text:
    In the Matter of the Final Judicial Settlement of the Account of RICHARD A. KENWORTHY and Another, as Executors of THOMAS KENWORTHY, Deceased.

      Mxecutors and trustees’ commissions — assessment against an “ estate" — executors allowed to retain moneys for a tax not due.

    Where the clear value of the personal estate of a decedent exceeds one hundred thousand dollars, each executor, not exceeding three, is entitled to full commissions, subject to an apportionment of the commissions among the executors, except possibly where the executor has been guilty of misconduct.
    Where executors receive from their estate funds to be held by them as trustees, they are entitled, as trustees, to half commissions for receiving the moneys, and to half commissions upon payments made by them as trustees out of the moneys. Amble, that a tax assessed against “the estate” of a person is void. Property should be assessed against the owner whether held absolutely or in trust.
    Where tax commissioners have made an assessment upon personal property, part of the estate of a deceased person, but at the time of the accounting the tax has not become a lien, the Surrogate’s Court may properly direct the executors of the estate to withhold a sum which will pay the tax if it prove to be valid.
    Appeal by Martha J. Kenwortky, individually and as executrix •of Thomas Ken worthy, from that part of a decree, entered in the office of the surrogate of Dutchess county on the 4th day of September, 1891, which denied her commissions, also from that part which gave the executors, as trustees, commissions on a trust fund of $40,000, and which authorized the trustees to accept and receive, as part of said trust funds, certain bonds and mortgages, and directed that said trust fund be charged with two-thirds of a certain tax directed to be paid from income.
    The estate, as it appeared in the inventory, was $168,058.41, of which $40,000 was a trust fund. Upon the trial it was stated by the counsel for the executors that the estate of Thomas Kenworthy deceased, was assessed upon the assessment-roll of the city of Poughkeepsie for the present year at $36,000. That he, with the executors, had sought to have that assessment reduced, but could not succeed. That the assessment was to “ the Estate of Thomas Ken-worthy.” N one of these statements were questioned by any party to this proceeding.
    The account of the executors was filed about July 21, 1891, and before the time when, by the statute relative to the city of Poughkeepsie (where the testator died), the tax became a lien or payable. The decree of the surrogate contained the following provision :
    “ And it appearing that the estate of Thomas Kenworthy has been assessed in the city of Poughkeepsie for $35,000, and that the tax on this amount will be payable in the month of January, 1892, it is ordered and adjudged that the trust estate of $40,000 be charged with two-thirds of said tax, to be paid from the income, and that the said executors retain the sum of $250 from the residuary estate, from which shall be paid one-third of said tax, and the balance, if any, thereafter distributed among the residuary legatees, according to their respective rights.”

      W. Farrington, for Martha A. Kenworthy, appellant.-

      Cha/rles F. Cossum, for the executors, respondents.

      Jacob Halstead, for the residuary legatees and guardian ad Utem> respondents.
   Pratt, J.:

Section 2736 of the Code provides that where a decedent’s personal estate amounts to $100,000, or more, over all debts, each executor, not exceeding three, is entitled to full compensation, -unless the court shall apportion the aggregate according to the services rendered. I do not understand that the power to apportion includes the power-totally to abate any executor’s compensation except, possibly, in the case of misconduct, resulting in loss, or where the net estate is less than $100,000.

There seems to have been no occasion to apportion the aggregate in this case, at least no such thing was done, and nobody complained on that account. Two executors have received their full compensation. The executrix was not allowed any compensation. I think this was wrong. The statute as applied to this ease says that she was entitled to full compensation, because there was nothing taken from her compensation by any apportionment. She qualified and did do some acts in administration.

The basis for her commissions is the amount of the estate. I can see no other meaning to the words “full compensation.” This “ compensation ” is by means of commissions. Full compensation, therefore, means “full commissions.” And that is based on the whole estate irrespective of which executor actually handled it. (Valentine v. Valentine, 2 Barb. Ch., 430.)

I do not understand the case of Manice (31 Iiun, 119) to be in conflict with these views. That was a ease of two executors who had administered an estate. It does not appear that the net estate amounted to $100,000. Hence there was but one commission to be allowed, and that was awarded to the executor who did the work. Here, as already observed, the statute is peremptory and gave this executrix full commissions, because nothing was taken from her commissions by apportionment.

I do not understand that the surrogate has allowed full commissions to the trustees as trustees, but one-half commissions for receiving the trust and one-half for paying out such a part as they have paid. This seems sanctioned by authority.

Assuming that the rax was a proper charge, the disposition which the surrogate made of the matter was just and fair. We cannot now undertake to hold the tax invalid as against the jniblic authorities, and it may be that we could not lawfully do so when we come to hear what they have to submit. But it would seem from the facts now disclosed that it may well be doubted if any tax is payable.

There seems to be an irregularity in the assessment which, under Trowbridge v. Horan (78 N. Y., 439), will render it invalid. The tax authorities cannot tax the estate of a decedent. They may tax the property against the owner thereof, whether held absolutely or in trust. They do not seem to have done that, but to have assessed the estate as such. This form of assessment was held invalid in Trowbridge v. Horan, and I do not see why it was valid in this instance. I cannot, therefore, concur with the learned surrogate in actually charging the parts of this tax on shares. Non constat it may never be paid. For aught that I can now see, it ought not to be paid. It may be, however, that when the public authorities come to be heard on this matter they may show some facts not now disclosed, which will show that this tax ought lawfully to be paid. If so, it will be time enough to direct payment thereof. The decree should, therefore, be modified by allowing the retention of the money in the proportions indicated, which shall be charged if the tax is held payable, otherwise it should be distributed among the parties entitled thereto.

In view of the fact that the appeal of the executrix is well founded, she ought to have her costs and disbursements of this appeal payable as a part of the expenses of the estate generally. The result also shows that it was reasonable that she should have the * benefit of the advice and services of counsel before the surrogate on the accounting. She was, therefore, entitled to indemnity against her expense for that cause, within the statutory limit, quite as plainly as for her traveling and other expenses.

-The decree should be resettled so as to provide for her commissions and the costs and disbursements of this appeal, and her counsel’s services within the statutory limits, as part of her expenses, and also to provide for the tax matter as herein indicated.

Barnard, P. J., and Dykman, J., concurred.

Part of decree appealed from modified in accordance with opinion of Judge Pratt, order to be settled by him.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    ELIZABETH D. De LANCEY, Respondent, v. HENRY PIEPGRAS, Appellant, and Another, Respondent, Impleaded with Others, Defendants.

      Grant from the crown, reserving rent but■ not a right to re-enter — a forfeiture may be enforced — it enures to the benefit of the people — presumption of regularity— adverse possession — a grant bounded on navigable waters.

    A grant from the crown of lands under water reserved forever a yearly rent. It contained no clause creating a forfeiture or reserving a right of re-entry. No rent was ever paid, and after the Revolution the legislature passed acts allowing redemption, and declaring that unless redeemed the lands should be sold as forfeited to the people for non-payment of rent.
    In 1826 the lands in question were sold, and were, in 1836, conveyed by the comp trailer to one Hunter, who occupied them for nearly thirty years, at the end of which time the commissioners of the land office assumed to grant them to a third party.
    In an action of ejectment, brought against such last-mentioned grantee by the successors in title of Hunter:

      Held, that payment of rent was an implied condition of the grant, although there was reserved no right of distress or re-entry.
    That this implied condition was a condition subsequent, and that the grantor had a right to enforce a forfeiture for non-payment of the rent.
    That the forfeiture enured to the benefit of the people of the State, who thereby became owners of the land.
    That the purchaser at the comptroller’s sale was not bound to show that the comptroller had complied with the statute as to giving notice of the sale, etc.
    That the court would presume that the sale made by the comptroller in 1826 was regular.
    That if any person was “in actual possession and occupancy” of the land at the time'of the sale in 1826, and did not receive the statutory notice of the sale, the defect was cured by the adverse possession of Hunter under his deed.
    That, as the people had parted with their title' in 1826, the subsequent grant of the commissioners of the land office was void.
    That a grant of land bounded by Long Island sound carried the title to high-water mark only.
    Appeal by the defendant Henry Piepgras from two judgments of the Supreme Court, entered, after a trial at the Westchester Circuit before the court and a jury, in the office of the clerk of Westchester county on the 19th day of-June, 1891, in-favor of the plaintiff Elizabeth D. De Lancey, and the defendant J"ohn Hunter against the defendant Henry Piepgras, one adjudging that the plaintiff was seized of three-quarters of certain pi’emises, and the other adjudging that the defendant John Hunter was seized of one-quarter thereof, and that'each was entitled to recover from the defendant Piepgras possession of such resjiective parts of the premises.

      James E. Steers, for the appellant.

      John Hunter, Jr., for the defendant, respondent.

      Walter D. Edmonds, for the plaintiff, respondent.
   Dykman, J.:

This is an action of ejectment for the recovery of the possession of land under the waters of Long Island sound outside of Mineiord’s island, now called City Island, in the county of Westchester. The plaintiff and the defendant, John Hunter, are children of Elias D. Hunter, deceased, and they claim the premises through him, and they have succeeded to his rights which were derived in this way:

The lands in question were included in a grant from the crown of Great Britian to Benjamin Palmer, his heirs and assigns, bearing date May 27, 1763, reserving a yearly rent of five shillings sterling to be paid to the collector at the custom-house in the city of New York yearly on Lady Day.

