text:
    John Raven, Respondent, v. William R. Smith, Appellant.

      Payment into court to discharge a mechanic’s lien — represents the lien on the land —judgment ¡nit in evidence and. subsequently moated — new trial — motion to annul a judgment.

    Where money is paid into court to discharge a mechanic’s lien, it stands in lieu of the land for the satisfaction, of the lienor’s claim,, and to reach the fund he is obliged to show not only the validity of his claim but a lien on the'land.
    An action was brought in the County Court to foreclose a mechanic’s lien ; upon the trial the parties admitted in evidence a judgment of the Supreme Court between the same parties which established the plaintiff’s claim for work. Judgment was rendered for the plaintiff which was affirmed upon appeal. Subsequently the Supreme Court judgment was reversed. The defendant then moved to vacate the judgment of the County Court, and an order was made vacating that judgment and granting a new trial on terms. Subsequently, on an affidavit of the defendant’s attorney that his motion was not for a new trial, but to vacate and annul the judgment, the court reheard the application and denied it.

      Held, that the Supreme Court judgment was in the County Court action a mere matter of evidence ; that upon the reversal of the Supreme Court judgment the County Court should, upon terms, grant a new trial;
    'That a denial of the motion to annul the judgment was .proper.
    Appeal by tlie defendant, William R. Smith, from an order of the County Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 15th day of November, 1893, denying the defendant’s motion to vacate the judgment in this action.

      James R. Bowen and Isaac If. Miller, for the appellant.

      Frederick W. Olap'h, for the respondent.
   Cullen, J.:

The action was brought in the County Court to foreclose a mechanic’s lien. The defendant answered. Upon the trial the parties admitted a judgment of the Supreme Court between the same parties which established the plaintiff’s claim for work. Judgment was rendered for the plaintiff. The defendant appealed to this court, and the judgment was affirmed. Subsequently the judgment in the action in the Supreme Court was reversed on appeal. Thereupon the defendant moved on the reversal of the Supreme Court judgment to vacate the judgment in this action. The County Court made an order vacating the judgment and granting a new trial on terms. Subsequently on an affidavit of the defendant’s attorney that his motion was not for a new trial, but to vacate and annul the judgment, the court reheard the application and denied it. From that order this appeal is taken.

Upon these facts it will be seen that the only question presented by this appeal is whether the judgment of the County Court was, or subsequently became void or not. Upon the reversal of the judgment in the action in this court, which judgment was the basis of plaintiff’s recovery in the County Court, doubtless that court should, upon some terms, open the judgment and grant a new trial. (Smith v. Frankfield, 13 Hun, 489.)

This relief the first order of the County Court granted, but the defendant expressly repudiated it. He seeks to annul the judgment and obliterate the proceedings in that court without giving the plaintiff even an opportunity to try his case. ’ The Supreme Court judgment was, in this action, a mere matter of evidence. The jurisdiction of the County Court to render a judgment no wise depended upon its previous rendition. The objection that the recovery in the first action prevented a further recovery in this action was a matter-of defense, which, so far as relates to the validity of the judgment, here, it is wholly immaterial whether the court decided rightly or wrongly. If wrongly decided, it was but an error to be corrected on appeal. Had the defendant actually paid a recovery in the-Supreme Court, which included the claim in this action, it may be. that he might have had relief by motion, despite the recovery of two judgments. (Woods v. Pangburn, 75 N. Y. 495.)

But no satisfaction is alleged in the papers or suggested on the-argument. It is further contended that the character of the work performed by the plaintiff did not, under the statute, entitle him to a lien. This, also, was a matter to be determined on the trial of the action, and the judgment is conclusive on it. The only objection that in any way goes to the jurisdiction of the court, is, that money having been-paid into the court to discharge the lien, thereafter-nothing but a common-law action could be maintained by the plaintiff, and that such an action could not be maintained against the defendant in the County Court because he was a non-resident of the •county. We think that the judgment concluded the defendant on this point, but the contention is plainly erroneous. The money ■deposited stood in lieu of the land for the satisfaction of plaintiff’s claim, if he established a valid lien. To reach that fund the plaintiff was obliged to show not only a claim against the defendant, but •a lien on the land. The action was, therefore, one to foreclose a lien.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Pratt and Dykman, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: Cullen, J.:

license: Public Domain

text:
    The Roslyn Heights Land and Improvement Company, Respondent, v. Robert Burrowes, Appellant, and Another.

      Counterclaim setting up a common-law claim — a trial by jury is proper, unless a long account is involved — •framing of issues — not a bar to a motion for a reference.

    'When a counterclaim sets forth a common-law claim the defendant is entitled to a trial by jury if he makes an application therefor as prescribed by section 970 of the Code of Civil Procedure, unless the counterclaim involves a long account, in which case the action is referable.
    Where the defendant in an action, who is entitled to a jury trial upon his counterclaim, moves to have issues framed, and the application is opposed by the plaintiff on the ground that the counterclaim involves a long account, the motion should he granted of course unless resisted by a counter application for a reference.
    An order directing the framing of issues is not a bar upon an application for a reference on the ground that a counterclaim involves a long account.
    Appeal by the defendant, Robert Burrowes, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 28th day of July, 1893, denying the defendant’s motion to have the issues in the above-entitled action framed.

      Roger M. Sherman, for the appellant.

      J. E. Ludden, for the respondent.
   Cullen, J.:

One of tlie defendant’s counterclaims was a common-law claim. This, under the Code (§ 974), gave him the right to a trial as at common law if he made his application as prescribed by the Code (§ 970). (Mackellar v. Rogers, 109 N. Y. 468.)

This counterclaim was, therefore, triable by a jury unless it involved a long account, in which case it was referable. To preserve his rights to a common-law trial the defendant was compelled to move to frame issues. This he did, and the plaintiff opposing the application, it was denied. The affidavit of plaintiff in opposition states that the defendant was not entitled to a jury trial, but that the action was referable. But though the affidavit is long, it fails to state or show the only thing which would justify a reference, that is, that the action involved a long account. As the case stands now, the defendant’s application has been denied, but no order of reference has been made, and none may ever he made unless the plaintiff should apply for it. If the action is prosecuted the cause will be brought for trial before the court at Special' Term, and the defendant deprived of the mode of trial prescribed by law. We tliinlc that the defendant’s motion should have been granted as of course; that the plaintiff, if it believed the counterclaim to involve a long-account, should either have resisted it by a counter application for a reference, or by making such apjdication after the order framing the issues, an application to which the order framing the issues would not be a bar.

The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, without prejudice to any application which plaintiff may make to refer the action.

Pratt and Dykman, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, without prejudice to any application by plaintiff for a reference.


text:
    Ernest Jesper, Appellant, v. The Press Publishing Company, Respondent.
    Verdict— action for libel — errors in the charge which are not cared by a verdict for the plaintiff.

    A respondent to upliold a verdict must show that the errors complained of could not have affected it.
    In an action for personal injuries, or injuries to property, ordinarily the question of the right to recover would in no wise be related to the amount of the recovery. But in an action to recover damages for libel, it cannot be said that a jury might not have given less damages for a publication, the interpretation of which the court held to be doubtful, than it would have given had the court charged the publication to be a libel as a matter of law.
    Appeal by tbe plaintiff, Ernest Jesper, from a judgment of tbe Supreme Court in favor of tlie plaintiff, entered in tlie office of the clerk of the county of Kings on the loth day of March, 1893, upon the verdict of a jury for $250, after a trial at the Kings County Circuit, and also from an order made at the Kings County Circuit on the 9th day of March, 1893, and entered in said clerk’s office, denying the plaintiff’s motion to set aside the verdict, and for a new trial made upon the minutes.
    The libel set out in the complaint was the following article alleged to have been published’in a newspaper :
    “ Want Follows his Death.

      “The Family of Charlen Klotz in « sad Plight.

      “ The alleged cruel and unprovoked assault upon Charles Klotz which resulted in his death, by Ernest Jesper, a butcher doing business at No. 312 Myrtle avenue, early on the morning of October 18, has caused widespread indignation among the residents of the eastern district. Klotz, in company with Louis Walker, a fellow-workman, left Dahm’s bakery, where they were employed, at 1:15 o’clock Saturday morning to go home. The two men hurried to Myrtle avenue in order to catch a car, but just missed it. They sat down on a fish stand in front of Jesper’s shop to wait for a oar, as they had done frequently before. The men were eating some hot rolls which they had brought from the bakery. As they sat there chatting and swinging their feet against the side of the stand, Jesper came out and ordered them away. Klotz replied that he was in no hurry, but at the suggestion of Walker started towards the curb, where they would sit and wait for the car.
    “ Just then, it is alleged, Jesper, wlio had been holding his right hand behind his back, rushed towards Klotz and struck him several blows about the arms and head with a club. The poor baker fell bleeding to the sidewalk. A patrol wagon took him to the fourth precinct station house, where the ambulance surgeon said he was too drunk to leave the station house, and he was locked up in a cell on the charge of intoxication. Klotz was taken to his home Saturday and subsequently to St. Katharine’s Hospital, where he died of a fractured skull.
    “ Mr. Dalim, Klotz’s employer, has sworn that the latter was not drunk, and, moreover, Mrs. Klotz says that the police of the fourth precinct turned over to her $11.30, which they had taken from her husband’s pockets, and which was only seventy cents short of fifteen dollars, his week’s salary paid him by Mr. Dalim 'on Friday night. Klotz, Mr. Dalim said, was sober and industrious, and never lost an hour on account of drink. Jesper was arrested and is now in jail, but this is poor consolation for the heart-broken widow, who is left to struggle for a home and a living for herself and four little children, the oldest of which is six years and the youngest only three months. Up to a few months ago the Klotzes had had a little money saved up, but sickness soon swept it away, and now there is not a dollar in the house. ‘ I shall have to give up my little home here,’ said Mrs. Klotz to a World reporter last night, £ as I have no money and no relatives in this country. My husband was always kind to us and worked hard to provide for us. We were economical and at times saved a little money, but there was always something to happen that took it from us. I am willing to do sewing or even washing. I can’t go out to work because there is no one to take care of the children. I don’t know what will become of us,’ and the poor woman wept bitterly.
    “All the neighbors speak in the highest terms of the Klotzes, and it was said' last night that a subscription had been started in aid of the destitute family.”

