author: Hardin, P. J.: Martin, J.:

text:
    JOHN ROGERS, Appellant, v. HENRY M. WENDELL, as Executor of the Estate of NATHAN D. WENDELL, Deceased, Respondent.

      Receiver, personally liable for services rendered and disbursements made, in the preservation of the property, by his direction.

    Nathan D. Wendell, having been appointed receiver of a corporation known as The Carthage Company, in an action brought to dissolve such corporation, employed on November 17,1884, one Rogers to take charge of the property of the company at Carthage, and to pay certain disbursements necessary for its protection. Rogers entered upon, and continued in, such employ, furnishing materials, looking after the property generally, making reports to Mr. Wendell weekly, and drawing drafts upon him for various sums disbursed by Rogers, which were paid until January 5, 1886, when Wendell died. The services were of the value of $409, which were not paid for, and thirty-eight dollars were disbursed by Rogers and not repaid.
    In an action, brought against the executor of Nathan D. Wendell, deceased, to recover for such services and unpaid disbursements, it was held by the court that Wendell did not assume any personal liability for the services rendered or disbursements made by the plaintiff, and that he was not entitled to recover.

      Meld, that it was well settled that the receiver was authorized to incur expenses and charges for the preservation and use of the property which came into his bands by virtue of tbe receivership, and that the plaintiff was entitled to enforce his claim against Wendell personally, and that his estate became liable to pay the same; that the judgment should be reversed.
    Appeal by the plaintiff from a judgment, rendered at the Jefferson Circnit upon a trial before the court without a jury, which was entered in the office of the clerk of Jefferson county on the 11th day of March, 1889.
    On November 8, 1884, Nathan D. Wendell was appointed temporary receiver of a corporation known as The Carthage Company in an action by The People for its dissolution. On December 6,1884, by a judgment, the Carthage Company was dissolved and Nathan D. Wendell was appointed permanent receiver with the usual powers. On January 5, 1886, Nathan D. Wendell died, leaving a last will and testament, wherein the defendant was appointed his executor. The claim of the plaintiff was presented to the executor and' rejected, and thereafter this .action was brought. On the lYth of November, 1884, Wendell, as receiver, executed and delivered to J. W. Embury a letter of attorney authorizing him to take possession of the property of the Carthage Company and to employ such help as in his judgment might seem proper. That letter was signed, “N. D. Wendell, receiver,” etc.
    On the 20th of November, 1884, Embury called on the plaintiff at Carthage with the letter and informed the plaintiff that the property of the Carthage Company had been placed in possession of Wendell as receiver, and that Embury was about to take an inventory for the receiver, and that Wendell, the receiver, could not attend personally and asked the plaintiff to take an oversight of the property, which he consented to do, and thereafter he received several letters from the receiver while he was taking charge of the mill; the plaintiff furnished some materials, and rendered services and continued in charge until January 12, 1886, corresponding with Wendell; making weekly reports to him, and drawing on him for money; it is found that the plaintiff rendered services worth $409 for which he has not been paid, and that he also disbursed for wages and supplies thirty-eight dollars which has not been repaid to him, “ all of which service and disbursements were necessary for the protection and preservation of the receivership property at Carthage.” And it is found as a conclusion of law, viz.: “Nathan D. Wendell did not assume any personal liability to pay for the services rendered or disbursements made by the plaintiff,” also “ the plaintiff is not entitled to recover of the defendant.”

      F. T. Evans and W. F. Porter, for the appellant.

      Louis W. Pratt, for the respondent.
   Hardin, P. J.:

Whether the contract upon which plaintiff’s claim rests was made with the receiver, as such, or with him individually, was an open question to be determined at the trial, by a consideration of the letter signed by the receiver and the knowledge of the plaintiff of the appointment of such receiver, and the other surrounding circumstances known and understood by the plaintiff at the time he entered into the employment. It was competent to give parol evidence upon the question. (Schmittler v. Simon, 114 N. Y., 176, 187; Hood v. Hallenbeck, 7 Hun, 362.)

By the evidence it is made apparent that the plaintiff knew when he contracted, that Wendell was receiver, and as such only had possession of the corporation property, and sought to preserve it and render it useful. Plaintiff’s services and expenditures were for such purpose. It was, therefore, properly found, as a fact, that all of plaintiff’s claims arose in and were necessary for the protection and preservation of the receivership property at Carthage.”

It is well settled that a receiver is authorized to incur expenses and charges for the preservation and use of property which comes to his hands in virtue of the receivership. (Cowdrey v. Galveston, etc., Railroad Company, 93 U. S., 354; Vilas v. Page, 106 N. Y., 440; Raht v. Attrill, Id., 424.) Was the contract with the receiver as such, or with him individually ? In dealing with a similar question, Daniels, J., in Foland v. Dayton (40 Hun, 564), said: “ The agreement of the plaintiff may be established as other agréments are allowed to be proved in courts of justice. That may be done by the language used on the occasion when the agreement is alleged to have been made, or by circumstances disclosing its nature and effect. Whether the plaintiff can maintain the action must, therefore, depend upon what the contract shall appear to have been under which the services were rendered.”

In De Witt v. Walton (5 Seld., 571) the defendant was not liable upon the note, as there was nothing in the instrument or note to show that there was an intention to bind the defendant.

In Kain v. Smith (80 N. Y., 478) the personal liability of the defendant was put upon the ground “ that his position is purely voluntary, and that he had entered upon it by contract.”

This case resembles Aldrich v. Moore (26 N. Y. St. Rep., 964) lately decided in the second department, and upon that authority, as well as the reasoning of Martin, J., in his opinion in this case, the conclusion is reached that plaintiff was entitled to enforce his claim against Wendell personally, and, therefore, his estate became liable to pay the same, and the executor was not warranted in rejecting the claim.

Judgment should be reversed on the exceptions and a new trial ordered, with costs to abide the event.

Martin, J.:

On the 8th day of November, 1884, Nathan D. Wendell, the defendant’s testator,'was appointed temporary receiver of the property of “ The Carthage Company,” in an action to dissolve such corporation. On the 4th day of December, 1884, he became permanent receiver thereof. On November 17, 18S4, he employed the plaintiff to take charge of the property of the company at Carthag , and to pay certain disbursements.necessaryf or its protection. . The plaintiff entered upon and continued in such employ until January 5, 1886, when Wendell died. During the continuance of such employment the plaintiff furnished materials, looked after the property generally, made reports to Mr. Wendell weekly and drew drafts upon him for various sums, disbursed by plaintiff, which were paid. The plaintiff was not paid for his services, which were of the value of $409, nor was he paid thirty-eight dollars disbursed by him under and in pursuance of such contract. This action was to recover for such services and unpaid disbursements. On the trial the court held that Wendell did not assume any personal liability for the services rendered, or disbursements made by the plaintiff, and that plaintiff was not entitled to recover. ' I cannot assent to this conclusion.

In Schmittler v. Simon (101 N. Y., 557), it is said: “Neither executors nor administrators have power to bind the estate represented by them through an executory contract, having for its object the creation of a new liability, not founded upon the contract or obligation of' the testator or intestate. They take the personal property as owners, and have no principal behind them for whom they can contract. The title vests in them for the purposes of administration, and they must • account, as owners, to the persons untimately entitled to distribution. In actions upon contracts made by them, however they may describe themselves therein; they are personally liable.”

In Willis v. Sharp (113 N. Y., 591), the court says: It is the settled doctrine of the courts of common law that a debt contracted by an executor after the death of his testator, although contracted by him as executor, binds him individually, and does not bind the estate which he represents, notwithstanding it may have been contracted for the benefit of the estate. (Austin v. Munro, 47 N. Y., 360.) It has been held in numerous cases that an executor, carrying on a trade under the authority of the will, binds himself individually by his contracts in the trade. He is not bound to carry on the trade and incur this hazard, although authorized or directed to do so; but if he does carry it on, the contracts of the business are his individual contracts.” It is true that in the last case it was. held that under the provisions of the testator’s will the estate was also bound in equity for the debt in question, yet it was not held that the executor was not individually liable,- but, in effect, held that in addition to the personal responsibility of the executor, the creditor had a claim in equity against the estate.

