text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. THE CITY OF BUFFALO, Defendant.

      Weekly payment of wages under chapter 388 of 1890 — what classes of employees are embraced within this act.

    Under tlie provisions of chapter 388 of the Laws of 1890, entitled “An act to provide for the weekly payment of wages by corporations” the word “ employee,” when read in connection with the word “ wages ” used in that statute, is limited in its scope to laborers and workmen engaged in manual labor.
    The compensation of a clerk in the mayor’s office or a secretary or treasurer of a park commission, or a member of the Are department, or a school teacher, or a patrolman on the police force of a municipal corporation, is not in either case required by the said chapter 388 of the Laws of 1890, to be paid weekly.
    A case submitted under section 1279 of the Code of Civil Procedure, involving the question as to the proper construction of' the provisions of chapter 388 of the Laws of 1890, as applicable to the compensation of certain persons in the employment of the city of Buffalo and its departments.

      John T. McDonough, for the plaintiff.

      Fra/nk O. Zantghlin, for the defendant.
   Macomber, J.:

Tlie submission to this court, made in pursuance of tlie provisions of tlie Code of Civil Procedure, is for tlie purpose of obtaining a judicial construction and application of chapter 388 of the Laws of 1890, entitled “ An act to provide for the weekly payment of wages by corporations.” By the terms of the agreement of submission, if the plaintiff prevails, there should be a recovery of five penalties of tan dollars each against the defendant by reason of the failure and neglect of the city of Buffalo to pay weekly the compensation earned between September 1st and 23d, 1890, by John G. Goshleski, a clerk in the mayor’s office; by George LI. Selkirk, secretary and treasurer of the park commissioners; by John LI. Brewster, a member of tlie fire department of the city of Buffalo; by George II. Stowitts, a school teacher, and by Michael Collins, a patrolman on the police force. So much of section 1. of the act in question as is material to this hearing is as follows:

“Every manufacturing, mining or quarrying, lumbering, mercantile, railroad, surface, street, electric and elevated railway (except steam surface railroads), steamboat, telegraph, telephone and municipal corporation, and every incorporated express company and water company shall pay weekly, each and every employee engaged in its business, the wages earned by such employee to within six days of the date of such payment.”

The people claim that each and every one of the five persons above mentioned was and is an employee of the municipal corporation known as the City of Buffalo, whose salaries were wages earned, and that each of them was and is entitled to be paid his wages weekly, in pursuance of the provisions of said act. On the other hand, the city of Buffalo claims that each of said persons was not and is not an employe of said city within the meaning of the statute, that the salary of each of such persons was not wages within its meaning, and generally that the weekly payment law is not applicable to persons occupying such places.

The principle which is to control us in the interpretation or construction of this law is the intention of the legislature in passing the same, to be ascertained from the language of the act and also from the cause or necessity of making the statute. A strict and literal interpretation is not always to be adhered to where the case is brought wúthin the intention of the makers of the statute, although by a technical interpretation it is within its letter. It is the spirit .and purpose of the statute which are to be regarded by us. The law should be so construed as to carry out the legislative intent, even though such construction be contrary to the literal meaning of some of the words used therein. (People ex rel. Wood v. Lacomber, 99 N. Y., 49.)

Not much need be said in regard to the word “'wages” used in the title and body of the act; for if the statute had not used the word “ employee,” thus connecting the word “ wages ” with a person in many instances above the grade of a laborer, the people of this State, through its Factory Inspector, would probably not have sought a decision of the court upon these questions.

There is no doubt but the word employee ” is often used in a sense much in enlargement of the words “servant, workman or laborer.” The only attempted legislative definition of the word which I have been able to find is contained in the report of the commissioners of the Code in submitting to the legislature an act entitled “The Civil Code” in the year 1865, but which never has been enacted into a statute. The commissioners there make the following definitions. Section 1004: “ The contract of employment is a contract by which one, who is called the employer, engages another, who is called the employee, to do something for the benefit of the employer or of a third person.” The commissioners, in a note, say that the scope of the whole chapter, beginning with the above-quoted provision, is not intended to be confined to servants, but includes factors, brokers, cai-riers, agents and all similar classes of persons.

Among lexicographers the definition given by Professor Whitney in the Century Dictionary of the word “ employee ” seems to me to be the most lucid and comprehensive; it is as follows: “ One who works for an employer; a person working for salary or wages; applied to any one so working, but usually only to clerks, workmen, laborers, etc., and but rarely to the higher officers of a corporation or government or to domestic servants, as the employees of a railroad company.”

That the word may have different meanings in different connections admits of no doubt. The principle enunciated by Horne Tooke in his Diversions of Purley, that a word has “ one meaning and one only,” lias no application to cases arising under statutes where construction or interpretation is required, except, perhaps, in scientific matters. Worcester, in the preface to his dictionary, says: “ Though there may be found in Johnson’s Dictionary many instances in which a distinction is made where there is little or no difference, yet the principle stated by Horne Toolce, that ‘ a word has one meaning and one only ’ cannot be admitted without numerous exceptions. Take, for example, some very common words, * * * the nouns law, letter, line, post; though the different senses in which these words are used may be, in some measure, in accordance with one original meaning of each, yet a single definition of each of the words would afford but very inadequate explanation. The original or etymological meaning of many words has become obsolete, and they have assumed a new or more modern meaning; many which retain their etymological meaning have other meanings annexed to them; many have both a literal and metaphorical meaning, and many both a common and technical meaning, all which need explanation.”

The primary general sense of a word often ramifies into different senses, as Webster illustrates in the preface to his dictionary. He says, in substance, that by attention to the different uses and applications of the word, we become able, m most cases, to arrive at a satisfactory explanation of the manner in which the same word comes to be used with different significations. Professor Whitney says that, “ both historically and with regard to present usage, it is impossible to draw a hard and fast line between these two sides of the language, either with respect to words or to their individual senses.”

It may be broadly stated, therefore, that the word employee,” as used in the body of this statute, standing by itself, without words of limitation, is sufficient to include, not only persons engaged in manual labor, such as servants and laborers, but also such as may be employed otherwise. As was well held in the case of Gurney v. Atlantic and Great Western Railway Company (58 N. Y., 358), where, under an order and judgment of this coitrt requiring the receiver to pay the laborei’s and employees of the company for labor and services actually done in connection with that company’s railwajq the compensation of Jeremiah S. Black, a lawyer, was held to be payable by tbe assignee. In that ease Chief Judge Church says: “ It is quite as rational to believe that the intent was to inchide as to exclude the debt of the claimant. Debts for materials and supplies were protected, and why may we not suppose that the claimants’ demand was regarded to be as just and equitable as those, especially under the circumstances referred to? The mortgage creditors received what they regarded a great benefit by making these concessions in the immediate appointment of the receiver, and the order should be liberally construed in favor of the, creditors who are presumed to have assented to them and relied upon them for the payment of their debts.”

Judge Allen in the same case says: “In the absence of any intent apparent on the face of the order to discriminate between different classes of ‘employees’ or different kinds ‘ of service,’ the court cannot confine it to a single class or to a particular service. The term ‘ employee ’ is the correlative of ‘ employer,’ and neither term has, either technically or in general use, a restricted meaning by which any particular employment or service is indicated. The terms are as applicable to attorney and client, physician and patient, as to master and servant, a farmer and day laborer or a master mechanic and his workman.”

But conceding so much to the extent of the meaning of the word “ employee ” it brings us only to the real question in issue. That word must be read in connection with the word “ wages ” contained in the body as well as in the title to the act. The word “ wages ” here used limits the meaning of the word “ employee.” In the case already cited from the Court of Appeals no one, while conceding the correctness of the allowances to Mr. Black, would say that such allowances were wages. The statute, therefore, contains within itself a limitation upon the meaning of the word “ employee.” The case, consequently, as presented to us, is not whether the wages of an employee, but whether the salary of an employee shall be paid weekly or not.

But whatever meaning may be lexically imputed to the word employe, and whatever differences of meaning may arise when the word is-used in different relations and connections, the safe mode of interpreting the word, as used in this statute, is to take into account the cause for the passage of the act, so far as it may be ascertained, and the evil sought by the act to be remedied.

This statute belongs to a large class of legislation designed, for the promotion of the welfare of laborers and workmen, and may be classed with the act of parliament (38 and 39 Yic., chap. 90), entitled Employers and workmen act,” and other like statutes, and the acts of our own legislature for the limitation upon the employment of children of tender age, the limitation of the hours of labor, the protection of laborers under the acts for the inspection of factories, and acts like chapter 380 of the Laws of 1889, “ To regulate the rate of wages on all public works in this State and to define what laborers shall be employed thereon.” In the construction of an act passed for such purpose, we are not to adopt the rule of a strict construction as is done m the ease of penal statutes and laws in derogation of the common law; although it is apparent that in one aspect of this statute it does interfere with the right of the employer to make a bargain with his employee in respect to the time of payment for his services. Nor should the statute be loosely, which is generally called liberally, construed; it should receive that interj>retation which the court gave to the act involved in the case of Chamberlain v. Western Transportation Company (44 N. Y., 305), that is to say, fairly to cany out the policy which the statute was enacted to promote. If the words used are not explicit, their meaning must be gathered from the occasion and necessity of the law. In so construing the statute, the reason or motive upon which the legislature proceeded and the design sought to be accomplished must be held in mind. The statute should be construed in accordance with the nature and obvious import of the language there used, and not by resort to subtle and forced construction for the purpose either of' limiting or extending its operation. (Chamberlain v. Western Transportation Company, supra; and Waller v. Harris, 20 Wend., 555-561.)

