author: Kennedy, J.:

text:
    LOUISE BARNARD and GERTRUDE E. BARNARD, Respondents, v. MARY BARNARD CROSSMAN and Others, Infants, by WALTER N. KERNAN, Guardian ad litem, Appellants, Impleaded with Others.

      Will — gift to a devisee “ to hold, for the benefit of his children if he so elects.”

    A testator by his will provided as follows: “ Third. I do give, devise and bequeath to my brother, Henry Barnard, my one-fourth interest in the store No. 85 Genesee street, Utica, and running through to Catharine street' for him to hold for the benefit of his children if he so elects.”

      Held, that a trust estate was created for the benefit of the children of Henry Barnard.
    That the words “if he so elects” related alone to the acceptance of the office of trustee, and not to the subject-matter of the devise.
    That this construction was to be preferred for the reason that Henry Barnard, being a witness to the will, would be incompetent to take the devise if it should be held to have been made to him individually, and not as trustee.
    Appeal by certain of the defendants from an interlocutory judgment, made at a Special Term held in the county of Oneida on January 9, 1889, and entered, in an action brought for the partition of certain real property, on the 11th day of March, 1889, in the office of the clerk of the county of Oneida.

      William Fernán, for the appellants.
    Miller, Finche <& Brandegee, for the respondents.
   Kennedy, J.:

The controversy in this case arises as to the construction to be given the following clause in the will of Harvey Barnard, Jr.: “ Third. I do give, devise and bequeath to my brother, Henry Barnard, my one-fourth interest in the store No. 85 Genesee street, Htica, and running through to Catherine street, for him to hold for the benefit of his children if he so elects.”

Henry Barnard, the devisee, signed the will as a witness and was a necessary one to prove it, and on the probate thereof was sworn and examined as such. If, by the above bequest, an absolute estate in the lands devised was given to the said Henry, then, by the provisions of the Revised Statutes ([8th ed.], 2549, § 50), the same is void. On the other hand, if, by the same, a trust estate was created for the children of said Henry, and he took the same in trust for them, it is valid, notwithstanding he was a witness to and one necessary to prove the will. The language adopted by the testator is at least awkward and leaves the question of his actual intent resting upon the words used alone somewhat in doubt. If, however, from it a conclusion can be safely reached as to what such intent was, it is the duty of' the court to adjudge the same and see that it is carried out. • If, upon an examination of the instrument, taken as a whole, the intention of the testator appears clear, but its plain and definite purposes are endangered by inapt and inaccurate modes of expression, the court may, and it is its duty, to subordinate the language to the intention. It may reject words of limitation, supply or transpose them, to get at the correct meaning. (Phillips et al., Exrs., v. Davies, 92 N. Y., 199.)

It seems to us that any construction which may be given the clause in question must be somewhat strained, because of the obscurity' thrown around the testator’s intent by the language selected. He had one of two objects in view, either to vest an absolute estate in Henry or to create a trust estate in and for the. benefit of Henry’s children, there being three of these at the time the will was made, who survived the testator and are now living. A fourth was born after that, who was living at the time of the testator’s death, dying, however, soon after!

It was found by the learned court, at Special Term, that the first of these purposes existed. The contention on the part of the appellants, the children of said Henry Barnard, on the other hand, is that the testator’s intent was to create a trust estate for them, and that the father yras simply nominated a trustee, subject to his acceptance of the office. A solution of this question will be found only in the conclusion whether the language, “if he -shall so elect,” properly relates to the subject-matter of the devise, or whether it is to be construed as referring alone to the office of the trustee. A familiar rule of construction is, that when the language of a written instrument is subject to two interpretations, the one sustaining and the other tending to defeat its provisions, that that shall be adopted which shall validate the writing.

If the construction given by the court below is correct, the effect is to entirely thwart the purpose of the testator and to deprive both Henry and his children of the property, and as to it, to adjuge that he died intestate. In construing an instrument of this nature, partial intestacy, if possible, should be avoided. (Vernon v. Vernon, 53 N. Y., 351.) It may be fairly assumed that both the testator and Henry knew the law governing the question, and that the former, if he did not understand that he was making a valid bequest and creating an estate alone for the benefit of Henry’s children, would not have requested the testator to become a subscribing witness to his will; nor will it be assumed, on the other hand, that Henry would have intentionally defeated the purpose of the testator in doing this. It may be further suggested, in this connection, if the trial court was correct i-n finding that the devise to Henry was absolute, subject to his election to convert it into a trust estate for his children, that at the time the will was executed by becoming a subscribing witness he thereby declared his election to treat the estate as a trust estate for the beneficiaries named. If it be held that the words referred to, relate to the estate, then they become superfluous, since without them Henry could of his own volition, at any time, have converted, it into a trust estate for his children. The language adopted does not amount even to a request by the testator that Henry should so treat the subject of the devise. On the other hand, if it is held that the words “ if he so elect ” refer to the office of trustee, we shall find meaning in the expression, and by so doing serve to accomplish one of the apparent purposes the testator had in view, and thus avoid the embarrassment and injustice which would follow a finding that as to this part of the estate the decedent died intestate. Nor can we see that this construction is forced or unnatural; that the testator meant to dispose of this part of his estate for the benefit of Henry or his children is apparent. Each was a proper object of his bounty, and if we hold that the estate was in trust, we shall carry out one design he had in view. On the other hand, a different holding will wholly serve to defeat his purpose. Without the added words “if he shall so elect,” a trust estate was created for the children of Henry, he being appointed trustee of the same. Suppose the sentence is made to read, as it may be without doing violence to the expression “ if he elects to act as trustee,” and he refused the office, such refusal would not defeat the purpose of the testator or destroy the trust. The law will not allow a trust to fail for want of a trustee. (Perry on Trusts [3d ed.], § 38, and cases cited.) We are, therefore, disposed to hold that it was the intent and purpose of the testator to create, and that he did create, a trust estate for the children of Henry; that he nominated him as trustee, making it optional with him whether he accepted the office or not; but in case of his refusal to do so, leaving it with the court to provide a proper trustee, and this construction, while it tends to carry out the purpose of the testator and prevents an absolute failure of the devise, at the same time serves to do justice to the contemplated beneficiaries.

We have examined carefully the many authorities cited by the learned counsel for the plaintiff, and find in them general rules for construing wills, but nothing tending especially to elucidate the question on hand, and are, therefore, left to give this clause in the will such interpretation as to us seems best calculated to meet the intent of the testator and to accomplish the purpose which it appears from the language used he had in view. It follows that a new trial should be granted.

New tidal granted, with costs to abide the event.

Hardin, P. J., and Martin, J., concurred.

Judgment reversed and a new trial ordered, with costs of the appeal to abide the event.


source: Caselaw Access Project

author: Martin, P. J.: Churchill, J.

license: Public Domain

text:
    J. MORRIS CHILDS and CHARLES H. CHILDS, Respondents, v. WILLIS H. TUTTLE, Appellant, Impleaded with Others.

      Patents — jurisdiction of State courts to enjoin the bringing of suits in the United States courts relating to their infringement.

    .A State court Fas jurisdiction to decide questions as to the title to letters-patenfe but has no authority to restrain parties from prosecuting actions, alleged to he malicious, in the Federal courts against either the purchasers, sellers or users of an article claimed to he an infringement of a patent. (Churchill, J., dissenting.)

      Phnaclc v. Kame (34 Federal Rep., 46) distinguished.
    Appeal by the .defendant Willis H. Tuttle from an order denying a motion made by the defendants to vacate an injunction order .granted in the above-entitled action on the 20th day of February, 1889, at a Special Term held in the county of Jefferson, which order was entered in the office of the clerk of Oneida county cm. the 26th day of March, 1889.
    The injunction order in question was as follows:
    “ It appearing to my satisfaction by the verified complaint in this action and the affidavit of J. Morris Ciiilds, Dewane B. Smith and others, and by the facts set forth in the complaint, and the moving ■affidavits accompanying the complaint, that a cause of action exists in favor of the plaintiffs against the defendants for the causes-set forth in the complaint and supported by the affidavits, that the defendants are about to commence a number of unnecessary suits in the Circuit Court of the United States against the purchasers and users of harrows manufactured by the plaintiffs, with a view and for the purpose of harassing, annoying and preventing purchasers and users from buying the plaintiffs’ harrows, and to 'break down and destroy their trade without justifiable reason therefor, and that the plaintiffs having offered to reinstate the case dismissed in the Circuit Court, and go to a hearing upon the merits, wherein ■■all the questions in controversy can be settled by a court having jurisdiction of the subject-matter, and they having neglected and and refused to avail themselves of said offer, which is still open for acceptance, and a case involving the validity and construction oí the Need patent is now pending in the Supreme Court, wherein a decision will be reached by January next, and that the defendants are threatening to bring a multiplicity of suits against purchasers and users of the plaintiffs’ harrows, to carry into effect an illegal combination with a view of ruining the plaintiffs’ trade and business,
    Now, therefore, the defendants, and each and every of them, their agents, attorneys and employees, are, and each of them is, hereby enjoined and restrained, under the penalty prescribed by law, from commencing, instituting, bringing or prosecuting suit or suits for an alleged infringement of the Need patent against any of the sellers, purchasers or users of harrows manufactured and sold by these plaintiffs, and for’ any that they may hereafter manufacture and sell until the final hearing and decision of the case now on appeal to the Supreme Court, wherein the Need patent is involved, or until the final decision of a case brought by the owners of said patent against these plaintiffs in a court having jurisdiction of the subject-matter of the alleged infringement, until the further order of this court.”

