author: Van Brunt, P. J.:

text:
    Newman Cowen and Others, as Executors, etc., of Marks Rinaldo, Deceased, Respondents, v. Minnie Rinaldo and Others, Appellants, and Others, Respondents.

      Will — a trust to collect rents, etc., void as unduly suspending the power of alienation— when not within the provisions of the statute ■ — when sustained by cutting off ulterior limitations — when the entire will is invalid — the testator’s intention not contra/cened in order to sustain the will.

    A testator by his will suspended the power of alienation of all his real and personal property during the lives of two of his children, then in being, until their arrival at twenty-one years of age, and in case of the death of such children, before reaching the ago of twenty-one years, directed that his real estate be sold and that certain of the proceeds be paid to certain legatees absolutely, and that certain other portions thereof be held during additional lives or upon additional contingencies.

      Held, that as the right to suspend the absolute vesting of the ownership in any part of the estate could only be limited upon the lives of such two children of the testator, the attempt to engraft upon such suspension additional limitations of ownership'was not authorized by the statute, and that such limitations were necessarily void;
    That if, however, it were possible to separate the limitations which were void from the bequests which were valid, it was the duty of the court to do so.
    The trust, provided for by the subdivision of the statute authorizing the creation of a trust to sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon, is a provision for alienation and not for the suspension of the power of alienation. Such a trust is a trust to sell land, or some interest in it, and the land descends subject to the execution of the trust, but no power is given by the statute to collect the rents.
    The evident intention of the statute is to permit the creation of a trust to sell land and receive the proceeds thereof for the benefit of creditors or for the benefit of legatees, or for the purpose of satisfying any charge thereon, to mortgage land and receive the proceeds thereof for the benefit of legatees, or for the purpose of satisfying any charge thereon, and to lease lands for a given sum which the trustee is to receive for the benefit of legatees, or for the purpose of satisfying any charge on said land, the fee of the land descending, subject to such trust, to the parties in whom the title would otherwise vest.
    Every will must be interpreted according to the intention of the testator, and the court will, whenever possible, adopt such a construction as will avoid intestacy on the part of the testator.
    "Where the estate of a testator, both real and personal, is by his last will and testament devised and bequeathed to his executors, in trust for a certain period, to collect the rent and income and profits of the real estate and the whole of the personal estate, and after paying therefrom the legacies by such will bequeathed and the interest on the mortgages, taxes, assessments, fire insurance and repairs on the real estate, to apply the remainder of the rents of the real estate, together with the income and principal of the personal estate, to the paying off and discharging of the principal of the mortgages on the real estate, the trust attempted to be created is void, for the reason that the executors are directed to hold the estate in trust during the period limited by the terms thereof-, for the purpose of collecting the rents, issues and'profits, and applying the same to a purpose not permitted by the statute.
    The validity of a will depends upon the intention of the testator as it may be interpreted by the language used therein, viewed in the light of his situation. If some of the provisions of the will may be cut off without interfering with, the primary objects thereof, such provisions will be cut off, but if the primary object is cut off the ulterior provisions cannot be maintained, and must necessarily fall.
    Although it may have been the intention of a testator to dispose by his will of all his property, and his will is to be construed, if piossible, to carry out that intention, yet if he has attempted so to do, by illegal means, the court cannot, in order to sustain the will, put an interpretation upon the language contained in the will which is not in harmony with the manifest intention of the testator.
    Appeal by the defendants, Herman Rinaldo and Jennie A. Rinaldo, his wife, and by David Rinaldo and Minnie Rinaldo, his wife, from that portion of a judgment of the Supreme Court entered in the office of the clerk of the county of New York on the 4th day of June, 1894, upon the decision of the court, rendered after a trial at the New York Special Term, which adjudges that all of the provisions and clauses of the will of Marks Rinaldo, deceased, are legal and valid, and also by Herman Rinaldo and Jennie A. Rinaldo, his wife, from an order entered in said clerk’s office on the 15th day of June, 1894, denying the motion of such defendants for an additional allowance.

      Geo. W. Wichersham, J. L. Oad/wdlader, Ha-milton Wallis, H. 3£. Goldfogle and A. D. Lind, for the appellants.

      D. G. Hollins, 3£. B. Blumenthal, H. Tusha, F. B. 3£mrath, A. By on and 3£yer 8. Isaacs, for the charitable institutions, respondents.

      David Levent/ritt, for Minnie Rinaldo, respondent.
   Van Brunt, P. J.:

This action was brought to procure the judicial construction of the will of Mr. Marks Rinaldo, who died, November 26,1892. The will was admitted to probate on the 31st of April, 1893. The testator died seized of a considerable amount of personal and real estate, the real estate being mortgaged. JBy said will the testator, after having directed the payment of certain legacies and annuities which he charged upon his real and personal estate by the eighteenth and nineteenth clauses thereof,'provided as follows :

“Eighteenth. I give, devise and bequeath to my executors, hereinafter named, and such of them as shall qualify, and the survivors or survivor of thems and such successors as they shall appoint, as hereinafter provided, all my real and personal estate until my son Harry shall become twenty-one years of age or die, whichever event shall first happen; and if he should die before my daughter Amelia should become twenty-one years of age, then until she should become twenty-one years of age or die before such period, in trust, nevertheless to collect the rent, income and profits of said real estate and the whole of said personal estate, and after paying therefrom the legacies hereinbefore given, the interest on mortgages, taxes, assessments, fire insurance and repairs on said real estate, to apply the remainder of said rents of my real estate, together with the income and principal of my personal estate, to the paying off and discharging of the principal of the mortgages on my real estate.
“Nineteenth. Upon my son Harry becoming twenty-one years of age, or upon his death, and if he should die before my daughter Amelia should become twenty-one years of age or death before such period, I order my executors, or such of them as may qualify, and the survivors or survivor of them,and the successors of them (as hereinafter provided) to sell all my real estate at public sale and execute proper deeds therefor, and out of the moneys so realized to pay:
(a) To my son David (now residing at Jersey City) the sum of fifteen thousand dollars.
(b) To my grandson Lawrence (son of said son David) the sum of five thousand dollars.
“ (c) To my son Samuel the sum of fifteen thousand dollars, if at that time his present wife shall have died, and if she should still be alive at that time to invest said sum of fifteen thousand dollars in. first mortgage upon improved ' property in the city of New Tort, .and pay the interest realized therefrom half yearly to my said son ■Samuel as long as his present wife shall live, and upon her death to pay over to him (said Samuel) said principal sum of fifteen thousand dollars; should he, however, die before her, then upon his ■death said sum of fifteen thousand dollars shall be divided in equal shares between my sons David, Joel, Edward and Harry and my daughters Hannah and Amelia, share and share alike.
(d) To my daughter Hannah, wife of Henry Black, the sum of ten thousand dollars, and in addition thereto to invest the sum of twenty-five thousand dollars in first mortgage upon improved real ■estate in the city of New York, and pay the interest realized therefrom half yearly to my said daughter Hannah, and upon her death to pay over said principal sum of twenty-five thousand dollars to her children in equal shares. Should she, however, die without leaving any children, then said sum of twenty-five thousand dollars shall be ■divided between my sons Samuel, David, Joel, Edward and Harry, ;and my daughter Amelia in equal shares.
“(e) To my son Joel the sum of fifteen thousand dollars.
'-“(f) To my son Edward the sum of'fifteen thousand dollars.
(g) To my daughter Amelia the sum of ten thousand dollars, and in addition thereto to invest the sum of forty thousand dollars in first mortgages upon improved real estate in the city of New "York, and pay the interest realized therefrom half yearly to my said ■ daughter Amelia, and upon her death to pay over said principal sum • of forty thousand dollars to her children in equal shares. Should ■ she, however, die without leaving any children, then said sum of .forty thousand dollars shall be. divided between, my sons Samuel, David, Joel, Edward and Harry and my daughter Hannah in equal shares.
(h) To my son Harry the sum of. fifteen thousand dollars:
(i) To my son Isaac the sum of ten thousand dollars, if at that fime his present wife shall have died or he shall have been divorced .-from her by an absolute divorce and shall have married a decent Jewish woman. ' ■ ■
(k) To invest the sum of fifteen thousand dollars in first mortgage upon improved real estate in the -city of New York and pay the interest realized therefrom half yearly to ■ my beloved wife as long as she may live, and upon her death to divide the principal sum between my sons David, Joel, Edward and Harry and my daughters Hannah and Amelia in equal shares.
“ (1) Should there be any balance left of my real and personal estate I order my executors to pay
“ 1. To the Hebrew Benevolent and Orphan Asylum Society of the City of New York the sum of one thousand dollars ;
“2. To the Mount Sinai Hospital of the City of New York the sum of one thousand dollars;
“ 3. To the Montefiore Home for Chronic Invalids the sum of five hundred dollars.
“ 4. To the Hebrew Free School Association of the City of New York the sum of five hundred dollars.
“(m) Should there be any further balance left of my estate (real and personal), I order my executors to divide said balance in equal shares between my sons Samuel, David, Joel, Edward, Harry ■and my daughters Hannah and Amelia, share and share alike.”