As was said by Judge Jewett in Tonnele v. Hall (4 N. Y., 144): “ Whenever the intention can be discovered it ought to be followed with reason and discretion in its construction, although such construction may seem contrary to its letter.”

Notwithstanding the comprehensive meaning which has been above accorded to the word employee, for the purposes of the construction of this statute, yet that meaning may be qualified and restricted by reference to other parts of the act and the circumstances and facts existing at the time and to which they relate. As Judge Allen says in the case of Smith v. People (47 N. Y., 337): A literal interpretation of words in most common use, and having a well defined meaning as ordinarily used, would not unfrequently defeat rather than accomplish the intent of the party using them. If, in reading a statute in connection with other statutes passed at or about the same time, a doubt exists as to the force and effect the legislature intended to give to particular terms, that is, as to the meaning which it was intended they should bear and have in the connection in which they are used, it is also competent to refer to the circumstances under which and the purposes for which a statute is passed to ascertain the intent of the legislature. The ground and cause of the making of .a statute explains the intent.”

Under these rules of construction and interpretation it is obvious that this act was intended by the legislature to take its place among others for the protection of laborers and workingmen. There is no special reason observable, either from the act itself or from the preceding legislation leading up to it, why the license clerk in the mayor’s department in the city of Buffalo, or the secretary and treasurer of the park commissioners, or a public school teacher, or a fireman or a patrolman of the city, should be paid otherwise than in accordance with the terms of his agreement with his respective employers. Not one of those persons represents a class asking for legislation in its behalf. It would, therefore, be extending the statute beyond what appears to us to be the obvious meaning of the legislature in passing it to apply it so as to cover the cases of those persons.

Yery little, if any, aid may be afforded in the construction of this statute, in order to show its meaning and application, by reference to other statutes pertaining to laborers, except others of its own class as stated above. There is, however, a series of cases having a bearing upon the subject-matter involved, arising under chapter 40 of the Laws of 1848, making stockholders of corporations liable to “ laborers, servants and apprentices ” of the corporation and holding that such law cannot be extended by the courts to clerks and contractors and other persons. Beference may be made to Krauser v Ruckel (17 Hun, 463); Coffin v. Reynolds (37 N. Y., 640); Hill v. Spencer (61 id., 274) and Wakefield v. Fargo (90 id., 213) for discussions of the principle that an act manifestly designed for the protection of servants, laborers and apprentices cannot be properly extended by construction to other persons, although the word “servant” or “laborer” detached from the connection in which it is used in the statute and used metaphorically, is broad enough to include any person who engages his services to another for compensation.

Note.— The rest of the cases of this term which are to be reported, with the list of decisions in those cases decided and not reported will be found in the next volume (58) of Hun.— [Rep.

It follows, therefore, that judgment must be ordered for the defendant upon the submission.

Dwight, P. J., and Corlett, J., concurred.

Judgment ordered for defendant on the submission, with costs.


source: Caselaw Access Project

author: Macomber, J.:

license: Public Domain

text:
    BARTHOLOMEW FETES, Respondent, v. ADELAIDE VOLMER, Appellant, Impleaded with Others.

      Surrogate —power of a surrogate, the successor of one who has admitted a will to probate, to certify a copy of the original will and to sign the record of probate—variance between such copy and the record of the probate of the will.

    Where a will has been admitted to probate by a surrogate, a certified copy of the original will on file in that office, made by a successor of the surrogate by whom such will was admitted to probate, as well as the signature of such successor to the record of the probate,of the will, are made valid by chapter 155 of the Laws of 1890.
    Where there is a variance between the record in the surrogate’s office of a will admitted to probate therein and the record in’'the office of the county clerk, where a certified copy of such will has been recorded, the question as to which record is correct may be determined by a resort -to the attending circumstances.
    Appeal by tbe defendant Adelaide Yolmer from an interlocutory judgment of the Supreme Court, entered in the office of the' clerk of Erie county on the 30th day of April, 1890, with notice of an intention to bring up for review, upon such appeal, an order made at the Erie Special Term on the 21st day of April,1890, and entered, April 30, 1890, whereby the report of a referee, made in the above-entitled action, was confirmed and an interlocutory judgment was directed to be entered; and also an order, made at the Erie Special Term on the 10th day of February, 1890, whereby it was “ ordered that the judgment, entered on January 22, 1890, be, and the same isj hereby vacated,” etc.
    The action was brought to obtain a judgment of the court, first, establishing and adjudicating the respective rights of the several parties to the action, in and to certain real estate described in the complaint therein; and, second, ordering and directing that the said property be partitioned among the parties according to their respective rights, and in case a partition thereof could not be made that the same be sold.
    The case was tried before a referee, who made a report as to the interests and rights in the premises of the several parties to the action, by which it appeared, among other things, that the plaintiff was the owner, under and by virtue of the will of his father, Louis Fetes, of an equal undivided one-sixth part of the real estate described in the complaint, and also of an equal undivided one-thirty-sixth part of the same as the heir-at-law of Celestine Fetes.
    The principal question on this appeal ■ related to the discrepancy existing between the record in the Erie county surrogate’s office, of the will of Louis Fetes certified by one Abram Thorn, the successor ■of Charles D. Norton, the surrogate by whom such will was admitted to probate, and the record in the Erie county clerk’s office of a copy of the original will recorded in that office, which copy was also .certified by Abram Thorn and contained the name of Bartholomew Fetes as a beneficiary thereunder, which did not appear in the record of the will in the surrogate’s office.

      Eugene V. Chamberlain, for the appellant.

      Giles E. Stilwell, for the respondent.
   Macomber, J.:

On the former appeal in this case (reported in 28 N. Y. St. Rep., 317, and 8 N. Y. Supp., 294), it was held that a failure to serve properly two of the necessary parties for a complete partition of the premises described in the complaint was fatal to the interlocutory judgment, and such judgment was accordingly reversed. Since that decision the insufficiencies in the practice have, apparently, all been supplied by proper appearances of absentees and otherwise, so that we have before us at the present hearing only one question of moment, and that relates wholly to the merits of the action.

The right of the plaintiff to maintain partition of the premises in question is denied by the appellant upon the ground that the plaintiff, at the time of the beginning of the action, had no title to or interest in these lands. All of the parties claim under Louis Fetes, who died on the 24th day of July, 1855, leaving a last will and testament disposing of both real and personal property, whereby he devised to his widow a life interest in the lands described in the complaint, with the remainder over to his children. The will was duly admitted to probate on the 26th day of December, 1855j by the surrogate of the county of Erie. The point in controversy is, whether the plaintiff was named in the will as one of _the children of the deceased. The will was recorded in the • surrogate’s office some time' between December 26, 1855, and Decémber 31, 1855, when the term of the surrogate expired -by limitation. His successor signed a certified copy of the will January 8, 1856, and annexed thereto a paper purporting to be a certificate to the effect that it had been so admitted to probate by his predecessor, and that the same was then on file in the Surrogate’s Court. This instrument was recorded in the Erie county clerk’s office in the year 1871, as a will of real estate. The original will was lost, and the question as to the contents thereof is to be determined mainly by the copy thereof as recorded in the surrogate’s office, and the other copy thereof as recorded in the county clerk’s office. The copy set out in the books of the surrogate omits the name of the plaintiff as one of the beneficiaries under the will, while the one recorded in the county clerk’s office contains his name, with five others, all the children of the testator.

It is probable that the surrogate, being pressed for time, had not an opportunity, before surrendering his office, to compare the copy as it now appears in his book with the original. This assumption finds corroboration in the fact that such copy in the surrogate’s book bore no certificate or mark showing that it had been compared with the original will. But the copy, as recorded in the county clerk’s office, bears upon its face such evidence, as it has the usual certificate annexed.- Tbe attestation usually determines tbe question whether tbe document is tbe whole or a part only of tbe original. ( Voris v. Smith, 13 Serg. & R., 334.)

But it is claimed that tbe certificate of tbe surrogate was a nullity, inasmuch as tbe statute under which tbe same purports to have been given relates only to the certificates of tbe successors in office where there has been a vacancy, and that tbe appointees of tbe unexpired term alone are authorized to complete, tbe unfinished business of their predecessors (2 R. S., 223, § 11), while those succeeding by election for a full term have not such power. • It would seem that there was-an omission on the part of the legislature in not making the statute broad enough to cover the right of a successor by election to complete the unfinished business of his predecessor. It is probable, as the referee says, that the legislature in enacting this provision had in view the simple act of signing and certifying records and documents presumptively legal and valid. In other words, such power may have been assumed to have theretofore existed; and the object of this provision was simply to authorize the successor of a surrogate, whose office had been suddenly terminated by death, incapacity or removal, to continue and complete the business begun and pending before him.

