text:
    CHARLES W. BRANDT, Respondent, v. THE MAYOR, &c., OF NEW YORK CITY, Appellants.

      Muncipal employee—removal—action for salary.:—Pleading.

    The complaint herein alleged plaintiff’s appointment by the Board of Police Commissioners, in December, 1879, as foreman in the Bureau of Street Cleaning at $900 per annum; that he performed all services required of him until March 30, 1881, when he was duly removed ; that he was paid therefor at the above rate for the whole period, excepting two months and twenty-eight days, and demanded judgment for the amount of plaintiff’s salary for that time. The answer admitted the non-payment of salary for said period, and denied the other allegations, as to which it admitted only, “that between October 19, 1880, and March 30, 1880 (the period referred to in the complaint), the plaintiff was an employee of the Bureau of Street Cleaning, performing services in said Bureau for which he was paid at the rate of $900 per annum;” and as a separate defense alleged that plaintiff was duly removed and notified of his removal on July 22, 1880, and performed no services between said date and October 19, 1880.
    Held, that the burden of proof was upon plaintiff to show an appointment or employment of such a nature or for such a period as entitled him to salary irrespective of rendition of services; and that it cannot be held on the pleadings, that plaintiff was an officer within the meaning of the charter whose salary was fixed by statute and annexed to the office so that the Board of Police Commissioners had no control over it.
    Whether an appellate court has the power to disregard a point which clearly appears from the record and is pressed upon the appeal, because it was not specifically made below, qumre.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 5, 1882.
    Appeal from judgment entered in favor of the plaintiff upon a verdict rendered pursuant to the direction of the court.
    The facts appear in the opinion.

      William C. Whitney, counsel to the corporation, and D. J. Dean, of counsel, for appellants.

      Charles P. Miller, for respondent.
   By the Court.—Freedman, J.

I am of the opinion that in justice to both parties there should be a new trial.

The plaintiff was appointed a foreman in the street cleaning bureau of the police department on December 26, 1879, and performed services in that capacity until July 22, 1880, when he received a written notice of removal from such position. This notice will be more particularly referred to hereafter. He performed no services from July 22, until October 20, 1880, when he was again put to work, and from that time he continued to serve until March 30, 1881, when he admits that he was legally removed. He was paid regularly at the rate of $900 per annum, for the periods during which he was actually at work, but received nothing for the time between July 33, 1880, and October 30, 1880, a period of two months and twenty-eight days. This action is brought to recover salary for this interval of time at the rate mentioned.

Aside from a number of formal allegations in the •complaint, rendered necessary by the peculiarity of the provisions of the defendants’ charter relative to the payment of expenses incurred by the police department, which, unlike other departments of the city government, has exclusive control over its disbursements, which are made through its treasurer, the material allegations of the complaint are as follows :

“V. That the plaintiff was, on or about December 26, 1879, duly appointed by the said board of police commissioners to the position of foreman in the bureau of street cleaning, at a salary of $900 per annum. .
“ That he faithfully performed all the duties and services required of him by the said police commissioners, from December 29, 1879, until March 30, 1881, when he was discharged by the said board.
“ VI. The plaintiff has been paid for his services as foreman in the street cleaning bureau, at the said rate of $900 per annum, for all of the said period between December 26, 1879, and March 30,1881, except for nine days in the months of July, 1880, for the months of August and September, 1880, and for nineteen days in the month of October of said year, for which time, amounting in all to two months and twenty-eight days, plaintiff has received no compensation whatever.”

The defendants, by their answer, admitted the allegations of paragraph VI., but denied the allegations of paragraph V-, in respect to which they admitted only “that between the 29th day of December, 1879, and the 22d day of July, 1880, and between the 19th day of October, 1880, and the 30th day of March, the plaintiff was an employee in the bureau of street cleaning, performing services as foreman in said bureau, for which he was paid at the rate of $900 per annum.”

As a further-and separate defense, the defendants pleaded that on or about July 22, 1880, the plaintiff was removed and notified of such removal, and that he performed no services whatever between July 22,1880, and October 19, 1880.

Upon these issues the burden of proof at the. trial was upon the plaintiff to establish an employment or appointment of such a nature or for such a period as entitled him to the salary now claimed, irrespective of the rendition of services; but he gave no such proof, and rested his case upon the facts admitted by the pleadings, and certain other admissions which were made at the trial and went to mere formal parts of the case, but did not affect the main question now under consideration.

All the admissions thus made, taken together, do not entitle the plaintiff to a recovery. It does not appear from them for what length of time the plaintiff was originally employed or appointed, nor can it be held upon them, that the plaintiff, as a foreman of the street cleaning bureau, was an officer within the meaning of the charter (Laws 1873, ch. 335), whose salary is fixed by statute and annexed to, or is an incident of, the office, so that the board of police commissioners had no control over the same as held by the court of appeals in People ex rel. Ryan v. French. The plaintiff must, therefore, be treated as an employee whom the board, under the statute, had power to engage and remove at pleasure according to the exigencies of the public service, and whose salary was fixed by, and remained subject to the control of, the board. This being so, and it having been conceded that no services were rendered during the period in controversy, the plaintiff was bound to establish affirmatively that his employment or appointment was of such a nature or for such a period as to entitle him to the compensation now claimed, irrespective of the question whether he actually performed services or not. ,This he wholly failed to do, and for such failure his complaint should have been dismissed.

It may be argu.ed, however, that the motion made by the defendants did not ask for a dismissal upon this specific ground. It was made upon the grounds:

“1. That the plaintiff was regularly removed from his position in the bureau of street cleaning on J uly 22, 1880, and was not in the employ of said bureau during the time for which he seeks compensation. 2. That during said period the plaintiff performed no services whatever for the defendants.”

The point nevertheless is in the case. It clearly appears in the record, and it has been pressed on the appeal. To disregard it because not specifically made below, though it is a vital point, this court would have to decide not only that it has the power to do so, but also that the exercise of the power is called for by the circumstances of the case in furtherance of justice. In my opinion, the power, if it exists, should not be exercised under the circumstances of this case. The defendants at, the trial concentrated their efforts to prove that, whatever the precise nature or character of plaintiff’s original emplyment or appointment may have been, he was duly removed from his position on J uly 22,1880. To that end they showed, that by section 6 of chapter 677 of the Laws of 1872, the board of police was authorized to appoint and employ such officers, agents and employees as they might find necessary in the performance of the duty of cleaning the streets ; that by section 41 of chapter 335 of the Laws of 1873 (the charter), the board had power to appoint and remove at pleasure the persons so employed, according to fixed rules to be established by the Board ; that the board delegated to the chairman of the committee on street cleaning the executive function of employing •and discharging the persons necessary to be employed or discharged <in the performance of the business of street cleaning; and that, on July 22, 1880, the plaintiff was served with a notice of which the following is a •copy:

“Police Departement, City of New York, ) Bureau of Street Cleaning,. > New York, July 22, 1880. )
“ C. W. Brandt, Esq.:
“Dear Sir,—The bearer, John Drout, has been appointed foreman of the 19th Precinct, and you have been removed by order of the chairman of the committee on street cleaning.
“Please give him the time-books, papers, etc., belonging to this bureau, and oblige
“Yours, etc., J. B. Green, C. C.”

