text:
    JEANNIE T. HARD and Another, as Administrators, etc., of WILLIAM M. ASHLEY, Deceased, Respondents, v. CHRISTOPHER C. DAVISON, as Administrator of the Last Will and Testament of ISAAC ASHLEY, Deceased, Respondent; LEURENDUS B. ASHLEY, SUSAN M. ASHLEY and ZIPPORAH E. WILCOX, Appellants, and Others.

      Will — revocation of a specific devise — lolum it defeats a gift of a share of the residum'y estate to such devisee.

    A testator, by his will, provided as follows: “Second. To Zipporah E. Wilcox I give the use of my farm on which she now resides, in the town of Greece, Monroe county, N. Y., during her life; and, at her death, I give and devise the said farm in fee to her children then living, in equal shares.” After making certain gifts of other property to other parties, by the fifth clause of his will the testator gave his residuary estate “to the same parties, in the same ratio and proportion as are given and are specified in the foregoing bequests,” and, for the purpose of such apportionment, he fixed the value of the “Homestead Residence ” at $20,000, and of the farm given to Mrs. Wilcox and her children at $15,000.
    By his codicil he provided as follows : “Second. I did, by said last will, give to Zipporah E. Wilcox, of Greece, Monroe county, N. Y., the use of my farm in said town of Greece, during her life, and, at her death, did thereby give the said farm in fee to the children of said Zipporah E. Wilcox then living, in equal shares. I do now hereby revoke said bequest, as well the one to the children of said Zipporah living at her death, as the one to said Zipporah herself, and, in lieu and instead of said bequests, I do hereby give to said Zipporah E. Wilcox and her heirs $8,000, payable as soon as may be, conveniently, after my death.”

      Held, That the gift in the will of the share of the residue of the estate to Zipporah E. Wilcox and her children was strictly dependent upon the original devise to her and them in the will, and that it fell with the revocation of such devise.

      Quincy v. Rogers (9 Cushing, 291) and Wetmore v. Parker (52 N. Y., 450), distinguished.
    Appeal by the defendants, Leurendns B. Ashley, Susan M. Ashley and Zipporah E. Wilcox, from a judgment entered upon the report of a referee, in an action brought in the Supreme Court for an accounting by the defendant, Christopher C. Davison, of his doings and proceedings as executor of the last will and testament of Isaac Ashley, deceased, and for the distribution of the funds in his hands, pursuant to the terms of the will of said Isaac Ashley, as modified by a contract between the defendants, Leurendus B. Ashley and Susan M. Ashley on the one part, and the plaintiff’s intestate on the other part, which judgment was entered in the office of the cleric of the county of Monroe on the 15th day of November, 1888.

      P. M. French, for appellants Ashley and wife.

      Theo. Bacon, for the appellant Wilcox.

      W. A. Sutherland, for the respondents.
   Dwight, J.:

The' action was by the administrators of William M. Ashley, deceased, against the executor, with whom are joined the heirs-at-law and legatees, of Isaac Ashley, to obtain an accounting by the executor and a distribution of the estate in his hands. The judgment gave effect, as against the appellants Leurendus B. Ashley and wife, to a certain agreement between them and the plaintiff’s intestate, which provided for a disposition of the property of the testator, as between the parties to the agreement, other than that made by the will, hence the appeal of Ashley and wife, which is based wholly upon exceptions to certain rulings of the referee in the admission and rejection of evidence. The judgment also denied to the defendant Mrs. Zipporah E. Wilcox any share in the residuary estate; hence her appeal, which is based upon exceptions to the conclusions of law of the referee which affect her rights. We consider the two apjieals in the order in which they have been mentioned.

First. The appellants Ashley and wife, seek to avoid the agreement, alleged against them, on the ground of fraud, averring that they were induced to sign it by false and fraudulent representations in respect to material facts, made to them by the plaintiff’s intestate. They sought to make proof of the alleged representations by their own testimony, each testifying to hearing the representations made to the other. The testimony was objected to under section 829 of the Code of Civil Procedure. It was received subject to a motion to strike it out, and the decision of the motion was reserved. The motion was decided by the referee, adversely to the reception of the testimony, when he made his report, and the decision was excepted to by the appellants Ashley and wife in their exceptions to the findings in the action.

We think the motion was properly decided for the reasons given by the referee in his opinion, which seem to us valid and well supported by the authorities as cited by him. He points out, among other things, that the interest which the two appellants took under the residuary clause of the will, and which, as between the contesting parties, was largely affected by the agreement in question, was a joint interest, with right, by survivorship to the entirety, and was thus incapable of severance; and that any evidence which affected the interest of one, in that provision of the will, must equally affect the other. This testimony being rejected, there was no evidence to support the allegation of fraudulent representations, and the agreement in question stands unimpeached, and must have the effect, as between the plaintiff’s intestate and the appellants Ashley and wife, which was given to it by the report of the referee and the judgment in the action.

Second. The appeal of Mrs. Zipporah E. Wilcox calls for a construction of certain clauses in the will, and in the codicil to the will of the testator Isaac Ashley.

By the first clause of the will the testator gave pecuniary legacies, of various amounts, to nine relatives named.

The next clause is as follows: “ Second. To Zipporah E. Wilcox I give the use of my farm, on which she now resides in the town of Greece, Monroe county, N. Y., during her life, and at her-death I give and devise the said farm in fee to her children then living, in equal shares.”

By the third clause he gives a sum of money in trust for two other relatives, the amount being dependent upon conditions mentioned.

By the fourth clause he gives his “ homestead dwelling ” with furniture, etc., to two other relatives, jointly.

By the fifth clause he gives his residuary estate “ to the same parties, in the same ratio and proportion as are given and are specified in the foregoing bequests;” and, for the purpose of such apportionment, he fixes the value of the “ homestead residence ” at $20,000, and of the farm given to Mrs. Wilcox and her children at $15,000.

The second clause of the codicil reads as follows: “ Second. I did by said last will give to Zipporah E. Wilcox of Greece, Monroe county, N. Y., the use of my farm, in said town of Greece, during her life, and at her death did thereby give the said farm in fee to the children of said Zipporah E. Wilcox, then living, in equal shares. I do now hereby revoke said bequest, as well the one to the children of said Zipporah, living at her death, as the one to said Zipporah herself, and in lieu and instead of said bequests, I do hereby give to said Zipporah E. Wilcox and her heirs $8,000, payable as soon as may be, conveniently, after my death.” * * *

The interesting question presented is: Does Mrs. Wilcox take under the codicil any, and if so, what share of the residue of the estate ? The referee held that she took none ; that the revocation of the devise of the farm revoked also the dependent bequest of the share of the residue, and that the absolute gift by the codicil of $8,000 to Mrs. Wilcox is substituted for the entire provision to her and her children made by the will. The contention in behalf of the appellant, Mrs. Wilcox, is understood to be that the bequest to her and her children of a share of the residue is not affected by the codicil, but that they take, as before, a share of the residue proportioned to the value of the devise made to them by the will itself. The referee does not refer to this important question in his opinion. Apparently, Mrs. Wilcox not having appeared or answered in the action, and not being represented on the trial, he considered that the bill was to be taken as confessed against her. She, has however, appealed from the. judgment, and her right to appeal has not been questioned.

The general principles which govern in the construction of wills, and in determining the effect of codicils, are not in dispute in this case. The aim, avowed on both sides, is, if possible, to ascertain the final intent of the testator. It is agreed that the will and the codicil are to be construed as one instrument; that where the terms of the will are clear to give an estate, the words of the codicil must manifest an intent, equally clear, to revoke it; (Quincy v. Rogers, 9 Cush., 291), that effect must be given to the language, both of will and codicil, according to its legal -import, the intent of the testator being derived by the application to the language employed of the settled rules of construction, that where a codicil expressly revokes a disposition made by the will, and substitutes another, the same special or general intent which the testator had in the original disposition cannot be ascribed to him in making the substitution; that the presumption of a change of purpose arises from the substitution. (Pierpont v. Patrick, 53 N. Y., 591.)

