author: Daniels, JT.:

text:
    JOSEPH PALLADINO, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Municipal work — contract for the grading of a street — removal of the soil by a third party, between the time of the making and of the execution of the contract — the city not liable therefor.

    In an action brought to recover for work done in the grading and paving of a public street, under a contract entered into between the plaintiff and a municipal corporation, it appeared that the work was done pursuant tó a contract for which sealed bids were received, made in response to proposals therefor; that when the proposals were published, the earth included within the line of the proposed street had not been disturbed or removed, and was sufficient to bring it up to the required grade; but thereafter, and in the same year, a large part of the earth, which was capable of being used to fill the lower portion of the proposed street up to the prescribed grade, had been taken and carried away, and it was for the expense of furnishing the amount of earth used for this filling that the claim was made by the plaintiff. It did not appear that the earth had been removed by any person acting in the employment of the city, the defendant in the action, or under its authority, or even with its knowledge.

      Held/ih&i, under these circumstances, no right of compensation, because of the removal of the earth within the lines of the proposed street, existed as against the defendant.
    The specifications for the work provided that that “ portion of the street which is above the grade lines is to be excavated, and such and so much of the material excavated as may be fit for the purpose, and as may be necessary, shall be filled in those parts of the street which are below the grade lines in the manner here, inafter provided, * * if the amount of material excavated that is fit for filling shall not be sufficient to regulate the street, the contractor shall furnish and supply material of proper kind and quality sufficient for the purpse; but only the difference between the total quantity of filling to finished grade and line as shown in cross-section, and the total quantity of excavation to the finished grade and line as shown in cross-section, with slopes in each case, as herein described, will be considered as filling to be furnished, and as such to be paid for.”
    The contract contained no provision for payment for filling, but did contain provisions to the effect that the contracter, at his own cost, should provide materials and labor and complete the entire work to the satisfaction of the commissioner of public works, and that he would not ask, demand or sue for any extra compensation beyond the- amount payable for the several classes of work in the contract enumerated.
    Held, that as the filling up of the avenue, although no compensation was fixed therefor in the several classes of work referred to in the contract, was necessary for the completion of the work, that the contractor was not entitled to recover extra compensation therefor.
    That the plaintiff could not recover because of any direction, given to him by any officer of the corporation, to obtain and use the filling in question, as no officer had power to bind the defendant by giving such direction.
    Appeal by the defendant, the Mayor, Aldermen and Commonalty of the City of New York, from a judgment, entered in the office of the clerk of the county of New York on the 19th day of November, 1889, after a trial at the New York Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for the sum of $5,102.0L.

      John J. Townsend, for the appellant.

      L. Lcofim Kellogg, for the respondent.
   Daniels, JT.:

The action was brought to recover the amount claimed to be unpaid for regulating and grading Fort George avenue, from Tenth to Eleventh avenues, and setting curb-stones and flagging sidewalks therein. The work was let by a contract, executed by the commissioner of public works and J ames TL Sullivan, on or about the 11th of August, 1886. And after it had been in part performed the contract was assigned to the plaintiff, who completed the work. His claim consisted of two items. The first was for money retained by the city from the contract-price, amounting to the sum of $432.02. And the other was for the value or cost of material used for filling on the avenue to bring it up to the grade adopted for the improvement. It was claimed on behalf of the defendant that it was entitled still to retain the balance remaining unpaid upon the contract-price of the work, because of proceedings taken to establish a lien against the contractor by other persons. But the evidence tended so directly to prove that this lien had been satisfied as to leave no substantial reason for doubting the right of the plaintiff to recover the amount of this balance. And, accordingly, the verdict of the jury in his favor for that sum, together with the interest upon it, should not be unnecessarily disturbed.

But the claim made by the plaintiff for filling furnished by him to raise the street to the grade prescribed stands upon different grounds. Eor, by the terms of the proposals for the contract, no material of this description was included or required to be furnished. But the entire work, as proposals were invited for it, consisted of earth and rock to be excavated, curb-stones to be furnished and set, and flagging stones to be furnished and laid. The amount of this work and materials were included in the published proposals. But no material for filling was mentioned nor required to be estimated which should be obtained or supplied by the person whose proposals should be accepted for the performance of the work.

The work was ordered by a resolution adopted by the aldermen on the eleventh, and approved by the mayor on the eighteenth of May, 1885. And this work was directed to be done under the direction of the commissioner of public works. And sealed estimates for this work were invited by a notice published in the early part of July, 1886, as the charter required that to be done. When the resolution was approved by the mayor, the earth included within the line of the avenue to be regulated and graded had not been disturbed or removed. But after that, and in the year 1885, a large part of the earth in the avenue which was capable of being used to till the lower portions of it up to the prescribed grade had been taken and carried away. This was alleged to have been done through the act, default and neglect of the defendant, its officers and agents. And the plaintiff, as the assignee of the contract afterwards entered into for the grading and improvement of the avenue, insisted that the city was responsible to him for the removal of this earth. But it appeared by the evidence that it was not so removed by any person acting in its employment or under its authority, or even with its knowledge. But the persons who removed it were trespassers, having no light whatever to take it, and were themselves alone liable for the wrong in this manner committed. Upon these facts, therefore, no right of compensation for the earth removed within the lines of the avenue existed against the defendant.

It was further insisted, on behalf of the plaintiff, that he was entitled under the contract to recover the value of the earth obtamed by himself from other localities and used in filling the avenue up to its requisite grade. This claim proceeded upon the ground that it was mentioned in the specifications, which were inserted in the contract, that the “ portion of the street which is above the grade lines is to be excavated and such and so much of the material excavated as may be fit for the purpose, and as may be necessary, shall be filled in those parts of the street which are below the grade lines in the manner hereinafter provided; the material excavated not so used for filling shall be removed from the street; if the amount of material excavated that is fit for filling shall not be sufficient to regulate the street, the contractor shall furnish and supply material of proper kind and quality sufficient for the purpose, but only the difference between the total quantity of filling to finished grade and line as shown in cross section, and the total quantity of excavation to the finished grade and lines as shown in cross section, with slopes in each case as herein described, will be considered as filling to be furnished and as such to be paid for.”

And the contract itself declared that, for any work, the price of which is not specified in this contract, the provisions herein contained in relation to work not provided for in this contract shall apply.” But no other provision appears to have been inserted in the contract relating to this subject, beyond that which was made a part of the specification. And while the difference in the quantity of filling, exceeding that supplied by the earth taken from the avenue itself, is stated to be considered as filling to be furnished, and as such to be paid for, there is yet ho provision in the contract binding the defendant to make such payment, but, on the contrary, it was agreed by the contractor that he would receive in full for his compensation for furnishing all the materials and labor for, and the faithful performance of the whole of the work mentioned in the agreement, the following prices:

For excavating earth, per cubic yard, the sum of twenty-seven (27) cents.

“ For excavating rock, per cubic yard, the sum of ninety-five (95) cents.

“ For furnishing and setting new curb-stone, per linear foot, the sum of sixty-seven (67) cents.

“For furnishing and laying new flagging, per square foot, the sum of thirty-one (31) cents.”

And by a preceding part of the agreement, it was also agreed by the contractor that he would, “ at his or their own cost and expense, furnish and provide all the materials and labor for the purpose, and regulate and grade Fort George avenue from Tenth to Eleventh avenue, and set curb-stones and flag sidewalks therein.” And that he would “ complete the entire work to the satisfaction of the Commissioner of Public Works and in substantial accordance with said specifications and the plan therein mentioned, and that he will not ask, demand, sue for or recover for the entire work any extra compensation beyond the amount payable for the several classes of work in this contract enumerated, which shall be actually performed, at the prices therefor herein agreed upon and fixed.”

It was further declared that “ This contract is made with reference to the proposals for estimates for the above described work, hereto annexed, which are to be taken as part and parcel of these presents.” And in and by the proposals it was stated “ That no extra compensation beyond the amount payable for the several classes of work before enumerated which shall be actually performed, at the prices therefor to be specified by the lowest bidder, shall be due or payable for the entire work.” And, also, that “Work or materials not specified, and for which a price is not fixed in the contract, will not be allowed for.”