No proof was given showing who “ J. B. Green, C. C.” was or is, or how he knew that the plaintiff had been removed by order of the chairman, nor was any further evidence produced which established the alleged removal. Nevertheless it seems to have been assumed that there had been in fact a removal by the chairman of the committee on street cleaning, and consequently the question left related only to the legality of the proceeding. On the present appeal, however, the plaintiff contends not only that the board was not authorized to delegate the power of appointment and removal to the chairman of the committee, but also that, even if it was, and did do so, there is no legal evidence that the plaintiff was removed by order of the said chairman. The objection, so far as it concerns the fact of removal, and without intimating any opinion beyond it, appears to be well taken, and yet it is capable of ready obviation by proof, if the fact is as urged by the defendants.

Under these circumstances the ends of justice require that the defect in the plaintiff’s proof should not be disregarded, but that both parties should have another opportunity to be heard, when, it is to be hoped, the case will be more fully developed.

The judgment should be reversed and a new trial -ordered, with costs to the appellants to abide the event.

Sedgwick, Ch. J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    EWEN McINTYRE, Respondent, v. WILLIAM E. STRONG, Appellant.

      Appeal—deposit in lieu of undertaking, withdrawal of.

    Where an appeal has been taken to the court of appeals from an affirmance of a judgment by the general term, the court has no power to order that the money deposited, in lieu of an undertaking on the appeal to the general term shall take the place of the undertaking or deposit required on appeal to the court of appeals.
    The general rule is, that the deposit cannot be changed or withdrawn; but qumre, whether, in such case, where the judgment has been materially reduced by the general term, and, as reduced, affirmed, the court can order the return of a proportionate part of the deposit.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided June 5, 1882.
    Plaintiff recovered a judgment against defendant 'October 7, 1881, for the sum of $1,766.28. Defendant appealed from this judgment to the general term, and in lieu of an undertaking to stay execution, defendant deposited the sum of $2,300. After argument, the ..general term reversed said judgment, unless plaintiff •should stipulate to reduce it to the sum of $1,149.24.
    Plaintiff made the required stipulation, and the .judgment was, on February 13, 1882, so reduced, and, as so reduced, affirmed. From this last judgment defendant appealed to the court of appeals, and thereupon made a motion that in view of the reduction of the judgment, he be permitted to withdraw from his said deposit the sum of $650, and that the balance, $1,650, be left on deposit in lieu of an undertaking to perfect defendant’s appeal to the court of appeals.
    The motion was ‘denied on the ground that the court had no authority under the Code to grant it, and defendant appealed.
    A. D. Pape, for appellant.

      William J. Gibson, for respondent
   By the Court.—Freedman, J.

The general rule undoubtedly is, that a voluntary deposit like the one in question, made to perfect an appeal from a judgment of the special term to the general term so as'to stay execution thereon, is in lieu of an undertaking required to be executed by at least two sureties ; that it can no more be changed or withdrawn than could the undertaking which it stands in place of; and that such an undertaking, when given, cannot be changed or withdrawn after the affirmance of the judgment by the general term because an appeal has been perfected to the court of appeals by the execution of an undertaking required for that' purpose. In every case falling within this rule, the appellant, to perfect the appeal to the court of appeals, must give a new undertaking (Code, § 1326), or make a new deposit of money in lieu thereof (§ 1306), and the court has no power to order that a sum of money already deposited in lieu of an undertaking on the appeal to the general term, shall take the place of the undertaking or deposit required on appeal to the court of appeals (Parsons v. Travis, 2 Duer, 659 ; S. C., 5 Id. 650).

It has been argued, however, with great force and plausibility, that the rule applies only when the original judgment has been affirmed in full by the general term, and that whenever it appears that the judgment procured by a plaintiff has been, in pursuance of the decision of the general term, materially reduced in amount, and that the reduction has been accepted by the plaintiff by stipulation, a different and exceptional case is presented, in which the court has power to grant relief, pro tanto, under section 1306.

Without stopping to determine the validity of this claim, for the language of section 1306 is by no means clear upon the point, and no other provision has been pointed out, it is sufficient for present purposes to say that the power, if it exists at all, should be exercised only when it clearly appears that the sum proposed to be left on deposit is, in view of all possible contingencies, fully sufficient to satisfy any claim the plaintiff may eventually have to enforce against it, in case the judgment of the court of appeals should be one of affirmance, inclusive of interest and the additional sum of $500, for costs in that court. For under section 1211, the judgment appealed from bears interest from the time of its entry, and under section 1326, it is necessary, in order to render the notice of appeal to the court of appeals effectual for any purpose, that the appellant should give a written undertaking to the effect that he will pay all costs and damages which may be awarded against him on the appeal, not exceeding $500.

In the case at bar, if the motion had been granted, less than one dollar would have remained to cover accruing interest, nor were any facts presented, upon which the amount of such interest could have .been determined with reasonable certainty.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J., concurred.


author: By the Court.—Sedgwick, Ch. J.

text:
    EDWARD HALL, Appellant, v. JAMES GORDON BENNETT, as Ex’r. &c., Respondent.

      Building contract—construction of—notice to cont/ractor—architecffscertificate—liability of personal representatives.—Former action* pending.—Evidence.

    The specifications referred to in a-building contract contained a clause-providing that the different parts of the work should be finished at such times, and as many workmen employed thereon, as should be-approved by the architect, and that, if in the opinion of the superintendent it was not proceeded with at a rate which would ensure its completion by the time specified in the contract, he should- be fully authorized to cause the same to be executed as he might deem, advisable. The body of the contract contained a clause : Should!, the contractor at any time during the progress of said works refuse- or neglect to supply a sufficiency of materials or workmen, the-owner shall have the power to provide materials and workmen after-three days’ notice in writing being given to finish the said works.”'
    In an action to recover the amount due under the contract up to the-time plaintiff was compelled to leave the work by defendant, and for damages for not being allowed to complete the same, the defense-being that the superintendent caused the work to be finished by-others than the plaintiff,under the above clause in the specifications,—

      Held, that both the above clauses should be construed together, and< that the contractor was entitled to the three days’ notice in writing,, and an opportunity to proceed in conformity therewith,

      Also held, that if a breach in that regard by defendant were proven, plaintiff, to recover, need not produce any certificate which under-the contract was to be procured at a time which would have been, subsequent to the breach.

      Also held, that as the contract was made by the testator for himself, his executors, etc., if defendant when executor made default, the-estate is liable.
    Another defense was, an action pending to foreclose certain mechanics’"" liens upon the amount due plaintiff on the contract, in which action* the parties to this action were also included.

      Held, no bar to this action. Also held, that the testimony of a witness, in said lien action could properly be read on the trial of this action, upon due proof of his death.

      Before Sedgwick, Ch. J., and Truax, J.