But to sustain his particular contention in this ease, counsel for the appellant Mrs. Wilcox relies upon the authority of the case in Massachusetts before cited, Quincy v. Rogers (supra), and the case of Wetmore v. Parker (52 N. Y., 450). We think both of these cases are essentially distinguishable from the case in hand. .In the Massachusetts case the residuary bequest was in no sense dependent upon the preceding definite legacy, not even for the names of the legatees, nor the amount given to each. The definite legacy was of the sum of $2,000 to each of three legatees named. In the residuary bequest these beneficaries were named anew and the gift was, to each of them, of an equal share with others in the entire residue of the estate. In the codicil, made only six days after the execution of the will, the testator premised that, upon a reperusal of the will, he found that his intention in respect to the legacies given to the three legatees (above referred to) was not correctly expressed, and he declared his true intention to be that the total sum of $6,000 should be taken by the three legatees, or those of them who should survive him, share and share alike, and that only in case all three should die 'in his lifetime should such legacy or any portion of it sink into the residue of his estate. Thereupon he substitutes the provision thus indicated for that contained in the will. Chief Justice Shaw, in writing the opinion of the court, says: “ The declared intention (of the testator) was to set the will right in one particular when he had discovered, on a reperusal, that his intention had not been expressed. To ascertain what error he intended to correct we may first inquire what errror or mistake he had discovered. * * * lie perceives no mistake in finding their names as residuary legatees. The mistake is in regard to the legacies given. Now, in common parlance, as well as in a more precise use of language, a legacy is distinguishable from the gift of a residue or share in a residue. It was the manner in which the gift of the legacies was expressed in the will with which alone he expressed himself dissatisfied, and it was that, and that alone, which he intended to set right in the codicil. It was for such reasons that the court held that the codicil in that case did not revoke the residuary gift to the three legatees.

The case of Wetmore v. Parker (supra) is more nearly similar to that at bar, but is yet, we think, clearly distinguished from it by the facts from which Church, Oh. J., reasons to the conclusion reached by him and a majority of the court. There, as in this case, the residue was given to the persons, and in the proportions in which bequests had previously been made; and, so far, the residuary bequests were dependent upon those specifically given. But in the provisions in favor of the Reformed Dutch Church the chief judge finds the residuary bequest independent of the pecuniary legacy in respect to the purpose with which it was made. There the legacy of $10,000 was expressly given to be expended in the erection and completion of their church edifice then erecting,” and it was provided that if the whole or any part of said sum should not be required for that purpose, the same should be invested and the income only expended for the use and benefit of the church; whereas the gift of a share of the residue was absolute and without limitation to any specified use or purpose. It was upon this independence of the two provisions for the benefit of the same institution that the argument is largely based that the revocation of the one did not affect the other.

In respect to the provisions of the same will and another codicil, in favor of the Utica Female Academy, there seems to have been no change of intention whatever on the part of the testatrix toward the beneficiary, but merely the anticipation of a portion of a definite legacy of $10,000 by the payment of $3,000, after the execution of the will, and a corresponding reduction of the amount of that legacy by the codicil. There seems to have been no ground to contend that such a revocation, which was, in effect, only a change in the mode and time of payment of the legacy of $10,000, should affect the dependent gift of a share of the residue.'

But the case at bar is much more strongly distinguished from either of those considered, by the fact that in this case the provision of the will, which was revoked, and that of the codicil, which was substituted therefor, were not in favor of the same persons. The former was the devise of a farm to the appellant for life, with remainder in fee to her children who should be living' at her death, and upon this devise was based the gift of a share of the residue proportioned to the value of the farm, estimated at $15,000. The residuary gift was, therefore, like that upon which it was based, of the use only of the fund to the appellant during her life and of the fund to her children surviving her. But the provision substituted by the codicil for the revoked devise was an absolute gift of $8,000 to the appellant, in which her children had no share or interest. Here was no mere change in the form of a legacy as in the case of Quincy v. Rogers, nor in the time and mode of its payment, as of the gift to the female academy, in the case of Wetmore v. Parker, but, on the contrary, a complete revocation of a devise of land to the children of Mrs. Wilcox, subject to a life estate of their mother, and the substitution therefor of an absolute gift of money to the mother alone. Here is evidence of a radical change of intention on the part of the testator toward the beneficiaries under the original provision of his will. Can it be supposed that when he completely revoked the gift to Mrs. Wilcox’s.children of property worth $15,000 he still intended them to share in the residue of his estate in proportion to the value of that gift, or that when he substituted for the use of a farm during her life to Mrs. Wilcox, the absolute gift of $8,000 in money, he still intended to continue to her a share of the residue based upon the revoked devise ? The question is an interesting one, in respect to which we are aided by no authority more closely in point than the two cases already examined ; and we do not regard the decision in either of those cases as applicable to the facts in this. We conclude that the gift of a share of the residue to Mrs. Wilcox and her children was strictly dependent upon the original devise to them in the will, and that it fell with such devise.

If this view is correct, we are led to a disallowance of both the appeals and the affirmance of the judgment entered on the report of the referee.

All concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barker, P. J. :

license: Public Domain

text:
    EDWARD HALEY, Respondent, v. O. EUGENE WHITNEY, Appellant.

      Item, of tax illegally added to a school tax by the trustee of the district — liability of the trustee to a party whose property has been sold thereunder — remedy of the taxpayer.

    A trustee of a school district who lays a tax, as to a portion of which, constituting a deficiency in a former tax, there is no evidence that the .taxpayers of the district have voted that it should be reassessed, is liable as a trespasser to a party whose property has been levied upon and sold by the collector by virtue of the warrant issued for the collection thereof.

      Colton v. Beardsley (38 Barb., 29), disapproved.
    Where a tax is illegal, the taxpayer is not obliged to apply for an abatement thereof, unless some statute has made that the only remedy afforded him ; but he may, under other circumstances, rightly contest the tax whenever an attempt is made to collect the same.
    There is no provision of law which makes the appeal to the superintendent of public instruction, under title 12, chapter 555 of 1864, for relief against the erroneous and unauthorized action of the trustee of a school district, the only remedy which a taxpayer thus aggrieved may pursue.
    Appeal by tlie defendant from a judgment rendered by the County Court of Wayne county, on appeal from a judgment of a justice of the peace, affirming such judgment in favor of the plaintiff, which judgment was entered in the office of the clerk of the county of Wayne on the 7th day of September, 1887.
    The action was brought to recover the value of a hay rake, which was taken and sold by the collector of a school district under a tax-list and a warrant signed by the defendant as a trustee of the district. The question presented was, whether or not the defendant had jurisdiction to issue a tax warrant.
    The defendant was a trustee of a school district situated in the county of Wayne, and the plaintiff was a taxpayer residing therein. The defendant, acting in his capacity as trustee, on the 14th day of November, 1885, laid a tax upon the taxable property within the school district for the total amount of $150.12, of which sum six dollars and thirty cents was assessed upon the plaintiff’s property. The heading or caption of the tax list was in the following form, viz.: “ List of taxes apportioned by the trustee of District No. 7, in the towns of Ontario and "Walworth, county of Wayne, in accordance with the provisions of article 7, and section 51 of title 7 of the general school law of the State of New York, for the purpose of raising the sum of one hundred and fifty dollars and twelve cents ($150.12), laid and charged on the said district according to the law, viz., forty-eight dollars deficiency in a former tax, which could not be collected from David Gould, and one hundred and two dollars and twelve cents to finish paying for the school furniture for the school-house in said district.”
    Then followed the names of the taxpayers, the character of the property assessed, its value and the amount of the tax .levied. The plaintiff’s name and property, and amount of tax assessed thereon appeared as follows :
    No. Price Total Tax.
    acres. per acre. valuation. Dol’s.Cts.
    “Ed. ITaley.......... 67 $10 $2,680 $G.30”
    The trustee attached to the list his warrant in the usual form, which contained this specified direction: “ In case any person upon whom such tax is imposed shall neglect or refuse to pay the same, either to levy the same by distress and sale of the goods and chattels of the person or corporation so taxed,” and delivered the same to the collector. When called upon by the collector the plaintiff refused to pay the tax, and the collector then levied upon the property in dispute and removed the same from the plaintiff’s premises; and thereupon and on the same day this action was commenced, which resulted in a verdict in the plaintiff’s favor for twenty dollars damages, the value of the property levied upon, with five dollars costs. No proof was made that the item of forty-eight dollars, the deficiency of the tax, was voted by the taxpayers to be reassessed and recollected from'the taxpayers of the district. Previous to the levy of the tax in question the taxpayers voted to raise the sum of $300 to repair the school-house, and of that tax the plaintiff was assessed the sum of twelve dollars and eighty-six cents, which he paid, and David Gould was assessed forty-eight dollars, which is the uncollected tax reassessed as above stated.

      S. B. McIntyre, for the appellant.

      John II. Camp, for the respondent.
   Barker, P. J. :

I am of tlie opinion that the justice was correct in holding, upon the undisputed facts of the case, that the defendant was a trespasser, and that the County Court properly affirmed the judgment. In reaching this conclusion it is necessary to sustain the legal proposition asserted hy the plaintiff, that the defendant in levying the tax upon the plaintiff’s property and issuing the warrant for its collection acted without jurisdiction over the subject-matter. This proposition of law must rest for its support upon the fact that the defendant included in the tax as laid, the item of forty-eight dollars, being the sum which was assessed to David Gould by a previous assessment, &nd which remained unpaid, without the vote of the taxpayers of the district. There can be no doubt but that the action of the defendant in this respect was wholly unauthorized. The statute has made provision for supplying a deficiency in a former tax levy by reason of the inability of the collector to collect the same, and has vested in the taxpayers the power, “ to vote a tax to supply a deficiency in any former tax, arising from such tax, being in whole or in part uncollectible. (Chap. 555, Laws of 1864, tit. I, art. 1, sub. 10, § 15.) Without an authorization from the taxpayers the trustee had no power to include the unpaid tax in this levy, as there is no provision in the statute conferring on him the authority to determine when a tax is uncollectible and to assess the amount of it upon the other taxpayers of the district.