The provisions of the statute contemplated that eyery public officer should complete his official.business before retiring at the end of his term. But it by no means follows that the surrogate had not the power to certify records which he found in his office. Under the Revised Statutes, as originally enacted, a surrogate -could exercise no powers except those which were expressly conferred upon him. (2 R. S., 220, § T.) By chapter 460 of Laws of 1837, however, these restrictions were removed,- at least to some extent, and he was empowered to administer justice in all matters according to the provisions of the statutes of the State, and there were conferred upon him all the powers which were necessary and incidental to enable him to discharge the duties of his-office. ■ {Brick's Estate, 15 Abb., 32.) He has the power to exemplify under his seal of office all transcripts of records, papers or -proceedings therein, and the same- must- be received in evidence in all courts with the like effect as the exemplifications of the records, papers and proceedings of courts of record. (2 R. S.,- 221, § 6.) It is quite -probable that the copy certified by the - surrogate, and wbicb was recorded in the county clerk’s office, was taken from the original will as filed, and not from a copy thereof as entered in the books of the surrogate.

So much only need be said upon the question of the probabilities as to which record was the true one,.irrespective of the admissibility of either of them in evidence, whether as primary or secondary proof. TJnder 2 Revised Statutes (58, §§ 14 and 15), this record would not be admitted as primary evidence, inasmuch as it does not contain “ the proofs and examinations so taken.” (Morris v. Keyes, 1 Hill, 540; Caw v. Robertson, 5 N. Y., 132; Hill v. Crockford, 24 id., 128.) The enabling act, passed by the legislature in 1870, chapter 74, provides as follows: Section 1. All acts hitherto, of surrogates and officers acting as such in completing, by signing in their own names the unsigned and uncertified records of wills, and of the proofs and examinations. taken in the proceedings of probate thereof, before their predecessors in office, are hereby confirmed and. declared to be valid and in full compliance with the pre-existing statutory requirements:” This power, however, it will be observed, was restricted to cases where the record of the wills contained the proofs and examinations as required by the provisions of the Revised Statutes. , (Hill v. Crockford, 24 N. Y., 128.) Whatever the insufficiencies, of the enabling act of 1870 may be, no question can be made of the act of 1890, chapter 155, which confirms all acts of surrogates in certifying the records of their office, and the same clearly covers the record of the will in the case before us. While it is true this act was passed since this controversy arose, and even since the case was argued before this court, yet such are its comprehensive terms that it must be deemed to apply to all cases existing and undetermined in the courts. A' statute commonly speaks only for the future, and where vested rights are involved the legislature cannot affect the past or the present, but there are many remedial statutes that mainly affect past transactions, and are enacted for that purpose. Statutes confirming illegal or irregular procec dings of various public officers are of this character, and can have no relation to other than past transactions. (1 Kent’s Com., 455; Foster v. Essex Bk., 16 Mass., 245; Underwood v. Lilly, 10 S. & R., 97; People v. Supervisors, 43 N. Y., 136; People ex rel. Collins v. Spicer, 99 id., 233.)

Under these statutes the certificate, added to the record of the will in the surrogate’s office, was confirmed, as also was his certificate that the will delivered to him by his predecessor as being the original will from which the copy was made, and upon the faith and credit of which he certified the copy. The copy of the will in the book of deeds seems to us to be precisely of the same degree of evidence as the copy of it in the record of wills, and that, under these enabling acts, they both became primary evidence of the contents of the will itself. No greater effect can be given to the one than is given to the other of these records. Each is a copy of the same will.

It is a noteworthy fact that there is no evidence that there was any purpose, on the part of the testator, to withhold from the plaintiff an equal share in the residuary estate after the expiration of the fife interest of the testator’s wife. This fact, therefore, coupled with the other, namely, that in the book of wills the record had not been signed, and so probably not compared with the original will, and the further fact that Bartholomew Fetes’ name appears in the record as contained in the book of deeds in the clerk’s office, presents a case where the more reasonable inference is that the plaintiff was, in fact, named in the will, and that, consequently, he can maintain this action. These irreconcilable documents present an instance of conflict of evidence only, and the case must be disposed of substantially in the same manner as other cases where the evidence is conflicting. "Where two inconsistent copies of the same will, both duly certified, the one from the records of the surrogate’s office and the other from the records of the county clerk’s office, are in evidence, the original will being lost, and both parties to the controversy claim under the probate of such lost will, the court or tribunal passing upon the facts may resort to the attending circumstances, and if there is no other evidence, determine which record is the true one. .Under this rule there is a clear preponderance of the evidence in favor of the plaintiff.

It follows, therefore, that the interlocutory judgment appealed from should be affirmed, with costs to the respondent.

Dwight, P. J., and Ooelett, J., concurred.

Interlocutory judgment appealed from affirmed, with costs to the respondent, payable out of the fund.


text:
    HERMAN BEECKEL, as Administrator, etc., of LEOPOLD HAFFENNEGGER, Deceased, Plaintiff, v. THE IMPERIAL COUNCIL OF THE ORDER OF UNITED FRIENDS, Defendant.

      Belief fund of a mutual benefit association—when it goes to the heirs-at-law free front the claims of creditors of the deceased member.

      A certificate, issued by a society known as the Imperial Council of the Order of United Friends, provided that the party named therein was “entitled to all thé rights and privileges of such membership, and a benefit of not exceeding one thousand dollars from the relief fund, which sum shall, at death, be paid to............subject to will......subject to the laws, rules and regulations of the order.”
    The articles of incorporation of the council provided for the establishment of “ a relief fund from which a member of this association, who has complied with all its laws, rules and regulations, or a person or persons by such member lawfully designated, or the legal heir or heirs of such member, may receive a benefit in a sum not exceeding three thousand dollars; ’ and further provided, "Each applicant shall enter, upon his application, the ‘name or names of the person or persons to whom he or she desires the benefit to be paid in case of death; ”■ and, further, that in case of the death of all the beneficiaries selected by the member before the decease of such member, and no other disposition being-made thereof, “ the benefits shall be paid to the next of kin of the deceased member dependent upon him or her, and if no person or persons shall be entitled to receive such benefits by the laws of the order it shall revert to the relief fund.”

      Held, that a creditor of the deceased member, who had taken out letters of administration upon his estate, could not maintain an action against the Imperial Council for the recovery of the money payable under such certificate.
    That, in default of a designation, either in his lifetime or by will, by the deceased member, the amount payable under such certificate went to his heirs-at-law.
    Exceptions ordered to be beard in the first instance at the General Term, and judgment to be in the meantime suspended, after a trial had at the Monroe Cotinty Circuit, before the court and a jury, at which a verdict was rendered in favor of the plaintiff against the defendant by direction of the court for the sum of $1,082.
    The action was brought by a creditor of a deceased member of the Imperial Council of, the Order of United Friends, who, as such creditor, had applied for and obtained letters of administration upon the estate of such deceased member to recover the amount payable to Ms intestate from tbe Imperial Council of the Order of United Friends by reason of the membership therein of such intestate.

      W. A. Sutherland, for the plaintiff.

      Alfred SteTder, for the defendant.
   Macomber, J.:

The defendant is organized under the act of the legislature passed May 12, 1875 (chap. 267), entitled “An act for the incorporation of societies or clubs for certain lawful purposes,” commonly known as the club act. It has the right-to issue certificates of life ■ insurance to its members under certain conditions.

Upon the 1st day of February, 1887, it issued a certificate to the plaintiff’s intestate, Leopold Haffennegger, in which it agreed to pay, on his death, the sum of $1,000. No beneficiary was mentioned in the certificate other than the insured, but there was a provision that this amount should be paid “ subject to will,” meaning, obviously, that the member could bequeath the demand to any person. The certificate is as follows:

“ This certificate issued by the authority of the Imperial Council of the Order of United Friends, duly incorporated under the Laws of the State of New York, witnesseth, that Leopold Haffennegger, a member of Hercules Council, No. 211, located at Rochester,- in the State of New York, is a beneficiary member of the Order of United Friends, and entitled to all the rights and privileges of such membership and a benefit of not exceeding one thousand dollars from the relief fund, which sum shall, at death, be paid to........subject to willi.. .subject to the laws, rules and regulations of the order.”

Section 3 of the articles of incorporation of the defendant is as follows: “ Third. The principal objects of this association shall be: To unite and combine the efforts of all its members; to improve the condition of its membership, morally, socially and' materially, by timely counsél and instructive lessons; to encourage each other in business and give assistance in obtaining employment; to promote benevolence and charity by establishing a Relief Fund, from which a member of this association who has complied with all its laws, rules and regulations, or a person or persons by such member law, fully designated, or the legal heir or heirs of such member may ■receive a benefit in a sum not exceeding three thousand dollars ($3,000.00), which shall be paid when a member, by reason of-disease or accident shall become permanently disabled from following his or her- usual or some other occupation, or upon a satisfactory evidence of the death of such member, and when all the conditions, regulating such payment have- been complied with.”

Section 2' of law three of its constitution and by laws is as follows: “ Each applicant shall enter upen his application the name or names of the person or persons to whom he or she desires the benefit to be paid in case of death; subject, however, to such future disposal of the benefits as a member may thereafter direct upon returning to the Imperial Recorder the original certificate for record of change.”

Section 5 of that law provided a payment to the surviving beneficiary in case more than one were designated.

