author: James, J.:

text:
    WILLIAM ROSS, Administrator, with the Will Annexed, etc., v. ANDREW ROBERTS and others.

      Power of sale—if essential to scheme of will, not defeated by executor’s refusal to act—Equitable conversion — when it talexs effect.

    When a power of sale is given to executors, the exercise of which is essential to-the carrying out of the scheme of the testator, if the executors refuse to qualify or act, the power in trust is not thereby defeated or lost.
    In such case the duty devolves upon the court to appoint some suitable person to execute the power.
    The rule of equitable conversion of real into personal, and personal into real estate, does not operate until the time arrives when the conversion is directed to take place.
    When the testator leaves real estate, and directs that on the decease of his wife it be sold and the proceeds divided among his legatees, held, that the husband of a legatee who dies after the testator and before the widow, was entitled, on the death of the widow, to the legacy bequeathed to his wife.
    Appeal from a judgment, entered upon the order of a single judge, in a case tried without a jury.
    The facts found are as follows: On the 24th day of January, 1859, James Roberts died, leaving him surviving, his wife and heirs-at-law, who are his legatees, all of whom but the wife are defendants. Before his death, and on or about the eighteenth day of July, he made his will as follows :
    1st. I give and bequeath to my daughter Margaret Brown, one-tenth part of my whole estate, both real and personal, excepting $600, which is to be added to my daughters Mary and Jane’s shares.
    2d. I will and bequeath to my son Andrew, a sum equal to that given to my daughter Margaret.
    3d. I will and bequeath to my son John, a sum equal to my daughter Margaret or Andrew’s share, less by $2,050.
    4-th. I will and bequeath to my son Jacob, a sum equal to that, of my daughter Margaret or son Andrew’s share, less $1,350.
    5th. I will and bequeath to my son Ira, a like sum equal to Margaret or Andrew’s share, less by $419.

      6th. I bequeath to my daughter Rachael "W oolverton, or her heirs, a sum'equal to Margaret or Andrew’s share, less by $1,360.
    7th. I bequeath to my daughter Clara Hazlett, a sum equal to Margaret or Andrew’s share, less by $1,165.
    8th. I give and bequeath to my daughter Jane, a sum equal to Margaret or Andrew’s share, and $100 more.
    9th. I will and bequeath to my daughter Mary, a sum equal to Margaret or Andrew’s share, and $500 more.
    10th. I will and bequeath to the heirs of my son Charles, a sum equal to the share of Margaret or Andrew, less by $6,570.
    11th. I hereby order that my whole estate, both personal and real, shall remain in the possession and under the control of my wife Mary, who shall make use of so much' of said estate as she may require for her comfort and support during her natural life ; and the above named dowries are not to be paid until one year subsequent to the decease of myself and my wife Mary. My executors are hereby authorized to sell my real and personal estate, and to convert the same into money for division, within one year after the decease of myself and wife.
    The sons John and Andrew were named executors.
    Said will was duly admitted to probate; the wife went into possession of the property, and used and occupied it until her death in October, 1871. The value of said estate was estimated at $22,000.
    Intermediate the death of the testator and that of the wife, the daughter Mary, in the ninth clause of the will named, intermarried with the defendant, Edgar Hawley, and afterward, in 1864, she died intestate, without issue, leaving her husband and brothers and sisters her surviving. The executors named in the will, before the commencement of this action, had ceased to act as such, having either refused to qualify or been removed.
    Among other conclusions of law, the Special Term held and decided that the legacies and bequests mentioned in the will became and were vested in the legatees at the time of the death of the testator; that the defendant, Hawley, as survivor of his wife, Mary Hawley, was entitled to the legacy bequeathed to her by the ninth clause of the will, and that plaintiff should be appointed a trustee to sell the real property of the testator unsold.

      From these conclusions of law, the defendant, Andrew Roberts, brought this appeal.

      B. W. & C. M. Woodward, for the appellant.

      J. McGuire, for the plaintiff, respondent.

      C. S. Baker, for the defendant, Hawley, respondent.
   James, J.:

No objection was made on the argument to the findings of fact.

The question discussed, and the real question on the appeal, was the character of the estate or interest possessed by Mrs. Hawley at the time of her death, under the ninth clause of the will.

In the construction of wills, it is the duty of the court, if possible, to ascertain from the instrument itself; the intention of the testator, and then to give effect to such intention, unless in conflict with some rule or principle of law. In this case, the intention is so clearly expressed and transparent, that there is little cause for construction.

It first gives to each of his ten children, or their descendants, a money legacy, in the whole equal to the entirety of his estate which should be left at the death of his wife; second, to his wife for life» the possession and use of his entire estate, for her comfort and support, as she might require; thvrd, suspends the payment of all legacies until one year after his death ; fourth, gives his executors a power of sale, authorizing them to convert his property into money for division, within one year after the decease of his wife; fifth, names his sons, John and Andrew, executors.

Hnder this will no estate vested in the executors as such; it gave them simply a power of sale. The widow took an estate in possession for life; the remainder passed to the heirs of the testator, subject to the power of sale. On the death of Mary, after the testator and before the mother, her interest in remainder passed to her brothers and sisters.

The execution of the power must be held as intended to be absolute ; not otherwise could the scheme or intention of the testator be carried out; and, although there has been no sale as yet, there being no discretion vested in the executors, even though they have refused to qualify, or been removed, the trust is not thereby defeated or lost; the legacies, on the death of the testator, became vested interests in the legatees, and, in the contingency arising in this case, the trust vested in this court, and the duty devolved upon it to appoint some person to execute it.

It is most certain, the testator did not intend the parceling of the residuum of his estate among the legatees named; he desired it to be sold, converted into money, and distributed as directed. To allow such intention to be defeated by the neglect or refusal of the trustees named to act, would be unjust to the beneficiaries.

It is clearly manifest that the testator intended to stamp the character of personalty upon his estate to make whatever was left at the death of his wife, money; and it is claimed that, under the doctrine of equitable conversion, it became such on the death of the testator.

It was urged that this rule of equitable conversion could not be invoked, because it did not begin to operate until after the death of the wife; that when the conversion of real estate is directed for particular purposes, it remained real estate until the time arrived for it to be converted as directed. This is doubtless so. It was said in Savage v. Burnham, that “ the doctrine of equitable conversion, according to which real estate is deemed to be changed into personal, directed and provided for in a will, or other instrument, must be taken with the qualification that the change does not take place until the period arrives, or event occurs, when the conversion ought to be made. When that period arrived, the estate would be deemed to undergo the change directed by the will, whether actually sold or not.” Therefore, at the time of the death of the daughter, Mary, the doctrine of equitable conversion could not be invoked, as the time had not arrived; consequently, her interest in remainder passed to her heirs-at-law, subject to the trust and power given by the will, to be divested, when the proper time arrived, by actual salé or equitable conversion. It was said, in Monerief v. Ross, “by the power of sale the land was equitably converted into money from the time the sale was directed to be made, and will be so regarded thereafter in equity, for all purposes. So that, although the wife of Hawley, at her death, held an estate in remainder in the land, which could not then be converted into personalty, neither by the doctrine, of equitable conversion or actual sale, her death, at that period, did not destroy the legacy or change its character. It was still a money legacy, to be distributed as her personal estate, in the same manner as if a sale or conversion had taken place before her death,

In this view, it follows that the disposition made of the case by the Special Term was correct.

Judgment affirmed, with costs to the plaintiff and also to the defendant Hawley against the appellant Andrew Roberts, personally.

      3R. S., 5th ed., p. 22, § 87.

       Marsh v. Wheeler, 2d Ed. Ch. R., 155, 159; Stagg v. Jackson, 1 Com., 206.

         17 N. Y., 561-569.

       50 N. Y., 436.

      Bogert v. Hertell, 4 Hill, 492 ; Manice v. Manice, 43 N. Y., 303 ; White v. Howard, 46 id., 144.

      ‡Bunce v. Grift, 8 Paige, 37 ; Jar. on Wills, 525 ; Wheldale v. Partridge, 5 Vesey, 388.


source: Caselaw Access Project

license: Public Domain

text:
    MYRA SANFORD, Respondent, v. BELA SANFORD, Administrator, Appellant.

      Idiocy—adjudication of— Statute of limitations.

    An outstanding adjudication of idiocy against an intestate at the time of his death, even with a trastee over his estate still living, does not operate to take a debt due from him out of the statute of limitations, when the time therein mentioned has elapsed since the idiot’s death.
    This was an appeal from a judgment, entered on the finding of a referee appointed pursuant to statute, on a claim presented against the estate of defendant’s intestate.

      S. C. Keeler, for the appellant.

      B. C. & C. M. Woodward, for the respondent.
   James, J.:

The facts found by the referee were not disputed. The principal question was, whether the claim presented by plaintiff against the estate of the decedent, was barred by the statute of limitations.

It appeared that the intestate, Warren Sanford, died December 9, 1864; and that defendant was appointed administrator of his estate, November 19, 1870. In July, 1847, said Warren had been adjudged an idiot, and one Lewis Sanford appointed committee of his person and estate. In November, 1854, said committee died, and no new committee was ever appointed, although the idiocy continued until said intestate’s death.

From the death of said committee until the death of said idiot, the plaintiff boarded, clothed and cared for said idiot, and furnished him with medical care and attendance, and, after his death, paid the funeral expenses ; and it was for the services and expenses that she made the claim in this case. It further appeared that said intestate was the owner of a small piece of land, of which plaintiff had the use from 1854 to 1864, showed to be worth sixty-three dollars per year, the ten years’ use of which plaintiff allowed, as a credit on said claim, leaving due her, over $2,000.

