but repeat that Bernheim owed no active duty to Nirdlinger, and that there is no presumption of fraud because of their relations. They were simply partners in this enterprise, and Bernheimer had as much right as any stranger to purchase from Nirdlinger his interest in the lands if the latter desired to sell it. There is no evidence to be found throughout this record that Bernheimer was anxious to purchase. It was Nirdlinger whb was urging him to purchase, Bernheimer refusing to make any representations, and finally acceded to the reiterated urgent appeals upon the part of Nirdlinger that he should buy. We are not aware that under such circumstances a partner purchasing his associate’s interest in the partnership stock can be branded with fraud.

Upon the question which is presented to us in respect to the accounts of Isaac Bernheimer, as passed by the referee, we see no reason to differ from the conclusion arrived at by him.

Upon the whole case, we are of the opinion that the judgment appealed from should be affirmed, with costs.

All concur.


author: Parker, J. Yan Brunt, P. J.

text:
    The People ex rel. James O’Brien, App’lt v. Henry H. Porter et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed September 15, 1895.)

    1. Officers—Removal.
    Under chapter 577 of 1883, the failure of an officer, who holds an appointive city position to call the attention of the commissioners, upon the hearing of charges for removal, to his claim of right to the protection afforded by the statute, constitutes a waiver of it.
    2. Same—Approval.
    Under said statute, a mere showing that one served in such department and was discharged on a certain day, is not enough to establish that he served five years in the volunteer fire department, or that he was a member thereof at the time of the disbandment of the department of which he was a member.
    Certiorari to review the action of the board of charities and correction of the city of New York, in removing relator from the position of day keeper in said department for charges preferred.

      James W. McLaughlin, for relator ; Terence Farley, for resp’ts.
   Parker, J.

A prisoner having escaped from the city prison on the night of the lltli of May, 1893, the warden presented to the commissioners of public charities and corrections a written communication, preferring charges against the relator, a keeper therein, for neglect of duty. Thereupon the relator was ordered to appear before the commissioners on June 13th, when inquiry was made of him relating to the manner in which he had discharged1 his duties as such keeper, and touching the facts surrounding the escape. After the hearing the commissioners passed a resolution dismissing relator, together with others, from the service of the department.

The relator contends that, under chapter 577 of the Laws of 1892, the commissioners had not the power to remove him from such position, except for cause shown after a hearing had. The respondents in their return take issue with the allegations in the petition that the relator did not have notice of the charges, and assert that there was a hearing, and they further return that the relator did not assert upon the hearing that he was a volunteer fireman, nor do the records disclose that any such claim was ever made by liim.. As a party may waive any right which he may have, whether conferred by statute or otherwise, his failure to call the attention of the commissioners, upon the hearing which took place, to his claim of right to the protection afforded by the statute, constituted a waiver of it. It was his duty to speak, and not to keep silent until after the commissioners had taken such action as they were authorized to take as against any person not within the shelter of the statute. But if the question could be raised for the first time in a proceeding by certiorari to review the action of- the commissioners, the writ should be dismissed, because of the insufficiency of the affidavits to bring relator within the terms of the statute. The statute provides:

“ No person holding a position by appointment in any city or county of this state or who may hereafter be appointed, receiving a salary from such city and county (unless he has been appointed for a definite term), who is an honorably discharged soldier, sailor or marine. * * * or who shall have served the time required by law in the volunteer fire department of any city, town or village in the state, ,or who shall have been a member thereof at the time of the disbandment of said volunteer fire department, shall be removed from such position except for cause shown after a hearing had. * * * ”

The time required by law is five years. Laws 1848, chap. 188. The relator’s petition does not show that he served five years in the volunteer fire department, "or that he was a member thereof at the time of the disbandment of the department of which he was a member. All that it contains on the subject is that the relator “ served as a firemen in the volunteer fire department in the city •of New York, and received my discharge therefrom on the 2d day of J-une, 1852.” Whether it was an honorable discharge or not, the petitioner does not disclose, and it cannot be inferred from the language employed that the relator served the time required by law, or that he continued to be a member until the disbandment of the volunteer department, of which he says he was a member. It must be held, therefore, that the relator has failed to show in his petition that he was entitled to the protection of the statute, which he invokes in this proceeding.

The writ should be dismissed, with costs.

Follett, J., concurs.

Yan Brunt, P. J.

I concur in result. I think the relator was bound to show at the hearing before the commissioners his right to benefit of statute.


author: Van Brunt, P. J.

text:
    Edward Spencer Hall, Resp’t. v. Herter Bros., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Corporations—Contracts.
    A corporation, which succeeds a partnership, without any change in the personnel of the business, acquires all the assets, and retains an employe of the late firm under a statement that he is to continue under the old arrangement with the new corporation, will be inferred to have assumed the obligations of the firm to such employee as to an existing contract.
    3. Evidence—Letter.
    A letter, written by a book-keeper and confidential clerk of a corporation in response to a creditor’s application for a settlement, is admissible against the corporation.
    3. Same.
    Where a party is held out by the corporation as occupying a position to answer for the corporation, the corporation will be bound by any action of his, coming within the ordinary executive duties pertaining to the transaction of the business of the corporation, and no resolution of the board of directors will be necessary to clothe with vitality every word that he utters or letter that he writes.
    Appeal from a judgment on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      J. H. Seymour, for app’lt; O. K Bóuvee, Jr., for resp’t.
   Van Brunt, P. J.

William Baumgarten and William Gf. Nichols were for a number of years prior to the month of January, 1891, partners doing business as manufacturers of furniture and decorators, under the firm name of,Herter Bros. The plaintiff had been in their employ for a number of years, and in January, ' 1890, he entered into an oral contract with them, by which he was to receive five per cent, commission for obtaining and supervising the execution of contracts in the line of business in which the firm was engaged. The plaintiff was given a guaranty of $3,500 or $4,000 per year; any excess of commissions to be credited to him at the end of the year, but such commissions only to accrue when the work on the respective contracts was finished and completed. During the year 1890 the plaintiff entered into negotiations with one Elkins, of Philadelphia, for fitting and decorating his house. The plaintiff prepared estimates for doing the work, which called for $68,860, which estimates were subsequently reduced by Baumgarten to $63,860, and the contract finally taken in May, 1890, for that sum. There were subsequent contracts for additional work, making the aggregate due on the contract $127,225, which amount was in due course paid to the corporation’. In January, 1891, the form of the business was changed from a copartnership into a corporation entitled Herter Bros., Baumgarten and Nichols being the principal stockholders and officers of the corporation. There was no change in the personnel of the business after the corporation was formed. To this corporation were transferred all the assets of the partnership, but the instrument, which transferred these partnership assets did not promise to pay the partnership debts. The work upon the Elkins contract was superintended by the plaintiff, and commissions were paid upon this contract by the defendant corporation to the amount of two and one-half per cent., and this action was brought to recover the remaining two and one-half per cent.

There were two issues presented upon the trial,—one that the plaintiff was only entitled to two and one-half per cent., and the other that the defendant never promised to pay the firm’s indebtedness to the plaintiff. It is sufficient to say in regard to the first proposition that there is a flat contradiction in the evidence, and, although admissions of the plaintiff to the effect that he had agreed to take two and one half per cent, were offered in evidence, the jury found against the defendants upon this issue, and we see no reason for interfering with their conclusion.