The plaintiff also contends that the item of $102, included in the tax, for the purpose stated in the heading of the list, to finish paying for the school furniture for the school-house was also unauthorized, as the taxpayers had never voted to raise that or any other sum for that purpose. My opinion is that the trustee was duly authorized to levy a tax for the payment of that item, in view of the previous votes of the taxpayers of the district relative to furnishing the school-house with chairs. As I have reached the conclusion that the judgment should be affirmed, because the levy was void for another reason, it becomes unnecessary to consider the evidence showing that the trustee was authorized to make a levy for the purpose of raising a sum to pay that item. The vital question in the case is, was the tax laid and the warrant issued for its collection void as between the taxpayer and tlie trustee, because there was included in the tax the unauthorized item of forty-eight dollars, the amount of the uncollected tax assessed on the property of David Gould by a previous assessment ? The learned counsel for the appellant contends that the insertion of that item does not vitiate the entire tax, and that the warrant was a good and valid process to collect so much of the tax as was properly laid upon the property of the respondent, therefore, the defendant cannot be charged as a trespasser; and that the plaintiff’s remedy is by an action to recover back the sum collected in excess of that portion of the tax which was legal. This contention is, as I think, hostile to a fundamental rule. that when an officer, whose duties and powers are prescribed by statute, acts without acquiring jurisdiction over the whole subject-matter, concerning which he assumes to act, his action is void. The levy of this tax was one proceeding, and constituted but one official act on the part of the trustee, and the warrant which he issued to carry into effect his determination, in terms, directed and required the collector, in case any person upon whom such tax was imposed should negleet or refuse to pay the same, that the whole sum be collected by a levy upon and a sale of the goods and chattels of the person against whom the tax was assessed. The subject-matter over which the trustee assumed jurisdiction was levying a tax upon the property of the taxpayers of the district, in an amount sufficient to pay in full the two items mentioned in the heading to the list. The statute requires the trustee, before proceeding to spread the tax, to make a record or written memorandum showing for what purpose the tax is laid, and this must be prefixed to the tax-list. (Sec. 65.) The trustee may, at his option, assess at the same time two or more taxes legally voted, or which he is authorized to assess without a vote, or make separate assessments for each tax and issue warrants for their collection. (Sec! 65.) In order to support the action of the trustee and make his warrant valid it was necessary for him to show that he had a right to assess a tax for each item mentioned in the tax-list. The levying of the tax to pay the item of forty-eight dollars was not a mere mistake of judgment on the part of the trustee. It was done without any pretense whatever that the facts were such as to require him to examine and determine the question whether or not it was proper to include the item of forty-eight dollars. It cannot be called a mistake of law or fact, for he was not called upon to determine the question either way, and the result of his action was the levy upon the property of the plaintiff, a tax without the slightest color of right or authority. If a court of special and limited jurisdiction should assume to act and render judgment in a case where it had no jurisdiction whatever over the subject-matter, its judgment would be utterly void. So if it should assume jurisdiction of a matter over which it had rightful power to act, and should, in the saipe action and proceeding, assume jurisdiction over a separate and distinct subject-matter over which it had no jurisdiction whatever, and render a money judgment in favor of the plaintiff for damages arising out of both causes of action, the judgment would be utterly void as between the parties thereto. It is a well-settled maxim of the law that when an individual sustains an injury by the misfeasance of a public officer, who acts without authority and contrary to his duty, the law gives redress to the injured party by an action adequate to the nature of the case. (Adsit v. Brady, 4 Hill, 632; Robinson v. Chamberlaim, 34 N. Y., 389.) .

While it is admitted that the trustee had authority to levy a tax on the property described in the assessment-roll, including the plaintiffs, to raise a sum of money to pay for chairs, it is conceded by the trustee that he had no legal right to levy a sum to pay for the uncollected tax previously assessed to another. By including the latter item the trustee' acted in excess of his authority, and as his action in levying a tax on the plaintiff’s property constituted but a single official act, the whole proceeding is void. No other rule would protect the property of the taxpayer from the arbitrary action of an official who, by law, is vested with only a limited and prescribed jurisdiction. The trustees of a school district are confined strictly to- the authority conferred upon them by statute. In levying the tax and issuing his warrant the trustee did not act judicially; in this respect his duties were ministerial only. He himself insists that the taxpayers authorized the levy of the $102.12 to pay for the chairs; and it is admitted that the levy to pay the uncollected tax was wholly unauthorized, so there is no room for saying that he acted judicially in the discharge of the duties imposed upon him. It is not, however, seriously contended by any one that the tax is legal, and that the plaintiff is without remedy. The position of the trustee is, that lie cannot be treated as a trespasser, and that the plaintiff’s remedy is by action to recover back the portion of tlie tax which was unauthorized. The plaintiff is not, in my opinion, limited to the relief mentioned, nor would an action of that nature, in all instances, be adequate to the full protection of the taxpayer.

This case, in many of its features, is not unlike the case of Mygatt v. Washburn (15 N. Y., 316). There it was held that the town assessors who entered upon the assessment-roll, as liable to be taxed for personal property, tlie name of the person not a resident of their town or ward at the time the assessment was made, acted without jurisdiction and were liable for the damages resulting from a tax founded on such an entry. The decision was placed on the sole ground that the person assessed was not subject to the jurisdiction of the assessors, and in placing his 'name on the roll and adding thereto an amount as tlie value of his personal property they acted without authority, and that it was not, in view of the law, the case of an error in judgment. In that case there was a total want of jurisdiction. In the case before us there was an excess of jurisdiction exercised. In neither case does the law give an officer possessing limited jurisdiction any protection, and his action may be treated as void by all persons injured thereby. (Rochester White Lead, Co. v. City of Rochester, 3 Comst., 463; Barhyte v. Shepherd, 35 N. Y., 238; Nat. Bk. of Chemung v. City of Elmira, 53 id. 49.)

The appellant recites and relies upon the case of Colton v. Berdsley (38 Barb., 29) as an authority that the defendant was not a trespasser, and the warrant was void for the excess only, and for that amount the defendants were personally liable, which might be recovered back by the plaintiff in a proper action, and that an action of tort cannot be maintained. In that case the amount of the tax levied, and for which a warrant was issued, was twenty-nine dollars and fifty-nine cents, consisting of several items, six dollars and fifty-nine cents of which the trustees were not authorized to levy without a vote of the district. Upon the warrant issued by them the collector sold the property of the plaintiff, who was one of the taxpayers, and he brought an action in trover against the defendants as trustees and recovered a judgment for the value of the property levied upon and sold, which was reversed by the General Term upon the ground that the warrant was void for the excess above the amount the trustees were authorized to levy; and that the warrant could be lawfully enforced for the unauthorized items assessed in the tax. In that case the question presented was not discussed upon principle. The cases cited in support of the proposition there stated, it will be found upon examination, do not support the legal proposition asserted by the learned judge. It seems to my miud very clear that the conclusion reached in that case is contrary to the many legal propositions well established by the courts in this State, and should not be received as controlling the question now before us.

The case of Parish v. Golden (35 N. Y., 462) does not present the question whether the proceedings of an officer of limited jurisdiction are void or not when he acts in excess of his authorized powers. Mr. Cooley, in his work on Taxation, in speaking of the effect which an excess of levy has on the whole tax, says: “All statutes are mandatory which, expressly or by implication, limit the amount of taxes which may be levied. When these are exceeded by a sum which is spread upon the whole roll the whole levy is void_ The levy is in excess of the jurisdiction of the officers and will be as deficient in legal competency to make out a valid charge as if made without any authority whatever. This would not defeat a separate tax lawfully placed in a separate column on the roll, but it would invalidate whatever is blended with the excessive levy and incapable of being separated.

Excess in a levy may happen from a sum which has been voted for an unauthorized purpose, being included with others that are authorized, or from imposing more than is permitted for lawful purposes, or from the addition of unauthorized charges * * * whereby either the aggregate is made too large or individuals are charged more than their lawful proportion.” (Page 429, ed. of 1886.)

