text:
    Mary Ann Recor, Respondent, v. Charles Blackburn and Others, Defendants. Levi Blumenau, Purchaser, Appellant.

      Befereds report unsupported by evidence — action of partition — merchantable title — terms of sale.

    In an action brought for the partition of certain real estate, it appeared that the title to such property was derived under the will of one Jane Richards, who was the wife of James Richards, who died seized of the property in 1884, and that the Legislature had released the interests of the State in the lands to Jane Richards, the widow, subject to the rights of the heirs of James Richards therein. The referee before whom the action was tried found that James Richards was never a citizen of the United States; that he left no heirs at law nor next of kin, except his widow; no evidence of, nor testimony relating to, which facts was returned by the referee. The decree ordered the premises sold, and decided that the devisees of Jane Richards owned the title. The referee sold the land subject to the claim of the heirs of James Richards, although no direction to do so was contained in the decree, but it was contained in the terms of sale signed by the purchaser’s son, who did not understand their force and effect.
    An order was made at Special Term directing the purchaser to complete his sale.

      Held, that such order was improper;
    That the title to the premises was not a merchantable one, such as the purchaser was entitled to ;
    That the conditions of sale in such a case should have no binding effect, and the purchaser should be relieved from his purchase notwithstanding the same.
    Appeal by the purchaser, Levi Blumenau, from an order made at the Kings county Special Term, and entered in the office of the clerk of the county of Kings on the 6th day of February, 1893, directing the said Blumenau to complete his purchase of property sold by a referee under a judgment of partition and sale.

      The terms of sale contained the following clause:
    “ 7th. The premises above described are sold subject to any and all rights or claims of, in and to the said premises which the heirs of James Richards, deceased, may now have or at any time hereafter shall have, and also subject to a certain covenant against nuisances contained in a certain deed of said property by which .the land is conveyed to James Richards, deceased.
    “FRANK E. McELROY, ¡Referee.”
    The memorandum of sale was as follows:
    “I have this 20th day of May, 1892, purchased the premises described in the above-annexed printed advertisement of sale, for the sum of $1,800, and hereby promise and agree to comply with the terms and conditions of sale of said premises as above mentioned and set forth.
    “ Dated May 20,1892.
    “ L. BLUMENAU.”

      Beams <& Brenner, for the appellant.

      William O. Kellogg, for the respondent.
   Barnard, P. J.:

This is an action for partition and sale of lands. The title sold is derived under the will of Jane Richards. She was the wife of James Richards, who died seized of the same in December, 1884. The Legislature, by chapter 170, Laws of 1886, released the interest of the State of New York in the lands to Jane Richards, the widow, subject to the rights of the heirs of James Richards therein. The report of the referee finds that James Richards was never made a citizen of the Uidted States, and that he left no child or children nor heirs at law nor next of kin except the widow. There is no return of the evidence on which the fact of alienage is found, nor any testimony showing what heirs at law James Richards left. The decree ordered the premises sold ; decided that the devisees of Jane Richards owned the title. The referee sold the land subject to the claim of the heirs of James Richards, although this direction was not contained in the decree. One Levi Blumenau became the purchaser at the sum of $1,800, and he declines to take the title. The papers show no title out of James Richards. The release of the State did not give a title as against the heirs of James Richards. The affidavit of Cahill tends strongly to show that there is a brother of James Richards living in England, who corresponded with his brother up to a period shortly before James Richards’ death. As against this brother the act granting title to the widow is inoperative. The purchaser is entitled to a merchantable title. (Fleming v. Burnham, 100 N. Y. 1.) This is not such a title. It is doubtful at least, as it is unproven, that James Richards died an alien. It is more than probable that he has a brother living who can inherit under chapter 38, Laws of 1875. The conditions of sale should have no binding effect. The wife was directed to sell a good title, and the conditions were signed by the purchaser’s son, without understanding its force and effect. He should be relieved if he did. not get a good title, notwithstanding the conditions of sale. The title is not one which will sell. It demands proof and explanation. The court will not force a poor title on a purchaser who is holding only hy a condition of sale unauthorized by the decree in so vital a particular.

The order should be reversed, with costs and disbursements, and the motion denied, with costs.

Pratt and Dyicman, JJ., concurred.

Order reversed, with costs and disbursements, and motion denied, with costs.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    William E. T. Smith et al., Respondents, v. Lydia S. Floyd, Appellant.

      Construction of a devise of realty — intention of the testator.

    Where land is devised to a person for life, giving him the right to devise the same to his children, if Efe should have any, with remainder over to a third person in case the life tenant leaves no children him surviving, the land upon the death of such life tenant, intestate and leaving children, is vested in such children in the absence of any devise of such property hy the life tenant.
    Appeal by the defendant, Lydia S. Floyd, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, overruling the defendant’s demurrer to the amended complaint of the plaintiffs, entered in the office of the clerk of the county of Suffolk on the 18th day of March, 1893.
    The complaint in the action contained, among others, the following allegations:

      That the only heirs at law and next of kin of said William Smith were the devisee named in said will, Egbert T. Smith, and Lydia S. Floyd. The widow of said testator, Hannah Smith, survived the testator, but has since died.
    That said Egbert T. Smith entered into possession of the real estate devised to him for his natural life by said will and died in possession thereof July 8, 1889.
    That the plaintiffs are the lawfully-begotten children of said Egbert T. Smith, and are his only heirs at law and next of kin and are all of full age.
    That the said Egbert T. Smith died without leaviug a last will and testament, to the best of plaintiffs’ knowledge, information and belief.
    That plaintiffs claim to be the owners in fee simple of the premises described in said will as devisees and beneficiaries under the power in trust given to said Egbert T. Smith under the said will of said William Smith.
    That the said premises, at the time of the commencement of this action, and for more than one year next preceding, have been in the exclusive possession of these plaintiffs, as tenants in common, claiming to own the same in fee simple.
    That the defendant unjustly claims an estate in fee simple in an undivided one-half of said premises.
    Wherefore, plaintiffs demand judgment that the defendant and every person claiming under her be barred of all claim to an estate in the premises above described, and that they have such other or further relief as may to the court seem fit.

      George II. Balham, for the appellant.

      T. M. Griffing, for the respondents.
   Barnard, P. J.:

William Smith, of .Brookhaven, Suffolk county, died in 1857, leaving a last will and testament. He had two children, Egbert T. Smith, now deceased, and the defendant. The plaintiffs are the children of Egbert T. Smith, and the question between the parties arises under the will of William Smith. By this will the testator made provisions for his widow, now deceased. He gave the sum of $30,000 to the defendant, accompanied by a “ desire that my said daughter shall keep the said legacy for the benefit of her children.” The testator then gave the lands described in the complaint to his son, Egbert T. Smith, during the period of his natural life, with the right and privilege of disposing of the same by will or devise to his children, if any he should have, and in case he should die without leaving any children lawfully begotten, then and in that case, I give and devise the same to the children of my daughter, Lydia, to them, their heirs and assigns forever.” Egbert T. Smith left no will, and the question is whether the lands upon his death went to his children. There is no residuary clause in the will beyond one which gives funds and money over and above legacies to his daughter, Lydia, absolutely. The true intent and meaning of the will is clear. The testator meant to convey this land to the children of Egbert T. Smith. He gave a power of disposition by will, but this was “ to his children.” It was only in case that Egbert T. Smith died childless that the devise over was made to Lydia and her heirs. A construction which should disinherit these children of Egbert T. Smith when the testator was so careful as to limit his power of disposition by will to them, would be unwarranted. Their father could not take away the estate from them by will; but he could by dying without one. If the intention to give the remainder to the children is clear, the law implies the gift to them. (Baker v. Lorillard, 4 N. Y. 257; Matter of Vowers, 113 id. 569 ; 2 Jarman on Wills [5th Am. ed.], 133.)

A gift over by the testator, based on default of children of Egbert T. Smith, strengthens the implication in favor of a gift to the children, if the power of appointment be not exercised. (Butler v. Grey, L. R. [5 Ch. App. Cas.] 126.)

The plaintiffs, therefore, took a good title to the lands upon the falling in of the life estate under the will of William Smith.

The order overruling the demurrer to the complaint and the interlocutory judgment therein should be affirmed, with costs, but with leave to defendant to answer in twenty days on payment of costs.

Pkatt, J., concurred.

Order overruling demurrer to amended complaint and judgment therein affirmed, with costs.


author: Dykman, J.: Barnard, P. J.

text:
    Richard Cronin and Others, Respondents, v. William M. Tebo, Appellant.

      Contract for dredging — dumping ground — abandonment of work.

    The acceptance by parties, who were the contractors ior the building of bulkheads, of an offer to dredge a trench for crib bottoms for a specified sum, “ the material so dredged to be deposited inshore,” does not obligate such contractors to furnish a dumping ground inshore and hence prevent their recovering damages from the party making the offer because of his abandonment of the work, on his being prohibited by the shore inspector from depositing material inshore, nor entitle him, on such abandonment of the work by him before completion, to recover payment for the work actually done by him, his contract being an entire one. (Barnard, P. J., dissenting.)
    Appeal by the defendant, William M. Tebo, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of Kings county on the 31st day of January, 1893, upon a verdict rendered by direction of the court at the Kings Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.