The clauses of the will above stated are attacked upon the ground that by them are attempted to be established trusts which are contrary to the provisions of law; as to some of them because of the illegal suspension of the power of alienation, as to the rest because of the illegal direction in respect to the accumulation and disposition of the rents, income and profits arising from the estate.

There is' no doubt but that in respect to some portion of the estate the testator has designated a legal and valid period for the suspension of the power of alienation of the absolute ownership thereof, and that in respect to other portions he has attempted to suspend the power of alienation during three lives instead of two. Thus, by the eighteenth clause of his will he suspends the power of .alienation during the lives of his children Harry and Amelia, limited upon their arrival at twenty-one years of age; and then by nineteenth clause he directs that his real estate be sold, and that ■certain of the proceeds be paid to certain legatees absolutely, and that certain other j>ortions be held during additional lives or upon -additional contingencies. It is clear 'that the right to suspend the absolute vesting of ownership in any part of this estate could only be limited upon the lives of Harry and Amelia, they being two persons in being and within the provisions of the statute. The attempt to engraft upon this suspension additional limitations of ownership was not within the statute, and such limitations must necessarily be void. If it were possible to separate the limitations which are void from the bequests which are valid, it is the duty of the court so to do, and if this were the only question involved in the construction of this will perhaps this might be' done. 'But there is another objection made to a provision of this will which underlies the whole of these provisions, and that is, that the testator has attempted to create a trust for purposes not permitted by the statute. This objection, if well taken, affects the whole scheme of the will, and it is impossible to segregate it from the subsequent provisions, because they are'all dependent upon this one scheme. It is to be observed that the estate, both real and personal, is devised and bequeathed to the executors in trust for a certain j>eriod to collect the rent, income and profits of said real estate, and the whole of said personal estate, and, after paying therefrom the legacies hereinbefore given, the interest on mortgages, taxes, assessments, fire insurance and repairs on said real estate, to apply the remainder of said rents of his real estate, together with the income and principal of his personal estate, to the paying off and discharging of the principal of the mortgages on his real estate.

The Revised Statutes (vol. 1, p. 128) provides that express trusts may be created for any or either of the following purposes :

“ 1. To sell' lands for the benefit of creditors.
“ 2. To sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon.
“ 3. To receive the rents and profits of lands «and apply them to the use of any pei’son during the life of such person,- or for any shorter term, subject to the rules prescribed in the first Article of this Title.
A To receive the rents and profits of lands and accumulate the same for the purposes and within the limits prescribed in the first-Article of this Title.”

It is urged upon the part of the appellants that the trust attempted to be created by the will of the testator does not come within the provisions of the statute. In answer to this contention it is claimed, upon the part of the respondent, that the power given to the executors to collect rents and manage generally the real estate carries with it by implication the power to lease, and that this brings the trust within the express terms of the statute.

That such is not a correct interpretation of the statute was announced in the case of Hawley v. James (16 Wend. 62), and does not seem to have been departed from up to the present time. It was there held that the trust provided for by the subdivision of the statute authorizing the creation of a trust to sell, mortgage -or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon, is a provision for alienation, and not for the suspension of the power of alienation; that such a trust is a trust to sell land or some interest in it, and that the land descends ¡subject to the execution of the trust, subject to the power of sale, ¡subject to the power to mortgage, subject to the power to lease, but there is no power reserved in the trust to collect rents. The prowisions authorizing the collection and receipt of rents and profits of land are separate and distinct. The evident intention of the statute was the creation of a trust to sell land and receive the proceeds thereof for the benefit of creditors, or for the benefit of legatees, or for the purpose of satisfying any charge thereon, to mortgage land and receive the proceeds thereof for the benefit of legatees or for the purpose of satisfying any charge thereon, and to lease lands for a given sum which the trustee is to receive for the benefit of legar tees, or for the purpose of satisfying any charge on said land, the fee of the land descending.

The cases of Savage v. Burnham (17 N. Y. 561); Garvey v. McDevitt (12 id. 556); Van Schuyver v. Mulford (59 id.426); Harrison v. Harrison (36 id. 543); Adams v. Perry (43 id. 487), And Henderson v. Henderson (113 id. 1), which are cited by the respondents, in no way attempt to question this construction of the ¡statute.

. Applying such construction to the language of the will under •consideration, and having in view the fact that the interpretation of ■each will is to be according to the intention of the testator, and that intestacy shall be avoided wherever possible, it seems to us that it is impossible to come to any other conclusion than that there was an Attempt upon the part of. the testator to direct his executors to hold his estate during the lives of his children Harry and Amelia, limited by their arriving at twenty-one years of age, for the purpose •of collecting the rents, issues and profits, and applying the same to A purpose not permitted by the statute. This, therefore, renders void under the statute the whole eighteenth clause, and all dispositions dependent thereon.

It is ui’ged, however, that certain dispositions may be held valid,, although others may come within the restrictions of the statute. And our attention is called to the cases of Schettler v. Smith (41 N. Y. 328); Cross v. U. S. Trust Co. (131 id. 330), and Tiers v. Tiers (98 id. 568), as upholding this contention. But in all these cases it-was the alternative trust which was found to be void and not the-principal trust; arid the courts have held that the principal trust-might stand and the alternative trust fall. Thus, in Tiers v. Tiers it was held that the ulterior contingent limitation was quite-separable from the primary trust and merely incidental, its only purpose being to provide for a contingency which might never arise,, and the failure of that provision would not affect the general scheme of the will. And it was held that in such cases the rule is well, settled that an ulterior limitation, though invalid, will not be allowed, to invalidate the primary dispositions of the will, but will be cut off in the case of a trust which is not an entirety. But we have failed, to find any case in which the primary trust has been held to be-invalid, and the ulterior trusts or disposition of the will have been held to be good.

The will hangs upon the intention of a testator as it may be interpreted by the language .used therein viewed in the light of his situation. You may lop off some of the provisions of the will without interfering with the primary objects of the will. The primary objects may still remain and those that follow may be cut off. But-if you cut off the primary object, upon what do the ulterior provisions depend ? What support have they ? How can they be maintained ? They must necessarily fall.

This brings us to the next proposition, which is probably embraced, in what has been already stated, but to which it is necessary to call special attention — and that is to the provisions for the charitable associations. The testator provided that should there be any balance left of his real and personal estate (that is, after paying the legacies directed to be paid out of the proceeds of the sale of his estate) he ordered his executors to pay, etc. It seems to be evident-from the language of this clause in the will that it is dependent upon that which precedes it, which we have attempted to show is invalid-It is — should, any balance be left after doing these things. It i& not a general gift to these charitable institutions, but a gift out of a fund which, if our construction of the will is correct, the executors have no power , to create; and, therefore, there is nothing from which it can be paid.

The clause which is called the residuary clause is subject to the same construction. It is “ Should there be any further balance left of my estate (real and personal) I order my executors to divide said balance in equal shares between my sons Samuel, David, Joel, Edward, Harry and my daughters Hannah and Amelia, share and. share alike.”