The contract is not entirely harmonious and consistent in its stipulations and statements, but the intention to bind the contractor to furnish the materials and perform the labor for the prices contained in the contract appears to be predominant. For he was obliged to agree, as a part of the terms upon which he received the contract, that he would not ask for, demand, sue for or recover for the entire work any extra compensation beyond the amount payable for the several classes of work in the contract enumerated. And that no extra compensation beyond the amount 'payable for the classes of work enumerated should be due or payable for the entire work. And that all the materials and labor required for the work should be supplied and performed by the contractor. These stipular tions and provisions are clearly and definitely exjaressed. And so are those adjusting and prescribing the prices to be received in full compensation for all the materials and labor and the faithful performance of the whole work mentioned in the contract. And filling the avenue up to its j>rescribed grade was a necessary part of that work. These stipulations and provisions, expressed in this definite manner, overcome and control the general language employed in the specifications as to the filling to be furnished and paid for, and in the contract itself for any work the price of which was not specified. For they distinctly obligated the contractor to do all the work and supply all the necessary material for it for the compensation mentioned in the agreement, and without any claim for extras upon his part.

But if the contract, from this general language employed in the specifications, and relating to any work the price of which was not specified in the contract, should be held to be controlling as to the. intention of the agreement, the effect would still remain the same. For by the law, as it was in force at the time when the agreement was made, and as it still remains, the commissioner of public works was required to advertise for proposals for the work and to let the contract to the lowest bidder. This imperative regulation was prescribed by section 91 of article 16, chapter 335 of the Laws of 1873. And it was afterwards, by section 64, made a part of chapter 410 of the Laws of 1882. By this enactment it was provided that “Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose, which work and job is to be undertaken or supply furnished for .the corporation, and the several parts of the said work or supply shall together involve the expenditure of more than one thousand dollars, the same shall be by contract under such regulations concerning it as shall be established by ordinance of the common council, excepting such works now in progress as are authorized by law or ordinance to be done otherwise than by contract, and unless otherwise ordered by a vote of three-fourths of the members elected to the common council. And all contracts shall be entered into by the appropriate heads of departments, and shall, except as herein otherwise provided, be founded on sealed bids or proposals made in compliance with public notice duly advertised in the City Record, said notice to be published at least ten days. And all such contracts when given shall be given to the lowest bidder, the terms of whose contracts shall be settled by the counsel to the corporation as an act of preliminary specification to the bid or proposal.” It has been suggested, in support of the right of the plaintiff to recover as he did at the trial for the filling obtained and used by him from other sources than the avenue, that this work may have been ordered to be done, otherwise than by contract, by a vote of three-fourths of the members elected to the common council. But that fact cannot be assumed in his favor. It was not alleged in the complaint that such an order or resolution had been adopted. But, on the contrary, the proposals were invited and the contract entered into in apparent conformity to the requirements of the law, where no such resolution should be, or had been, adopted by the common council. And the case was tried and disposed of upon the theory, that the plaintiff’s right to compensation for the filling in this manner obtained and supplied depended upon the provisions of the contract, if it could not be maintained because of the removal of the earth from the line of the avenue after the passage of the resolution and before the notice was published by the commissioner of public works. And it is upon that theory that the plaintiff is left to maintain his right to this recovery, if it can be maintained at all.

It was proved upon the trial that, by the revised ordinances of 1880, adopted after the enactment of the law of 1873, the proposals for estimates should contain, among others, a statement of “the quantity and quality of supplies, or the nature and extent, as near as possible, of the work required.” But the proposals which were published in no manner included material to be supplied by the contractor for the filling of the avenue beyond that which might be excavated in the performance of the work. And no estimate was made and no contract proposed to be entered into for supplying or paying for such filling. And as the amount for which the plaintiff claimed, and the proof tended to establish he had furnished, exceeded the sum of $1,000, the law required that it should be included in the advertised proposals for estimates before a contract could be authorized for supplying and paying for it. And that it was not expected that the contractor furnishing estimates, anti afterwards receiving a contract under the advertised proposals, would be compensated for such filling, was entirely evident from the proposals themselves as they were published. And that such additional filling might become necessary must have been obvious to the contractor before he submitted his estimates, for the proof established the fact that the land included in the avenue exhibited the previous removal of the earth, amounting in quantity, according to the statements of the plaintiff, to about 5,300 cubic yards. And it was with this knowledge which had been, or readily could have been, acquired by the contractor, that the estimates were made and the contract was taken. And it would be a violation of the mandatory provisions of the statute to permit a recovery by the plaintiff for the value of this filling under the facts and circumstances in this way presented. If that could be done, then any other part of the work or material included in the improvement could likewise have been omitted, and the defendant rendered liable to pay for the labor and materials used in performing it. And thereby the restraints and directions of the statute would be as thoroughly disregarded as though it were in the plainest language repealed. If the courts may disregard it in one particular, they may in another; and as consistently defeat it altogether by sanctioning a recovery for work done and material supplied in total violation of its provisions. And that the court has no authority to do. But its duty is to enforce and maintain the law without regard to the consequences which may be encountered by the contractor or his assignee, who were alike chargeable with knowledge or notice of the restraints imposed upon the officials of the city by these requirements of the statute. (Kernitz v. Long Island City, 50 Hun, 429; SyracuseWater Co. v. Syracuse, 116 N. Y., 167.)

It was, it is true, stated in the opinion in Nelson v. Mayor (63 N. Y., 535), that such a recovery might be maintained. But the case ultimately 'was decided upon another ground. And in McDonald v. Mayor, etc. (68 N. Y., 23), this decision was reviewed. And it was there considered and held that a recovery could not be secured for work or material supplied to the city in violation of the restraints of these provisions of the charter. And the same principle was sustained in Brady v. Mayor, etc. (20 N. Y., 312), and Matter of Merriam (84 id., 596). And it was in no manner involved or questioned either in Poillon v. Brooklyn (101 N. Y., 132, 135), or Reilly v. Mayor, etc. (111 id., 473). In the last case the contractor was permitted to recover for excavating rock, notwithstanding a mistake concerning the quantity to be excavated in the performance of his work, which was unknown to the officials of the city, but was understood by himself. This case is an authority rather in favor of the defendant than of the plaintiff, for if the city should be obliged to perform, notwithstanding its mistake as to the amount or quantity of rock to be excavated, the contractor and his assignee should, in this instance, be eqrially bound by their agreement, if the proposals were made and the contract entered into by reason of a mistake as to the amount of earth which could be taken from the work and made available for filling up the low parts of the avenue. The case of Mullholland v. Mayor, etc. (113 N. Y., 631) applied only to deviations in the performance of the work, and has no application to this controversy. Neither has any of the other' authorities, which have been cited and relied upon for the purpose of sustaining this recovery.

So far as that was permitted at the trial, it was in conflict with the law whose provisions are required to be enforced against the plaintiff. Neither he nor the contractor who assigned the contract to him was bound to accept the contract ■without a proposal and an agreement relating to the filling. But they voluntarily did this with the ability directly at hand to estimate and ascertain the amount of additional material which might become necessary to bring the avenue up to its prescribed grade beyond that which could be obtained from the laud included within its limits. It is highly probable that knowledge of this fact had been acquired, as it could be, by an observation of the locality over which the work was to be done. But whether it had or not, the law provided for but one mode, in the absence of a vote of three-fourths of the members elected to the common council, and the city could only become obligated by a compliance with or observance of that mode. And that was neither complied with or observed in this instance. The duty to which the counsel to the corporation has been subjected to settle the terms of the contract can in no manner change the rights or obligations of these parties. The most he could do was to provide a contract to carry into effect the provisions of the law so far as it was applicable to this work. He had no power to disregard its injunctions and requirements, and the contract can in no manner be enlarged because of this direction, neither can the plaintiff derive, any advantage from any direction given to him by any officer of the corporation to obtain and use this filling, for no officer had power to bind the defendant by giving that direction. If it was given by any person and the plaintiff acted under it, he must look to that person for his compensation, and not to the defendant. (Burns v. Mayor, etc., 5 N. Y. Sup. Ct. [T. & C.], 371.)

The judgment and order should be reversed and a new trial directed, with costs to the defendant to abide the event, unless within twenty days after notice of this decision the plaintiff shall stipulate to deduct the sum of $4,200 and interest allowed thereon; and if such stipulation shall be given, then the judgment as so reduced should be modified and affirmed, without costs of this appeal to either party.