No rent was ever paid, and after the people succeeded to the rights of the crown the legislature of the State of New York passed a number of acts directing the grantees of lands chargeable with unpaid quit rents to come in and redeem the same, and declaring in case of failure to do so that such land should be sold as lands forfeited to the people of the State by reason of the non-payment of such rents. (Laws of 1787, chap. 76; Laws of 1788, chaj). 39; Laws of 1801, chap. 187, and Laws of 1813.)

Finally, in the year 1819, a law was passed by the legislature of the State of New York, which directed all the lands so forfeited to be sold by the comptroller of the State, after advertising such sales in the manner prescribed by the act. (Laws of 1819, chap. 222.)

The sale thus directed was postponed from time to time by acts of the legislature (Laws of 1821, chap. 24-1; Laws of 1823, chap. 104:; Laws of 1824, chap. 225, and Laws of 1825, chap. 251) until March •26, 1826, when the land was sold by the comptroller at public auction to James Yan Yeehten.

Two years were allowed for redemption, and the original purchaser, Yan Yeehten, having transferred his interest to Elias D. Hunter, a deed was executed and delivered to him by the comptroller for the premises, dated April 5, 1836.

Hunter assumed possession by renting the premises to a tenant, who continued to occupy them until about the year 1865, and built a dock upon them to facilitate his occupation.

The defendant Piepgras claims title to the premises by three grants from the commissioners-of the land office, bearing date December 3, 1863, October 21, 1875, and January 15, 1891, respectively.

In passing the acts which led up to the sale of these premises, the legislature proceeded upon the assumption of a forfeiture of the title for the non-payment of the rent reserved in the grant to Palmer, and the validity of the Hunter title depends upon the accuracy of that theory.

There is no clause in the Palmer patent creating a forfeiture or .reserving a right of re-entry for non-payment of rent, the language being : “ Yielding, rendering and paying therefore yearly and every year forever * * * the yearly rent of five shillings sterling.” But we think the payment of such rent was an implied condition upon which the land was held.

The grant to Palmer was a conveyance in fee, reserving a perpetual rent, or, as it is sometimes expressed, it was the letting of lands to farm in fee simple. But the grant reserves no right of distress or re-entry, and, therefore, the rent is called a quit rent, because at the common law the lord could not distrain therefor.

In such grants the rents were always considered as conditions annexed to the grant by implication of law, and if the tenant was in default for the non-payment of rent the lord might resume the fee. (4 Kent’s Com., 122; Wash, on Beal Prop. [5th ed.] ; 6 Gerard’s Titles [3d ed.], 118.

“ Estates which men have upon condition in law are such estates which have a condition by the law to them annexed, albeit that it be not specified in writing, * * * and such condition as is intended by the law to be annexed to anything is as strong as if the condition were put in writing, * * * also estates of lands and tenements may be made upon condition in law, albeit upon the estate made there was not any mention or rehearsal made of this condition.” (Littleton, §§ ,379, 380.)

A reservation of a right to re-enter for non-payment of rent was not an essential requisite to the right to maintain ejectment in the event of a breach. (4 Kent’s Com., 123.)

The condition implied in this case was a condition subsequent and followed the vesting of the estate, and the rent reserved furnished the grantor with a vested interest and a right to enforce the forfeiture.

The act of. 1826, which directed a sale of these lauds by the comptroller of the State, directed him to give notice of such sale in certain ways,, and the appellant now contends that proof of compliance with such direction was necessary to establish the validity of the comptroller’s deed of conveyance given in pursuance of such sale, but the contention is erroneous.

Under our conclusion the land had been forfeited to the crown before our Revolution of 1776, and that forfeiture had enured to the people of this State, who thus and then became the owner of the premises. Being such owner the State, through its legislature, appointed the comptroller its agent to sell the land and gave him certain directions respecting his mode of procedure in making such sale. We may presume that he followed his instructions, because it was his official duty to do so, but whether he did or not is quite immaterial, so far as a purchaser at his sale is concerned.

The sale of the land in question bears no analogy to sales for unpaid taxes. Such sales are in derogation of private right designed to divest the owner of .his title, and a strict observance of the requirements of the statute is essential to their validity.

Under our system of jurisprudence the right to life, liberty and property is protected with great jealousy and cannot be invaded without the observance of all the safeguards provided for its protection. No such principles or rights are involved in this sale, which, reduced to simplicity, is a sale of land by an agent appointed by the owner, with certain instructions respecting the formalities of the sale which do not affect tlie power. The power to sell was ample, and it was fully executed and no one can complain of the disobedience of instructions by the agent, if any there was, except the owner.

The deed of conveyance is in pursuance of the power and is conclusive evidence of the regularity of the sale.

In relation to the requirement of notice of the sale to a person in “ actual possession and occupancy ” of the land sold it is sufficient to say, first, that no such possession or occupancy was shown, and, second, if there was any omission in that respect, the defect was cured by the long possession of Hunter under his deed of conveyance, which was open and adverse to all.

As the appellant endeavors to bring the Pell patent to his assistance, it will be necessary to make some examination of that instrument. It was a grant of land situated on the main land, bounded and described as follows: “ All that certaine tract of land upon the maine lyeing and being to the eastward of Westchester Bounds. Bounded to the Westward with a river called by the Indians Aquecoiiounck, commonly known to the English by the name of Hutchinson’s River, which runeth into the Bay lying between Throgmorton’s neck and Anneliooke’s neck, commonly called Hutchinson’s Bay, bounded on the East by a Brooke called Cedar Tree Brooke or Gravelly brooke, 'on the south by the Sound which lyeth between Long Island and the maine land.” With all the islands on the sound not before that time granted or disposed of lying before that tract of land so bounded. This description is taken from the Pongan charter of confirmation to John Pell, dated October 20, 1687.

The grant is bounded by the sound, which was a navigable tide water, and carried the title to highwater mark only. (3 Kent’s Com., 432; Gould v. R. R. Co., 6 N. Y., 522; Brookhaven v. Strong, 60 id., 65.)

As the land granted to Palmer was below high-water mark, there was no repugnance or incompatibility between the two grants, and the appellant can derive no benefit from the patent to Pell.

The cases of Rogers v. Jones (1 Wend., 237); Brookhaven v. Strong (supra) and Robins v. Ackerly (91 N. Y., 98) are cited by the appellant to show that the grant to Pell must be construed to include the land under' the waters of the sound, hut those cases only decide that land under water will pass if it lies within the bounds of the grant and they are, therefore, unavailing, as we have already seen that the lands in question were not included within the boiurdaries of the grant to Pell.

Neither is there any force in the insistence of the appellant that Palmer received his grant in trust for others, because it plainly invested him with the absolute title.

It is to be said, in relation to the claim of the appellants, that if our position on this question is correct, then the grants under which he claims conveyed no title, as the State had before that parted with all its interest and had nothing to grant.

Our conclusion is in favor of the plaintiff, not only upon a careful and critical examination, but upon a broad and comprehensive view in the light of reason and justice.

The crown made an absolute grant to Palmer in fee, reserving rent, payable at a specified time and at a designated place. The rent was unpaid, and the lands were forfeited to the crown for such nonpayment. Then the Revolution intervened and the people became vested with the rights of the crown, and the legislature declared the forfeiture and sold the lands and conveyed-them to Hunter, who used and occupied them for thirty years. His title came to the plaintiff and the defendant-John Hunter.

The appellant has three water grants from the commissioners of the land office, all of which are void, because the State had parted with its title long years before their date.

We find no ground for hesitation, and the judgment and order denying the motion for a new trial should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    HARRIET E. QUEREAU, Respondent, v. HENRY L. BROWN, Appellant, Impleaded with Others, Defendants.

      Practice — an order overruling a demurrer — no appeal lies from it — an interlocutory judgment must be entered.

    The defendant in an action interposed to the complaint therein a demurrer, which was overruled, with leave to answer in twenty days. An order to that effect was entered, hut no interlocutory judgment was entered upon the order. The defendant did not answer in the time specified. Thereupon the plaintiff moved for final judgment, which was granted.

      Held, that this procedure was improper.
    That, under section 1031 of the Code of Civil Procedure, an interlocutory judgment must he entered, and that the defendant was not in default until its entry.
    That while, under the Code of Procedure, an appeal could he taken from the order, under the Code of Civil Procedure an appeal lies only from the interlocutory judgment.
    Appeal by tbe defendant Henry L.- Brown from an order of tbe . Supreme Court, entered in tbe office of tbe clerk of the county of Westchester on the 6th day of November, 1891, granting the plaintiff a separate judgment on demurrer against said Brown, and providing that the plaintiff might proceed to trial against the other defendants, who had answered, as if Brown had answered, and that the plaintiff should recover against Brown the same judgment for damages which she recovered against the other defendants.

      Frost do Manser, for the appellant.

      Silas J. Owens, for the respondent.
   Dykman, J.:

This is an appeal from an order directing final judgment in favor of the plainiff against the defendant, Henry L. Brown, who demurred to the plaintiff’s complaint.

The demurrer was overruled with leave to the defendant to answer within twenty days on payment of costs. An order to that effect was entered, but no interlocutory judgment.

The defendant did not answer within the twenty days after the service of the order, and thereupon the plaintiff made a motion for final judgment against the defendant Brown, which was granted, and this appeal is from that order.

The order is erroneous. The defendant desired to appeal from the decision overruling the demurrer, but could not do so until an interlocutory judgment wTas entered.