It was not as in the case of Lamb v. Lamb (131 N. Y. 227) a disposition of surplus undisposed of, but it was a disposition of the balance of a fund attempted to be created, as has already been observed, by an illegal provision in the will. While it-may have been the intention of the testator to have disposed of all his property, and his will is to be construed, if possible, to carry out that intention, yet, where he has attempted so to do by illegal means, the court cannot put an interpretation upon the language contained, in the will which is certainly not in harmony with the manifest, intention of the testator’. The clause under consideration is not a. general residuary clause, but is a disposition of a special fund to be-created in a certain way. We think, therefore, that the residuary-clause became inoperative with the other clauses considered.

The judgment should be reversed and a decree entered construe ing the will in harmony with the views expressed in this opinion,, ' with costs to all parties appearing to be paid out of the estate.

Parker and O’Brien, JJ., concurred.

Judgment reversed, decree to be entere^ construing the will as-directed in opinion, with costs to all parties appearing to be paid, out of the estate.


source: Caselaw Access Project

author: Pollett, J.:

license: Public Domain

text:
    William H. Burgess, Respondent, v. Walter S. Badger, Appellant.

      liquidating partner — not entitled to compensation for closing up the firm business.

    In the absence of an agreement, express or implied, a liquidating partner, in case of the voluntary dissolution of the fi^m, is not entitled to compensation for liquidating the affairs of the partnership.
    Appeal by the defendant, Walter S. Badger, from a judgment of tbe Supreme Court in favor of tbe plaihtiff, entered in the office of tbe clerk of the count}^ of New York on the 29th day of June, 1894, upon the decision of the court, rendered after a trial at the New York 'Special Term, dismissing the defendant’s counterclaim and directing judgment in favor of the plaintiff for damages and costs.
    This action was brought for an accounting between partners. October 15, 1890, the litigants executed a written contract by which they became equal partners under the firm name of W. S. Badger <& Co., “ for the transaction of. the commission dry goods business in the city of New York and city of Boston.” By the first article of the contract it was agreed that the partnership should begin October 15, 1890, and end October 15, 1891, unless previously dissolved by notice or by an ojieration of law for a cause other than the death ■of one of the partners. The following articles are the ones which relate to the claims made by the parties in this action:
    “ Article second. Said Badger shall not be required to contribute any capital to said firm, but may do so with the consent of said Burgess; but said Burgess shall contribute such amount of capital to the firm from time to time as shall be reasonably necessary for the requirements of the business of the firm, but he shall not have the right or be bound to contribute as capital any more than that amount.

      “Article injoelfth.. No advance shall be made by either partner on goods consigned to the firm, exceeding two-thirds of the fair market value at the time of the advance of the goods upon which the advance is made.

      “Article thwteenth. In case of the death of either partner during the continuance of the partnership, the partnership shall not thereby be dissolved, but shall continue for six months thereafter, and the estate of the deceased partner shall be entitled to the same share of the profits of the business during such six months, and bear, sustain and pay the same share of the losses and expenses of the business during that period which the deceased partner would liave been entitled to or been bound to bear, sustain and pay in case he had lived.

      “Article fourteenth. Either partner may dissolve said partnership at any time, whether during or at the expiration of said one year, or afterwards, by giving six months’ notice in writing of his intention to dissolve the samé to his co-partner.

      “Article fifteenth. And it is expressly provided, notwithstanding the foregoing provisions, that, if either partner shall commit any substantial breach of any of these articles of partnership, the other partner may thereupon, or at any time thereafter, if he so elects, ■dissolve said partnership without giving any previous notice.
    “ Article sixteenth. Upon the dissolution of said partnership, all •the assets and property of said firm shall be sold and converted into money with all reasonable dispatch, except debts owing to it, and those shall be collected with all reasonable dispatch, and such as shall not be collectible shall be sold and converted into money. The ■proceeds of the sales of its assets and property, including the proceeds of the sales of any debts, and also the money collected on ■debts owing to it, shall be applied, first, to pay the debts of the firm to others than the partners therein, and after the payment thereof in full then, next, to the payment to each partner of what shall be owing by the firm to him for capital contributed by him to the firm and interest thereon, or money lent by him to the firm and interest •thereon, and, after the payment thereof in full, the surplus shall be •divided amongst the parties according to their respective interests •therein.”
    On the 15th of September, 1891, the partnership was dissolved, nnd it was then agreed that the defendant should liquidate its affairs, who, thereupon, from time to time, converted the assets of the firm into money and paid over large sums to the plaintiff. On the 29th ■of April, 1892, the defendant delivered to the plaintiff the following account:

      “ W. H. Burgess,

      “ In account with W. S. Badger & Co.

      “ Interest to Apl. 29, 1892.
    “ Dr. Or.

    “Peb. 1. By balance............... $6,225 68
    “ Apl. 20. “ Interest to date....... 81 97
    “ “ “ Share of Profit & Loss.. 5,250 99
    $2,022 27 “ Apl. 29. To Cash, Expense, rent, &c., « pd. A. Yan Bergen & Co.
    10,000 00 “ “ “ pd. W. S. Badger, Liquidating business........,
    $12,022 27 463 63-$12,022 27
    $463 63 “ To Balance
    “ E. & O. E.

      “W. S. BADGER & 00.,
    “MoA.”
    The plaintiff acknowledged the correctness of the statement,, except the items $2,022.27 and $10,000, which he refused to allow, and, on the 11th of January, 1893, brought this action. The defendant in his answer omits the item of $2,022.27, and increases the charge for liquidating the business to $15,000, and also alleges that the plaintiff refused to perform his covenant to furnish capital, as-provided in the second article of the partnership agreement, to his-damage in the sum of $25,000. The plaintiff by his reply denied the allegations contained in the answer, setting forth counterclaims. The issue thus joined was tried before a Special Term, which found all of the material facts in favor of the plaintiff.

      John J. Adams, for the appellant.

      Payson Merrill, for the respondent.
   Pollett, J.:

The court held that the defendant had failed to establish his alleged counterclaim and that he was not entitled to compensation for liquidating the business, and that the plaintiff was entitled to recover $11,559.67, the amount shown by defendant’s statement of April 29, 1892, less the items of $10,000 and $2,022.27, aside from an error in the item “interest to date,” which was found to be $88 instead of $81.97, a difference of $1.03. But two questions are presented on this appeal: (1) Are the third and eighth findings of fact sustained by, or are they contrary to, the weight of evidence ? (2) Is the defendant entitled to compensation for liquidating the affairs of the firm ?

“ III. On September 15,1891, the said firm was duly dissolved by mutual consent, the particular time of such dissolution being determined by the defendant.”

“ YIII. The plaintiff Burgess complied with the provisions of the partnership articles requiring him to contribute such amount of capital to the firm from time to time as should be reasonably necessary for the requirements of the business of .the firm, and duly complied with all the articles of partnership on his'part.”

The plaintiff in his complaint alleges that the partnership was dissolved September 15, 1891, by mutual consent. The defendant by his answer admits that it was then dissolved, and alleges that it was-dissolved because of the refusal of the plaintiff to contribute the capital as agreed in said articles of co-partnership.”

June 10, 1891, the defendant wrote the plaintiff as follows:

“June 10 th, 1891.
“ My dear Burgess,
“ Youi’s rec’d. In talking with you the other day, I told you I thought the present co-partnership expired under its articles on Oct, 15th. In reading them over I find it expires on six months’ written notice. Be this as it may, I do not think we shall have any trouble in terminating it, when it appears to be to the interest of all concerned. * * *
“Yours,
“W. S. BADGER.”

So far as the record shows this was the first that was written or said between the partners about dissolving the firm. On the fifteenth of June, 1891, the partnership then having existed for eight months^ the plaintiff notified the defendant, in writing, that the partnership would be dissolved six months from that date.

