author: Brady, J .:

text:
    JOHN GREGORY, Respondent, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILROAD COMPANY, Appellant.

      Action to recover damages arising from defendant’s negligence —■ evidence of a medical expert cannot be based upon his understanding of the other evidence given in his hearing — hypothetical questions must be asked — he may not testify to the consequences (unless reasonably certain) of the injury — charge as to capitalizing damages.

    In an action, brought to recover damages for personal injuries sustained by the plaintiff in consequence of the defendant’s alleged negligence in allowing a coal-hole to be left open on one of its ferry-boats, into which the plaintiff fell, a physician, called as an expert on behalf of the plaintiff, was asked: “Have you heard all the medical men testify here on this trial giving a description of the nature of the disease with which Gregory (the plaintiff) was afflicted, and the other witnesses as well? A. I have listened to everything that has occurred in this case while being here; I mean while this case was on in court, from Monday until now. Q. From the testimony that you have heard, what do you say was the trouble, or with what was Gregory afflicted, before June 9,1884 (the date of the accident)? ” Also the following question: “ In view of the evidence that was given here on the trial, what was Mr. Gregory suffering from on the 9th of June, 1884? ” These questions related to the condition of the plaintiff’s knee prior to June, 1884, when the cause of action arose against the defendant.

      Held, that such questions were improperly allowed.
    That an opinion, such as was called for by the questions above set forth, must be given in reply to a hypothetical question containing facts which are assumed to have been proved; that it is-not the province of the witness to reconcile and draw inferences from the evidence of other witnesses.
    The witness was also asked: “What is the probable result of such an injury?”

      Held, that the witness was improperly allowed to answer this question; that, to entitle the plaintiff to recover present damages for apprehended future consequences, there must be such a probability of their occurring- as amounts to a reasonable certainty that they will result from the injury; that, as it appeared from the answer given by the witness that a dislocation might take place from time to time unless the limb was well secured, well bandaged; and, furthermore, that there might bo degeneration of the cartilage so that it might not be able to-perform its functions for the reason that it did not receive its natural supply of nutrition; and, further, if operations were not successful, upon a condition of the bones and cartilage described, an amputation of the leg would be necessary, it did not present a case of apprehended future consequences where there was such a degree of probability of their occurring- as amounted to a reasonable certainty that they would result from the injury.
    That an objection to the charge of the court to the jury, which suggested to the jury a capitalization of the plaintiff’s earnings, and that they might give him a sum which would not only be equal to what the earnings had been in previous years, but would be sufficient to support him from year to year, was erroneous, as it would require a payment to be made representing not only the difference-between the annual value of the plaintiff's services before and since the injury, but, in addition, a gross sum sufficient to produce that interest at the legal rate of interest.

      Houston and Texas Railroad Go. v. Rurlce( 9 Am. &Eng. Eailroad Cas., 369) followed.
    Appeal by tlie defendant from a judgment entered, after a trial at tlie New York Circuit before tlie court and a jury, in the office of the clerk of the county of New York on May 3,1886, in favor of the plaintiff for $5,000 recovery and costs, and from an order dated April 29, 1886, denying defendant’s motion to set aside the verdict and for a new trial.

      Charles Steele, for the appellant.

      Chauneey Shaffer and Jaeób Fromme, Jr., for the respondent. ■
   Brady, J .:

This action was brought to recover- damages for personal injuries sustained by the plaintiff in consequence of the defendant’s negligence in allowing a coal-hole on one of its ferry-boats to be left open, into which the plaintiff fell, injuring himself severely. For the purpose of disposing of this appeal it is not necessary to give a detailed statement of facts and circumstances disclosed by the evidence relating thereto. It is sufficient to say that the questions of negligence and contributory negligence were made the subject of evidence and discussion, and were properly submitted to the jury for their determination by the justice presiding at the trial.

The obstacles to the maintenance of the judgment, considered without reference to others urged, are two exceptions to the admission of evidence which seems to have been improperly received.

It appeared upon the trial that the nature of the injury which the plaintiff received by the fall described was the subject of conflicting evidence in reference to which experts entertaining different opinions were examined.

It appeared also upon the trial that the plaintiff had received an injury in the year 1883 affecting his left knee, which was the injured part, .and the question arising thereupon in connection with the accident which formed the subject of this action was, whether the latter caused the displacement of the cartilage in the plaintiff’s left knee, or whether it was due to the first accident, namely, that which occurred in 1883. Upon that subject Dr. Lesser, an expert, was called on behalf of the plaintiff, and the following questions were asked, answers given, objections made and exceptions taken:

Direct-examination by Mr. Fromme :

I heard the testimony of Dr. Abbe. Q. Have you heard all the medical men testify here on this trial, giving a description of the nature of the disease with which Gregory was afflicted, and the other witnesses as well? A. I have listened to everything that has occurred in this case while being here; I mean while this case was on in court, from Monday until now Q. From the testimony that you have heard, what do you say was the trouble, or with what was Gregory afflicted before June 9, 1884? (Objected to as incompetent and irrelevant and improper, and not proper in form; objection overruled; defendant oxcepts.) A. I don’t know whether you refer to the evidence given by the physicians only. Q. By all of them up to June 9, 1884 ? A. I have no positive cause to believe that such a thing as subluxation of the semi-lunar cartilage had existed preceding the accident of June ninth. Q. In view of all the evidence that was given here at the trial, what was Mr. Gregory suffering from on the 9th of June, 1884? (Objected to as incompetent ; objection overruled; defendant excepts.) A. That he was suffering on that day from the subluxation of the semi-lunar cartilage causing synovitis, and all the other symptoms which I have already explained associating the difficulty.”

These questions related to and called for an opinion upon an important issue between the parties, viz., whether the condition of plaintiff’s knee .existed prior to June, 1884, when his cause of action arose against the defendant; whether, in other words, it was not the result of prior accidents which had been proven, and, therefore, not wholly caused by the negligence complained of herein. That such a question as the first one asked, followed by the others, in order to extract an answer to it, was improperly allowed, is established by the cases of Guiterman v. Liverpool Steamship Company (83 N. Y., 358); Strohm v. New York, Lake Erie and Western Railroad Company (96 id., 305); Reynolds v. Robinson (64 id., 589). The rule is well established when an opinion such as is called for by the questions narrated is desired, that it must be upon a hypothetical question containing facts which are assumed to have been proven. It is not the province of the witness to reconcile and draw inferences from the evidence of other witnesses, and which would necessarily allow him to determine what facts were established by the evidence so far as he could recollect it. If the question had been based upon an assumption that certain facts stated were proved, as was done in the case of Uransky v. Dry Dock Railroad Company, decided in this department, and reported in the Daily Register of August 8, 1887, the exception now considered would have been unavailing. (See, also, Brown v. N. Y. C. R. R. Co., 32 N. Y., 598, 602.)

It will have been perceived that the witness was asked, in view of all the evidence given on the trial, “ What was Mr. Gregory suffering from on the 9th of June, 1884 ? ” and this question, as already suggested, is violative of the rules of evidence established by the cases referred to, and the exception was well taken.

■ There is a further exception which is presented in this way :

The plaintiff’s witness, Lester, was then asked: Q. What'is the probable result of such an injury ? A. The possible result? Q. I will amend my question b.y saying, What is the possible result ? A. The possible result is—• £Mr. Shaffer, I will confine it to the probable result.’ ” The witness was then allowed to state as follows : “ That this cartilage can never adhere again to the bone, and that a dislocation may take place from time to time unless well secured ; that is, well bandaged; and even if so, either a slight turn or twist of the leg can dislocate it again. Furthermore, inasmuch as it does not .receive its natural supply of nutrition, we may have degeneration taking place in the cartilage so that it cannot perform its function. From that, if the bone exists without- the cartilage and anchylosis, or rather stiffening of the entire leg, the upper and lower portion of it not being secured, we may have an inflammation of the upper portion of the bone upon which this cartilage is attached, and resulting in caries-necrosis, which, of course, may eventually, if operations are not successful, terminate in requiring the leg to be amputated.”

This was objected to as incompetent, irrelevant and immaterial. The objection was overruled and an exception taken. The exception seems to be sustained by the case of Strohm v. New York, Lake Erie and Western Railroad Company (supra).