      J. T. Maream,, for the appellant.

      James G. Ghureh, for the respondents.
   Dykman, J.:

The plaintiffs in this action made a contract with Maltby Gr. Lane to build certain bulkheads at Eort Hamilton, the construction of which required an excavation in the ground under water for their reception.

The defendant is engaged in the business of dredging, and as the result of a conversation between one of the plaintiffs and the agent of the defendant, he made a written offer to the plaintiffs, of which the following is a copy :

“Brooklyn, June 13, 1887.
“ I, the undersigned, propose and offer to excavate and dredge a trench seven hundred and seventy-five feet in length for crib bottom of thirty (30) feet wide to the depth of twenty (20) feet at mean low water, for the sum of twenty-three hundred ($2,300) dollars, the material so dredged to be deposited inshore so as not to interfere with said trench.
“ Respectfully yours,
“W. M. TEBO.
“ To JH. Oronin dk Sons.
Bentley.”

The proposition was accepted verbally and the defendant was ■directed to proceed with the work, which he did in a few days thereafter. He was prevented by the shore inspector from dumping the material inshore, and carried the same to sea until about the seventh day of July, when he ceased to work, and did no more dredging thereafter.

This action is for the recovery of damages sustained by the plaintiffs in consequence of the failure of the defendant to complete his ■contract, and for services in driving some piles.

There seems to have been no dispute respecting the claim of the plaintiffs, but the defendant set up a counterclaim of $1,444.51 for the work he actually did under the contract.

The counterclaim is based upon the theory that the contract ■secured to the defendant the right to dump the excavated material inshore. That it was the duty of the plaintiffs to furnish that 'place of deposit under the contract, and as they failed to perform that portion of the contract on their part, the defendant was justified in the abandonment of the work, and entitled to compensation for what he had done under the contract.

The trial judge decided against the defendant, and directed a verdict in favor of the plaintiffs for $589.39.

The defendant has appealed from the judgment entered upon the verdict, and from the order denying a motion for a new trial upon the minutes of the court.

It is true that the last clause of the defendant’s offer states that the material dredged was to be deposited inshore, and both parties intended and expected to have it so placed.

Under all the circumstances, however, it cannot be assumed that the plaintiffs undertook to furnish the place designated as a dumping ground. The contract was formed by the acceptance of the ■defendant’s offer. The plaintiffs made no stipulation, and in respect "to the ground designated in the offer, they could make none. They had no control over the place, and could grant no privilege in respect thereto.

Their acceptance of the defendant’s offer constituted an assent to the propositions contained therein, but they made no stipulation on their part. In the absence of an express undertaking, the law in its interpretation of the transaction implies an obligation on the part of the defendant to perform the services according to his proposition for the price named, and against the plaintiffs it implies a duty to allow the defendant to do the work and pay him the price stipulated therefor.

Such were the legal obligations of the parties. The contract was entire, with no provision for payment until the work was completed, and as the defendant abandoned the contract and failed to perform it, he is entitled to no compensation for what he did.

In respect to the new arrangement between the parties upon which the defendant now insists, it is sufficient to say that it was. not pleaded and has no consideration for its support.

Our view is justified by all the facts and circumstances surrounding the transaction. The defendant knew the plaintiffs were contractors to lay down the crib work for certain fillings. They had no more control of the premises and no more power to obtain permission to leave the material inshore, than the defendant.

He did not require them to furnish a place for the deposition of the excavated material, or to obtain permission to lay it down inshore. He merely said it was to be so laid down, and they assented, and so they were bound to make no interference in that, respect.

Our conclusion is that the proper disposition was made of the case, and the judgment and order should be affirmed, with costs.

Pratt, J., concurred.

Barnard, P. J.

(dissenting) :

The plaintiffs’ claim was not disputed. The only question presented is as to the defendant’s counterclaim. One Lane owned water front property at Port Hamilton. The plaintiffs are dock builders. The defendant is a dredger. The work which plaintiffs undertook to do for Lane was to build a bulkhead around the property. There was an existing bulkhead on the north side of the property which, liad to be extended some eighty feet and then to be continued south 775 feet parallel to the shore and then to the shore. The defendant was to dredge for the plaintiffs the 775 feet for crib bottom, thirty feet wide and twenty feet deep at mean low water. The dumping was to be inshore, so as not to interfere with the french. When defendant commenced his work and proceeded to dump inshore, he was stopped by the shore inspector. The objection he made was that the dumping could not take place inshore until the pile work was put in for this eighty feet extension. That would have protected the trench under the contract and would have met the objection of the shore inspector. The plaintiffs promised to put down this eighty feet crib in extension of the old bulkhead in a few days, which they failed to do. The defendant continued to dredge and carry the material and dump it at sea at large increased expense to him, until the plaintiffs finally refused to put it in, when the defendant left the work. Assuming all disputed facts in favor of the defendant, the case is one where the plaintiffs broke the contract as amended after the shore inspector objected to the inshore dumping. The inspector assumed that the extension of the old bulkhead would protect the material dumped from being washed away by the tide, and the plaintiffs agreed to give place for inshore dumping by the completion of this dock extension. They did not do so, and the defendant quit the work on that account.

The judgment should be reversed and a new trial granted, costs to abide event.

Judgment and order denying new trial affirmed, with costs.


author: Dykman, J.:

text:
    In the Matter of the Application of Anna Elizabeth Hecht, for the Appointment of a Successor Trustee Under the Will of Henry Schneider, Deceased.

      Testamentary trust— death of an executor-trustee — appointment of a successor trustee.

    Upon, the death of a sole executor, engaged in the execution of a not fully executed express trust, imposed upon him by the will as a part of his duties as executor, a case is presented for the appointment of a successor trustee by the surrogate, under section 2818 of the Code of Civil Procedure.

      A will gave to a person named “ tlie interest of tlie sum of §10,000, at the rate of six per cent per annum and to be paid semi-annually by the below-named executor” during tlie beneficiary’s life, followed by a provision for the disposition of the capital sum on the death of the life beneficiary.

      Held, that an active- express trust was created, annexed to the office of executor;
    That the executor was thereby made a trustee, and that on his death in the lifetime of the life beneficiary, leaving the trust not fully executed, a case was presented for the appointment of a successor trustee by the surrogate.
    Appeal by Elizabeth Miller arid others, as the executrix aud executors of the will of Frederick Miller, deceased, aud by Elizabeth Miller, individually and as administratrix with the will annexed of Henry Schneider, deceased, from a decree of the Surrogate’s Court of Kings county, entered in the office of the surrogate on the 21st day of February, 1893.

      Charles Reinhardt, for the appellants, executors of Frederick Miller.

      Otto F. St/ruse, for Elizabeth Miller, appellant.

      Hurd (& Grim, for the petitioner, respondent.
   Dykman, J.:

This is an appeal by Elizabeth Miller, individually and as admin-istratrix with the will annexed of Henry Schneider, and also by the executors of Frederick Miller, deceased, from a decree of the surrogate of the county of Kings, dated February 21, 1893, by which the surrogate appointed the Nassau Trust Company, of the city of Brooklyn, a successor trustee under the last will and testament of Henry Schneider, deceased, and directed the executors of the last will and testament of Frederick Miller, deceased, to account to the trust company. .

Henry Schneider died in or about the year 1871:, leaving a last will and testament, proved in that year, which contains the following, among' other provisions : “ First. After all my lawful debts are paid and discharged, I give and bequeath and devise as follows: To my brother Daniel Schneider, residing at the time in Maxfield, Iowa, the interest of the sum of $10,000, at the rate of six per cent per annum, and to be paid semi-annually by the below-named executor during his natural life. Second. In case of the death of my above-named brother Daniel Schneider, the said amount to be divided as follows, viz.: To my brother Jacob Schneider, $2,500; to my sister Ann Elizabeth, widow of Henry Heclit, $2,500, and also to my sister Elizabeth, wife of Frederick Miller, $5,000. Third. To my above-named brother Jacob Schneider, residing at the time in the city of New York, $5,000. Fourth. To my aforesaid sister Ann Elizabeth, residing at the time in the city of Brooklyn, widow of Henry Heclit, the interest from the sum of $10,000, at the rate of six per cent per annum, to he paid semi-annually by the below-named executor during her natural life. Fifth. In case of the death of my said sister Ann Elizabeth, then the said amount of $10,000 to be divided among her children as follows, namely : To Frederick Loewer, $8,000 ; to Anna Maria Heclit, $2,000.

“ To my nephew, John Henry Schneider, residing at the time in the city of New York, son of Conrad Schneider, $300.
Seventh. All the remainder of my estate, real or personal property, of whatever name or nature, of which I might be possessed at the time of my death, and which might accrue to me after my death, to my sister Elizabeth, wife of Frederick Miller, residing at the time in the city- of Brooklyn, to have and to hold the same unto herself, her heirs and assigns forever.
Likewise, I make, constitute and appoint my brother-in-law, Frederick Miller, to be executor of this, my last will and testament, hereby revoking all former wills by me made.”

Frederick Miller, the executor named in the will, qualified as such, hut did nothing thereafter in the way of administering upon the estate of Henry Schneider, and died in the year 1891, without having filed an inventory or having rendered any account.