In Davis v. Stover (16 Abbott [N. S.] 227), it is stated that, as a general rule, an agent employed by a receiver in the execution of a trust must look to the person employing him, individually, for his pay, and an executory contract of this character does not bind the estate. But it was held in that case, that where there was an express agreement that the compensation was to be made out of the estate, the services might constitute an equitable’ set-off against a claim the estate held against the agent. In Noyes v. Blakeman (6 N. Y., 580), it is said: It is undoubtedly true, as a general rule, that where a trustee employs agents in the execution of his trust, they are to look to him individually, and have no lien upon the trust fund for their compensation.” In Mygatt v. Wilcox (45 N. Y., 309), it is said: A party wlio employs an attorney is personally liable to him for his services, although acting as a trustee or in a representative capacity in the business in which he employs him. (Bowman v. Tallman, 2 Robertson, 385.) ” In the People v. Universal Life Insurance Company (30 Hun, 142), it was held that a receiver, was liable for rent of premises occupied by him. In Kedian v. Hoyt (33 Hun, 145) it was held that a trustee was personally liable for work done and for materials furnished to the trust estate. In Ryan v. Rand (20 Abbott’s N. C., 314), which was an action against a receiver individually for services, it was said: The trial judge erred in holding that the defendant was not individually liable for the services rendered upon his accounting as receiver. The rule is that a person employed by a trustee, receiver, general assignee, executor or administrator in matters pertaining to the execution of the trust, must look to the person employing him, individually, for his compensation, as the contract does not bind the estate he represents. The title to the trust property vests in these different officials, and they must account for it to the persons ultimately entitled to distribution. They are individually liable because they have no responsible principal behind them for whom they may contract and against whom the creditor may enforce his demand.” (Patton v. R. B. P. Co., 114 N. Y., 4.) On the argument it was practically assumed that Wendell’s liability as receiver was similar to the liability of an executor or administrator, and several of the cases cited to sustain this judgment relate to the liabilities of the latter. Conceding the correctness of this assumption, the Schmittler and Willis cases (supra) must be regarded as controlling authorities in this case. But, independent of those cases, the other authorities cited are to the effect that the receiver was individually liable to the plaintiff. I think it should be so held, both upon principle and authority. Wendell employed the plaintiff, and he performed the services, and made the disbursements for which he seeks to recover. The plaintiff had no knowledge of the directions which the court gave Wendell as receiver, nor of the powers that were vested in him by its orders. The receiver had no principal against whom the plaintiff could maintain an action. Nor could he maintain an action against Wendell’s successor, as there was no contract or privity between them. (Lehigh Coal and N. Co. v. C. R. R. Co., 41 N. J. Eq., 167.) If the plaintiff cannot recover against the estate of Wendell, he has no right of action and his claim cannot be enforced. A receiver cannot, of his own motion, contract debts chargeable upon the fund in litigation. While a court may allow expenses incurred by a receiver for the preservation of the property, it is, nevertheless, the order of the court, and not the act of the receiver, which creates the charge, and upon which its validity depends. (Vilas v. Page, 106 N. Y., 451.)

It is no answer to the plaintiff’s claim to say that if it is just and proper, the court will allow it and order it paid. It may have been perfectly proper, so far as the plaintiff is concerned, and still improper as against the estate. The receiver may have been guilty of some act which would render the allowance of this claim against the estate improper. In such event the plaintiff’s claim would be disallowed, and he compelled to lose his demand, although his action was in all things proper. The plaintiff’s rights under his contract should be dependent upon no such uncertain remedy for their enforcement. He made his contract with the receiver, presumptively upon his individual responsibility, and the receiver should be required to perform it. But it is said that the receiver ought not to be held personally liable upon a contract made for the benefit of the estate he represents. Why not ? If his action was of doubtful propriety, or if the estate was of doubtful sufficiency, why should not the receiver be liable, if acting under such circumstances, he obtains the services and property of another. ■ If the estate was insufficient, he knew it .better than any other person, and should not have incurred the liability. Under such circumstances the law would not require it of him, and common honesty would forbid his making such a contract at the expense of another.

If held to be individually liable, no improper harm can fall upon the receiver or his estate. If the action of the receiver, in making this contract and incurring this expense, was proper and authorized, the demand, when paid, can properly be charged in his accounts and will be allowed by the court. If the receiver acted improperly or without authority in employing the plaintiff, and directing him to make such disbursements, then his estate should bear the burden of his unauthorized act, and it should not be cast upon the plaintiff. This is not a case where there was an agreement by the plaintiff to exonerate the receiver from individual liability, nor where there was an agreement to make the debt a charge upon the trust estate. Nor does the evidence tend to show even that the plaintiff performed such services and made such disbursements upon the faith and credit of the estate. Therefore, the cases of New v. Nicoll (73 N. Y., 127), Foland v. Dayton (40 Hun, 563), Martin v. Platt (51 id., 435), have no application. Although it may be that Wendell could have exempted himself from individual liability by an express agreement to that effect, still an express agreement was necessary, and it was not sufficient that the plaintiff, in doing the work and making the expenditure, did it upon the faith and credit of the estate. (New v. Nicoll, supra.)

I think the trial court erred in holding that Wendell was not individually liable to the plaintiff, and in dismissing the complaint, and that for such error the judgment should be reversed

Merwin, J., not sitting.

Judgment reversed on the exceptions, and a new trial ordered, with costs to abide the event,


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    HERMAN VOIGT, Respondent, v. GEORGE SCHENCK and Others, and THOMAS A. MURRAY, as Receiver of the Property and Effects of GEORGE SCHENCK, Appellant.

      Inserting, after judgment of mortgage foreclosure and sale, the name of a receiver of the property of one of the original defendants, in the judgment and other papers nunc pro tunc.
    After a judgment of foreclosure liad been entered, and notice of sale had been given for September 14, 1889, an order was made, on September 13, 1889, by which the name of Thomas A. Murray, as receiver of George Schcnck, a party to the action, was inserted in the summons and complaint, lis pendens, judgment, notice of sale and all papers and proceedings, nunc pro tunc, as of the date of the several papers.
    On an appeal from this order it appeared that, before the commencement of the action of foreclosure, the defendant Murray, as receiver of the defendant, George Schenck, had become the owner of the equity of redemption.

      Meld, that, as the effect of this order would be to create a judgment against a man who had never been sued, the order appealed from should be reversed, but that the plaintiff, if he choose to do so, might apply to the Special Term for leave to open the judgment of foreclosure and sale and make Murray, as receiver, a party defendant by serving a supplemental summons upon him.
    Appeal by Thomas A. Murray, as receiver of the property of George Schenck, from an order made at a Special Term, held in Albany county on the 13th day of September, 1889, which was entered in tlie office of the clerk of the county of Albany on the 14th day of September, 1889.
    The action was brought for the foreclosure of a mortgage in which judgment of foreclosure, directing a sale,was entered; notice of the sale was given for September 14, 1889. Thereupon, and on September 12,1889, an order was made that the name of Thomas A. Murray, as receiver of George Schenck, a party to the action, was inserted in the summons and complaint, Us pendens, judgment, notice of sale and all papers and proceedings, nunc pro tune, as of the date of the several papers.

      John It. Langcm, for the appellant.

      John T. Norton, for the respondents.
   Learned, P. J.:

The order appealed from was made after judgment. It inserted the name of Thomas A. Murray, as receiver, as a party to the action, defendant, in the summons and complaint, Us pendens, judgment, notice of sale, and all papers and proceedings, nu/ne pro tunc, as of the date of the several papers.

The very object of a Us pendens might be destroyed if the name of a defendant could be inserted numc pro tunic. If a new party is brought in a new Us pendens should be filed. The effect of this order would be to create a judgment against a man who had never been sued. This cannot be done. (N. Y. State Mon. Pan. Ass. v. Remington Agricultural Works, 89 N. Y., 22; 25 Hun, 475; Bassett v. Fish, 75 N. Y., 304.)

The defendant Murray, as receiver, had become the owner of the equity of redemption before the commencement of this action of foreclosure. His rights could not be barred by an order inserting his name in a judgment, entered on a summons and complaint to which he had not been a party and with which he had not been served. Furthermore, if he were to be brought in as a defendant a supplemental summons would have to be served on him. (Code, 8 453.) In no other way could he (except on his own application) be made a party. ¥e. do not think that the fact that Murray is a receiver deprives him of the right of defending an action lawfully brought against him. It is true that a receiver is an officer of the court. But even officers of the court are entitled to be sued by due process of law when sued at all.

The order appealed from must be reversed. But the plaintiff, if he chooses, may ajiply to the Special Term for leave to open the judgment and the sale, and to make Murray, as receiver, a party defendant, by serving a supplemental summons upon him. We cannot grant this order here, because we do not know what persons may be interested as purchasers at the sale, and who may, therefore, be entitled to notice.