In regard to the claim on the part of the defendant that it never promised to pay the firm’s indebtedness to the plaintiff, there-seems to be more ground for the defendant’s contention. It is true that there is no direct evidence of the defendant’s assumption of' this liability, but the jury had the right to infer that it was the intention and understanding of the parties that the defendant would be answerable to the plaintiff for the commissions upon the con tract which it was doing and completing, and which the plaintiff was supervising as its employee. There was evidence tending to prove that the plaintiff was continued by the new corporation under the same agreement, and that it was stated that he should continue with the new corporation exactly as he did before, and that he was to continue under the old arrangement with the new corporation, and continue with the same contracts he had on hand, under the same conditions. The defendant had assumed the Elkins contract, carried it out, and completed it. The plaintiff supervised the execution of the contract, the same as he had done for the firm, and upon its completion he demanded of the defendant his commissions. We think, as-was stated upon the previous appeal (31 H". Y. Supp. 692), that there was evidence from which the jury might and could properly infer that the defendant upon this contract assumed the obligations of the firm whose assets it had acquired. It is not necessary to discuss at length these questions, because they are virtually the same as were before the court upon the previous appeal, at which time the court held that there was a question sufficient to go to the jury.

Certain exceptions were taken to the admission of evidence, only one of -which it is necessary to notice, and that is a letter written on the 11th of January, 1892, by one De Costa, who was the bookkeeper and confidential correspondence clerk of the corporation, which position he had filled in the firm for years. It appears that the plaintiff made an application to the corporation for settlement, and that the letter in question was sent in reply. This letter, coming from the source from which the correspondence of the corporation ordinarily emanated, undoubtedly made it competent evidence as against the corporation. In these trading corporations, whose business is necessarily conducted much the same as that of a firm, it certainly cannot be necessary for every person who has dealings with the corporation to show a resolution of the board of directors of the corporation, for everything which is done in and about the business of the corporation, when it is attempted to bind the corporation by the action of its officials. In these days, when corporations may be formed for the transaction of any business, where a party is held out by the corporation as occupying a position to answer for the corporation, as it appears beyond question that this correspondent was, the corporation will be bound by any action of his coming within the ordinary executive duties pertaining to the transaction of the business of the corporation, and no resolution of the board' of directors will be necessary to clothe with vitality every word that he utters or letter that he writes. If a contrary rule were to be adopted, then these corporations would be mere traps for the purpose of deceiving the unwary, and be the means of using the charters conferred by the state as instruments of fraud.

The judgment and order appealed from should be affirmed, with costs.

All concur.


author: Beekman, J.

text:
    Julia M. Coffin, Pl’ff, v. William E. Leech et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed May, 1895.)

    1. Contribution—Lien.
    Where a claim for contribution arises, a lien may be declared upon the undivided shares of the co-tenants against whom such claim exists as security for the discharge of the same. ' ,
    2. Same.
    Where undivided interests are subject to the payment of a mortgage, and the owner or owners of each share are chargeable with th.e payment of an equal proportion of the same, but the owners of three such shares have paid the whole, the court has power to adjust the rights of the parties so as to remedy this injustice, especially where no rights or equities have intervened which can in any way be injuriously affected by such action.
    Action to enforce contribution for payment of the mortgage.

      Ronald K. Brown, for. p’lff; Guggenheimer, Untermyer & Marshall, for def't Harding; Horace Greaves, guardian ad litem for defendant Clarence J. Bucknam; James W. Hyde, guardian ad litem for defendant Ida I. Bucknam.
   Beekman, J.

Ezra Bucknam died seised of an undivided half of the premises in question, leaving a will under which he devised said property for the life of his wife, with directions to his executors to divide the same, upon her decease, among his four children, Julia Ann Coffin, William H. Bucknam, Elmira J. Bucknam and Helen R Yiele, with the proviso that, if either should have departed this life without leaving issue, the share of the one so dying should belong to the survivor or survivors of them. The testator appointed his wife and his son-in-law Francis A. Coffin, Samuel Leech and Hiram Y. Mason the executors of his will. The first two alone qualified. At the time of testator’s decease the property in question was subject to a mortgage for $27,500, made bv him and his co-tenant, Samuel Leech, to secure their joint and several bond for that amount. As the will contained no provision requiring this mortgage to be paid out of the personal estate, the burden of discharging it rested upon the devisees. 1 Rev. St, p. 749, § 4. The mortgage having matured, and a call having been made for its payment, the executors on, March 18, 1876, paid the sum of $7,500 on account thereof,'and on September 18; 1885, again paid a further sum of $6,250 on account, and, the owner of the other undivided half of said premises having paid his proportion, the mortgage was thereupon discharged. When the first payment was made, all of the children of Ezra Bucknam were living; but in the year 1881 his daughter Elmira died intestate, leaving, her surviving, her husband (who has since deceased) and the defendants Jane E. Bucknam and Clarence J. Bucknam, her only children and heirs at law. The money which the executors appropriated for the payment of the mortgage in question was taken by them from the personal estate of the testator, which was subject to a trust during the life-time of his widow, but upon her death was to be divided among his four children, under precisely the same limitations and subject to the same contingency which affected the devise of the real estate in question. While, technically, the appropriation of this money for such a -purpose was without legal sanction, yet in view of the fact that the ultimate destination of the real and personal estate was to be the same, no question'would have arisen in regard to this misapplication, if it may be so called, had it not been for the fact that one of the devisees, William H. Bucknam, was adjudicated a bankrupt on the 4th day of January, 1873, and all his estate, real and personal, was transferred to an assignee appointed in that proceeding. On or about the 15th day of June, 1876, his assignee sold and conveyed to one William Paulding for the expressed consideration of $310, “all the right, title and interest which the said William -H. Bucknam had on the 4th day of January-,,1873, in and to all that certain real estate, situated on South street, in the city of New York, and known as No. 245 on said street, and described as follows : (describing the premises in question), subject to a mortgage of twenty-seven thousand five hundred ($27,500) dollars, taxes, assessments and all other valid liens.” At the same time, and as a part of the same'sale, and upon the same consideration, the said assignee also transferred to Paulding all the right, title and interest, whatsoever, of the bankrupt in the personal estate under the last will and testament of Ezra Bucknam, deceased. It will be observed that this sale took place a few months after the first payment of $7,500 made by the executors on account of the mortgage debt. By a deed bearing even date with the above conveyance, William H. Bucknam and wife released and quitclaimed the premises to William Paulding. On the 30th day of June, 1876, William Paulding and wife conveyed all their right, title and interest in and to the premises in question to Henry C. Harding, described in the deed as trustee for Ella H. Bucknam, “subject to a mortgage of twenty-seven thousand five hundred ($27,500) dollars, and to taxes, assessments, and all other valid liens, being the right, title and interest in and to the real estate described and conveyed to the party of the first part in an instrument of deed and assignment from John J. Thomasson, of the city, county, and state of New York, assignee of William H. Bucknam, bearing date the 15th day of June, one thousand eight hundred'and seventy-six.” The conveyance so made was in terms, upon a trust to collect the rents and apply the same to the use of the said Ella H. Bucknam during the life, and after her death to convey the same to the defendant Ida I. Bucknam, the daughter of the said Ella H. Bucknam. On August 8, 1887, William Paulding assigned to Theodore P. Austin all the right, title, and interest in the personal estate of Ezra Bucknam which he had obtained under the deed from the assignee. It is this separation of interests in the real and personal estate, respectively, which had vested in William H. Bucknam under the will, that has occasioned the controversy in this action. On the 18th day of January, 1891, Jane Bucknam, the widow of the testator, died, and the estate, real and personal, so bequeathed and devised, became subject to distribution and division. On April 15, 1891, Eranbis A. Coffin, .the sole surviving executor, filed his account in the surrogate’s office, which account showed, among other things, the two payments which had been made on account of the mortgage, aggregating the sum of $13,750. Upon this accounting, Theodore P. Austin, the assignee of William H. Bucknam’s interest in the personal estate, contested their payments, claiming that they were unauthorized, and, as to him, at least, should be disallowed. His contention was sustained, and a decree was made and entered in the surrogate’s court whereby a distribution was ordered on the basis of an award to Austin of one:fourth of the personal estate, including the sum of $13,750, the balance being divided among the remaining children and the representatives of the deceased child, according to their respecti ye=interests under the will.