      J. Henry Metcalf \ for the appellant.

      Sisley & Perry, for the respondents.
   Martin, P. J.:

The controversy between the parties to this action arises out of the claim that the plaintiffs are manufacturing and selling a spring tooth harrow which infringes upon a patent-right owned by the defendants. The relief sought by this action was to restrain the defendants from bringing any suit or suits against the purchasers or users of the plaintiffs’ harrow for an alleged infringement of such patent until a certain suit between a jiortion of the defendants and one Shorden should be determined by the United States Supreme Court, where said action was then pending on appeal.

A preliminary injunction was granted enjoining the defendants, their agents, attorneys and employees, from instituting or prosecuting “ any suit or suits for an alleged infringement of such patent against any of the sellers, purchasers or users of harrows manufactured and sold by the plaintiffs, and that they may hereafter manufacture and sell, until the final hearing and decision of the case now on appeal to the Supreme Court, wherein the Need patent is involved, or until the final decision of a case brought by . the owners of said patent against these plaintiffs in a court having jurisdiction of the subject-matter of the alleged infringement, until the further order of this court.”

A motion to vacate such injunction was subsequently made and denied. The injunction was, however, modified by striking out the words “ decision of the case now on appeal to the Supreme Court, wherein the Need patent is involved,” and inserting the words “ during the pendency of this action,” in lieu of the words thus stricken out. The injunction, as modified, restrained the instituting or prosecution by the defendants of any suit against the sellers, purchasers or users of plaintiffs’ harrows for infringement of the defendants’ patent during the pendency of this action, or until the final decision of an action brought by the defendants against the-plaintiffs in the United States Court. From the order denying the defendants’ motion to vacate such injunction this appeal was-taken.

The important question presented by this appeal is, was this court authorized, or had it the power to restrain the defendants from prosecuting an action in the Federal courts to secure their alleged rights under a patent issued by the United States. The Federal courts have exclusive jurisdiction of actions for infringement of patent-rights. (Dudley v. Mayhew, 3 N. Y. 9; Hovey et al. v. Rubber Tip Pencil Co., 57 id. 119; De Witt v. Elmira Nobles Mfg. Co., 66 id. 459; Continental Store Service Co. v. Clark, et al., 100 id., 365, 370.) “An action for an infringement lies in favor of the owner of a patent against any one who claims to manufacture, use or enjoy the same in opposition to his rights.” (Continental Store Service Co. v. Clark, et al., 100 N. Y., 365, 371.) A State court has no authority to restrain the proceedings of a Federal court. (McKim v. Voorhies, 7 Cranch [U. S.], 279; Riggs v. Johnson Co., 6 Wall. [U. S.], 195; Ableman v. Booth, 21 How. [U. S.], 516; Duncan v. Darst, 1 id., 306; Amy v. Supervisors, 11 Wall. [U. S.], 136.) While a State court has jurisdiction to decide questions as to the title to letters-patent or of. an action on contract, although such action involves the validity of a patent, it has no authority to restrain a party from using the patent pendente lite, or in any way to pass-upon a question as to an infringement of the patent; as to that the Federal courts have exclusive jurisdiction. (Continental Store Service Co. v. Clark, et al., supra; Hat Sweat Mfg. Co. v. Reinoehl, 102 N. Y., 167.) Nor have the State courts any jurisdiction to entertain a suit to restrain the infringement of a patent. (Dudley v. Mayhew, 3 N. Y., 9; Gibson v. Woodworth, 8 Paige, 132.)

I think the doctrine of the authorities cited quite decisive of the question under consideration, and that it must be held that this court had no authority to restrain the defendants from prosecuting actions in the Federal courts against either the makers, sellers or users of a harrow which was an infringement upon their patent; and as this ■court could in no way pass upon that question, it could not enjoin the defendants from prosecuting their actions in a court having exclusive jurisdiction of the subject-matter thereof. If this court has power to restrain the defendants from bringing an action in the Federal courts against one class of infringers, it can restrain them from bringing an action against any person who infringes upon their rights; if so, then it may enjoin every owner of a patent from maintaining an action for the infringement of his right, and hence a State court would possess the power to nullify the patent laws of the United States and render the patents granted by it valueless. I think no such power is vested in the State courts. The exclusive jurisdiction of that subject is vested in the Federal courts. The question here is not one of comity, nor one of concurrent jurisdiction, it is a question of limitation and authority. No case has been cited which sustains a doctrine which will uphold the injunction granted in this case, and I have been unable to find any.

The case of Emack v. Kane (34 Fed. Rep., 46) does not sustain the doctrine contended for, and is not in conflict with the foregoing conclusion. In the Emack case the action was in the Federal court, and was brought, not to restrain the defendants from asserting their claimed rights under their patent by bringing actions for infringement thereof, but to restrain them from maliciously injuring plaintiffs business by issuing circulars threatening the complainant’s customers with law suits for all infringements. This case falls far short of establishing the doctrine that a State court may restrain a party from commencing an action in the Federal court for an alleged infringement of a patent when the latter court has exclusive jurisdiction of such an action. The effect of the injunction in this case is to restrain the defendants from commencing any actions against the sellers, purchasers or users of any harrow that has been, or shall be, manufactured by the plaintiffs, even though it be identical in all respects with the harrows manufactured under theEeed patent. If the plaintiffs’ harrow is an infringement upon the defendants’ patent, I can perceive no equity in restraining them from asserting their rights against any person or persons who are liable for such infringement, and, as was said by Blatchford in the-. Asbestos Felting Company Case (13 Blatchf., 454): “I am not. aware of any principle which would authorize the court in a suit of this character to restrain a defendant from bringing suits on his patent before that patent is adjudged to be invalid. The granting-of the patent to the defendants confers the right to bring suits, thereon for its infringement.”

I am of the opinion that the court had no authority to grant the preliminary injunction in this'case; that the Special Term should have vacated it, and' erred in denying the defendants’ motion for-that purpose. These considerations lead me to the conclusion that the order denying the said motion should be reversed, with ten dollars costs, and an order vacating said injunction should be. granted, with ten dollars costs and disbursements on this appeal.

Merwin, J., concurred.

Churchill, J.

(dissenting) :

The respondents are manufacturers oí spring-tooth harrows air Utica, N. Y. The defendants are fifteen in number; Willis II. Tuttle and five others, composing the firm of G. B. Olin & Co., of Canandaigua, N. Y.; A. W. Stevens and another, composing the firm of A. W. Stevens & Son, of Auburn, N. Y.; and Dewitt C. Need and two others, composing the firm of D. C. & H. O. Eeed & Go., Nehemiah Chase and two others, composing the firm of Chase, Taylor & Co., and William L. Lawrence, all of Kalamazoo, Mich.

These defendants are all engaged, at their several places of residence, in the manufacture of spring-tooth harrows under the patent number 201946, known as the Heed patent, which patent is owned •by the firm of G. B. Olin & Co. for the New England States, New York, New Jersey, Pennsylvania, Delaware, Maryland, East and West Yirginia, and by the firm of D. O. & H. O'. Reed & Co. for the remainder of the territory of the United States.

The defendants claim that the harrow manufactured by the respondents is an infringement of this patent. This claim is denied by the respondents. In February, 1887, the firm of G-. B. Olin & Co., after considerable friction with the respondents upon that question, commenced an action against the respondents in the Circuit Court of the United States for the Northern District of New York, based upon this claim of infringement. Issue was promptly joined, and in March, 1887, and again in May, 1887, the plaintiffs in that • suit moved the court for an injunction to restrain the defendants .from marketing their harrows.

These motions were heard on voluminous papers and exhibits, presenting from both sides this question of infringement, and were denied. Testimony was afterwards taken on both sides to á large amount, and at a great expense, and in June, 1888, this evidence had been printed and the case was ■ pressed for a hearing uj>on the merits by the defendants in that action, but postponement was asked for by the plaintiffs. The hearing was postponed to - September, and again on the motion of the plaintiffs, and against the opposition of the defendants, to October, and was finally set down peremptorily for hearing November 20, 1888. At that date the defendants were ready, but the plaintiffs asked further postponement, which was refused by the court and the complaint was thereupon dismissed on the motion of the solicitors of the plaintiffs in that action.