The rule is there stated to be that to entitle the plaintiff to recover present damages for apprehended future consequences there must be such a probability of their occurring as amounts to a reasonable certainty that they will result from the injury. In that case Dr. Spitzka, who had personally examined the plaintiff, was asked what were the symptoms related to him and described' in a hypothetical question indicated, to which he answered. And, subsequently, being asked as to the permanency of the condition of the plaintiff, said it was “ very likely ” to be permanent. The further question was then put to him : “ What do you mean by ‘ very likely ? He answered: “ I mean that the boy will always have some remnants of this injury — some reminder of it, great or small. That is certain. How much he will retain I cannot tell, but I think it very likely he will retain.” The witness was interrupted by an objection from the defendant’s counsel to the words “very likely” as entirely too speculative. The court overruled the objection and an exception was taken. The exception was held to be good, the answer of the Avitness being responsive.

An examination of the answer given herein will show it ’to have been speculative and hypothetical, namely, that a dislocation might take place from time to time unless well secured, well bandaged; and, furthermore, that there might be degeneration of the cartilage so that it could not perform its functions, for the reason that it did not receive its natural supply of nutrition; and, further, if operations were not successful upon a condition of tlie bones and cartilage described, an amputation of the leg might be necessary. This does not present a case of apprehended future consequences where there is such a degree of probability of their occurring as amounts to a reasonable certainty that they would result from the injury.

The counsel for the defendants presents another serious objection to the charge of the learned judge in which, in effect, he suggested to the jury a capitalization of the plaintiff’s earnings and to give him a sum which would not only be equal to what they had been in previous years, but would be sufficient to support him from year to year. The question presented by this objection was considered and decided in the case of the Houston and Texas Railroad Company v. Burke (9 Am. & Eng. R. R. Cas., 369.) In that case the court instructed the jury that they might ascertain the value of the plaintiff’s services to himself before the injury and the value of his services since, ascertain the difference and then give such a sum as would, at legal interest, produce a sum equal per annum to that difference; and this was held to be error.

The court said: “ Resulting from the application of that rule, appellant would not only be required to pay the annual difference between the value of appellee’s services before and since the injury, but, in addition, a gross sum sufficient to produce that difference at the legal rate of interest.”

The learned justice in the case at bar, when exception was taken to those suggestions to the jury, said that they were given to them as an illustration. But it is very clear that it was misleading, and the learned counsel for the defendant excepted to the illustration particularly.

It seems to be impossible, with these exceptions thus sustained by well adjudicated cases, to uphold this judgment. This result renders it unnecessary to examine other exceptions which have been taken, some of which seem to be equally formidable as those already considered.

Eor these reasons the judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J., and Daniels, J., concurred.

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


source: Caselaw Access Project

author: Bbady, J.:

license: Public Domain

text:
    ALFRED ELDRIDGE, Plaintiff, v. THE ATLAS STEAMSHIP COMPANY, Defendant.

      Injury to a sailor using a winch machine with unguarded cogs — liability of the steamship company therefor.

    In an action to recover damages for injuries arising from the use hy the plaintiff of a winch machine, the cog-wheels of which were unguarded, it appeared that the plaintiff had shipped on board the defendant’s vessel, and having been ordered to use the machine necessarily in using it extended his hand over the unguarded cog-wheels by which the injury was occasioned.

      Held, that as he could not refuse, without danger of punishment, to wort the winch, when commanded to do so, his exposure was not a voluntary one on his part. That, whether he was guilty of contributory negligence or not, in view of his ignorance of the character of the winch, whether safe or dangerous when he accepted employment, and of his compulsory service at a dangerous machine resulting from the peculiar character of his contract and its duties and obligations, and of the defendant’s apparent negligence in leaving the winch uncovered, was a question for the jury.
    Motion by tbe plaintiff for a new trial, upon exceptions ordered to be beard in tbe first instance at tbe General Term, after a trial at tbe New York Circuit, before tbe court and a jury, on May 22, 1888. v

      Ohauncey Shaffer and Jacob Fr omine, for tbe plaintiff.

      La/wrence GocCkin, for tbe defendant.
   Bbady, J.:

Tbis action was brought to recover for personal injuries sustained by tbe plaintiff by reason of tbe alleged negligence of tbe defendant.

Hpon tbe trial tbe complaint was dismissed and tbe exceptions directed to be beard in tbe first instance at tbe General Term. It appeared that on tbe 9th of November, 1886, tbe plaintiff shipped on tbe Alvena as an able-bodied seaman, and went on board the ship on the morning of tbe tenth. Tbe vessel was bound from New York to Kingston. There were on board three winches, machines for tbe purpose of removing tbe cargo. In winches Nos. 1 and 2 tbe cog-wheels were covered, and, therefore, guarded. They were not in No. 3, and, therefore, were unguarded. In using tbe machine it was necessary for tbe man attending it to extend bis hand over the cogs to reach a lever which was a necessary working part of the machine.

On the twenty-third of November’, the Alvena, then at Aspinwall, was hauled along side of the Athos to ship its cargo to that vessel. The plaintiff was ordered by the chief officer to drive winch No. 3, although it was not covered, as we have seen, and, therefore, in a dangerous condition. "When the plaintiff boarded the Alvena he knew nothing of the construction of the vessel, or of her winches, and never was on board of her before. Whilst working the winch he had to reach over the cogs to get the lever to reverse, and at the same time was compelled to shut off the steam and look for the signal from the commanding officer and come back, and while thus engaged his left hand was caught in the cogs and thlee of his fingers cut off. All the winches on the vessel (except No. 3) were guarded by a cover, as already suggested, which was permanent, screwed down, the object of which wa,s to protect the hand from being injured by the cogs.

The plaintiff having shipped on board the vessel was bound to obey orders, and could not refuse, without danger of punishment, to work the winch as commanded. TIis exposure was not, therefore, voluntary, except so far as that might be inferred from his shipping as a seaman on board the vessel. And herein lies the plaintiff’s right of action if any exist under the authorities.

It seems to be well settled that the defendant is not bound to supply a machine which is absolutely safe or which contains the latest improvements, and that an employee in accepting service with a knowledge of the character of the machine the dangers of which are apparent, assumes the risk incident to the employment and cannot call upon the defendant to make alterations to secure greater safety, or recover for injuries arising from service under such conditions. (Hickey v. Taaffe, 105 N. Y., 26; Gibson v. Erie, 63 id., 449; Buckle v. G. P. and R. M. Co., 113 id., 540.) But in those cases the employment was upon the machine directly, which was seen at the time of the employment, and, therefore, apparent and its defects and dangers visible. But here the defendant shipped without any knowledge whatever of the character of these .winches, and his obligations were such that a refusal to work them when commanded would necessarily, involve serious consequences to him lie was bound to obey orders which were lawful, that is not mala per se or mala prohibita, and for a refusal would have forfeited his wages or be punished. (1 Pars. on Maritime Law, 466; U. S. R. S. [2d ed., 1878], § 4596, p. 890.)

The general rule, as stated in Sweeney v. Berlin, etc., Co. (101 N. Y., 524), is that the servant accepts the service subject to the risks incidental to it, and where the machinery and implements of the employer’s business are at that time of a certain kind and condition, and the servant lenows it, he can make no claim upon the master for other or different safeguards Under such circumstances, the servant is regarded as voluntarily taking the risks resulting from the use of the machinery, unless the master.1 by urging on the servant, or coercing him into danger, or in some other way, directly contributes to the injury.

Under the facts disclosed the plaintiff had no alternative but to obey; and whether he was guilty of contributory negligence or not, particularly when it is considered that the other winches were covered .and the workmen protected from injury, if, indeed, that question is at all presented in this case, was one at least for the jury to determine. This view is predicate of the ignorance of the plaintiff of the character of the winches, whether safe or dangerous when he accepted employment, and his compulsory service at a dangerous machine resulting from the peculiar character of his contract and its duties and obligations, and of the defendant’s apparent negligence in leaving the winch uncovered, a precaution, the utility and necessity of which seems to have been conceded by the use of the covering on similiar machines on board the same vessel.

"We think that there must be a new trial, with costs to plaintiff to abide the event.

Daniels, <L, concurred; Yan Brunt, P. J., concurred in result.

New trial granted, with costs to the plaintiff to abide event.


author: Macomber, J.:

text:
    GEORGE MUNRO, Appellant, v. ERASTUS E. BEADLE and WILLIAM ADAMS, Respondents.

      Trade-mao-k of “ Sleuth” by a publisher — what a sufficient adoption thereof — what constitutes an infringement thereof.

