author: Barnard, P. L:

text:
    WILLIAM A. HANSEE, Respondent, v. THE BROOKLYN ELEVATED RAILROAD COMPANY, Appellant.

      Action for personal injury — evidence of similar claims made by plaintiff against other railroads, not admissible — injury to general health.

    In an action against a railroad company to recover tire damages resulting from a personal injury caused by the defendant’s negligence, the defendant cannot. . introduce evidence to establish the fact that the plaintiff had made similar claims against other railroad companies for injuries not connected with the injury in suit. Nor can the plaintiff, in such an action, be cross-examined, with a view to discredit him, as to claims for other injuries against other companies, without proof of facts showing, or tending to show, that such claims were dishonest.
    In such an action evidence of injury to the plaintiff’s general health is admissible, where it is the direct consequence of the immediate injury, and the complaint contains a sufficient averment to support such evidence.
    Where the immediate injury is to the plaintiff’s hand, and the complaint avers, that the injury to the hand is serious, permanent and painful, this is a sufficient averment to support testimony as to plaintiff’s general health.
    Appeal by the defendant, the Brooklyn Elevated Railroad Company, from a judgment, entered in the office of the clerk of Kings county on the 5th day of April, 1892, in favor of the plaintiff William A. Ilansee and against the said defendant, on the verdict of a jury, for $500, and also from an order denying the defendant’s motion for a new trial entered in said clerk’s office on the 21st day of April, 1892.
    The action was brought to recover the damages resulting from a personal injury alleged to have been received by plaintiff, while-riding as a passenger in one of defendant’s cars, through the defendant’s negligence.

      William N Cohen, for the appellant.

      W. F. O'Neill, for the respondent.
   Barnard, P. L:

The proof established a clear case of negligence against the-defendant. On the 20th of December, 1886, he was a passenger on the defendant’s cars, and while he was in the act of getting off the train the conductor, who was intoxicated, pulled the door shut, with a great deal of force and caught the plaintiffs right hand and quite seriously injured him. The jury found a verdict of $500. The verdict is very moderate if the plaintiff’s evidence be credited. The only question, therefore, upon appeal is whether any error was committed on the trial. The defendant offered on the trial to prove that the plaintiff had made a claim for damages against the West Shore Railroad Company and against the Delaware and Hudson Railroad Company. This was excluded, unless connected with this injury. This was not claimed, but it was claimed that a right to cross-examine the plaintiff as to other- injuries was proper to discredit the witness and to show that this claim was manufactured. The-evidence was properly excluded. The mere fact that the plaintiff had been a witness before, and had had other claims for damages, for injuries against other corporations would, of itself, prove nothing.. The merits of each case must be tried. A mistaken claim - would be of no importance as establishing a character for asserting manufactured claims of injury. A witness’ credibility cannot be affected,, unless something more is proven than that the plaintiff had made-claims for injuries at other times of other companies. A party may sue as often as he is injured, and there is no presumption that can. properly be based upon such actions without proof of facts showing, or tending to show, that the claims were dishonest. The case is not-like that class of cases where other frauds are permitted to be proven to show the fraudulency of the contract asserted by a party against-a fraudulent vendee.

The evidence that the injury to the hand occasioned an injury to the general health was properly admitted. It was the direct consequence of the injury, and the complaint avers that the injury to the= hand was serious, permanent and painful. There was a sufficient, averment to support the testimony as to the general health. The. evidence on the trial was conflicting; not as to the accident, for the-plaintiff and his son are the only witnesses as to the occurrence. The manager of the defendant testifies as to subsequent declarations, and conduct of the plaintiff. The defense impeached the general character of the plaintiff for credibility. The case was tried with great thoroughness, and the conclusion reached by the jury upon the-disputed facts should be decreed final on appeal.

Judgment and order denying new trial affirmed, with costs.

Pratt, J. concurred.

Judgment and order denying new trial affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    SUMNER A. MASON, Plaintiff, v. EMMA J. MASON, Defendant.

      Husband and wife— action by the husband foi' the conversion of chattels by his wife.

    A husband may maintain an action for conversion against liis wife to recover damages for the wrongful conversion of personal property taken by her from his possession after she has abandoned him.
    The rule was the same even before the enactment of chapter 51 of the Laws of 1890, entitled “An act relating to the liabilities and remedies of husband and wife,” and of chapter 248 of Laws of 1890, amending section 450 of the Code of Civil Procedure, relating to parties to actions.

      Berdell v. Pan'lchurst (19 Hun, 358) followed.
    Motion for a new trial on plaintiff’s exceptions, ordered to be heard at the General Term in the first instance, after a verdict in favor of the defendant, rendered at the Kings County Circuit by direction of the court on the 22d day of March, 1892.
    The action was brought to recover for the conversion of personal property of the value of $2,000.
    The complaint contained the following allegations:

      First. That before and until the time hereinafter mentioned, the plaintiff was lawfully possessed of certain goods, of which a list is hereto annexed and marked “A,” his property, of the value of over two thousand dollars.

      Second. That on and before the 1st day of May, 1888, the defendant took possession of said goods, and unlawfully converted and disposed of the same, to her own use, to the plaintiff’s damage, in the sum of two thousand dollars.
    The answer contained a general denial, and alleged the marriage of the plaintiff and defendant in the year 1869.
    When the case came on for trial counsel for the plaintiff, in opening the case, made the following admissions for the purpose of enabling defendant’s counsel to make a motion to dismiss the •complaint:
    1. That, at some time long prior to the dates set out in the complaint, the plaintiff and defendant had been married.
    2. That there had been no decree of divorce or separation between them at any time since. Also, that defendant had, prior to the dates set out in the complaint, abandoned the plaintiff.

      Defendant’s counsel having objected to any statement by plaintiff’s counsel, relative to any alleged abandonment by defendant being taken as an admission, for the reason that defendant contends that the abandonment, if any, was by plaintiff, and because defendant’s counsel wished to go to the jury on that issue, if it -was material, the court ruled further, that in order to present the question fairly, the plaintiff might make an offer of evidence tending to show an abandonment on the part of the wife, which the court would exclude as immaterial.
    Plaintiff’s counsel then offered testimony tending to prove that defendant, at a time prior to the date set up in the complaint, had abandoned the plaintiff, and had continued such abandonment ever since.
    The court excluded this as immaterial, and plaintiff excepted. Thereupon, by direction of the court, the jury found a verdict for defendant to which plaintiff excepted.
    Judgment was thereupon suspended by the court, and the exceptions were directed to be heard, in the first instance, at the General Term by an order made on the 12th day of April, 1892.

      William G. Beeeher for the plaintiff.

      Alexander Cameron, for the defendant.
   Barnard, P. J.:

The plaintiff is the husband of the defendant. The compiaint charges that the defendant took valuable property from his possession and converted and disposed of the same to her own use. The case must be considered as if it was the fact that the defendant abandoned the plaintiff. The plaintiff offered proof tending to show it and it was rejected. It was decided by this court that if a wife took with her the husband’s property, he could bring an action against his wife. (Berdell v. Parkhurst, 19 Hun, 358.)

The Court of Appeals has repeatedly decided that a husband is liable for his wifes torts, and this action was dismissed upon the authority of Mangam v. Peck (111 N. Y., 401); Fitzgerald v. Quann (109 N. Y., 441).

These cases do not conflict necessarily with Parkhurst v. Bedell. The reasoning by which such a result is reached is to the effect that a husband has no remedy because he is liable as to a stranger to an action for a conversion by his wife of the stranger’s goods. The wife would be liable with her husband to the stranger for her conversion by virtue of the old rule .of the common law not necessarily repealed before. (Laws of .1890, chaps. 51 and 218.)

The wife could hold a separate estate at the time of the wrongful act. If she could increase it by taking wrongfully her husband’s property and go away with it and he have neither action or relief against her for the recovery back of the same, it would be a case of great hardship. The Court of Appeals, in Wood v. Wood (83 N. Y., 575), held that a wife could bring an action of ejectment against her husband to recover her property unlawfully taken from her. The remedy should be even between them.

The exceptions should, therefore, be sustained and a new trial granted, costs to abide event.

Pbatt, J., concurred; Dykman, J\, dissented.

Exceptions sustained and new trial granted, with costs to abide event.


author: VaN Brunt, P. J.: Barrett, J.: YaN BruNt, P. J.:

text:
    In the Matter of the Estate of CATHARINE L. WOLFE, Deceased.

      Collateral inheritance tax — jurisdiction of the surrogate to declare a corporation exempt — when executors are not protected in the payment of legacies — personally liable for the tax but not for costs — statutes not retroactive.