Subsequently, and on the 15th of September, 1891, the firm was-dissolved. From this fact and the other evidence it is apparent that the dissolution, which occurred long before either partner could have compelled it, was the result of a mutual agreement. The defendant alleges in his answer that he consented to the dissolution because the plaintiff had failed to perform the second article before quoted, for which he claims $25,000 damages. The fact that the defendant made up a final statement of the affairs of the firm on the 29th of April, 1892, without preferring any claim for damages, and never having suggested sucli a claim until after the plaintiff refused to allow the two items in his account, is a significant one, and greatly discredits the validity of the defendant’s claim for damages. It is singular that the defendant failed to discover, or at least to complain, that the plaintiff had broken his covenant, to his damage in so large an amount, until a disagreement arose over the account. Without repeating the evidence which sustains the findings, we are of the opinion that the facts were well found, and that they are sustained by the evidence. This brings us to the question whether the defend.ant was entitled to recover for ,winding up the affairs of the firm. Upon this issue the bourt found :

“ YII. There was no agreement between the said partners that the defendant Badger should be allowed any amount for liquidating the business, and no claim was made by the defendant Badger that he should be entitled to be paid any amount for liquidating the business before the rendition of the said account on or about April 29, 1892, .and the defendant is not entitled to charge the plaintiff with any amount for liquidating the business.”

This finding is amply sustained by the evidence. The defendant did not testify that the plaintiff, at any time, agreed that compensation should be made for liquidating the affairs of the firm, and the plaintiff testified that there was no such agreement. On the contrary, lie testified : “ Mr. Badger said there should be no expense for collection. I offered to collect without any expense. Mr. Badger said there would be no trouble and no expense.” The defendant denied that he agreed to collect without compensation, or that the plaintiff offered to liquidate the affairs of the firm without compensation. The defendant testified: “ It was finally determined between Mr. Burgess and myself to dissolve the firm on the 15th of September, 1891. The stock of goods we had on hand at that date aggregated $300,000. The outstanding accounts owing us amounted to $495,059.94. The trial balance shows that amount exactly. Mr, Burgess was here at the date of the dissolution, and talked the matter over with me. He wranted to put the settlement of the affairs of the business into the hands of a third party, and I declined to allow that. He then wanted to put it in the hands of a receiver, which I also declined.”

On his cross-examination he testified : “ There was a conversation between us on this subject of who should do the liquidating, at my office, 105 Worth street, New York, or it might have been at lunch — at one of these two places. I think we liad several conversations on that subject. The whole subject of the matter was that he wanted to put this business into the hands of a third party to liquidate. He said a third party. He did not mention whom he wanted. I declined. Then he wanted to put it into the hands of a receiver. I declined to allow that. I told the proper place to liquidate that business was where it was canned on; that is, where I wanted it to be done, at the former store. It was Yan Bergen & Co.’s store after that. He finally consented to that. I have no recollection of saying that I wanted to liquidate that business because I was going on with these accounts, and I wanted to attend to collection with the old customers. The reason I put forward was I thought the business would be liquidated better and cheaper there.”

The question whether a partner is entitled to compensation for winding up or liquidating the affairs of a firm after dissolution has arisen: (1) When a dissolution has occurred by operation of law, as by the death of a partner; and (2) when a firm has been dissolved by the agreement of the partners. In the absence of an agreement, express or implied, that a surviving partner shall be paid for winding up the affairs of a dissolved partnership, he is not entitled to compensation for such services. (Johnson v. Hartshorne, 52 N. Y. 173-180; Ames v. Downing, 1 Bradf. 321; Denver v. Roane, 99 U. S. 355-358; Beatty v. Wray, 19 Penn. St. 516; Brown v. McFarland, 41 id. 129; Tillotson v. Tillotson, 34 Conn. 333-366.)

Care should be taken to distinguish between the cases arising over claims for compensation for winding up the affairs of a partnership which has been dissolved and those arising over claims for compensation for continuing, after the death of a partner, the business of the firm, pursuant to the articles, or with the consent of the per¡sonal representative of the deceased partner who receives the profits arising from the continuation of the business. Robinson v. Simmons (146 Mass. 167) is a type of this class of cases. For stronger reasons a liquidating partner, in case of a voluntary dissolution of a firm, is not, in the absence of an agreement, entitled to compensation, because the condition does not arise by operation of law, but by his assent, and the rule that, in such a case, the liquidating partner, in the absence of an agreement, express or implied, is not entitled to compensation for winding up or liquidating the affairs of the dissolved firm, is too well settled to be questioned. (Coursen v. Hamlim, 2 Duer, 513; Dunlap v. Watson, 124 Mass. 305; Story Part. [7th ed.] § 331, note; Pars. Part. [4th ed.] § 155 note 1; Coll. Part. [Perkins’ ed.] § 199.)

The judgment should be affirmed, with costs.

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

Judgment affirmed, with Costs.


author: Follett, J. :

text:
    The People’s Trust Company, as Executor, etc., of Eliza Smith, Deceased, Respondent, v. John J. Smith and Others, Appellants; The Association for the Relief of Respectable Aged Indigent Females and The Presbyterian Home for Aged Women in the City of New York, Respondents.

      Corporation ■ — when subject to the limitation imposed by section 6 of chapter 319 oj 1848 — power to take property by “derise or otherwise” includes “bequests” — a bequest to a corporation incorporated under chapter 413 of 1869 inralid where the testator dies within two months.

    In case a corporation is authorized by statute to take property by devise or bequest “subject to all the provisions of law relating to devises and bequests by last will and testament,” or “subject to the provisions of law relating to bequests and devises to religious societies,” the limitation imposed by section 6 of chapter 319 of the Laws of 1848 applies, and a devise or bequest to the corporation is invalid unless the will in which it is contained was executed at least two months before the death of the testator.
    Where a corporation is authorized by section 4 of chapter 413 of the Laws of 1869 to take property by “ devise or otherwise,” the words “or otherwise” authorize the corporation to take property by bequest.
    Where a corporation was incorporated under chapter 413 of the Laws of 1869, “subject to all provisions of existing laws in relation to devises by last will and testament,” although the word “ bequest” is not used in the act, it is the intention of the Legislature not to give such corporation greater privileges than those generally given by statute to charitable institutions, and to subject it to all of the provisions of existing laws relating to devises and bequests. A bequest to such corporation, contained in the will of a testatrix who died within two months after the execution thereof, is invalid.
    Appeal by the defendants, John J. Smith and others, from that portion of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 25th day of June, 1894, upon the decision of the court, rendered after a trial at the New York Special Term, declaring valid the residuary bequest contained in the third clause of the last will and testament of Eliza Smith, deceased, and adjudging that the defendant The Presbyterian Home for Aged Women in the City of New York, upon the death of two brothers of said decedent, Eliza Smith, to wit, the defendant John J. Smith and the defendant William E. Smith, is entitled to share equally with the Association for the Relief of Respectable Aged Indigent Females in said residuary estate.
    September 26, 1891, Eliza Smith, a resident of the city of New York, duly executed her last will and testament, of which the following is a copy:
    “ I, Eliza Smith, hereby make the following as my last will and testament:

      “First. I bequeath to my nephew Frederick Mason three hundred dollars ($300), to my nephew John E. Mason a like sum of three hundred dollars, and to my brother John J. Smith the sum of two thousand five hundred dollars ($2,500).
    “ Second. I bequeath the remainder of my estate to my executor In trust to pay the income to my brother William Elliott Smith, during his life, and upon his death to pay it to my brother John J. Smith, during his life.
    “ T bird. Upon the death of my two brothers I direct my estate to be divided equally between the Association for the Relief of Respectable Aged Indigent Females and the Presbyterian Home for Aged Women.

      “ Fourth. I appoint the People’s Trust Company of Brooklyn as ■executor of this will, and hereby give it power of sale over any real estate I may own, to be exercised in its discretion.”

      October 29, 1891, the testatrix died, and, on the 9th of January, 1892, her will was duly admitted to probate and letters testamentary were issued thereon to the plaintiff. The testatrix left $38,271.64 in personal property, but left no real estate. She left her surviving John J. Smith and William E. Smith, her brothers, and John E. Mason and Frederick Mason, her nephews, the children of a deceased sister, her only next of kin, and as they asserted the third clause to be void because the testatrix died within two months after the execution of her will, the executor brought this action to have that question determined.

      John M. Bhedd, for the appellants Smith.

      J. Warren Greene, for the appellants Mason.

      A. li. Dyett, for The Presbyterian Home for Aged Women, respondent.

      W F. Dxm/nvng, for The Association for the Relief of Respectable Aged Indigent Females, respondent.