      A. W. Tennexj, for the appellant.

      John M. Bowers and Julian G. Bxicldey, for the respondent.
   Cullen, J.:

This is an appeal by the plaintiff from a judgment in his favor 'entered on the verdict of a jury. The action was for libel, and the plaintiff recovered $250 damages.

The plaintiff claims that the court at Circuit erred in submitting to the jury the question whether the publication was a libel, and in refusing to charge that the publication was libelous on its face. We think this claim correct, and that the learned trial court erred in refusing to charge as requested. The article complained of was in no sense a report of a judicial proceeding, but a charge that the plaintiff had committed an unprovoked assault on one Klotz, causing his death. The charge was none the less a libel because it narrated an alleged assault. To sustain a defense of justification it would be necessary to prove not that the offense was alleged, but that it was committed. (Moore v. Francis, 121 N. Y. 199; Townshend on Libel.)

Therefore, it was also error to charge that if the article simply stated that the plaintiff was charged with crime the defendant was entitled to a verdict.

The most debatable question is whether these errors were cured by the verdict, the jury having found for the plaintiff. The rule is that the respondent, to uphold the verdict, must show that the errors complained of could not have affected it. (Greene v. White, 37 N. Y. 405.)

In this case it plainly did not affect the verdict so far as the question of the liability of the defendant is concerned, for the jury has found that the publication was a libel. But the question remains whether this error may have affected the matter of damages. Were this an action for j>ersonal injuries, or injuries to property, ordinarily the question of the right to recover would in no wise be related to the amount of the recovery. But in an action of this kind, unless special damages are alleged, no proof is given of actual damage. The law assumes damage from the publication of the libel, and the amount of damage depends on the character and severity of the libel. In such a case we cannot say that the jury might not have given less damages for a publication, tlie interpretation of which, the court held doubtful, than it would have given had the court charged the publication a libel as a matter of law.

The judgment and order denying a new trial should be reversed, and a new trial ordered, costs to abide the event.

Pratt and Dykman, JJ., concurred.

Judgment and order denying motion for new trial reversed and new trial ordered, costs to abide the event.


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    James A. Buchanan, Appellant, v. Stephen M. Whitman, Respondent.

      Lease — day of the date thereof included, in the term — right of renewal given to the tenants — cannot be exercised, by one.

    By the weight of authority in the State of New York the day of the date of a lease is included in the term unless the instrument shows a contrary intention or custom a different usage.
    Where a lease given to two tenants contains a right of renewal, and the partnership between the tenants has been dissolved prior to the expiration of the original term and one of the tenants alone remains in possession of the premises, he cannot renew the lease without the consent of his co-tenant, and the landlord is not bound to grant a renewal of the lease to him alone.
    Appeal by the plaintiff, James A. Buchanan, from a judgment of the County Court of Orange county in favor of the defendant, entered in the office of the clerk of the county .of Orange on the 29th day of June, 1893, upon the decision of the' court, reversing the judgment of a ■ justice of the peace of the town of Deerpark, Orange comity, in favor of the plaintiff.

      H. B. Fullerton, for the appellant.

      Lewis E. Carr, for the respondent.
   Cullen, J.:

This is an appeal from a judgment of the County Court which reversed a judgment for the plaintiff in summary proceedings to recover demised premises.

"VVe think that the lease included the eighth day of April, and terminated at the expiration of the seventh day of April the next year. The weight of authority in this State includes the day of the date of a lease in the demised premises, unless the instrument showed a contrary intention, or custom a different usage, though it must be confessed that there is no very clear adjudication on the question. ( Wilcox v. Wood, 9 Wend. 346; Deyo v. Bleakley, 24 Barb. 9 ; People v. Robertson, 39 id. 9.)

In Mack v. Burt (5 Hun, 28) the lessee was to have possession “from and after May 1st.” This expression unquestionably excluded the first of May, but it is not an authority for this case.

The lease gave the tenants a right of renewal. But the lease was made to two tenants, and the partnership between them had been dissolved prior to the expiration of the original term. It appears that Whitman alone remained in possession. He could not renew the lease without the consent of his co-tenant, and the landlord was not bound to renew the lease to him alone. (James v. Pope, 19 N. Y. 324.)

. On the conceded facts, therefore, we think that the plaintiff was entitled to recover.

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

Pratt and Dykman, JJ., concurred.

Judgment of the County Court reversed, and that of the justice affirmed, with costs.


author: Pratt, J.:

text:
    James C. Brower, Respondent, v. Leopold Kahn, Appellant, Impleaded with Others.

      Appearance by attorney — when set aside, when not.

    The appearance oí a duly admitted attorney of the court is prima facie good.
    Where it is shown that an attorney who appeared in an action was not authorized to appear therein, and that injustice will he done hy allowing the appearance to stand, the court, upon the application of a party whose rights are imperilled, will take adequate measures for their protection; hut where an unauthorized appearance works no injury, a motion to strike it from the record is properly denied.

      Appeal by the defendant, Leopold Kahn, from an order of the Supreme Court, made at the Kings County Special Term on the 2d day of August, 1893, and entered in the office of the clerk of the county of Kings, denying the defendant’s motion to vacate and set aside the notice of appearance on his behalf, and all proceedings upon said notice of appearance had against him.

      Emanuel J. Myers and Arthur A. Alexander, for the appellant.

      William T. Gilbert and William H. Ford, for the respondent.
   Pratt, J.:

The appearance of a duly admitted attorney of the court is prima facie good. Where it is shown that he was not authorized to appear, and it is shown that injustice will be done by allowing the appearance to stand, the court, upon the application of a party whose rights are imperilled, will take adequate measures for their protection.

That is not this case. Kahn has no rights in the premises and no interest in the litigation.

If the facts which are shown in this application appeared upon the real property records he would not have been made a party to the litigation.

The appearance for him of the attorney does him no injury, and the motion to strike it from the record w'as properly denied.

The order must be affirmed, with ten dollars costs and disbursements.

Dykman, J., concurred; Cullen, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


text:
    Elizabeth D. De Lancey, Respondent, v. Henry Piepgras, Appellant, Impleaded with Another.

      Costs of an appeal — extra allowance — modification of a judgment of affirmance.

    A plaintiff who succeeds on>the main issue is entitled to the costs of an appeal.
    The circumstances considered and commented upon which justify the denial of a motion to set aside an order granting an extra allowance in an action of ejectment, and the denial of an application at the General Term to modify its previous judgment of affirmance by striking out the recovery of costs.
    Appeal by the defendant, Henry Piepgras, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Westchester on the 4th day of October, 1893, denying the defendant’s motion to set aside an order granting the plaintiff an extra allowance of $300.

      Geo. A.- Blaelc, for the appellant.

      Walter D. Edmonds and John Hunter, Jr., for the respondent.
   Cullen, J.:

This action is in ejectment to recover certain lands under water. The plaintiff recovered at Circuit, and the court granted an extra allowance of $300. At General Term the judgment was affirmed, with costs. The Court of Appeals modified the judgment by reserving to the upland owners certain privileges and affirmed the judgment as modified. (138 N. Y. 26.) After the judgment of the Court of Appeals the defendant moved on affidavit to set aside the order granting the extra allowance, which application was denied. From that order this appeal was taken. He also makes an original application to the General Term to modify its previous judgment of affirmance by striking out the recovery of costs.

Assuming the power of this court to modify their previous judgment after its affirmance by the Court of Appeals, we think that the defendant should succeed in neither application. The extra allowance at Circuit was granted on the affidavit that the value of the land recovered was $15,000. The allowance, therefore, was far within the power of the court. On the application to strike out the extra allowance the same affiant has made affidavit that if, as he is informed, the defendant has an easement over every part of the land recovered, in his opinion the land subject to such easement is of no market value. It is sufficient to say that the affiant is mistaken as to the result of the decision of the Court of Appeals, and that his information in this respect was incorrect. His affidavit based on this error, therefore, wholly fails, and the application was properly denied.

If the General Term had modified the recovery at Circuit to the same extent as it was subsequently modified by the Court of Appeals, still the costs of the appeal would have been in the discretion of the court. The substantial litigation was as to the plaintiff’s title to the land. The reservation was but a minor feature of the controversy. The plaintiff having succeeded on the main issue, we think was entitled to the costs of the appeal.