The respondents in the present action allege, in their complaint, that the defendants in this action, soon after the dismissal of the complaint in the action above referred to, entered into a combination to injure, harass and annoy the respondents and to destroy their business as manufacturers of spring-tooth harrows; and that, as a means to be employed for this purpose, numerous suits were to be brought in the Circuit Courts of the United States against the purchasers of respondents’ harrows, and that such suits were to be brought, not in the belief that the harrows manufactured by the respondents were an infringement upon the Reed patent, but for the purpose of intimidating respondents’ customers and thereby injuring and destroying their business. The complaint in this action, asks for perpetual and preliminary injunctions to restrain the defendants from commencing actions for the purpose above stated. Upon the verified complaint and accompanying affidavits a preliminary injunction was granted by a justice of this court. Tbe Special Term, upon an order to show cause granted upon affidavits presented by tbe appellant, and upon the original papers and additional affidavits presented by the respondents, refused to vacate the injunction. From the order refusing to vacate, this appeal was taken to the General Term.

To restrain by in junction the bringing of suits or other acts calculated to intimidate customers or destroy the business of a rival is an old and well-established right of courts of equity, and may be exercised where the party to be restrained is within the jurisdiction of the court, although the effect of the injunction may be to restrain the bringing of actions in the courts of other States or countries. (Story’s Eq. Juris., §§ 875, 899, 900; "Willard’s Eq. Juris. [Potter’s ed.], 348.)

This is conceded by the learned counsel for the appeJant in his printed brief. Story, however, in stating the doctrine, makes this exception: “ There is one exception to this doctrine which has been long recognized in America, and that is, that the State courts cannot enjoin proceedings in the courts of the United States ; nor the latter in the former courts. This exception proceeds upon peculiar grounds of municipal and constitutional law, the respective courts being enti/rely competent to administer fuU relief in the suits pending therevn.” (Story’s Eq. Juris., § 900; Willard’s Eq. Juris., 348.) This exception is insisted upon by the learned counsel for the appellant as fatal to the maintenance of this action. It will be observed that Story gives the entire competency of the courts referred to, to administer full relief as a foundation for the exception, but in the particular case presented by the complaint in this action, United States Courts are powerless to grant the relief sought. The appellant, with seven other of the defendants in this action, and also the respondents, are residents of the State of New York, and the courts of the United States have no jurisdiction of an action of this sort between such parties. (Act of Congress, Sept. 24, 1789, § 11; Hyde v. Ruble, 104 U. S., 407; Blake v. McKim, 103 id., 336.) A case similar in its features to the present one was recently before the United. States Circuit Court for the Northern District of Illinois. (Emack v. Kane et al., 34 Fed.Rep., 46.) It was an action brought by the manufacturers of a patented article to restrain the manufacturers of a rival patented article from issuing to the complainant’s customers “ circulars threatening all who should buy from the complainant, or deal in his slates, with law suits, upon the ground that the complainant’s slate was an infringement of the other’s patent.”

' There were circumstances in that case, as in this, tending to show that the suits threatened were not for the purpose of settling this question of infringement, but for the purpose of intimidating the complainant’s customers, and injuring his trade. The court held that in such an action a court of equity would not pass upon the validity of a patent, but might consider the state of the art in connection with the defendant’s conduct, to ascertain his good faith in issuing the circulars, and the court also held that an injunction should issue, since the proofs show that the charges of infringement were not made in good faith, but with malicious intent to injure complainant’s business.” In that ease the parties resided in different States, and the United States Courts had unquestioned jurisdiction.

It will be seen, upon the authority of that case, that if all the defendants im, this case had been residents of the State of Michigan, this action for the precise relief sought might have been maintained in the United States Circuit Court. The absence of jurisdiction in the courts of the United States to entertain this action between the parties to it, and so to grant the relief sought, takes this case out of the exception stated by Justice Story. Injunction is the right arm of the court of equity, by which it reaches wrongs beyond the remedy of the ordinary processes of the courts of law. The right to use it in a case of this-kind, when, if the complaint be true, great injury is threatened, otherwise remediless, should not be denied except upon the judgment of the court of last resort.

If the respondents upon the trial of this action establish the facts charged in the complaint (which the papers presented show to be not improbable) the case will then be in a situation in which such a judgment may be obtained.

The order appealed from should be affirmed, with costs

Order reversed, with ten dollars costs and disbursements.

      The authorities cited by Story and by Willard do not warrant a stronger statement than that State courts cannot enjoin proceedings pending in the courts of the United States, and vice versa. The injunction in this case does not affect any pending action. (See Mead v. Merritt, 2 Paige, 40, 404. w.-rivo-ru, Ch.; Field v. Holbrook, 3 Abb. Pr., 377, 383, Hoffman, J.; Grant v. 612, 613, Duer, J.; Mariposa Company v. Garrison, 26 How. Pr.. - >• J.)


author: Macomber, J.:

text:
    MARY O’CONNOR, Plaintiff, v. DENNIS McMAHON, Defendant.

      Husband and wife — conveyance of land to both — right of the husband to dispose of his interest therein.

    Where a conveyance of reaHstate is made to a husband and wife, as grantees, and the grantees subsequently separate, the husband voluntarily leaving the wife in the possession and control of the premises, he cannot, by any conveyance or other act on his part, deprive the wife of the enjoyment of the land and the reasonable support which the same may afford her.
    While the husband, by virtue of his marital rights, has the power to receive and dispense the avails of land so conveyed to himself and wife, for the common support of themselves and their children, he is not at liberty when he absents himself from the possession and control of the property, leaving his wife in the possession and control thereof, to dispose of the rents, issues and proceeds thereof to a third party.
    The common-law rule which authorizes the husband to receive the rents and profits of such lands requires him at the same time to apply the same, or so much thereof as is necessary, to the support and maintenance of his wife and family.
    Motion by the defendant for a new trial upon exceptions ordered to be beard at General Term in tlie first instance, after a verdict for nominal damages directed by tlie court at tbe Steuben Circuit in November, 1888.

      The case was originally begun in a court of a justice of the peace and was removed into the Supreme Court, under the statute, upon a plea of title.

      Hadden <& McNamara, for the plaintiff.

      George T. Spencer, for the defendant.
   Macomber, J.:

Certain real estate, known as lot 1 in block 100, in the village of Corning, was conveyed to the plaintiff and her husband, Dennis O’Connor, on the 13th day of September, 1873. In a year or two thereafter Dennis O’Connor and the plaintiff separated, he voluntarily leaving her in the possession and control of the premises, and they have continued to live separate and apart since that time. On the 21st day of October, 1876, Dennis O’Connor executed a deed of an undivided half of said premises to the defendant Dennis McMahon. The plaintiff, however, did not join in this conveyance, nor has she done any act to confirm the same in any respect. On the 11th of November, 1876, one Catharine M. Hogan recovered a judgment against the same Dennis O’Connor. Subsequently the interest of said Dennis in such lands was sold by the sheriff of the county of Steuben to Catharine M. Hogan, who thereupon took possession of the west half of the said lot and erected a house thereon, assuming that she was a tenant in common with this plaintiff. Afterwards Catharine M. Hogan brought an action in the County Court of Steuben against the said Dennis McMahon and his wife for a partition of the premises in question, upon the ground that McMahon and his wife were tenants in common with her of said premises. The plaintiff in this action was not made a party to that action, but on the 5th day .of October, 1885, after a judgment had been entered therein, a motion was made in the Steuben County Court, by Dennis McMahon, for an order putting him into possession of the east ha.f of said lot, that being the portion of the land awarded to him in and by the judgment given in the partition suit. Such motion papers were served upon this plaintiff. She appeared in pursuance of the notice and objected to the jurisdiction and power of the court thus summarily to adjudge upon her rights, which objection was overruled and the court proceeded to carry into effect the judgment already pronounced. During all of this time the plaintiff was in possession of all the lands and had growing upon the part in dispute a crop of oats. Shortly thereafter, with the aid of the sheriff, McMahon took possession of the east half of the lot, removed the oats and erected a fence between the two parts of the land, against the will and objection of the plaintiff.

This case is brought in trespass to recover damages for the unlawful taking of the possession of the premises and going upon said land and removing and destroying a growing crop thereon. The proceeding in the County Court of Steuben county whereby, upon a mere motion to put McMahon in possession of a portion of the premises, the rights of this plaintiff were attempted to be adjudicated was a mere nullity. Not being a party to the action she could not be removed from the land or any portion of it in this summary manner. Nor was it necessary for her to appeal from that determination of the County Court in this respect, for on the face of the-proceedings the County Court acquired no jurisdiction. She objected timely to the proposed action in carrying into effect the judgment in partition, and she cannot be prejudiced by the fact that,, after having her objection overruled, she, by the aid of counsel, did what she could to resist the unlawful proceedings against her rights.. The question, therefore, in this case must be determined by the rule-, governing estates in entirety where conveyances are made to husband and wife. Notwithstanding the doubts previously expressed in Meeker v. Wright (76 N. Y., 262) and Schultz v. Schultz (89 id., 644), the case of Bertles v. Nunan (92 id., 152) has settled the law in this State to the effect that under a conveyance to a husba-nd and wife jointly they take, not as tenants in common nor as joint tenants, but as tenants by the entirety, and upon the death of either the survivor takes the whole estate. The opinion in that case which contains almost a complete enumeration of the cases theretofore arising in this State upon the question involved, declares that this estate by the entirety still exists notwithstanding the Laws of 1848 (chap. 200); 1849 ‘ (chap. 90); 1860 (chap. 375) and 1862 (chap. 172). This decision was reaffirmed in the case of Zorntlein v. Bram (100 N. Y., 12), which also decided that this common-law rule was not done away with by the act of 1880 (chap. 472, Laws of 1880), allowing the husband and wife to make a division between themselves of land so held by them. This case-further holds that neither husband nor wife can separately convey to a third person by deed any portion of such land so held hy them. This'decision would seem tobe decisive of the case before us.

