author: BarNArd, P. J.: Pratt, J:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ALFRED LAWRENCE, Respondent, v. ELIAS MANN and WILLIAM FERBER, Appellants.

      Constitution, wi't. 6, sec. 18 — a justice of the peace cannot hold office often' he is seventy years of age.

    The last sentence of section 13 of article 6 of the Constitution, providing that “ no person shall hold the office of - justice or judge of any court longer than, until and including the last day of December next, after he shall be seventy years of age,” is applicable to justices of the peace. (Pratt, J., dissenting.)
    Appeal from an order made at a Special Term, directing that an absolute writ of prohibition issue, commanding the respondents to desist from any further proceedings in an action brought by the respondent Ferber against the relator, before the respondent Mann, a justice of the peace.
    The question involved was whether or not the respondent Mann, being nearly seventy-three years of age, had any right to act as a justice of the peace.

      J. 8. Millard, for tbe appellapts.

      W. H. E. Ely, for the respondent.
   BarNArd, P. J.:

By section 13 of article 6 of the Constitution of New York, it is provided: But no person shall hold the office of justice or judge of any court longer than until and including the last day of December next, after he shall be seventy years of age.” The question presented is whether this provision includes the class of justices of the peace of the State. There is no real authority upon the question. The article of the Constitution in question seems to refer only to judges of the Court of Appeals and to justices of the Supreme Court. At least those judges only are named in it. It has been decided, however, that the prohibition as to age did apply to county judges, although not named in the article (People ex rel. Joyce v. Brundage, 78 N. Y., 403), and that it did not apply to county judges who were in office at the adoption of the Constitution. (People ex rel. Davis v. Gardner, 45 N. Y., 812; S. C., 59 Barb., 198.) It was held in Dohring v. The People, that justices of the peace were not within the proviso of the Constitution limiting the tenure of the judicial office to seventy years of age. (2 N. Y. Sup. Ct. [T. & C.], 458.) This case was affirmed in the Court of Appeals, but without touching the point under consideration. (People v. Dohring, 59 N. Y., 374.) In this case a justice of the peace sat 'upon a criminal trial, but being a de facto officer the judgment would be upheld on that ground. (Nelson v. The People, 23 N. Y., 296.) The words of the Constitution are broad enough to cover justices of the peace, but neither the Constitution or the law under it has called for a certificate of age from these officers, while it does so from judges of courts of record. The prohibition is not weakened by this omission if a justice of the peace was designed to be included in the article. The limitation would reach the term and end it by its own force. The words are sufficiently comprehensive to cover justices of the peace. The reason of the prohibition applies to all judicial officers, and the terms used have been. passed upon by the courts before the Constitution was adopted, and were held to cover justices of the peace. By 2 Revised Statutes, 275, it was provided that no judge of any court can sit as such in any cause to which he is a party, or in which he is interested, or in which he would be excluded from being a juror, by reason of consanguinity or affinity to either of the parties.” This section was held to cover justices of the peace. (Edwards v. Russell, 21 Wend., 63; Foot v. Morgan, 1 Hill, 654; Place v. Butternuts Woolen, etc., Mfg. Co., 28 Barb., 503.) The rule at common law was otherwise. (Pierce v. Sheldon, 13 Johns., 191; Eggleston v. Smiley, 17 id., 133.)

The order should be affirmed.

DyemaN, J., concurred.

Pratt, J:

Elias Mann was elected a justice of the peace of the town of Greenburgh, Westchester county, for a term of four years commencing January 1, 1884. He was seventy years of age on the 11th of July, 1881. The question presented is, whether he can be permitted to discharge the duties of the office ?

We think the constitutional restriction under consideration was not intended to apply to the justices of the peace. It is true that the language used is broad enough to include this class of officers, and it has been held that the language used is not to be restricted to the judges mentioned in the immediate context. (People ex rel. Joyce v. Brundage, 78 N. Y., 403.) But upon an examination of the discussions in the constitutional convention and the contemporaneous legislation, it is clear that the restriction was intended only to place the limit of age upon the comparatively very extended term which the convention adopted, in order to guard against the possible evil which might arise out of such extension. It was in this view that the disability of age was adopted instead of prohibiting the election of those who were too old to serve out a full term. Two acts of the legislature, to wit, chapter 86, Laws of 1870 and section 54 of the Code of 1877, may fairly be claimed to imply a legislative construction of section 13 of. the judiciary article that it applies at farthest to only judges of courts of record.

The judge at Special Term put his decision upon the ground that the words in section 13, “ but no person shall hold the office of justice or judge,” include justices of the peace. We think this was erroneous, upon the principle that constitutions are not to be interpreted according to the words used in a particular phrase. Constitutions derive their force and authority from ratification by the people, and are to be judged as they were understood by the framers and the people who adopted it. In this view the whole instrument must be considered to ascertain the sense in which the words were employed. (Manly v. State, 1 Md., 135.)

The subject under consideration when the section in question was framed related clearly to judges of courts of record, and the office of justice of the peace was not mentioned, but was referred to in other sections. This renders it clear that the general words “no-person” were intended to be applied to the class of judges and justices enumerated in section 13, and that the section is to be construed as though it read “no person” (so elected) shall hold office after he shall be seventy years of age. That the restriction does not apply to justices of the peace seems- clear not only from a fair interpretation of the Constitution, but it is in harmony with contemporaneous legislative enactments and accords with the practical construction adopted by state officers in carrying out the laws upon this subject.

The order must be reversed, with costs and disbursements.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: ■ BarNArd, P. J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WHITSON OAKLEY and GEORGE W. OAKLEY, as Executors, etc., Appellants, v. NATHAN D. PETTY, as District Attorney and Acting Surrogate, and JAMES H. TUTHILL, Receiver, Respondents.

      District attorney — when Tie may act as surrogate —how the disability of the surrogate and county judge may be established — writ of prohibition — only the jurisdiction of the inferior court may be inquired into — Code of Oivil Procedure, secs. 2484, 2485.
    James H. Tuthill, the surrogate of the county of Suffolk, having recovered a judgment, as receiver, against the executors of Solomon Oakley, deceased, applied to the district attorney of the county for a citation compelling them to appear before him as the acting surrogate and account. The county judge of the county of Suffolk was one of the defendants in the judgment recovered against the executors. Upon the petition were certificates signed by the surrogate and the county judge, respectively, setting forth these facts and that they were thereby incapacitated from acting as surrogate in the matter. The citation having been issued and served, and a warrant to attach the executors for failing to appear having been placed in the hands of the sheriff, a writ of prohibition restraining further proceedings was procured,

      jHeld, that the only question to be considered was whether or not the district attorney was properly acting as surrogate.
    'That the question as to whether or not the receiver was a creditor within the meaning of section 2726 of the Code of Civil Procedure, or as to whether the papers had been properly served, could not be considered.
    That the disability of the surrogate and the county judge to act, was proved by their certificates.
    That sections 2484 and 2485 of the Code of Civil Procedure authorizing the district attorney to act as surrogate in case of the disability or incapacity of the surrogate and county judge are constitutional and valid.
    Appeal from an order made at a Special Term denying a motion for a writ of prohibition
    The affidavits on which the alternative writ was granted show that on the 12th day of October, 1883, the relator, Whitson Oakley, was arrested at the city of New York and George W. Oakley at the city of Brooklyn, by a deputy sheriff of Suffolk county, under an attachment signed Nathan D. Petty, district attorney, acting as ’surrogate; which attachment was directed to the sheriff of Suffolk ■county, and directed him to take the relators and bring them before ,him at Biverhead on the 29th of October, 1883, to answer for certain contempts for not complying with a certain citation, and in failing to comply with an order entered on the return of said citation, directing the relators to render an account as executors and file it, and to personally be and appear before the said Petty, at Biverhead, on the 24th day of September, 1883.
    . Benjamin G. Hitohings, for the appellants.

      T. M. Grijfmg, for the respondents.
   ■ BarNArd, P. J.:

A writ of prohibition is only proper when an inferior court has no jurisdiction either of the subject-matter, or having that, when the court exceeds its jurisdiction in respect thereto. The relators are' executors of the estate of Solomon Oakley, deceased. James LI. Tuthill, as receiver, has a judgment against them as such executors.- James H. Tuthill is surrogate of Suffolk county; Thomas Young is county judge and be is a defendant in the action in which the judgment was recovered against the relators. Each of these officers certify to their disability, and the district attorney acted upon the petition of' James H. Tuthill, receiver, as creditor of relators as executors, and. issued a citation to them to account. They disobeyed the citatipn, and the district attorney, acting as surrogate, issued an attachment against them. There is really but one question presented, and that is the question of the jurisdiction of the officers, for if it was a properly constituted court, the court had jurisdiction of the subject-matter, and whether the receiver was a creditor within the meaning of the statute (Code, § 2726), would fall among questions to be determined by appeal and not by the writ of prohibition. So, likewise* the sufficiency of the service of the papers would not be the subject of review by this writ. Was there sufficient proof of authority for the district attorney to act, and was it within the power of the legislature to provide that a district attorney could, in any case, act as surrogate, are therefore the questions to be considered. It is provided by section 2487 of the Code of Civil Procedure, that when a surrogate is “ precluded from acting in a particular matter,” that fact may be proved by the surrogate’s certificate thereof. The proof of authority, from the General Term, of the defendant, required under section 2484, is only needed when the office of surrogate is vacant or the surrogate is disabled by reason of “ sickness, absence or lunacy.” The certificate of the surrogate, who was the petitioner, is proof of disability. By section 2484 the officers are designated, in order of priority, who shall discharge the duties of the office until the vacancy is filled or the disability ceases. By section 2485 the same officers are designated to “'exercise his jurisdiction and power with respect to that matter,” when a surrogate is disqualified from acting with respect to any particular matter. These proceedings being in Suffolk county there are only three persons capable of acting. The surrogate was interested; the county judge was by force of chapter 151, Laws of 1879, and section 2485 of the Code, acting surrogate. The. surrogate could not certify except for himself. The acting surrogate was vested with the power in the particular matter. His certificate of disqualification was likewise proof of disability. He was a defendant in the judgment which the surrogate was "attempting to collect. In the absence of .other proof he could not be a juror with an interest as co-defendant with one of the parties. It is of no importance whether the certificate disclosed a good reason for disqualification. The creditor was not bound to make an issue with the surrogate or the county judge. The legislature had power to make the district attorney in special cases acting surrogate. The clause providing for a special surrogate does not prohibit the appointment of a court or persons who shall in specified cases of disability perform the duty of the surrogate. It is a matter of necessity. A surrogate and special surrogate may both be related or interested in a particular matter. A designation of the district attorney as a person to perform the duty in the particular case is not prohibited either by the present or by any former constitution. He has stood upon the statute book of the State as an alternate surrogate for over fifty years (chap. 320, Laws of 1830, § 21), and has constantly acted whenever the exigency happened which rendered it necessary. The order refusing writ of prohibition should be affirmed, with fifty dollars costs.

