text:
    Henry Nugent, Respondent, v. Eli B. Jacobs, Impleaded, etc., Appellant.
    While the payment by the purchaser of a fair consideration upon a sale of property is not conclusive, as against the creditors of the vendor, upon the question of good faith, it affords strong evidence thereof, and requires clear proof of a fraudulent intent to overcome the presumption of honest motives arising therefrom.
    In an action to set aside a conveyance of land as fraudulent as against the creditors of the grantor, it appeared that the grantee paid full value. The principal circumstance upon which the allegation of fraudulent intent was based was the execution by the grantor on the same day, but after the transfer of the land, of a chattel mortgage to his wife covering his remaining property. This fact the court allowed to be proved by oral evidence of the grantor, as a witness for the plaintiff; on cross-examination of the witness, defendants offered to show the circumstances under which the mortgage was given, and what was done with it. This was objected to by plaintiff and excluded. Held error; and that, as defendant may have been injured thereby, it required a reversal of the judgment,
    (Argued June 4, 1886 ;
    decided October 5, 1886.)
    Appeal by defendant Jacobs, from a judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon-an order made October 31, 1884, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.
    The nature of the action and the material facts are stated in .the opinion.

      E. W. Gardner for appellant.
    As there was an absolute bona fide sale for a full consideration paid, it being to secure a debt of Jacobs, the deed cannot be pronounced fraudulent under the facts proved. (Bump on Fraud. Oonv. [2d ed.] 182, 184, 186; Wilder v. Winne, 6 Cow. 284; affirmed, 4 Wend. 100.) The extinguishment of a valid debt against the vendor constitutes the vendee a purchaser for value as fully as though the consideration was all paid in money. (Seymour v. Wilson, 19 N. Y. 417; Bedell v. Chase, 34 id. 386 ; Graham v. Northrop, 9 How. 525 ; Murphy v. Briggs, 89 N. Y. 451; Stearns v. Gage, 79 id. 102; Farley v. Carpenter, 27 Hun, 359.) In a case of actual sale, where the-land is conveyed to the grantee as his own, the rule is entirely different from a cáse where a party makes a general assignment for the benefit of his creditors and the grantee is a mere trustee; in the latter case fraud of the assignor alone is sufficient, while in the former and in this case actual fraud must be shown upon the part of both grantor and grantee. (Laid-law v. Gilmore, 47 How. 67; affirmed, 56 N. Y. 621.) The fact that this suit was pending and that Jacobs knew of it, furnishes no evidence of fraud. (Beard v. Wheeler, 76 N. Y. 213; Hall v. Arnold, 15 Barb. 599 ; Auburn Ex. Bk. v. Fitch, 48 id. 344.) Where a conveyance or mortgage is taken to secure a debt, even where it is done with the express purpose of preventing the lien of a judgment about to be taken, the conveyance is valid. (Hale v. Stewart, 7 Hun, 591; Archer v. O’Brien, id. 146, 148-9 ; Stover v. Eycleshimer, 4 Abb. Ct. App. Dec. 314; Parker v. Connor, 93 N. Y. 118-26.) There is no evidence in this case to sustain the findings,, of the trial court of fraud on the part of Jacobs. (Popfinger v.. Yutte, N. Y. Ct. App., March 26, 1886; 4 East. Rep’r, 694.) The evidence of Jacobs, that he took this conveyance in good faith and without any fraudulent intent, cannot be disregarded arbitrarily and should be taken as evidence in the case. (Waterbury v. Sturtevant, 18 Wend. 363 ; Bedell v. Chase, 34 N. Y. 386.) Fraud on the part of the vendee as well as the vendor must be shown. (Dudley v. Danforth, 61 N. Y. 626.)

      Henry M. Field for respondent.
    The fraudulent intent of the grantor (Grace) is confessed by the record. He did not appear or answer the complaint. (Code of Civil Pro., § 522.) A conveyance is void under the statute if the sale and conveyance was made with intent to “ hinder ” and delay creditors. (3 R. S. [7th ed.] 2320; Bump on Fraud. Conv. 66; Planck v. Schermerhorn, 3 Barb. Ch. 644; Parker v. Connor, 93 N. Y. 118 ; Coleman v. Burr, id. 17.) The court did not err in adjudging the conveyance void, although the fact is found that appellant paid in full. The fact, under all the circumstances which appear in this case, did not make the conveyance bona fide nor release the appellant from the consequences of his own fraudulent acts. The fraud was found as a fact. (Bump on Fraud. Conv. 230; Young v. Hermance, 66 N. Y. 374; Damis v. Leopold, 87 id. 620.) The appellant was a fraudulent purchaser. The conveyance was tainted with fraud. The law and the courts do not protect or care for fraudulent purchasers. (Wait on Fraud. Conv., § 208 ; Billings v. Lawyer, 4 N. E. Rep’r, 351.) The evidence given by plaintiff having shown without a question that the sale and conveyance was fraudulent, and it being so, plaintiff was entitled to judgment. (Starin v. Kelly, 88 N. Y. 418.)
   Ruger, Ch. J.

This action was brought to vacate and annul, a conveyance of land made by defendant Grace, to the defendant Jacobs, upon the ground that it was executed and delivered for the purpose of hindering, delaying and defrauding creditors, and particularly the plaintiff in the collection of a debt, owing to him by Grace. The findings of the court below, show that Jacobs paid Grace the full value of .the land upon the transfer, but it is claimed by the respondent and was found by the court that the conveyance was nevertheless made and received with the intent to hinder, delay and defraud the plaintiff. The evidence upon which this finding was based was not conclusive or even strongly preponderating upon the fact found, and the erroneous admission or exclusion of evidence was likely to have affected materially the conclusions reached by the trial court.

The payment by the purchaser of a fair consideration upon a sale of property affords strong evidence of the good faith of the transaction, and while not conclusive upon that question requires clear evidence of the existence of a fraudulent intent to overcome the presumption of honest motives, arising from that fact. (Billings v. Russell, 101 N. Y. 226.) One of the most prominent circumstances from which a fraudulent intent was sought to be deduced, was the execution by Grace, on the same day, but after the delivery of the deed in question, of a chattel mortgage to his wife, conveying such property as he had remaining, after the transfer of his land. This fact was proved upon the oral examination of the alleged fraudulent grantor, produced as a witness for the plaintiff, and although the defendant objected that such evidence was not competent and that the mortgage should be produced, it was allowed by the court. The defendant, upon cross-examination of the same witness, attempted to show what was done with the mortgage after its execution, and the circumstances under which it was given, but upon the objection of the respondent the evidence was excluded by the court, and the appellant excepted to the ruling. We see no ground upon which this ruling can be supported.

The mere giving of the mortgage under the circumstances did not afford conclusive evidence of a fraudulent intent on the part of the mortgagor, and the circumstances under which it was executed, the existence of a valuable consideration therefor, the fact that it was promptly filed in the town clerk’s office, and the publicity attending its execution, were all competent and material facts bearing upon the question of intent, and should have been received by the court.

In a case where the evidence is not preponderating on either side, such circumstances should be heard and considered, and we cannot say that injustice may not have been done by the exclusion of the proposed testimony. °

For this reason, therefore, the judgments of the G-eneral and Special Terms should be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.


source: Caselaw Access Project

author: Rapallo, J.

license: Public Domain

text:
    Edwin W. Hall, Appellant, v. The Whitehall Water Power Company, Limited, Respondent.
    At a foreclosure sale, made in 1876, the mortgaged premises were sold in parcels; H., plaintiff’s grantor, became the purchaser of a lot, being part of what was known as the “ barn lot,” in the village of W., which was described in the referee’s deed as bounded “on the west by Wood creek * * * on the east by William street, the lot hereby conveyed being fifty-five feet in length along William street, from and off the north end of said barn lot, and about thirty feet in width from Wood creek to William street.” The barn lot was a strip of land lying between Wood creek and William street; the distance from the edge of the bank of the creek to William street was about thirty feet. It was conveyed subject to the mortgage in 1863 by a description, the east and west boundaries in which were similar to those above quoted. At that time, and for several years thereafter, it was used as the site of a barn. The bank of the creek was a natural1 wall of stone, the top of which was from twelve to fifteen feet above high-water mark. The water power of the creek was then, and had, for many years, been used to run a factory and mill situate north of and adjoining the barn lot; a dam being built across the creek at the north end of the “ barn lot,” which set back the water opposite' that lot so as to deprive it of any fall. In 1864 the dam was carried away, and in 1875, H., then the lessee of that portion of the barn lot subsequently conveyed to him, undertook to use the water power opposite his lot; the foreclosure suit was then pending. At the foreclosure sale, before H. purchased, other parts of the mortgaged premises “ with all the waters and land under the waters of Wood creek ” were sold by the referee to other parties. In an action to restrain defendant, who claimed under the deed given by the referee on the sale last mentioned, from building and maintaining a dam on the site of the old one, field, that in view of the location and physical condition of the property, its history, and the definite specification of the dimensions of the plot conveyed to H., the intention was clear to convey, and H. only took title to the strip of upland between the creek and the street; and he acquired no right in the land under the waters of the creek, or in the water power.
    (Argued June 4, 1886 ;
    decided October 5, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the third j udicial department, entered upon an order made December 27, 1884, which affirmed a judgment in favor of defendant, entered upon a decision of the court on trial 'at Special Term.
    This action was brought to restrain the defendant from building a dam upon Wood creek, in the village of Whitehall, and to compel the removal of its erections and for damages.
    The plaintiff claimed title to a small lot in the village of Whitehall, being the northern fifty-five feet of a parcel known as the “ Phoenix barn lot,” which parcel is described, in a deed thereof from John IT. Boyd and wife to Ami D. Gibbs, as “.bounded south by James Greenough’s lot; west "by Wood creek; north by the axe-helve shop lot; east by Williams street, being one hundred and eighty-five feet on Williams street, and about thirty feet wide from Williams street to Wood creek.” The bank of Wood creek, along this parcel, is a natural wall or ledge of stone twelve to fifteen feet high above high-water mark. The plaintiff claims under a conveyance from one Hancock, who obtained his title by purchase at a foreclosure sale, upon the foreclosure of certain mortgages. These mortgages covered twenty-five acres, known as the “ mill lot,” of which this “ barn lot ” was a part, and the lien thereof went back to 1822. It was created as follows: March 21,1822, Jonathan Steele and others gave a> mortgage of the “mill lot” to John Williams to secure purchase-money. About 1841, Williams became the owner of two , mortgages upon the same premises, given by John H. Boyd.