But the counsel for the defendant has made an argument to the effect that, inasmuch as under the common-law rule the husband, as such, was entitled to receive the proceeds and avails of the land during the joint lives of the owners, he could, as he has attempted to in this instance, transfer such right to a third person. A sufficient answer to this proposition is that in the answer to the complaint the defendant has put his right wholly upon the claim of title to the land by virtue of such conveyance by the husband, and in the proceedings for the partition of such lands above mentioned. Furthermore, for the purposes of this hearing, it is not necessary to decide whether, in any ease, the husband may, by the hand of another, hy virtue of his common-law marital rights, incident to holding the estate in entirety with his wife, receive and dispose of the issues and profits of the real estate regardless of the rights of his wife. The contention for such proposition would be vulnerable in one respect, namely, that under the common-law rule, while he receives with one hand the rents and profits of the real estate so held, he is, by the same common-law rule, required with the other to dispense the same, or so much thereof as is necessary, to the support and maintenance of his wife and family, which was not done in this instance.

The act of 1860 (chap. 90, § 1) has an important bearing upon the questions here presented; that section is as follows: “ The property, both real and personal, which any married woman now owns as her sole and separate property, that which comes to her by descent, devise, bequest, gift or grant; * * * and the rents, issues and proceeds of all such property shall, notwithstanding her marriage, be and remain her sole and separate property, and may be used, collected and invested by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts, except such debts as may have been contracted for the support of herself or her children by her as his agent.” The real, estate in question was conveyed to the plaintiff and her husband subsequently to the passage of this act. The plaintiff’s rights, therefore, must receive the protection of the act. Her title is by grant. We are of the opinion that the husband cannot do any act which will deprive the wife of her rights, under this statute, to the enjoyment of the land and the reasonable support which the same may bring to her. The husband, by virtue of his marital rights, has the undoubted power to receive and dispense the avails of the land for the common support of himself, his wife and' their children. In the due and lawful management thereof he is doubtless free from the interference of his wife. This dominating right springs from the relation that he bears to her as husband under the common-law rule. When, however, he absents himself from the possession and control of the property and leaves his wife in the sole possession and control, as was done in this case, he can do no act which will deprive her of the enjoyment which the grant was intended to bring to her. If this view is correct, following, as we believe we do, the decision of Zorntlein v. Bram (supra), the act of the husband in conveying an undivided half of the land to the defendant was inoperative, and under such conveyance the defendant had not the right to any of the crops or to the use and possession of the lands.

The verdict was right and judgment thereon should be ordered for the plaintiff, with costs.

Barker, P. J., and Dwight, J., concurred.

Motion for new trial denied, with costs; judgment ordered for the plaintiff on the verdict.


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    MARY BURRELL, Appellant, v. WOOSTER B. PRESTON, Respondent.

      Statute of limitations, relating to personal injuries occasioned by negligence, applicable where a contract relation exists Code of Civil Procedure, sub. 5 of see. 383.
    The provisions of subdivision 5 of section 383 of the Code of Civil Procedure are applicable to an action for the recovery of damages for personal injuries occasioned by negligence, although at the time of the occurrence a contract relation existed between the parties to the action, the plaintiff being a patient of the defendant, a doctor.

      Appeal by tbe plaintiff from a judgment in favor of tbe defendant dismissing the plaintiff’s complaint, rendered at tbe Livingston Cb’cuit, November, 1888, and entered in tbe office of tbe clerk of Livingston county on tbe 15th day of December, 1888.
    Tbe action was brought to recover damages alleged to have been sustained by tbe plaintiff by reason of tbe alleged malpractice of tbe defendant, a physician and surgeon, occurring in tbe treatment of tbe plaintiff by tbe defendant in bis professional capacity.

      J. A. Van Derbvp, for tbe appellant.

      Frederick W. Aboyes, for tbe respondent.
   Macomber, J.:

Tbe case contains a judgment and notice of appeal tberefrom} although it is also stated that tbe exceptions taken at tbe trial were ordered to be beard at tbe General Term in tbe first instance. Under these circumstances, we must treat as controlling, in respect to tbe practice, tbe judgment and tbe notice of appeal.

Tbe action is for damages for personal injuries received by tbe plaintiff through tbe negligence of tbe defendant. Tbe answer,, among.otber things, alleges that tbe action was not brought within the, three years next succeeding tbe alleged injuries which were received in tbe month of November, 1881, and that, consequently, tbe action is barred by tbe three-year statute of limitations. Tbe counsel for tbe appellant argues, quite against tbe plain utterance of tbe Code of Civil Procedure, as it seems to us, that, inasmuch as tbe relation existing between tbe patient and tbe doctor was by virtue of a contract existing between them on tbe one side to render services, and on tbe other to pay for the same, tbe six-year statute of limitations is alone applicable. It is true that negligence in this, as in all other cases arising incidentally between parties who bave contract relations with each other, is in some sort a breach of contract; but this by no means relieves tbe parties from tbe operation of tbe provisions of tbe statutes of limitations, which are designed to limit tbe right of action in case of negligence to three years, whether tbe negligence was caused by a party having any duty to perform to tbe other or not. Subdivision 5 of tbe three-year statute (Code, § 383) is: “An action to recover damages for a personal injury resulting from negligence.” It contains no qualification or limitation of cases where the negligence is caused by a person who has agreed by contract to do a certain thing in behalf of the party injured.

The judgment should be affirmed.

Barker, P. J., and Dwight, J., concurred.

Judgment affirmed.


author: Maoomber, J.:

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    FRED P. WILCOX, Respondent, v. THE CITY OF ROCHESTER, Appellant.

      Sale of real estate for the collection of a personal tax.

    Where a tax is imposed against a resident of the city of Rochester upon the assessed value of a house and lot therein, and also upon an assessment for personal property, and said tax is not paid, the city treasurer, although authorized to sell the house and lot for the non-payment of the tax thereon, cannot sell such real estate for the aggregate amount of the tax upon the real estate, and of that upon the personal assessment.
    Under the charter of the city of Rochester a tax imposed upon an assessment impersonal property is not chargeable upon the real estate of the party assessed in such wise as to authorize the city treasurer, without further proceedings, under chapter 318 of 1813 and chapter 301 of 1867, to sell the real estate in order to collect the same.
    Appeal by the defendant from a judgment of June 21, 1888, entered in the Monroe county clerk’s office on the report of a referee setting aside a general city tax levied against the plaintiff in the year 1884, upon an assessment of personal property, and also vacating a sale of real estate sold for the non-payment thereof.

      E. F. Wellington, for the respondent.

      Henry J. Sullman, for the appellant.
   Maoomber, J.:

The plaintiff resided for a number of years prior to January 1, 1884, in the seventh ward of the city of Rochester. At about the last-named date he removed into the fourth ward of that city and continued there to reside until December of that year when he removed to the State of Michigan. The assessment against him for personal property was made in the spring of 1884 for the sum of $50,000. He was also assessed at the same time for the value of a house and lot in Tracy park, in the seventh ward. The fact of the plaintiff’s removal from the seventh to the fourth ward was generally known by his friends, and no effort was made on his part, apparently, to conceal it from the knowledge of the assessors. The tax, as extended against the plaintiff upon the rolls for that year, for the assessment upon both the personal and real estate, was $1,656.29. In the month of August, 1884, after the tax became due and payable, and at a time when an additional charge of one per cent was made for the non-payment of the same, the plaintiff tendered to the treasurer of the city of Rochester the sum of forty-five dollars and eleven cents, being the full amount of the city tax assessed upon the real estate above mentioned, with the interest and percentages thereon, which was refused because the plaintiff did not also offer to pay the tax assessed upon his' personal property. Subsequently, and on the 26th day of March, 1885, the city treasurer sold the real estate for the whole amount of the real and personal tax, with interest, charges and expenses added, and the land was struck off to the defendant and a certificate thereof was made and delivered to the proper officer by the treasurer.