The decision upon the demurrer granted the defendant leave to answer and required an intermediate judgment, and the defendant was not in default until such judgment was entered. (Code of Civ. Pro., § 1021; Liegeois v. McCracken, 22 Hun, 69; Rumsey’s Pr., 236, 237; Gray v. Rothschild, 13 Civ. Pro. R., 359.)

Under the old Code the appeal could be taken from tlie order, but now that is changed and the appeal must be from the judgment. (Gray v. Rothschild, supra; Metropolitan Nat. Bank v. Bussell, 14 Abb. N. C., 99; Cambridge Valley Nat. Bank v. Lynch, 76 N. Y., 514.)

The order should be reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.

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

Judgment reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


text:
    ANNA M. ARNOLD, Respondent, v. NORFOLK AND NEW BRUNSWICK HOSIERY COMPANY, Appellant.

      Res adjudicate— a former judgment by default — does not bar a defense of fraud in a second action on 'the sarnie contract.

    One Arnold brought an action against a corporation and recovered, under a written agreement, a judgment by default for royalties under certain patents. Arnold then brought an action to recover further royalties under the same agreement, to which the corporation answered that the agreement was procured by fraud.

      Held, that, upon the question of fraud, the former judgment was not res adjudicate.

    That that issue was not before the court in the former action, and that the corporation was entitled to an opportunity to establish the fraud as a defense.
    Appeal by the defendant, the Norfolk and New Brunswick Hosiery Company, from an order of the Supreme Court, entered in the office of the clerk of the countjr of Queens on the 13th day of October, 1891, denying the defendant’s motion for a new trial; and also from a judgment of the Supreme Court, entered in said clerk’s office on tlie 21st day of October, 1891, upon a verdict for the plaintiff, rendered by direction of the court, for $3,087.75, after a trial at the Queens County Circuit before the court and a jury.

      Walter D.. Edmonds, for the appellant.

      Blaolmell Bros., for the respondent.
   Dykman, J.:

On the 10th day of April, 1882, the parties to this action made a written agreement by which, among other things, the defendant agreed to pay to .the plaintiff $500 a month as royalties for the exclusive right to use certain patents and patent devices in relation to knit fabrics, and this action is brought to recover $3,000 for such unpaid royalties.

Before the commencement of this action the plaintiff brought a suit against the defendant for the recovery of royalties under the same agreement, to which the defendant interposed no defense, and judgment was entered in favor of the plaintiff by default for over $11,000.

Now the defendant claims to have evidence sufficient to show that the agreement, under which the plaintiff claims, was induced and procured by fraud, and that defense is set up in the answer in this case as a defense to this action; and it is said, also, in the answer that the defendant repudiated the agreement upon the discovery of the fraud.

Upon the trial of this action the plaintiff • introduced in evidence the record of the former judgment against the defendant, and moved the court to direct a verdict in her favor for the amount claimed in the complaint, with interest, upon the ground that the judgment was res adjudioata as to all matters relating to the contract, and res adjudioata as to the defense in this action.

The motion was granted, the defendant excepted, and the court directed the jury to find for the plaintiff $3,087.75, to which the counsel for the defendant also excepted.

"We think the decision at the circuit was erroneous. Fraud vitiates every transaction into which it enters, and if the contract, in question, was procured from the defendant by fraud, it will be destroyed and an opportunity should be afforded to establish that defense.

It was not litigated in the former action, and could not have been, because there was no issue before the court, and a former judgment is not conclusive as to questions not within the issues before the court. (Fairchild v. Lynch, 99 N. Y., 359, 368.)

There have been many decisions upon the question of res adjudícala, and they are not all reconcilable with themselves or with right reason and justice; but it is sufficient for its that this question now presented to us has not been determined adversely to the defendant, and we are at liberty to decide it according to the dictates of justice.

There never lias been an adjudication of this question, and if this judgment is affirmed the defendant will be deprived of all opportunity to demonstrate the fraud, and the plaintiff will reap a large reward for the successful imposition.

We cannot subscribe to such a result, we will let in the light upon this contract. If it be honest, its fairness can be made to appear, and if it be vicious, it will be nullified and we will not stifle inquiry.

The judgment and order denying a motion for a new trial should be reversed, and a new trial should be granted, with costs to abide the event.

Barnard, P. J., and Pratt, J., concurred.

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


author: Dykman, J. :

text:
    In the Matter of the Judicial Settlement of the Account of ANNA SEEBECK, as Surviving Executrix of and Trustee under the Will of JOHN H. SEEBECK, Deceased.

      Will — when “ ehilcbren ” take as a class.

    A testator, by his will, devised certain premises to his sister Anna for life, with remainder to her children in equal shares, and provided that “ in case any of such children should be dead ” their issue, if any, should take the share of the parent. The testator revoked this devise by a codicil, and directed his executors to lease the premises, and out of the income thereof to pay Anna a certain sum for life and to pay the balance thereof “ to her children ” in equal shares.
    One of the children died childless, and by his will devised all his property to his mother Anna, who demanded his share of the income.

      Held, that the children of Anna took as a class, and not individually.
    That, upon the death of a child, the surviving children took all the balance of the income in equal shares.
    Appeal by Henrietta Eicken, Anna M. Jakn and Jolm II. Tienken, devisees and legatees under the will of John II. Seebeek, deceased, from an order made by the Surrogate’s Court of Kings county, dated July.20, 1891, and duly entered in the office of said court, denying a motion to dismiss the petitions and objections of Anna M. Tienken, as executrix, and John S. Gage, as executor of Henry M. Tienken, deceased, and of the said Anna M. Tienken, individually and as sole legatee and devisee under the will of Henry M. Tienken.

      William D. Feeder and George F. Martens, for John H. Tienken, Henrietta Fieken and Anna M. Jahn, appellants.

      Theo. JY. Melvin, for Anna M. Tienken and Henry M. Tienken, executor, respondent.

      John F. BullwinMe, for Anna Seebeek, executrix, respondent.
   Dykman, J. :

This proceeding was instituted before the surrogate of Kings county to compel the surviving executrix and trustee, under the. last will and testament of John II. Seebeek, deceased, to pay over to Anna M. Tienken, individually, or to her and John S. Gage, as executors of Henry M. Tienken, deceased, the surplus income in the hands of Anna Seebeck, as such trustee, which would have been payable to Henry M. Tienken, if living.

John H. Seebeck died, leaving a last will and testament and a codicil thereto, which were proved and admitted to probate by the surrogate of Kings county, and the executors and trustees named in the will, Anna Seebeck and Abraham Lott, both qualified and entered upon the discharge of their duties. Lott is now dead, and Anna Seebeck is living.

The income, which is the subject of contention in this proceeding arose and was accumulated in the hands of the trustee, Anna Seebeck, under the nineteenth clause of the will of John IT. Seebeck, deceased, as modified by the third clause of his codicil thereto.

The nineteenth clause is as follows :

Nineteenth. I give and devise to my sister, Anna Tienken, all my property at the north-east corner of Bridge and Nassau streets, with the house and lot on Nassaii street, adjoining, in the city of Brooklyn, and also my house and lot on the south-west corner of King and Van Brunt streets, and the house and lot adjoining on Yan Brunt street, to have and to hold the same for and during her natural life, with. remainder to her children in equal shares, and in case any of such children should be dead; leaving lawful.issue him or her surviving, then I order and direct that the lawful issue of such child so dead shall take the share which his, her or their parent would have taken if living.”

The third clause of the codicil is as follows: “ I do hereby revoke and annul the nineteenth item of my said will, and in lieu .thereof I direct my said executors to let the premises described in said item, and out of the income arising therefrom to pay to my sister, Anna Tienken, the just and full sum of six hundred dollars per annum, in quarterly installments, and to pay over the balance' thereof, after paying all taxes, assessments and insurance, and for all repairs on said premises, to the children of my said sister in equal shares, I do^ hereby modify and change the twentieth item of my said will as far as to order and direct that my nephew, John H. Tienken, the son of my sister, Anna Tienken, shall only receive the income from one-fourth of my residuary estate for and during his natural life, and that the said one-fourth of such residuary estate shall go to the children of the said John IT. Tienken, at his death.”

John H. Seebeck left him surviving his widow and trustee, Anna Seebeck, his sister, Anna Tienken, and her four children, John H. Tienken, Henry M.Tienken, Matilda Jahn and Henrietta (now Ficken)

Henry M. Tienken, one of the children, died October 31, 1889, childless, leaving a last will and testament and a codicil thereto, which have been admitted to probate, by which he gave all his property to his mother, Anna Tienken. Under this will the mother claims the share of the income which would have belonged to her son if he had not died.

The question upon which the controversy depends is, whether the children of Anna Tienken took the remainder of the income individually or as a class.

By a reference to the third clause of the codicil, which modified the nineteenth clause of the last will and testament, it will be seen that it contains no words of devise or bequest either to Anna Tienken or her children. But the executors are directed to pay to Anna Tienken $600 annually out of the income, and to pay over the balance thereof ” * * * to the children. The children are not named, and are only designated as children, and that has ever been considered sufficient to show that they took as a class, if no other portion of the will contravened such intention. (Ferrer v. Pyne, 81 N. Y., 281.)

Again, the children are not numbered, and there is no direction to divide the balance of the income and pay a certain portion to each child! Their individuality is sunk and obliterated and they are ¡consolidated into a class.

The payment is to be made to the children, and there is nothing to show that the word was not employed in its ordinary, primary sense, and it does not, therefore, include grandchildren or legatees or devisees. (Palmer v. Horn, 84 N. Y., 521; Shannon v. Pickell, 55 Hun, 131.)