Dyxman, J., concurred; Peatt, J\, not sitting.

Order refusing writ of prohibition affirmed, with fifty dollars costs.


author: BaRNáRd, P. J.:

text:
    FRANKLIN MOREY and Others, Respondents, v. HENRY W. FORD, Appellant.

      Demurrer to answer — the defendant cannot object on the ground of the insufficiency of any allegation of the complaint admitted by his answer — liability of a trustee of a mining company for a failure to file a report —1848, chap. 40, sec. 12.
    The complaint in this action set forth two. causes of action. In the first the plaintiffs sought to recover from the defendant, a trustee of a mining company, the amount due to the plaintiffs for goods sold and delivered to the company, upon the ground that the trustees had failed to file the annual report required by the ■ act under which the company was formed. For a second cause of action the plaintiffs set forth a judgment recovered by them against the company. The defendant answered, admitting the filing of the certificate of incorporation alleged in the complaint and the failure to file the report, denying other allegations contained in the complaint and setting up the fact that he was himself a creditor of the company, in an amount exceeding that claimed by the plaintiff, and was entitled to have the amount of such indebtedness set off against the plaintiff’s claim. Upon a demurrer interposed by the plaintiff to the counter-claim or offset so set up:

      Held, that the defendant having answered admitting the filing of the certificate of incorporation, and the failure to file the report, and taking issue upon other allegations of the complaint, could not upon the hearing of the demurrer interposed to the said counter-claim or offset challenge the sufficiency of the allegation of the complaint in regard to the filing of the certificate and the failure to file the report, upon the principle that he could not demur and plead to the same count.

      Wheeler v. Ourtós (11 Wend., 654) followed.
    That as the failure to file the report made the trustees jointly and severally liable for all the debts of the company (sec. 12 of chap. 40 of 1848), the indebtedness of the company to the defendant constituted no defense to the action.
    Appeal from a judgment sustaining tbe plaintiffs’ demurrer to a defense contained in the answer.
    Tbe action is brought against the defendant, as trustee of the Plata Yerde Silver Mining Company, to recover the sum of $3,000 under section 12 of chapter 40 of the Laws of 1848, as amended, which renders the trustees of mining and manufacturing companies liable for the debts of the company, for a failure to file the annual report required by law.
    The complaint alleges, in substance, that the Plata Yerde Silver Mining Company was a corporation organized under the general manufacturing act of 1848, as amended, having become incorporated on the 14th day of July, 1879 ; that on the 3d day of June, 1880, and before the time for filing the next annual report, the said company became indebted to the plaintiffs in the sum of about $2,750 for goods sold and delivered to said company between November, 1879, and June, 1880, which debt became due and payable June 1, 1881, no part of which has been paid except the sum of $250. The complaint also alleges for a second cause of action that on the 12th day of December, 1882, the plaintiffs recovered a judgment against the said company in the Court of Common Pleas, New York county, for the sum of about $175, no part of which has been paid. It also alleges that the defendant Henry 1Y. Ford has been since the 1st day of October, 1881, a trustee of the Plata Yerde Silver Mining Company, and that the said company made default in filing and publishing its annual report in both the years 1882 and 1883, and that by reason of such default the defendant became liable to the plaintiffs to the amount of the debts existing at the time of said default.
    The answer admitted some and put in issue other of the material allegations of the complaint, and set up an indebtedness due from the company to the defendant, which he sought to have set off against the plaintiffs’ claim. Upon the argument the defendant claimed that the facts as to the filing of the certificate of incorporation, and the failure to file the' report, were insufficiently alleged in the complaint.

      Thomas EL. Rodman, for the appellant.

      Oliver E. Branch, for the respondents.
   BaRNáRd, P. J.:

Upon demurrer ibis a general rule that the court will consider the whole record and give judgment against the party who committed the first error in pleading. (Wymam v. Mitchell, 1 Cow., 316; Griswold v. Nat. Ins. Co., 3 id., 96; Utica Ins. Co. v. Scott, 8 id., 709.) This rule is subject to this limitation that when a defendant to' whose pleading a demurrer has been interposed, has pleaded a plea such as the general issue going to the whole declaration_or to a part of it, he cannot be allowed to go back to the declaration upon a demurrer to another plea or pleading, upon the principle that he cannot demur and plead to the same count. (Wheeler v. Curtis, 11 Wend., 654.) The defendant by answer has admitted that the copy certificate of incorporation was filed duly in New York county, and that the report called for by section 12 of chapter 40 of Laws of 1848, has not been filed in that county when by law it should have been. It is too late, therefore, to review the allegations in that regard stated in the complaint. So also as to the second cause of action. .The allegation is that the plaintiff recovered a judgment for costs against the corporation. It does not appear what the action was for, whether for a tort or upon a contract, but the defendant has taken issue upon it and he cannot both plead and demur. The People v. Booth (32 N. Y., 397) was a demurrer to an answer for insufficiency. It was held that the complaint could be attacked. That was within the rule. An entirely-ibad answer is good upon demurrer where there is an entirely bad complaint. Upon the demurrer itself it was properly overruled. The defendant was a trustee of a mining corporation incorporated under the general law. (Chap. 40, Laws of 1848.) In case of failure to make and file.the report and publish it as required by the law, all the trustees jointly and severally are made liable for all the debts of the company then existing and which shall be contracted before this report shall be made. (Sec. 12.)

The defendant has answered, in addition to the admission made and to the general denial, that he was a creditor of the company to a large amount. It is not like the case of a stockholder sued for an amount equal to his stock. If he pays an amount to any creditor of the company equal to his stock he is free. (Garrison v. Howe, 17 N. Y., 458.) Or if he is himself a creditor to an amount equal to his stock he cannot be called upon to respond to another creditor for his debt. In the present case the trustee is liable for all the debts, and he cannot defend because he paid any sum short of the entire indebtedness of the company.

The order overruling the demurrer to the seventh section of the eomplaint, paragraphs seven to ten, should be affirmed, with costs to abide the event of the action.

Dykman and Pratt, JJ., concurred.

Order sustaining demurrer to part of defendauts answer affirmed, with costs to abide event.


author: Baenaed, P. J.:

text:
    In the Matter of the Petition of EDWARD B. UNDERHILL and Others for Draining Lands, etc.

      Drainage of swamps— the county judge may remove a commissioner for good cause shown and fill his place — 1869, chap. 888, as amended by 1871, chap. 303.
    The county judge of Westchester county appointed three commissioners under the statutes providing for the drainage of swamps. (1869, chap. 888, as amended by 1871, chap. 303.) Thereafter an application was made to remove one of the commissioners, who possessed the qualifications and had filed the oat hrequired by the act, upon the ground that he had made up his mind and publicly expressed himself to be in favor of draining the swamps. The County Court declined to act, upon the ground that it had no power to remove a commis" sioner and fill his place for good cause shown.

      Held, error; that the fourteenth section of the act of 1869 conferred upon the court full power to act in such a case.

      Appeal from an order made by tbe county judge of Westchester county denying a motion to remove Henry C. Near, one of the Commissioners appointed to act upon an application for the drainage of certain lands in "Westchester county.

      Travis dt Smith, for S. C. Whitney owner of land, appellant.

      S: G. H. Bailey, for the petitioners, respondents.
   Baenaed, P. J.:

The county judge of Westchester county appointed three commissioners under chajher 888 of the Laws of 1869, as amended by chapter 303, Laws of 1871. These statutes refer to the drainage of swamps: One of these commissioners was Henry O. Hear. The statute' requires the commissioner to be a freeholder and resident of the county or counties. Near filled both requirements, gave his bond' and took the oath of office. Application was made to the County Court to remove Near, because he had made up his mind and publicly expressed it in favor of draining the swamp. The County Court declined to act, because it had no power after an appointment of.a commissioner to remove him and fill his place for good cause shown. Such a power should be incident to the power of appointment in a court of law. The commissioners are to find by a majority vote whether ditches shall be opened through the lands of others than the petitioners, and whether the drainage is necessary for the public health. They have power to assess the cost of the work upon -the land benefited. It is. evident that the landowners through whose lands the ditch is to go, if it is opened, should have a fair tribunal, as well as those who have to pay for the work. The legislature have not left the question in doubt. By the fourteenth section of the act of 1869 it is provided that the County Court may at any time correct any manifest error in any of the proceedings under this act when such correction shall be in furtherance of justice, and the said court may allow such amendments and make such orders and impose such terms as shall promote the objects of this act and be equitable to all parties.” Full ppwer is given to reach ah equitable result. Appeals from the orders of. the County Court are given to this court by section 12 of the act of 1S69. The order should be reversed, with costs and disbursements, and the record remitted to the county court to pass upon the merits of the motion to remove the commissioner.

Dteman and Pratt, J J., concurred.

Order reversed, with costs and disbursements, and proceedings remitted to county court to pass upon the merits.


author: Barnard, P. J.:

text:
    SUSAN S. FRANCKLYN, Appellant, v. LONG ISLAND CITY and Others, Respondents.

      Tames — power of the legislature to validate them when void — the act may he made applicable to existing actions —1882, chap. 383, sec. 18.
    Section 18 of chapter 383 of 1882, relating to Long Island City, provides that “ no • tax or taxes heretofore laid, levied or confirmed, or attempted or intended so to be, for city or ward purposes in said city, shall be vacated or set aside, nor shall any action or proceeding in law or in equity be had or heard to remove the same as a cloud upon title, or to review or correct the same, or restrain the collection thereof, by reason of the omission or neglect of any officer or department of said city to perform any duty imposed upon him or it in relation to the assessment, * * * or for or by reason of any omission or neglect to comply with or carry out any law or ordinance, or for or by reason of any irregularity,, neglect or technicality whatever.”