      Decided June 19, 1882.
    Appeal by plaintiff from judgment rendered by-jury, under direction of the court in favor of the defendant.
    The complaint alleged that the plaintiff and defendant’s testator entered into a building contract that the plaintiff performed all the covenants and conditions to be by said contract performed, on his part, down to a certain day, after the death of the testator, when the defendant refused to allow the plaintiff ta proceed with the work described in the contract, and by force compelled the plaintiff to leave such work and refused to allow plaintiff to prosecute it. The action was for the amount due according to the contract up-to the time when plaintiff was compelled to leave such work, and for damages for not being allowed to complete the contract.
    The contract referred to specifications. They contained the following provisions : “The different parts-of the work are to be carried on, at such rate of progress as shall be directed by the architect, and completed at such time as shall be approved by him, and such a number of workmen as he shall decide to be-proper and expedient, shall at all times, be employed upon the works.....And if, in the opinion of' the superintendent, the several works or any portion thereof are not proceeded with at a rate which will ensure the completion of the several portions thereof, or the whole of the same, in such a manner and at the date stipulated in the contract, then the said superintendent shall be fully authorized to proceed to cause-said works to be executed or any portion thereof, as he shall deem advisable, purchasing all such materials as shall be necessary for the purpose, and the entire expense and outlay so incurred beyond the contract-price, shall be charged to the contractor under this contract and shall be fully allowed by him to the owner on the final settlement, etc.”
    The body of the contract contained the following provision: “4th. Should the contractor at any time during the progress of said works refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen after three days’ notice in writing being given to finish the said works, and the expense shall be deducted from the amount of the contract.”
    The court directed a verdict for the defendant.

      L. Laflin Kellogg, for appellant.

      John Townshend, for respondent.
   By the Court.—Sedgwick, Ch. J.

The ninth defense was, that “ the work was not proceeded with by the plaintiff at a rate which would, or which in the opinion of the superintendent would insure the com-' pletion of the same at the date stipulated in said contract, and thereupon the superintendent caused the said work to be éxecuted and finished by others than the plaintiff and at a cost exceeding the amount which was payable by said contract to the plaintiff.” The materiality of this defense, if it were valid, would be, that it would justify the defendant’s act in preventing the plaintiff from performing the contract, which act the plaintiff had alleged as a breach of the contract. The defense was placed only upon the terms of the specifications. My opinion is, that these terms were to be taken together with the fourth provision of the contract, and that by the latter the right of the owner to proceed to do the work, depended upon the owner giving to the contractor “ three days’ notice in writing to finish said works.” There was no discussion at the bar, as to what should be the substance of the notice, or what would be its exact, effect upon the subsequent rights of the parties, or whether it would be necessary to give more than one notice, if, after the notice given, the contractor, though acting upon it for a time, again was guilty of neglect, which had justified the first notice. Therefore, none of these matters will be determined here. But in accordance with general principles and the specific reference of the contract, the contractor was entitled to one notice in writing and one opportunity to proceed in conformity with the notice. On the trial, the testimony as to whether any notice had been given, was of such a character that the plaintiff had, as he requested, the right to go to the jury upon his claim that the notice had not been given.

The defense that there was a pending suit to foreclose certain mechanics’ liens upon any amount that might be due to the plaintiff upon the contract, and the parties to this action were parties to such suit to ' foreclose, did not make a bar to this action (Westervelt v. Levy, 2 Duer, 355).

I think there was testimony enough to require the action of the jury upon the point as to what under the contract, if that question were reached, should have been charged against the plaintiff, and» also as to whether it was not less than would have been due to the plaintiff if he had performed the contract.

If the plaintiff established a breach by the defendant, it was not necessary for the former to produce or to account for the non-production of any certificate that the contract provided should be procured at a time which would have been after the time of the breach.

The contract was made by the testator for himself, his executors and administrators. If the defendant, when executor, was in default under the contract, the estate would be liable for its consequences.

On an assumption, which I believe to be correct, although the case does not accurately refer to the fact, that the testimony of William R. Stewart was taken in the action to foreclose the mechanics’ liens, to which the plaintiff and defendant were parties, it was competent for defendant to read on this trial that testimony, after proof that he was dead.

The judgment should be reversed and a new trial ordered, with costs of the appeal to the appellant, to abide the event.

Truax, J., concurred.


text:
    CATHARINE HOLSMAN v. LOUISIANA ST. JOHN.

      Revival of action, both parties being dead.

    The provisions of the Code directing the continuance of an action by or against the representatives of a party to the action who has died since the commencement thereof, do not include a case where all the parties are dead at the time of the motion, and by the common law such action abates.
    Before Sedgwick, Ch. J., and Freedman and Arnoux, JJ.

      Decided June 19, 1882.
    Appeal from an order made at special term denying a motion on behalf of plaintiff’s administrator to revive the action.
    The facts appear in the opinion.

      Kissam & Embury, for appellant.

      F. G. McDonald, for respondent.
    This action has absolutely abated. By the common law, the death of either party before judgment abates an action. So that it is only by reason of and under the statutory provisions that an action can be revived. Section 757 of Code of Civil Procedure provided only for the revival of an action in the event of the death of “ a sole plaintiff or defendant.” There is no section of the Code, nor is there any statute providing for the revival of an action in the event of the death of botJi a sole plaintiff and defendant.
    In Coit v. Campbell (50 Hun, 50), the court held that section 757 was inapplicable, except in cases coming entirely within its language.
   By the Court.—Freedman, J.

This action came on for trial in March, 1861, and the trial ended with the withdrawal of a juror at plaintiff’s request. Since that time both parties to the action died—the plaintiff on December 22, 1864, and the defendant on July 22, 1879. Up to the time of defendant’s death no further step had been taken in the action by the plaintiff or his representatives. On October 31, 1881, an order was obtained from one of the judges of this court requiring the executors of the deceased defendant to show cause why the action should not be continued in the name of the administrator of the deceased plaintiff. Upon the hearing the motion was denied. Indeed I do not see how it could have been granted. Aside from the objection founded upon the lapse of nearly seventeen years since the plaintiff’s death, the death of both parties to the action was a bar to the motion. The court had no longer any jurisdiction in the premises. The provisions of the Code directing a continuance of the action by or against the representative of a party to the action who died since the commencement of the action (§§ 755-760), do not include a case in which all the parties to the action are dead at the time of the motion ; and by the common law the action abated.

The order should be affirmed, with costs.

Sedgwick, Ch. J., and Arnoux, J., concurred.


author: By the Court.—Arnoux, J. Sedgwick, Ch. J.

text:
    IN THE MATTER OF THE APPLICATION OF CHARLES LAUTERJUNG FOR THE RECORDING THE BIRTHS OF HIS CHILDREN.

      Certiomri—duty of court upon—when proper.—Board of Health—duty to record births and to hear application therefor.—Laws 1880, chap. 269—construction of.

    The proper mode of reviewing the action of the Board of Health of Hew York city in refusing to register the births of children as provided by chapter 259 of the Laws of 1880, is by writ of certiorari.
    Said law being remedial, and one which affects the public, and also a rule of evidence, the provision therein, that births which fail to be recorded through neglect, may be recorded by said Board, in a special book, etc., applies to all births whether before or subsequent to the passage of the act.
    The Board of Health is bound to examine and pass upon such application upon presentation of the proper facts; and it is no defense to a refusal so to do, that the relief prayed for is in contravention of a rule of the board adopted by it.
    Though the language of the statute is permissive, as it affects public interest, the duty of recording such births is obligatory upon the board, when the statutory proof is made. Per Aenoüx, J.
    The statute provides that the entries of such unrecorded births shall be made in a special book, and therefore, they do not fall within the meaning of that clause of the second section of the act providing that “ no change or alterations shall ... be made in the records . .without proof satisfactory to and upon the approval of the said board,” and consequently the board has no general discretion thereunder to deny such application. Per Aenoüx, J.
    The powers and duties of said board, and the practice to be followed in such examinations, considered by the court.
    The principles governing the court in the considerations of matters brought before it upon certiorari, stated.
    Before Sedgwick, Ch. J., and Arnoux, J.