It thus appears that the whole amount of the mortgage was paid by the devisees other than William H. Bucknam and his grantees, and the one undivided fourth part of the property derived from him was discharged of that portion of the burden which in justice and equity it should have borne. The payment made by the executors has, by the virtue of their acts and the decree of the surrogate, become a payment made by the cotenants, and under the rule which enforces contribution between cotenants where one or more have expended money in reference to the common property which should be shared by all, the undivided interest of William H. Bucknam, now held by the defendant Harding as trustee, is subject to a charge, in favor of the others, whose money has been so appropriated, equal to the proportion of the mortgage debt with which such share was originally charged. It is a well-settled principle that, where a claim for contribution arises a lien may be declared upon the undivided shares of the cotenants against whom such claim exists as security for the discharge of the same. 3 Pom. Eq. Jur. § 1240; Story, Eq. Jur. (13th ed.) § 1236. The jurisdiction of a court of equity in such a case as this is broad enough to include every power necessary to adjust the rights of parties according to the demands of justice. This principle is clearly recognized in Story’s Equity Jurisprudence (18th ed., § 656b), where the author says:-

“For in all cases of partition a court of equity does not, act merely in a ministerial character, and in obedience to- the call of the parties who have a right to the partition, but it founds itself upon its general jurisdiction as a court of equity, and administers its itself ex aequo et bona, according to its own notions of general justice and equity between the parties.”

In the present case there can be no-difficulty in applying a remedy which shall relieve the cotenants, who have paid more than their share of this mortgage, without subjecting those claiming in right of William H. Bucknam to any injustice. The conveyance, which was made by Paulding to the defendant Harding, as trustee, was made, in express terms, subject to the mortgage, and it is plain from the amount of the consideration specified in the deed that the amount paid was less by reason of the incumberance. The payment of the mortgage subsequently, in a certain sense, enlarged the estate of the trustee, Everson v. McMullen, 113 N. Y. 293, 22 St. Rep. 787, and to the extent of the- proportion of it which he should have paid, gave him a property for which he has furnished no equivalent in value, but which has been paid for by others, who in that regard owed him no duty. The equities of the case or^ against him, and rest wholly on the side of his cotenants.

It is true that the first installment of $7,500 which was paid by the executors on account of the mortgage was so paid just prior to the sale of William H. Bucknam’s interest by his assignee in bankruptcy, but out of this fact no equity cap arise in favor of the defendant Harding, inasmuch as both he and his immediate grantor accepted conveyance of the property subject to the mortgage for its Original amount, and under such circumstances may not claim that any portion of it had then been paid. Freeman v. Auld, 44 N. Y. 50; Johnson v. Zink, 51 id. 333; Bennett v. Bates, 94 id. 354. The parties whose money had been so applied were, as to Harding and his predecessor, in the same position as the . mortgagee to whom the payment had been made. The duty at all times has rested upon those claiming title to William H. Bucknam’s share of contributing to the payment of one-fourth of the mortgage debt with which their testator’s interest in 'the property was affected,—a burden which they cannot escape by reason of the fact that others, who are not mere volunteers, have paid the whole.

Upon a final analysis of the facts in the case, we find the situation to be that four undivided interests were subject to .the payment of the mortgage, the owner or owners of each share being chargeable with the payment of an equal proportion of the same, but that the owners of three of such shares have paid the whole. How, then, can there be any doubt about the duty and power of the court to so adjust the rights of the parties in this action as to remedy this injustice, especially as no other rights or equities have intervened which can in any way be injuriously affected by such action? It has been contended that there is another theory upon which the same result can be reached, namely, that the executors, upon the payment of the mortgage, were entitled to be subrogated to the rights of the mortgagee, as the land was the primary fund for the payment of the debt, and that the surviving executor is, therefore, an equitable mortgagee to the extent of the amount so paid, and should be entitled to receive such amount out of the proceeds of the property, which would then be distributable in his hands, among those who have already been charged on the accounting with the amount so paid on account of the mortgage. The courts have gone very far in sustaining such substitutions or equitable assignments by subrogation. Gaus v. Thieme, 93 N. Y. 225; Arnold v. Green, 116 id. 566; 27 St. Rep. 724; Pease v. Egan, 131 N. Y. 262 ; 43 St. Rep. 105.

It may well be, and probably is, the fact, that the claim for reimbursement made by the plaintiff and other cotenants against the defendant Harding is subject to adjustment upon that theory; but the result in either case is precisely the same, and, as all of the parties are present who are in any way interested in the question, the court will proceed to determine their equities, and to administer final relief without indirection, and with regard rather to matters of substance than of form. It will be noticed that, in the case of Pease v. Egan, supra, cited upon the briefs of counsel, the plaintiff had no interest in the property, and that the method adopted for enforcing his equitable rights was absolutely essential to relief. Whatever the theory may be, however, it is quite clear that justice requires that the share of William H. Bucknam should be made to bear its proportion of the mortgage debt by reimbursing those whose money has been used to discharge it; and what justice requires a court of equity should find no difficulty in compelling. The formal decision and the interlocutory judgment entered upon it should, therefore, declare the interest derived from William H. Bucknam to be subject to a lien or charge of $3,437.50, together with interest thereon at the rate of five per cent, per annum from January 13, 1891, and adjudging the other cotenants to be entitled to the payment to them of that amount out of said share. The interest of the parties in the rents should also be specified, and the referee to sell directed to ascertain the amount.to which each is entitled.

Findings should be submitted to me in conformity with this opinion, together with the interlocutory judgment, for settlement upon notice.


author: Ward, J.

text:
    Henry E. Snow et al., App’lts, v. Fannie Hamilton et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Wills—Action to deteiimine validity.
    Section 2(i53a of the Code relates to wills of both real and personal property, and. so far as it modifies and extends the remedy provided in other sections, it controls.

      3. Same—Parties.
    Under the above mentioned section, an heir, disinherited by a will, is-the person interested in the will, who may sue to determine the validity of the probate.
    Motion for a new trial on exceptions, ordered to be heard at general term in the' first instance.

      jEugene Van Voorhis, for pl’ffs; George F. Yoeman, for def’ts.
   Ward, J.

The plaintiffs bring this action to determine the-validity of the probate of the will of John Snow, late of the town of Ogden, in the county of Monroe, deceased. The parties to this action are nineteen nephews and neices of the deceased, four of whom are plaintiffs, and the others defendants. Certain legatees named in the will are also made defendants. The nephews- and neices are all the heirs and next of kin of the deceased. None of the plaintiffs is named in the will. The grounds alleged in the complaint for revoking the probate are that the assumed will was not the last will of the deceased, and was not his free or voluntary act. The complaint also alleged that the deceased died seised of real property and owning personal property in a large amount, and set forth a copy of the will, by which it appeared that the decedent bequeathed personal property and devised real estate. These facts were admitted by the defendants answering. The record of the trial before us discloses that after the defendants had offered in evidence the paper purporting to be the will of the deceased, the decree of the surrogate of Monroe county admitting it to probate, and the evidence taken before the surrogate upon the probate of the will, and the defendants rested, the plaintiffs opened the case to the jury, whereupon the defendants moved to dismiss the action upon the pleadings and the opening of the case-upon the grounds : First. That the plaintiffs are not parties interested in this will, in the meaning of section 2653a of the Code-of Civil Procedure. Second. It is not claimed by the pleadings or opening that there is any real estate involved in the litigation. Third. That the action provided for by that section of the-Code relates entirely and only to real estate, and is not a remedy as regards personalty; that as to personal property this will has become conclusive under the other provisions of the Code. The motion was granted, and the plaintiffs duly excepted, and the matter is here upon the plaintiffs’ motion for a new trial upon such exception.