    ■Catharine L. Wolfe, who died April 4, 1887, and whose will was admitted to probate on May 81, 1887, bequeathed certain legacies to Grace Ohui'ch and to the Metropolitan Museum of Art of New York city. In June, 1887, the executors, who had qualified under the will, petitioned for the appointment of an appraiser to determine the amount of the collateral inheritance tax, payable under chapter 483 of the Laws of 1885, of which application neither the district attorney nor the city comptroller were given notice. The appraiser having made a report in which it was stated, among other things, that these corporations were exempt from the tax, and this report having been confirmed by the surrogate by an order, which reserved the question of the liability of these corporations to taxation until September 15, 1887, a copy of the report and of the order was mailed to the city comptroller, and was also served on him.
    On October 29, 1887, the surrogate made a further order, reciting the previous order and the proceedings, on September 15, 1887, and adjudged the legacies to these corporations to be free of tax. No copy of this order was served on the district attorney or upon the city comptroller. The executors thereafter paid over the legacies in full.
    The Court of Appeals having decided, in 1889, that a religious society was not exempt from this tax, the district attorney, in October, 1890, began a proceeding to collect the taxes from these corporate legatees under the Wolfe will, and it was finally decided by an order of the surrogate, entered February 29,1892, that the corporations were liable to the tax.
    Upon an appeal from such order:

      Held, that the decree made in the original proceedings before the surrogate, by which he held the corporations not to be liable to the tax, did not make the ■ question res adjudicóla.

    That the notice to the city comptroller did not affect the question, since the act of 1885 gave the surrogate no jurisdiction to decide that a party was not liable to taxation, except, perhaps, in the single case where the district attorney instituted the proceedings under sections 16 and 17 of the act.
    That as the surrogate had no jurisdiction to determine the question, his decree did not protect the executors in their payment.
    That legislation, subsequent to February 29,1892, the date of the entry of the last decree, being chapters 169 and 899 of the Laws of that year, exempting religious societies from the operation of the act of 1885, did not affect the decree which had become perfect before the passage of those acts.
    In the decree holding the corporations liable to tax the surrogate also held that the executors were not personally liable for the amount of the tax due upon the legacies, nor for the costs and disbursements of the proceeding.
    The district attorney appealed from an order confirming this portion of the decree of February 29, 1892.

      Held, that the executors were personally liable for the tax, Decauso the surrogate had no jurisdiction to declare the corporations exempt.
    That it was otherwise as to the costs and disbursements, which were matters within the discretion of the surrogate.
    Appeal by the Rector, Church Wardens and Vestrymen of Grace Church, in the city of New York, from the order, filed in the office of the surrogate of the county of New York on the 26th day of July, 1892, affirming an order made and entered in said office on February 29, 1892; and also from an order, entered and filed in the office of the said surrogate on the 26th day of July, 1892, denying the motion of the said Rector, Church Wardens and Vestrymen of Grace Church to open and vacate said order, entered on the 29th day of February, 1892, and for leave to file a supplemental answer herein; also an appeal by the Metropolitan Museum of Art, in the city of New York, from an order, entered in the office of the clerk of the Surrogate’s Court of the county of New York on July 26, 1892, which affirmed an order, entered in said clerk’s office on February 29, 1892.

      S. P. Wash, for Grace Church, appellant.

      Fvarts, Ohoate <& Bernncm, for the Metropolitan Museum of Art, appellant.

      B. F. Dos Passos, for the district attorney, respondent.
   VaN Brunt, P. J.:

On the 4th of April, 1887, one Catharine L. Wolfe died in the city of New York leaving a last will and testament, which was duly admitted to probate, and letters testamentary issued thereon on the thirty-first of May of that year. By this will certain legacies were left to the appellants. On the 2d of June, 1887, the executors-of said Wolfe petitioned the surrogate for the appointment of an appraiser, in order that the amount of the tax upon the various legacies of the decedent might be ascertained and declared, so far as said petitioners were bound to pay the same. Of this application neither the comptroller nor the district attorney had any notice. On the 23d of June, 1887, said executors filed a supplemental petition stating that the said order of June did not prescribe the notice to be given of such appraisment to the parties interested, and praying that an order be made fixing a reasonable time for such notice to parties interested. Thereupon, on the following day an order was-made prescribing notice to several persons, not including the comptroller or district attorney. Thereafter the appraiser appointed by the surrogate proceeded to appraise the property of the decedent, subject to the tax imposed by chapter 483 of the Laws of 1885, and in August, 1887, made and filed his report in which the sole reference to the two gifts or legacies above set forth is as follows :

Amount to be paid, to institutions which are free of tax, viz.:

Metropolitan Museum of Art, sixth section......... $200,000 00
Rector, Wardens, etc., Grace Church Codicil....... 350,000 00

On the 27th of August, 1887, an order was made by the surrogate confirming said report in all things, and assessing the taxes upon various legacies and gifts given by said decedent under her said will under the provisions of said act. And it was further ordered that nothing therein contained should be construed as an adjudication as to the liability to taxation of property of said estate, whether thereinbefore mentioned or not, except so far as the same was thereinbefore assessed for such taxation, and that all questions as to the liability to taxation, and the value for that purpose, of property not therein assessed, were reserved for further consideration upon the 15th of September, 1887, at eleven o’clock in the forenoon, which time and place were thereby assigned for a hearing upon the following question, viz.: Wliy the property disposed of in the fifth, sixth, twelfth, seventeenth and eighteenth clauses of the will of said Catharine Lorillard "Wolfe, and in the codicil to said will, should not be valued and assessed under said act —• these clauses including the provisions contained in the will and codicil for the appellants. On the 3d of September, 1887, a copy of the appraiser’s report, and of said oi’der of August twenty-seventh, was mailed by the attorneys for the executors to various persons, including the comptroller of the city of New York, and on the sixth of September a copy of said order of August twenty-seventh was served upon the comptroller by an assistant of the surrogate, and on the 29th of October, 1887, the surrogate made an order reciting the previous order of August twenty-seventh, and the hearing upon the questions reserved thereunder on September fifteenth, and thereby adjudged, among other things, that the legacies to the Metropolitan Museum of Art, and the legacy to Grace Church, were each of them exempt from taxation under said act. No copy of this order was served upon the comptroller or the district attorney. After the making and entry of said order or decree of the surrogate dated October 29, 1887, the executors of said decedent, relying upon said decree, and in good faith, paid and delivered to the appellants said gifts and legacies given to them under said will and codicil. On the 19th of March, 1889, the Court of Appeals decided that a religious society like Grace Church was not exempt from the tax in question. In June, 1890, by chapter 553 of the Laws of 1890 an act was passed exempting religious, educational and other societies from the provisions of the collateral inheritance tax acts. Subsequently, in June, 1890, the Court of Appeals decided that, as there was no legislative intention shown in the act of 1890, above referred to, that it should have a retroactive effect, its operation was only prospective. On the 15th of October, 1890, the petition herein was filed by the district attorney, who states that he has been notified in writing of the refusal or neglect of the executors to pay the tax as above mentioned.

The answer of the appellants pleaded the decision of the surrogate upon the final order entered upon the 29th of October, 1887; that more than two years had elapsed since said legacy had been paid, and that the jurisdiction of the surrogate in respect to the same had ceased, and claimed exemption under the law of 1890, above referred to.

Tlie matter was referred by the surrogate to a referee, who reported the facts. Exceptions were filed to the referee’s report, which were overruled by the surrogate who adopted the conclusion of the referee, that the appellants were liable to the tax.

An amendment to the a^t of 1885 was passed on the 19th of March, 1892 (chap. 169), which, after amending section 1 of the original act, also added to that section the following words: “ Provided, further, that any property heietofore devised or bequeathed, or which may hereafter be devised or bequeathed to any person who is a bishop, or to any religious corporation, shall be exempted from, and not subject to the provisions of this act.” On the 30th of April, 1892, the act of 1885 was remodeled by chapter 399 of that year; section 2 of the last-mentioned act containing a similar exemption of any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any religious corporation. By the twenty-fifth section of said last-mentioned act, it is provided that the provisions of this act, so far as they are substantially the same as those of laws existing on April 30,. 1892, shall be construed as a continuation of such laws modified or amended according to the language employed in this act, and not as new enactments. A petition was filed upon the part of the appellants for leave to set up this legislation as a further answer to the proceedings, which application was denied, the surrogate holding that the provisions of the act of 1892 did not exempt the appellant from liability to the tax. Orders were thereupon entered in conformity to the decision, and the appeals now before the court were taken therefrom.

