text:
    In the Matter of the Judicial Settlement of the Accounts of Emily C. Proctor, Administratrix, etc., of John Biden, Deceased. Eliza E. Smith and Another, as Executrices, etc., of Emma Biden, Deceased, Appellants; Emily C. Proctor, as Administratrix, etc., of John Biden, Deceased, Respondent.

      Will- — life interest in bonds — “premium,,’’ not covered, by “profits."

    The will of J ohn Biden gave to his wife during the period she should remain his widow “ the interest, income and profits of the sum of six thousand dollars, which interest or income shall be payable to her at the times the same accrues on the investment of said six thousand dollars.” In a subsequent provision of his will the testator directed as follows: “My executors shall keep invested safely and securely the said six thousand dollars in good approved securities as long as my wife shall be entitled to the interest thereof.”
    The executors invested the sum. in bonds which, upon the death of the wife, were sold at a considerable advance over the sum paid therefor, and this premium was claimed by her executors as assets of her estate.

      Held, that the words “interest, income and profits” were tautological, and that it was not the intention of the testator that an accretion to the fund resulting from natural causes should become a part of his wife’s estate;
    That under a proper construction of the clauses given above, the use of the word “profits” did not carry with it a premium, the amount of which was uncertain and materially dependent upon the length of time the widow lived.
    Appeal by the contestants, Eliza E. Smith and Maud Smith, as executors in England of the last will and testament of Emma Biden, deceased, from so much of a decree of the Surrogate’s Court of the county of Monroe, entered in the office of the surrogate of Monroe county on the 11th day of July, 1894, as disallowed their claim to a surplus of $1,620, resulting from a sale of certain bonds by Emily C. Proctor, as administratrix of John Biden, deceased.

      Waldo Q-. Morse, for the contestants, executors in England of Emma Biden, appellants.

      W. MarUn Jones, for Emily C. Proctor, administratrix of John Biden, respondent.
   Bradley, J.:

By his will, John Biden, deceased, gave to Emma Biden during the period she should remain his widow the interest, income and profits of the sum of six thousand dollars, which interest or income shall be payable to her at the times the same accrues on the investment of said six thousand dollars.”

The executors of his will invested such sum of $6,000 in Rochester city water bonds, upon which the widow received the interest up to January 1, 1894, at the rate of seven per cent per annum. She died February 11, 1894. At that time the bonds were worth a premium of twenty-seven per cent, and were afterwards sold by the administratrix with the will annexed for $7,620. The surrogate determined that the representatives of the widow deceased were not entitled to the premium received upon the sale of the bonds. From the portion of the decree to that effect this appeal is taken. They were allowed interest upon the bonds from January 1, 1894, to the time of her death. The controversy arises upon the use of the word profits,” the purpose intended by it in the connection in which it appears in the will and in its relation to the fund invested. The income of the fund evidently was intended for the beneficial enjoyment of Mrs. Biden while she should remain the widow of the testator. It is urged that something more was intended by the testator, and in support of that view reference' is made to the provision of the will that the “ interest or income shall be payable to her at the times the same accrues on the investment,” and to the fact that in such direction the word profits is omitted. There is, however, nothing in the purport of the will manifesting an intent that profits as distinguished from current income should become part of her estate after her death. The use of the expression interest or income instead of “ interest and income ” as first used in the will and the subsequent provision that my executors shall keep invested safely and securely the said six thousand dollars in good approved securities as long as my wife shall be entitled to the interest thereof ” tend to show that the terms interest and income are synonymously used, and that the design was that the product of the fund should and would be interest. And while the interest or income as well as increased value of the securities may be treated as profit, that term in common parlance is the pecuniary advantage resulting from dealing or trafficking in property. It is evident that the testator did not intend that the fund should be used in that way, because he directed that it should be invested in securities as long as Mrs. Biden should remain his widow and that his executors should “ have the care, custody and control of the same during that time.” Although on the termination of the legacy the testator bequeathed “ three-fourths of said six thousand dollars ” in one direction, and one-fourth of the same in another, this does not seem to have any significance on the question under consideration as the will contains a residuary clause.

It is very likely that no accretion to the fund was contemplated when the will was made. The purpose was the investment of it in interest-bearing securities. The interest would be a fixed rate upon a definite sum payable at some time in satisfaction of the obligation. The rate of interest on the bonds in question was so large, and the death of the legatee so long before their maturity that they then commanded a premium in the market. It had been higher and would continue to diminish until the value of the securities settled to par.

It could not be ascertained what, if any, the accretion would be until the termination of the widow’s relation as legatee. And it is difficult to see in the will any indication of a purpose that such increase in value to be ascertained after and as of the time of her decease, should be treated as profits and go to her personal representatives. The legacy in view by the testator was evidently intended for the use and enjoyment of the widow. It is not seen that by the terms of the will this accretion as of the time of the death of the widow was a situation or product contemplated by the testator or intended to be covered by the use of the word profits, nor does such seem to be the fair intendment of the words “ interest, income and profits,” applicable as they were to the investment of a fund in securities bearing a fixed rate of interest payable to the legatee as it accrued. The more reasonable view of the words of that expression is that they were tautological. And upon the question of their application to the increased value of the fund, this case comes within the principle of cases heretofore determined by the courts of this State. (Matter of Gerry, 103 N. Y. 445; Matter of Clark, 62 Hun, 275; Duclos v. Benner, Id. 428; 136 N. Y. 560; Cross v. L. I. L. & T. Co., 75 Hun, 533; Matter of Vedder, 42 N. Y. St. Repr. 300; S. C. sub. nom. Matter of Clark, 62 Hun, 275.)

If such had been the purpose of the testator he could by some expression to that effect in the will liave included a bequest of any increase in value of the capital which might arise from the investment.

But the principal sum of the bonds belonged to the estate of the testator, and thereás nothing in the will to take it out of the general rule on the subject that the increment from natural causes is regarded as a part of the capital or principal fund, and goes to the remainderman or residuary legatees.

The decree of the surrogate should be affirmed.

Dwight, P. J., and Lewis, J., concurred.

Decree of surrogate affirmed.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    In the Matter of the Probate of the Last Will and Testament of John Murphy, Deceased. James Horton and Others, Appellants; Patrick J. Cannon and Another, as Executors, etc., of John Murphy, Deceased, Respondents.

      Physicians — disclosure of professional information on the contest of a will — waiver — Code of Civil Procedure, § 836, as amended by chapter 295 of 1893.
    The purpose of the amendment, made by chapter 295 of the Laws of 1893, to section 836 of the Code of Civil Procedure was to open more widely the door to the introduction of the evidence of medical attendants upon a deceased person, when the validity of his will should be called in question.
    Before this amendment the right to waive the provisions of section 834 of said Code forbidding a physician or surgeon to disclose any information as to the mental or physical condition of a deceased patient which he acquired while attending the patient professionally was, in a contest relating to the validity of his will, confined to his executors, but it is now extended to the surviving husband, widow, or any heir at law, or any of the next of kin, or any other party in interest.
    Appeal by tbe contestants, James Horton and others, heirs at law and next of kin of John Murphy, deceased, from a decree of the Surrogate’s Coitrt of the county of Niagara, entered in said Surrogate’s Court on the 16th day of September, 1S93, admitting to probate a certain paper purporting to be the last will and testament of John Murphy, deceased.

      P. F. Kv>ig and ChaJles PRokey, for the appellants.

      F. J. Tct/ylor and John F. Powid, for the respondents.
   Bradley, J.:

On December 20, 1892, the decedent was a resident of the city of Lockport, N. Y. He had reached the age of eighty-seven years. Pie had become feeble and was confined to his bed. His property, mostly personal, amounted to about $25,000. He had been twice married and was a widower, and had no children living. He was survived by grandchildren, a sister and nephews and nieces. On the morning of that day his attendants, thinking he was in a dying condition, sent for the priest, who came, and after an interview with Murphy he went out and shortly after returned with a lawyer. The will was then drawn, persons were called to subscribe it as witnesses, and the will was executed. By it he gave to St. Patrick’s Roman Catholic Church of Lockport $1,000; to his nephew "William Murphy, $1,000; to his nephews and nieces James Horton, John Horton, Samuel Horton, Nicholas Horton, Sarah Horton and Ellen Horton $500 each; to his nephew James Kelly, a house and lot; to Luke Mullett about $2,500, by abatement of that amount of his bond and mortgage held by the decedent, and to the Right Rev. Stephen Y. Ryan, of Buffalo," N. Y., all the rest, residue and remainder of his estate, and he appointed Rev. Patrick J. Cannon, the priest before mentioned, and Michael Mullett, as executors of the will. It is urged on the part of the contestants: (1) That Murphy was incompetent to make a will; and (2) that it was the product of undue influence.

He had formerly been an active, vigorous man. But for about twelve years before his death he had been more slovenly in his personal habits and somewhat secluded. He had a severe sickness ■ about one year before his death, and afterwards, about three weeks before he died, he was by illness confined to his bed, and so continued until his death, December 28, 1892. There was much evidence given on the part of the contestants relating to his appearance, conduct and habits during the last year of his life, and to his appearance during his last illness, tending to prove his indifference to matters to which his attention was called, and a failure to recognize his intimate friends and acquaintances, and other circumstances bearing upon his apparent mental condition, from which the inference was permitted that at the time the will was made he was not capable of comprehending the condition of his property and his relations to those who might become the objects of his bounty, and the scope and bearing of the provisions of his will. His condition had become alarming to liis attendants when the priest was sent for. This was done without his knowledge. The priest came and after remaining alone with Murphy for some time departed and soon after returned with a lawyer, by whom the will was drawn in the presence only of the priest and the decedent. Then the subscribing witnesses were called in and the will was in due form executed. In view of these facts and of the provisions of the will it is urged, in addition to the charge of mental incompetency of Murphy, that it was the result of undue influence upon him.