This claim of plaintiff was of that character, which, in ordinary cases, is barred at the end of six years ; but it was claimed that as the intestate had been in charge of a committee under a decree of idiocy, and the committee had died before any of the services claimed for had been rendered, and there was no one who could be sued before defendant’s appointment as administrator, the cause of action did not accrue, nor the statute of limitations commence to run, until there was some one against whom an action could be brought, and hence, no part of plaintiff’s claim was barred. However this might be on the question of plaintiff’s right to recover for more than six years’ services, previous to the intestate’s death, had the action been otherwise soon enough brought, it in no way affects the case as now presented.

The fact of an outstanding decree of idiocy against the intestate at the time of his death, even with a trustee over his estate still living, would not operate to take the case out of the ordinary course, after the idiot’s death. On the death of an idiot or lunatic, the power of any trustee appointed over his estate ceases, and the real estate descends to his heirs, and the personal estate is to be distributed to his next of kin, in the same manner as if no committee or trustee had ever been appointed. So that in this case as the services and expenses for which the plaintiff claims pay, terminated on the death of the intestate, the statute commenced to operate from that date.

The question then is, was this action commenced within the period required after the intestate’s death. The filing of the stipulation, and entry of the order of reference, must be deemed the commencement of the action. This action was not commenced until December 31, 1872.

The Code requires all actions upon a contract, obligation, or liability, express or implied, excepting actions upon sealed instruments, judgments and decrees of courts, to be commenced within six years after the cause of action shall have accrued. The exceptions to this rule, as applicable to this case, are those provided by 2d Revised Statutes, page 448, section 8, and section 102 of the Code. The former enacts that the term of eighteen months after the death of any testator or intestate, shall not be deemed any part of the time limited by law for the commencement of an action against his executors or administrators. Under this statute, an action like this might be commenced against the administrator at any time within seven years and six months after the death of the intestate. But the difficulty is that this action was not commenced within that period; not until eight years after the intestate’s death.

Section 102 of the Code provides, that if a person against whom an action may be brought, die before the expiration of the time limited for the commencement thereof!, and the cause of action survive, an action may be commenced against his executors or administrators after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.”

But the difficulty again, is, that although six years, less one day, were suffered to elapse after the intestate’s death before issuing letters of administration upon his estate, yet this action against such administrator was not commenced until more than two years after such appointment; so that in neither case is the action brought within the exceptions to the general rule; and the statute seems to prove a complete bar to plaintiff’s claim.

This is to be regretted, as the claim seems meritorious, and is one that ought to be paid from the decedent’s estate. But the plaintiff has slept too long upon her rights for the court to give her any relief.

Judgment reversed, and new trial granted, costs to abide the event.

Present—Miller, P. J., and James, J.

Judgment reversed, and new trial granted, costs to abide the event.

      2 R. S., 55, § 25.

       Bucklin v. Chapin, 1st Lansing, 443-449; Tracy v. Suydam, 30 Bar., 110, 111.

       Code, §§74,91.


author: Miller, P. J.:

text:
    JOHN A. GRISWOLD and others, Respondents, v. FREDERICK. D. HODGMAN and another, Appellants.

      Water-power — right to use — amount of water — how determined.

    Where certain real estate was granted to the defendant, “ together with the right to draw water from the race or pond, sufficient for propelling four 300-pound engines, with all the machinery necessary for making paper from the same,” etc., held, that the rights of the parties were fixed when the conveyance was delivered; that the defendants were entitled to a certain amount of water at that time, and it matters not what improvements or changes may have been made to lessen the quantity of water necessary for the purposes named; that they were still entitled, as against the plaintiffs, to the same quantity; and that the measurement should be not the powers essential to run the defendants’ mill as it then was, but sufficient for the purpose as applied to the old mill and wheels as they actually existed at the time of the grant.
    This action was brought to restrain the defendants from drawing and using more water than was sufficient for certain engines and machinery in the defendants’ mill, and from applying the same otherwise than in the most skillful, economical manner, etc. The case was tried at a Special Term of the Supreme Court, held in the county of Saratoga, in January, 1873, before one of the justices of this court.
    It appeared that prior to the .year 1853, the Fort Edward Manufacturing Company owned a dam across the Hudson river at Fort Edward, and the lands adjacent to, and on the east side of, said river below said dam. The company constructed a hydraulic canal below said dam, on the land, and erected a paper-mill, which, on the 3d day of May, 1853, they conveyed to the Fort Edward Paper-mill Company, with the right to draw water, as stated in the opinion. This conveyance excepted what was “ sold for a grist-mill, cotton or woolen machinery, that may hereafter be erected, and the present iron and machine company, which said paper-mill, grist-mill, iron and machinery company, and cotton and woolen machinery, have equal privileges of drawing water from said race or dam.”
    The defendants succeeded to the ownership of said paper-mill privilege, conveyed in 1853; and, when the grant was made, there were two water-wheels in said paper-mill, known as .the American, or center-discharge Avater-wheel. Prior to the year 1867, the wheel-pit in the paper-mill was sunk, and the water-wheels therein xvere lowered about three feet, and by means of lowering the wheels, as stated, the head and fall upon said wheels Ayere increased. The center discharge-wheels were taken out, and three other waterwheels substituted in their places, and the machinery changed, so as to make paper from straw instead of, rags,-as was done at the time of said grant, in 1853. Said manufacturing company also sold and conveyed to the Fort Edward Blast Furnace Company, on the 26th day of March, 1859, a certain other piece of land, together with the right to draw water from the pond and race, “ sufficient to make 200 horse-poAver, and the right to the preference of using. said water over all the mills and machinery now on the dam or race, or that may hereafter be erected on the dam or race, excepting the grist-mill, the iron and machine company and the paper-mill, and to stand equal with them;” which last mentioned lot of land and water-privilege were transferred to plaintiffs before the commencement of this action.
    In the summer-time, in dry seasons, the supply of water was inadequate for all the mills dependent upon said race, or canal, and dam. In addition to said grist-mill, iron and machine company, paper-mill and blast furnace, there were a saw-mill and a pottery manufactory, also drawing water from said canal and dam.
    The questions at issue and litigated were the construction of the grant to the paper-mill company in 1853, and also, whether the defendants used or wasted more water, in fact, than authorized by such grant, and if so, whether any to which plaintiffs were entitled. The judge decided in favor of the plaintiffs, and a decree was made defining the rights of defendants to use water under said grant, and also decreeing a perpetual injunction against defendants’ using any more than allowed by the decree; and also allowing plaintiffs $1,000, extra allowance, besides the taxable costs.
    Yarious exceptions were taken to his findings, which are sufficiently stated in the opinion. A judgment was entered, and the defendants appealed from the judgment and order.

      S. Brown, for the appellants.

      A. D. Wait and E. Cowen, for the respondents.
   Miller, P. J.:

The judge, before whom this action was tried, found, among other things, that in certain seasons of the year, for the past three years, the flow of the water was not sufficient, after supplying other mills, to drive the necessary machinery of the plaintiffs with 200 horse-power; and this, because of the excessive use of water by defendants at their paper-mill. The defendants excepted to the finding; and I am of the opinion that the exception was well taken. As I understand the testimony, there is no evidence to sustain the finding, as to there not being at all times 200 horse-power for plaintiff’s use. All the evidence upon this subject was given by the witness, John F. Harris, who was sworn for the plaintiffs upon the trial. He testified that he had been connected with the blast furnace over fifteen years; that there was not an adequate supply of water at all times, and a lack of water in the summertime, sometimes as late as the first of November, and twice at different winters; but he does not state that there was not enough to furnish the plaintiffs with '200 horse-power, as found by the judge; nor does it appear but that the furnace may have required a far greater power to operate it. If the plaintiffs had the 200 horse-power, then they enjoyed all that they were entitled to ; their rights were not infringed upon, and no injury was sustained by them, which entitled them to maintain and recover in this action. The question as to the quantity of water the defendants used, was of no sort of importance, so long as plaintiffs had their full share; and they were bound to make out affirmatively, as one of the issues in the case, that they did not have their full quota. It was not assumed on the trial that they did not have such share, and the case was not tried upon any such theory. For was it essential that the defendants should raise the question distinctly before the judge upon the motion for a nonsuit, or to dismiss the complaint. It was one of the issues to be determined, and it could properly be regarded on the presentation of the whole ease to the court, that there was a failure of evidence in this respect which would not warrant the finding stated. As the finding is without evidence to support it, or tending at all in that direction, it is plain that the judge erred ; and, as the action cannot he upheld without evidence to sustain such a finding, the absence of such evidence is fatal to the judgment.

The judge, upon the trial, also further held, that the grant of 1853, being of a power sufficient for a purpose named, was without any mode of ascertaining the quantity being provided, or the head under which the water should be .used, or the size or kind of wheels on which the water should be applied; that 3,098 cubic feet of water per minute, discharged under sixteen feet head, through the wheels in the paper-mill, would produce sixty-five net powers. That the defendants were obtaining more than they were entitled to under the grant, and for every foot of fall in the water of the pond, below a level with the top of the dam, there should be an increase of quantity. The effect of these findings was to decide that the sixty-five net powers was the amount which the grant called for. It was also found that between 1853 and 1867, the wheel-pit was sunk at the defendant’s mill, and the waterwheels therein lowered some three feet, and the tail-race enlarged. It appears to he quite evident that the lowering of the wheel-pit and of the -wheels must necessarily have increased the power when the same quantity of water was applied, and it follows that the defendants would be entitled to the benefit of that increased power. Without considering what that increase would amount to, sufficient appears to show that the court were wrong in adopting the wheels, in use at the time of the controversy, as a basis of their decision, instead of those which were in use at the time when the deed was delivered, under which the plaintiffs claim. The rule on this subject is laid down to be, that when a grant or a reservation is made of water-power, sufficient to propel certain specified machinery, the grant is of a quantity of water which is reasonably necessary to carry on and operate such machinery at all seasons of the year, and in the state and condition in which such machinery exists at the time of the grant.

