author: O’Brien, J.:

text:
    James Shields, Respondent, v. John Bush and Another, Appellants.

      Replevin — when the verdict of a jury will not he interfered with.

    In an action brought to replevy personal property, where there is evidence to-support the contentions of both the plaintiff and the defendant, the court will not interfere with the verdict, nor will it interfere with the value of the personal property as determined by the jury where the evidence of value is not so insufficient that the verdict can be regarded as excessive or without some basis of support.
    Appeal by the defendants, John Bush and JohnWoodenbury, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of June, 1893, upon the verdict of a jury after a trial at the New York Circuit, and also from an order made at the New York Circuit and entered in said clerk’s office on the 20th day of June, 1893, denying the defendants’ motion for a new trial.

      George S. Hastings, for the appellants.

      Henry T. Terry, for the respondent.
   O’Brien, J.:

The action was brought for the recovery of a hansom cab of the alleged value of $400, or the value thereof in case delivery could not be had.

The plaintiff had arranged for the purchase of the carriage in question from a carriage manufacturer, doing business under the name of M. Armstrong & Co., and, by the terms of the contract, was to pay the sum of $600. In part payment plaintiff gave Armstrong & Co. a hill of sale of an old cab which he owned, at an agreed valuation of $260, and in addition gave notes to the amount of $340. These were in the sum of twenty-five dollars each, and payable from month to month, spread over a period of fourteen months. Plaintiff took from Armstrong & Co. a hill of sale of the new cab, which, by its terms, provided that it should remain the property of Armstrong & Co. until the notes were paid.

It is conceded that the plaintiff paid in cash the sum of $361.50, ■which was equal to the $340 covered by the notes, with interest for deferred payments. It appeared upon the trial that the old cab, which by the bill of sale was to be subject to the order of Armstrong & Co., remained with the plaintiff and was not delivered, because not called for until after it -was accidentally broken by a person who, wishing to purchase it, had taken it from the stable. Though repaired at the plaintiff’s expense, the defendants refused to receive it. And the real question in this case grew out of the dispute between the parties as to what action was to be taken in view of the claim of Armstrong & Co. that the injury to the old carriage had lessened its value.

Armstrong & Co. claimed that, in this situation of affairs, upon their refusal to take possession of the old carriage a new agreement or arrangement was entered into between that firm and the plaintiff, by which plaintiff.agreed to keep the old cab and pay the $260, the amount agreed upon as its value, and that in the meantime the payments made by plaintiff would be applicable to reducing this indebtedness, deferring the payment of the notes until this amount was paid, subject to Armstrong & Co.’s right to take the new hansom and sell it if plaintiff should not pay the notes. Plaintiff denied the making of any such agreement, and insisted that the payments -were made upon the notes, and not to cover the price allowed for the old cab.

The questions as to whether any such agreement was made, and as to the rule relating to the appropriation of payments, were fully and clearly presented by the trial judge in his charge, to which no exception was taken, the only exceptions in the case being to the refusal of defendants’ motion to dismiss the complaint, and the denial of the motion to set aside the verdict and for a new trial.

The question whether any new or substituted agreement was made between the parties ivas properly, upon conflicting evidence, presented to the jury, and the refusal to dismiss the complaint was, therefore, correct. The burden was upon the defendants of showing such new agreement; and it is conceded that, unless it was proven, the defendants had unlawfully wrested the new hansom, which plaintiff had purchased and fully paid for, from his possession. Under the original agreement Armstrong & Co. were vested with the title to the old cab, and such title was not affected by their failure to take actual possession thereof. If, before they took such actual possession, it was injured through plaintiff’s fault, their remedy would be for damages, and not by seizing the new cab and selling it, against the protest of plaintiff, who, by the terms of the bill of sale, became the owner upon the payment of his notes. The jury having resolved this conflict in plaintiff’s favor, we see no reason for interfering with their conclusion.

The only serious question presented upon this appeal is as to the amount fixed as the value of the new cab, in the absence of any very certain or definite testimony as to its value at the time of seizure.

Upon this question of value it was shown that the cab was purchased from Armstrong & Co., under whom defendants acted, for $600, and that this was about fifty dollars less than its original price; that it was almost new when purchased by plaintiff, wlm thereafter spent twenty-five dollars in improving it; that it had but. ordinary use, had met with no acccident, and though twenty months had elapsed between the date of the purchase and the time of seizure it was in good repair when taken from plaintiff, who stated that it was substantially as good as when he bought it. On the other hand, it was shown that the cab when sold at auction after seizure realized only $120. The jury fixed the value at $340;

Although, we think, the evidence in support of the value fixed by the jury was slight, still it was not so insufficient that the verdict can be regarded as excessive or without some basis of support. The history of the carriage, its use and its condition, were before the jury; and considering the evidence given by the plaintiff as to value, and the knowledge which ordinarily is possessed by jurymen about carriages, we do not think that, where the plaintiff has presented the best evidence which Avas in his possession, we should disturb their verdict.

The judgment and order, therefore, should be affirmed, Avith costs.

Yan Brunt, P. J’., and Parker, J., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: O’Brien, J. :

license: Public Domain

text:
    Charles Palmer, Respondent, v. William D. C. Field, Appellant.

      Promissory notes — consideration for the indorsement — liability of the indorsers — presumed to be several —form of plea of non-joinder of a party defendant — request to go to jury.

    In an action brought to recover upon two promissory notes, renewals of previous notes, one of the defenses set up by the defendant, one of the. indorsers thereon, was that he was an accommodation indorser. It was shown, however, that the plaintiff had advanced money on the note bj1- way of loan.

      Meld, that, assuming that the defendant Avas wholly au accommodation indorser, there being no claim of diversion, it Avas unnecessary to show that plaintiff paid defendant for his indorsement, it appearing that the plaintiff had loaned the amount represented by the note upon the faith of the indorsement; that the consideration paid to the maker of the note or the person delivering it to the plaintiff was sufficient to support a recovery.
    It was shown for the purpose of sustaining a defense, that the obligation of the indorsers was a joint and not a several one, that the names of the payees in the series of notes were not always the same, nor the indorsements placed in the same order.

      Held, that no such presumption was raised by the change of indorsements or of their order;
    That where a note bears the several signatures of parties as indorsers on promissory notes which are negotiable, the presumption is that the obligation created thereby is several and not joint.

      Where it is intended to interpose a plea in abatement upon tlie ground of the non-joinder of a party defendant, the plea must aver that the person not joined is alive and within reach of the ordinary process of the court.
    Where a motion by defendant to dismiss the complaint has been denied, a request to go to the jury should specify the questions of fact which the party desires to have submitted.
    Appeal by tlio defendant, William D. O. Field, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 17th day of dune, 1893, upon the verdict of a jury,- rendered by direction of the court, for $9,189.10 damages, after a trial at the New York Circuit.

      Fred W. Jlinriehs, for the appellant.

      Michael II. Cardoza, for the respondent.
   O’Brien, J. :

The complaint contained two causes of action, based on two promissory notes which were in all respects similar as to date, payees and indorsers. These notes were for $4,500 apiece, and it was made to appear by the evidence that they were renewals growing out of a transaction in which originally a note for $10,000 was delivered to plaintiff: in consideration of a loan or discount made by him. The original note was from time to time renewed and finally divided into two notes of $5,000 each, upon which $1,000 was paid, leaving the balance sued upon of $9,000 represented by the two notes of $4,500 each.

One of the defenses was that the indorsers, including the defendant here, were accommodation indorsers. But inasmuch as it was made to appear by the testimony that the plaintiff, upon the faith and strength of the indorsements, advanced the money on the note by way of loan or discount, this defense was not made out, nor do we understand that it is seriously pressed, because even assuming that defendant was wholly an accommodation indorser, there being no claim of any diversion, it was not necessary to show that plaintiff paid any value to him for his indorsement, where the fact appeared that upon the faith of the indorsement plaintiff had loaned the amount represented by the note. In other words, the consideration paid to the maker of the note, or to the person delivering it to plaintiff, was amply sufficient to support a recovery under the authorities. This justified the rulings of the court in excluding evidence which attempted to show that the indorsement of the defendant was with-' out consideration directly paid to him. If, however, it was material to show that the defendant was not, in a strict sense, an accommodation indorser, it was made to appear that by a resolution of the company for whose benefit this note was discounted, and in which the defendant was an officer, he was voted a compensation of $500 a year for indorsing the paper of the company.

The defense which was mainly relied upon at the trial, and most strongly urged upon this appeal, is that the liability of the defendant was not a several, but a joint one, and that, there being a defect of parties, the complaint on his motion should have been dismissed.

The first question presented upon this defense is, whether it was properly pleaded.

The answer stated that the notes were joint obligations of defendant and others whose names were ' given, and upon the trial defendant was allowed to amend the answer by setting up that the failure to include such persons was a defect of parties defendant.

As thus amended, however, we do not think that the plea was sufficient to raise the defense. The rule has been many times stated that to make a plea in abatement good, when it is ■ based upon the non-joinder of a party defendant, the plea must aver that the person not joined is alive and within reach of the, ordinary process of the court. (Lefferts v. Silsby, 54 How. Pr. 194; Scofield v. Van Syckle, 23 id. 97; Brainard v. Jones, 11 id. 569; Burgess v. Abbott, 6 Hill, 135.)