    In an action, brought to enjoin the use of a trade-mark by the plaintiff, the publisher of a series of works of fiction known as “The Old Sleuth Library,” it appeared that the first publication in 1872, and again in 1880, and again in 1885, was called “ Old Sleuth, the Detective of the Bay Ridge Mystery, by Old Sleuth.” Several other publications followed, in the title of which the words “ Old Sleuth” occurred. In the years 1885, 1887 and 1888, the defendants published, as a part of Beadle’s Dime Library, stories entitled “Captain Coldgrip, the City Sleuth, or the Coolest Woman in New York,” and “California Sleuth, or the Trail of the Gold Grandee;” “ The Silent Sleuth, or the Bogus Nephew,” and other works in which the word “ Sleuth ” was used.
    Up to the time of the adoption of the name “ Sleuth,” or “ Old Sleuth,” by the plaintiff, it had not been applied to a work of fiction or to indicate the name of a publication.

      Held,, that the adoption of this word by the plaintiff satisfied all the requirements of the law governing common-law trade-marks.
    That, by its adoption and use, the plaintiff acquired in it a certain property right which was entirely independent of the statute laws pertaining to copyright, and in which he was entitled to bo protected.
    That the defendants had infringed upon this trade-mark of the plaintiff by the ' úse which they had made of the word “Sleuth” in their publications, in which it was used in such a relation as would be apt to mislead and deceive the class of people for whom such publications were written.
    Appeal by the plaintiff, George Mnnro, from a final judgment, entered, after a trial at a Special Term held in the city of New York, in the office of the clerk of the county of New York on the 11th day of October, 1888, by which judgment the plaintiff’s complaint was dismissed, with costs.
    The action was brought to enjoin the use of a trade-mark claimed by the plaintiff to be a part of the good will of his business.
    The plaintiff is a publisher of a series of works of fiction known as the Old Sleuth Library. ■ The first publication was called Old Sleuth, the Detective, or the Bay Ridge Mystery, by Old Sleuth. This was first published in 1872, and again in 1880, and still again in 1885. Another work is entitled Old Sleuth’s Triumph, by Old Sleuth ; first half. Another is Old Sleuth’s Triumph ; second half. Another, which was published was copyrighted in 1875, and republisted in 1885, and is called Old Sleuth in the Harness Again; or Four Noted Detectives Unveiling the Mystery ; by Old Sleuth.
    The defendants are publishers of Beadle’s Dime Library, so-called. In the years 1885, 1887 and 1888 they published, as a part of such library, stories entitled as follows: Captain Coldgrip, the City Sleuth, or the Coolest Woman in New York. The California Sleuth, or the Trail of the Gold Grandee. The Silent Sleuth, or the Bogus Nephew. Old Buckeye, the Sierra Sleuth, or Against Desperate Odds. Kelly, Hickey and Co., the Sleuths of Philadelphia, consisting of four detectives by the names of Kelly, Hickey, Wheeler and Sewer Sam. .Another entitled Deep Duke, the Silent Sleuth, or The Man of Two Lives. The Young Sleuths, or Rollicking Mike’s Hot Trail. Crowningshield, the Sleuth, or Pitiless as Death, and Broadway Billy’s Death Racket, or The Silent Street Sleuth’s Wake.

      Roger Foster, for the appellant

      Rowland Cox, for the respondents.
   Macomber, J.:

The Old Sleuth Library, which is a serial, contains stories first published in the Fireside Companion, mainly devoted to the description of the feats of a detective known as Old Sleuth, of all of which one Harlan P. Halsey is the author.

Up to the time of the adoption by the plaintiff of the name Sleuth, or Old Sleuth, as applied to a character in any of the works of fiction, or as indicative of the name of the publication issued by him, that word was not in common use, even if it existed as an established substantive. The word sleuth ” or “ sleuth-hound ” does not appear in the first edition of Webster’s Unabridged Dictionary, or in any edition of Worcester until after 1880, and then only in the supplement thereto. Its derivation is probably Icelandic, or, at least, northern, and comes from the word slot, which was used in Scotland and the northern countries to indicate, primarily, a track in the snow, and afterwards a track in 'the earth as well. It did not find its way into the English dictionaries until very recently, and there' is said to be pronounced as though spelled s-l-o-t-h. When detached from the word hound,” to which it is commonly prefixed, it means the track of an animal as the same may be known by the scent.

The adoption of this word by the plaintiff seems to satisfy all of the requirements made by the law governing common-law trademarks, as determined by the case of Selchow v. Baker (93 N. Y., 59), which, among the numerous and varied cases upon the subject generlly, is perhaps the most instructive for determining the question immediately before us. Even if the word sleuth was not new, that is to say, coined by the plaintiff, it certainly- was not in common use at the time of its adoption by him as the name of his publication or library. The plaintiff was the first one to use it as applied to his own publication. Of this there is no dispute. It answers the purpose of distinguishing the plaintiff’s works from those of all others. It is not descriptive of the subject-matter of the manufacture or publication. It has no relation to the grade or quality of the novel. It was originally a fanciful and arbitrary word to indicate the publications of the plaintiff alone. By its adoption and use, the plaintiff acquired in it a certain property right which is entirely independent of the statute laws pertaining to copyright, and should be protected.

Tt is plain that the defendants have infringed the trade-mark of the plaintiff by the dexterous use which they have made of the word Sleuth in the publications, the names of which are above • recited. Any imitation of the name of the plaintiff’s publication which tends to mislead the reading public would be an infringement, although the imitation was inexact. The circumstance that the defendants do not say that their serial publications are composed of numbers of the Old Sleuth Library, and fail to call it Old Sleuth, or the Sleuth Library, is unimportant, provided they have used the word Sleuth, or Old Sleuth, in such a relation as would be apt to mislead and deceive the class of people for whom such publications were written. That such is the effect of their acts is quite clearly established by the evidence. Happily no point is made by considerate counsel which requires us to look into the matter of these several publications.

The judgment should be reversed and new trial granted, with costs to the appellant to abide the event. .

Tan Brunt, P. L, concurred; Bartlett, J., concurred in result.

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


author: Daniels, J.: Barrett, J.: Van Brunt, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. JAMES C. DUANE, Defendant.

      Aqueduct commissioner — appointment of, under chapter 584, Lanes of 1888 — reiiredU. S. a/rmy officer, eligible — United States Revised Statutes, secs. 1094,1259.
    Under the provisions of chapter 584 of the Laws of 1888, relating to the appointment by the mayor of the city of New York of aqueduct commissioners, who “ shall hold no other federal, State or municipal office, except the office of notary public or commissioner of deeds,” an officer in the United States army, who, having attained the age of sixty-four years, has been retired from active service under the provisions of the act of congress, is eligible to appointment as an aqueduct commissioner.
    While, under section 1094 of the Revised Statutes of the United States, the army, in part, is made to consist of “the officers of the army on the retired list,” and the defendant was nominally an officer of the army, yet as, under the act (chap. 584 of 1888), it is not declared that no officer, Federal, State or municipal, shall be appointed an aqueduct commissioner, but oiily that the person so appointed shall hold no other Federal, State or municipal office, a mere officer of the army, not, in fact, holding an office, is not ineligible for appointment by the mayor as an aqueduct commissioner. (Van Brunt, P. J., dissenting.)
    The eligibility to appointment as an officer of the Soldiers’ Home, Under section 1259 of the United States Revised Statutes, does not render such officer ineligible to the position of aqueduct commissioner.

      United States v. Tyler (105 U. S., 244) distinguished.
    Controversy submitted without action under section 1279 of the Code of Civil Procedure.
    From the submission it appeared that J ames O. Duane was, in the year 1886, appointed by the president of the United States, by and with the advice and consent of the Senate of the United States, to the office of chief of engineers, United States army, with the rant of brigadier-general. The office of chief of engineers of the United States army is an office of distinct, peculiar and manifold duties. On June 30, 1888, James C. Duane was retired from active service by operation of law under the provisions of the Act of, Congress of June 30, 1882, and pursuant to that act a special order was issued on that day by the secretary of war announcing General Duane’s retirement. His successor in the office of chief of engineers, United States army, was subsequently appointed by the president, by and with the advice and consent, of the Senate of the United States. James O. Duane thereupon became and thereafter continued to be one of the officers of the army, on the retired list, of the class of men mentioned in section 1091 of the Revised Statutes of the United States, one of the classes of which the army of the United States is composed. As such retired officer, under section 1259 of the Revised Statutes of the United States, he might be assigned to duty at the Soldiers’ Home upon a selection by the commissioners of that institution approved by the secretary of war.