Whatever property of the estate of Henry Schneider came into his possession as executor he apparently mingled with his own funds.

The application to the surrogate was by a petition for the appointment of a successor trustee, the claim being made that as to the two sums of $10,000 each mentioned in the will of Henry Schneider, the deceased executor was a trustee.

Elizabeth Miller, the sole residuary legatee of Henry Schneider, under the will above quoted, qualified as administratrix with the will annexed of Henry Schneider, and letters to her, as such adminis-tratrix, were granted by the surrogate of the county of Kings on the 12th day of January, 1893, and she is now such administratrix. The petition to the surrogate was made by Anna E. Hecht, and stated, among other things, that from the probate of the will, Frederick Miller paid to her the interest on the sum of $10,000, according to the directions of the will, and his executor has paid the same to her since his death. It further states that Frederick Miller, the executor of Henry Schneider, made one payment of the income of $10,000, part of the trust fund, to Daniel Schneider, and thereafter received Daniel Schneider into his house, as a member of his family, and cared for and supported him in lieu of paying him the income.

That Daniel Schneider is now living, and is of the age of. eighty-four years, and is feeble and infirm. That said Jacob Schneider is dead. That the said Elizabeth Miller is living, and is of the age of seventy-two years, and is also infirm and feeble.

That the petitioner is of the age of seventy years, and that Frederick Loewer is living and is of the age of forty-one years. That said Maria Hecht is living, and is of the age of thirty-nine years.

It further states that Frederick Miller was careless in the management of the estate of Henry Schneider, and mingled the assets thereof Avith his oAvn property, and that Elizabeth Miller, his widow and executrix, as the residuary legatee and devisee under the will of Henry Schneider, holds and has in her possession a large part of the assets of the estate which she claims as her property by virtue of the residuary clause of said will, and as executrix of the will of Frederick Miller; that she is advanced in years and is feeble in body, and unfit to act as the trustee of the said sum of $20,000, and that Daniel Schneider, by reason of his great age and feebleness, is also unfit to act as such executor, and for those reasons asks for the appointment of a new trustee.

The insistance of the appellant is, that no trust was created by the will of Henry Schneider, and consequently Frederick Miller Avas never appointed a trustee, but the position is untenable. There were two distinct active trusts created by the will, and the execution of both was devolved upon the executor in express terms. The power or trust was annexed to the office of executor.

It may be well enough to say that no trust was devolved upon the executor separate from his duties as such, and that the execution of the trust Avas a part of his duties imposed upon him as executor.

Such distinction may be important upon a question of commissions, but it is not so here.

The executor had executed the trust, paid the interest to the beneficiaries, paid one of the beneficiaries from the time of his qualification as executor down to the time of his death, a period of about seventeen years. As, therefore, the trust was an express trust, and he was engaged in its execution, and it remained unexecuted, we think the case falls witliin the spirit and intention of section 2818 of the Code of Civil Procedure, which authorizes the surrogate to appoint a successor of a sole testamentary trustee who dies.

Chapter 185 of the Laws of 1882 also provides that upon the death of a surviving trustee of an express trust, the trust estate shall not descend to his next of kin or personal representatives, but the trust shall vest in the Supreme Court.

Under that statute there was no one to execute the trusts in the will of Henry Schneider, and the appointment of a new trustee was necessary. It was necessary only to inquire whether the deceased executor was engaged in the execution of a trust which remains unexecuted. When that fact appeared, the appointment of a successor became necessary. (The Matter of Waring, 99 N. Y. 115.)

The accounting is not only proper, but, in view of the facts disclosed, it is necessary.

The decree should be affirmed, with costs to be paid by the appellant personally.

Barnard, P. J., and Pratt, J., concurred.

Decree affirmed, with costs to be paid by appellant personally.


text:
    The Port Jervis Water Works Company, Respondent, v. The Village of Port Jervis, Appellant.

      Municipal corpwation — water furnished for public uses — implied contract.

    A municipal corporation possessing power to make contracts for a supply of water for public uses may, in the absence of an express contract, be bound by an implied contract to pay the value of water furnished to it for public uses.

      Appeal by tbe defendant, tbe Village of Port Jervis, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Orange county on the 18th day of February, 1891, upon the decision of the court rendered after a trial by the court at the Orange Special Term.

      Lewis E. Carr, for the appellant.

      Wm. IF. Onme, for the respondent.
   Dykman, J.:

This action was for the recovery of the value of water furnished by the plaintiff to the defendant for sprinkling the streets of the village, the public fountains, water troughs, jail and hose house, from the 1st of May, 1886, to the 1st of May, 1889.

The case was tried before a judge without a jury, and he rendered a judgment in favor of the plaintiff for the full amount of the claim. The defendant has appealed from the judgment. The facts are practically undisputed, and the defense to the action proceeds trpon the absence of an agreement, or the want of power to incur the liability, the finality of the action of the auditing board rejecting the claim and the want of funds.

There is no destitution of power in the municipal authority of this defendant to make contracts for a supply of water for public use in the village, and no limitation of such power inside of the public necessities. There was no contract for the water out of which this claim arises, yet it was furnished and the law will justify an implication of a contract for the payment of its value.

Municipal corporations may be bound upon contracts implied from sufficient facts. “ The doctrine of implied municipal liability applies to cases where money or other property of a party is received under such circumstances that the general law, independent of express contract, imposes the obligation upon the city to do justice with respect to the same.” (Nelson v. Mayor, 63 N. Y. 544.)

“ That corporations may be bound upon implied contracts made by its agents and to be deduced from corporate acts without a vote of the governing body, is now well settled.” (Kramrath v. Albany, 127 N. Y. 581.)

To the same effect is Dillon on Municipal Corporations, section 383.

Tlie claim of tlie plaintiff was before the governing body, the defendant, and it was just.

There was sufficient authority in the charter to enable the officers to pay the amount, but they refused to do so, and neglected to put the proper machinery in operation to raise the funds to pay the claim, and, under such circumstances, the law furnishes the creditor with a remedy by action.

Judgment should be affirmed, with costs.

Pratt, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


author: Dykman, J. :

text:
    Augustus Van Keuren and Egbert M. Haines, Respondents, v. William Starr Miller, Appellant.

      Building contract — recovery for labor performed — unjustifiable refusal of an architects’ certificate.

    In an action brought to recover for mason work performed and labor furnished upon a house for the defendant, under a contract which provided that the work should be done under the supervision of the architects and builder, and that the defendant should pay all bills for work done during the preceding month on or before the fifteenth of each month, provided they were accompanied by the certificate of the architects that payment was due, the trial court found that the work in question was duly performed by the plaintiffs; that all the bills therefor had been duly presented to the architects for certification; that certain of the bills had been certified to he correct by the architects, and that as to those for which a certificate was refused, no legal or valid reason for the refusal was shown, nor was the architects’ action in refusing a certificate justified; that the bills had become due and payable the same as if a certificate therefor had been issued by the architects; and that the plaintiffs were entitled to recover therefor.
    Meld, that the facts found were justified by the evidence; that there were no questions of law involved, and that the judgment should be affirmed.
    Appeal by the defendant, William Starr Miller, from a judgment of tlie Supreme Court in favor of tlie plaintiffs, entered in the office of the clerk of Dutchess county on the 25th day of March, 1893, upon a decision of the court rendered after a trial by the court at the Dutchess Special Term.

      Eseelsty-n & MeOarty, for the appellant.

      A. Lee Wager, for the respondents.
   Dykman, J. :

This is an appeal from a judgment in favor of the plaintiffs against the defendant.

The action was for the recovery for work and labor furnished to the defendant in the construction of a large stone mansion at Rhine-beck, in Dutchess county, in pursuance of a written contract.

The action was tried before a judge of this court, and decided against the defendant, and from the judgment entered on such decision the defendant has appealed. The trial judge found and decided the following facts : On the 8th day of July, 1892, Augustus Van Keuren, one of the plaintiffs in this action, and the defendant entered into a contract in writing, whereby Van Keuren agreed to do all the labor in connection with the mason work and plastering upon the erection of the residence of the defendant already mentioned. According to the terms of the contract, the labor was to be, done by the day. Carrin and Hastings were the architects of the building, and were intrusted by the defendant with the full charge and supervision of the work.

Ackert and Brown did the carpenter work upon the mansion, and they supervised the progress of the mason work, according to the written agreement between Van Keuren and the defendant. The work was begun about the 1st day of August, 1892, and continued uninterruptedly until the month of December, 1892.

On or before the fifth day of each month, all the bills for labor and services rendered and expenses incurred during the preceding month, were presented to the architects for certification, and all such bills became due and payable on the fifteenth day of the month succeeding that in which they wei’e incuiTed.

The defexxdant agreed to pay such bills on or before the fifteenth day of the inoixtli in which they were presented, provided the bills were accoxnpaxxied by the certificate of the architects that the pay-xxxent was dixe.

On the 8th day of September, 1892, with the written consent of the architects, the plaintiffs, Augustus Van Keuren, assigned an equal one-lialf interest in the work to be performed according to the terms of the agreement, to Egbert M. Ilaines, one of the plaintiffs, who thereupon became an equal copartner with said Van Keuren, and .thereafter the work was conducted by the firm of Van Keuren & Ilaines, the plaintiffs in this action.