The evidence of what took place relating to the will before and at the time it was drawn is in the evidence of the priest only, and is to the effect that Murphy requested him to draw his will. He declined, saying he would get a lawyer. He did so, ..and-when he returned with the lawyer the priest suggested to Murphy that it would be proper for him to leave something to the church, and the latter concluded to give $1,000 to it. Thereupon, inquiring to whom he wished to leave other portions of his property, he proceeded to give the' names of those to whom specific legacies were given. Then, being asked what he wanted to do with the rest of his estate, lie said to the priest, “ Take it and do what you like with it,” that “ he didn’t know what he would do with it.” .The priest said that would not do, he did not want it, and finally suggested that he could leave it to the bishop, to which he consented, and the residuary clause to that effect was added.. The evidence of the priest is to the effect that the provisions of the will were the result of voluntary action and direction of Murphy; that he expressed a desire to give the residue of his estate to some charitable purpose, and on the suggestion of the priest, who advised him that it was probably too late for that, in view of the short time he might live, he made the bishop, with whom he had no personal acquaintance, the residuary legatee.

His securities and money, which constituted the most of his estate, were by his direction handed over to and taken by the priest into his possession shortly after the will was executed. And there is some evidence of Murphy’s subsequent declarations in recognition of the will and tending to indicate his understanding of its provisions. The fact that none of his four grandchildren had any consideration by his will may not be so remarkable as it would seem if his relations with them had been intimate. They were the children of the issue of his first marriage in Canada. He there separated from his wife and came into this State, and never after cohabited with her, nor, so far as appears, did he have any communication with her or with the child or grandchildren. He for some time prior to his last sickness had been very penurious in his habits, so much so that he had denied to himself the comforts of life, although he had money and available productive securities. At the time he made the will, he evidently was very sick. He previously and on that day suffered much pain. And it may be that he had then become satisfied or apprehensive that his continued life would be brief. This may account somewhat for his willingness or desire that his assets be taken by the priest into his possession.

It does not appear that he had ever before made any will or expressed any desire about the ultimate disposition or distribution of his property. And it may be that, but for the suggestion then made to him upon the subject, no will would have been executed. It is also urged as improbable that Murphy intelligently placed in the priest the confidence indicated by the will, and by handing the property over to him, because, as there is evidence tending to prove, Murphy had not for some years manifested any interest in the church, and had spoken of the priest in terms harsh and derogatory. The significance of his remarks referred to is dependent upon the circumstances under which they were made, and which do not very clearly appear. Upon the evidence as a whole, the question was one of fact whether the will as made expressed the intelligent and voluntary purpose of the deceased.

On the part of the contestants, Thomas B. Cosford, a practicing physician and surgeon of some years’ experience, was called as a witness, and testified that he professionally attended Murphy from the 8th day of December, 1892, until his death. Thereupon the heirs and next of kin of the decedent waived the provisions of section 83é of the Code of Civil Procedure so far as they were applicable to the witness, and offered to prove by him that, from the time he commenced attending him on December 8, 1892, to the time of his death on the twenty-eighth of that month, he was continuously delirious, and of unsound mind and incompetent to make a will. The evidence so offered was excluded upon the objection of the proponents, who were the persons named as executors in the will, and exception was taken.

Prior to the amendment in 1893, of section 836 of the Code, the objection would have been well taken. (Reniham, v. Dennin, 103 N. Y. 573; Matter of Colemam, 111 id. 220.)

The amendment took effect fifteen days before the evidence was offered, and, as amended, the section contains the following provisions : “ But a physician or surgeon may, upon a trial or examination, disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, when the provisions of section 831 have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question by the executor or executors named in said will, or the surviving husband, widow, or cmy heir at law or cmy of the next of him, of such deceased, or cmy other party in interest.” (Code Civ. Proc. § 836, as amended by chap. 295 of 1893.)

The amendment of 1893 had relation only to such waiver when the validity of the last will and testament of a decedent is in question. Before then, in such case, the right o'f waiver was solely with the executors named in the will. It is now urged on the part of the proponents that it was the legislative intent that all persons coming within the relations there mentioned should unite to create the waiver, and, therefore, the word “or” should be treated as “and”, for the purposes of the interpretation of the amendment. It cannot reasonably be so construed. The purpose of the amendment evidently was to open more widely the door to the introduction of the evidence of medical attendants of a deceased patient when the validity of his will should be in question. The right of waiver was, therefore, extended to others having the relations mentioned to the deceased, and to those having the legal relation of parties in interest, and who are properly in the action or proceeding in which the question arises before the court. There is no question of public jiolicy, recognized at common law, involved. The restriction, so far as it exists in such case, is statutory only. (1 Greenl. on Ev. § 248; Rex v. Gibbons, 1 C. & P. 97.)

It follows that the exclusion of the evidence of the doctor thus offered was error. And as the contestants may have been prejudiced by its exclusion the decree of the Surrogate’s Oourt must be reversed and a new trial granted, with costs of this appeal payable out of the estate to abide the event. And as the evidence presents questions of fact such new trial should be had at the Circuit Court of Niagara county of the questions: First. Did the decedent John Murphy at the time of the execution of the will on the 20th day of December, 1892, have testamentary capacity ?

Second. Was the instrument purporting to be the last will and testament of the decedent voluntarily made by him %

Third. Was the execution by the said decedent of the instrument purporting to be his last will and testament of date December 20, 1892, procured by fraud, circumvention or undue influence practiced upon him ?

Dwight, P. J., and Lewis, J., concurred.

Decree of the Surrogate’s Court reversed and trial of issues of fact at the Circuit Court of Niagara county ordered as stated in opinion.


author: Ward, J.:

text:
    In the Matter of the Probate of the Last Will and Testament of Volkert Hardenburg, Deceased. Jacob Hardenburg and Another, the Executors Named in the Alleged Last Will and Testament of Volkert Hardenburg, Deceased, and Another, Appellants; Jane Ann Munger and Others, Respondents.

      Interlineation in a will before its execution — evidence of its publication by the subscribing witnesses — declaration in words, unnecessary — request to witnesses to sign —power of the General Term on appeal.

    A change interlined in a last will and testament before the execution thereof is valid.
    The failure of one of the witnesses to a codicil to remember what was said in regard to the same, as fully as the other witness who drew the codicil, does not disprove the facts testified in regard thereto hy such other witness, and while section 2618 of the Code of Civil Procedure requires that at least two of the subscribing witnesses shall be produced and examined, it is not necessary in order to obtain the proof of the will or codicil that both witnesses shall state all the material facts required by the statute.
    The fact that a testator was fully apprised of the testamentary character of the instrument sought to be probated as a codicil to his last will and testament, may be considered in aid of the proofs tending to establish the publication thereof. Any act of a testator, in the presence of the witnesses, at the time of the execution of his will, which tends to show that he desired to publish the paper as his will and that he wished the witnesses to execute it may be considered.
    Although a testator did not in words declare an instrument to be his last will and testament, if it is clear that he treated it as such and intended the witnesses to understand it to he such, it is equivalent to such a declaration and is sufficient to satisfy the requirements of the statute upon the subject; the statute does not necessarily contemplate such a declaration in words in order to render the instrument valid as a will.
    'The request to the witnesses to sign is sufficient if made by a person superintending the execution of the will in the hearing of the testator and with his silent permission and approval.
    Although section 2622 of the Code of Civil Procedure imposes upon the surro--, gate the duty of being “satisfied of the genuineness of the will and the validity of its execution ” oifered before him for probate, still he must be so satisfied when the proof, taken together, establishes what the statute requires, and the General Term of the Supreme Court has the power, under section 2586 of the Code of Civil Procedure, to decide the question of fact which the surrogate had before him upon proceedings taken for the probate of a will; and where there is no substantial conflict in the evidence as to the fact of the execution of the will, the General Term will, upon an appeal from the decree of a surrogate revoking the probate of a will, direct that the original probate he confirmed.
    Appeal by Jacob Hardenburg and another, the executors named in the alleged last will and testament of Yollcert Hardenburg, deceased, and another, from a decree of the Surrogate’s Court of the county of Chautauqua, entered in the Chautauqua County Surrogate’s Court on the 20th day of June, 1893, revoking the probate of an alleged codicil to the last will and testament of Yolkert Hardenburg, deceased. '

      A. -8. Otta/wa/y, for the appellants.

      H. O. Kingsbury, for the respondents.
   Ward, J.:

Yolkert Hardenburg of the town of Westfield in Chautauqua county died on the loth day of March, 1892, leaving a last will and testament in which he made various bequests to his wife, his three sons and a daughter, Jane N. Munger, and other relatives. Before executing his will, and on the 22d of January, 1892, in the forenoon, he sent for Ralph A. Hall, a friend of his and a banker, and stated to him that he desired him to prepare a will, and gave directions as to its contents, of which Mr. Hall made a memorandum. Hall drew the will as he understood the directions, and in the after-' noon presented it to the deceased, read it over to him, and when he reached the tenth clause of the will as written, which was as follows : “ All the residue of my estate, both real and personal, I desire to be divided among my children, that may be living at the time of my death, to share and share alike therein,” the testator, who perfectly understood the paper, said that he desired to change that clause; that he meant to be understood to mean his living sons,instead of his living children. Hall made the desired change in the presence of the testator, but instead of changing it in the tenth clause, he appended what he called a codicil, so that the paper when it was ready for signatures, and when it was signed appeared as follows:

“ In witness whereof I have signed and sealed, published and declared this instrument as my will at Portland, Chautauqua county, N. Y., on this twenty-second day of January, one thousand eight hundred and ninety-two.
his « -o a it YOLKERT X HARDENBURG. JlvALPH .A.. JÍALLj mark [l. s.]
“ Witness to mark.
“The said Yolkert Hardenburg at Portland, Chautauqua county, N. Y., on the twenty-second of January, 1892, signed and sealed this instrument and published and declared the same as his last will, and we, at his request, and in his presence, and in the presence of each other have hereunto written our names as subscribing witnesses.
“RALPH A. HALL, Brocton, N. Y.
“ J. FRANK SCOTT, Portland, N. Y.
“ Codicil.
“ In the tenth section of this, my last will, I desire it should read,
‘ All of the residue of my estate, both real and personal, I desire to be divided among my living sons at the time of my death.’ Anything in this will to the contrary notwithstanding.
“ Dated at Portland, N. Y., Jamoa/ry 22d, 1892.
his
“.YOLKEET X HARDENBURG. [l. s.]
mark
“RALPH Á. HALL, Brocton, N. Y.
“ J. FRANK SCOTT, Portland, N. Y.”