      Charles F, Tabor, attorney-general, and D. J. Deem, for the plaintiff.

      James C. Carter and Edward Winslow Paige, for the defendant.
   Daniels, J.:

In August, 1888, the defendant was appointed by the mayor of the city of New York to be one of the aqueduct commissioners under chapter 581 of the Laws of 1888, and he entered upon the discharge of the duties of that office and has acted as such since that time. Prior to his appointment, and in the year 1886, he was appointed by the president of the United States, by and with the advice and consent of the senate, to the office of Chief of Engineers in the United States army, with the rank of brigadier-general. In June, 1888, he attained the age of sixty-four years, and on the thirtieth of that month he was retired from active service under the provisions of an Act of Congress approved in 1882. He then left the city of Washington, his previous residence, and removed to the city of New York, and has since that time performed no service for the United States, and has in no manner exercised the functions or discharged the duties of that office. But on the 6th of July, 1888, the President of the United States, by and with the advice and consent of the senate, appointed another person to the office of Chief of Engineers in the United States army, with the rank of brigadier-general. He entered upon the discharge of the duties of that office and still continues to discharge the same. And there is but one Chief of Engineers in the United States army, and but one brigadier-general in the corps of engineers in the army, and there has'been but one since the year 1885. What the defendant has done since his retirement is to draw three-fourths of his preceding salary as a retired officer of the United States army. And as such officer he has been entitled to wear the uniform of the rank on which he was retired, and his name has continued to be borne on the army register, subject to the rules and articles of war, and to trial by court martial for any breach thereof. And in support of the plaintiff’s case it is affirmed that it has been established by these facts that he was ineligible for appointment to the office of aqueduct commissioner under section 1 of chapter 584 of the Laws of 1888, on the ground that he held a federal office.

By this act the mayor, the comptroller, and commissioner of public works, and four competent persons who should be appointed by the mayor, were directed to carry out the provisions of the act, and were to be known as the Aqueduct Commissioners. And it is provided in the act that the four commissioners to be appointed by the mayor shall hold no other Federal, State or municipal office, except the office of notary public or-commissioner of deeds.” By section 1094 of the Bevised Statutes of the United States the army, in part, is made to consist of “ the officers of the army on the retired list.” And from this, as well as other sections of the statute to be hereafter referred to, it is plain that the defendant was nominally an officer of the army at the time of his appointment by the mayor to the office in question. But it does not follow from the circumstance alone that he remained after the fact of his retirement, an officer of the army, that he was ineligible for the appointment made by the mayor, for the act has not declared that no officer, Federal, State or municipal, etc., should be appointed an aqueduct commissioner. It has done no more than to declare that the person shall hold no other Federal, State or municipal office, etc. And the case, accordingly, cannot be maintained upon the fact that he remained an officer of the army after his retirement, but to justify that result it must appear that he held another office. If a mere officer of this, or any other description, not, in fact, holding an office, was intended to be rendered ineligible for the appointment by the mayor, the language employed to express that intention would have been differently selected. The act would necessarily have been broader in the statement of this prohibition. What was intended by the legislature was that no person holding another office should be eligible for the position of aqueduct commissioner, for the reason that the incumbent of another office would necessarily have his time and attention, to a certain extent, at least, diverted from the office to which this appointment has been made. And it was evidently the policy of the law that no person should be selected by the mayor having other duties to perform preventing him from giving his sole and undivided attention to those of aqueduct commissioner. The simple position of being an officer, without at the same time being invested with the functions of an office and having official duties to perform, would in no manner interfere with the full and compílete discharge of the duties of aqueduct commissioner. And for that reason would not be within the intent or spirit, of the act of 1888. That act has required, to render the individual ineligible, not merely that he shall be an officer as the defendant was after his retirement, but that he shall hold some other office excepit that of notary piublic or commissioner of deeds. And to hold an .office is to be vested with the power and duty “ to execute a public or pirivate trust, and to take the emoluments belonging to it.” (3 Kent [7th ed.], 560.) And that has been repieatedly sanctioned and maintained by the decisions of the courts. In Smith v. Mayor, etc. (37 N. Y., 518), it was said that “ an office is sinxply an appointment or authority on behalf of the government to pierform certain duties usually at and for a certain compensation.” (Id., 520.) And in People ex rel. Washington v. Nichols (52 N. Y., 478) this was again, but not in the pirecise language, repeated by the court. For an office was there defined to be “ an employment on behalf of the government in any station or piublic trust, not merely transient, occasional or incidental.” (Id., 484, 485.) And this definition of an office was approved of and sanctioned in United States v. Hartwell (6 Wall., 385). It was there said that an office is a public station or employment conferred by the appointment of government. The term embraces the ideas of tenure, duration, emolument and duties.” (Id., 393.)

This, however, was not the condition of the defendant at the time when he was appiointed an aqueduct commissioner, for he had been retired from active service as an officer of the United States army. This was done under section 1244 of the United States Revised Statutes, as it was changed as to age by chapiter 254, Laws 1882 (22 U. S. St. at Large, 118), declaring when an officer has attained the age of sixty-four years he may be retired from active service at the discretion of the president. And by section 1254 of the same statute is has been further declared that officers retired from active service shall be retired upon the actual rank held by them at the time of retirement. And by the riext section that officers retired from active service should be withdrawn from command and from the line of promotion. And when so retired from active service it is declared by section 1257, that “ the next officer in rank shall be promoted to his place, according to the established rules of the service.” And by section 1259 it is further enacted that “retired officers of the army' may be assigned to duty at the Soldiers5 Home, upon a selection by the commissioners of that institution, approved by the secretary of war. and a retired officer shall not be assignable to any other duty.” Beyond that, the officer upon his own application may also be detailed to serve as professor in any college. These latter provisions are without special importance in this case, for. the defendant at no time has either applied for or been selected to serve as professor in any college. Neither has lie been asssigned to duty at the Soldiers’ Home. Nor could he have been, as the offices of that institution has' been filled by other persons since his retirement. By section 4816 of the United States Revised Statutes it has been declared that the officers of the Soldiers’ Home shall consist of a governor, deputy governor, a secretary for each separate site of the home, the latter also to be its treasurer. And that these officers should be taken from the army and appointed or removed from time to time as the interests of the institution may require, by the secretary of war, on the recommendation of the board of commissioners. These provisions no further affected the defendant than to render him eligible to one of these appointments. But this mere eligibility is far from holding another office, which alone renders a person ineligible for appointment to the office of aqueduct commissioner. And by the other sections of the Revised Statutes which have been referred to, it is quite evident that the retired officer is deprived of all the functions of the office previously held by him, and divested of all its authority, and wholly discharged from the performance of all its duties. For it has been declared, not only that he shall be withdrawn from command and from the line of promotion, but, in addition to that, he shall not be assignable to any other duty than that to which he may be assigned at the Soldiers’ Home upon the selection of the commissioners of that institution approved by the Secretary of War. In this condition, as the law has prescribed and defined it? he, in fact, held no office in the army of the United States. He had no duties to perform, no authority whatever to exercise beyond that of drawing his salary, to which the laws entitled him as a retired officey. Permitting him to wear the uniform of the rank on which he was retired, or his name to be retained upon the army register, subjecting him to the rules and articles of war and to trial by general court-martial for any' breach of them, invested him with no power or authority, and prescribed no duty for him as an officer, but simply regulated his conduct with the rules prescribed for that purpose by the articles of war. While, by this and other provisions which have been referred to, he did remain an officer in the army, yet it is clear that he held no office. The only office he did hold before his retirement was that of Chief of Engineers of the United States army. There was but one such office. And his retirement, according to section 125Y of the United States Revised Statutes, not only vacated this office, but left the office to be at once disposed of by a succeeding appointment which was required to be made by the selection for it of the officer next in rank to the defendant. From the time of the selection of this officer for the office, it was he, and not the defendant, that held the office, as the term office has been defined by the authorities already referred to. Both this appointee and the defendant could not at the same time hold or occupy' the same office. Neither could the appointment which was made to it after the defendant’s retirement be made unless the office itself had been vacated by that retirement. When he retired he ceased to hold the office, and his successor afterwards appointed to it, which appointment took place prior to the selection of the defendant as aqueduct commissioner, was the only person who held this office.