Although this objection was specifically taken the defendant was permitted to examine the plaintiff upon the question and to ask him whether the indorsements upon the paper were not given to him as joint indorsements, to which he replied: “I never heard of such a thing. As matter of fact, I did not discuss the question of joint or several liability at all.” And plaintiff further testified that the original note was handed to him with the indorsements already there, and that he then discounted it.

Some point is made of the fact appearing that the names of the payees in the series of notes were not always the same, nor the indorsements jilaced in the same order upon the back, and ujion this is based the argument that a presumption arises that the obligation was a joint one and not several, and that, no facts to rebut such presumption having been given by plaintiff, the motion made to dismiss the complaint at the end of plaintiff’s case and again when all the testimony was in should have been granted.

To this, we think, there are two answers. It must be remembered that upon a renewal of the note it was perfectly proper and competent for the plaintiff to insist, as a consideration for such extension, to a change in the form of the obligation, and it was equally competent for the indorsers to comply with any such suggestion, and the agreement for the extension would have given support to any change in the indorsements. Secondly, although the defendant in his statement of the rule as to the presumption relies on a case in Missouri, we do not think that such is the law' in this State, but, on the contrary, the authorities are all the other way, holding that where, as here, the notes purport to bear the several signatures of parties as indorsers on promissory notes which are negotiable, the presumption is that the obligation is several and not joint.

The defendant, though eliciting from the plaintiff the statement that the notes were not taken with the understanding that the indorsers were to be jointly liable, endeavored by his own testimony to show that he had conversations -with the plaintiff in regard to the notes and the indorsements thereon ; and several questions which were asked of him by his counsel as to conversations with the plaintiff about the form of the notes, or as to whether they were to be made out to the order of plaintiff, and the general question as to what the plaintiff said in regard to the indorsements or the making of the notes were excluded, and an exception to such ruling was taken.

If the plea had been properly made we think that these questions, directed as they might fairly be held to have been, to eliciting what was the arrangement in regard to the taking of the notes by the plaintiff, would have been competent and admissible. The specific objection, however, having been taken that the plea in abatement was insufficient, these rulings wore right.

As the case, therefore, stood upon the evidence, the court was justified in denying defendant’s motion to dismiss the complaint and in refusing to submit the case to the jury. This request to go to the jury, after moving to dismiss, was in general terms, and as said in Mayer v. Dean (115 N. Y. 556), did not state any question of fact desired to be submitted to the jury.” Upon the pleadings, therefore, and the evidence as presented, tlie rulings excluding or admitting evidence were correct, and nothing remained but to grant the request of plaintiff for a direction in his favor.

The judgment was, therefore, right and should be affirmed, with ■costs.

Van Brunt, B. J., and Parker, J., concurred.

Judgment affirmed, with costs.


author: Follett, J.:

text:
    Isidor Richmond, by Bessie Richmond, his Guardian ad litem, Respondent, v. Second Avenue Railroad Company, Appellant.

      Damages for injuries — verdict on, contradictory evidence — contributory negligence — basis of computation of damage —specific exception necessary.

    In an action brought to recover damages resulting from personal injuries, alleged to have been caused by the negligence of the defendant, where there is no inherent improbability in the version of the accident given by the plaintiff, nor in the statements made by the defendant’s witnesses, an appellate court will not decide that the jury erred in believing the plaintiff’s version rather than that of the defendant, and the verdict being satisfactory to the trial judge, will not be set aside as being against the weight of evidence.
    In such an action, the plaintiff, a boy of sixteen, was injured while alighting from the front platform of a car of the defendant, a railroad company, while carrying- bundles weighing fifty pounds. It was claimed that the plaintiff had stepped from the car backwards.

      Held, that it is contributory negligence to step off backwards from a moving car, unless the party so stepping off is induced to dp so by the negligent conduct of the defendant;
    'That, whether it is negligence or not, for a person to step off a moving car with bundles, is a question of fact for the jury, depending upon the speed of the car, and the circumstances under which the plaintiff attempted to alight.
    It is not error for the court to refuse to charge on amere abstract question having no relation to the case under consideration.
    The court charged that the plaintiff was entitled to be compensated for the pain and suffering which he had endured, and for the pecuniary loss which he sustained, to which the defendant excepted, except as to the matter of permanent loss. On appeal, the defendant raised the question that plaintiff’s parents were entitled to recover the damages sustained by reason of his diminished ability to earn money during his minority.

      Held, that the point was not raised by an appropriate exception, as the exception taken did not call to the mind oí the trial judge this particular point, and that the question, not having been raised by objection or exception on the trial, could not be raised for the first time on appeal.
    Appeal by the defendant, the Second Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of March, 1893, upon the verdict of a jury for $9,000 damages, rendered at the New York Circuit, and from an order of the Supreme Court, entered in said clerk’s office on the 8th day of March, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Robert Sewell, for the appellant.

      Mav/rice Untermyer, for the respondent.
   Follett, J.:

This action was brought to recover damages for personal injuries inflicted while alighting from one of the defendant’s cars, caused, as it is alleged, by the negligence of its employees. At the time of the accident, which was about midday on March 28, 1892, the plaintiff, then sixteen years of age, was engaged in selling and delivering chair bottoms. A little before noon of the day mentioned, the plaintiff, with two bundles of chair bottoms united by a strap, by which they were suspended on his shoulder, entered one of defendant’s cars at the corner of Forsyth and Grand streets. There were fifty chair seats in each bundle, weighing twenty-five pounds, 100 seats in all, making the total weight fifty pounds. Shortly after entering he was directed by the conductor to idde, with his bundles, on the front platform. He went forward to the platform and rode thereon to Tenth street where it became necessary for him to change, when he was given a transfer ticket and left the car. When the car came along which the j>laintiff desired to take he attempted to board it by the rear platform, but was directed by the conductor to go to the front platform, which he did, carrying his bundles with him. He took the bundles from his shoulder and placed them on the platform in front of the driver and near the brake rod. The plaintiff stood on the left side of the driver and rode in that position until the car passed Eiglitv-first street, when he took his bundles from the platform and placed the strap over his left shoulder. As the car reached the south crosswalk at the intersection of Eighty-second street and Eirst avenue, the plaintiff told the driver that he wished to get off. His bundles were to be delivered at a hardware store on the west side of Eirst avenue, between Eighty-second and Eighty-third streets. The car was stopped on or near the north crosswalk of Eighty-second street and the plaintiff attempted to alight from the left-hand or west side of the car. His bundles were suspended on his left shoulder and he had hold of the rail of the dashboard with his right hand. Before the plaintiff reached the street the driver loosed the brake and started the horses, which threw the plaintiff’s right leg under the car, where it was crushed so that amputation just below the knee became necessary. The foregoing is the plaintiff’s account of the accident.

Another person, subpoenaed by both sides and called by the plaintiff, who was riding on the platform at the time of the accident, gave the same account of the transaction, except that he did not hear the plaintiff request the driver to stop, nor did he see the brake applied. He testified that the car stopped at or near the south crossing of Eighty-second street, but he was not certain that it did at the north crossing. He said that he saw the boy preparing to-leave the car with his bundles ; saw him falling and heard him cry. When he found him his right hand was grasping the dashboard and his leg had been crushed. He said that when he (witness) got off the car it had stopped, but he could not tell how far the boy had been dragged. It was his impression that the car stopped as the boy was getting ready to alight. He also testified that the boy’s back was towards the horses -when he attempted to leave the car. This is substantially all of the evidence in behalf of the plaintiff descriptive of the accident.

The driver of the car, who was sworn for the defendant, testified that the boy fell backwards from the car just as he attempted to-place the bundles on his shoulder, and that the car had not stopped, and that he had not been asked to stop it. When he saw the boy fall he applied the brake, and stopped the car before it had moved more than about three-fourths of its length. lie then looked for the boy, and found him lying under the car, with his leg crushed-

The conductor of the car testified that he did not direct the plaintiff to ride on the front platform, and that there was plenty of room for him inside the car. He testified that the car was not stopped until after the boy fell.

A policeman, who was riding on the front platform at the time of the accident, testified that as the car neared Eighty-first street he saw the plaintiff stooping down to get hold of the bundles so as to get off; that he was then standing with one or both feet on the step of the car, and that he fell or stepped off before the car stopped. This is all of the evidence descriptive of the accident.

There was some conflict in the testimony as to the precise point where the plaintiff fell, whether just below or just above the north crosswalk.

The court submitted the question to the jury whether the plaintiff attempted to alight with his bundles while the car was in motion without asking the driver to stop it, and left the questions of the negligence of the defendant’s employees, and of the contributory negligence of the plaintiff, fairly to the jury. Whether the plaintiff fell from the car while putting the bundles on his shoulder, or in attempting to leave it while in motion, or whether his fall was caused by the car being started while he was attempting to leave it, were sharp questions of fact which turned entirely upon the credibility of the witnesses. There is no inherent improbability in either version of the accident, and we cannot say that the jury erred in believing the plaintiff’s version rather than that of the defendant’s witnesses. The verdict being satisfactory to the learned and experienced trial judge we are of the opinion that this court ought not to set it aside as against the weight of evidence.