During the month of October, 1892, the plaintiffs performed work and furnished labor for the defendant under the contract, and paid freight charges on material furnished to defendant to the amount of $11,797.76. During the month of November, 1892, the plaintiffs performed work and furnished labor for the defendant under the contract, and paid freight charges on material furnished to the defendant to the amount of $5,129.50.

During the month of October, 1892, Ryder and Ilaines performed work for the defendant a.t Rliinebeck, in carting stone, lime, brick, cement and general materials used in building the mansion of the defendant, as specified in the agreement, of the value of $1,957.35, which the defendant agreed to pay on or before the 15th day of November, 1892.

During the month of November, 1892, Ryder and Haines performed labor and services for the defendant at Rliinebeck, consisting of carting stone, lime, brick, cement and general materials used in the building of the mansion of the defendant, as specified in the agreement, of the value of $888.79, for which the defendant agreed to pay on or before the 15th day of December, 1892.

All bills for work, labor and services and freight furnished by the plaintiffs and Ryder and Ilaines during the month of October, 1892, were presented to the architects for their certification on or before the 5th day of November, 1892, and the architects issued their certificate to the effect that the payment of the bills ivas due, and that all of such bills for October became due and payable on the 15th day of November.

All the bills for work, labor and services and freight furnished to defendant by the plaintiffs and Ryder and Haines during the month of November, 1892, were presented to the architects on or before the 5th day of December, 1892, and repeated demands were thereafter made upon tlie architects that they issue their certificate that the payment of the November bills was due.

The architects refused, or neglected to issue a certificate for the November bills, and they were requested and directed by the said defendant not to issue a certificate for November, 1892.

No legal or valid reason for the refusal to issue such certificate was shown upon the trial of this action, and the architects have failed to justify such refusal.

All of the bills of November, 1892, became due and payable on the 15th day of December, 1892j the same as if certificates thereof had been issued by the architects.

Prior to the commencement of this action, Ryder and Haines assigned and transferred to the plaintiffs herein their claim against the defendant for work and labor rendered during the months of October and November, 1892, amounting to $2,846.14, with interest from the time their claims became due, and the plaintiffs are now the owners and holders thereof.

All the work, labor and services furnished and performed by the plaintiffs and Ryder and Haines was furnished and performed under the direction and supervision of the architects, Ackert and Brown, the carpenters doing the work, and such work, during its progress, was approved by the architects from week to week, and by the said architects inspected at least three times a week during the progress thereof.

The plaintiffs’ commissions for their general services in connection with the work as called for under the said written contract, viz., ten per cent on the cost of all labor and material furnished for the mason work, is not included in the plaintiffs’ claim in this action.

The plaintiffs and Ryder and Haines faithfully kept and performed the covenants and agreements to be kept and performed on their part, and the defendant failed to keep and perform the covenants and agreements to be kept and performed on his part, by neglecting and failing to pay the bills due for October and November, 1892. On the 2d of December, 1892, the defendant paid to the plaintiffs on account of such work, the sum of $10,000, and no other payments have been made thereon.

The judge found and decided as conclusion of law, that the defendant is indebted to the plaintiffs in the sum of $9,778.40, with interest on $3,771.31, from November 15, 1892, and with interest on $6,002.09, from December 15, 1892, said interest amounting to $176.29, making together the sum of $9,919.69, for which last sum, with costs, the^plaintifiis are entitled to recover judgment against the defendant, and judgment was directed accordingly.

The facts so found are fully justified by the evidence, and there were no questions of law involved.

There is no merit in this appeal and the judgment should be affirmed, with costs.

Pratt, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


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    Florence N. Mann, Respondent, v. William D. Carter, Appellant, Impleaded with Another.

      Attachment — sufficiency of cm affidcmt made by the plaintiff’s agent.

    The affidavit for an attachment in an action brought to recover upon a promissory note, was made by the attorney in fact and agent of the plaintiff, because of the plaintiff’s absence from the State. The affidavit stated that the whole amount of the note was due, with interest, over and above all counterclaims known to the plaintiff, as the affiant was informed by her and believed, and alleged as the grounds upon which the statements upon information and belief were made, that the note was in the affiant’s possession; that he had conversed with the plaintiff, who informed him that there was no counterclaim against it, and that he had held conversations with the defendants, in which they admitted the making and delivery of the note and its non-payment.

      Held, that this was a sufficient statement of the source of the affiant’s information, and that the facts stated were -sufficient to show that the plaintiff was entitled to recover the amount due upon the note, and that there was no counterclaim against it.
    Appeal by tlie defendant William D. Carter, from an order made at the Kings County Special Term, and entered in the office of the clerk of Kings county on the 22d day of April, 1893, denying the said defendant’s motion to vacate a warrant of attachment.

      Wm. 0. Gam/pbell, for the appellant.
    Lowery, Stone da Auerbach, for the respondent.
   Dykman, J.:

This is an appeal from an order denying a motion to vacate an attachment against the property of the defendant.

The motion was made upon the papers on which the attachment was issued, and is based upon the insufficiency of the affidavit upon which the writ was granted. That affidavit was made by the attorney in fact and agent of the plaintiff. The action is upon the joint promissory note of the defendants for $15,000, which is in the possession of the agent.

He has held conversations with the defendants in which they have admitted to him the making and delivery of the note and the non-payment thereof.

These facts are stated in the affidavit and they are the grounds upon which the statements therein upon information and belief are made. The affidavit was made by the agent because the plaintiff was absent from the State.

He states that the whole amount of the note is due, with interest . from the 2d day of January, 1892, over and above all counterclaims known to the plaintiff, as he is informed by her and verily believes. That is a sufficient statemeiit of the source of his information.

The insufficiency of the affidavit is claimed to result from its failure to show that the plaintiff is entitled to recover the sum of money claimed over and above all counterclaims known to her.

Ve must, therefore, determine whether the affidavit in question makes such a showing. The affiant was the agent of the plaintiff and had important knowledge and information respecting the claim upon which this action is founded. The note was in his possession and the plaintiff had informed him that there was no counterclaim. He had conversed with the defendants respecting the note and they had admitted to him the making and delivery of the note and its non-payment.

All those facts were submitted to the judge who granted the attachment, and they were sufficient to show that the plaintiff was entitled to recover the amount due upon the note, and that there was no counterclaim against it.

The facts stated in the affidavit required the action of the judicial mind, were sufficient to satisfy tlie judge that tlie plaintiff was entitled to the writ, and if they did so satisfy him, as they did, the attachment will not be vacated.

There are many adjudicated cases in our reports upon this question, but they all depended upon their peculiar facts, and hut little aid can be derived from their examination.

Our conclusion is that the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concurred.

Order affirmed, with costs and disbursements.


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    The Independent Ice Association, Respondent, v. Wallace C. Andrews, Appellant, Impleaded with Others.

      Contract for the sale of ice — obligation to furnish ice — damages for its breach— statement of a cause of action.

    The complaint in an action brought to recover damages for the breach of a written agreement by which ice was to be furnished by the defendants and sold by the plaintiff at its wharves or “ ice bridges,” and which provided that if the defendants failed to “ cover ” the bridges with icc, the plaintiff was to cover them and receive fifty cents a ton for so doing, was demurred to on the ground that it failed to state a cause of action.

      Held, that taken as a whole the written instrument constituted a contract between the parties to enter upon the business of selling ice;
    That assuming the word “cover” to be used in the sense of “furnish” the defendants were under obligation to furnish ice at the bridges every day to continue the business in operation;
    That such being the contract, the failure of the defendants to furnish ice at tlie bridges constituted a breach, the damage for which was fixed at fifty cents a ton;
    And, hence, that the complaint stated a cause of action.
    Appeal by the defendant, Wallace C. Andrews, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of Kings county on the 12th day of January, 1893, upon a decision rendered at the Kings County Special Term, overruling the appellant’s demurrer' to the complaint.

      James W. Hawes, for the appellant.

      Potter c& Potter, for the respondent.
   Dykman, J.:

This is an appeal from an interlocutory judgment overruling a demurrer to the complaint, on the ground that it failed to state a cause of action. The complaint is based upon a written agreement, and alleges a breach thereof by the defendants to the damage of the plaintiff.

Although the agreement is somewhat obscure, we yet think it imposes mutual obligations upon the parties thereto.

It commences with a recitation that the plaintiff has a lease of two certain wharves occupied as ice bridges; it agrees that if the defendants shall furnish ice to be sold over such bridges until the 1st day of April, 1891, the plaintiff will furnish free wharfage, hoist, and do all business connected with the selling of such ice, and offered all the facilities in its power to increase the trade that may be obtainable over those docks.

Then it is provided that the defendants shall have the privilege of putting a bridge boss to represent their interest, and that the weighing should be done by their weighmaster or under his supervision, as he shall elect; that the cash shall be taken by the defendants’ cashier, and that all credits authorized by Mr. C. H. Eldridge representing the plaintiff, shall be paid for daily, by check of Eldridge.

The plaintiff was to receive ten per cent of the gross receipts, including credits, each day for ice sold over the bridges, and five dollars a day was to be deducted from the said ten per cent to pay for the services of two men, who are at each bridge to represent the interest of the defendants.