The grant to the Fort Edward Paper-mill Company, in 1853, under which the defendants claim and hold their mill privileges, conveyed to them the paper-mill and the lot of land upon which it stood, “ together with the right to draw water from the race or pond, sufficient for propelling four 300-pound engines, with all the machinery necessary for making paper from the same, and the right to the preference for using water over all the mills and machinery now on the dam or race, or that may hereafter be put on, except,” etc. I think that when this conveyance was delivered, the rights of the parties were fixed, and could not be affected or impaired afterward by the use of improved wheels, or by a change in the head or fall which operated them. The defendants were entitled to a certain amount of water at that time, and it matters not what improvements or changes may have been made to lessen the quantity of water necessary for the purposes named; they were still entitled, as against the plaintiffs, to the same quantity; and the measurement should be not the powers essential to run the defendant’s mill as it then was, but sufficient for the purpose as applied to the old mill, and wheels as they actually existed at the time of the grant. Such would have been the true construction of the grant had the question arisen soon after it was made, while the old wheels and machinery were in operation; and there is no reason why the same rule should not apply because different wheels and a different fall of head had been adopted. It was entirely immaterial what changes had been made, so long as the right existed in the defendants, or what use they made of it, or whether they used it at all; and it is quite evident the judge was in error in the particulars named.

There are other important questions in the case; but, as for the errors stated, a new trial must be granted, their examination is not required.

For the errors already noticed, the judgment and the order for extra allowance must be reversed, and a new trial granted, with costs to abide the event.

Boardman and Bockes, JJ., concurred in the result.

Judgment and order reversed, and a new trial granted ; costs to abide the event.

         Pratt v. Lamson, 2 Allen, 275,283; Loverin v. Walker, 44 N. H., 489.


text:
    THE PEOPLE ex rel. YOUMANS v. BOARD OF SUPERVISORS OF DELAWARE COUNTY.

      Bents—taxation of, under chap.. 837, 1846 — Bom'd of supervisors—power of, to reduce assessment.

    The assessment made for the purpose of taxing rents reserved on leases in fee, for one or more lives, or for a term of years exceeding twenty-one, under chap. 837 of the Laws of 1846, maybe reduced by the board of supervisors under the provisions of chap. 357 of the Laws of 1858, so that the assessed valuation upon which such taxation is based, shall bear the same proportion to the real valuation intended by the act of 1846, as the assessed valuation of other property bears to its actual value.
    Appeal from an order of the Special Term, refusing a writ of mandamus against the board of supervisors of Delaware county.
    The opinion 'of Balcom, J., at the Special Term is reported in 47 Howard, at page 24.

      Youmans & Niles, for the relator.

      W. H. Johnson, for the respondent.
   James, J.:

This ease came before the Special Term on an order to show cause, as follows:

Ordered, That the above named board of supervisors, etc., show cause, etc., why a peremptory writ of mandamus should not issue, requiring it to entertain, act upon and consider the petition of said relator, etc., praying that the assessments against the relator, on rents reserved, in the towns of Kortright and Davenport in said county, may be reduced to one-third their present amount, or to such an amount as will be equal to, and in proportion with, the other assessments in said towns; and why it shall not be compelled to correct and reduce said assessments in such manner, and to such an extent, as to render said assessments just and equitable; and why it should not be compelled to exercise its discretion in respect to each assessment, and to make a just and proper correction and reduction thereof, etc.

The petition and affidavits on which said order was founded, showed that the relator resided in the town of Delhi, in said county, and was the Toumans named in the assessment-rolls of the towns of Kortright and Davenport, assessed for rents reserved; that he is therein assessed at the full value of said rents, whereby he is required to pay four times as much tax on the same value of property as any other tax-payer in said towns; that in June, 1873, he met the assessors of said towns and requested them to place his property on their respective rolls at the same ratio of valuation as they did the property of other persons ; that they conceded his request was right, and promised that his property should not be assessed higher than the property of others, which promise was entirely disregarded, and his said rents were assessed at their full value, and the other property at one-third its value; and praying said board to reduce his assessments, so as to make them equal with other assessments of said towns.

In response to such order, the defendant, at Special Term, presented an affidavit of its clerk, showing that at the time the relator’s petition was received by said board of supervisors, the affidavit of the supervisor of the town of Kortright was presented in opposition thereto, which said affidavit stated that the affiant was and had been, a resident of said town of Kortright for twenty years last past; was well acquainted with the value of farms on the Kortright patent; that the owners of said farms had been engaged since 1867, in an expensive litigation with said Toumans, to determine the title of the rents reserved upon leases in fee on said lands; that about 400 actions had been brought, which were determined in his favor by the Court of Appeals; that the taxation of costs therein was still pending; that although said plaintiff had obtained judgment of re-entry, and the time to redeem had not expired, said Toumans had commenced a large number of new actions for rents accrued, which are still pending and undetermined ; that, in consequence of said litigations, the lands of said patent have greatly deteriorated in value, and their market value is so greatly reduced, that it is almost impossible to sell said farms at any price, or to raise money on them; so that said farms, as deponent believes, are heavily assessed, under the circumstances ; that said deponent is informed said Toumaiis refuses to take less than two dollars per aere for his right in said lands ; that he requires rent to be paid in gold; that the interest of said Toumans in said lands is by far the mest valuable property, real or personal, in said town, and that the assessment of said Toumans is just. The affidavit of said clerk further stated, that the said affidavit of the said supervisor was received and placed on file; that after considerable discussion, said board proceeded to take action on said petition, and the other papers presented, and the relief prayed for was denied.

The record of the proceedings of said board is as follows: Resolved, That we as a board of supervisors decline to change or interfere with William Toumans’ assessment as to rents reserved in the towns of Kortright and Davenport, upon the ground that we have no legal power or discretion in the matter; it being the opinion of the majority of the board, from the facts before them, that the said assessments are made according to the statute, the rents assessed being reserved in’ money,- and there being no conflict in the evidence produced, as to the basis upon which the assessments are made.”

Upon the foregoing papers, the Special Term denied the writ.

There are no disputed facts bearing upon the question involved in this appeal.

The relator, a non-resident of the towns of Kortright and Davenport, was assessed upon the roll of each of said towns for rents reserved in the year 1872; said rents were set down at their full value, and the other property in each of said towns was set down at one-third its value; the relator presented his petition to the board of supervisors of the county in which said towns are located, praying that the valuation of said rents be reduced, so as to make the same proportionably equal with the valuation of the other property of said towns; and, as the record shows, said board declined to interfere with said assessments, on the ground that it had no legal power or discretion in the matter, coupled with an expression of an opinion by a majority of the board, that the valuation of said rents was in accordance with the statute.

The act which authorized the assessment of rents reserved (chap. 327, of 1846) made it the duty of assessors to ascertain the amounts of such rents, etc., and to value the same on the assessment roll at a principal sum, the interest of which, at the legal rate per annum, would produce a sum equal to such annual rents, etc. In this case it is shown that the valuation and assessment were so made, and if the other taxable property of the said towns had been valued and assessed on the rolls of said towns as required by chapter 176 of the Laws of 1851, at full value, there would be no cause for complaint ; but such was not the case; the other taxable property was valued and placed on the assessment rolls at only one-third its value; and hence the injustice complained of; the tax upon any given amount for rents being three times as great as upon the same amount of other taxable property.

The question arising upon this appeal, therefore, is as to the power of the board of supervisors in said cases to hear and pass upon the questions presented by the relator in his petition.

The authority, if it exists, is to be found in chapter 357, Laws of 1858, amending the act of 1846, which reads as follows :

“ The assessor shall in all cases of assessments under the .act of 1846, specify in the assessment-rolls each rent so assessed, and the value fixed upon articles other than money, in which such rents are payable; and whenever assessments are made against any person in any town in which he does not reside, the board of supervisors of the county where such assessments are returned, shall have in all respects, as full power and authority, and it shall be their duty, to correct such assessments, as to the valuations of the rents and as to the gross amount for which such person shall be assessed, as the assessors have as to a resident of the town; and such board of supervisors may reduce the amount of such assessments in the respective towns, etc., in proportion, or otherwise, as the natu/re of the corrections require to make such assessments just.”

This statute would seem to cover this case. It vests in the board of supervisors, in the cases specified, the power and authority of the hoard of assessors of towns, to correct assessments as to valuation of rents, and the gross amount for which such person shall be assessed for rents, and also the power, in its discretion, to reduce such assessments, in proportion, or otherwise, as the nature of the corrections requires, to make such assessments just.

In this case, and under this statute, said board of supervisors had power and authority to entertain the relator’s petition ; and it was its duty to consider and pass upon such petition in the understanding that it had the discretionary power to grant the relief prayed for, no matter what the opinions of its members, as to whether the valuation of said rents was, or was not, according to the letter of the statute of 1846.

The question arising on the petition was not, alone, whether the assessment of said rents was according to the statute; that was not denied; but the other taxable property of said towns having been placed beside such rents on the rolls at one-third its value, on which to apportion the tax to be raised, the question was, whether the board of supervisors, under the statute of 1858, had the power to correct such inequality, by reducing the valuation of said rents on said rolls, or otherwise, so as to make such assessment just.