Section 6 provides, that in case -all the (beneficiaries selected by the member should die before the decease of such member and no other disposition be' made thereof, “ thé'^benefits shall be paid to the next of kin of the deceased member dependent upon him or her; and if no person or persons shall be entitled"; to receive such benefits by the laws of the Order,, it shall revert to the Relief Fund.” -

The plaintiff is a creditor of Leopold Haffennegger, but is in no way related to the deceased, and he was not designated as a beneficiary in this certificate or policy. As such creditor he procured himself to be appointed administrator of the estate of Haffennegger, and he brings this action to recover the thousand dollars secured by such certificate. Haffennegger, who died intestate on the 17th day of April, 1887, left him surviving a wife and three children. At the trial the defendant moved to dismiss the complaint upon the ground that the plaintiff had no standing under the certificate and the constitution and laws of the society, whiclrmotion was denied. At the close of the case also, after showing that the children of the deceased had brought an action upon the same certificate against this company, the motion was renewed and again denied, and a verdict was ordered by the court for the plaintiff in the amount claimed.

We think that this action cannot be maintained. The plaintiff has no right or title to the money to be procured upon this certificate. He' is a creditor only of the deceased, and not a,relative. Under the provisions of the laws and regulations, already quoted, it is clear that it is no part of the business enterprise of the defendant to provide a fund for the payment of debts. Its regulations are so specific and clear upon this subject as hardly to require extended discussion. The assured had the right to designate absolutely the beneficiary who should receive the full benefit of the insurance after his death; but this was subject to the right of a further disposition thereof by will. In case, however, of a failure to make a designation either in his lifetime or by will, the moneys were to be paid to his lieirs-at-law, and, if they were not all similarly situated, to those only in need of assistance. Furthermore, in case of a total failure or extinction of beneficiaries namedj or next of kin dependent upon the assured, the fund did not revert to the company, but went into a general fund, known as thev Relief Fund,” for the benefit of the insured of this class. Haffennegger left heirs-at-law; and, for aught that appears, they have among themselves equal claims upon the fund. Under the laws governing the defendant these persons were entitled to the insurance moneys.

This conclusion is in accordance with the case of Hellenberg v. District No. 1 of I. O. of B. B. (94 N. Y., 580). In that case by the by-laws of the company it was provided that upon the death of a member the sum of $1,000, collected by contribution from all the lodges in the district, should be paid to the wife of the deceased, if living, and if dead to his children, and if there were none, then to such person as he may have designated prior to his death. ■ The testator, having neither wife nor children, designated his mother as the beneficiary. • His designation described the payments directed as “ the one thousand dollars my heirs are to receive.” His mother died before the insured and no other designation was made. It was held, in an action to recover that sum, that the testator had no interest in the fund which could descend, or upon which a will could operate; but simply a power of appointment, which, if not exercised prior to his death in the manner specified, became inoperative; and that as the beneficiary named died before him, and no other designation was made as prescribed, the defendant was not bound to pay to any one. In that case the endowment reverted to the Order under the peculiar provision of the charter; but in the case now before us there is no such reversion, but a retention of the same for general relief.

The case of Bishop v. Grand Lodge, etc. (112 N. Y., 627), is pressed upon our attention as holding the contrary; but that decision is entirely consistent, in our judgment, with the principles above mentioned. At the trial thereof no question was made but, that if anyvperson could recover Mrs. Bishop, as administratrix, might do so, inasmuch as she was the actual beneficiary under the certificate. But the feature distinguishing the Bishop case from the one at bar is, that by the terms of the' agreement in that case the endowment was payable to the families, heirs or legal representatives of the deceased members. In the case before us there is no provision for the payment in any possible event to the legal representatives of the deceased. The deceased had no vested interest in the fund itself which can be made, available to his personal representatives after his death.

Exceptions allowed and verdict set aside, with costs to be paid by the plaintiff personally; and inasmuch as, if these views are correct, a new trial will be unavailing to the plaintiff, the complaint should be dismissed.

Dwight, P. J., and Corlett, J., concurred.

Exceptions allowed and verdict set aside, with costs to be paid by the plaintiff personally, and the complaint dismissed.


author: Dwight, P. J.:

text:
    HARRY D. CRAM aud Others, by Guardian, Respondents, v. THE EQUITABLE ACCIDENT ASSOCIATION OF BINGHAMTON, N. Y., Appellant.

      Mutual accident association—recovery under a certificate thereof—necessity of evidence as to the amount which an assessment would produce—effect of misrepresentations in the application.

    A certificate of membership in an accident association provided that the association ■would pay to the heirs of the assured “the.principal sum, not exceeding four thousand dollars, realized upon an assessment, in accordance with the provisions of section one of article six of itsjoy-laws as printed on the back of this certificate.”
    In an action brought to recover upon this certificate it appeared that the assured had died, and that the plaintiffs had demanded, of the association that an assessment be made for the purpose of paying the loss resulting from the death of the assured, but that the defendant refused to make such assessment. There was no allegation in the complaint, nor evidence given on the trial, as to what amount would have been realized from such an assessment, if one had been made.
    The court instructed the jury that if they found in favor of the plaintiffs they should find for the full amount of $4,000.

      Held, in the absence of evidence showing what amount would have resulted from the making of an assessment, in accordance with the by-laws of the association, that such instruction to the jury was error.
    The application for the insurance was, by the terms of the certificate, subject to the condition “that all the statements and representations contained in the Application for this Certificate are warranted to be correct and true in all respects, and if this Certificate * * * has been * * * obtained through misrepresentation * * * then the same shall be absolutely null and void.”
    This application for the certificate required an answer to the following question “4th. Occupation? If more than one, name them all? ” Which was answered, “ Oil producer; ” and also to the following question: “ State the duties required of you under that occupation. ” Which was answered: “Supervising only.” The undisputed evidence was to the effect that .the insured had a small lease of oil ■ lands, upon which he had two or more wells, which he managed and operated himself, doing every part of the work alone, which could be done by one man; that he attended his own boilers, ran his own engine, pumped his own wells, “ pulled ” his wells and made his own repairs without assistance, except upon extraordinary occasions. • ■ '

      Held, that the representation made by the assured was incorrect, and that the • certificate was, for that reason, void.
    EXCEPTIONS ordered, to be beard in tbe first instance at tbe General Term, tbe entry of judgment upon tbe verdict in favor of tbe plaintiff to be in tbe meantime suspended.
    Tbe trial was bad at tbe Cattaraugus County Circuit on tbe 4th day of September, 1889, before tbe court and a jury, at wbicb a verdict was rendered in favor of tbe plaintiffs in tbe sum of $4,000, witb interest from December 10, lSS'T.
    Tbe action was brought for tbe purpose of recovering tbe amount claimed to be due from tbe defendant upon a certificate of membership issued by tbe defendant to one Harry D. Oram, since deceased, by tbe terms of wbicb, in tbe event of the, death of said Harry D. Cram, occasioned in a manner specified in the certificate, tbe defendant undertook to pay to bis heirs “ the principal sum, not exceeding four thousand dollars, realized upon an assessment, in accordance witb tbe provisions of section one of article six of its by-laws as printed on tbe back of this certificate.”

      D. Murra/y, for the motion.

      J. R. c& M. B. Jewell, opposed.
   Dwight, P. J.:

The action,was on a certificate of membership of the defendant association, issued to one Harry D. Oram, since deceased, by which, in the event of the death of the member, occasioned in a manner specified, the defendant undertook to pay to his heirs “ the principal sum, not exceeding $4,000, realized upon an assessment, in accordance with the provisions of section 1 of article 6 of its by-laws as printed on the back of this certificate; ” and the section referred to prescribed the time and mode of making such assessment. The death of the member occasioned in the manner specified; the service of notice of the death, as required, and of due proofs of loss, were alleged and proved and viere not disputed. The plaintiffs also alleged and proved that, after the expiration of the time prescribed by the by-laws, the plaintiffs duly demanded of the defendant that an assessment be made for the purpose of paying the loss, but that the defendant refused to make such assessment. There was no allegation in the complaint nor evidence on the trial of what amount, if any, would or might have been realized from such an assessment if one had been made.

At the close of the plaintiffs’ case the defendant moved for a nonsuit on the ground of the lack of evidence of the character last mentioned,' and that motion was renewed and a motion made for the direction of a verdict for the defendant at the close of the evidence, on the same ground, all of which motions were denied and the defendant.excepted. These rulings of the court were undoubtedly correct, and the several exceptions of the defendant thereto unavailing, because upon the undisputed evidence (the validity of the certificate being, for this purpose, conceded) the defendant had been guilty of a breach of its contract to make an assessment, and the plaintiffs were entitled to recover at least nominal damages.

But the court having submitted to the jury to find upon another question of fact, which will be noticed later, instructed them that if they found in favor of the plaintiffs, they should find for the full amount of $4,000. To this instruction the defendant excepted, and tbe exception was doubtless well taken and must entitle tbe defendant to a new trial. Whatever tbe evidence, short of proof of an amount actually reahzed on an assessment, tbe question of tbe measure of damages must have been a question for the jury. (O’Brien v. The Home Benefit Society, 117 N. Y., 310.) In tbe case cited tbe court say: Tbe plaintiff was, therefore, entitled to recover something, and what was tbe measure of bis damages? Just what be lost by tbe defendant’s breach of its contract. ITe was entitled to have an assessment made and collected, and tbe proceeds thereof paid to him. What was the contract worth to him, and what would' the assessment have produced for him ? It was incumbent upon tbe plaintiff to give evidence which would enable tbe jury to answer these questions.” In that case tbe evidence, which was held sufficient for tbe purpose, is not disclosed in tbe case as reported, but, by reference to tbe record, we find that it consisted of the last previous annual report of tbe defendant to tbe insurance department, showing, among other things, tbe number of certificates outstanding in each class and, consequently, tbe number of persons bable to assessment for a given amount, to pay tbe plaintiffs’ claim.