There are two questions involved in the consideration of these appeals. The first is whether the proceedings before the surrogate, by which he decided that the appellants -were not liable to the tax, made the question res acljuclieata. The discussion of counsel in respect to this point was largely addressed to the question as to whether the comptroller was bound by the decision of the surrogate without having received notice: It seems to us that in respect of notice, by section 13 of chapter 483 of the Laws of 1885, it is entirely discretionary with the surrogate as to what notice shall be given and to whom; and that such proceedings may be initiated either upon the application of any interested party or upon the surrogate’s own motion. The section provides for the appointment of an appraiser, upon the application of any interested party or upon the motion of the surrogate, whenever occasion shall require, whose duty it shall be forthwith to give notice by mail to such persons as the surrogate may, by order, direct of thp time and place he will appraise such property, and at such time and place the appraiser shall appraise the same and. make a report, and upon the receipt of the report, the surrogate shall forthwith assess and fix the then cash value, and shall immediately give notice thereof by mail to all parties known to be interested therein, and that any person or persons dissatisfied with said appraisal or assessment may appeal therefrom to the surrogate of the proper county, within sixty days after the making and filing of such assessment. It is clear that in all these proceedings there is no obligation to give notice to any person until after the surrogate has made the assessment, and then notice by mail shall be given to all parties interested therein. And it would seem that it was this portion of the act which it was attempted to comply with by sérving the order which the surrogate made upon the coming in of the appraiser’s report in this' case, upon the comptroller. The comptroller was not a person interested in the estate. His interests were not to be affected by any action which the surrogate might take. It was a question as to the right of the State; and the legislature could provide that the surrogate should go on and assess this tax without any notice to any State official. And that is what the legislature seems to have done, and, therefore, if the surrogate had jurisdiction to determine in the proceeding mentioned the question of exemption, the determination mentioned was binding.

But upon an examination of the act we fail to find any authority upon the part of the surrogate to determine the question that a party is not liable to taxation except, perhaps, in a proceeding initiated by the district attorney. The surrogate has the power, upon the application of an interested party or upon his own motion, to appoint an appraiser for the purpose of assessing the tax. But nothing is said in respect to any power upon the part of the surrogate to adjudicate as to what is liable to tax and what is exempt. It may be claimed that the power to assess implies the power to declare the property exempt; especially in view of the provisions of section 15 of tbe act of 1885, which, provides that “ the Surrogate’s Court in the county * * * of which the decedent was a resident at the time of his death, shall have jurisdiction to hear and determine all Questions in relation to the tax arising under the provisions óf said act.” But this provision evidently was not intended to give the surrogate the right in any way that he might see fit to determine all questions in relation to the tax, but simply that in.the manner prescribed by the act he should have authority to determine all questions relative to the tax. The scheme of the act preceding this general grant of power related only to appointment of property and did not furnish any machinery for determining the question of exemption.

By the sixteenth and seventeenth sections, however, a method is provided for the determination of this question. Section 17 provides that whenever the treasurer or comptroller of any county shall have reason to believe that any tax is due and unpaid under this act, after the refusal or neglect of the persons interested in the property liable to said tax to pay the same, he shall notify the district attorney of the proper county in writing of such failure to pay such tax, and the district attorney so notified, if he have probable cause to believe a tax is due and unpaid, shall prosecute the proceeding in the Surrogate’s Court in the proper county, as provided in section 16 of this act, for the enforcement and collection of such tax.” And section 1(5 declares that, if it shall appear to the Surrogate’s Court that any tax accruing .under this act has not been paid according to law, it shall issue a citation citing the persons interested in the property liable to the tax to appear before the court on a day certain, not more than three months after the date of such citation, and show cause why said tax should not be paid.” In this proceeding the question of exemption or non-exemption can be determined. But, until such proceeding is taken, the act does not seem to provide any manner in which the issue of exemption from taxation can be presented for adjudication. It may be said that this imposing the burden upon executors of being called upon to pay legacies, and upon estates of being liable to additional interest, because of non-compliance with the law, although they are absolutely unable to compel a determination of their liability to pay, is unreasonable. But this branch of the legislation is no more incongruous, remarkable and unreasonable than many other provisions of the acts relative to the collateral inheritanee tax; they becoming more remarkable tlie more the question is legislated upon. As, for example, in the act of 1892, it is provided that any property heretofore or hereafter devised or bequeathed to any person who is a bishop, or to any religious society, shall be exempt, whereas a legacy to a child of the testator is made the subject of a tax, it seeming to have been the opinion of the legislature that a bishop or religious corporation have greater claims upon testators than their own children, a piece of legislation the parallel of which it would be difficult to find among legislative enactments.

If the surrogate had no jurisdiction to pass upon the question of exemption, then it is clear that his adjudication was no protection to the parties "acting thereunder.

The next question presented is: Has the subsequent legislation relieved the appellants from the payment of the tax in question ? The learned surrogate was of the opinion that it had not; and attention, is called to the decision of our court of last resort in the Matter of Miller (110 N. Y., 216). In that case the surrogate says: The testatrix died in September, 1886. On the 24th of March, 1887) an order was entered confirming the appraisement, and assessing the tax. The tax -was not paid. In August, 1887, the legatee asked that the order should be vacated on the ground that he was an adopted child, and that, by the act passed June 25,1887 (chap. 718), be was exempted. Tie contended that the act of 1887 not only made any proceeding for its collection impossible, but that it related back to the passage of the act of 1885, and, in effect, nullified the proceeding which led to the order, and annulled the order itself.” The court said, in the case cited, “ This construction would, by force of the later statute, render void not only the order in question, which was valid when made, but all other similar proceedings, although regular when taken, and would, as said in Ely v. Holton (15 N. Y., 595), lead to the grossest absurdities.” No legislative intention to that effect is discoverable m the act of 1887. The order was complete and perfect the moment it was made, subject to modification or reversal on appeal, but every step had been taken which depended for its force upon the original act. So far as the order is concerned, and the rights and the liabilities of the parties thereunder, it was a transaction complete and closed before the passage of the amendatory act, and being in that condition, we properly apply the words quoted in Butler v. Palmer (1 Hill, 324, 355), “ The law itself may be disannulled by the author, but the right acquired by virtue of that law, whilst in force, must still remain.” The surrogate then continues: “While it is not necessary to determine, at this time, the effect of this amendment, so far as concerns the estates of decedents dying prior to its passage, wherein proceedings for the assessments of the tax have not been instituted or completed, it is difficult to say how, in view of the decision in the Matter of Miller, the court can hold otherwise than that the act has only a prospective effect.” And this view of the learned surrogate, it seems to us, must prevail.

In the case of Key v. Goodwin (4 Moore & Payne, 341-351), Lord Chief Justice TiNdal laid down the rule as follows : “ I take the effect of repealing a statute to be to obliterate it (the statute repealed) as completely from the records of the parliament as if it had never passed, and it must be considered as a law that never existed, except for the purpose of those actions or suits which were commenced, prosecuted and concluded whilst it was an existing law.”

Applying these principles to the case at bar, it would seepi that the assessment in question, having been entirely completed, as far as the surrogate was concerned, prior to the enactment of the exemption clauses, the appellants cannot derive any benefit therefrom.

It would seem, therefore, that the decree of the surrogate should be affirmed, with costs.

O’BbieN, J., concurred.

Barrett, J.:

I concur. In my judgment the State was not concluded by the order originally made by the surrogate exempting these corporations from the tax. The tax is to be paid “ to the comptroller for the use of the State,” but that does not authorize this official to bind the State except by the result of an independent proceeding, such as is provided for in section 17 of the act. (Chap. 483 of the Laws of 1885.)

Nor could the surrogate conclude the State by acting upon his own motion or by a decision in proceedings (instituted under section 13 of the act) to fix the value of taxable estates. The “ persons interested ” in that proceeding are those whose estates were assessible. Its sole object is to correctly assess and fix the cash, value of these estates; that is (to quote the act), of all estates, annuities and life estates or terms of years growing out of ” the main estate of the decedent. The persons interested in having a fair appraisal are entitled to notice and they alone can appeal to the surrrogate from liis own action in assessing and fixing the cash value of their estates.

Provision for such appeal is made in favor of any person or persons dissatisfied with the appraisement or assessment, but no provision is made for an appeal by whoever may be dissatisfied with non-appraisement or non-assessment because of supposed exemption — a clear implication that an adjudication, under this section alone, of the question of liability was not contemplated.

Section 15 of the act is, however, invoked in did of the jurisdiction. That section does confer upon the surrogate jurisdiction to “hear and determine all questions in relation to the tax arising under the provisions of this act.” But this surely is subject to the ordinary rules which govern all hearings and determinations. It is not jurisdiction to hear and determine ex parte or without notice to the person to be affected by the judgment. Here the State had no notice. An order, ft is true, was served upon the comptroller, but this order was not one upon, which the jurisdiction to hear and determine the question of exemption could properly be exercised. Even if it. were such an order however, and even if its service upon the comptroller would have been service upon the State, it was not such an original process or mandate as the law contemplates. The papers upon which it was founded were not served, and the order, on its face and standing alone, conveyed no clear idea that the question of the liability of these particular corporations was to be considered at the time and place specified. The comptroller was not directed to show cause against the exemption. There was simply a statement in the order that the question whether the property disposed of in certain clauses of the will should not be valued and assessed, was reserved for further consideration on a particular day assigned for a hearing. The indorsement upon the order too was misleading. It simply informed the comptroller that the paper served was a certified copy of a decree “ confirming appraiser’s report and fixing tax, etc., in estate of Catharine L. Wolfe, filed herein, August 21, 1887.” There was nothing in this to call the comptroller’s attention to the question reserved. So far, therefore, as the comptroller was concerned, the proceeding was without notice, and, as against the State, the judgment amounted to nothing more than ex parte instructions to the executors, which the .surrogate was not authorized to give.