There is no question but that the plaintiff was the owner of personal property of the amount estimated by the assessors in the spring of 1884, but there was no proof that the plaintiff knew that he was assessed for the same in the seventh ward before the rolls were completed and had been delivered to the city treasurer in the month of July. Irrespective of the question whether the plaintiff can be relieved of this assessment upon the personal property by reason of its being levied in the seventh ward instead of the fourth, there appears to be a cogent reason why the judgment entered upon the report of the referee should be affirmed. The power of the city treasurer to sell land for delinquent taxes is derived solely from section 94 of the city charter (chap. 14 of 1880), which provides that the lands may be sold summarily when charged by taxes which have been due and unpaid for more than thirty days previous to the last Thursday in March. Our attention has been called to no statute, and we know of none, which, in the city of Eochester, makes the imposition of a tax for personal property directly chargeable upon the real estate so as to enable the city treasurer, without further proceedings, to sell the real estate in order to collect the same. Under section 91 of the city charter, the treasurer is authorized to issue warrants for the collection of personal taxes so assessed, and if no personal property is found by the collector into whose hands the warrant is placed, he shall return the warrant unsatisfied as to the tax in question. There are special proceedings provided by law for the collecting of such taxes (chap. 318 of the Laws of 1842, and chap. 361 of the Laws of 1867). But the city treasurer cannot, in the first instance, as has been attempted to be done in this case, add to the charge upon the real estate the tax for personal property and enforce the same, as a charge against the land owned by the persons so taxed, as though it was an assessment on the land itself.

The judgment should be affirmed.

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

Judgment affirmed.


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    CASPER DORT, Respondent, v. EVA NICKEN, Appellant.

      Ratification of a contract — mads by a husband,, assuming to act for his wife, in procuring money to be paid in dischas-ge of a mortgage on her pi'opm'ty.

    Where money has been advanced to take up a mortgage under an agreement, made by the husband of the owner of the mortgaged premises, without her knowledge or consent, that the party advancing the money should be secured for its repayment by another mortgage to be executed by the owner of the premises upon the same property, in the absence of evidence of any act on her part tending to induce the advancement of the money, the owner of the property will not be held to have ratified the agreement made by her husband by the fact that after the mortgage discharge was executed she paid to the county clerk for recording the discharge the legal fees therefor, and afterwards received from him the discharge which had been so recorded, the mortgage so discharged having been given to secure an indebtedness of the husband.
    Appeal by tbe defendant Eva Nicken from a judgment rendered in the above-entitled action at a Special Term of the Supreme Court, held in the county of Erie, and entered in the Erie county clerk’s office on the 22d day of September, 1888.

      It was adjudged thereby that the defendant 'Eva Nicken, within ten days after the entry of judgment, make, execute and deliver to the plaintiff, Casper Dort, a good and sufficient mortgage upon the property described in the complaint to secure the sum of $625, with interest thereon from the 10th day of November, 1887; that the said plaintiff, Casper Dort, has a hen upon the premises described in the complaint to the extent of the said sum of $625, with interest; that the premises described in the complaint be sold at public auction by the sheriff of Erie county, and that the sheriff, out of the proceeds of sale, pay to the plaintiff or his attorneys the sum of $625, with interest from the 10th day of November, 1887, together with the costs of this action.

      Fitch dc Braunlem,, for the appellant.

      3. 3. Platt, for the respondent.
   Macomber, J.:

On the 26th day of May, 1875, this defendant and her husband,. Adam Nicken, being the owners in fee of the premises described in the complaint, executed and delivered to George Goetz and J. Martin Jones a mortgage upon said premises to secure'the payment of $1,100, with interest, which mortgage was thereafter duly recorded in the clerk’s office in Erie county.

The defendant is now the sole owner of the premises, having acquired the same by certain mesne conveyances. On the 10th day of November, 1887, there remained due and unpaid upon said mortgage the sum of $625. The mortgage was then held by one Louisa N. Groben. On the last named day this plaintiff paid to Groben the amount due upon said mortgage. On the 15th day of November, 1887, the said Groben duly executed and delivered to the defendant the proper discharge of said mortgage, which was on the 18th day of January, 1888, recorded and the mortgage discharged of record. The trial court has found that the plaintiff advanced the money for this mortgage under an agreement made by the defendant’s husband that the plaintiff should be secured for its payment by another mortgage executed by this defendant upon the same property. This promise was made without the knowledge or consent of the defendant. It is not shown that the defendant did anything to induce the plaintiff to advance moneys in behalf of her husband; the defendant has done no act which would connect her with the perpetration of any deceit or fraud upon the plaintiff. She did, however, some time after the discharge was •executed and delivered, for the purpose of having the mortgage discharged of record, voluntarily pay to the clerk for recording the discharge the sum of fifty cents, and afterwards received from the county clerk the discharge which had been so recorded. Upon this fact alone the learned trial judge has held the defendant liable • for the indebtedness upon the ground that by recording the discharge and paying for such record she ratified the act of her husband in inducing the plaintiff to advance the sum of $625, upon his promise that she would give security upon these lands. The learned trial judge in his opinion says: “ While, therefore, she did not authorize her husband to make the agreement which he entered into with the plaintiff for the loan of this money and its security by means of a mortgage to be executed by her, and which she refused to perform by giving the mortgage, she did, in this manner, obtain the fruits, result or benefit of the transaction. That was claimed by her as a matter of right and the discharge was surrendered to her at her request, after it had been obtained by the plaintiff' from the clerk’s office. And that was a ratification of the unauthorized agreement made by her husband in her behalf, upon which the plaintiff advanced this money, for she could not take the benefit derived under that agreement, as she did, by providing for the recording of the discharge and after-wards requesting and securing its delivery to her, without assuming the obligations of the agreement under which she became entitled to that discharge.”

The authorities cited by the learned judge (Heermans v. Clarkson, 64 N. Y., 171; Leslie v. Wiley, 47 id., 648; Andrews v. Ætna Life Ins. Co., 92 id. 597; Farmers' Loan and Trust Co. v. Walworth, 1 Comst., 433 and other cases which might be cited), show that a ratification, may be made of an unauthorized act, and that when made the same must be deemed a ratification of the whole of the transaction, and not a part thereof only. Their application to the facts disclosed in this case, however, is not readily apparent. The truth is, as between the husband and the wife, this defendant was a mere surety for the payment of tbe indebtedness wbicb originally existed upon tbe premises. Her husband was tbe original debtor, and tbis property bad been pledged as security for tbe payment of such indebtedness. There does not seem to be any connection between tbe procuring of tbe discharge of tbe old mortgage and the fraud in getting tbe money therefor from tbe ["plaintiff wbicb would bind tbis defendant by way of ratification by simply being the involuntary recipient of tbe discharge of a mortgage procured by her husband.

Furthermore, it does not seem to us that tbe mere requiring and paying for tbe record of tbe discharge of tbe old mortgage can be deemed a a ratification of any act of her husband. It -is found, as a fact, by tbe trial court, under tbe evidence, that tbe same bad previously been executed and delivered to her. As between tbe parties tbis was a complete discharge of tbe indebtedness. Placing such discharge upon record affected the rights of no persons. Had it been shown that tbe defendant bad done any act in aid of her husband in fraudulently procuring tbe moneys for tbe discharge of tbe old mortgage, a different question would arise. But we are of tbe opinion that under the finding of fact tbe conclusion of law that tbe defendant should execute another mortgage upon tbe same premises to reimburse tbe plaintiff for moneys fraudulently obtained from him does not necessarily follow, and for tbis reason tbe judgment should be reversed and new trial granted, with costs to tbe appellant to abide tbe final award of costs.

Barker, P. J., and Dwight, J., concurred.

Judgment reversed and new trial granted, with costs to the appellant to abide tbe final award of costs.


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    EARNEST VALENTINE, Respondent, v. LEWIS KELLEY, Appellant.

      Jury — statement made to, by the judge, in the absence of the parties and counsel— verdict set aside.

    "Wliere a justice of the peace, after tlie jury lias been charged, and in tlie absence of both the parties and their counsel, enters the jury-room and suggests to the jury the propriety of their trying to agree upon a verdict, although there is no evidence that the justice was partial to either party or coerced a verdict, or had any corrupt motive in taking this action, the verdict rendered by the jury under such circumstances will be set aside.

      Tallen v. Me (Quire (49 Hun, 594) distinguished.
    Appeal by the defendant from a judgment of the County Court of Erie county, entered February 7, 1889, affirming a judgment Tendered by a justice of the peace of the town of Collins, on the verdict of a jury in favor of the plaintiff, for the sum of sixteen dollars and thirty-five cents, being for wages due to the plaintiff for services to the defendant.

      Fred J. Blackmon, for the respondent.

      J. M. Gong don, for the appellant.
   Macomber, J.:

On account of the death of the justice of the peace, before a return was made by him, there exists a lack of the details of the evidence given before him, yet enough is disclosed to show that it was a fair question of fact for the jury whether the wages of the plaintiff were to be paid by the defendant or by one Geiger. Under these circumstances, the verdict, if uninfluenced by other matters than the evidence, must be deemed conclusive.