In this case, on tbe other hand, there was, as we have said, no evidence showing or tending to show’ bow much an assessment, made in accordance with the by-laws of tbe defendant, would have produced for tbe benefit of the plaintiffs, and, therefore, no evidence upon which the jury could have based a verdict in their favor for more than nominal damages. (O'Brien v. Home Benefit Society, supra; Martin v. Equitable Accident Assn., 29 N. Y. St. Rep., 421, and the cases there cited.)

The other question in the case, already referred to, arises upon a statement in the application in writing for membership, made by the deceased. The undertaking of the defendant, contained in the certificate, was, by its terms, subject to several provisions and conditions, among which was “ the express agreement that all'the statements and representations contained in the Application for this certificate are warranted to be correct and true in all respects; and if this certificate * * * has been * * * obtained through misrepresentation * * * then the same shall be absolutely null and void.” The application was in evidence; it contained, among other questions to which full and explicit answers were required to be given, tbe following: 4. Occupation ? If more than one, name them all.” Which was answered: Oil producer.” Also the question : “ State the duties required of you under that occupation.” Which was answered: “ Supervising only.” The answer of the defendant averred that this statement or representation was untrue, and that the breach of the warranty in this respect rendered the certificate null and void.

The undisputed evidence on this branch of the case was to the effect that the insured had a small lease of oil lands upon which he had two or more wells which he managed and operated himself, doing every part of the work alone which could be done by one man. That he tended his own boilers, ran his own engine, pumped his own wells, “ pulled ” his wells and made his own repairs, without assistance, except upon extraordinary occasions. Some testimony was given, first on the part of the plaintiffs, under the defendant’s objection, and afterwards on the. part of ■ the defendant, for the purpose of showing what was meant or understood in the pil country, by the terms supervisor ” or “ supervising ” of oil wells or territory. It may well be questioned whether expert testimony was admissible to explain the meaning of . terms of such common use and plain significance as those in question. But being admitted, it proved nothing beyond what was apparent before and might as well have been conceded, namely, that the insured was an oil producer supervising his own business. The fault of his application was that it represented that his duties in connection with that occupation were those of “ supervising only.” This representation was manifestly incorrect. He did not merely,or only supervise the Work on his oil lease; he did the work with his own hands. So that when he was asked what duties belonged to his occupation as an oil producer, he could not truly answer “supervising only.” That the representation was material to the risk admits of no doubt. The hazard is manifestly different in the cases of two men engaged in the production of oil, the one in the capacity of a supervisor or overseer only, and the other as an actual operative in all branches of the work; at once the fireman, engineer, pumper, “ well puller,” and repairer of machinery. It was, therefore; clearly error for the court to submit to the jury, as it did, the question whether the representation mentioned was true or false. The evidence on tbe subject being undisputed and capable of but one construction, demonstrated that tbe representation was false in fact.

Tbe question is presented on tbis motion, by two exceptions taken by the defendant; tbe one an exception to tbe denial of tbe defendant’s motion for a nonsuit, made at the close of tbe evidence, on the ground that tbe undisputed evidence, showed that the statement in tbe application was false, and, therefore, tbe certificate was void; tbe other an exception to tbe submission of tbe question to tbe jury. Both of these exceptions seem to have been well taken and, as well as the exception first considered, to furnish. good ground for tbe motion for a new trial.

Macomber and Corlett, JJ., concurred on tbe ground first stated.

Defendant’s motion for a new trial granted, with costs to abide tbe event.


author: Coblett, J.:

text:
    In the Matter of the Proving the Last Will and Testament of JAMES CONWAY, Deceased.

      Will—when subscribed and signed “ at the end” thereof.

    A testator wrote his will upon a half-sheet of legal cap paper, upon the first or front page of which was written the will down to and including the following words, in parenthesis, namely: “ (Carried to hack of will.) ” Upon the top of the hack of the sheet was written the word " (continued). ” Following which were the remaining provisions of the will, to and including the words “ signature on face of the will.” All the rest of the will, including the’ appointment of the executor, the signature of the testator, the attestation clause, signed hy the witnesses; and the signatures-of the witnesses were filled in, in a printed blank, upon the lower part.of the first page of the sheet of paper, following the words written thereon — “ (carried to hack of will).”

      Held, that the will' was subscribed by the testator, and signed by the witnesses “ at the end of the will,” in accordance with the provisions of the statute.
    Appeal by Bridget Dundon, Kate Kenedy and Elizabeth McMahon from a decree of tbe Surrogate’s Court of tbe county of Wyoming, made and entered on tbe 16th day of November, 1889, admitting to probate an instrument propounded as the last will and testament of James Conway, deceased, and from each and every part thereof.....

      M. E. da E. M. Bartlett, for tbe contestants, appellants.

      G. W. Bottsford, Jr., for tbe proponent, .respondent.
   Coblett, J.:

James Conway, wbo resided in Wyoming county, died on tbe 3d day of April, 1889, leaving a widow and six children, all of full age. Three of tbe children contested the will upon tbe ground that it was not properly executed. It came on for a bearing in Warsaw on tbe 8th of July, 1889, before the surrogate, Hon. ByeoN Healy. After bearing tbe evidence the surrogate made tbe following findings:

“That on tbe 14thday of April, 1886, James Conway, Sr., being a resident of tbe town of Genesee Falls, in tbe county of Wyoming and State of New York, at said town madé, and subscribed at tbe end thereof, bis last will ■ and testament in writing; that said subscription was made by the said James Conway, tbe testator, in tbe presence of two attesting witnesses, each of whom signed bis name at tbe end of said will, at the request of the said testator; that tbe said testator, at tbe time of making such subscription, declared tbe instrument so subscribed by him to be bis last will and testament; that tbe said witnesses to said will'wrote opposite to their names their respective places of residence; that it appears from the proofs of said will taken, that such will was duly executed (although in tbe form and manner hereinafter particularly stated), and that tbe testator at the time of executing the same understood its contents and was of sound mind and memory, and upwards of twenty-one years of age, and was in all respects competent to deyise real estate, and not under any restraint. At the time tbe testator so subscribed said will, and when each of said attesting witnesses so signed bis name at tbe end of the will at tbe request of said testator, and at tbe time said testator so declared said instrument to be his last will and testament, as aforesaid, and just before said' testator subscribed said will as aforesaid, tbe said will was read over to said testator, and tbe testator believed tbe same read and was substantially as follows — and said will was and is .in substance as follows, viz:: ■

“ Tbe last will and testament of James Conway, Sr., of tbe town of Genesee Falls, county of "Wyoming and State of New York.
“I, James Conway, aware of the uncertainty of life, do make, ordain, publish and declare this my last will and testament, in the maimer and form following, that is to say:
“After the payment of my funeral charges, the expenses of administering my estate and my lawful debts, I give, devise and bequeath my property as follows:
First. 1 will and bequeath to my wife, Elizabeth Conway, all my real and personal property during her natural life, and at her death to be divided as follows, viz.: To Jeremiah Conway, as the first heir, all-that property east of the Erie R. "Way, formerly known as the King property, containing 45 acres, known as the homestead.
“ 2. To Patrick Conway all that tract or parcel of land bounded as follows, viz.: On the east by Erie R. Way; on west by public highway; on the north, Henry Bigelow property and Anthony Davis prpperty; on south by W. P. Letchworth property, in all twenty-eight acres, more or less.
“ 3. To James Conway, Jr., the first homestead, containing twenty-seven acres, more or less. \Ca/rried to bade of willJ\
“ [ Continued.] Moreover, all my personal property to be divided equally in three shares between the sons Jeremiah, Patrick and James, share and share alike. The wheat on Patrick’s ground tobe divided in three equal shares between them; the use of all bonds equally used between them. Moreover, the timber on the property belonging to my son Jeremiah to be divided into three equal shares.
“To my daughter Bridget Dundon, now of Dale, Wyoming Co., N. Y., I bequeath the sum of twenty dollars ($20).
“To my daughter Catherine Kenedy, now of Warsaw, Wyoming Co., N. Y., the sum of twenty dollars ($20).
“ To my daughter Elizabeth Conway, of Portageville, town of Genesee Falls, Wyoming Co., N. Y., the sum of four hundred dollars ($400).
“ The above amounts to be paid by my three sons in equal shares each. Also, I provide that the said amount, four hundred and forty dollars, be paid to the above-named parties eighteen months after the death of myself and wife.
“ (Signature on face of the will.)
“ Likewise I -make, constitute and appoint Daniel L. Toland to be executor of my last will and testament, hereby revoking all former wills by me made.
“ In testimony whereof, I have hereunto subscribed my name and affixed my seal the fourteenth day of April, in the year of our Lord one thousand eight hundred and eighty 6.
“JAMES CONWAY. [l. s.]
“The above-written instrument was subscribed by the said James Conway in our presence, and acknowledged, by him to each of us, and he at the same time declared the above instrument so subscribed to be his last will and testament; and we, at his request, have signed our names as witnesses hereto, in his presence, and in the presence of each other, and written opposite our names our respective places of residence.
“ DaNiel L. TolaNd, Portageville, JY. Y, Wyoming Go., N. Y.
“ JohN H. Careóle, Town Genesee Falls, Wyoming, W. Y.”