Yan Brunt, P. J., and Brady, J"., concurred.

Judgment and order reversed and new trial ordered, with costs to defendant to abide event, unless stipulation mentioned in opinion is given; if such stipulation is given, then the judgment, as reduced and modified by opinion, affirmed, without costs of this appeal to either party.


source: Caselaw Access Project

author: Yan Brunt, P. J.:

license: Public Domain

text:
    PIERCE S. MARX, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      A physician is competent to testify to conversations with his patient where the lattes' testifies in reycml to them — waives',
    Iu ail action brought to recover damages for injuries sustained by the plaintiff, through the alleged negligence of the defendant, the plaintiff testified that he visited a doctor two or three times to consult him about the injury; that the doctor did not examine him, asked him no questions, and finally on the third visit told him to get examined by a doctor.
    The doctor thus visited by the plaintiff was then called as a witness for the defendant with a view to showing that the plaintiff had not truly stated what took place between himself and the doctor. Objection was taken by the plaintiff to this evidence which was excluded.

      Held, that the doctor was not prevented, by section 834 of the Code of Civil Procedure, from testifying to what took place between the plaintiff and himself.
    That the plaintiff, by his own testimony as to what had taken place between himself and the doctor, had waived his right to object to the examination of the latter in relation thereto.
    Appeal by the defendant, the Manhattan Railway Company, from a judgment, entered in the office of the clerk oí the county of New York on the 5th day of December, 1888, upon a verdict rendered at the New York Circuit, in favor of the plaintiff, for $6,000 damages; and also from an order denying the defendant’s motion to set aside the verdict and for a new trial, entered in the office of said clerk on the 28th day of November, 1888.

      Scvmitel Blythe Rogers, for the appellant.

      Christopher Fine, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover damages for injuries claimed to have been sustained by the plaintiff, to his eye, while standing beneath the defendant’s railway in the Bowery, from coal falling from one of the defendant’s engines. The trial resulted in a verdict for the plaintiff, and from the judgment thereupon entered and an order denying a motion for a new trial this appeal is taken.

Yarious exceptions are brought up upon this record, but in the disposition of this appeal it will be only necessary to consider those taken to the exclusion of the evidence of Dr. Knapp, a witness called on behalf of ■ the defendant. The plaintiff when examined upon his own behalf testified that he had visited Dr. Knapp two or three times to consult him about his eye; that Dr. Knapp did not examine him ; that he merely looked at his eye; examined his eye; asked him no questions; did not ask him a word, and that he told him nothing, and upon the third visit Dr. Knapp told the plaintiff to get examined by a doctor.

Dr. Knapp was» then called as a witness by the defendant for the purpose of showing that the plaintiff had not truly stated what took place between the doctor and himself. The counsel for the plaintiff objected to the doctor’s giving any evidence of anything said or done by him upon the ground that the plaintiff had consulted him in a professional capacity, and that the doctor was prevented by section 834 of the Code from testifying as to anything which took place between them. The court sustained the objection and the evidence was excluded. This, we think, was error. It is, undoubtedly, true that the plaintiff occupied the relation of patient to Dr. Knapp, and the physician was precluded from giving evidence of what took place between them by section 834 of the Code, unless the privilege was waived. Section 834 reads as follows:

“A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.”

Section 836 provides for exceptions to the rule. It is as follows: “ The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient or the client.”

It has been well settled that this express waiver may be inferred from circumstances. Thus the provisions of the Code in respect to an attorney are the same as those relating to physicians, and it has been held that where a testator lias asked his attorney to become a witness to his will, he has expressly waived his privilege. (In re Coleman, 111 N. Y., 220.) In the case of McKinney v. Grand Street, etc., Railroad Company (104 N.Y., 352), it was held where the plaintiff had examined a physician, who had attended him in a professional capacity upon a previous trial, upon a new trial the defendant might call and examine the same witness, against the objection of the plaintiff, the court saying the patient cannot use this privilege both as a sword and a shield, to waive when it enures to her advantage and wield when it does not.”

The plaintiff upon his direct-examination in the case at bar had pretended to give all that took place between himself and Dr. Knapp. Had opened the door of the consultation-room to the jury, and had pretended to give them a statement of what had occurred between himself and Dr. Knapp. Can it be that, having done this, when Dr. Knapp is called to give his version of what took place, that his mouth is shut and the truth cannot be laid before the jury. Can it be that a patient can distort the features of a consultation with his physician so as to do the physician the greatest of injury, and the physician be prohibited from defending himself? Clearly not. The patient may keep the door of the consultation-room closed, but he cannot be permitted to open it so as to give an imperfect and erroneous view of what has taken place there, and then close the door when the actual facts are about to be disclosed. This would be allowing a plaintiff to "manufacture evidence for himself in cases of this description, and prevent the defendant from resorting to the only means to elicit the truth.

The legislation in question was not intended to be the means of such injustice; and it may be claimed with great force that as the section in question was intended to prevent the disclosure by a physican of his patient’s condition, either physical or mental, when such condition comes in question, and physicians are examined at the instance of the plaintiff in respect thereto, the privilege is waived and the opposite party has a right to resort to the same class of evidence.

In the case at bar the evidence offered related to the same interview as to which the plaintiff had testified, and to the occurrence of which he had pretended to give an account. It* seems to us clear that, having thus himself gone into the privileged domain to get evidence upon his own behalf, he cannot prevent the defendant from assailing such evidence by the only testimony available for that purpose. In construing this legislation we must consider the object which was sought to be attained, viz., the greatest freedom in eonfessions to minister or priest, and consultations with attorney or physician. The reason for the rule no longer exists where the party himself pretends to give the circumstances of the privileged interview.

The judgment and order appealed from should be reversed, with costs to appellant to abide event.

Bartlett, J., concurred.

Judgment and order reversed, with costs to appellant to abide event.


author: Brady, J.:

text:
    SUMNER E. CLAGGETT and CHARLES F. CHICKERING, as Administrators, etc., Respondents, v. METROPOLITAN NATIONAL BANK, Appellant.

      National bank — bound to pay ihecurrency bank bills of its predecessor, the State bank-

    After a banking association, organized under the laws of tlic State of New York, has been converted into a national banking association under the provisions of the act, e.liapter 97 of the Laws of 1865, the act, chapter 286 of the Laws of 1859, ceases to be applicable thereto.
    It was not the intention of the legislature that the two proceedings, one relating to the national organization and the other to the retirement of its notes by the bank whilst continuing to be a State corporation, should go on pan'ipassu.

    Appeal by the defendant, the Metropolitan National Bank, from a judgment, entered in the office of the clerk of the county of New York on the 22d day of December, 1888, in favor of the plaintiffs, for the stun of $14,627.83.
    The action was brought to recover the amount of certain notes or bills which had been issued by “The Metropolitan Bank,” a moneyed corporation organized under the laws of the State of New York.
    The complaint alleged that on the 14th day of March, 1865, the said Metropolitan Bank, under and in pursuance of the act of congress of the United States, entitled “ An act to pi’ovide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,” approved June 3, 1864:; and also the provision of an act of the legislature of the State of New York, entitled “An act enabling the banks of this State to become associations for the purpose of banking under the laws of the United States,” and under resolutions and actions of its board of directors and its stockholders, passed March 9, 1865, the bank, at the time of the commencement of this action, was an association for carrying on the business of banking under the laws of the United States, under and by the corporate name of the Metropolitan National Bank.
    The question presented by this appeal was, whether the Metropolitan National Bank, having received and divided among its stockholders the assets of the Metropolitan Bank, some twenty years prior to the bringing of this action, was obligated to redeem the currency banking bills of the Metropolitan Bank.

      Fisher A. Balter, for the appellant.

      Leslie W. Bussell and Welton O. Fercy, for the respondent.
   Brady, J.:

The defendant while a banking association under the laws of this State, and in 1865, having become a national banking association under the provisions of the act passed in that year (chap. 91), and desiring to retire its circulating notes issued whilst a State bank, proceeded to comply with the provisions of the act of 1859 (chap. 236) relating thereto. In its conversion to a national bank, and in the proceedings under the act last mentioned to retire its notes, every requirement was observed, and the question presented, therefore, in limme, is whether the act of 1859, the conversion having taking place, is applicable ?