What the plaintiffs’ opening disclosed does not appear in th,e record, but the motion was based upon the pleadings as well as the opening, and, as the pleadings did show that there was real estate involved in the litigation, we must assume that such was the fact. The real contention here on behalf of the defendants is that, inasmuch as the will does not recognize the plaintiffs, or any of them, as devisees or legatees, they are not in a position to invoke the remedy pointed out by section 2653a of the Code of Civil Procedure, as that limits the remedy to those specifically mentioned or provided for in the will. Section 2653a was incorporated into-the Code of Civil Procedure by clmp'ter 591 of the Laws of 1892,. and the commencement of the section embracing it is as follows: “ Article second, title three of chapter eighteen of the Code of Civil Procedure is hereby amended by adding thereto a new section to be known as section 2653a which shall read as follows." Then follows the section as appears in the Code. Article 2, before this amendment, consisted of sections 2647 to 2653 of the Code, inclusive, and regulated proceedings instituted by petition in surrogate’s court by “ a person interested in the estate of a decedent" to procure the revocation of a will of personal property which proceeding must be commenced within one year after the recording of the decree admitting the will to probate. At the time of the adoption of this amendment the probate of a will was conclusive as to personal property unless revoked by the proceeding in surrogate’s court, as above stated, but the probate was only prima facie conclusive as to the real estate devised by the will, so that the heir could bring ejectment after probate for the interest he claimed in the real estate devised during any period not barred by the statute of limitations. A great necessity, therefore existed of further limiting the right of the heir to contest the devises of a will in order to quiet titles to real estate, and, in the light of this necessity, we will consider the effect of section 2653a. The purpose of this amendment is manifest. It is to provide a procedure by an action in the supreme court to determine the validity of the probate of any will, whether of real or personal property or of both, and requiring such an action to be commenced within two years after the will has been admitted to probate; and the question to be tried is whether the writing produced is or is not the last will of the decedent, and that question to be tried by a jury, and the procedure upon the trial is. pointed out, and it provides that the verdict of the jury shall be “ conclusive as to real and personal property unless a new trial be granted, or the judgment thereon be reversed or vacated.” The amendment does not seek to affect the remedy provided in surrogate’s court by special proceeding under the sections amended, but only provided an additional remedy by action. It is unnecessary to determine the effect of such a special proceeding as to personal property where one has been executed and completed before the action in the supreme court was commenced or was in progress concurrent with the action in the supreme court, as that question is not before us. But it is plain that so far as the amendment modifies or changes the sections amended, the amendment, being the latest declaration of .the legislative will upon the subject, controls.

We think the contention of the defendants that, because the plaintiffs are not named in the will, they are not interested in the, will within the meaning of section 2653a of the Code, cannot be sustained. The language of the section is:

“ Any person interested in a will or codicil admitted to probate in this state as provided by the Code of Civil Procedure may cause the validity of the probate thereof to be determined in an action in the supreme court for the county in which such probate was had. All the devisees, legatees and heirs of the testator and other interested persons including the executor or administrator must be parties to the action.”

It would seem absurd to contend that a person entitled as heir or next of kin of a decedent is not interested in a will, or the question of the probate of a will, which perchance cuts him off without a farthing. The requirement is that all the heirs and other interested persons shall be parties to the action. It does not define whether they shall be parties plaintiff or defendant, but they must be parties. Other sections of the Code seem to provide as to that. Section 446 provides that “all persons having an interest in the subject of the action and in obtaining the judgment demanded may be joined as plaintiffs except as otherwise expressly provided in this act.” Section 448 provides that, of the parties, to the action, those who are united in interest must be joined as plaintiffs or defendants, except as otherwise prescribed, etc., and, if the consent of any one who ought to be joined as plaintiff could- not be obtained, he might be made a defendant, the reason thereof to be stated in the complaint. No principle is more firmly established in our jurisprudence than that a party interested in obtaining a specific judgment or relief in law or in equity can commence an action to secure that result. In Wager v. Wager, 89 N. Y. 161, the court held that any person claiming an interest in "the personal property, either as a legatee under the will or as entitled to it under the statute of distributions, where a trust was involved, might bring an action to settle the construction and ascertain the validity of the provisions of the will. ' The defendants’ contention would enable only a beneficiary under a will to secure the benefits of the statute providing for an action in the supreme court to test the validity of the probate, while those who are excluded, and who .are usually the real parties aggrieved, cannot be heard unless some party named in the will chooses to' make them parties defendant. This construction is too narrow. It does not fully reach the exigency which created the amendment, and is in conflict with the manifest purpose of the amendment and its language.

We are referred to Long v. Rogers, 79 Hun, 441; 61 St. Rep. 462, as an authority for the defendants’ position. That was an action to contest the validity of the probate of a will, instituted more than one year after the probate, where an injunction was obtained restraining an executor under the will from proceeding to obtain a judicial settlement of his accounts. The court held that the injunction could not be sustained, as the probate was conclusive after one year as to personal property, under section 2648 of the Code of Civil Procedure, and consequently the accounting could proceed. As before said, this question is not before us. The questions in the case at bar arise as well to real as to personal property. ■ The statement of the learned court in Long v. Rodgers as to the necessity of the legislation embodied in the amendment of 1892 seems well sustained. If the effect of that decision is .that section 2653a only relates to revoking the probate of wills of real estate, with all due respect we are unable to concur in that-view.

The motion for a new trial should prevail, with costs to abide the event.

All concur, except Bradley, J., not voting.


text:
    In the Matter of the Estate of Mary A. Edson, Deceased. In the Matter of Lizzie Ryan O’Connor.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Executors—Legacy—Payment.
    The payment of a legacy will not be deferred merely because the person, who brought an action to establish another will, which, if established, will render the will, under which the legacy is claimed, inoperative, intends to appeal from the adverse judgment therein.
    Application to compel payment of a legacy contained in a will.

      P. S. Dean, for app’lt; John M. Perry, for resp’t
   Van Brunt, P. J.

The will of Mary A. Edson, deceased, together with three codicils thereto, was admitted to probate by the surrogate of New York county on January 14, 1891, and letters testamentary thereon were issued on the 20th of January, 1891. By one of the. codicils to the will, the respondent was left a legacy of $10,000. The executors admit that they have in their hands sufficient assets, over and above all debts and liabilities, to pay the respondent’s legacy in full, but they decline to do so because the attorneys for Margaret B. Edson, as executrix of Marmount B. Edpon, by whom the will of Mary A. Edson was contested, have notified them not to do so. This proceeding was commenced on the 24th of April, 1895, by the respondent, a legatee under the will of Mary A. Edson, deceased, to obtain payment to her of said legacy, Margaret B. Edson, as executrix of Mar-mount B. Edson, deceased, appeared on the return day of the citation issued in said proceedings, and submitted an affidavit, showing that there were three pending litigations involving the estate of Mary A. Edson; and that the second of these litigations was brought by her as executrix to establish a mutual will theretofore executed by Mary A. Edson; and that, if this mutual will of Mary A. Edson should be enforced, it will dispose of all the assets of the estate of Mary A. Edson, and the will as probated, and under which the petitioner in this proceeding holds, will be inoperative. Upon this state of facts, the surrogate made an order directing the payment of the legacy.

It seems to be assumed upon the part of the appellant that an intention to appeal operates as a stay of proceedings. We are not aware of any such intention, no matter from what source it may emanate, has any such potent effect. In fact,' the appeal itself were pending, it would not necessarily stay the proceeding in reference to the estate, compelling the residuary legatee to .pay interest upon legacies which were due and should be paid.

The order should be affirmed with costs.

