text:
    In the Matter of the Judicial Settlement of the Accounts of Philip F. Wangner, as Executor and Trustee Under the Will of Magdalena Schauffert, Deceased.

      Testamientary conversion of realty into personalty, for the purpose of the will — the portion undisposed of passes as realty, to the heir.

    Wliei'e real estate has been converted into money in order to carry out the provisions of a will, and a part of the converted fund is undisposed of by the will, such portion goes to the testator’s heir at law and not to the next of kin.
    A testatrix, by her will, left all her property, real and personal, to her executor, in trust, in his discretion to sell or convey the same by proper conveyances or leases, to invest the proceeds and use the income and interest thereof, and also so much of the principal sum as he should deem necessary or proper, for the support of the testatrix’s husband so long as he should live, and at his decease to pay over the residue to any child or children then living.
    The testatrix left no child her surviving, and as to the remainder of her estate after the trust estate for the life of her husband she died intestate.

      Held, on the final accounting of the executor on the termination of tbe trust estate by the death of the husband, that as to the balance of the estate remaining in his hands, assuming that the language of the will, while containing no absolute or imperative direction for a conversion, indicated an inteint that the real estate should be converted into money, such conversion was clearly for the purposes of the will alone ;
    That, on the death of the testatrix, her heir at law at once became vested with the remainder of the real estate undisposed of by the will, subject to the trust estate for the life of the husband, and such remainder to the extent it continued undisposed of retained its character of real estate and went to the heir at law on the death of the husband.
    Appeal by John Martin Daugs and Matilda Daugs, individually, and as executors of Ernest Schauifert, deceased, from a final decree of the Surrogate’s Court of Albany county, entered in the office of the surrogate of that county on the 20th day of April, 1893, on the judicial settlement of the accounts of Philip F. Wangner, as executor and trustee under the will of Magdalena Schauifert, deceased.
    Magdalena Schauifert and Ernest Schauifert were married on or before January 12, 1876, the only issue of which marriage was one child, which died when less than one year of age, and before either of its parents. Magdalena Schauifert died on February •13, 1887, at the village of West Troy, Albany county, N. Y.,. seized of certain real estate situate in the city of Troy, and village of West Troy, N. Y., and left as her only heir at law and next of kin her father, John Daugs, living in Germany. She left a last will and testament, dated January 13, 1876, which was duly admitted, to probate in the Surrogate’s Court of the county of Albany, N. Y., on the 3d day of-May, 1887, and letters testamentary thereupon were duly issued to Philip F. Wangner, as sole executor and trustee thereof.
    J3y her will, Magdalena Schauffert devised and bequeathed her property as follows :
    “ In case my said husband, Ernest Schauffert, shall survive me, it is my will and I do hereby give and bequeath unto my friend, Philip F. Wangner of the city of Troy, aforesaid, all of my estate, real and personal, of every kind and description and wheresoever the same may be situated, in trust, nevertheless, to take the charge and possession of the same, and in his discretion sell and convey by proper conveyances, or lease, or otherwise dispose of the same, both real and personal, for such prices or sums and on such terms as he may deem best, and to invest the proceeds thereof in good, safe securities, on interest, and to apply and use the income and interest thereof, and also so much of the principal sum as shall be at any time in his keeping as he may deem necessary and proper to the maintenance and support of my said husband, Ernest Schauffert, so long as he shall live, and at his decease, to pay over to any child or children I may then have living, in equal shares, if there shall be more than one, all and the rest and residue of the estate my said trustee may then have in his custody or control belonging to my estate.”
    Ernest Schauffert, her husband, died at the village of West Troy, April 5, 1892, leaving a last will and testament, which was duly admitted to probate September 21,1892, in the Surrogate’s Court of Albany county, N. Y., and the appellants are executors and legatees therein.
    The balance remaining of the estate in the hands of the said Wangner, as executor and trustee, was $3,290.37, which was claimed: First, by John Daugs, of Templeburgh, Pomerania, Prussia, the father of said Magdalena Schauffert, deceased. Second, by John Martin Daugs and Matilda Daugs, executors and legatees of Ernest Schauffert, deceased, husband of said Magdalena Schauffert, deceased. This appeal was taken to review the decision of the surrogate upon the question as to who is entitled to the balance remaining of the estate of Magdalena Schauffert. The decree of the surrogate directed that said balance be paid to John Daugs, of Templeburgli, Pomerania, Prussia, the father of said deceased, as her heir, instead of to the ajjpellants, John Martin Daugs and Matilda Daugs, as executors and legatees under the will of Ernest Schauffert, deceased, the husband of said Magdalena Schauffert, on the theory that Magdalena Schauffert, by her will, did not convert all her real estate into personalty, as she failed to dispose of the remainder of her estate, for the reason that she left no child, and that said Ernest Schauffert was not entitled to said remainder by virtue of the marital relation, and that as the real property was not equitably converted except so far as necessary to execute the provisions of the will, the remainder descended to the heir of the said Magdalena Schauffert.

