author: Herrick, J.: .Mayham, P. J. Barnard, J.: Edwards, J.:

text:
    The People of the State of New York ex rel. John I. Platt, Appellant, v. The Board of State Canvassers of the State of New York and Frank Rice et al., Respondents.

      Contempt — of an order of the Supreme Court — the order is in force until the judgment of reversal of the Court of Appeals is made the Supreme Court judgment— order to shoio cause appealable — leave necessa/ry for a renewal of a motion — laches.

    An order was made at a Special Term of the Supreme Court and thereafter affirmed hy the General Term commanding that the State Board of Canvassers should not canvass certain specified returns. An appeal was taken therefrom to the Court of Appeals, and such order, in so far as it prohibited such hoard from canvassing such returns, was affirmed. The decision of the Court of Appeals was read hy the counsel of such hoard, and it was communicated to some of the members thereof. After the handing down of such decision, hut before the filing of the remittitur and the entry of an order making the judgment of the Court of Appeals that of the Supreme Court, such board of canvassers canvassed the returns in question.

      jHeld, that the order of the General Term was in full force until the judgment of the Court of Appeals was made that of the Supreme Court, and the State Board of Canvassers was guilty of contempt of court in canvassing such returns. (Mayham, P. J., dissenting.)
    An order of the Special Term denying a motion for an order to show cause why certain persons should not he punished for contempt of court is an order made upon a contested motion, in effect a final order, and is appealable. (Mayham, P. J., dissenting.)
    Upon an appeal from such an order it would not he proper for the General Term to grant an original order directing the defendants to show cause why they should not he punished for contempt, no permission having "been given for the renewal of such motion.
    A motion having once been denied cannot he renewed upon the same papers without leave.
    A delay in taking proceedings to punish certain persons as for a contempt, because of an alleged disobedience of an order, should not defeat a motion made for an order for such persons to show cause why they should not he punished for such contempt, unless it he shown that such delay has injured such persons or has prevented them from interposing some answer to such motion that could have been asserted if such application had been sooner made. (Mayham, P. J., dissenting.)
    Appeal by the relator, John I. Platt, from an order of the Supreme Court, made at Chambers on January 31,1891, and entered in tlie office of the clerk of Albany county on the 9tli day of June, 1893, denying bis motion for an order to show cause why the defendants should not be punished for contempt of court, with leave to renew said motion before any other justice of said court; and also-from an order made at tlie Columbia Special Term and entered, in thp office of tlie clerk of Albany county on tlie 9th day of June, 1893, denying said motion, with notice of a motion to he made at the G-eneral Term for an order requiring the defendants to show cause why they should not be punished for contempt, and for other relief.

      John Brooks Leavitt, for the appellant.

      J. Newton Fiero, for the respondents.
   Herrick, J.:

After the State election in 1891 a controversy arose in the county of Dutchess over the canvass by the bqard of county canvassers of the vote for State Senator; the county clerk, as secretary of the hoard, of canvassers, refused to sign the statements of canvass as made by the board of canvassers, and said board thereupon by resolution appointed John J. Mylod, one of its members, secretary 'pro tern., and directed him as such to sign and attest said statements, which he did, and such statements, so signed by him, were transmitted to the Governor, Secretary of State and Comptroller, to be canvassed by the defendants herein as the State Board of Canvassers.

Proceedings were thereupon instituted against the defendants, 'composing the State Board of Canvassers, po prevent their canvassing the statement or return signed by Mylod, and on December 7, 1891, at a Special Term of the Supreme Court, an order was granted containing the following provision : “ It is ordered that a writ of peremptory mandamus issue out of, and under the seal of, this court commanding and requiring the said State Board of Canvassers that they issue a certificate of election to the office of Senator in the fifteenth senatorial district of this State, disregarding the so-called return of the board of county canvassers of the county of Dutchess, which is signed by John Mylod, as secretary of said board pro tempore, and is not signed by the county clerk of Dutchess county or certified under the seal of said county clerk, but that instead thereof they consider only such return from the county of Dutchess as may hereafter be filed containing the signature of the county clerk of the county of Dutchess and the chairman of said board of county canvassers, and issue under the seal of said county clerk, and that in their certificate of election the said State Board of Canvassers certify and declare that the person who appears upon the certified returns and statements made by the boards of canvassers of the counties of Columbia, Putnam and Dutchess, in pursuance of the statute and the order of the court, to have received the greatest number of votes, was duly elected Senator from the said fifteenth senatorial district.”

This order was affirmed by the General Term and was then taken to the Court of Appeals. (See People ex rel. Daley v. Rice, 129 N. Y. 449.)

It appears from the opinion of Judge Peckham that two grounds were urged in the Court of Appeals for sustaining the order in question, one that the return of the county canvassers referred to in said order was not certified by the county clerk, and the other, that the-county canvassers illegally threw out votes which had been counted for Mr. Deane by the inspectors of election, and illegally transposed votes canvassed by said inspectors; that votes counted for Mr. Deane were given to Mr. Osborne, and that the board of county canvassers illegally canvassed the returns from the inspectors of election in the whole county and made up their own canvass in opposition to such returns. As to the first ground, the court held that it was not necessary that the returns of the board of county canvassers should be signed or certified by the county clerk, and in disposing of that question the court said: “ "We think that under all the facts the steps taken to certify and authenticate the statements were valid, and the proceedings by which they were sent to, and received by, the Secretary of State and other State officers were sufficient to entitle them to be filed and considered by the Board of State Canvassers as the properly certified result of the canvass of the board of county canvassers. The other ground for directing the State Canvassers to omit to canvass this return remains to be considered.”

The court then, after reciting the facts in regard to the second ground of objection to canvassing such return, proceeded as follows:

“ Bpon these facts standing uncontradicted, we think the court below in its proper branch would have the power to command the State Canvassers to canvass without regard to such a return. As it contained the result of an illegal and erroneous canvass by the board of county canvassers in excess of its jurisdiction, and which thereby would alter the result of an election, the court should not permit it to be canvassed. * * * If another return should be duly sent to the board, properly authenticated and containing the result of the legal action of the board of county canvassers, the State board could canvass it.
"We think, as a result, that the order for the writ and the writ itself should be modified by striking out the provisions requiring a return to be certified by, and to come from, the county clerk of Dutchess comity, and issued under his seal, and as so modified the order is affirmed.”

The remittitur of the Court of Appeals upon such decision was as follows: “ It is ordered and adjudged that the order of the Special Term herein, dated December I, 1891, and the order of the-General Term affirming the same, and the same writ itself, be modified by striking out the provision requiring a return to be certified by and to come from the county clerk of Dutchess county, and issued under his seal, and that the said order, so appealed from, as. so modified, be affirmed, without costs.”

Striking out the provisions in the order of the Special Term requiring a return to be certified by and. to come from the county clerk of Dutchess county and issued under his seal, the order issued by the Special Term would read as follows :

“ It is ordered that a writ of peremptory mandamus issue out of,, and under the seal of, this court commanding and requiring the State Board of Canvassers that they issue a certificate of election to-the office of Senator in the fifteenth senatorial district of this State, disregarding the return of the board of county canvassers of the county of Dutchess, which is signed by John IVIylod, as secretary of said board pro tem, but that instead thereof they consider only such return from the county of Dutchess as may hereafter be-filed ; and that in their certificate of election the said State Board of Canvassers certify and declare that the person who appears upon the certified returns and statements made by the boards of canvassers-of the counties of Columbia, Putnam and Dutchess, in pursuance of the statute and the order of the court, to have received the greatest number of votes, was duly elected Senator from the said fifteenth senatorial district.”

"Whatever other return the Board of State Canvassers might canvass, they were thus expressly forbidden by an order of the Special Term of this court, affirmed by the General Term and the Court, of Appeals, to canvass the so-called “ IVIylod return,” yet in the evening of the same day that the opinion of the Court of Appeals, was handed down, and after the same had been read by counsel for-the defendants, and as appears from the case, communicated to at; least some of the defendants, but, I infer, before the filing of the remittitur and the entry of an order making the judgment of the Court of Appeals that of the Supreme Court, the Board of State Canvassers met and canvassed the votes for Senator in the fifteenth district, and in doing so they failed to disregard the “ Mylod return.”' They used that return in making their canvass.

Without discussing the question whether or not there was a ■corrected return before the board which they could and should have cauvassed, it is sufficient to say that there was an order of the ■Special Term, affirmed by the General Term and the Court of Appeals, in force, directing a mandamus to issue to the defendants, forbidding the use of the “ IVIylod ” return in making their canvass. ‘This order had been served upon the defendants, and they had appealed from it, and knew the result of such appeal. Whether or not the remittitur of the Court of Appeals had been filed or judgment entered thereon when the defendants acted in making the said ■canvass, it seems to me is not important. The order as affirmed by the General Term'was in full force until the judgment of the Court of Appeals was made that of the Supreme Court.

In Sixth Ave. R. R. Co. v. Gilbert El. R. R. Co. (71 N. Y. 430) it is held that an appeal from a judgment restraining action on the part of a defendant, and a stay of proceedings thereon, does not affect the validity or effect of the judgment pending the appeal. The •defendant is not absolved from the duty of obedience to it or permitted to do that which the judgment prohibits. The same may be •said in reference to the order providing that a mandamus issue •directing defendants to disregard the “ IVIylod ” return. If, when the ■defendants canvassed the “Mylod” return, the judgment of the Court of Appeals was not made that of the Supireme Court, then the order of the General Term was in force. If, on the contrary, its remittitur was filed and an order was entered thereon, the judgment of the Court of Appeals affirmed that of the General Term as to the Mylod return.