Before any of the signatures were attached the scrivener asked the deceased whom he wished for the other witness to the will, and he said, Mr. J. Frank Scott, who lived across the road from the deceased and was well acquainted with him. Scott immediately came. Hall testified that the “ codicil ” was written in the presence of the testator and, as he thinks, after Scott arrived. Scott testified that he thought Mr. Hall had just finished writing it after he had stepped into the room, but he heard Hall mention the word codicil; that Hall said he had drawn the will with a typewriter and the deceased wanted to make a change, so he had added a codicil with a pen. The attesting clause was read over by the scrivener in the presence of the deceased and Scott. Hall asked the deceased to sign the will, and he said he could not see very well, and asked Hall to sign it for him and witness it. Hall asked deceased in the presence of Scott if that (referring to the paper) was his last will and testament, and he said it was. He then asked the deceased the same question about the “ codicil.” Hall testified: “ I asked him (deceased) if the codicil as I read it to him was as he wanted it, and he said it was. I asked him if he declared that to be his last will and testament and he said he did. We (Scott and Hall) witnessed it. He asked us to witness it for him, both instruments. I asked him in reference to both instruments. We both subscribed our names as witnesses to both the will and the codicil in his presence and in the presence of each other. At the time of the execution of this will and codicil I considered him of sound mind and memory, and of full age. He was upwards of ninety. He did not appear to be under any restraint.”

Tlie witness again says: “ I asked him (the deceased) if it was his last will- and testament. Also the codicil. I think I might have said this instrument is your last will and testament, also the codicil. I signed it as a witness. Mr. Scott signed it as a witness, both in the body of the will and the c codicil ’ at that time. Both instruments were executed in my presence and Mr. Scott’s presence, and in the presence of Mr. Hardenburg, and signed by both of us at that 'time. 'x' * * I say distinctly, call his attention to the will and the ‘ codicil’ both at the one time. They were both signed right along in connection.”

Witness Scott says: “I went in there where Mr. Hardenburg and Mr. Hall were. They had this jjaper there at that time. Mr. Yolkert Hardenburg signed this paper there at that time in my presence. That is, he signed the mark, the cross, in my presence and in the presence of Mr. Hall. He signed the will there. Mr. Hall asked him if this instrument was his last will and testament, and he said it was. Fie asked me to sign as a witness, lie also signed the codicil in my presence and in the presence of Mr. Hall. Mr. Hall did not say anything about that. Mr. Hall said that he had written it with a typewriter, and he wanted to make a little change and he added it with a pen, so we would have, to sign in two places and Mr: Hardenburg put his hand on the pen, and Mr. Hall wrote his name in both places. Both signatures were made at the same time if I remember right, and after that he declared it to be his last will and testament. * * * I signed in both places, same as Mr.- Hardenburg did. That’s my signature and that is my signature, both places. At that time he appeared to be of sound mind and memory, of full age and under no restraints.”

No other witnesses were examined except the subscribing witnesses, Hall and Scott.

The three persons were alone in the room; the evidence is that the testator fully understood, as did the witnesses, the whole transaction. While he was somewhat deaf, and it was difficult for him to see, he was made to understand, and did understand, all that occurred. He knew that the “ codicil ” simply carried out his instructions as to the change in the tenth clause, and that that was the purpose of the “codicil” was fully understood by the witnesses.

The will and “ codicil ” were admitted to probate by the surrogate by tlie consent of all the parties interested in the will on the 11th ■of April, 1892. In July afterwards the daughter, who had consented to the probate, filed a petition for the revocation of the probate of the will, and such proceedings were had thereon that in June, 1893, the surrogate decreed that the probate of the codicil should be revoked, and that the probate of the other portion of the will sustained, so that the will, by his decree, is valid, all except the alteration by the codicil.

The evidence above referred to was given upon the proceedings to revoke, and the surrogate based his conclusion upon what he claimed a want of evidence to show a due publication of the “ codicil.”

In the findings which he makes and that appear in the case before us (being Nos. 11 to 15 inclusive), he finds that the deceased, in the presence of Hall and Scott, signed the will produced in evidence by making his mark. That in the same presence he signed the “ codicil ” of the will by making his mark. That he told Hall that he could not see very well, and asked him to write his (the deceased’s) name. That Hall, in the presence of the deceased and Scott, signed the name of the deceased to the will and “ codicil ” at the places where the deceased had made his mark to the will and codicil.” That Hall, in the presence of Scott, asked the deceased if that was his last will and testament, and the deceased said it was. That Hall wrote the “ codicil ” in the presence of the deceased. That deceased told Hall that he desired to-change the tenth clause so that it should read the living sons,” instead of the living children.” And he also found the facts as to preparing the will and its being read over to the deceased as above stated. The surrogate refused to find that the deceased requested the witnesses to execute the codicil ” as witnesses, or that he declared the “ codicil ” to be his last will and testament, and for the want of the proof, as the surrogate claims, he rejected the codicil.”

A careful examination of the evidence taken before the surrogate, together with the findings which he makes, leaves it clearly established that the statutory requirements in the execution of the will were complied with in substance and effect. There was no evidence to show that the testator was under restraint, or w;as in any manner influenced in making the will, or that he had not sufficient mind to make a valid will. While the paper is apparently divided in the will and “ codicil,” it was really all one paper, executed at the same time, and to be taken together as one transaction.

The purpose of the “ codicil ” is undisputed. It was simply to correct the tenth clause of the will. This might have been done by interlining the change of “ living sons ” for “ living children,” and if done before execution, would have been valid. (Matter of Tonnele, 5 N. Y. Leg. Obs. 254.)

The scrivener, however, thought he must make this change in a separate instrument, which he did and called it a “codicil.” It referred to the change made in the principal paper, and, but for the requirement of the statute that the testator should sign at the end of the will, would have been a valid portion thereof, the same as if written in the tenth clause itself.

It was not, therefore, in a proper sense, a “ codicil,” but the statutory exaction was avoided by the testator and the witnesses signing at the end of this paper as well as the other, and the reading of the attestation clause in the presence of the witnesses. And the declaration of the deceased, after he had executed the paper by signing his name twice, that it was his last will and testament, and his request to the witnesses to sign it, was a declaration as to the whole instrument and also a request as to the same, as it was all one transaction, and, therefore, it was unnecessary to make a special declaration as to each signature, although the testimony is that that was done. The failure of the witness Scott to remember as fully what was said in regard to the “ codicil ” as Hall, who drew the paper, does not disprove the fact testified to by him. (Rugg v. Rrugg, 83 N. Y. 592.)

And while the Code (§ 2618) requires that at least two of the subscribing witnesses shall be produced and examined, yet it is not necessary that both witnesses should state all the material facts required by the statute. (In re Graham’s Will, 9 N. Y. Supp. 122, and cases there cited.)

The fact that the testator was fully apprised of the testamentary character of the instrument may'be considered in aid of proofs tending to establish the publication. (Gilbert v. Knox, 52 N. Y. 125.)

The testator not only understood this, but the witnesses did at-the time of the publication, and that the object of the “codicil” was to effect the change desired by the deceased in the instrument.

Any act of a testator in the presence of the witnesses at the time of the execution of the will, that tends to show that he desires to publish the paper as his will, and that he wishes the witnesses to execute it, may be considered, and In re Perego’s Will (20 N. Y. Supp. 394) Judge Dwight says: “A man is not to be denied the right to make a testamentary disposition of his property on account of defect of speech and hearing, and a deaf and dumb man may make a will if only the formalities prescribed by the statute are observed in their spirit and intent in such manner as is practicable under the condition existing.” And in Thompson v. Seastedt (6 T. & C. 80; affd. in Court of Appeals, sub. nom. Thompson v. Stevens, 62 N. Y. 634) Judge Daniels says: “Although she (testatrix) did not, according to the testimony which was given, in words declare the instrument to be her will, it is clear that she treated it and designed the witnesses to understand it to he such. That was equivalent to such a declaration, and sufficient to satisfy the requirement of the statute upon the subject; for that does not, necessarily, contemplate such a declaration in words, in order to render the instrument valid as a will.”