      He afterward commenced proceedings to foreclose these mortgages and, by authority of a decree of the Supreme Court, in 1855, Josiah Hart took title to the entire premises, as trustee for Boyd and those claiming under him, and gave a mortgage back to Williams to secure the balance then due upon the former mortgages, whereby the lien of Hart’s mortgage extended back to 1822.
    Defendant claimed under a deed given on a purchase at the same foreclosure sale of the land adjacent to and north of the barn lot, “ with all the water and lands under the water of Wood creek.” The further material facts are stated in the opinion.

      Esek Cowen for appellant.
    The sale of the Phoenix barn lot to James D. Hancock, with a description bounding it on the west by Wood creek, conveyed the west side of the creek, to the center thereof, notwithstanding the prior attempt of the referee to sell all the land under water, with lot A. (Hopkins v. Wooley, 81 N. Y. 77.) The referee had no power to sell contrary to the judgment, and when he did so, his acts were unauthorized and void as to any one prejudiced by such action. (De Forest v.Leete, 16 Johns. 122.) An attorney’s authority to act for his client ends with the judgment, when it is against his client. (Lusk v. Hastings, 1 Hill, 686 ; Dugan v. Rooney, 38 How. 121.) After securing a legal or equitable right for his client in the judgment, an attorney cannot give up that right without his client’s consent. (Quinn v. Lloyd, 36 How. 398; Shaw v. Kidder, 2 id. 224; Barrett v. Third Ave. R. R. Co., 45 N. Y. 665.) An easement over mortgaged premises may be cut off by making the owners parties to the foreclosure. (Parker v. Rochester de Syracuse R. R. Co., 17 N. Y. 292, 297.) So far as mere legal rights are concerned. upon a bill of foreclosure, the only proper parties to the suit are the mortgagor and the mortgagee, and those who have acquired rights under them, subsequent to the mortgage. And the mortgagee has no right to make one who claims adversely to the title of the mortgagor, and prior to the mortgage, a party defendant. (Eagle Fire Ins. Co. v. Lent, 6 Paige, 637; Corning v. Smith, 6 N Y. 84.) A person claiming under the mortgagor, prior to the mortgage, is a proper party, and the question of priority could be tried in the foreclosure suit. (Brown v. Volkening, 64 N. Y. 76.) A purchaser-on a foreclosure obtains the same title that the mortgagee would obtain had he taken possession of the property and foreclosed the equity of redemption. (2 R. S. 192, § 158.) He takes the title which the mortgagor had before he gave the mortgage. (Parker v. Rochester & Syracuse R. R. Co., 17 N. Y. 287; Smith v. Gardner, 42 Barb. 366; Butler v. Viele, 44 id. 166.) The defendant as assignee of the mortgage can only hold the title which the mortgage gave to Williams, prior to the foreclosure, and that cannot include an easement which was not in existence at the date of the mortgage. ( Watson v. Spence, 20 Wend. 206; Strong v. Dollner, 2 Sandf. 444.) The interest of the plaintiff was such as a court of equity will protect by injunction. (Angell on WaterCourses, § 449; Webb v. Portland Manufacturing Co., 3 Sumner, 189; Knapp v. Douglas Awe Co., 13 Allen, 1; Corning v. Troy Iron & Nail Factory, 39 Barb. 311; 34 id. 492; 40 N. Y. 191.)

      Richard L. Hand for respondent.
    The decree condemned the entire property to sale. The bed of the creek and all of the water power and privileges covered by the mortgages had been in fact sold to Miss Williams, before any thing was sold to Hancock. And her purchase included the title and interests of Cozzens, as he was not in possession when lis pendens was filed and his deed was not recorded until years after the sale. (Code of Pro., § 132.) Caveat emptor applies with especial force to judicial sales. (Riggs v. Pursell, 66 N. Y. 193 ; Clute v. Emmerich, 99 id. 342; Neal v. Gillaspy, 26 Am. Rep. 38.) These sales and conveyances having been confirmed by the court, and no application made to be relieved from the purchase, the conveyance cannot be attacked in this action. (Story v. Hamilton, 86 N. Y. 428.) If the plaintiff, or his grantor, had any grounds of complaint, the remedy could only he sought in the foreclosure suit. (Jones on Mortgages, § 1668 ; Van Vleck v. Clark, 38 Barb. 316 ; McCotter v. Jay, 30 N. Y. 80; Smith v. Am. Life Ins. Co., Clarke, 307; Bennett v. Bagley, 22.Hun, 408 ; Leavitt v. Palmer, 3 N. Y. 19, 38.) The attorneys had authority to modify the order of sale. (Newberry v. Lee, 3 Hill, 523; Corning v. Southland, id. 552 ; Gorham v. Gale, 7 Cow. 739.) The true construction of the plaintiff’s deed, as matter of law, limits him to high-water mark and does not convey any portion of the bed of the stream or water power. (Higinbotham v. Stoddard, 72 N. Y. 94; Marvin v. Univ'l Life Ins. Co., 85 id. 278; Gillespie v. Torrance, 4 Bosw. 36 ; 25 N. Y. 306.) By force of the original conveyance, the grantee and his successors in interest, acquired the right to maintain the flow of water through that canal, to the extent then existing, as against the owners of the rest of the mill-lot and their privies in estate, forever, including the right, necessarily involved, of setting the water back upon the barn lot. (Huntington v. Asher, 96 N. Y. 604; Adams v. Conover, 87 id. 422; Simmons v. Cloonan, 81 id. 557; Langdon v. Mayor, etc., 93 id. 129, 148,152 ; Scriver v. Smith, 100 id. 471, 481; Lampman v. Milks, 21 id. 505 ; Townsend v. McDonald, 12 id. 381 ; 3 Wash. Real Est. 231,232; Agricultural Bk. v. Rice, 4 How. [U. S.] 225; Gatlins. Ware, 9 Mass. 218.) The factory lot and the appurtenant rights were held by paramount title, and could not be affected by the foreclosure, even if there had been any pretense of doing so. (Emigrant Ind. Savgs. Bk. v. Goodman, 75 N. Y. 127; Rathbone v. Nooney, 58 id. 463; Merchants' Bk. v. Thompson, 55 id. 7.) The plaintiff has no standing in a court of equity. He has no valuable interest to protect on any theory of the case, but is a mere trespasser. (Newton v. Russell, 87 N. Y. 527; T. & B. R. R. Co. v. Boston, etc., R. R. Co., 86 id. 107, 123; Trustees Col. Coll. v. Thacher, 87 id. 311; Crooke v. Flatbush Water Co., 27 Hun, 72; Quackenbush v. Van Ripper, 2 Green’s Ch. 350; 29 Am. Dec. 716 ; Clinton v. Myers, 46 N. Y. 511.)
   Rapallo, J.

We are of opinion that the plaintiff’s grantor, Hancock, took title under his deed only to the strip of upland, thirty feet wide, lying between William street and- Wood creek, and that he acquired no rights in the land under the waters of the creek, or in the water power. This, we think, is the true construction of the deed from the referee in the foreclosure suit to Hancock, in view of the situation of the property and of the circumstances existing at the time of the conveyance and prior thereto. The [description in the deed from the referee is similar to that contained in the deed of the Phoenix barn lot, dated in 1863, from John H. Boyd and wife to Gribbs, under whose lessee, Irwin, Hancock afterward held the premises in dispute until the sale under the foreclosure. The Phoenix barn lot consisted of a strip of land on the easterly side of Wood creek lying between William street and the bank of the creek, which was precipitous, being a natural wall of stone, the top of which was from twelve to fifteen feet above the surface of Wood creek when the water was high. This strip of land, called the barn lot, was about one hundred and eighty-five feet long and thirty feet wide from William street to the edge of the bank. It had for many years prior to 1863 been used for a barn site, and was so used for several years thereafter. No attempt appears to have been ever made by any occupant of the barn lot prior .to 1875, to make any use of Wood creek for power or otherwise. The water power of the creek had been used for a great number of years by a factory and grist-mill, north of and adjoining the barn lot at or near the mouth of the creek. These establishments were supplied by means of a dam built across the creek at the north end of the barn lot, which dam had stood from 1818 to 1829, and from 1841 until 1864, when it was carried away. While the dam stood, it set back the water opposite the barn lot so as to deprive it of any fall, and thus, as well as by, the natural conformation of the land, the barn lot was entirely separated from the creek and was in fact enjoyed and treated as a separate property. In 1863, and while the mill and factory were in operation, and the dam was standing, using all the water power of the stream opposite the bam lot, Boyd and his wife conveyed to Gibbs the lot known as the Phoenix barn lot, by the following description Bounded south by James Greenough’s lot, west by Wood creek, north by the Axe Helve Shop lot and east by William street; the lot hereby conveyed is about one hundred and eighty-five feet on William street, and about thirty feet wide from Wood creek to William street.”

Gibbs continued to use the lot exclusively for the purposes of a barn, until i 868, when he leased the same to Irwin. Irwin sub-leased to Baldwin and Perry the southerly portion of the lot, and to James D. Hancock the northerly fifty-five feet thereof. The dam previously existing having been carried away in 1865, Hancock, in 1875, for the first time, undertook to use the water power opposite the portion of the lot occupied by him.