The only papers before the Special Term on this application, and before this court, are those of the moving parties; then’ statements ■are uncontradicted; the defendants have submitted no opposing affidavits or records, and from the record as it is now before this ■court ‘the fact seems to be established, that while the order of December 7, 1891, held by the Court of Appeals to have been properly granted, on the papers on which it was based, was in full force, providing for the issuance of a mandamus to defendants directing them to disregard the “ Mylod ” return, the defendants deliberately disobeyed such order and canvassed the “ Mylod ” return.

It is not desirable to discuss the merits of the case any further than is necessary to decide this appeal; a prejudgnunt of the merits of the principal case is to be avoided if possible, but on the case as it now appears before the court I cannot escape the conclusion that in canvassing the so-called “ Mylod ” return the defendants were guilty of contempt of court; of course, these views may be changed when the defendants submit their version of the transaction, and it is sincerely hoped that they will be able to show such a state of facts as will absolve them. The suggestion that the Court of Appeals, in the case of Hasbrouck v. The Supervisors (135 N. Y. 522), held that the return from Dutchess county attempted to be substituted in place of the “ Mylod ” return was invalid, is not of the slightest consecpience in this case; we are only dealing with the “ Mylod ” return ; it was the “ Mylod ” return the defendants were forbidden to canvass; it was the “ Mylod ” return they canvassed ; and the fact that there was another return, also illegal, which was attempted to be substituted in its place, makes no difference as to the duty of the defendants in reference to the “ Mylod ” return ; the case of Hasbrouck v. Supervisors did not deal with the “Mylod” return, and in no sense overruled People ex rel. Daley v. Rice (supra).

My attention has been called to the declaration of the Court of Appeals in the case of The People ex rel. Derby v. Rice et al. (129 N. Y. 161), wherein it said in the case of an order like the one said to have been violated in this case: “ If we were free to consider and determine the right or propriety to order the writ of mandamus to issue in this matter, we should not hesitate to hold that it should not have been granted by the Supreme Court at a Special Term. Though the writ is in form one of peremptory mandamus, yet it is by force of its terms and commands in effect an order which restrains the board of State officers engaged in the performance of or about to perform a duty imposed by the statute.”

The court based this declaration upon the provisions of section 605 of the Code of Civil Procedure; the opinion proceeds: “ However, because of the stipulation of the parties, which accompanies the record here, and because of the failure of the defendants to the proceeding to raise the objection, we have concluded to overlook the question of jurisdiction and to determine the questions at issue upon their merits.”

Tbe cases of The People ex rel. Derby v. Rice and The People ex rel. Daley v. Rice et al., were companion cases; they appear to have been argued in tbe Court of Appeals upon tbe same day, and to have been decided upon tbe same day; tbe orders appealed from were made at and by tbe same Special Term at tbe same time, and tbe stipulation referred to in tbe Derby case embraces also tbe Daley case as well as othei’s ; and like tbe Derby case no objections, were taken in tbe court below to tbe power of tbe court to grant tbe order in question ; both orders were affirmed by the Court of Appeals, the one in tbe Daley case having been modified as herein-before stated.

Unless the order is void upon its face for lack of jurisdiction on tbe part of tbe court which granted it, tbe party violating it is properly adjudged guilty of contempt. (The People ex rel. Davis v. Sturtevant, 9 N. Y. 263.)

“No matter bow erroneous the action of tbe court may have been in taking cognizance of tbe suit and awarding a mandatory process, unless there was an entire absence of judicial authority to act in tbe premises, it was tbe duty of tbe defendants to obey its commands, until they have been revoked by an order made in tbe action in which they bad been issued, either upon motion or appeal, or by some other method of direct review.” (People ex rel. Cauffman v. Van Buren, 136 N. Y. 252.)

Tbe order in this case having been affirmed by tbe Court of Appeals, I do not feel at liberty to say that it was a void order; I cannot assume that that court would affirm an order that is void upon its face, but, on tbe contrary, must bold that the fact that the highest court in tbe State has affirmed tbe order is decisive of that question, and that however irregular it may have been, or improperly, or without authority granted, yet that it was not void upon its face; and as we have seen, it not being void upon its face, tbe party who violates it is properly adjudged guilty of contempt.

It may also be added that upon this motion tbe question of the authority of tbe Special Term to grant the order is not raised by tbe defendants ; indeed, it seems to me that tbe stipulation entered into by them upon tbe appeal would bar them from raising that question in a proceeding of this character.

Upon tbe state of facts here recited, an ex parte application was. made to Mr. Justice Barnard for an order directing the defendants to show cause why they should not be punished for contempt; such application was denied, with leave, however, to renew the same before some other judge. In denying the application, the-learned justice, in the course of his opinion, made the following-statement :

It was made a question whether the county cleric must certify the return, and the Court of Appeals subsequently held that a board of supervisors was empowered with the right to certify the return by another person than the county clerk if he refused to sign the certificate. The appeal from Judge Edwards’ order had only this point in it. Before the decision by the Court of Appeals the supervisors had, by the order of this court, recounted the votes so as to elect Mr. Deane, and the vote so recounted was certified by a new county clerk, the old one having been removed by the Governor, and this amended return got to the proper officers before the decision by the Court of Appeals, so that when that decision came, the State Canvassers had, or ought to have had, this corrected return. If the board violated its duty and counted the uncorrected return, it was not a contempt of an order of any court. The order of the court simply provided a legal return of the canvass of the votes, and when it was filed the duty of the court was accomplished.”

The learned justice was in error in supposing that the only point in the appeal from Justice Edwards’ order was, whether the county clerk must certify the return. As we have seen in the extracts we have made from the decision of the Court of Ap>peals, that was only one of the questions, and while the “ Mylod ” return was held legal in that respect, it was held illegal on the other grounds. Again, with great respect, it seems to me that the learned justice erred in his statement that the order of the court simply provided a legal return of the canvass of the votes.” It provided more; it provided that the “ Mylod ” return should not be canvassed.

Application upon notice was subsequently made to Justice Edwards for an order to show cause; both sides were heard, and, without expressing any opinion of his own upon the merits, Justice Edwards announced that he would follow the decision of Justice Barnard and denied the application. The appeal here is from both orders.

Tlie objection is made that no appeal lies from the order of Justice Barnard. It seems to me to be of no consequence whether such order is appealable or not.

In that order permission was given to renew the motion, and, hence, the subsequent motion at the Special Term, over which Justice Edwards presided, was regular. It is, therefore, unnecessary to consider whether or not an appeal lies from the prior order made .at Chambers by Justice Barnard.

The learned counsel for the respondents also insists that the latter order of the Special Term, denying relator’s motion for an order to .show cause, is not appealable. That the order in question, being a mere denial of a motion for an order to show cause, did not affect a .substantial right. That the order asked for by relator, if granted, could only have operated as a short notice of motion, and the denial •of the motion in no way prejudiced his rights.

I am of opinion, however, that the order in question did prejudice the rights of the relator. It was an order made on a contested motion. The motion was made in pursuance of the provisions of ¡subdivision 1, section 2269, Civil Code. The relator, on making-proof by affidavit that defendants had disobeyed an order of the court, .served a notice for an order requiring the defendants to show cause why they should not be punished for contempt in pursuance of the provisions of section 2269 {supra). Defendants had notice of the motion, appeared and opposed the granting of it, and the motion was denied. If this order stands unreversed it prevents any further application or proceeding by the relator to punish defendants for the alleged contempt. It is, in effect, a final order. By the well-.settled rules and practice of this court such an order — no leave being given to move again on the same papers — prevents another motion of the same character. (Seaman v. McReynolds, 52 N. Y. .Super. Ct. 543; Klumpp v. Gardner, 44 Hun, 515; Higgs et al. v. Pursell et al., 74 N. Y. 370.)

It is urged by appellant that although this court should not con•clude to reverse the order in question, yet that on the same affidavits and papers on which that order was founded 'it could and should grant an original order, directing the defendants to show cause as -asked for by the relator. I think the position is not well taken. Assuming that a General Term could properly, on an original application, grant sncli an order, yet such General Term, in that view, possesses no more or other power than the Special Term to commit for contempt in such a case, and as relator elected, on notice, to make his application at the Special Term, no permission having been given to renew the motion, it would not be proper for this court on the same papers to grant the order asked for. As we have no other or greater power (if we have any) than the Special Term, we are governed by the well-established rule of practice that a motion which has been denied cannot be renewed on the same papers without leave. It follows that the order in question is practically a final order, and amounts to a denial of relator’s motion to commit defendants for the-alleged contempt. The order asked for was not a short notice of, or-a substitute for, a notice of motion. It was a preliminary order necessary to be granted, in pursuance of the provision of the Civil Code above referred to in the proceedings to punish defendants for the. alleged contempt. Hence, it is appealable. (The People v. Healy, 33 How. 172; Livingston v. Swift, 23 id. 1.)

If it stands unreversed it certainly ends any attempt of relator to proceed against defendants for their alleged disobedience of the-order of this court of December Y, 1891.

It is urged that the order appealed from was properly denied because of the delay in asking for it. It seems to me this position can be more properly considered on the final hearing of the case. But I am unable to understand how the delay in relator’s taking proceedings on account of the alleged disobedience of defendants of the order of this court should defeat the motion, unless it is shown that such delay injured the defendants or prevented them from interposing some answer to the motion that could have been asserted if the application had been sooner made. The authorities to which my attention has been called are not parallel. In Jourden v. Hawkins (17 Johns. 35) a motion was made for an attachment against the sheriff on account of acts of his deputy, after eighteen months5 delay. During the eighteen months the deputy and his sureties had become insolvent. Hence, it apjneared that the sheriff was injured by the delay in moving for the attachment. In the case of The King v. The Sheriff of Surry (9 East, 467) the facts were the same as in the case last cited. Rex v. Perring et al., late Sheriff (3 Bos. & Pull. 151), was also a similar case and decided on the authority of The King v. The Sheriff of Surry (supra). It is possible that on tbe return of tbe order to show cause respondents may sliow that they have been injured by the delay, but no such injury appears in the papers submitted to us.