All concur.


text:
    Charles I. Berg, Resp’t, v. Henry Parsons, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Negligence—Master and servant—Contractor.
    When any contractor or other special agent takes entire control of a work, and the employer does not interfere and no negligence is shown in the selection of the contractor, such employer is not liable to third parties for injuries to them by the contractQr’s negligence.
    2. Same.
    The party employing the contractor must employ a fit and competent person for the purpose of performing the work, or, at least, must exercise reasonable care in ascertaining the character and qualifications of the person so employed.
    3. Evidence—Negligence.
    In an action for the negligence of a contractor in the work he was employed to do, testimony as to his habits, for the purpose of showing that he was a person not to be trusted with work of such description, and for the purpose also of calling upon the employer to show that he had used such care and diligence in ascertaining the character and capacity of his proposed contractor as would absolve him from the charge of negligence in that regard, is competent.

      41 Same—Opinions.
    On an issue as to the liability of the employer for the contractor’s negligence, the mere belief of a person that the contractor was capable of carrying out the contract and would use 'ue care in its execution, is inadmissible.
    5. Appeal—Harmless error.
    • Though the difference in value between the premises injured and uninjured is the usual method of ascertaing the amount of damage, yet, complaint cannot be made by the defendant that cost of repairs was adopted as the measure, where it does not appear that he has suffered by reason of the application of the rule of damages adopted.
    Appeal from a judgment for plaintiff, and an order denying a new trial.

      A. Thain, for app’lt; O. W. Pierson, for resp’t.
   Yan Brunt, P. J.

This action was brought to recover damages • which the plaintiff claimed to have sustained by reason of the careless blasting of a contractor employed by the defendant to blast out a cellar upon his premises, wh,ich were adjacent to those of the plaintiff. Upon the trial the plaintiff gave evidence tending to prove that the work was of a dangerous character, and that the contractor was not a suitable and competent person to perform such work. The defendant also gave evidence tending to prove that, being aware of the dangerous character of the work, he had made inquiries, such- as a prudent person would make, in regard to the capacity of the contractor, and his carefulness in doing such work. There was evidence also given as to the amount which was paid by the plaintiff in repairing his premises after the injury, which amount was conceded to be a reasonable and fair sum for such repairs; but it was claimed that such expenditure was not the true rule of damages. Upon the case being submitted to the jury, the jury' found a verdict for the amount expended upon repairs, and from the.judgment thereupon entered, and from an order denying a motion for a new trial, this appeal is taken.

The rule seems to be well established that when any contractor or other special agent takes entire control of a work, the employer not interfering, and there being no negligence in the selection of the contractor, the employer is not liable to third parties for injuries to such parties by the contractor’s négligence. It is also well established that the party employing the contractor must employ a competent and fit person for the purpose of performing the work, or, at least, must exercise reasonable care in ascertaining the character and qualifications of the person so employed. In the case at bar there was no evidence given tending to show that the defendant had made some inquiries in regard to the character and qualifications of the person he employed; but they certainly were not of a very exhaustive character, and there was a question left for the jury to determine as to whether they were such as a man of reasonable prudence would make under the circumstances. It was not by any means, a question for the court to determine, because it would appear that there was some conflict of evidence upon the point, and different deductions might be drawn from the evidence which was offered. It is not necessary, in the disposition of this appeal, to rehearse the testimony upon this question. It is claimed to be essentially different upon that which appeared upon the previous trial, but we think that inferences of the same character could be drawn therefrom, and that there is no material variation in ,the testimony which would authorize the court in taking that question from the jury.

Various "exceptions were raised to the exclusion and admission •of evidence, particularly in regard to the testimony as to the habits of the contractor. We think that this evidence was competent, for the purpose of showing that he was a person not to be trusted with work of this description, and for the purpose, also, of calling upon the defendant to show that he had used such care and diligence in ascertaining the character and capacity of his proposed •contractor as would absolve him from the charge of negligence in that regard.

There 'was also an objection taken to the striking out of evidence in regard to the general reputation of this contractor in April, 1892, some months after the happening of the accident in question. It seems to be sufficient to dispose of this exception to say that the witness did not seem to be testifying as to any general reputation whatever. He was only testifying to his belief that the contractor was capable of carrying out the contract, and would use due care in its execution.

In respect to the objection as to .the measure" of damages, although it is undoubtedly the rule that. the difference in value between the premises injured and uninjured is the usual method of ascertaining the amount of damage, yet in the case at bar, there being no pretence that the premises were put in better condition by the repairs than they had been before the accident, and it being ■conceded that the amount paid was a reasonable sum to pay for putting them in the same condition in which they were before the accident, it does not' appear that the defendant has suffered by reason of the application of the rule of damages adopted in this case.

We think that the judgment and order appealed from should be affirmed, with costs.

All concur. .


author: Ward,- J.

text:
    In the Matter of a Proceeding for the Collection of the Collateral Inheritance Tax on the Estate of Caroline C. Moore, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

      1. Tax—Transfer—Application of statute.
    Where testatrix died while chapter 713 of 1887 was in force, legacies given by her will are taxable under that act, though, before the tax was imposed, chapter 399 of 1893 took effect.
    2. Same—Exemption.
    Section 1, chapter 713 of 1887, does not include the children of persons exempt under this section.
    3. Same—Interest—Delay.
    " Litigation to determine the proper distributive shares of several legatees, and their respective liabilities for a collateral inheritance tax, is an unavoidable cause of delay in settling the estate within the meaning of section 5, chapter 713 of 1887.
    Appeal from a decree requiring the payment of collateral inheritance tax, and interest.

      Adelbert Moot, for app’lts; Hamilton Ward, Jr., Asst. Disk Atty., for the people.
   Ward,- J.

The deceased, Caroline Moore, a resident of Buffalo, died on the 28th day of May, 1887, the owner of a large amount of property, real and personal. She left a will, which was duly admitted to probate, by the ninth clause of which Augusta C. Graves, wife of John C. Graves, of Buffalo, and her seven children were made the residuary legatees of her property. A controversy arose between Mrs. Graves and her children as to the proportion of the residuary fund these legatees should take, respectively. A case was made and submission presented to the general term of this court, under section 1279 of the Code of Civil Procedure, to decide that controversy, and the gfeneral term of this department, in December, 1889, held that Mrs. Graves and her children each took ^n eighth of the residuary estate; the contention of Mrs. Graves being that she was entitled to one-half of the estate, and the children to the residue. Reported in 55 Hun, 58. Mrs. Graves appealed to the court of appeals, and the judgment of the general term was affirmed March 20, 1891. 126 N. Y. 636. Early in July, 1891, the district attorney of Erie county presented a petition to the surrogate’s court of that county praying that Mrs. Graves and her children should show cause why a collateral inheritance tax should not be ascertained and paid, together with the interest thereon, upon the property transmitted to them from the deceased. Proceedings were had on such petition ; Mrs. Graves and her children resisting, the tax, claiming that they were exempt from the same. And finally, on the 12th day of July, 1892, the surrogate appointed an appraiser to appraise the value of the property of these parties, and on the 17th of January,, 1893, the appraiser made his report to the surrogate as to the value and amount of such property. On the 22d day of December, 1893, the surrogate made his decree in the premises, relieving Mrs. Graves’ interest from taxation, but fixing the share of each of her children at $23,019, and ordered that the executors of the deceased pay to the treasurer of Erie county the sum of $8,055.65, with interest on the same at the rate of six per cent, per annum from the 28th, day of May, 1888, to the 24th day of March, 1891, and interest on the same from the 24th day of March, 1891, at ten per cent, per annum! On the 24th of February, 1894, the executors appealed from that decree to this court, and the appeal was argued in June last.