While Hancock was in occupation as lessee, the whole property known as the mill lot was sold under judgment of foreclosure of the Williams mortgage (which was a lien, paramount to the title of Gibbs and his lessees), and at the foreclosure sale, which took place August 81,1876, Hancock, the grantor of the plaintiff, became the purchaser of the lot in question, and it was conveyed to him by the referee by deed dated September 5, 1876, wherein it was described as bounded on the north by lot T, on the west by Wood creek, on the south by a lot marked 228, on the east by William street, the lot hereby conveyed being fifty-five feet in length along William street, from and off the north end of said barn lot, and about thirty feet in width from Wood creek to William street.”

At the same sale (at which Hancock was present) and before he purchased the lot, other parts of the mortgaged premises, together with “ all the waters and land under the water of Wood creek,” within the boundaries of the old mill lot, including the land under water and the waters in front of the barn lot, were sold by the referee to parties other than Hancock, but the referee in this action finds that Hancock, at the time of his purchase and of receiving his deed, did not know of this prior sale of the waters in question.

In view of the location and physical condition of the property, its history, and the definite specification of the dimensions of the plot conveyed to Hancock, we think it quite clear that the intention was to convey only the strip of upland, thirty feet wide, lying between the edge of the creek bank and William street, and that the description was not intended to include any part of the waters of Wood creek or any water rights therein. (Higenbotham, v. Stoddard, 72 N. Y. 94.)

These water rights had for a great number of years been enjoyed and used by the owners of the mill property on the north, near the mouth of the creek, and it was not until 1875, just before the foreclosure of the mortgage, that any attempt had been made by the occupants of the barn lot to use the water power, which had become available for the time by reason of the destruction of the old dam, the rebuilding of which, by the defendant, is the matter complained of by the plaintiff in this action.

Without going into the questions as to the defendant’s title, and without intending to intimate any doubt in respect to it, we think the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Earl, J.

text:
    The Board of Commissioners of Excise of the City of Auburn, Respondents, v. Cary S. Burtis et al., Appellants.
    Although by the amendment of 1879 to the charter of the city of Auburn (Chap. 53, Laws of 1879), which abolished the office of overseers of the poor, the powers and duties of that office were devolved upon the board of charities and police, yet there were thereafter in said city no overseers of the poor, within the meaning of the provision of the excise law (§ 22, chap. 628, Laws of 1857, as amended by chap. 820, Laws of 1873, and chap. 109, Laws of 1878), which provides that penalties for violation of said law may be sued for in the name of the overseers of the poor of the town or city where they are incurred, “ except in such towns or cities as have no overseers of .the poor, in which case such penalties shall be sued for and recovered by and in the name of the board of commissioners of excise of the town or city.” „

      Accordingly held, that an action to r.ecover penalties for violations of the (excise law in said city were properly brought in the name of the board of commissioners of excise of the city.
    (Argued June 7,1886 ;
    decided October 5, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made October 31, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.
    The nature of the action and the material facts are stated in the opinion.

      Nathaniel C. Moak and John D. Teller for appellants.
    The action was not brought by the proper party. It ought to have been in the name of the board of charities and police of the city of Auburn. (Laws of 1857, chap. 628, § 22; Laws of 1873, chap. 820; Laws of 1878, chap. 109; Overseers, etc., Pittstown v. Overseers, etc., Plattsburgh, 18 Johns. 407, 418 ; Stief v. Hart, 1 N. Y. 20; 1 Kent’s Com. [5th ed.] 464; Foliant's Case, 5 Coke, 116; 1 Lord Raymond, 682; Hagerty v. Agan, 3 Sup. Ct. [T. & C.] 782; Bd. Com'rs Excise v. Glennon, 21 Hun, 244; Com'rs, etc., Kingston v. Osterhoudt, 23 id. 66; Bd. Excise Westchester v. Curley, 9 Abb. N. C. 100; Bd. Com'rs Charities, etc., N. Y. v. McGurrin, 6 Daly, 349 ; Hess v. Appell, 62 How. 313 ; Com'rs Charities, etc., v. Richmond, 28 Hun, 488; People, ex rel. Lord, v. Crooks, 53 N. Y. 648; Alvord v. Syracuse Sav. Bk., 98 id. 599; Ontario Bk. v. Bunnell, 10 Wend. 192; Johnson v. H. R. R. R. Co., 49 N. Y. 460.) Where one statute is repealed and a more comprehensive one enacted relating to the- same subject, in construing one resort may be had to the other. (Comm. v. Bralley, 3 Gray, 457; U. S. v. Freeman, 3 How. 556 ; Hayes v. Hanson, 12 N. H. 284 ; Griswold v. Atlantic Dock Co., 21 Barb. 225 ; People v. Com'rs of Police, 59 N. Y. 92.) A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and statutes are to be expounded according to their meaning rather than according to the letter. (In re Evergreens, 47 N. Y. 220; People v. N. Y. C. R. R. Co., 13 id. 78 ; Holmes v. Carley, 31 id. 289 ; Chase v. N. Y. C. R. R. Co., 26 id. 523.) A statute is not to be construed to repeal the common law unless the intent to alter it is clearly expressed. (Melody v. Real, 4 Mass. 471; Comm. v. Knapp, 9 Pick. 496 ; Comm. v. Rumford Ch. Works, 16 Gray, 231.) A construction which repeals a part of a statute and seriously mars the harmony of a system should be very clear before it is adopted by the court. (Hayes v. Symonds, 9 Barb. 260; Wallace v. Bassett, 41 id. 92.) When a statute is made in addition to another on the same subject without repealing it, the provisions of both statutes must be construed together. (Pearce v. Atwood, 13 Mass. 324; Chamberlain v. Chamberlain, 43 N. Y. 424; McCarter v. Orphan Asylum, 9 Cow. 437-506.) There should be no conflict between the decisions of the courts. (People v. Corners of Taxes, 26 Hun, 446.) The effect, of the construction of the statutes upon the subject in controversy, contended for by the respondent, infringes the provisions contained in article 1, section 17, and article 10, section 2, of the State Constitution. (People, ex rel. Wood, v. Draper, 15 N. Y. 532; People v. Pinckney, 32 id. 377; People v. McKinney, 52 id. 374; People v. Crooks, 53 id. 648 ; People v. Raymond, 37 id. 428.) A statute which transfers powers from an office existing at the time of the adoption of the Constitution to a new office not then created, there being no change of territorial authority, is unconstitutional. (Devoy v. Mayor, etc., 36 N. Y. 449 ; People v. Pinckney, 32 id. 382.) There is no evidence in the case to show that “ rock and rye ” is a strong .and spirituous liquor, and the court cannot, without proof, assume that it was. (Rau v. People, 63 N. Y. 277.) It cannot be pre-. sinned, from evidence of such liquors being drunk upon the premises, of' parties having a storekeeper’s license, that they were sold with intent that they should be so drank. (People v. Lyon, 27 Hun, 180.) The court erred in instructing the jury to render a verdict for the plaintiff for $50 for each sale. (Sturgis v. Spafford, 45 N. Y. 453; Fisher v. N. Y. C. R. R. Co., 46 id. 644; Mix v. Same, 47 id. 678.)

      F. D. Wright for respondent.
    The defendant should have pleaded that the plaintiff had not legal capacity to sue. (Code of Civ. Pro., §§ 488, 498, 499 ; Wright v. Wright, 54 N. Y. 441.) The second clause of the motion for a nonsuit that the plaintiff “ had not made out a cause of action,” did not raise the question of the plaintiff’s capacity to sue, because that defense had not been pleaded. (Irving Nat. Bh. v. Corbitt, 10 Abb. N. C. 85; Phoenix Nat. Bk. v. Donnell, 40 N. Y. 410; affirming 41 Barb. 571; Bk. of Lowville v. Edwards, 11 How. 216 ; Viburt v. Frost, 3 Abb. 119 ; Myers v. Machado, 6 id. 198 ; Hobart v. Frost, 5 Duer, 673.) The plaintiff was, in fact, the proper party plaintiff in this action. (Laws of 1857, chap. 628 ; Laws of 1878, chap. 109 ; Laws of 1879, chap. 53, tit. 7, §§ 71-80.) When acts can be harmonized by a fair and liberal construction, it must be done. (Sedgwick’s Constr. Stat. and Const. Law, 98, note a ; Comar v. Southern Ex. Co., 37 Ga. 397.) Ordinarily express language is used when a repeal is intended, and a repeal by implication is not favored. (Sedgwick’s Constr. Stat. and Const. Law, 98, note a.) The implication of repeal must be a necessary one. (Sedgwick’s Constr. Stat. and Const. Law, 98, note a ; Naylor v. Field, 5 Dutch. 287.) If two statutes on the same subject can stand together without destroying the evident intent and meaning of the latter one, there will be no repeal. (Sedgwick’s Constr. Stat. and Const. Law, 98, note a ; Roberts v. Fates, 36 111. 268.) When the acts are upon different subjects, the rule as to implied repeal applies more forcibly. (Ransom v. Ransom, 62 111. 63.) Courts are bound to uphold the prior law, if the two acts may well stand together. (Sedgwick’s Constr. Stat. and Const. Law, 106; Bowen v. Lease, 5 Hill, 221; Williams v. Potter, 2 Barb. 316; People v. Deming, 13 How. 44.) To repeal a statute by implication there must be such a positive repugnancy between the provisions of the new law and the old one, that they cannot stand together orbe consistent. (Potter’s Dwarris on Stats, and Constr. 154, note 4.) Repeals by implication are never allowed except in cases where the inconsistency and repugnancy are plain and unwarrantable. ( Wallace v. Bassett, 41 Barb. 92; Potter’s Dwarris on Statutes, 157; Hayes v. Symonds, 9 Barb. 260 ; Village of Cohoes v. Moran, 25 How. Pr. 385-387; In re Evergreens, 47 N. Y. 219, 220 ; In re Corners Central Park, 50 id. 493 ; Vanderburg v. Village of Greenbush, 66 id. 1-4; McKenna v. Edmunston, 64 How. 461-2.) A local statute providing a remedy in a particular class of cases arising in a particular locality is not repealed by a subsequent statute, general in its application, although the terms of the subsequent act are broad enough to include the cases embraced in the special law, unless the intent to repeal is manifest. ( Whipple v. Christian, 80 N. Y. 623-6 ; In re Com'rs Central Park, 50 id. 493 ; McKenna v. Edmunston, 91 id. 230-3.) In such case a plaintiff can recover the penalty for each violation proved. (Longworthy v. Knapp, 4 Abb. Pr. 115-17; Deyo v. Rood, 3 Hill, 527-9; City of Brooklyn v. Cleves, Lalor’s Supp. to H. & D. 231-33; People v. N. Y. C. R. R. Co., 13 N. Y. 78-82; Suydam v. Smith, 52 id. 383-89.)
   Earl, J.