I have not considered what effect, if any, under the peculiar circumstances of the case, the fact (if it is a fact) that no mandamus under the order of December J, 1891, was served, may have. That question was not discussed on the argument, and may be considered hereafter.

The case is a very embarrassing and delicate one, involving as it .does a proceeding against so considerable a portion of a. co-ordinate branch of the State government, and I would gladly have been ■relieved from its consideration, but being here, it must be treated in the same way as a proceeding against any other body of men, .and so treating it, I can, from the record before us and for the reasons herein stated, reach no other conclusion than that the defendants have disobeyed the order of this court and are in contempt.

I conclude, therefore, that the order of Justice Edwards should be reversed, with ten dollars costs and printing and other disbursements, and that the motion for an order to show cause should be granted.

Let an order be entered accordingly.

Putnam, J., concurred.

.Mayham, P. J.

(dissenting):

This is an appeal from two orders, one made expa/rte January 31, 1893, by Justice Barnard of the second judicial district, and one made on motion at Special Term, June 3,1893, in the third judicial •district, by Justice Edwards.

Various objections are raised by the respondents to the consideration of these appeals by this court, some of which, at least, are worthy of careful consideration. The first objection of this class is •that no appeal will lie from the order of Justice Barnard, made ex pa/rte on the 31st of January, 1893.

It seems quite clear upon authority that an ex pa/rte order cannot be appealed from as such. The only way in which such review can be had is by application to the Special Term, or the judge making the order, to vacate the same, which, if refused, the order denying .such motion is appealable. This was expressly held in a special proceeding m the case of Hoyt v. Mann (7 N. Y. St. Repr. 420), where the opinion was written by Daniels, J., and concurred in by Judges Van Brunt and Brady. To the same effect is Shell v. Erie Railway (51 Barb. 273), which was a special proceeding to remove the president of a railroad company, where it was held that the granting an order to show cause ex pa/rte, returnable at a future day, and granting a temporary injunction pending the motion, was not an appealable order, and until a hearing had been had on the return •of the original order, or a motion to vacate or modify the same had been made and decided, no appeal would lie.

Upon this subject the cases are numerous and uniform. (Savage v. Relyea, 3 How. 277; Lindsay v. Sherman, 5 id. 308; Bank of Genesee v. Spencer, 15 id. 14; Aldinger v. Pugh, 57 Hun, 181.)

Nor is appeal allowable under the provisions of section 1356. (In re Dunn, 14 N. Y. Supp. 14; In re Johnson, 27 Hun, 538 People ex rel. Schlehr v. Common Council of Buffalo, 30 id. 636.)

It would seem to follow, therefore, that the order made by Judge Barnard expeorte on the 31st of January, 1893, is not appealable, and this appeal, so far as it seeks to review that order, must be dismissed.

It is insisted by the learned counsel for the respondents that the •order made by Justice Edwards at Special Term is not appealable, as it was a denial of an order to show cause, and, therefore, did not affect a substantial right. The language of the order is as follows: It is ordered that the motion for an order requiring the defendants to show cause why they should not be punished for contempt of court be and the same is hereby denied.” Did such an order ■affect a substantial right so as to bring it within the provisions of ¡section 1356 of the Code of Civil Procedure ? That section is as follows: “■ An appeal may be taken to the General Term of the Supreme Court * * * from an order affecting a substantial right, made in a special proceeding, at a Special Term or a trial term of the same court, or in the Supreme Court at a term of a ■Circuit Court, or made by a judge of the same court, in a special qiroceeding instituted before him, pursuant to a special statutory provision, or instituted before another judge and transferred to or ■continued before him.”

It can hardly be maintained that the desired order to show cause affected a substantial right. The refusal left the relator still at liberty to move for the same 'relief in an ordinary motion on eight days’ notice.

No substantial right was affected by the refusal of the court or judge to grant an order to show cause. The order if granted could, only operate as a short notice of motion, and its refusal in no way-impaired or prejudiced the rights of the relator, and for that reason the order of the Special Term was not appealable under the provisions of the section of the Code above quoted. Rule 37 of the-Supreme Court provides that all motions shall be brought on, on notice of eight days, unless a shorter term shall be prescribed. This, is but an amplification of the provisions of section 780 of the Code of Civil Procedure. In Gross v. Clark (1 N. Y. Civ. Proc. Rep. 25) Daniels, J., in discussing the nature and effect of such an order, uses this language: It was simply a substitute for the ordinary notice of motion and it was within the usual power exercised by tliecourt or a judge thereof to make it.” Nor do we think the order-in this matter one made by a judge “ in a special proceeding instituted, before him pursucmt to d special statutory provision.,” as provided in the latter part of section 135G of the Code of Civil Procedure,. and made appealable under that section. It is not the decision of a single judge sitting at Special Term in a matter affecting a sul>stcmtial right which can be reviewed on appeal (Matter of Brady, 69 N. Y. 215-220); but, as we have seen, this order, being only a notice of motion in effect and in no -way involving the merits of the-controversy, or affecting a substantial right, does not, therefore,, come within the rule laid down in the authorities referred to by the-learned counsel for the relator. The question of the right of a citizen to invoke the aid of the court to compel the performance by a public officer of a public duty is not involved in these applications for an order to show cause, or in the refusal to grant the order asked for on such application.

We are, therefore, clearly of the opinion that the granting or refusal of the order was discretionary, and as it did not affect a substantial right is not appealable.

It is not impossible that a case might arise where haste was-important, and the granting or refusing an order to show cause, as a. short notice of motion, for reasons given in the moving papers, might affect a substantial right; but no such reason is given in the papers on this motion, and it is quite apparent from the relator’s delay in moving that no such reason exists.

This is not, therefore, such a case. As the granting or refusing of this order was, as we have seen, in the discretion of the judge or court, this court on appeal will not interfere with the exercise of such discretion unless there has been a clear abuse of the exercise of such discretion. (Morrison v. Agate, 20 Hun, 24, 25; Bryon v. Durrie, 6 Abb. N. C. 140.) Certainly, if what has been shown in regard to the nature of the order denying the relator’s application is correct, no abuse of the exercise of the discretion of the judge at Chambers or Special Term has been shown.

The application for these orders was made to, and refused by, the same judges whose orders the relator insists were disobeyed. It is fair to presume that they knew better than this court can the nature of the orders made by themselves, and whether they had been contumaciously violated, and acting upon that knowledge they decline for that or other reasons to grant these orders.

It is also urged with a great deal of force that the relator has delayed for more than a year in making this motion, and has by laches waived any alleged violation of the orders which might have occurred. It has frequently been held that laches in moving to punish an alleged contempt is good ground for denying the motion. No sufficient reason is given for this delay. The authorities seem to be uniform in this country and England that an attachment for contempt should be moved for, by the party claiming to be aggrieved, in a reasonable time. (Rapalje on Contempts, § 92; Mongin v. Cheney, 1 Hill [So. Car.], 145.) In King v. Surry (7 Term, 452) it was held that a delay of ten months barred an attachment. (Rex v. Perring, 3 Bos. & Pull. 151.) In Jourden v. Hawkins (17 Johns. 35) eighteen months’ delay was held fatal. On these grounds alone the orders asked for might have been properly denied. If the views expressed herein are correct, it is probably unnecessary to go farther, as they would result in the affirmance of the orders ■ and dismissal of the appeals.

Again, as the order made by the Special Term sought to restrain a board of State officers from performing an act about to be performed in the discharge of a .duty imposed by statute, that court had no jurisdiction to grant such an order, as the same could only be granted at a General Term. (Code Civ. Proc. § 605; People ex rel. Derby v. Rice et al., 129 N. Y. 461.)

The order being’ void the Special Term could not punish its violation as a contempt, even if it has been disobeyed.

But it is urged by the learned counsel for the relator that, if neither of these orders are appealable, it is the duty of this court, if satisfied that an offense was committed, to grant the motion, and that with that view they have inserted in the notice of appeal an application to this court for such air order; and in support of this suggestion we are referred to sections 2269 and 2271 of the Code of Civil Procedure as authority upon this point. Section 2269 reads as follows: “ The court, or judge authorized to punish for the offense, may, in its or his discretion, where the case is one of those specified in either of the last two sections, and in every other case must, upon being satisfied by affidavit of the commission of the offense, either

“ 1st. Make an order requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offense; or,
“ 2nd. Issue a warrant of attachment directed to the sheriff of a particular county, or generally to the sheriff of any county where the accused may be found, commanding him to arrest the accused and bring him before the court or judge, either forthwith, or at a time and place therein specified, to answer for the alleged offense.”

Section 2271, also referred to by the relator as conferring this original authority upon this court, reads as follows:

“Where the order to show cause or the warrant is returnable before the court, it may be made or issued as prescribed in the last section but one, by any judge authorized to grant an order without notice in an action pending in the court * * at which a contested motion may be heard.”

These sections do not confer any original jurisdiction on the General Term of this court to perform the duty either of a Special-Term or single judge, and in the absence, of express statutory authority it may well be doubted whether it has any original jurisdiction of matters of contempt, except, perhaps, the inherent power of punishing for contempts of its own orders.