The order appealed from should be affirmed, with ten dollars costs and disbursements, and the application to the General Term should be denied, with ten dollars costs. ,

Pratt and Dyicman, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements, and application to General Term denied, with ten dollars costs.


author: Brown, P. J. :

text:
    The People of the State of New York ex rel. John L. Ryder, Respondent, v. The Clerk of the Board of Supervisors of Kings County, Appellant.

      Supervisors — term of office of — chapter 569 of the Laics of 1890.
    Chapter 119 of the Laws of 1864, applicable to the election of town officers in Kings county, provided that the term of office of supervisors should be two years. Chapter 569 of the Laws of 1890 repealed all general and special acts inconsistent therewith, and provided that the term of office of supervisors should terminate on “the first day of January each year.”

      Held, that the term of office of the supervisors elected in the county of Kings was limited to one year, although the act, chapter 119 of the Laws of 1864, which fixed the term of office of such supervisors at two years, was not specifically repealed by chapter 569 of the Laws of 1890 and the acts amendatory thereof.
    The words “ each year” cannot be construed to mean each year in which a two-year term shall terminate.

      Appeal by The Clerk of the Board of Supervisors of Kings County and Richard L. Baisley, from an order of the Supreme Court, made at the Kings County Special Term on the 8th day of January, 1894, directing that a writ of peremptory mandamus issue on behalf of the relator, Jolm L. Ryder, directed to the clerk of the board of supervisors of Kings county, commanding that the clerk erase from the roll of members of the board of supervisors of Kings county the name of Richard L. Baisley and enroll the name of John L. Ryder as supervisor of the town of Flatlands, Kings county.

      Jas. G. G hurch, for the appellants.

      Geo. F. Elliott, for the respondent.
   Brown, P. J. :

This appeal presents the question whether, under the General Town Law (Chap, 569, Laws 1890), the term of office of supervisors in the towns of Kings county was one or two years.

Inasmuch as the Legislature, by chapter 387, Laws of 1893, expressly provided that such supervisors should hold office for the .term of two years, the question is not now of any general importance.

Richard L. Baisley was elected at the general election held in November, 1892. If the term of office at that time was one year the relator was properly elected in November, 1893, and the order appealed from must be affirmed.

Under chapter 119, Laws of 1864, the term of office was fixed at two years, commencing January first next after the election, and the election was had at the annual town meetings.

Chapter 564, Laws of 1881, changed the date of the election from the annual town meetings to the general election held in November, and provided that the term of office should commence and determine on the first day of January.

Neither in the title or body of this act is any mention made of the duration of the term, and it continued to be two years.

The General Town Law of 1890 re-enacted substantially the provision of the act of 1881 as to the time of the election, and provided that “ the terms of office of the persons so elected shall commence and terminate on the first day of January each year,” and it repealed all general and special acts inconsistent therewith. Substantially tlie same provision was enacted in the amended law of 1892.

No effect can‘be given to the words “ each year” in the sentence quoted, other than an intention to reduce the terms of office to a single year. The section of the law in which they appear is entitled1 “ election of and term of town officers.” The words “ each year ” has reference to the duration of the term. They cannot be made to refer to “ each year ” in which a two years’ term would begin and end, as the purpose to begin and end such term on the first day of January was accomplished by the law of 1881, and the words, under such a construction, would be mere surplusage, and would add nothing to that act. They were added to the law then existing to accomplish some purpose with reference to the duration-of the time. And I can conceive of none, except the intention to make the term of office begin each year and end each year.

The fact that the law of 1861 does not appear in the schedule of laws repealed by the Town Laws of 1890 and 1892, in connection with the legislative direction to the commissioners to specifically provide for the repeal of all laws which should be superseded by their revision, is quite strong evidence that it was not intended by the Revision Commissioners or the Legislature that the law of 1861 should be repealed. Section 229 of the Town Law tends to support that view. Rut these things are not conclusive. The act of 1861 may have been omitted from the schedule of repealed laws through inadvertence. "We must look for the intention of the Legislature in the language of the later act. While repeal by implication is not favored by the courts, if the language of a statute is so inconsistent with a prior law upon the same subject that both cannot stand, the former is deemed repealed and the latter law must prevail. The language quoted from the law of 1890, with reference to the term of the office of supervisor, cannot be made consistent with a two years’ term, and the law of 1861 must, therefore, be held to be repealed.

The order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with costs.


author: Brown, P. J.:

text:
    In the Matter of the Application for an Order Vacating the Approval of an Order Dated January 7, 1892, Directed by The State Commmission in Lunacy to The Board of Commissioners of Charities and Corrections of Kings County.

      Appeal■ — ■ from a refusal of a Supreme Go art justice to revoke an approval of an order of the State Commission in Lunacy.

    An appeal does not lie from a refusal of a justice of the Supreme Court to revoke an approval theretofore given hy him to an order of the State Commission in Lunacy, nor would an appeal lie from a refusal of such justice to approve an order.

      Quame, whether such an approval may he annulled hy the justice making it. Such approval or refusal to approve is not covered hy sections 1347, 1848 and 1356 of the Code of Civil Procedure relating to appeals, nor is it an action or special proceeding within sections 8333 and 3334 of said Code.
    Appeal by The Board of Commissioners of Charities and Corrections of Kings County from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of May, 1,893, denying its application for an order vacating the approval of an order dated January 7, 1892, directed by the State Commissioners in Lunacy to the Board of Commissioners of Charities and Corrections of Kings Comity.

      John A. Quintará, for the appellant.

      8. W. liosendale, Attorney-General, for the respondent.
   Brown, P. J.:

. There is no authority for this appeal and it must be dismissed. Appeals lie to the General Term from orders made in actions or special proceedings in the cases specified in the Code. (Code Civ. Proc. §§ 1347, 1348,'1356.)

This is neither an action or special proceeding. (Code, §§ 3333, 3334.)

It is not prosecuted for the enforcement or protection of a right,, the redress or prevention of a wrong, or the punishment of a public offense.

It was instituted by the service of a notice of motion, and its purpose was to secure from Mr. Justice Cullen the revocation of an approval theretofore given by him to an order of the State Commission in Lunacy.

The statute authorizes the issuing of an order by the commission in the cases therein enumerated, and provides that “ before such order is issued it must be approved by a justice of the Supreme-Court.”

The order derives its efficacy from the approval of the justice,, but it does not thereby cease tq be an order of the Commission in Lunacy, and it does not become an order of the court.

No authority is given in the statute for an appeal from such an order to the Supreme Court, and none exists.

It is very clear that if a justice of the Supreme Court refuses to-approve of the order no appeal lies from such refusal to the General Term.

Application may be made to other justices, but no appeal can betaken to this court if all refuse. If the order refusing approval should be reversed, the order of the Commission in Lunacy would derive its efficacy from the approval of the General Term, a thing which is not contemplated by the statute. It is equally clear, I think, that when the order is approved it is valid until the approval is revoked, but if the justice.refuses to annul his approval, no appeal lies from such refusal. No such power is given to the General Term by the statute; and the effect of a reversal of the order would be to annul the action of the commission, although it had the approval of the very officer named in the statute.

The Supreme Court is not a general arbiter of all disputes and controversies between parties. It can act only under the forms of law, and authority for its order must be found in the laws of -the State. The general jurisdiction in law and equity given to it by the Constitution must be exercised in an action, and to give validity to matters in which its orders are sought in other forms and proceedings, statutory authority must exist for its action.

We have not been referred to any law which 'gives to the court supervision over the orders of the Commission in Lunacy, and a careful search has failed to find any.

It is not intended to decide that a justice of the court, who-approves an order of the commission, may not subsequently annul or revoke that approval. We express no opinion upon that qiiestion. But assuming that lie has such power, his refusal to revoke his approval is not appealable to this court.

The appeal must be dissmissed.

All concurred.

Appeal dismissed.


text:
    In the Matter of the Application of The New Hamburgh and Poughkeepsie Connecting Railroad Company for the Certificate Required by Section 59 of the Railroad Law.

      Application to Raib'oad Commissioners, under chapter 676 of 1892 — how reviewed on appeal — what justifies a refusal of the commissioners to give a certificate.

    Where, pursuant to section 59 of article II, chapter 676 of the Laws of 1892, an application has been made to the State Board of Railroad Commissioners for a certificate that public convenience and necessity required the construction of a certain railroad, and it has been refused, an application to the General Term for a review of such decision must be treated as a review of a decision of a subordinate tribunal, and not as if it were an original application, and tlie petitioner must show affirmatively that the commissioners erred in their determination.
    'The proposed road was intended to run through a city and cross several of the principal streets at grade. It was shown on the application to the Railroad Commissioners that the road could not be constructed except with grade crossings.