This doctrine is sustained in a long line of cases under many different circumstances, some of which are as follows: Lane v. Lane (95 N. Y. 494); Reeve v. Crosby (3 Redf. Surr. 74); In the Matter of the Revocation of the Probate of the Last Will and Testament of Ann Voorhis, Deceased (125 N. Y. 765); Darling v. Arthur (22 Hun, 84); Matter of Cottrell (95 N. Y. 329); Rugg v. Rugg (supra); Matter of the Will of Bernsee (141 N. Y. 389); Matter of Hunt (110 id. 278); and in that case, at page 281, the court says : “ This will must have been presented to the witnesses by the testator for them to sign, and such an act was equivalent to a communication by him that he intended to give effect to the paper as his will. If the paper was signed in the presence of the witnesses the act was a sufficient compliance with the statute as to acknowledgment of the subscription.”

The request to sign is sufficient if made by the person superintending the execution of the will in the hearing of the testator and with his silent permission and approval. (Matter of Nelson, 141 N. Y. 157, and cases cited.)

The effect of the surrogate’s action in striking out the codicil is to defeat the purpose and intention of the testator, establish a will not made by the testator, and it should not be permitted. The proof before the surrogate required him to admit this will to probate as an entirety, and while the Code (§ 2622) imposes upon the surrogate the duty of being “ satisfied of the genuineness of the will and the validity of its execution,” still he must be so satisfied when the proof, taken together, establishes what the statute requires, and this court has the power, under section 2586, to decide the question of fact which the surrogate had before him. There being no substantial conflict in the evidence as to the fact of the execution of this will this court should direct that the original probate of this will should be confirmed. (In re Rapplee's Will, 21 N. Y. Supp. 801; Matter of Hunt, 110 N. Y. 278.)

The decree of the surrogate of Chautauqua county, appealed from, should be reversed, and the original probate of this will and “ codicil ” confirmed, with costs to the appellants payable out of the property of the deceased.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Decree of surrogate reversed and the original probate of will and codicil confirmed, with costs to the appellants payable out of the estate.


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    Emma C. Lee, Respondent, v. Emeline Lee, as Administratrix, etc., of John J. S. Lee, Deceased, Appellant.

      Disputed claim — power to amend on a statutory reference— Code of Civil Procedure, §§ 723, 2718.
    Prior to the amendment of section 2718 of the Code of Civil Procedure, by chapter 686 of the Laws of 1893, a referee had no power to allow an amendment to a claim against the estate of a decedent which had been disputed and referred under the statute.
    The effect of the amendment of 1893 was to make the proceeding, from the time of the entry of the order of reference, an action in its entirety, bringing it within the provision of section 723 of the Code, which gives the court power, at any stage of the action, to amend any pleading in furtherance of justice.
    The power to amend a claim against the estate of a decedent should, however, be exercised with caution.

      A claim was presented, against an estate covering a period from 1882 to 1890, on the hearing of which' before the referee the administratrix was allowed to make proof of payments made by the intestate to the claimant in 1878, 1880 and 1881.

      Meld, that it was proper to allow an amendment under which the claimant might prove that during- these years the intestate had received from her property other than that comprised in the original claim.
    Appeal by the defendant, Emeline Lee, as administratrix, etc., of John J. S. Lee, deceased, from an order of tbe Supreme Court, made at the Allegany Special Term and entered in the office of the clerk of the county of Allegany on the 16th day of January, 1895, pemiitting the plaintiff to amend or supplement her claim theretofore filed with said administratrix against the estate of said decedent.

      Rufus Scott, for the appellant.

      Olcvrence A. Farmtm, for the respondent.
   Bradley, J.:

The claim, as presented by the plaintiff to the defendant against the estate of her intestate, and referred with approval of the surrogate, purported to have arisen during the period from 1882 to 1890, both inclusive. The reference was perfected June 12, 1893. On the hearing the defendant gave proof of payments of money made by her intestate to the plaintiff prior to 1882, and in the years 1878, 1880 and 1881. Thereupon the plaintiff sought to prove that during those years the defendant’s intestate had received from her other property than that included in the claim so presented. The evidence was excluded, and application then made to the referee by the plaintiff for leave to amend her statement of claim was denied, for the asserted reason of want of power. Thereupon the motion was made to the court, and the order appealed from granted, permitting the plaintiff to do so. Prior to June, 1893, such an amendment was -not permissible. (Eldred v. Eames, 115 N. Y. 401; Von Hermanni v. Wagner, 81 Hun, 431.)

The statute as amended that year (Chap. 686 of 1893) provides that on entry of the order of reference in such a case the proceeding becomes an action in the Supreme Court, and that the referee has the same powers as if the reference had been made in an action in which the court might by law direct a reference. (Code Civ. Proc. § 2718.) This provision of the statute had become operative at the time the defendant made her agreement to refer.

In its application to a case of this character tbe statute has extended the definition which was before given of an action. (Id. § 3333.) And it is brought within the provision that the court may, at any stage of it, before or after judgment, in furtherance of justice, amend any pleading or other proceeding by inserting any allegation material to the case. (Id. § 723.)

Since this is made an action it comes within and subject to the rules of practice applicable to actions for all purposes consistent with its nature.

The method of instituting it remains as before. The reference by the approval of the surrogate is made upon the agreement in writing of the creditor and the personal representatives of the decedent, founded upon the presentation verified of the claim, and the doubt entertained by the latter of its justice. There is some reason for the supposition that it may not have been contemplated when the statute was amended that the representatives in this form of proceeding would be required to contest any claim other than that which should, preliminarily to the reference, be verified and presented as prescribed by the statute.

While there may be reasons for caution in allowing amendment of claims in such cases and why it should be done only when essential to the promotion of justice, the statute does not deny to the court the power to permit amendment as of pleadings and proceedings in actions.

The main purpose of the amendment sought in the present case as indicated by the appeal book is to enable the plaintiff to support the claim which was referred, by proving that the moneys, which the defendant seeks to prove were paid by her intestate to the plaintiff, were moneys due to her from him for and on account of transactions prior to 1882, and, therefore, were not properly applicable to her claim as presented, which commenced with that year.

It is urged on the part of the defendant that, inasmuch as the statute provides that oh the entry of the order of reference the proceeding shall become an action, the proceedings subsequent to that time only can be treated as in an action. We think that the entry of the order was intended as the event upon which the proceeding in its entirety should become an action. Such is the fair import of the provisions of the statute. And, as the consequence, the provision of section 416, that a civil action is commenced by the service of a summons, is, by the amendment in question, qualified by the exception thus created. This must he treated as an action, and, as such, consequently, its proceedings are subject to the exercise of the power of the court as they are in other actions which have been referred to a referee for trial. (Adams v. Olin, 78 Hun, 309; Hustis v. Aldridge, 144 N. Y. 508.)

The refusal of the referee to permit the plaintiff to amend, for the asserted reason of want of power, was not necessarily in the way of an effectual application to the court for the amendment. Nor did the fact that the action was referred deny to the court the power to g’rant the application to amend.

In view of the ultimate purpose, as above indicated, of the amendment sought by the plaintiff, the allowance of it was not unreasonable or unjustly prejudicial to the defendant.

The order should be affirmed, without costs.

Lewis and AYard, JJ., concurred.

Order affirmed, without costs.


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    John Van Voorhis, Respondent, v. Hawley E. Webster and Others, Defendants; Charles E. Bostwick, as Receiver of the firm of H. E. Webster & Co., Appellant.

      Assignment by a pa/rtner of Ms interest in the firm — right of a special pa/rtner to compel an accounting — attachment..
    The assignment by members of a co-partnership of their interest in the firm and in its assets is necessarily subject to all the firm debts, and can result in nothing unless a surplus remains after all such debts are paid.
    The partnership business of a limited partnership can properly be conducted by ■ the general partners only, and although the special partner cannot, without becoming a general partner, participate in the conduct of the business, he has an interest in the partnership property and business, and for that purpose and in order to compel the general partners to account he has, as between them, the same rights that they have.
    "When an attachment, granted on the ground that the defendants have disposed of their interest in firm property with intent to defraud their creditors, should be vacated.

      Appeal by Charles E. Bostwiclc, as receiver of the firm of H. E. Webster & Co., from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 21st day of November, 1894, denying the appellant’s motion to vacate an attachment obtained by the plaintiff.

      Arthur /Sutherland, for the appellant.

      John Ya/n Yoorhis, for the respondent.
   Bradley, J.:

The defendant Hawley E. Webster, by means of false representations, obtained of the plaintiff $500 on the credit of his firm of H. E. Webster & Co. Afterwards, on September 27, 1894, this action was commenced, and the warrant of attachment issued therein was levied upon partnership property of the defendants composing such firm. On the following day, in an action for the, dissolution of the firm, etc., Charles E. Bostwick was appointed receiver of the partnership assets, and his motion to vacate the attachment was shortly thereafter made.

The grounds recited in the attachment are that the defendants have disposed of, and are about disposing of, their property with intent to defraud their creditors, and that they are secreting themselves and keeping themselves concealed to avoid the service of a summons.

The motion to vacate the attachment was made not only upon the papers on which it was allowed, but also upon other affidavits and papers. The latter ground so recited in the attachment was unsupported by the affidavits. The defendants did not seek to keep themselves concealed, and there was nothing in the affidavits tending to indicate that any of the defendants other than Hawley E. Webster sought to do so. (Bogart v. Dart, 25 Hun, 395.) And as to him the charge is not well sustained. The question is whether or not the attachment is supported on the ground that the defendants had assigned or disposed of their property with intent to defraud their creditors or were about to do so with such intent.