Nor do we think either that sections 8 or 14 of the Code of Civil Procedure, to which we are referred by the relator’s counsel, confer any such original jurisdiction on this court, even if the facts authorized or justified any such belief that the acts of the defendants were contempts of the orders of a Special Term.

.But the question having been raised, it may not be improper to inquire what order, if any, of the Supremo Court has been violated by the defendants.

The first order set out in the record was made on the 1th day of December, 1891, at a Special Term held at Albany by Mr. Justice Edwards, directed that a writ of peremptory mandamus issue out of, and under the seal of, the court commanding the State Board of Canvassers to issue a certificate of election to the office of Senator in the fifteenth senatorial district of this State, disregarding the so-called return of the board of county canvassers of the county of Dutchess, which is signed by John Mylod as secretary of said board pro tern., and is not signed by the county clerk of Dutchess county, or certified under the seal of said county clerk. On the making of this order, a stipulation was entered into by the parties interested, signed by their respective attorneys, staying all proceedings by the State Board of Canvassers, these defendants, until the decision of the Court of Appeals upon the above order, and providing for an appeal to that court, the principal question being as to the authority of the returns made to such defendants, signed by John Mylod as secretary pro ton. as aforesaid.

The case shows that the appeal from said order was affirmed pro forma by the General Term, and heard and decided in the Court of Appeals on the 29th of December, 1891. On that day the Court of Appeals handed down the following decision :

“ It is ordered and adjudged that the order of the Special Term herein dated December 1, 1891, and the order of the General Term affirming the same, and the same writ itself, be modified by striking out the provisions requiring a return to be certified by and to come from the county clerk of Dutchess county and issued under his seal, and the said order so appealed from as so modified be affirmed, without costs.”

The case does not show that auy remittitur was ever filed making the decision of the Court of Appeals the judgment of the Supreme Court, although the affidavits of one of the relator’s attorneys shows that a remittitur was prepared differing somewhat from the decision, and handed to one of the counsel, who had up to that time acted with the party opposing the validity of the Mylod returns. It is insisted by the learned counsel for the defendants that, as the case ha,s never been remitted to this court by the filing of a remittitur, that the matter is not properly here for consideration, and upon that point we are referred to the case of The People ex rel. Smith v. Village of Nelliston (79 N. Y. 638) and, also, Bliss v. Hoggson (84 id. 667). But we do not deem it necessary to pass upon that question in this case. I am inclined to the opinion that, within the express decision of the Court of Appeals, so far as to the defendants as State Canvassers, the Mylod returns were the valid returns, and the only ones which they were authorized to canvass, after the decision of the Court of Appeals modifying that of the Special Term. The Court of Appeals, in passing upon the sufficiency of that return in this case, reported under the name of People ex rel. Daley v. Frank Rice (129 N. Y. 449), by Peckham, J., says: “We think that under all the facts the steps taken to certify and authenticate the statements were valid, and the proceedings by which they were sent to, and received by, the Secretary of State and other State officers were sufficient to entitle them to be filed and considered by the Board of State Canvassers as the properly certified result of the canvass of the board of county canvassers.”

With this positive declaration by the Court of Appeals squarely overruling the decision of the Special Term, the order of which is made the basis of these proceedings for contempt, we see no escape from the conclusion that the defendants violated no order of any court. And this conclusion is emphasized- by the decision of the Court of Apipeals in Hasbrouck v. Supervisors (135 N. Y. 522), where it was expressly held that the returns sought by the relator to be substituted for the Mylod returns were invalid. We, therefore, fully concur with Justices .Barnard and Edwards, whose opinions we append and indorse, that the Board of State Canvassers did no act which was a contempt of any order of this court.

The orders appealed from must be affirmed, with costs and printing disbursements.

Order of Justice Edwards reversed, witli printing and other disbursements, motion for order to show cause granted.

People ex rel. Platt and Another v. Rice et al.

Barnard, J.:

Ho presumptive case is made out of contempt against the defendants for any violation of an order of the Supreme Court. The "board of supervisors of Dutchess county canvassed the votes as to State Senator by throwing out certain so-called marked ballots. The election law was imperative that such votes should be counted in the first instance. The clerk refused to sign the return and the board made Mr. Mylod, its clerk, to certify its count. These returns, so certified, were forwarded to Albany. It was made a question whether the county clerk must certify the return, and the Court of Appeals subsequently held that a board of supervisors was empowered with the right to certify the return by another person than the county clerk if he refused to sign the certificate. The appeal from Judge Edwards’ order had only this point in it. Before the decision by the Court of Appeals the supervisors had by order of this court recounted the vote so as to elect Mr. Deane, and the vote so recounted was certified by a new county clerk, the old one having been removed by the Governor, and this amended return got to the proper officers before the decision of the Court of Appeals, so that when that decision came the State Canvassers had or ought to have had this corrected return. If the board violated its duty and counted the uncorrected return it was not a contempt of an order of any court. The order of the court simply provided a legal return of the canvass of the votes, and when it was filed the duty of the court was accomplished.

Motion for order to show cause denied.

The People ex rel. Platt and Another v. Rice et al.

Edwards, J.:

This is an application to a Special Term of this court under section 2269 of the Code of Civil Procedure for an order requiring the Board of State Canvassers to show canse why they should not be punished for an alleged violation of an order of this court. The same application upon the same affidavits was heretofore made to Justice Barnard at Chambers, who, under that section of the Code, had the same jurisdiction to issue an order to show cause that the court has at Special Term. The learned justice who heard the application considered it deliberately and came to the conclusion that the order ought not to he granted. In his written opinion he says that no presumptive case is made out for a contempt against the defendants for any violation of an order of the Supreme Court. He further says that if the hoard violated its duty and counted the uncorrected return it was not a contempt of any order of any court. This court is now asked upon this application upon the same motion papers that were before Justice Barnard, substantially to review the decision of the learned justice, and to reach a different conclusion. It is maintained by the learned counsel for the relators that tlie justice to whom the prior application was made erred in his decision. I think if this were so the better practice would have been to have made this application at a Special Term hold by the same justice, and if satisfied of any error of judgment no one would have been more prompt to correct it.

The duty of the court upon this application is very clear. I shall follow the decision of Mr. Justice Barnard, and' if such decision be error the relators have a perfect remedy.

The apjilication is denied.


source: Caselaw Access Project

author: Putnam, J. :

license: Public Domain

text:
    Kate A. Scaggs, Administratrix, etc., of Eleanor Downing, Deceased, Appellant, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Respondent.

      Raising the gates at a, railroad crossing is an assurance of safety — neglige nee in allowing an engine to stand on a crossing.

    In an action brought to recover damages for injuries sustained by tlie plaintiff’s intestate, resulting- in her death, by reason of the defendant’s alleged negligence, it was shown that at a point whore tlie defendant’s railroad tracks crossed a street in a village, the plaintiff’s intestate waited for about twenty minutes, at the end of which time the defendant’s servant raised the gates high enough for her to pass through and looked at her. She started to cross the tracks, whereupon the gates were opened wide ky the defendant’s agent, and a man driving a horse and wagon started to cross the tracks. An engine of the defendant, projecting fifteen feet into the street, automatically blew off steam, making- a noise that frightened the horse, which became unmanageable and ran against the plaintiff’s intestate, causing injuries resulting- in her death.

      Held, that the raising of the gates by tlie defendant’s servant was an assurance of safety to the plaintiff’s intestate,, which she was entitled to rely upon.
    That the evidence was sufficient to justify the submission to the jury of tlie question as to the negligence of the defendant.
    Appeal by the plaintiff, Kate A. Scaggs, as administratrix, etc., of Eleanor Downing, deceased, from a judgment of the Supreme Court in favor of tlie defendant, entered in tlie office of tlie clerk of tlie county of Saratoga on the 31st day of December, 1890, upon a dismissal of tlie plaintiffs complaint at the Saratoga Circuit, and also from the order and decision of tlie court directing a nonsuit.

      Jesse Stiles and J. W. Verbeck, for the appellant.

      Lewis E. Carr, for tlie respondent.
   Putnam, J. :

This action was brought to recover damages for the death of plaintiff’s intestate on August 6,1887, which, it is alleged, was caused by defendant’s negligence.

The accident occurred at the place where Division street in the village of Saratoga Springs, running easterly and westerly; crosses defendant’s railroad track, running north and south. Deceased approached the track on the north side of Division street from the east. A train was standing on the easterly track, its engine projecting into the street about fifteen feet. The gates were down, and the gateman stood on the north side of Division street, and on the east side of the track. One Priester, with a horse and wagon, came up to the crossing also from the east. Ilis horse was uneasy and restive. Deceased and Priester remained about twenty minutes at the crossing, she standing quite near the gateman. The latter opened the gate high enough for deceased to pass and looked at her. She then started to cross diagonally. "When in front of the engine the gate tender raised the gate higher, so that Priester could pass, and he started, deceased at the time being in front of the engine. As Priester’s horse started over the crossing the engine began blowing off steam, or “ popping off,” and frightened the horse, so that it ran against deceased, producing injuries that caused her death.

The defendant’s motion for a nonsuit was granted and judgment entered dismissing the plaintiff’s complaint.

The usual questions in this class of cases as to defendant’s negligence, and the freedom of plaintiff’s intestate from contributory negligence, are presented for consideration.

The question as to the contributory negligence of deceased requires no discussion or .citation of authorities. The deceased, after waiting for twenty minutes at the crossing, on the'gates being raised by the defendant’s servant, attempted to go over the track. The raising of the gates was an assurance to her of safety as significant as if the gateman had beckoned to her or invited her to cross. (Callaghan v. D., L. & W. R. R. Co., 52 Hun, 276-278.)