Did the court err in its instructions or refusal to instruct the jury in respect to the plaintiff’s right to recover % The defendant took no exceptions to the charge as delivered, but at its close the usual number of requests, all that could be thought of, were preferred by the respective counsel. We shall consider, only those discussed by the appellant.

The court was requested to charge, “ that it is contributory negligence to step off a moving car backwards.” The court replied: “Unless the party so stepping is induced to do so by the negligent conduct of the defendant. With that qualification I charge the proposition.” The defendant excepted to the qualification. We think the instruction was correct, but there is no evidence which would have justified the jury in finding that the plaintiff attempted to alight from the car in that manner. The defendant’s driver testified that the plaintiff stood upon one of the steps and while, attempting to place the bundles upon his shoulder fell backwards to the street, and we find no evidence in the record that the plaintiff' attempted to leave the car by stepping backwards from it to the. street. The defendant requested the court to charge: “ That it is. contributory negligence to step off a moving car incumbered with bundles weighing fifty pounds.” The court replied: “ For me to say that a certain weight would make it contributory negligence is an expression of opinion on the facts of the case. I say to the jury that it would have been contributory negligence for the plaintiff to have stepped off this car with bundles which so incumbered him that he could not exercise or control his movements as well as he could without the bundles.” The defendant’s counsel excepted to-the modification. We think the instruction was more favorable to. the defendant than it was entitled to. A person incumbered with small bundles is not able to control his movements in leaving a car-as well as he could without bundles. If this instruction is correct it would be negligent for a person to leave a car with bundles which incumbered him in the least. The plaintiff testified, and in this he-was not contradicted, that the bundles were so adjusted that he had the free use of both hands and that he held on to the rail of the dashboard with his right hand when leaving the car. Whether it was negligent for the plaintiff to step off a moving car, if it were moving, with his bundles was a question of fact for the jury depending upon the rate of speed of the car and the circumstances under which he attempted to alight.

The court was asked by the defendant to charge : That no conduct on the part of the driver in any way excuses the action of the plaintiff,” which was declined and an exception taken. The refusal of the court to charge this proposition needs no defense. To have charged as requested would have been a palpable error. The defendant also requested the court to charge : That all the evidence, even the plaintiff’s own testimony, is to the effect that the boy fell off while the bundle was being slung over the plaintiff’s. .shoulder.” The court replied : “You have heard the evidence. I ■do not propose to express an opinion as to it one -way or the other.” The defendant excepted. The proposition is not true in point of fact for the plaintiff testified that-he did not fall while engaged in putting the bundles on his shoulder ; besides this was a mere request to charge on the evidence, not on a proposition of law. . The defendant requested the court to charge: That if the jury believe the plaintiff’s own witness, Silverthau, they must find for the defendant.” The court replied: If you believe from the evidence of the plaintiff’s own witness, Silverthau, that the accident occurred through .the negligence of the plaintiff, then I charge you, you must render a verdict for the defendant. But I do not charge you that if you believe what Silverthau said you must necessarily find a verdict for the defendant.” To this instruction the defendant excepted. This exception is not tenable. Silverthau’» evidence, if believed in every particular, did not establish that the defendant was free from negligence, or that the plaintiff by his negligence contributed to the ¡accident. It was not error for the court to refuse to charge : “ That it is not any part of the duty of the drivers to assist passengers to .alight, and failure to do so is pot negligence.” This is a mere ¡abstract question having no relation to the case, for it was not ■asserted, as a ground of negligence, that the driver refused to assist flie plaintiff to alight. On the contrary, the plaintiff testified that he did not ask for and did not need assistance. The foregoing are ¡all of the exceptions to the charge relating to the right of recovery which are discussed by the appellant, and we find no errors. The plaintiff testified that before the accident he earned in his business ¡seven or eight dollars a week, but that since he had been able to ■earn but little. Upon the question of damages the court charged : That the- plaintiff was entitled to be compensated for the pain and suffering he has endured and for the pecuniary loss which he lias sustained.” The defendant’s counsel took the following exception to that instruction : I except to all that except the permanent losa.” He now seeks to raise the question that the plaintiff’s parents were entitled to recover the damages sustained by reason of his diminished ability to earn money during his minority. Ye think that this question is not raised by an appropriate exception. The exception quoted did not call to the mind of the trial judge the point that the parents of the plaintiff were entitled to recover for the diminished earning power of the boy from the time of the '.accident until he should arrive at majority, nor was any objection made to the reception of the evidence upon which the instruction was based.

There is no evidence in the case that the plaintiff’s father is living. It appears, however, incidentally that his mother is living. She is his guardian ad litem, and the plaintiff in his testimony referred to the fact that he lived with his mother, but whether he had been emancipated or not does not appear, and the question that the plaintiff was not entitled to recover for his diminished earning power during his minority cannot be raised for the first time on appeal.

The verdict, $9,000, is a large one, and the interest upon it at the legal rate produces $540 per year, which is much more than the earning power of the plaintiff, according to his own testimony. Iiow much he might be able to earn in the future had he not been injured cannot be ascertained, and there is no legal presumption that he would have •continued to earn as much as he testified he was earning at the time •of the accident. (Phillips v. London & Southwestern Railway Co., 5 C. P. Div. 291.) His ability to earn an income or acquire property might be wholly destroyed, or diminished by sickness, by accident or by some of the vicissitudes of life, and his damages should ■not be -assessed upon the theory that he might engage in the future, had he not been injured, in a more lucrative vocation than the one in which he was employed at the time of the accident. (Richmond & Danville Railroad Co. v. Elliott, 149 U. S. 266.) In a sense no ■sum of money is adequate compensation for the loss of a leg and the suffering incident thereto. Notwithstanding, the amount must be limited, otherwise the consequences of the negligence of servants might be ruinous to defendants.

I think the verdict is larger than should have been given under the evidence in this case, and that it should be reduced, but as my -associates differ with me on this question, although agreeing on all the others, the judgment must be affirmed, with costs.

O’Brien and Parker, JJ., concurred.

■Judgment -affirmed, with costs.


author: Van Brunt, P. J.:

text:
    Willard Parker and Another, as Executors, etc., of Willard Parker, Appellants, v. Benjamin F. Butler, as Trustee, etc., of Willard Parker and Others, Respondents.

      Powers and duty of the court in the construction of wills.

    Although in the construction of wills, when a court is sure that it knows what a testator meant, it has a right and it is its duty to subordinate the language to such intention, and it may even reject, supply and transpose words and limitations to get the correct meaning, nevertheless it has no power to insert clauses-in a testator’s will, made necessary by the changes of circumstances in his-property, which have occurred subsequently to the execution of the will, and for which he has not provided.
    Appeal by the plaintiffs, Willard Parker and another, as executors, etc., of Willard Parker, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New Yoik on the 15th day of November, 1893, upon the decision of the court after atrial at the New York Special Term.

      E. I. Stimson, for the appellants.

      A. II. Joline, for Butler, trustee, etc., respondent.

      W. P. Butler, for the other defendants, respondents.
   Van Brunt, P. J.:

This action was brought to procure a construction of the will and codicil of Ur. Willard Parker, who died in New York city on the 25th of April, 1884, which will and codicil were admitted to probate on the 31st of May, 1884. The will and codicil in question were executed by the testator respectively on the 5th of January, 1883, and the lltli of January, 1883.

Some time prior to the execution of the will and codicil in question the testator and his brother, Grenville Parker, were jointly interested in a large amount of West Virginia land. The said Grenville Parker died intestate on the 10th of May, 1881, leaving him surviving his widow, Eliza A. Parker, and his daughter, Emily T. Parker, his only child and heir at law. In July, 1881, the said Eliza A. Parker was duly appointed sole administratrix of the estate of said Grenville Parker by the courts of West Virginia, he being at his decease a resident of said State. On the 14th of February, 18X2, an agreement was entered into between said Eliza A. Parker and Emily T. Parker, and Eliza A. Parker, as administratrix, etc., and the testator, for the sale to said testator of all the right, title, interest and estate which said Grenville Parker had owned or possessed in and to said lands for the sum of $18,000, which was to be paid out of the first moneys received by him from the sale and disposal of the lands, properties and interests described in said contract. The contract also contained a clause giving said testator the right to make payment of the consideration money without waiting for a sale of the lands as provided in said contract. The testator had also other properties in West Yirginia, and a considerable estate in New York, Massachusetts and elsewhere.

By the general scheme of' the will the testator divided all his property into two general classes, each distinct from the other — his West Yirginia property of every sort whatsoever treated in the sixth clause, and his general estate considered in the other portions of the will.

The said sixth clause, so far as it is necessary to recite the same for the purposes of this opinion, is as follows:

Sixth. As I am now owner of various lands and contracts for the purchase or sale of lands, leases, mortgages and equitable interests and rights in and to lands situated at West Yirginia, and as I may hereafter acquire other such lands in said State before my death, and as I wish to make a special disposition of the same different from that which I hereafter make of my other estate;

“Now, therefore, I hereby give, devise and bequeath all the property and estate, real and personal, above described which I shall own, or be entitled to dispose of at my death, unto my son-in-law, Benjamin F. Butler, of Scarsdale, Westchester county and State of New York, as trustee in and upon the following trusts and conditions, that is to say : ”

Then follows a power to sell, to lease, to collect rents and issues, to discharge taxes and assessments, to pay for insurance, to erect and repair buildings, to sink mines and construct roads, bridges, railroads, canals, etc., to purchase adverse rights or claims, and to purchase adjoining lands. Power is also given, for the purpose of rais- ' iug money for any of tlie above objects, to mortgage said lands, or any part of them, from time to time. And the trustee is authorized, if there be any surplus, whether of income or of proceeds of sale, or of insurance, after satisfying the purposes mentioned in said clause, to distribute the same in certain proportions.