In addition to the foregoing, I find the following facts, viz.:

That said will was and is written upon'one-half sheet of paper of the ordinary size of legal cap paper.

That all of said will, from the beginning of it down to and including these words in brackets, viz., “ [Carried to baclc of will],” where they occur in said will, as hereinbefore set forth, was written on and is upon the first or front page and side of said half sheet of paper.

That the word “ [eontimued ] ” immediately following in said will these words in brackets, “ [Carried to back of will]” where they occur in said will, as hereinbefore set forth, down to and including these words in quotation marks in said will, viz., “ Signature on face of the will,” is written on and is upon the back side and second page of said half sheet of paper.

That all the rest, residue and remainder of said will, including the appointment of the executor, the signature of the testator, the attestation clause signed by the witnesses, and the signatures of the witnesses, is written, and is immediately after these words, “ Signature on face of the will,” and was written oh, and is upon the first page of said half sheet of paper, and on the front side of said half sheet.

That after the testator executed and subscribed said will, and after the witnesses signed said will and the testator published and declared it as aforesaid, the testator died.

From tbe foregoing, I find that tbe said will was duly executed in all respects so as to pass real and personal property, and that tbe same is duly proved and entitled to be admitted to probate as a will valid to pass real and personal property.”

There is no substantial controversy as to tbe findings being warranted by tbe proofs. Tbe appellant’s contention is tbat tbe will was not subscribed at tbe end thereof.

Section 40 of article 3 of chapter 6, part 2, Revised Statutes ( [8th ed.] vol. 4, p. 2547), provides: “ First. It shall be subscribed by tbe testator at tbe end of the will. * * * Fourth. There shall be at least two attesting witnesses, each of whom shall 'sign his name as a witness at the end of the will at the request of the testator.”

The learned counsel for the appellant cites, in support of his position, Matter of Probate of Will of Hewitt (91 N. Y., 261). The judge delivering the opinion says, at page 264: Here the signatures of the witnesses are followed by an important provision of the will, disposing of property to his brother. They are not written at the end of the will, but manifestly near the middle thereof, and hence, plainly from an-inspection of the will, the statute was not complied with.”

He also cites Matter of the Will of O'Neil (91 N. Y., 516), where the instrument was manifestly not signed at the end of the will.

An inspection of this will, a copy of which accompanies the appeal papers, shows that it was written on both sides of a half sheet blank. The form of the blank assumes there was room on the first page to write the whole will, for printed forms for the signatures and attesta tion appear at the foot of the page, and the other side of the half sheet before written upon was entirely blank. There is a clause at the end of the written matter on the first page stating in brackets, “ Carried to back of the will.” On the back of the will the woi’d ‘‘ Continued ” appeared, after which all of the balance of the disposing part of the will was written. Then comes the signature and attestation.

It is obvious that the writing on the back- part of the half sheet was because of want of room on the first, side and a mere continuance, and the person drafting the will takes pains, in substance, so to state. The signature and attestation clause are • where they would and ought to have been if there had been room enough to write the will on the first side. Whereas the will on its face shows that the writing was continued on the other half, then subscribed and witnessed. No reason is seen why this is not a signing and subscribing at the end of the will.

The findings of the learned surrogate are clearly warranted by the testimony. A substantial compliance is all the statute requires. (Jackson v. Jackson, 39 N. Y., 153; Tonnele v. Hall, 4 Comst., 140; Hitchcock v. Thompson, 6 Hun, 279; Kelly's Case, 67 N. Y., 416.) There are numerous other eases to the same effect. The authorities cited by the learned counsel for the appellants do not conflict with the above cases.

The conclusion of the surrogate was right, and the decree must be affirmed.

Dwight, P. J., and Macomber, J., concurred.

Decree of surrogate of Wyoming county affirmed, with costs to the respondent payable out of the estate..


author: MacoMbeR, J.: Coelett, J.

text:
    CLEON STONE, by Guardian, Respondent, v. THE TOWN OF POLAND, Appellant.

      Negligence — town highway out of repair — acts and declarations of the highway ■ commissioners subsequent to the accident, how far evidence against the town — evidence as to the subsequent repair of the highway.

    In an action brought against a town to recover the damages alleged to have been sustained by the plaintiff through the negligence of the commissioner of highways thereof, evidence as to the statements made by the commissioner, on the day following the accident, that he supposed the road had been repaired, and that he had ordered a man to make such repairs at two different times, is incompetent. (Oorlett, J., dissenting.)
    While the act, declaration or omission of duty of a party to a suit, whether before or after the event, may be given- in evidence against him, yet where liability against a town is sought to be established by reason of the negligent omission of the commissioner of highways thereof, the declarations of the latter, when made after the injuries have been received, are not competent evidence.
    While, in such an action, evidence of repairs having been made shortly after the acccident may not be competent, if offered.for the purpose of showing that the party charged with negligence must have known before the accident of the dangerous character of the locality, yet such rule does not prevent a witness from describing the condition of the place where the accident has happened, although it may incidentally and argumentatively involve the fact that the party charged with maintaining the road has, since the accident, made repairs thereon; and evidence of the condition of the highway, from a witness inspecting it after the accident, may he proper to show the presence of funds in the hands of the highway commissioners at the time of the accident.
    Appeal by the defendant, the Town of Poland, from a judgment, entered in the above-entitled action in the Chautauqua county clerk’s office on the 24th day of September, 1889; and also from an order, .made at the Chautauqua County Special Term on thé 12th day of May, 1890, denying the defendant’s motion, made on a case containing exceptions, for a new trial.
    The action was brought to recover damages alleged to have resulted to the plaintiff from injuries received upon a, public highway, in the town of Poland, by reason of a certain bridge, and the approaches thereto, haying been, as was alleged, out of repair and in a dangerous and unsafe condition.
    It was tried at the Chautauqua County Circuit, at which a verdict was rendered in favor of the plaintiff for the sum of $1,000.

      F. W. Stevens, for the appellant.

      A. O. Wade, for the respondent.
   MacoMbeR, J.:

The verdict was rendered upon a complaint demanding damages alleged to have been sustained by the plaintiff through the negligence of the commissioner of highways of the town of Poland, by which the plaintiff on the 22d day of May, 1887, received personal injuries. After passing the bridge over Conewango river, the horse then driven by the plaintiff, either through fright at the new structure erected near the highway, or by accidentally stepping into a hole in the highway, caused the plaintiff to be thrown down an embankment.

The main question in the case was whether the commissioner of highways had omitted any duty which he owed to the traveling public in failing to make the place in question safe for travelers. It is quite evident that the verdict could not have been based upon the fact that the defect in the highway had continued so long as to charge the commissioner with negligence in 'failing to discover its existence. The negligence of tbe defendant was established, if at all, by the evidence of three witnesses, wlió testified, under objection and exception by the defendant’s counsel, that the commissioner said, on the day following the accident, that he supposed the road had been repaired, and that he had ordered a man to make such repairs at different times. The exception to this evidence presents the main ground upon which the appellant’s counsel asks for a reversal of the judgment. . .

Chapter Y00 of the Laws of 1881, making towns responsible for injuries'where theretofore the commissioner of highways alone was held hable, has introduced no new rule of evidence. The admissions of a person not a party to the action are, in this class of cases as in all others, inadmissible because they are mere declarations of persons not parties to the action, and afford no reliable evidence upon which courts can safely pronounce judgment. It is only when the act or declaration of a person forms part of a transaction, and is a fact in issue, that such act or declaration is competent to be given in evidence, and then only in order to show the purpose or character of the transaction or to explain its meaning. In the case before us the liability of the defendant depends upon the performance or the non-performance of the duty of a third person, namely, the commissioner of highways. JEis act, declaration or omission, of duty is competent in an action against the town only When the act, declaration or omission of duty occurred in the course of his business in respect of his duties as such highway commissioner. Had he stated to either of these three witnesses, before the time of the accident, that he had required a subordinate to repair the defect in the highway, there would have been presented conclusive evidence of his actual knowledge of the dangerous condition of the highway and of the necessity of repairs. That would be a fact germane to the case, but his unsworn declaration that he had given such directions, made after the accident, is not any evidence of such knowledge.

The general rule undoubtedly is that the U'ct, declaration or omission of duty of a party to a suit, whether given before or after the event, may be given in evidence against him. But where liability against a town is sought to be established by reason of the negligent omission of the commissioner of highways, the declarations of the latter are not competent evidence when made after the injuries have been received by the plaintiff. As was said in the case of Stephens v. Vroman (16 N. Y., 383, 384.) “ The law does not regard as sufficiently authentic to influence a jury any statement which is not made under the sanction of an oath, and, in general, it further requires that the witness making the statement should be present at the trial, to the end that he may be examined by the adverse party, and that the jury may draw their own conclusions as to his sincerity and accuracy, by his appearance and bearing upon the witnesses’ stand. This rule does not, however, embrace the admissions of a party to the action, for, upon equally plain principles, anything which a man says against himself may be given in evidence by his adversary, as it is not to be supposed that one will make a statement adverse to his own interests unless it is true.”