The defendant II. E. Webster, having the office of postmaster at Brockport, N. Y., had appropriated to his own use government funds derived from the business of the post office to the amount of about $2,000. He was unable to pay it. The persons who were his sureties paid the amount. Thereupon he and his wife, Ella A. Webster, individually and as members of the firm of H. E. Webster & Co., sold and transferred to them all their right, title and interest in the partnership, together with their interest in the accounts, notes, claims and demands belonging to the partnership, including the lease of the coal yard. They also conveyed to the same persons a farm of sixty acres. Mrs. Webster conveyed to them the premises on which the coal yard was located and the lot on which she and her husband resided, and Mr. Webster transferred to them his horses, wagons, harnesses, etc. These conveyances, sales and transfers were made to secure and indemnify these persons on account of the liability they had assumed as sureties in the execution of Webster’s official bond as postmaster. The support of the attachment is dependent upon the fact that such sales and ti-ansfers were to some extent fraudulent as against the creditors of the firm. The articles import a limited partnership of which the defendant Brown was a special partner. The case as presented here does not show that all was done which was requisite to constitute her a special partner within the statute. (1 R. S. 761, 765.)

But by the articles of co-partnership it was provided that she should as a special partner furnish $6,000, that Ella A. Webster should contribute to the capital stock of the firm the use of the coal yard, office and appurtenances, and that Mr. Webster should “ furnish for the use of said co-partnership during its continuance all necessary teams, wagons, sleighs and tools necessary to use in conducting the said business. (The teams, wagons, etc., now owned by said Hawley E. Webster being estimated to be worth $1,200.)” The prescribed time of its continuance was until April 30, 1896. The title to the premises constituting the coal yard was in Mrs. Webster, and the title to the teams, wagons, sleighs and tools seems to have remained in Mr.'Webster while they were in the use and service of the firm. By transferring her right as lessor in the lease given to the firm and the’ coal yard premises Mrs. Webster transferred only her individual property, and by transferring the horses, wagons, etc., Mi’. Webster sold no partnership property. And the assignment of their interest in the firm and in its assets by Mr. and Mrs. Webster was necessarily subject to all its debts, and could result in nothing unless a surplus remained after all such debts were paid. (Hayes v. Reese, 34 Barb. 151; Mowbray v. Lawrence, 22 How. Pr. 107.)

It is Airged on the part of the plaintiff that the sale by Hawley E. Webster of the horses, wagons, sleighs and harnesses in the use of the linn Avas a sale of the partnership property. The fair ‘construction of the terms of the articles of co-partnership does not seem to characterize that as firm property. Webster did not agree to furnish any particular horses, wagons, etc., for the use of the firm, although he contemplated applying those he had on hand to such use. He merely undertook to furnish for the use of the firm all teams, wagons, sleighs and tools necessary to use in conducting the business. This was his contract. It Avas a mere matter of undertaking on his part. He might at his pleasure without breach take any of these things out of the business and put in others suitable for the service. The title remained in him. Tie might also perform his undertaking by furnishing for such use teams and tools belonging to others and hired by him for the service. In transferring the horses, etc., Webster sold no property belonging to the firm.

It is urged on the ¡Dart of the plaintiff that the use of the firm name in making transfer of the partnership property was unnecessary, and that the sale by Mr. and Mrs. Webster, who were the general partners, of their interest in the partnership property apparently carried the title to the property of the firm. That proposition is not deemed sound. Treating this as a limited partnership and the defendant Brown as a special partner, and not a general partner (which cannot Avell be done as against creditors), the partnership business could properly be conducted by the general partners only, and although the special partner could not, without becoming a general partner, participate in the conduct of the business, she had an interest in the partnership property and business, and for that purpose and to compel the general partners to account she had, as betAveen them, the same rights they had. (1 R. S. 766, § 18; Fifth Avenue Bank v. Colgate, 120 N. Y. 381; Continental N. Bank v. Strauss, 137 id. 148.)

They, by the articles of co-partnership, adopted the firm name of H. E. Webster & Co.,' as that by which the partnership contacts could be made in the business by one or more and less than all of the partners. As has been suggested, the defendant Brown had a due proportionate interest with the others in the partnership property. The transfer made by the other members did not purport to, nor did it, include anything more than their interest in it. Those two could do no more than that without using the firm name in making a transfer. (National Bank of Salem v. Thomas, 47 N. Y. 15, 19.)

It is not seen that Mr. and Mrs. Webster attempted to dispose of the property of the partnership for the purpose of securing or discharging his individual liability. But it does appear that there was a consideration for the transfer which' he made and procured his wife to make in his behalf. There is no reasonable opportunity for imputation that in its purpose it was done with intent to defraud the creditors of the firm.

And as they disposed of no partnership property for his individual purposes, there seems to be no support for tbe attachment.

The order appealed from should be reversed and the motion granted. ■

Dwight, P. J., and Lewis, L, concurred.

Order reversed and motion granted, with ten dollars costs and disbursements.


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    Falding W. Skinner, Respondent, v. Frederick Odenbach, Appellant.

      Sjjectment — judicial notice of error -in courses and distances — monuments — decla/rations of occupants.

    It is a matter of common observation and experience that courses and distances, as represented by the early surveys in our forests, are not entirely correct, and that the monuments of such surveys, when found and well identified, are much more reliable and satisfactory.
    It is not error, upon the trial of an action in ejectment, to prove the declarations of occupants, made upon the premises, in pointing out a boundary line, the effect of such evidence being only to show the extent of their possession and constituting no proof of title except suchas might be inferred from occupancy.
    Appeal by the defendant, Frederick Odenbach, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 3d day of May, 1894, upon the report of a referee.

      Edward Harris, for the appellant.

      John Van Voorhis, for the respondent.
   Bradley, J.:

The action is ejectment brought to recover an undivided two-fifths of a parcel of land in the town of Greece, county of Monroe.

In 1803 township No. 2, short range, west of Genesee river, consisting of upwards of 22,000 acres and owned by Sir "William Pulteney and others, was by survey, made by "William Shepard, divided into lots numbered from 1 to 62 inclusive. This division was represented hy a map made hy Shepard. And by a partition deed, made by the owners of the land in 1801, lot No. 51 was set off to Benjamin Crosby, and lot No. 62 to Joseph Annin. It may be assumed that the survey and map were made in contemplation of the partition, which, as appears by the deed, was made according to them. That township then was comprised in that portion of the territory of the county of Genesee which afterwards was included in the town of Greece, county of Moni’oe.

Through mesne conveyances from Crosby title came to John Berger in 1851 of that part of lot'51 lying between Braddock’s bay and Lake Ontario. In 1872 Berger made a contract of sale of it to Adelia Skinner, wife of Roswell "W. Skinner. She died before performance of the contract, and afterwards, in N ovember, 1875, Berger conveyed the land to those who were the heirs of the vendee, of whom the plaintiff was one.

The finding of the referee that the land in question was within that so conveyed, necessarily resulted in his conclusion that the plaintiff was entitled to recover.

The contention of the defense is that the land in the possession of the defendant is in lot No. 62. And, in view of the fact as found by the referee, and of the exception to such finding and to his refusal to find to the contrary, the only question on this review for consideration on the merits is whether or not the conclusion that the premises in controversy are in lot No. 51 was fairly supported by the evidence. The eastern and northeastern boundary of botli those lots is Lake Ontario. They join, and 62 is north of 51. The southeasterly corner of the latter is not questioned, and its shore or easterly line is described in the survey of Shepard as sixty-one chains and twenty-five links in length. If such is the length of that line of lot 54, it is quite clear that the land in question is in that lot.

But it is otherwise, if, as claimed on the part of the defendant, such line is ten chains shorter than that. While there is evidence to the effect that some alteration appears to have been made in producing the fig-ure six in sixty-one, and that it may have heen changed from five to six, the inference is warranted upon the evidence that whatever may have been the alteration, it was corrective in purpose and made by Shepard at the time he made his field notes. In them is the only place in which the figures indicating courses and length of lines of his survey appear. The map gives without figures the traverse by lines of the lots. The defendant sought to controvert the fact that the length of the shore line of lot 54 was sixty-one chains twenty-five links, and to show that it was only fifty-one chains twenty-five links. And for that purpose attention was called to the field notes in which the monument at the southeast corner of 62 and the northeast corner of 54 is described as an oak tree “near the outlet of Braddock’s bay,” and, again, as a “ black oak on the beach of the lake and Braddock’s bay rn’k’d S Side No. 54 N. W. No. 62.” There is no evidence other than that furnished by the field notes that any such tree was standing at the northerly end of the shore line sixty-one chains twenty-five links from the southeast corner of lot No. 54. The field notes also represent the course of the line running westerly from that corner between lots 54 and 62 as south seventy-three and one-half degrees west, which is not the appropriate course of a line between those lots from the north end of a line sixty-one chains twenty-five links in length.

The defendant then gave evidence tending to prove that there had been an oak tree a short distance south of the land in question having some marks upon it, and which, as one witness testified, was eight rods from the lake shore. In view of all the evidence relating to an oak tree at the place, and bearing upon that subject, the referee was permitted to conclude, as he did, that such tree was not the shore corner of lots 54 and 62 or on the line between those lots.