      Decided June 19, 1882.
    Certiorari to review the action of the Board of Health of New York city, in refusing to register the births of two of the relator’s children, born, prior to May 11, 1873.

      The facts appear in the opinion.

      Alfred Erbe, for the relator.

      William P. Prentice, for the Health Department, respondent.
   By the Court.—Arnoux, J.

Until the decision of the court of appeals in the year 1868, in the case of the The People ex rel. Cook v. The Board of Police (39 N. Y. 506), the tendency of the courts in certiorari cases, was to refuse to examine into the evidence or to determine any question beyond that of jurisdiction. This permitted inferior tribunals and magistrates to exercise their powers in an arbitrary, high-handed and unjustifiable manner, and made them more absolute than any court of original jurisdiction. The case above cited brought to the attention of the court an illustration of the despotic action that such boards may take when beyond the reach of review. The relator, Cook, was illegally dismissed from the police force, and prevented from exercising his duties as patrolman. The supreme court declared his removal illegal, and adjudged that he be restored to his position. This order was obeyed, and immediately thereupon he was charged with neglect of duty in being absent without leave. On this charge he was tried by the commissioners who had suspended him, found guilty and sentenced to forfeit his pay during the time of his absence. It was this action of the board that was reviewed by the court of appeals. ¿There able counsel contended that the court was bound by the record. This question was examined with exhaustive research by that distinguished ornament of the bench, the late Judge Woodruff, and the able opinion that he wrote, unanimously concurred in by the other judges of the court, marks a new departure in the law relating to certiorari in this State. This case has been followed, in the cases of The People ex rel. Haines v. Smith (45 N. Y. 772) ; People ex rel. Folk v. The Board of Police (69 Ib. 408); People ex rel. Miller v. The Board of Police (6 Hun, 229) ; People v. Betts (55 N. Y. 600); People ex rel. Clapp v. The Board of Police (72 Ib. 415); People ex rel. Sanders v. Special Sessions (5 T. & C. 260); People ex rel. Freeman v. Hulburt (46 N. Y. 110, 114); People ex rel. Kehlbeck v. Walsh (11 Hun, 292, 293); People ex rel. Sibert v. Police Commissioners (20 Hun, 333).

The law to-day on this subject is well stated in the syllabus of the case above cited in 6 Hun, 229 : “ Up-' on a common law certiorari it is the duty of the court to examine the evidence and determine whether there was any competent proof of the facts necessary to authorize the adjudication, and whether, in making it, any rule of law affecting the rights of the parties has been violated.”

Notwithstanding the fact that the Board of Health had jurisdiction to make the order complained of, under the foregoing decisions, it becomes the duty of this court to examine the proceedings, to ascertain and determine whether the order of the said board was right and proper.

This matter is properly brought before us by writ of certiorari. The cases of People ex rel. Noel v. Board of Health; In re Rosenbaum and In re Meert, were cases of application for mandamus, and were properly denied, because the parties had not obtained the proper writ. They have no application to this c¡rse.

Upon an examination of the record we find that the relator had two children born prior to May 11, 1873, whose names had never been recorded in the bureau of vital statistics. In the year 1873, the Board of Health adopted certain rules, among others, one known as rule No. 49, which is as follows: “No alteration of the records of births, marriages or deaths, or of any papers relating thereto, shall be made without the written order of the board. No alteration whatever shall be made of the records of births, marriages or deaths which occurred prior to May 11,1873 ...” In 1881, the relator applied to the board to have the facts of the births of said children duly entered in the records of said bureau under the provisions of the law of 1880 (ch. 259, p. 389) which enacts that “the births of children which fail to be recorded through the neglect of the physician or other medical attendant present at such birth, may be recorded under and pursuant to the provisions of this act in the bureau of vital statistics of the Health Department of said city, in a special book to be kept for such purpose, upon application in such behalf by the parents or guardians of such children. . . . Such application shall be made to the Board of Health of the Health Department of such city, and shall be accompanied by a certificate of the physician or midwife attending professionally at such birth and personally cognizant thereof, together with the affidavit of at least two citizens, certifying to their knowledge of the facts, and that the physician or midwife making such certificate of birth is a reputable person in good standing in the community in which he or she may reside.” The papers presented to the board, in form complied with the law. Instead of hearing the proofs and passing thereon, the board referred the matter to their counsel, who reported adversely to the application because of said rule 49. The board thereupon denied the application.

The law of 1880 is a remedial statute, and must be liberally construed. It is a rule of evidence, and adjudications respecting retroactive statutes have no application. Therefore, the provision in respect to births of children which fail to be recorded, applies to all unrecorded births, before as well as subsequent to the act. The cases cited by the counsel for the board (Amsbry v. Hines, 48 N. Y. 61; McCahill v. Hamilton, 20 Hun, 388 ; Watkins v. Haight, 18 Johns. 138; Burley v. Rampacher, 5 Duer, 188), do not affect this case. Where the proofs are satisfactory, the board, under the law, must record such birth ; for the provision that such births may be recorded, under the principles governing the construction of laws affecting the public, make the duty obligatory where the law has been complied with.

In Lucas v. Ensign (4 N. Y. Leg. Obs. 142), it was held that a statute enacting that a deputy county clerk “ may,” under certain circumstances, “ perform all the duties appertaining to the office of county clerk,” was mandatory and not merely permissive, because . the public and third persons have an interest in having certain acts performed. To the same effect are: Hutson v. Mayor (9 N. Y. 163, 168) ; Mayor v. Furze (3 Hill, 612, 615); Livingston v. Tanner (14 N. Y. 64, 67) ; People v. Supervisors of New York (11 Abb. Pr. 114); Phelps v. Hawley (52 N. Y. 23); People ex rel. Fiske v. Brooklyn (22 Barb. 404) ; People v. Board of Supervisors (56 Barb. 452 ; People v. Supervisors of Greene Co. (5 Hun, 650); People v. Board of Supervisors (51 N. Y. 401); Hagadorn v. Raux (72 N. Y. 583, 586).

If rule 49 therefore were an impediment to granting the petition, it has been abrogated by the act of 1880 (Gormely v. McGlynn, 84 N. Y. 284).

It is insisted that the board has a general discretion to deny this application, by virtue of the closing sentence of the second section of said act, which is in these words : “No change or alteration shall at any time be made in any of the records of the said bureau of records in said city without proof satisfactory to and upon the approval of the said Board of Health.” The learned counsel for the relator claims that the entry applied for is neither a change nor an alteration. But the court would hesitate, if the case turned upon that question, to determine that such an addition did not constitute a change or alteration. Both the counsel for the relator and the counsel for the Board seem to have overlooked the fact that under the law of 1880, unrecorded births belong to a class sui generis, and that the act expressly provides that these entries are to be made in a special book to be kept for such purpose. It does not affect the records heretofore made by the register of records under Laws of 1873, ch. 335, § 81, nor does it make any change or alteration in 'any existing records.