The board of supervisors erred in refusing to interfere with such assessments on the ground that it had no power or discretion in the matter. It had both the power and the discretion, and the relator was entitled to its action on the petition in the light of such power; and the proceeding by mandamus was the proper remedy to compel such action, and should have been granted by the Special Term.

The result of such action cannot be directed by the court; but in view of the facts, the inequality of valuations, the gross injustice which would follow upon a refusal to correct such assessment, the result ought not to be doubtful.

The order appealed from should be reversed, and an order entered allowing the writ prayed for in the petition, with ten dollars costs of the General and Special Terms, to be paid by respondent.

Present—Miller, P. J., and James, J.

Order reversed, and mandamus allowed, with ten dollars costs of General and Special Terms.


text:
    CHARLES S. SMITH, Executor, etc., of HENRY J. CORBIN, Deceased, Plaintiff, v. ALVIN D. SERGENT, Defendant.

      Best evidence—Parrot evidence—when admissible — Bvidence as topersonaZ transactions with deceased— Code, § 399 — Statements — what evidence admissible to explain— when admissible against one holding personal property by marital right.

    Parol evidence may be given to show an agreement for the sale of a farm, in pursuance of which a bond and mortgage and note were given by the purchaser, and such evidence is not subject to the objection that the agreement should be shown by the written instruments, as such instruments do not express the agreement.
    In an action on a promissory note given to plaintiff’s intestate, to which the defense is interposed that it had been assigned to defendant’s wife, it is not error to allow the defendant to testify that he saw the note in his wife’s possession. This is not a personal transaction between the witness and the intestate, and therefore objectionable under section 399 of the Code.
    On the back of the note in suit, was an unexecuted assignment to the defendant’s wife, written when the note was made. The attorney who prepared the papers was asked, “Did you suppose it [the assignment] was signed by Corbin at the time?” He answered, “Tes, sir.” Held, that what Corbin said or did was admissible, but that the supposition of the witness, as to what was in fact done or omitted, was not.
    After proof had been, given of statements of Corbin, that he had given the defendant’s wife $500; that he had given her $500 in the personal property, farming utensils, etc.; that he had given her $500 in the trade, etc.; evidence showing that the personal property sold was worth at least $500 more than the price paid, was, under the circumstances, improperly excluded.
    Plaintiff offered to show that Mrs. Sergent (defendant’s wife) had admitted that Mr. Corbin had always remained the owner of the note. The evidence was excluded. Held, that the evidence did not fall within the rule which excludes the declaration of the former holder of a note, in a suit by one te whom it has been transferred for value. The defendant claimed the note by a title growing out of his marital rights, as survivor of his wife—claimed title through his wife in a representative capacity—hence her admissions were competent as against him.

    Motion for a new trial on exceptions ordered to be heard at the General Term in the first instance, a verdict having been rendered at the circuit in favor of defendant.

      H. G. Prindle, for the plaintiff.

      Isaac S. Newton, for the defendant.

       1 Johns., 840 ; 1 Barb., 280 ; 7 Hill, 361 ; 8 N. Y., 279, 280 ; 21 id., 247, 248, 249; 1 Lans., 158.

   Opinion by Bockes, J.

Present—Miller, P. J., Bockes and Boardman, JJ.

A new trial granted, costs to abide the event.


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    CHARLES STARBIRD, Respondent, v. SAMUEL H. BARROWS and others, Appellants.

      Contract — damages for breach of.

    In November; 1858, plaintiff, the owner of a canal boat, contracted with defendants to carry a load of potatoes from Rochester to New York, the potatoes to be delivered within three days. By reason of defendants’ failure so to deliver them, the boat was stopped by the ice at Schenectady, and compelled to winter there. By the original contract, the defendants were entitled to the use of the boat in New York, through the winter', for the storage of the potatoes. After the stoppage of the boat by the ice, a further agreement was made, by which the defendants had leave to protect the cargo by covering the boat with manure and straw, upon agreeing to indemnify the plaintiff for any damage done to the boat. During the winter the water was drawn off from the canal, so that the boat settled upon an uneven bottom and was injured. It was also, injured by the heating* of the potatoes and by the action of the manure. This action- was brought to recover damages for the delays caused by the defendants, and the injuries resulting therefrom; for damages occurring to the boat at Schenectady, and demurrage for delay in unloading the boat in New York.

      The judge charged the jury that the plaintiff was not entitled to recover for damages resulting from the storage of the potatoes, as that was within the original contract. The defendants insisted that the court erred in leaving the matter to the jury, as there was no method by which they could separate the two sources of damages. Held, that the question was properly left to the jury; that the damages arising from the use of the manure were separate and distinct from such as were caused by the heating of the potatoes; and that, though it was impossible to define exactly the limits of each source of damage, the question was properly submitted to the jury.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial upon a case and exceptions. The case has been twice before the Court of Appeals, and is reported in 38 New York, page 230.

      George F. Danforth, for the appellants.

      H. R. Selden, for the respondent.
   Opinion by Boardman, J.

Miller, P. J., and Bockes, J., concurred.

Judgment and order affirmed, with costs.


text:
    ELIJAH WILES, Respondent, v. THE NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY, Appellant.

      Demurrage — Bill of lading — construction of word “ day ” — Waiver.

    The plaintiff’s canal boat was loaded with a cargo consigned to the defendant at Schenectady, under a bill of lading which provided that the consignees were “ to have three full working or week days after boat arrived at their dock, in which to discharge cargo, and to pay master for any time (exclusive of Sundays) boat is detained for discharging after the expiration of the said three days, ten dollars per day, and at the same rate for portions of days.” Plaintiff arrived at Schenectady, near defendant’s place for unloading, August 1, 1873, took bill of lading to defendant’s office, and said he was ready to unload. He was told to lie still till they called him. On August eleventh, he was directed by defendant to move up to its dock and was unloaded. This action was brought for five days and eight hours’ demurrage. The defense interposed was that the boat did not arrive at defendant’s dock until the day it was unloaded; held, that by directing the plaintiff to lie still until called for, the defendant waived the necessity of an arrival at the dock. That no excuse could avail the defendant for a delay beyond three days, without compensation.

    The court, in ordering a verdict, estimated eight hours as eight-tenths of a day; held, that the terms of the bill of lading did not authorize such a restricted meaning to the word “day;” the eight hours should have been estimated at eight twenty-fourths of a day. Verdict reduced.
    Appeal from a judgment for the plaintiff, entered on a verdict ordered by the court.

      S. W. Jackson, for the appellant.

      D. S. Morrel, for the respondent.

       Randall v. Lynch, 12 East, 179; Cross v. Beard, 26 N. Y., 85.

   Opinion by Boardman, J.

Miller, P. J., and Bockes, J., concurred.

Judgment as reduced affirmed, with costs.


text:
    JOHN E. CARY, Respondent, v. THE SCHOHARIE VALLEY MACHINE COMPANY, Appellant.

      Corporation — not dissolved by ceasing to do business—action against, by stockholder.

    A corporation was organized under the laws of the State (chap. 40, of 1848, and amendments) and its corporate business was conducted for two years, when the company voluntarily ceased to do business, and a new one Was organized with larger capital and additional members but for the same purpose and under the same name. The first company turned over its property to the new organization. Held, that a stockholder in the first corporatiori'could maintain an action against it on an indebtedness due from the company to him ; that the corporate existence was not terminated by its ceasing to do business.
    The fact that the plaintiff was a stockholder did not deprive him of the right to bring an action, the case differing from a simple partnership.
    Appeal from a judgment for the plaintiff, in an action for work, labor and services performed.

      R. Brewster, for the appellant.

      Mayham & Krum, for the respondent.
   Opinion by Bockes, J.

Present—Miller, P. J., Bockes and Boardman, JJ.

Judgment affirmed, with costs.


text:
    JAMES WILLIAMS, Appellant, v. WILLIAM WILLIAMS and JAMES ARMSTRONG, Respondents.

      Wa/rrant—presumptions in favor of—I/wnatia—power of police justice to authorize arrest of.

    The plaintiff was arrested as a lunatic, on a warrant-issued by two of the police justices of the city of Albany, on a complaint, duly made, and the certificate of two reputable physicians of said city. The warrant described the plaintiff as “ James Annis Williams, of Knox,” and was directed to the overseer of the poor of the city of Albany, and to any policeman of said city, etc.; and one of the said justices, in writing, authorized Charles Gage, of the town of Knox, to execute the warrant.
    In an action brought by the plaintiff to recover damages of the defendants who had arrested him in pursuance of said warrant, held, that every intendment was in favor of the jurisdiction of the magistrate, and that, from the fact that the warrant was issued in the city of Albany by magistrates who resided there, it was to be presumed that the lunatic was there at the time the warrant was issued. The statement in it that the lunatic was of the town of Knox, was a mere description of the person, and did not contradict the fact that he was in Albany when the warrant was issued.
    Appeal from a judgment entered at the circuit, dismissing plaintiffs complaint.

      E. J. Bennett, for the appellant.

      J. H. Clute, for the respondent.
   Opinion by Miller, P. J.

Present—Miller, P. J., Bockes and Boardman, JJ.

Judgment affirmed.


text:
    ASA W. WICKES, Respondent, v. THE ADIRONDACK COMPANY, Appellant.

      Possession — evidence of ownwship—B. B. bonds negotiable

    Possession of'personal property is'presumptive evidence of ownership; and this rule applies to all personal property, and to negotiable paper.

    Railroad bonds are negotiable; and will pass by delivery.

    Appeal from a judgment entered on the report of a referee in favor of the plaintiff in an action brought to recover the interest on two bonds of $1,000, payable to Thomas C. Durant or bearer, executed by the defendant.

      A. Pond, for the appellant.

      Irving Browne, for the respondent.