      Henry J. Speck, for the appellants.

      Mead & Hatt, for respondent John Daugs.

      McClellan & Alberston, for respondent P. F. Wangner.
   Putnam, J.:

The testatrix in the will under consideration left all her property, real and personal, to her executor, Philip F. Wangner, in trust, to take charge and possession thereof, in his discretion to sell or convey the same by proper conveyances or leases, to invest the proceeds and use the income and interest thereof, and also so much of the principal sum as shall be at any time in his keeping as he shall deem necessary and proper for the support of her husband, Ernest Schauffert, so long a.s he shall live, and at his decease to pay over the residue to any child or children then living.

The testatrix left no child her surviving, and as to the remainder of her estate, after the trust estate for the life of her husband, she died intestate. Of the remainder, her heir at law, on her decease, at once became seized (Matter of Tienken, 131 N. Y. 391), unless, as claimed by appellants, there was an equitable conversion of such remainder immediately at her decease into personalty which vested in her husband.

It will be observed that the language of the will does not imperatively require the sale of the real estate. Whether there shall be a sale or not is left to the discretion of the executor. But it is urged by the appellants, and perhaps correctly, that the language and provisions of the will are such as to clearly show an intent on the part of the testatrix that all her estate should be converted into money, invested on interest and the income and interest applied to the support of her husband.

"We will assume, in our consideration of the case, that a proper construction of the language used in the will indicates an intent of testatrix that her estate should be converted into money.

But it is held, and seems to be well settled, that where real estate has been converted into money to carry out the provisions of the will, and a part of the converted fund is undisytosed of by the will, such portion goes to the heir at law, and not to the next of kin. (Wood v. Keyes, 8 Paige, 365.)

In Parker v. Linden (113 N. Y. 28-31) Danrorth, J., uses this language: “ The important question is whether the direction for conversion is, by the terms of the will, absolute and imperative, so as to be complete to all intents and purposes, or whether the conversion directed is for the purposes of the will only. If the latter, then if those purposes fail, or do not exhaust the proceeds, the property unapplied, whether the estate has been actually sold or not, will devolve according to its original character.”

It requires no argument to demonstrate that in the case under consideration the conversion from real to personal property directed by the will — if the will shall be deemed to contain any such direction— is for the purposes of the will alone. As we have seen, there is no absolute or imperative direction requiring such a conversion. If required by the language and terms of the will it is because such conversion is impliedly required to carry out the directions contained therein, as to the disposal of the proj^erty of testatrix for the benefit of her liushand during his life. The implied direction for a conversion was not for the purpose of a distribution of the estate among the next of kin. The will does not contain any 'language indicating an intent of the testatrix to convert the real into personal estate, except for the purpose of the will. lienee the ease of Parker et al. v. Linden (supra) seems directly in point. (See, also, Gourley v. Campbell et al., 66 N. Y. 169, 173, 174.)

In Bogert v. Hertell (4 Hill, 492-495) Nelson, Ch. J., uses the following language: “ Now, I think the authorities demonstrate that where the devisor has directed or authorized the conversion of his real estate, even for a particular’ special purpose, such as distribution, courts are bound, so long as the purpose and object exist and continue, to regard it as of that species of property into which it was directed to be converted ; and, to the extent and for the purpose declared, it is to be treated as money, and not land. This will be found to be the uniform language of all the cases on the subject. If tire purpose and object of the conversion fail altogether, or in part, then the whole estate, in the one case, and the part, in the other, is regarded as an estate or interest undisposed of by the will; and as the devisor, in the event happening, has made no disposition of the estate, it takes the direction given to it by law, independently of the will, and goes to the heir at law.”