Under the law of 1880, the Board is bound to examine and pass upon the application of the relator, ánd unless proof is offered to contradict the facts alleged in the petition and affidavits, it is bound to grant his petition and make the entries therein prayed for. This duty has not been in any respect performed by said Board, as appears by the return before this court, and the opinion and reason given by the counsel for the Board do not furnish authority for the action of the Board upon said petition.

Judgment for the relator reversing the order of Board, and requiring it to proceed to hear and act upon the petition according to law, with costs.

Sedgwick, Ch. J.

[Concurring.]—I agree with Judge Aknoux that such rights as the relator has in the premises, are given and limited by chapter 259, Laws of 1880; that the Board of Health is bound to exercise in a proper manner the power to record births conferred upon it in that statute, and it should have proceeded to hear and determine the application of the petition of Lauterj ung.

I also am of opinion that the statute embraces cases where the birth was before the statute was passed. Whatever the purposes, chief or subordinate of the act, they would be served, by having a supplementary record of births that had not been previously recorded. The particular clause in question has words different from the other contingency of the act. The latter is the case of births that " may have occurred during the temporary absence, etc.” The present case is of births “ which failed to be recorded through neglect.” These words may properly, I think, be held to refer to births before the statute.

The growing density of population in this city; the increasing number of large estates ; the increasing likelihood of claims of descent by branches collateral in families, and of claims of descent from persons dying in Europe leaving property to be inherited or distributed, will probably in the future give rise to litigations, rare, here, at present, although numerous abroad, which must be determined by evidence as to actual •condition of families, pedigree and legitimacy. Our international relations have been and are likely to be, affected by contests as to citizenship, in which the place •of birth is an important and sometimes controlling factor. This conditions of things, and the experience of other countries, as well as the demand for correct statistics, have induced the establishment in this city, of a system of recording births. This system will no doubt involve a furnishing of evidence in particular cases as to the fact of birth. It is impossible to overestimate the advantages of the statute if it be properly administered. If it be not, the results will be injurious. The system is new, and may easily be directed by an appreciation and application of correct principles. The ,creation of the statute, it is meant, shall result in a benefit to the infant for whom the application is to be made. This benefit the Board should regard.

Upon an application, it is» my opinion, that the Board has the power to examine into the facts. This need not be confined to taking testimony from witnesses in presence of the Board, and by direct cross-examination. Testimony may be given, in the shape of affidavits. The parties making or sustaining the ■application may be required to attend before the Board for examination. The lapse of time, between the •alleged birth and the application, may be considered and receive due weight. So much has been said, not with an intention of describing exactly the practice ■that should be followed, but to indicate that although the Board should entertain an application like the present, it also has the duty of making an examination, with a view to a judgment that shall be within the intent and policy of the statute. It is improper to state now what weight of proof calls for the recording, or what condition of the proof, or degree of doubt, or grave suspicion will justify a refusal to record. It is evident that some things must appear to be alleged by •the application, and such things the Board must examine. They are, 1st, the fact of birth ; 2d, in some ■eases, that the parents were actual residents; 3d, in those cases, that the birth occurred while the parents were temporarily absent; or 4th, in other cases that the birth failed to be recorded through the neglect of •the physician, etc.; and 5th, such other facts as have to be alleged in the petition.

The statute says that the Board may in its discretion give a transcript of a record. It is unnecessary to determine what is the duty in this regard. At present there is no record of the births.

I therefore agree with Judge Abnoux that the application should be remitted to the Board, to be heard and determined by it.


author: By the Court.—Arnoux, J.

text:
    JOSEPH RICHARDS, Appellant, v. THE MAYOR, &c., OF NEW YORK CITY, Respondents.

      New York City—responsibility as to highways—annexed district.—Department of Public Parks.—Statutory construction.

    In respect to injuries caused by reason of the improper condition of its highways and bridges, the city of New York, is liable in that part thereof known as the annexed district (Laws 1874, chap. 329), to the same extent as it is in the rest of the city, and the Department of Public Parks in that regard is simply a part of the city’s machinery and a subordinate department, notwithstanding the language of section 14, chap. 329, Laws 1879, which provides that said department shall have exclusive power to locate, construct and maintain all parks, roads, bridges, etc,, within said annexed district.
    When the corporation became possessed of said new territory with its highways, it thereby became liable for the consequences of neglect to keep such highways in repair, irrespective of the provisions of said act.
    The intent of the legislature, as evinced by the theory of the government of said city, by the language and construction of other acts relating to said department, and by the act in question,—considered by the court in arriving at the above conclusion.
    Before Sedgwick, Ch. J., Freedman and Arnoux, JJ.

      Decided June 19, 1882.
    Appeal from judgment dismissing the complaint at the trial, and from an order denying a motion for a new trial.
    The facts appear in the opinion.

      D. & T. McMahon, attorneys, and D. McMahon and Charles P. Miller, of counsel, for appellant.

      William C. Whitney, corporation counsel, and D. J. Dean, of counsel for respondents.
    I. The power and duty of caring for and maintaining the bridge in question is conferred by statute upon the commissioners of the department of parks, and not upon the defendants' (L. 1874, c. 359, §§11, 14).
    II. The commissioners of the Department of Parks are independent agents, acting under legislative authority, and are not under the control of the city or the agents of the city, nor are their agents the servants of the city.
    The independent character of the commissioners of the Department of Parks continues, though it has' become a “Department” enumerated in the charter (Maximilian v. Mayor, 62 N. Y. 166 ; Ham v. Mayor, 70 N. Y. 459).
    “The rule of respondeat superior is based upon the right which the employer has to select his servants, discharge them if not competent, skillful and well-behaved, and to direct and control them, while in his employ” (Maximilian v. Mayor, 62 N. Y. 163; Pack v. Mayor, 8 Id. 222; Kelly v. Mayor, 11 Id. 432; Blake v. Ferris, 5 Id. 48).
    The liability of a corporation for failure to keep highways in safe condition for use exists without a positive statute declaring it, only when the following conditions concur: 1. The place in question, whether bridge, sidewalk or street, must be one which it is the duty of the corporation to repair or keep in safe condition. 2. This duty or burden must appear, upon a fair view of the charter or statutes, to be imposed, or to rest upon the municipal corporation as such, and not upon it as an agency of the State, or upon its officers as independent public officers ” (Dillon on Mun. Corp. §§974, 1007; New York and Brooklyn Saw Mill Co. a. City of Brooklyn, 71 N. Y. 580). A municipal corporation is not liable for the misfeasance of one of its public .officers, with respect to a duty specifically imposed by statute on the officer (Martin v. The Mayor, 1 Hill, 545; Lorillard v. The Town of Monroe, 11 N. Y. 392-396). Where the right of employment and the authority to control are both wanting, no agency can exist ” (Baily v. The Mayor, 2 Den. 433 ; Russell v. The Mayor, 2 Den. 473-481; Hafford v. City of New Bedford, 82 Mass. 297 ; Fisher v. Boston, 104 Mass. 87; Walcott v. Swampscott, 83 Id. 101; Buttrick v. Lowell, 83 Id. 172; Terry v. Mayor, 8 Bosw. 504; O’Meara v. Mayor, 1 Daly, 425). The common law doctrine of the implied liability of a municipal corporation for neglect to perform the duty imposed by its charter, is that such corporations are liable for acts done in what is termed their private or corporate-character, from which they derive some special or immediate advantage or emolument, but not as to those-done in their public capacity, in the discharge of duties imposed for public or general, not corporate,, benefit (Dillon on Mun. Corp. ; Hill v. Boston, 122; Mass. 344; Dissenting opinion Sanford, J., in Hutson v. Mayor, 5 Sandf. 305).
    The doctrine, upon which the City of New York, has been held liable for defects in the highways, is a. departure from the principles of the common law, and rests only upon a line of precedent decisions, which, are conceded ‘to have been founded upon an illogical confusion of duties essentially different in characteir (Dillon on Mun. Corp. § 1045).
    If the officers upon whom the duty is cast by the-statute are independent of the corporation in the-mode of discharging their duties, they are not the servants or agents of the corporation, but public or State-officers, with such, duties and powers as the statute prescribes, and no action lies against the corporation for their acts or negligence (Ham v. Mayor, 70 N. Y. 463; Maximilian v. Mayor, 62 Id. 162. See also New York and Brooklyn Saw Mill Co. v. City of Brooklyn,. 71 N. Y. 584).
    The legislature may thus confer power upon independent public agencies, to be exercised within the-limits of a municipality independent of control by it;. (People ex rel. Bransom v. Walsh, 36 Am. Rep. 135; Dillon on Mun. Corp. § 527).
    The Commissioners of Parks are liable for neglect of duty in respect to the performance of the executive-powers devolved upon them (Hoover v. Barkhoof, 44 N. Y. 125; Robinson v. Chamberlain, 34 Id. 389; Fulton Fire Ins. Co. v. Baldwin, 37 Id. 648; Adsit v. Brady, 4 Hill, 630).
    The law does not recognize two principals, who are-unconnected and severally responsible (Maximilian v. Mayor, 62 N. Y. 193 ; Laugher v. Pointer, 5 B. & C. 560 ; Hobbit v. L. and N. W. R. R., 4H. & G. Ex. 244; Pack v. Mayor, 8 N. Y. 222).
   By the Court.—Arnoux, J.