      Held, that the act was'applicable to actions, commenced before its passage, to vacate taxes previously levied.
    That it prevented the court from vacating or restraining the collection of a tax, though it was shown that the assessors had fraudulently omitted property subject to taxation to favor the owner thereof, and though two of thp assessors had so deceived and ignored the third as that the assessment could not be said to be the act of the three.
    Appeal from a judgment dismissing tbe complaint, entered upon. the report of a referee.
    The action was brought to have certain taxes levied in Long Island City, in and for the year 1881, declared null and void and canceled them on the tax rolls. The plaintiff claimed that the assessors of the city intentionally omitted from the assessment a large quantity of property liable to assessment and taxation, and that one of the assessors was prevented by the other two 'from taking part in the assessment of property in two wards of the city.

      Frank E. Blackwell, for the appellant.

      J. Ralph Burnett, for tbe respondents.
   Barnard, P. J.:

There can be no doubt but that the assessors improperly left out of their lists of real estate for the purposes of taxation very considerable property in the first and second wards of Long Island City. There is proof that it was done in fraud of the principle of equality which should govern all taxation. There is even proof that it was done to favor certain particular persons. It could not be ignorance, because the omission of property is not uniform; one escapes and another pays under precisely the same state of facts. There is even proof that two of the assessors deceived and ignored the third to such an extent that the assessment cannot be said to be the act of three assessors. Assuming that the tax is fraudulent and illegal for other reasons, the legislature have validated the tax. By chapter 383, Laws of 1882, section 18, it was enacted that all previous taxes, notwithstanding any omission of any officer, and notwithstanding any irregularity, “ are hereby in all respects ratified and confirmed.” The legislature have the absolute power of taxation. They may impose taxes directly, and may exempt property without any reason other than the will of the legislature. By chapter 363 of Laws of 1882 the legislature legalized void taxes in Brooklyn. This was held a good validation of the tax, but not of proceedings taken before the passage of the law for its correction. If the tax in question is held good, it would prevent a court of equity from decreeing it void because the action for that purpose was commenced before the passage of the law. The law says that no proceeding in law or equity shall be “ heard to remove the same as a cloud upon title.” It was competent for the legislature to take away this relief. (Lennon v. The Mayor, 55 N. Y., 361.) The judgment should be affirmed, without costs.

DykmaN and Pratt, JJ., concurred.

Judgment affirmed, without costs.


text:
    WILLIAM CURRY, Appellant, v. AUGUSTA G. VAN WAGNER, Respondent.

      Promissory note — when the indorser is discharged by the aecepta/nce, by the holder thereof, of a renewal note.

    Where a debtor has given his note payable at a fixed time, with an indorser, to his creditor, and thereafter for the purpose of renewing the same gives to the creditor a similar note on time with the same indorser, which is accepted by the creditor, who does not present the first note for payment, or notify the indorser of its non-payment, the liability of the indorser upon the first note is discharged and thereafter he is only liable upon the second.

      Sheldon v. Horton (43 ÍT. Y., 93) distinguished.
    Appeal from a judgment, dismissing the complaint, entered upon the trial of this action by the court without a jury.
    The action was brought upon a promissory note against the maker and indorser thereof. The complaint was dismissed as to the indorser upon the ground that no notice of the non-payment of the note had been given to her.

      William Morris, for the appellant.

      Gerard B. Van Wort, for the respondent.
   Barnard, P. J.:

This case does not fall within that class of cases like Sheldon v. Horton (43 N. Y., 93). In that case a debtor who had given his creditor a note with an indorser payable at a fixed time applied to the holder to let it remain another year. The indorser told the holder that he was willing. This was held to be a waiver of protest and notice, and the indorser was held as if the note had been protested. In the present case the only consent is by a renewal note, the first note (the one sued on) was given October 6, 1882, at three months. On the 4th of January, 1883, the plaintiff took a precisely similar note to the first, except the date “ to renew it.” The defendant Augusta Yan Wagner was the indorser on the first note and also upon the second. If the indorser consented that the first note be not presented for payment and^waived notice of non-payment? she did so by a new contract, which was that the second note should be presented and notice of non-payment given her. That was not done, so that if her consent to waive protest is to be drawn from the new note the maker must do what he agreed thereby to protect'the indorser upon the new note. The indorser was never bound upon the note in suit. "When the maker, before it was due, delivered the new note with the same indorser having a longer time of payment inserted, the indorser is only bound upon this new note and cannot be sued upon the first even if the second had been protested, if the first was not.

The judgment should be affirmed, with costs.

Peatt, J., concurred.

Present — Baenaej>, P. J., JDykman and Peatt, JJ.

Judgment affirmed, with costs.


author: BajRNAed, P. J.:

text:
    BAILEY HOBBS, Appellant, v. THE CITY OF YONKERS, Respondent.

      Bight of the authorities of a city to fix the sala/ries of its officers — when a' previous agreement made by the city and, an officer as to his sala/ry will be rendered valid, by authority to make such an agreement being subsequently conferred by the legislature.

    In June, 1877, tlte plaintiff -was appointed the treasurer of the city of Yonlcera by the mayor thereof, and his appointment was confirmed by the common council. Prior to his appointment and confirmation he had signed a paper addressed to the mayor and common council, by which he agreed, if appointed, to cover into the city treasury all the fees, interest, per centages and emoluments received by him in excess of $2,000. Prom the time of his appointment, until November 29, 1881, he drew a salary of $2,000 a year, and paid all his receipts into the treasury, his accounts being settled annually on that basis. At the time of his appointment the city had no authority to fix the compensation of its treasurer, but by chapter 119 of 1878, authority to fix and limit it to an amount not exceeding $2,000 a year, at or before the commencement of his term of office, was conferred uppn the common council thereof.
    In an action brought to recover the excess of the plaintiff’s fees over the amount retained by him:

      Held, that he could not recover.

      That the annual settlement of the plaintiff’s accounts and the receipt by him. of the $2,000 after the passage of the act of 1878, amounted to a waiver of his right to insist upon the formal fixing of his compensation thereunder, and to an adoption and ratification of the agreement previously made.
    Appeal from a judgment, dismissing the complaint, entered upon tbe trial of this action by the court .without a jury.
    The action was brought by a former treasurer of the city of Yonkers to recover an amount alleged to be due to him for fees and per centages which had been paid by him into the city treasury.

      F. F. Keyes, for the appellant.

      Theodore Fitch, for the respondent.
   BajRNAed, P. J.:

Under' chapter 35, Laws of 1873, the office of city treasurer of the city of Yonkers, was filled by an appointment of the mayor and the approval of the appointment by the common council. ..He was nominated on the 14th May, 1877, and failed to obtain the confirmatory vote of the aldermen.

On the 15th June, 1877, a vote of approval of the plaintiff in advance of an appointment was obtainéd. Then the aldermen presented a written paper to Hobbs to. the effect that he would only ■charge $2,000 a year,- in lieu of all fees, interest, per centages and emoluments, and would “cover into the city treasury” all sums received in excess of that sum. The mayor was then informally requested by the common council to renominate Hobbs, which he did, and Hobbs was confirmed as city treasurer under this'arrangement. The compensation fixed by law was then one per cent on all payments by him. By chapter 119 of the Laws of 1878, the common council was authorized to fix and limit the amount of compensation of city treasurer, at a sum not exceeding $2,000 a year, at or before the commencement of his term of office. It will be thus seen that at the time of the appointment of the plaintiff the city of Yonkers had no authority to fix the compensation of its treasurer, and subsequently no new appointment of the plaintiff was made, bnt he continued to hold the office until the 29th November, 1881, without any formal act in respect to the compensation of the city treasurer. The plaintiff, however, in each year paid all his receipts to the city treasury except the sum of $2,000, and his accounts were annually settled on that basis. The plaintiff cannot now repudiate all these settlements and sue the city for moneys received in excess of $2,000 per year. As to all the time, except about ten months in the first year, the common council had power to limit the compensation. The arrangement was no doubt made at the $2,000 in view of the legislature permitting it, which was anticipated. At all events after April, 1878, the power existed, only subject to the form that it should be fixed before the expiration of the term of office. Without the consent of the plaintiff, this form would necessarily have to be observed to be legal. The plaintiff had agreed to the sum before, and had executed the arrangement. He could waive the formal fixing after the passage of the law of 1878. He did this by the settlement of his accounts on that basis, and by the actual payment into the treasury of the excess. The agreement to limit, made in 1877, when there was no power, could be and was adopted after the law was passed by the acts of the parties. The payment was made into the treasury under the agreement with full knowledge of the facts and under the. claim by the city, that it was the right of the city to receive it, and the estoppel which results from the voluntary payment in such cases will prevent a recovery back of it from the city. (Flower v. Lance, 59 N. Y., 603; Quincey v. White, 63 id., 370; Hodge v. Hoppock, 75 id., 491; Town of Verona v. Peckham, 66 Barb., 103; Dunn v. Hornbeck, 72 N. Y., 80.)

The judgment should be affirmed, with costs.

DykmaN and Pba.it, JJ., concurred.

Judgment affirmed, with costs.


author: Babnaed, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. EDWARD RORKE and JAMES RORKE, Appellants, v. THE BOARD OF ASSESSORS OF THE CITY OF BROOKLYN, Respondent.

      Tarnation — exemption of school-houses and the lots upon which they stand — when the owner of a building leased for a school is not entitled to it — 1 B. 8., 888, sec. 4.
    The relators being the owners oí a house and lot in the city of Brooklyn leased the same to the board of education of the said city to be, and the same was, used as a public school. Prior to that time the house had been used as a private dwelling. ■

      Held, that the relators were not entitled to the exemption from taxation conferred by section 4 of 1 Revised Statutes, 888, upon every building erected for the use of a college, incorporated academy, or other seminary of learning, and every school-house, and the lots upon which such buildings are situated.
    The word ‘'school-house” refers only to such buildings, with the sites upon which they are situated, as the district would have been compelled to pay a tax upon as owner, had it not been for the exemption created by the statute.
    Appeal from an order made at a Special Term affirming the proceedings of the respondent upon the return to a writ of certiorari.