This action was commenced to recover penalties for violations of the excise law in the city of Auburn, from the 1st day of June, 1880, to the 1st day of June, 1881. The plaintiff recovered, and the judgment having been affirmed at the General Term, the defendants appealed to this court.

The main question to be decided now is, whether the action was properly commenced by the plaintiff, or whether it should have been commenced by the board of charities and police of the city of Auburn, and the determination of this question involves the construction and consideration of various statutes.

From the incorporation of the city of Auburn in 1848 until 1879, there were overseers of the poor in that city possessing the powers and duties of overseers of the poor of the several towns of this State. (Laws of 1848, chap. 106, § 8 of tit. 4, § 1 of tit. 9, §§ 1 and 7 of tit 11; Laws of 1859, chap. 431, § 6 of tit. 5, § 1 of tit. 9; Laws of 1869, chap. 273, §§ 5, 61, 203, 216.) By the act, chapter 53 of the Laws of 1879, section 71 of title 7, it was provided that “the commissioners of charities and police and the mayor ex officio should constitute a board of charities and police of the city of Auburn, of which the mayor shall be president.” Section 78 of the same act reads as follows : “ The said board shall possess the powers and execute the duties of overseers of the poor in towns, and appoint a superintendent of charities and a clerk when necessary, to aid in the discharge of their duties.” By chapter 628 of the Laws of 1857 (§ 22), the power to sue for violations of the excise law was given to the board of commissioners of excise of the different counties. By chapter 820 of the Laws of 1873 (§ 1), section 22 was amended so as to read as follows: “ The penalties imposed by this act, except those provided for by sections 15 and 19, shall be sued for and recovered in a civil action in the manner provided by law for the recovery of penalties, by and in the name of the overseers of the town in which the alleged penalty was incurred, and the amount so recovered, when collected, together with all the costs of the proceedings for such recovery and collection, shall, within thirty days after such collection, be paid by the officer or party receiving the same to the county treasurer of the county for the support of the poor of such county, except as is otherwise provided by law.” The same section was again amended by chapter 109 of the Laws of 1878, by providing that the penalties might be sued for and recovered in the name of the overseers of the poor of the town or city in which the alleged penalty is incurred, “ except in such towns or cities as have no overseers of the poor, in which case said penalties shall be sued for and recovered by and in the name of the board of commissioners of excise of the town or city aforesaid and paid over to the treasurer of the county for the support of the poor of the town or city.”

The claim of the defendants is that by the charter amendment of 1879, the board of charities and police for the city of Auburn were empowered to execute the duties of overseers of the poor, and that, as it was among the duties of overseers of the poor to sue for penalties for violations of the excise law, that duty devolved upon that board. The claim of the plaintiff is that when the office of overseer of the poor was abolished in the city of Auburn, and the board of charities and police was substituted in its place, there was, within the meaning of the act of 1878, no overseer of the poor in the city, and hence that it devolved upon the board of commissioners of excise of the city to sue for these penalties; and we think the latter claim is supported by the best reasons.

After the enactment of chapter 109 of the Laws of 1878, it was the general system, provided for the whole State, that overseers of the poor, wherever they existed in the towns and cities of the State, should sue for and recover the penalties for violations of the excise law; but that where there were no overseers of the poor, such penalties should be sued for and recovered by and in the name of the commissioners of excise. While such was the law and the system, the act of 1879 was passed and abolished the office of overseer of the poor in the city of Auburn, and thereafter there was no such office in that city; and the precise exigency existed which devolved upon the commissioners of excise the duty to sue for the penalties. It cannot be supposed that when the legislature devolved upon the new board created the duties of the office of overseer of the poor, it meant to change the general system provided in the legislation of 1878, and to devolve upon the new board the duty to prosecute for violations- of the excise law. The two acts of 1878 and 1879 must be construed together, and must be so construed that they can stand together, and .upon such construction the latter act must be so limited as not unnecessarily to interfere with the prior act; and the duty which by the general law was imposed upon the board of commissioners of excise cannot be held to be one of the duties devolved upon the new board created for the city.

It cannot be denied that much can be said and that much has been ably said in favor of the contention of the defendants upon the question in dispute ; but the question is a technical one having nothing whatever to do with the merits of the case, and we think the wiser and better rule is to hold that the general system provided by the law of 1878 prevails everywhere in the State, where by its terms it is applicable, unless by some new enactment its provisions have been changed.

Other exceptions to which our attention was called upon the argument point out no error and require no special consideration.

The judgment should be affirmed.

All concur.

Judgment affirmed.


text:
    The Board of Commissioners of Excise of the City of Auburn, Respondent, v. Gurdon F. Merchant, Appellant.
    A statute prescribing rules of evidence in either civil1 or criminal cases, which leaves a party a fair opportunity to make his defense, and to submit all the facts to the jury, to be weighed by them upon evidence legitimately bearing upon them, cannot be assailed on constitutional grounds. The provision of the excise law (§ 11, chap. 628, Laws of 1857), which pro- " vides 'that where a person is seen to drink intoxicating liquor on the premises óf one who has simply a license to sell liquor not to be drank on his premises, it shall be prima facie evidence that the liquor was sold by the occupant of the premises or his agent with the intent that the same should be drank thereon, is not violative of the constitutional guarantees of due process of law and trial by jury.
    Where it appeared in an action to recover penalties for violations of said excise law, that defendant having a license to sellliquorsnot to be drank on his premises, kept liquor for sale and was engaged in selling it to be drank thereon indiscriminately to persons calling for it, held, that evidence of the drinking of liquor upon the premises was at common law and without regard to said statute prima facie proof that the liquor was bought to be drank thereon.
    (Argued June 7, 1886;
    decided October 5, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made October 31, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.
    This action was brought to recover penalties for alleged violations of the excise law.
    The material facts are stated in the opinion.

      Nathaniel C. Moak and John D. Teller for appellant.
    The action was not brought by the proper party. It ought to have been in the name of the board of charities and police of the city of Auburn. (Laws of 1857, chap. 628, § 22; Laws of 1873, chap. 820; Laws of 1878, chap. 109 ; Laws of 1869, chap. 436; 1 Ld. Raym. 682; 2 Edm. Stat. 502, § 1; Holmes v. Carley, 31 N. Y. 289 ; 1 R. S. [6th ed.] 823, § 9; Laws of 1866, chap. 30, § 1; Hagerty v. Agan, 3 Sup. Ct. [T. & C.] 872 ; Bd. of Com’rs Pub. Charities and Cor. v. McGurrin, 6 Daly, 349; Bd. of Com’rs of Excise v. Glennon, 21 Hun, 244; People v. Com’rs of Taxes, 26 id. 446 ; Bd. of Excise Westchester Co. v. Curley, 9 Abb. N. C. 100 ; Gloversville v. Howell, 70 N. Y. 287.) It was error for the court to charge the jury “ that upon proof being made of the fact that liquor was seen to be drank on the premises, that is primafaeie evidence that it was sold with intent that it was to be drank on the premises.” (People v. Lyon, 27 Hun, 180.) The case at bar is of a quasi criminal character. (Comm. v. Newell, 5 Gray, 76; Same v. Tuttle, 12 Cush. 502; Same v. Burding, id. 506.) While the legislature may establish the effect of certain evidence and shift the burden of proof from one party to another, and declare what may be presumptive evidence of certain facts, it has not the power to make the lawful act of one person presumptive evidence of the unlawful act of another without any proof of his knowledge, complicity or consent. (Canst., art. 1, § 6.) The court erred in instructing the jury to render a’ verdict for the plaintiff for §50 for each sale. (Sturgis v. Spafford, 45 N. Y. 453; Fisher v. N. Y. C. R. R. Co., 46 id. 644; Mix v. Same, 47 id. 678.)