By his codicil to said will the testator provided as follows :

“First. Inasmuch as the property disposed of in the sixth clause of said will is intended to include, among other things, all rights which I may have in, or in relation to, certain lands and premises situated in the State of West Virginia, which were formerly owned by me, in common with my deceased brother, Grenville Parker, his interest in which said lands, his widow (both in her individual right and as his administratrix) and his only surviving daughter have, by an instrument duly executed between us and bearing date the fourteenth day of .February, eighteen hundred and eighty-two, agreed to sell and convey to me (with other proj>erty) for the agreed price of $18,000, now, therefore, to prevent any misunderstanding in relation thereto, I hereby direct that the trustee named in the said sixth clause of my said will, after paying out of the proceeds of the sales of the trust property in said clause devised to him such taxes, assessments or other charges or incumbrances as he may think proper to be first jjaid thereout, shall use and apply the next moneys received by him from the said trust property (whether from rents, proceeds of sales or otherwise) in and towards the payment and satisfaction of the said sum of eighteen thousand dollars, or so much thereof as shall then remain unpaid, according to the provisions of the above-mentioned agreement, and I hereby direct that if my said brother’s interest in so much of said lands as are in West Virginia shall not have been already conveyed to me prior to my death, such conveyance shall be made to the trustee named in said sixth clause, or to his successors in the trust, he and they being hereby designated as the persons entitled to demand such conveyance under said agreement.

Second. And inasmuch as I have also, within a few years last past, expended sundry sums amounting in the aggregate to $30,000 <or more; in and about the management and preservation of my said properties in West Virginia, by reason whereof my general estate has been diminished by that amount, now, therefore, I do hereby further direct that the said trustee named in the said sixth clause of my said will, after he shall have paid in full the $18,000 mentioned in the next preceding clause of this codicil (or so much thereof as shall remain unpaid at my death), shall use and apply the next moneys received by him from the said trust property (whether from rents, proceeds of sales or otherwise) in and towards refunding to my executors the sum of thirty thousand dollars aforesaid, which shall thereupon be and become part of my personal estate; and if the said trustee shall not so refund that sum on or before the expiration of two yeai’s after my death, then he shall also pay interest on the same, or on so much thereof as shall then remain unpaid from that date until paid, at the rate of five per cent per annum.

“ But if, before my death, I shall receive from my said property in West Virginia any sum or sums (over and above "the current expenses of preserving and maintaining the same) more than sufficient to satisfy my obligations under the above-mentioned agreement relating to the interest of my deceased brother, Grenville Parker, then the excess over that amount so received by me shall go to diminish the sum of $30,000 which the said trustee is to refund to my executor, as in this clause is provided.

Third. I direct that no distribution of the proceeds of the property devised or bequeathed in the said sixth clause of my said will shall be made'to any of my descendants as in said sixth clause provided until the two sums mentioned in the first and second clauses of this codicil are first paid. But nothing herein contained shall interfere with the discretion given to the said trustee in relation to applying the proceeds or avails of such trust property to such uses as he shall deem necessary or proper for the preservation, management or judicious development or improvement of said trust property in whole or in part; all of which expenditures shall, if he think proper, take precedence of the payments in the first and second clauses of this codicil provided for.”

On the 14th of May, 1883, the testator paid off the $18,000 provided for by said contract, although he had received from sales of West Virginia property comparatively a small sum in cash, and received a deed from said Emily T. Parker therefor, the said Eliza A. Parker having previously thereto died intestate.

It is now claimed by the appellants that it is manifest from the will and codicil that it was tlie intention of the testator to charge the trust estate devised by the sixth clause of the will with the purchase pi’ice mentioned and contained, viz., $18,000, and to save the testator’s general estate from any diminution by its payment. And this claim is founded upon the provision which the testator makes in his codicil in reference to the repayment to his estate of the $30,000 which had been disbursed by him in connection with his adventures iii West Virginia lands. It would certainly seem to have been the testator’s intention to indemnify his general estate for the disbursements made by him on account of these West Virginia lauds, which is evidenced by the provisions referred to, with respect to the repayment of the $30,000. But although in the construction of wills, when we are sure that we know what the testator means, we have a light and it is our duty to subordinate the language to such intention, and the court may even reject words and limitations, supply them and transpose them to get at the correct meaning, nevertheless the courts have not as yet inserted clauses in a testator’s will made necessary by the change of circumstances in the testator’s property, which have occurred subsequently to the will, and for which the testator has not provided.

In reference to this question, arising upon the construction of this will, it is difficult to see that the testator has anywhere so provided ; and it is only by the interpolation of such provision bodily into the will that any such construction can be given to the codicil.

It is argued upon the part of the appellants that, by the provisions of the codicil in reference to the payment of the $18,000, he lias not stated to whom that sum is to be paid, and that, as he has not provided that it should be paid to the vendors, the fair interpretation from the general character of the codicil is that he intended it to be paid to the personal representatives of his estate, if he paid it before his death, in order that the special design of indemnifying his general estate as against the West Virginia disbursements may be carried out.

It seems to us, however, that a very cursory examination of this codicil shows that no such construction can be put upon it, and that such was not the intention of the testator, but that the sole payment which the trustee was authorized to make was to the vendor of the West Virginia property, and to nobody else.

lie provides that tlie trustee, after paying out of tlie proceeds of tlie sales of tlie trust property in said clause devised to him, such taxes, assessments or other charges or incumbrances as he may tliinlc proper to be first paid thereout, shall use and apply the next moneys received by him from the said trust property (whether from rents, proceeds of sales or otherwise) in and towards the payment and satisfaction of tlie said sum of $18,000, or of so much thereof as shall then remain unpaid.”

This is a clear and express direction to the trustee that he shall use the surplus of the proceeds of the sales of all the property in "West Virginia to the liquidation of this debt; not, as required by the contract, to use only the proceeds realized from the sales of the land mentioned in the contract, but as soon as he is put in' funds from any source, to liquidate this indebtedness up to the amount which might remain due. To whom ? Clearly not to himself, nor to any other branch of his estate, but to the vendors.

If there was any doubt in regard to this, the last clause of this paragraph of the codicil would seem to set it at rest. He contemplates the possibility before his death of having paid this $18,000, and that these lands may have been conveyed to him, because he says : I hereby direct that, if my said brother’s interest in so much of said lands as are in West Virginia shall not have been already conveyed to me prior to my death, such conveyance shall be made to the trustee named in said 6th clause, or to his successors in the trust.”

What does tlie testator mean by this clause, if he did not contemplate the possibility that he might acquire the title before he died ? Now, he could only acquire the title by paying the $18,000. It is clear that his intention was that either he or his trustee, as soon as it could be done, should acquire that title without waiting for the realization of the $18,000 from the sale of these particular lands. His trustee is to pay so much as remains unpaid. He is to get the title if the testator has not gotten it before. Now, to say that the testator did not contemplate doing what he did, viz., acquiring the title to this property before his death, seems to us absolutely to ignore the plain and explicit language of the testator where he speaks of just that contingency. It is idle to say that lie did not mean payment to the vendors, but meant payment to his personal representatives. If be did so intend lie lias certainly used language wbicli is absolutely inconsistent with any sucli idea. lie having contemplated the acquisition of this property and the payment of the whole amount in his lifetime, can it be said that there was any intention by this codicil to direct the payment of any portion of that $18,000 to anybody if he had already paid it himself % In the next clause of his codicil he is equally explicit as to what lie means. After having recited the fact that he had expended $30,000 in and about the management and preservation of his other properties, lie proceeds : “Now, therefore, I do hereby further direct that the said trustee named in the said sixth clause of my said will, after he shall have paid in full the $18,000 mentioned in the next preceding clause of this codicil (or so much thereof as shall remain unpaid at my death), shall use and apply the next moneys received by him from said trust property,” etc. What did lie mean by “ so much thereof as shall remain unpaid at my death ? ” Did he mean so much as should remain unpaid to himself or to the vendors of the property ? It is clear that he did not mean so much as might remain unpaid to himself ; but it was the expression of the intention which had been clothed in apt language by the previous paragraph of the codicil, viz., that the trustees were to liquidate this debt first, if any debt existed, and then apply the proceeds of the sales to the payment of the $30,000 to his personal representatives. And then, as if to put at rest any possible imputation that whatever might have been paid by him upon this $18,000 should be added to the $30,000 which was to be paid to his general estate, he continues: Rift if, before my death, I shall receive from my said property in West Virginia any sum or sums (over and above the current expenses of preserving and maintaining the same) more than sufficient to satisfy my obligations under the above-mentioned agreement relating to the interest of my deceased brother, Grenville Parker, then the excess over that amount so received by me shall go to diminish the sum of $30,000, which said trustee is to refund to my executor, as in this clause is provided.” Here it appears that the testator had in mind the relation between the $18,000 and the $30,000, and he has deliberately provided that if he received in excess of the $18,000 from his property in West Virginia the surplus was to go to diminish the amount of $30,000 to be refunded. But he says not one word to the effect that, in case lie does not receive tlie whole $18,000 from his West Virginia estate, any portion of it which he may have paid is to go to increase the $30,000, which is to be refunded to his executor.