No costs are allowed on this appeal.

Landon and Fish, JJ., concurred.

Order reversed, with leave to plaintiff to apply to Special Term to open judgment and to bring in defendant; no costs of appeal.


text:
    EDWARD TRACY, Appellant, v. THE TROY AND LANSINGBURGH RAILROAD COMPANY, Respondent.

      Temporary injunction to prevent the erection, in the street in front of plaintiff’s lot, of a pole to sustain the wire of an electria-metm• system-for street ca/rs — when denied.

    Upon an appeal from an order vacating a temporary injunction restraining tlie defendant from erecting upon Second avenue, in tlie village of Lansingburgh, opposite a lot owned by the plaintiff described in the complaint, or opposite to any other lands of the plaintiff in the said village, any poles for sustaining or forming part of an electric-motor system furnishing power for propelling cars, it appeared that the decision was made upon the ground that there was no evidence to show that, if the defendant’s work was allowed to proceed until the trial of the action, any irreparable injury would be done, or any injury which could not be compensated by a pecuniary payment, and upon the further ground that if the injunction was allowed to stand a public improvement would be obstructed for many months, which in the end might be allowed to proceed, and thereby the plaintiff would, without a trial, have accomplished the object of his action, and no longer have any inducement to press forward the case.

      Held, that the order should be affirmed.

      Power v. The Tillage of Athens (19 Hun, 167) followed.
    Appeal from an order granted at a Special Term held in Albany county, which was entered in the office of the clerk of the county of Rensselaer, on the 27th day of of August, 1889, vacating a temporary injunction order restraining the defendant from erecting poles in the village of Lansingburgh, opposite the plaintiff’s residence.

      O. E. Patterson, for the appellant.

      E. I. Eursman, for the respondent,
   Learned, P. J.:

This is an appeal from an order of Mr. Justice Edwards vacating, on a hearing of both sides, an ex jgcvrte order granted by Judge Nott. The order of Judge Nott restrained the defendant from erecting upon Second avenue in the village of Lansingburgh, opjtosite the plaintiff’s lot, described in the complaint, or opposite any other lots of plaintiff in the said village, any poles for the sustaining or forming part of an electric-motor system for furnishing power for propelling cars.

The learned justice who vacated the order, without passing upon the important questions which might arise on a trial of the action, placed the reversal of the order, in his opinion, on the ground that this was not a case where an injunction pending the action should be granted. He held that there was no evidence that, if the defendant’s work was allowed to proceed until the trial of the action, any irreparable injury would be done, or any injury which could not be compensated by a pecuniary payment. And he further said, that if the injunction were allowed to stand, a public improvement believed to be of utility would be obstructed for many months, which in the end might be allowed to proceed. And, further, that by this temporary injunction the plaintiff had, without a trial, accomplished the object of his action, and had no longer any inducement to press forward the case.

"With these views, for a fuller statement of which we refer to his opinion, we concur. They are in harmony with the decision of this court in Power v. Village of Athens (19 Hun, 167). We, therefore, affirm the order without expressing any opinion as to the right of the plaintiff on a trial to have a perpetual injunction as prayed for.

Landon and Eish, JJ., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


text:
    H. MELISSA WHITON, Respondent, v. JACOB HARMON SNYDER and MARY SNYDER, Appellants, Impleaded with WAITY SHERMAN and ELIZABETH LANE.

      Üondítioií in a devise of land that the devisee shall not live with his wife — when void as against public policy.

    The complaint, in an action for partition of real property, alleged, that one Jacob H. Snyder was entitled to three-quarters of the property; that the other one-fourth belonged to his mother at the time of her death in 1877; previous to which she made her will by which she gave all her real estate to her son “for and during the term of his natural life, or while he shall live separately from his present wife.” On his decease, “or when he shall again live with his present wife,” the testatrix gave the same to her nieces
    It was stated in the complaint that Jacob II. Snyder and his wife, Mary, were clandestinely married about twenty years before the making of the will; that immediately after their marriage, without cohabiting, they separated and lived apart; that Jacob immediately took steps to procure a divorce, and for that purpose went to Minnesota, where he procured, a year afterwards, a formal decree of divorce, which he and the testatrix supposed to be valid. Jacob and his wife continued to live apart until after the death of the testatrix. The reasons which induced this separation, and which occasioned the dislike of the testatrix to the wife of Jacob I-I. Snyder, as stated in the complaint, did not in any way impugn the moral character of the wife.
    Subsequently to. the probate of the will Jacob began living and cohabiting with his wife, and has ever since continued so to do.
    Upon an appeal from an interlocutory judgment in the action overruling a demurrer interposed to the complaint, by the defendants, Jacob H. Snyder and Mary Snyder, his wife, who claimed that the condition subsequent attempted to 'be created by the will was against good morals and invalid.

      Held, that this condition was void.

      Potter v. McAlpine (3 Dem., 108-123); WiUcinson v. Wilkinson (L. R., 12 Eq., 604) followed; Oooper v. Bemsen (5 Johns. Ch., 459; 3 id., 382) distinguished.
    Appeal by tbe defendants Jacob H. Snyder and Mary Snyder, bis wife, from an interlocutory judgment oyerruling' a demurrer interposed by them to tbe plaintiff’s complaint, made at a Special Term, beld in Albany county, wbicli was entered in tbe office of the clerk of the county of Rensselaer on tbe 6th day of July, 1889.

      Cole U. Denio, for tbe appellants.

      James Lansing, for tbe respondent.
   Learned, P. J.:

This is an appeal from a judgment interlocutory overruling a demurrer. The action is for a partition, and the complaint sets forth the facts showing the alleged title of the parties. Jacob H. Snyder is entitled unquestionably to three-fourths of the property. The other fourth belonged to his mother at the time of her death. She died in 1877, having previously made her will. The question in disputéis whether, under that will,'Jacob II. Snyder was, at the commencement of this action, the owner of that one-fourth, or whether the same at that time belonged to the plaintiff Whiton and to the defendants Sherman and Lane.

The facts material to this question, as stated in the complaint, are substantially as follows: Jacob H. Snyder and his wife Mary were clandestinely married about twenty years before the making of the will; immediately after their marriage, without cohabiting, they separated and lived apart; Jacob immediately took steps to procure a divorce, and for that purpose went to Minnesota where he procured about a year afterwards a formal decree of divorce. He and the testatrix supposed this decree to be valid. He and his said wife continued to live apart until after the death of the testatrix. The reasons which probably induced this separation, and also the dislike of the testatrix to the wife of Jacob H., are stated in the complaint, but need not be mentioned here. They do not in the least impugn the moral character of the wife. The testatrix by her will gave all her real estate to her son “ for and during the term of his natural life or while he shall live separately from his present wife.” On his decease or when he shall again live with his present wife ” the testatrix gave the same to her nieces, viz., the plaintiff and the defendants Sherman and Lane. Subsequently to the probate of the will in 1879 said Jacob H. began living and cohabiting with his said wife and has ever since so continued. The plaintiff claims that thereby Jacob II. has forfeited his life estate, and that the same has passed to said nieces; and so the learned court held. The appellant insists that the subsequent condition attempted to be established by the will is against good morals and invalid.

We cannot assume upon the allegations of the complaint that Jacob H. has been legally divorced from his wife. The statement is simply that he “ obtained a formal decree of absolute divorce ” in the State of Minnesota, and that he went there for that purpose, the residence of himself and his wife having previously been in this State, and that he immediately returned to this State. A formal decree is probably meant to be distinguished from a valid decree, especially as there is the further allegation that Jacob Ii. and the testatrix believed it to be valid, and there is no clear averment that the decree was valid. It is well known that many decrees of this kind, obtained in western States, are not held to be valid here.

It is further to be observed that, Avhatever the testatrix believed, she twice uses these words in her will, “ his present wife,” and thus recognizes the fact that Jacob H. had a wife at the date of the will from whom he was living separately and from whom she desired to induce him to live 'separately. And, still further, it is to be observed that there is no allegation that it was for any fault of hers that Jacob IT. was living separately from his wife. Indeed, the contrary may be inferred from the allegations of the complaint. Jacob IT. ought to live Avith his Avife, if she had given him no ground, by any fault of hers, for living separately. It was his duty to support her and to give her the comfort of his society. Whatever her social position had been, or whatever her religious views were, he had made her his wife, and the laws of God and of man required him to be a faithful husband to her. On what pretext a Minnesota court may have pretended to free him from this duty we cannot say. Longer experience seems to have satisfied him that the proceeding was invalid, and he resumed the relations which should never have been internqited.