Augusta 0. Graves was not a child of the deceased, nor had she been adopted by the deceased under any of the laws of this state; but, for more than.ten years prior to the death of the decedent, she had stood in the mutually acknowledged relationship of a parent to Mrs. Graves. Mrs. Graves was of full age when chapter 830 of the laws of 1873, relating to adopting children, took effect, and was not entitled to inherit under chapter 703 of the Laws of 1887, giving an inheritable quality to adopted children. The appellants contend that this case is to be governed by chapter 713 of the Laws of 1887, which took effect June 25, 1887, and not by chapter 399 of the Laws of 1892, which was a consolidation of the transfer tax laws, and repealed all prior laws upon the subject, with a saving clause in the twenty-fourth section as to any act done or right accruing or acquired, or liability, penalty or for-' feiture incurred, prior to said act of 1892; and. this court in re Milne, 76 Hun, 328; 59 St. Rep. 100, and the court of appeals, in re Fairweather, 143 N. Y. 114; 62 St. Rep. 127, have sustained this contention in which we concur.

The chief contention of the appellants is that, under the act of 1887, the children of Mrs. Graves are exempt from taxation upon their share of this property the same as Mrs. Graves herself, and while those children aro not precisely covered by the terms of the statute, and it was the manifest intent thereof to include the children of persons who had borne the mutually acknowledged relation of children to the decedent, as well as such persons. This involves a careful examination of the statute and its exemptions. By section 1 of chapter 713 of the Laws of 1887 it is provided that a tax of five per cent, shall be imposed on every hundred dollars of the clear market value of such property as shall pass by will or the intestate laws of the state from any person who may die seised or possessed of the same, or any interest therein or income therefrom which shall be transferred by deed, grant, sale, or gift, made or intended to take effect, in possession or enjoyment, after the death of the grantor or bargainor, to any person or persons, or body politic or corporate, in trust or otherwise, or by reason whereof any person or body politic or corporate shall become beneficially entitled, in possession or expectancy, to any property or to the income thereof, “ other than to or for the use of his or her father, mother, husband, wife, child, sister, the wife or widow of a son or the husband of a daughter or any child or children adopted as such in conformity with the laws of the state of Hew York or any person to whom the deceased for not. less than ten years prior to his or her death stood in the mutually acknowledged relation of a parent and any lineal descendant of such decedent born in lawful wedlock, or the societies, corporations, and institutions now exempted by law from taxation,” etc. The children of Mrs. Graves certainly do not come within any of the exemptions above set forth, unless they may be regarded in some manner as the children or lineal descendants of the decedent. -Upon‘the death of an individual, his estate reverts to the state, and inheritance and testamentary disposition are the exercise of a sovereign power. The state has the absolute dominion over the estate, and taxes can be levied to the extent of that dominion. Consequently, whatever passes under the will and the intestate laws of the state, above the amount retained by the state, is a voluntary gift, and a person claiming exemption from taxation must be able to point specifically to the statute creatiug that exemption. The exemption will not be inferred or assumed.

The children of Augusta were in no sense the children of the deceased. Bouvier’s Law Dictionary defines a child “ to be the son or daughter, in relation to the father or mother,” born in lawful wedlock, or within such a competent time afterwards as to create the presumption of such relation. The term “ child,” in its primary and commonly understood meaning, designates descendants in the first degree, and does not include grandchildren or others. Palmer v. Horn, 84 N. Y. 521; Magaw v. Field, 48 id. 668; Low v. Harmony, 72 id. 414. “The term ‘child’ does not, ordinarily and properly speaking, comprehend grandchildren ; yet sometimes that meaning is affixed to it in cases of necessity” (6 Coke, 16); and the cases where the term “ child ” or “ children ” is sometimes held to include grandchildren are where the circumstances surrounding the bequest, and the condition of the testator’s family, and peculiar provisions of the will itself, afford persuasive evidence that the testator intended, by the term “child" or “children," to include grandchildren; but this condition never applies to strangers to the blood. In this case the children of Mrs. Graves are strangers to the blood of the decedent. It cannot be claimed that they are in any sense lineal descendants, ior those descendants come in a direct line from, and are of the blood of, the decedent

The surrogate held that Mrs. Graves’ share was exempt because of the mutually acknowledged relations of parent and child that existed between her and the deceased, and that she stood upon that special exception in the statute. That exception in no manner embraces her children, or any one but herself. We cannot see upon what principle this contention of the appellants can be sustained, and we must hold with the learned surrogate in this respect, viz. that none of the shares of the children of Mrs. Graves is exempt; but the order of the surrogate taxing them must be sustained.

The appellants further contend that the surrogate erred in directing the collection of interest upon the respective shares of the children. We are favored with a memorandum of the learned surrogate stating his conclusions in the case, in which he says:

“ The question whether this case should be decided in accordance with the above-mentioned acts (the collateral inheritance tax acts of 1885 and 1887), or Acts 1892, ch. 399, is not of importance.”

At that time the decisions, in Re Milne and Re Fayerweather, supra, had not been announced, and the surrogate had not therefore, the benefit óf them in determining this question; but, as we have before concluded, the act of 1887 governs, and by section 4 of that act (chapter 713 of the Laws of 1887) it is provided:

“All taxes imposed by this act unless otherwise herein provided for, shall be due and payable at the death of the decedent, and if the same are paid within eighteen months no interest shall be charged and-collected thereon, but if not paid, interest at the rate of ten per cent, per annum shall be charged and collected from the time said tax accrued. * * * "

By section 5 of that act it is.provided:

“ The penalty of ten per cent, per annum imposed by section 4 hereof, for the nonpayment of said tax, shall not be charged where in cases by reason of claims made upon the estate, necessary litigation or other unavoidable cause of délay, the estate of any decedent or any part thereof cannot be settled at the end of eighteen months from the death of the decedent, and in such cases only six per cent, per annum shall be charged upon the said tax, from the expiration of said eighteen months until the cause of such delay is removed.”

It will be seen, from the history of this case, above given, that there has been such litigation and other unavoidable causes of delay as to prevent the settlement of the.estate and-an adjustment of the rights of the parties herein, substantially from the time of the probate of the will of the decedent to the present time, and there is reason in the contention of the appellants that they should only be charged with interest at the rate of six per cent, from the expiration of eighteen months from the death of the decedent, as provided in section 5. The statute designates the ten per cent, requirement as a penalty, the intent being to impose it where the delay is inexcusable, and for that reason the parties at whose property the collateral inheritance tax is aimed should be in a sense punished. It seems to us, from the history of this case, that no penalty should be imposed for the delay which has occurred, and that all the interest which the shares of the children of Mrs. Graves should be compelled to pay should be the six per cent, after the expiration of the eighteen months.

The decree of the surrogate of Brie county should be affirmed, with the modification that interest should be paid on the sum of $8,055.65 at the rate of six per cent, per annum from the 28th day of November, 1888, until the same is paid. As neither party has wholly succeeded upon this appeal, costs of the appeal will not be allowed to either party.

All concur.


text:
    Matilda Schneider, Resp’t, v. City of Rochester, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Condemnation fboceedings—Constitutional law.
    Until the final confirmation of the report of commissioners in condemnation proceedings, the property owners acquire no vested rights in awards made to them. z

      2. Same.
    The charter of the city of Rochester, wherein it provides that the city council may confirm the report of commissioners appointed by the court to appraise the damage resulting to an owner from taking his property for public uses, or may reject it and order another appraisement by the same or new commissioners, does not violate section 7, article 1 of the state constitution.
    3. Same.
    Where a judicial officer has not such an interest in a cause or matter as that the result must necessarily affect his personal or pecuniary interest, or where his interest is minute and he has so exclusive a jurisdiction, by constitution or statute, that his refusal to act in the cause or matter will prevent any proceeding in it, he may act so far as there may not be a failure of remedy.
    Appeal from an order, enjoining the 'city of Rochester from proceeding to have commissioners appointed to appraise plaintiff’s damages by reason of the condemnation of certain property for street purposes in said city of Rochester.