This action was-brought to recover damages for a serious injury which the plaintiff sustained on July 7, 1880, by reason of a defect in a bridge at One-hundred and-sixty-first street, and in that part of the city of Hew York, formerly part of Westchester county, commonly known as the annexed district. When the plaintiff rested his case, the complaint was dismissed, upon the ground that whatever negligence was-shown was the negligence of the Park Commissioners, and “ that the plaintiff has no right to recover from the city for the neglect of the Park Commissioners, who-acted by a definite appointment of the legislature.” The only question, therefore, to be considered by the court is, the relation of the Park Commissioners to the city government in respect to the public highways of tire annexed district.

The Commissioners of Central Park were originally appointed in 1857 (chap. 771) for the government of said park, and by section 4 of that act, all the power and authority now by law conferred or possessed by the common council of said city in respect to public squares and places in the city” were conferred upon said commissioners.

In 1859 (chap. 363), the widening of Seventh avenue-was authorized, and the Commissioners of Central Park were directed to regulate the same.

In 1874 (chap. 375), said commissioners were given all the powers and were- authorized to perform all the duties in relation to widening, opening, laying out, grading, regulating, sewering, paving and improving Seventh avenue, that the city or any of its departments possessed.

In 1865 (chaps. 564, 565), part of the city above Central Park was placed under their jurisdiction, with the same power, for the purpose of regulating, grading and improving the streets in said district, that was given them in respect to Seventh avenue.

In 1866 (chap. 367, § 7; chap. 757, § 3), the control and management of certain streets and avenues and the upper part of Broadway or Bloomingdale Road, were transferred to said commissioners.

In 1867 (chap. 580, § 2 ; chap. 697, § 9), the regulating and grading of Eighth avenue, and the control and management, and the regulating and improving of other streets and avenues were transferred to said commissioners.

In 1870 (chap. 137, §§ 95, 96), these commissioners became Commissioners of Public Parks with áll the powers and duties before conferred.

The annexation of the southerly portion of Westchester county was effected, January 1,1874, and in that year (Laws 1874, chap. 329, 432, § 1), the legislature made and constituted the annexed district “a part of the city and county of New York, subject, to the same laws, ordinances, regulations obligations and liabilities, and entitled to the same rights, privileges, franchises and immunities in every respect, and to the same extent, as if such territory had been included within said city and county of NTew York, at the time of the grant and adoption of the first charter and organization thereof, and had so remained up to the passage of this act.”

Said act further provided in section 14: “The Commissioners of the Department of Public Parks of the City of New York shall have the exclusive power to locate and lay out, construct and maintain all public parks, streets, roads and avenues, and to devise plans for and locate all bridges and tunnels, and shall have exclusive control of the maintainance and construction of all public parks within the territory hereby annexed, and to construct and maintain all bridges, tunnels, sewers, streets, roads and avenues so laid out.”

The accomplished counsel for the corporation admits that the defendant would have been liable for this accident, if it had occurred in the city and county of New York, but contends that the provisions above quoted have made a different rule in respect to the annexed district..

Since the year 1834, or 1835, the city of New York has been allowed to select its own mayor, and to be, in a general sense, self-governed. It cannot be supposed that it was the intention of the legislature to elevate a subordinate branch of the city government into an independent body that should have no legal local master, and should thus become an imperium in imperio; nor, if there were such intent, that the legislature would make it servant on one side of the Harlem river and master on the other. There must, therefore, be the strongest and most conclusive evidence of such intent to justify the court in coming to such a conclusion.

Now, it is evident from the review of the laws above cited, that the authority of these commissioners is no more exclusive over the annexed district than it is over certain streets and places in the city and county of New York, and the fact that the language employed in those acts, after construction has been given to them to the effect that the city was master, evinces an intent that the same construction should be given to it in the act in question.

Any other construction would be prejudicial to the tax-payer, whose interests the legislature must intend to subserve. The injured party would not be remediless on defendant’s theory, but this action would be against the Board or its members. It, or they, would necessarily employ counsel to defend. The additional legal expenses and the additional chance of recovery against the defendants, would eventually be borne by the tax-payer, the ultimate sufferer. So, in this view of the case, we think the legislature never intended such results to flow from this legislation.

Now does the law itself bear such construction. The first section, as we have seen, makes the annexed district a part of the city and county of New York, subject to the same laws, obligations and liabilities in every respect and to the same extent as if such territory had been originally part of said city. Section 14 does not in the least degree conflict with, abridge, or modify this. If such territory had originally been, and had continued to be part of the city of New York, under the laws now in force as interpreted by the court of appeals, the defendant would be liable for this accident, as the case was presented to the court below, and would be obliged to pay for it. Before the passing of chapter 329, of Laws of 1874 (p. 440), or of the law which it amended, it was the legal duty of the corporation of the city to keep in repair the highways and streets, as they then existed. In Maxmilian v. Mayor (62 N. Y. 160), the opinion contained the following sentences: “ And the duty of keeping in repair streets, bridges and other common ways of passage and sewers, and a liability for a neglect to perform that duty, rests upon an express or implied acceptance of the power and an agreement so to do. It is a duty with which the city is charged for its own and corporate benefit, to be performed by its own agents as its own corporate act (Conrad v. Trustees of Ithaca, 16 N. Y. 158).”