A surveyor who sought to locate on the ground the lines of lot 54 as established by Shepard’s survey, was called as a witness on the part of the plaintiff, and testified to the effect that in proceeding to do so he examined and ran the lines of several lots in the tract in the manner and for the purpose mentioned by him, to which it is deemed unnecessary here to specifically refer. He made a map by which it appears that in running the shore line of lot 62 from its northwest corner he omitted to describe the last two courses and distances represented by Shepard’s field notes. On his cross-examination his attention was called to it, and he testified that the traverse of the lake front of lot 62 as given by Shepard in his field notes, rail further south than the northeast corner of lot 54 and to a point south of the defendant’s hotel. These last two lines as described in the field notes were “ S. 30 deg. W. 9.50, S. 7 deg. W. 6.48.” By an examination of the map of the witness it is seen that the shore line of 62 is represented as extending a considerable distance southerly from the line of the last course there given by him. He further testified that when he got there he could not tell where to go by Shepard’s notes, whose survey he found would not balance up, and he did not and could not draw it any further because his courses and distances would not balance, and for the further reason that the courses would be out in the lake; that the lines as surveyed by Shepard had been washed away, and the best that could be done was to plat his survey upon a map; that is what he attempted to do, and Shepard’s notes would not balance on lot 62. The view of the witness was that there was some error in Shepard’s field notes of the southern portion of the shore line of lot 62. He assumed that the shore line of lot 54 had the length described in the field notes, and that the description of the line between these lots as south seventy-three and one-half degrees west was erroneous. He further testified that by the scale which he adopted of Shepard’s map the length of the shore linepf lot 54 as represented by the map was at least sixty-one chains and twenty-five links. There evidently is a mistake somewhere in Shepard’s field notes in relation either to the shore line of lots 54 and 62 or in the course of the line between these lots. The witness refers to a map of the subdivision of lots 60 and 62 into seven lots made by Benjamin H. Brown prior to 1835, and to a survey of the eastern part of lot 6 of that subdivision (which is in lot 62 and bounded easterly by the lake) made by Austin Spencer in 1847, and as the witness understands them, these surveys correspond with that of the witness in the location of the line between lots 54 and 62, and the survey of Spencer describes its course as south sixty-six degrees west; and as a verification of Brown’s survey in support of such location of that line, reference is made to his map and the scale on which it was made. There is no black oak tree on it near that line as it approaches the lake, but it appears that there was shortly before the trial in 1893 an elm tree standing there as described by the surveyors, nearly three feet in diameter, having a surveyor’s mark grown over a portion which he cut out and produced at the trial, and he added that in his judgment these marks were made in the neighborhood of ninety years before. The survey of this portion of the tract was made by Shepard in the latter part of November and fore part of December, 1803. And there is some evidence tending to prove that when the elm is without leaves (as it is that season of the year) a casual observer may not distinguish it from oak. It is possible that the suggestion is applicable to the early surveyor, although he was familiar with the woods and the various kinds of timber in that locality. The importance of great care and accuracy in representing the lines and corners of the lots may not then have been as apparent as it has since become by reason of increased value of the land. It may be observed that in the contract of Berger with Adelia Skinner, and in his deed to the plaintiff and others before mentioned, the easterly or lake shore line of lot No. 54 was described as sixty-one chains and twenty-five links in length. The parcel of land so conveyed was subdivision 4 off lot 54, as subdivided by Yalentine Bros, in 1818. And the deed from the Bank of Monroe to Charles Rhodes of date June, 1848, conveyed the east part of subdivision 6 of lot 62 as surveyed by Spencer, to which survey reference has already been made. There is evidence on the part of the plaintiff to the effect that the south line of the land so conveyed was the line between 54 and 62. And the plaintiff also gave evidence tending to prove that from and after the time that Berger took his deed in 1851 the lands so conveyed to him and Rhodes were treated by the occupants as adjoining, and that the contested line which, as the northern boundary of’ lot 54 would include the land in question in that lot, was by occupation, acts and declarations of the occupants for more than twenty years recognized as the line between their lands.

It may be observed that some difficulty in reproducing the line along the lake as it was represented by the survey of 1803 may have been occasioned by the fact that during the period subsequent to that survey the land along the shore to a considerable extent, as well as timber, had been taken away by the action of water. And some uncertainty at this late day very likely exists as to the precise locality of some of the lines of the survey then made by Shepard in dividing that large tract of land into lots. It is a matter of common observation and experience that the courses and distances as represented by the early surveys in forests are not entirely correct, and that monuments of such surveys, when found and well identified, are much more reliable and satisfactory. The present case is an illustration of the opportunities which those surveys furnish for controversy about lines, and the doubt and difficulty which in such cases may attend judicial determination.

The defendant obtained in 1890 the deed under which he claims. Whether or not his grantors had, or lie took by their deed, title to any land in lot 62 is not the subject of inquiry on this review, only as it incidentally arises in considering the question of the location of the line between that lot and lot 54. - Treating the land in question as in the latter lot, it is difficult to see that the grantors of Prisbee, who made the deed to the defendant’s grantors, had title to any land in lot 62.

The learned referee gave at some length his reasons for the conclusion that it was in lot 54. The question was one of fact. And the view here taken is that the finding of the referee that the land in controversy was in lot 54 is fairly supported by the evidence.

The declarations of the occupants made upon the land in pointing out the line were, in practical effect, evidence only of the extent of their possession and not of title other than such as might be inferred from the occupancy. The admission of this evidence was not error. (Jackson ex dem. McDonald v. McCall, 10 Johns. 377; 3 Washb. Real Prop. [4th ed.] 427.)

There was no error on the trial to the prejudice of the defendant.

The judgment should be affirmed.

Dwight, P. J., and Lewis, J., concurred.

Judgment affirmed.


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    In the Matter of the People of the State of New York ex rel. William H. Burby, Relator, v. The Common Council of the City of Auburn, N. Y., and Others, Respondents.

      Common council of a city — when members thereof are not disqualified from acting —proceedings thereof relating to the removal of am, officer of such city — duty of attorneys — stipulation, when a proceeding in an action — when a city attorney may he removed for malfeasance and misfeasance in office —• when errors in the reception and rejection of evidence will he disregcvrded under section 2140 of the Code of Civil Procedure — injwry presumed hy reason of an attorney’s wrongful act.

    If tlie common council of' a city is made by statute tbe only tribunal that can take certain proceedings against an officer of such city, the duty that devolves upon each member of the common council to take part in such proceedings is absolute, notwithstanding the fact that such member thereof may have formed such an opinion or taken such action in the premises as would disqualify him if he were a judge or a juror in an action at law.
    The proceedings of the common council of a city, culminating in the removal of the city attorney, is not a common-law trial with the incident and common-law rights pertaining to a trial, nor, strictly speaking, is it a trial before the court.
    It is an investigation required by the statute to furnish information to the common council upon which it can act.
    The principal duties of an attorney are to be true to the court and to his client; to keep his client informed as to the state of his business and to keep his secrets confided to him as such. The attorney is commissioned by the court to hold himself out to the world as competent and trustworthy; that the public may rely upon him; that he has the necessary legal knowledge to represent his clients in courts of justice’ and other tribunals, and the integrity which will protect them from all fraud and wrongdoing on his part. He must have no secrets from his clients as to their business. He must be open and frank with them, and if he performs any act that is important in their affairs, without first consulting them, though he may have authority so to do, he should communicate it to them at the first reasonable opportunity. Above all, he should be guilty of no bad faith, double dealing with or suppression of the truth from them. He is an officer of the court and the court must at all times be astute to discover any professional misconduct on his part and take proper action in reference thereto.
    A stipulation made by the attorneys for the parties to an action, that the appellant would abide the decision of the General Term and not appeal to the Court of Appeals, in consideration that the respondent would not press a motion made by him to dismiss the appeal and have judgment, is a proceeding in the action, and by reason thereof the respondent waives a substantial right, and the act of the city attorney of the appellant, a municipal corporation, in suppressing the fact of his giving such a stipulation, on being questioned in regard to the action by the common council of such municipal corporation, is sufficient to justify his removal for malfeasance and misfeasance in office; and such attorney is liable to removal notwithstanding the fact that such stipulation was made during a former term in office where, during his subsequent term, he was questioned by the common council in regard to the action, and suppressed the fact of the existence of such stipulation.
    Under the provisions of section 2140 of the Code of Civil Procedure, errors in the reception or rejection of evidence will be disregarded if the tribunal whose determination is sought to be reviewed had jurisdiction of the subject-matter of the investigation, and had conducted its proceedings in the mode required by law in order to authorize it to make its determination, when there is suffi- - cient competent evidence in the case upon which the tribunal would be authorized to reach the determination which it made.
    Injury is presumed where an attorney has violated a substantial right of his client, or when an imposition upon his client is shown.
    Certiorari issued out of tbe Supreme Court and attested on the 15th day of September, 1894, directed to' the board of common council of the city of Auburn, N. Y., composed of the following persons and officers: John E. McIntosh, mayor; Robert Schicht, Emmett Rhodes, Edward D. Parker, Daniel Bennett, Patrick Hanlon, Charles W. Miles, James H. Hazlitt, Dennis O’Neill, Clarence U. Chedell and William C. Firth, aldermen; Robert J. Carson, city clerk; Gertrude A. Knapp, stenographer of said board, and to Lavern A. Pierce and James Lyon, attorneys, commanding them to certify and return to the office of the clerk of the county of Cayuga all and singular their proceedings, with all things appertaining thereto in relation to the removal of the relator from the office of city attorney of the city of Auburn, N. Y.

      Robert L. Drummond, for the relator.