      A. J. Bodenbeck, for app’lt; Mdridge L. Adams and Waldo T. Morse, for resp’t
   Ward, J.

The plaintiff is the owner of certain real estate in the city of Rochester, which the city sought to have condemned in opening a new street in the- city. Pursuant to the charter of the city, the common council, by ordinance, after the proper preliminary proceedings, determined to open said street, and to take proceedings to have the property of the plaintiff condemned for that purpose. The city charter provided that the common council or city attorney should cause to be published for ten days, in a daily newspaper published in said city, a notice specifying and describing the lands, or right or easement therein, desired, necessary for the street, and the portion of the city deemed to be benefited by reason thereof, and that an application would be made to the county court of Monroe county, or to a special term of the supreme court to be held in the Seventh -judicial district, at a time to be specified in such, notice, for the appointment of commissioners to ascertain and appraise the compensation which the owners, tenants, or occupants of sucli lands, or persons interested therein, desired to be taken, will be entitled to for the same. The common council or city attorney should also, at least ten days before the time named for such application, cause a notice to be served on each of the owners of the premises, etc., to be taken, who were residents of said county, provided that the fact of such residence be known or can by reasonable diligence be ascertained, or upon the occupants of said premises, either personally or by leaving the same at their several places of abode. At the time specified in said notice, or at such adjourned time as the court might direct, the court should appoint not more than five, nor less than three, commissioners of appraisal, who should be freeholders of the city, and not interested in any of the land sought to be taken, nor of kin to any owner or occupant thereof. The charter further provided that the commissioners, after taking the oath prescribed by the twelfth article of the constitution, should give public notice, publish daily, for ten days, in at least one of the daily newspapers, authorized to publish corporation notices, of the time when, and the place where, they should meet to enter upon their duties. At such time they should proceed to view the lands and premises proposed to be taken, hear the proofs and allegations of the parties, and after the testimony was closed they should appraise the damage which the owner or the person interested in the premises to be taken for such public improvent sustained thereby. The commissioners should make their report to the common council of the city, describing the' property taken, and stating the amount of damages. The charter further provided:

“ Upon the filing of such report the said common council shall assign a time for hearing objection to the confirmation thereof and at the time assigned shall hear the allegations of all persons interested and may take proof in relation thereto from time to time and shall confirm the said report of may set the same aside and refer the matter to the same or'new commissioners to be appointed by said court as before who shall thereupon proceed as hereinbefore provided, but the common council may set aside said report and abandon said improvement at any time before the final confirmation of the assessment roll hereinafter mentioned.” And “ if such report is not appealed from in thirty days'as hereinafter provided or whenever such report is finally confirmed the common council may take the lands and premises or rights or easements specified in the report of such commissioners and which have been determined by the common council to be necessary for such improvement on paying the amount of damages or compensation awarded to the owners (etc.), less the amount of any assessment made against' such owner or occupant or depositing the same in some bank in Rochester to the credit of the person to whom the same is awarded.”

And when such award was paid the city should become vested with.the title to the lands taken. And the charter further declared that any lands thus acquired by the city “shall be deemed to be acquired for public use." The charter further provided for an appeal by the party aggrieved, within thirty days after such confirmation, to the supreme court, from the report and determination of the commissioners, which appeal should stay proceedings upon the giving of a bond specified by the statute, and the appeal should be heard by any general or. special term in the seventh judicial district. If heard by the special term, an appeal from its order might be taken, within ten days, to the general term.

In pursuance of the authority thus given by the charter, on the 18th day of January, 1894, the county court of Monroe county, upon due notice, appointed three commissioners, that were qualified by the statute as such, to appraise the damages, and the compensation of the owners, for taking the lands necessary for such streets. The commissioners duly proceeded, after giving the notice required by the statute, and appraised the damages of the plaintiff at $40,000. Their report was presented to the common council-on the 29th day of March, 1894, and the council fixed the 3d of April following, as the time of hearing objections to the confirmation of the report; and at such time, it being a regular meeting ©f the common council, the report was presented for action. The plaintiff was present. No allegations were made against the confirmation of the report, except by the city attorney of Rochester, who made objections. The common council refused to confirm the report, but resolved that it be set aside, and referred back to new commissioners, to be appointed by the Monroe county court, as provided by the city charter, and the city attorney was directed to make the necessary application. In attempting to carry out that purpose, the'defendant was enjoined from proceeding therein by an order of the special term of Monroe county, and an appeal from that order brings the question before us that we will proceed to consider.

We are favored with an opinion from the learned judge who granted the order at special term, in which the reasons for the order are stated, and those reasons are supplemented by the points of the learned counsel for the respondent. They are, in effect, that the plaintiff had a vested interest in the award made by the commissioners, and had the right to have it enforced; that the provision of the charter permitting the common council to set aside the report, and to take proceedings for the appointment of new commissioners, was in violation of article 1, section 6 of the state constitution, which provides that “ no person shall be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation,” and that inasmuch as the constitution provides (article 1, § 7) that, when private property shall be taken for public use, compensation shall be made therefor, which compensation shall be ascertained by a jury, or by not less than three commissioners, appointed by a court of record, as prescribed by iaw, and the power having been executed in the methods prescribed by the constitution, it was spent, and neither another nor successive commissions could be appointed at the instance of the defendant; that to permit the appointment of successive commissions, and the securing of successive awards, to be in turn rejected until one was obtained satisfactory to the defendant, was an oppression which violated the spirit of the constitution, and could not be sustained. It will be seen, therefore, that a grave question is presented, which requires our careful consideration. The duty of the court in passing upon the constitutionality of the act of a legislative branch of our state government cannot be better 'stated than to quote from the opinion of the learned judge at special term in which he says, “The court should not hastily, nor without careful deliberation, declare a statute unconstitutional,” and then quotes from People v. Albertson, 55 N. Y. 54:

“A law which has received the sanction of the legislature, and the approval of the executive, should only be held void, as repugant to the constitution, when the repugnancy ps clearly demonstrated. There should be no reasonable doubt of the unconstitutionality of the statute, before it should be annuled by judicial action.”

The legislature, in the domain of legislation, is supreme, except as limited by the constitution of the general or state government. He who assails the statute as unconstitutional must be able to point unerringly to the constitutional prohibition. Before the plaintiff can complain, she 'must have a vested right in'the award of the commissioners, or at least in the procedure creating it. The decisions of the courts of this state are uniform to the effect that, until the final confirmation of the report of commissioners in such cases, the property owners acquire no vested rights in awards made to them. In re Canal street, 11 Wend. 154; In re Anthony street, 20 id. 618; In re Department of Public Parks, 60 N. Y. 319; People v. President, etc., of Brooklyn, 1 Wend. 318; Corporation of New York v. Mapes, 6 Johns. Ch. 49; Martin v. Mayor, etc., of Brooklyn, 1 Hill, 545.

In Corporation of New York v. Mapes, supra, the corporation sought to restrain the landowner from making improvements upo.n the premises sought to be taken. The injunction was refused, and the chancellor says:

“ Perhaps the better opinion is that the corporation is not bound to go on, but may recede, and abandon its plain, at any time before the commissioners of assessment shall have reported, and their report shall have been confirmed.”

In re Commissioners of Washington Park, 56 N. Y. 144, the court, Rapadlo, J., reviewed the question with his usual clearness, saying:

“ There is a strong equity in the claim made by the appellants that the election to take their property, when once exercised in such a manner as to bind the owners, shall be equally binding upon those who are empowered and elect to take it, and the owners should not be exposed to repeated application for this purpose, which might result in not only keeping them in perpetual ownership, but might enable the other party to abuse the power intrusted to it, by repeatedly making and withdrawing application, until it shall obtain an appraisal satisfactory to itself, and thus deprive the owners of their just compensation for their property, which is guaranteed to them by the constitution of the state.”