Then it was stated to be further understood that the defendants should have the privilege of canceling the agreement upon twenty days’ notice.

Further, it was provided that if either of the bridges became uncovered the plaintiff should be expected to cover said bridge from the bridge which might have ice, in such manner as they thought best, and for such transfer it should receive, in addition to the ten per cent, an additional allowance of fifty cents per ton, such transfer to be made in an economical manner.

The last clause was this: “ In case both of said bridges are out of ice at one time, they shall be covered from such of our bridges as may be provided and in manner aforesaid.”

It was alleged in the complaint that the plaintiff performed all the obligations assumed by it under the agreement, but that the defendants neglected and refused to furnish ice to be sold over the wharf and bridges, excepting prior to about the 10th day of September, 1890, and that after such date they wholly neglected to furnish ice, as required by the terms of the agreement.

That by reason of such neglect the plaintiff was compelled to and did cover the bridge mentioned from other bridges at which it had ice from time to time, to the amount of about 6,000 tons, and that the transfer was made in an economical manner.

That the defendants have paid nothing to the plaintiff, either for the business carried on or for furnishing ice to cover the bridges, and that the agreement has never been canceled.

Taken as a whole, the written instrument constituted a contract between the parties to enter upon tire business of selling ice.

The ice was to be furnished by the defendants,, and sold by the plaintiff at their wharves, and if they failed to furnish ice to cover the bridges the plaintiff was to cover them and receive fifty cents a ton for so doing. We assume that the word “cover” is used in the agreement in the sense of “ furnish,” and that the defendants were under obligation to furnish ice at the bridges every day to continue the business in operation.

Such being the contract, the failure of the defendants to furnish ice at the bridges constituted a breach, and the damage therefor is fixed at fifty cents a ton.

In this view the complaint states a cause of action, and the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Order overruling demurrer to complaint and judgment therein affirmed, with costs.


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    In the Matter of the Judicial Settlement of James L. Truslow and Gilbert Potter, as Executors, etc., of Gilbert Potter, Deceased. Gilbert Potter, Appellant; Josephine C. B. Canfield and Anna H. Beard, Respondents.

      Wills — 'meaning of the term “children.”

    The term “children” in a will is to be deemed to signify offspring of the first degree of the ancestor, unless it appears there were no persons in existence who would answer the description of children in the primary sense of the word at the time of the malting of the will, or that there might be none at the time or in the event contemplated by the testator, or where the testator has clearly shown by the use of the word, or in other portions of the will, that he employed the word “children” as synonymous with “descendants” or “issue,” or to designate another class of persons.
    A will gave the residuary estate to the executors in trust to divide it into three equal parts for the use of each of the three children of the testator, and to apply the income of each part to the use of the child for whom it was designated, during his or her natural life, and further provided as follows: “Upon the death of either of my children leaving issue, I authorize, empower and direct my executors and trustees to pay to such issue equally the capital of the share held by them in trust for the use of the parent so dying; but if either of my said children shall die and leave no issue surviving them, I direct my said executors to pay, divide and distribute the capital of the share held for the use of the one so dying to and among my surviving children equally.”

      Held, that the term “children” was used in its primary sense, and that, one of the testator’s three children having died leaving issue and another having died leaving no issue, the share of the child dying without issue passed to the sole surviving child of the testator and was not to be divided between that child and the surviving issue of the other deceased child, i. e., grandchildren of the testator.
    Appeal by Gilbert Potter, as one of the legatees and devisees, and a person interested in tlie estate of Gilbert Potter, deceased, from a decree of the Surrogate’s Court of Kings county, entered in the office of tlie surrogate on the 30th day of March, 1893.
    The decree appealed from directed, among other things, that the entire residuary estate of the said tpstator should be divided and distributed as follows: The personal estate in the hands of the executors should be divided into three parts, and one of such parts should be paid over to themselves as trustees, for the use of Gilbert Potter, tbe son of the testator, for and during his natui-al life upon the ti’usts in said will cx’eated. And one other part should be paid over to and distxubuted equally between Josephixie C. B. Canfield and Anna H. Beard, grandchildrexx of the said deceased, and the remaining one-third part should be divided ixxto two equal jxortions aixd one of such poi’tions paid over to Gilbert Potter, the son of the testator, and the other of such portions should be paid over to and dis-tribxxted equally between Josephine C. B. Caixfield and Anna II. Beai-d, grandchildreix of the said deceased.
    The decree also directed that the real property held by the execu-tox-s axxd trustees should be held by tlxexxx, aixd, when sold, the proceeds thereof should be distributed axnong the sanxe persoixs and iix the sanxe proportions as is directed with l’egard to the persoxxal property.

      Joseph A. Burr, Jr., for Gilbert Potter, appellant.

      Charles W. Truslow, for Josephine C. B. Canfield and Anna H. Beard, respondents.
   Dykman, J.:

This is an appeal from the decree of the sux’rogate of Kings county, construing the last will and testamexxt of Gilbei’t Potter, deceased, upon the judicial' settlement of the accounts of the executoi’S.

The testator died on the 18th of March, 1883, leaving a last will and testament dated Api’il 4, 1877, aixd a codicil thereto dated July 8, 1881. The codicil requires no consideration upon this appeal.

When the will was made the testator had three children, Mary Elizabeth Beax-d, Josephine Curtis and Gilbert Potter. Mi’s. Beai’d then had two cliildi’en, Josephine and Anna. Mrs. Curtis had no children and never had any. The testator left surviving him his widow, Phoebe Potter, and his three children and two grandchildren named above. He left a large estate consisting of both real and personal propei’ty.

Mary Elizabeth Beard, the daughter of the testator, died September 22, 1884, leaving her two children surviving.

Mrs. Josephine Curtis died February 4, 1891, leaving no children. Phoebe Potter, the wife, died June 17, 1891. Gilbert Potter still lives.

Tlie first and second clauses of tlie will give specific articles to tlie wife and son of the testator.

By the third clause of the will the testator gave to the executors the real property on Bedford avenue and Morton street- in the city of Brooklyn, in trust, to receive the rents and profits, and pay therefrom the expenses of the property, and pay the residue to the wife of the testator during her natural life, with a power of sale in the lifetime of the wife, with her consent.

In the event of a sale, the proceeds to be invested, and the income therefrom paid to the widow during her natural life, and at her decease, the fund was to fall into the residue, subject to the trust created in relation thereto.

The fourth clause of the will gave to the executors all the residue of the testator’s property, in trust, to sell and convey the same in their discretion, collect the proceeds, and pay the debts and funeral and testamentary expenses, and, upon the further trust, to invest out of the proceeds $120,000, and apply the income to the use of the wife during her natural life.

Also, upon the further trust, to divide the remainder of such residue into three equal parts, and set apart and designate one of such shares for the use of each of the three children of tlie testator, and apply the income arising from each of such parts to the use of the children for whom it was designated, during his or her natural life, with a proviso in relation to the entry into business of the son Gilbert, which is unimportant here. Upon the yet further trust, to divide the sum of $120,000 into three equal parts at the death of the wife, and set apart one of such parts to each of the three children, and apply the income arising from each of such parts to the use of the child for whom it was designated, during his or her natural life.

Upon the death of either of the children of the testator leaving issue, the executors were authorized and directed to pay to such issue equally the capital of the share held by them in trust for the use of the parent so dying. But if either of the children of the testator should die leaving no surviving issue, then the executors were directed to pay the capital of the share held for such parent so dying to the surviving children of the testator equally.

Thus far we have given a summary of the provisions of the will primarily applicable to the disposition of the estate of the testator.

Mrs. Beard is dead, but she left two children, and they took their mother’s share under the clause of the will which says: “ Upon the death of either of my children leaving issue, I authorize, empower and direct my executors and trustees to pay to such issue equally the capital of the share held by them in trust for the use of the parent so dying.”

It is equally plain that the one-third of the estate which was set apart for the use of the son Gilbert, must be retained by the executors for his use during his natural life.

The question, therefore, left for solution is, whether the executors are to pay over to the son, Gilbert, the share of the estate held by them for Mrs. Curtis, or whether that one-third is to be divided between him and Josephine C. B. Canfield and Anna H. Beard, the two children of Mrs. Beard, deceased.

The answer to that question is to be deduced by the following clause in the will: “ If either of my said children shall die, and leave no issue surviving them, I direct my said executors to pay, divide and distribute the capital of the shave held for the use of the one so dying to and among my surviving children, equally.”

If the word children ” is employed here in its primary sense, and is to be allowed its natural and ordinary significance, then the construction of this clause is simple, and its meaning and intention is plain. By the rule of construction in this State applicable here, the term “ children ” is to be deemed to signify offspring of the first degree of the ancestor, unless it appears there were no persons in existence who would answer the description of children in the primary sense of the word, at the time of making the will, or that there.might be none at the time or in the event contemplated by the testator, or where the testator has clearly shown by the use of the word or in other portions of the will that he employed the word “ children ” as synonymous with “ descendants ” or issue,” or to designate another class of persons. (Mowatt v. Carow, 7 Paige, 328; Palmer v. Horn, 84 N. Y. 516.)