      1 Greenl. Ev., §34; Fish v. Skut, 21 Barb., 334; James v. Chalmers, 6 N.Y., 209.

      Conn. Mut. L. Ins. Co. v. C. O. & C. R. R. Co., 41 Barb., 9, 22.

   Opinion by Miller, P. J.

Present—Miller, P. J., Bockes and Boardman, JJ.

Judgment affirmed, with costs.


text:
    JOHN BANFIELD, Respondent, v. JACKSON RUMSEY, Executor of JOHN L. RUMSEY, Deceased, Appellant.

      Marriage —• sufficient consideration foi' contract.

    A marriage contract between a male and female of proper age, and not under disability, affords a sufficient consideration to support an agreement made, oi obligation incurred, on the faith of it.
    Appeal from a judgment entered in favor of the plaintiff upon the report of a referee; the reference having been had pursuant to a stipulation under the statute, on a claim against the estate of the defendant’s testator, arising on two promissory notes given to one Emeline B. Rumsey, in consideration of her promise to marry the maker, which she afterward did. The notes were transferred after maturity to the plaintiff.

      King & Montgomery, for the appellant.

      G. C. Carman, for the respondent.
   Opinion by James, J.

Present—Miller, P. J., and James, J.

Judgment affirmed, with costs against the defendant personally.


text:
    CHARLES L. HOWK, Respondent, v. TALMADGE ECKERT, Impleaded, etc., Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought upon a promissory note. The General Term held, that the defendant was induced to give the note by false representations and menaces, in settlement of a felony, and that, as the plaintiff was not a bona fide purchaser, without notice, he could not recover.

      William Lounsbery, for the appellant.

      A. Schoonmaker, Jr., for the respondent.
   Opinion by Boardman, J.

Miller, P. J., and Bockes, J., concurred.

Judgment reversed and new trial granted, costs to abide the event.


text:
    WILLIAM M. TELLER, Respondent, v. JACOB G. SANDERS, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, maje upon the minutes of the court.
    A new trial was asked, on the grounds that the verdict was against the evidence, and that the damages awarded were excessive,

      The General Term held, that there was sufficient evidence to sustain the verdict, and denied the motion.

      S. W. Jackson, for the appellant.

      E. W. Paige, for the respondent.
   Opinion by Boardman, J.

Miller, P. J., and Bockes, J., concurred.

Judgment and order affirmed.


text:
    SILAS R. HILL, Respondent, v. THE SYRACUSE, BINGHAMTON & N. Y. RAILROAD COMPANY, Appellant.

      Eeferee’s finding not supplied by the evidence.

    The action was for breach of contract, arising from the delay of the-defendant in the delivery of wool- The referee reported in favor of plaintiff, and judgment was entered upon his report, from which the defendant appealed. The court was of opinion that the finding of the referee as to the price of the wool at the time of delivery, was not sustained by the evidence, and directed a reversal of the judgment, and that a new trial be had.

      Sedgwick, Kennedy & Tracy, for the appellant.

      L. B. Kern, for the respondent.
   Opinion by Miller, P. J.

Present—Miller, P. J., Bockes and Boardman, JJ.

Judgment reversed, new trial granted, and referee discharged, with costs to abide the event.


author: Talcott, J.:

text:
    September, 1874.
    JOHN J. RIDER and another, Appellants, v. CORNELIUS S. STRYKER, Respondent.

      Chapter 579, Laws of 1871 — Private property taken for public use—just compensation for — what is a sufficient provision for.

    An owner of land taken for laying out Ocean avenue, in pursuance of chapter 579, Laws of 1871, is not divested of his title thereto until the map, showing what land has been taken and appropriated by the commissioners to lay out such avenue, has been duly published and filed in the office of the clerk'of the county of Kings.
    The act authorizing the taking of the land contained no provision whereby the owner of any estate, less than a freehold, could compel the estimate and assessment of the damages sustained by him. Whether or not this omission rendered the act unconstitutional, quere.

    The only provision for compensation provided by the act, for the owners of the land taken, was by laying an assessment on the land lying within 100 feet of each side of the avenue, which same land was also to bear the entire expense of constructing the avenue. Whether or not this provision for assessment, limited as it is, and upon mere agricultural and rural lands, affords that certain remedy beyond hazard and contingency, and upon an adequate fund, which a bona fide compliance with the provisions of the Constitution demands, quere.

    Appeal from an order denying a motion to set aside a nonsuit, and for a new trial.

      By chapter 579, Laws of 1870, the commissioners for laying out and mapping the towns of Kings county, were directed to lay out as and for a public highway, and make an avenue 100 feet wide, from Eranklin avenue, in the city of Brooklyn, to the Atlantic ocean, at Coney Island, in conformity with their general plan of streets, avenues and roads to be laid out in the execution of their general duties; the said avenue to form a part of said plan, and be laid down and designated on a map thereof, to be filed by them. The other facts are stated in the opinion.

      Benj. G. Hitchings, for the appellants.

      D. P. Barnard and Wm. J. Sayers, for the respondent.
   Talcott, J.:

The plaintiffs are the contractors for the construction of Ocean avenue, under a contract with the commissioners for the construction of that highway, who were appointed for that purpose by an act of the legislature, passed April 19, 1871. The action is brought against the defendant, to recover damages for his cutting down and converting to his own use, certain wood and timber, upon a parcel of land which is embraced within the bounds of that avenue, and which parcel of land was owned by the defendant in fee simple, until such time as it was duly taken and appropriated for the purposes of the avenue. The act in question provides (§ 2), that “ when there shall be any building or part of a building, trees, timber, fences, or other obstructions, on the route of the road, the commissioners for making the road may, if practicable, before the commissioners of estimate and assessment shall have made their awards and assessment in relation thereto, contract with the owner or owners thereof, for the removal thereof out of the line of said avenue. And in such case the agreement for such removal, or a duplicate thereof duly executed, shall be delivered to the commissioners of estimate and assessment, who shall award to the owner or owners the sum agreed upon for such removal, if any, and also compensation for the land taken, estimated as if no such building, trees, timber, fences or other thing so contracted to be removed were upon the same, and shall assess the sums so awarded upon lands benefited as in other cases. But in case there shall be such buildings or parts of buildings, trees, timber, fences, or other obstructions upon the route of said avenue, and no agreement shall have been made with the owners for the removal thereof, the commissioners of estimate and assessment shall award to the owners the value thereof in addition to or as part of the value of the land upon which the same are situated. And the same shall thereupon be subject to the disposal of the commissioners for making the road for the purpose of removal or sale as hereinafter provided.”

On the 28th day of ifovember, 1871, the plaintiffs entered into a contract with the commissioners for construction, for the construction of Ocean avenue, in a certain manner, and according to certain specifications thereto attached. By one of the specifications, it was provided, “ the timber and cord-wood within the limits ot the road to belong to the contractor.”

The plaintiffs also introduced in evidence an assignment executed to them by the commissioners for construction, whereby the latter undertook, on the 4th of March, 1872, to assign and set over to the plaintiffs all the claim which the said commissioners, as such, “ have or may have ” against the defendant “ for cutting down and carrying off wood, and leaving stumps in the ground within the limits of Ocean avenue.”

The action appears to have been brought to recover of the defend ant the value of the wood cut by him on the premises in question, and also the difference in the expense of grubbing out and removing the roots of the trees, which the evidence tended to show was much greater when the trees were cut down and the stumps left, than it would have been when the trees were standing and could be used as levers to tear out the roots. The plaintiffs gave evidence tending to show that prior to entering into the contract for the construction of the avenue, they went over the land with a view to make an estimate of the probable expense to them of constructing the avenue according to the specifications, and that the trees were then standing on the premises in question, and that their estimate was in some measure based upon that fact. There may be serious doubts in reference to the constitutionality of the act of 1871, providing for the construction of this avenue. It is an act for which the legislature has undertaken to take private property for public purposes. Such an act, to be valid under the Constitution, must, on the face of it, provide for just compensation to the party whose land is taken. This must be a real, substantial and sufficient provision, and not merely a formal and colorable one. In the language of Senator Maison, in the leading case of Bloodgood v. The Mohawk & Hudson R. R. Co., the making of this compensation must be as absolutely certain as that the property is taken. It must not be dependent upon any hazard, casualty or contingency whatever.” In the same case, the chancellor lays down the rule as follows: I hold, that before the legislature can authorize the agents of the State and others, to enter upon and occupy, or destroy or materially injure the private property of an individual, except in cases of actual necessity which will not admit of any delay, an adequate and certain remedy must be provided, whereby the owner of such property may compel the payment of his damages or compensation; and that he is not bound to trust to the justice of the government to make provision for such compensation by future legislation.” * * * “ The compensation must be either ascertained and paid to him before his property is thus appropriated, or an appropriate remedy must be provided, and upon an adequate fund.”

The only provision for compensation to citizens, whose property is taken under the act in question, is the provision contained in the second section of the act, which authorizes anj freeholder whose land may be takén, to apply to the Special Term of the Supreme Court in Kings county for the appointment of commissioners of estimate and assessment, to estimate the compensation to be awarded for lands taken, and assess the same upon lands benefited thereby. Without stopping to consider the effect of the circumstance that the remedy is given by the statute only to freeholders, and that no provision is made whereby the owner of any lesser estate may compel such estimate aud assessment, since we understand from the case that the defendant is afreeholder as to the premises in question, we refer to another circumstance which seems to render it very doubtful whether the provision in question is sufficient under the Constitution as interpreted by the court of last resort.