The facts were all before the trial court. There was nothing appearing to indicate negligence on the part of deceased. In crossing she was compelled to pass in front of the -engine and into the traveled part of the street. Being there she could as well turn to the southerly as to tlie northerly side of the highway. Under the circumstances it cannot be held, as matter of law,. that deceased was guilty of contributory negligence. As has been often held, the cases are rather exceptional where the question of contributory negligence can be taken from the jury, and this is clearly not one of those unusual cases.

The real question for consideration is whether the plaintiff succeeded in showing a negligent and wrongful act on the part of the defendant which caused the death of plaintiff’s intestate.

It is held in Borst v. The Lake Shore & Michigan Southern R. R. Co. (4 Hun, 346; 66 N. Y. 639), a case in some regards similar to this, that the very position of this engine in the public highway, and the occupation and blocking up of said highway by it, was of itself an act of negligence.” In the case under consideration the engine remained in the highway twenty minutes before the gates were raised. And when the gates were so raised plaintiff, having to cross the tracks, necessarily was compelled to go close to the engine. Under' the authority 'above cited the fact of defendant’s occupying the highway with its engine would seem evidence of negligence on the part of defendant sufficient to carry the case to the jury.

It is suggested by the learned counsel for defendant that there was no evidence that the standing of the engine in the street caused the accident. That it was the escaping of steam, the popping off of the engine, that frightened the horse. That this popping off was purely the result of a mechanical operation. That it was shown that when an engine stands a little while steam accumulates, and when it reaches a "certain point the automatic safety valve “pops,’’ and that is what caused the sound. In other words, an engine standing is liable from time to time to have this escape of steam, and make the same kind of noise that frightened Priester’s horse.

We think the facts shown in this case- — the raising of the gate by defendant’s servant, which, as we have seen, was an assurance of safety to Priester and deceased, the engine at the time projecting fifteen feet into the highway, so that a person in crossing must pass close to it, and the liability of the engine at any time to suddenly blow off steam, and make a noise calculated to frighten a horse, constituted evidence of negligence that should have been submitted to the jury. The negligence was not in leaving a silent engine in the highway, but an engine that would puff, blow off steam and “ pop.” The negligence was in leaving an engine as it was in the place where this one was left. If the engine had been out of the highway so that Priester’s horse had not been compelled to pass close to it, and steam ivas blown off, the jury could have found from the evidence that the horse would not have become unmanageable. Priester had been able to manage it for twenty minutes thirty or forty feet from the gates.

It is urged by counsel for defendant that there was no evidence to show that defendant’s train, to which the engine in question was attached, was not so long as to make the projection of the engine into the street necessary. If the engine was necessarily in the highway it was for the jury to say whether it was not negligence on the part of the defendant to raise its gates, and thus invite travelers to pass over the track, knowing, as its servants did, of the liability of the engine to suddenly emit steam. (See Keech v. R., W. & O. R. R. Co., 35 N. Y. St. Repr. 902.)

Again, whether it was necessary for the engine to remain in the highway was a question of fact under the circumstances of the case. The defendant could have detached its engine and taken it across the street. Can it be deemed necessary to block up a traveled street in a large village for twenty minutes when in a moment the engine could have been detached and moved ?

On the whole, wTe think that the fact that defendant left standing on the track in a traveled highway a dangerous machine liable at any moment to “ pop off,” and thus frighten horses, and while the engine was so standing raised its gates, was evidence of negligence which should have been submitted to the jury.

If a negligent act of defendant caused Priester’s horse to become frightened and run away and * cause the death of plaintiff’s intestate this action can be maintained. (Lowery v. Manhattan Ry. Co., 99 N. Y. 158.)

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

Herrick, J., concurred upon 4 Hun, 346; Mayham, P. J., dissented.

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


author: Mayham, P. J.:

text:
    Augustus Regner, an Infant, by William Regner, his Guardian ad litem, Respondent, v. The Glens Falls, Sandy Hill and Fort Edward Street Railroad Company, Appellant.

      Street raib'oad — ejectment from a ear• — rule against carrying intoxicated persons — disease resembling intoxication — amount of damages — evidence•.

    A rule of a street railroad company, requiring conductors not to allow, intoxicated persons to ride on the cars, affords no protection to the company for the forcible ejectment from its car of a person not disorderly or intoxicated hut afflicted with a disease (St. Yitus’ dance) which produces involuntary motions resembling the movements of an intoxicated person.
    A railroad company applies such a rule at its peril. It is within the power of the conductor to ascertain the real cause of the passenger’s appearance, and if he errs the company is answerable for his mistake.
    When, on the trial of an action brought to recover damages from a railroad oom- ' pany- for the alleged wrongful removal of the plaintiff from a car, one of the questions for the jury is as to the degree of force used by the defendant's conductor, testimony by the conductor as a witness for the defendant, as to whether or not lie used more force than was necessary, is pvopeily excluded.
    Nor is it error in such a case to exclude proof of a rule requiring conductors to remove intoxicated persons from the company’s cars, where there is no proof that the plaintiff was intoxicated.
    A verdict of $400 damages for the unlawful forcible removal of a passenger from a street car, held, not to be so large as to evince prejudice, passion or corruption on the part of the jury, and, therefore, not to call for a reversal of the judgment entered (hereon on the ground of excessive damages.
    Appeal by tlie defendant, The Glens Falls, Sandy Ilill and Fort Edward Street Railroad Company, from a judgment of the County Court of Washington county in favor of the plaintiff, entered in the office of the cleric of Washington county on the 28th day of October, 1S92, upon the verdict of a jury, and also from an order denying the defendant’s motion for a new trial.
    The plaintiff, who was removed from one of the defendant’s ears, was between twenty and twenty-one years of age at the time of the occurrence in suit and of the commencement of the action.

      G. M. Ingalsbe and A. D. Wait, for the appellant.

      A. V. Pratt and J. M. Whitman, for the respondent.
   Mayham, P. J.:

This is an appeal from an order denying a motion for a new trial on the minutes, and from a judgment rendered on the'verdict of a,

The action was brought to recover damages for an alleged wrongful removal of the plaintiff from one of defendant’s horse railroad street cars by the conductor.

The plaintiff recovered a verdict for $400, and the defendant seeks-to reverse the judgment on the ground that the damages are excessive, and for alleged errors of the judge on the trial. The evidence discloses the fact that while one of defendant’s cars was on its way from Glens Falls to Fort Edward, the plaintiff boarded the car against the objection of the conductor, and was forcibly removed and ejected therefrom by the conductor.

There is a conflict in the evidence as to the manner in which the-force was applied and the amount of force used, the plaintiff testifying that the conductor seized him by the throat and injured him. so that his. throat was made sore. The evidence of the manner in which the conductor took hold of plaintiff was in part corroborated by the plaintiff’s witnesses. The conductor denies that he seized the plaintiff by the throat, but all the evidence concurs in establishing the forcible ejectment from the car. The evidence tends to-prove that the conductor stated that he ejected plaintiff from the car because from his appearance he believed him to be intoxicated-The proof, however, shows that the plaintiff was not intoxicated, but was afflicted with St. Yitus’ dance, which produced involuntary motions in the plaintiff somewhat resembling the movements of an intoxicated person.

The plaintiff made no disturbance and said nothing while on the car. The defendant offered in evidence a'rule of the defendant-requiring conductors not to allow intoxicated or filthy persons to ride on their cars.

This rule was objected to by the plaintiff and excluded by the court under the defendant’s exceptions. It is urged by the appellant that the exclusion of this rule was error; It is true that the law authorizes railroad companies to make and promulgate reasonable rules for the government of the conduct of their employees, but it ig difficult to see how the introduction of this rule could aid tlie defendants, as tlie proof does not bring tlie defendant within tlie operation of such rule, as tliere is no pretense that the plaintiff was intoxicated, and the rule would afford no protection to the defendant for excluding from its car an unfortunate person suffering from a disease not embraced within the letter or spirit of the rule.

The defendant judged at its peril as to the application of such a rule in a given case, and if it erred it would be answerable for its mistakes or that of its servants acting under its authority. It was within the power of the conductor to have ascertained the real cause of the plaintiff’s appearance and thus to have avoided the mistake, if mistake it was. One of the questions for the jury to determine was as to the degree of force used by the conductor in ejecting the plaintiff from the car, and while it was competent to prove what was in fact done, it was not error to exclude the evidence offered by the defendant, of the conductor, as to whether or not he used more force than was necessary. That was for the jury to determine from the facts proved. ¥e see no errors in the rulings of the judge in admitting or rejecting evidence, or in his charge.

Nor can we say that the verdict in this case is so large as to evince prejudice, passion or corruption on the part of the jury. They heard the conflict in the testimony as to the manner in which the plaintiff was removed from the car, the language used by the conductor, and the alleged injury suffered by tlie plaintiff, and they were the proper judges of the truth of the respective stories, and had a right to believe the plaintiff’s version if it commended itself to their judgment as true.

The judgment and order should be affirmed, with sosts.

Putnam and Herrick, JJ., conctirred.

Judgment and order affirmed,-with costs.


text:
    In the Matter of the Judicial Settlement of the Accounts of Sarah M. Ryalls, Administratrix, etc., of William H. Ryalls, Deceased, of the Proceedings of the Said William H. Ryalls, as Executor, etc., of Elizabeth Haney, Deceased.

      Deceased executor — proof requisite to charge Ms estate — property of the testator not shoion to hate reached the executor — evidence.