The following cases relate to the question before us, and are referred to as illustrating the proposition asserted, that the trustee is liable in an action for the wrongful conversion of property levied upon by the collector, under a warrant issued by him : Stroud v. Butler (18 Barb., 327); Clark v. Hallock (16 Wend., 607); The Nat. Bk. of Chemung v. City of Elmira (supra) ; Gale v. Mead, (4 Hill, 109); Bailey v. Haywood (38 N. W. Rep. 231); Harland v. Eastman (119 Ill., 27); Gerry v. Inhabitants of Stoneham (1 Allen, 319). When the tax is illegal the taxpayer is not obliged to apply for an abatement, unless some statute makes that tlie only remedy. But he may contest the tax when an attempt is made to collect it. (Cooley on Taxation, 748.) This right of the taxpayer to resist the effort to collect an illegal tax out of his property should not be confused with the class of cases which relate to over-valua_ tion of property placed on the assessment-roll, where no principle of law is violated, and the complaint is an error of judgmext only on the part of the board of assessors. In such cases the sole remedy is an application for an abatement, in the manner prescribed by law.

A taxpayer who conceives himself aggrieved in consequence of the levy of a tax upon his property may appeal to the superintendent of public- instruction for relief against the erroneous and unauthorized action of the trustee, in pursuance of the provisions of title 12, chapter 555 of the Laws of 1864. But there is no provision in that or any other act that that is the only remedy which he may pursue. The provisions of sections six and seven in the next title of the same act, relating to the question of costs in actions against trustees, involving their duties and powers, indicate that the aggrieved taxpayer has the same remedies against a trustee who acts in excess of his authority as he has against any other official exercising similar powers. The authorities are abundant in support of the proposition that whenever a trustee of a school district acts ministerially or in excess of his authority, he is liable in trespass when the property of another has been seized in pursuance of a process signed and issued by himself. (Stroud v. Butler, 18 Barb., 327; Clark v. Hallock, 16 Wend., 607; Alexander v. Hoyt, 7 id., 89.)

The judgment of the County Court should be affirmed, with costs.

Dwight and Guilds, JJ., concurred.

Judgment of County Court affirmed.


author: Per Curiam :

text:
    In the Matter of the Final Judicial Settlement of the Accounts of JANE A. MAY as Executrix etc., of VASHTI ACER, Deceased.

      Surrogate — amendment by, of an order of reference, nunc pro tunc, so as to refer the issues, and not simply to direct a report of the evidence.

    Where an order of reference made by a surrogate directs that a referee shall take the evidence and report the same to the surrogate with his opinion thereon, under which order all the parties, as well as the referee, proceed upon the assumption that the order authorized the referee to hear and determine the issues, and an appeal from the decree entered thereon is taken upon that theory, the surrogate (having originally decided to make a reference of the issues), is authorized to enter an order, nunc pro tunc, making the order of reference to conform to his original intention.
    Appeal by Jane A. May, as tbe executrix, etc., of Yasbti Acer, deceased, from an order in tbe above-entitled proceeding, of tbe 21st day of March, 1889, duly entered in tbe office of tbe surrogate of Monroe county, refusing to entertain an application made by tbe said executrix to settle and sign tbe case and exceptions on tbe appeal herein, or to pass upon requests to find, presented pursuant to section 2545 of tbe Code of Civil Procedure, and amending an order of reference made on tbe 12th day of September, 1884, which ordered that tbe bearing of tbe matters in controversy relating to tbe account of tbe executrix and tbe objections thereto be referred to a referee, to take tbe testimony and proofs of tbe parties in relation to tbe said matters and report tbe same to this court with bis opinion therein.
    Tbe proceeding was commenced by the filing in tbe office of tbe surrogate of Monroe county in May, 1884, of a petition by George Hodges, on behalf of Hattie Hodges, Dwella Hodges and Addie Hodges, infants, and a citation was issued, directed to Jane A. May, administratrix, etc., requiring her to show cause why she should not render a final account as such executrix, and return an inventory of tbe estate. Tbe executrix filed her account, and, objections having been filed thereto on behalf of certain persons interested therein, an order of reference was made to a referee “ to take tbe testimony and proof of tbe parties in relation to said matter, and report tbe same to this court with bis opinion thereon.” Tbe referee made his report, and, objections thereto having been filed by contestants, the matter was brought on before the surrogate and the report confirmed except as to the fourth conclusion of law, which was overruled.

      H. H. Woodwoard, for the executrix, appellant.

      Ivan Powers, for certain infants, respondents.
   Per Curiam :

The form of the order of reference was that the referee should take the evidence which should be adduced, and report the same to the surrogate, with his opinion thereon. The surrogate, however, intended, and did actually decide to make such order one for the hearing and determination of all questions arising upon such accounts. The parties, as well as the referee, have proceeded throughout, down to the time that this application was made, on the assumption that the referee, under the order, had the power to hear and determine the issues. The notice of appeal from the decree was made on that hypothesis, and as though it was an attempt only to review the decision of the referee after confirmation of his report by the surrogate. Indeed, the appellant’s attorney had procured a settlement of the case on appeal by the referee, in accordance with the proper practice in cases of a reference of the whole of the issues. (Code, § 2516.) Under these circumstances, the surrogate was justified in so changing the order of reference, mono pro timo, as to conform it to his original direction.

We are of the opinion, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

The question sought to be brought into this appeal, jiertaining to the surrogate’s power to strike out the referee’s fourth conclusion of law, can only be properly presented when the appeal from the decree itself comes up.

Present- — -Barker, P. J.; Dwight and Macomber, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Barnard, P. J.:

text:
    CHARLES S. HIGGINSON, Appellant, v. THE SECOND NATIONAL BANK OF THE CITY OF NEW YORK, Respondent.

      Examination of a witness de bene esse — affidavit used on a motion therefor — allegations as to the witnesses’ departure from the State.

    The affidavit upon which an order was obtained to examine a witness before trial stated that “said George W. Fuller, as deponent is informed by him and verily believes, is about to depart from the city of Brooklyn, Kings county, N. Y., and from this State, for his said home at Norwich, Conn., to remain permanently there, on the afternoon of Wednesday, February 13, 1889.”
    The witness referred to was not in this State when the affidavit was made, but he had promised to come to Brooklyn on the twelfth of February and be examined, and proposed to be in Brooklyn on the twelfth and leave the State again on the next day.

      Held, that the affidavit upon which the application was made was not fraudulent, nor did it contain a suppression of the truth.
    Appeal by tbe plaintiff from an order made at tbe Kings County Special Term on tbe 9tb day of March, 1889, and entered in the office of tbe clerk of Kings county on that day, by which it was ordered that tbe deposition of a witness, George W. Fuller, taken de lene esse in tbe above-entitled action, be suppressed and that it go for naught.

      The affidavit upon which the application was made for an order for the examination of said witness stated, among other things, as follows: “ 6. That the said George W. Fuller, as deponent is informed by him and verily believes, is about to depart from the city of Brooklyn, Kings county, N. Y., and from this State, for his said home at Norwich, Conn., to remain permanently there, on the afternoon of Wednesday, February 13, 1889.” Under the application made upon such affidavit the witness was directed to appear for examination and was duly examined.

      Edmin W. Sanborn, for the appellant.

      Butler, Stillman & Hubbard, for the respondent.
   Barnard, P. J.:

The affidavit upon which the order was obtained to examine the witness Fuller was in due form. Fuller lived in the State of Connecticut, and by an arrangement with the defendant’s attorney agreed to come into this State on the 12th day of February, 1889, to be examined de bene esse. The affidavit contained a statement that the witness Fuller was about to depart from this State to his home on the 13th of February, 1889, to remain permanently. The witness was not in the State when the affidavit was made. The examination of a witness who resided in a foreign State who happens to be here is properly taken. (Wait v. Whitney, 7 Cow., 69.) The statute covers transient witnesses from other States and countries who happen to be here as well as residents of the State who are about to leave the State. (Packard v. Hill, 7 Cow., 489.) There was no fraud in the affidavit, nor even a suppression of the truth. The affidavit stated that the witness proposed to leave the State on the 13th of February, 1889. lie had promised to come to Brooklyn on the twelfth and be examined. If the affidavit had stated that Fuller lived in Connecticut and proposed to be in Brooklyn on the 12th of February, 1889, and leave the State again on the next day, the examination could be taken under section 872 of the Code.

The order should, therefore, be reversed, with costs and disbursements.

Pratt, J., concurred.

Order reversed, with costs and disbursements.


text:
    In the Matter of the Petition of the SOUTH BEACH RAILWAY COMPANY to Acquire Lands of FANNIE J. BYRNES.

      Street railroad companies — chapter 353 of J 884 does not authorize the acquiring of a road-way through private property, ly the exercise of the right of eminent domain.