      F. D. Wright for respondent.
    Plaintiff is entitled to recover the penalty for each offense proved. (Langworthy v. Knapp, 4 Abb. Pr. 115. 117; Deyo v. Rood and Kemble, 3 Hill, 527, 529 ; Brooklyn v. Cleves, Hill & Den. [Lalor’s Supp.] 221-233 ; People v. N. Y. C. R. R. Co., 13 N. Y. 78-82, Suydam v. Smith, 52 id. 383, 389.) The plaintiff may malee a prima facie case by circumstantial evidence. (Abb. Trial Ev. 774; State v. Haynes, 66 Me. 114; Comm. v. Cotter, 97 Mass. 336; Wallace v. Everts, 3 Barb. 523.) Evidence of keeping liquors for sale is competent on the question of sale of the same. (Abb. Trial Ev. 774.) The fact that it was a place of resort and that persons went in sober and came out drunk is competent on the question of the sale of intoxicating liquors. (Abb. Trial Ev. 774; Comm. v. Stone, 97 Mass. 548; Comm. v. Kennedy, id. 234.) Sale by a servant is prima facie by the master. (Abb. Trial Ev. 774 , State v. Wentworth, 65 Me. 234.) The legislature, in civil cases at least, has the right to declare what shall be presumptive evidence of any fact. (Hand v. Ballou, 12 N. Y. 543 ; People, ex rel. v. Mitchell, 45 Barb. 212 ; Hickox v. Tallman, 38 id. 608; Donahue v. O'Connor, 45 Sup. Ct. 297; Howard v. Moot, 64 N. Y. 262, 269; 5 Sup. Ct. [T. & C.] 93.) Where a person enters a tavern or saloon and calls for whisky and it is furnished to him, the law implies a sale. (State v. Jarrett, 35 Mo. 357; Stack v. Lansing, 32 Hun, 420.) The defendant should have pleaded that the plaintiff had not legal capacity to sue. (Code of Civil Pro., §§ 488-93, 498, 499 ; Wright v. Wright, 54 N. Y. 441.) The second clause of the motion for a nonsuit, that the plaintiff “ had not made out a cause of action, ” did not raise the question of the plaintiff’s capacity to sue, because that defense had not been pleaded. (Irving Nat. Bk. v. Corbitt, 10 Abb. N. C. 85; Phoenix Nat. Bk. v. Donnell, 40 N. Y. 410; affirming 41 Barb. 571; Bk. of Lowville v. Edwards, 11 How. 216; Viburt v. Frost, 3 Abb. 119 ; Myres v. Machado, 6 id. 198 ; Hobart v. Frost, 5 Duer, 673.) The plaintiff was in fact the proper party plaintiff in this action. (Laws of 1857, chap. 628 ; Laws of 1879, chap. 53, tit. 7, §§ 72-80, 110.) There is no repeal by necessary implication. A repeal of a statute by implication is not favored, and to constitute such repeal the implication must be a clear and necessary one. (Sedgwick on Constr. of Stat. and Const. Law, 98, note a; Comar v. Southern Express Co., 37 Ga. 397; Naylor v. Field, 5 Dutch. 287; Roberts v. Fates, 36 I11. 268; Ranson v. Ranson, 62 id. 63; Sedgwick on Constr. of Stat. and Const. Law, 106; Williams v. Potter, 2 Barb. 316 ; People v. Deming, 13 How. 44; Potter’s Dwarris on Stat. and Const. 154, 157, note 4; Wallace v. Bassett, 41 Barb. 92 ; Hayes v. Symonds, 9 id. 260; Cohoes v. Moran, 25 Pet. 385, 387; In re Evergreens, 47 N. Y. 219, 220; In re Com’rs of Central Park, 50 id. 493; Van Denburg v. Greenbush, 66 id. 1-4.)
   Earl, J.

The main question to be determined in this case is whether this action should have been commenced by the present plaintiff or by the board of charities and police for the city of Auburn, and upon this question our views have been sufficiently expressed in the case just decided against Burtis, and we refer to the opinion pronounced in that case.

Upon the trial of this action the judge charged the jury that ' “the law provides in such case as this, that upon proof being made of the fact that liquor was seen to be drank on the premises, that is prima facie evidence that it was sold with intent that it was to be drank on the premises.” To this portion of the charge defendant’s counsel excepted, and the exception is now relied upon as pointing out error fatal to the judgment.

In section 11 of the Excise Act (Chap. 628, Laws of 1857), provision is made for licenses to store-keepers and shop-keepers, authorizing them to sell spirituous liquors in quantities less than live gallons not to be drank upon their premises. Then in section 12 it is provided as follows: “ Such licenses shall not be granted unless the commissioners are satisfied that the applicant is of good moral character, nor until such applicant shall have executed a bond to the people of this State * * * conditioned that * * * he will not sell, or suffer to be sold, any strong or spirituous liquors or wines to be drank in his shop or house, or in any out-liouse, yard or garden appertaining thereto, and that he will not suffer any such liquor sold by virtue of such license to be drank in his shop or house or in any outhouse, yard or garden belonging thereto ; and whenever any person is seen to drink in such shop or house, out-house, yard or garden belonging thereto, any spirituous liquors or wines forbidden to be drank therein, it shall be prima facie evidence that such spirituous liquors or wines were sold by the occupant of such premises or his agent with the intent that the same should be drank therein. On any trial for the offense last aforesaid, such occupant or agent may be allowed to testify respecting such sale.” It was undoubtedly this law to which the judge referred in his charge.

All the provisions of section 12 have reference to licenses to sell liquor in quantities less than five gallons not to be drank on the premises, and the rule of evidence prescribed applies only to cases where such licenses have been granted. The defendant had such a license from September 6, 1880, to May 1, 1881, when it was revoked. Upon the trial the plaintiff gave evidence tending to show violations of the license by the defendant by the sale of liquor to be drank upon his premises between September 1, 1880, and June, 1881, and the proof of sales was limited to that period. The charge of the judge was authorized by the statute if applied to drinking liquor upon defendant’s premises during the time he had the license. But it was not authorized if applied to the drinking of liquor there before September sixth, or after May first. There was no specific, definite evidence that any of the drinking took place before the first or after the latter date, and if the defendant desired to have the charge so qualified as to apply only to drinking which took place while the license was in force, he should have called the attention of the judge to the facts, and have requested the qualification; and now the charge must be treated as if it applied only to the period covered by defendant’s license.

Thus the charge was authorized by the words of the statute.

But the learned counsel for the appellant claims that this provision of the statute is unconstitutional on the ground that it violates the constitutional guaranties of due process of law and trial by jury. We think the claim unfounded. The general power of the legislature to prescribe rules of evidence and methods of proof is undoubted. While the power has its constitutional limitations, it is not easy to detine precisely what they are. A law which would practically shut out the evidence of a party and thus deny him the opportunity for a trial would substantially deprive him of due process of law. It would not be possible to uphold a law which made an act prima facie evidence of crime over which the party charged had no control and with which he had no connection, or which made that prima facie evidence of crime which had no relation to a criminal act and no tendency whatever by itself to prove a criminal act. But so long as the legislature, in prescribing rules of evidence, in either civil or criminal cases, leaves a party a fair opportunity to make his defense and to submit all the facts to the jury to be weighed by them, upon evidence legitimately bearing upon them, it is difficult to perceive how its acts can be assailed upon constitutional grounds. Affidavits in town bonding acts and tax deeds have been declared to be prima facie evidence of regularity and validity, and numerous statutes of similar character are to be found in this and other States. In Comm. v. Williams (6 Gray, 1), it was held in a criminal prosecution for a violation of an excise law, that a statute which provided that the delivering of any spirituous and intoxicating liquors in or from any building or place other than a dwelling-house, “shall be deemed prima facie evidence of a sale,” was constitutional and valid. In State v. Hurley (54 Me. 562), it was held that an act. which provided that “whenever an unlawful sale” of intoxicating liquors “is alleged and a delivery proved, it shall not be necessary to prove payment, but such delivery shall be sufficient evidence of sale,” was constitutional. In Howard v. Moot (64 N. Y. 261), Allen, J., said : “ The rules of evidence are not an exception to the doctrine that all rules and regulations affecting remedies are, at all times, subject to modification and control by the legislature. * * * It may be conceded, for all the purposes of this appeal, that a law that should make evidence conclusive which was not so necessarily in and of itself, and thus preclude the adverse party from showing the truth, would be void, as indirectly working a confiscation of property or a destruction of vested rights. But such is not the effect of declaring any circumstance or any evidence, however slight, prim,a facie proof of a fact to be established, leaving the adverse party at liberty to rebut and overcome it by contradictory and better evidence.”

Here the act which is maáe prima facie evidence of an illegal sale takes place upon the premises of the person charged, has some relation to and furnishes some evidence of the alleged illegal sale, and occurs in a place where liquors are authorized to be kept and sold. To make drinking the liquor in such a place and under such circumstances prima facie evidence of an illegal sale to the person drinking, violates no constitutional guaranty. It leaves a party ample opportunity to make his defense. It is specially provided, what is now the general law, that the party can be a witness in his own behalf, and thus it can never be difficult for him to show what the facts really are. The burden of proof is not even really changed. The statute enables the prosecutor to make a prima facie case by proof of the drinking. But the defendant can show the circumstances attending the drinking, his relation thereto and any other facts tending to absolve him from liability, and then on the whole case, the burden still rests upon the prosecution to establish the alleged sale. The defendant has the full benefit of jury trial and due process of law and a full and fair opportunity free from any undue hindrance or embarrassment to make his justification and defense. Hence the charge resting upon the statute was not erroneous.

But the statute need not be invoked to uphold the charge. Under the circumstances of this case, the drinking was good common-law evidence of a sale in violation of the statute. The defendant kept liquor for sale, and was shown to be engaged in selling it to be drank upon his premises quite indiscriminately to persons calling for it. It is against all experience that he gave it away or that persons came there to drink liquor bought elsewhere. It was in his power to prevent the drinking which took place from glasses presumably furnished by him. Evidence of the drinking under such circumstances was certainly prima facie proof that the liquor was bought to be drank there, and sufficient to justify the charge.

We are, therefore, of opinion that the judgment should be affirmed with costs.

All concur.

Judgment affirmed.