      Geo. W. Wingate, for the executor, respondent.
   Follett, J. :

The question raised by the pleadings in this action is whether the remainder bequeathed by the third clause to the Association for the Relief of Respectable Aged Indigent Females and to the Presbyterian Home for Aged Women is void under the sixth section of chapter 319, Laws of 1848, entitled : “An act for the incorporation of benevolent, charitable, scientific and missionary societies,” which provides: §.6. Any corporation formed under this act shall be capable of taking, holding or receiving any property, real or personal, by virtue of any devise or bequést contained in any last will or testament of any person whatsover, * * and no such devise or bequest shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.”

“An Association for the Relief of Respectable Aged Indigent Females in the City of New York” was incorporated by chapter 69, Laws of 1815, which provided that it “ shall by that name and style be capable in law of purchasing, holding and conveying any estate, real or personal, for the use of said corporation : Provided, that such estate shall never exceed in value one hundred thousand dollars nor be applied to any other purposes than those for which this incorporation is founded.” By the seventh section of this act it was provided that the corporation should continue until the last Thursday in November, 1830.

By chapters 308, Laws of 1830, 257, Laws of 1849, 328, Laws of 1*868, and 88, Laws of 1889, the act is continued in force until March, 1940. By chapters 382, Laws of 1860, 116, Laws of 1878, and 224, Laws of 1885, the corporation is “ authorized to take, receive and hold by purchase, gift, devise or bequest, from any person or persons, estate, real, personal or mixed, to an amount not exceeding ten hundred thousand dollars.”

It was conceded on the trial of this action that the property then held by the corporation did not exceed $700,000. There is no provision in any of the acts relating to this corporation which makes the sixth section of chapter 319 of the Laws of 1848, above quoted, applicable to it, and on the trial the claim asserted in the pleadings, that the bequest of one-half of the remainder to this corporation was invalid, was abandoned, and an appeal lias not been taken from that part of the judgment adjudging that the bequest of one-half of the remainder to this corporation is valid.

The only question presented on this appeal is whether one-half of the remainder bequeathed to the Presbyterian Home for Aged Women is valid, because the will was not executed two months before the death of the testatrix.

The Presbyterian Home for Aged Women was incorporated by chapter 413, Laws of 1869. The fourth section of this chapter provides : “ § 4. The said corporation are hereby authorized to take and hold by gift, purchase, devise or otherwise, subject to all provisions of existing laws in relation to devises by last will and testament * * * and shall be entitled to all the provisions and privileges of law relating to charitable institutions.”

In case a corporation is authorized by statute to take property by devise or bequest, “ subject to all the provisions of law relating to devises and bequests by last will and testament,” or subject to the .provisions of law relating to bequests and devises to religious societies,” the limitation imposed by section 6 of chapter 319, Laws of 1848, applies, and a devise or bequest to the corporation is invalid unless the will is executed two months before the death of the testator. (Kerr v. Dougherty, 79 N. Y. 327; Stephenson v. Short, 92 id. 433.)

In the case at bar it is conceded that the provision in the statute under which the Presbyterian Home for Aged Women was incorporated-*- subject to all provisions of existing laws in relation to •devises by last will and testament”' — brings devises to that corporation within section 6 of chapter 319 of the Laws of 1848, and that if the testatrix had devised real estate to- the corporation, and had died within two months after the execution of the will, it would have been invalid. The bequest was upheld at Special Term upon the theory that the word bequest ” not being used in the act, it was not the intention of the Legislature to make bequests to this corporation subject to section 6 of chapter 319 of the Laws of 1848.

By section 4 of chapter 413 of the Laws of 1869 the corporation is authorized to take property by devise or otherwise.” The words “or otherwise” were construed at Special Term, and we think correctly, as authorizing the corporation to take property by bequest. Under that construction the corporation was authorized by the section to acquire property by devise or bequest, and it is declared in the same section that it “ shall be entitled to all the provisions and privileges of law relating to charitable institutions.” Considering the purpose of the act, the object for which this corporation was incorporated, and reading the whole section together, it seems to us that it was the intention of the Legislature not to give this corporation greater privileges than those generally given by the statutes to charitable institutions, but that it should have the same power to take by will as is conferred by the statutes on like corporations. It seems to us that it was clearly the intention of the Legislature to subject this corporation to all of the provisions of existing laws relating to devises and bequests. It is a rule that a statute shall be reasonably construed, and we can see no reason why the Legislature should. have intended to make this corporation subject to the statute of 1848 in respect to devises and not in respect to legacies.

The statutory provision that wills disposing of property in favor of religious and charitable institutions must be executed at least two months before the testator’s death, is for the protection of heirs and next of kin from improvident dispositions by testators of their estates when weak and in apprehension of death. And such must have been the intention of the Legislature in imposing a limitation as to devises to this corporation, and we can see no reason why the Legislature should have intended not to have imposed limitation upon bequests. The word ■“ devise ” has frequently been construed to embrace bequests when used in statutes or wills. By chapter 244 of the Laws of 1849 the American Female Guardian Society was authorized to receive property by “gift or devise,” and it was held (Lefevre v. Lefevre, 59 N. Y. 444) that the word “ devise ” embraced “ bequest.” The word “ bequest,” when used in wills, has frequently been held sufficient to pass real estate, and the word “devise” to embrace personalty. (Jackson v. Housel, 17 Johns. 281; Ladd v. Harvey, 21 N. H. 514; 2 Redf. Wills [3d ed.], 315, et seq.)

The judgment should be modified by declaring the bequest to the Presbyterian Home for Aged Women invalid, and, as modified, affirmed, with costs in favor of the executor and the appellants payable out of the estate.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment modified as directed in opinion and affirmed as modified, with costs in favor of executor and appellants payable out of the estate.


text:
    The People of the State of New York ex rel. Bryant W. Dinsmore, Appellant, v. Thomas F. Gilroy, Mayor of the City of New York, and Others, Constituting the Board of Estimate and Apportionment of the City of New York, Respondents.

      Statutory ‘'may," when construed to mean ‘‘shall’’ —authority to audit and allow an account — a construction giving a municipality power to litigate claims made against it, favored — chapter 568 c/1888, as amended by chapter 291 c/1891, permissive, not mandatory.