The learned justice in the court below held, that it was not for the reason that the act of 1859 applied only to banks having an intention to close their business absolutely, and not to those intending to continue under, any other form. It may not be necessary to add to the views expressed by the learned justice in the court below sustaining this proposition, but, nevertheless, a few observations will be indulged in.

It is true that, by section 1 of the act of 1865, it is declared that its provisions shall be taken and deemed as an amendment of the laws of this State in reference to the banking business, and, therefore, they were engrafted on those laws. And for this reason, if no other exists, it must be conceded that whether it ivas the intention 4of the legislature to provide that the two proceedings should go on jpari jyassu, that is, the national organization and the retirement of its notes by the bank, whilst a State corporation, is a difficult and troublesome question.

The act of 1865, it must be observed, will be read in vain to discover any language, except by remote implication, which tends to express such a design. In the act of 1859, however, .we find not only language indicating the expressed purpose of the statute to be to facilitate existing State banks to retire their circulation, but language from which that purpose, and that purpose only, is declared and quito manifest. It provides, among other things, that there shall be a publication in the State paper by the superintendent of banking that the bank notes will be redeemed by him, and must be presented within six years from the date of the notice, and that upon the expiration of such six years (all iiroceedings being regular) it shall be lawful for the superintendent to surrender to the banking association, and it shall be entitled to receive from him all the money remaining in his hands after such redemption, except so much as may be necessary to pay the reasonable expenses chargeable against tlie accounts, including the publication of the required notices. The money so to be refunded is whatever remains of the amount required to be deposited in order to fully meet the outstanding circulation at the time the proceeding is initiated, whatever that may be. »

By section 5 it is further provided that -a banking association, after the payment of all the circulating notes issued by it, which shall have been presented within the time required by the notice to be published, as already stated, and of all other lawful claims and demands against the bank, shall divide the remaining property and effects of the bank among the stockholders thereof or their joersonal representatives according to their respective shares and interests therein.

It will at once be perceived that if the bank continues in another form, all its assets being transferred to the new formation by operation of the statute, the division contemplated by the section cannot be made; and in that respect, at least, the object and design of the act is frustrated. A provision of this kind would, by implication, if there were no express language leading to such a result, determine the character of the statute, and its purpose. It seems to be a necessary corollary, if the distribution is to take place of any surplus, that the absolute death of the corporation is not only contemplated, but indispensable in order to carry out the provisions of the statute.

For these reasons, in addition to those assigned by the learned justice in the court below, it is thought that the judgment is correct, and should be affirmed, with costs.

Van Brunt, P. J., concurred; Bartlett, J., concurred in the result.

Judgment affirmed, with costs.


author: Yan Brunt, P. J. :

text:
    EDWARD K. WILLARD and Others, Respondents, v. HAMILTON S. WHITE and GILES EVERSON, Appellants, Impleaded with EDWARD N. WESTCOTT and Others.

      Stocks purchased upon a margin — right of a Sew York broker, purchasing for a firm of brokers at Syracuse, to hold the stocks purchased for parrticular cxxstomers of the latter as a general collateral for the latter’s indebtedness— better equity of one who deposits stock, as a ma/i'gin.

    A firm of stock-brokers in the city of New York were the correspondents of a firm of stock-brokers doing business in Syracuse, and were accustomed to fill orders given by the latter firm to buy stocks. These stocks were, in fact, purchased for customers of the Sjuacuse firm, but the orders for their purchase did not inform the New York brokers for what purpose the purchases were made. TlieNew York brokers held margins to protect them in the advances which they made on the purchases of stocks, the margin being represented by money and securities. They also held the securities purchased by them, rendering monthly statements as to the condition of the account against the Syracuse firm. The Syracuse firm having failed an action was brought by the New York brokers, in equity, to determine the rights of the customers of said insolvent firm in the margins held by the plaintiffs. Subsequent to the failure, the New York brokers, in order to reimburse themselves for advances made, sold a large number of stocks standing to the credit of the Syracuse firm, which had, in fact, been purchased or were held by that firm for its customers, leaving a portion of such stocks which were represented by such account unsold, and a portion of their claim against the Syracuse firm unpaid,

      jHeld, that the customers of the Syracuse firm, upon making a tender to it of the balance due upon the purchase of their particular stocks (after deducting the amount which had been paid by such customers, at the time of their purchase), were not entitled, as against the New York brokers, to the stocks which had been pledged with that firm as a general collateral to secure its account for advances with the Syracuse firm.
    That- the surplus remaining in the hands of the New York brokers, after the payment of their claim against the Syracuse firm, from the proceeds of the sale of these stocks, properly belonged, not to the assignee of the Syracuse firm, but to the parties on whose behalf these stocks had been purchased.
    That the right of the New York brokers to make good the indebtedness of the Syracuse firm to it, out of those securities purchased by order of the Syracuse firm for its customers, was not affected by the general knowledge on the part of the New York brokers that orders made by the Syracuse firm for the purchase of stock were made on behalf of other persons; and they had a right to look to the Syracuse firm for the payment of the account, and to hold the securities received from that firm as security therefor.
    That the owner of stock which had been pledged by him with the Syracuse firm as collateral to purchases made through the NewYork brokers, and which had been improperly placed by the Syracuse firm with the New York brokers as a general collateral to secure the account of the former, had a better equity than those customers for whom stocks had been purchased on a margin through the New York brokers, which were also held by the New York brokers as a general collateral to the indebtedness of the Syracuse firm.
    That the New York brokers were in no sense trustees for the Syracuse firm, nor were they entitled to be paid counsel fees, incurred in the equity suit brought by them, under any theory that they were acting as trustees and protecting the rights of their cestui que trust in this action.

      Griggs v. Howe (2 Abb. Ct. of App., 291) distinguished.
    That they had no right to insist that the collaterals held by them, in addition to paying the claim existing in their favor against the Syracuse firm, should also pay the expenses involved in determining the amount of that claim.
    Appeal by several of the defendants above named from a judgment entered in the office of the clerk of the county of New York on the 24th day of July, 1886, after a trial before a referee, who found that the plaintiff was entitled to judgment; that the defendants Edward N. "Westcott and Alfred Wilkinson, as copartners, composing the firm of Westcott & Co., are indebted to these plaintiffs in the total sum of $10,414, with interest thereon at the rate of six per cent from the 10th day of April, 1886; and that the plaintiffs are entitled to hold the following stocks and securities, therefor, pledged with them by said Westcott & Co or the avails of the sales thereof, for the payment of the same, to wit: Three $1,000 six per cent first mortgage bonds of the Lafayette, Bloomington and Muncie Railroad Company; one hundred shares of the capital stock of the Chesapeake and Ohio Railway Company, first preferred; one hundred and twenty shares of the capital stock of the Chicago, Rock Island and Pacific Railway Company, and any and all dividends that may have been collected thereon, as well as all other dividends received by them to the credit of said Westcott & Co., since the 11th day of December, 1884.
    That the plaintiffs are entitled to the judgment of this court directing the sale of the following of said securities at public auction, upon ten days’ notice to all the parties who have appeared in this action, and upon two advertisements, one to be inserted in the New York World, and the other in the Daily Register, in the city of New York, by A. J. Bleecker, Son & Co., auctioneers, at the Exchange Auction Rooms (Limited), 59 to 65 Liberty street, in the city of New York, to wit: The one hundred shares of the capital stock of the Chesapeake and Ohio Railway Company, first preferred; one hundred and twenty shares of the capital stock of the Chicago, Rock Island and Pacific Railway Company; three $1,000 six per cent first mortgage bonds of the Lafayette, Bloomington and Muncie Railway Company.
    That the plaintiffs are entitled to judgment that they receive and be paid out of the net proceeds of the sales of the said securities the said sum of $10,414, with interest thereon at six per cent since the 10th dayof April, 1886, together with their reasonable expenses, charges and disbursements herein since the 8th day of January, 1886, including the expenses of this reference and the fees of the referee, and taxable costs and disbursements in this action.
    That the defendant James S. Crouse is entitled to receive, and to the judgment of this court directing the plaintiff's to pay over to him as assignee of the firm of Westcott & Co., all surplus moneys resulting from the sales above directed to be made after payment therefrom of the lawful expenses of such sales, and the sums above allowed to the plaintiffs.
    That the defendants James R. Lockwood Henry R. Lockwood and Mary M. Armstrong, as executors of the last will and testament of Henry Lockwood, deceased, are entitled to receive, and to the judgment of this court directing the plaintiffs to deliver to them, or to their attorneys, seventy-seven shares of the capital stock of the Burlington, Cedar Rapids and Northern Railway Company,so indorsed as to render such delivery effective.
    That the defendant Yan Marter is entitled to receive, and to the judgment of this court directing the plaintiffs to deliver to him, or to his attorney, thirty shares of the capital stock of the American Express Company.
    That the defendant William Yan Marter is entitled to judgment against the defendants Edward N. Westcott and Alfred Wilkinson, for the sum of $744.46, besides costs and disbursements of this action.
    That no other of the parties hereto are entitled to any relief in this action.