    Cliapter 353 of tlie Laws of 1884, in relation to the construction of street railroad companies, does not authorize the taking of land, by the exercise of the right of eminent domain, for the purposes of the roadway of companies organized thereunder.
    The clause in section 1 of said act, making these corporations subject to the general railroad act, was not designed to require the filing of a map of its route by a company organized under this act.
    A company organized under such act, which has obtained the right to maintain a route on certain streets,'is not authorized, under section 38 of the general railroad law, to change its route so as to leave the streets and go through private lands.
    Appeal by tlie South Beach Railway Company, the petitioner herein, from an order made at the Kings County Special Term (entered in the Richmond county clerk’s office May 15, 1889), on the petition of the said South Beach Railway Company, the answer of Fannie J. Byrnes, and the proofs taken before a referee, denying the prayer of the petitioner and dismissing the petition in this matter, in which it was sought to obtain the appointment of three disinterested, competent freeholders, residing in the county of Richmond, as commissioners to ascertain and approve the compensation to be made to the owners or persons interested in certain real estate proposed to be taken for the purpose of the petitioner’s road, to be used in the construction and operating of its railroad.

      Demiel G. Thompson, for the petitioner, appellant.
    W. W. MacFarland, for Fannie J. Byrnes, respondent.
   Barnard, P. J.:

Chapter 252 of the Laws of 1884 does not authorize the construction of the road through the lands of Mrs. Byrnes. The provisions of the act plainly indicate its scope and purpose. It is called an act to provide for street surface railroads and branches. The property bounded thereon is to consent, or in case of refusal a commission is to be appointed. The local authorities having control over roads are to consent. No road is to be constructed where there is another street railroad without its consent. A map of the roads is not needed when the charter gives the routes of the roads. The clause in section 3 of chapter 252, Laws of 1884, making these corporations subject to the general railroad act are not designed to require a map. The purpose of a map is wholly taken away as to street railroads. If a majority consent or a commission authorizes it no one else can object. There are liabilities of railroad corporations which would apply to both kinds of railroads, and there is no doubt do apply by force of this clause. The petitioners got a right to a route on certain streets by getting the proper consents therefor, and it had no power to change its routes so as to leave the streets and go through private lands under section 23 of the general railroad law. The power to change the route under the general railroad act has no relevancy to a street railroad, where something more is needed than the two-thirds vote of the directors. If a route may be changed from one street to a private person’s land, it may be changed from one street to another without the consent of the land on the changed route, or the consent of the local authorities. The act of 1884 does not authorize a route, in whole or in part, acquired by condemnation.

The order should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Order affirmed, with costs.


text:
    JOHN Y. McKANE, Respondent, v. THE BROOKLYN CITIZEN, Appellant.

      An answer, setting up a justification of a libel, must specify the facts establishing the truth of the chao'ge.

    An answer, in an action brought to recover damages for an alleged libel, which sets up a justification thereof, must specify the facts tending to show the truth of the charge.
    A general averment of the truth of the libel is not a proper form of pleading, and, if inserted .in the answer, the same will be stricken out on motion of the plaintiff.

      Tlie provisions of the Code of Civil Procedure, in respect to matter in mitigation of damages, were not designed to, and do not affect the rule of pleading applicable to such cases.
    Appeal by the defendant from an order made at the Kings County Special Term, and entered in the office of tlie cleric of that county on tlie 6th. day of April, 1889, striking out certain parts of tlie defendant’s answer, and directing the defendant to specify, in his answer, whether particular averments of the said answer are pleaded in justification or mitigation of damages.
    The action was brought to recover damages for an alleged libel upon the plaintiff, published by the defendant.

      Jamies & Thomas H. Troy, for the appellant.

      Morris & Whitehouse, for the respondent.
   Barnard, P. J.:

The complaint avers a publication by defendant of language alleged to be libelous. Portions of the libelous article or communication impute the commission of crimes by defendant. One is quite specific. The answer avers that the article ivas published as a communication from one Tilson. The specific charge of crime is justified specifically. A justification must specify facts tending to show the truth of the charge. A general averment of the truth of the libel is not a proper pleading either before or after the Code. (Tilson v. Clark, 45 Barb., US.) The answer should state time, place and circumstances with a degree of particularity which would show upon its face that an offense against the law had been committed, substantially as an indictment would charge facts constituting a crime. (Andrews v. Van Duser, 11 Johns., 38.) Applying this principle to the portion of the answer objected to and stricken out, the order was right. The answer avers that the plaintiff holds or held several offices in the town of Gravesend, and that he negligently and willfully permitted the loss and his official duty to be unexecuted and even assisted in violating the law. No specific instance is given in any portion of the voluminous parts of the answer which are the subject of the motion. As a justification, therefore, the answer is not good. Neither is it good in mitigation. “A statement in the answer that the words are true would not be a justification, and it would fall just as far short of being a statement of facts to be proved by way of mitigation.” (Wachter v. Quenzer, 29 N. Y., 547.) The Code in respect to mitigation was not designed to touch the rule of pleading, but when a publication was made which was libelous the publisher can prove facts tending to show the truth of the charge when the crime is not absolutely established by'the proof. The same particularity in pleading was called for. In no other way can an issue be raised, either as to facts showing justification or as to facts showing motive as in mitigation to be considered, where an answer contains matter which will not justify proof on this, then it may be stricken out on notice as irrelevant.

The order should be affirmed, with costs and disbursements.

Dykman, J., concurred.

Order affirmed, with costs and disbursements.


text:
    In the Matter of the Judicial Settlement of the Accounts of GEORGE W. CHAUNCEY, as Trustee of, and under the Last Will and Testament of MARY L. KIRBY, Deceased.

      Legacy, directing an annual payment from income which is also made subject to a prior annuity — when the legacy is not demonstrative and not entitled to home past deficiencies made good from a subsequent su/rplus of income.

    A testatrix, by her will, gave to lier executors the residue of ber estate, to invest the same, and apply the rents and interest thereof “to the use of my said husband, William L. Kirby, during his natural life, except that they shall apply, to the use of James E. Delaney, who was brought up by me, the sum of $500 per annum thereout, until he shall arrive at the age of twenty-one years, and from and after that time the sum of $1,000 per year thereout during the life of my said husband, William L. Kirby, and from and- after the decease of my said husband, the sum of $3,000 dollars per annum thereout during his natural life.”

      Deld, that the gift of the yearly sum, out of the income, to be applied to the use of Delaney, was not a demonstrative legacy, and that no part of the body of the estate could be applied to make up a deficiency of income of a prior year, and that, after the death of the husband of the testatrix, any deficiencies that had existed in prior years, in the payments made to Delaney, could not be made good out of the surplus income existing subsequent to such decease.

      Appeal by Mary E. Yan Anlen, individually, and as administratrix of tlie last will and testament of William O. Yan Aulen, deceased, wbo was the sole next of kin to Mary L. Kirby,-the above-named testatrix, and survived her, from that part of the decree made at the Kings County Special Term, and entered in the office of the clerk of that county on the 20th day of April, 1889, which determined that the trustee, under the will of MaryL. Kirby, should pay to James E. Delaney the balance of income remaining in Ins hands, as specified in said decree, on account of deficiency found by the court to be due him, with interest.

      William C. Holbrook, for Mary E. Van Aulen, individually, and as executrix, etc., appellant.

      A. E. Lamb, for James E. Delaney, respondent.
   Barnard, P. J.:

The Court of Appeals, in Delaney v. Van Aulen (84 N. Y., 16) held that the gift to the executors of a yearly sum out of the income of the estate of Mary S. Kirby, to be applied by them to the use of Delaney, was not a demonstrative legacy, and that no part of the body of the estate could be applied to make up a deficiency of income. The peculiarity of the will was that the entire income was given for the use of the husband of the testatrix, less a certain sum which was first to be deducted for the use of Delaney. The Court of Appeals held that as there was no method of raising the money, except that of the income provided; and that the husband could only get this, wdiether it was much or little; and that it was not the intention of the testatrix to give Delaney more than an interest in the same fund. The question whether Delaney had a right to have deficiencies in yearly payments made up from increased avails in after years was left undecided.

The second trial of the case seemed to have only presented the same question, and was decided in the same way. (Delaney v. Van Aulen, 92 N. Y., 627.) The court expressly states that no new facts were presented. Now, it appears that the husband died on the 11th of November, 1877, and the will gives $2,000 per annum to the use of Delaney during his natural life, from and after her death. There is no gift of tlie surplus life estate in each year. There was a deficiency in the payment of the annual sum, and now there is a small surplus in each year. The question left undecided is, therefore, presented: "Whether the surplus is to be paid to Yan Aulen on account of the former deficiency, and whether the future excess of income over the annuity is to be so applied until the deficiency is made up. It seemh plain that, in the judgment of the Court of Appeals, the provision for Delaney was not an annuity. “ It is given as the current avails of a fund. The husband of the testatrix had the entire rents and profits of the estate after the payment from it of the annual sum. It seems quite clear that the intention of the will is that as between the husband and Delaney there should be no holding over in lean years a balance as against more' prosperous ones. 'The husband in that case might be loft wholly destitute. The Court of Appeals gives the more favorable place to the husband. If, as between the husband and Delaney, the account was to be closed each year, there is nothing in her will showing that the testatrix had a different intention as between Delaney and her next of kin than she had as between Delaney and her husband. The entire life estate was given away, and it is only a sum out of it in each year that is to be applied to Delaney. The testatrix supposed the estate always to pay the sums to Delaney. The testatrix intended that the annual avails should be used as far as they would go; there is nothing in the will showing an intent to put the next of kin in a worse position after the husband’s death as to the life estate he had enjoyed. The will is so different in structure from that of Stewart v. Chambers (2 Sandf. Ch., 382) that it is not an authority for the construction that the deficiency for one year in the payment to Delaney may be carried to a future year. The .next of kin were to be provided for after the husband’s death, and it is not likely that she intended to make a different rule as to them.