The case of United States v. Tyler (105 U. S., 244) is in no manner in conflict with this result of the statutory enactments which have already been mentioned. For there the simple question was whether a retired officer was still in the military service of the United States so as to become entitled to the ten per cent mentioned and allowed in sections 1262 and 1268 of the Revised Statutes. And it was held that he was. But it was an obvious oversight to say, as was said in the case, that a retired officer might still be assigned after his retirement to such duty as the laws and regulations permitted. For the reason that the statute, in express words, has declared that a retired officer shall not be assignable to any other duty than those of an officer of the Soldiers’ Home after he has been actually selected for that purpose, with the approval of the Secretary of War. The case of Badeau v. United States (130 U. S., 439) in no way affects the eligibility of the defendant for the office of aqueduct commissioner. The facts upon which it proceeded were entirely different from those now presented, and its disposition depended upon other statutory enactments by Congress. And equally as inapplicable Matter of Tyler (18 Court of Claims, 25), for it was decided upon the disability attaching to the officer himself under section 5498 of the United States Eevised Statutes, and not upon the fact of his being the incumbent or holder of an office.

It may be somewhat anomalous to designate a person as an officer who, in fact, has no office, but that seems to be the result of the Congressional enactments on this subject. For the officer retired from active service is still retained as an officer of the army, but deprived of all the authority, powers and duties appertaining to his office. And so completely has this been declared to be the effect of his retirement that he is thereby withdrawn from his command, and is assignable to no other duty than that of an officer of the Soldiers’ Home upon his proper selection for that purpose, and his office is so effectually vacated that liis successor is required to be promoted to his place. And that successor was, in fact, actually selected and invested with the office upon the defendant’s retirement. And it follows from these provisions of the statute, and also from the accepted definition and description of an office by the authorities, that when the defendant’s appointment to the office of aqueduct commissioner toolc place he did not hold any other office, Federal, State or municipal. And the result is that judgment should be directed in his favor, with costs.

Barrett, J.:

There is no doubt that General Duane is still in the military service of the United States. His connection with the army continues, and although, he is relieved from present duty, Congress may at any time recall him to active service. Still his position is very much that of a public servant who has been retired upon a pension. His reduced pay is given as a reward for past services; and he is kept nominally in the army not with a view to actual duty, but that he may be under control and discipline. Thus the enjoyment of what amounts to a pension is made to depend upon continuous good behavior. For he is still in the service and can be dismissed from such service for conduct unbecoming an officer and a gentleman. Clearly, then, he is still an officer, though retired from active service, and as such distinguished by the Federal statutes, in several important’ particulars, from officers wholly retired from the service. The question here, however, is not (as it was in United States v. Tyler, 105 U. S., 244), whether he is nominally in the military service and entitled as such to what is called longevity pay, but whether he holds a Federal office within the letter or spirit of chapter 584 of the Laws of 1888.

The question is a close one, out, upon full consideration, I am inclined, though not without hesitation, to agree with Mr. Justice Daniels. If the letter of the act of 1888, as earnestly contended for by the people, is to govern, I agree that there is only one federal office in question, and that that office is held, not by General Duane, but by his successor, General Casey. General Duane is simply an officer without an office — so declared by law. But I cannot think that the spirit of the act and the mischiefs aimed at are to be ignored. Nor should the rule of strict construction with regard to disqualifying statutes be disregarded. Looked at from these points of view, we cannot give this act a construction so narrow as to deprive the city of some of the best engineering service at its command. Nor can we ascribe such an intention to the legislature. The real object of the provision under consideration was doubtless to prevent the holding of two distinct offices by one person, and to require the appointment to these commissionerships of men who would give their undivided attention to the duties of the position.

General Duane’s situation under the Federal statutes is such that he can give his whole time and attention to the aqueduct service as fully and freely as though he was not borne upon the army register. He may possibly, it is true, be assigned to duty at the Soldiers’ Home, and such assignment may be independent of his will. So, possibly, he may be assigned to active duty by Congress. But he has not been assigned to any such duty. When he is, it will be time enough to say to him — you now hold a federal office which is incompatible with the exclusive service due to the municipality. Even the duty to be performed at the Soldiers’ Home would be, in a certain sense, the holding of a new and independent office. For the only duty to be performed at the Home is the holding there of one of three offices— governor, deputy governor or secretary; and while such duty is called for by the military status, it is not a strictly military duty.

The essence of office is duty, and while a person may be retained in a military or governmental system as a legal appendage, either as an honor to the individual or for some special purpose of control, yet he cannot be said to hold an office, in any genuine or vital sense, when there is no duty attached to the situation and the officer is required to render no service.

My best judgment upon the whole is, that the federal office contemplated by the act of 1888 is an office to which there is attached some active duty, the performance of which might interfere with the adequate discharge of the holder’s duty to the municipality.

Van Brunt, P. J.

(dissenting):

I cannot concur in the conclusions arrived at by Mr. Justice Daniels and Mr. Justice Barrett. It seems to me that the United States statutes and the decisions of the United States Supreme Court should be conclusive as to the status of a person who because of his official position is drawing a salary from the treasury of the Federal government.

The Bevised Statutes of the United States (§ 1094), expressly declare that the defendant is a part of the army of the United States because he holds a commission as an officer of the army on the retired list.

The United States Supreme Court, in the case of United States v. Tyler (105 U. S., 245), expressly held that officers on the retired list still remain in the military service of the United States, and-because they are still in such service are entitled to the longevity pay allowed by section 1262 of the Bevised Statutes of the United States. The defendant holding a commission as an officer in the army of the United States, and being still in the military service, and being entitled to pay from the Federal treasury because he holds such commission and is in such service, certainly holds a Federal office just as much as he would if he had never been retired. The contrary view repeals the statute and reverses the decision of the Supreme Court of the United States it seems to me. Furthermore, the Consolidation Act (Laws 1882, chap. 410, § 55) provides as follows:

“Any person holding office, whether by election or appointment, who shall, during his term of office, accept, hold or retain any other civil office of honor,, trust, or emolument, under the government of the United States (except commissioners for the taking of bail, or register of any court) or of the State (except the office of notary public or commissioner of deeds, or officer of the national guard) or who shall hold or accept any other office connected with the government of the city of New York, or who shall accept a seat in the legislature, shall be deemed thereby, to have vacated every office held by him under the city government.”

Under this statute officers of the army of the United States on the retired list or otherwise could be employed by the city government because they hold no civil office, the office which they did hold being a military one, and not a civil one.

The language of the act whereby the aqueduct commissioners were appointed is strikingly different, and it provides that such commissioners and their successors shall hold no other Federal, State or municipal office except the office of notary public or commissioner of deeds. Not no other civil office as in the Consolidation Act, but no other office whatever, civil or military. It would seem that the legislature intended that an aqueduct commissioner should have no, connection whatever with the Federal, State or municipal government except such as arose from the office as Aqueduct Commissioner.

The defendant, therefore, being an officer in the army of the United States, and entitled to pay as such, and being in the military service of the United States, as determined by the United States Supreme Court, was not eligible to the office of Aqueduct Commissioner.

Judgment directed in favor of the defendant, with costs.


author: Daniels, J.:

text:
    MARY HOTALING and CLARENCE PETERS v. HARRIET ANN MARSH and Others.

      Will — gift to any grandchild, born after the division of the estate, from the remainder after the expiration of a life estate — preference of an after-born grandchild over the other grandehildren.whohad sha/i'ed in the estate upon its division.

    A testator by bis will, among other things, provided: “ Of all my other estate, whether real or personal, held by me, or in trust for me, at the time of my death, it is my wish that my executors dispose of the same or put it in a shape to divide among my grandchildren so that each may receive their share on becoming of age. * * * It may so happen that my daughter, Harriet Ann, may live to have other children after my death, and after my executors may have divided my estate; in that case it is my wish that they come in and share in the estate left my wife after her death, in preference to the others, so that all my grandchildren may eventually, as near as may be, receive'the same amount.”
    The testator left his widow, one daughter and grandchildren surviving him.
    Two successive actions for partition and sale of the real estate, of which the testator died seized, were brought and judgments were obtained in each and. certain of the lands were sold.
    The widow, to whom a portion of the proceeds of sale of this properly had been set off for life in lieu of dower, subsequently died, and thereafter a petition was presented by a grandchild of the testator, who was born to his daughter Harriet Ann, after the judgment had been recovered in each of the actions in partition, and also after an action had been brought and decided in a suit instituted by the executors for the purpose of obtaining a construction of the will of the testator, for an order making her a party to the first action in partition, and providing for the payment to her of such sum as she should be entitled to out of the moneys which had been in such action paid into court for the benefit of the widow during her life.