      L. A. Pierce, for the respondents.
   Ward, J.:

The relator was first appointed city attorney by the common council of the city of Auburn in April, 1891, to fill a vacancy. In March, 1892, he was again appointed for a full term of two years, and in March, 1894, reappointed. The common council is composed of the mayor and ten aldermen, whose terms of office are two years, commencing the first Tuesday'of March after their election. In September, 1892, one Maude Marie Y. Parcells commenced an action in tlie Supreme Court against the city to recover damages for a personal injury sustained by her by reason of stepping into a hole in a defective sidewalk. The relator, as city attorney, appeared for the city, it defending. The action was tried in May, 1893, at the Cayuga Circuit and resulted in a verdict for the plaintiff for $9,000 besides costs. The relator appealed for the city to the General Term. The trial of the cause occupied several days and the evidence was voluminous, amounting to about 400 pages of type-written matter. The relator was unable to get a copy of the. stenographer’s minutes until about the first of August. On September . twenty-fifth a proposed case and exceptions were served, consisting of sixty pages, andón the nineteenth of November 613 amendments were served to the proposed case, and the case was settled December Y, 1893. The papers then had to be printed and there were some delays in that matter. The case, as settled, did not show that it contained all the evidence given upon the trial. The appeal was noticed for the January General Term, 1894; the printed case not having been served, the plaintiff’s attorney threatened to make a motion to dismiss the appeal under the rules for the want of such service. Some difficulty occurred between the attorneys in regard to such delay, and the relator being pressed gave a stipulation providing that, if the printed cases were not served on or before January fifth, the appeal might be dismissed and judgment rendered for the plaintiff. The case was put upon the day calender and reserved for January tenth. The printed cases were not satisfactory on account of some mistake in the printing, and were not served,.and on January eighth the plaintiff’s attorney served a notice of motion to dismiss the appeal and for judgment to be heard on the twelfth. The plaintiff’s attorney insisted upon the motion, unless the relator would stipulate to abide the judgment of the General Term and not appeal the case to the Court of Appeals, but with permission to the plaintiff to appeal in case she were defeated at the General Term. The relator insisted that he did not expect to go beyond the General Term and gave the stipulation binding the city Dot to appeal to the Court of Appeals. The stipulation was not filed and the relator gave no notice thereof to the common council, although he claims to have told individual members of the council. In March, 1894, the General Term handed down its decision affirming the judgment.

After the relator had been reappointed the second time, rumors reached members of the common council of- the stipulation not to appeal to the Court of Appeals, and the subject came up at meetings of the council, and the relator in effect denied that he had executed such a stipulation, and made a report to the common council under date of April 16,1894, stating the judgment of affirmance, and quoting from the opinion of the court that “the jury was justified from the evidence in finding that the plaintiff was free from negligence contributory to her injuries,” and that “ the verdict seem to be fully sustained from the evidence.” The report continued that the relator had advised settlement for an amount less than the ultimate recovery, which the common council had declined to consent to, and again advised that the judgment be paid, as there was no possible chance of the city’s succeeding in the case, and concluded as follows : “ An appeal to the Court of Appeals means only additional cost and expense. The city will be beaten without question. I have heard rumors that the city could not appeal. It has been my policy to pay but little attention to street gossip or the newspapers, whose correspondents have personal reasons to misrepresent and distort the truth, and will only say that, if your honorable body sees fit to direct that an appeal from the judgment of the General Term be taken in this case, there is no reason why the same should not be done. Nothing that I hme done own prevent the same.”

There was nothing in this report to indicate that the stipulation had been given. After that the city council, by resolution, directed the relator to take the necessary steps to appeal the cause to the Court of Appeals. A committee of the common council was appointed to investigate the matter, W. O. Firth and Clarence U. Chedell, members of the common council. They reported under date of June 11,1894, the execution of such stipulation, and charged the relator with neglect and violation of duty as attorney of the city in regard to his proceedings in that action and the giving of such stipulation, and with suppressing the existence of the stipulation from the common council with intent to mislead and deceive. A motion was afterwards made at a Special Term of this court to set aside and annul the said stipulation, the relator taking part in the preparation of the papers for such motion, and being present and assisting when the motion was made, and made an affidavit in which he states that he signed the stipulation to save delay, and believing that the only question in the case was contributory negligence, and that the decision of the General Term would not be reversed by the Court of Appeals, and adds “ that deponent had no authority from the common council of the city of Auburn to sign such stipulation, but did it believing it to be for the best, and that there was no consideration for said stipulation.”

The mayor and other members of the common council made affidavits of which the relator had knowledge, which were read upon the said motion, and were in effect that they did not know of the existence of such stipulation, and that the relator had no authority to make it. On June 11, 1894, at a meeting of the common council duly called, written charges were preferred against the relator, which were served upon him on the thirteenth of June, and he was notified to attend at a meeting of the common council for the twenty-eighth of June. These charges in effect accused the relator of malfeasance and misfeasance in his office as city attorney with respect to the management of the said action ; with negligence in regard to the same; with the giving of the said stipulation without authority; with making a false report to the common council in regard to the same, and which report suppressed the fact of such stipulation, and with falsely stating that there was nothing to prevent the appeal to the Court of Appeals when he knew of the existence of the stipulation which prevented it, and with improper conduct and bad faith toward bis client, the city of Auburn, in the said action, and for giving advice to it upon a false or assumed state of facts.

By section 44, title 5, of the charter of the city (Chap. S3 of the Laws of 1879) it was provided that “ The city attorney shall be the legal adviser of the common council and of the several departments of the corporation; shall prepare all legal papers for the city; have the management of all its law business, and perform such other duties as the common council may require.”

The 27th section, title 4, of the charter provides as follows : “No person appointed under the provisions of this act shall be removed from office except by a concurring vote of two-thirds of' all the members of said council, unless for malfeasance or misfeasance in office, when, after an opportunity to be heard before said council upon a notice of two weeks, such, person may be removed by a concurring vote of a majority of said members.”

The relator answered, denying these charges, and proceedings were had thereon before the common council in the summer of' 1894, and testimony was given under oath by witnesses, documentary evidence introduced, and the relator sworn in his own behalf. Counsel appeared for the prosecution and for the relator before the common council, and the forms of trial in courts was observed as to the proceedings, and the relator had full opportunity of being heard in his defense. The mayor presided, and the common council made rulings as to the admission or rejection of evidence. The relator was found guilty by the common council by a majority vote of the charges and removed from office, and upon his application a writ of certiorari brings the subject before us.

The relator attacks the jurisdiction of the common council, in this, that he had not received the notice required by statute, of fourteen days, of the charges against him. This contention is not' well founded, as the proof shows that he had the fourteen days of notice of the substance of the charges upon which he was ultimately convicted. The amendments of one or two of the charges, which occurred during the progress of the investigation, were but an amplification of the original charges, and made in his presence, and an adjournment of several days was taken by the common council to give him an opportunity to meet the amended charges, and the relator had every reasonable opportunity to do so.

He further assails the jurisdiction because two of the common council (Firth and Chedell), who voted uj)on the charges and took part in the proceedings, had made a report to the common council upon an investigation made by them, substantially preferring the charges that the council subsequently made. The common council is created by statute the only tribunal' that can take the proceedings against the relator for the matter alleged against him. It is, therefore, absolutely necessary that this body take this action, or it cannot be taken at all. Consequently, the duty that devolved upon each member of the common council, to take part in the proceeding, was absolute, notwithstanding he may have formed such an opinion or taken such action in the premises as would disqualify him if he were a judge or juror in an action at law.

In Matter of Ryers & Others v. Commissioners of Audits of Accounts (72 N. Y. 1, 11, 12, 13) the county judge of Richmond county had. made an order appointing commissioners in a proceeding to drain lands under a statute, and lands in which the judge was interested, he being the only authority under the statute that could appoint such commissioners. The point was made that the judge was disqualified from making the appointment on account of being an interested party, and the Court of Appeals, after citing many authorities, reaches the conclusion that it must be the law, from these cases, that where the judicial power has been confided to one judge, and, if he should fail to act, there would'be no means of proceeding in the matter, though interested, he may take such cognizance of the case as is absolutely necessary, so far that the party shall not be without remedy.”

This we understand to be confined to cases where the judicial officer has not such an interest in the cause or matter that the result must necessarily affect his personal or pecuniary interest, or where his interest is minute and he has so exclusive a jurisdiction by Constitution or statute that his refusal to act in the cause or matter will prevent any proceeding in it, then he may act so far as that there may not be a failure of remedy. This is the rule as to judicial officers. The rule would be more liberal still in this case. The common council in this proceeding was, strictly speaking, not a court, nor were its members judges. The proceeding was not a common-law trial with the incident and common-law rights pertaining to the trial, nor, strictly speaking, was it a trial before a court. It was an investigation required by the statute to furnish information to the common council upon which it could act. (People ex rel. McCarthy v. Board Police Commissioners, 98 N. Y. 334, 335; The People ex rel. Lee v. Doolittle & Others, 44 Hun, 293; People ex rel. Flanagan v. Board Police Commissioners, 93 N. Y. 102, 103.)

These members of the common council had-no pecuniary interest in the result of the proceedings, and were not in any sense parties to it further than to discharge the duties imposed upon them by law. We must hold that the common council had jurisdiction, and that the authority conferred upon it by the statute in relation to the subject-matter has been pursued in the mode required by law in order to authorize them to make the determination.

The remaining questions are whether, under section 2140 of the Code of Civil Procedure, in making their determination, any rule of law affecting the rights of the relator has been violated to his prejudice, and whether there was any competent proof of all the facts necessary to be proved to authorize the making of the determination ; and, if there was such proof, whether there' was, upon all the evidence, such a preponderance of proof against the existence of the fact alleged against the relator as constituted malfeasance or misfeasance, or both, as that a verdict of a jury affirming the existence thereof in the Supreme Court would be set aside as against the weight of evidence.