The case of Roy v. Monroe (47 N. J. Eq. 356-360), to which we are cited by the learned counsel for the respondents, is in harmony with the authority above referred to. In the opinion the following language is used, which we quote as containing a very clear and able statement of our views in reference to the case under consideration : But the $10,000 stand in an entirely different situation. Though the land which this sum represents was changed, by a direction contained in the testator’s will, from land to money, yet it has so" happened that his will does not, in the present situation of affairs, dispose of the money. The testator ordered the conversion for two purposes — first, that his son during his life might have the income arising from the money; and second, that the principal on his son’s death might go to his son’s children. The first purpose has been fully accomplished. The second, however, has .not been and never can be. The son died without issue. The $10,000 are, therefore, undisposed of. As to it the testator died intestate, that is, in the condition of affairs now existing, it must be declared that he had no will concerning it and made no testamentary disposition of it. And, consequently, nobody can claim it under his will. It thus appears that the main purpose of the conversion has failed. Where that is the case the principle which must govern the judgment of the court in disposing of the money is, as I understand the authorities, firmly and clearly established, and may be stated as follows : The money must, for the purposes of succession, be regarded as possessing precisely the same heritable or transmissible quality or character which the property it represents had at the death of the testator, and it must be given to the heir if it represents land, and to the next of kin if it represents personalty.” (See, also, Read v. Williams, 125 N. Y. 560-571.)

We conclude that under the doctrine established in the authorities above quoted the court below made the correct disposition of the case. It is quite clear that if, under the will in question, there is any equitable conversion whatever, it was intended by the testatrix for the purpose of the will only, and hence, as held in Parker v. Linden (supra), as these purposes do not exhaust the proceeds, the property unapplied descends to the heir at law.

The case of Delafield v. Barlow (107 N. Y. 535), cited and relied upon by the learned counsel for appellants, does not at all conflict with the views above expressed. In Delafield v. Barlow the court held, under a will in some regards similar to the one under consideration, though with some doubt and hesitation, that by the terms of the will in that case considered, there Avas an equitable conversion of the real estate into personalty. Rut in that case the property was all disposed of under the Avill. While there was an equitable conversion for the purposes of the Avill, all the property so converted was required to carry out its provisions. In other words, testator did not die intestate as to any of the converted property. Hence, the case Avas not like that of Parker v. Linden and the authorities above cited, and does not conflict Avitli them. In the case under consideration, had'the deceased left her sundving a child or children, assuming that there Avas an equitable conversion of the real estate into personalty for the purposes of the aaúII, the estate being all disposed of by theAvill might be deemed all converted into personalty. As Ave have seen, under the Avill, as to the remainder of the estate after the life estate of Ernest Scliauffert, deceased died intestate.

We, therefore, conclude that on the death of testatrix her heir at law at once becomes vested Avitli the remainder of the real estate undisposed of by the will, subject to the trust estate for the life of the husband, and that such remainder, to the extent that it continued undisposed of, has retained and retains its character of real estate, and goes to John Daugs, the father and heir at law of testatrix.

We liave examined tlie other authorities cited by the learned counsel for the appellants, but do not feel that they require discussion.

The decree of the surrogate should be affirmed, with costs.

Mayi-iam, P. J., and Herrick, J., concurred.

Decree of surrogate affirmed, with costs.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of Thomas J. Mullon and Another, as Administrators, etc., of John Mullon, Deceased.

      Accounting in Surrogate’s Oourt — surcharge of inventory — burden of proof— devastavit— liability of administrators who are also residuary legatees — the business of the decedent cmried on by his administrators — the good will thereof, an asset —■ omission of assets from inventory — value thereof must be proved — sale of nonperishable property — mingling of property of the estate with property of the administrators.