By the same second section of the act, the assessment for compensation for lands taken, and the expenses of the commissioners of estimate and assessment, together with counsel fees to the amount of $250, is confined to lands lying within 100 feet of each side of the proposed avenue, which is to be itself 100 feet in width ; which 100 feet on each side of the avenue, is also subject to the further assessment, to be made by the commissioners of construction for the further expense of constructing the avenue. So that the only provision for compensation offered by the act, is a resort to the land lying within 100 feet of each side of the avenue; which same land is also to bear the entire expense of constructing the avenue. It may be well doubted whether this provision for assessment, limited as it is, and upon mere agricultural and rural lands, affords that certain remedy beyond hazard and contingency, and upon an adequate fund, which a Iona fide compliance with the provisions of the Constitution demands. But without further disdussing the constitutionality of the act under which it is claimed the defendant’s property has been taken, we will proceed to consider the general ground on which the plaintiffs were nonsuited at the circuit. That was upon the objection of the defendant, “that it had not been shown that the land had been taken at the time of the cutting of the wood.” This was sustained by the judge, for a variety of reasons, as stated by him, which it is not necessary to consider in detail, as we are of the opinion that the objection was well founded. The act itself does not specifically fix any time when the act of appropriation shall be deemed complete, or any moment when the title shall be deemed to have passed from the former owner and vested in the public. The precise time when the wood was cut does not appear; but it does appear it was before the time when the plaintiff entered into the contract for the construction of the avenue. The defendant had sold the wood standing, as we infer, to other parties, in September, 1811; the wood to be cut and removed by the purchaser. And the question is, whether the sale in September passed the title; because, if the sale and the consequent license to enter and cut at that time were acts which the defendant was competent to make and grant, we do not see how he can be liable in this action. The first section of the act provides that the commissioners for laying out and mapping the towns of Kings county,” shall lay out the proposed avenue in conformity with their general plan of streets and roads to he laid out in the execution of their general duties, and the said avenue shall form a part of said plan, and be laid down and designated on the map thereof to be filed by them.

The plaintiffs offered no evidence of any such map. They did prove by the minutes of the proceedings of the said commissioners, that in June, 1871, the commissioners adopted the base line of the proposed avenue, and directed the superintendent “ to prepare the final assessment map in accordance with the same.” There was no evidence that these proceedings of the commissioners were ever promulgated; and there is nothing in the law creating the commission, or in the act in question, whereby the resolution in question is made definite and irrevocable, or providing that any publicity shall be given to the same. And we do not see why the commissioners might not, at any time before the filing of the map, rescind the resolution, or modify it so as to change the line, and thus leave out of the limits of the proposed avenue, premises which would be embraced within it according to the terms of the resolution adopted in June. We are of the opinion that until the map, showing what land is taken and appropriated by the commissioners, who are empowered to lay out Ocean avenue, has been duly published and become binding upon the owners of property and upon the public, by the filing of the map, showing such appropriation according to law, the act of appropriation is incomplete, and the title of the private owner has not been divested. The reference in the act of 1871 to the map and the filing is quite brief; but that act must be read in connection with the acts by which this commission was created and its powers conferred, and duties enjoined, as by the very terms of the act of 1871, those former acts are referred to for the purpose. The act of 1869, by which this commission was created, and of 1870, by which the former act was amended, are very explicit in regard to the maps to be published by the commissioners, and provide that they shall have a map made, showing the streets and roads to be laid out by them, filed in the office of the clerk of Kings county; and those acts clearly indicate that the title to the property taken shall pass, and the appropriation of property taken be deemed complete, only, upon the filing of the map according to law. The act of 1869, section 5, provides that if any buildings shall be erected on the line of any avenue or street after the filing of the map, no compensation shall be paid to the owner thereof. And the act of 1870, section 3, contains, substantially, the same provision; thus showing that the legislature intended that, until the filing of the map, as thereby provided, the property should remain in the private owner, to be altered and improved as he should see fit; and that compensation was to be made for all improvements down to the time of filing the map, which was the only notice of the appropriation of the property to public use. We think it clear that a fair construction of the act of 1871, which directs the laying out of Ocean avenue, in substance, incorporates the same provisions as to the acts which shall be held as a definite and final appropriation of land taken for such purpose, so as to bind the owner. We think, therefore, that before it was shown that the land and property of the defendant was taken and appropriated so as to bind him, it should have been shown that the land in question was embraced in Ocean avenue, as laid down on the map filed by the commissioners. Ho such map was offered to be proved, either filed or made ; and, assuming the map mentioned in the resolution to be the map referred to in the statute, no such map was proved.

This conclusion renders it unnecessary to consider other questions involved in the case, or to determine whether, if a regular and final appropriation, according to law, of the defendant’s land has been shown, an action for the cutting of the timber would have accrued to the commissioners of construction; and, if so, whether they were authorized by law to assign such cause of action.

The order denying a new trial is affirmed.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Order denying new trial affirmed.

       Session Laws 1871, p. 1256.

       18 Wen., 9.

      See Coms. of Wash’n Park v. Barnes and al., Court of Appeals, MS., Albany Argus, April 1, 1874.

       Session Laws of 1869,1590.

       Session Laws of 1870, p. 1434.


text:
    SIMON STERNFELS, Respondent, v. EDWARD CLARK, APPELLANT.

      Contract—Breach of— damages for —• how measured. .

    The defendant, a contractor for the removal of dead animals, agreed with the plaintiff to sell and deliver to him the carcasses of all the animals which he, the defendant, should collect for the period of one year, at certain prices specified in the contract. The plaintiff had a factory, where he manufactured various portions of these carcasses into valuable and marketable commodities. This action was brought for the neglect and refusal of the defendant to deliver the carcasses. Held, that it was proper to instruct the jury that they might take into consideration, for the purpose of measuring the damages, the amount of net profits which the evidence showed the plaintiff would have made by his process with his machinery, on the number of animals which the defendant had gathered, and which he had failed to deliver. The general, hut not universal, measure of damages for a breach of a contract for the sale of personal property, by the non-delivery of the property, is the cost at which the vendee might have supplied himself with similar articles at the time of the breach; hut, if the articles purchased cannot otherwise he procured, and have no market-price, or cannot be supplied without great delay, then, in order to ascertain what amount will constitute a full indemnity to the purchaser, resort must be had to other elements of the contract.

      Griffin v. Colver (16 N. Y., 489) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at Kings County Circuit. The facts are stated in the opinion.

      Dailey & Perry, for the appellant.

      J. L. Overfield, for the respondent.
   Talcott, J.:

The defendant was a contractor for the removal of dead animals from the city of Brooklyn, and contracted with the plaintiff to sell and deliver to the latter, at Barren Island, the carcasses of all the animals which he (the defendant) should collect in the city of Brooklyn for the period of one year, at certain prices in the contract specified, and to be delivered as rapidly as may be, or the health laws may require.”

The plaintiff had a factory and machinery at Barren Island, where, by means of certain processes, he manufactured various portions of these carcasses into valuable and marketable commodities. The action is brought for a breach of the contract in question, in neglecting and refusing to deliver the carcasses. The only exception of any importance, to which our attention is called, is to the charge of the judge, as to the measure of damages, by which he instructed the jury, in substance, that they might take into consideration, for the purpose of measuring the damages, the amount of net profits which the evidence showed the plaintiff would have made by his process with his machinery, or the number of animals which the defendant had gathered, and which, under the contract, he had agreed to deliver, but had refused to do so. We think this charge was correct, and afforded the only mode of ascertaining the damages which is disclosed by the case. It is true that the general, but not universal, measure of damages for a breach of a contract for the sale of personal property, by the non-delivery of the property, is the cost at which the vendee might have supplied himself with similar articles in the market at the time of the breach. But that rule only applies, when the article sold can be procured in the market, and has a market-price. A vendee who is entitled to recover for the non-delivery of articles sold, is entitled to a full and fair indemnity for the loss to which he has been subjected by the breach of, contract. Where the article purchased can be procured by the purchaser in the market, the difference between the contract-price and the market-price, is generally assumed to be—is ordinarily in fact—the full indemnity which the law requires. But if the articles purchased cannot otherwise be procured, and have no market-price, or cannot be supplied without great delay, then, in order to ascertain what amount will constitute a full indemnity to the purchaser, resort must be had to other elements of the contract.

In this case, it could not reasonably be claimed that the articles purchased could have been procured by the vendee in the market, or from any other source than that provided by the contract, consequently, an investigation as to the use to which the vendee proposed to put, and was prepared to put, the articles purchased, together with the net results of that use, must be resorted to, in order to ascertain the amount of loss which the breach of the contract would, naturally, and by reason of the facts supposed to be in contemplation of the parties at the time of the contract, inflict upon the vendee. The rule stated in Griffin v. Colver, as follows : The general rule is that the party injured by a breach of contract is entitled to recover all his damages, including gains prevented as well as losses sustained provided they are certain, and suchas might naturally be expected to follow the breach ”—justifies the instruction in this case—and the judgment must be affirmed.

Present—Tappen and Talcott, JJ.

Judgment affirmed.

       16 N. Y., 489.


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    RACHEL A. PLATT, Appellant, v. THE FORTY-SECOND STREET AND GRAND STREET FERRY RAILROAD COMPANY, Respondent.

      Negligence — when contributory — Relation of carrier amd passenger — when terminated.

    A car belonging to the defendant, in which the plaintiff was a passenger, having arrived at the end of its route, stopped; and plaintiff, having stepped from the car at the end to which the horses were attached, proceeded toward the sidewalk. When she-left the car, the horses were still attached to it. .When the plaintiff was about six or eight feet from the car, she was struck on the right shoulder by one of the defendant’s horses, while they were being driven to the other end of the car. In an action brought by her to recover damages for the injuries sustained by her, held, that at the time the accident occurred, the plaintiff had ceased to be a passenger;'that the liability of the defendant, if any, resulted not from the fact that it was a common-carrier, hut depended upon principles that apply to all persons lawfully using the highway; and that the fact that the plaintiff, in leaving the car at that end, had violated a regulation of the company, could not be considered as proximately contributing to the accident, nor relieve the defendant from such care as all persons lawfully using a public highway are bound to take] to avoid injury to others also lawfully using the same.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.