      Held, that it was the evident intention of the will that this grandchild, born of his daughter, Harriet Ann Marsh, before the final distribution of his estate, should have an equal proportional part of this money with the other grandchildren of the testator, and participate equally with them in its distributioh.
    That an objection that this grandchild did not become entitled to share equally with the others in the final distribution of the estate, for the reason that she was born prior to the time when the executors had, under the decree of the surrogate, divided so much of the estate as was under their control, although based upon a literal reading of the will, could not be maintained, as it was not to be supposed that the testator intended that her right to this equality should be made dependent ilpon her birth taking place after the division of the estate by the executors.
    In the action brought to procure a construction of the will, it was adjudged “ that no child born to said Harriet Marsh after the said Clarence did arrive at lawful age, will be entitled to any share in said residuary estate.” Clarence was a grandson wlio attained his majority within a few months after the decease of the testator.

      Reid, that, as this judgment was rendered long before the birth of the grandchild of Harriet Ann Marsh, the petitioner, and made no provision whatever for that event, or the protection of her possible interest in the estate under the will of the testator, it could not be operative upon her.
    That, for the same reason, if the judgment in the first action for partition could be construed as intended to exclude her from participation in the proceeds of the property of the estate, by binding her to a literal observance of the testator’s directions, it could not be permitted to be attended with that result.

      Brewort v. Brewort (70 N. Y., 136) not followed; Mona/rque v. Monan'que (80 id., 320) followed.
    The surrogate did not directly adjudge that the grandchild, the petitioner, was entitled to no part of the moneys then to be distributed, but he directed such a distribution to be made as excluded her from a share of these moneys.

      Reid, that this direction of the surrogate did not prevent the petitioner from receiving the full share of the testator’s estate as it was intended to be given by the will.
    That, as the effect of the surrogate’s decree, as well as of the judgment rendered in the action brought by the executors for the construction of the will, had been to devote her proportionate part of the other funds of the estate to the benefit of the other grandchildren of the testator, the petitioner was entitled to be placed in their position, as to the fund still remaining, for the reimbursement to her of the amount of her share in this manner used and appropriated.
    Appeal by Clarence Peters and Abbie Simpkins, from, orders entered in the office of the clerk of the county of New York, directing the distribution of moneys arising under the will of Abel S. Peters, deceased.

      WilUann II Atwood, and Charles S. Simpkins, for the appellants.

      John C. Quliek, guardian, etc., and Yalentvne Ma/rsh, for the respondents.
   Daniels, J.:

This action was brought in the year 1859, to partition four parcels or lots of land previously owned by Abel S. Peters, deceased. He died on the létli of May, 1859, having made and executed a will for the disposition of his entire estate. This will was proved and admitted to probate before the surrogate of the city and county of JSew York in September, 1859. The testator left his widow, one daughter and grandchilden surviving him. And after providing for the payment of his debts and funeral expenses, he devised to his widow for life one-third of the proceeds of bonds and mortgages, in which were directed to be invested the moneys obtained from these four parcels of land. He also bequeathed to her, in her own right, certain articles’ of personal property. One-half of the remaining two-thirds he bequeathed to. his daughter Harriet A. Marsh, and the other third in’equal parts to his two daughters-in-law and their heirs. The widow declined to accept the provision in this manner made for her by the will, and this action was brought by two of the grandchildren for the partition and sale of this property. And a judgment to that effect was recovered in the action, and three of the lots were sold, and one-third of the proceeds was deposited in court for the benefit of the widow as doweress in her husband’s estate.

After that it was discovered that the testator died seized of other parcels of real estate. And a further action was commenced by Yalentine Marsh, who was one of the grandchildren, for the partition and sale of that property. This action resulted, as the other had, in a judgment to that effect, and the property was sold. And as the widow appears to have declined to accept a gross sum in lieu of her dower in the property, one-third of the proceeds was directed to be, and was, brought into court to be held during her life for her benefit. And during her life she had the benefit of these and other small amounts of money as doweress in this estate. ■

She died on the 24th of September, 1887. And in November, 1887, a petition was presented by Grace S. Marsh, who is a grandchild of the testator, for an order making her a party to the first action in partition, and providing for the payment to or for her of such sum as she would be entitled to out of the moneys in this manner brought into court for the benefit of the widow during her life. The petitioner was born on the 30th of January, 1870, after the judgments had been recovered in' each one of the actions in partition ; and also after an action had been brought and determined in a suit by the executors for the construction of the will of the testator. An order was made upon her petition making her a party to the first action in partition, and appointing a guardian ad litem to protect her interests. ' A reference was thereupon ordered to a referee to take proof and report as to the extent of her interest in the moneys in this manner brought into court and still subject to its order. He reported the petitioner to be entitled to an equal proportionate part of these moneys with the other grandchildren of the testator. Hpon the application made to confirm the report, and upon the hearing of exceptions taken to this conclusion, the petitioner was held to be entitled to so much of this fund as would place her upon an equality with the other grandchildren of the testator. They had previously received, or been provided with, their shares of the proceeds of the sales of the real estate, no part of which had been reserved for the petitioner. And her right to be made equal to them in the division of these final funds was denied by the assignee of one of the grandchildren, and at least two of the others.

The part of the will upon which the right of the petitioner to this preference in the distribution of the fund depends, is chiefly contained in its third paragraph. By this paragraph the testator directed:

Of all my other estate, whether real or personal, held by me, or in trust for me, at the time of my death ; it is my wish that my executors dispose of the same or put it in a shape to divide among my grandchildren, so that each may receive their share on becoming of age, for which purpose I hereby authorize them to sell a pai-t or the whole or divide up and hold such part as they may think to the interest of the youngest ones; for instance, the two front and rear houses number one hundred and thirty-four and one hundred thirty-six West thirteenth street, is lease property, and now pays double what the principal would if sold; all of which my said executors shall divide equally, as near as may be, among my grandchildren, viz., the children of my daughter, Harriet Ann Marsh, and the children of my two sons, Milton and Franklin, of the latter is Clarence Peters, Franklin Peters and Harriet Ann Peters, or their survivors, whenever either shall become of age. It may so happen that my daughter Harriet Ann may live to have other children after my death, and after my executors may have divided my estate; in that case it is my wish that they come in and share in the estate left my wife after her death in preference to the others, so that all my grandchildren may eventually as near, as may be, receive the same amount.” It is quite apparent from this language that his intention was that any child or children afterwards born of his daughter, Harriet Ann Marsh, and before the final distribution of his estate, should participate equally with his other grandchildren in that distribution. The petitioner is such a child. She was born after the decease of the testator and before a final disposition or distribution was made of the proceeds and property of his estate' remaining in the hands of the executors. But it has been objected, on the part of the persons resisting her application, that she did not become entitled to share equally with them in the final distribution of the funds and property of the estate now in controversy, for the reason that she was bom prior to the time when the executors had, under a decree of the surrogate, divided so much of the estate as was under their control. But while this is the literal reading of this part of the will, it is not to be supposed that the testator intended that her right to this equality, as it has been now maintained, should be made dependent upon her birth taking place after the division of the estate by the executors.

His leading object and intention, on the contrary, was that all his grandchildren should be made equal in the distribution of the estate, and that this equality should be obtained through its division by the executors or the final distribution of the one-third of the proceeds or property intended to be appropriated for the benefit and use of the widow during her lifetime. She did not consent to the provision which the testator proposed to make for her in lieu of her dower, but elected to take her dower in the property of the estate. And it was provided for in the manner which has already been mentioned.