Now, it is sought by the construction asked for to add to the testator’s will a clause requiring the addition of this $18,000 to the $30,000, which the testator lias declined to do for himself. It is asked : To whom then was the testator referring and to whom were the payments of the $18,000, or the part thereof unpaid at his death, to be made ?' Undoubtedly to the general estate.”

But when the testator wanted to provide for a payment to his general estate, lie had no difficulty in finding adequate language to express his meaning. The only possible point in support of the construction claimed by the appellants is in the use 'of the word “ also ” in the second clause : “ And inasmuch as I have also within a few years last past expended sundry sums.” But this word can have no such force and effect as is claimed for it. Suppose he had recited in the prior clause that he had paid $18,000 and taken a deed, and then I have also paid $30,000,” and directed his trustee to reimburse his general estate for the $30,000, could the general estate have lugged in the $18,000 under the short word “ also ? ” We think not. We think that if any weight is to be attached to this word, it is that there is a distinction being made between the $18,000 and the provision for the repayment to his general estate of the $30,000. It is evident that he had them both in mind. He chose to provide for the reimbursement of the one and not-of the other; and this being the plain construction of the language used this court will not make another will for him.

There is another question presented as to the construction of this will arising upon the following facts. Included in the West Virginia lands mentioned in the contract of February 14, 1882, and subsequent deed from Emily T. Parker on the 14th of May, 1883, was an interest in the Gyandotte tract. A. A. Low and William IT. Aspimvall’s devisees also had an interest in this tract and on the 11th of December, 1883, the testator and liis fellow-owners conveyed this tract in fee to A. A. Low, John A. Aspinwall and Benjamin F. Butler. They executed a declaration of trust of the same date, which the appellant’s claim shows that they took the tract in trust for sale. But where any such intention is found from one end of the declaration to the other we have been unable to discover as will be subsequently seen. On the 6th of January, 1890, Low, Aspinwall and Butler, as trustees, by a deed sold and conveyed said tract for $460,000, the purchase money being partly paid to the trustees under the deed and the balance secured by a mortgage, and many.thousand dollars, part of said purchase money, have been paid over by the trustees under the deed and declaration to the defendant Butler as trustee under the sixth clause of the will, and the question involved is: Does the sixth clause of the will operate on proceeds of land in West Yirginia transferred by said testator under said deed and declaration of trust ?

In the determination of this question it is necessary to consider very briefly the declaration of trust, it being assumed to be the creation of a trust for the purposes of a sale by the trustees. The deed is a simple deed in the short form obtaining in West Yirginia. By the declaration of trust, after reciting that the grantors in the deed were interested in the lands in question, and that there was litigation in respect to the same, and that it was deemed necessary in order to facilitate the further and firial settlement of the title, that the legal and equitable title to said real estate should be transferred to and vested in the trustees, the trustees covenanted and agreed to accept and hold the said real estate, and all such right, title and interest therein as was vested in and held by the grantors in the deed at the time of the execution thereof, in trust for and to the only proper use, behoof and benefit of the parties of the second part (the grantors), their heirs and assigns forever, according to the right, title and interest which they respectively have therein.

The declaration then proceeds:

“ And the parties of the first part (the trustees) further covenant and agree at all times to make and execute in due form of law, all such conveyances, contracts, agreements and letters of attorney of and in relation to said real estate or any part or parts thereof as the parties of the second part or a majority in interest of' them, their heirs and assigns, may, in writing, direct, and to do any and all acts in relation to said real estate and every part thereof which the parties of the second part, their heirs and assigns, may, in writing, direct.

“ But it is expressly agreed and understood by and between all tbe parties, that every conveyance, contract, agreement and power of attorney executed by the parties of the first part of and in relation to said real estate, or any part of it, shall be valid and effectual for the purposes intended hy it, as between the parties to this deed and declaration of trust, and the person to or with whom such conveyance, contract, agreement or power of attorney is made, whether the same be directed by the parties of the second part as herein provided or not, it being the intention of all the parties that every person purchasing and taking conveyances of the said real estate, or any part of it, from the said parties of the first part, or their agent and attorney in fact, shall have all such right, title and interest in •and to the same, as the parties of the first and second parts now have, or which the parties of the second part had at the date of their said deed to the parties of the first part.”

This is the only provision in this whole declaration where there is the slightest reference to any sale by these trustees. And all that this provision was inserted for evidently was to assure the title to all persons who might take under this declaration, relieving them from the necessity of proving a direction to convey. It may have been in the contemplation of the parties that these trustees should sell, and undoubtedly the persons taking title from them would get a good title notwithstanding the failure to direct on the part of the beneficiaries under the trust. But the trust is absolutely silent as to any authority upon the part of the trustees to convey, as between themselves and their cestuis que trust, except as they might be directed. Now, under these circumstances, how is it possible to •say that there was any intended conversion of this estate from realty into personalty, or that it should be considered as money ? The testator may not have had a legal title to the estate in question at the time of his death. But that he had an equitable interest therein seems to be beyond controversy; and that that was the true interest is borne out by the examination of the deed and the declaration of trust. It may be somewhat difficult to determine exactly what the testator parted with under these two instruments. But that he still retained an interest in this property seems to be beyond all •question. And it is not necessary to refer to the statutory provisions of West Virginia in aid of this .construction. If it was an equitable interest in land, it is clearly embraced within the language of the sixth clause where h.e speaks of being the owner of lands, and contracts for the purchase or sale of lands, leases, mortgages and equitable interests and rights in and to lands in West Yirginia. And all this property thus described he gives to his trustee. And even if this interest should be described as personal property, he has included it in the language of his will. lie says, after having-described the property as above stated, “Now, therefore, I hereby give, devise and bequeath all the property and estate, real and personal, above described which I shall own or be entitled to dispose of at my death.” He did not intend to leave anything out —• realty, contracts for the purchase or sale of lands, leases, mortgages, equitable interests, rights and personal property pertaining thereto. All were to pass to this trustee. And this is in harmony with the declaration in his will that he desired to make a special disposition of this class of property from that which he made of his general estate and to establish a trust in respect to this particular property. And in his codicil he says that his will was intended to include all rights which he might have in or in relation to certain lands and properties situate in the State of West Yirginia which were formerly owned by him in common with his deceased brother, Grenville Parker, whose interest in the lands in question was then under contract to be conveyed to the testator. -

It is clear, therefore, that he intended to remove all ambiguity, and that he construed the sixth clause himself to mean all rights which he might have either in or in relation to any of these lands. It certainly would be an entire denial of the explicit language of the testator to take out of the operation of the will rights in relation to the very lands which he says are intended to be included therein. We cannot see how any such construction can be adopted. As already observed, it is immaterial whether the interest under the deed and declaration of trust is to be considered as personalty or an equitable interest in land. It was his plain intention to include within the terms of the will and codicil every interest of every kind which might be the result of or belong to these West Yirginia lands.

We might call attention to the provisions of the will in reference to the $30,000 in aid of this construction where he authorizes the application of any sums which might he received from his "West Virginia property during his lifetime to the diminution of the sum of $30,000 which the trustee was to refund to his. executors. There is no provision whatever for the transfer to his general estate of any portion of the proceeds of West Virginia lands, except for the one purpose of the repayment of the $30,000 which was in the codicil provided to be refunded ; another indication that he did not intend that any portion of the proceeds of these lands should go into the general estate, hut should go to his trustee.

Upon the whole case, therefore, we are of opinion that the construction given to this will by the court below was the correct one, and the judgment should he affirmed, with separate bills of costs-to tlie respondents to be paid out of the estate.

O’Brien and Parker, JJ\, concurred.

Judgment affirmed, with separate bills of costs to respondents to' be paid out of the estate.


author: Van Brunt, P. J. :

text:
    George A. Widmayer and Others, as Executors, etc., of George Widmayer, Respondents, v. William F. Widmayer, Individually and as Executor of George Widmayer, Deceased, Appellant.

      Executors and trustees — created by the scmie instrument — jurisdiction of Supreme Oourt — removal of a trustee for misconduct — forfeiture of extra compensation given by the Kill ■— solvency of trustee.

    By t-lie same instrument executorial powers may be conferred upon executors therein named, and also powers of a different character from those which appertain to an executor may he given to trustees
    Although the Supreme Court has no power to-remove an executor, it has the power to remove a trustee as such notwithstanding the fact that he is an executor.
    Where jurisdiction has been entertained by the Supreme Court of proceedings taken for the removal of a trustee under a will on the ground of his misconduct, and judgment has been rendered therein, unless it is apparent that some rule has been violated in entertaining jurisdiction the court will not necessarily undo what it has done; it is a sufficient reason for the Supreme Court to refuse to remit a proceeding to the Surrogate’s Court that complete relief could not -■ be given in that court.