         Ante, p. 136.


author: Danforth, J.

text:
    Henry Rozell et al., as Commissioners of Highways, etc., Respondents, v. Eliza Andrews, Appellant.
    The owner of land cannot, by the mere removal of his fence, impose upon the public a strip of land as a highway; nor can the public, because of such removal, deprive the owner of any right or interest in or control over the land.
    An equitable action may not be maintained by commissioners of highways . to compel the removal of or to restrain obstructions of a high way. The statute prescribes the method of procedure on their part. (1 R. S. 521, § 103 et seq., as amended by chap. 245, Laws of 1878.)
    (Argued June 5, 1886;
    decided October 5, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 22, 1883, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term.
    This action was brought by plaintiffs, as commissioners of highways of the town of Eishkill, to compel the defendant to remove so much of a fence as she had built upon a strip of land claimed by plaintiffs as part of a highway, and to restrain the further erection of such fence,

      The court found that about eight years prior to the trial, defendant, who is the owner of lands on the easterly side of the highway, moved her fence back about ten feet, and gave and dedicated the same to the public as a highway. The act complained of was moving part of the fence back to the original Hue.
    Further facts appear in the opinion.

      William D. Guthrie for appellant.
    To constitute a highway by dedication, it is essential not only that there shall exist an exphcit and absolute intention on the part of the owner of the land to permanently set apart and surrender it to the public use, but that such dedication shall be accepted by the proper public authorities, or that the highway so dedicated shall have been actually used by the public, (Holdane v. Cold Spring, 21 N. Y. 471, 476 ; Niagara Falls Suspension Bridge Co. v. Bachman, 66 id. 261, 269.) The acts and declarations of the donor relied on by the public must be deliberate, unequivocal and decisive. (Gowen v. Phila. Exchange Co., 5 W. & S. 141, 144; Davis v. Clinton, 58 Iowa, 389; Mansur v. The State, 60 Ind. 357; Harding v. Town of Hale, 61 I11. 192, 200) Aside from the question of intent to dedicate, it was equally essential in this case to establish user by the public in the absence of any acceptance by the proper authorities. (Mc-Manus v. Butler, 51 Barb. 436, 449 ; City of Cincinnati v. Lessee of White, 6 Pet. 431, 439.) At most all that can be pretended in this case is the user of the ditch which formed the boundary of the road and lay between it and the trees, and any rights of the public are consequently to be confined thereto. (Walker v. Gaywood, 31 N. Y. 51, 63; Watrous v. South-worth, 5 Conn. 305, 309.) If a dedication be conceded, still under the circumstances detailed, it was revocable by the defendant. (Haldane v. Cold Spring, 21 N. Y. 474-479 ; McCarthy v. Whalen, 87 id. .148, 151.) Even if the plaintiffs as commissioners of highways had so attempted, they had no legal power .to accept the dedication of a highway or any part thereof, except in the manner particularly prescribed by law. (People,

      ex rel. Everett, v. Bd. of Supervisors, 93 N. Y. 397, 401; City of Rochester v. Town of Rush, 80 id. 302, 311; People, ex rel. Van Keuren, v. Town Auditors, 74 id. 310, 315 ; People, ex rel. Lasher, v. McNeil, 2 N. Y. Sup. Ct. 140; Talmage v. Huntting, 29 N. Y. 447; Coykendall v. Durkee, 13 Hun, 260, 262; Putnam v. Valentine, 5 Ohio, 187; Badeau v. Mead, 14 Barb. 828, 339.)

      H. H. Hustis for respondents.
   Danforth, J.

We think there is nothing in the record to show that the strip of land in question was not left open for the pleasure or convenience of the owner rather than the accommodation of the public; but assuming the act of the owner to be equivocal and consistent with a dedication to the public, it is plain there has been no acceptance on its part, nor such actual user as might take its place. The plaintiffs do not aver acceptance, and the only one of them who testifies, states that he never heard of any dedication of the land. The act relied on as an act of dedication is the setting back by the defendant of her fence and placing trees on the old line. The alleged user is for a highway with her knowledge and consent. We are referred to no evidence of this and find none. An owner of land cannot, by the mere removal of his fence, impose upon the public a strip of land as a street, nor can the public deprive the owner of any right or interest in, or control over it by that circumstance. Here there was nothing more. There was neither an actual gift by the owner of the land, nor a user by the public, no evidence by word, or by any decisive act of an intent even to give or dedicate, and the motion to dismiss the complaint should have been granted.

We are also of opinion that the action is misconceived. It is in equity, and the only relief sought is that the defendant be compelled to remove so much of her fence as she has already restored to its former position, and be restrained by injunction from replacing the rest. The plaintiffs sue as commissioners of highways. The statute has defined their duty and vested them with power to execute it. Upon the plaintiff’s theory the defendant has obstructed the highway. The statute prescribes the method of procedure on their part. That she threatens still further to obstruct it can give them no cause of action. If she executes the threat, they have in a proper case the power of summary removal of the fence at her expense, but if the encroachment be denied, the issue must go before a jury. (1 R. S., tit. 1, p. 1, chap. 16, art. 5, as amended by Laws of 1878; chap. 245 ; Coykendall v. Durkee, 13 Hun, 260.) The plaintiffs can have no remedy by this action, and it is needless, therefore, to grant a new trial.

The judgment should be reversed, and the complaint dismissed, with costs.

All concur.

Judgment accordingly.


author: Andrews, J.

text:
    John Hinchliffe, Respondent, v. Margaret Shea, Appellant.
    The joinder of a wife with her husband in a deed or mortgage of his lands does not operate by way of passing an estate, but inures simply as a release of her future contingent right of dower in aid of the title or lien so created ; and so long as there remains a subsisting title or interest under the deed or mortgage as against it, she is concluded from claiming dower.
    Where, however, the deed or mortgage is defeated by a sale on execution under a prior judgment, the wife is restored to her original position and may, after her husband’s death, recover dower in the lands.

      It seems that if in such case, on the execution sale, there had been a surplus applicable to a mortgage so executed, the widow could not be endowed therein except after satisfaction of the mortgage.

      BmchMffe v. Shea (34 Hun, 365), reversed.
    (Argued June 9, 1886 ;
    decided October 5, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 9, 1884, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. (Reported below, 34 Hun, 365.)

      This action was brought to foreclose a mortgage executed March 25, 1878, by Martin Shea and his wife, the defendant, Margaret Shea, upon lands of the husband.
    In 1880 the premises were sold under an execution issued upon a judgment recovered in 1874 against said Martin Shea, and, not having been redeemed, were conveyed by the sheriff to the purchaser. Martin Shea died April 8, 1882, and shortly thereafter the purchaser conveyed the premises to his widow.
    The trial court held that the dower interest of Margaret'Shea was subject to the mortgage, and the judgment directed a sale thereof.

      William N. Dykman for appellant.
    A wife’s signature to a deed or mortgage of her husband’s land acts only as a bar or estoppel; it is void unless made in conjunction with a conveyance of the husband’s title, and if the conveyance it is joined with' ceases for any reason to act, the dower right is released. Only he can benefit by a wife’s release of dower who acquires the very title which was created by the conveyance with which the release is joined. (Jackson, v Vanderheyden, 17 Johns. 169; Maloney v. Horan, 49 N Y 111 ; 1 Wash. on Real Prop. 284; Hawley v. Bradford, 9 Paige’s Ch. 200 ; Green v. Putnam. 1 Barb. 500; Merch. Bk. v Thompson. 55 N. Y. 7, 12; Marvin v. Smith, 46 id. 571.) When the husband is dead the widow’s dower right is property and liable for her debts. (Tompkins v. Fonda, 4 Paige, 448; Paige v. Becker, 87 N. Y. 153.)

      James M. Baldwin for respondent.
    By joining with her husband m the mortgage, Margaret Shea released and relinquished to the plaintiff mortgagee and his assignors all her dower interest or future contingent right in the mortgaged property, and having outlived her husband and the debt being unpaid and the mortgage being valid, the mortgagee is entitled to the judgment of foreclosure and sale here appealed from. (2 Scribner on Dower, chap. 12, § 49 ; Hawley v. Bradford,, 9 Paige, 201; Learned v. Cutler, 18 Pick. 9 ; Smith v. Handy, 16 Ohio, 191.) Her dower interest is liable for her husband’s debt, the same being secured by his and her mortgage. (Leavenworth v. Cooney, 48 Barb. 570.) The plaintiff has the right, though the dower has not been formally admeasured, to have judgment of foreclosure and sale thereof. (Tompkins v. Fonda, 4 Paige, 448 ; Payne v. Beeker, 87 N. Y. 153 ; Pope v. Mead, 99 id. 201.)
   Andrews, J.

The joinder by a married woman with her husband in a deed or mortgage of his lands, does not operate as to her by way of passing an estate, but inures simply as a release to the grantee of the husband, of her future contingent right of dower in the granted or mortgaged premises, in aid of the title or interest conveyed by his deed or mortgage. Her release attends the title derived from the husband, and concludes her from afterward claiming dower in the premises as against the , grantee or mortgagee, so long as there remains a subsisting title or interest, created by his conveyance. But it is the generally recognized doctrine that when the husband’s deed is avoided, or ceases to operate, as when it is set aside at the instance of creditors, or is defeated by a sale on execution under a prior judgment, the wife is restored to her original situation, and may, after the death of her husband, recover dower as though she had never joined in the conveyance. (Robinson v. Bates, 3 Metc. 40; Malloneys. Horan, 49 N. Y. 111; Kitzmiller v. VanRensselaer, 10 Ohio St. 63 ; Littlefields. Crocker, 30 Me. 192.)