    The burden of proof in establishing liability is upon the contestants seeking to sureliai'ge the accounts of an administrator of a deceased executor.
    When a will placed the residuum of the testator’s estate so completely at the disposal of his executor as devisee and legatee for life that so much of the estate as may have been under the terms of the will consumed by the executor in his lifetime would not he properly chargeable against his administrator as the personal representative of his estate, it is incumbent on contestants, before they can surcharge the accounts of such administrator, to show the amount of the estate of the testator which came to the hands of the deceased executor, and also the amount remaining in the executor’s hands undisposed of at his death.
    Evidence that a testator, one year before his death, received certain money, is not sufficient, without proof connecting the deceased executor with the money, to create a liability against the estate of such executor, although Such evidence might he sufficient on a proper application to compel a search for the money and its being inventoried if found.
    Nor are the mere statements of the deceased executor, that his testatrix’s estate ■would amount to a certain sum, sufficient to compel his administrator to account for such sum.
    Proof by contestants, seeking to surcharge the account of the administrator of a deceased executor, of the amount of property received by and known to be in the possession of the testatrix of the deceased executor during the four or five yearsiimmediately before her death, without any direct proof that such property ever passed into the hands of the executor, is insufficient to charge the executor’s estate.
    On the accounting of the administrator of a deceased executor, the surrogate admitted in evidence, on behalf of the contestants, a memorandum or statement ■made by the testatrix of the deceased executor some three years before her death, of claims due her and choses in action belonging- to her delivered by her to a third person, by whom money was thereafter from time to time paid to her.

      Held, that as the deceased executor was not a party to this memorandum, nor, so far as appeared, cognizant of its existence, it was in no way binding upon him or his estate;
    That the admission of this memorandum in evidence was error calling for a, reversal of the surrogate’s decree, since it could not he seen that it did not harm the appellant.

      Appeal by Sarah M. Ryalls, as administratrix of William 11. Ryalls, deceased, who was the executor of Elizabeth Haney, deceased, from the decree of the Surrogate’s Court of Saratoga county, made .and entered in the surrogate’s office of that county on the 19th day of January, 1893, on the judicial settlement of the appellant’s accounts of the proceedings of said William H. Ryalls, as executor.

      Grenville M. Ingalsbe and L. H. Northup, for the appellant.

      C. H. Sturges, for the respondent Elizabeth R. Cowan.

      J. W. Houghton, for the respondent Charlotte A. Patterson.

      Henning & McCall, for the respondent Harlan P. Ryalls.
   Mayham, P. J.:

Sarah M. Ryalls having been cited before the surrogate to show ■cause why she, as administratrix of the estate of William TI. Ryalls, deceased, did not settle his accounts as executor of the will of Elizabeth Haney, deceased, appeared before the surrogate and filed her petition for such accounting. Whereupon the surrogate issued citations to the persons entitled to notice, and on the return of such citations she filed her account duly verified, in and by which she charges herself as such administratrix with the sum of $935.58, and alleges want of knowledge of any other liability or of the amount that the estate of William TI. Ryalls should be credited on account of disbursements made by him in his lifetime.

Each of the children of William II. Ryalls, who are the residuary legatees in the will of Elizabeth Haney, filed objections to such account, in and by which they attempted to surcharge the same, alleging in substance that the said William H. Ryalls held about $10,000 of the property of the said Elizabeth Haney, in which he had a life interest only by her will, and that the remainder was bequeathed to his children after his death, in equal proportions.

In support of this contention the contestants proved, by evidence quite satisfactory, the existence of a mortgage of $2,000 given to Mrs. Haney on which there appeared to be due at the time of the death of William II. Ryalls the sum of $500, on which sum the interest was paid to the petitioner for three years.

There is also some evidence of the confessions or statements of William II. Ryalls, made at about the time of marshalling the assets of his testatrix, Elizabeth Ilaney, that her estate would amount to about $20,000. It does not appear that this statement was an assertion of a fact, but rather a loose estimate or opinion of the probable amount, and standing alone it does not seem to me, under the circumstances in which it was made, to be Such an admission of a fact as 'would bind him to account for that amount.

But the contestants seek to charge the estate of the deceased executor by proving the amount of property and money received by and known to be in the possession of his testatrix during the four or five years in which she lived with him immediately before her death. And upon this proof the surrogate seems mainly to have relied in making his decree, without any direct proof that this property ever passed into the hands of liei; executor.

Was this proof alone sufficient to charge his estate with the amount of the testatrix’s property in the hands of his administratrix ?

The rule is well settled that the burden of proof in establishing liability is upon the contestants seeking to surcharge the accounts of the administrator. (Forbes v. Halsey, 26 N. Y. 60, 61; Marre v. Genochio, 2 Bradf. 165; Bainbridge v. McCullough, 1 Hun, 488.) The will of Elizabeth Haney by its terms placed the residuum of her estate so completely at the disposal of her executor as devisee and legatee for life that so much of the estate as may have been under the terms of the will consumed by him in his lifetime would not be properly chargeable against his administratrix as the personal representative of his estate.

It was, therefore, incumbent on the contestants, before they can surcharge the accounts of the administratrix, to show the amount of the estate of Elizabeth Haney which came to the hands of the executor of her will, and also the amount remaining in his hands undisposed of at the time of his death. While the testimony of Lighthall as to the payment made to the testatrix of money during the time she resided with William H. Ryalls was competent as a circumstance tending to prove the amount of the estate of testatrix, it does not seem sufficient, standing alone, to charge the estate of her executor with a liability for that amount.

Assuming that the statement of Mrs. Haney, dated October 6, 1875, that she at that time left with Liglitliall $7,971.85, was competent evidence, and was at the time true, and that $7,515.82 of that amount was from time to time from that date to August, 1878, forwarded by him to her, does it raise such a legal presumption that she had it at the time of her death, March, 1879, as to create a valid charge against the estate of her executor ?

For answer to that question we are referred by the learned counsel for one of the contestants to Matter of Clark (119 N. Y. 427-433).

In that case the court held that, under section 2(506 of the Code of Civil Procedure, which authorized a surrogate upon the death of an executor to require his' executor or administrator to account for and deliver over the trust estate, such representative stands in the place of the decedent for the purpose of the accounting, and the surrogate’s power is precisely the same as if the letters of the deceased executor had been revoked in his lifetime, and he had been called upon to deliver up the assets.

In that case his mouth would be closed as to any evidence of personal transactions between him and the testatrix, and the case would stand upon the memorandum of the testatrix and thesevidence of Lighthall alone.

Such evidence, in our judgment, would not be sufficient'to charge the deceased executor with the payment of this $7,545.82, forwarded by Lighthall to the testatrix.

There is to my mind a marked difference between the facts of this case and those of Matter of Clark (supra).

In that case the referee found, upon direct proof, that the executor, within three months after the death of the testator, received $15,000 of money belonging to the estate and deposited the same in the bank to his own credit. That case is not an authority for holding that money in the possession of the testator some time before his death is evidence upon which to charge the estate of his deceased executor with the amount of the same, and we do not think that evidence that a testator, one year before his death, received money is sufficient, without any evidence connecting his executor with it, to charge such executor on his final accounting with such money.

Such evidence might be sufficient, on a proper application to compel him to marshal the assets, to require him to search for such money and, if found, to place it upon the inventory, but is not sufficient evidence to create a liability against the estate of the deceased executor.

If we are right in this conclusion then there is no evidence upon which a finding that the executor or his estate can he charged with $8,685.51, as found in the first conclusion of law of the learned surrogate, or that that sum came into the hands of this administratrix belonging to the estate of Elizabeth Haney, deceased, can he based. It is well settled that a finding of fact without evidence is error of law. (Code Civ. Proc. § 993; Van, Bokkelen v. Berdell, 130 N. Y. 141; Furner v. Seabury, 135 id. 50, 51.)

Several questions are raised by the appellant as to alleged errors of the surrogate in the receipt of evidence offered hy the contestants. We think the learned surrogate erred in receiving the memorandum made by Mrs. Haney of claims due her and choses in. action belonging to her delivered to Lighthall.

That was not a statement made or presented to William H. Ryalls, or in any way binding upon him or his estate.

It must have been received as evidence of the amount of property owned hy his testatrix. But as he was not a party to it, nor, so1 far as appears, cognizant of its existence, it is difficult to see how it. could bind him or his estate.

It was not competent even in corroboration of the testimony of Lighthall as' to the amount of money forwarded hy him to the testator, and yet this court cannot see that it did not harm the appellant.

When improper evidence is received and the court cannot see that it will in no way harm the appellant it is the duty of the appellate court for that reason to reverse.

Eor the reasons above'stated we think the surrogate’s decree erroneous, and as the facts are not sufficiently before this court to enable1 it to modify the decree, there should be a new trial or hearing before the surrogate under section 2587 of the Code of Civil Procedure, with costs of this appeal to be charged upon the contestants and paid out of their shares of the estate of Elizabeth Haney,, deceased, bequeathed to them in her will.

Let an order he entered in accordance with this opinion.

Herrick, J., concurred; Putnam, J., concurred in the result.

Judgment and decree reversed, new trial granted before the surrogate, costs of appeal to be charged to the contestants and paid out of their share of the estate.


text:
    The People of the State of New York ex rel. The Dunkirk, Allegheny Valley and Pittsburgh Railroad Company v. Frank Campbell, Comptroller of the State of New York.

      State railroad framehise tax —section 6 of chapter 542 of Laws e/1880, as amended — domestic corporation — tax upon the gross ea/rnings, within the State, on inter-State business — constitutionality of the tax — the “inter-State commerce” clause of the Federal Constitution.