      Frank H. Hiseook, for the appellants White & Everson.

      W. G-. Traoy, for the appellant Moses.

      T. D. Kenneson and II. A. Root, for the plaintiffs respondents.

      L. Marshall, for the defendant respondent Krouse.
   Yan Brunt, P. J. :

The evidence in this case showed that the plaintiffs for many years prior to the 11th of December, 1884, had been stock-brokers doing business in New York under the firm name of E. 3L Willard & Co., and that the defendants Westcott & Wilkinson were at the time of the transactions hereinafter mentioned and for some time previous thereto had been copartners and also-stock-brokers, doing business at Syracuse, N. Y., under the firm name of Westcott & Co.

Westcott & Co. had been in the habit of receiving, from their customers in or about Syracuse, orders for the purchase of stocks. These orders Westcott & Co. filled by directing the plaintiffs Willard & Co. to buy the stocks. The plaintiffs in their transactions with Westcott & Co. kept their account with them and with them only, and knew no other persons in connection therewith. Westcott & Co. in giving these orders to purchase stock did not inform the plaintiffs for whom these purchases were made, and they were made by the plaintiffs for .and on account of Westcott & Co. The plaintiffs required ample margin to cover the advances which tliey made in money in the purchase of stocks ordered by Westcott, for which they received remittances of mqney and of securities, and also held the securities purchased. The plaintiffs made up monthly balances and sent them to Westcott & Co. as to the condition of their account. These statements contained all the items of transactions between the plaintiffs and Westcott & Co.

In October, 1884, the defendant Everson had ordered Westcott & Co. to purchase for him one hundred shares of the Chicago, Rock Island and Pacific Railroad stock, paying to them the sum of $3,755.47, which Westcott & Co. were to hold as a margin upon the purchase. Westcott & Co. directed the plaintiffs to purchase this stock which they -did for the sum of $11,231.25, and they placed the stock in the account of Westcott & Co., crediting them with it on their books and debiting them with the price. This stock has ever since been continuously held by the plaintiffs in said account to the credit of Westcott & Co.

In like manner, on the 11th of August, 1884, the defendant White had ordered Westcott to purchase for him three of the first mortgage $1,000 bonds of the Lafayette, Bloomington and Muncie Railroad, and at the time of such purchase had in the hands of Westcott & Co. $1,265.90 as a margin upon said purchase. Westcott &■ Co. directed the plaintiffs to purchase these bonds, which was done at the price of $2,448, in the same manner as in the previous case, and the plaintiffs have ever since held said bonds. All of these stocks were purchased upon margin and were never paid for by the parties for whose account they were purchased, and none of the certificates were ever transferred to them or to Westcott & Co., Willard & Co. holding the same as security for the indebtedness of Westcott & Co. to them.

On the 11th of December, 1884, Westcott & Co. failed and made an assignment for the benefit of creditors to the defendant Krouse. The defendants White & Everson, after the failure and before the commencement of this action, demanded of the plaintiffs the amount so paid by them on their respective purchases, and upon refusal thereof demanded of the plaintiffs their respective purchases, at the same time tendering the amount of the purchase-price thereof unpaid, which was refused, the plaintiffs disclaiming any knowledge of the defendants White & Everson in this transaction, and claiming Westcott & Co. as their principals, who were largely indebted to them.

It further appeared that, at the time of the failure of Westcott & Co. they had purchased through the plaintiffs for account of the defendant Moses 200 shares of North-western stock, 100 shares of Lake Shore stock and some Erie stock, and were carrying the same for said Moses upon margins, and that to secure Westcott & Co., Moses had pledged to them 100 shares of Lake Shore stock owned by him, and that before the failure of Westcott & Co., and without the authority of Moses, or his knowledge or consent, Westcott & Co. had repledged said 100 shares of stock owned by Moses, with other stocks, to the plaintiffs as security for a general balance of account, amounting to over $100,000. It further appeared that, subsequent to the failure, the plaintiffs, to reimburse themselves for the advances made by them, sold a large number of stocks standing to the credit of Westcott & Co., among which was the stock belonging to the defendant Moses, both that which Westcott & Co. had purchased for his account and the 100 shares of Lake Shore stock which Moses had pledged as margin. And it further appeared that the proceeds of the sale of said stock, with the dividend collected thereon, amounted to $3,690 over and above the indebtedness of Moses to Westcott & Co. It further appeared that by the sale of the stocks aforesaid the plaintiffs had repaid themselves all but $8,865.79. They still held the 100 shares of Chicago and Rock Island stock, bought by the plaintiffs upon the order of Westcott & Co., and which the defendant Everson had directed Westcott & Co. to buy, and also the $3,000 first-mortgage bonds bought by the plaintiffs for Westcott & Co., and which the defendant White had requested Westcott & Co. to purchase; also twenty shares of Rock Island stock claimed by the defendant Tracey, and 100 shares of Chesapeake and Ohio Railway stock. The total value of these stocks, exclusive of interest and dividends, on the 15th of December, 1884, was about $16,000. There being various claimants for these stocks the plaintiffs filed this bill to determine the rights and interests of the parties; and a reference being had, upon the foregoing facts, the referee adjudged that the stock remaining in the hands of the plaintiffs should be sold, and that the plaintiffs should repay themselves out of the proceeds thereof the sum of $10,414, with interest, included in which amount was the sum of $2,504.85 counsel fees and disbursements, which the plaintiffs claimed had been paid to their counsel in examining the claims of the various parties and conducting the present litigation; and, further, that the plaintiff should pay over to the assignee of Westcott & Co. all surplus moneys resulting from the sales above directed to be made, after payment therefrom of the lawful expenses of such sale, and deducting the above amount that the plaintiffs are directed to retain therefrom to thsir own use ; and, also, that the plaintiffs should deliver to certain defendants therein named certain other stocks which they had on hand, and from the judgment thereupon entered the defendants White, Everson and Moses have appealed.

It is claimed upon the part of the defendants White & Everson that Westcott & Co were their agents, and as to their stocks, trustees, and Willard & Co. held them subject to the same rights, and that White & Everson were entitled to have their securities at any time upon demand, and upon payment of the balance of the purchase-price, and that Westcott & Co. were guilty of wrongful conversion in depositing or leaving them with the plaintiffs as security for future advances.

Upon the part of the defendant Moses it is claimed that he has a superior right to this fund over any of the other defendants to the amount of $3,691, and interest (being the proceeds of sale of his 100 shares of stock deposited with Westcott & Co., and which they pledged with the plaintiffs), over and above the indebtedness due from Moses to Westcott & Co.

It seems to us to be entirely clear that the referee erred in hold ing that the surplus of these sales should be paid to the assignee. He was not a purchaser for value, and he had no right to take any more than Westcott & Co. could themselves have taken if they had not made the assignment. These parties having traced their security or securities, which had been bought upon their account, into the hands of the plaintiffs, were at least entitled to receive from the plaintiffs whatever balance might remain after paying the indebtedness for which they were pledged.