Upon the second point, I think, the corporations are concluded by the decretal order of February 29, 1892. The present proceeding was, under section 17, for the enforcement and collection of the tax, and it was ended by this decretal order, which directed payment ■of a specific sum. The right of the State to the tax thereupon became vested, and this right was not divested by the subsequent passage (in March and April, 1892), of exemption acts. This proceeding was, therefore, completed unde” existing laws granting no exemption. The vested rights thereby acquired were not affected by the subsequent appeal to the surrogate under section 13.

The appeal authorized by this section is only as to the appraisement or assessment, not as to the right to collect and enforce a fair .and prpper assessment when made. The surrogate might, upon the appeal taken by these corporations under this section, have reduced the amount directed to be paid, but he could not, after a final order decreeing the non-exemption and directing the enforcement of the tax assessed, treat the main question of liability to taxation as res nova. The proceedings were, therefore, complete when the •exemption acts of 1892 were passed, and the State then had a judgment for the tax which was not impaired by these acts, even if the amount directed to be paid might have been reduced upon the subsequent appeal.

Decree of surrogate affirmed, with costs.

Appeal by De Lancey Nicoll, district attorney, from so much of the said order, entered in the office of themlerk of the Surrogate’s Court, in the county of New York, on the 26th day of July, 1892, as affirms the order, entered in said clerk’s office on February 29, 1892, which provided as follows :

“Fifth. That the executors of the decedent are not personally liable to the petitioner or State for the amount of the taxes due upon the interest passing to said respondents, or either of them, nor for the costs or disbursements herein.”

B. F. Dos Bassos, for the district attorney, appellant.

JS. B. Fash and H. II Man, for the executors, réspondents.

YaN BruNt, P. J.:

The facts involved in this appeal are the same as those in the case decided herewith, in which the question of the liability of Grace Church and the Metropolitan Museum of Art to the tax has been discussed and disposed of, and, therefore, it is not necessary, in this opinion, to repeat what has already been said therein.

In the decree holding the said institutions liable for the tax the learned surrogate also held that the executors of the decedent were not personally liable for the amount of the tax due upon the legacies to said legatees, nor for the costs and disbursements herein.

The theory upon which the decision is based was, that the executors had acted in good faith, relying upon the decree of the Surrogate’s Court, in paying over the legacies in question without retaining the amount of the tax. But, if the view' which we have arrived at. upon the appeal relative to the liability of these institutions for the tax is correct, then we do not see how the executors can escape the liability imposed by statute. If the surrogate had no jurisdiction in the proceedings to entertain the question which he did of the exemption of these institutions from the inheritance tax, then it is. difficult to see how such decree could be a protection to anybody for anything done in pursuance thereof. If the surrogate had no-jurisdiction, he had no power to make a decree which would be of any effect, whatever. If the question related merely to a matter of regularity in a proceeding, of which the surrogate had jurisdiction, then, perhaps, the conclusion at which he arrived might have been upheld. But where no jurisdiction of the subject-matter, viz., of the question of exemption of these corporations from the tax, has been obtained by the surrogate, his adjudication upon that subject is absolutely null and void. Therefore, as we have held that the surrogate had no jurisdiction in the proceeding to determine this question of exemption, it necessarily follows that the liabilities of the parties remained precisely the same as though no such proceeding had been instituted. We think, therefore, that this portion of the decree with reference to the personal liability of the executors was wrong and should be reversed.

As to the question of costs and disbursements of the proceedings, that was a matter within the discretion of the surrogate, and he had a right to make the adjudication as to them which he did.

The decree, therefore, should be modified in the respect named and affirmed, as modified, without costs.

Barrett and O’BeieN, JJ., concurred.

Decree modified as directed in the opinion and, as modified,, affirmed, without costs.


author: O’brien, J.:

text:
    THE NATIONAL BROADWAY BANK, in the City of New York, Respondent, v. HENRY F. HITCH, Appellant, Impleaded with Others, Defendants.

      Severing an action against joint debtors — effect of a judgment against one of them— a mistake of law or of fact — poioer of the court over its judgments.
    The National Broadway Bank, in June, 1886, brought an action upon a note made by the firm of H. H. Swift & Co., composed of two persons of the name of Swift and of Henry F. Hitch. A demurrer interposed by the Swifts to the complaint was overruled. The action was severed by order, and judgment against the Swifts was entered, on July 21, 1886, on the demurrer.
    On July 26,1886, Hitch answered and set up the judgment against the Swifts, the defendants being joint debtors, as a bar, to which defense the plaintiff demurred. A motion to overrule the answer as frivolous was granted, and judgment was entered against Hitch. The order and judgment having been reversed at General Term the case, as against Hitch, was placed upon the calendar for trial, and while in this condition, and on June 21, 1892, the plaintiff moved to vacate the judgment obtained against the Swifts, which motion was granted and Hitch appealed. >

      Held, that the motion should have been denied.
    That it Was a rule of the common law that a judgment rendered against one of several joint debtors, in an action against him alone, was a bar to an action against the others.
    That section 456 of the Code of Civil Procedure, relative to the severance of an action as to the parties thereto, did not apply to joint debtors, and that the order severing the action obtained by the plaintiff did not alter the common-law rule.
    That, assuming that the plaintiff’s laches in moving to vacate the judgment against the Swifts could be excused, the court could not assist the plaintiff whether his mistake was one of law or one of fact.

      That if the mistake was one of law there was no remedy, while, if it could be regarded as one of fact, not arising upon the trial (Code of Civil Procedure, §§ 1290, 1291), the motion should have been made within two years from the entry of judgment on July 21, 1886.
    That the inherent power of the court over its own judgments could be invoked only in cases where the .relief sought affected only the original parties, and did not affect the vested rights of third persons.
    That the judgment against the Swifts merged the partnership debt and absolutely discharged Hitch, and that the court had no power to resuscitate, as against him, a liability once extinguished.
    Appeal by the defendant, Henry F. Iiitcli, from an order entered in tlie office of tlie clerk of tlie city and county of New York on tlie 24th day of June, 1892, granting to the plaintiff leave to vacate a judgment, entered in this action against the defendants Humphrey H. Swift and Alfred G. Swift on the 21st of July, 1886, in favor of plaintiff for the sum of $5,068.84, upon the plaintiff paying to the defendant, Henry F. Hitch, his costs and disbursements in said action to date, to be taxed, within twenty days from the day of service of the order on the attorneys for the plaintiff, with leave to the said defendant, Henry F. Hitch, to withdraw or amend' his answer herein within twenty days, and in case said costs were not paid within said time, the motion to vacate said judgment was denied, with ten dollars costs.
    The action was brought by the Broadway National Bank to recover upon a promissory note made by the firm of H. H. Swift & Go., composed of two persons of the name of Swift (Humphrey H. Swift and Alfred G. Swift), and of Henry F. Hitch.
    The judgment against the Swifts was entered on July 21, 1886-Thereafter, on July 26,1886, the answer of Hitch, setting up as a bar the judgment against the Swifts, was served. The order granting leave to vacate the judgment against the defendants Swift was granted June 24, 1892.

      Henry A. Forster, for the appellant.

      William F. MeJRae, for the respondent.
   O’brien, J.:

This appeal brings up for review an order granting leave to plaintiff to vacate a judgment in its favor entered against two of the defendants. This action was brought in June, 1886, on a promissory note made by the defendants under their firm name of H. II. Swift Co., which firm was composed of Humphrey II. Swift, Alfred G-. Swift and Henry F. Hitch. The defendants Swift separately appeared and interposed a demurrer to the complaint, which was overruled and the action severed as to them by order of the court, and judgment upon the demurrer entered as against them. Thereafter an answer was served on behalf of Hitch, setting up the judgment thus entered against the Swifts as a bar. The plaintiff moved to overrule this answer as frivolous, which motion was granted, and a separate judgment was entered thereon against Hitch; but an appeal having been taken from the order overruling the answer as frivolous, it resulted in this court reversing the order and judgment against Hitch. Thereafter the cause was placed on the calender for trial, and although once set down for the 17th of June, 1892, it did not come up until after the plaintiff’s application to vacate the judgment as to the other defendants Swift, which was granted, and from such order this appeal is taken.