The executors are directed to pay over the balance to the children, ¡and they can make payment to no other person; and so long as there are children of Anna Tienken in existence during her lifetime they must receive the balance of income in equal shares.

In the case of Magaw v. Field (48 N. Y., 668) the language of the will was: “I give, devise and bequeath to the children of Van Brand Magaw, late of Gravesend, deceased, all that certain piece or parcel of land, * * * to have and to hold the same to the said children, their heirs and assigns forever.”

■ At the time of the execution of the will there were seven children of Yan Brand Magaw living, but all of them had died but two before the testator’s death. The two living children claimed the whole estate, and brought this action of ejectment against the children of the deceased children of the testator. Held, that the devise was to a class and only the two surviving children took under it.

In the case of Hoppock v. Tucker (59 N. Y., 204) the testator, by the seventh clause of his will, directed his executors to divide the residue of his estate into six equal parts, and- then the eleventh clause of the will read as follows:

Eleventh.' Out of one other of such equal sixth parts 'or shares I do give and bequeath the sum of $10,000 unto my grandson, Edward A. Hoppock, son of my son Moses Allen Hoppock, and the remainder of the said last-mentioned equal sixth part or share-of my said residuary estates and property, I do give, devise and bequeath in equal proportions, share and share alike, unto John Compton Tucker, Hubert Y. W. Tucker and William Edgar Tucker, the children of my deceased daughter Ann Maria, late wife of John C. Tucker.”

In speaking of this provision, Chief Justice Church, who wrotfe the opinion of the court, said: “We * * '* have arrived at the conclusion * * * that the bequest of one-sixth of the residuary estate * * * to the children of the testator’s deceased daughter Ann Maria, was intended as a bequest to them as a class, and not as. individuals, and that the specification of their names must be subordinated to that intent. * * * The description by names is a perfect bequest to them as individuals, while the other description as children of the deceased, daughter, standing by itself, ie a perfect bequest to them as a class.”

Our conclusion, therefore, is that by the nineteenth clause of the will, as modified by the third clause of the codicil, Anna Tienken, the sister, was to receive $600 a year, from the income of the real property, during her natural life, and the remainder of such income, after the payment of taxes and assessments, was to be paid over to her children, and if any of them should die during the lifetime of their mother the survivors were to receive such balance in equalshares.

The order appealed from should be reversed, -with costs, and the proceedings should be remitted to the surrogate.

Pjratt, J., concurred.

Order of surrogate reversed, with costs, and the proceedings remitted to surrogate.


author: Pratt, J.:

text:
    GERALD McMURRAY, Appellant, v. ANDREW McMURRAY and Others, Respondents.

      JSvidence — possession by a mortgagor' of a bond and mortgage — presumption of payment —personal transactions 'with a deceased mortgagor.

    A bond and mortgage, given in 1878, which provided for the payment of the principal sum secured thereby in 1878, was proved to have been in the possession of the mortgagor in 1876, and to have remained in the possession of himself or his agent for fifteen years. Some years after the death of the mortgagor the bond and mortgage came into the possession of the mortgagee, whose assignee undertook to foreclose it. The mortgagor was not shown to have been insolvent at any time, and no demand upon him for payment by the mortgagee was proved.
    Held, that the facts afforded a very high degree of evidence that the bond and mortgage had long been satisfied.
    That the mortgagee was incompetent, under section 839 of the Code of Civil Procedure, to testify that he had never been paid any money on account of the mortgage.
    Appeal by the plaintiff Gerald McMurray from a judgment of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 23d day of June, 1891, in favor of the defendants dismissing the complaint upon the merits, declaring a mortgage attempted to be foreclosed no longer a lien upon the land described therein, and directing that it be canceled of record.
    Upon the trial of the action the mortgagee was asked :
    Q. “Is that a copy of the paper you received from the mortgagee ? ” (Question excluded. Exception.)
    Q. “ Have you ever been paid the consideration of the mortgage ? ” (Question excluded. Exception.)
    Q. “ Did you ever receive any money on account of that mortgage ? ” (Question excluded. Exception.)
    The mortgagor died three or four years before the trial in 1891.

      The justice before whom the action Avas tried found, among other things, as follows:

      Third. I find that Bartholomew McMurray, the mortgagor, died three or four years since; that the said Bartholomew McMurray, the mortgagor, had the bond and mortgage in his possession from the year 1876, and delivered the same to Mrs. Mary Gallagher, at the city of Poughkeepsie, to keep for him, and that upon his death said Mrs. Mary Gallagher delivered the same to the widow of said mortgagor, who is now deceased, and that the defendant Richard Barrett, now the general guardian of the minor children of said mortgagor, who are all defendants in this action, has had the possession of said bond and mortgage up to this day and date, since the death of said widow, and now produces the same upon this trial.

      G. A. G. Barnett, for the appellant.

      Horace D. Hufctit, for the respondents.
   Pratt, J.:

This action was brought to foreclose a mortgage given May 26, 1873, by BartholomeAV McMurray and wife to AndreAv McMurray, to secure the payment of $2,000 upon the 26th of May, 1878, interest to be paid annually, June first each year, at thb rate of seven per cent; a bond for such sum accompanied the mortgage, Avith condition as above.

The complaint shows that the mortgagor and his Avife Avere each deceased at the time of the trial, and the defendants in the action Avere the children of the mortgagor. The mortgagor died three or four years since, and subsequently his wife died. The defendants are all infants and children of the mortgagors, except defendant Edmonds, a tenant, and Richard Barrett, who is the grand-parent of the infants and their general guardian.

It appears that Bartholomew McMurray was in the habit’ of stopping at the New York Hotel, in the city of Poughkeepsie, and that some fifteen years or more prior to the trial (1891), he (the mortgagor), gave to’ Mrs. Gallagher, the landlady, some papers to keep for him. She kept them for fifteen years or more, and when she heard the mortgagor was dead sent them by mail to the mortgagor’s Avidow, at Dover Plains, and when she died Richard Barrett, her father, found them in the house. The mortgage and bond were in form assigned by Andrew McMurray, the original mortgagee, to Gerald McMurray February 11, 1890, who is the plaintiff in this action.

The great lapse of time that the mortgagor had been in the undisputed lawful possession of this bond and mortgage, .and that no effort-had ever been made to collect either interest or principal by the mortgagee, affords á very high degree of evidence that if the mortgage and bond ever had any validity it had long been satisfied. (Giles v. Baremore, 5 Johns. Ch., 545; Jackson v. Sackett, 7 Wend., 94; Hill v. Gayle, 1 Ala. [N. S.], 275; Levy et al. v. Merrill, 52 How. Pr., 360; Jackson v. Pratt, 10 Johns., 387; Clark v. Hopkins, 7 id., 556.)

The question put to the mortgagee clearly called for testimony of a personal transaction with the deceased mortgagor and fell within the prohibition contained in section 829 of the Code of Civil Procedure.

The evidence in this case points to but one conclusion, to wit, that the mortgagor and his wife being dead, an attempt is made to collect this bond and mortgage from their children, who are assumed to be entirely ignorant of the circumstances surrounding the transaction.

The conduct of the mortgagee is utterly inconsistent with any honest claim in this suit. (Bergen v. Urbahn, 83 N. Y., 49.) He had no bond and mortgage for fifteen years, and never made any claim for principal and interest during all this time, although, so far as appears, the mortgagor was amply responsible.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    JOSEPHINE VANDEWATER, as Administratrix, etc., of WILLIAM P. VANDEWATER, Deceased, Respondent, v. THE NEW YORK AND NEW ENGLAND RAILROAD COMPANY, Appellant.

      Railroads — the statutory signals ■ — they must be given at a fa/rm crossing — liability for a failure to do so — Penal Code, sec. 421.
    The Penal Code (§ 421) makes the failure of an engineer to ring.the bell and sound the whistle, at least eighty rods from, any place where a railway crosses a traveled road or street on the same level (except in cities), a misdemeanor.
    In an action brought by a widow, as administratrix of her husband, who was, as alleged, killed at a farm crossing through the negligence of a railroad corporation in not ringing the bell or sounding the whistle when crossing it, it was

      Held, that although the statute imposed no affirmative duty upon the engineer, yet by making his failure to do said acts a misdemeanor, it impliedly required him to ring the bell and sound the whistle.
    That, for his failure to perform those acts at a farm crossing, the corporation was liable to one who was injured by such omission.
    Appeal by the defendant, the .New York and New England Railroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 13th day of October, 1891, upon a verdict for the plaintiff for $5,000 and interest, after a trial at the Dutchess Circuit before the court and a jury, and also from an order denying a motion for a new trial.

      W. G. Anthomy, for the appellant.

      Wood & Morsohauser, for the respondent.
   Dykman, J.:

On the 16th day of August, 1890, William P. Yandewater, the husband of the plaintiff, was killed by a locomotive engine upon the defendant’s railroad at a farm ' crossing west of the station at Fish-kill village, Dutchess county. The crossing is nearly at right angles with the railroad, and the deceased was driving north, while the engine which struck him came from the east drawing a pay car only.

There was no claim that any alarm was sounded for the farm ci’ossiug, but there was a .claim that the usual alarm was given as the train approached the station at Fishkill village. There was evidence tending to show that no such alarm was given.

The trial judge charged the jury that the deceased had the right to assume that the company did its duty with respect to the crossing, and if it did not sound the bell or blow-the whistle,"and it was accustomed to do so at the village station, and it did not do that, and the two things combined caused the accident, if the deceased was killed by reason of the omission to do those things, then the jury might find a verdict of negligence against the company upon it.