A reversal was also claimed in the County Court, and is insisted upon here, on the ground of the misconduct of the justice of the peace in conferring with the jury after they had retired to deliberate upon their verdict. Three of the six jurors, and the constable who was in charge of them, have made affidavits to the effect that after the jury had retired for deliberation the justice entered their room and had a conversation with them about the case in the absence of the parties and counsel and without their consent. The jury had then been out nearly four hours. Eliminating from the case the affidavits of the jurors, upon the ground taken by the respondent’s counsel, that they cannot be heard to impeach the integrity of their own verdict, but without giving our assent to the correctness of the proposition as applied to the facts of this case, there remains the uncontradicted affidavit' of the constable as follows: “ That the said jury failed to agree for nearly four hours and the foreman of the jury asked deponent to bring in the justice of the peace, and repeated the request once or twice; deponent thereupon went out and found the justice, "William Peacock, and the said Peacock then went into the room with deponent and the jury; that neither of the parties to the action, or either of their counsel, were present, but that the justice came alone with deponent and the jury., After Peacock came into the room the- foreman of the jury stated to him that they could not agree. Peacock then stated to the jury that it takes a good deal of time and a good deal of expense to try these law suits and it seems as though you ought to agree. One of the jury then said to him that they stood two to four, and Peacock then left the room and the jury some time after-wards agreed on a verdict for the plaintiff.”

The version of the transaction as given by the jurors is not materially different from that related by the constable. They say that after the constable returned with the justice the latter went to the stove to fix the fire, and while he was doing so said: “ Boys, you had better try and agree, we do not want to try this case over again.” One of the jury stated to the justice that they stood two to four, and the said Peacock then said : “You are so near together that you had better agree,” and then left the room, and the jury soon afterwards agreed upon a verdict for the plaintiff.

There is not, it is true, any evidence that the justice of the peace was partial to the plaintiff, or that he had any motive in coercing a verdict in his favor against the defendant. The objection to the proceeding rests on a higher ground. "We think the justice had no right to enter the jury-room and hold conversation with the jury, in the absence, or without the consent of the parties upon the question stated by them and answered by him. No corrupt motive of the justice need be shown in order to set aside a verdict of a jury which has been brought about by his unwarrantable interference with their deliberations. The jury, after it retires, must remain untrammeled and uninfluenced by any advice which the justice may, though honestly, give in regard to their verdict without the consent of the parties. Any relaxation of the rule, as uniformly held (Taylor v. Betsford, 13 Johns., 487; Bunn v. Croul, 10 id., 239; Neil v. Abel, 24 Wend., 185; Benson v. Clark, 1 Cow., 258), would seriously impair the confidence of the public, not only in our system of trial by jury in courts of subordinate, but also in those of the highest jurisdiction.

This case is distinguished from Vallen v. McGuire (49 Hun, 594) in this respect, namely, in the case before us the justice having died before making a return on appeal to the County Court, the minutes left by the justice were agreed upon by counsel and inserted in the case as the return, and the affidavits above-mentioned may be properly treated as supplemental to and as a part thereof under section 3056 of the Code of Civil Procedure. It may be presumed that the justice, if living, would have made a return embodying the “ other proceedings taken ” if so requested.

The judgment of the County Court and of the justice should be reversed, with costs.

Barker, P. J., and Dwight, J., concurred.

Judgment of the County Court and of the justice reversed.


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    LOUIS KNELL, Respondent, v. THE CITY OF BUFFALO, Appellant.

      Action to vacate an assessment brought on behalf of plaintiff and all others similm'ly situated — form of judgment where no other persons apply to be made parties plaintiff.

    In an action brought to restrain a municipal corporation from enforcing payment of an assessment, in which the complaint is made on behalf of the plaintiff, named therein, and all others who may contribute towards the expenses of the action, but to which no person other than the original plaintiff has been made a party plaintiff, a judgment is improperly entered which adjudges the assessments, other than the plaintiff’s, against the several parcels of land owned by parties who may thereafter come into court and have the judgment declared to be for their benefit to be null and void, and gives a perpetual injunction restraining the municipal corporation from enforcing such assessments.

      Appeal by tbe defendant from a judgment, entered in the office of the clerk of the county of Erie on the 2'Tth day of November, 1888, in favor of the plaintiff, upon the report of a referee, which judgment provided as follows:
    “ It is adjudged that the assessment-roll mentioned and described in the plaintiff’s complaint in this action as assessment-roll No. 4500, is, and the same hereby is declared to be null and void, and the assessments made thereby upon and-against the several parcels of land therein mentioned and described are and shall be no lien or incumbrance upon or against any of said lands or premises described in said roll as aforesaid, and that the said assessment-roll No. 4500 be and the same hereby is vacated, annulled and set aside.
    “And it is further adjudged that the said defendant, the city of Buffalo, its agents, officers and servants, are hereby perpetually enjoined and restrained from in any way proceeding to enforce the collection of the assessments made and levied by said assessment-roll No. 4500, either personally against the plaintiff, or against any other of the persons whose lands are described therein, or against the lands of the plaintiff, or of any of such persons which are mentioned and described in said assessment-roll No. 4500.
    “And it is further adjudged that all such other persons whose lands have been subjected to the lien of said assessment, and who have contributed, or who will hereafter contribute, towards defraying the expenses of this action, and who are represented by the plaintiff herein, are and shall be at liberty hereafter to come in upon their application to this court in this action, and thereupon have this judgment declared to be for their benefit in adjudging the said assessments against their respective parcels of land null and void, and no lien or incumbrance upon or against the same, and perpetually enjoining the defendant, its officers and agents, from enforcing the collection of said assessments against them, or against their said respective lands and premises.
    “And it is further adjudged that the said plaintiff, Louis Knell, do recover the sum of seven hundred and four dollars and one cent ($104.01) from the defendant, the city of Buffalo, as and for the costs and disbursements of plaintiff in this action, and that plaintiff have execution therefor.”

      The action was brought in behalf of the plaintiff, who was assessed for the expense of repaving Broadway in the city of Buffalo, and of all others similarly situated who might come in and bear their proportionate share of the expense of the action, for the purpose of having declared null and void and restraining the collection of assessment-roll No. 4500 for repaving Broadway in the city of Buffalo, between Ellicott and Spring streets, with asphalt pavement. The whole amount of the assessment was $77,404.80, all of'which had been paid by the persons liable therefor, except the sum of $6,329.31. The plaintiff’s assessment was $734.78, of which he had paid the sum of $432.82, leaving still unpaid by him $301.96.

      O. O. De Witt, for the respondent.

      Fra/nh G. JLcmghlin, for the appellant.
   Macomber, J.:

The judgment, among other things, permits all persons not parties to the action whose lands have been subjected to the lien of the assessment above mentioned, and who have contributed and who may thereafter contribute towards defraying the expense of the action, and who are represented by the plaintiff herein, to come in, on their application, and have the judgment entered herein declared for their benefit, and adjudges the assessments against their respective parcels of land to be null and void and gives a perpetual injunction restraining the defendant from enforcing the same or any part thereof against them or either of them.

No person, so far as the record discloses, intervened and made himself a party to this suit in pursuance of the allegation contained in the complaint that the action was brought for the benefit of all parties similarly situated. It was not, therefore, competent for the referee to direct a judgment in favor of other persons than the plaintiff who were not made parties to the action. It is quite clear that if the plaintiff had failed in this action, neither one of these several persons owning lands upon Broadway would be concluded by the judgment entered herein. The defendant cannot be deemed to be concluded by a judgment to which the decision of the referee says the plaintiff is entitled, as to any of these persons, because the rights of each of them may turn upon facts peculiar to each particular case, and not upon any general or supposed pervading defect in tbe proceedings for tbe pavement of this street. It follows, therefore, that the judgment should be modified by eliminating therefrom all provisions for the benefit of persons who were not originally or who did not subsequently become parties to the action before the decision of the referee.