We have here a plain and unambiguous sentence constructed in language which suggests no intention to use any words in an alternative sense or to allow the term “ children ” a substitutional import.

The scheme of the will is easy of comprehension. It gives to the executors the real property in Bedford and Morton streets in trust for the use of the wife during her natural life; upon her death it, or its proceeds, sinks into the residue of the estate.

Out of the residue $120,000 was to be invested for the use of the wife, and that even was to be augmented by the proceeds of the residence property if it was sold. The remainder was to. be divided into three parts or shares, one of which was to be set apart and designated for the use of each of the three children of the testator, and the income from each share was to be applied to the use of the child for whom it had been set apart, and who had been designated as its owner.

At the decease of the wife the $120,000, with the proceeds of the sale of the residence property, was to be divided into three equal pai’ts.

Thus was made a complete disposition of the property for the natural lives of all the beneficiaries under the will, and when the testator commenced the final disposition of his property, the first thing he did upon that subject was to give a direction to the executors, upon the death of either of his children leaving issue, to pay to such issue equally the capital of the share held by them in trust for the use of the parent so dying.

Then he made a provision that if either of his children died leaving no issue surviving, then his executors should divide and distribute the capital of the share so held for the use of the one so dying, among the surviving children equally.

Events have now so transpired that the situation is thus: Mrs. Beard left children surviving her who take the third of the estate. At the time of the death of Mrs. Curtis the fund set apart for the use of the wife had not sunk into the residue, and, therefore, we may as well inquire here what fund the executors held in trust for Mrs. Curtis at that time. The answer to that inquiry depends upon the signification to be attached to the phrase, “ The capital of the share held for the use of the one so dying,” which is not free from obscurity. It must be borne in mind that the entire estate was given to the executors in trust, with the direction to make two divisions of the same in the first instance. In the first place, the residence property, or its proceeds, and $120,000 was to be set apart for the use of the wife during her natural life, and the residue was to be divided into three equal parts for the use of the three children during their natural lives. Then, at a subsequent time, upon the death of the wife, the portion of the trust fund' which had been set apart for her use, was to be divided into three equal parts, one of which was to be set apart for the use of each of the three children, and the income arising from each was to be applied to the use of the children for whom it was designated.

The one-tliird share of the entire estate had been held for the ultimate use of each child, at all times subject to the prior trust for the benefit of the wife in a portion thereof.

If this construction be not adopted, then the testator made no disposition of the fund set apart for the use of the wife after her death. The portion of the estate set apart for the use of the wife is undisposed of, unless it is included in the part of the estate which the testator had in mind when he used the words, capital of the share held for the use of the one so dying.”

Our conclusion is, therefore, that those words refer to the one-third part of the entire estate. In a bi-oad sense, the executors at all times held all the estate for the use of the three children, one-third for each child. This construction prevents intestacy as to any portion of the fund, and that result should be accomplished whenever it can reasonably be done.

Returning again to the meaning of the word “ children,” as used by the testator, we have stated the exceptions to the general rule, that the word is to bfe understood in its primary sense of offspring in the first degree.

It is now to be remarked that this case falls within neither of those exceptions. There were persons in existence who would answer the description of children in the primary sense of the word when the will was made, and there could be and was such when all the events contemplated by the testator transpired. There is nothing in the use of the word by the testator in any other portion of the will to indicate his intention to use it in any but its primary sense. Throughout the entire will the testator has manifested the intention to give his surviving children the ultimate use of his property, and whenever he has indicated his grandchildren he has designated them as issue of his children.

In the last clause of the first paragraph of the will the testator provided that if two of Ms children die before him, the executors were to hold all the residue upon the same trust to apply the income to the use of such surviving children during life, and divide the principal among his or her lawful issue equally, thus manifesting an intention in a certain contingency to permit one child to receive all the income. But in no part of the will is there any indication of an intention to allow the issue of one child to take anything more than the share held for the use of their parent.

The will manifests a predominant intention of the testator to make liberal and equal provisions for his three children. The residue of the estate, after the property is set apart for the use of the wife, is divided into three parts, and a vested life estate is given to each child in one of the provisions. The same division is made of the $120,000 after the death of the widow. Then, if either of the children die without issue to take the parent’s share, the executors are to divide and pay the share for the use of the one so dying, among the surviving children equally. We must assume that this language is employed with deliberation. It is precise and plain, and we are asked to decide that it should be construed to include grandchildren with the children in such division and distribution. We find no justification for any such interpretation; it is not so written, and there is no ground for any such inference. In The Matter of Robinson (57 Hun, 395), we had this question presented to us under circumstances similar to this in this case, and we there reached the same conclusion and gave our reasons at length therefor.

Without more elaboration we think the decree should be reversed and the case remanded to the surrogate for disposition in accordance with this opinion, and the costs of the appeal to he paid out of the estate.

Barnard, P. J., and Pratt, «T., concurred.

Decree, so far as appealed from, reversed, with costs out of the estate and proceedings remanded • to surrogate to be disposed of according to opinion.


author: Dykman, J.: I) Y KM AN, J.:

text:
    The People of the State of New York ex rel. John Copcutt v. The Board of Health of the City of Yonkers.

      Function of a certiorari — composition of the hoard of health of the city of Yonkers— abatement of ponds detrimental to the public health.

    A certiorari assumes the existence of the inferior officers or tribunal whose judicial action is sought to be reviewed, and the fact of the official proceedings, hut draws in question the legality of such action. It brings up the record and is heard and decided upon the return, which is conclusive.
    The number of members composing the board of health of the city of Yonkers, as prescribed by section 1 of title 9 of the city charter (Chapter 184 of the Laws of 1881), which designates “the supervisor” as a member of the board, was not changed by chapter 54 of the Laws of 1893, which provides for the election of a supervisor from each of the five wards of the city, there having been, prior to the passage of that act, but one supervisor for the entire city.
    The action of the board of health of the city of Yonkers in enacting an ordinance by which certain dams and ponds of the relator were declared to be nuisances, detrimental to the public health, and were directed to be suppressed and abated, held, to be proper and valid.
    Certiorari issued in accordance with an order made at tbe Orange County Special Term of tbe Supreme Court on tbe 15th day of April, 1892, upon tbe petition of the relator, Jobn Oopcutt, and directed to the board of health of tbe city of Yonkers and the members thereof.

      P. E. Prime and Calvin Frost, for the relator.

      James H. Hunt, for the defendant.
   Dykman, J.:

This is a proceeding by certiorari to review the action of the board of health of the city of Yonkers in enacting the ordinance of April 5, 1893, by which certain dams and water ponds of the relator were declared to be nuisances, detrimental to the public health, and directed to be suppressed and abated.

The proceedings are challenged for irregularity. It is the claim of the relator that the board of health was not legally constituted at the time of the passage of the resolution of April, 1893.

In the case of The People ex rel. D. & H. C. Co. v. Parker (117 N. Y. 86), it was decided that the function of a certiorari is to review the judicial action of inferior officers and tribunals. It assumes their existence, and the fact of official proceedings, but draws in question the legality of such action. It brings up the record, and is beard and decided upon the return, which is taken as conclusive (People ex rel. Sims v. Fire Commissioners, 73 N. Y. 437), and that states that tbe resolution was adopted. Independent of this rule of law, however, the objection is baseless. The board of health of the city of Yonkers was created by the city charter. (Section 1 of title 9 of chapter 184 of the Laws of 1881.) The first part of that section is this: “The mayor, the supervisor, the president of the common council, the president of the board of water commissioners, the president of the board of police, and the health officer, shall constitute the board of health of the city” of Yonkers. That made six members of the board, and four of those six were present at the time of the action which is under review. The point made by the relator is based upon chapter 54 of the Laws of 1892. That act amended two sections of the charter of the city of Yonkers. Prior to the passage of the act of 1892, there had been four wards in that city. The act of 1892, by section 1, created a fifth ward. By section 2, that act provided for the election of two aldermen from each ward, including the new fifth ward. Section 3 provided for election districts, and section 4 provided, among other things, for the election of a supervisor from each of the five wards of the city, and the claim of the relator is, that each of those supervisors are members of the board of health of the city.

Prior to the passage of the act of 1892, there had been but one supervisor for the entire city, and that supervisor was a city officer, and not a ward officer.

The act of 1892, which is an amendment to the city charter, only amended section 1 of title 1, and section 1 of title 2, of the city charter.

It did not attempt to amend section 1 of title 9, which prescribes the constitution of the board of health, and the officers Avhich shall constitute the same.

Our conclusion, therefore, is that the organization and constitution of the board of health remains as it was under the charter act of 1881, composed of six members only.

Neither did the act of 1892 amend section 16 of title 3 of the charter, which is as follows : “ The supervisor shall be a member of the board of supervisors of the county of Westchester. He shall have the powers and discharge for the city the duties of supervisors of towns, except as otherwise provided in this act. He shall receive the compensation allowed by law in like manner as supervisors of towns in said county.” With this section 16 standing unamended, it is very clear, under section 1 of title 9 of the charter, that the board of health of the city of Yonkers was, at the time of the passage of the ordinance under review, composed of not more than six members.