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

Pratt, J., concurred.

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


text:
    BRIDGET NICHOLS, as Administratrix, etc., of HENRY NICHOLS, Deceased, Respondent, v. THE BRUSH AND DENSLOW MANUFACTURING COMPANY, Appellant.

      Master and servant — death of the latt&r cimsed by an explosion resulting from the ignition of escaping gas— liability of the master.

    A common laborer, engaged, to work in a distillery of crude oil, in the distillation of which a large amount of gas was generated, some of which escaped into a portion of the premises, went with a superintendent of the works into a still to repair it. While he was there the gas, owing to the absence of a stop-cock, entered the still and became ignited, in consequence of which an explosion occurred killing both men.

      Held, that the master, under such circumstances, was liable to the administratrix of the servant so injured.
    That the servant had a right to rely upon the performance by the master of the duty which required him to furnish the servant with a safe place in which to perform the work required of him.
    Appeal by the defendant from a judgment rendered at the Kings County Circuit, on a trial before the court and a jury, in favor of the plaintiff for $4,250 damages, which judgment was entered in the office of the clerk of Kings county on December 29, 1888, and also from an order denying the defendant’s motion for a new trial.
    The action was brought by the widow and administratrix of one Henry Nichols, who was, at the time of his death, in the employ of the defendant, a corporation engaged in distilling and refining petroleum at the foot of Thirty-ninth street, South Brooklyn, to recover damages resulting from the death of the plaintiff’s intestate, caused, as was alleged, by the defendant’s negligence. The accident, which resulted in the death of Henry Nichols, took place while Nichols and Patrick White, a foreman boiler-maker of the defendant, were inside of a still riveting a patch on the bottom thereof with red-hot rivets. Some gas in the still exploded and both men were so badly burned that they died a few days thereafter.

      John Proctor Clarke, for the appellant.

      Carpenter & Roderick, for the respondent.
   Barnard, P. J.:

The defendant is a distiller of crude oil. . In the process of distillation a large amount of gas is generated. Some of it was used for fuel and the remainder was designed to escape into the running room, which was at all times dangerous if a lighted candle was brought there when the machinery was in operation. One of the stills needed repairs. The mechanic and the plaintiff’s intestate went into it with a candle and there was an explosion and both men were instantly killed. The deceased intestate was not a mechanic, but a common laborer, and was ordered in the still by White, the mechanic, but he had worked with White before in and about repairing the stills; but whether he had been in the habit or ever went into the still is not proven. It appears that gas from the other stills in use, of which there was some twelve or thirteen, will return back into the empty still in process of repair, and that this result was occasioned by the absence of the stop-cock. This result would not be occasional and doubtful, but would happen with absolute certainty. The place in which the deceased was put to work was not a safe place. A servant takes the risk of the employment, but he has the right to rely upon the performance of the master’s duty. The rule of duty is explained by the Court of Appeals in these words: “ The rule is unqualified that a master is bound to use all-reasonable care, diligence and caution in providing for the safety of those in his employ, and furnishing for their use in his work, safe, sound and suitable tools, implements, appliances and machinery in the prosecution thereof, and keeping the same in repair.” (Benzing v. Steinway & Sons, 101 N. Y., 547 ; Busby v. The New York Lake Erie and Western Railroad Co., 107 id., 374).

The master cannot delegate the performance of this duty to another and escape liability on the ground that the neglect was the neglect of the employee, and ignorance of the defendant in the instrumentality will not excuse. (Ellis v. The New York, Lake Erie and Western Railroad Co., 95 N. Y., 546).

If the accident could have been prevented by the exercise of proper care it is negligence in the master not to have avoided the danger. Contributory negligence is generally a question for the jury. If he had the right to assume the performance of his master’s duty, there is no ground upon which he can be charged with negligence on his part which contributes to the injury. He went in the still at the request of the mechanic, White. It is true that he had refused before to go in- unless White went in first, but his suspicion was removed by the fact that on those occasions no accident happened. The inquiry made of the witness Esdale was proper. He testified for the entire two years that he had worked in defendant’s distillery there was always gas in the running room, the room connected with the still in question. The conversation with McCormack was proper. He was defendant’s superintendent, and, in respect to the question at issue, was the master. The judgment, therefore, is supported by evidence which makes out a liability against the master, and should, therefore, be affirmed, wtih costs.

Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    RHODES G. TUCKER, Appellant, v. THE PHILADELPHIA AND READING COAL AND IRON COMPANY, Respondent.

      Master and servant — employment of a servant ata freed yeaniy salary — presumption arising from the servant’s continuance in the employment after the end of the yean.

    A.n employment at a salary oí $4,500 a year imports a hiring only from month to month, and not for a year.
    Where the original hiring was hy parol for the fixed term of one year, if the employee continúes in the employment thereafter without entering into any new arrangement, either party is at liberty to terminate the contract at pleasure, and payment for the time of service is all that can be demanded.
    Appeal by the plaintiff from a judgment rendered at the Kings County Circuit, after a trial before the court and a jury, at which it was ordered thaftlie complaint he dismissed, with costs, which judgment was entered in the office of the clerk of the county of Kings on the 29th day of January, 1889.
    The plaintiff, as the assignee of one James B. McCamant, sued to recover damages for a breach of a contract for the employment of McCamant as a sales agent hy the receivers of the defendant, which obligation on the part of the receivers the defendant had assumed.

      The complaint alleged, among other things, that on or about October 1, 1880, “it was mutually agreed by and between said receivers and said James B. McOamant, that said McOamant should serve said receivers as sales agent in and about the conduct of the business and affairs of said defendant, so continued and conducted by said receivers as aforesaid, for a salary of $4,500 per annum, payable in equal monthly payments, and that said receivers should pay said McOamant for his said services his said salary in the time and in the manner aforesaid; that thereupon said James B. McOamant entered upon his employment as such sales agent, and duly performed the duties thereof until January 1, 1888.

      F. G. Cantine, for the appellant.

      William J. Kelly for the respondent.
   Barnard, P. J.:

The proof did not sustain the complain or establish a cause of action. The receivers of the defendant employed the plaintiff on the 15th of September, 1881, at the rate of $4,500 per annum, payable monthly. The salary was to be $4,500 per year, “ that was all that was said.” The plaintiff had been in the employ of the receiver before this and had resigned. After the receiver accepted the resignation he was re-employed at a higher salary. Nothing further was ever said about a term. New receivers were appointed in May, 1884, and they reduced the plaintiff’s wages twelve and one-half per cent. The property, in December, 1887, was restored to the company. The plaintiff continued with the said receivers until they surrendered the property about the 1st of January, 1888. The plaintiff was discharged and paid up to the 1st day of January, 1888. The contract with the receiver originally»did not import a hiring for a year as a term, but only one from month to month, at a yearly rate of $4,500. The plaintiff worked out the term and the contract did not renew itself at the end of the term. After that, assuming the original hiring to have been for the fixed term of one year, and it could not be made longer by parol, the agreement became an executed one. If the plaintiff continued on without a new arrangement, either party could terminate the contract at pleasure, and payment for tlie time of service is all that could be demanded. (Morrison v. The Ogdensburg R. R., 52 Barb., 173.)

Judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES H. O’CONNOR, Appellant, v. JOHN P. ADAMS, Commissioner of the Department of City Works, Respondent.

      Veter cm — appointment and retention of in office, in preference to all others.

    The department of public works of the city of Brooklyn, having made a requisition for the service of four temporary clerks, the names of the relator and of three others, of whom the relator was the only discharged soldier, were furnished by the civil service commission, and all such parties were appointed. Subsequently, the business having decreased, the relator was discharged, but the three clerks who were appointed to the temporary clerkships with the relator were retained under such appointment.

      Held, that the legislature, by chapter 464 of the Laws of 1887, intended that, in such case, the discharged soldier should be discharged the last of the temporary clerks so appointed and that he was entitled to a mandamus directing that he be reinstated in the position from which he had been discharged.
    Appeal by the relator from an order made at the Kings County Circuit, and entered in the office of the clerk of the county of Kings on the 27th day of March, 1889, denying his motion for a mandamus to compel the respondent, John Adams, commissioner, to recognize Charles H. O’Connor,’ the relator, as a clerk in the bureau of water rates in the department of city works, and as the person entitled to have and hold said position and employment, and to receive the salary attached to said position and employment, and to have and enjoy the emoluments thereof.