The referee has found that the assessment of this public improvement is invalid upon various grounds, which may be stated briefly. The principal reason why, in his judgment, the assessment is regarded as void is, that the assessors, as is alleged, acted upon and reported a petition for the improvement in question before the mayor approved of the action of the common council in referring the petition to them to determine the fact whether it had been signed by the necessary taxpayers. It is clearly established, and so found by the referee, that a sufficient majority petition for this improvement was presented to the common council on the 26th day of May, 188é, and by that body referred to the assessors. On the ninth day of June, two weeks thereafter, the assessors returned the petition to the common council with their certificate annexed in all respects as required by the charter of the city of Buffalo (§ 9, tit. 9, chap. 519 of 18Y0). It appears, however, that the mayor did not approve at that time, personally, the action of the common council. He has further found that the resolutions or proceedings were never legally presented to the mayor.. In respect to this last finding of fact the learned referee appears to be in error. The mayor, it seems, had a clerk by . the name of Bobbins, who was generally at the mayor’s office ready to receive any communication or paper'designed for the mayor’s signature. He received these proceedings of the common council at the time mentioned while in the mayor’s office, and while acting as his legally constituted clerk. It does not appear that the mayor’s attention was called particularly to this action of the common council, or that he was requested to approve or disapprove the same, but there is a provision of the charter of the city by which such proceedings are deemed to be approved by the mayor unless, within a period of ten days, he returns the same without his approval. (Charter of the City, tit. 2, § 25.) The decision of the referee is placed upon the narrow ground that the proceedings of the common council had not been legally presented to the mayor, and that the presentation made at Ins office, and the same being handed to the clerk was not sufficient. In this conclusion we cannot concur. There appears to have been no attempt made to conceal the proceedings from the mayor. On the contrary, a subsequent attempted approval of the same shows that it was his purpose from the beginning to concur in this action of the common council. ¥e are constrained, therefore, to differ from the learned referee upon the main matter upon which his judgment rests.

The referee has further found that the necessary plans and specifications for the proposed improvement were not prepared and placed on file when the engineer advertised for proposals. In this, too, in our judgment, he was in error under the well-established facts of the case. The proper plans had been prepared and were on file at the time of advertising for proposals. There seems ta have been no motive for • the engineer to have advertised for proposals before the specifications were completed and filed, and this, finding of the referee is against the strong probabilities of the cas& and against much of the testimony.

So, also, with his conclusion that the bid or proposal to do the-work as received and acted upon was not sealed. No other proposal was submitted than the one for the Barber asphalt pavement. It is abundantly established that the engineer, when he received the envelope, had no previous knowledge of its contents, and that the envelope at that time was actually sealed. Under these circumstances, nobody could be injured, even if the proposed bid had not been sealed, but, as intimated above, the preponderance of- evidence shows that the same was regularly enclosed in an envelope and sealed,

Further opposition to the legality of this assessment and the proceedings thereunder consists in the assertion that the contract of laying was prematurely entered into, and before the formal steps required by the charter had been fully complied with. Even if this, be so, the contract was ratified and validated by the subsequent proceedings and by the mayor’s abstention from vetoing the resolution but approving the same. It is true, that in all matters of substance in carrying out local improvements, the statutory authority therefor must be strictly pursued, and any substantial departure therefrom vitiates the proceedings under it. (Merritt v. Village of Portchester, 71 N. Y., 309.) But a mere clerical or accidental departure therefrom, as in this instance, being mere irregularities which the parties fail to avail themselves of at the time, are not matters of substance, and afford no reason for the court’s interference in enforcing the payment of the expenses of snch improvements, when it is clearly to be seen, as in this case, that the substance of the provisions of the statute had been observed, and that the municipal authorities had acquired full and complete jurisdiction in the premises.

The approval of the resolution made by the clerk Robbins, in the name of the mayor, was, of course, a mere nullity. (Lyth v. City of Buffalo, 48 Hun, 175.) The resolution became operative by lapse of time and by the subsequent approval thereof by the mayor, before any objection was made to the proceedings for the pavement of this street.

Under these circumstances, we think that the proceedings of the common council for the pavement of Broadway in the city of Buffalo were legal, and that, consequently, the judgment entered upon the report of the referee should be reversed and a new trial be had before another referee, with costs to the appellant to abide the final award of costs.

Barker, P. J., and Dwight, J., concurred.

Judgment reversed and new trial granted before another referee, with costs to appellant to abide the final award of costs.


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    HENRY S. ROOD and Another, as Executors of the Last Will and Testament of FOSTER S. WATSON, Deceased, Respondents, v. JAMES C. WATSON and Others, Appellants.

      When, notwithstanding the use in a will of the words “ to hold in hen' natwral life," afee will pass to the henefieia/ry.

      A testator, by Ms will, provided as follows: “ I hereby give and bequeath to my wife, Jane A. Watson, all my estate, real and personal, to have and to hold in her natural life, right to have and to use as she may choose, except that I give and bequeath to our adopted daughter, Julia S. Marble, of the town of East Bloomfield, Ontario county and State of New York, the sum of sixteen hundred dollars, for lier to have and to use her natural life, the same to pass to her children after her decease, provided they live to the age of twenty-one years. If they should die before that age, then, at the death of said Julia, this legacy shall revert to the estate. ”

      Held, that by the use of the words “in her natural life” the estate given to the testator’s wife was not limited to an estate for life, and that she took the entire title to the property with power to dispose of the same.
    Appeal by the defendants from a judgment entered August 15, 1888, upon the decision of this court at Special Term in Yates county, giving a construction to the last will and testament of Foster S. Watson, by which 'Jane A. Watson, the wife of the testator, was declared to be entitled to all of the estate of the deceased, both real and personal, except the sum of $1,600, which had been given to an adopted daughter by the name of Julia S. Marble.

      John T. Knox, for the appellants.

      Kclwm Hides, for the respondents.
   Macomber, J.:

No question arises on this appeal except upon the second item of the will, which is as follows: “ 2. I hereby give and bequeath to my wife, Jane A. Watson, all my estate, real and personal, to have and to hold in her natural life, right to have and to use, as she may choose, except that I give and bequeath to our adopted daughter, Julia S. Marble, of the town of East Bloomfield, Ontario county, and State of New York, the sum of $1,600 for her to have and to use her natural life, the same to pass to her children after her decease, provided they live to the age of twenty-one years; if they should die before that age, then at the death of said Julia this legacy shall revert to the estate.” This will was drawn by an unskilled hand. The testator left about ten thousand dollars besides real estate of the value of one or two thousand dollars. There survived him no children or other descendants. The next of kin were collateral relations, being sons and daughters of his deceased brothers and sisters. There is nothing in the attending circumstances to show that the testator had any other objects of bounty save his widow and his adopted daughter, to whom all his estate was given, as is contained in the above provision of his will. From the terms of the will themselves and from these attending circumstances the intention of the testator must be derived. It will be noted that the will contains no bequest or devise over after the death of his wife, nor any residuary clause. The learned justice at the trial says, in his opinion: “ The right to use the property devised as she chooses is not limited, and it gives to-Mrs. Watson the power of disposition to any extent she wishes. (Spencer v. Strait, 38 Hun, 228; Campbell v. Beaumont, 91 N. Y., 464.) The only question is whether the words “in her 'natural life” limit the estate which accompanies an absolute power' of disposition. A devise or bequest of property indefinitely, with an absolute power of disposition, usually vests in the legatee the full estate in absolute ownership, if the property is personal in its nature, and in fee if it is real estate. (Van Horne v. Campbell, 100 N. Y., 287-302.) The words quoted above do not literally have any meaning whatever, whether considered in a legal sense or in the ordinary every-day meaning. of them. They were probably intended to be used for the phrase “ for her natural life.” If they are taken to mean the same thing as that phrase, the property is given to Mrs. Watson for life, with the power of disposition. If there were a devise over of the property, or what was left of it, the courts, to carry into effect the whole intention of the testator, would probably hold that while she had the absolute power to use what she chose of the estate, the limitation over would be good as to what remained. But all the cases holding in that way do so to give effect to the limitation over because the intention of the testator requires it. In this ease there is no limitation over, and the effect to be given to the bequest to Mrs. Watson is not controlled by the necessity of carrying such limitation into effect. But another rule presents itself here which is, that the testator is always presumed to dispose of his whole estate when he makes a will, and not to intend to die intestate as to any of it. (Vernon v. Vernon, 53 N. Y., 351; Thomas v. Snyder, 43 Hun, 14, 15.) If any weight is given to the words “ in her natural life,” the necessary result would be that the testator dies intestate as to all his property, except the legacy to his adopted daughter, after the death of his wife. -He had no children dependent upon him who might have a right to his bounty, and it is not at all likely that he intended to leave Ms property undisclosed of, nor does tbe law so presume. Tbe words used are sufficient to give Mrs. Watson tbe complete power of disposition, even tbougb there be attached to tbe words quoted tbe meaning suggested, and with such complete power of disposition tbe absolute ownership goes. I do not think tbe quoted words mean tbe same thing as tbe phrase “ for her natural life.” Tbe word “in” is not synonymous with “for,” and there is no reason for making it read “ for; ” it might as well be changed to “ after ” or “ beyond,” or any other word which would make it consistent with the power of disposition. I do not think the court is called upon to struggle with the meaning of these words for the purpose of attaching an unnecessary limitation to this bequest.” We only add to the foregoing opinion, which to this extent we adopt, by saying that in the absence of a clearly defined limitation which has not been made to appear by any natural construction of ,the will, the legatee and devisee takes the entire title to the property, with power to dispose of the same.

The judgment appealed from should be affirmed.

Barker, P. J., and Dwight, J., concurred.

Judgment affirmed, with costs.


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    CHARLES E. HEQUEMBOURG, Appellant, v. WILLIAM BOOKSTAVER and Others, Respondents.