    The relators owned a lot in the city of Brooklyn and a building thereon, which had, prior to May, 1881, been used as a private dwelling. In that month they leased the premises to the board of education of the city of Brooklyn for the term of one year ánd six months to be used as a public school. The building was from that time down to the time of the issuance of the writ herein occupied by the board and used for school purposes, that is, as a branch of one of the public schools. The relators claimed that their real estate was entitled to exemption from taxation for the year 1882.
    ■ Jesse Johnson, for the appellants.

      John A. Taylor, for the respondent.
   Babnaed, P. J.:

The order made at Special Term necessarily resulted from the principle established in Chegaray v. The Mayor (13 N. Y., 220). By 1 Revised Statutes (388, § 4) “ every building erected for the use of a college, incorporated academy or other seminary of learning; every building for-public worship; every school-house, court-house and jail; and the several lots whereon such buildings are situated, and the furniture belonging to them.”

The Court of Appeals held that the exemption of school-houses in the statute only referred to those used for public common schools. The exemption was claimed for a private school-house. The present •is a case where the owners of land leased to the board of education a house for school purposes, and it has in point of fact been used for a public school. The Court of Appeals in their decision speak of buildings provided for the use of public common schools and buildings used by the public, and from this language the present applicant bases his claim for exemption. It is evident that the Court of Appeals did not intend to decide the question,now presented. It was not in the case, and the opinion is devoted wholly to the discussion of the question whether private school-houses were exempt. The usé of the language “ used by the public,” had no relevancy except upon that question. When it was decided that public school-houses were liable to taxation, the question of what was a public school-house, was left open.' The owner of land is liable to taxation. If he leases it for a public school it is not a school-house within the meaning of our school laws. The lessees claim no exemption and they use the building as a school. -’The lessor is liable as owner. The use of it by his lessee did not create an exemption in his favor. The words “school-house” in the statute had sole reference to those buildings with the site which the district would have been bound to pay a tax upon as owner but for the exemption. The exemption statute was designed to aid education. Under the construction claimed it would not do so. The board of education hire a building and pay the value of its use. and occupation. The owner would get from the treasury by exemption the tax in addition to the value of the use of the premises.

The order should be affirmed, with costs and disbursements.

DyKMAN, J., concurred; Pbatt, J., not sitting.

Order affirmed, with costs and disbursements.


author: BarNArd, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES E. BIRCH, Appellant, v. ISAAC N. MILLS, County Judge of the County of Westchester, Respondent.

      Board of supervisors — power■ of, to adopt rules —1875, chap. 482 — the board may reconsider a resolution appointing a person its libraA'ian.

    Among the rules adopted by the hoard of supervisors of Westchester county was one providing that a motion for reconsideration might he made by any member, but that no such motion should be in order unless made on the same day or on the next day following the decision proposed to be reconsidered, unless by unanimous consent. On January 2,1874, a resolution was offered in-the board appointing one Kinch its librarian. The resolution was amended by inserting the name of the relator for that of Kinch, and, as so amended, it was adopted. On January third a'motion to reconsider this resolution was-carried; on January fourth the resolution was reconsidered and lost; on January seventh a resolution appointing Kinch librarian was adopted.

      Held-, that the board had power to reconsider and rescind the resolution by which the relator was appointed its librarian, and to thereafter appoint Kinch to that office.
    Appeal from an order, made at a Special Term, denying a motion for a writ of mandamus commanding tbe respondent to deliver to tbe relator a certificate that the latter had faithfully performed the duties of the office of librarian and janitor of the supervisors’ room.
    The relator acted as librarian and janitor of the supervisors’ room for the year 1883, and sent his resignation, to take effect January 1, 1884, to the board of supervisors. On January 2, 1884, a resolution was proposed appointing one Kinch librarian and janitor of the supervisors’ room for the year 1884. It was amended by substituting the relator, and, as amended, passed. And on the day following the adoption of that resolution, upon the motion of a. member of the board, the resolution was reconsidered, and upon the next day the resolution appointing relator was reconsidered and rescinded. On January seventh, a resolution appointing Harold T. Kinch librarian and janitor for the year 1884 was adopted.

      Wilson Brown, •Tr., for the appellant.

      Nelson FI. Baker, for the respondent.
   BarNArd, P. J.:

It is provided by law that boards of supervisors may make rules for the conduct of their proceedings. (Chap. 482, Laws of 1875.) It was a rule of the board, duly adopted, that a motion for reconsideration may be made by any member; but that no such motion should be in order unless made on the same day or on the next day following the decision proposed to be reconsidered, unless by unanimous consent.

On the 2d day of January, 1884, a resolution was offered appointing one Bunch as librarian for the year commencing 1st January, 1884. An amendment was proposed that the relator be appointed instead of Kinch.

The amendment was carried. On the next day a reconsideration was moved and carried. On the 7th of January, 1884, Kinch was appointed. The procedure was in entire accordance with the rules, and any appointment would be subject to them. They are a law to the supervisors and to all persons dealing with them. All contracts implied from a resolution are subject to the right to change it by another resolution passed in accordance with the rules of the board; otherwise a minority might bind immutably a majority temporarily absent by a resolution or other enactment. The order should be affirmed, with costs.

Pratt, J., concurred; DykmaN, J., not sitting.

Order refusing writ of mcmdamus affirmed, with costs.


author: Babnaed, P. J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES LANGTON, Appellant.

      Criminal law —when an expression of an opinion by the judge, as to the weight of evidence, requires that a new trial he granted — right to convict of larceny on an indictment far robbery.

    Appeal from a judgment of tbe Oourt of Sessions of Richmond county, convicting tbe defendant of tbe offense of robbery in tbe second degree.
    Tbe defendant was accused of having seized and carried away tbe prosecutoi,’s watch. Tbe judge charged that tbe jury might find tbe defendant guilty of robbery in the first, second or third degree, or find a verdict of acquittal, but that they had “ nothing to do with the crime of larceny.” To this the prisoner’s counsel excepted.
    The court at General Term said: “ The conviction of this defendant should be reversed. In the early part of the charge to the jury, the judge delivered the following words: “ It seems to me that a chain of evidence has been woven around this defendant from which it is impossible for him to escape punishment.” .
    This was beyond the privilege of a trial judge to express an opinion on questions-of fact involved. The language did not leave the question to the jury to be decided on their own judgment, but amounted to a positive charge that it was impossible for the defendant to escape punishment.
    We incline to the opinion that the charge to the jury, that they had nothing to do with the crime of larceny, was erroneous. Before the Penal Code a conviction might be had for larceny under an indictment for robbery. -It is more doubtful now, but defendants are entitled to the benefit of all doubts on the trial, and we think be was entitled to a charge in this ease that the jury might convict of larceny.
    The conviction should be reversed and a new trial granted.

      George Gallagher, district attorney, for the People.

      Thomas W. Fitzgerald, Jr., and Daniel H. Fitzgerald, for the appellant.
   Opinion by

Babnaed, P. J.;

Pratt, J., concurred in the result.

Conviction reversed and new trial granted


author: DyemaN, J.;

text:
    In the Matter of the BANK OF SING SING. JAMES K. O. SHERWOOD, Receiver, etc., Respondent, v. HORACE BAKER, Administrator, etc., of SANDFORD CHADEAYNE, Deceased, Appellant.

      Insolvent banks — proceedings to enforce the liability of stockholders —when ba/rred, by lapse of time — 1849, chap. 226.
    Appeal from an order made at a Special Term denying a motion to set aside an order of reference.
    These proceedings were instituted to enforce the liability of stockholders of insolvent banks under chapter 226 of 1849.
    Henry Willets was appointed the receiver of the Bank of Sing Sing on December 31, I860.. He declared a dividend of eight per cent March 1, 1862, fourteen months after his appointment. He was removed December 31, 1863, and after the appointment and removal of two intermediate receivers, Mr. Sherwood, the present receiver, was appointed in June, 1878. He made a report May 4, 1882, and thereupon an order of reference was made appointing a referee, who was directed, after giving notice to all persons concerned, to apportion, the debts and liabilities of the bank, contracted after the 1st day of January, 1850, and remaining unsatisfied, among the stockholders of said bank ratably in proportion to their stock. A motion to vacate this order was made at Special Term and denied, and from this order this appeal was taken.
    The court at General Term said : “The order of reference should have been vacated, because it never should have been made. Proceedings under these receiverships have been permitted to sleep so long that they should know no waking. If the various statutory limitations and restrictions as to time have no strict application, then certainly twenty years is a time beyond which, in analogy to the utmost limitation, no proceedings should be allowed.”
    The order appealed from should be reversed, with costs and disbursements.

      ¡Samuel Watson, for the appellant.

      John S. Smith and James S. Stearns, Tor .the respondent.
   Opinion by

DyemaN, J.;

Pratt, J., concurred; Barnard, P. J., not sitting.

Order reversed, with costs and disbursements, and motion to vacate reference granted, with costs.


text: Samuel Wardell, Respondent, v. David H. Fowler, Appellant.


text: Missouri Voss, Respondent, v. Daniel H. Fowler, Appellant.


author: Dyeman, J.;

text:
    Athelinda Wardell, by Guardian, Respondent, v. David H. Fowler, Appellant.

   Order denying motion to cancel judgments affirmed, with costs and disbursements. Opinion by

Dyeman, J.;

Barnard, P. J., not sitting.


author: Barnard, P. J.

text:
    The People of the State of New York ex rel. Daniel W. Sherry v. The Commissioners of Highways of Brookhaven.
   Proceedings and order of commissioners laying out highway and order to remove obstructions reversed, with fifty dollars costs. Opinion by

Barnard, P. J.


author: Dyeman, J.

text:
    Jacob L. Allen, Appellant, v. Austin Corbin, Respondent.