Upon the merits, the case is plainly with the defendant. Although the proceedings under review related to the fifth and sixth water powers, yet it was agreed that the testimony taken in an action tried at the Special Term between these same parties, in Westchester county, should be considered in evidence in this proceeding, and that, in connection with the testimony returned by the board, shows that all the ponds are foul receptacles of filth and putrefaction.

They are foul and polluted to an extent which is shocking to the sense and dangerous to health and life. They have received the condemnation of the local and State boards of health, and the court has held them to be dangerous public nuisances.

The claim of the relator that the ponds have ceased to be offensive or dangerous since the large mills ceased to drain therein, in the summer of 1892, is unsupported by testimony or reason.

It is true some witnesses so testified in the trial at Special Term, but their testimony was very unsatisfactory and in some cases sus-* picious, and it was completely overthrown by the general weight of evidence. Moreover, it became quite plain that the alkalies and other chemicals, which were emptied into the ponds from the factories, tended rather to correct the impurities than to aggravate them.

The views expressed in the opinion delivered at the Special Term and printed in this record are applicable to this case, and may be considered as adopted here without repetition.

The proceedings of the board of health should be affirmed, with costs.

BARNARD, P„ J., concurred.

Proceedings of board of health of Yonkers affirmed, with costs.

The opinion referred to, delivered at the Westchester Special Term in the action of The Board of Health of the City of Yonkers v. John Copcutt, is as follows :

I) Y KM AN, J.:

The testimony in this action discloses the existence of an intolerable nuisance in the city of Yonkers.

In the heart of that city of 30,000 inhabitants, environed by dwellings in close proximity to its shore, the defendant in this action has for many years maintained a mill pond, whose bed is covered to the depth of seven feet with ford sediment impregnated with offscourings and putrid substances, covered at times with polluted water, and at times bare, giving off noxious, offensive and sickening odors, which endangered the lives and health of the people.

This action is brought to secure the abolition of the nuisance, and it will be a reproach to the law if its object cannot be accomplished. While it is true that the complaint contains counts upon by-laws for the recovery of penalties, yet the great and paramount object of the action is as already stated.

It may be observed, however, that by-laws of corporations and boards, made under authority of the Legislature, in conformity to the power delegated, have the same force as legislative enactments. (McDermott v. The Board of Police, 25 Barb. 635.)

Their history is briefly this : When the Danes acquired possession of a shire in England, the township was often called a by,” and as they enacted laws of their own they were called by-laws or town laws. In modern times the term is employed to denote the private laws of corporations or other boards or bodies.

As the powers of the board of health are derivative and limited, it is important to ascertain at the outset whether the plaintiff is acting within the scope of its authority.

Section 1 of title 9 of the charter of the city of Yonkers, which was passed hi May, 1881, provided for the organization of a board of health.

Section 2 authorizes the board, among other things, to suppress, abate and remove any public nuisance detrimental to the public health, to ordain a sanitary code and all ordinances necessary to carry into effect the powers of the board, and to enforce observance of its sanitary code and by-laws, by the imposition of penalties for their violation, and to maintain actions in any court of competent jurisdiction, in the name of the board of health of the city, to recover such penalties and to restrain by injunctions such violations, or both.

In addition to the powers expressly granted therein, the board is to have and exercise all the powers then and at any time thereafter conferred upon boards of health in cities by any general law.

By the provisions of subdivision 4 of section 3 of chapter 270 of the Laws of 1885, passed in May, 1885, which is an act for the preservation of the public health, the several boards of health then organized in any city, village or town in this State, except New York, Brooklyn and Buffalo, were clothed with power, and it was made their duty, to order the suppression and removal of nuisances and conditions detrimental to life and health, found to exist within the limits of their jurisdiction.

Subdivision 9 of section 3 is as follows: “ To impose penalties for the violation of, or non-compliance with, their orders and regulations, and to maintain actions in any court of competent jurisdiction, to collect such penalties not exceeding one hundred dollars in any one case, or to restrain by injunction such violations, or otherwise to enforce such orders and regulations.”

These provisions, therefore, supplement the city charter act, and with it confer the most ample power in all cases where necessity requires action and the subject falls within the jurisdiction of the board of health.

The power to maintain actions for penalties, and to restrain by injunction the violation of ordinances, is sufficiently comprehensive to justify this action, and the same facts which establish a violation of the by-laws and the sanitary code will justify a permanent injunction.

It has already been said that the evidence is sufficient to establish the existence of an insufferable nuisance upon the land of the defendant, which is maintained by him. It is equally plain that the nuisance is detrimental to the public health, and requires heroic treatment.

Unlike the ease of a business which is a nuisance, and which may be suppressed by the discontinuance of the cause without the destruction of the property, the nuisance in this case inheres in the property.

The pond itself is the nuisance, and the abolition of the one is essential to the abatement of the other. The evil is radical and cannot be eradicated without the discontinuance of the pond.

Actions of this kind, in which similar relief is administered, are by no means infrequent, and are based upon the maxim which requires all persons to so use their own property so as not to injure others.

The maxim embodies both a legal and ethical principle of universal applicability. It lies at the foundation of the police power of the State, which is exerted to prohibit any use of property in a densely populated community which is a nuisance detrimental to public health. It is sufficient to justify the destruction as well as the regulation of the use of property dangerous to health and life.

All property is held upon the condition that its use shall not be detrimental to the public. The private interests and individual rights of the defendant, like those of all other persons, are not absolute, and must yield to the public welfare. Actions of this character, in favor of private individuals who have sustained peculiar injuries from nuisances, are not infrequent in this State, and the courts have gone far in the administration of complete relief.

Adams v. Popham (76 N. Y. 410), was an action to restrain a nuisance, and was quite similar to this, except that the case was less aggravating.

The facts were these: The defendant had constructed a dam across a small stream of water running through his own land, and then created a pond of water near the dwelling house of the plaintiff. As the water collected it became stagnant, the bed of the pond was covered with sediment, and from the sides thereof, as they became bare and exposed to the sun, there arose noxious and poisonous effluvia and malaria, which tainted and poisoned the atmosphere. Such exhalation reached the dwelling house of the plaintiff, rendering it dangerous to life and health.

The family of the plaintiff was made sick thereby, and she sustained special injury from the nuisance. The trial court rendered a judgment for the plaintiff, perpetually enjoining the defendant from maintaining and continuing the dam and pond.

That the defendant be enjoined to remove all obstructions to the running of the water in the stream, so that the water might run in the same manner it did before any dam was made thereon ; and further, that the defendant be restrained from maintaining the poud by means of a dam or otherwise, or doing any act whereby the stream should be prevented from flowing as it was wont to do.

That judgment was affirmed both by the General Term and the Court of Appeals, and in the latter court it was said: “A person may enjoy his own property in any lawful manner, but may not do so to the injury of others.” Such are the principles and such the authority upon which my decision is based. Other authorities there are, but their citation is deemed unnecessary.

They are all in unison. Slaughter houses, fat boileries, and all similar nuisances have been driven back before the advance of population, and the courts have been ever ready to compel tliemi to recede. The individual consequences have frequently been severe.

They will be so here, and that knowledge has induced an unusually careful consideration of this case. Yet it presents a great evil for which the law has a remedy that must be administered. A nuisance detrimental to life and health must not be permitted in a great city.

Judgment must be rendered in favor of the plaintiff for the relief demanded in the complaint. That will abolish one pond; but there will be no complete relief until the entire chain of ponds is abolished, and the stream permitted to flow in its natural course, without a place for the secretion and accumulation of deleterious or noxious matter.


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    Elizabeth Greenleaf and Another, Appellants, v. The Brooklyn, Flatbush and Coney Island Railway Company and Another, Respondents.

      Ejectment — ancient judgment in partition, and deeds — evidence as to possession — - land incapable of occupation.

    The Court of Appeals having held In an action of ejectment that, while a judgment in partition and a deed thereunder, relied upon by the plaintiff, were by-reason of their age admissible in evidence without proof of contemporaneous, possession, yet they were not sufficient evidence of the title of one claiming under them through mesne conveyances to enable her to recover in ejectment, without showing some subsequent or modem possession by the parties who had received later deeds going to make up the plaintiff’s claim of title, the plaintiff, upon a new trial, introduced evidence to show that the land in question, being a barren sand lot upon the shore of the ocean, -without access to the water by reason of the surf, was so situated as to render use or occupation thereof impossible, coupled with a concession that, apart from the possession of the defendant, the premises had always been vacant and actually unoccupied, claiming that this evidence, supplemented by the principle of law which requires courts to consider the true owner as constructively in possession of the lands to which he holds title, unless they are in actual hostile occupation by another under a claim of title, authorized a judgment in her favor.