      Held, that this objection was valid and sufficient, and that the determination of the commissioners upon the application, based upon this objection, was such that the court could not say that they erred in their decision ;
    'That the convenience of railway facilities might be purchased at too great a price when the safety of travelers on the highway was put in substantial jeopardy thereby.
    Application’by tlie directors of Tlie New Hamburgli and Poughkeepsie Connecting Railroad Company, pursuant to section 59 of .article II of chapter 676 of the Laws of 1892, for an order directing the State Board of Railroad Commissioners to issue the certificate to said company required by said section.
    The application was made as an original application upon a certified copy of the proceedings had before the Board of Railroad Commissioners, and not as an appeal, under the statute, which provides that “ after a refusal to grant such certificate the board shall certify a copy of all maps and papers on file in its office, and of the findings of the board, when so requested by the directors aforesaid. Sncli directors may thereupon present the same to a General Term o-f the Supreme Court of the department within which said road is-proposed, in whole or in part, to be constructed, and said General Term shall have power in its discretion to order said board, for reasons stated, to issue said certificate, and it shall be issued accordingly.”
    The proposed railroad was to run from New Hamburgh to the city of Poughkeepsie, and its route passes through the village of Wappinger’s Palls, which has a population of 5,000 inhabitants, with large manufacturing interests, consuming large quantities of coal, lumber and freight annually.
    There is no railroad within two and one-half miles of the said village.
    The opposition to the road was made by the city attorney of the city of Poughkeepsie, and was based simply upon the groxmd that the road crossed certain streets in the city of Poughkeepsie at grade.
   Cullen, J.:

This is an application under section 59 of the General Railroad Law for an order directing the State Board of Railroad Commissioners to issue a certificate that public convenience and necessity require the construction of petitioner’s railroad as proposed in its articles of association. By the section referred to a change has been made in the public policy of this State as to railroads. Formerly it was within the power of any body of persons sufficiently numerous, and possessing the requisite capital to construct a railroad at any time between any termini they might select, the route of the road being subject to judicial review or determination, and the .consent of the municipal authorities being necessary to obtain a location in a city. Now it is necessary that a certificate shall be granted by the Railroad Commission that public convenience and necessity require the construction of the road. If that is refused an application may be made to the General Term of this court for an order directing the issue of the certificate, which, if granted, must state the reasons, therefor. This mode of proceeding, while it grants the court power to review the action of the commissioners, plainly indicates that the com’t is to treat the application as in the nature of a review of the decision of a subordinate tribunal and not as it would an original ■application made to it in the first instance. The burden rests upon the petitioner to show affirmatively that the commissioners erred in their determination, and the commissioners should be credited with some technical knowledge which this court is not presumed to possess.

The petitioner’s road is to run from New Hamburgh through Wappinger’s Falls to the city of Poughkeepsie. The village of Wappinger’s Falls is the seat of some large factories, and it can be assumed that its direct connection with the coal roads passing through Poughkeepsie as well as with the city itself, would be a substantial convenience to its inhabitants and also an advantage to the city. The'objection made to the road on behalf of the city is that it will cross several of the principal streets at grade, and it was stated before the commission on behalf of the petitioner that it was not possible to construct the road otherwise than with such grade crossings. "We think this objection valid and sufficient. The convenience of railway facilities may be purchased at too great a price when the safety of travelers on the highway is put in substantial jeopardy. No general law has yet been enacted forbidding grade crossings. It may be that none is practicable in this State where the conditions of its territory vary so much from the greatest city in the country to what is almost a wilderness. But it is plain that grade crossings should -not be allowed in the cities, or in a densely populated territory, unless the necessity be paramount. It is not necessary to lay down any rule on the subject. It is sufficient to say that it was a consideration the commissioner’s might well weigh in determining whether to grant the application, and in their determination, based on this consideration, we cannot say that the commissioners erred. It is still within the power of the petitioner, if the topography of the country does not forbid, to modify its location or terminus so as to obviate this objection, and to renew its application, in which case there would seem no valid ground for refusing it.

The application should be denied, with ten dollars costs.

Dykman and Pratt, JJ., concurred.

Application denied, with ten dollars costs.


author: Dykman, J.:

text:
    In the Matter of the Petition of The Brooklyn Elevated Railroad Company, Appellant, to Acquire Title to Certain Real Estate.

      Eminen t domain — land owners may prosecute such proceedings to a determination— stay of equity suits brought to restrain the operation of an elevated, railroad.

    If there be, any delay in condemnation proceedings brought by a corporation, the land owner may conduct the same to a conclusion.
    Where a proceeding was instituted by a railroad company for the acquisition of the right of way along a certain avenue in a citju and after the commencement thereof several of the.parties to the proceeding brought suits in equity to restrain the operation of the road in front of their premises, an order denying the motion of the railroad companj' to stay all proceedings in such actions until the termination of the condemnation proceedings is improper. (Cullen, J., dissenting.)
    Appeal by the petitioner, The Brooklyn Elevated Railroad Company, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 14th day of September, 1893, denying the petitioner’s motion for an order staying all the proceedings in certain actions until a final order be granted in this proceeding, pursuant to section 3379 of the Code of Civil Procedure.

      Wm. IK. Cohen and Win. 11. Band, Jr., for the petitioner, appellant.

      S. M. Hoye and Francis Bussell Whitney, for the respondents.
   Dykman, J.:

This proceeding was instituted for the acquisition of the right of way for the railroad along Myrtle avenue in the city of Brooklyn, and after its commencement several of the parties thereto brought suit in equity to restrain the operation of the road in front of their premises.

Thereupon the petitioner made a motion at the Special Term of the court to stay all proceedings in such actions until the termination of the condemnation proceedings. That motion was denied and the petitioner has appealed from the order.

The petitioner has the legal capacity to invoke the exercise of the right of eminent domain, and, after the payment of the compensation awarded, it lias the power to continue the operation of the road.

If there he any delay in the proceedings the land owner may conduct the same to a conclusion as well as the petitioner. (Code Civ, Proc. § 3319.)

In the celebrated /Story case the Court of Appeals determined that the injunction should not issue until the railroad company had a reasonable time in which to acquire the property of the plaintiff by agreement or proceedings for the condemnation of the same.

A proceeding under the right of eminent domain to ascertain the compensation for private property taken for a public purpose is a simple and satisfactoiy method, and there is no reason why this petitioner should be embarrassed by suits which can have no beneficial result.

The projierty owner can receive compensation but once, and no court will restrain the operation of this road so long as the condemnation proceedings are pending.

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

Pratt, J., concurred; Cullen, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.


text:
    The People of the State of New York ex rel. George Kehoe, Appellant, v. Thomas Fitchie, Supervisor, etc., and Others, Respondents.

      Constitution, article 10 — term of office of supervisor of city wan'd not covered by — vacancy — veto by the mayor — chapter 35 of 1893.
    The office of supervisor of a city ward is not within the limitations and restrictions of article 10 of the Constitution, and the term of such office is wholly governed by legislative enactment.
    The provisions of chapter 35 of the Laws of 1893, in reference to “the first annual election after the happening of the vacancy ” refer to the election itself, and not to the time prescribed in the Election Law of 1892 for the institution of the machinery for nominations.
    By section 2 of article 10 of the Constitution the Legislature is granted complete power as to filling vacancies in offices other than those mentioned in section 1 thereof.
    The failure to elect a successor of an officer does not render the office vacant, and when a supervisor of a city ward is elected he continues to hold office until his successor is elected, either at a general election or at a special election ordered by the Governor, in pursuance of section 4 of the Election Law.
    Although the power granted to the common council of a city to fill vacancies in the office of supervisor is not legislative, but executive, the exercise of such power is subject to veto by the mayor of the city.
    Appeal by tlie relator, George Kelioe, from an order of tlie Supreme Court, made at the Kings County Special Term and entered in tlie office of the clerk of the county of Kings on the 1st day of February, 1891, denying the relator’s motion that, a peremptory writ of mandamus issue, without costs.
    It appeared by the petition in this matter that George Kehoe was, on the 30tli day of December, 1893, appointed supervisor of the eighth ward of the city of Brooklyn, by the common council of said city, to fill a vacancy then existing in that office. By the answer of the respondent it appeared that the minutes of the meeting containing- this resolution of the common council were presented to the mayor of the city of Brooklyn on the 2d day of January, 1891, and that ou the 12th day of January, 1891, the mayor vetoed the minutes, or that portion of them by which Kehoe was appointed supervisor.
    It further appeared by the affidavit of the respondent that on October 25, 1893, Supervisor Henry F. Stickevers died, creating a vacancy in the office of supervisor for the eighth ward of the city of Brooklyn. This was tiveive days prior to election day, 1893. On November 20, 1893, the common council of Brooklyn, pursuant to provisions of chapter 35 of the Laws of 1893, appointed the relator and appellant supervisor to fill the vacancy in the eighth ward supervisorship.
    On December 29,1893, the relator and appellant filed his resignation as such supervisor with the city clerk.
    The president ex ojjieio of the board of supervisors of Kings county refused to recognize Kehoe as a member of such board.

      Stapleton da Miles, for the appellant.