These declarations were but a narrative of a past transaction and were not admissible. In the case of Waldele v. The New York Central and Hudson River Railroad Company (95 N. Y., 274) the plaintiff’s intestate was struck by an engine while crossing the defendant’s tracks and received injuries from which he subsequently died. Half an hour after the accident his declarations, made by the sign-language, he being a deaf mute, were 'given in evidence to the effect that there was a long train passing the tracks; that he waited for it to go by, and after it had passed, attempted to cross and was struck by an engine which followed. It was held, after a thorough review of the authorities, that this was but a • declaration of a past transaction and was incompetent; and the judgment, partially based upon such evidence, was reversed. (See, also, the cases of The People v. Beach, 87 N. Y., 508; Whitaker v. Eighth Ave. R. R. Co., 51 id., 295; People v. Davis, 56 id., 95; Tilson v. Terwilliger, Id., 273.) For this reason the judgment and order appealed from should be reversed, and a new trial granted.

A further point is made by counsel for the appellant that evidence of repairs being made shortly after the accident was not competent under the decision of the case of Corcoran v. The Village of Peekskill (108 N. Y., 151). The last-cited case holds that evidence, if offered for the purpose of showing that the party charged with negligence must have known before the accident of the dangerous character of the locality, was incompetent; yet we do not understand that case to lay down any rule which prevents a witness from describing the condition of the place where an accident has happened, even though it does incidentally and argumentatively involve the faci/ that the party charged with maintaining it has, by mating repairs thereon, by so much, confessed to his dereliction, provided the evidence is material for some purpose which is legitimate. If we understand the rulings of the learned trial justice aright, he recognized the rule laid down in the case cited above, and Admitted the evidence of the condition of the highway from the witness inspecting it alter the accident, to show the presence of funds in the hands .of the highway commissioner at the time of the accident. For this purpose the evidence, though perhaps unnecessary, was competent. (Getty v. Town of Hamlin, 28 N. Y. St. Rep., 275.)

Judgment and order must be reversed and a new trial granted, with costs to abide the event.

Dwight, P. J., concurred.

Coelett, J.

(dissenting):

On the 22d day of May, 1887, the plaintiff while attempting to cross a bridge over Oonewango river, between Poland Center and Mud Creek, in the town of Poland, county of Chautauqua, was thrown down an embankment constructed at the northerly approach to the bridge, and in tlie fall he received personal injuries, to recover damages for which he brought this action, which was tried on the 14th day of May, 1888, before Justice Haight and a jury. It resulted in a verdict for the plaintiff of $1,000. A motion for a new trial was denied, and the defendant appealed to this court.

The approach to the bridge was constructed by placing logs and chunks against the piles, extending it back from the stream to the bank, in' this manner building up an embankment ten or eleven feet high next the bridge, covered with earth and gravel. The embankment at the end of the bridge was about eleven and one-half feet high, growing less as the bridge was left. On each side of this embankment there was a perpendicular de'scent from the road-bed of eleven and one-half feet at the end of the bridge, and four or five feet from that point the descent was ten feet. The floor of +he bridge was twelve feet in width, which continued until the approach proper was reached, and then the way was narrowed to about ten feet. There were no barriers on either side of the embankment and it was claimed, on the part of the plaintiff, that there was a hole in the approach at the northerly side of the bridge, near the easterly side of the road, which narrowed it to about eight feet.

It was also claimed that this hole had existed a month prior to the accident, and had gradually grown in size until it was two feet in diameter. At the time of the accident the plaintiff was passing over the bridge from the south, and it is claimed that his horse shied and stepped into this hole, stumbled and fell over the embankment, carrying with him the carriage and the plaintiff. There is no controversy on this appeal as to the plaintiff’s right to recover unless errors were committed in the admission of evidence on the trial.

Orrin J. Tracy was sworn as a witness, and testified that the morning after the accident he went to the bridge and measured it. He also stated the situation as it appeared at that time. No objection was taken to this evidence. George W. Jones was also sworn as a witness for the plaintiff, and testified that on the 11th day of April, 1888, he examined, with others, the northerly end of the approach, and describes it. He was then asked: “ In what condition was the bridge at that time % ” This was objected to by defendant’s counsel “ as immaterial.” The plaintiff’s counsel said : I simply wanf to show its condition when he made the examination.” The court stated: “ You were not seeking to show that there has been anything done since,” to which the plaintiff’s counsel assented. The evidence was received, and the defendant’s counsel excepted. It is obvious that this evidence was not offered or received for the purpose of showing that repairs had been made after the accident to establish negligence. It was not so regarded by the defendant’s counsel, as it was simply objected to as immaterial, but the court took pains to indicate that the evidence was not admitted to show subsequent repairs for the purpose of establishing negligence.

The doctine of Corcoran v. Village of Peekskill (108 N. Y., 151) has no application. No error was committed in the admission of this evidence. Its purpose was simply to throw light upon the condition of the hole and its surroundings at the time of the accident.

Walter B. Wait, a witness for tlie plaintiff, testified that he saw the highway commissioner the next day after the accident and talked with him about it. He was then asked: What did you hear him say about the road at that time? ” “This question was objected to by the defendant’s counsel, on the ground that the commissioner’s admissions were not binding upon the defendant.” The objection was overruled and exception taken.

The witness then stated, he supposed the road was repaired; that he had ordered Campbell to do it two different times. Other evidence was given to the same effect, under like objection and exception. The admission of those declarations is urged as error by the learned counsel for the appellant.

Chapter 700, section 1 of the Laws of 1881, provides: “ The several towns in this State shall be liable to any person suffering the same, for, all damages to person or property by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of said towns are now by law liable therefor, instead of said commissioner or commissioners of highways.”

Commissioners of highways are public officers who have entire charge of the construction and repair of highways, and are in no sense agents of the town. (Bidwell v. Town of Murray, 40 Hun, 191-193.)

The statute does not change the relation of the town to the highways or the commissioners, so far as it relates to supervision or repairs. Those obligations still rest upon the commissioners as such, and not as agent of the town. The liability which this act imposes upon the town, confers upon it no control or supervision of the highways.

The learned counsel for the appellant concedes that declarations or statements of the commissioner before the accident would have been admissible. It is a familiar rule that admissions or declarations of an agent are not admissible, no matter when made, to bind the principal, unless they are a part of the res gestee. (Thallhimer v. Brinckerhoof 4 Wend., 394-397; Dean v. AEtna Life Lns. Co., 62 N. Y., 642.)

So that declarations made before the accident are no more admissible, unless part of the res gestee, than those afterwards. In Bidwell v. Town of Murray, above cited, evidence was admitted on tbe trial of tbe declarations of tbe commissioner tbe summer before the accident. The learned justice, delivering the opinion on appeal, speaking on this point, says, at page 196 : There was no error in receiving the evidence of the declaration of the commissioner, made the summer before the accident, to the effect that he had got to go and repair this bridge. This evidence was competent only as. bearing on the question of his knowledge of the condition of the bridge, and not to show that it was defective, and it was received only for such limited and legitimate purpose.”

It is clear from this quotation that those declarations were not made while the commissioner was doing any act in an official capacity, or as a part of the res gestae. The statement was simply to the effect that he must thereafter go and repair the bridge. These admissions were received to show the knowledge of the commissioner. The personal knowledge of an individual may ordinarily be proved by his acts or declarations. Whether these acts or declarations were before or after the accident must be entirely immaterial. The declarations in the case at bar were admissible simply as evidence, tending to show previous knowledge by the commissioner of the existence of the hole which caused the accident.

The learned counsel for the appellant is entirely right in his general position that declarations or statements of persons not parties to the action are inadmissible to bind those who are. But where the material question depends upon the personal knowledge of the individual, in the nature of things, his acts or declarations must be evidence on that subject, and the time when made is entirely immaterial. The declarations in this case were received simply to show the knowledge of the commissioner, and the trial court fell into no error in receiving them for that purpose.

The statement that the highway commissioner’s declarations were not admissible to bind. the town in the manner made is misleading. No general rule is more familiar than the one forbidding declarations of competent witnesses from being evidence against either party to the action. But where declarations are, in their very nature, competent to prove a fact, they are - not rendered inadmissible because they are not made by the parties to the action.

The fact that the town is alone liable to be sued for an injury caused by a defective highway or bridge in no way changes the proof upon which a recovery depends. The duties of highway commissioners continue the same as to supervision and repairs; but for the purpose of avoiding circuity and compelling direct payment the statute transfers the right of action against the town.

It is conceded that the proof to charge the town must establish the same facts as if brought against the commissioner. But the learned counsel for the appellant contends that while, as against the commissioner, his declarations on the question of knowledge, either before or after the accident, would be admissible, they are not so against the town. It is not necessary to determine whether, for certain purposes, the commissioner must be called to prove facts which could formerly be shown by his declarations; such as whether the highway or bridge was defective or out of repair. No such question is presented. The point here is, whether a certain fact, which may be an important element to prove negligence, can be proved in a particular way. That fact in the case at bar is the commissioner’s knowledge.

The knowledge' of an individual may be shown in certain cases by his opportunities to know; it may also be shown by his acts or declarations. In the case at bar it is agreed that if the declarations had been made before the accident, that would have furnished evidence of knowledge. No criticism is made upon the decision in Bidwell v. Town of Murray on this question. In fact, the learned counsel for the appellant admits that if the declarations had been made before the accident, they would have been admissible on that question.