   Judgment affirmed, with costs. Opinion by

Dyeman, J.


author: Prat?, J.

text:
    Sarah Searles, Respondent, v. Fernando Wood, Appellant.
   Judgment of County Court affirmed, with costs. Opinion by

Prat?, J.


text:
    John Putney, Respondent, v. Angus McIntosh, Appellant.
   Judgment affirmed, with costs. Opinion by

Dyeman, J.


author: .Pratt, J.

text:
    Martin McNamara, Appellant, v. Charlotte Sinclair, Respondent.

   Judgment affirmed, with costs. Opinion by

.Pratt, J.


author: Pratt, J., and Barnard, P. J.;

text:
    Ernest Loeffler, Appellant, v. Lucas Brichenstein, Respondent.
   Judgment reversed and new trial granted, costs to abide event. Opinions by

Pratt, J., and Barnard, P. J.;

Dyeman, J., not sitting.


text:
    William Adler, Respondent, v. Charles F. A. Heinricks, Appellant.

   Appeal withdrawn.


text:
    Cuno Van Trotha, Respondent, v. The Long Island Railroad Company, Appellant.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman, J.

text:
    Augustus R. Griffin, Receiver, etc., Respondent, v. The Long Island Railroad Company, Appellant.

   Judgment. and order denying new trial affirmed, with costs. Opinion by

Dykman, J.


author: Dykman, J.;

text:
    Annie M. Wooley, Appellant, v. Francis B. Baldwin, Respondent.
   Order sustaining defendant’s demurrer affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


author: Pratt, J.

text:
    Kate Molbus, Appellant, v. Henry Herrmann, Respondent.
   Order striking out five paragraphs of the complaint affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    The People of the State of New York ex rel. Stephens v. J. Benedict See and others.
   Motion to correct order denied, with ten dollars costs. Motion for reargument denied, with ten dollars costs. Opinion by

Barnard, P. J.


author: Dyk-man, J,;

text:
    Henry Hoffman, Respondent, v. William S. Marrin and others, Appellants.

   Motion denied, without costs. Opinion by

Dyk-man, J,;

Barnard, P. J., not sitting.


text:
    The People of the State of New York, Respondent, v. Darius Truesdell, Appellant.

   Conviction and judgment affirmed. Opinion by

Dykman, J.


text:
    William Matthews, Appellant, v. George H. Shaffer, Respondent.

   Order affirmed, with costs and disbursements. Opinion by

Pratt, J.


text:
    Emily L. Easton, Appellant, v. Edward Booth, Respondent.

   Order changing place of trial affirmed, with costs and disbursements. Opinion by

Dykman, J.


author: Pratt, J.;

text:
    Josiah Partridge, Appellant, v. John C. Brown and others, Respondents.

   Order vacating attachment affirmed, with costs and disbursements. Opinion by

Pratt, J.;

Barnard, P. J., dissenting.


text:
    Charles B. Herrick and others, Respondents, v. George P. Van Wyck, Appellant.

   Order referring action affirmed, with costs and disbursements. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


author: Barnard, P. J.;

text:
    Eugene G. Barrows and others, Appellants, v. Thomas W. Bowers and others, Respondents.

   Order vacating attachment reversed, with costs and disbursements and motion denied. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    Edward E. Britton, Respondent, v. The United States Illuminating Company, Appellant.

   Order denying motion for bill of particulars, affirmed, with costs and disbursements. Opinion by

Barnard, P. J.


text:
    The People of the State of New York ex rel. Anthony S. Woods, Appellant, v. The Board of Police of Long Island City, Respondent.

   Order dismissing relator reversed, and relator reinstated, with costs. Opinion by

Pratt, J.


text:
    William Butler, Appellant, v. James McGovern, Respondent.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Leonard A. Merritt, Respondent, v. Maurice Fitzgibbons and others, Appellants.

   Judgment and order refusing to set aside verdict and denying new trial affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    Charles E. Gorton, Respondent, v. Catherine E. White, Appellant, Impleaded, etc.

   Paragraphs 1, 2 and 4 of the order revei'sed, with costs and disbursements, and leave given appellant to correct and file case in twenty days -and to complete appeal. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    Fuller Electrical Company, Respondent, v. Benjamin Lewis and others, Appellants.

   Judgment affirmed, with costs. Opinion by

Dykman, J.;

Barnard, P. J., dissenting.


author: Dyk-man, J.

text:
    Diedrick Mohlenbrock, Respondent, v. Jacob Grill and others, Appellants.

   Judgment affirmed, with costs. Opinion' by

Dyk-man, J.


text:
    Albert H. Browe, Appellant, v. Continental Telegraph Company, Respondent.

   Judgment reversed and new trial granted, with costs to abide event; reference vacated. Opinion by

Pratt, J.;

Barnard, P. J.j dissenting.


text:
    Eber L. Pilgrim, Administrator, etc., Appellant, v. Patrick Donnelly, Respondent.

   Judgment and order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Dykman, J., not sitting.


text:
    John C. Provost, Respondent, v. John C. McIncroe, Appellant.

   Judgment affirmed, with costs. Opinion by

Dykman, J.


text:
    David Griffin, Respondent, v. George K. Otis, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Myra E. Favor, Respondent, v. Anthony W. Dimmock and Edward N. Whiton, Appellants.

   Judgment and order denying new trial upon the minutes affirmed, with costs. Opinion by

Barnard, P. J.


text:
    James J. Lutkin, Appellant, v. James Whitely and others, Respondents.

   Judgment and order denying new trial affirmed, with costs. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Annie E. Embler, Respondent, v. William J. Embler and others, Appellants.

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

Pratt, J.;

Dykman, J., not sitting.


text:
    Peter D. Conklin, Appellant, v. The New York, Ontario and Western Railroad Company, Respondent.
   Order dismissing complaint and judgment affirmed, with costs. Opinion by.

Dykman, J.;

Barnard, P. J., dissenting.


text:
    Charles C. Prince, Respondent, v. David D. Acker and others, Appellants.
   Judgment and order denying new trial reversed, and new trial granted, costs to abide event. Opinion by

Barnard, P. J.;

Pratt, J., not sitting.


text:
    Thomas Hayes, Respondent, v. The Bush and Denslow Manufacturing Company, Appellant.
   Judgment and order denying new trial affirmed, with costs. Opinion by

Pratt, J.


text:
    Frederick Kropp, Respondent, v. Adelia Jackson, Appellant.
   Judgment affirmed, with, costs. Opinion by

Dykman, J.;

Barnard, P. J., not sitting.


text:
    David Carll, Respondent, v. Whitson Oakley and another, Appellants.
   Appeal from judgment and orders amending the same, order, confirming the second report of the referee and order granting allowances dismissed, with ten dollars costs. Opinion by

Barnard, P. J.


text:
    Martha A. Beales, as Executrix, etc., v. James Lyons, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


author: Dykman and Pratt, J J.;

text:
    Ida J. Ross, Appellant, v. Joseph Ross, Jr., Respondent.
   Order releasing defendant from arrest reversed, with leave to apply at Special Term for defendant’s release; twenty days’ stay to make the application. Opinions by

Dykman and Pratt, J J.;

Barnard, P. J., not sitting.


text:
    John A. Husson, Respondent, v. William G. Oppenheim, Appellant.
   Judgment affirmed, with costs. Opinion by

Pratt, J.


text:
    Ida J. Ross, Appellant, v. Joseph Ross, Jr, Respondent.
   Motion to correct General Term order denied. Opinion by

Dykman, J.;

Pratt, J., not sitting.


text:
    Mary Powers, Administratrix, etc., Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Order refusing new trial reversed, and new trial granted, costs to abide event. Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    John A. Lambert, Executor, etc., Respondent, v. Horace Craft, Executor, etc., Appellant.
   Decree of surrogate affirmed, with costs. Opinion by

Dykman, J.


text:
    Sherman C. Abramson, by Guardian, Respondent, v. Frank J. Dupignac, Appellant.
   Judgment affirmed, with costs. Opinion by

Barnard, P. J.


text:
    Susan Bedell, Administratrix, etc., Appellant, v. The Long Island Railroad Company, Respondent.

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

Barnard, P. J.


text:
    George H. Reynolds, Appellant, v. James Hyatt, Supervisor, etc., Respondent.

   Appeal withdrawn.


text:
    Sarah J. Flannigan, Respondent, v. Abner White, Appellant.
   Judgment of County Court affirmed, with costs. Opinion by

Pratt, J.;

Barnard, P. J., dissenting.


text:
    Matter of Judicial Settlement of Account of Jacob Kirby, Executor, etc.

   Portions of decree of surrogate appealed from reversed, with costs to appellant out of the estate. Opinion by

Barnard, P. J.


text:
    John Higgins, Respondent, v. John Cameron and Ansel Fagan, Appellants.

   J udgment affirmed, with costs. Opinion by

Dyeman, J.


text:
    Charles C. Moore, Respondent, v. William L. Allison, Appellant.

   Judgment affirmed, with costs. Opinion by

Pratt, J.;

Dyeman, J., not sitting.


author: Barnard,

text:
    The People of the State of New York, Respondent, v. Alfred Marks, Appellant.

   Conviction affirmed. Opinion by

Barnard,


text:
    Matter of Application of Staten Island Railroad Company to Acquire Lands of Barton.
   Order appointing commissioners affirmed, with costs and disbursements. Opinion by

Dyeman, J.


text:
    Theodore Lloyd, by Guardian, etc., Appellant, v. Theodore V. Purdy, Respondent.

   Judgment reversed and new trial granted, costs to abide event preference vacated. Opinion by

Pratt, J.


text:
    In the Matter of the Application of Mary E. Clark v. The Village of North Tarrytown
   —Order confirming award of commissioners and granting costs and allowances reversed and writ quashed, without costs. Opinion by

Barnard, P. J.;

Dye-man, J., not sitting.


text:
    In the Matter of Estate of Henry H. Farnum, Deceased.
   Order of surrogate affirmed, with costs to respondent against the appellant. Opinion by

Barnard, P. J.


author: Barnard, P. J. ;

text:
    Mary Coddington, Respondent, v. The Brooklyn and Cross-Town Railroad Company, Appellant.