It will thus be seen that the plaintiff, while correct in its view that the defense of Hitch was not a meritorious one, was in error in assuming that it was bad in law. Throughout the litigation and down to the decision of the Court of Appeals in June, 1892, in the case of Heckemann v. Young (45 N. Y. St. Rep., 846) the plaintiff refused to assent to the doctrine laid down in that case, which held that “ it is the rule of the common law, recognized and enforced by the courts of this State, except as modified by section 1278 of the Code of Civil Procedure, (relating to judgments by confession), that a judgment rendered against one of several joint-debtors in an action against him alone is a bar to an action against the others.”

From 1886 to 1892, a period upwards of five years, the plaintiff knew that the defendant Hitch relied upon this rule of law as a defense; and the excuse presented for not making the motion sooner was principally based upon the error into which the plaintiff seems to have fallen as to the law governing the liability of joint debtors, and the rule that the entry of judgment against any, merged the claim, and would release from obligation the other joint debtors.

In addition, the respondent, undoubtedly, had confidence in the validity of the order obtained by him, severing the action as to the parties hereto, and reliance upon the efficacy of the order so entered, may, for a time, have prevented him from moving. As, however, the section of the Code (456), relating to the severance of parties, has reference to cases where persons are severally, and not jointly, liable, the entry of such order did not prevent, upon the entry of the judgment against two of the joint debtors, the merging ‘of the entire debt and the releasing of the other joint debtor.

Assuming, however, that the laches, in moving, could be excused, the question would still be presented whether the plaintiff could obtain any relief, whether the mistake in entering the judgment was one of law or of fact. That no relief can be afforded upon the first ground, we think is settled by the eases of Jacobs v. Morange (47 N. Y., 57), and Weed v. Weed (94 id., 243, 247). If, however, it could be regarded as an error in fact not arising upon the trial, then, not having been made within two years, the court could not, upon this-ground, have afforded any relief. (Code, §§ 1290, 1291.)

But the respondent insists that the court has full and inherent power over its judgments to amend or vacate them, and is not confined or limited in its action by section 724 of the Code, or the sections 1290, 1291, last referred to.

It is true, as held in the cases referred to by the respondent, that this court has power to open defaults and to vacate judgments, and that such power does not depend upon section 724, but exists independently of that, and inheres in the very constitution of the court. (Vanderbilt v. Schreyer, 81 N. Y., 646; Dinsmore v. Adams, 48 How., 274.)

But while the court has ample power in respect to the correction of omissions or mistakes, and can grant relief to a party “ from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect,” it can only exercise such power where the relief relates to a judgment or order affecting only the original parties in the proceeding, and does not affect, impair or destroy vested rights of third persons. The difficulty that is presented, and which rendered the court, lipón the motion, powerless to grant relief against the technical and harsh rule of the common law,” resulted from the fact that, by the vacating of this judgment, a new liability was created against the defendant Hitch. That this is so becomes apparent when we consider the situation of the parties at the time the motion to vacate the judgment was made. It being now conceded that the liability of Hitch for the partnership debt was wholly extinguished by the entry of judgment against his partners, the only purpose sought to be served by vacating such judgment is to create a new liability on his part to the plaintiff, or, what is the same thing, resuscitate the extinguished liability by vacating the judgment against his partners. This, we think, the court was powerless to do.

We have been referred to no authority changing the rule at common law, “that a right of action once extinguished, as by merger, though for never so short a time, is gone forever and cannot again revive.” (Sinclair v. Hollister, 41 N. Y. St. Rep., 350; People ex rel. Roberts v. Bowe, 81 N. Y., 45; 2 Blackstone’s Com., 177; 3 Stevens’ Com., 316.) On the other hand, while no precedent for the precise question here presented is afforded by the decisions of .•our own State, we are referred by the appellant to some English cases which uphold this rule of the common law relating to the revival of a cause of action once extinguished, and go to the extent of holding that a court has no power to create a new liability by vacating a judgment which merged the debt and discharged the person sought to be held liable thereon. (Hammond v. Schofield, L. R., Q. B. Div., vol. 1, 1891, p. 453; Odell v. Cormack Brothers, L. R., 19 id., 223; The Bellcairn, L. R., 10 Pro. Div., 161.)

We think, therefore, apart from the question of plaintiff’s laches in moving, that the principle contended for by appellant is correct, that inasmuch as the judgment against his copartners merged the partnership debt and discharged the defendant Hitch from liability thereon, the court could not create a new liability against Hitch by vacating it.

We should have been pleased to have found support for the position of the learned judge below in seeking to relieve the plaintiff from the harshness of the rule at common law, but, as the relief sought to be obtained was beyond his power to grant, our conclusion is that the order appealed from must be reversed, with costs and disbursements, and the motion to vacate denied.

Yan Brunt, P. J., and Barrett, J\, concurred.

Order reversed, with costs and disbursements, and the motion to vacate denied.


author: O’Brien, J.:

text:
    JIRAH I. FOOTE and Another, as Executors and Trustees of HORATIO N. OTIS, and as Testamentary Guardians of LUCY F. OTIS (now BRUGGERHOF) and Others, Plaintiffs, v. LUCY F. BRUGGERHOF and Others, Defendants.

      Executors, trustees and guardians — accounting by — jurisdiction of the Supreme Court — when the power of alienation is not suspended — several shares held, in solido — commissions — accounting separately as to each share impossible.

    Horatio ÍT. Otis, by his will, proved in 1881, directed that his estate should be divided into parts, one for each child who survived him, and the issue of any deceased child to have one share, and directed his executors to pay over the shares when the legatees reached majority. By a codicil to his will he gave his executors power to postpone, for any period not illegal, the payment to any legatee of the principal of his share after he had reached majority, provided the executors deemed such postponement best for the legatee, and that, in the meantime, the executors should keep the postponed share invested and pay the legatee the income. He appointed his executors guardians of liis minor children.
    In 1883 the executors accounted as such, and the surrogate directed the balance on hand to be divided into five shares, the proper number, and that the executors pay over, return and invest them; and further directed the executors to file the vouchers therefor from themselves, as testamentary guardians, “when they, the said executors, shall be and hereby are discharged as such executors until the further order of this court.” Two of his children, Bradford and Margaret B., were of age when the testator died.
    In an action brought by the executors and trustees and guardians to account iu their various capacities:

      Held, that as a construction of the codicil was asked, and as the executors sought
    . to account in various capacities for a fund which had been held in solido, this, action in the Supreme Court could be maintained.
    That the provisions of the codicil did not suspend the power of alienation during the lifetime of the survivor of the three minors.
    That its effect was to suspend that power as to each individual share only during the life of its beneficiary.
    It appeared that, after the decree of 1888, the executors never actually divided the fund into five shares, nor did they divide the income; that they had made some payments to some of the beneficiaries; that the children of Otis had lived together as one household, and the income had been devoted in a general manner to its support.

      Held, that the plaintiffs were entitled to commissions, as executors, upon all sums not embraced in the decree of 1883.
    That as to the principal of the shares of the infants, now adults, since the plaintiffs had not determined to pay over the principal to the legatees, they were only entitled to commissions, as trustees, for holding the fund during infancy, and were not yet entitled to commissions for paying it over.
    That, assuming that the jilaintiffs as to the infants held these several funds as testamentary guardians, they were not entitled, in addition to the commissions last mentioned, to commissions on principal expended for the benefit of the infants during minority.
    That the effect of such an allowance would be to give them commmissions in the two capacities of testamentary guardians and also of trustees.
    That, upon the income of the infants’ shares paid over, the plaintiffs were entitled to statutory commissions.
    That the fact that the plaintiffs did not actually separate the fund into five parts, did not affect the question of commissions.
    That, in the view of the law, the fund had been legally divided, each legatee receiving his income, and that it had been kept together, in fact, for mutual benefit and without objection.
    That as to the Shares of the adults, Bradford and Margaret B. Otis, the plaintiffs, never having paid over to them the principal, were now entitled only to commissions for holding the funds.
    That they were entitled to statutory commissions on income paid over to the adults.
    At Special Term the court required the plaintiffs to account for each share as a separate fund.