      Sidney Williams, for the relator.

      William T. Gilbert, for the respondent.
   Barnard, P. J.:

The relator is an honorably discharged Hnion soldier. He passed the examination of the civil service commission of the city of Brooklyn and was put at the head of the eligible list. In May,. 1888, the department of public works of the city made a requisition for the services of four temporary clerks. The name of the relator and of three others were cited, who were all appointed; relator was the only soldier. The papers showed that in the month of May in each year the water rates are payable and that the necessities of the public business required the services of temporary clerks. To meet this difficulty the relator was appointed, and in the month of June, 1888, the business had returned to, its usual volume, and could be performed by the regular clerks; the rélator was discharged because the temporary office had become useless. By the terms of the civil service act he was put at the head of the eligible list again. No appointment for permanent employment has been since made, but the clerks who were appointed to the temporary clerkship with the relator have been-retained under that appointment. If all these temporary clerks had been discharged, the case would fall with the case recently decided — People exrel. Wardrop v. Adams (51 Hun, 583.) It was held in that case that the city was not bound to continue an employment which had become a sinecure. The present question is different. Four clerks are appointed to a- temporary position and for no definite term. The soldier had the preference in the appointment. (Chap. 464 of Laws of 1887.) The words of the act are broader than the appointment only. Soldiei-s shall be preferred for “ appointment and employment.’ The legislature by this language intended that the relator should be discharged last of the four temporary clerks, when he was the only soldier on the list.

The order should, therefore, be reversed, with costs and disbursements, and motion granted, with ten dollars costs.

Dvkman, J., concurred.

Order reversed, with costs and disbursements and motion granted, with costs.


text:
    GEORGE W. SMITH and MORRIS V. RANDALL Appellants, v. WILBUR H. PROCTOR and Others, Trustees of School District No. 2 of the Town of Newtown, in Queens County, State of New York, and JOHN LAKE, Collector of said School District, Respondents.

      School district meeting — vote by which the building of a new school-house maybe authorized.

    The question, at a meeting of the inhabitants of a school district, as to whether a new school-house shall be built, may properly be determined by the vote of a majority of those present at such meeting, even if such majority be less than a majority of the whole number of the inhabitants of the district.
    Appeal by tbe plaintiffs from a judgment rendered upon a trial at tbe Queens County Circuit, before tbe court without a jury, and entered in tbe office of tbe clerk of tbe county of Queens on the 2Ytb day of July, 1888, by which it was adjudged that an adjourned district meeting, held in school district No. 2, in tbe town of New-town, in Queens county, October 15, 1886, was duly convened and legally held, and that a resolution adopted at said meeting, directing tbe bonding of said district, having received tbe affirmative voté of a majority of tbe electors of said district present and voting, was duly and legally adopted, as required by tbe provisions of section 19 of title Y of tbe consolidated school act of 1864, and authorized a bonding of said district.
    Tbe action was brought by certain taxpayers of school district No. 2 of the town of Newtown against tbe trustees and collector of said district, to secure an injunction restraining them from issuing bonds of tbe said district for $12,000, pursuant to an alleged resolution of a school district meeting authorizing tbe same, on tbe ground that such alleged resolution bad not been passed by a majority vote of all tbe inhabitants of tbe district entitled to vote.

      Henry A. Monfort, for the appellants.

      M. D. Gould, for the respondents.
   Barnard, P. J.:

There is no question made as to tbe regularity of tbe meeting at which tbe vote was taken. It was regularly called by instruction of tiie annual meeting for the purpose of voting upon the advisability of building a new school-house. (Chapter 567, Laws of 1875, § 14.) At the meeting so called a new school-house was appraised, and at an adjourned meeting bonds were authorized to secure the money which was to be payable by equal installments. At each of these meetings there was not present a majority of all the inhabitants of the district. The question presented is whether there must be a majority vote of all the inhabitants or only a majority vote of those present at the meetings. The law required a notice of the meeting, with a notice of the business to be brought before the meeting, to be served on each inhabitant of the district. This was done. The section under which the-vote was taken is as follows: “Whenever a majority of all the inhabitants of any school district entitled to vote, to be ascertained by taking and recording the ayes and noes of such inhabitants attending at any annual, special or adjourned school district meeting legally called or held, shall determine that the Hum proposed and provided for in the next preceding section shall be raised by installments, it shall be the duty of the trustees of such district * * * to issue bonds or other evidences of indebtedness therefor.” * * * (Chap. 555, Laws of 1864, title 7, art. 2, § 19, as amended by chap. 528, Laws of 1881.) “ The majority of the votes of those present ” is sufficient to charge the taxable property for the purchase of a school-house. (Chap. 555, Laws of 1864, art. 1, title 7, § 15, sub. 7.) To change a site “ a majority of all the inhabitants of such district present and entitled to vote, to be ascertained by taking and recording the ayes and noes,” is sufficient. (Sec. 20.) To sell the old site “ a majority of the votes of those present” is only needed. To create a union free school “two-thirds vote of those present and entitled to vote ” is called for. (Title 9, § 5.) “ A majority of the voters ” controls expenditure in union free school districts, including building new school-houses and including payments by installments, as in case of single districts.

The vote by majority of voters present is the general rule, and the wording of the section in question is addressed to that end. The majority of the inhabitants of the district is to be determined by "ages and names of those attending. There is no other way of ascertaining the majority of the inhabitants provided for in the law, which would have been required by the legislature, if the real majority of all the inhabitants was an important factor in the vote at the meeting. The vote by a majority of those present, even if the majority was less than the majority of the whole number of the inhabitants of the district •— is sufficient.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    KATE F. MONJO, Respondent, v. DOMINGO M. MONJO, Appellant.
    Divorce— right of a husband, to whom, the custody of the child is given by the decree, to have the ivife arrested for refusing to give up the child, considered — damages for false imprisonment.

    A husband procured an absolute divorce from his wife, and by the decree entered in the action was awarded the custody of their children, one of whom was after-wards found by the husband in the possession of the mother, who refused to give the child up; a policeman was finally called and by direction of the husband arrested the mother and conducted her to the station-house, where she remained all night and was discharged by the police Justice the next morning, when the child was given up to the husband.

      Held, that the husband was liable to the mother for the damages resulting from her arrest and confinement in the station-house.
    That he could have taken the child by force in a gentle manner, but he could not arrest the mother because she refused to voluntarily give up the child.
    Appeal by the defendant from a judgment rendered at the Kings County Circuit, after a trial before the court and a jury, by the latter of which a verdict was rendered in favor of the plaintiff for the sum of $3,000 damages, which judgment was entered in the office of the clerk of Kings county on the 25th day of April, 1889 ; and, also, from an order denying the defendant’s motion for a new trial made upon the minutes of the court upon all the grounds provided for in section 999 of the Code of Civil Procedure.
    The action was brought to recover damages for an alleged false imprisonment of the plaintiff by the defendant on the 14th day of August, 1888. The parties to the action had formerly been husband and wife and had been divorced by a decree of the Supreme Court of the State of New York in favor of the husband against the wife, by the terms of 'which decree the custody of the children was given to the husband and father.

      George W. Wingate, for the appellant.

      James N. Lyddy, for the respondent.
   Barnard, P. J.:

The general facts which surrounded this case are undisputed. In April, 1888, the defendant procured an absolute divorce from the plaintiff. The decree awarded the custody of the children to the defendant. He had two of them, but the plaintiff kept from him the possession of the youngest. In August, 1888, the defendant found his child with the plaintiff, her mother, in a restaurant in New York. The defendant had the decree which entitled him to the child, and the wife, the plaintiff, refused to give her up. A policeman was finally called in, and the dispute drew a crowd of people. The policeman finally, by direction of defendant, arrested the plaintiff and conducted her to the station-house. The sergeant in charge took a minute of some charge, it does not appear what, and the wife still refusing to give up the child, she was locked up in the station-house all night with her little daughter, the subject of the dispute. On the next morning the police justice gave up the child to the defendant and discharged the plaintiff. The only dispute is as to the fact whether the arrest and detention was caused by defendant’s order, and the jury have found for the plaintiff upon the issue. The defendant mistook his remedy. He could have taken the child by force, if the decree allowed, in a gentle manner, but he could not arrest the plaintiff because she refused to voluntarily give up the child. Assuming an illegal arrest, the damages are not excessive. The plaintiff was taken to a public j>laee and conducted through a public street to the station-house, and detained in a lock-up or cell under surroundings which would humble and humiliate her. There was no evidence tending to show that the arrest was made, for a breach of the peace or for acts which tended to a breach of the peace. A request to charge must rest upon evidence. The jury may find a fact against the statement of both the parties, it is true, but there must be evidence in the case somewhere which justifies such a finding. This evidence is nowhere to be found in this case. The arrest was a mistake in the law on the part of the police officer, and the only question was whether the defendant directed it.