      George F. Elliott, for the respondents.
    Order affirmed on opinion of Cullen, J., at Special Term.
    Present — Brown, P. J., Dykman and Pratt, JJ.
   The opinion of the Special Term was as follows:

Cullen, J.:

Had the relator seen fit to stand upon his original appointment instead of resigning and receiving a subsequent appointment, his right to hold the office of supervisor until it might be filled at an election by the People would have been beyond controversy. That the office of supervisor of a city ward is not within the limitations and restrictions of article 10 of ■ the Constitution is settled by authority. (People ex rel. Clancy v. Supervisors, 139 N. Y. 524; People ex rel. Hatfield v. Comstock, 78 id. 356.) The term of office of the relator is, therefore, wholly governed by the legislative enactments on the subject. I adhere to the view expressed on the argument as to the construction of the act of 1893 (Chap. 35), that “ the first annual election after the happening of the vacancy ” refers to the election itself, and not to the time prescribed in the Election Law of 1892 for the institution of the machinery for nominations, etc. It would not aid the relator’s contention to construe the term “ annual election ” as “ annual election at which the vacancy can be filled,” for the statute of 1893 itseif provides that the vacancy shall be filled at the general election “preceding such time,” i. e. the beginning of the next political year after the happening of the vacancy. To give effect to this claim I must hoid that the direction as to “ annual election ” did not mean the occasion or time stated in the statute, but an entirely different time, to wit, the fifteenth day of October preceding the annual election. This is a license of construction for which there is no authority, especially when it is considered that there is a class of public offices, vacancies in which must by the Constitution be filled at the annual elections, even if such vacancies occurred the very day before the election. I refer to those offices mentioned in article 10 of the Constitution. Here the Legislature in the statute of 1893 has adopted the very words of the Constitution, and I tliink that the same construction must obtain in one case as the other.

But though the term of office for which the common, council could, fill the vacancy was limited to the first of January ensuing, it does not follow that such term might not be extended. By the Constitution, article 10, section '2, the Legislature is granted complete power as to filling vacancies in office other than the offices mentioned in section 1. (People v. Comstock, supra.) The legislation on that subject is found in the provisions of the Public Officers Law of 1892 (Chap. 681) which so far as material here are substantially re-enactments of the Revised Statutes. The 20th section of the act is as to the creation of vacancies. In the enumeration of events which shall render offices vacant a failure to elect a successor in office is not to be found. The reason of this is manifest. Section 5 of the same act provides that every officer (with certain exceptions which do not include the office here in dispute), having entered upon the duties of his office, shall continue to discharge the duties after the expiration of his term until his successor shall be chosen and qualified, except that the office shall be deemed vacant for the purpose of choosing a successor. The electors of the eighth ward failed to elect a supervisor at the last general election. This, under the provisions of the law cited, continued the term of any supervisor that might have been chosen by the common council of 1893, after the expiration of that year, until his successor should be elected, either at the general election or at a special election which the Governor might order under section 4 of the Election Law.

This brings us to the validity of the relator’s appointment by the common council, and the question here involved is the power of the mayor to veto the action of the common council in making such appointment. As to this question I feel bound by authority and not at liberty myself to determine it as an open question. It should be conceded as claimed that the power granted to fill vacancies in the office of supervisor is not legislative but executive. On this ground it has been held at Special Term in two cases that the veto did not apply to appointments. (Achley's Case, 4 Abb. Pr. 35 [1856]; North v. Cary, 4 T. & C. 357 [1874].) Both decisions present strongly the arguments in favor of the position. But the reverse rule lias been held by the courts in this district, and their decisions have been affirmed in the Court of Appeals.

In Cassidy v. City of Brooklyn (60 Barb. 105) it was held that the mayor could veto a consent of the common council to an appointment of a clerk made by one of the justices of the peace. This case was affirmed by the Court of Appeals (47 N. Y. 659) on the opúnion below. The same question again arose in People ex rel. Ennis v. Schroeder (12 Hun, 413; affd., 76 N. Y. 160), and the decision in the Cassidy case was followed. In the opinion, delivered in the Supreme Court by Justice Gilbert, it is said: The reasoning in Achley’s Case (4 Abb. Pr. 35), so far as it went to restrict the operation cf a similar provision of a statute relating to the city of New York to resolutions of a legislative as contra-distinguished from those of an executive nature, must have been disapproved by the Court of Appeals. There is no such discrimination in the statute applicable to this case, and we cannot interpolate one into it.”

In the opinion delivered by Judge Miller in the Court of Appeals he says, referring to the acts of the common council: “ The right to veto ordinances and resolutions clearly extended to all acts of that body whether legislative or otherwise, and in no sense can the provision (of the charter) in act of 1873 constituting the common council, be construed as interfering with the power of the mayor to interpose His objection to the appointment of the relator. The mayor had no right to act as a legislator, but he retained in full force the right to disapprove of all ordinances, acts and resolutions which did not meet his approval.”

I do not see that this case can well be distinguished from those cited, and I am constrained to hold the appointment of relator invalid.

Motion denied, without costs.

The respondent should stipulate to argue any appeal from this decision at the next General Term.


author: Mayiiam, P. J.:

text:
    In the Matter of the Proceedings to Extend South Market Street in the Village of Johnstown.

      Amendment of a section not existing in the statute amended — rights acquired under officials of limited jurisdictions — proceedings for condemnation of land — must comply with the statute — discontinuance of — second proceeding — want of authority for.

    Section 18 of chapter 78 of the Laws of 1890, which purports to amend section 108 of chapter 808 of the Laws of 1881, is a valid provision of law relating to the village of Johnstown and binding upon the village authorities as a part of its charter, notwithstanding the fact that chapter 808 of the Laws of 1881, at the time of the passage of chapter 78 of the Laws of 1890, contained but 102 sections.
    The board of trustees of a village are creations of the statute, with no inherent powers except such as are derived therefrom, and in the exercise of their extraordinary power of taking private property for public uses, against the will of the owners, they must follow strictly the course pointed out by the statute.
    Those claiming rights under the action of officials of inferior and limited jurisdictions must show affirmatively the facts upon which such jurisdiction rests.
    The charter of a village provided that “all notices, motions or resolutions offered by any member of the board of trustees * * * of said village shall be entered upon the minutes or journal of proceedings, together with the name of the member offering the same; all votes upon such motions and resolutions * * shall be by calling of the roll, the members voting aye or nay; the vote of each member shall be recorded in the minutes or journal of proceedings.”
    Upon an appeal from an order appointing commissioners in condemnation proceedings, instituted under the alleged authority of certain resolutions passed by such board of trustees, the only evidence of the vote of the members of such board upon such resolutions was the affidavit of the village clerk to the effect that such resolutions were offered by a specified trustee, were “regularly voted upon, and said vote was recorded as follows (all voting aye).” The record of the proceedings, as kept by the village clerk, did not show that the board of trustees ever voted on the resolutions.

      Held, that the board of trustees failed to comply with the provisions of the charter, and having failed to acquire jurisdiction all proceedings taken under such resolutions were void
    The order of a court appointing commissioners for the condemnation of property under the law of eminent domain is not ipso facto violated or annulled by the delay of such commissioners to act, and so long as the proceedings wherein such commisioners were appointed are not discontinued there is no statutory right or authority to institute other proceedings for the same purpose.
    The right to discontinue proceedings for the condemnation of property under the law of eminent domain seems to rest in the sound discretion of the court when applied to for that purpose,
    Appeal by James Younglove from ail order of the Supreme Court, made at the Saratoga County Special Term and entered in the office of the clerk of the county of Fulton on the 4th day of October, 1893, appointing commissioners to ascertain and assess the damages claimed by certain land owners in proceedings for the extension of South Market street in the village of Johnstown.

      Edwin Bctylies and John M. Carroll,■ for the appellant Younglove.

      Andrew J. Nellis, for village.

      Bhilip Heelc, for Wade and others.

      Henry W. Thorne, in person.
   Mayiiam, P. J.:

The first objection to the validity of the order sought to be reversed, urged on this appeal, is based upon the contention that the papers used on this motion were insufficient to confer jurisdiction or authority upon the court to grant the order.

The papers used by the respondent in support of this motion consist of a certified copy of a series of resolutions relating to the extension of said street, purporting to have been adopted at a meeting of the board of trustees of the village of Johnstown on the 22d day of May, 1893.

The record shows that on these papers the Special Term of this court sitting at Amsterdam on tbe 12tli day of June, 1893, made an order appointing three commissioners to assess sueli damages and benefits, if any, awarded, on the real estate in the village affected by the extension of South Market street in the village of Johnstown. But no action by such commissioners appears to have been taken thereunder prior to the 4th day of September, 1893.

On that day, as appears from certified copies of the minutes of the proceedings of the board of trustees of the village, another series of resolutions was adopted looking to the appointment of other- commissioners to assess the damages and benefits to .land owners by extension of South Market street, which resolution and the proceedings taken thereunder constitute the basis of the order from which the appeal is taken.

The first resolution provided for the extension of Market street and fixed the extent and boundaries of the proposed extension. The next resolution contained the names of the persons whose lands were proposed to be taken for such extension.

The third resolution contained the names of residents and land owners of the village adjudged by the trustees as likely to be benefited by the improvement. The fourth resolution provided for the assessment of benefits on such real property as the commissioners to be appointed should determine were to be benefited thereby.

The fifth resolution required the land owners to file claims for damages. The sixth resolution directed the clerk of the village to publish notice of the extent of the improvement and giving notice to claimants for damages of the time and place of applying to the court for the appointment of commissioners to assess the benefits to land owners. The seventh resolution required the clerk to serve copies of said notice on land owners.