The question here is not strictly on the validity of restraints on marriage. The question is whether a condition subsequent, intended to prevent a husband from living with his wife, should be sustained. The only case cited by plaintiff similar at all to the present is that of Cooper v. Remsen (5 Johns. Ch., 459). There a father gave a legacy of so much a year to his daughter during her separation from her husband. At the time of making the will the daughter and her husband lived separately. At the death of the testator they were bring together. Afterwards they separated for a year; then lived together for some few years, when the husband died. It was held that she was not entitled to the annuity during the separation of a year. This decides nothing on the point in question. The same will had previously been before the court in 3 Johnson’s Chancery, 382, and a remark there made is important: “ The .provison may have been humanely intended to provide a suitable maintenance for a deserted child.” That case was decided when, to a greater extent than at present, the wife was dependent upon the husband and on his property. A provision for a deserted wife might be humane; but a provision to induce the husband to desert would be' quite different.

In the present case, if the testatrix had provided for the abandoned wife of Jacob H., as long as he lived separately from her, a very different case would have been presented. But here the testatrix seeks to bribe the husband .to. continue the abandonment of the wife, which he had entered upon.

In Potter v. McAlpine (3 Dem., 108, at page 123) a clause of a will was considered which made a gift to a son of the testator, conditioned on his not living with or supporting his wife, and it was held void as contrary to public policy and good morals. Several cases are there cited to which we refer. (Tennant v. Braie, Tothill, 78; Brown v. Peck, 1 Eden’s Ch., 140; Conrad v. Long, 33 Mich., 78.) In this last case there was a devise to a married woman if she should conclude not to live with her present husband; if she should continue to live with him, then to another person. It was held that she took absolutely.

In Wilkinson v. Wilkinson (L. R., 12 Eq., 604) a testatrix gave property to her niece, the wife of W., who ■ was living and doing business in Skipton, with a condition that all the niece’s interests should cease “ should she not cease to reside in Skipton within eighteen months of my death.” The condition was held void. (See, also, Wren v. Bradley, 12 Jurist, 168; 2 Williams on Executors, 1264 [1373], [6th Am. ed.], and cases there cited.)

It seems to us, then, that this condition was void. We are not called upon to decide as to the effect this condition would have if Jacob H. had been validly divorced from his wife for the only cause recognized by the law of this State.

Judgment interlocutory reversed, with costs and judgment interlocutory for defendants on the demurrer, with costs, with usual leave to plaintiff to amend complaint on payment of costs.

Landon and Putnam, JJ., concurred.

Judgment interlocutory reversed, with costs, and judgment interlocutory rendered for defendants, with costs, with the usual leave to amend complaint on payment of costs.


text:
    AARON V. S. COCHRANE v. CHANCELLOR HAWVER, as Executor, etc., of JAMES E. McCLURE, Deceased, Appellant, CLARA V. McCLURE, Respondent, and Others.

      .When a note, secured by a mortgage given to seawre the indorser for that and all other accommodation indorsements, should be paid, by the executor of the deceased mortgagor out of the personal estate.

    One James E. McClure, having executed a mortgage to Lucius Moore to secure the latter against liability for any accommodation indorsements to be made by him, thereafter obtained the indorsement of Moore upon a note, and had the note discounted at a bank.' Subsequently he died, leaving his widow surviving, and having made a will by which he left his property in trust for his child. Upon an appeal from a judgment directing his executor to pay the note out of the personal estate of the decedent:

      Held, that the judgment should be affirmed.
    Appeal from a judgment made at a Special Term,held in Columbia county, and entered in the office of the clerk of Columbia county on the 3d day of October, 1889, which directed that the claim of the plaintiff herein, and the costs of the action be paid by Chancellor IIawver, as executor of the last will and testament of James E. McClure, deceased, out of the personal estate of the said deceased, without resorting to the real estate of the said deceased.

      Chancellor Ilaw'oer, for the appellant.

      A. Franh B. Chase, for the respondent.
   Learned, P. J.:

The deceased, some sixteen years before making the note in question, executed a mortgage to Moore to secure him against liability for accommodation, indorsements to be made. After making the note he obtained the indorsement of Moore and had the note discounted at a bank. Subsequently he married Clara Y., one of the defendants. After his marriage he died, leaving his widow surviving, and having made a will by which he gave his property in trust for his child. The note has not been paid by the maker or his estate. But the note and the mortgage have been assigned to the plaintiff. It, therefore, becomes important to the widow that the note should be paid by the executor out of the personal estate which is ample.

No question has been macie whether Moore could maintain an action of foreclosure until he had been obliged to pay, and had paid the note. If he could not, then, of course, neither could the plaintiff. But we do not pass on this.

Of course there are cases in which the creditor in order to collect his debt is entitled to the benefit of securities held by the surety. But this right of the creditor is for his benefit. It is not for the purpose of controlling the question of marshaling the assets of the principal debtor. Therefore, tins right of the creditor is of no consequence in this case.

The old rule was that a debt, though secured by a mortgage, was to be paid by the executor out of personal property. That rule is changed by 1 Revised Statutes (749, § 4), and the only question here is whether that statutory provision applies to this case. The reason of the statute was, undoubtedly, that though legally the mortgage is collateral to the debt, yet it is ordinarily thought of as the principal thing. The legislature saw that a testator, devising property which was subject to a mortgage, would usually intend that the devisee should take the land with the' burden, and would not intend (unless he so expressly stated) that his personal property should be used to relieve the land. The legislature thus gave to a will the effect which the testator undoubtedly would intend. So, also, as to an intestate. But a mortgage of the kind in this ease is very different. The mortgagor does not intend to permanently burden his estate. He only desires to secure his surety. He intends to perform to his surety the duty of paying the debt; and does not desire that the surety shall pay and then foreclose. The mortgage is not given to the creditor as security for the debt. It is a collateral affair, intended merely to keep safe the surety. It is conditioned on the event that the surety suffer loss. The land is not specifically appropriated to the payment of the debt. It is appropriated only to the indemnity of the surety. The reason, therefore, of the statute fails. And though, as urged, the language 'may be broad, yet we are confident that this case is not within the intent of the statute.

"We think, therefore, that the learned justice was right that the widow is entitled to the marshaling of assets which was provided for by the decree; that is, that the debt is to be-paid, if possible, out of the personal estate.-

Judgment affirmed, with costs against the executor, to be paid out of the estate.

Ingalls and Landon, JJ., concurred.

Judgment affirmed, with costs to be paid out of estate.


author: LEARNED, P. J. :

text:
    THE CITY OF COHOES, Appellant, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Respondent. SAME v. SAME.

      Public highway — dedication of land to the uses of — when qualified, and revocable— necessity of an acceptance by the public authorities.