It is true that the plaintiffs had the right to hold these securities for the purpose of the payment of the balance due to them from Westcott & Co. They knew nothing of the rights or interests of these various parties, and these were negotiable securities which they held for value, and, consequently, they were entitled to reimburse themselves before they could be compelled to deliver up these securities which had been deposited with them as margin. The fact that Westcott & Co. had received part payment from White & Everson upon the purchase of these stocks in no manner affected the rights of the plaintiffs. They knew nothing in respect to this payment. They were dealing entirely with Westcott & Co., and they were holding these securities as the property of Westcott & Co., as security for the indebtedness due from Westcott & Co. to them. Under these circumstances it is clear that the plaintiffs had the right to hold these securities until their indebtedness from Westcott & Co. should be paid. It is urged that the plaintiffs must have known that Westcott & Co. were acting for other people. It may be true that they knew that Westcott & Co. were giving these orders for the purchase of stock on behalf of other people. But what other people, or who they were, or whether, in .fact, Westcott & Co. were operating on their own account they had no means of .knowing and no reason to surmise. They were dealing with Westcott & Co., and with them alone, and they looked to Westcott & Co. for the payment of their account, and held these securities received from Westcott & Co. as security therefor.

As to the defendant Moses, in respect to the 100 shares of Lake Shore stock pledged by him with Westcott & Co., it seems to us that he stands in a different position from that occupied by White & Everson. White & Everson knew, in fact all these parties knew, that Westcott & Co. were executing these orders through correspondents in New York, but whether Westcott & Co. were themselves carrying the stocks after they-were purchased, or their correspondents, they did not know ; and when the defendant Moses deposited this 100 shares of Lake Shore stock with Westcott & Co., as an additional margin, he by no means conferred upon Westcott & Co. any title further than such as was necessary to secure the indebtedness of Moses to them, and, therefore, as the referee has found, the pledge by Westcott & Co. of this 100 shares deposited with them as collateral to the plaintiffs was wrongful; and he having traced that stock into the hands of the plaintiffs, it would seem that lie is entitled to receive whatever excess might arise from the sales of the stock over and above the indebtedness due from him to Westcott & Co., provided the debt to the plaintiffs was satisfied. In other words, his equity seems to be greater than the equity of those parties wdio gave the orders for the purchase of these stocks with the expectation that money should be raised by the pledge of these stocks to pay for the same. This 100 shares of the defendant Moses was his own property apparently which he had paid for, and which in no manner formed the subject of the speculation which was being carried on in the purchase of these stocks. We think, therefore, that his equity is superior to that of the other parties, and that he should be paid the surplus arising from the sale of these 1Ó0 shares of stock before any sum should be received by the alleged owners of the other securities involved in this appeal.

We think also that the referee erred in the allowance made for counsel fees and disbursements.

It is sought to sustain this claim upon the ground that the plaintiffs were in some sense acting as the trustees of Westcott & Co., and that their counsel fees paid in protecting their interests as trustees were a proper charge against the cestui que trust. But we think that this relation in no way existed between the plaintiffs and Westcott & Co. The sole position which the plaintiffs occupied towards Westcott & Co. was that of creditors with security for the payment of their debt, and this idea that they were trustees in any way does not seem to have any foundation in the facts, any more than every creditor holding security for his debt is a trustee of the debtor. The plaintiffs may have thought it prudent to file this bill in order to have the rights of the parties determined, but it was not necessary. They could have gone on and sold these securities and paid their debt without the intervention of this litigation, and that is, in fact, what they did in respect to a large part of the securities which they held. They sold securities sufficient to pay every dollar of debt which they felt certain Westcott & Co. were bound to pay to them; and it was only in respect to a claim in regard to the payment whereof there might be some doubt as to their right to hold these securities that they sought the intervention of the court. Some authorities have been cited for the purpose of sustaining the decision of the referee in this respect, but they do not seem to be applicable.

The case of Griggs v. Howe (2 Abb. Ct. of App., 291) presents an entirely different state of facts. There the holder Of the security was compelled to sue upon it in order to collect it, and was compelled to incur expense in realizing upon the collateral, and which he was allowed to charge as expenses.

In the case at bar the plaintiffs were under no difficulty in realizing upon their claim. All they had to do was to sell upon proper notice, and the only question seems to have heen as to the amount which they could claim against Westcott & Co. as an indebtedness for which they held these securities as collateral. In other words, they proposed to make the collaterals pay the expense of determining the amount of their own claims. This we do not think any of the cases cited permit, and, therefore, the allowance of these counsel fees Aras erroneous.

It seems to us, therefore, that the judgment appealed from should be revei’sed and a new trial oi’dered, with costs to the appellants to abide the event.

Barrett and Bartlett, JJ., concuiTed.

Judgment í'ovexxsed and neAv trial ordered, with costs to the appellants to abide evexit.


author: Yan Brunt, P. J.; Barrett, J.:

text:
    LAWRENCE DRAKE, Appellant, v. JOSEPH T. DRAKE and Others, Respondents.

      Will — pairar of appointment inf amor of sisters of, the testator and their children — it nap he exercised, inf amor of the children while the parents are living.

    A testator, by Ms Avill, provided as follows:

      “Ninth. Incase of the death of the said Mary Ilopeton Drake, without leaving lawful issue surviving at the time of her decease, then, and in snoh case, I give and devise to her full power and authority to devise or appoint by her last will and testament, or other instrument in writing executed by her in the manner hereinbefore mentioned, the said eleven dAvelling-liouses and lots of land herein last above mentioned, and each and every of them, to all or any or either of my sisters, Susan Ann Drake, Sarah Ann Lawrence and Mary M. Keese, or to all or any or either of the lawful issue of my said sisters from and after the death of the said Mary Hopeton Drake.”
    The testator elsewhere in his will devised to his sisters certain property during their lives, and from and immediately after their deaths to their lawful issue, to "be divided among- them equally in case they should be of equal degrees of consanguinity, and in case they should be of unequal degrees, then the issue of each deceased parent to take the share which the parent of such issue would have been entitled to if he or she had then been surviving-; and also provided, as to certain properly, that in case of the death of any or either of his said sisters during the lifetime of Mary Iiopeton Drake, leaving lawful issue, then the said issue of each one so dying was to take the share or part thereof which the parent of such issue would have taken if she had survived.

      Held, that it was apparent from these provisions of the will that the testator understood the distinction between gifts made to the use of the sisters, as a class, and to the issue in their representative capacity.
    That it was apparent that the testator did not intend that the doctrine of representation should prevail in the exercise of the power of appointment given by the ninth clause of the will.
    That as, under the language of the ninth clause of the will, it was clear that Mary Hopelon Drake might, under the power thereby conferred, select her appointee or appointees without reference to the doctrine of representation, she consequently might appoint a child the beneficiary to the exclusion of the parent of such child.
    That the power to appoint in favor of the lawful issue of his sisters was not made dependent'upon the death of any or all of the sisters, but might be made to the issue of the sisters, although all the sisters were living.
    It appeared that Mary Hopelon Drake, who was believed to be his illegitimate child, had been adopted by the testator as his daughter, and was not treated with the same cordiality by his sisters, or by their children, as the latter manifested towards each other; that the testator was very fond of this child, and was angered when she was slightingly treated, and had stated that he would make her a lady in spite of them, referring to his sisters and their children.

      Held, that these circumstances went in support of the view that there existed an intention on the part of the testator to place Mary Hopeton Drake in a situation in which she could reward kindness and punish incivility, and hence the only limitation imposed upon the power of appointment was one which confined it to his sisters or their blood in the descending line.
    Appeal by the plaintiff Lawrence Drake from a judgment, entered in the office of tlie clerk of the county of New York on the 18th day of November, 1889, after a trial before the court at a Special Term held in the city of New York.

      Joseph II. Choate, for the appellant.

      James C. Carter, for the respondents.
   Yan Brunt, P. J.;

This action was brought for a construction of the ninth clause of the will, of one James Drake, deceased. James Drake made his will in 1868 and died in 1871. He had no legitimate children, but had adopted as his daughter a person whom he called Mary Iiopeton Drake, and of whom he was the reputed father.