It does not seem necessary to consider that section 14 of chapter 329 of Laws of 1874,was intended to prevent the duty that existed as to the highways of the old territory, being devolved upon the corporation as respects the highways of the new territory. Before section 14 could go into operation, and irrespective of its provisions, the corporation, as such, became possessed of the new territory with its highways. Upon that, considered by itself, the corporation, under the opinion of the court in the Maximilian case, became liable for any consequence of a neglect to keep the highway in repair. Therefore section 14 is to be understood as a designation of the officers of the corporation who, as officers and agents, and not exercising a power directly conferred upon themselves, should lay out and maintain the highways of the annexed district. The corporation was. to act through them. Whatever they should do or omit to do, was to be the act or omission of the corporation. Their neglect to repair highways would be the neglect of the corporation.

Nor should this court be astute to endeavor to discover any intent of the legislature to free the city from liability, because such liability is illogically imposed. Conceding, for the sake of the argument, that in cases of this character at common law the defendant would not be liable; conceding that the courts in Massachusetts (Hill v. Boston, 122 Mass. 344) have remained true to the common law, and that the courts of this state have diverged from the true doctrine ; conceding that Judge Dillon, in his able work on municipal corporations, is sound in his comments on that decision; nevertheless, the doctrine of corporate liability for accidents of this character is too firmly established in this state to be frittered away by hostile decisions. We believe our courts are right, for the fundamental basis is solus populi suprema lex, and even Judge Dillon is compelled to admit (§ 1023) that the doctrine works well, and is just, and while it must be admitted to be exceptional, it may, we think, be indicated as resting upon the special nature of the duty itself, which is intrinsically ministerial, and upon the ample means which are supplied for its performance.” Ho such construction as the defendant contends for can be given to this act.

In respect to the injuries sustained from the improper condition of its highways and public places, the defendant is liable in the annexed district to the same extent as it is in the rest of the city, and the Department of Public Parks in that regard is simply a part of the city’s machinery and a subordinate department.

The judgment appealed from must be reversed, and a new trial ordered, with costs to appellant to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.


author: “Russell, J. By the Court.—Sedgwick, Ch. J.

text:
    EMMA F. TEMPLE, et al., Respondents, v. WILLIAM D. SAMMIS, Appellant.

      Will-construction of apparently conflicting elmses as to estate devised.

    Where a will, after giving to the testator’s wife a life estate in certain real property, makes the following provision: “And upon her decease I give and devise the same absolutely to my daughters, . . . share and share alike,” and also contains a second clause, as follows: “All the rest of my real estate, subject to the dower of my wife, I give and bequeath to my'said two daughters in equal shares, the same and allother property given and devised to them, to be to their sole and separate use, free from the debts, engagements and control of any husband ; to have and to hold for and during the period of their respective natural lives, and upon their decease I give and devise their respective shares,” etc.,—the daughters take an absolute remainder in fee in the property devised in the former clause.
    The phrase “ and all other property,” in the said second clause, is to be deemed as used only for the purpose of indicating the intention of the testator that all his property given to his daughters should be for their sole and separate use, free from the control of their husbands, and not for the purpose of limiting the estate in the “other property,” already given, to a life estate.
    The effect of the use of the words “and all other property, ” in said second clause, is to re-affirm the devise of a remainder in fee contained in the former clause.
    Before Sedgwick Ch., J., Freedman and Arnoux, JJ.

      Decided November 6, 1882.
    Appeal by defendant from judgment rendered on decision of a judge at special term.
    Action for the specific performance of a contract to purchase real estate.
    The plaintiffs contracted to sell, and the defendant to purchase, the premises known as 13 West Thirty-second street in this city, for the sum of $40,000. When the time came to close the title the defendant objected that the plaintiffs were not the owners of the fee, but only of a life estate, and refused to accept the deed tendered, whereupon the vendors brought this action.
    The plaintiffs derive their title from the will of their father, Pierre K. Francis, who died in February, 1876. The terms of the will, so far as they relate to this subject, are as follows:
    “I give and devise unto my wife, Rosalie, the lot of ground and house thereon in Thirty-second street, city of New York, wherein I now reside, with all the furniture, fixtures and ornaments, to have and to hold unto her for and during the period of her natural life, and upon her decease I give and devise the same absolutely to my daughters, Emma and Virginie, share and share alike.
    “All the rest of my real estate, subject to the dower of my wife, I give and bequeath to my said two daughters' in equal shares, the same and all other property given and devised to them, to be to their sole and separate use, free from the debts, engagements and control of any husband; to have and to hold for and during the period of their respective natural lives, and upon their decease I give and devise their respective shares to their respective lawful issue absolutely ; and in case of the decease of either my said daughters, without issue her surviving, I give and devise her respective share to the survivor, to have and to hold for and during the period of her natural life, and upon her decease I give and devise the same to her lawful issue absolutely.”
    Mrs. Francis died some three years ago. Both the daughters married and both have children now living —Mrs. Temple six, and Mrs. Brett two.
    The following opinion was delivered at special term:
   “Russell, J.

[After stating the facts as above.]— The plaintiffs’ counsel claims that the first clause of the will, above recited, devising the property in question to the daughters absolutely upon the death of their mother is controlling, and the intention indicated therein, so far as the property in question is concerned, ought not to be considered as limited by the latter clause.

“The defendant’s counsel claims that the latter clause of the will is controlling of the former and clearly evinces the intention of the testator to devise only a life estate in the property in question to his daughters.

“There can be no doubt that if the first clause of the will above quoted, 'I give and devise the same absolutely to my daughters,’ were the only one relating to the property therein devised, it would carry an absolute fee. The provision of the Bevised Statutes, that every devise shall be construed to dispose of the whole estate, unless expressly limited to a part of it (2 R. S. 6th ed. 1130, § 1), and the comprehensive scope of the word “absolutely” sufficiently determine that (Oswald v. Kopp, 26 Pa. St. 516).

“The second clause, beginning ‘ all the rest of my real estate,’ as clearly gives only a life estate in the property therein devised. The language is too clear to leave room for any discussion as to that. If then, both clauses were intended to include the property in question, so far as the nature of the estate given is concerned, the clauses are in conflict, and the later clause limiting the estate apparently given by the former must prevail.

“All the parts of a will must be taken together and each part construed in the light of the other. ‘ Although a devise to a person and his heirs, gives him an estate in fee simple, yet if the word ‘ heirs ’ be qualified by any subsequent words which show the intention of the testator to restrict it to the heirs of the body of the devisee, the word ‘heirs,’ as first used, must be read as ‘issue,’ and would before the abolishment of entails have created an estate tail (6 Greenleaf' s Cruise, 232, § 7; Smith v. Scholtz, 68 N. Y. 41).

“A long line of cases has established the rule that where the intention of the testator to limit an estate apparently given in the earlier part of a will to a lesser estate, is clear from subsequent clauses of the will, the later clauses will determine the extent of the estate (Sims v. Doughty, 5 Ves. 247; Williamson v. Daniel, 12 Wheat. 568; Smith v. Bell, 6 Pet. 68; Covenhoven v. Shuler, 2 Paige, 122 ; Parks v. Parks, 9 Id. 106; Bradstreet v. Clark, 12 Wend. 602; Mason v. Jones, 2 Barb. 229 ; Chrystie v. Phyfe, 19 N. Y. 344 ; Terry v. Wiggins, 47 Id. 512; Taggart v. Murray, 53 Id. 233; Colt v. Heard, 10 Hun, 189 ; Van Nostrand v. Moore, 52 N. Y. 12; Bundy v. Bundy, 38 Id. 410; Striker v. Mott, 28 Id. 82).