   Judgment aqd order denying new trial affirmed, with costs. Opinion by

Barnard, P. J. ;

Pratt, J., dissenting.


text:
    Henry C. Higginson, Appellant, v. Alice T. Brown, Respondent.
   Reargument ordered. Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    James Lennox, Appellant, v. The Lorillard Steamship Company, Respondent.
   Judgment reversed and new trial granted, costs to abide event; order denying new trial upon the ground of newly discovered evidence reversed, and new trial granted. Opinion by

Barnard, P. J. ;

Dyeman, J., not sitting.


author: DykmaN, J.

text:
    James Creegan, Appellant, v. James E. Collier, Respondent.
   ' Judgment affirmed, with costs. Opinion by

DykmaN, J.


author: BarNARD, P. J.

text:
    The People of the State of New York ex rel. The Village of North Tarrytown v. Marcus L. Cobb and others.
   Writ of certiorari to review award of commissioners granted, without costs. Opinion by

BarNARD, P. J.


text:
    John L. Brewster, Respondent, v. Emma F. Baxter, Appellant.
   Order appealed from and judgment affirmed, with costs, for non-submission of papers, and appeals dismissed.


author: By the Court :

text:
    ALONZO GREENE, Respondent, v. JOHN I. HALLENBECK and PRENTISS W. HALLENBECK, Appellants.

      Judgment — when a promise not to enforce it, will not prevent the plaintiff from suing upon it — false statements — when not a ground, for pi'eventing the enforcement of a judgment.

    An action brought upon a judgment, recovered against the defendants in a Justice’s Court, was defended upon the ground, among others, that the defendants allowed it to be recovered upon the faith of the plaintiff's promise that they should not be held liable thereon. It appeared that the summons was personally served upon the defendants; that a complaint and answer were filed, and that the defendants were personally present in the cqjirt when the plaintiff’s witnesses were examined.

      JELeld, that the plaintiff’s previous promise that the judgment should not be used against the defendants was no defense to its enforcement.
    The defendants claimed that at the time of the recovery of the judgment they were tol d by the plaintiff, that they the defendants,were secured from all loss by a bond of indemnity given in another action, and a judgment confessed in their favor by other persons.

      Held, that as the plaintiff was not acting as the counsel or adviser of the defendants in the action, and as the defendants were as well aware of the contents of the bond of indemnity and judgment as was the plaintiff, there was no false statement on the part of the plaintiff which prevented him from enforcing his judgment.
    Appeal from a judgment in favor of the plaintiff, entered upon, a verdict directed at the circuit.

      Griswold <& Crowell, for the appellants.

      James B. Olney, for the respondent.
   By the Court :

This is an action on a justice’s judgment. The court before which it was tried directed a verdict for the plaintiff, and the defendants appeal. The defense is substantially that the judgment was recovered by means of fraudulent representations which induced the defendants to permit the judgment to be recovered against them; and further that it was recovered upon a promise by the plaintiff that they should not be liable thereon.

We do not think it necessary to go through a statement of the litigations between other parties which indirectly led to this judgment, because the question must turn upon what took place between these parties in reference to the judgment in suit. Now these facts are clear. The summons was personally served. A complaint and an answer were filed. The defendants were actually present before the justice. The plaintiff and two others were sworn as witnesses. All three of them were lawyers. There were no witnesses for the defendants. And the defendants do not claim that they did not fully understand that the plaintiff was recovering a judgment against them. The judgment therefore was exactly what the defendants consented, according to their own testimony, that the plaintiff should have against them. We assume now that they could show (as we think the fact very possibly was) that the plaintiff in fact had no legal claim against them hadffhey chosen to defend against the action. But they did not defend. Indeed, they evidently consented.

Now we think that, under these circumstances, it was properly held by the court below that the plaintiff’s previous promise that the judgment should not be used against them was no defense.

Next, as to the other alleged statements made by the plaintiff to induce the defendants t-o permit this judgment to be taken. When this case was here before (31 Sup. Ct., N. Y., 116), nothing was before us but the answer, no proof having been given. And it will be seen that we thought that the answer averred that the defendants having a good defense were, by fraudulent representations of the plaintiff, induced to omit to make and present it to the court.

Now it will be seen by the facts on this trial that there was really no omission to make a defense; that the defendants went to Ooxsackie where the judgment was taken, at plaintiff’s request, and for the purpose of having the judgment recovered. They evidently knew, according to their own testimony, that it was only by their own consent that a judgment could be recovered against them. Then, as they say, the plaintiff said to them that they <£ were secured with that bond, that judgment,” referring to an indemnity given them by one Edwards against an appeal bond which they had given, and to a judgment by confession given by Perry for whom they had signed the appeal bond.

It further appears by their testimony that the plaintiff stated that he wanted this judgment against them to enable him to reach certain surplus moneys upon a foreclosure.

Thus it will be seen that on the trial it appeared that the defendants were not strictly induced to omit a defense which they might have made. They were, according to their statement, induced to consent to this judgment by the plaintiff’s representations that they were protected against it by the above mentioned indemnity by Edwards and judgment against Perry.

Now the learned court held that in this transaction the plaintiff was not the counsel or adviser of the defendants, and that he therefore stood to them in no confidential relation. The court further held that as to the Edwards indemnity and the Perry judgment the defendants were parties to these transactions, and therefore knew what they were as well as the plaintiff. That there was therefore no false statement of facts by which the defendants were defrauded.

These views of the learned court seem to us to be sound and they dispose of this case. The questions are very properly presented in varying forms by the defendants’ counsel. But they all come to this one question: was there evidence which should have gone to the jury.

We have examined the case carefully. We are impressed quite strongly with the defendants’ testimony. Many things tend to support it and make it seem true. But we are satisfied that upon principle there is not such a case made as constitutes a defense.

Judgment affirmed, with costs. /

LeaeNED, P. J., and Bookes, J., concurred.

Judgment affirmed, with costs.


author: Boardman, J:

text:
    KATE E. HILSLEY, Respondent, v. GEORGE E. PALMER and ELIJAH ROE, as Executors, etc., of MATTHEW LAMPSON, Deceased, Appellants.

      Ervidence — expert testimony as to the genuineness of a signature — examination of othefr signatures Try the witness — when his answers are conclusive upon the pa/rty putting the question —1880, chap. 36.
    Ia this action, brought upon a promissory note alleged to have been made by the defendants’ testator, the defense was that the signature of the testator was a forgery. Upon the cross-examination of one O’Neil, called by the defendants as an expert, he was shown thirty-three signatures and asked which of them were the genuine signatures of the testator and which were forgeries. Against the defendants’ objection and exception the witness was allowed to pick out certain of the signatures as genuine, and to testify that he could not say as to the others, but thought that they were genuine. Thereafter a witness, having been recalled by the plaintiff and shown the said signatures, was allowed, against the defendants’ objection and exception, to swear that some of the signatures pronounced by O’Neil to be genuine were written by him, the witness. Held, that the court erred in receiving this evidence.
    That if by any possibility O’Neil could have been legally permitted to answer the questions put to him by the plaintiff, his answers were conclusive upon her and she could not thereafter call witnesses to contradict him on that collateral and immaterial issue.
    Chapter 36 of 1880 authorizing genuine signatures to be put in evidence in certain cases has no application to this case.
    Appeal from a. judgment in favor of the plaintiff, entered upon the confirmation, by an order of the Special Term, of the report of a referee appointed, to pass’ upon a claim against the estate of the defendants’ testator, the validity of which was disputed.

      Krum <& Grant, for the appellants.

      8. L. c& F. M. Mayhem, for the respondent.
   Boardman, J:

The issue between these parties was the genuineness of a $10,000 note alleged by the plaintiff to have been given her for a consideration by defendants’ testator. The defendants claim that the signature of their testator to said instrument was forged. This issue was tried before a referee appointed by the surrogate who found the signature genuine. Upon his report judgment was entered for the plaintiff for tbe amount of tbe note and interest. Tbe defendants appeal from sucb judgment.

An examination of the case satisfies us that tbe learned referee fell into error in the admission of certain evidence, which will make a new trial necessary. The weight or sufficiency of the evidence will not therefore be considered or decided. The case was closely contested upon the facts and many witnesses examined touching the signature to the note. Among others one O’Neil was called by the defendant and examined as an expert. On his cross-examination by plaintiff, he is shown thirty-three signatures numbered from one to thirty-three, in a book, and asked to say which of them is Sampson’s (testator’s) genuine signature, and which is counterfeit, if any. Defendants object to such evidencé as incompetent and immaterial; that the evidence is collateral and not proper as a basis of future contradiction, etc. The objection is overruled and witness designates certain signatures as genuine and can’t say as to others though he thinks they are not.

Afterwards J ames O. Williams, a witness for the plaintiff, was recalled and shown the same thirty-three signatures about which O’Neil had testified. Williams then swore that some of the signatures pronounced genuine by O’Neil were written by him, Williams. To this evidence the defendants objected that such evidence was incompetent and immaterial to contradict O’Neil upon a collateral issue, and plaintiff is bound by O’Neil’s answer; that it did not contradict O’Neil, who did not claim to be able to pick out the real from the false signatures; that the signatures are .not in evidence. The objection was overruled and exceptions were duly taken.

These exceptions seem to be well'taken. It was not material to the issue to show whether any of those thirty-three signatures were genuine or false. The proof was not made to introduce them in evidence, because plaintiff had already exhausted her evidence on that subject. No such purpose was claimed. It is plain the signatures were prepared for the sole purpose of testing the skill of witnesses. O’Neil’s attention was called to them in the belief that he would not be able to pick out the genuine from the false. He expressed his opinion. The evidence of Williams did not contradict him. It showed his opinion was in some respects inaccurate. But how was it material whether these thirty-three signatures were genuine or not ? The issue was as to tbe signature to the note. Whether O’Neil was right or wrong as to the thirty-three signatures it did not aid in determining the real issue. It was a collateral issue and if by possibility O’Neil could have been legally permitted or required to answer the question, his answer was conclusive upon the plaintiff. She could not afterwards call witnesses to contradict him on that collateral and immaterial issue. The case of Van Wyck v. McIntosh (14 N. Y., 439) is directly in point. (Bank v. Mudgett, 44 id., 514 ; 1 Green. Ev., § 580; 2 Tay. on Ev., §§ 1434, 1435, 1438, 1439; Tennant v. Hamilton, 7 Clark & Fin., 122; Spenceley v. De Willott, 7 East, 108 ; 1 Cow. & Hill’s Notes, 727.)