    The tax imposed by section 6 of chapter 542 of the Laws of 1880, as amended by chapter 361 of the Laws of 1881, which prescribes that “ every corporation formed for * * * transportation purposes * * * and doing business in this State * * * shall pay to the State Treasurer for the use of the State, as a tax upon its corporate franchise or business in this State, a tax at the rate of five-tenths of one per centum upon the gross earnings in this State of said corporation * * * for * * * business transacted in this State,” is legally applicable to the gross earnings, arising from the carriage of goods or passengers within the State of New York, of a consolidated railroad corporation created under the Laws of New York and of an adjoining State, whose line is from a point in the State of New York to a point in such adjoining State, and which at each terminus connects with roads running to other States, .although such carriage within the State of New York is a part of “inter-State '.business,” that is, of business which originated in this State and terminated in •another State, or originated in another State and terminated in this State, or both originated and terminated in another State.
    In such a case the tax is not a tax imposed by the State on inter-State commerce, but is simply a tax on a domestic corporation, created by the State, for the privileges and franchise granted to it by the power which created it; and such a tax may be legally and constitutionally imposed by the State.
    The imposition of such a tax upon the gross earnings of a domestic corporation for the carriage of goods or passengers within the State of New York, where the beginning or termination of such business is in another State or country, is not within the prohibition ujion State legislation arising from the “inter-State commerce ” clause of the Federal Constitution.
    The power conferred by the Federal Constitution upon Congress to regulate commerce with foreign nations and among the States, does not reach so far as to prohibit a State from imposing a franchise tax .upon a corporation created by and doing business in such State, as to all business done by it in the State in the transportation of property or persons coming from or going to any other State or country.
    Certiorari to review tlie action of the Comptroller of the State, in imposing a tax upon the gross earnings of the relator arising from its inter-State business in addition to the tax imposed upon the relator’s franchise and business in the State of New York for the year ending June 30, 1892.

      Brown & Wells, for the relator.

      Simon W. Rosendale, Attorney-General, for the respondent.
   Mayham, P. J.:

The relator is a corporation organized and incorporated under the laws of New York, and operating a railroad for the transportation of passengers and freight between Dunkirk in the State of New York and Titusville in the State of Pennsylvania.

In August, 1892, the relator made a report to the Comptroller of the State of New York for the purpose of taxation, under chapter 542 of the Laws of 1880, and the acts amendatory thereof, and in such report embraced a statement of the gross earnings of the relator in its business between points wholly in the State of New York, amounting to the sum of $53,158.69, upon which sum it shortly thereafter paid into the State treasury a tax of five-tenths of one per cent imposed thereon, being the sum of $265.Y9.

This statement or report of the relator was deemed incomplete by the Comptroller, and he thereupon required the relator to make a more full and complete report. In obedience to that request, the relator, under protest, filed a supplemental report for the samé year, in which, among other things, it alleges that the company is a consolidated railroad corporation created by the laws of the States of New York and Pennsylvania, and during said year owned and operated a system of railways in both States, ancf was connected with other lines of railway running in other States and the Dominion of Canada, so as to form continuous lines for transportation to points outside of the State of New York.

That the relator divided its business into two classes, one of which it denominated local business,” which originated and terminated within the State. The other class of business, which it denominated iC inter-State business,” that which is carried over other lines of railroads and into other States and Canada. In the supplemental report it subdivided this last-named class as follows:

First. That which originates at a point in this State, and terminates at a point in another State or country.

Second. That which originates in another State or country, and terminates in this State.

Third. That which originates and also terminates in another State or country.

The report also shows that this kind of service is performed under but one contract with shipper or traveler from starting point to destination, at a gross price or sum, and that the sum so received is apportioned between the different lines of the companies upon principles agreed upon between them, in which apportionment distance is only one of the elements calculated.

The report also shows that the sum received by the relator as its share of this inter-State transportation during said yeap, amounted to $15.429.36, which sum the relator adds to the $53,158.69, which it denominates “local business,” making the aggregate earnings $128,588.05, on which it computes a tax of live-tenths of one per cent, amounting to $624.94, from which it 'deducts $265.J9, the tax paid on local business, leaving $3Y7.15.

This assessment the relator, required the Comptroller to review and readjust under the provisions of chapter 361 of Laws of 1881. The required rehearing was had before the Comptroller, in which the State and relator were both represented by counsel, and on which testimony was taken. At the conclusion of such hearing the Comptroller made the following order:

“ An application having been made by the above-named Dunkirk, Allegheny Valley and Pittsburgh Railroad Company for a revision and resettlement of £he taxes assessed and determined against it by the Comptroller of the State of New York for the year ending June 30, 1892, and the said Comptroller having heard proofs offered on behalf of the said Dunkirk, Allegheny Valley and Pittsburgh Railroad Company in suppoi’t of said application, and after due consideration thereof, the Comptroller does determine that the assessment heretofore made against the said Dunkirk, Allegheny Valley and Pittsburgh Railroad Company does not include taxes which could not have been lawfully demanded, and, therefore, declines to make any revision or readjustment of the same.

“CALVIN J. TIUSON,
Deputy Oom^i/rollerT

Tlie relator concedes its liability to pay a tax of one-balf of one per cent on its gross earnings on all business done by it as a carrier where the business originates and terminates within this State, so that no question arises in this case over the rate of taxation.

But it is insisted by the relator that the Comptroller is prohibited by the Federal Constitution from imposing a tax upon the earnings for the carriage of goods or passengers within this State, where the beginning or terminating of such business is in another State or country, and that as to such earnings the relator has complete immunity from taxation; that the power in that instrument conferred upon Congress, to regulate commerce between the States, reaches so far as to prohibit the States from imposing a franchise tax upon a corporation created by and doing business in a State, as to all business done by it in the State in the transportation of property or persons coming from or going to any other State or country.

If this contention can be maintained it is not difficult to see how gross inequalities in the burdens of taxation will fall upon corporations engaged in the carrying trade.

Take as an illustration the New York Central and Hudson River Railroad Company and the West Shore Railroad Company; both have their western terminal point at Buffalo. The former has its eastern terminal point in New York city. It would, therefore, be, so far as Buffalo and New York traffic is concerned, entirely within the State, and subject as to that trade to this tax. The latter of these great parallel carrying corporations has its western terminus at Buffalo, but its eastern terminus is at Jersey City, for all commercial purposes practically New York and yet in another State, and because of that terminal point, and the fact that for a few miles its line is in another State, its income from its carrying traffic, although for the same distance as that of the New York Central and Hudson River Railroad Company, would be entirely exempt from taxation. But we are not called upon to discuss the inequality of the operation of laws; our only duty is to declare what the law is, in a given case, when properly before us for adjudication. But in order to determine the intention of the Legislature we may sometimes gather light by examining the consequences which different constructions may have upon the operation of a given statute and thus promote the purposes of the enactment.

The language of the statute under which the Comptroller assumed to impose this tax is as follows: “ Every corporation formed for * * * transportation purposes * * * and doing business in this State * * * shall pay to the State Treasurer for the use of the State, as a tax upon its corporate franchise or business in this State, a tax at the rate of five-tenths of one per centum upon the gross earnings in this State of said corporation or company or association, for tolls, transportation, telegraph, telephone or express business transacted in this State.”

It is quite clear, if this language is to be literally construed, and this provision to be deemed constitutional, that this tax was properly imposed. The tax is imposed upon the gross earnings in this State, for * * * business transacted in this State.”

No attempt is made to tax the relator for earnings out of the State, or for business not transacted in this State.

The tax is imposed upon “ the sum received by this company as its share of inter-State transportation.” (See supplemental report of relator.) That share must be confined, it would seem, to the earnings of its property in this State as divided with other connecting corporations out of the State.

This is not a tax upon the property of the relator, but rather a tax upon its franchise, which the law measures by its gross earnings within this State, and is, in the language of section 6 of chapter 361 of the Laws of 1881, A tax on its corporate franchise and business in this State.” In People v. Home Ins. Co. (92 N. Y. 328) the court, in examining the taxing power of the State arising under chapter 542 of Laws of 1880, as amended by chdpter 361 of Laws of 1881, held that the taxes upon corporations imposed by said act are taxes upon franchise, and not upon property, and the fact that dividends, a portion of which are derived from securities exempt from taxation, furnish the basis for computing the amount of the tax does not invalidate it.

This conclusion seemed to arise out of the fact that the amount of the dividends was adopted in this scheme of taxation in fixing or measuring the amount of the franchise tax.

And the court holds that the Legislature has, by virtue of its jurisdiction over corporations organized under its laws, authority to impose such a tax. In concluding a very exhaustive examination of the power of the Legislature to impose a franchise tax upon corporations and measure the amount of the tax by the gross earnings of the business, Chief Judge Ruger uses this language: “We feel constrained to hold, in accordance with the principles laid down in the cases cited, that the tax in question was a tax upon franchise alone,, and was, therefore, within the exercise of legitimate legislative power.” This case was affirmed in the United States Supreme Court (134 U. S. 594). In People v. The Equitable Trust Co. (96 N. Y. 381) the power of the Legislature to impose such a franchise tax -upon domestic corporations was reiterated. These acts again came under consideration in the case of The People ex rel. The American Contracting & Dredging Co. v. Wemple (129 N. Y. 558), which was a domestic corporation doing business in the Panama canal, but with its principal office and place of business in New York city.

The Comptroller settled and adjusted the franchise tax under this act upon the dividends declared upon the amount of capital stock employed in the State. And it was held that the tax was not upon the property of the corporation, but upon the franchise and business, and as to domestic corporations is in no sense confined to such as do business in the State exclusively. From the above authorities it appears that this tax is not imposed upon the property or business of the relator, but upon the franchise granted by the State, the amount of which is graduated by the earnings of the relator in carrying on its business in this State.