James Drake left him-surviving his three sisters, M,ary M. Keese, Susan A. Drake and Sarah A. Lawrence, mentioned in said ninth clause of his will. Mary M. Keese died in 1877, leaving no issue her surviving, and before the execution of the will of Mary Iiopeton Drake, hereafter mentioned. Susan A. Drake died in January, 1881, and before the execution of the said will of Mary Iiopeton Drake, leaving her surviving seven children, Lawrence, Joseph T., John J., Samuel, Charles, Benjamin and Mary Drake. Mary was afterwards married to Charles T. Stagg in 1884, and has no issue. Mrs. Lawrence died in 1882 or 1883, after the execution of the will of Mary Iiopeton .Drake hereinafter mentioned. She left her surviving three children, Mary K., Emily T. and Annie T. L. Mary K. married Charles N. Black in 1864 or 1865, and at the time of the death of Mary Iiopeton Drake had four children, the youngest of whom in April, 1888, was about twelve years old, viz.? Charles Newbold Black, born in 1867, and still living; Edith Lawrence Black, born March 15, 1869, still living; the defendants James Drake Black, born September 15, 1871, and Lawrence C. Black, born in January, 1875, and who died 26th of March, 1887. Benjamin Drake, the son of Susan A. Drake, married in June, 1873, and at the time of the death of Mary Iiopeton Drake had two children, "William ~W. Drake, born in April, 1874, and the defendant Mary Iiopeton Drake, born in 1877. Emily T., the daughter of Sarah A. Lawrence, married, in 1874, one Smith, and at the death of Mary Iiopeton Drake had four children, Richard Lawrence, born in 1877; the defendants, Mary Hopeton, born in 1878; Ethelbert M. Smith, Jr., born, in 1879, and Sarah L. Smith, born in 1883. Annie T. L., the daughter of Sarah A. Lawrence, married one Atterbury in 1870, and had, at the time of the trial in 1886, five children, Lawrence, fourteen or fifteen years old; Sarah, thirteen ; the defendant Iiopeton Drake Atterbury seven, and Annie five. Thus there was living at the death of James Drake.in May, 1871, not only his three sisters, Mary M. Keese, Susan A. Drake and Sarah A. Lawrence above-mentioned, but also their children and one grandnephew, Charles Newbold Black, and one grand-niece, Edith Lawrence Black; and at the time of the execution of the will all the above were living except Edith Lawrence Black. Mary Hopeton Drake appears to have been about twenty-eight years of age in 1868, and she died in 1884.

James Drake, as has been already stated, died in 1811, having previously duly executed a will on the 22d of January, 1868, and a codicil thereto on the 9th day of August, 1869. The contents of the codicil have no relevancy to the questions involved upon this appeal. By his will James Drake, after making certain devises and bequests to his sisters and to two nephews and a niece, gave, devised and bequeathed to his adopted daughter, Mary Hopeton Drake, eleven houses and lots in the city of New York, for and during the term of her natural life; and in case Mary Hopeton Drake left lawful issue her surviving, tlie testator gave and granted to her full power and authority to devise and appoint by will, the said eleven houses and lots to all, or any or either of such issue as she might, in her discretion, think proper, and in such shares and proportions as she should think proper; and in default of such appointment the testator devised said houses and lots above named to the lawful issue of Mary Hopeton Drake, from and immediately after her death, if such issue were of equal degrees of consanguinity they were to take equally, if of unequal degrees, the issue of a deceased parent were to take the share the parent would have taken if living.

In the next clause of his will the testator provided as follows:

JVinth. In case of the death of the said Mary Hopeton Drake without leaving lawful issue surviving at the time of her decease, then and in such case I give and devise to her full power and authority to devise or appoint by her last will and testament, or other instrument in writing, executed by her in the manner hereinbefore mentioned, the said eleven dwelling-houses and lots of land herein last above mentioned, and each and every of them to all or any or either of my sisters, Susan Ann Drake, Sarah Ann Lawrence and Mary M. Keese, or to all or any or either of the lawful issue of my said sisters from and after the death of the said Mary Hopeton Drake, forever thereafter, and in such shares and proportions as she may think proper; and in such case I hereby give and devise the same in accordance with such devise or appointment; and in default of said last mentioned devise and appointment, on the death of the said Mary Hopeton Drake without leaving lawful issue her surviving, I hereby give and devise the said last-mentioned eleven dwelling-houses and lots of land to my sisters above named, and to their heirs and assigns, from and after the death of the said Mary Hopeton Drake, forever, to be divided among my said sisters in equal shares; and in case of the death of any or either of my said sisters during the lifetime of the said Mary Hopeton Drake, leaving lawful issue, and then, in such case last -mentioned, the said issue of each one so dying shall take the share or part thereof which the parent of such issue would have taken if she had survived.”

Mary Hopeton Drake died in June, 1884, unmarried and without leaving issue her surviving, leaving a will, executed on June 14,' 1881, and a codicil thereto, executed June 21, 1881. By this will and codicil she attempted to exercise the power of appointment given to her by the will of James Drake in respect to the houses and lots therein mentioned, and devised the same to James Drake Black, grandson of Sarah A. Lawrence, a sister of James Drake; to Mary Hopeton Smith, a grand-daughter of said Sarah A. Lawrence; to Mary Hopeton Drake, grand-daughter of Susan A. Drake, sister of James Drake; to Mary Keese Black and Annie T. L. Atterbury, daughters of said Sarah A. Lawrence, and to Charles Drake, Samuel Drake, John James Drake, Lawrence Drake and Benjamin Drake, sons of said Susan A. Drake.

All the devises, except those to Charles Drake and his brothers, subsequently mentioned, contained a provision that, if any of the appointees died, Mary Hopeton Drake living, leaving issue, the issue should take the share the parent would have taken if living; if without issue, the portion of the property which the appointee or her issue would have taken if living, should fall into and be disposed of as part of the testatrix’s residuary estate.

Her residuary estate she devised by her will to the above-mentioned James Drake Black, Mary Hopeton Drake and Mary Hope-ton Smith, which was changed by her codicil by adding, as a devisee, Hopeton Drake Atterbury, all of whom were grand-nephews and nieces of James Drake, deceased, and whose parents, children of James Drake’s sisters, were living at the death of Mary Hopeton Drake.

The question presented upon this appeal is, whether the learned judge helow ivas right in holding that Mary Hopeton Drake had the power, under the power of appointment contained in Janies Drake’s will, to appoint to grandchildren of his sisters, the children themselves, the parents of the grandchildren being alive.

The answer necessarily depends upon the construction which is placed upon the ninth clause of James Drake’s will, hereinbefore set out at length. This clause must be construed according to the testator’s intention, irrespective of any other consideration, if such intention can be ascertained after examining the will of the testator, his surroundings and the object which, from these, we may infer he sought to attain. The ascertainment of this intention is not a matter of speculation or arbitrary conjecture, but must be arrived at, having due regard to established rules by which particular words and expressions standing unexplained have obtained a definite meaning. If, however, it appears that particular words or expressions which have obtained a definite meaning in the law are used in a different sense, were intended to convey a different meaning, such intention must prevail notwithstanding the interpretation which these words had previously received. Hence, as no two wills are ever exactly alike, and as the circumstances which surround each testator vary, adjudications upon the construction of other wills have little weight, except so far as they illustrate the general laws governing the construction of such instruments. It is undoubtedly true that where there is a gift or devise by will after the determination of a life estate to A B, and in case of his death before the death of the life tenant, to his lawful issue living at such death, if A B die before the determination of the life estate, leaving issue, and such issue, at the death of the life, should consist of children and grandchildren whose parents were living, in the absence of circumstances showing a different intent, it would be held that the testator meant that the issue of A B should take by representation, and not as a class.

This has become the accepted rule of interpretation, because experience has shown that this construction, in most instances, best accords with the intention of the testator, and that it is only under very peculiar circumstances that a testator desires that a parent and child shall take at the same time as belonging to the same class, and that such circumstances-inducing to such intent, when it exists, can almost always be found evidenced by tlie will itself or by- the surroundings of the testator.

That James Drake, in the framing of the will in question, understood the difference between issue taking by representation and as a class is amply evidenced by the will itself.