      Held, that this direction should be changed.
    That, inasmuch as there never had been an actual division of the fund into five parts, this direction of the court involved a physical impossibility, and that without such a provision the separate interest of each legatee could be ascertained upon an accounting and the rights of each be preserved.
    Appeals by the plaintiffs, Jirah I. Foote and Mary E. Bradford, as executors and trustees of Horatio N. Otis, and as testamentary guardians of Lucy F. Otis (now Lucy F. Bruggerhof), and of Bessie M. Otis (now Bessie M. Covell) and of Bay F. Otis, from so much of a judgment, entered in the office of the clerk of the city and county of New York on the 30th day of June, 1892, as decreed that in and by the codicil to his last will and testament, Horatio N. Otis attempted to create an express trust and to appoint the plaintiffs trustees thereof, and also from so much and such parts of said judgment as adjudged that the trust so attempted to be created was not authorized by the laws of this State, but was and is contrary thereto, and that the said trust so attempted to be created was void in its creation; and from so much and such parts of said judgment as adjudged that it was the duty of the plaintiffs, under the will of Horatio M. Otis and under the decree of tlie surrogate of Westchester county, dated 19th day of March, 1883, to have separated the assets of the estate of Horatio N. Otis, found by said decree to be remaining in tlieir hands on said date, into the several funds specified in said decree as the amounts to which Bradford Otis and the defendants Margaret B. Scrugham, Lucy F. Bruggerliof, Bessie M. Ooveli and Bay F. Otis were entitled under said will, and that thereafter it was the duty of the' plaintiffs to have kept each of said funds separate and unmingled with any other until each was paid over to the person entitledto.it; and from so much and such parts, of said judgment as adjudged that the plaintiffs had no discretionary power.under which they could either make such separation or refrain from making it; and from so much and such parts of said judgment as adjudged that the plaintiffs have always held the portion of the estate of Horatio N. Otis, to which Bradford Otis was found entitled by the decree of the surrogate of Westchester county, dated the 19th day of March, 1883, as executors of the last will and testament of said Horatio N. Otis; and from such parts and so much of said judgment as orders, adjudges and decrees that the plaintiffs still hold as such executors any portion of the said 'share of Bradford Otis now remaining in their hands; and from such parts and so much of said judgment as adjudged that the plaintiffs’ account as said executors to the defendant Lucy F. Bruggerhof, as administratrix of said Bradford Otis, for the said share to which Bradford Otis was so found to be entitled, together with the income and increase thereof from the 19th day of March, 1883, to the date of the referee’s report; and from such parts and so much of said judgment as adjudged that the plaintiffs should account for the sum of $30,127.52, to which Bradford Otis was found to be entitled on March 19, 18S3, by the surrogate’s decree of that date, together with all income and increase thereof as a separate and distinct fund, without reference to any other funds which may have been in their hands during the same period, belonging to any other of the defendants in this action, or in which any other of said defendants had any interest; and from such parts and so much of said judgment as adjudged that the plaintiffs have always held the portion of the estate of Horatio N. Otis to which Margaret B. Otis, now Scrugham, was found entitled by tbe decree of tlie surrogate of 'Westchester county, dated 19th of March, 1883, as executors of the last will and testament of Horatio N. Otis; and from such parts and so much of said judgment as adjudged that the plaintiffs still hold, as such executors, any portion of the said share of Margaret B. Scrugham, now remaining in their hands; and from such parts and so much of said judgment as adjudged that the plaintiffs’ account, as such executors, to the defendant Margaret B. Scrugham, for the said share to which she was so found to be entitled, together with all income and interest thereof from the 19th day of March, 1883, to the d%te of the referee’s report; and from such parts and so much of said judgment as adjudged that the plaintiffs should account to the defendant Margaret B. Scrugham for the sum of $41,435.13, to which she was found to be entitled by the surrogate’s decree of 1883, together with all income and increase thereof as a separate and distinct fund, without reference to any other funds which may have been in their hands during the same period, belonging to any other of the defendants in this action, or in which any other of the defendants had an interest; and from such parts and so much of said judgment as adjudged that the plaintiffs should pay over to the defendant Margaret B. Scrugham any balance found remaining in their hands on such accounting; and from such parts and so much of said judgment as adjudged that the plaintiff should account to the defendant Lucy E. Bruggerhof for the sum of $41,202.Y0, to which she was found to be entitled by the surrogate’s decree of 1883, together with its income and increase as a separate and distinct fund, without reference to any other funds which may have come into their hands during the same period, belonging to any ■other of the defendants in this action, or in which any other, of the- said defendants had any interest; and from such parts and so much of said judgment as adjudged that on October 24, 1883, when said Lucy E. Otis, now Bruggerhof, became of age, she was entitled to payment by the plaintiffs of any sum then remaining in their hands as her said guardians; and from such parts and so much of said judgment as adjudged that the plaintiffs should pay over to said Lucy E. Bruggerhof any sum found on their accounting, as her testamentary guardians, to be remaining in their hands; and from such parts and so much, of said judgment as adjudged that the plaintiffs’ account to said Lucy F. Bruggerhof, from October 24, 1883, when sho became of age, to the date of the referee’s report, for any sum found on plaintiffs’ aforesaid accounting, as her testamentary guardians, to be remaining in their hands, together with its income and increase as a separate and distinct fund, without reference to any other funds which may have been in their hands during the same period, belonging to any other of the defendants in this action, or in which any other of said defendants had4 any interest; and from such parts and so much of said judgment as adjudged that the plaintiffs should pay over to said Lucy F. Bruggerhof any sum found on their last-mentioned accounting to be still remaining in their hands; and from such parts and so much of said judgment as adjudged that the plaintiffs should account to the defendant Bessie M. Coveil for the sum of $41,276.55, her share on such accounting of 1883, together with its income or increase as a separate and distinct fund, without reference to any other funds which may have come into their hands during the same period, belonging to any other of the defendants in this action, or in which any other of the said defendants had any interest; and from such parts and so much of said judgment as adjudged that, on October 10, 1885, when said Bessie M. Otis, now Coveil, became of age, she was entitled to payment by the plaintiffs of any sum then remaining in their hands as her said guardians; and from such parts and so much of said judgment as adjudged that the plaintiffs should pay over to said Bessie JVC. Coveil, any sum found on their said accounting as her testamentary guardians to be remaining in their hands; and from such parts and so much of said judgment as adjudged that the plaintiffs account to said Bessie M. Oovell, from October 10, 1885, when she became of age, to the date of the referee’s report, for any sum found on plaintiffs’ aforpsaid accounting as her testamentary guardians to be remaining in their hands, together with its income and increase as a separate and distinct fund, without reference to any other funds which may have been in their hands during the same period belonging to any other of the defendants in this action, or in •which any other of said defendants had any interest; and from such parts and so much of said judgment as adjudged that the plaintiffs should pay over to Bessie M. Coveil any sum found on their last-mentioned accounting to be still remaining in their hands j and from such parts and so much of said judgment as adjudged that the plaintiffs should account to the defendant Ray F. Otis for the sum of $42,263.77, his share on such accounting in 1883, together with its income and increase as a separate and distinct fund, without reference to any other fund which may have come into their hands during the said period, belonging to any other of the defendants in this action, or in which any other of the said defendants had any interest; and from such parts and so much of said judgment as adjudged that the plaintiffs should pay over to the defendants, or such of them as should be entitled thereto, the sum found on their accounting therein referred to. to be still remaining in their hands of said judgment.
    Also an appeal by the infant defendant Ray F. Otis, by Robert P. Getty, Jr., his guardian ad litem from so much and such parts of the said judgment as follows:
    ' From that part thereof which adjudged that by the terms of the said last will and testament the plaintiffs were made and constituted testamentary trustees of the said estate, or so much thereof as remained when its ordinary administration by them, as executor and executrix, was completed and closed; and also from that part thereof which adjudged that the executorial duties of the plaintiffs, with-respect to so much, of the estate of Horatio N. Otis, deceased, as was embraced in the said accounting proceedings, and by the decree therein entered in the Surrogate’s Court of Westchester county, on the 19th day of March, 1883, found ’ remaining in their hands, ceased and were determined upon the entry of said decree ; and also from that part thereof which adjudged that the plaintiffs were entitled to maintain this action to prevent a multiplicity of proceedings in the' Surrogate’s Court, and in order that their administration of the said fund found in their hands, by the decree of 1883, might be passed upon and judicially settled by a tribunal having full power to bring before it and bind by its decree every person having an interest in the questions that .might arise on the accounting by these plaintiffs in any of their several capacities; and also from that part thereof which adjudged that the plaintiffs were entitled to maintain this action, and that this court would entertain the same, so far as it was for an accounting by themselves as testamentary guardians of Lucy F. Otis, now Lucy F. Bruggerhof, Bessie M. Otis, now Bessie FI. Coveil, and Bay F. Otis, and that all of the other defendants were necessary parties to this action, so far as the same sought that relief; and also from that part thereof which adjudged that the plaintiffs were entitled to maintain this action, and that this court would entertain the same, so far as it was for an accounting by themselves as testamentary trustees, under the will of Horatio N. Otis, deceased, and that all of the defendants in this action were necessary parties to this action, so far as the same sought that relief; and also from that part thereof which adjudged that this court, in exercising jurisdiction over the action, so far as the same related to the plaintiffs’ administration of the fund found in their hands by the surrogate’s decree of the 19th day of March, 1883, would also pass upon the plaintiffs’ administration of the property or assets of the estate of Horatio N. Otis, which have come into their hands after the said accounting proceedings of 1883; and also from that part thereof which adjudged that the plaintiffs were entitled to and should account herein as testamentary trustees under the will and testament of Horatio N. Otis, deceased; and also from that part thereof which •adjudged that the plaintiffs were entitled to commissions as executors upon the. assets and property which might have come into their hands since the said accounting proceedings of 1883, not therein accounted for; and also from that part thereof which adjudged that the plaintiffs were entitled to commissions as testamentary guardians of Bay F. Otis, upon the share of said person in the fund found in their hands by the decree of 1883; and also from the part thereof which adjudged that the plaintiffs were entitled to full commissions as testamentary guardians, to be computed for each year and allowed upon the annual income paid out or disbursed by them, of the share of Bay F. Otis, since the decree of 1883; and also from so much of that part thereof which adjudged that the plaintiffs were testamentary trustees, or should account as such, or which adjudges that they were entitled to commissions in any capacity whatever.
    Also an appeal by the defendants Lucy F. Bruggerhof, individually, and Bessie M. Coveil, jointly and severally, from so much and such parts of the said judgment, to wit: From so much and such parts of said judgment as adjudged that, by the terms of the last will and testament of Horatio N. Otis, the plaintiffs were made and constituted testamentary trustees of his estate, or of so much thereof as remained when its ordinary administration by the plaintiffs, as executor and executrix, was completed and closed; and from so much and such parts of said judgment as adjudged that the plaintiffs were entitled to maintain this action to prevent a multiplicity of proceedings in the Surrogate’s Court, and in order that their administration of the said fund, found in their hands by the surrogate’s decree of 1883, might be passed upon and judicially settled by a tribunal having full power to bring before it and bind by its decree every person having any interest in the questions that might arise on the accounting by these plaintiffs in any of their several capacities; and also from so much and such parts of said judgment as adjudged that the plaintiffs were entitled to maintain this action, and this court would entertain the same, so far as it was for an. accounting by themselves as testamentary guardians of Lucy F. Otis, now Lucy F. Bruggerhof, Bessie 1VI. Otis, now Bessie M. Covell, and Ray F. Otis; and that all of the other defendants were necessary parties to this action, so far as the same sought their relief; and also from so much and such parts of said judgment as adjudged that the plaintiffs were entitled to maintain this action, and this court would entertain the same, so far as it was for an accounting by themselves as testamentary trustees under the will of'Horatio N. Otis, deceased; and that all of the defendants in this action were' necessary parties to this action, so far as the same sought that relief; and also from so much and such parts of said judgment as adjudged that this court, in exercising jurisdiction over the action, so far as the same related to the plaintiffs’ administration of the fund found in their hands by the surrogate’s decree of the 19th day of March, 1883, would also pass upon plaintiffs’ administration of the projaerty or assets of the estate of Horatio N. Otis, which had come into their hands after the said accounting proceedings of 1883 ; and also from so much and such parts of said judgment as adjudged that the plaintiffs were entitled to and should account herein as executors of the last will and testament of Horatio N. Otis, deceased ; and also from so much and such parts of said judgment as adjudged that tlie plaintiffs were entitled to and should account-herein as testamentary trustees under the last will and testament of Horatio N. Otis, deceased, and also from so much and such parts of said judgment as adjudged that the plaintiffs were entitled to and should account herein as testamentary guardians of Lucy F. Otis, now Lucy F. Bruggerhof, of Bessie M. Otis, now Bessie M. Coveil, and of Ray F. Otis, under the last will and testament of Horatio N. Otis; and also from so much and such parts of said judgment as adjudged that the plaintiffs held and retained the share of Lucy F. Otis, now Bruggerhof, in the fund found in their hands by the decree of 1883, after she attained her majority, in the caj>acity of testamentary trustees of the same for her, and now held what remained of that share in the capacity of testamentary trustees as aforesaid; and also from so much and such parts of said judgment as adjudged that the jilaintiffs held and retained the share of Bessie M. Otis, now Coveil, in the fund found in their hands by the decree of 1883, after she attained her majority, in the capacity of testamentary trustees of the same for her, and now held what remained of that share in the capacity of the testamentary trustees as aforesaid; and also from so much and such parts of said judgment as adjudged that the plaintiffs were entitled to commissions, as executors, upon the assets and property that might have come into their hands since the said accounting proceedings of 1883 not therein accounted for; and also from so much and such parts of said judgment as adjudged that the plaintiffs were entitled to commissions, as testamentary guardians of Lucy F. Bruggerhof and Bessie M. Coveil, upon the shares of said persons in the fund found in the hands of the plaintiffs by the said decree of 1883 ; and also from so much and such parts of said judgment as adjudged that the plaintiffs were entitled to full commissions, to be computed for each year, and allowedupon the annual income paid out by them of the shares of Lucy F. Bruggerhof and Bessie M. Coveil, since the said decree of 1883, and during the respective minorities of said persons; and also from so much and such parts of said judgment as adjudged that the plaintiffs were also entitled to commissions, as testamentary trustees, upon the shares of Lucy F. Bruggerhof and Bessie M. Covell, paid out or delivered by them since the said persons, respectively, attained their majorities; and also from so much and such parts of said judgment as adjudged that the plaintiffs were entitled to full commissions, as testamentary-trustees, to be computed for each year, and allowed upon the annual income paid out by them of the shares of Lucy E. Bruggerhof and Bessie M. Coveil, since the said persons, respectively, attained their majorities; and also from so much and such parts of said judgment as adjudged that it be referred to Louis H. Hablo to take and state the accounts of the plaintiffs as testamentary trustees; and also from so much and such parts of said judgment as adjudged that the plaintiffs file with the said referee their accounts as testamentary trustees; and also from so much and such parts of said judgment as adjudged that the plaintiffs, in their accounts, should credit themselves with everything expended or paid out by them as executors, testamentary trustees or testamentary guardians, so far as such direction allowed improper or illegal credits, as contrary to the directions of the last will and testament of Horatio N. Otis, and contrary to law.
    Also an appeal by the defendants Lucy E. Bruggerhof, individually, Bessie M. Coveil and Ray E. Otis, jointly and severally, from an order entered in said clerk’s office October 18, 1892, denying defendants’ motion to resettle and amend the interlocutory judgment herein, dated June 80, 1892.
    The action was tried by the court at the New York Special Term. It was brought by Jirah I. Eoote and Mary E. Bradford, as executors and trustees of Horatio N. Otis and as testamentary guardians of his three minor children, to account in their several capacities. The will of Horatio N. Otis was proved in 1881. At the time of his death his children Bradford and Margaret B. Otis were of age.