The fact that admissions are generally inadmissible is not questioned by either party. It never was the rule that the time when declarations are made was important in determining the question of their admissibility. It never can be proved, except as part of-the res gestae, for the simple reason that deelarationsy>evs<?are generally inadmissible to bind third persons. But where a thing evidenced by the declarations is confined to the knowledge of the person making them, then a different question is presented. If a person, before -the accident, when he is doing no act required either by agency or official business, makes a declaration, it is not admissible except as showing personal knowledge. If he makes the same declaration after tlie accident, no reason is perceived why it is not just as admissible for the same purp'ose. It is not a part of the res gestee in either case. As to whéther he would be most likely to make a false declaration, before or after the accident, as to his personal knowledge, must, in the nature of things, depend upon circumstances and conclusions affecting credibility. But how the time when made controls its admissibility is not seen.

Bidwell v. Town of Murray is decisive upon this question. If the court was right in that case, it follows that the evidence was admissible in this to prove the same fact.

The judgment and order should be affirmed.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.


text:
    JAMES FRASER and WILLIAM H. WALKER, Executors, etc., of JOHN McNAUGHTON, Deceased, Respondents and Appellants, v. MARGARET McNAUGHTON and Others, Respondents, THE TRUSTEES OF THE GENERAL ASSEMBLY OF THE UNITED PRESBYTERIAN CHURCH OF NORTH AMERICA, Appellant.

      Will—eguitable conversión of real estate into personalty.

    A testator, by his will, provided as follows: “I do hereby authorize and empower my executors, or a majority of them, as soon as convenient after the death of my wife, to sell and dispose of my real and personal estate of which I may die seized, on such terms as to the said executors, or a majority of them, shall seem just and proper, within three years after my wife’s death.” And further provided; “I hereby authorize and empower my executors, or a majority of them, as soon as convenient after my decease, to sell and dispose of my real estate of which I may die seized, on such terms as to the executors, or a majority of them, shall seem just and proper, within three years from my death; and until said real estate is sold I hereby authorize my executors to take charge and supervision over it and the avails of the said real estáte, together with such balance as shall remain of my personal property after all debts, charges, funeral expenses and legacies are paid off as provided for, together with all expenses and charges of executing this will ”
    In an action brought to obtain a construction of the will it was claimed by a beneficiary named therein that, under the aforesaid provision of the will, upon the principal of equitable conversion, the real estate of the testator must be deemed to have been converted into personal property,

      Meld, that as it was no where made the duty of the executors to sell the real estate, and as it did not appear that the testator intended that the same should be sold by them in any event, that the doctrine of equitable conversion was not applicable.
    Appeal by the plaintiffs from an order made at a Special Term held in the county of Monroe on the 1st day of August, 1888, and entered in the office of the clerk of the county of Livingston, August 3,1888, and from so much of said order as awards to the defendant, the Trustees of the General Assembly of' the United Presbyterian Church of North America, an allowance of the sum of $350, to the infant defendants George Halsted Bristol and Larius Fillmore Bristol, Jr.., an allowance of the sum of $350, and to the defendants Margaret McNaughton and others an allowance of the sum of $300.
    Appeal by the defendant, the Trustees of the General Assembly of the United Presbyterian Church of North America from a judgment of the Supreme Court, entered in the office of the clerk of the county of Livingston on the 3d day of May, 1889, construing the will of John McNaughton, deceased, and from the whole of said judgment, and from such parts thereof as adjudged and decided that under said will there is no equitable conversion of the real estate of said decedent into personal, and that the bequest and devise in said will to said defendant, is void, and that the portions of the real estate of said'John McNaughton, mentioned in items 10, 11 and 12 of his said will, are not disposed of by said will, but descend to his heirs-at-law, with notice of an intention to bring up for review, upon said appeal, so much of the order, entered in the Livingston county clerk’s office on the 3d day of August, 1888, as awards an extra allowance of costs to the plaintiff.

      J. W. Twylor, for the Trustees, etc., of the United Presbyterian Church, etc., appellant.

      L. N. Bangs, for the executors, respondents and appellants.

      P. M. French, guardian aA Utem of the infant defendants.
   Macomber, J.:

This action is brought to obtain a construction of the will of John McNaughton, deceased, which bears date February 26, 1880, and which was admitted to probate July 9, 1881, The only survivors of the testator are his two grandchildren, the infant defendants, George ITalsted Bristol and Larius' Filmore Bristol, and Margaret McNaughton the widow of the deceased. The appellant upon the principal question the Trustees of the General Assembly of the United Presbyterian .Church of North America, is a corporation organized under the laws of Pennsylvania, and is a benevolent, charitable and religious missionary society, within the meaning of chapter 360 of the Laws of 1860 of New York, and is not author ized to take real estate by devise by the laws of this State. Its counsel attempts to procure an adjudication on this appeal to the effect that, under the principle of equitable conversion, the real estate of the testator must be deemed to have been converted into personal property, and that, consequently, the appellant can receive the share so given to it by the will, which is three-fourths of the residuary part of the estate. If the principle of equitable conversion can be applied to this case, the appellant would be entitled to receive the share for which it contends, otherwise not.

The question is to be determined by the third and eighth clauses of the will, which are as follows: “ Item 3d. I do hereby authorize and empower my executors, or a majority of them, as soon as convenient after the death of my wife, to sell and dispose of my real and personal estate of which I may die seized, on such terms as to the said executors or a majority of them shall seem just and proper, within three years after my wife’s' death. * * * Item 8th. I hereby authorize and empower my executors, or a majority of them, as soon as convenient after my decease, to sell and dispose of my real estate of which I may die seized, on such terms as to the executors, or a majority of them, shall seem just and proper, within three years from my death, and until said real estate is sold I hereby authorize my executors to take charge and supervision over it and the avails of the said real estate, together with such balance as shall remain of my personal property after all debts, charges, funeral expenses and legacies are paid off, as provided for, together with all expenses and charges of executing this will.”

The pervading difficulty in applying the 'doctrine of equitable conversion to these clauses of the will consists in the fact that it is nowhere made the duty of the executors or trustees to sell the real estate; nor does it appear that the testator intended that the same should be sold by them in any event. In the absence of such a direction and in the absence of such a positive intent this doctrine cannot be applied. (Scholle v. Scholle, 113 N. Y., 270; Hobson v. Hale, 95 id., 597; White v. Howard, 46 id., 162; Newell v. Nichols, 12 Hun, 624; Gourley v. Campbell, 66 N. Y., 173 ; Wright v. Trustees M. E. Church, Hoff. Ch., 202.)

As it is said in Scholle v. Scholle {supra) : “ There is in the will no imperative direction for the sale of the real estate. Indeed, there is no direction to sell at all. A power or authority to sell is given, but unless the exercise of that power is rendered necessary and essential by the scope of the will and its declared purposes, the authority is to be deemed discretionary, to be exercised or not as the judgment of the executrix may dictate, and so an equitable conversion will not be decreed. To justify such a conversion there must be a positive direction to convert, which, though not expressed, may be implied ; but, in the latter case, only when the design and purpose of the testator is unequivocal and the implication so strong as to leave no substantial doubt. Where, however, only a power of sale is given without explicit and imperative direction for its exercise, and the intention of the testator in the disposition of his estate can be carried out, although no conversion is adjudged, the land will pass as such and not be changed into personalty.” (See, also, Chamberlain v. Taylor, 105 N. Y., 194.)

This is the only question raised by the appeal upon the merits of the case, and we are of the opinion that the learned trial justice was correct in his conclusion that items ten, eleven and twelve of the will, by which there was given to the General Assembly of the Hnited Presbyterian Church of North America three-fourths of the residue of the estate, after the payment of certain debts and legacies, were inoperative, and that the property therein mentioned descends to the heirs-at-law of the testator.

There is also an appeal from the order of the court granting certain additional allowances of costs to the various litigants. The plaintiffs appeal from the allowance to the defendants, and the defendant, The Trustees, etc.,,appeal from the allowance made to the plaintiffs. The sum of $800 in all was granted to the several parties. Undoubtedly, the case may be deemed to be difficult and extraordinary within section 3253 of the Code of Civil Procedure, but the allowance thereunder must be limited to the percentage of five per cent upon the value of the subject-matter involved in the litigation.

In the absence of a finding by the court of the value of the real estate left by the testator to the appellant, The Trustees, etc., of the Presbyterian Church, etc., resort must be had upon this question to the affidavits and other evidence in the case, from which it appears that the whole of the estate left by the testator, both real and personal, was $16,700. There was an incumbrance upon the real estate of $2,600. The personal estate, consisting of $3,700, was exhausted in payments of the debts. The specific legacies under the fourth, fifth and sixth items of the will amounted to $1,600. The life estate of Margaret McNaughton was $2,900, leaving a residue of the estate for distribution under the residuary clauses of the will of $5,900. One-fourth of this sum is payable to the American Bible Society, leaving the sum of $4,425, the amount of the gifts to the defendant corporation, as the sole matter in controversy. The allowance to the respective parties must be graduated accordingly. (Struthers v. Pearce, 51 N. Y., 365; Conaughty v. Saratoga Co. Bank, 92 id., 401; Moore v. Appleby, 108 id., 237.)

The judgment appealed from should be affirmed, with costs of the appeal to the infant defendants, and the order appealed from' should be modified by limiting the additional allowances of costs to the sum of $221.25, being five per cent of the subject-matter involved, to be distributed in the same relative proportion as under the order of the Special Term.

Dwight, P. J., and Corlett, J., concurred.

Judgment appealed from affirmed, with costs. Order appealed from modified, as stated in opinion, without costs to either party.