    In case the language oí a statute, authorizing a public body or a public officer to do an act, uses the word “may,” and the act authorized relates to the interests of the public or to the rights of persons, or if the act authorized be to promote justice, the word “may” is generally considered to mean “shall,” and the statute is deemed mandatory and not permissive; but when such rule is invoked in aid of a personal right the right must be an existing legal one and not one which the board or officer is by the statute authorized to create.
    To audit an account is to examine and ascertain whether it is accurate. To allow an account or claim is to accept or admit it as a legal demand. The authority to audit and allow an account primarily implies the right to determine whether it is an accurate and just claim, and authority given to a board by a statute to allow an account does not necessarily negative the existence of power in the board to disallow it.
    The right of a municipal corporation to litigate the validity of claims made against it should not be denied, unless it be deprived of that right by a statute so unequivocal that it needs neither argument nor illustration to make the legislative intent manifest.
    Chapter 568 of the Laws of 1888, as amended by chapter 291 of the Laws of 1891, is a permissive and not a mandatory statute.
    Such act does not recognize the justice of the claim therein referred to, either expressly or by fair implication, nor does it create a liability on the part of the city of New York to pay the claim therein referred to, or any part thereof, and power exists in the board of estimate and apportionment of the city of New York to disallow the claim referred to in such statute.
    Appeal by the relator, Bryant ~W. Dinsmore, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1894, denying the relator’s motion for a peremptory writ of mandamus.
    In the years 1868 to 1871, inclusive, S. B. Dinsmore & Co. published at the city of New York a weekly paper called The Stockholder, during which time official notices and proceedings of public boards and officers of the city and county of New York, required by law to be published, were published in that paper, some pursuant to the order of the then mayor and comptroller of the city, and some pursuant to the order of the mayor. The first publication charged for was made October 6, 1868, and the last one October 10, 1871. On the 18th of May, 1872, the firm presented to the financial department of the city a claim for such publications, amounting to $70,962.91, which was submitted to the examiners of said department, who reported January 11, 1873, that there had been published in the paper 138,117 lines of official matter, which at the customary rate for such work — twenty-five cents a line —• amounted to $31,611.75, but they found that 110,721 lines were published without being authorized by both the mayor and comptroller of the city, which left 27,726 lines which were published by the direction of both officers, which, at. twenty-five cents a line, amounted to $6,931.50, at which sum they recommended that the claim be allowed. On the 11th of January, 1873, the claim was audited by the board of apportionment and audit at $6,931.50, which was paid to the firm January 16, 1873. Before the comptroller woidd pay the sum he insisted that a release of all demands should be executed, which was done, but, concurrently with its delivery, it is alleged by the relator that the firm filed a protest against the payment being considered in full of all demands.
    But a single publication is charged for in 1868, an item of seven dollars and twenty cents, which was allowed January 11 and paid January 16, 1873. The following are the statutes authorizing and regulating the publication of official proceedings of the boards and officers of the city of New York in the years 1869, 1870 and 1871: By section 1 of chapter 851, Laws of 1868, passed June 3, 1868, “An act to make provision for the government of the county of New York,” the sum of $30,000 was appropriated as follows: “ Advertising for the board of supervisors and county government, thirty thousand dollars; but no payment shall .be made therefor except for advertising in newspapers designated for that purpose by the mayor and comptroller.” By section 1, chapter 875, Laws of 1869, passed May 12,1869, “An act to make provisions for the government of the county of New York,” it was provided : “Advertising, forty thousand dollars. The mayor and comptroller shall, from time to time, designate six daily newspapers and six weeklies, but no more, in which to publish the proceedings of the board of supervisors, and all proceedings and notices relating to county affairs.’ By section 1, chapter 383, Laws of 1870, passed April 26, 1870, “An act to make further provision for the government of the city of New York,” it was provided:
    “Advertising for common council, forty-five thousand dollars. All advertising for the city government hereafter, includitig the legislative and executive departments, and in street and assessment proceedings, shall be published in not more than seven daily and six weekly newspapers, printed and published in said city, to be designated from time to time by the mayor and comptroller of said city, and it shall not be lawful for any officer to pay or allow to be paid any money for advertising hereafter made or incurred, of any description for or on account of the corporation, except to such newspapers, and any such officer making or allowing any such payment shall become personally liable for the amount so paid.”
    By section 1 of chapter 574, Laws of 1871, passed April 18,1871, “An act to amend an act entitled ‘An act to reorganize the- local government of the city of New York,’ passed April fifth, eighteen hundred and seventy,” it was provided :
    “ On or before the first Monday of June in each and every year, the mayor and comptroller shall, by a certificate in writing filed in the office of said comptroller, designate one daily paper published in the city of New York to be the official journal of said city, and in which shall be published all matters herein required to be published, as well as every notice or advertisement, corporation or legal, which may be required by law or ordinance to be published in one or more papers in the said city or county. If such notice or advertisement is required to be published in only one paper, then such publication shall be in said paper; but if such notice or advertisement is required to be published in more than one paper, then one of such requisite papers shall be the paper so designated as the official journal. i The mayor and comptroller shall also, in writing to be filed in the office of said comptroller, designate from time to time nine morning or evening daily newspapers, and nine weekly newspapers published in the city of New York, to publish such digest of the proceedings of the common council as may be prepared and authorized under tlie direction of said mayor and comptroller, and also to publish such notices or advertisements required by law or ordinance to be published in corporation papers, which designations shall be authority to the several newspapers so -as aforesaid designated to publish as aforesaid. No publication of corporation proceedings or notices or advertisements, as aforesaid, shall be legal except in the newspapers selected as above provided, and no money shall be paid from the city treasury for advertising for the city thereafter except to the newspapers so selected. It shall be the duty of any officer authorizing any publication in either of said papers to furnish an order signed by him or by his authority as to the publication thereof, and such order shall be attached to all bills paid ; and no bills shall be paid without such order be attached, and in addition the bill shall always be certified by the officer under whose direction such publication is made. But no final judgment against the said city heretofore obtained or which may hereafter be obtained for the publication of any such advertisements shall be allowed or paid from the treasury of said city, unless such advertisements were published in those newspapers which may be designated by the mayor and comptroller in pursuance of this section, and no execution shall be issued on any final judgment based upon any claim for such advertisements in any newspaper unless in such newspaper to be designated as herein provided.”
    When the publishing was done and the aforesaid payment made, the firm consisted of Samuel P. Dinsmore and Mary Y. Bean, and, in July, 1881, the latter sold her interest in the firm and claim to the relator, who then became a member of S. P. Djnsmore & Co., which continued in business until April, 1892, when Samuel P. Dinsmore died, leaving the relator the sole surviving partner.
    In 1874 or 1875 an action was brought against the city (67 Barb. 341) to recover the claim, less the $6,931.50 paid, in which the plaintiffs were defeated because the advertising had not been ordered by the mayor and comptroller. The city having refused to pay any further sum for the service, a statute was passed June 9,1888 (Chap. 568, Laws of 1888), and was amended by chapter 291, Laws of 1891, which provides:
    “ § 1. The board of estimate and apportionment of the city and county of New York is hereby authorized to examine into the facts relating to the claim of the representatives of the firm of S. P. Dins-more & Company for advertising in the newspaper, The Stockholder, notices and proceedings required by law to be published in said city and county, and to audit and allow the said claim for advertising said notices and proceedings as have been reported by the special examination of the department of finance of said city to have' been inserted in the said Stockholder, at the usual and customary rates for advertising in said newspaper, so far as the same shall be found not to have been heretofore audited, allowed and paid. And the said comptroller is hereby authorized to pay to said representatives the amount of the claim as so audited and allowed, with interest.
    “ § 2. The amount so audited and allowed shall be certified by the comptroller to the board of aldermen of the city and county of New York, and shall form part of the final estimate of said city and county for the year eighteen hundred and ninety-one.”
    After the passage of this act the claim was again presented to the board of estimate and apportionment, which refused to take any action thereon, and, IVIarcli 20, 1894, a peremptory writ of mandamus was granted requiring the board to “ forthwith take up and audit the claim referred to in chapter 291 of the Laws of 1891.” The writ further provided: “ Beyond this, this writ does not run, nor is this writ to operate as an adjudication upon the question whether the act known as chapter 291 of the Laws of 1891 is or is not mandatory upon the Board of Estimate and Apportionment as to the amount to be allowed.”
    Pursuant to this writ the board appointed a hearing, of which the relator had notice, and, after taking the evidence offered by both sides and hearing counsel, the board made its return on May 23, 1894.
    “ 8. That on said 22d day of May, at said meeting of the Board of Estimate and Apportionment, and after the making and filing of the Board (report) of said committee, and after hearing Roger Foster, Esq., as above set forth, the said board of estimate and apportionment of the city of New York did take up and audit the claim referred to in chapter 291 of the Laws of 1891, and did audit ,and allow said claim at nothing.”
    On June 25, 1894, the relator moved for a peremptory writ of mandamus requiring the board to audit and allow the claim for publisbing 110,721 lines, at thirty cents a line, amounting to $33,216.30, besides interest, and requiring the comptroller to pay the same. The motion was denied, and from the order the relator appealed.

      Soger Foster, for the appellant.

      Wm. H. Clark, Charles Donohue and Theodore Connol/y, for the respondents.
   Pollett, J.:

It must be borne in mind that the relator applied for a peremptory writ and did not offer to take an alternative one. The facts upon which the rights of the litigants must be determined are not disputed. It is agreed that S. P. Dinsmore & Co. published 27,726 lines of official matter upon the order of the mayor and comptroller, for which the firm has been paid $6,931.50, at the rate of twenty-five cents a line, and gave a release of all demands against the city. The city admits that the firm published 110,721 lines upon the order of its mayor alone, for which the city has refused to pay. The firm brought an action against the city to recover for this work and was defeated because the comptroller did not join with the mayor in ordering the work. Ilnder this state of facts the statute quoted was passed, and the principal question involved in this appeal is whether the statute is mandatory or permissive.