These resolutions, which are set out in full, are authenticated by the village clerk, and attested by the village seal.

These resolutions were followed by a copy of the notice published by the village clerk, certified in like manner and authenticated by the village seal. The moving papers also contained the names of claimants for damages with the amounts claimed by them respectively.

Appended to the papers above referred to is the affidavit of the village clerk of the village of Johnstown, as follows:

“ State of New York, County of Saratoga.

■ “ James D. Rogers, being duly sworn, says that be is the clerk of the village of Johnstown, and has been for some months past; that at a regular meeting of the hoard of trustees of said village held on the 4th day of September, 1893, the resolutions hereunto annexed were offered by Mr. Maylender, a trustee of said village, was regularly voted upon and said vote was recorded as follows (c all voting aye ’), and that said record is now deposited in deponent’s office and is a part of the regular records of said village.

“JAMES D. ROGERS.

“ Sworn to before me ) this 30th day of October, 1893. )

“ W. P. Butlee,

“Notary Public.”

This affidavit is the only evidence in the papers of the vote of the village trustees upon the adoption of the resolution, and it appears by the affidavit used in opposition to the motion that the record of the proceedings, as kept by the village clerk, does not show that the hoard of village trustees ever voted on the resolutions to extend South Market street at the meeting of the board on the 4th day of September, 1893 ; but it appears by the affidavit of the clerk that the vote on the same was recorded as follows, “ all voting aye.”

It is insisted by the appellant that this is not sufficient; that the record does not disclose that there was a majority of the trustees of the village present or acting on these resolutions, or that any vote of the trustees was legally taken.

Section 18 of chapter 18 of the Laws of 1890 purports to amend section 103 of chapter 303 of the Laws of 1881 so as to read as follows: “Section 103. All notices, motions or resolutions offered by any member of the board of trustees, board of water commissioners, or board of health of said village,'shall be entered upon the minutes or journal of proceedings, together with the name of the member offering the same; all votes upon such motions and resolutions (and all votes for appointments made by any of the above-named boards) shall be by calling of the roll, the members voting aye or nay ; the vote bf each member shall be recorded in the minutes or journal of proceedings.”

It is true that an examination of chapter 303 discloses that there are hut 102 sections in that chapter, and that, therefore, section 103 is not an amendment of that section in the original act; it is nevertheless a valid provision of law relating to the village of Johnstown, and binding upon the village authorities as a part of its charter. Section 21 of chapter 303 of the Laws of 1881 requires the village clerk to attend all meetings of the trustees of the village, and record their proceedings, and'section 86 of that chapter makes the minutes of such proceedings evidence in all courts of the acts of the board of the village trustees as such.

The power sought to be exercised in this proceeding is that of condemnation of private property for public purposes, under the right of eminent domain vested in the sovereign government; but that power cannot be exercised except in conformity to law. The hoard of trustees are creations of the statute, with no inherent powers except such as are derived from the statute, and it seems to he the policy of the law that in the exercise of their extraordinary power of taking private property for public uses against the will of the owner, they must follow' strictly the course pointed out hy the statute.

It has long been the settled doctrine that those claiming rights under inferior and limited jurisdictions must show' affirmativélv the facts upon which such jurisdiction rests. (Dakin v. Hudson, 6 Cow. 221; Cornell et al. v. Barnes, 7 Hill, 35 ; People v. Koeber, Id. 40; Corwin v. Merritt, 3 Barb. 343.)

In the last cited case MasoN, J., in discussing the question, uses this language: “It is a familiar principle that every statute authority in derogation of the common law to divest the title of one person and transfer it to another, must he strictly pursued, or the title will not pass.”

In Sharp v. Johnson (4 Hill, 99) BeoxsoN, J., uses this language : “ 'When lands are to be taken under a statute authority, in derogation of the common law, every requisite of the statute having the semblance of benefit to the owner must be strictly complied with.”

The principles enunciated in these cases have been strictly ' adhered to, so far as we know, in all the cases involving similar questions which have subsequently come before the courts of this State.

Tn The Matter of Widening Carlton Street in Buffalo (16 Hun, 497, 499) the failure to comply with the technical requirements of the statute by the common cornual in talcing and recording the vote, on the resolution to widen the street, was passed upon by the Supreme Court in the fourth department.

That charter-provided that the common council, in authorizing the taking of land for the widening of a street, may declare by resolution to be adopted by a vote of two-tliirds of its members.”

The charter also provided that when, by its provisions, “ a vote of more than a majority is required, it shall be taken by the yeas and nays, which shall be entered on the journal,,” etc.

Under these provisions it was held that to render a resolution declaring that the city had determined to take laud valid, it must appear from the journal itself that it was adopted by a two-thirds vote, and that such fact could not be proved by extrinsic evidence. In discussing that question Talcott, <T., says: “ But no parol or other evidence, other than the journal of the proceedings of the common council, is admissible, to establish the fact that the vote was a two-thirds vote. The statute, in order to render this matter certain, has provided that in such case the vote shall be taken by yeas and nays, and that such vote shall be entered on the journal, and unless this thing is done the proceeding is void, and the only legal evidence that the resolution was passed by the requisite vote is the record of the proceedings of the common council, kept according to law.”

To the same effect is the decision of the Court of Appeals (78 N. Y. 362) affirming above case.

Nor can it be held that this requirement of the statute is immaterial. It was evidently enacted as an amendment to the original charter to cure some supposed defect in that charter; but whatever the object, it is sufficient that the law requires the name of the mover of these resolutions to be entered upon-the journal, and that the vote taken upon them shall be by yeas and nays, and that the vote of each member shall be recorded in the journal kept by the clerk, which, in this -case, seems to have been omitted.

In Merritt v. The Village of Port Chester (71 N. Y. 309), whiclt was a proceeding to charge the property of an individual with the-expense of a local improvement, AlleN, J., says: “ It is a statutory proceeding affecting the property of the citizen, and by which it may be taken from him, and, therefore, within well-established rules of' law, the statute must be strictly pursued, and any departure in substance from the formula prescribed by law vitiates the proceedings.” It would seem to follow, therefore, that the board of trustees, by failing to comply with the provisions of- the statute above quoted, did not acquire jurisdiction, and that their resolutions-conferred no authority upon the Special Tefm to make the order appealed from.

Nor do I see by what statutory right or authority these proceedings were instituted, so long as other proceedings of a similar-character were pending for the condemnation of land proposed to be taken for the extension of this street. No direct action seems to have been taken for the discontinuance of the former proceedings, and the former commissioners seem to have met, and qualified and fixed a time for a hearing, but had made no report. It is true that the statute (§ 48 of chap. 303, Laws of 1881) requires-that the determination and assessment of the commissioners shall be returned to the trustees within sixty days, and while an omission on their part to comply with that provision of the statute might in a proper action have subjected'them to removal, I do not think an order of the court by which they were appointed ipso facto violated or annulled by that delay.

The right to discontinue proceedings for the condemnation of’ property under the law of eminent domain seems to rest in the sound discretion of the court, when applied to for that purpose. (Matter of Waverly Water Works Co., 85 N. Y. 478; Matter of Commissioners of Washington Park, 56 id. 144; Carleton v. Darcy, 75 id. 375; People v. Common Council, 78 id. 56.)

We are inclined, therefore, to the’ opinion that the objection made by the appellant upon the record, that there was another proceeding pending for the same matter, was well taken, and that the order in the matter should not for-that reason be sustained.

The view we have taken of the case renders it unnecessary for ns to examine the constitutional question raised by the appellant.

The order of Special Term should be reversed, with ten dollars costs and printing disbursements.

HeeRioK, J., concurred in result; PutNAm, J., not acting.

Order of Special Term reversed, with ten dollars costs and printing and other disbursements.


author: Mayham, P. J.:

text:
    Anna G. Gilbert, Respondent, v. William H. Taylor, Impleaded, etc., Appellant.

      JResidua/ry legatee in possession of the entire estate — when charged with the payment of general legacies — construction of will — toaste of estate by executors— Statute of Limitations.

    A testator by his last will and testament bequeathed the interest on a certain sum of money to Mrs. James Dickson during her life, and at her death he gave such sum to Anna G-. Taylor; all the rest, residue and remainder of the estate was given to his son, William TI. Taylor, who was an infant.
    Under certain proceedings instituted by the guardians of such infant against the executors of the testator, a final accounting was made by the executors, under which all the rights vested in the executors by said will were transferred to and vested in the guardians, and under and by virtue of a judgment and •decree in a certain action brought by William H. Taylor against his surviving guardian, it was adjudged that all the personal estate of the testator in the hands of the guardian had been previously transferred to William II, Taylor, except that portion as to which such judgment had been rendered in his favor against such guardian. ■
    The guardians had also under the decree of the court conveyed to William H. Taylor all the real estate of the testator held by them in trust under the will, .and all of the real estate of the testator was, under the decree of the court, ■transferred by a referee in partition to William II. Taylor A large amount of this estate was not realized by the beneficiaries named in such will, but sufficient came to the hands of William H Taylor as residuary legatee to pay the amount of the legacy to Anna G- Taylor.
    Upon the death of Mrs. Dickson, who did not die until after the property had passed into the hands of the guardians, and who had dui’ing her life been paid interest on the sum of money mentioned in the will, an action was brought by Anna G-. Taylor against William II. Taylor, the residuary legatee, to recover from him the amount of such trust fund.