There was an exception to that portion of the charge, but we cannot sustain it. We are not prepared to hold that a railroad company is now free from the obligation to sound the bell or whistle at a highway crossing. We have found no authority for such a position, and we do not think the statute should receive such a construction. It is as follows : “A person acting as engineer driving a locomotive on any railway in this State, who fails to ring the bell or sound the whistle upon such locomotive, or cause the same to-be rung or sounded, at least eighty rods from any place where such railway crosses a traveled road or street on the same level (except in cities) or to continue the ringing such bell, or sounding such whistle at intervals, until such locomotive and the train to which the locomotive is attached, shall have completely crossed such road or street, is guilty of a misdemeanor.” (Penal Code, § 421.)

This statute imposes no affirmative duty upon an engineer driving a locomotive, but pronounces him guilty of a misdemeanor if he fails to ring the bell or sound the whistle; and quite singularly, also, his guilt does not follow as the result of an affirmative act, but upon his failure to do a certain thing. But the statute must receive a reasonable, construction, and, although it contains no language requiring an engineer to ring the bell or sound the -whistle, yet, as it makes a failure to do so a misdemeanor, it must be construed to contain an implied requirement for the performance of the duty. The legislature intended to accomplish something by the enactment of the law, and the design plainly was to secure the ringing of the bell or the sounding of the whistle at the designated place, and that was the purpose of the former statute, which is now repealed.

We might go further and assume that the reason for the repeal of tlie former statute upon the subject was that the section of the Penal Code in question took its place, secured its purposes and rendered it unnecessary.

It has been many times decided, in this country and in England, that a penalty in a statute implies a prohibition, though there be no prohibitory words in the act. (Griffith v. Wells, 3 Denio, 226; Best v. Bauder, 29 How., 489.)

So, by analogy to that principle, it may be said here that the penalty in this law implies a direction or imposes a duty, though there be no imposition of a duty in the statute.

In this view of the statute the portion of the charge under examination was free from error. Respecting the conduct of the engineer after the horse of the deceased was discovered, or after lie might have seen him by the exercise of vigilance, the testimony presented a proper question for the jury.

After a full examination of the case we have failed to find any errors, and the judgment and order denying a motion for a new trial should be affirmed, Avith costs.

Pratt, J., concurred in the result; Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: Barnard, P. J.:

text:
    In the Matter of the Opening, Laying Out and Extending OGDEN STREET, in the City of Middletown, Orange County, New York.

      Mninent domain — proceedings to open a street — what interest disqualifies a commissioner.

    The charter of the city of Middletown (chap. 535 of the Laws of 1888, title 6, § as amended) requires the appointment of three disinterested freeholders in proceedings for the condemnation of land for public use. One of tlie persons appointed in such a proceeding was a brother-in-law of a silent partner in a firm, owning lands likely to be affected by the proceedings.

      Held, that he was not thereby disqualified to act.
    That section 46 of the Code of Civil Procedure, disqualifying a judge because of relationship by consanguinity or affinity to any party to the controversy, does not apply to a commissioner appointed to open a street.

      Appeal by S. Albert Bull and Frank D. Youngblood (Bull & Youngblood) from an order of tlie Orange County Court, entered in the office of tlie clerk of said county on the 2d day of November, 1891, removing Hemy W. Wiggins from his office as a commissioner in the above-entitled proceeding.

      William F. O’Neill, for the appellants.

      8. 8: Gowdey, for Thomas Nevilles, respondent.-
   Barnard, P. J.:

This is an appeal from an order of the county judge of Orange county removing one Henry W. Wiggins from his office as commissioner in the above-entitled proceeding, to which said office he had previously been appointed by the said County Court, for the reason that Wiggins was a brother-in-law of one A. V. Boak, who was a silent partner with the firm of Bull & Youngblood in the ownership of certain lands affected, or likely to be affected, by the said condemnation proceedings.

The appointment of Mr. Wiggins as one of the three commissioners was made under chapter 535 of the Laws of 1888 (and the subsequent amendments thereto), entitled “ An act to incorporate the city of Middletown,” and in section 7 of title 6 of this act the appointment of three disinterested freeholders is required. No further qualification is demanded of the commissioners except that they shall be disinterested; and we are of the opinion that the county judge of Orange county erred in holding that section 46 of the Code of Civil Procedure applies to commissioners of this nature, of that by reason of standing in the relation of brother-in-law to a party whose interest is likely to be affected, a commissioner thereby ceases to be disinterested without proof of some direct'interest of his own in the affair.

In the Matter of Dodge & Stevenson Manufactoring Company (77 N. Y., 101) the learned court, in its opinion, says: “This language does not seem appropriate to such a case as the present, but rather to a case whex-e thex-e are parties adverse to each other, or, at least, where some question is to be determined between two or more parties, but, passing this question, it is vexy certain that, to exclude a jxrdge from sitting in any cause by reason of kinship, such kinship .must exist between him and some person who is actually a party to the cause. It is not enough that he is related to some person not a party, who is or may be interested in it or affected by his order. Interest on the part of a judge disqualifies him from sitting, but interest on the part of a relative of the judge does not.”

We are, furthermore, of the opinion that the section of the Code referred to does not include commissioners among and along with judges and officers exercising judicial or quasi-judicial functions. This commission was solely for the purpose of looking into the general necessity and bearing of the proposed street extension, and their decision was subject to the subsequent scrutiny and oversight of the court, both as to the amount of damages and in every other respect. This provision of the Code needs to. be strictly construed, as under a liberal construction it could be made to apply to almost every class of court appointees or elective officers of towns or municipalities, exercising a power in any respect resembling the judicial. (The People v. Wheeler, 21 N. Y., 82; Foot v. Stiles, 57 id., 399; Matter of Southern Boulevard, 3 Abb. Pr. [N. S.], 447; The People ex rel. Howlett v. The Mayor, 63 N. Y., 291.)

The order appealed from should, therefore, be reversed, with costs and disbursements of the appeal.

Pratt, J., concurred.

Order reversed, with costs and disbursements.


text:
    RICHARD CRONIN and Others, Respondents, v. WILLIAM M. TEBO, Appellant.

      Severing an action and granting judgment for an amount admitted to he just — such relief should not he granted where a counter-claim exists.

    The complaint in an action set up two causes of action. The answer denied the first; did not deny the second, and set up a counter-claim sufficient to extinguish both. The plaintiffs replied denying the counter-claim.
    The court, upon the authority of section 511 of the Code of Civil Procedure, severed the action and gave the plaintiffs judgment for the sum claimed in the second cause of action.

      Held, that such severance was improper.

      That the defendant was entitled to establish his counter-claim if he could, thereby extinguishing both the demands of the plaintiffs.
    That section oil should be so construed as to apply only to a case where the answer of the defendant in its entirety admits a part of the plaintiff's claim to be just.
    Appeal by the defendant William M. Tebo from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 8th day of September, 1891, in favor of the plaintiff for $497.25 recovery, with interest and costs, with notice of an intention to bring up for review upon such appeal an order, entered in said clerk’s office on the 19th day of June, 1891, severing this action and ordering judgment in favor of the plaintiffs for the above amount, with interest and costs.

      Josiah T. Ma/recm, for the appellant.

      James G. Church, for the respondents.
   Dykman, J.:

The complaint in this action set up two causes of action. The answer denied the first cause of action, and set up a counter-claim sufficient to defeat both causes of action, as we understand the pleadings ; but the complaint is quite indefinite as to the amount claimed under the first cause of action.

The plaintiffs served a reply denying the counter-claim, and then moved the court at Special Term for an order severing the action, and permitting the plaintiffs to enter judgment for the sum claimed in the second cause of action, which was not denied, and continue the action as. if it had been brought originally for the remainder of the claim. That motion was granted and the judgment was entered accordingly, and the defendant has appealed from the judgment and from the order.

The motion was made and granted under section 511 of the Code of Civil Procedure, which is as follows, so far as it affects this appeal: “ Where the answer of the defendant expressly, or by not denying, admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion, may, in its discretion, order that the action be severed; that a judgment be entered for the plaintiff for the part so admitted, and if the plaintiff so elects, that the action be continued with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim.”

It will be seen that the language of the statute is very guarded. “ "Where the answer of the defendant expressly or by not denying, admits a part of the plaintiff’s claim to be just, the court * * * may in its discretion order that the action be severed.”

The section should be construed, so as to apply only to a case where the answer of the defendant, taken in its entirety, admits that a part of the plaintiff’s claim is just and should be enforced and collected without waiting the result of litigation. This view is strengthened by the discretion which is vested in the court. The language is: “The court * * * may in its discretion, order that the action be severed.”

Such discretion was given to enable the court to examine the whole answer and see whether, on a broad view of all its allegations and all the defenses it set up, it admitted any part of the plaintiff’s claim to be just, and such as should be summarily enforced.

In this case the answer sets up a counter-claim sufficient to extinguish the entire claim of the plaintiffs contained in both causes of action specified, and that claim is certainly incompatible with an admission that the plaintiffs have a just claim against him. Contrariwise it is quite the reverse. It is equivalent to a declaration that he owes the plaintiffs nothing; that the plaintiffs have no just claim which should be enforced against him, because he has a counterclaim which will extinguish all the demands set up in the complaint.