      Qucere, whether such evidence entitled the plaintiff to recover.
    Appeal by tbe plaintiffs, Elizabeth Greenleaf and another, from a judgment of the Supreme Court dismissing the complaint upon the merits, entered in the office of the clerk of Kings county on the 23d day of March, 1893, upon a decision of the court, rendered after a trial by the court at the Kings County Special Term, a trial by jury having been waived.
    The action was in ejectment, to recover the possession of premises described as “lying and being on Coney Island, in the town of Gravesend, county of Kings and State of New York, and being known and designated as lot'No. 23 on the commissioners’ map of part of the real estate of Johannes Emmons, deceased, situate in the towns of Gravesend and Flatlands in the county of Kings, recorded in the office of the register of Kings county as map No. 113, together with all the accretions to the said lot belonging or in anywise- appertaining.”
    The land in suit is sixty feet in width and several hundred feet in depth, lying in what are known as the grounds of the Brighton Beacb Hotel on Coney Island, and including a part of tbe land on wbicb tbat hotel stands.
    The action was brought originally in the United States Circuit Court by Charles H. Greenleaf and James S. Butler, who were then residents of the. State of New Hampshire, in the year 1882, and was by stipulation removed to the Supreme Court of the State of New York, to be tried without a jury.
    Thereafter an inquest was taken by the plaintiffs on the nonappearance of the defendants, who thereupon moved to set aside the judgment entered upon the inquest, because there was not •sufficient evidence of either title or seizin in the plaintiffs to warrant even a judgment by default.
    The defendants appealed from an order denying this motion, and the General Term affirmed the order. (See 37 Hun, 435.) The Court of Appeals dismissed an appeal from this decision. (102 N. Y. 96.)
    The defendants then took their second trial under the statute, which resulted in a nonsuit, on an appeal from which by the plaintiffs, the General Term sent the case back for a new trial. (3 N. Y. Supp. 222.)
    In the meantime, the plaintiff Greenleaf had died, and the action was continued in the name of his executrix.
    The third trial, in which evidence for the defense was given, resulted in a judgment favoring the plaintiffs, which was affirmed by the General Term (8 N. Y. Supp. 30), but reversed by the Court of Appeals and a new trial granted, with an opinion reported in 132 N. Y. 408. A new trial was thereupon had, which resulted in the judgment now appealed from.

      Frederick A. Wa/rd and Morna/y Willicums, for the appellants.

      William G. J)e Witt, for the respondents.
   Dykman, J.:

The parties in this action differ in respect to the decision of the Court of Appeals when the case was there last.

According to the understanding of the defendants the Court of Appeals overthrew the proposition that the judgment in partition imported seizin of the land, while the plaintiffs contend that the opinion of the Court of Appeals sustained the decision of the General Term respecting the legal effect, bf tbat judgment and the deeds executed in pursuance thereof ; and held that as to the judgment and deeds, in view of their age, it was unnecessary to show possession.

The opinion of the Court of Appeals states that the authenticity of the judgment was established by the record and was admissible in evidence, and that it was usually impossible to prove an ancient possession of property by living witnesses, and when a deed forming part of a chain of title is so ancient that there can be no person living who can testify to acts of ownership by the grantor or grantee,, it may be received in evidence without such proof.

Then it contains this language, while under this rule- the judgment in partition and the subsequent deed to John Emmons were admissible in evidence without proof of contemporaneous possession of the land by the parties to the judgment and deed, yet they are. not sufficient evidence of title of one who claims under them through mesne conveyances to recover in ejectment without showing some, subsequent or modern possession by the parties who have received later deeds which go to make up the plaintiff’s claim of title.”

Understanding this last clause to specify a requirement which might he supplied upon another trial, the plaintiffs, upon the trial,, introduced testimony to show that the land in question was so situated as to render any use or occupation thereof impossible.

It was a sand lot lying upon the shore of the ocean and destitute of anything useful. It could not be utilized for access to the water because the surf beat upon the beach so as to prevent the launching of boats, the sand was not salable or useful there, and there was no grass or timber to cut.

There was a concession also that apart from the possession of the defendants the premises have always been vacant and actually unoccupied.

Therefore, the plaintiffs now contend that with the new testimony,, supplemented by the principle of law which requires courts to consider the true owner as constructively in possession of the lands to. which he holds title, unless they are in actual hostile occupation of' another under a claim of title (Bliss v. Johnson, 94 N. Y. 235), they have made a case which entitles them to a judgment in their favor within the decision of the Court of Appeals.

These views are in accordance with the decision of this General Term, But we are not entirely clear that they rightly interpret the opinion of the Court of Appeals, and as the case must go there again, we think it 'wise to let it go directly upon a judgment of affirmance.

¥e have said nothing upon the question of location, because we think it unnecessary to do so, but we are prepared to adhere to our former decision that the premises are properly located. In fact, the •concession upon the trial respecting the possession, substantially admits that the defendant is in possession of the premises, and if they are so then they are located.

However, as we have said, we think the judgment should be affirmed, with costs.

BaeNaed, P. J., and Pratt, J., concurred in result.

Judgment affirmed, with costs.


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    The Trustees of the Freeholders and Commonalty of the Town of East Hampton, Plaintiff, v. Jeremiah H. Vail and Another, Defendants.

      Territory of the town of Bast Hanvpton — colonial grants — Bort Pond bay.

    The land under the water of Tort Pond hay on the northerly side of Long Island was not included in and did not pass hy the use of the words “together with all havens, harbors, creeks,” in the Nicholls patent of 1666, confirmed hy the Dongan grant of 1686, to the freeholders and inhabitants of the town of East Hampton.
    MotioN for a new trial on exceptions taken by the plaintiff on a trial at the Suffolk Circuit, and ordered, on the direction of a verdict for the defendants on the 25th day of October, 1892, to be heard in the first instance at the General Term.

      Wilmiot M. Smith and Charles R. Street, for the plaintiff.

      Thomas TToung and T. M. Grijjmg, for the defendants.
   Dykman, J.:

This is an action of ejectment for the recovery of land under the water of Fort Pond bay on the northerly side of Long Island.

Tlie plaintiffs claim title under a patent from Governor-General Richard Nicholls to John Mulford'and others, for and on behalf of themselves and their associates, the freeholders and inhabitants of the town of East Hampton in 1666, and a confirmatory grant from Governor-General Thomas Dongan in 1686 to Captain Thomas James and others, freeholders and inhabitants of East Hampton.

The primary and paramount question is whether the premises were included in the patents, and that depends upon the language of the instruments in describing and bounding the same. The language is this: All that tract of land which already hath beene or, that hereafter shall bee purchased for and on the behalf of the- said towne, whether from the 'natives (Indyan proprietors) or others within bounds and limitts hereafter sett forth and exprest, vizt.: That is to say their West bounds begining from the East limitts of the bounds of Soutpton (as they are now laid out and stak’t according to agreement and consent) so to stretch East to a cer-taine Pond commonly callee the Fort Pond, which lyes within the old bounds of the lands belonging to the Muntauke Indyans, and from thence to go on still East to the utmost extent of the Island; on the North they are bounded by the Bay and on the South by the sea or maine ocean. All which said tract of land within the bounds and limitts before mentioned, and all or any plantation thereupon, from hence forth are to belong and. appertaine to the said towne, and bee within the jurisdiction thereof, together with all havens, harbors, creekes, quarryes, woodlands, meadowes, pastures, marshes, waters, lakes, rivers, ffishing, hawking, hunting, ffowling, and all other profits, commodityes, emoluments, and hereditaments, to the said tract of land and pr’misses within the limitts and bounds aforementioned, described, belonging or in any wise appertaining.”

Then follows the usual habendum clause.

The description of the premises in the confirmatory patent from Governor Dongan is substantially the same.

Fort Pond bay is not within the limits and bounds named in either patent, but the plaintiffs insist that it was included therein and conveyed thereby by the words “ together with all havens, harbors, creeks,” etc., but it must be remembered that those words are followed by the words “ within the limitts and bounds aforementioned.”

That clause is restrictive of all the subjects named, and, therefore, nothing is included in the patents unless it be within the limits and bounds specified therein.

The language is peculiar and the description is somewhat uncertain. The west bounds of the premises begin at the east limits of the town of Southampton. Then the language describes a single line stretching east to Fort pond, and from there still east to the utmost extent of the island, and there the line terminates. That line, therefore, includes nothing, but it is immediately followed by these words, “ on the North they are bounded by the Bay and on the South by the sea or maine ocean.” The premises described in the patent, therefore, are bounded on the west by Southampton, on the north by the bay and on the south by the Atlantic ocean.

What body of water is intended to be designated by the word “ bay ” as the northern boundary of the premises is not very apparent. It seems to apply only to the sound, as that is the body of water on the north, and the only water that extends along the whole of the north side. The word can scarcely apply to Fort Pond bay, for that only extends for a short distance.

Whatever it may designate, however, it carries the grant to the water only, and the water is the north boundary. In respect to Fort Pond bay, its south shore is the north bounds of the premises.

In respect to the contention of the plaintiffs, that nothing else can pass under the word haven,” the answer is that it is not essen-. tial that anything should so pass. There may have been no quarries, and if none then nothing j>assed by virtue of that word.

Much testimony was offered upon the trial to show that Fort Pond bay was a good harbor, but it is not so secured by the circum-jacent land as to be entitled to that designation. Like every lee shore, it is a secure and quiet place for vessels when the wind blows from the land, but when the wind is from the sound there is no protection.

Upon careful consideration, we find no errors, and our conclusion is that the verdict was properly directed for the defendants, and the exceptions should be overruled and judgment entered upon the verdict for the defendants, with costs.

Barnard, P. J., and Pratt, J., concurred.

Exceptions overruled and judgment for defendants on verdict.