      On the 15th of August, 1871, the plaintiff entered the defendant’s car at the corner of Eighth avenue and Thirty-fourth street, in the city of New York; was received as a passenger on such car, and carried to the foot of Grand street. After the car had stopped, and before the horses had been detached, the plaintiff left the car by the front platform, and, while proceeding in a diagonal course toward the sidewalk, was struck on the right shoulder by one of the defendant’s horses, while they were being driven to the other end of the car.
    The referee found that the horse struck the plaintiff through negligence on the part of the defendant, but that the plaintiff was guilty of negligence which contributed to the accident; and, therefore, ordered judgment for the defendant.

      Oscar Frisbie, for the appellant.

      Moses Ely, for the respondent.
   Talcott, J.:

In this case, the referee, in coming to the conclusion that the plaintiff was guilty of such contributory negligence as prevented her recovery, seems to have based this finding wholly upon the fact that she had previously left the car of the defendant, in which she had been a passenger, by the front, instead of the rear platform, contrary to the regulation of the company. We do not think this circumstance at all conclusive. If the defendant could only be liable on the ground that the plaintiff was a passenger in its car, perhaps the violation of the regulation might have been conclusive evidence of negligence on the part of the plaintiff.

But we do not think that the liability of the defendant, necessarily must result entirely from the circumstance that the plaintiff had been a passenger on the car of the defendant.

At the time when the accident occurred, the pi an tiff had ceased to be a passenger on the car of the defendant. She was lawfully in the public highway, as were also the horses of the defendant, and we think the liability of the defendant, if liable, results not from the fact that it was a common-carrier, but depends upon principles that apply to all persons lawfully using the highway; and we do not see how the fact, that the plaintiff had been a passenger on board the defendant’s car, and, in leaving the same, had been guilty of a violation of the regulation, can be considered as proximately contributory to the accident, or could relieve the defendant from such care as all persons, lawfully using a public highway, are bound to take, to avoid injury to others, also lawfully using the same highway.

Upon the ground, therefore, that the referee seems to have based his decision solely upon the idea that the defendant owed no duty of care to avoid negligence by which the plaintiff was injured, except that which was founded upon the relation of carrier and passenger, we must reverse the judgment.

Judgment reversed, and new trial ordered at the circuit, costs to abide the event.

Present—Barnabd, P. J., Tappen and Talcott, JJ.

Judgment reversed, and new trial ordered, costs to abide the event.


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    HENRY B. PURDY, Respondent, v. GEORGE K. SISTARE, Appellant.

      Trust—what constitutes—Statute of limitations—when it commences to run.

    On June 37th, 1865, the plaintiff, being about to leave the State, delivered certain bonds to the defendant, who advanced $1,300 thereon, and agreed to dispose of the bonds when a favorable market occurred, deduct from the proceeds his advance and commissions, and account to the plaintiff for the surplus. The plaintiff returned to the State in 1868, and requested from the defendant an account of the sales, which the 'defendant promised to render, but failed to do so before the plaintiff again left the State. In August, 1873, plaintiff again returned to the State and demanded an account, which defendant refused to render. In November, 1873, plaintiff brought this action for an accounting, in which defendant interposed the defense of the statute of limitations. Held, that the defense was properly overruled; that the pledge of the bonds, with the power of sale, created a direct trust, and that, in such cases, the statute does not begin to run, as a general rule, unless there be an open denial or repudiation of the trust, or some notice of an adverse claim.

      Motion for a new trial after an interlocutory judgment, rendered at the Special Term of Kings county. The facts are stated in the opinion.

      Robert Ludlow Fowler, for the appellant.

      Robert Christie, for the respondent.
   Talcott, J.:

This is an action for an accounting. The findings of fact are, in substance, so far as it is necessary to notice them, that, on the 27th June, 1865, the plaintiff, being about to leave the State, delivered to the defendant, a banker in Kew York, bonds of the city of Trenton, to the amount at par of $2,000 with interest, under the agreement that the defendant should advance the plaintiff $1,200, and should dispose of the bonds when a favorable market occurred, and should deduct from the proceeds the said $1,200, with such interest as might have accrued thereon, and the commissions of the defendant,- and should account to the plaintiff for the surplus. The plaintiff returned from California in August, 1868, and requested from the defendant an account of the sales or other disposition of the bonds and the proceeds. The defendant promised and agreed to render such account, but failed to do so before the plaintiff returned to California, which was in the following month. The plaintiff returned from California in August, 1872, and, in September of that year, again called upon the defendant for an account of the proceeds of the bonds, whereupon the defendant repudiated the claim of the plaintiff. The court has ordered an accounting.

The only question, made on the part of the defendant, which demands any attention, is that arising upon the statute of limitations. The pledge of the bonds with the power of sale, created a direct trust. By the transaction as found, the defendant became the trustee and agent of the defendant. In such cases, the statute does not begin to run, as a general rule, unless there be an open denial or repudiation of the trust, or some notice of an adverse claim. So long as the trustee and agent obeys his instructions, no action lies against him, and if there be any money in his hands, no action lies against him till after demand and refusal to pay. So far as appears, the defendant did nothing in violation of his trust, or contrary to his instructions or duty, until September, 1812. No cause of action therefore existed against him until that time.

This suit was commenced in November, 1812, within three months after the first time when the defendant had assumed to repudiate his trust and duty to the plaintiff. The order that the defendant shall account, is just and proper. The justice at the Special Term seems to have made an inadvertent mistake, as to the amount of the advance upon the bonds. The complaint expressly states the amount of the advance to have been $1,250. The omission to notice this at the Special Term, was doubtless an inadvertence which would have been corrected had attention been called to it. The findings are corrected by inserting $1,250 in place of $1,200 wherever the latter occurs in the findings, and a new trial is denied.

Present—Barnard, P. J., Tappen and Talcott, JJ.

Motion for new trial denied.

       Angell on Limitations, § 178.


author: Barnard, P. J.:

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    JULIA WOODWARD, Respondent, v. HENRY BUGSBEE, Administrator, etc., Appellant.

      Services—value of—how proved—opinion of witness as to — when admissible — Promise to pay •—■ when may be implied.

    This action was brought to recover for services rendered by the plaintiff in nursing defendant’s intestate during his last illness. It appeared upon the trial, from the testimony of the physician who had attended him, that the deceased had a cancerous sore over one of his eyes, and a carbuncle of unusual size upon his back; that the discharge from them was very offensive, and even dangerous, to those nursing him ; that the services of the plaintiff had no standard price. He was then asked what, in his opinion, the services were reasonably worth. To this question defendant objected, and excepted to its allowance by the referee. Reid, that the question was a proper one ; that, in cases of this kind, where the services have no market value, there can be no better proof of their real value than the opinion of the physician who knew the nature of the sickness and the value of attendance upon the sick.

      † Angell on Lim., §§ 173,179, 180, and cases cited.

      The plaintiff was the sister of the deceased, who did not, however, reside with her, but had come to her house, asking leave to stay for a few days, and had subsequently died there. During bis illness, he spoke warmly of plaintiff’s care, and of paying her for it. Held, that it was not necessary to prove an express promise to pay, but that one might be implied.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    Isaac Bugsbee, the defendant’s intestate, an unmarried man, without family, came to the defendant’s house about the 1st of May, 1870, and, being sick, requested her to keep him a few days. He was sick with a cancerous affection of one of his eyes, and with a carbuncle of unusual size located upon his back. These sores required frequent dressing, and the discharge from them was very offensive. The plaintiff kept the deceased in her house, and took the entire charge of him until his death, which occurred June 8th, 1870. It appeared that deceased made a will during his illness, by which he left $500 to the plaintiff, but that probate of the will was subsequently refused for some informality in its execution. At the trial, the attending physician, having testified that the case was of so aggravated a character that there was no standard price for the services rendered by the plaintiff, was asked: “ What is the price or value of the care and attention of the deceased by plaintiff during his last illness ? ” To the admission of this question by the referee, the defendant excepted. The referee found that the services were worth $440, and from the judgment entered upon his report this appeal was taken.

      Daniel Finn, for the appellant.

      Groo & Wiggins, for the respondent.
   Barnard, P. J.:

We think the question, allowed by the referee to be put to Dr. Everett, was proper. He had testified that he was a physician; he had fully stated the diseases of the plaintiff’s intestate, and that the same were of the most aggravated description, so much so, as to be the subject of no standard price. In other words, he had testified that the deceased was so afflicted and was so loathsome as to be entirely exceptional. The case must have been left to the referee to determine on proof of facts, or the value of the services claimed must be proven. A referee, ordinarily, would have no especial knowledge of the value of such services; and, to prevent the failure of justice, it was necessary that the value should be proven; and where there is no market value, there can no better proof be given of the real value, than the opinion of the physician who knew the services and the nature of the sickness, and who knew the value of attendance upon the sick.

As to the objection that the services cannot be recovered without an express promise, having been performed by a sister to her brother, we think that principle not applicable to this case. The deceased was not a member of plaintiff’s family; he came to her house sick, and asked to be taken care of for a few days; he spoke of the plaintiff’s care and attention in the warmest terms, and spoke of paying her for the same by will, and even named the sum of $500 as the measure of value thereof.