In short the law regards the act of the wife in joining in the deed or mortgage, not as an alienation of an estate, but as a renunciation of her inchoate right of dower in favor of the grantee or mortgagee of her husband, so far as respects the title or interest created by his conveyance. It follows therefore that her act in joining in the conveyance, becomes a nullity whenever the title or interest to which the renunciation is incident, is itself defeated. (Scribner on Dower, chap. 12, § 49.) The wife’s deed or mortgage of her husband’s lands, cannot stand independently of the deed of her husband when not executed in aid thereof, nor can she by joining with her husband in a deed of lands to a stranger, in which she has a contingent right of dower, but in which the husband has no present interest, bar her contingent right. (.Marvin v. Smith, 46 N. Y. 571.) These principles are we think decisive of this case. The plaintiff’s mortgage has been defeated by the paramount title, derived under the execution sale. It was the husband’s mortgage, and not the mortgage of the wife, except for the limited and special purpose indicated. The lien of the mortgage, as a charge on the lands of the husband, has by the execution sale, been subverted and destroyed. Nor can the security be converted into a mortgage of the widow’s dower, now consummate by the death of her husband. This would be a perversion of its original purpose. Her act in signing the mortgage, became a nullity on the extinguishment of the lien on the husband’s lands. If on the execution sale there had been a surplus applicable to the mortgage, it might very well be held that the widow could not be endowed therein, except after the mortgage had been satisfied.

• The surplus would represent in part the mortgaged premises. (See Elmendorf v. Lockwood, 57 N. T. 322.)

We think the authorities require a reversal of the judgment.

Judgment reversed and complaint dismissed, with costs.

All concur.

Judgment accordingly.


text:
    Abraham Hewlett et al., Appellants, v. William Elmer, Respondent.
    An appeal to this court from a judgment of General Term, affirming a decree of the surrogate admitting a will to probate, does not bring up for review a question of fact depending upon conflicting evidence; it is for it only to determine whether there is any evidence upon which the decision below might fairly and reasonably stand.
    The power of the court in this respect was not enlarged by the amendment of 1883 (Chap. 229, Laws of 1883), to the provision of the Code of Civil Procedure (subd. 1, § 3347), limiting the effect of certain chapters of the Code, including that in reference to surrogates (Chap. 18), to actions or special proceedings commenced on or after September 1,1880. The amendment only regulates such appeals as by existing laws were permitted.

      By the Code (§ 3545), the practice upon a trial by a Surrogate s Court of a question of fact, and the preparation of papers on which an appeal shall be heard, are assimilated to the proceedings on and after trial of an action by the court, and for this purpose the surrogates decree is regarded as a judgment in an action.
    The provisions of the Code in reference to this subject are applicable to the Court of Appeals as well as to the Supreme Court, and tnose provisions defining and limiting the questions which may be brought up for review by the former court 1337,1338), are applicable to an appeal from the determination of the General Term, on appeal to it from a surrogate s decree, upon the trial Dy him of an issue of fact.
    (Argued June 9, 1886;
    decided October 5, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, m the first judicial department, entered upon an order made May 11, 1883, affirming certain decrees of the surrogate of the county of New York, the substance of which, as well as the material facts, are set forth in the opinion.

      Henry L. Clinton for appellants.
    As the proceedings in this case were commenced before the surrogate of the county of N ew York in the year 1878, this court will consider and determine upon the facts as well as the law. (Laws of 1881, chap. 681, and Laws of 1883, chap. 229, amending subd. 11 of § 3347 of tit. 2 of chap. 22 of the Code of Civ. Pro.; Sarvent v. Hesdra, 26 Hun, 550.) In appeals from decisions of the Supreme Court affirming decrees of a surrogate, the Court of Appeals should review the facts as well as questions of law. (Laws of 1876, chap. 448, § 1496; Schenck v. Dart, 22 N. Y. 420 ; Caujolle v. Ferrie, 23 id. 90; Moore v. Moore, 21 How. Pr. 211; Robinson v. Raynor, 28 N. Y. 494; Howland v. Taylor, 52 id. 627; Rollwagen v. Rollwagen, 63 id. 504; Children’s Aid Society v. Loveridge, 70 id. 387, 409; In re Ross, 87 id. 514; Davis v. Clark, id. 623; Marx v. McGlynn, 88 id. 357; In re Will of Higgins, 94 id. 554, 557; In re Will of Cottrell, 95 id. 329, 332 ; In re Yates, 99 id. 99, 101; In re Valentine, 100 id. 607.)

      E. L. Fancher for respondent.
    The General Term having affirmed the decision of the surrogate on the facts, there is no jurisdiction in the Court of Appeals to review those decisions on conflicting evidence. (Code of Civ. Pro., § 1337; In re Ross, 87 N. Y. 514; Davis v. Clark, id. 623; Marx v. McGlynn, 88 id. 357.) As there was sufficient evidence to authorize the decision of the surrogate, which was affirmed by the Supreme Court, it follows that this court should affirm the judgment. (Marx v. McGlynn, 88 N. Y. 369.) Even if the testimony presented a question of fact, upon which different minds might easily disagree, still this court must affirm the judgments of the surrogate and Supreme Court. (In re Will of Darrow, 95 N. Y. 668.)
   Danforth, J.

Samuel Wood made his will in July, 1872. He was possessed of a large estate, and after giving considerable sums'of money to his relations, provided through trustees for the founding and endowment of an institution to be called “The Samuel Wood Benevolent Institute,” and a hospital similar to the institution known as St. Luke’s Hospital in Hew York, at the same time declaring the purpose and object of the institute to be “ to assist and maintain ” such of his relations and kindred, with certain exceptions, as shall in the opinion and judgment of his trustees need assistance, and gave to those relations a right to free beds, bedding, attendance, support and maintenance in the hospital during life, if they shall so long need assistance, and a decent burial after death.” On the 20th of March, 1875, he executed a codicil in due form, by which he removed the hospital and the institute from the roll of his beneficiaries, and named in their place The Samuel Wood 'College of Music,” which he desired to found. He dropped one S. from the executors’ list, and substituted Elmer, the respondent, and Abraham Hewlett inhis place. The testator died on the 20th of March, 1878. On the twenty-sixth of that month, Hewlett presented the will and codicil to the surrogate of Hew York for probate, stating in his petition that he was a nephew and the only heir and next of kin of the deceased. Ho opposition was made to the will, and it was admitted to probate on the 20th of April, 1878. The executor S., above referred to, opposed probate of the codicil, but afterward withdrew from the contest, and that instrument was also admitted to probate on the 10th of October, 1878. On the fourteenth of that month Pearsall, one of the legatees under the will, claiming that he was co-contestant with S., and that the latter’s withdrawal from opposition without notice to him, rendered the decree irregular, and insisting that the codicil was invalid on the grounds, first, that the testator was of unsound mind and incompetent to make the same, second, that he was unduly and improperly influenced thereto by Elmer, one of the executors and other interested parties to him unknown, applied to have the probate of the codicil vacated and to be heard upon his objections. Thereupon the surrogate made an order that he be allowed to contest the probate of the codicil, and with certain other persons proceed in regard thereto, and give such further or additional evidence in regard to it as they might be advised, and the question of vacating the probate of said codicil be reserved until the close of said evidence and the determination of such contest; and that subject to the right so given .the said decree admitting the said codicil to probate, and the letters testamentary issued thereon, should stand, with powers to the executors of the will to administer the estate under the will, so far as the same has not been modified by the said codicil.

Upon such testimony as the parties produced, it appeared to the surrogate, according to the recital in a decree made December 31, 1881, that the said Samuel Wood at the time he executed the codicil was of sound mind and under no restraint or influence of fraud, and he adjudged that the decree of October, 1878, admitting the same with the will to probate as the will and codicil of the deceased, be ratified and confirmed. The motion, therefore, to open the decree of October was denied, and the letters issued thereon to Elmer were ratified and declared valid. It was further adjudged that the motion by counsel for the proponent, William Elmer, for allowance to his proctor and counsel be granted. And the amount thereof, as well as allowances to the proctor and counsel for said contestant, Pearsall, be adjusted by an order to be entered at the foot of the decree.

The notice and petition of appeal recites that the only person intended to be made respondent is William Elmer. The appeal is from the whole of both decrees of the surrogate, viz.: that of October, 1878, and that of December, 1881, except so much as relates to the probate of the will. The General Term affirmed the decree in all respects. We do not find in the record that the appellants made any contest before the surrogate, and as it is conceded by all that the will is valid and must stand, it is exceedingly difficult, in view of the provisions of that instrument, to find in what manner they are, within the meaning of that term, “aggrieved ” by the probate of the codicil. They might, indeed, share in the privileges of the institute and hospital, provided the trustees were of opinion they needed assistance, but an interest so contingent, and an enjoyment so dependent upon the discretion of another, can hardly constitute a right capable of enforcement in a court. Moreover, the record before us shows that as to them, the decision of October was final. It would seem, therefore, that the appeal might very well have been dismissed by the Supreme Court, upon these grounds, which are also set up in the answer to the petition of appeal. The whole case, however, was considered by that court, and the appellants fail to satisfy us that there is any error in its decision.

In one of the printed briefs submitted to us in their behalf, we find a point made against that part of the decree of December, which provides for costs to be paid the proponent Elmer, and costs to be paid the contestant Pearsall. First. As to Pearsall; he is not a party to the appeal, and the question affecting him cannot be considered. Second. As to Elmer; it does not appear what, if any, allowance has in fact been made to him, • and the proceeding in that respect, so far as the learned counsel for the appellant has directed our attention to it, seems incomplete, and in its present condition is not the subject of review.

The remaining propositions in the same brief present a very material question, and if well founded, they show that upon the merits the surrogate and General Term have in some inexplicable' way been misled. These propositions are more than once repeated, and are placed upon the intelligible and plain assertions that by the undisputed evidence it is shown first “ that prior to the execution of the codicil, the decedent was in such a condition of mental enfeeblement or senile decay as ■>, to render him an easy prey to undue influence; second, that taking advantage of decedent’s mental condition, Dr. Elmer practiced upon him the grossest fraud and the rankest kind of undue influence, for the purpose of inducing him to make the codicil in question"; third, that the execution of the codicil was the result of fraud and undue influence practiced upon him by Dr. Elmer; fourth, that decedent continued in a state of mental enfeeblement or senile decay, from the time of the execution of the codicil until his death.”