      Maclay <& Forest, for the plaintiffs, appellants.

      John Henry Mann, for Lucy E. Bruggerhof, individually and as administratrix, Margaret B. Scrugham and Bessie M. Coveil, defendants.

      Robert P. Getty, Jr., for Ray E. Otis, defendant.
   O’Brien, J.:

This action was brought by the plaintiffs for an accounting in respect to the estate of Horatio N. Otis, deceased. The defendants are the four children of the deceased and the administratrix of a deceased child. Horatio N. Otis died Flay 7, 1881, leaving a will, which was thereafter proved before the surrogate. In addition to their letters testamentary, the plaintiffs also received letters of testamentary guardianship of the persons and estates of the defendants, Lucy F., Bessie FI. and Ray F. Otis, who were under age when the testator died.

By his will the testator disposed of his estate as follows:

“ Third. I direct that all my estate that shall remain at the time of my decease shall be divided into as many equal shares as I may leave children surviving me, provided that the issue living at the time of my decease of any deceased child of mine shall take a share such as the parent of such issue would 'have taken if living, and I give, devise and bequeath to each of my children, that shall survive me, one of such shares, and one share to such issue of each deceased child. * * *

Fourth. The portions above provided shall be paid over by^my executor and executrix to the several legatees, upon their attaining the age of twenty-one years, and not before, provided that my executor and executrix shall have the time allowed by law for the settlement of my estate, and except as hereinafter provided.” Subsequently, by a codicil to said will, it was provided:

“ Second. I direct my executor and executrix named in my said will, and I hereby declare my said executor and executrix shall have a discretionary power to postpone for any period, not illegal under the laws of this State, the payment to any legatee or devisee of the principal of the share, or any portion thereof, to which such one may be entitled under my said will, after such one becomes twenty-one years of age, if, in the judgment of either said executor or executrix, such postponement shall be deemed best for such legatee or devisee, but said executor and executrix shall keep such share or part thereof remaining in their hands invested, and such legatee or devisee shall be entitled to receive the income annually from the same.”