The relator claims that, assuming that the acts charged against him have been shown by competent evidence, they constitute neither malfeasance nor misfeasance. What do these terms mean when considered in connection with the relation of attorney and client, and the purpose of the statute in clothing the common council with the power of removal ? Light can be gathered upon this subject from the reciprocal duties and obligations of the client and attorney.

Malfeasance has been defined in Bouvier’s Law Dictionary to be “ The unjust performance of some act which the party had no right or which he had contracted not to do.” And the same authority defines misfeasance as the performance of an act, which might lawfully be done, in an improper manner in which another person receives an injury. And the Imperial Dictionary defines malfeasance as “ In law the doing of an act which a person ought not to do ; evil-doing; wrong; illegal deed; ” and defines misfeasance to be “ In lam a trespass, a wrong done, also the improper performance of some lawful act,” and cites Wharton.

The true relation of client and attorney has been defined to be as follows: “ The principal duties of an attorney are to be true to the court and to hi^client; to lteejp the client informed as to the state of lousiness / to keep his secrets confided to him as such.”

To which may be added that the attorney is commissioned by the court to hold himself out to the world as competent and trustworthy ; that the public may rely upon him; that he has the necessary legal knowledge to represent his clients in courts of justice and other tribunals, and the integrity which will protect them from all fraud and wrongdoing on his part. He must have no secrets from Ms clients as to their business. lie must be open and frank with them, and if he performs any act without first consulting them, that is important in their affairs, though he may have authority so to do, he should communicate it to them at the first reasonable opportunity. Above all, he should be guilty of no bad faith, double dealing with or suppression of the truth from them. He is an officer of the court, and the court must at all times be astute to discover any professional misconduct on his part and take proper action in reference to it.

We have no doubt but that the matters charged, if true, constitute both malfeasance and misfeasance under the conditions of this case. The recital of those facts to some extent appear above. Without the knowledge of the common council the relator did stipulate that there.vshould be no appeal so far as the city was concerned to the Court of Appeals.

This was a most important step and barred the city of its right of hearing in the court of last resort in regard to a judgment against it of a large amount. The -attorney had the power to make this stipulation under the charter of the city and by virtue- of his powers as a general attorney in the action.

The stipulation not to appeal was a proceeding in the cause, and by reason thereof the plaintiff in the action referred to waived a substantial right, viz., to move to dismiss the appeal under the rules when the defendant was in default. And see Smith v. Barnes & Others and cases cited (29 N. Y. Supp. 692).

The relator testified before the common council and produced two or three witnesses to confirm his statement that at an executive session of the common council authority was given him to take such action with reference to appeals in the case as he saw fit. This was disputed by other evidence, and was, therefore, a question of fact for the common council to determine, and it was upon this question that affidavits prepared by the relator or under his supervision, and his own affidavit showing that no such authority was given, were introduced properly in evidence. If he had such authority, why did he deny it in liis affidavit ? When he made his report to the common council as to the condition of the action of Maude Marie Y. Par-cells he was directly called upon to state whether he had tahen any step in that action to prevent the city from appealing to the Court of Appeals. It was his duty to have frankly reported that fact to the common council. Instead of so doing he avoids the question, and distinctly says he had done no act that would prevent the city from appealing to the Court of Appeals. Ve find nothing in the evidence to excuse or even palliate this feature of his report, and his wrongdoing lies more in the fact that he sought to suppress from his client, the city, the knowledge of the important fact of the execution of this stipulation and to induce them to act without that knowledge. He substantially admits he made, in the presence of the common council, the statements that he had never signed any stipulation which prevented the city from carrying the Parcells case to the Court of Appeals; that there was no such stipulation; that if he had signed it he had done the act of a seven-year-old boy, and was not fit to be the city attorney; that there was no occasion for making any such agreement, and if any such stipulation existed it was a forgery, etc., and which seems to show conclusively that the relator was seeking to suppress from the city the fact of the execution of the stipulation.

The relator makes the point that the common council had no authority to try him, because the acts charged as malfeasance and misfeasance were committed by him during a former term of office. It is true that the stipulation not to appeal to the Court of Appeals was made during the term of the relator’s office that expired in March, 1894, but the report made by' him as to his proceedings in the case, and the suppression of facts and false statements in relation to the same, were made after the commencement of the term from which he was removed, and the whole matter was thus carried into that term. This question arose upon the impeachment trial of Judge Barnard before the Court of Impeachments at Saratoga upon a motion to strike out the charges of certain offenses alleged to have been committed by the judge during a prior term of office. The judge had been re-elected, and his counsel claimed that such re-election had condoned all prior offenses, and that he had come anew into the possession of his office approved by the judgment of the People and certified as capable and worthy to occupy the position and discharge the duties of a justice of the Supreme Court.

In Yolume 1, Trial of Barnard in Court of Impeachment (p. 147, et seq.), the point was overruled by the court and he was convicted as well of offenses committed during a prior term as during the term then existing.

The relator strongly urges that grave errors were made by the common council in admitting and rejecting evidence to his injury. Ye will not attempt to pass over the rulings in detail, but will notice some of the most important ones, that our position may not be misunderstood in regard to them.

In the proceedings of the common council a resolution appears, and was adopted under objections, whereby the council resolved to take judicial notice of and to consider all statements made by the relator in both open and executive session with reference to these stipulations and matters connected therewith, and particularly to certain statements enumerated (which, as appears above, the relator substantially admitted). This proceeding was error. The common council could not act upon their own knowledge (People ex rel. McAleer v. French, 119 N. Y. 502), and had it not been substantially cured by the admission of the relator, when sworn, that he had made those statements, substantially, a grave question would arise as to our duty with regard to this error.

The proceedings of the common council also show that the report of the aldermen above referred to was received under objection in evidence. It was, doubtless, meant to be received as a part of the. history of the investigation, and not as evidence strictly, as it was not, in any sense, evidence, and, as such, it was error to receive it; but as the report only sets forth what was substantially proved by competent evidence the relator was not seriously' prejudiced thereby.

This court held (The People ex rel. Mizner v. Hair & Others, 29 Hun, 125) that decisions as to the admission and rejection of evidence cannot be reviewed by certiorari under section 2140.

To the sapie effect is The People ex rel. Bd. of Supervisors v. The State Board of Assessors (22 Wkly. Dig. 453), being both General Term decisions of the old fourth department.

In People ex rel. Schabacker v. The State Assessors (47 Hun, 451) the General Term of the third department, speaking through Judge Parker in referring to the rule laid down in the last case cited, says: “ I am not prepared to adopt fully the rule laid down by the court in that case. Such a rule would render a court powerless to review the arbitrary action of a board like the State Assessors in refusing to receive competent and material evidence bearing upon the issue to be determined, * * * and an examination of the decisions of the Court of Appeals, which resulted in establishing the rule which the framers of the Code of Civil Procedure incorporated in subdivision 3 of section 2140, leads me to the conclusion that a refusal to receive evidence, absolutely essential to-the protection of either of the parties, would constitute an erroneous ruling of law affecting the rights of the parties within such subdivision.”

In People ex rel. Sutliff v. The Board of Supervisors of Fulton County (74 Hun, 251, 253) the court says: Although the. court may review the action of supervisors in extreme cases, in improperly receiving or rejecting evidence offered on the audit of a claim against the county (citing the last case, 47 Hun, 450), yet, ordinarily, an error of the board of supervisors or its committee in receiving incompetent evidence will cause a reversal of its determination” (citing the cases in 29 and 74 Hun and in 22 Wkly. Dig., supra).

The true rule to be gleaned from these cases, and which is consistent -with the purposes and spirit of section 2140 of the Code, is that errors in the reception or rejection of evidence should be disregarded if the tribunal had jurisdiction of the subject-matter of the investigation, and had conducted its proceedings in the mode required bylaw in order to authorize it to make the determination, where there was sufficient competent evidence in the case upon which the tribunal would be authorized to reach the determination which it made.

The competent proof to sustain the charges given upon the hearing before the common council was clear and conclusive, and was so independent of and notwithstanding the errors committed as to the reception of evidence. Had none of the errors with regard to reception or rejection of evidence occurred, the result must have been the same, and consequently the relator was not prejudiced by any such errors.

The misconduct of the relator does not seem to have been corrupt, nor does it appear that lie obtained any pecuniary advantage from it. Mistakes occurred during the progress of preparing the appeal of a serious nature, such as omitting the statement that the case contained all' the evidence and proceedings, and in permitting the city to he in default in serving the printed cases in time, and other defaults which the record discloses, but stipulations extending time were executed on both sides, and considerable excuse was shown for the delays in consequence of the voluminous nature of the evidence, and in getting the stenographic minutes, and in settling the case. The relator, instead of stipulating away the rights of his client when he got into difficulty at the General Term, should have disclosed the facts, and applied to the courts for relief, which he undoubtedly would have obtained. Instead of doing this he obtained temporary relief from the other side at the sacrifice of his client’s interests, and all of his troubles have grown out of that mistake, and in the fatal attempts to prevent its coming to the knowledge of his client. The relator insists that, notwithstanding all this, no injury came to the city. Injury is presumed where a substantial right of the client is violated, or an imposition upon the client is shown.

Prom these conclusions it follows that the determination of the common council in removing the relator should he affirmed, and the writ of certiorari dismissed.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Proceedings of the common council of the city of Auburn confirmed.

Note. — The other cases of this term will he found in the next volume, 88 Hun.— [Rep.