It is not easy to harmonize the various decisions of the Federal and State courts, or even of the Federal court itself, when questions of this character have arisen upon statutes slightly different in their language, or facts nearly alike, but yet presenting a shade of difference. In Fargo v. Michigan (121 U. S. 230), when the tax. was imposed upon a foreign express company, Miller, J., uses this language : “ The proposition that the States can, by way of a tax: upon business transacted within their limits, or upon the franchises-of corporations which they have chartered, regulate such business or the affairs of such corporations, has often been set up as a defense-to the allegation that the taxation was such an interference with commerce as violated the constitutional provision now under-consideration. But where the business so taxed is commerce itself,, and is commerce among the States, or with foreign nations, théconstitutional provision cannot thereby be evaded, nor cam, the States, by granting fra/nchises to corporations engaged in the business of the trcmsportation of persons or merchcmdise among them, which is itself inter-State commerce, acquire the right to regulate ■that commerce, either by taxation or in any other wciyP

This would seem to be a positive declaration that the State coaid not impose a tax upon a franchise granted by it to a corporation for carrying merchandise which was carried inter-State. But as the decision arose out of the attempt of a State to tax a foreign corporation the statement was not necessary for the determination of the question before the court; it was obiter.

Without attempting to reconcile the apparent conflict of authority upon this subject, we think we may safely adopt as authority the latest utterance of the Court of Appeals of this State in People ex rel. Penn. R. R. Co. v. Wemple (138 N. Y. 1), and that of Maine v. The Grand Trunk Ry. Co. (142 U. S. 217).

In the former case Andrews, J., in discussing the pow'er of this, ’State to impose a tax upon a foreign corporation doing an inter-State business, uses this language:

“ There may, therefore, be eliminated from the discussion the question which would arise in the case of a foreign corporation conducting within this State both the business of strictly interior transportation and that of inter-State carrier to points within and from points without the State. We do not intend to be understood as determining that, in that case, the State might not, under the act of 1880, lawfully impose upon such a corporation, in common with all other corporations, domestic and foreign, doing business here, a business tax, based upon its capital employed in the State, which, under the amendment of 1885, is now the basis of taxation of corporations liable to taxation under the act of 1880. (Oliap. 501, Laws of 1885.)

“ There would seem to be no question that domestic corporations engaged in both State and inter-State commerce may lawfully be subjected by the State to a franchise tax, measured by its whole ■capital or business, or in any other way, in the discretion of the Legislature, without talcing notice of the part of its business ■arising from inter-State commerce, provided no hostile discrimination is made against such part. Nor would there seem to be any valid reason why a foreign corporation, engaged both in the business of State and inter-State transportation in this State, should not be subject to taxation in common with domestic corporations. (See People ex rel. Southern Cotton Oil Co. v. Wemple, 131 N. Y. 64; Woodruff v. Parham, 8 Wall. 123; Osborne v. Mobile, 16 id. 497.)”

In the Alevine Case {supra) this question arose ¡under an act of the State Legislature of that State passed in 1881, containing, among other things, the following provisions:

“ Every corporation * * * operating a railroad in the State shall pay to the State Treasurer for the use of the State, an annual excise tax for the privilege of exercising its franchises.” The act then made the following provisions for, ascertaining the amount of the tax:

“ The gross transportation receipts of such railroad line or system, as the case may be, over its whole extent within and without the State, shall be divided by the total number of miles operated, to obtain the average gross receipts per mile, and the gross receipts in this State shall be taken to be the average gross receipts per mile, multiplied by the number of miles operated within this State.”

The Circuit Court of Maine held that a tax imposed under this statute was a regulation of inter-State and foreign commerce, and in conflict with the exclusive power of Congress over that subject under the Constitution of the United States, and was invalid. From this judgment the State brought a writ of error to the Supreme Court of the United States, where the judgment of the Circuit Court was reversed, the court holding that the tax was an excise tax upon the corporation for the privilege of exercising its franchise within the State of Maine, and in pronouncing the opinion of that court Field, J., uses this language: “ The privilege of exercising the franchises of a corporation within a State is generally one of value, and often of great value, and the subject of earnest contention. It is natural, therefore, that the corporation should be made to bear some proportion of the burdens of government. As the grcmUng of a privilege rests entirely in the discretion of the State, whether the corporation be of domestic or foreign origi/n, it may be conferred ■upon such conditions, pecuniary or. otherwise, as the Statevnitsjudg merit may deem most conducive to its interest or policy. It may require the payment into its treasury each year of a specific -sum, or may apportion the amount exacted according to the value of the business permitted as disclosed by its gams or receipts of the present or past years.

“ The character of the tax or its validity is not determined by the mode adopted in fixing its amount for any specific period, or the times of its payment. The whole field of inquiry into the extent of revenue from sources at the command of the corporation is open to the consideration of the State in determining what may be justly exacted for the privilege. * * *

“ The court below held that the imposition of taxes was a regulation of commerce, inter-State and foreign, and, therefore, in conflict with the exclusive power of Congress in that respect, and on that ground alone it ordered judgment for the defendant.

This ruling was founded upon the assumption that a reference by the statute to the transportation receipts, and to a certain percentage of the same in determining the amount of the excise tax, was, in effect, the imposition of the tax upon such receipts, and, therefore, an i/nterference with the inter-State and foreign commerce. But a resort to those receipts was simply to ascertain the value of the business done by the corporation, and thus obtain a guide to a reasonable conclusion as to the amount of the excise tax which should be levied, and we a/re unable to perceive in that resort any i/nterference with transportation, domestic or foreign, over the road of the rail/road company, or any regulation of commerce which consists in such tra/nsportation. If the amount ascertained were specifically imposed as the tax no objection to its validity would be pretended. And if the inquiry of the State as to the value of the privilege were limited to receipts of certain past years, instead of the year in which the tax is collected, it is conceded that the validity of the tax would not be affected.

“And if not, we do not see how a reference to- the results of any other year could affect its character. There is no levy by the statute on the receipts themselves, either in form or fact. They constitute, as said above, simply the means of ascertaining the vdlxie of the privilege conferred.”

The principle contended for by the Comptroller and contained in the Laws of 1880 and 1881, supra, is clearly upheld in these cases, last cited, and, as was said by Justice Field, “The character of the-tax or its validity is not determined by the mode adopted for fixing its amount for any specific period or the times of its payment.”

It seems to follow that this tax is not one imposed by the State on inter-State commerce, but simply a tax on a domestic corporation created by the State for the privileges and franchise granted to-it by the power which created it, and that such tax may be legally and constitutionally imposed by the State. The decision of the-Comptroller must, therefore, be confirmed, and the writ of certiorariquashed, with fifty dollars costs to the respondent and legal disbursements.

Let an order be entered accordingly.

Putnam and Herrick, JJ., concurred.

Decision of the Comptroller affirmed, writ of certiorari quashed, with fifty dollars costs and disbursements.


author: Herrick, J.:

text:
    In the Matter of the Estate of Matilda Sunderlin, Deceased.

      Claim by an administratrix to the entire estate, disallowed — the mime of the board of the testatrix allowed.

    The administratrix of an estate presented against the estate a claim which consisted almost entirely of a statement of an alleged agreement by which theadministratrix was to have all the property of the deceased that was left at the-time of the latter’s death, but there was in addition a request made in the claim for such other relief as to the court might appear equitable. It was-found by the surrogate, upon the accounting, that the deceased boarded with such administratrix for thirty weeks, and that the board was worth four dollars, a week, and that she had never received any payment for board and lodging.

      jEeld, that, under the circumstances, $120, the value of such board and lodging, should be allowed on account of the claim of the administratrix against the estate.
    Appeal by the claimant, Sarah C. Thumb, from so much of a. decree made by the surrogate of the county of Montgomery, and entered in the office of the cleric of the Montgomery County Surrogate’s Court on the Jth day of November, 1892, as directed that-the surplus remaining in the hands of the administrator of the estate of Matilda Sunderlin be retained by him.

      J. W. Hill, for Sarah O. Thumb, claimant, appellant.

      H. L. Huston, for the administrator, respondent.
   Herrick, J.:

From an examination of the evidence in this case I can see no sufficient reason to reverse the conclusions at which the surrogate arrived in regard to the alleged agreement between the deceased and Sarah C. Thumb.

The surrogate has found that the deceased boarded with Sarah O. Thumb for thirty weeks; that the value of board at the time in that locality was four dollars per week, and that she has never received any payment for the board and lodging so furnished; this item, I think, .should have been allowed. It is true that no specific elaim for that amount was set forth in the written claim, which was devoted .almost entirely to the statement of the alleged agreement by which she was to have all the property of the deceased that was left ■at the time of her death. Still, there is a request for such other relief as to the court may appear equitable in the premises.

This was an accounting before the surrogate, and the person presenting this claim was one of the administrators of the estate. There was no order of reference as is ordinarily the case where a claim against an estate is contested, where the referee would only be at liberty to determine upon the exact claim presented. It seems to me that the court here might have a little more latitude, under the claim made, than a referee appointed under the statute would have. There has been no surprise ; the time of the decedent’s board and lodging is not controverted, and the value of the board and lodging per week was admitted on the hearing. The decree I think shorild, therefore, be modified, allowing and directing to be paid to Sarah C. Thumb the sum of $120 in payment for such board and lodging, and the decree, as so modified, should be affirmed, with costs to the appellant ■to be paid out of the estate.

Mayham, P. J., and Putnam, J., concurred.

Decree as modified affirmed.