      In sucli proceedings it is proper for the Supreme Court, if it chooses to take the account, to determine the amount that a defaulting trustee owes to an estate.
    Where a person is properly removed by the Supreme Court from his office as trustee under a will, because of his misconduct, he is not entitled to the compensation provided by the will to be paid to him for the services he should render in such capacity.
    The fact of the solvency of a trustee under a will is no defense in proceedings brought to remove him from office on the ground of his misconduct; his co-trustees are entitled to have the business of the estate conducted as contemplated by the will, and if that is not done, they are entitled to his removal.
    Appeal by the defendant, William F. Widmayer, individually and as executor, from a judgment of tlie Supreme Court in favor of tlie plaintiffs, entered in the office of the clerk of the county of New York on the 7th day of April, 1893, upon the decision of the court after a trial at the New York Special Term.

      A. M. Byett, for the appellant.

      F B. Cwndler, for the respondents.
   Van Brunt, P. J. :

This action was brought to remove the appellant from his office as trustee and manager of the estate under the last will and testament of George Widmayer, deceased. Said Widmayer died on the 29th of January, 1886, leaving a will which appointed the respond-' ents and appellants executors thereunder. Said will was admitted to probate on the 13th of February, 1886, and letters testamentary duly issued thereon. In and by said will the testator devised to his executors and the survivors and survivor of them, their and his successors and successor, certain real estate to have and to hold the same and to receive the rents, income and profits thereof and to pay over the same as therein directed. Thus there was conferred upon the executors the duties of trustees in addition to that of the ordinary administration of the estate. The testator also inserted in his will the following clause :

I desire and direct that my son William F. Widmayer shall receive the sum of one thousand two hundred dollars per year, to be paid in ecyual monthly payments, over and above all commissions which he shall be entitled to as one of the executors of this my last will and testament, in consideration whereof it is my desire and wish that said William E. Widmayer shall take and have the active •management of the property and estate and collect all the rents and income therefrom, and account therefor to his co-executors and pay over the same to his co-executor, my son Henry E. Widmayer, who shall receive from said William E. the collections made by him and shall deposit the same and all other interest, income and dividends from bonds and mortgages, stocks and other securities which shall belong to my estate, and deposit the same in the Hnited States Trust Company of New York. And my said executor Henry E. Widmayer shall draw against such deposits for the purposes indicated in my said will.”

It having been claimed by the plaintiffs that the appellant had misconducted himself in his office as manager and trustee of the estate this action was brought for his removal.

Hpon the trial at Special Term the learned court found misconduct on the part of the appellant,- and gave judgment directing his removal as manager and trustee of the estate, and also adjudging that said appellant would not be entitled to receive the $1,200 per annum provided for in the will, and that he was indebted to the-estate in a considerable sum of money ] and from such ■ judgment this appeal is taken.

The appellant claims that the court erred in refusing to dismiss, the complaint upon his motion, the grounds of which motion being-that this court had not jurisdiction to revoke the letters of William E. Widmayer, or to remove him as trustee, and secondly, that if it had jurisdiction it should not exercise it.

It certainly is not necessary to discuss the proposition that by the same instrument executorial powers may be conferred upon the executors therein named, and also those of trustees having a different. character from the powers which appertain to an executor. This principle is too well recognized to need either discussion or the citation of authority. .

It is further conceded that the Supreme Court has no power to remove an executor from his office as such; and it is also equally well settled that the Supreme Court has the power to remove a trustee from his office as such, although he may be also an executor. But it is urged that, if this be true, the Surrogate’s Court having jurisdiction to remove the appellant both as executor and trustee, that this court should have remitted the plaintiff to that tribunal, and that .this court should have declined such jurisdiction. It is undoubtedly •true that the policy of this court has been not to entertain jurisdiction of proceedings and actions of which statutory tribunals have ■been given cognizance by special enactment. But it by no means ■follows that in all cases this court should decline jurisdiction upon ■that ground. And where such jurisdiction has been entertained and judgment rendered, unless it is apparent that some rule has been violated in so entertaining such jurisdiction, this court at General Term will not necessarily undo that which has been done.

But in the case at bar there was reason for the entertaining of jurisdiction. It was sought by this action to remove the appellant from his position as manager of this estate, and to determine the .fact that he was no longer entitled to the remuneration which was provided for in the will appertaining to that occupation. Of this the Surrogate’s Court had no jurisdiction, and relief could only be granted in this court. There seems, therefore, to have been good reason for the court refusing to remit the parties to the Surrogate’s .Court, as complete relief could not there be given.

It is further urged that if the court could assume jurisdiction to remove appellant as trustee it could only remove him as trustee when the office of trustee is separate and independent from that of executor, or has become so ; and we are referred to the decision of the Court of Appeals in The Matter of Hood (98 N. Y. 363). But we fail to see the application of the case cited.' By the terms of the will under which this appellant purported to act the rights of the executors over the real estate in question, and of which the appellant was acting as manager under the authority conferred in the will, were giyen to these executors in trust, and it was as trustees that they were managing the estate and collecting the rents and disposing of the same. The duties which were being performed in that regard were no part of the executorial duties, and as such they had no control over the real estate in question. It is, therefore, manifest that there were duties conferred upon these executors as trustees and as trastees simply, and in respect to which they were trustees ; and it would necessarily follow that this court had jurisdiction to remove them from that office and to prevent them from the performance of these functions.

It is also urged tliat the court erred in removing the appellant from his position as manager of the estate, and it is claimed that this management was not confined to the collection of rents and income; that he was to have the .active management of the property •and collect, etc., the first being a purely executorial duty, and that the appellant was not a manager independent of being an executor, such duties being part of and embraced in those as executor; and that, as the court had no power to remove him as executor, it had no power to remove him as manager. It seems to us that the learned counsel has overlooked the plain provisions of the will. It is plain that it was the intention of the testator to give him some additional and •other authority than that which he was to have as executor. lie was to manage the estate and collect tlie_ rents and income thereof, and account therefor to his co-executors, and pay over the same to ■one of them who was to have the authority to pay it out. For these services he was to receive a compensation additional to his commission as executor of $1,200 per annum. It is clear that it was the intention of the testator to give the appellant additional authority from that which the office of executor had conferred upon him in reference to the management of this estate. Now, as to this real estate, it appears that the only authority which this appellant had was in managing or mismanaging the estate. At this time he had no duties as executor. All his duties were as trustee and as manager, and it was the continuance of his violation of these duties which the court sought to prevent by his removal. The appellant having neglected to perform the duties imposed upon him by the provisions of the will, clearly was not entitled to the compensation provided for in the will; because it is in consideration of these services that he is to have the payment, or rather the payment is to be made in consideration of the rendition of the services. The provision is: “I desire and direct that my son "William F. Widmayer shall receive the sum of $1,200 per year * * * in consideration whereof it is my desire and wish that said W. F. Widmayer shall take and have the active management of the property and estate, and collect all the rents and income therefrom and account therefor,” etc. He having violated his duties by the manner in which he had conducted himself in reference to this property and estate, it seems to us that there is no ground for bis continuing to claim tbe compensation wbicli was provided for in tbe will for tbe faithful performance of those services. Therefore, tbe court did not err in bolding that tbe appellant was not entitled to tbe salary given to him under tbe will of bis father.

It is not necessary to consider tbe evidence in detail as to tbe manner in which this appellant conducted himself in reference to this estate. It appears that be bad collected rents which be bad not paid over, and these plaintiffs were not obliged to run tbe risk of his insolvency, or their ability to collect the same from him by legal proceedings. Tbe fact that at some future time he may be very solvent was entirely immaterial. If be failed to pay'over — if be conducted tbe business in an improper way — tbe fact of bis solvency bad nothing to do with the question. Tbe plaintiffs were entitled to have tbe .business conducted as -was contemplated by tbe will, and if that was not done, as it is apparent the appellant did not do, they were entitled to bis removal.

Certain objections are taken to tbe admission of evidence in respect to a certain transaction of this manager, who collected rent ten months in advance and never paid it over. Tbe objection was that there was no allegation in tbe complaint upon which the evidence could have been received, as tbe allegations in the complaint applied to certain other rents which tbe appellant had not paid over. Although this may be tbe fact, yet, if this were all stricken out, the evidence justified tbe relief granted directing tbe removal of tbe appellant as manager and trustee, and was so complete that upon this issue tbe appellant lias suffered no injury by reason of tbe admission of this testimony.

The court, in view of tbe circumstances, bad the right to determine, either upon tbe trial or by a reference, as to what amount tbe defaulting trustee owed to the estate, and, if it chose to take that account upon tbe trial, it was not error so to do. Therefore, tbe admission of this evidence forms no ground for a reversal.

Upon tbe whole case we are of opinion, therefore, that no ground is presented for interference, and that tbe judgment should be affirmed, with costs.

O’BbibN, J"., concurred; Pakeee, J., concurred in tbe result.

Judgment affirmed, with costs.


author: Per Curiam :

text:
    In the Matter of the Estate of Cornelius V. S. Roosevelt, Deceased.

      Inheritance tax — when the assessment should he postponed.