In answer to the equitable consideration above quoted, which is substantially the 'argument of the respondent here, Judge Rapallo says: ,

“On the other hand; it must be considered whether the apprehension of siioh an abuse of power is sufficient ground, in the case of a public improvement carried on by public officers, to absolutely preclude them from discontinuing their proceedings on discovering that the expense involved, and which is to be defrayed by the public, or by assessment upon other property owners, would exceed the benefit to be derived from the improvement.”

And after stating that the English courts sustain the position contended for by the property owners in that case—that the corporation, having elected to take the property for the public purpose, could not recede—the court of appeals proceeds to assert, the doctrine that—

“A long series of decisions having established that in these street cases the corporation may be permitted to discontinue proceedings at any time before rights resulting therefrom have become vested in the property owners, they further hold—differing in this respect from the English cases—that no such rights are vested until the report0or the commissioners is finally confirmed, and there is final award in the nature of a judgment in favor of the property owners for their compensation.”

In that case (56 N. Y., supra) the commissioners of appraisal had met, and appraised the property, and had announced their determination, in several cases; and then the corporation instituted the proceeding for leave to discontinue the condemnation proceeding, and succeeded. The statute in this case, however, sets the question at -rest, as it does not permit the city to interfere with the possession of the landowner, or vest any title in the city until the compensation is paid. The policy of permitting the abandonment of proceedings, or of appointing new commissioners, in such cases, was inaugurated early in the history of his state. Section 178 of the Laws of 1813, relating to. New York city, provides, in this respect, that:

“ Upon the coming in of the said report signed by the commissioners or any two of them, the said court shall by rule or order, after hearing any matter which may be alleged against the- same, either confirm the said report or refer the same to the same commissioners for revisal and correction, or to new commissioners, to be appointed by the said court, to re-consider the subject matter thereof,” e'tc.

And in the Consolidated Laws relating to New York city, in section 1003, it is provided that, as to laying out arid opening certain streets and avenues in the city, the board of street opening of the City was authorized to discontinue any and all legal proceedings taken for laying out streets—

“At any time before the confirmation of the report of the commissioners of estimate and assessment in such proceedings, if, in the opinion of said board, the. public interests require such 'discontinuance, and with power to cause new proceedings to be taken in such cases for the appointment of new commissioners.”

The constitutionality of these new provisions never seems to have been assailed by the courts.

By chapter 360 of the Laws of 1867 (section 25), the trustees of the village of Rhinebeck were vested with a similar authority to that of the common council of the city of Rochester, in regard to laying out, extending, etc., streets and alleys in the village. Upon the coming in of the report of the commissioners of assessmént of damages, the trustees were empowered to annul the same, or “ they shall refer the matter back to the same commissioners, or to three others to be appointed on their application, without further notice by some court of record.” The constitutionality of this provision came before the court of appeal in Re Livingston street, 82 N. Y. 621, where the precise question as to the appointment of a second commission after the report of the first, and before the confirmation had taken place, was passed upon, and the court held the act constitutional, which would seem to dispose of the respondent’s contention in that regard. The land of the respondent cannot be taken, except upon payment of compensation to be finally fixed. Until the confirmation of the report of the commissioners, or of some commissioners, the proceedings are incomplete and initatory, and there is no invasion of the landowner’s possession ; and the statute provides for notice to him of the appointment of every commission, and of its sessions, so that he has his day in court in all important proceedings which have reference to his property. The commissioners are not appointed by either party to the proceeding, but by the court. The scheme of the statute seems to be that the corporation, representing the whole people of the municipality, the property owner, the taxpayer, and the interest involved in public improvements, shall not be bound by the action of the first commission, if that action be arbitrary, unjust, or award excessive damages, either through mistake, ignorance, or corruption. A corrective power exists in the court, not only on the application for the appointment of commissioners, but on appeal.

The plaintiff claims that this proceeding may deprive her of her property without due process of law. This provision of the constitution does not require legal proceeding according to the course of the common law, nor must there be a personal notice to the person whose property is in question. It is sufficient that if a kind of notice is provided by which it is reasonably probable that the party proceeded against will be appraised of what is going on, and an opportunity offered him to defend (Happy v. Mosher, 48 N. Y. 313); and the legislature has the right to take away a particular form of remedy, and give a new one (People v. Board of Supervisors, 70 N. Y. 228; Stuart v. Palmer, 74 id. 183; In re Estate of Curry, 25 Hun, 321).

The contention of the plaintiff that, commissioners having been once appointed and having acted, the power was spent, under the constitution (article 1, § 7), which provides for the appointment of not less than three commissioners to appraise the damages, cannot be sustaind. The constitution requires that they shall be appointed by a court of record as required by law. We see nothing in this provision to prevent the appointment of a second commission, if the law so provides, if they are of the requisite number and appointed by the proper authority. It is a matter of constant practice by the courts to set aside the action of the commissioners of appraisal and appoint new ones. In the familiar proceedings to lay out highways, and to assess damages for taking the land of the owners through which the highway is laid out, the county court may appoint successive commissioners, until it is satisfied that the statute has been complied with. Section 89 of the highway law (chapter 568, Laws 1890). In actions of ejectment,—triable, by statute and under the constitution, by a jury,— after a verdict for the plaintiff the defendant may take a new trial, as of course, upon payment of costs, under section 1525 of the Code of Civil Procedure. Certainly the vested right of a plaintiff in ejectment to a verdict recovering real estate is as great as the vested right of a landowner in an unconfirmed report of conimissioners to assess damages. We entertain no doubt of the power of the court to appoint this second commission. If the statute authorizing it be oppressive and unjust,- it is not for the court to do away with it by judicial action, unless it violates the constitution. The remedy of a party complaining of" such a statute is to apply to the legislature, and not to the court. Mor is there any force in the position that the charter makes the city a judge in its own case, in the proceedings to assess damages, because the common council has power to reject an appraisal as well as confirm it. The common council, it is true, in a sense, represents the city, but it is charged with public duties. Its members have no pecuniary interests in the result of the proceedings to appraise damages, any more than any other citizen. The common council did not appoint the commissioners, as we have seen, and it is not to be assumed that the courts will appoint commissioners at any stage of the proceedings that would not perform their duties. Mor are we to assume that the common council, in the discharge of its duties, would persist in rejecting appraisals, to any unreasonable extent, because, until an appraisal is confirmed, the purpose of the common council in taking the lands for public purposes cannot be accomplished. Our judicial history, as far as our investigation discloses, fails to .show any abuse of the power in the court to appoint more than one commission. In condemnation proceedings, three separate commissions were appointed to one matter. See In re Corporation of City of New York, 18 Johns. 507. The legislature, in its discretion, has clothed these officers with this duty, and it can be exercised by no other person or tribunal. The duty must be performed by the common council, or not performed at all. Even in case of a judicial officer,, where he has not such an interest in a cause or matter as that the result must necessarily affect his personal or pecuniary interest, or where his interest is minute and he has so exclusive a jurisdiction, by constitution or statute, that his refusal to act in the cause or matter will prevent any proceeding in it, he may act so far as there may not-be a failure of remedy. In re Ryers, 72 N. Y. 1, and cases cited. Many other public officers are required by statute to pass upon matters involving their own pecuniary interests. A town assessor takes part in assessing his own property. Members of boards of supervisors and town auditors pass upon their own accounts. In re Ryers, 72 N. Y. 14, 15. Nor does the forming of an opinion as to the matter in hand disqualify the members of a common council of a city from discharging a duty imposed upon them by statute. People v. Common Council of City of Auburn, 85 Hun, 607 ; 67 St. Rep. 3.

These views lead to the conclusion that the statute referred to-is not in violation of the constitution, that the proceeding complained of was a valid and legal one, and that the preliminary injunction should be dissolved. The order for such injunction should be reversed, but without costs to either party.

All concur, except Lewis, J., not voting.