If this section is to receive the construction, for which the respondents contend, it may operate very unjustly. An insolvent plaintiff may obtain and collect a judgment. for a portion of his demand, and if the defendant establishes his counter-claim and obtains a judgment he would be unable to collect the same from the plaintiff by reason of his insolvency. It is inconceivable that the legislature ever intended such a result, and we cannot permit a construction which will sanction such a consequence

Justice to this defendant demands for him an opportunity to establish his counter-claim and thus extinguish the demands of the plaintiffs, instead of paying the judgment for the portion of the uncontroverted claim and abiding his chances of collecting the judgment he may obtain against the plaintiffs. Even the circuity of such practice is sufficient to induce the court to hold all the claims set up in the pleadings to abide the result of a trial and final judgment.

The judgment and order appealed from should both be reversed, with costs of reversal of the judgment, but no costs for the order, and the motion should be denied, with ten dollars costs.

Barnard, P. J., concurred.

Judgment and order severing action ■ reversed, with costs of reversal of judgment, and without costs for the order, and motion denied, with ten dollar’s costs.


author: Barnard, B. J.:

text:
    WILLIAM H. VANDERHOOF, Individually and as Executor of EMELINE R. VANDERHOOF, Deceased, Respondent, v. WILLIAM B. LANE, Individually and as Executor of EMELINE R. VANDERHOOF, Deceased, and Others, Appellants, Impleaded with Another, Defendant.

      Will — -rollen legacies are not chaA'ged on real estate — effect of a gift of all the remainder, “ real and personal,” in a residuary clause.

    A testatrix, by her will, gave the sum of $1,800 to her four brothers, to be divided among them, share and share alike, not charging the same upon her real estate. All the remainder of her property, “real and personal,” was given to her stepchildren. At the time of making the will the testatrix had cash in excess of the legacies given to the brothers. By a codicil she reduced the legacies to the brothers to $1,200, and gave the balance, or $600, to the same residuary legatees. In an action brought to obtain a construction of the will:

      Held, that if her personal estate was insufficient to pay the legacies to her brothers, they had no right to resort to the real estate of the testatrix.
    That the blending of the real and personal property in the residuary clause did not have the efEect of charging the legacies upon the realty.
    Appeal by the defendants, William B. Lane, Stephen A. Lane, Charles Gr. Lane and John S. Lane, from a judgment of the Supreme Court, entered, after a trial before the court at the Kings County Special Term, in the office of the clerk of Kings county on the 20th day of May, 1891, adjudging that the legacies to tlie appellants were not charged upon the real estate of Emeline R. Yanderhoof by her will.

      William J. Gay nor, for the ajipellants.

      Morris <& Whitehouse, for the respondent.
   Barnard, B. J.:

Tbe testatrix, by her will made in 1872, provided as follows:

“First. I give and beqneatb the sum of $1,800 held by me in my own and separate right prior to the time of the death of my late husband, William II. Yanderhoof, to my brothers, Stephen A. Lane, John S. Lane, William B. Lane and Charles G. Lane, and their assigns and their legal representatives forever, to be divided among them share and share alike.
Second. After all my lawful debts and necessary funeral expenses are paid, I give, devise and bequeath all the remainder of my property, real and personal of whatever nature and kind and wheresoever situated, to William II. Yanderhoof and Mary McNamee, the children of my deceased husband, William II. Yanderhoof, and their heirs and assigns forever, to be divided and shared equally, between them.”

By a codicil to said will she provided as follows:

“ I hereby revoke the bequest of eighteen hundred dollars made in the first paragraph of my said last will and testament to my four brothers therein named, and instead thereof I hereby give to each of my said brothers Stephen A. Lane, John S. Lane, William B. Lane and Charles G. Lane the sum of three hundred dollars.
“ The six hundred dollars hereby deducted from said legacies to my four brothers, I hereby give and bequeath to the residuary legatees named in said will.”

The words of the will did not charge the legacy on the land owned by the testatrix. (Brill v. Wright, 112 N.Y., 129; McCorn v. McCorn, 100 id., 511.)

At the time of the execution of the will the testatrix had deposits in savings banks and the personal estaté would presumably have then been sufficient to pay the legacies out of the personal property; her deposits then were much larger than the legacy. By the codicil made in 1884 the legacy of $1,800 is cut down to $300 each for her four brothers. The $600 deducted from her brothers’ legacies was given to the residuary legatees as specified in the will. A power of sale was given the executor to sell the land and an executor was changed, otherwise the will was ratified and confirmed. The blending of the real and personal property in the residuary clause does not produce a charge upon the realty for the payment of legacies whenever the personal estate is insufficient. (Briggs v. Carroll, 117 N. Y., 288.)

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

Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    WILLIAM F. LAWRENCE and Another, Appellants, v. ARVIN W. HARRINGTON, Respondent.

      Oivil contempt — the false justification of sureties on appeal — a conviction for pe>jury is not necessary before the court can act.

    William F. Lawrence and another recovered a judgment against one Harrington, who appealed and gave an undertaking, upon which his sons justified before a notary public as sureties. Their affidavits as to their responsibility were false. In a proceeding instituted to punish the sureties for contempt of court:

      Held, that, under subdivision 4 of section 14 of the Code of Civil Procedure, they were persons guilty of an interference with the progress of the action, and that by it a right of the plaintiffs was impeded.
    That it was not essential that the sureties should be convicted of perjury, as their conduct was a fraud upon the court and upon the plaintiffs in the judgment.
    Appeal by the plaintiffs, William F. Lawrence and James Y. Lawrence, from an order of the Supreme Court, entered in the office of the clerk of Westchester county on the 28th day of September, 1891, denying a motion to punish Joseph H. Harrington and Arvin W. Harrington, Jr. (sureties) for a contempt of court.
    The plaintiffs recovered a judgment against the defendant Arvin W. Harrington, from which the defendant appealed and gave, in 1888, an undertaking upon which his sons, Joseph H. Harrington and Arvin W. Harrington, Jr., were sureties. The judgment was affirmed at General Term, and an appeal was taken to the Court of Appeals in the same year, upon which the sons were also sureties.
    In 1890 the judgment was affirmed by that court in part. At this time the defendant was insolvent, as was also Joseph H. Harrington.
    Hpon an examination in supplementary proceedings had in 1891, it appeared that the affidavits of justification of the sureties were false when made. No formal justification under the Code was had. The undertakings, which were verified in Rensselaer county, were not approved by a justice.

      James H. Hunt, for the appellants.

      G. B. Wellington, for the respondents.
   Pratt, J.:

The papers clearly established that Joseph H. and Arvin W. Harrington, Jr., sureties, swore falsely upon a justification as sureties before a notary, with an intent to deceive the court as to their responsibility. They well knew that the purpose was to stay an execution against their father, and that result was accomplished by such false swearing.

The facts are too clearly proved to require discussion. It is also clear that the rights of the plaintiffs have been seriously prejudiced by such deceit and false swearing.

The plaintiffs were prevented from collecting their judgment* which constituted, under section 14 of ’the Code of Procedure, a civil contempt. It was an interference with the due and orderly progress, of the action to its ultimate close, and impeded the right of the plaintiffs to collect the judgment. (King v. Barnes, 51 Hun, 550; affirmed in 113 N. Y., 476.)

It was not essential that the sureties could be convicted of perjury* as their conduct was a fraud upon the plaintiffs and the court and perverted the course of justice.

The distinction between a civil and criminal contempt has been pointed out too often to require any comment.

By falsely making the statutory oath they intended to and did defeat the remedy of the plaintiffs, and this prejudiced and injured their rights. (Eagan v. Lynch, 49 N. Y. Supr. Ct., 454; Foley v. Stone, 9 N. Y. Supp., 194.)

The presumption arising from the plaintiffs’ papers is, that the plaintiffs were damaged to the amount of the judgment which they were prevented from collecting.

The order must be reversed, with costs and disbursements, and a rehearing ordered at Special Term.

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

Order reversed, with costs and disbursements, and rehearing ordered at Special Term.


text:
    DAVID GURNEE, Respondent, v. LEWIS H. HUTTON, Appellant.
    Order— not accepted — when it is an assignment of a fund — future eovrnings.

    Augustus Brinkorlioff agreed to'construct a hot-water heating apparatus for Lewis H. Hutton, who agreed to make payment therefor in installments as certain parts of the work were completed. BrinkerhofE thereafter purchased a horse of David Gurnee and gave him an order on Hutton for $125 “in sums as mentioned in contract for erecting hot-water heater.” A few days later the order was taken to Hutton and left with him.
    Upon the trial of an action hy Gurnee against Hutton the jury found that a certain sum was due from Hutton to BrinkerhofE upon the contract;

      Seld, that the instrument was not valid as a draft.
    That it was good as an assignment of moneys due, and to become due, BrinkerhofE under the contract, and that Hutton was hound, upon receipt of it, to apply ■the fund as it accrued to the payment of the order in favor of Gurnee.
    Appeal by tbe defendant Lewis H. Hutton from a judgment of tbe Supreme. Court, entered in the office of the clerk of the county •of Rockland on the 20th day of May, 1891, upon a verdict for the plaintiff of $119.70, after a trial at the Rockland Circuit before the court and a jury.

      Abraham A. Demurest, for the appellant.

      William E. Gowcley, for the respondent.
   Dykman, J.:

On the 8th day of August, 1889, Augustus BrinkerhofE made an .agreement in writing with the defendant to construct for him a hot-water heating apparatus in his residence in Nanuet, Rockland •county, for $480, to be paid as follows : Three hundred and thirty -dollars to Eaton, Cole & Burnham Company, thirty days after the material was purchased; twenty-five dollars to BrinkerhofE when the heater was set and the mains run in the cellar; twenty-five dollars to BrinkerhofE when the work was complete and the apparatus was set up as specified; fifty dollars to BrinkerhofE when the apparatus had been tested in first cold weather and found satisfactory.