In 1883 plaintiffs accounted as executors before the surrogate, and thereafter a decree was made judicially settling their accounts,, by which it was found that there was an actual balance in the executors’ hands^ of the sum of $196,305.68, in cash and securities, and decreeing the distribution thereof in the following language: “ Said amount is hereby divided into five equal shares of $44,387.29 each.”’ Then follow provisions ordering, with respect to the share of each, of the persons, that the said executors pay over, retain and invest the said shares, and concluding with the following paragraph: “ It is, finally ordered, adjudged and decreed that said executors file in this-court vouchers for all payments to be made by them under this-decree; especially the vouchers from themselves, as such aforesaid testamentary guardians, when they, the said executors, shall be and hereby are discharged as such executors until the further order of this court.”

Since the decree the plaintiffs have never actually separated or divided the fund into the shares to which the five children were, entitled, excepting so far as payments of portions of said shares to> such persons have effected a separation. Neither has there been a-separation or division of the income received from the estate after the accounting proceedings of 1883, but it would appear that the same were used in the expenses of running the household, the members of which household were all the testator’s children, for parts of the time, and also the expenses of educating the children, and for traveling and other similar expenses. It is conceded that the plaintiffs still hold, in its undivided state, portions, if not all, of the shares found by the decree of 1883.

Although many questions are suggested, four principal ones only-need be considered: (1) Can the action be maintained? (2) Did the testator, by the codicil, suspend the power of alienation for a period longer than two lives in being? (3) What compensation should the plaintiffs receive ? And (4), as incidental thereto, what effect would the retention of the fund, without actual division, have upon such right ?

In Blake v. Barnes (26 Abb. N. C., 208), which, upon this point, was affirmed by the General Term • of this court, it was held that a court of equity will not assume jurisdiction of an action for an accounting by executors, disconnected from the enforcement of a trust, unless special reasons are assigned and facts stated to show that complete justice cannot be done in the Surrogate’s Court; and it is not enough to allege the special facts, but they must be true, and must be established by competent testimony; and that, if any such special fact is established, then the court will assume jurisdiction of the estate, and in the general accounting will not limit relief to the single fact which appropriately brought the case within its jurisdiction.”

We think, in this case, that such special facts are made to appeal’ in that, among other things, the fund which has been held intact by the plaintiffs is to be accounted for by them in different capacities, and that upon such accounting a construction of the provisions of the codicil is necessary.

In regard to this last question, the learned judge at Special Term was of opinion that the provisions of the codicil were void for the reason that therein the testator suspended the power of alienation during the lifetime of the survivor of three persons. This, we think? was error, as a brief consideration of the provisions of the codicil, taken in connection with the provisions relating to the division of the fund, will show.

The testator, in effect, provided for a distribution of his estate into five equal shares, one share to go to each of his children living at his death, and to the issue of any deceased child, the same to be paid over upon such child attaining the age of twenty-one years. By the codicil, a discretionary power was conferred upon his executor and executrix “to postpone, for any period not illegal under the laws of this State, the payment, to any legatee or devisee, of the principal of the share, or any portion thereof, to which such one may be entitled, under my said will, after such one becomes twenty-one years of age; ” such share to be kept invested, and the legatee or devisee to receive the income annually upon the same.

This did not suspend the power of alienation, as assumed by the learned trial judge, during the lifetime of the survivor of three per sons, but made it dependent upon the life of one, namely, the beneficiary alone. Because it is evident that, while the executors were not obliged to pay over the principal of any one of the shares upon the child to whom such share belonged arriving at age, still, there was no possibility of its being suspended beyond such life. It is true, that, during the life of' the beneficiary, the executor or the survivor could exercise such discretion by withholding, after the child attained its majority, the principal and keep it invested, pay. ing over the income annually. But it was not intended to hold, and the idea is expressly excluded of holding, the fund beyond the life of such beneficiary. As, therefore, there was but one life in being during which the power of alienation was suspended, even assuming the executors to have exercised their discretion by withholding the fund during the life and until the death of such beneficiary, the provision was valid and lawful and, in accordance with the intention of the testator, should be made operative. The most difficult question relates to the compensation to be awarded the plaintiffs.

It appears that as to the portion of the estate to which the minors were entitled, the decree of the surrogate in 1883 provided that the plaintiffs should hold it as testamentary guardians. And with reference to the shares belonging to the adults, the question is presented whether the plaintiffs took the same, and continued to hold it, as executors or testamentary trustees.

"With respect to the fund not embraced in the decree of the surrogate of March, 1883, we think the trial judge was right in holding that the plaintiffs are entitled to commissions as executor and executrix upon such fund

He also held that they were entitled “ to commissions as trustees on the share of each child until the child reached the age of twenty-one, and to commissions as guardians on the moneys expended for the benefit of each child during its minority.” If, in awarding commissions upon the share of each child, the learned judge intended to include all the commissions to which they were entitled, not alone for holding and investing, but also for paying over to each of the minors, then we think the conclusion reached by him was correct; because, as trustees, they would be entitled to one-half commissions for holding and one-half upon paying over the trust funds. Inasmuch, however, as the executors are vested with discretionary power, and they have not determined upon its exercise in favor of the former minors, who have now all reached majority, we do not think that they should receive, until they have exercised their discretion, more than half commissions; the payment of the other half being reserved until such time as the share is actually delivered to the beneficiary.

To allow them, however, in addition, commissions as guardians on the moneys expended for the benefit of each child during his minority, we do not think warranted, for the reason that, if we assumed that since the decree of the surrogate in 1883 the plaintiffs have held the fund which belonged to each minor as testamentary guardians, and not as trustees, they could only claim commissions in one capacity, and not in both, for the performance of exactly the same service by the same persons. While, therefore, there might be a question in what capacity commissions should be allowed, we think it reasonably free from doubt that they should not be allowed in both capacities, upon the same fund, held by the same persons, over the same period.

In this view, as to the right of compensation to be paid the plaintiffs, we are discussing their right to commissions upon the fund, as distinguished from the income. With respect to the income, they are entitled, of course, to commissions, upon paying over the same, at the statutory rate.

As to the failure of the plaintiffs to make an actual division or separation into different funds, and their failure to so hold the same separate and distinct, we do not think, in view of the authorities, that this is a controlling consideration upon the question of compensation. As was said in Blake v. Blake (30 Hun, 4:71), “ The actual division of the estate into five parts is not necessary to initiate the trust. It was for the mutual benefit of all that the estate was kept together, and no one objected at the settlement that there was no actual division. Legally it is divided. The shares are separate, and each gets his proper income therefrom.” (See, also, Laytin v. Davidson, 95 N. Y., 263.)

These views, as to the compensation to be awarded plaintiffs upon the shares of the minors, should also control as to their right to half commissions as testamentary trustees'upon the shares of Bradford and Margaret, who were adults, and whose shares, under the discretion vested in the plaintiffs, were retained and invested, and to their right to the other half, upon their paying over, at any time, the principal of the fund.

It will thus be seen that we think the learned trial judge erred in not allowing commissions to the extent of one-half upon the shares held by plaintiffs for Bradford and Margaret, and in disallowing commissions upon the annual income of each share held by them in trust, at the statutory rate.

Should it, upon the accounting, be shown that the plaintiffs, as executors or trustees, were guilty of any waste or of any wrongdoing, this would affect the question of their right to commissions. And we tbink that the question as to what commissions should be paid might well have been left until the termination of the account, when, with all the facts before it, the court could fix their compensation. The trial court, however, having gone into the question, we have deemed it proper to state what we regard as the general rules relating to compensation of executors and trustees.

Another conclusion reached by the learned trial judge, we think, should also be modified, namely, that requiring that the plaintiffs should account for each share as a separate and distinct fund, without reference to any other fund; because, upon the trial, it appeared, and he so found, that there never was an actual division into shares by the plaintiffs, but' that they held the entire fund together. Thus it would be a physical impossibility for them to present accounts having reference to each share as though there had been a separation and each share had been separatley administered upon by them. This fact, however, that there was not an actural separation into separate and distinct funds, should not prevent each of the beneficiaries receiving, in the accounting to be had, a statement of the disposition made of the property belonging to each of them. In other words, where executors, without objection, and for the mutual benefit of all interested in the estate, retain the entire fund and invest the same generally, without reference to each separate beneficiary, each would be entitled to his proportionate share as his interest might appear in the income realized from the investment of the entire fund. This, upon an accounting, they would be entitled to receive, less such amounts as it can be shown by the executors have been paid to them or for their account, and for which such executors are justly entitled to a credit.

In accordance with these views, we think the interlocutory judgment should be modified, with costs to the executors to be paid out of the estate.

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

Interlocutory judgment modified as directed in opinion, and as modified affirmed, with costs to the executors to be paid out of the estate.