      Meld, that Anna G-, Taylor was powerless to enforce the legacy against the trustees or executors of the testator so long as it remained in their hands charged with, the payment of the interest to Mrs Dickson;

      That if she had died prior to the death of Mrs. Dickson the legacy would have lapsed upon Mrs Dickson’s death;
    That the property which came into the hands of 'William H. Taylor was received by him under and subject to the provisions of his father’s will.
    In such action it was claimed that as'there was no deficiency of assets which came into the hands of the executors to pay all the legacies, at the time they took possession of the estate, that the payment of all the remainder of the estate to the residuary legatee after a large portion thereof had been lost by the executors gave no right to a general legatee to receive of the residuary legatee the legacy bequeathed to her, on the ground that when a part of the estate has been received by a legatee under a will, and the remainder thereof has been squandered by the executors, so that they are unable to pay the other legatees in full, such legatees have no recourse to the legatee who has been paid for contribution.

      Held, that while such principle is sound and of universal application, as between legatees to whom general legacies have been bequeathed, it does not apply between a general legatee and the residuary legatee under a will.
    A residuary legatee takes only what is left after all other legacies given by the will have been paid. Such legacies are a charge upon the entire estate of the testator, and where a residuary legatee takes possession of the estate under the will, he takes it aum onere, and is liable to the general legatees for the payment of their legacies to the extent of the estate received by him.
    When no right of action accrued to a remainderman of a trust estate created by a will until November, 1889, an action commenced on February 10, 1892, against the residuary legatee who had in his possession the entire estate, is not barred by the Statute of Limitations.
    Appeal by the defendant, William II. Taylor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the clerk of the county of Albany on the 6th day of July, 1893,. upon the report of a referee.

      I. Lawson, for the appellant.

      LI. 8. McCall, Jr., and Hamilton Ha/rris, for the respondent.
   Mayham, P. J.:

The last will and testament of William II. Taylor, father of this.' appellant, William H. Taylor, was duly proved and admitted to probate as a will of real and personal property on the 6th of March, 1873. In and by his will the testator nominated and appointed Walter Dickson, Benjamin Y. Z. Wemple, Charles P. Staats, Charles. Winne and Thomas B. Morrow as executors and trustees of the same.

After several bequests of considerable amo ants to various persons therein named, the will contained the following provisions, out >of which the controversy in this action mainly arises.

“Eighth. I will, devise and bequeath to Mrs. James Dickson,my much respected motlier-in-law, the income, interest and profit of the sum of ten thousand ($10,000) dollars, for and during ner natural life, payable as, my executors may see fit, from and after my ■decease, and at her death said sum of ten thousand ($10,000) dollars I will, devise and bequeath to my sister Anna G. Taylor.”

Ninth. All the rest, residue and remainder of my estate I will, devise and bequeath to my dear son, William II. Taylor, Jr., but in case he dies before he arrives at the age of twenty-one years, I then, in that case, will and devise the same as follows, namely, one-lialf thereof to my sisters, Anna G. Taylor and E. E. Taylor, and the other half thereof to my nephews and nieces.”

Anna G. Taylor, the legatee named in the eighth clause of this will, is now Anna G. Gilbert, the plaintiff and respondent in this action and appeal.

The testator in and by his will committed the guardianship of the defendant to Mrs. James Dickson during her life, and after her death to this plaintiff. On the 15th day of April, 1876, on the petition of Mrs. James Dickson, with the consent of this plaintiff, Edwy L. Taylor was, by an order of the Supreme Court, appointed as general guardian of the defendant, William II. Taylor, to act in conjunction with Mrs. James Dickson, the testamentary guardian, upon his executing to said William II. Taylor a bond, with sufficient sureties, in the sum of $50,000, conditioned for the faithful performance of his trust, and he qualified as such guardian.

The referee finds that, under and in pursuance to a decree of this court, made on the 25th of November, 1876, the executors named in the will of William H. Taylor, deceased, paid over to Edwy L. Taylor and Margaret Dickson, as guardians of the defendant, a large amount of personal property and the avails of personal property, amounting to more than $200,000, and that after the defendant, William II. Taylor, arrived at the age of twenty-one years he received more than $100,000 belonging to the estate of William II. Taylor, his deceased father.

The referee also finds, as we think upon sufficient evidence, that, under certain proceedings instituted by the guardians of sucli infant against the executors of such testator, a final accounting was had by the executors, under which all the rights vested in the executors by said will were transferred to and vested in the guardians, and that under and by virtue of a judgment and decree in a certain action brought by William Ii. Taylor against his surviving guardian, it was adjudged that all the personal estate of the testator remaining in the hands of the guardian had been previously transferred to William II. Taylor, except that portion as to which judgment had been rendered in liis favor against such guardian.

The guardians had also, under the decree of the court, conveyed to William IT. Taylor all the real estate of the testator held in trust by them under the will.

It is quite apparent from this entire case that a large amount of this estate ivas not realized by the beneficiaries in this will, but sufficient came to the hands of William H. Taylor, as residuary legatee, to jjay the amount of the legacy to Anna G. Taylor after the death of Mrs. Dickson, and the principal question on this appeal is whether the plaintiff must look to the trustees and executors for the payment of the legacy bequeathed to her after the death of Mrs. Dickson, or can have recourse to the residuary legatee for the payment of the same.

All of the real estate of the testator was, under the decree of the court, transferred by a referee in partition to William H. Taylor, and all the money which came into the hands of the referee by the sale of the real estate of the firm of Taylor & Son, in which testator had an interest, was paid by said referee to the general and testamentary guardian of such defendant.

It thus appears that the estate of the testator remaining in the hands of the executors and trustees, as well as the proceeds of the real estate sold in partition, passed into the hands of the guardians of the defendant, and by the judgment recovered by him against the surviving guardian, Edwy L. Taylor, all the property remaining in his hands, as such surviving guardian, passed into the hands of the defendant, William II. Taylor, after he became of age, on the 16th day of May, 1890.

This property, therefore, came to his possession, and was received by him under and subject to the provisions of the will of his father, one of which was, that this plaintiff, on the death of Margaret Dickson, was to be paid the legacy of $10,000, the use of which was by the will to be paid to Mrs. Dickson during her life. Mrs. Dickson, who had been paid the annual interest on this legacy for most, if not all of the time from the death of the testator,-until the time of her death, died in November, 1889, at which time the plaintiff became entitled to receive this legacy under the will.

It is quite clear that the plaintiff was powerless to enforce this legacy against the trustees or executors of the testator, so long as it remained in their hands charged with the payment of the interest to Mrs. Dickson, and it appears in the chronological order of events that this property had by the decree of this .court vested in the guardians of the defendant, William IT. Taylor, long before the death of Mrs. Dickson. There was no gift of this legacy to the plaintiff until the death of Mrs. Dickson. If the plaintiff had died before the happening of that event, this legacy would, we think, have lapsed on the death of Mrs. Dickson. (Paterson v. Ellis, 11 Wend. 260; Booth v. Cornell, 2 Redf. 261; Loder v. Hatfield, 71 N. Y. 92.)

It is insisted by the appellant that as there was no deficiency of • assets which came to the hands of the executors to pay all the legacies, at the time they took possession of the estate, that the payment of all of the remainder of the estate to the defendant, William II. Taylor, after a large portion had been lost by the executors, gave no right to the plaintiff to receive the legacy bequeathed to her, of William II. Taylor, on the ground that when a part of the estate has been received by a legatee under a will, and the remainder thereof has been squandered by the executors, so that they are unable to pay the other legatees in full, such legatees have no recourse to tile legatee who has been paid for contribution, and in support of this doctrine we ar.e referred to numerous authorities.

While the principle contended for is sound, and, as we think, of universal application as between legatees to whom general legacies have been bequeathed, we do not think it applies between a general legatee and the residuary legatee under a will.

The residuary legatee takes only what is left after all other legacies given by the will have been paid. Such legacies are a charge upon the entire estate of the testator, and where the residuary legatee lias taken possession of tbe estate under tbe will, be takes tbe same cum onere, and is liable to tbe general legatees for tbe payment of their legacies to the extent of tbe estate received by him. As against tbe legacy to tbe plaintiff tbe residuary legatee took no title to tbe $10,000 becpieatlied to lier under tbe will. And as there was no other fund not disposed of, which was available to the plaintiff for the payment of lier legacy at tbe time tbe title to it vested in her, tbe defendant, who at that time was in possession under tbe decree of tbe court of all tbe property remaining of tbe estate of the testator, must be deemed as bolding it either in trust for her use and benefit, or as administrator de son tort, because be could get no absolute title to tbe same under tbe will as residuary legatee, until, as we have seen, all tbe general legacies were paid.

In Wetmore v. St. Luke's Hospital (56 Hun, 318) VaN Brunt, J., in delivering the opinion of tbe court, uses this language': “In order that there should be a residuary estate tbe provisions of tbe will must be fulfilled, and something must be left over. Debts and legacies must be paid, and then tbe residuum goes to tbe residuary legatees. But until tbe debts and legacies are paid it is difficult to see l\ow, under tbe residuary clause, residuary legatees are entitled to receive anything.”