    In 1838 the Cohoes Company, which owned a considerable tract of land in the village of Cohoes, within which was an alleged street, known as Van Rensselaer street, made a map of the village, and subsequently another map, in each of which a street, eighty feet wide, was designated as Van Rensselaer street, and an open canal, about thirty feet wide, was laid down extending along the west side of the said street. In 1847 the company soid a lot, by a deed referring to the map, bounded: “Beginning at the north-west corner of Ontario and Van Rensselaer street.” In 1858 and 1861, other lots were conveyed bounded on tlio street.
    In 1853 the Albany Northern Railroad Company filed a railroad map which designates Van Rensselaer street in the same manner as the other maps, and in that year said company constructed its railroad the whole length of Van Rensselaer street, occupying a space about fifty feet in width along the easterly side of the street. About the same year the said company constructed a freight-house in Yan Rensselaer street, extending- in widtli entirely across that part of the alleged Yan Rensselaer street not occupied hy the tracks.
    From 1845 teams and vehicles passed over the line of the alleged street about where the tracks were afterwards laid, and after the tracks were laid they passed over tlie street west of the tracks - after the freight-house was constructed they passed around that hou.se through a vacant lot and so back to the street; they also drove to and from the freight-house in delivering and receiving freight on the west side of the tracks in said street.
    In June, 1874, the common council of Cohoes passed 'a resolution that Van Rensselaer street be declared a public street and graded, but no action was taken thereunder.
    In an action brought by the City of Cohoes to restrain the successor of the Albany Northern Railroad Company, to which the Cohoes Company had, in 1883, conveyed all its right to Yan.Rensselaer street, from laying its tracks in that street: Held, that as the maps made by the Cohoes company showed along the west side of the street an open canal of thirty feet wide, that company evidently did not intend to dedicate that part of the street as a public highway.
    That whether or not the canal was afterwards built was immaterial upon the question as to the effect of the maps, as the public could claim nothing more than the maps gave.
    That the Cohoes Company, by its action in the premises, expressed an equivocal and qualified intent to permit the use of the strip of land designated Yan Rensselaer street as a public highway, subject to the right of revocation.
    That the action of that company in permitting the laying of railroad tracks and the building of the freight-house thereon, showed an intent to revoke such dedication.
    That there had been no such public use as to make the strip of land a ¡ public highway.
    That the owner of land, by laying out a street thereon by its designation on a map, and even by opening and working such street, cannot make it a public highway, unless the public authorities have accepted it.
    Appeal by the plaintiff from a judgment rendered at the Albany. Circuit and Special Term of the Supreme Court, which was entered in the office of the clerk of Albany county on the 15th day of April, 1889, in favor of the defendant against the plaintiff, dismissing the complaint, with costs, in each of the above-entitled actions.
    The first action was brought to restrain the defendant from laying track in certain portions of an alleged street, known as Yan Rensselaer street, in the city of Cohoes.
    The second was brought to restrain the construction of a freight-house in said alleged street.
    The two actions were tried before the court without a jury, and a decision in each action was rendered for the defendant.

      The facts are substantially the same in each action and, as found by the court, are briefly as follows.
    In 1833 the Cohoes Company became the owner of a considerable tract of land within which is the alleged street. A map, known as the Olmstead map, purporting to be a map of the village of Cohoes, has been kept in the office of said company since 1857. A similar map is on file in the county clerk’s office of Albany county, having on the margin, “July, 1835.” The index book of maps in said oifice indicates that to be the date of making the map. In that map the land known as Van Rensselaer street was designated as such street. In 1847 the Cohoes Company sold a lot bounded : “ Beginning at the north-west corner of Ontario and Van Rensselaer streets,” etc., and referring to a map, which is the aforesaid map on file. Another map, called the Frost map, made by Frost, the civil engineer of said company, dated 1845, has been in the office of the company since 1857, which map lays down said Van Rensselaer street as one of the streets of said village. Each of said maps lays down an open canal about thirty feet wide, extending most of the way from Ontario to Oneida street on the west side of, and within, the alleged Van Rensselaer street. Said canal was never opened or used.
    The strip designated as Van Rensselaer street is eighty feet wide from Mohawk street to the Mohawk river, intersected nearly at right angles by Oneida, Ontario and Pine streets. In 1858 the Cohoes Company conveyed a lot described as bounded by the west line of Van Rensselaer street, and so, also, another lot in 1861.
    The Albany Northern Railroad Company, to whose rights defendant has succeeded, filed a railroad map in 1853, which designates Van Rensselaer street in the same manner as the other maps ; and in that year said company constructed its railroad the whole length of Van Rensselaer street. It is about fifty feet wide, as at present occupied, and is along the easterly side of the street, except the so-called Plaisdell side track. About that year said company constructed a freight-house near the corner of Oneida street and partly in Van Rensselaer street, about fifty-two feet long, extending in width entirely across that part of the alleged Van Rensselaer street not occupied by the tracks, the northerly end being about thirty feet south of Oneida street. This was continuously occupied for railroad purposes till 1887.

      From 1845 people having occasion to travel that way passed with teams and vehicles over the line of said alleged street about where the tracks afterward were; after the tracks were laid people in like manner passed over the street west of the tracks; after the freight-house was constructed they passed around that house through a vacant lot and so back to the street. They drove to and from the freight-house in delivering and receiving freight on the west side of the tracks in said street.
    In June, 1814, the common council of Cohoes passed a resolution that Yan Rensselaer street, from Oneida to Mohawk street, be declared a public street and graded. It is not shown that any work has been done by the plaintiffs on the street, between Oneida and Ontario; and the work between Ontario and Pine is but trifling. No real attempt to grade is shown to have been made.
    It is found in the first action that in November, 1886, the defendant attempted to lay down an additional track, between the present tracks and the west line of Yan Rensselaer street north of Pine. And in December, 1886, the defendant attempted to lay a similar track north of Ontario.
    No part of Yan Rensselaer street had ever been worked, within the meaning of chapter 311, Laws of 1861, prior to June 4, 1880, or within six years after the resolution aforesaid.
    The court further found, in both actions, that the Oohoes Company, by its acts aforesaid, expressed an equivocal and qualified intent to permit the use of the said strip of land as a public highway, subject to the right of revocation; that the action of the company in permitting defendant (or the Albany Northern Railroad Company) to lay its tracks and build its freight-house, expressed an intent to revoke such dedication; that there had been no such public use as to constitute the strip of land a public highway.
    It was also found in the second action that in December, 1881, the defendant began to excavate for the foundations of a new freight-house extending thirty-four feet farther south and thirty feet farther north than the old. In 1883 the Oohoes Company conveyed to defendant all its interest in Yan Renesselaer street.

      E&wim, Ootmtrymcm, for the appellant.

      Edwin Young, for the respondent.
   LEARNED, P. J. :

It is not important to’ inquire what rights the grantees of lots bounded on the alleged street may have acquired thereto. (Niagara F. S. B. Co. v. Bachman, 66 N. Y., 267.) Such grantees are not before us. The question is: "What are the rights of the City of Cohoes, claiming to act for the public ? Many cases are cited by the plaintiff, such as Bissell v. New York Central Railroad Company (23 N. Y., 62); Wiggins v. McCleary (49 id., 346); Cox v. James (45 id., 557), showing that where a grantor has conveyed land, bounding the same upon a street laid out by him on some map, the grantee acquires a right to the use of such street. Such cases, however, only show the individual right of the grantee, not the right of the public. ' The grantee pays a consideration, and for that he acquires a right over the street laid out on the map. But the public have paid no consideration, and are no parties to the transaction* Hence it is that, as to the public, the acts and declarations of the owner must be unmistakable in their purpose, and decisive in their character. (Washburn on Easements, 182.) For as to the public the owner is not selling, but, as claimed, is making a gift.

Now, in the present case, the maps made by the company showed along the west side of the street an open canal of thirty feet wide. Evidently then, that part of the street was not dedicated as a public highway, for that canal was to be used to supply water to mills, not for purposes of navigation. The public could take only what the owner gave, and as the owner showed that this strip of thirty feet was to be, or might be, used as a canal, the public could not take that part as a highway. The case is similar to the Bachman case above cited. In that case there was a note upon the maps reserving a discretionary power to say how much and what part of the streets should be used for canals. It was held that this negatived the intention of absolute and irrevocable dedication. In the present case the owner did not reserve a right to be exercised in the future, but on the very map itself it showed that thirty feet of the so-called street was reserved for a canal. Whether or not the canal was afterwards built is immaterial on the question of the effect of the maps, for the public could claim nothing more under the maps than the maps gave. The plaintiff urges that the omission to build the canal does • not authorize defendant to lay its track on the thirty feet. But that is a question between the defendant and the Cohoes Company. The plaintiff to succeed must show that the thirty feet strip is land over which the public have the right to travel. And the first step necessary is to show dedication by the Cohoes Company. In the Bachman case no canal had been actually constructed, but the right to construct took away the claim of the ¡uiblic that there had been an absolute dedication.

In 18S3 the Cohoes Company conveyed all its rights in Yan Eensselaer street to defendant. Let us suppose that before that date the Cohoes Company (or after that date the defendant) had commenced to construct a canal on this strip of thirty feet. On what ground could the plaintiff have objected ? If it appealed to the maps for its right, the maps would have shown that the dedication, such as it was, was qualified by the canal shown on the maps. And the plaintiff has never acquired any rights except such as the Cohoes Company had given to the public. No user by the public or formal acceptance by the city, would modify the terms of the dedication. Certainly not, unless the user could be shown to be adverse to the right reserved in the dedication. That is not shown here. (Burbank v. Fay, 65 N. Y., 65.)