In case the language of a statute authorizes a public body or a public officer to do an act, using the word “may,” and the act authorized relates to the interests of the public, or to the rights of persons, or if the act authorized be to promote justice, the word “ may ” is generally considered to mean “ shall,” and the statute is deemed mandatory and not permissive. (People ex rel. Otsego Co. Bank v. Supervisors of Otsego, 51 N. Y. 401; People ex rel. Conway v. Supervisors of Livingston, 68 id. 114; Sedg. Stat. Law [2d ed.], 375.) This is a well-settled rule of construction, and the cases wherein it is laid down are referred to in the above authorities, and it is unnecessary to cite them again. But when the rule is invoked in aid of a personal right, the right must be an existing legal one, and not one which the board or officer is by the statute authorized to create! (Gilmore v. City of Utica, 121 N. Y. 561; Buffalo Plank Road Co. v. Commissioners, 10 Plow. Pr. 239; Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. 101; Sedg. Stat. Law [2d ed.], 375, et seq.; Potter’s Dwarris, 220, and Endlich Interp. Stat. § 313.)

In Gilmore v. City of Utica (supra) it is said that before this, rule of construction will be applied in aid of a public interest or of a private right “ There must be a definite, plain public interest, or a vested, well-defined private right, and then it will very justly be-supposed that the Legislature meant to subserve or protect the public interest or to give or secure the private right.”

The limitation, that the statute must relate to an existing private right before “ may” shall be construed to mean “ shall,” is as firmly-settled as the general rule first above stated.

The statute under consideration does not relate to a public interest, and it is conceded by the relator that prior to the statute (Chap. 568, Laws of 1888) he had no existing legal right to recover for the> services rendered. It had been so held by the Supreme Court in. an action brought against the city, which judgment was not appealed from and is conclusive. Should “may” be construed “shall” on. the ground that the statute was 'passed to do justice to the relator t This inquiry brings us to the question whether the statute recognizes the justice of the claim, for, unless it does, expressly or by fair implication, the act will not be held to be mandatory. Clearly,, if the justice of the claim is not declared, but left to be determined, the statute must be held to be a permissive one, and a peremptory writ of mandamus is not an appropriate remedy. This statute does-not expressly declare the claim to be a just one, or direct that it shall be paid, nor can it be implied from the language of the act that the-Legislature passed the statute because it deemed the - justice of the-claim established. The language is: “ The board of estimate and apportionment of the city and county of New York is hereby authorized to examine into the facts relating to the claim.” "What, facts are they to examine into ?

The learned counsel for the relator says that the board had authority to determine simply what were the customary rates of The-Stockholder for such Avork. In other words, that it was intended by the statute to require the city to pay the customary rates for advertising the notices and proceedings “reported” by the special examination of tlie department of finance to have been published in The Stockholder.

After having examined into the facts, the board is to audit and allow ” the claim for advertising notices and proceedings, which, according to the report of the department of finance, had been published in The Stockholder at the usual and customary rates for advertising in that paper.

To audit an account is .to examine and ascertain whether it is accurate. To allow an account or claim is to accept or admit it as a legal demand. The authority to audit and allow an account primarily implies the right to determine whether it is an accurate and just claim. (Morris v. The People, 3 Den. 381, 391; People ex rel. Sherman, v. Supervisors of St. Lawrence, 30 How. Pr. 173; People ex rel. Byrnes v. Green, 64 Barb. 162; People ex rel. Brown v. Green, 5 Daly, 194; People ex rel. Benedict v. Supervisors of Oneida, 21 Hun, 413; Matter of Murphy, Id. 592; People ex rel. Myers v. Barnes, 114 N. Y. 317.)

Authority in a statute to allow an account does not necessarily negative the existence of power to disallow it. (People ex rel. Board of Health v. Supervisors of Dutchess, 9 Wend. 508.) Of course, the word “ allow ” may be so used in connection with other words in a statute as to negative the idea of power to disallow, but we think it is not in this statute.

The right of a municipal corporation to litigate the validity of claims made against it should not be denied, unless it be deprived of the right by a statute so unequivocal that it needs neither argument nor illustration to make the legislative intent manifest. In other words, in case the Legislature intends to compel a municipality to pay a particular claim, which it is not legally liable to pay, it must say so out and out. A statute like the one under consideration can easily be passed on the plea that it simply confers authority on the corporation to pay the claim, if, after an examination into the facts, it is found to be just, but a plain statute commanding a municipality to tax its citizens for the purpose of paying a claim conceded to be illegal would not readily be enacted.

Applying these rules to the construction of this statute, we do not think it required the board of estimate and apportionment to audit and allow the relator’s claim against the city for'publishing 110,721 lines at the usual rates, regardless of whether the claim was just.

The order should be affirmed, with costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Order affirmed, with costs.


author: Follett, J.:

text:
    The People of the State of New York ex rel. Byrant W. Dinsmore, Relator, v. Thomas F. Gilroy, Mayor of the City of New York, and Others, Constituting the Board of Estimate and Apportionment of the City of New York, Respondents.

      Glaim, for newspaper advertising against a municipality —• the publications must have been contracted for in accordance with the statutes regulating the same.

    If the advertising and publishing of official notices and proceedings in a newspaper for a municipal corporation is not contracted for in accordance with, the statutes then in existence, regulating the manner of contracting for the advertising and publishing of official notices and proceedings, the proprietors of such newspaper have no legal claim against the municipality for such advertising.
    Certiorari issued out of the Supreme Court and attested on the 20th day of September, 1894, directed to the Board of Estimate and Apportionment of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all their acts and proceedings in relation to the claim of the relator made under chapter 291 of the Laws of 1891.

      Roger Foster, for the relator.

      William II. Clark, Charles Donohue and Theodore Conmol/y, for the respondents.
   Follett, J.:

On the appeal from the order refusing a peremptory writ of mandamus we have held that chapter 568, Laws of 1888, as amended by chapter 291, Laws of 1891, is not mandatory, and that the board of estimate and apportionment is not required to audit, allow and pay the relator’s claim without regard to its validity, but that under the statute the board lias authority to determine whether the claim is valid. The undisputed evidence is that the advertising for which payment is sought was not ordered by the mayor and comptroller, but by the mayor alone. For this reason this court held, in an action brought by the relator’s firm against the city for the recovery of this claim, that it was illegal and not enforcible, which judgment has not been appealed from, but remains in full force. The advertising was done when chapter 854, Laws of 1868, chapter 875, Laws of 1869, chapter 383, Laws of 1870, and chapter 574, Laws of 1871, were in force and regulated the manner of advertising and publishing official notices and proceedings. It is not contended that the advertising was ordered and performed in compliance with these statutes, and it is plain that the relator has no legal claim against the city for the work which has been done. The statutes referred to are set forth in the opinion on the appeal from the order refusing a peremptory mandamus, and an extended reference to them in this opinion is quite unnecessary. "We have also held in the case referred to that chapter 568, Laws of 1888, as amended by chapter-291, Laws of 1891, does not create a liability on the part of the city to pay the claim, or any part thereof. It follows that the determination of the board of estimate and apportionment should be affirmed, with fifty dollars costs and disbursements.

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

Proceedings affirmed, with fifty dollars costs and disbursements.


author: Eollett, J.:

text:
    Donald Mackay, as Executor, etc., of Elizabeth R. B. King, Deceased, Respondent, v. Rowland B. Dennington, as Administrator, etc., of Jane E. Jessup, Deceased, Appellant, Impleaded with Mary B. Duryea, as Executrix, etc., of Harmanus B. Duryea, Deceased, and Others, Respondents.

      Motion to correct a judgment — consistency between an interlocutory and a final judgment.

    It was determined by tbe interlocutory judgment rendered in an action tbat a beneficiary under a trust fund created by a will was entitled to tbe gross income of tbe fund free and clear of any and all deductions or charges for taxes paid or to be paid upon tbe principal fund. It was also decreed tbat a referee therein named should ascertain and report the amount due such beneficiary, which ought to be paid to her by the trustees of such fund, for or on account of deductions which they had made from her income for or on account of taxes upon the principal sum producing the same.
    The referee reported the sum so deducted from such income by such trustees to be 80,265.20, and that the amount of interest accrued on the several sums so deducted from such income for taxes amounted to 87,298.15. A schedule annexed to the referee’s report showed the amount of the taxes deducted, the amount of interest thereon, the period of computation of such interest and itg rate.
    The final judgment entered in the action, after confirming the report of the referee and overruling all exceptions thereto, adjudged, among other things, that such beneficiary was entitled to recover from her trustees the sumfe so deducted for taxes, without interest, and fixed the amount thereof at 83,265.20.
    Thereafter the representative of such beneficiary moved, on the interlocutory judgment, the report of the referee, and the final judgment, for an order that the final judgment be corrected so that the representative of such beneficiary should be adjudged entitled to recover, in addition to the 86,265.20, the amount of 87,398.15, being the interest on the sums so deducted for taxes paid as shown by the report of the referee. Such motion was denied, and from the order denying the same an appeal was taken.