This defendant, therefore, having received and retained $10,000 of tbe testator’s estate which belonged to tbe plaintiff under the will] must satisfy this legacy before be can bold tbe estate as residuary lega^tee, and no good reason is perceived why a proper action, if prosecuted by tbe plaintiff against him within tbe proper time, cannot be maintained.

But tbe defendant insists that this claim is barred by tbe Statute of Limitations. If we are right in bolding that tbe plaintiff’s title to this bequest did not attach until tbe expiration of this life interest of Mrs. Dickson, then no right of action existed in her to compel the exeexitors to pay this legacy before tbe decree of tbe court transferred the property from them to tbe guardians, nor did any right of action accrue to her until tbe time of tbe death of Mrs. Dickson, and tbe consequent termination of her life estate, which was in November, 1889; as this action appears to have been commenced by the service of a summons on tbe 10th day of February, 1892, it is not, therefore, barred by the Statute of Limitations.

It is also insisted by tlie appellant tliat tlie complaint does not state such a cause of action as will sustain the recovering in this case. We think the complaint states a good cause of action and is sustained by the proof. No objection is raised by the answer to the joinder of the defendant Edwy Taylor as guardian; and the complaint alleges the bequest to tlie plaintiff, its non-payment, and that all of the estate of testator was in the hands of the residuary legatees and his guardian, and demands judgment for the amount of the legacy and interest from the time of the vesting of the title to the same in the plaintiff.

Under the complaint and upon the proof, the referee found that the defendant, as residuary legatee, had received more than $100,000 of the testator’s estate, and that the same was chargeable with the payment of this legacy. We think the complaint sufficient to authorize the proof upon that point, and that the ñndings are supported by the evidence.

The judgment must be affirmed, with costs.

Putnam, J., concurred; Herrick, J., not acting.

Judgment affirmed, with costs.


text:
    James E. Baxter et al., Respondents, v. Mathias Baxter, Appellant, and Others.

      Deed — when it tajees effect — action to set it aside — how far a decree of a surrogate as to the sanity of the grantor is evidence.

    A deed takes effect from the time of its delivery.
    Tlie decree of a surrogate refusing to admit an instrument to probate as tlie last will of a decedent, on the ground that he was of unsound mind at the time of its execution, is prima facie and not conclusive evidence of the invalidity of a deed executed by such decedent on the same day as the Instrument offered for probate and delivered some days iater, in an action brought to set it aside, the parties in which were also parties to the proceeding in the Surrogate’s Court. (Herrick, J., dissenting.)
    The effect of surrogates’ decrees considered in the light of section 2627. of the Code of Civil Procedure.
    Appeal by the defendant, Mathias Baxter, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of tlie clerk of the county of Schoharie on the 23d day of May, 1892, rendered upon the decision of the court, and the finding of a jury upon specific questions of fact, after a trial at the Schoharie County Circuit.

      J. W. Barnum, for the appellants.

      G. M. Palmer, for the respondents.
   Mayham, P. J.:

On the 10th day of September, 1883, John Baxter, father of Benjamin Baxter and Mathias Baxter, parties to this action, executed a paper purporting to be his last will and testament, wherein' he named the defendants Mathias Baxter and Benjamin Baxter as executors. After the death of the testator Mathias and Benjamin Baxter filed their petition with the surrogate of the proper county for the probate of the will of John Baxter, deceased, and objections to the probate of the same were filed on the ground, among others, that the testator, at the time of making his will, was not competent to make a valid will. On the trial of that question the surrogate held and decided that the testator was of unsound mind at the time of the execution of such will, and refused to admit the same to probate.

On the day of the execution of this will by the testator he signed, executed and acknowledged the deed sought to be set aside in this action, and on the next day sent for Mathias, the grantee, to come to his house so that he could deliver the deed to him, and about two weeks thereafter testator said Mathias had been up and he had delivered the deed to him. The exact time of the délivery of the deed does not appear, but it was not delivered on the day the will was executed.

The evidence discloses an executory parol contract between the testator and the defendant Mathias, whereby it was agreed that if he would remain with his father and work for him after he attained his majority he should receive for-his services a farm, and the evidence discloses and the. jury find that in pursuance of that contract he did continue for many years to work for his father without compensation, other than such as was embraced in such parol agreement, which the jury found the defendant had fully performed.

The testimony also shows that the testator and grantor in the deed, in a conversation two weeks after the execution of the same, referred to the delivery of the deed as an act due to the defendant Mathias, which he ought to have performed before, presumably referring to the services performed by the defendant under the parol contract.

On the trial the plaintiff put in evidence the decree of the surrogate, refusing to admit the will of .John Baxter to probate under the objection of the defendant Mathias, the court holding that it was competent evidence upon the question of the mental capacity of the defendant’s grantor at the time of the execution of the deed to defendant.

On the conclusion of the evidence the learned trial judge held and decided as follows:

“ The Court.— The surrogate of the county of Otsego, in a proceeding in which all the parties in this case were parties, and in which the question of the mental competency of John Baxter on the 10th day of September, 1883, was litigated, having adjudicated that he wras then of unsound mind and mentally incompetent to make the instrument which was then propounded as his last will and testament, that adjudication is competent in this court and is conclusive on the mental competency of John Baxter upon that day. If he was on that day mentally incompetent to make any testamentary disposition of his real estate, as matter of law it follows that he was mentally incompetent to convey his real estate or to make any disposition of it by deed.

“ I shall hold that by reason of that adjudication this conveyance, which was executed upon the same day, was void.”

This defendant duly excepted to the ruling and determination of the judge, and insisted that the whole case should be submitted upon the questions of fact to the jury, or determined by the court as questions of fact upon all the evidence, to which the court responded:

“The Court.— I decline to hold that there is any question of fact of that kind in the case to submit to the jury, and I decline to submit the question to them, and as a court I find that John Baxter, at the time of the execution of the instrument in question in this case, was mentally incompetent. I find it as a question of fact in this case and find it from the adjudication without taking into consideration the testimony in the case.”

To this conclusion of the learned trial judge this defendant excepted, and from the decree setting aside the deed he appeals.

One of the principal questions before the trial court, and litigated in this action on the trial, was, whether or not at the time of the execution and delivery of this deed, the grantor was mentally competent to execute a valid conveyance of real estate.

Upon this question the learned trial court took the decree of the surrogate as conclusive evidence against the defendant of the invalidity of the deed.

While the decree of the surrogate, under the circumstances of this case, was, we think, competent evidence against the defendant, and as such was prima, facie evidence of the matters adjudged in it, we do not regard it as absolutely conclusive as an estoppel against him. If the will had been admitted to probate the decree of the surrogate would have been presumptive evidence only of all matters determined by the surrogate. Section 2627 of the Code of Civil Procedure upon this subject provides as follows :

A decree admitting to probate a will of real property * * * establishes presumptively only all the matters determined by the surrogate * * * as against a party who was duly cited, or a person claiming from, through or under him, or upon the trial of an action, or the hearing of a special proceeding in which a controversy arises concerning the will, or where the decree is produced in evidence in favor of or against a person. * * * ”

In construing this section the Court of Appeals in The Matter of the Will of Merriam (136 N. Y. 61) uses this language: “ The record of the will is presumptive evidence only of its due execution and of the mental competency and freedom from restraint of the testator, and not of the validity of the devises contained in it, in any tribunal where the title to the real property of the testator may be in issue.” Citing section 2627 of the Code, supra. ■

Under this provision of the statute the heirs would not have been concluded absolutely by the decree of the surrogate if this real estate had been devised to the defendant in the will, and the same had been admitted to probate. The heir not being estopped under such circumstances by the decree of the surrogate, it would seem to follow that the grantee under the deed, the validity of which was not directly in issue before the surrogate, could not be estopped by a decree that the grantor on the day of the execution of the deed was not competent to devise real estate.

The doctrine is laid down in Abbott’s Trial Evidence (p. Ill), and supported by the authorities there cited, that where probate would not be conclusive in favor of a will, a decree of the Probate Court rejecting the will is not conclusive against it.” This deduction would seem to be logical, when applied to the will itself, and to apply with greater force when applied to a deed executed contemporaneously with the will.

It is quite true that the trial court, sitting as a court of equity, might have regarded the decree of the surrogate prima facie evidence, as matter of fact sufficient to overcome all the other evidence in the case. But the refusal to consider the other evidence, and the holding- that the decree was, as matter of law, conclusive, was, we think, error.

It was also a question of fact, under all the evidence in this case, whether the grantor was in the same mental condition at the time of the delivery of the deed as he was found to be at the date thereof.

The deed took effect from the time v of its delivery, which by the undisputed evidence was some days after its execution, and there was some evidence that at the time of the delivery the grantor had some appreciation of the relation existing between him and the defendant, and of the obligation he owed to him; and while, as we have seen, none of these matters would, as matter of law, necessarily overcome the prima facie case made by the introduction of the decree, we think it raised a question of fact which the court should have considered.

I am, therefore, of the opinion that the learned judge erred, and that the judgment should for that reason be reversed.

Putnam, J., concurred; ITekriok, J., dissented.

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