The judgment should, therefore, be affirmed, with costs.

Dykman, J., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    PHILIP RILEY, Appellant, v. JOHN O’BRIEN and HERMAN CLARK, Respondents.

      Master and servant —liability of the farmer for cm injury to the servant while acting under direction of a superintendent — when the superintendent is not doing the master's duties.

    Where a fellow servant, whose act or omission causes injury to a co-servant, was at the time representing the master in doing the master’s duty, the master is liable, if, although a superintendent, he was simply performing the work of a servant, the master is not liable.
    The defendant’s superintendent, in the construction of an aqueduct, directed the plaintiff to get out from a pile some brick with which to load a car. The plaintiff called the superintendent’s attention to the shaky condition of the pile of brick, and was told: “All right, I will attend to that.” The plaintiff continued the work, the pile of brick cracked and a covering of boards on the pile slid off and broke the plaintiff’s leg.
    There was no proof that the superintendent was an incompetent foreman, or that the brick was badly piled or unskillfully covered.

      Held, that the master was not liable in damages for the injuries sustained by the plaintiff.
    Appeal by the plaintiff from a judgment rendered at the ’Westchester Circuit, after a trial before the court and a jury, at which the coiu-t directed that the complaint should be dismissed upon the merits, and judgment he rendered for the defendant, which judgment was entered in the office of the clerk of the county of Westchester on October 11, 1888.
    The action was brought hy the plaintiff to recover for injuries which he claimed to have received by the falling of some brick, and tlie boards covering them, from a brick pile at which he was working while in the employment of the defendants. It was claimed that the defendants negligently and carelessly permitted large planks covering a portion of said pile to fall upon the plaintiff by reason of which his leg was broken.

      William Riley, for the appellant.

      E. T. Lovatt, for the respondents.
   Barnard, P. J.:

The liability of the master for injuries occasioned an employee by the immediate act of a co-servant, and not by the personal act or omission of the master, turns upon the character of the act. If the fellow servant whose'act or omission caused the injury was at the time representing the master in doing the master’s duty, the master is liable. If, on the other hand, he was simply performing the work of a servant, in his character as servant and employee merely, the master is not liable. Assuming that the plaintiff was an employee of the defendants, the case shows that one Thomas Jones was the defendants’ superintendent at shaft No. 11 of the new Croton aqueduct. ITe told the plaintiff to get out some brick from a pile to load a car. The plaintiff called Jones’ attention to the shaky condition of the pile of brick and was told it was “all right, I will attend to that.” The plaintiff continued work, the pile of brick cracked, and the covering of boards on the pile slid off and broke the plaintiff’s leg. The question is whether the master is liable for the injury; there is no proof that Jones was an incompetent foreman and none that the brick was either badly piled or unskillfully covered. ' The case seems to show only a neglect of a fellow servant. The grade of the superintendent does not vary the. principle that an employee assumes the risk of the service, and that the neglect of an employee gives no cause for complaint against the master. (Crispin v. Babbitt, 81 N. Y., 516.) The case, then, resembles Loughlin v. State of New York (105 N. Y., 159). In that case the captain of a State vessel put a workman under him in a dangerous place under a bank. When the bank was loosened below, the part overhanging fell on the plaintiff. This was held to be the act of a fellow servant. The captain had power of direction, but it was in respect to tbe manner of proceeding with the work which was committed to Ms discretion and judgment.

The judgment should, therefore, be affirmed with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    THE BROOKLYN MASONIC MUTUAL RELIEF ASSOCIATION v. SARAH HANSON, Appellant, PHILIP W. MARETT, Jr., and Others, Respondents.

      Insurance in a mutual benefit association — designation by the inswred of‘ ‘ Ms family ” as the benefician'y — who constitute the family

    Under a policy of insurance, issued by a mutual benefit association, upon the life of one Peter Hanson, bis family was designated as the beneficiary thereof. The family, at that time, consisted of Hanson, his wife and one daughter. The daughter afterwards married and died, leaving her husband and four children surviving her, having, down to the time' of her death, resided, together with her husband and children, with her father, but after her death her husband and children loft the family of her father and never resided there after that time. Peter Iianson subsequently died.

      Held, that the wife and daughter of the deceased were the beneficiaries under the policy, because they constituted the family of the assured when the contract was consummated; and when the daughter died the mother, who was all that was left of the family for whose benefit the contract and designation were made, became entitled to the benefit of the appointment and the proceeds of the contract of insurance.
    Appeal by the defendant Sarah Hanson from a judgment entered upon a decision of the Supreme Court, rendered at a Special Term thereof, in an action of interpleader brought by the plaintiff, a mutual benefit society, for the purpose of determining which of the defendants were beneficiaries under a contract of insurance issued by the plaintiff upon the life of one Peter Hanson.

      Charles J. Patterson, for Sarah Hanson, appellant.

      George G. Barnard, guardian ad litem, of infant defendants, respondents.
   Dykman, J.:

Tlie plaintiff in this action is a charitable domestic corporation, organized for purposes of mutual benevolence. According to the constitution and by-laws of the association, within forty days after the presentation of satisfactory proof of the death of a member to the board of directors, there is due and payable to the persons entitled to the same as many dollars as there shall be members who pay the assessment levied on account thereof, not exceeding the sum of $1,000. The sum so payable is to be paid to such person or persons as shall appear by the books of the association who have been designated as the beneficiary. There are other provisions for payment to other persons where there has been no designation of a beneficiary, but they have no application to this case.

On the látli day of September, 1872, Peter Hanson became a member of the association, and in his application for such membership he designated his family as the beneficiary thereof. At that time his family consisted of himself, his wife and one daughter, whose name was Sarah Elizabeth Hanson. The daughter afterwards married and died in July, 1886, leaving her husband and four children surviving. Down to the time of her death she resided, with her husband and children, with her father, but after her death her husband and children, left the family of her father and never resided there after that time.

Peter Hanson died in the city of Brooklyn in February, 1887, and upon the presentation of satisfactory proof of such death to the board of directors of the association an assessment was levied upon the members in accordance with the constitution and by-laws of the association, which resulted in the collection of $915, which is now payable by the plaintiff to the person or persons entitled to the same by reason of the membership and death of Peter Hanson.

Peter Hanson left his widow Sarah Hanson and four grandchildren, to whom reference has already been made, surviving him, and upon his death his widow claimed the fund, and the children of his deceased daughter claim to be entitled to the same also. Thereupon this action was commenced by the plaintiff to determine the rights of the respective claimants, and a trial has been had resulting in a judgment which awards one-third of the fund to the widow and one-sixth thereof to each of the grandchildren. The widow has appealed from the judgment, and the case is before us upon such appeal. It will be well at the outset to determine the rights of the original parties. The constitution and by-laws of tbe association and tbe application and admission of tbe member constituted the contract which now controls tbe rights of tbe contending parties. Tbe deceased man agreed to pay certain assessments and tbe association agreed to pay a sum of money to bis family, and it was bound to pay to no other person. Tbe family so designated, aside from tbe member himself, was made up of bis wife and daughter, and be could derive no benefit from tbe fund because it was not payable and could not be realized until bis decease. He bad no interest in tbe fund, and possessed only a power to appoint tbe ultimate beneficiary ; and tbe rights of tbe party or parties so appointed by him became vested as soon as they were specified, subject to be divested by a revocation of such appointment by tbe member in bis lifetime by tbe designation of some other recipient upon tbe books of tbe association. No such change was made, and so the wife and daughter were tbe beneficiaries because they constituted tbe family of the member when tbe contract was consummated. Their interest in tbe fund was unlimited, because tbe designation included them as a class or an entirety; and when tbe daughter died tbe member was still alive and tbe mother was all that was left of tbe family for whose benefit tbe contract and designation were made, and she thus became alone entitled to tbe benefit of tbe appointment and tbe proceeds of tbe contract.

We deem it plain that membership was sought and accepted by tbe deceased for tbe benefit of tbe persons who constituted bis household or family at tbe time of bis application, and for their relief -in case of bis death ; and as tbe widow is tbe only surviving member of that family, she alone fills tbe meaning of tbe term family, as employed by tbe member in bis appointment and designation, and is entitled to tbe whole fund in controversy. While it is true that the case is novel and must be decided upon principle rather than authority, yet, we think, tbe conclusions reached are in harmony with tbe doctrine of tbe following cases, so far as they have any application : Greeno v. Greeno (23 Hun, 478); Day v. Case (43 id. 179); Story v. Williamsburgh, etc., Association (95 N. Y., 474); Hellenberg Case (94 id., 580).

This examination leads us to the conclusion tliat the widow is entitled to the whole fund in question, and as the facts are undisputed, the judgment should be reversed, and judgment should be entered in favor of the widow, awarding to her the entire fund.

Pratt, J., concurred.

Judgment reversed, and judgment ordered that the widow get the whole fund. No costs on this appeal.