“ But it is also a rule of equal force that, in order for such a construction to obtain, it must be clear that it was the intention of the testator to limit by the latter clause in his will the estate apparently given in the former one (Roseboom v. Roseboom, 81 N. Y. 356).

“The question then is, did the testator in this case intend by the second quoted clause in his will to limit to a life estate the fee apparently devised by the first quoted clause ? The second clause is, ‘All the rest of my real estate, subject to the dower of my. wife, I give and bequeath to my said two daughters in equal shares, the same and all other property given and devised to them to be to their sole and separate use, free from the debts, engagements and control of any husband; to have and to hold for and during the period of their respective natural lives, etc.

“ There is clearly in this clause an allusion to the property given by the first.clause. It is included in the words “ all other property but I am of the opinion that the words as used in the second clause are used there only for the purpose of indicating the in-, tention of the testator that all his property given to his daughters should be for their sole and separate use, free from the control of their husbands, and not for the purpose of limiting the estate already given to the daughters in the “other property” to a life e'state. It seems to be a sort of parenthetical infinitive clause, occurring to the testator at the moment, and inserted in the devise of all the rest of his property for the purpose I have stated. The words ‘ the same and all other property ’ are not the objects of the word ‘ give,’ but only in apposition with the object to indicate still another purpose in regard to it. The word ‘give’ thereafter, does not sweep them forward into the embrace of ‘to have and to hold’ so as to make them its objects.

“ While it may be said that the language is capable of the construction claimed by the defendant without a violation of the rules of grammar, I still think that it would be an unnatural and strained construction, and not the one which, on the whole will, indicates the intention of the devisor.

“ In all the cases relied on by the defendant it was the clear intention of the testator not only to include in a later clause the same property devised or bequeathed in a former one, but to limit the estate given by the former clause (see cases cited above). In this it seems to have occurred to the testator, as he was writing the residuary clause, that it would be wise to provide that the property devised to his daughters should be for their separate use, and that such provision should extend not only to the property therein devised, but to that already specifically given by a former clause of the will.

“ Taggart v. Murray (53 N. Y. 233), is as strong as any of the cases cited in favor of the defendant’s contention. The will under construction there read as follows: ‘ First.—After all my lawful debts and demands and funeral expenses are paid and satisfied, which I direct shall be done in due season by my executors hereinafter named, I do give and bequeath unto my daughter Cornelia all my estate, personal and real, except the following sums or portions which I wish to be paid, by my executors as soon as may be, to the several persons following, to wit: ’ (Then follow bequests of sums of money to several different persons.) ‘ All my remaining property, dwelling house lands, outhouses, furniture, money, movables, &c., I give, devise and bequeath to my daughter Cornelia for her support and comfort, to be held and controlled by her, and, at her death, to pass to her heirs, or if she leaves no heirs, to be disposed of by her in will to whom and for what purpose she may deem right and proper.’

“It was held that this will gave to the daughter an estate for life, in the lands of which the testator died seized, with remainder to her issue living at her death, and with power, in default of issue, to appoint the fee by will, and that, therefore, a conveyance by the daughter and her living children, did not give an absolute title to such lands, as it was subject to the. contingency that children might thereafter be born who would take an.interest as purchasers under the will. The words all my remaining property ’ (given to the daughter for life in the residuary clause of the will), cover precisely the same property covered by the words all my estate, personal and real, except the following sums or portions,’ given without words of limitation, in the earlier part of the will.

“ The same distinction is clear between the case at bar and all the cases cited in the- very able and carefully prepared brief of the defendant’s counsel.

“In Roseboom v. Roseboom (81 N. Y. 356), the rule under construction contained the clause:

“ ‘ I give and bequeath my beloved wife, Susan, one third part of all my property, both real and personal, and to have the control of my farm as long as she remains my widow, . . . and at the death of my wife, all my property, both real and personal, to be equally divided between my eight children.’ It was held that the widow took an absolute fee in one third of the premises. Dareobth, J., delivering the opinion, says: ‘ The residuary clause is not repugnant to the prior gift, and the devise may take effect according to its terms. We thus follow the rule which requires a will to be so construed as to avoid, if possible, all repugnancy, and give effect to all its language. We have here no occasion to depart from it; the. two clauses are not irreconcilable, and there is no occasion, therefore, to reject one in order to uphold the other—a desperate remedy, and to be resorted to only in case of necessity —so that one rather than both provisions should fail (Trustees, &c. v. Kellogg, 16 N. Y. 83; Van Nostrand v. Moore, 52 Id. 20 ; Covenhoven n. Shuler, 2 Paige, 122). This case is within the rule stated by the Lord Chancellor in Thornhill v. Hall (2 Clark & Fin. 22), as one which admits of no exception in the construction of written instruments—that where one estate is given in one part of an instrument, in clear and decisive terms, such estate cannot be taken, away or cut down by raising a doubt upon the extent or meaning or application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that estate.

John H. Cole, for appellant.

George Zabriskie, for respondent.

“Under the authority of this decision it would be enough to sustain the plaintiff’s contention in the case at bar, that the words in the second clause of the will which the defendant claims limit the estate given in the first, are not as clear and decisive ’ in limiting such estate as the words of the clause giving it.

“I do not, however, rest my conclusion upon that rule of construction, but upon the ground, that in the will now under construction, employing only commonplace rules and observations, it clearly was not the intention of the testator to limit by the second clause the estate given in the first.

‘ ‘ The view I take of this matter renders it unnecessary to discuss the question in relation to the statute of perpetuities, which would become important if it were held that the second clause was intended to limit the estate of the plaintiffs in the property which is the subject of this action.

“There must be judgment for the plaintiffs with, costs.”

By the Court.—Sedgwick, Ch. J.

I am of opinion that Judge Bussell disposed of the case correctly, for the reasons given by him.

A single suggestion may be made. It would be a mistake to assert that substantially the habendum clause “for and during the period of their respective natural lives” in the devise of “all the rest of my real estate,” etc., is the ■ only description in that devise of an interest intended to be devised. When in that de-‘ vise the words “ and all other property given and devised to them ” occur, these words of reference show that the other property is the remainder in the Thirty-second street house, habendum in fee, and they also re-affirm the former devise. The devise may then be read as follows: “ All the rest of my real estate I give and bequeath to my said two daughters in equal shares; the same and the remainder in the Thirty-second street house, which I have before devised and do now devise to them, habendum in fee, to be to their sole and separate use, free from the debts, etc., of any husband, habendum for and during the period of their respective natural lives.”

It is seen that the several parts of this clause do not make prior and successive devises. They are contemporaneous and co-valid dispositions.. The only construction is to distribute the habendum clauses so that the second applies to the rest and residue of the real estate. The first habendum clause is evidently to be applied solely to the subject of the former devise to the daughters.

The judgment should be affirmed without costs.

Freedman and Arnoux, JJ., concurred.