The judgment in the first action" of partition provided for protecting and maintaining the rights and interests of any child of Harriet A. Marsh, born subsequent to the decease of the testator, but only as that was literally specified by the directions contained in this paragraph of the will; for one-third of the proceeds of the sale of the lands affected by that judgment were directed to be paid into court to the chamberlain, “ to be invested and the interest of the same paid to the said defendant Harriet Peters during her life, and at her death the principal sum so invested to be divided between the said five grandchildren of the testator, or such of them as shall then survive, subject, however, to open and let in to share in the same any children that said Harriet Ann Marsh may have previously liad lawfully born to her after tbe death of said testator, who shall then survive; and provided, also, that if, previously to the birth of' said after-born children, a division of the residuary estate of the said testator shall have been made by his executors between said five grandchildren, or the survivors of them, then said after-born children shall be preferred out of said principal sum to be divided, upon the death of the said Harriet Peters, to the extent, as far as may be, of making them equal with said five grandchildren. But if the said Harriet Peters consent to accept a sum in gross out of said principal sum in lieu of her dower, to be ascertained upon the principles applicable to annuities, then said referee shall pay such gross sum to her upon her executing, acknowledging and delivering to him a release of all her title, right and interest in said premises; the balance of said principal to be invested by said chamberlain and the interest divided equally between the said five grandchildren during the life of said defendant Harriet Peters, and upon her death the same to be equally divided between them and the survivors, subject, however, to open and let in to share in the same any children that said Harriet Ann Marsh may previously have had lawfully born to her after the death of said testator, and who shall then survive; and provided, also, that if, previous to the birth of said after-born children, a division of the residuary estate of the said testator shall have been made by his executors between said five grandchildren, or the survivors of them, then said after-born children shall be preferred out of the said sum so invested to the extent, as far as may be, of making them equal with the said five grandchildren.” But as it literally followed in this respect the language of this .part of the will, it' has been resisted as inoperative in this action. But this direction should receive a reasonably fair construction for the promotion of the interests and the protection of the petitioner, as that has already been suggested, for this part of the will, to carry into effect what appears to have been the leading and controlling object animating the testator in giving his directions. The substance should not be sacrificed to the mere formal manner in which the testator has directed his intention to be observed, but the intention, being the paramount object, should be maintained, as long as that may be done without sacrificing it to a literal compliance with the manner in which the testator intended it should be carried into effect, for he did not subject the right of the after-born child or children to be placed upon an equality with the other grandchildren upon the literal ability to attain that equality after his executors should have divided his estate. There was no condition upon which this paramount intention was made dependent, but the final suggestions made in this part of the will were for the purpose of pointing out and securing the manner, through which this end might be accomplished. No intention was expressed or implied of literally rendering the right of the petitioner dependent on the ability to secure this equality in the precise manner suggested by this part of the will. But the governing object was to make her equal, so far as it extended, with the other grandchildren of the testator.

In the action for the construction of the will it was adjudgqd “ that no child born to said Harriet A. Marsh, after the said Clarence did arrive at lawful age, will be entitled to any share in said residuary estate.” Clarence was a grandson who attained his majority within a few months after the decease of the testator. But precisely how far this adjudication was intended to extend does not appear from the language of the judgment. But, as this judgment was rendered in the year 1862, long before the birth of the petitioner, and it made no provision whatever for that event, or the protection of her possible interest in the estate under the will of the testator, it cannot be operative upon her. And if the judgment in the first action of partition should be construed as intended to exclude her from participation in the proceeds of the property of the estate, by binding her to a literal observance of the testator’s directions, it could not, for the same reason, be permitted to be attended with that result. In. Brevoort v. Brevoort (70 N. Y., 136) it was generally considered that persons not in being would be bound by a judgment in partition recovered in an action to which all the persons then in being were made parties. But in Monarque v. Monarque (80 N. Y., 320) it was further held that this would not be the effect of the judgment unless some provision was made for the protection of the persons who might afterwards come into existence and be interested in the estate. (Id., 326.) No such provision was made by the judgment recovered in the executor’s action. And none literally in the first suit. And the court, consequently, could not deprive the petitioner of her right by this general declaration contained in the judgment in the executor’s action, even if it should be held to be applicable to this controversy.

In the early part of the year 1810 a settlement of the executor’s accounts took place before the surrogate of the county of New York. The petitioner was made a party to this proceeding, but the funds in the hands of the executors were directed to be distributed among the other legatees. And the petitioner was thereby excluded from sharing in this distribution. She was then under six months old. A special guardian was appointed to protect her interests, but seems to have failed, as is not uncommonly the case with persons acting in this capacity, to afford her that protection. For, by this paragraph of the will, it was contemplated that the petitioner, as the daughter of the testator’s daughter, should be secured her share of the funds and property in this manner to be divided. That is apparent from the general directions contained in this paragraph for the division of that part of the testator’s estate which was to be divided among his grandchildren. For it was in the event of the child being born after the distribution to be made by the executors that it was directed that her share should be made up to her out of the property devoted to the support of the widow’s life estate. It was contemplated, as it ordinarily would be in case of the birth of the person before the final settlement and distribution, that the individual born would be secured his or her share of the estate in the hands of the executors at the time of the settlement of their accounts. But that was defeated by the decree which was entered, and the share or proportion of the estate in the hands of the executors which should have been set apart for the benefit of the petitioner was paid over to or for the other parties mentioned in these directions in the will. The surrogate did not directly adjudge that the petitioner was entitled to no part of the moneys then to be distributed, but he directed such a distribution to be made as excluded her from the benefit of these moneys.

But this direction of the surrogate will not prevent the petitioner from receiving her full share of the testator’s estate as it was intended to be given by this clause of the will. For the effect of it, as well as of the judgment rendered in the action brought by the executors for the construction of the will, has been to devote her proportionate part of tlie other funds of the estate for the benefit of the other grandchildren of the testator, and to Abbie Simpkins as assignee or transferree of one of them. And that entitled her to be placed in their position as to the fund now remaining and in controversy for the reimbursement to her of the amount of her share in this manner used and appropriated. She was compulsorily deprived of it by the action of the surrogate for the benefit of these other parties. And her property having been divided in that manner, she is entitled to stand in their places for the reimbursement of the amount to her which was under these adjudications appropriated to persons not legally or equitably entitled to receive it. This follows from the application of the principle generally enforced in equity, that where ;the property of one person may be taken or appropriated for the benefit of another the persons whose property may be so applied will be allowed to stand in the place of the person or persons receiving it for reimbursement out of a fund in which all would otherwise be entitled equally to participate. (Platt v. Brick, 35 Hun, 121; Wilbur v. Warren, 40 id., 203.) This principle is generally employed to promote and secure the ends of justice. And it has been held to apply to the protection of one person who at the request of another advances his money to redeem or pay off a security in which the person making the request has an interest, or to the discharge of an obligation for. which he may have become bound. (Gans v. Thieme, 93 N. Y., 225, 232.) And the principle would certainly seem to be as applicable to a case where one party has been obliged by judicial action, as the petitioner has been, to have her money or property appropriated for the benefit of others, as it is where that results from a request. And this was followed in Acer v. Hotchkiss (97 N. Y., 395). The case of Eddy v. Traver (6 Paige, 521), approaches still nearer in the application of this principle to the subject of this controversy. And the decision made in Smith v. Wyckoff (11 Paige, 49), is still more pertinent to the disposition of this appeal. Por there it was held that the owners of the personal estate were entitled for their reimbursement to stand in the place of a creditor who had obtained the payment of a debt out of that estate, which had been charged upon lands specifically devised. And this was likewise followed in Graham v. Dickinson (3 Barb. Ch., 169). There the personal estate of the testator had been subjected to the payment of his debts. That proved to be insufficient, and his executors obtained leave from the surrogate to sell his real estate and apply the proceeds to the payment of the debts. After that had been done a claim in favor of the estate had been recovered from the French government. And it was held that the devisees or owners of the real estate were entitled to resort to this fund for the reimbursement of what had been taken from them for the payment of the'debts under the order of the surrogate. And this was also held to be the law in Couch v. Delaplaine (2 N. Y., 397). And it entitled the petitioner to be made good out of the shares of these other parties in the final fund not yet distributed, to the extent that her interest in the distribution of the estate, upon the final settlement of the executors, had been appropriated to the use and benefit of these other persons. Upon - each of the grounds which have been considered she was entitled to be placed upon the equality' which the testator intended and directed for her benefit, and to be paid out of the money still under the control and subject to the direction of the court.

These considerations entirely dispose of this controversy, and render it unnecessary to consider other points which have been made and discussed by the counsel. Neither of the authorities cited in support of the appeal sanctions any other disposition of it, and the order from which -the appeal has been taken should, be affirmed, with ten dollars costs and also the disbursements.