Such was the undohbted rule before the passage of the act of 1880, chapter 36. That act does not affect the principle already stated or change the rule as laid down in the cases cited. By the act of 1880, genuine signatures may he put in evidence for the purpose of comparison with the disputed signature. The thirty-three signatures were not in evidence nor offered in evidence. They were not all genuine. They were not to be compared with the original disputed signature. No such purpose as is provided for • by that act was contemplated by the plaintiff when this evidence was called out. It was evidently done for the sole purpose oi contradiction and for that purpose it was improper.

As the case was very sharply fought, and the evidence consisted chiefly of opinions and circumstances and somewhat evenly balanced, a slight error might turn the scales. If the evidence excepted to was proper it went far to impair the value of O’Neil’s opinions and may have led the learned referee to reject his evidence. But rejecting such evidence, O’Neil’s testimony would be entitled to so much consideration and respect as may be due to experts. We cannot say how much or how little that may be. It is enough that such illegal evidence may have influenced the mind and judgment of the-referee in favor of the plaintiff as it was well calculated to-do. The error cannot be overlooked.

The judgment must be reversed, the referee discharged and a new trial granted, costs to abide the event.

Present — LearNed, P. J., Bocees and BoaRdmáN, JJ.

So ordered.


author: Boaedman, J:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE KNICKERBOCKER ICE COMPANY, Appellant.

      Tax upon corporations — an ice company is not a manufacturing corporation — 1880, chap. 542, § 8, as a/mended by chap. 361 of 1881.
    Tlie defendant was incorporated, under chapter 301 of 1855, for the purpose of “collecting, storing and preserving ice, of preparing it for sale, of transporting it to the city of New York or elsewhere, and of vending the same.”
    Held, that it was not a manufacturing corporation within the meaning of section 3 of chapter 542 of 1880, as amended by chapter 361 of 1881, exempting manufacturing corporations from the taxes imposed by the act.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover of the defendant, a domestic corporation, the amount of the taxes claimed to be due from it under the provisions of chapter 542 of 1880, as amended by chapter 361 of 1881.

      Matthew Ilale, for the appellant.

      D. O'Brien, attorney-general, for the respondent.
   Boaedman, J:

The judgment appealed from is right unless the defendant is a manufacturing corporation within the meaning of chapter 542 of the Laws of 1880. If it be a manufacturing corporation it is exempt from the tax attempted to be collected in this action.

We think the learned referee was right in deciding that defendant was not a manufacturing corporation and hence was liable for this tax.

The objects for which the defendant corporation was organized, as expressed in its articles of association, are the collecting, storing and preserving ice, of preparing it for sale, of transporting it to the city of New York or elsewhere and of vending the same.” This is not a manufacturing business in any ordinary sense applied to such words. Nor is the business, as actually done, a manufacturing industry. It is the same as the removal of marl or peat from a bed, of coal from a mine (Byers v. Franklin Coal Co., 106 Mass., 131), of water through pipes from a pond. (Dudley v. Jamaica P. A. Co., 100 Mass., 183.). Ice is a product of nature and is gathered, preserved and distributed for sale as such natural product. ’Whatever is done to the natural product is for the convenience of storing, transportation or sale. It does not change its character. It is still ice and it is still raw material. It has undergone no change in its structure. It is plainly not a manufactured article which the defendant stores and sells. (People v. N. Y. Floating Dry Dock Co., 92 N. Y., 487.)

The legislature has given an interpretation of the defendant’s business by the passage of the act of 1855, chapter 301, under which the ■defendant was incorporated. By that act a corporation was authorized ■to be created “ for the purpose of collecting, storing and preserving ace,” etc. No such legislation was necessary if chapter 40 of the Laws •of 1848 provided for such a corporation, because the latter act gave full power and authority for organizing manufacturing companies. Using the language of Judge Millee, in People v. New York Floating Dry Dock Company (ut supra) : “ By this act (of 1855) the legislature gave a construction to the manufacturing law, which indicates that it was not regarded as embracing the objects which were thereby (the act of 1848) provided for. The same remarks would apply to the act under which the defendant was incorporated. The legislative interpretation thus given is entitled to much weight in construing the act in question.”

For both reasons above given we think the judgment is right and should be affirmed, with costs.

Leaened, P. J., and BooKes, J., concurred.

Judgment affirmed, with costs.


author: LeaRneb, P. J.:

text:
    LARRY LOVELAN, Appellant, v. FERNANDO C. BRIGGS, Respondent.

      Civit damage act — the sale of the liquor by the defendant must be dearly proved.

    This action, was brought by the plaintiff, under the civil damage act, to recover the-damages resulting from the alleged sale of intoxicating liquors to her husband by the defendant. The only evidence connecting the defendant with the intoxication of the husband, was the testimony of one Lasher to the effect that, two or three weeks before the husband’s death, he had seen him drink a glass of ale at the defendant’s store; that of a woman, who had seen him come out of the defendant’s store intoxicated two or three days before the death, and the fact that his hat was left in the store :

      Held, that the evidence was insufficient to sustain a verdict for the plaintiff, and that a nonsuit was properly ordered.
    Appeal- from- a judgments dismissing the complaint, entered upon a nonsuit directed at the circuit.

      8. 8. Morgan for the appellant.

      F. Fish, for the respondent.
   LeaRneb, P. J.:

There is evidence to show that the plaintiff’s, husband had been intoxicated during much of the time for a month or so prior to his. death, and was abusive to his wife and neglected her. On Saturday night, October eighteenth, he came home sober in his general appearance, yet he seems to have been pretty full ” and to have had an attack of delirium in the night. Sunday he drank laudanum, Monday he died.

Now the only evidence connecting the defendant, with any intoxication is that of Lasher, who says that, two- or three weeks before the death of the deceased, he saw him drink a glass of ale at defendant’s store ; that of Mary Bowman, who says she saw him come out of Briggs’ store intoxicated two or three- days before the death of deceased. But she did not see him go in, and of course does not know whether he was sober when he went in or .-not. His hat was left at defendant’s store, but there is no evidence that it was left in payment for drinks which he had received. Indeed, Fox says the contrary, and Briggs told-' the plaintiff''that1 the deceased did not get his drinks there, so that all the proof is that of Lasher. Now this single glass of beer, two or three weeks before the death of the deceased, is not so connected with any wrongful act of the deceased, with any neglect to supply the plaintiff with maintenance, or with the act which caused his death, that the defendant could properly be held liable.

There must be evidence, and not mere conjecture, which shall show that acts of the defendant have caused, in whole or in part, the injury which the plaintiff has sustained. The mere fact that the defendant sells spiritous liquors, and that the deceased had been seen in defendant’s store, or even had been seen coming from the store in an intoxicated condition, should not make the defendant liable. For a man may keep a liquor store and yet may refuse to sell liquors to an intoxicated man. And unless the man were seen to go in sober and come out drunk, the condition in which he came out would not show where he obtained the liquor. The plaintiff undoubtedly had suffered much from her husband’s intoxication. But her sufferings would not justify the jury in finding a verdict without evidence and upon mere suspicion.

The judgment should be affirmed, with costs.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment affirmed, with costs.


author: By the Couet :

text:
    ABEL A. CROSBY, Appellant, v. SARAH STEPHAN, Repondent, Impleaded, etc., ABEL A. CROSBY, Appellant, Impleaded, etc., v. SAME.

      Policy of insurance taken out by a husband for the benefit of his wife —■ after the money has been paid to the wife it may be seized by her creditors.

    Where money due to a widow upon a policy of insurance, taken out "by the husband upon his life for her benefit, has been paid to her by the company, and has been by her deposited in a bank to her own order, it is subject to the claims of her creditors and may be reached and taken by them.
    Appeal from an order of the county judge of Ulster county, denying the.motion of the plaintiff to pupish the defendant Sarah Stephan for an alleged contempt in drawing certain moneys from. the Rondout Savings Bank and thereby, as_claimeJ, violating the order of the jr.dge.
    On the 22d day of February, 1871, the plaintiff recovered judgment against the defendant and others for $320.62, upon which execution was issued and returned unsatisfied, and on the 11th day of February, 1871, the plaintiff and others recovered judgment against the defendant and others for $140.69, upon which execution was also issued and returned unsatisfied.
    Nothing further was done by the plaintiff under the judgments until the 30th day of January, 1884, when he procured orders fiom the county judge of Ulster county in supplemental proceedings.
    The occasion of his doing this was that, owing to the death of the defendant’s husband, she had received $1,930, the proceeds of a policy of life insurance upon his life taken out for her benefit and the object of the proceeding was to seize thé money in payment of these judgments. The defendant appeared before the county judge, submitted to an examination,[testified that she had the money on deposit in the savings bank and a receiver was appointed. Thereafter the defendant drew the money from the bank. The plaintiff thereupon obtained an order requiring her to show cause why she should not be punished for contempt. She appeared in answer to the order, and after argument the county judge denied the motion.
    It was admitted on the argument before the county judge that the defendant was the wife of Charles Stephan at the time of the incurring of the indebtedness upon which the judgments were obtained, and from that time until his death, on the 27th of December, 1883, and that by the terms of the policy the amount insured was made payable to her.

      Preston dé Chijgp, for Abel A. Crosby, appellant.

      A. T. Clearwater, for the respondent.
   By the Couet :

¥e are of the opinion that the cases cited by the defendants’ counsel do not sustain the position taken by the learned county judge. We have examined these cases; and in some instances language is used which might be construed to have a wider meaning than the facts of the case justify. Whatever is said, however, it will be found that these are cases in regard to the right of the wife, or of the wife’s creditors, as such rights exist before the husband’s death. Whatever protection may be thrown around the contingent interest which she then has in such policies, we have here a very different question. Here the husband is dead. The policy has become payable, and it has been paid. The money paid is the widow’s absolute property. Like the property of other persons it is liable for its owner’s debts. She is under the common obligation of all persons to pay debts; and unless the law has expressly exempted this property, it is liable. We must not permit sympathy for the widow to outweigh an application of the claims of common honesty.