Further, on the question of dedication, it appears by a resolution of the Cohoes Company in April, 1851, that the president and agent were authorized to agree with the Albany Northern Railroad Company in respect to the location of the railroad and the damages; and that in 1853 the tracks of the company were laid as they have ever since been and now are. And from the same time the freight house has entirely blocked the so-called street at one point. These acts, it is just to conclude, were done with the consent of the Cohoes Company. The railroad tracks of fifty feet wide and the reserved thirty feet for a canal take the whole width of the street. And the construction of the tracks and freight-house show that at that time, at least, there was no intention on the part of the Cohoes Company to dedicate this street to public travel. Even then, if we assume that by the maps the Cohoes Company dedicated the so-called Yan Rensselaer street as a highway, reserving the thirty feet for a canal, still the dedication must be deemed to have -been revoked in 1853, if the revocation was possible.

It is evident, on principle, that the owner of land by laying out a street thereon upon a map, and even by opening and working such street, cannot make it a public highway. For if it is a public highway, a duty lies on the public authorities to take care of it. And such duty cannot be imposed on them by the mere act of the owner. There must be an acceptance. (Holdane v. Cold Spring, 21 N. Y., 474.) Such acceptance may be formally made by the public authorities. And in the present case a formal acceptance was made by the plaintiff June 3, 1874. At that time, however, the defendant and its predecessor had been for more than twenty years in possession of the tracks and the freight-house. And the defendant could not by that acceptance be deprived of any rights it had acquired by the consent of the Cohoes Company. The plaintiff did not assume to declare only the thirty feet west of the railroad track a public highway, but declared the whole street such and directed that it be graded. This resolution of the common council, declaring Yan Rensselaer street a public highway, might be considered an acknowledgment by the plaintiff, that up to that time the street had not been a public highway. Certainly there had been no acceptance by the public authorities prior to that time.

But the plaintiff relies on user by the public as showing an acceptance. It will be seen on examining the case that prior to 1853 there is very little proved which can be called a public use. A few persons drew manure from private property. After 1853 any user was restricted to such part as was not occupied by the tracks and the freight-house. Persons passed along at the side of the tracks and then back of the freight-house upon private property and then returned to the alleged street. So that a part of such travel was over land where it was not claimed that any street existed. Much, too, of the travel was to the freight-house for the purpose of delivering and receiving freight; and this would not necessarily show use as a public highway. It might show only such access to the freight-house as the defendant would naturally permit for its own good.

Before considering the question of the length of time which user must continue in order to give the public right to a highway, we notice one position taken by plaintiff resting upon language used in Holdane v. Trustees (23 Barb., 119), that is, that there is a difference between a public right of passage over lands and a highway which the public authorities are bound to keep in order. That case was afterwards beard in tbe Court of Appeals (21 N. Y. 474), and nothing is there decided to sustain this view. The doctrine there was, that the land in question was not charged with a perpetual public burden although the public had enjoyed free and indiscriminate passage oyer it. And while an owner of land by opening a street and selling lots bounded thereon may thereby give to the owner of said lots the right of access thereto over the street for themselves and all persons having business with them, yet the street does not thereby become, in the true sense, public. Nor do we think that there can be a full right of passage for all the public with teams and vehicles over a piece of land which is not a highway, with the care of which the public authorities are charged.

In the case of the bridge aci-oss the Shawangunk Kill (100 N. Y., 642), the report of a referee had held the town of Crawford liable to rebuild one half of the bridge across the Shawangunk Kill, a boundary between the towns of Crawford and Shawangunk. The road which crossed the stream at the bridge was opened and the bridge built at private expense. The General Term reversed the order entered on the report. The question was whether there had been an acceptance by the town. And the Court of Appeals in affirming the order of the General Term said: “ Here the use of the road by the public was only for about four years ; and if mere user by the public without any action of the town authorities laying out or recording or improving or accepting the road can make a highway (a point we do not determine), such user must continue at least twenty years.” This case came up under chapter 639 Laws of 1857. It was not a matter for a jury. It was for the court to determine whether the town was liable. The referee and the Special Term had held that the town was liable. It therefore was necessary for the Court of A|>peals to decide this point. And, in saying that twenty years was necessary, it gave the reason why four years was not enough. We cannot consider this remark to be obiter.

In People v. Loehfelm (102 N. Y., 1), the court, speaking on this matter, say: “ Long public use; ” which is not inconsistent with the case just cited. The same expression, “ long public use ” is found in Cook v. Harris (61 N. Y., 454). In Wiggins v. Tallmadge (11 Barb., 457), there was over twenty years user. But it was said that authorities differed as to the requisite time. So, in McMannis v. Butler (51 Barb., 436). In Wildrick v. Hager (10 N. Y. St. Rep., 768), the road had been opened and worked by the public authorities. The Hunter Case (6 Hill, 407), was where a burial ground had been dedicated, and had been used for thirty-six years. The peculiar uses of the land might well justify the holding that much less than thirty-six years would have been an acceptance.

With the recent case in our highest court above cited to control us, it does not seem profitable to examine the decisions of other States or other countries. There is very little use in reporting the decisions of the Court of Appeals, unless they are to be held decisive of the law, at least until that court shall reverse them.

The dedication, under which the plaintiff claims, must have been made in 1835 or 1845. If twenty years’ user by the public is needed to show acceptance, the street could not become a highway until 1855 or 1865. -By chapter 311, Laws of 1861, a highway not opened and worked within six years shall cease to be a road. In Ludlow v. Oswego (25 Hun, 260), this is held apjDlicable to dedicated highways. This would require the.working and opening of the road by 1861 or 1871. It is stated, and we may take notice of the fact, that the plaintiff was incorporated in 1869. In the case last cited, and in Horey v. Haverstraw (14 N. Y. St. Rep., 498), it was held that this statute was applicable to “ streets,” strictly so-called. The contrary was held in Vanderbeck v. Rochester (46 Hun, 87). Without considering whether or not the statute would apply to a street laid out or dedicated in a 'city, we must notice that when this street (as claimed) was dedicated, the city did not exist. It is stated by plaintiff’s brief that the village was organized in 1847 or 184S, but no evidence of this is given At any rate, the so-called street was originally a mere country highway. The city, when organized, did not take this street by any proceeding for that purpose. Nor did the city proceed to have the street opened and worked before the six yeaj's had elapsed. ■ And certainly the city could not, without some action on its part, be required to assume the care and responsibility of every disused highway within the city limits. In Beckwith v. Whalen (70 N. Y., 430), it was said that to be worked and opened, the highway must be passable for its entire length. It does not appear that this street was ever worked during the time in question, and it was completely obstructed by the freight-house.

Tbe defendant, as has been already seen, is now tbe owner of tbe fee. It bas tbe right, therefore, to use tbe land as it chooses unless the plaintiff can assert for tbe public a highway over tbe part west of tbe tracks. Of tbe part occupied by tbe tracks and by tbe freiglit-bouse, tbe defendant bas bad for many years undisputed possession. There is nothing to indicate that its obstruction of tbe whole street was limited by anything but its own convenience. Travel along the side of tbe tracks did not interfere with its business, and was to a great extent connected with it. Tbe plaintiff does not put itself in tbe position of having purchased or taken by proceedings in invitum this street, or of having expended labor or money upon it. Nor does it show that it, or any one whom it represents, ever accepted tbe gift tendered by tbe Cohoes Company.

We are of opinion that tbe judgments should be affirmed, with costs.

L AND ON and PutnaM, JJ., concurred.

Judgments affirmed, with costs.


author: LaNDON, J.: Fish, J.

text:
    THE PEOPLE ex rel. THOMAS STAPLETON and Another, Respondents (Ninth Ward), v. GEORGE H. BELL and Another, Appellants, and five other cases, covering two Districts of the Seventh Ward, one District of the First Ward, Eighth Ward and Twelfth Ward of the City of Troy.

      Inspectors of election — duty of, to allow votes, believed by them to be illegal, to be sworn in.

    Upon an appeal from an order directing that a mandamus issue commanding the defendants, who were inspectors of election, and who, together with the relators, composed the hoard of inspectors for the election district in the ninth ward of the City of Troy, to sign the returns of the said election, it appeared that, upon the close of the polls on the day of election, the hoard counted the ballots, canvassed the votes and proclaimed the results in that district, and that such results, so proclaimed, were correctly stated in returns in the form required by law, but that the defendants refused and still refuse to sign them.
    The defendants made affidavits that, “during said election, to deponents’ knowledge, there were at least seventy fraudulent votes offered at said polls. By fraudulent votes deponents mean that persons who did not reside within said election district, and who were not registered and who were not entitled to vote, appeared before the said hoard and fraudulently and falsely represented themselves to he registered voters, which they were not, to deponents’ knowledge. Upon offering said fraudulent votes, deponents would object to their receipt; said persons were challenged and sworn and their answers were unsatisfactory. In many cases opportunity was not given to deponents to question the voters, and the said ballots were not, nor was anyone of them “received ” by said board, or a majority thereof,” but that the relators, contrary to deponents’ protest, put the same into the ballot boxes.
    Upon the argument the defendants’ counsel stated the purport of this affidavit to be, that the defendants knew or believed that the seventy votes which were deposited, were deposited by persons who falsely personated persons whose names were on the register for that district.