Brinkerhoff purchased a horse of the plaintiff in this action for $125, and gave him in payment therefor an order upon the defendant' in'writing, of which the following is a copy:

“Nyaok, Oct. 2, 1889.
“ Mr. Louis Hutton, Jr., please pay to the order of Mr. David Gurnee the sum of one hundred and twenty-five dollars, in sums as mentioned in contract for erecting hot-water heater.
“ By order of
“A. BRINKERHOFF.”

The order was taken to the defendant and left with him a few days after it was drawn.

Brinkerhoff commenced work on the heater in September, and he says there was about fifty dollars due him under the contract when the order was drawn. He did not complete the work, and he testified that he was prevented from so doing by the defendant, and that there was not more that twenty-five dollars worth of work left, undone. Lie also claimed to have done fifty dollars worth of work beyond the contract, and that there was due him from the defendant, on account of the contract, $125.

The defendant, on the contrary, claimed that' nothing was due to Brinkerhoff under the contract, and that he had been compelled to expend more than the contract-price for the completion of the-heater by reason of the failure of Brinkerhoff to perform his-agreement.

The cause was tried at the circuit and submitted to the jury by a charge which was faultless. The trial judge charged the jury that the order constituted an equitable assignment of the fund, if there was a fund upon which it could operate.

That it was an assignment of the money that might become due to Brinkerhoff under the contract to the extent of $ 125, and that the plaintiff was entitled to recover $125, provided that sum became due from the defendant to Brinkerhoff.

He charged further, that as it was conceded Brinkerhoff did not complete his contract the jury must determine where the fault was. That if Brinkerhoff was delayed in his work by the condition of the building that would be a valid excuse. - But if, on the contrary, he was not delayed, then he never completed the contract, and he was not entitled to his final payment, even though he did some work, because he was bound to complete his contract as an entirety before he could recover the last payment.

Under this charge the jury found a verdict for the plaintiff for $119.70, and we must assume that the facts were found in favor of the plaintiff, and that the defendant was indebted to Brinkerlioff under the contract in the sum of $119.70. With the facts so settled it becomes necessary to determine the legal effect of the order under the surrounding circumstances, and in view of the fact that it never was accepted in writing by the defendant.

If the instrument is to be viewed in the light of a draft to be paid by the defendant, without regard to the source from which the money for its payment was to be obtained, then, even though the fund or source from which the defendant was subsequently to reimburse himself was indicated, then the draft will not operate as an assignment of such fund, and the plaintiff cannot maintain this action in the absence of an acceptance of the draft.

But as in this case the order was drawn for a valuable consideration, as between Brinkerlioff and the plaintiff, if it is to be considered as drawn upon the defendant to be paid from the money due or to become due from him to Brinkerlioff under the contract for the construction of the heater, then the mere delivery of the order to the defendant operated as an assignment of that fund, and the defendant was bound, upon the receipt of the draft, to apply the fund as it accrued to the payment of the order. (Brill v. Tuttle, 81 N. Y., 454: Lauer v. Dunn, 115 id., 405.)

We think the language of the draft, and the evidence and the circumstances surrounding the parties and the transaction, show clearly that this order was drawn upon the defendant to be paid from the money due and to become due under the heater contract; and that there was no intention or expectation that the defendant would pay the same upon the credit of the drawer, and apply the money as it became due under the agreement to his reimbursement.

In the first place the order itself directs the payment “ in sums as mentioned in contract for erecting hot-water heater,” and thus in plain terms evinces the intention of the drawer to have the payments made at different times, and in small sums, as they became due him under the contract.

Then, when the order was presented to him, there was no demand for immediate payment, and in the subsequent conversations between the parties there was no expression of intention to procure payment of the draft otherwise than from the money due from the defendant under the contract with the drawer, and even the defense upon the trial proceeded mainly upon the ground that there was nothing due under the contract.

All the circumstances point in the same direction. The drawer of the draft had purchased a horse of the plaintiff, for which he desired to pay; and in the expectation that the defendant would soon become indebted to him, he directed him to pay such indebtedness as it became due to the plaintiff instead of himself; and, within the authorities cited above, all these facts lead to the conclusion that the order operated as an equitable assignment of the fund.

Our conclusion, therefore, is, that the exceptions are not well taken, that the record presents no error, and that the judgment should he affirmed, with costs.

Barnard, P. J., and Pratt, J"., concurred.

Judgment affirmed, with costs.


text:
    HARRIET S. RUMSEY and Others, Respondents, v. THE NEW YORK AND NEW ENGLAND RAILROAD COMPANY, Appellant.

      Seal property — damages to upland — review of measure of damages —proper method of appeal —res adjudicata — pending proceeding to condemn property — navigable, waters — IT. 8. Const., a/rt. 1, sec. 8, sub. 3; IT. 8. S. S., secs. 3964, 5364.
    Iu February, 1888, Harriet S. Rumsey and others brought an action against a railroad corporation to recover damages arising during the years from 1881 to 1888, and resulting, as alleged, from the construction, of tlic defendant’s railroad in the Hudson river, in front of their upland, thus intercepting access to tlic river. The plaintiffs recovered judgment in the action, which was affirmed in the Court of Appeals.
    In 1891 the same persons commenced another action against the same defendant to recover damages alleged to have been sustained from the same obstruction during the years from 1888 to 1891. In (bis second action tlie plaintiffs again recovered judgment. On an appeal from this last-mentioned judgment the case diu not state that it contained all the evidence, or all the testimony as to damages; nor did it contain the charge of the judge to the jury, or any exceptions thereto.

      Held, that the question whether the proper measure of damages was adopted could not'be raised on such an appeal.
    That a motion to dismiss the complaint upon the ground that the damages could and should have been recovered in the former action was properly denied.
    That as the case did not show what measure of damages was adopted the court would not assume that the jury was not charged correctly in that respect.
    That an exception to the denial of a motion for a new trial, where there was no appeal from the order denying it, presented no question for review upon an appeal from the judgment alone.
    That it was competent to show by practical brick-makers the fair rental value of the premises from 1888 to 1891, although it appeared that when the railroad was constructed the premises were not then, and had not since been, used for brick-making purposes.
    That as the law will not presume that a wrongful act will be repeated, a former action for damages for a nuisance cannot be a bar to a second action for its continuance.
    That, since a proceeding to condemn property under the right of eminent domain is of no effect until concluded, it was not error to exclude evidence that such a proceeding had been initiated.
    That the people of the State, as successors of the King of England, owned the soil under the waters'of the Hudson river, below high-water mark, as far up as the tide ebbs and flows.
    That the people of the State, in ratifying and adopting article 1, section 8, subdivision 3 of the Constitution of the United States, which gave to congress the power to regulate commerce, did not surrender any property rights, and only yielded thereby the power to regulate commerce and navigation upon the waters of the Hudson river.
    That section 3964, Revised Statutes United States, establishing as post roads all the waters of the United States during the time the mail is carried thereon, had no bearing upon the question of the title to lands under water.
    That section 5264 of the United States Revised Statutes was also inapplicable.
    Appeal by the defendant, the New York and New Englaud Railroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 23d day of October, 1891, upon a verdict for the plaintiffs for $12,000, after ■a trial at the Dutchess Circuit before the court and a jury; with notice of an intention to” bring up for review, upon the appeal an order, entered in said clerk’s office on the 23d day of October, 1891, denying a motion to set aside the verdict.

      Walter O. Anthony, for the appellant.

      II. II. Hustis, for the respondents.
   Dykman, J.:

This is an action for the recovery of damages resulting’ from the construction of the railroad of the defendant in the Hudson river at Eishkill Landing in front of the upland of the plaintiffs, and thus intercepting their access to the river and depriving them of the beneficial enjoyment of their property.

The action was commenced on the 25th day of March, 1891, to recover the damages sustained between the 1st day of January, 1888, and the first day of January, 1891. The cause was tried at the circuit on the 7th day of October, 1891, and a verdict was rendered in favor of the plaintiffs for $12,000, and from the judgment entered upon that verdict,, and from an order subsequently made at Special Term denying a motion to set aside the verdict, the defendant has appealed.

There was a' former action by the same plaintiffs against the same defendant for the recovery of damages resulting from the same obstruction between January, 1881, and January, 1888. That action was tried before a judge without a jury, and judgment was rendered in favor of the plaintiffs for $10,500 besides the costs. That action has been to the Court of Appeals, where the right of the plaintiffs to recover damages against the defendant for the obstruction has been established. (Rumsey v. N. Y. and N. E. R. R. Co., 25 N. E. Rep., 1080.) In the month of March, 1888, proceedings were instituted by the defendant for the condemnation of the lauds occupied by the company in front of the uplands of. these plaintiffs. There was one hearing before the judge, and nothing further has been done.

The evidence of those facts, however, was stricken out by the court upon the trial of this action as immaterial, and the defendant’s counsel excepted.

In this action that former suit and proceeding were set up by the defendant as a bar. The defendant has printed such testimony and proceedings upon the trial as it deemed necessary to present three questions, which alone are urged upon this appeal.

First. Respecting the measure of damages.

Second. Respecting the effect of the former action and proceeding.

Third. Certain constitutional questions.

The first question so attempted to be raised cannot be determined because it is not presented by this appeal.