Upon this statement a question of law is presented. If there is evidence leading to a different conclusion, it at most presents a case of conflict, and this alone, if our former decisions {infra) are correct, would not permit an interference with the judgment of the Supreme Court. In such a case the duty of weighing and comparing, and of drawing inferences from evidence is imposed upon the surrogate, subject to review by the General Term, whose judgment, as we have frequently held, is quite independent of any view we might take of the same matter. (Davis v. Clark [Nov., 1881], 87 N. Y. 623; In re Ross [Jany., 1882], 87 id. 514; Marx v. McGlynn [March, 1882], 88 id. 357; In re Higgins, 94 id. 554; In re Cottrell, 95 id. 329; In re Darrow, id. 668; In re Yates, 99 id. 94 ; In re Valentine, 100 id. 607.) These cases are placed upon the ground that an appeal to this court does not bring up for review a question of fact depending upon conflicting evidence, that such question remained with the court below, it being for us only to determine whether there is any evidence upon which its decision might fairly and reasonably stand. A second or supplemental brief, however, submitted in behalf of the appellants, deals entirely with the exposition of the duty and jurisdiction of this court, and is to the effect that a recent and, in this connection, hitherto unnoticed statute (Laws of 1883, chap. 229) requires a qualification of the doctrine heretofore ’ asserted by us. We might very well dispose of this appeal without discussing the last contention. For in answer to the proposition that the proponent utterly failed to support the codicil before the surrogate, and that wholly undisputed evidence was arrayed against it, we have found it necessary to examine the entire body of testimony. Our opinion of its efficacy and force of its probative quality, and its persuasiveness in no degree differs from that of the courts below. A restatement of the evidence is not necessary, nor a-fresh recital of the circumstances which establish the proponent’s case. It has been carefully analyzed by the surrogate, and his views are concurred in by the General Term. With those courts we agree. We find that the codicil expresses the mind of the testator, that he was not impelled to it by duress, fraud or deceit, and with this conclusion we should, under ordinary circumstances, leave the case, but the question as to our jurisdiction and duty to examine such a point upon conflicting evidence is of general importance. It has been fairly raised and argued upon an act of the legislature which is claimed to be expressly directed to that purpose. It will affect other cases, and its construction, therefore, should not be postponed. The provision referred to appears as an amendment to subdivision 11 of section 3347 of the act containing the Oode of Civil Procedure, in chapter 22, title 2, entitled “ Provisions regulating the effect and application of this act.” As originally passed, that subdivision limited (with some exceptions) the effect of chapters 14 to 20, both inclusive, to an action or special proceeding commenced on or after the 1st of September, 1880, that being the day on which-those chapters took effect (§ 3356). In 1881 (Chap. 681, Laws of 1881), subdivision 11 was so amended as to pro.vide that all appeals taken from any order, sentence, decree or determination of a Surrogate’s Court made or entered in such court on or after the 1st day of September, 1880, in any matter or proceeding pending or undetermined in such court on 1st day of September, 1880, shall be taken and perfected, heard and decided in conformity to the laws and practice regulating appeals from orders, sentences and decrees of Surrogate’s Court in force in this State on the 31st day of August, 1880, and all appeals from any order, sentence, decree or determination of such court brought in conformity thereto, since the 1st day of September, 1880, were declared to be “ valid and effectual,” with exceptions not material here.

The subdivision was again amended in 1883 (Chap. 229) by inserting a provision that “ all appeals to the Court of Appeals from any order or judgment of the Supreme Court affirming, reversing or modifying any such order, sentence, decree or determination of a Surrogate’s Court, shall be taken and perfected, heard arid decided in conformity to the laws and practice regulating appeals from orders, sentences and decrees of Surrogates’ Courts, and the hearing and decision thereof, in force in this State on the 30th day of April, 1877.”

This is the provision relied upon by the learned counsel for the appellants in support of his contention as to the duty of this court to pass upon the facts according to the weight of evidence. We are unable to give it that effect.

The former Code (Laws of 1849, chap. 438, § 471) did not include appeals from Surrogates’ Courts, and it was held that they remained subject to the Revised Statutes, and that upon appeal to this court from the judgment of the Supreme Court, in a case arising before the surrogate, the facts and the law were both to be examined, upon the ground that such appeal was upon the merits and authorized by the general language of section 11 of the Code of Procedure which gave the Court of Appeals exclusive j urisdiction to review upon appeal every actual determination made at a General Term of the Supreme Court, and was, say the court, “unrestricted by any other statute,” (Schenck v. Dart, 22 N. Y. 420.) So in Robinson v. Raynor (28 N. Y. 494) a similar duty is maintained, “so far as questions are presented by the appeal.!’ By the old Code (§§ 268, 272, 348), on an appeal from a decision by a single judge or referee, a review of a question of fact could not be had by the Court of Appeals; it was limited to the General Term. A decision by the surrogate, as we have seen, was unaffected by that Code, and hence there resulted in regard to the same questions a diversity of practice. In 1880 (Chap. 245, § 1, subd. 4) the whole of the Code of Procedure was repealed, and by the Code of Civil Procedure taking effect on the 1st of September, 1880,proceedings in the Surrogate’s Court were regulated (Chap. 18, § 2545), and the practice upon a trial by him of an issue of fact, and preparation of papers on which an appeal should be heard, assimilated to the proceedings upon and after trial by the court without a jury. Exceptions might be taken to his rulings as upon such a trial as prescribed in article third of title first of chapter tenth of that act. The provisions of that article, relating to the manner and effect of taking such an exception, and the settlement of a case containing the exceptions, apply to such a trial before a surrogate; for which purpose the decree is regarded as a judgment. And it also provided that an appeal from a decree or an order of a Surrogate’s Court should bring up for review, by each court to which the appeal is carried, each decision, to which an exception is duly taken by the appellant as prescribed in that section.

It should be noticed that these provisions are applicable to every court in which the appeal may be heard, and, therefore, to the Court of Appeals as well as to the Supreme Court. Particular provision was made in regard to appeals to the Supreme Court (Art. 4, chap. 18, § 2570), as to who might appeal, within what time, and how and upon what papers, and upon questions of law, or fact, or both, and when upon the facts, it was declared that the appellate court should have the same power to decide the questions of fact which the surrogate had, and might, in its discretion, receive further testimony or documentary evidence, and appoint a referee. It was evident that these provisions applied to the Supreme Court only, and we so held. (In re Ross, supra.) The jurisdiction of the Court of Appeals is designated and created by law. It has no other. (Batterman v. Finn, 40 N. Y. 340; Delaney v. Brett, 51 id. 78; Grissler v. Fowler, 55 id. 675.) It was defined (§§ 190, 191, Code of Civil Procedure) as it had been under section 11 of the Code of Procedure. By section 190, it was given, among other things, exclusive jurisdiction to review, upon appeal, every actual determination made at a General Term, by the Supreme Court, where a final judgment has been rendered in an action commenced in that court, or brought there from another court, and section 471 (supra) having been repealed, included of course a judgment rendered upon appeal from a Surrogate’s Court. This general jurisdiction, however, was by section 191 made subject to various limitations, exceptions and conditions, and was further restricted by section 1337, which, defining what questions are brought up for review by the Court of Appeals, expressly declares that a question of fact arising upon conflicting evidence cannot be determined upon such an appeal, unless where special provision for the determination thereof is made by law. This section not only superseded the provisions of sections 268, 272 of the Code of Procedure, relating to a review, upon appeal, of questions of fact arising upon a trial before a single judge or a referee, but imposed limitations upon the Court of Appeals, applicable to the determination of the General Term upon such questions on an appeal to it from a judgment rendered in any court, including the decree rendered by the surrogate upon the trial by him of an issue of fact, for as we have seen (§ 2545), for the purposes of review, such decree is regarded as a judgment.

It is now argued by the appellants that the amendment of 1883 (supra) abrogates the provision of section 1337, so. far as appeals from cases originating in Surrogate’s Court are concerned, and restores, as by re-enactment, the laws relating thereto, winch were in force on the 30th of April, 1877. At the time of its enactment, section 1337 had been construed by us in repeated instances, beginning with Davis v. Clark (supra) and followed by In re Ross and Marx v. McGlynn (supra), in all of which we placed our decision expressly upon the prohibition contained in section 1337. The legislature of 1883 must be deemed to have had in mind the whole law, not only as expressed by the statutes, but by the decisions of the court concerning them, and it cannot be supposed that they intended, by the later act, to interfere with the policy of the earlier one, which, dealing with the jurisdiction and j>owers of this court, emphatically declared that a question of fact, arising upon conflicting evidence cannot be determined by it, and expressly excepts such questions from those whidh an appeal brings up for review. The act of 1883 {supra) does not enlarge the appellate power of this court, but only regulates such appeals as by existing laws were permitted, and does not purport to add to the questions to be reviewed. In the absence of a contrary intention plainly expressed, it must be presumed that the legislature did not intend to interfere with the prohibition so distinctly.(§ 1337) imposed upon the court, and this view is supported by a consideration of the language of section 1338, where, anticipating that there might be a conflict in certain cases in the courts below, and consequent reversal of a judgment of the trial court upon a question of fact, the legislature, in the most formal and explicit words, have declared that, in such a case, authenticated in a prescribed manner, the Court of Appeals must review the determination of the General Term upon the questions of fact as well as those of law. It is not probable that less clear or unambiguous words would have been selected, if the purpose of the act of 1883 {supra) had been to extend that jurisdiction over judgments of the Surrogate’s Court, relieved of the condition expressed in section 1338, or by that act as to such judgments, to frustrate and destroy the limitations imposed by section 1337 {supra).

We see no reason, therefore, to depart from the decisions already made concerning our jurisdiction.

The judgment should be affirmed, with costs to the respondent to be paid by the appellants.

All concur.

Judgment affirmed.