    ■When tlie value of tlie remainder and tlie number of the remaindermen cannot be ascertained until after tlie death of a life tenant, it is error to assess a collateral inheritance tax upon such remainder before that time.
    Appeal by tlie executors of tlie will of Cornelius Y. S. Roosevelt from an order of the New York County Surrogate’s Court, made on tlie 25th day of July, 1893, and entered in the office of the clerk of the New York County Surrogate’s Court, affirming the order of said court, made on the 26th day of July, 1893, confirming the amended report of appraisers and assessing a collateral inheritance tax, with notice of an intention to bring up for review upon such appeal an order of said Surrogate’s Court, made on the 10th day of June, 1892, denying the motion of the executors and of the legatees and devisees to confirm the report of an appraiser filed in said clerk’s office on the 5th day of April, 1892.

      Oeo7'<j6 II. Yeoman, for the executors, appellants.

      Edward llassett, for the comptroller of the city of New York, respondent.
   Per Curiam :

Ten nephews and nieces took vested remainders at'the death of the testator, subject to the life estate of the widow and to the payment of certain annuities after her death. Until the widow dies it cannot be ascertained how many persons will become entitled to annuities, nor until that time will the amount or the age of the annuities be known. Therefore, there is no way in which the value of the remainder can be ascertained until after the death of the widow. (Matter of Curtis, 73 Hun, 185.)

The order should be reversed, with costs and disbursements.

Present — VaN BruNt, P. J., O’BrieN and Eollett, JJ.

Order reversed, with costs and disbursements.


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    New York Harbor Towboat Company, Respondent, v. New York, Lake Erie and Western Railroad Company, Appellant.

      Damages sustained by a collision — signals by vessels — evidence justifying a verdict.

    Where two boats approach each other and one signals that she is about to cross the other’s bow, and the second boat signals her answer, such signal is an indication conveyed by the second vessel to the first as to how and in what way she is going to aid the maneuver of the first vessel, and upon the trial of an action brought to recover damages alleged to have been sustained by reason of the collision of such vessels, the jury has a right to determine whether the failure of the second vessel to do as she signaled she would do was not the cause of the accident, and whether, if she had so done, no collision would have occurred.
    Every doubt is not required to be resolved in favor of either of the parties to a civil action, nor is it necessary to establish any proposition by conclusive testimony, in order to sustain a verdict.
    Appeal by tlie defendant, New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of October, 1892, upon the verdict of a jury for $1,044.10, after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the Yth day of November, 1892, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

      G. B. Adams, for the appellant.

      James M. Gifford, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages occurring to a steamboat, the J. G. Emmons, of which the plaintiff was the owner and which was in collision with the ferry boat Pavonia, belonging to the defendant.

It appeared from the evidence that, on the morning of the 2lth of October, 1884, the Emmons started from a pier in the North river, at the foot of King street, quite a distance above the place of collision, for Castle Garden. She proceeded down the river about 300 feet from the head of the docks. When she reached Harrison street, her engineer having found that she needed water, sent word to tbe master that there was a hydrant at Harrison street, where he conld get it. The boat was turned off shore to go into Harrison street, her wheel being ported and she going to the right. There is some dispute in the testimony as to liow far down the river the Emmons went in, turning to get back to Harrison street. The testimony upon the part of the plaintiff was to the effect that she commenced to turn abreast of the Harrison street pier, kept on the swing and went down the river far enough to open the Erie freight slip between piers 20 and 21, but that she did not go below or to the slip of the passenger ferry, -which was the opening between the piers next below. On the part of the defendant, evidence was offered tending to show that the pilot of the Pmonia saw the Emmons between Harrison and Jay streets (Jay street being the street below Harrison) proceeding down the river, and that she had gotten so far down that her stern was between the piers of the slip above the ferry, and that the pilot, supposing that she was going on, paid no further attention to her. The next thing he saw was that the wheel of the Emmons was put hard a port and she came right around; and he swore that even at that time there was nothing to indicate that the Emmons was going to attempt to turn up the river .again and cross his bow; and that the first intimation he had that the Emmons intended to cross his bow was that a whistle was ’blown, and he immediately signaled the engineer to reverse his engine and back the boat. At the same time he gave one whistle, and that his boat being backed and had almost lost her -way7 before she came in ■collision with the Emmons, and after, hearing the whistle his wheel ran amidships and stayed there until the collision.

On the other hand, upon the part of the plaintiff, the evidence was that the Emmons never got below the opening between the piers above the ferry and that she rounded to. The Pmonia was coming diagonally across the river from Pavonia Ferry, and after the Emmons had made three-quarters of the swing to the northward, she blew one whistle to the Pavonia indicating that she intended to go to the right. At this time the Emmons ■was about 400 feet from the shore, and the Pavonia 800 or 1,000 feet away from the Emmons on her-way to her ferry slip. Not getting an answer to this signal, but seeing that the Pavonia kept on her course, she blew another similar blast when she was about 500 feet away. The Pmonia tlien answered distinctly with one whistle. The Emmons’ helm was still hard a port; after this whistle, the Pavonia’s wheel was put to starboard, thus throwing the Pavonia directly towards the Emmons. The Emmons at the time was going at full speed, and after the second whistle a bell was rung to the engineer for extra speed. The Pavonia’s engine was stopped at the time of - the collision, and the Pavonia’s port bow struck the Emmons’ port wheel.

Upon this state of the evidence, it is claimed upon this appeal that the court erred in not dismissing the complaint at the close of the plaintiff’s testimony upon the ground that when the Emmons failed to get an answer to her first whistle she should have stopped and reversed at once, attention being called to the 21st rule of navigation which was in force at the time, and which provided that every steam vessel when approaching another vessel so as to involve risk of collision shall slacken her speed, or, if necessary, stop and reverse.

Tn the presentation of this question it seems to us that the learned counsel for the appellant does not give the proper import to the answering by the Pmonia of the whistle heard from the Emmons. It is claimed, and that seems to be the foundation of most of the arguments presented here, that all that the answering by the Pavonia meant was “ All right; I hear your whistle; I will do the best I can to aid your maneuver.” We do not understand such to be the intimation conveyed by the Pmonia to the Emmons by its answering whistle. It was an indication as to how and in what way the Pmonia was going to aid the maneuver of the Emmons getting around in safety in view of the advance of the Pmonia. This indication was that the pilot of the Pmonia wrould port his wheel, throwing his boat to the right; and it was this maneuver the pilot of the Emmons had a right to rely on the Pmonia doing. But instead of this there was evidence that the pilot of the Pmonia put her helm to starboard, directly throwing the Pavonia into the Emmons. At best the evidence upon the part of the defendant is that the helm vras amidships and nothing was done to change her course.

Such being the condition of the evidence the jury had a right to-determine as to whether this failure to handle liis boat properly upon the part of the pilot of the Pmonia was not the cause of the accident and wlietlier if this bad been done no collision would have occurred. . Under sucb circumstances tlie rule which has been invoked lias no application.

It is further claimed as a ground for the dismissal of the complaint that the Emmons was proceeding in violation of common prudence, and of a legal obligation to keep away from the ferry slips. There was no evidence in this case tending to show that that had anything to do with the collision. The Emmons was out in the stream several hundred feet from the head of the piers. She was not interfered with by a boat coming out of the slip which could not see her, but the collision occurred with a boat which had the Emmons in full sight during all the time in which this swinging of the boat took place. Therefore, this point urged upon the part of the appellant does not seem to be at all applicable.

The learned court charged the jury that “ It was the tug’s duty to signal her intention by a single blast of her whistle before she attempted to cross the ferry boat’s bow the second time, and if she did not get a single blast of the ferry boat’s whistle in reply in time to accomplish the maneuver in safety it was her duty to check her speed and reduce it down to steerage way ; and if you believe she did not do so the verdict must be for the defendant.”

And it is urged that the verdict is contrary to this charge'.

It is true that the Emmons did not get a single blast from the Paoonia in reply to her first whistle, nor did she reduce her speed, and that a collision occurred. But the jury had a right to find that the collision was not the result of any of these circumstances. Upon her giving the second blast she got a reply indicating a certain course of conduct upon the part of the ferry boat, which they may have found was not taken, and that that was the cause of the collision.

It is further urged that the court erred in- charging inspectors’ - rule 1 and navigation rule 18 as applicable to the case, which rules apply to the conduct of vessels approaching each other head on or nearly so.

The court charged what the law was under these circumstances, and left it to the jury to determine as to whether these rules were applicable in view of the condition of the vessels, there being a dispute in regard to their relative positions, and evidence from which tbe jury might find that at tlie time of tbe whistle tbe vessels were bead on or nearly .so. It is true tliat tbe Emmons was swinging all tbe time. And that she bad swung past tlie line of “bead on” was shown by tbe manner of tbe collision. But it cannot be said that simply because her position was changing in consequence of her helm being hard a port she bad no right to give a signal if tbe condition of affairs was such as called for tbe signal at the time it was given. Tbe Emmons bad her helm bard a port. Her pilot knew that under the circumstances tbe pilot of tbe Pavonia, upon hearing tbe whistle and giving tbe reply, ought to put bis helm bard a port; and tbe jury had a right to find that if he had followed that course the collision would not have occurred.

It is further urged upon tbe part of tbe appellant that tbe court erred in refusing to charge certain propositions of law as requested by tbe defendant. But it will be seen upon an examination of these requests that numerous propositions were involved therein which it would have been improper to have presented to tbe jury.