The case does not comprehend all the evidence, and it does not purport to contain all the testimony on the subject of damages. When the plaintiffs rested their case upon the trial the counsel for the defendant moved for a nonsuit on the ground that the plaintiffs had not shown any damages, or given any proper measure of damages for the jury to act upon. That motion was denied and the defendant excepted.

The motion to nonsuit was properly refused, because the plaintiffs had then introduced some- proof of damages, and it was for the court to give the jury their measui’e.

At the close of the-case, and before it-was submitted to-the jury, the defendant’s counsel moved to dismiss the complaint upon the ground that the plaintiffs had prosecuted an action against the defendant, in which the damages' sued for in this action could and should have been recovered, and consequently such former action is a bar to this. That motion was denied, and the defendant’s counsel-excepted. The jury rendered a verdict for the plaintiffs for $12; 000.

The defendant’s counsel moved for a neAv trial upon the minutes on the exceptions taken by him, and because the verdict was for excessive damages. The motion was denied, and the defendant’s counsel excepted.

There is .no order denying the motion for a new trial, and no appeal from such order.

The case does not contain the charge of the trial judge to the jury, or any exception to such charge; neither does it embrace any order denying the motion at Special Term to set aside the verdict. And so it is that it noAvhere appears in the case what measure of damages was adopted by the court or jury, or that there Avas any objection or exception to any rule of damages prescribed. On the contrary, as it aauis the duty of the trial judge to give proper instructions to the jury upon all legal questions, and as the charge is not given, or any exceptions thereto, we must noAV assume that the proper directions were given to the jury ujxon the question of damages, and all other qxtestions of laxv, and that the defendant acqxxiesced in the charge. No other legitimate inference can be drawn from the silence of the defendant, and its failure to manifest any objection or exception to the directions of the judge to the jury. (Porter v. M. E. R. Co., 120 N. Y., 288.)

The exception to the denial of the motion for a new trial upon the minutes presents no question for review upon this appeal from the judgment, and, in the absence of an appeal from an order denying such motion, we can review only the questions of law raised by the exceptions taken upon the trial. (Matthews v. Meyberg, 63 N. Y., 656; Dresser v. Boatmen’s F. and M. Ins. Co., 47 Hun, 153.) We have already seen that the refusal to nonsuit was not erroneous.

The attorney for the plaintiffs testified to an effort he made with one Pratt to make some arrangement by which the plaintiffs could reach the water beyond the railroad so as to operate their brick-yard. The objection to that testimony was overruled, and the defendant ■excepted. The interview resulted in nothing, and so tlie exception presents no error.

Three practical brick-makers were called as witnesses for the plaintiffs, and each one was asked substantially what would be the fair rental value of the plaintiffs’ property, and .the question to two of them was confined to the rental value of the property from January, 1888, to January, 1891.

The counsel for the defendant objected to each of these questions ■as not tending to prove damages by any proper measure, as not ■calling for any proper measure of damages, and because it appeared affirmatively that when the defendant constructed its rail way at the place complained of these premises were not used, have never been used since, and are not now in a condition to be used for brick-making purposes.

Each of these objections were overruled, the defendant excepted to such rulings, and these seem to be the exceptions upon which the appellant relies to raise the question respecting the measure of damages.

The contention is erroneous and untenable. It ascribes to testimony the force of law.

It was essential to the plaintiffs’ ease to lay before the jury some proof of their loss and damage. They claimed that the wrongful act of the defendant had deprived them of the use of their property, and it became necessary for them to prove the value of such use as an element of their damage. It was in line with their claim, and legitimate evidence for the consideration of the jury, and, therefore, admissible, But ir was not given to prescribe the measure of damages. That was the province of the court, and could not be done by the plaintiff; It was a question of law to be determined by the court, and, as we have seen, the presumption is, it was so fixed to the satisfaction of both parties, and received the acquiescence of both, and that constituted a waiver of the previous exception. (Lahr v. M. E. R. Co., 104 N. Y., 294.)

The evidence was received for the enlightenment, and not for the control of the jury.

The property had been rendered useless by the destruction of access to the river. The Court of Appeals had decided that the plaintiffs could maintain the action for damages, and what their damage was and of what it consisted became the subject of proof upon the trial.

What the law would permit them to recover as the measure of their damage was quite another question to be determined by the court, and not by the- parties or the jury.

In every view, therefore, the evidence was legal and proper, but in no view did it establish the damages or their size.

In relation to the legal effect of the former action and judgment, it is settled in this State that the plaintiffs could not recover therein upon the theory that the obstruction of which they complained would be permanent, but simply for the damages sustained down to the time of the commencement of the action. (Uline v. N. Y. C. and H. R. R. R. Co., 101 N. Y., 98; Mahon v. N. Y. C. R. R. Co., 24 id., 658; Pappenheim v. M. E. R. Co., 128 id., 436; Galway v. M. E. R. Co., id., 132.)

The underlying principle seems to be that the law will indulge in no presumption of the continuance of a wrong in the future, or that the' unlawful act of to-day will be repeated on the morrow.

Another reason for limiting the recovery of damages to the time of commencing the suit is that the plaintiff may in the same action have judgment for the abatement of the nuisance.

The plaintiffs could not have recovered damages for the permanent diminution of the value of their property, and in all similar actions reported in tliis State the courts have only permitted recoveries for the damages sustained from time to time. Such was the doctrine laid down in respect to the damages sustained from the construction and operation of the elevated railroad in the case of Tallman v. Metropolitan Elevated Railroad Company (121 N. Y., 119).

In the celebrated case of Story v. The Railroad Company a resort to equity was permitted to obviate the necessity of prosecuting successive actions at law for the recovery of damages.

The proceeding instituted by the defendant for the condemnation of the property of th'e plaintiffs under the right of eminent domain constituted no bar to this action, and the testimony introduced upon that subject was properly expunged from the-record.

Such proceedings could have no- operation as a bar until they were carried to completion and the damages assessed. Their mere commencement had. no efficacy without further prosecution. The defendant cannot avail itself of its own inaction to the prejudice of the plaintiffs.

The constitutional question presented is stated by the appellant as follows: “ The United States government has the final and absolute control of these lands under the waters of -a navigable stream open to the sea, and can appropriate them to any use for the promotion of interstate or foreign commerce. Congress has so appropriated them by making defendant’s interstate railway a post road (U. S. R. S., § 3964), and by authorizing telegraph companies tp rise-these lands. ■ (U. S. R. S., § 5264.)

“ The plaintiffs can acquire no rights in said lands which can conflict with the rights so given by congress. This action is based upon claims which do conflict with such rights.”

No authority is furnished in support of this contention, and it is plainly antagonistic to well-recognized principles and doctrines.

Upon the Declaration of Independence in 1776, the people of the -State of New York, as the successor of their former sovereign, were invested with all the prerogative rights of the king of England, and so became- the owner of the soil under the waters of the Hudson river, below high-water mark, as far up as the tide ebbs and flows. (Gould v. Hudson River R. R. Co, 2 Selden, 522; The People v. Tibbetts, 19 N. Y., 528; Lansing v. Smith, 8 Cow., 146; 4 Wend., 9.)

The first Constitution adopted by the State in April, 1777, vested the supreme legislative power within the State in the senate and assembly, which together form the legislature. Thus the. people established a government and invested it with sovereign power, and it became the State, representing the collected will of the people.

Hence it is sometimes said that the title to the soil under tidal waters is in the State, and at others that it is in the people,' and both signify the same thing. But in strictness of speech the people are the ultimate owners.

Not only did the people thus become the owner of the soil under the water of the rivei1, but they became vested with the absolute control over the rivei1, and through the medium of the legislature might exercise all the power which could have been exerted by the king previous to the American Revolution. (Lansing v. Smith, supra.)

That power remained in the people until the 26th day of July, 1778, when they adopted and ratified the Constitution of the United States, which contained the following provision: “ Congress shall have power * * * ' to regulate commerce with foreign nations and among the several States, and with the Indian tribes.” (Const, of the U. S., art. 1, § 8, sub. 3.)

The power to regulate commerce extended to the regulation of navigation. (Gibbons v. Ogden, 9 Wheat., 189.) Thus the State yielded and granted to congress the power to regulate commerce and navigation upon the waters of the Hudson river, but it surrendered nothing more. It conferred no proprietary or property rights, and while the power granted is plenary as to the objects specified and implied, yet the-grant contains, neither expressly nor by implication, any cession of territory or property. (1 Kent’s Com., 439; Corfield v. Coryell, 4 Wash. Cir. Rep., 371.)

The power bestowed upon congress comprehends only the use of the water, and in no way diminishes the right of the State as the owner of the soil. It is a right to regulate, but grants no property interest and impairs no rights of the State, because the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people. (Amendments to the Const., art. 10.)

So long as the State permits no impediment to the navigation of the river the rights of congress are not infringed and the constitutional right to regulate commerce is not invaded. It is thus made manifest that congress has no control of the land under the waters-of the Hudson river, and cannot appropriate them to any use, and that the constitutional objection of the defendant is not valid.

Section 3964 of the Revised Statutes of the United States, ta which the defendant refers, has no influence upon the question under discussion. It merely establishes as post roads all the waters-of the United States during the time the mail is carried thereon, all railroads, or parts of railroads, which are now, or hereafter may be, in operation, also the canals and plank-roads and some other roads under circumstances.

Section 5264, to which reference is also made, has no application and requires no attention.

This extended examination seemed to be required by the case and leads us to the conclusion that the judgment and order should be affirmed, with costs.

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

Judgment and order denying new trial affirmed, with costs.