      Held, that the defendants’ claim, in regard to the responses of the parties challenged, . that “ their answers were unsatisfactory,” did not show that their answers were not as full and complete as the law required.
    That as the defendants’ affidavit did not state that the questions put to persons challenged were not fully answered as required by the Election Code, it must bo assumed that the answers were full; that if the defendants believed they were false they should have pointed out in what respect the qualifications of the challenged persons appeared to them to he insufficient; that if the parties challenged still persisted in their claim to vote, and made the statement as to residence required by section 7 of chapter 576 of 1880, the inspectors’ disbelief in the honesty of the statement, or in the identity of the person, must yield, and that the votes should be received.
    It was claimed by the defendants that these ballots were not “ received,” because the defendants did not consent to their deposit in the ballot-box.

      Held, that the presumption was, that the statements made upon oath were true; that'the party challenged must be assumed to be innocent until he is proved to be guilty; that the inspectors by disregarding the oath of the voter and condemning him as perjured upon their own knowledge, or upon their confidence that they had knowledge upon the subject, would deprive him of the opportunity to prove before the proper tribunal that they were mistaken or ignorant, in other words, deprive him, without due process of law, of the right which he had established according to the forms of the law, and that they would thus arrogate to themselves a jurisdiction which the election laws did not confer upon them and which the Constitution forbade. (Pish, J., dissenting.)
    Appeal by tbe defendants from an order made at a Special Term held in Rensselaer county, wbicb was entered in tbe office of tbe clerk of tbe county of Rensselaer on November 18,1889, directing that a peremptory writ of mandamus issue against tbe defendants, requiring them forthwith to duly sign the last election returns of the election district of tbe ninth ward, in the City of Troy, and to certify to the correctness thereof.

      George JB. Wellington, for tbe appellants.

      B. A. Parmmter, for tbe relators respondents.
   LaNDON, J.:

Tbe relators and tbe defendants are inspectors of election, and together composed tbe board of inspectors for tbe election district in tbe ninth ward of tbe City of Troy at tbe last general election. Upon tbe close of tbe polls on tbe day of tbe election tbe board, thus constituted, counted tbe ballots, canvassed tbe votes and proclaimed tbe results in that district. Thereupon such results were correctly stated in returns in tbe form required by law, and tbe relators signed tbe returns, but tbe defendants refused and still refuse to sign them. Tbe Special Term by mandamus directed tbe defendants to sign tbe returns, and tbe defendants appeal from the order. Tbe order should be af&nned unless tbe facts alleged by tbe defendants in justification of their refusal amount to a sufficient justification.

They make affidavits in their justification that “ during said election to deponents’ knowledge there were at least seventy fraudulent votes offered at said polls. By fraudulent votes deponents mean that persons who did not reside within said election district, and who were not registered and who were not entitled to vote, appeared before said board and fraudulently and falsely represented themselves to he registered voters, which they were not, to deponents’ knowledge. Upon offering said fraudulent' votes deponents would object to their receipt; said persons were challenged and sworn, and their answers were unsatisfactory. In many cases opportunity was not given to deponents to question tbe voters, and tbe said ballots were not, nor was any one of them, received by said board or a majority thereof. Although said ballots were not received by the board and were not given at said election, nevertheless, the said Hassett and Stapleton, tbe other members of said board, contrary to tbe protest of deponents, took said ballots that were not given by any voter, and were not received by tbe board, and put said fraudulent ballots into tbe ballot-boxes in charge of said board at said election. Deponents are prepared to prove each one of the allegations herein made by reliable witnesses. Deponent did not sign the returns referred to in the moving affidavits herein, for the reason that the same are incorrect. There were not given in said district the number of votes therein named, and there were not received by the various candidates the number of votes therein stated, in that there were upwards of seventy votes before referred to that were put into said boxes contrary to the protest of deponents, and without said ballots having been received by the board or a majority thereof.”

Upon the oral argument counsel for defendants stated that the defendants knew or believed tha,t these seventy votes were deposited by persons who falsely personated persons whose names were on the registry of electors for that district. Giving to the affidavit this construction, it is proper to examine and ascertain whether the affidavit shows that any of these votes were illegally received. The persons offering them were challenged and sworn and made answer. Their answers were not satisfactory to tho defendants, but that is very far short of a statement that their answers were not as full and complete as the law requires. The case of tho defendants rests upon the position that the defendants were acting Judicially, and that upon hearing the answers of the persons challenged, if defendants did not believe what they swore to, or from their own knowledge of the men and of the facts believed, that they committed perjury, they had the right to decide the case in conformity with their own knowledge and belief, in disregard of tho sworn statements of tho person offering to voto.

. In our opinion such is not the law. The election laws of this State have been framed with tho intent to prescribe as fully as necessary the tests by which the right of a person to vote shall be determined, and to leave as little as possible to the discretion or judgment of the inspectors of election. These officers, as their namo implies, are inspectors, and not judges, of the election. The intent of the statutes is that the inspectors shall follow the dhections presci’ibed, and that by so doing the right to vote of any person whose right is challenged will thereby bo determined; that is, the fact will be so manifest that the inspectora cannot fail to perceive it.

Thus, prior to the day of election, the persons entitled to vote must be registered. This is not conclusive in their favoi’, but if the name of any person is omitted or sti’icken from the registry the absence of bis name from the registry on election' day is conclusive against bis right to vote. (Chap. 576, §§ 6, 20, Laws of 1880, applicable to the City of Troy.)

"When a person oilers his vote, manifestly the first duty of the inspectors is to loolc for his name upon the registry. If it is not there, his vote must be rejected. But in the case be.foro us the persons whoso votes are under consideration gave names which were found upon the registry. The defendants, we presume, challenged these persons because they did not believe them to be the persons of the names they gave, or the persons actually registered. The statutes prescribo a preliminary oath (Election Code, § 260; Laws 1842, chap. 130, tit. 4, § 13), and if the questions put to the challenged person under that oath are not fully answered his vote may bo rejected. (1 id., §§ 261, 262.) The affidavit does not state that these questions were not fully answered, but does state that the answers were not satisfactory to the defendants. We must presume that the answers were full, but the defendants believed they were false. If the defendants could point out, in any respect, the qualification in which the challenged person appeared to them to be deficient, it was their duty to do so (Id., § 263) and then if he persisted in his claim to vote, the general oath should be administered to him. (Id., § 264.) The defendants allege that they were not, in some cases, given by their associates an opportunity to question the voters, but they do not allege that any statutory question was withheld by the inspectors who did question them. We must presume that all the questions proper to be asked were asked, and that the answers were full.

The answers made by the persons taking these oaths were made under the penalties denounced by these statutes against perjury. The questions permissible are comprehensive enough- to embrace fully the fact of the identity of the person challenged with the registered person whose name he gives as his own. Besides section 7 of chapter 576, Laws of 1880, provides that: “Every elector at the time of offering his vote shall, if required, truly state the street in which he resides, and if the house, lodging or tenement in which he resides is numbered, the number thereof; * * and in case of the refusal to make the statement as aforesaid the vote of such elector shall not be received.” This statement is not required to be made upon oath, but its truthfulness is thus exacted: “Any person who shall willfully make any false statement in relation thereto shall be deemed guilty of a misdemeanor, and shall, upon conviction, be punished with a fine of fifty dollars or by imprisonment in the county jail * * * for a period of ten days, or by both such fine and imprisonment.”