      Costs — when several municipal officers similan'ly affected should appea/r by but one attorney and arre entitled to put one bill of costs.

    In an action brought to procure a judgment to the effect that chapter 29 of the Laws of 1888, relating to the construction of an electric-light plant in the city of Dunkirk, was unconstitutional, the mayor of the city of Dunkirk, the members of the common council, the water commissioners of that city, under whose control the electric-light plant was placed by the provisions of said act of 1888, and the city itself, were all made parties defendant. The several defendants, the mayor, the members of the common council, the city and the water commissioners, having separately appeared in the action, on an application by the-plaintiff for leave to discontinue the action, an allowance was made to each of four counsel of the costs of the action.

      Held, that it was the duty of the attorney of the city of Dunkirk to appear for the mayor and the members of the common council, as well as for the corporation itself, whose interests were not in any way hostile to each other, and that but one general bill of costs should have been allowed to these several defendants.-
    That there was a propriety in the separate appearance of the defendants, constituting the board of water commissioners, as it had been the custom of that body to be represented in all public matters by its separate attorney, and that a separate and further bill of costs should be allowed to the board of water commissioners.
    Appeal by the plaintiff from that portion only of an order made at tbe Erie Special Term, and entered in the Chautauqua county clerk’s office May 4, 1889, which imposed the payment of four bills of costs upon the plaintiff as a condition of his discontinuing this action.
    The mayor appeared separately by counsel, as did also the city, the members of the common council and the members of the board of water commissioners.

      John Q. MiTburn, for the plaintiff, appellant.

      Walter D. Molt, for the city of Dunkirk, defendant, respondent.

      Walter W. Holt, for William Bookstaver, mayor, etc., respondent.

      Stearns c& Kingsley, for Elahaven and others, members of the common council, respondents.

      Chaneles D. Murray, for Coleman and' others, water-works commissioners, respondents.
   Macomber, J.:

If there was proper occasion for the separate appearances of these defendants, respectively, the allowance to each of them of the costs of the action must be upheld. . If, on the contrary, there is but one class of defendants representing the city of Dunkirk, all the defendants being engaged in one common public purpose, there was no occasion for them to appear separately in the action, and, consequently, there was no warrant of authority for an allowance to them, in the exercise of the sound discretion of the court, of a separate bill of costs upon the voluntary discontinuance of the action by the plaintiff.

The object of the action, as disclosed by the complaint, was to procure a judgment of the courts that chapter 29 of the Laws of 1888, not having received the governor’s signature within ten days from the time that it was received by him from the legislature, never, in truth and in fact, became a law, and that the same was unconstitutional. The object of the act was the construction of an electric-light plant in the city of Dunkirk to supply private consumers as well as the streets and public buildings. By its terms the operation of the electric-light plant was placed upon the board of water-commissioners, which body, the complaint alleges, was not legally organized and was incapable of receiving from the legislature such a public duty.

The defendant, 'William Bookstaver, is the mayor of the city of Dunkirk; Charles J. Rlahaven, Cornelius Stumm, Byron Rathbun, S. M. Smith, Michael J. O’Donnell, Thomas C.. Jones, Patrick Higgins and Harry'J. Gibbbs, Jr., are members of the pommon council of such city. The defendants William T. Coleman, John Maddigan, George Abell, Louis Heyle, M. L. Hinman, John S. Beggs and Julian T. Williams, are the water-works commissioners of said city, with the mayor as aii ex-offioio member of such board.

The city, by name, is also made a party defendant. The single purpose of the plaintiff, as disclosed by the complaint, was to obtain a judgment of this court declaring the act above mentioned inoperative and unconstitutional. It affected one general public interest, and that was the interest of the inhabitants of the city of Dunkirk. The city by its corporate name was a proper party. It appeared by its official attorney. It was well and, perhaps, prudent to make the members of the common council of that city parties, also individually, as it was also the members of the board of the water commissioners, yet no relief was asked against any one of those gentlemen. The sole relief was directed against the corporation known as the city of Dunkirk, represented by these several public officers. The city attorney of that town clearly represented and it was'his duty to appear for the mayor and the common council'as well as for the corporation itself. He had no right to delegate his powers to any other person, for there was no clashing of interests between the corporation, the common council and the mayor, but all were engaged in one common purpose, to establish an electric-light plant for public and private purposes in that city. All of these persons being public bodies, sued as such, and no relief being sought against them personally, should have appeared by one attorney, and that, too, by the person designated by law to act for the general interests of the municipality.

The affidavit of Mr. Murray, however, in behalf of the bill of costs in favor of the water works commissioners, presents a slightly different question. It is there conclusively shown by him that this corporation, the names of whose trustees appear as defendants, has, by the course and practice of the city itself from its incorporation, been represented in all public matters by its separate attorney, that it has, at different times, held interests which might grow into matters antagonistic to the city itself, and hence tire propriety of separate representation by attorney. It is not clear, therefore, that the city attorney, in this instance, should have appeared for this corporation, nor is it clear that he had the right so to appear.

■ It is seen, therefore, that, while all the defendants when named individually are joined on account of them public relations to the city, there was a propriety in the separate appearance of those constituting the board of water commissioners. Undoubtedly, as the case has turned out, it would have been equally safe for those gentlemen to have appeared by the city attorney, yet such has not been the custom of that body, and we are not prepared to say that it was incumbent upon that board to employ the city attorney in this instance. It follows, therefore, that the allowance for a separate bill of costs to the board of water commissioners was not improper. The allowance to the other defendants, except one general bill to the attorney for the city of Dunkirk, does not seem to us to have been justified by the nature of the action and the relief sought'for the reason that they had ho occasion to appear by attorney. In this respect we follow, as we believe, a precedent set by the Court of Appeals in this case by which they permitted the plaintiff to discontinue his appeal in that court upon the payment of two bills of costs.

From these considerations it follows that the order appealed from should be modified in the particulars named in this opinion, and in all other respects affirmed.

Dwight, J., concurred; Barker, P. J., not sitting.

Order modified as indicated in the opinion of Macomber, J.


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    HENRY GATES, Appellant, v. LEVI G. HENDRICK, Respondent.

      Contract to clear land — within what time it must be clearred.

    In an action brought to recover damages for the non-performance of a written contract to clear five acres of land, and for the loss of the use of such land, it appeared that the contract, which was for the sale by the defendant Hendrick to the plaintiff Gates of four acres of land, was dated August 14, 1882, and provided as follows: “ Gates further agrees to lease the said land bought of Hendrick, together with that he now owns which is cleared, or Hendrick may clear, lying to the north of the same, being part of twenty-five acres, for four years from April first next, at forty dollars per annum, payable annually. Hendrick is to pay also all taxes assessed against said land. Said Hendrick also agrees to clear five acres adjoining the land now cleared.”

      Held, that the defendant had four years from the 1st day of April, 1883, in which to perform his part of the agreement for the 'clearing of the five acres of land, for the alleged failure to perform which this action was brought.
    Appeal by tbe plaintiff, from a judgment entered in Wayne' •county, September 1, 1888,' on tbe report of a referee dismissing tbe plaintiff’s complaint.

      Jacob B. Decher, for tbe appellant.

      BrmTc & Joiner, for tbe respondent.
   Macomber, J.:

This action was brought to recover for tbe non-performance of a written contract to clear five acres of land, and for tbe loss of tbe use of such land.

Tbe answer sets up tbe defense that tbe action was prematurely brought. It was begun on tbe 25th day of January, 188J. Tbe contract was dated tbe 14th day of August, 1882, and provided that tbe defendant should sella part of tbe south fifty acres of land, on which be then resided, lying north of tbe highway, being about four acres of land, for which tbe plaintiff was to pay him $100 per acre. After certain other provisions not necessary to mention in detail tbe contract provides: “ Gates further agrees to lease tbe said land bought of Hendrick, together with that be now owns, which is cleared, or Hendrick may clear lying to tbe north of tbe same, being part of twenty-five acres, for four years from April first next at forty dollars per annum, payable annually. Hendrick is to pay, also, all taxes assessed against said land. Said Hendrick also agrees to clear five acres adjoining tbe land now cleared. * * * Payment of rent to be made on November first in eacb year.”

By tbe fair construction of tbis instrument, tbe defendant had four years from tbe 1st day of April, 1883, namely, until the 1st-day of April, 1887, in which to perform bis part of tbe agreement for tbe supposed omission to do which tbis action is brought. The defendant bad paid tbe rent reserved, and bad performed all of tbe obligations on bis part save that be bad not completed tbe clearing of tbe five acres in question on the 25th day of January, 1887, when tbis action was begun. Hnder these circumstances, no right of action accrued to the plaintiff for tbe failure to clear tbe woodland until after tbe expiration of tbe time contracted for; hence it follows that tbe action was prematurely brought, and tbe complaint, was properly dismissed by tbe learned referee.

The judgment should, therefore, be affirmed.

Barker, P. J., and Dwight, J., concurred.

Judgment affirmed.