Tbe court was asked to charge tbe jury that “No excuse is permitted for tbe failure of a vessel to have a lookout, and the absence of one is evidence of fault. The only way tbe owners of such a vessel can escape from the legal liability for a collision with another vessel in such a case is to show that tbe presence of such a lookout, vigilantly attending to his duties, would not have enabled tbe vessel to avoid tbe collision. Every doubt as to tbe performance of the duty and tbe effect of the non-performance should be resolved against the owners of tbe vessel without a competent lookout until they vindicate themselves by testimony conclusive to the effect that absence of a lookout made no difference in the result. Therefore, unless you believe that tbe evidence conclusively establishes that such absence made no difference, your, verdict must be for tbe defendant.”

Here rules of law are invoked which do not obtain. Every doubt is not required to be resolved in favor of either of tlie parties to a civil action, nor is it necessary to establish any proposition by conclusive testimony. And furthermore, the court had charged that it was tbe duty of tbe Emmons to have a competent lookout, and that the rule was that lookouts must be persons of suitable experience, properly stationed on the vessel, and actively and vigilantly employed iii the performance of this duty. But there is no rule which requires that a person may not be engaged as a lookout who at other times may have other duties to perform on the vessel. And the jury were instructed that a failure upon the part of the plaintiff to have some person acting as lookout would be some evidence of negligence; but that the evidence in the case was that there were two persons in the pilot house of the Emmons acting as lookouts, and that they saw the Pamnia, both before and after the Emmons attempted to go about, and he left it to the jury to say whether or not there was a competent lookout, and. whether or not the absence of a lookout contributed to the accident.

The proposition submitted upon the part of the appellant went far beyond anything which any rule of law could possibly sanction in reference to the conclusiveness of evidence. The court having already charged the jury as to the lookout, was entirely correct in refusing so erroneous a proposition as that which was submitted. Even if, as claimed by the appellant, the charge left too much to the jury and did not instruct them with sufficient particularity, the appellant’s proposition gave an absolutely erroneous rule for the guidance of the jury, and in no way tended to call the attention of the court to any omission upon its part if any such existed.

The next request which it is claimed was error upon the part of the court to refuse was as follows:

The rules of navigation require that the vessel which has the other on her own starboard (right) hand shall keep out of the way of the other. In this case, having passed the course of the ferry boat in conformity with such rule, it was the duty of the tug to keep her course and not attempt to cross the ferry boat’s bow again, unless there was ample room for her to do so without danger of collision. Even the ferry boat’s consent to an improper maneuver would not relieve the tug of the fault of attempting it when a disastrous result ensued. Therefore, if yon believe there was not sufficient room for the tug to cross the bow of the ferry boat again, the tug. was guilty of fault, and the verdict must be for the defendant.”

In this proposition are assumptions which are also contained in the statement of the facts by the counsel for the appellant which have not the slightest particle of evidence to sustain them. They are that the Emmons, before she commenced to turn, had passed the course of the ferry boat, and had once crossed the boat’s bows, when the evidence upon the part of the plaintiff was that she had not reached, and never did reach, the ferry slip; and the most that can be said of the evidence upon the part of the defendant is that her stern had gotten to the pier of the ferry slip, but that she did not cross the course of the ferry boat, nor did she cross her bows, so that when she attempted to turn it was not an attempt to cross the Pmonids bows again.

Without proceeding to analyze the ‘other requests in detail, it is sufficient to say that they are all affected by the same class of error, or they assume the presentation to the jury of other propositions which have been refused.

• Upon an examination of the whole record we see no reason for disturbing the conclusion reached by the jury. There was a conflict of evidence as to the position of tírese boats, and as to what was done as they were approaching each other, and the jury were justified, if the version of the conduct of those in charge of the Pitvonia rvas as described by the plaintiff’s witnesses, that the collision Avas caused by the management of that boat, and not by any fault of the Phmnons.

The judgment and order should be affirmed, with costs.

O’BkieN and Parker, JJ., concurred.

Judgment and order affirmed, with costs.


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    Foo Long, Appellant, v. The American Surety Company, Respondent.

      Surety on an undertaking — effect as against Mm of a decision made upon a stipulation.

    The presumption is that a decision of the General Term is supported by the fact appearing before it, and that presumption is not overcome where the Court of Appeals made no examination into the merits of the controversy, and the directions given by it tvere Avliolly founded upon a stipulation of the parties; the only way in which the reversal of a judgment by a General Term can be disposed of so as to bind a surety upon an undertaking to tire General Term upon appeal, is by an actual adjudication of the Court of Appeals upon the question involved.

      A decision of the General Term is the law of the case in which it is made until it is reversed by the Court of Appeals, and whore such reversal is made by consent, nobody is bound thereby, except, perhaps, tlie parties to the record. It can furnish no foundation for any remedy against any other person, or against any other property.
    Appeal by tlie plaintiff, Foo Long, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of tlie cleric of tbe county of New York on tbe 13tb day of June, 1893, upon the verdict of a jury by direction of tbe court after a trial at tbe New York Circuit, and also from an order entered in tbe said clerk’s office on tbe 15th day of June, 1893, denying tbe plaintiff’s motion to set aside the verdict and for a new trial made upon tbe minutes.

      J. IT. Tuttle, for tbe appellant. ■

      Arnold & Greene, for tbe respondent.
   Van Brunt, P. J.:

This action was brought upon an undertaking given by tbe defendant for one Chu Fong upon appeal to tbe General Term upon a judgment in favor of tbe defendant therein. At tbe General Term this judgment was reversed and a new trial ordered. Tbe plaintiff then appealed to the Court of Appeals from tbe order granting a new trial, giving a stipulation that if tbe same was affirmed judgment absolute might be rendered against him. After tbe appeal was taken and tbe case was on tbe calendar of tbe Court of Appeals, but long before it was reached, tbe jdaintiff and the defendant in that action and their attorneys executed, acknowledged and filed a consent entitled in tbe Court of Appeals consenting to the entry of a judgment reversing tbe judgment of tbe General Term and affirming absolutely the judgment of tbe Circuit Court, and judgment having been entered accordingly, tbe plaintiff brought this suit against tbe present defendant on the undertaking. Tbe defendant in its answer denied that tbe judgment at Circuit liad ever been affirmed within tbe intent and meaning of tbe undertaking ; and set up in defense that said judgment was not rendered upon any argument or submission of said appeal or upon any consideration by tbe Court of Appeals, but that tbe plaintiff had entered tlie judgment of affirmance by consent without the knowledge and to the prejudice of the defendant as surety; and that said acts of the plaintiff and defendant in that suit were collusive and fraudulent. Upon the case being tided, the learned justice excluded all the evidence to support the defense and gave judgment against the defendant. Upon defendant’s appeal that judgment was reversed and a new trial ordered. Upon the second trial the plaintiff put in evidence the judgment of the Supreme Court upon the remittitur showing that the Court of Appeals had reversed the order on consent and evidence of demand and notice. The defendant then, proved by the remittitur of the Court of Appeals that the parties had made the consent on January 9, 1891; and that judgment in the Court of Appeals on said consent was entered on January 12, 1891, months before the case was reached. The defendant then proved the circumstances of the indemnity given to it upon its execution of the undertaking sued upon. The insolvency of the defendant in the first action was established, and certain other facts proven. The court excluded all evidence on the part of the plaintiff to show that when he made the agreement consenting to the affirmance, he thought that the defendant in the first action owned the $4,000 deposited with this defendant, and did not know that he had assigned it. The court directed a verdict for the defendant, and from the judgment thereupon entered, and from the order denying a motion for a new trial, this appeal is taken.

The decision of this case upon the previous appeal is contained in 61 Hun, 595, and seems to dispose of the only question involved herein. It was there held that the presumption was that the decision of the General Term was supported by the facts appearing before that court, and that presumption was not overcome by the proceedings afterwards taken in the Court of Appeals, for that court made no examination whatever into the merits of the appeal, or the decision made by the General Term; but the directions given by that tribunal were wholly founded upon the stipulation or agreement of the parties or their attorneys; and that no adjudication, therefore, was in fact made, by which this presumption of the correctness of the determination of the General Term was in the least affected or diminished in force; but the parties or their attorneys, with that presumption existing, entered into an agreement to set aside that decision, and to restore the judgment on the verdict which had been reversed by it. It was also held that the only way in which the parties could dispose of the reversal of the judgment by the General Term so as to bind the surety upon the undertaking to the General Term, was by an actual adjudication by the Court of Appeals-upon that question.

The learned counsel for the appellant seeks to re-argue the questions involved upon the appeal to the General Term. But we do not understand that the decision on that appeal can be impeached in this way. It is the law of this case until it is reversed by an adjudication made in the usual course by the Court of Appeals; and one made by consent and, therefore, collusive, can have no such effect.

It is a principle too familiar to need the citation of authorities that an adjudication which proceeds upon consent establishes nothing as to anybody, except perhaps the parties to that record. * It can furnish no foundation for any remedy against any other person or against any other property. (Earl of Bandon v. Becher, 3 Cl. & Fin. 479; Gaines v. Relf, 12 How. [U. S.] 472; Moses v. McDivitt, 88 N. Y. 62.)

AYe do not think that further discussion is at all necessary in view of the previous decision.

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

O’Brien and Parker, JJ., concurred.

Judgment and order affirmed, with costs.