The principle adopted by the learned county judge, if carried out, would lead to absurd consequences. ^ The counsel for the plaintiff well asks; thrOugh how many mutations-in the’form.of the money is the exemption to extend. If the defendant buys securities and sells them and buys others; are they all exempt ? If not, where does the exemption cease? We think, therefore, that this money was liable to the debts of Mrs. Stephan. (Bolt v. Keyhoe, 30 Hun, 619.) The drawing out of the money from the bank was a violation of the injunction order. It would have been a technical violation even if it had been at once deposited elsewhere. But her affidavit does not disclose what she did with the money, and indicates an intention to put it beyond the reach of these proceedings. Yery possibly she thought she was justified in her acts, as she may have been so advised, still the act was no less a disobedience of the injunction.

The order is reversed, with ten dollars costs and printing disbursements, and the proceedings are remitted to the county judge with directions to proceed on the application to punish respondent.

Present — Learned, P. J., Booxes and Boardman, JJ.

Order reversed, with ten dollars costs and printing disbursements, and motion remitted to county judge to proceed against Mrs. Stephan.


author: Bt the Court :

text:
    WESSON MILLER, Appellant, v. MARY A. MILLER, Executor, etc., of EZEKIEL MILLER, Deceased, Respondent.

      Reference of a disputed claim against an estate — the prevailing party is not entitled to his disbursements as a matter of right — Code of Oivil Procedure, sec. 8246.
    Where a disputed claim against the estate of a deceased person is referred and a report in the claimant’s favor is confirmed, the claimant is not entitled, as a matter of right, to the disbursements necessarily made by him, but they, as well as the costs, are to be awarded or withheld by the court in its discretion.
    Appeal from so much of an order confirming the report of a referee appointed to pass upon a disputed claim against the estate of the defendant’s testator, as provided that neither party should be “ allowed disbursements nor costs before the referee, nor the costs of this motion.”

      George Adee, for the appellant.

      Da/oie c& ArbucTde, for the respondent.
   Bt the Court :

The question in this case has, we think, already been decided in this court. But as we are not able at this time to refer to that decision, we will briefly state our reasons for affirming the oi’der.

The clause in the repealing act, chapter 245, Laws 1880, section 3, subdivision 8, does not affect the question, because it has reference simply to provisions of the Revised Statutes. The law granting disbursements as a matter of right is in the Code of Procedure, section 317. The Code of Civil Procedure, section 3246, takes the place of section 317 of the old"Code, and does not give disbursements as a matter of right. Disbursements then, like costs, are to be awarded by the court as provided in sections 1835 and 1836, Code of Civil Procedure. (Revised Statutes, part 2, title 3, chapter 6, section 37 [2 R. S., 89.]) They do not belong to the prevailing party in such cases as-a matter of right.

Order affirmed, -with ten dollars costs and printing disbursements.

Present — Learned, P. J., Bocees and Boardman, JJ.

Order affirmed, with ten dollars costs and printing disbursements.


author: Leaened, P. J.:

text:
    ELIZABETH RAMSEY, Respondent, v. STEPHEN S. WANDELL and ERASTUS C. SMITH, as Administrators, etc., of WILLIAM SMITH, Deceased, Appellants.

      Power of sale to executors — they cannot convey with covenants of warranty and, against incumbrances.

    A power given by a testator to bis executors to sell and convey bis real estate in their discretion, does not authorize them to enter into a contract to sell and convey the same by a good and sufficient deed of conveyance, with covenant of warranty free and clear from all incumbrances.
    Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to the complaint.
    The complaint avers that William Smith, deceased, made his will, • appointing Hendee, Gregory and Reynolds executors, and authorizing them to sell and convey his lands in their discretion; that the testator owned a certain lot in Albany ; that Hendee and Gregory, as executors by virtue of the authority in them vested by the said will, contracted to sell and convey that lot to Gibson Oliver in fee simple by a good and sufficient deed of conveyance, with covenants of warranty free and clear from all liens, rights of dower or other incumbrances for a certain' price; that Gibson Oliver assigned that contract to Jacob Sager and James Ramsey; that afterwards Hendee and Gregory were, by an order of the surrogate, discharged from all the trust confided to them by said will, and that Reynolds thereupon ■ qualified as executor and entered on the discharge of the duties in their place ; that afterwards Reynolds, as such executor, in accordance with and to carry 'out said contract of sale, made and executed a deed to the said Jacob Sager and James Ramsey of the said premises described as in the said contract; that afterwards the said Sager and his wife conveyed to the said Ramsey certain premises described in the complaint, and described in the deed as the northerly half of the lots conveyed as aforesaid by Reynolds, executor ; that subsequently, the said Ramsey conveyed the last described premises to one Ham, who, on the same day, conveyed the same to Elizabeth Ramsey, the plaintiff; that after the execution of the deed by Reynolds, the executor, he died, and the defendants were duly appointed administrators with the will annexed; that on a day after the execution of the deed from Sager and wife to' Ramsey, and before the execution of the deeds from Ramsey to Ham and from Ham to the plaintiff, the said Hendee and Gregory executed a deed to the plaintiff of the same premises described in the deed of Sager and wife, with substantially the same description, which deed is stated to be for the purpose of assuring and confirm-, ing' the title of the premises as intended -to be conveyed by Reynolds, executor, to Sager and Ramsey.
    The complaint further avers that said William Smith, in his lifetime, had given a mortgage upon certain premises, which was foreclosed after his death, and the mortgaged premises were sold and the purchaser entered into possession.
    That a portion of the premises contracted to be sold under the said contract was not free from incumbrance, but that a strip of four fleet in width was covered by the said mortgage, and was sold and conveyed upon said foreclosure.
    The complaint then alleges damages by reason of the mortgage and foreclosure and the sale and eviction of the plaintiff.
    • To this complaint the defendants demurred upon the ground that the complaint did not allege facts sufficient to constitute a cause of action, and the court overruled the demurrer.' The defendants appeal.

      Smith, Fursman dh. Gowen, for the appellants.

      E. Countryman, for the respondent.
   Leaened, P. J.:

The first point made by defendants is that the complaint does not show that the grantees did not receive all the land they were entitled founder the contract. There is a sufficient allegation,'however, upon that point, whatever the proof may turn out to be. There is' an allegation that a portion of the premises was not free from incumbrance, but was subject to a certain mortgage set forth. This must be good .on demurrer' so far as this point is concerned. Second. It is urged that there is no allegation showing that Hendee and Gregory had power to bind Smith’s estate by a contract to convey with covenants. The only allegation in the complaint is ' that the executors were authorized to sell and convey. We may infer that there was no expressed power to make any covenant», otherwise it would have been set forth by the pleader.

The plaintiff, in reply, urges that the allegation in the complaint that the executors made the contract by virtue of the power given them in the will, is a sufficient allegation that the will contained an express power to make the covenants. We do not think this is a fair inference from the pleadings. The allegations that the act was done by virtue of the power is, after all, but little more than a legal conclusion.

If the executors, being empowered to sell real estate, did sell, then it follows that they sold, so far as they could, by virtue of the power. The question whether the will authorized the covenants in the contract depends on the authority in the will, as it is averred in the complaint.

Then the question comes up, whether a power given by a will to executors to sell and convey real estate authorizes them to contract to convey with covenants.

Several cases are cited by the plaintiff’s counsel in support of plaintiff’s views, which may be briefly mentioned. (Le Roy v. Beard, 8 How. [U. S.], 451.) A case from Wisconsin, where there was a general power to an agent to act as sufficiently as if the principal were present. The principal had acquiesced in the act of the agent by not objecting, and he was held bound by a covenant. (Bronson v. Coffin, 118 Mass., 156.) An agent had power to do-all matters and things relating to the premises as fully, amply and effectually as the principal might. The court said: “ A naked power to sell land may not give the attorney power to bind the principal by any covenants. But the power in this case is broader than a mere power to sell.” Nothing is decided on this point in Warden v. Richards (11 Gray, 277); Peters v. Farnsworth (15 Vt., 155). An agent had power to make contracts, agreements, conveyances and assurances, and the principal was held liable on the covenant.

Without going over these cases at greater length, it will be seen that they all arise between principal and agent. None of them touch the question of a power given by will to executors. The executors are .in no sense the agents of the deceased. There is no principal to be bound by their acts. The question is whether, by their contract, they can impose a burden on the creditors, distributees or legatees of the deceased.

It is elementary that a power is to be construed strictly. A power over land must be governed by article 3, 1 Revised Statutes, m. p. 732. A power to sell and convey does not necessarily require for its execution a power to insert covenants in a deed. For in this State no covenant is implied. (1 R. S., m. p. 738, § 140.) Therefore there can be a conveyance without any covenant, either express or implied. Hence the executors could execute all the power given to them, without agreeing expressly or impliedly, that the land was free from incumbrance. Therefore the power is not to be enlarged by construction, so as to give them such authority.

Again the rule is that contracts made by executors do not bind the estate. (Ferrin v. Myrick, 41 N. Y., 315; Austin v. Munro, 47 N. Y., 360.) At page 366, it is said executors “ may not bind the estate by an executory contract, and thus create a liability not founded upon a contract or obligation of the testator.”

The plaintiff urges next that the real estate was converted into personal property. ¥e are not informed by the complaint that there is anything in the will directing the land to be sold, or showing an intention that it should be sold. The complaint only alleges a power to sell in the discretion of the executors. For what purpose does not appear.

There is still another difficulty. The plaintiff is only the grantee in the deed from Ham. There is no covenant in any' deed under which she claims. If there is any liability of any one, (other than Hendee and Gregory personally,) upon the contract, and if that liability has not been lost by the acceptance of the deeds, then she does not connect herself with that contract. It was made with Oliver, and by him was assigned to Sager and'Ramsey. She avers no assignment of the contract to her.

The judgment should be reversed, with costs, and judgment given for the defendants on the demurrer, with costs, with leave to plaintiff in twenty days after notice to amend her complaint on payment of costs.

Present — Leatined, P. J.; Boches and BoardmaN, JJ.

Judgment reversed, with costs, and judgment for defendants on demurrer, with costs, with leave to plaintiff in twenty days after notice to amend complaint on payment of costs.