Yan Brunt, P. J., and Bradt, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    HENRY HARBECK, Respondent, v. SARAH KATHARINE PUPIN and Others, as Executors of the Last Will and Testament of FREDERICK K. AGATE, Deceased, Appellants.

      Firm note — judgment by confession against three of four partners — aetion on the note against the executor's of the fourth partner, who had since died, maintainable
      — Gode of Oiml Procedure,, sec. 1278.
    A judgment upon a promissory note, made by a firm consisting of four members, was entered by confession against three of the members thereof; execution was issued thereon and returned unsatisfied. Thereafter an action was brought against the executors of the fourth partner, who had since died, to recover the amount of the indebtedness, after deducting therefrom the sum of $8,000 paid by two of the partners on the judgment to obtain a release therefrom, and from the indebtedness.

      Held, that although this was not an action against all the joint-debtors, which a literal reading of section 1278 of the Code of Civil Procedure prescribed, in order to avoid the effect of the judgment as a merger as to all the debtors, yet as there could be neither necessity nor propriety in the prosecution of an action for the ■ recovery of the debt against all the joint debtors, including those bound by the preceding judgment as well as those not parties to it, that the section would be so construed that, as to parties not included in the judgment, the creditor would be at liberty still to proceed as though no judgment had, in fact, been confessed.
    Appeal by the defendants from an interlocutory judgment, entered, after a trial at a Special Term beld in the county of New York, upon tke issue of law raised by tbe defendants’ demurrer to the plaintiff’s third amended complaint, in the office of the clerk of the county of New York on the 7th day of June, 1889, which judgment decreed that the complaint stated facts sufficient to constitute a cause of action, and overruled the demurrer interposed thereto, without costs to either party as against the other, with leave to the defendants, within twenty days after service of the judgment, to withdraw their demurrer and answer over.

      George O. Holt, for the appellants.

      JRioha/rds <& Brown, for the respondent.

       See Heckemann v. Young, page 406.

   Daniels, J.:

The plaintiff obtained a judgment by confession, upon a promissory note made by the firm of W. H. Whitaker & Co. against three of the members of the firm. The additional member of the firm was the defendants’ testator, who was in no manner included in the judgment. Executions were issued upon the judgment against the three members of the firm who confessed it, and were returned unsatisfied. And thereafter this action was brought against the executors to recover the amount of the indebtedness, after deducting the sum of $3,000 paid by two of the partners in the judgment, to obtain a release therefrom, and from the indebtedness. As the law stood prior to the enactment of the present Code, a judgment confessed in this manner was a merger of the demand, and a discharge of the debtor not included in it, from liability for its payment. (Candee v. Smith, 93 N. Y., 349.)

But, for the purpose of changing this rule of law, section 1278 of the Code of Civil Procedure has been enacted. This section provides that:

“ One or more joint-debtors may confess a judgment for a joint debt, due or to become due. "Where all the joint debtors do not unite in the confession, the judgment must be entered and enforced against those only who confessed it, and it is not a bar to an action against all the j oint-debtors upon the same demand.”

And the intention appears from its language to be that this preceding rule should thereafter be abi’ogated. But its application to this case has been resisted on the ground that it is not an action against all the debtors, anda literal reading of the section requires the action to be in that form to avoid the effect of the judgment as a merger as to all the debtors. But while this is the literal reading of the section it is not probable that it was intended to be so understood or applied. Eor there would be neither necessity nor propriety in the prosecution of an action for the recovery of the debt against all the joint-debtors, including those bound by the preceding judgment as well as those not made parties to it. The intention to supersede the preceding rule by the enactment of the section is clearly evident. And what the legislature should be considered as intending is, that as to parties not included in the judgment, the creditors should still be at liberty to proceed the same as though no judgment had, in fact, been confessed. It is true that the language of the section does not literally express this intention, but it is to be inferred from its reading (inasmuch as a leading object was to dispense with the preceding rule) and tlie creditor was intended to be left at liberty to proceed against the debtor, or debtors, not included in the judgment. And that in the enactment of the section the word “ other,” or some equivalent term, was intended to be inserted between the word “ the ” and “ joint,” in the concluding part of the section, which would leave the debtor, or debtors, who had not joined in the confession of the judgment liable to be still proceeded against upon the same demand. Unless that was intended to be done, then there was very little to be secured by the enactment of the section. And no good reason existed for subjecting the continued liability of the other debtors to an action in which they should be included as parties with the debtors who had already confessed' the judgment. That would be, so far as the debtors were already bound by the judgment, an entirely senseless proceeding. And it is more reasonable to presume that a word has been omitted in the enactment of the section than that the right of the creditor still to proceed against the other debtors should be dependent upon such an absurdity. It is not infrequent to find language employed in statutes which is inappropriate to the apparent object and intent of the act. And where that may appear to be the fact, it becomes the duty of the courts, and that authority is exercised, to so construe the law as to carry what appears to be the governing intention of the legislature into effect, although it may not be done in precise conformity to the language employed. What the law requires as a leading •object in the construction of statutes is, that the spirit and intent shall be maintained in preference to the precise effect of the language itself. . Upon this subject it has been held that, “ in the interpretation of statutes the great principle which is to control is the intention of the legislature in passing the same, which intention is to be ascertained from the cause and necessity of making the statute as well as other circumstances. A strict and literal interpretation is not always to be adhered to. And where the case is brought within the intention of the makers of the statute, it is within the 'statute, although by a technical interpretation it is not within its letter.” (Mayor, etc., v. Third Avenue R. R. Co., 16 N. Y. St. Rep., 122; Weiler v. Newbach, 47 Hun, 166; Delafield v. Brady, 108 N. Y., 524, 529.) And this principle is specially applicable to tliis section of the Code, for there could have been no other object inducing its enactment than to change the preceding rule by which a judgment confessed by one or more joint-debtors would discharge the other from liability. The rule was highly technical in itself, having no other sound reason for its support, and resulted in the discharge of persons from their liability, even when that was contrary to the intention of the parties themselves. The section in this manner enacted is highly remedial, designed to promote a more just result than that secured by the law previously existing, and, therefore, to be liberally •construed. And, as its object was not to permit a judgment, confessed by one or more parties to discharge others equally and jointly liable with them from their liability, that should be promoted by placing the construction already mentioned upon this enactment. And that continued in existence the liability of the testator for the payment of this indebtedness after the judgment had, in this manner, been confessed by his three copartners.

It is stated in the .complaint that, executions were issued against the property of the judgment-debtors which were returned wholly unsatisfied. And as the testator remained liable for the payment of this indebtedness at the time of his decease, this authorized the creditor to institute and maintain the present action against his executors for the payment of so much of the indebtedness as had not been extinguished by payment. (Pope v. Cole, 55 N. Y., 124.) As long as the deceased debtor remained liable for the payment of the debt at the time of his decease, this remedy-survived to the creditor to proceed against his estate.

By a further subdivision of the complaint it appears that two of the judgment-debtors made a separate composition with him and paid him the sum of $3,000. And that he thereupon executed and delivered to them a release of and from all individual liability, claim and demand whatever, for or in respect of the indebtedness existing by virtue of the judgment, that being the only indebtedness or liability incurred by them to him by reason of their connection with the partnership. And it was stated in the release that it was made pursuant to section 1942 of the Code of Civil Procedure, and should have no greater or other effect than as by that act it was provided. Section 1942, to which the release in this manner referred, has provided, that after a partnership has been dissolved, a joint-debtor may make a separate composition witli his creditor which will discharge him from liability. But, to secure that result, “ the instrument must release of exonerate him from all liability incurred by xeason of his connection with the partnership.” The release which was delivered to these two debtors was not precisely in conformity with this language of the Code, but it was substantially. And its reference to this section was a plain expression of intention that it was designed to be the release in this manner provided for. Substantially, it conformed with the requirement. And where that may be the casp, it becomes the duty of the court to maintain and support the instrument. (Hood v. Hayward, 48 Hun, 330.) And, .accordingly, the release should have the effect, and only that effect, which the parties in this manner designed to secure to it.

The objection that the indebtedness proceeded upon is not the -same demand as was included in the judgment, for the reason that $3,000- had been jiaid in this manner upon it, is entitled to no serious consideration, for the balance remaining unpaid is the same demand •as was included in the judgment by confession. The judgment from which the appeal has been brought seems to have been right, .and it should be affirmed, with costs.

Yam Brunt, P. J., and Brady, J., concurred.

.Judgment affirmed, with costs.