He devised to his sisters certain property during their lives, and from and immediately after their deaths to their lawful issue, to be divided among them equally in case they should be of equal degrees of consanguinity; and in case they should be of unequal degrees, then the issue of each deceased parent to take the share which the parent of such issue would have been entitled to if he or she had then been surviving. He uses the same language in the limitations over after her death of the property given to Mary Hopeton Drake, in the event of her leaving lawful issue her surviving. Although, if the will had not contained these words as to the degrees of consanguinity, the statute of descents and distribution would have caused the same distribution to be made of the estate upon the death of the life tenant as is made by the will, it is evident that the testator did not intend to leave the matter in doubt, and, consequently, he incorporated the provisions of the statute into the will itself, by making the distinct provision which he did as to the distribution, making the gift to the issue as a class under some circumstances, and under others to the issue in their representative capacity. When the testator desires the issue of his sisters to take in their representative capacity only, he is equally careful in the employment of his language. By the latter part of the ninth clause of his will in case of the death of Mary Hopeton Drake, without issue and without having made the appointment in said clause provided for, the testator gives the houses and lots devised to Mary Hopeton Drake during her life, to his sisters and to their heirs and assigns, from and after the death of Mary Hopeton Drake ; and in case of the death of any or either of his said sisters during the lifetime of Mary Hopeton Drake, leaving-lawful issue, then the said issue of each one so dying to take the share or part thereof which the parent of such issue -would have taken if she had survived. By this provision the testator evidently purposely excludes the possibility of the issue of his sisters taking this property as a class, restricting their right to take, to their representative capacity, making a marked distinction in the rights of the issue of his sisters in respecct to the property of which Mary Hopeton Drake was a life tenant from those which he had conferred upon such issue in respect to the property in which his sisters had a life estate.

Was this difference in these provisions accidental or was it made in pursuance of an intelligent intention ? We think that no one can read this will, evidently drawn with so much care, and come to any other conclusion than that this difference was the result of intelligent action. He meant that, although the issue of his sisters should not take in either case, their parents living, other than an expectant estate, their rights should be different, and he did not intend that there should be any .uncertainty as to how either his sisters or their issue should take when the estate should devolve upon them, and hence he used plain and unequivocal language to define their rights. And we think that the testator used equally apt words in that part of the ninth clause by which he confers the power of appointment upon Mary Hopeton Drake, the construction of which is the object of this action, and confusion only arises when we attempt to construe as a devise that which was not, and was not intended to be a devise, but was merely the conferring a power of appointment among a designated class.

The provision is as follows: In the case of the death of the said Mary Hopeton Drake, without leaving lawful issue surviving, at the time of her decease, then, and in such case, I give and devise to her full power and authority to devise or appoint by her last will and testament, or other instrument in writing executed by her in the manner hereinbefore mentioned, the said eleven dwelling-houses .and lots of land herein last above mentioned, and each and every of them, to all or any or either of my sisters, Susan Ann Drake, Sarah Ann Lawrence and Mary M. Keese, or to all or any or either of the lawful issue of my said sisters from and after the death of the said Mary Hopeton Drake, forever thereafter, and in such shares and proportions as she may think proper.”

The claim of the appellants is, and upon which is founded the whole of their argument, that, to quote the language used by them, “ the fact that, throughout the will, in the general limitations already referred to in the other clauses, as well as in the ninth clause substituting issue ’ in the place of parent,’ the testator has clearly manifested an intention to permit issue to take only by way of representation, and never concurrently with or to the exclusion of their living parent or ancestor.”

If there is one thing certain about this will it is that, in designating the class from which Mary Iiopeton Drake might select her appointee or appointees under the power conferred by the ninth clause, the doctrine of representation should not prevail, and that a child or children might be appointed to the exclusion of its or their parent.

In the other paragraphs of the will and the latter part of the ninth clause, where he desires children to take as representatives of their parents, the testator distinctly so directs, but in the part of the ninth clause under consideration the testator not only does not use any langugage such as he had previously used, and also subsequently employed, but distinctly states that the issue of his sisters may be appointed although his sisters may be living.

In the other parts of the will the issue of his sisters took nothing but an estate in expectancy until their parent’s death. In the clause in question, by the appointment of Mary Iiopeton Drake, the issue of the testator’s sisters could take under the appointment, such sisters being alive. This is distinctly what the testator says: Mary Iiopeton Drake may appoint to all or any or either of his sisters or to all or any or either of the lawful issue of his said sisters. The power to appoint to the lawful issue of his sisters is not dependent upon the death of any or all of the sisters, but may be made by the express language of the power to the issue, all the sisters being alive.

Upon this point there is no room for construction; it is plain that, in respect to this power of appointment, the testator did not wish the doctrine of representation to prevail. He had provided for it in the other portions of his will, but in the part under consideration it is apparent that he did not intend that a child should, in its candidacy for the favors of Mary Hopeton Drake, be dependent upon anything for success, but upon its own claims.

His omission of all clauses looking to representation, which he had so carefully inserted in the other parts of the will, and which he subsequently uses in the latter part of this very ninth clause, when providing for the contingency of Mary Hopeton Drake not exercising the power of appointment, shows that the failure to limit the power of appointment to issue only in the case of the parent’s death was no oversight, but was intended, and that the testator’s purpose was only to limit the power of Mary Iiopeton Drake to appoint to his sisters and their blood in the descending line, not in a representative capacity, but as a class, and that she might appoint to whom and to as many as she pleased within that class.

In the clause in question, the idea that the death of the parent should precede the possibility* of issue benefiting thereunder is conspicuously absent, whereas, in every other clause of the will, this provision is unnecessarily inserted where such results were expected to follow. Indeed, it is difficult to see how the testator could have shown more clearly than he has done that the doctrine of representation should have no application.

If it should be claimed that the provision in respect to the death of his sisters at the end of the ninth clause qualifies all the provisions of that clause, a simple inspection thereof shows that such claim is entirely without foundation. This provision relates exclusively to the devise over in case of failure to appoint, and cannot relate to the provisions conferring the power of appointment, because entirely disconnected therewith and hostile thereto.

The testator had completed his directions as to the power of appointment, and then proceeds to provide for the case of a failure to appoint; in which case, upon the death of Mary Iiopeton Drake, he gives the said eleven houses and lots to his sisters, and their heirs and assigns, and then adds the words, “ and in case of the death of any or either of my said sisters during the lifetime of the said Mary Iiopeton Drake (the life tenant), leaving lawful issue, and then in such case last mentioned the said issue of each one so dying shall take the share or part thereof which the parent of such issue would have taken, if she had survived; ” a provision utterly inapplicable to the provisions of the clause conferring the power of appointment, and evidently relating to the case of a failure to exercise this power.

It thus seems to us from the will itself that, in respect to the appointees under the power in question, the doctrine of representation was not intended by the testator to prevail; and this conclusion is greatly strengthened when we consider the surroundings of the testator and the objects he desired to attain. Mary Iiopeton Drake was, as has been already stated, believed by the testator’s relatives to be his illegitimate child. The testator had adopted her as his daughter, and she was not treated with the same cordiality by his sisters and their children as they manifested to each other. The testator was very fond of this child and such slights angered him, and upon one occasion he is reported to have said that he would make her a lady in spite of them, referring to his sisters and their children, and it was undoubtedly with a view of securing civility and kind treatment from his relatives that the testator limited the power of appointment in the manner he did. He intended to make it apparent to his sisters and their children that Mary Hopeton Drake could reward kindness and punish incivility, and hence her power of appointment was only limited to his sisters or their blood in the descending line.

At the time of the drawing of his will the three sisters of the testator were living, two of them having children and one having also a grandchild, and at the death of the testator, grandchildren. All the grades of issue were thus before the testator’s mind, and when he used the general words in the gift of the power without restriction, having previously, as well as subsequently, used the same words, accompanied by restrictions, it seems to us that we must inevitably conclude that he intended such general words to be used in their widest sense. There are other considerations which might be adverted to, to aid the construction adopted, but it does not seem to be necessary to refer to them, as it seems to be conclusively shown, by the very language used by him, that the testator did not intend that the issue of his sisters should take under the power of appointment by representation, as he had intended they should take where mentioned in the other portions of the will, and if he did not so intend, then such issue were a class from which appointees were to be selected under the power.

The judgment appealed from should be affirmed, with costs.

Barrett, J.:

I concur. This is a case where the legal meaning given to technical words corresponds with the testator’s intention. Those words were used advisedly to express that intention. The free use of the disjunctive in the same connection favors this view. The power was plainly to operate upon an area co-extensive with parents, children, grandchildren, etc., concurrently, in other words, upon the area of lawful issue in the full sense of descendants. And for this extensive and all-embracing power within the limits of the testator’s blood, there was, as clearly pointed out by the presiding justice, adequate reason as matter of fact.

Bartlett, J., concurred.

Judgment affirmed, with costs.