The referee was justified in finding a promise, and the judgment should be affirmed, with costs.

Present—Barnard, P. J., Tapper and Talcott, JJ.

Judgment affirmed, with costs.


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    JAMES H. ELMORE, Appellant, v. ZIPPORAH D. JAQUES, Respondent.

      Code, § 399 — Advances made to one deceased by Ms executor — Ms testimony not admissible as to.

    Where an executor is cited to render an account before the surrogate of his proceedings, neither his testimony nor entries in his books are admissible in support of a claim against the estate, made by him for money advanced by him to the deceased.
    Appeal from a decree of the surrogate of the county of Kings, directing the appellant to pay over certain moneys to the defendant.
    The appellant was, in 1871, duly appointed executor of the last will and testament of Lydia J. Carle, deceased. On the 29th of January, 1873, the respondent, a legatee under said will, procured from the surrogate a citation, requiring the said executor to appear before him and render an account of his proceeding as such executor. From the decree entered upon such accounting, this appeal was taken.
    Other facts are stated in the opinion.

      L. S. Chatfield, for the appellant.

      John D. Pray, for the respondent.
   Barnard, P. J.:

The first question presented by the appeal in this case, is, whether the executor, Mr. Elmore, could testify as to advances made by him in the lifetime of testatrix. Mr. Elmore had been the manager of the estate of deceased before her death. His custom was proven to have been, to generally render accounts at yearly intervals, and to give a note to deceased for balance of estate existing at date of note. This was done the 11th of February, 1867, and the balance was then $4,242.95. The testatrix died in the fall of 1870. In 1871, the executor took an inventory, and returned the note, with the interest upon it, as due the estate. Upon the accounting, the executor presented a claim against the estate, of $4,867.37, being chiefly for moneys paid to deceased by executor, after the date of the note and before her death, and offered to establish it by his own oath. This evidence was rejected.

The rejection was proper under section 399 of the Code. The claim sought to be established was against the deceased, and the proceeding was, in effect, an action to recover it of her estate. Heither the entry in books, nor the sworn evidence of a party, is admissible as against a deceased person, in regard to a personal transaction had with such deceased person.

The appellant claims that the surrogate should have sustained this claim, without his evidence.

There was proof that deceased occasionally got moneys of executor for her support, and that she had no other means, except what was in executor’s hands, beyond about from $300 to $500 per year, derived from railroad stock. There is also proof that such support would cost from $1,200 to $1,500 per year.

On the other hand, there was the fact that the executor inventoried the claim at its full face and interest, and the further fact, that, during the years previous to the giving of the note in question, the executor had advanced less than $500.

Upon the question of fact, we see no reason to question the conclusion of the surrogate.

Decree affirmed, with costs.

Present — Barnard, P. J., Tapper and Talcott, JJ.

Decree affirmed, with costs.


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    BETHIA E. DISBROW, Respondent, v. JOHN W. MILLS, Surrogate, etc., Appellant.

      Surrogate—liability of, fiyr money received from his predecessor •—Identity of fund.

    A surrogate who receives from his predecessor a sum of money belonging to several estates, and pays the same out, as from a sum in gross, on various claims that are presented, without, taking the pains to find out to what estates the fund belonged, though he had the means of doing so by reasonable investigation, is liable to the parties entitled to such sum, or any part thereof.
    The deposit by the surrogate of the fund belonging to the plaintiff, indiscriminately with other funds, did not impair the plaintiff’s title to such fund.
    The identity of a sum of money or debt does not consist of the pieces of coin, but in the fund, which may be followed as long as its identity can be traced.
    Appeal from a judgment entered on the report of a referee in favor of plaintiff.
   Talcott, J.:

There seems to be no doubt of the propriety of the judgment in this case on the merits. The brief history of the case is this: Alfred Disbrow, from whom the plaintiff derives title, by the decease of her brother Stephen R. Disbrow, became entitled to the sum of $2,653.19, as his distributive share of that brother’s estate. A creditor of said Alfred Disbrow, seeking to set aside the assignment under which the plaintiff claims, had obtained an injunction against the plaintiff, Alfred Disbrow, and others, restraining them from collecting and receiving this distributive share, and seeking to have it applied in payment of his debt. On a final settlement of the account of the administrator of Stephen R. Disbrow’s estate, the share of Alfred Disbrow, namely, the sum of $2,653.19, as adjudged by the decree of Surrogate Reuben H. Coles, then surrogate of Westchester, was, as ordered by the decree on such final accounting, paid over into the hands of Surrogate Coles, and left in his hands. Surrogate Coles invested the amount, by loaning the same to T. Davids & Co., in January, 1859. Surrogate Coles died in January, 1862, while the money thus loaned to T. Davids & Co. was still in their hands. S. D. Gifford was thereupon appointed surrogate of Westchester, and, while he held the office, the administrators of Coles passed over to Gifford, as funds belonging to the Surrogate’s Court, the note of Davids & Co., and Gifford collected the money of them, and held it in deposit in the Hew York Life Insurance and Trust Company, while he held the office, as funds belonging to the Surrogate’s Court. The defendant, on the 1st of January, 1863, succeeded to the office of surrogate of Westchester, and, on the 7th of January, 1863, Gifford paid over to the defendant the gross sum of $7,267.89, being a balance of funds in his hands as surrogate, and took the defendant’s official receipt for the gross amount, as funds which had been held by Gifford as surrogate, and delivered over to the defendant, as the successor of Gifford. It clearly appears, and is found by the referee, that this sum of $7,267.89, so paid over to the defendant in gross, by his predecessor in office, comprised, as a part thereof, the identical fund belonging to the plaintiff, to wit, the $2,653.19, the distributive share of Alfred Disbrow of his brother’s personal estate. The amount was transferred by Gifford to the defendant by a check on the blew York Life Insurance and Trust Company, where it was drawing interest, and the amount was -passed to the credit of the defendant, drawing interest as before. The sum paid over by Surrogate Gifford to the defendant, embraced sums due to various parties, by reason of the proceedings of the surrogate’s office during the time of Coles, but the defendant made no inquiry or attempt to ascertain to whom the several sums, comprised in the gross amount received from his predecessor in office, belonged, but went on paying out of that amount, as from a sum in gross, such claims as were presented, until the amount so received from Gifford has become reduced to about $1,400. The fact is that the said sum, so received by Gifford of T. Davids & Oo., was ascertainable from the account of the Disbrow estate in the book in the surrogate’s office, which Coles, Gifford and the defendant used for keeping their official accounts; and, in fact, was indicated by an entry in that account, made by one Jenkins, who had his office with the defendant, and was by him permitted to make entries in the book, acting as the clerk of the defendant. Before the commencement of this suit, the defendant was notified of the plaintiff’s title, and of the dissolution of the injunction which had been issued restraining the collection of the money by the plaintiff, and payment was demanded. We think the plaintiff was entitled to recover the whole amount of the distributive share which came to the hands of the defendant. It is of no importance to inquire by what authority Surrogate Coles directed the money to be paid over to him, or whether the investment in the note of T. Davids & Co. was lawful. The precise fund was accounted for by the estate of Coles to Giffurd, and passed over bj him to the defendant as a trust fund with others. If the defendant paid out a portion of this money to some person not entitled to it, he paid it in his own wrong. The money, when it came to his hands, was affected with the specific trust. The deposit of the fund belonging to the plaintiff, indiscriminately with other funds, did not impair the title of the plaintiff to her property. The identity of a sum of money or debt, does not consist of the pieces of coin, but in the fund, which may be followed as long as its identity can be traced. That this fund came to the hands of the defendant is indisputable. He not only had notice that it was held in trust for somebody, but he had the means, by reasonable investigation, of discovering who was the cestui que i/rust; and, if he chose to remain in voluntary ignorance of the true ownership, and has thus been led to pay it over to somebody not entitled to it, he must seek his remedy against the person to whom he has thus mistakenly paid it. We think he could not justify the payment of the money of the plaintiff over to somebody else, under the circumstances of this ease. The defendant is not held liable for the financial shortcomings, if any, of Surrogate Coles, but úpon the sole ground that the plaintiff’s fund has been identified and traced to his hands, and he has paid it away, if he has so paid it, without authority or justification. On the merits, therefore, we think the judgment should not be disturbed, and we see nothing in the exceptions to the admission of evidence, to which our attention has been called, which requires a reversal of the judgment. A resort to the check book of Coles, was necessary in tracing the identity of the money loaned to T. Davids & Co., and showing it to be the money of the plaintiffs. Coles had kept the money indiscriminately with his own, and the entry by him on the stub of the check, of $450, which check, it was proved, was paid out of the general account to his credit in the bank on which it was drawn, was an act of appropriation by him of that $450 to the Disbrow fund in his hands. The entries on the account book kept in the surrogate’s office, and used by Coles, Gifford and the defendant as an account with official funds, were admissible in evidence, tending to show, if the defendant did not know the precise fact that the plaintiff was entitled to the sum of $2,653.19, parcel of the $7,267.89, held by the trust company, and transferred to the defendant’s credit, that he at least had the means of knowledge in his possession. The letter from the attorney for the plaintiff, addressed to the defendant, under date of March 2d, 1870, the admission of which was objected to on the ground that it had not been received, was not material in the case, whether received by the defendant or not. But enough evidence was given to raise a presumption of its receipt by the defendant, and to carry the question as one of fact to the referee.

The judgment must be affirmed, with costs of the appeal.

Present—Barnard, P. J., Tapper and Talcott, JJ.

Judgment affirmed, with costs.

       Van Alen v. The Am. Bank, 52 N. Y., 1.

       Hill on Trustees, 164, and Van Alen v. Am. Bank, supra.