      Meld, that the referee had no authority to determine any question of law and did not assume to decide that the beneficiary was entitled to interest on the sums paid for taxes; that he simply reported the sums paid, the dates when paid and the interest on such sums, leaving it for the court to determine by the final judgment whether interest should or should not be allowed;
    That it was not adjudged by the interlocutory judgment'that the beneficiary was entitled to recover interest on the amounts paid by the trustees for taxes on the trust fund and deducted from the annual payments made to her;
    That it was determined by the final judgment that the representative of such beneficiary was not entitled to interest on such sums;
    That there was no inconsistency between the interlocutory and final judgments, and no mistake which could be corrected on motion;
    That the only way in which the decision of the Special Term, embodied in the final judgment, could be reviewed was by an appeal from the final judgment.
    Appeal by tbe defendant, Rowland B. Bennington, as administrator, etc., of Jane E. Jessup, deceased, from an order of tbe Supreme Court, made at tbe New York Special Term and entered in tbe office of the clerk of tbe county of New York on tbe 26th day of June, 1894, denying bis motion to correct tbe final judgment rendered in tbe action so as to make tbe same conform to tbe interlocutory judgment entered in said clerk’s office on tbe 16th day of February, 1872.

      Gilbert "W. Bowne died November 27,1853, leaving a will which was .duly probated, by which certain trustees therein appointed were directed to pay the gross income on $20,000 to Jane E. Jessup during her life, but instead of obeying such direction they deducted the taxes assessed on the sum invested and paid to her the gross income, less such taxes. An action was brought in which it was, by an interlocutory judgment entered February 16,1872, adjudged, among other things:

      “ Third. That the defendant, Jane E. Jessup, was, and is, entitled to the gross income of the $20,000 directed by the will of Gilbert "W. Bowne to be invested for her, free and clear of any and all deductions or charges for taxes paid or to be paid on the principal sum invested or to be invested. * * *

      “Eighth. And it is further ordered, adjudged and decreed that the said Philo T. Buggies ascertain and report how much or wliat amount is due and owing to the said Jane E. Jessup, and ought to be paid to her by the said trustees, for or on account of deductions which they have made from her annuity for or on account of taxes on the principal sum or investment which has produced, or is producing, such annuity.”
    July 22,' 1881, Pliilo T. Buggies, the referee appointed by the interlocutory judgment, filed his report, of which, so far as it relates to the rights of Jane E. Jessup, the following is a copy:
    “ Twenty-eighth. I further repórt that, pursuant to the directions contained in said interlocutory decree, I have taken an account of the amount due and owing to the defendant, Jane E. Jessup, and which ought to be paid to her by the said trustees, for or on account of deductions they have made from her annuity, for or on account of taxes on the principal sum or investment which has produced, or is producing, such annuity, and find and report that the aggregate sum so deducted from her annuity for or on account of taxes on the principal sum or investment is the sum of $6,265.20. Such account showing the particulars of such deductions is hereto annexed and marked ‘ Schedule K.’ Such schedule shows also the amount of interest accrued on the several sums so deducted from said annuity for taxes to June 2, 1881, amounting to $7,298.15.”

      Statement showing payments for Taxes (exclusive of Income lax), charged to account of Jane E. Jessup (and the §20,000 Trust Eund), with interest computed from, date of payment to January 1, 1880, at seven per cent, and from January 1, 1880, to June 2, 1881, at six per cent.

    Afterwards an appDlication was made on the interlocutory judgment, the report of the referee and the exceptions thereto, for a final judgment, and after hearing counsel for all of the litigants it was, by a final judgment, entered July 3,1894, among other things, adjudged as follows:
    “ It is ordered, adjudged and decreed that the said report of Philo T. Puggles be, and the same is hereby, ratified and confirmed, and that all the exceptions to said report by any of the defendants be, and the same are hereby, overruled. * * *

      “ And it having been ordered, adjudged and decreed by the interlocutory judgment herein entered on the sixteenth day of February, one thousand eight hundred and seventy-two, that the said Philo T. Buggies, the referee, ascertain and report how much or what amount is due and owing to the said Jane E. Jéssup and ought to be paid to her by the said trustees for or on account of deductions whicli they had made from her annuity for or on account of taxes on the principal sum or investment which has produced or was producing such annuity, and it appearing by the said report of the referee, bearing date the first day of July, one thousand eight hundred and eighty-one, that the amount duo and owing to the defendant, Jane E. Jessup, and which ought to be paid to her by the said, trustees for or on account of deductions they had made from her-annuity for or on account of taxes on the principal sum or investment which has produced, or was producing, said annuity, that the said aggregate sum so deducted from the annuity was six thousand two hundred and sixty-five dollars and twenty cents.
    “It is-ordered, adjudged and decreed that the defendant, Boland B. Dennington, as administrator with the will annexed of Jane E. Jessup, is entitled to recover, and that he do recover, from the estate of Gilbert "W. Bowne the said sums so deducted for taxes, without interest, and that the same be paid to him by the United States Trust Company of New York, the substituted trustee, out of the principal of said trust fund of twenty thousand dollars, or out of any accumulated interest thereon, held or received by said company,, * * * and it also further appearing that the said Jane E. Jessup, died in the city of Brooklyn on the thirteenth' day of December,, one thousand eight hundred and eighty-six, without issue, leaving-a last will, which was duly admitted to probate by the surrogate of; the county of Kings, and the executor therein named died, after having qualified as such, and Boland B. Dennington was appointed administrator with the will annexed of the said Jane E. Jessup; and. it also further appearing that during the lifetime of the said Jane. E. Jessup, by an order made by the Supreme Court at a Special Term thereof, on the 23d day of November, one thousand eight hundred and eiglity-six, the United States Trust Company of' New York was appointed trustee in the place and ste'ad bf Harmanus B. Duryea and John Beveridge, deceased, the latter the surviving trustee of and under the will of Gilbert W. Bowne, deceased, of the said trust fund of twenty thousand dollars for the said Jane E. Jessup.” :
    In June, 1894, the administrator of Jane E. Jessup moved on the interlocutory judgment, the report of the referee and the final judgment at Special Term, for an order that the final judgment be corrected so that the representative of Jane E. Jessup should be adjudged entitled to recover in addition to the $6,265.20, the amount ■deducted for taxes, the amount of $7,298.15, the interest on the sums paid for taxes, as shown by the report of the referee. This motion was denied and the administrator of Jane E. Jessup appeals.

      JE. T. Rice, for the appellant.

      James G. Hays, Sherman JEvcurts and Joshua JMJ. Yam, Oott, for the respondents.
   Eollett, J.:

It is not adjudged by the interlocutory judgment that Jane E. Jessup was entitled to recover interest on the amounts paid by the trustees for taxes on the trust fund and deducted from the annual payments made to her. That question was left for determination on the coming in of the report. The referee had no authority to determine any question of law, arid he did not assume to decide that Miss Jessup was entitled to interest on the sums paid for taxes. He simply reported the sums paid, the dates when paid and the interest on these sums, and left it with the' court to determine, by the final judgment, whether interest should or should not be allowed. By the final judgment it is determined that the representative of Miss Jessup is riot entitled to interest on these sums. There is no inconsistency between the interlocutory and final judgments, and there is no mistake'which can be corrected on motion. The only way that the decision of the Special Term, embodied in the final judgment, ■can be reviewed, is by an appeal from that judgment.

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

Yan Brunt, P. J., and O’Brien, J., concurred.

Order affirmed, with ten dollars costs and disbursements.