The statutes having carefully prescribed the tests to determine the right of any person to vote, the proposition that the inspectors can in addition thereto prescribe or impose such other and further tests as they may deem adapted to the particular case before them, is wholly inadmissible. If the person offering to vote does comply with the statutory tests, the inspectors’ disbelief in his honesty or identity must yield, and the vote should be received. There is no allegation that these seventy voters did not comply with the statutory tests, and hence the conclusion follows that their votes were lawfully received, whether the defendants were or were not satisfied, and having been received and counted, the proper returns should be made and signed. It is, however, urged that these ballots were not “ received,” because the defendants did not consent to their deposit in the ballot-box. To test this question, suppose one of these voters should sue one or all of the inspectors for refusing to receive his vote. He certainly would be defeated, upon the facts here presented, showing its receipt. The proposition that if the inspectors know, of their own knowledge, that the person offering to vote is not the person actually registered, they may disregard his statement and oath and reject his vote, is open to other objections. The presumption is that the statements made upon oath are true, and that the accused voter is innocent until he is proved to be guilty. It is plain that the inspectors who disregard the oath of the voter and condemn him as perjured upon their own knowledge, or upon their confidence of having or' acquiring knowledge, deprive the voter of the opportunity to prove before the proper tribunal that they are mistaken or ignorant; in other words, deprive him without due process of law of the right which he has established according to the forms of law, and that they thus arrogate to themselves a jurisdiction which the election laws do not confer upon them, and which the Constitution seems to forbid. It would be an . extraordinary law which should assume to clothe the inspectors of election with judicial functions, and then add to such functions the power to consider their personal knowledge of the facts as paramount and conclusive evidence of them. Such judges thus empowered would need to be highly endowed with intelligence and virtue. If the inspectors of election are such judges, then, in the final test, the right to vote does not depend upon the written law, but upon the secret consciousness of the inspectors. It is easy to believe that partisan inspectors might not rise to the high requirements of their office, and that if a choice of evils is to be made, reliance upon the law is the lesser evil. We admit that no person can lawfully acquire the right to vote by the false personation of another or by perjury, for these acts are crimes. We admit, also, that every person who sees another engaged in committing a crime may reasonably interpose to arrest and prevent it, but he takes upon himself every risk of mistake, and, of course, the burden of proving before the proper tribunal, if prosecuted, that his interposition was warranted because of the attempted criminal act of the other. It is true that no person abdicates his personal rights by accepting the office of inspector of election; but it is also true that in this proceeding we cannot try any such issues between the inspectors and the accused voters; the latter are not present as parties and are not heard in their own behalf; the issues are not made. Besides the votes were received and not rejected. If they had been rejected, only those received could be returned.

The defendants believe that some of the votes were illegally cast. Belief is not proof. To reverse the order appealed from would be to suppress the vote of the district, and to invite occasion for like suppression in the future in other districts. If any person aggrieved by the returns desires a judicial investigation as to the illegality of any of these votes, the law prescribes the procedure. The law prescribes the punishment for illegal voting. The votes received must be returned. It follows that the order appealed from should be affirmed.

In the five other cases herewith argued the orders appealed from are also affirmed.

Learned, P. J., concurred.

Fish, J.

(dissenting):

The order from which this appeal is taken directs the issuing of a peremptory mandamus to the defendants, requiring them “ forthwith to sign the election return heretofore filed in the office of the county clerk of Rensselaer county, and to certify to the correctness thereof?

The defendants in answer to the motion state that they did not sign the returns for the reason that the same are incorrect; that there were not given in said election district the number of votes therein named; that there were not received by the various candidates the number of votes therein stated; and further state that there were upwards of seventy votes put into the ballot-boxes from which these returns are made, without having been received by the hoard of inspectors, or a majority of them. This statement is sworn to by the defendants, who constitute half of the full board of inspectors. Their affidavits are entitled to at least as much weight as that of the relators. The evidence before this court is equally balanced as to the correctness of the returns in question.

If the order contemplated the making and signing by the defendants of a return of the election, it might not be offensive to their sense of propriety. Such an order would be well sustained by judicial authority. If these defendants were contumacious, and refused to make any return, it would be proper for this court to give them direction, not to make or sign any particular return, or to certify to the correctness of any particular return, but simply to make a return of the election. (People ex rel Francis v. Common Council of Troy, 78 N. Y., 33.)

But the order calls upon the defendants to certify to the correctness of the return now on file, made up by the relators who were associate inspectors, and which return defendants protest under oath is not correct, but is false in substantial particulars. By this order the defendants are required, by a peremptory mandamus, to certify to the correctness of a thing which they say they know to be incorrect; which they know to be a false return; in fact to commit an act which, if voluntarily done, would be a crime, and render them liable to indictment.

I do not think that the arbitrary and extraordinary powers of this court ought to be exercised to enforce action upon such doubtful premises, and, above all things, to require public officers, acting under a solemn oath, to do a thing which .they protest will be untruthful when done. There is no precedent for such an action in any case where there was a bona fide dispute about the facts. It is only in clear and unquestionable cases that this extraordinary process is called into action. (See The People ex rel. Mott v. Supervisors, 64 N. Y., 600; The People ex rel. Slavin v. Wendell, 71 id., 171; The People ex rel. Lunney v. Campbell, 72 id., 497; The People ex rel. Cahill v. Hines, 10 Weekly Dig., 88.)

Even if it be conceded that inspectors of election are strictly ministerial officers having no judgment or discretion to exercise, and who may not, under any circumstances, reject the vote of any person who presents himself and takes the formal oath, no matter how transparent a fraud is perpetrated, still, they ought not to be compelled to certify to the correctness of that which they do not believe to be true, or that which they protest is not true. But I am unwilling to hold that the election inspector is nothing, unless it be a clerk of the election, bound to receive and deposit in the ballot-box the votes of all who may be willing to take the prescribed oath, and whose only duty or authority beyond that is to count the ballots and certify the result. One inspector could do that, with the aid of the watchers to see that the count was right.

Why is a board of inspectors provided if they have no judgment to exercise in any case ? And especially, why is there provided for the City of Troy a non-partisan board, made up of two members from each political party, unless there is something to be done or determined, upon which the minds of men may differ ? It is claimed by the learned counsel for the relators, in his very able argument, that every person who offers his vote, if he takes the oaths required, determines for himself the question of his right to vote. If he testifies that he is the man named on the registry as John Doe, and that he resides at the place named, and thus fills out the formal requirements, his vote must be accepted by the inspectors, even though they all know that he is not the John Doe entered on the register, and know that he is not entitled to vote. Can this be so ? Is it possible that a board of election inspectors, consisting of four members, must stand by and see an open fraud upon the franchise committed, knowing it to be such, and yet without power to prevent it ? It is plain that such a holding must lead not only to the forced reception and count of the unlawful votes, but to the exclusion and disfranchisement of those entitled to vote whose places upon the registry are usurped.

There may be many J ohn Smiths residing in the same election district, some of whom are registered and entitled to vote, others not. Is there no power in a board of inspectors, so far as they know, to see that the genuine John Smiths are not robbed of their franchises by those who assume their place on the register ? Is it the law that a board of election inspectors have no power or right to decide between conflicting claims which may be made to fill the places of the registered John Smith? Must the inspectors accept the votes of the first men who come, and who come early, when they know that the early comers are not the true electoi'S ? It must be kept in view that inspectors of election are public officials whose duty it is to preside at the elections. It would seem as if they should be clothed with power to protect the ballot-box against such frauds as appear openly and are known to them

In the case before us the defendants make affidavit, that more than seventy votes were put in the ballot-boxes in question without the consent or action of the board of inspectors, and which came from persons who they knew were not legal voters and who were not registered. These ballots were taken and deposited in the ballot-boxes by one or two of the inspectors, against the protest of defendants, who constituted half of the board and were not, therefor, received by the board. If this statement is true, the ballot-boxes contained the large number of ballots referred to, which had not, in contemplation of law, been received by the inspectors, any more than if the persons who offered them liad, with strong hand, made the deposit. And if the ballot-boxes were thus freighted with such ballots, deposited without the direction of the board, no correct count could be made of the votes received. The omission of the inspectors to make a return will not have the effect to destroy the votes of the legal electors, or prevent the election of any candidate, who received a majority of the legal votes. It will leave it open to other modes of proof to ascertain the result. A great inconvenience may result, not so great, however, as may come if the principle upon which this order is granted shall prevail. With great deference to the opinion of my distinguished brethren, and fully impressed with the desirability, on so vital a question, of harmonious judicial results, I am, nevertheless, persuaded that the extraordinary powers of this court will not be well exercised by directing a mandar datory writ to these defendants requiring them to certify to the correctness of a return which they protest is not correct or true.

■With much reluctance, therefore, I dissent from the conclusions of a majority of the court.

Orders affirmed in each case.