    Tlie inventory of an estate filed in a surrogate’s office presumptively contains a true and full account of all the personal property of a testator, and is to be so considered in all subsequent proceedings before the surrogate until tlie contrary affirmatively appears.
    The burden of proof rests with a party seeking to surcharge an inventory, either as to the amount or value of the property of tlie deceased.
    Upon the settlement of administrators’ accounts they are to be charged with the amount of the inventory, all increase thereon, and all personal property of the deceased which may be proved to have come into their hands subsequently to the making of the inventory.
    It rests with the party objecting to establish more assets than are acknowledged by an administrator’s account or inventory, and the proper practice is to state the objection in the form of a distinct and specific allegation, and to give proof thereof.
    The fact that there were more assets than are acknowledged by an inventory and account must be established with reasonable certainty and not left to mere conjecture or suspicion. Not only must the omissions from tlie inventory be charged, hut the correctness of the charge must he proved, and the value or amount of such alleged omission.
    Where tlie residuary legatees .and devisees named in a will are .also the .administrators with such will annexed, they are not guilty of a devastavit of the estate by reason of their having taken it in their own names, and having paid the value thereof, as fixed by the inventory filed, and the value of all additions made to the same by newly discovered property, on the valid debts and liabilities of the testator.
    The measure of the administrators’ liability on a judicial settlement is the value of the property inventoried and the value of such property belonging to the estate as has come to their hands, with which they had not charged themselves in the inventory, and the amount of claims, made against the estate and paid by them, which they were not legally authorized to pay.
    They may take such assets as their own property, and will not be accountable to the estate for their earnings or accumulations in conducting the business assumed by them, nor can they charge any loss in the conduct of the same against the estate on their final judicial accounting.
    Where the business of a testator is carried on by his administrators, the good will of such business becomes an asset in the hands of such administrators, and its value, if proved, may be charged against them upon their accounting.
    Executors and administrators are not required to sell non-perishable goods unless the will so provides, or it be' necessary to do so to enable them to pay the debts and legacies, and they should not, on their final accounting, be charged with interest upon the value of property not sold; nor where they are residuary legatees should they be charged with the use of property which they have taken as their own and paid the estate for, at more than its inventoried price. Neither, when they do take property under such circumstances, and mingle it with their own, should they be held to have.forfeited their own property, which never belonged to the estate.
    If a trustee or administrator mingle trust funds with his own and use the mixed fund in his own business, he will be charged with interest, even though he make no profits out of such use.
    Appeal by Thomas J. Mullon and another, as administrators, etc., of John Mullon, deceased, from a decree of the surrogate of the county of Albany, entered in the Albany County Surrogate’s Court on the 25th day of May, 1893, settling and determining their accounts as such administrators, with the will annexed, of John Mullon, deceased, and directing said administrators to pay a judgment in favor of William' Bayard Yan Eensselaer, as trustee for Laura Yan Eensselaer, against them amounting to $3,811.70, with interest thereon from October 5, 1892, which is the deficiency upon the foreclosure of a mortgage executed by said John Mullon in his lifetime.
    John Mullon, the father of Thomas J. and Jacob II. Mullon, died at the city of Albany, N. Y., on the 15th day of August, 1886, leaving a last will and testament, which was duly proved and admitted to probate by the surrogate of the county of Albany on the 6th day of September, 1886.

      On tlie 29tli day of September, 1886, letters of administration, with the will annexed, upon the goods, chattels and credits of said deceased, were issued by said surrogate to Thomas J. Mullon and Jacob JI. Mullon, who duly qualified and entered upon the discharge of their duties as such administrators.
    On the 9th clay of October, 1886, said administrators, with the aid of Lawton F. Polliemus and S. Durbonon Smith, duly appointed and sworn as appraisers, after giving due notice of the same, made an inventory of the personal property and effects of said deceased.
    Said inventory was duly filed in said surrogate’s office on the 20th day of October, 1886.
    The said personal property amounted by appraisement, by said duly appointed appraisers, to the sum of $9,126.20.
    The mortgage, upon the foreclosure of which this judgment for deficiency was obtained, was executed by said John on the 9th day of November, 1881, to secure the payment of the sum of $6,000 in five years from the date thereof.
    On the 30th day of March, 1887, said administrators caused a notice for claimants to present their claims against the said estate to them within the period fixed’ by law, and at a certain place therein specified, to be published in a newspaper according to law for six months.
    Said administrators disputed no claims which were presented, but paid every claim against said estate which was presented to them.
    No claim against said estate was ever presented to said administrators by said William Bayard Yan Rensselaer, as trustee, in pursuance of the notice to creditors published as aforesaid, and no claim was made by said Yan Rensselaer until after the docketing of said judgment, on the 5th day of October, 1892.
    The testator conducted an ice business in the city of Albany for a long time prior to his death, and the two administrators were his sons and the sole residuary legatees under his will.
    After his death, said administrators, who were the owners of the property, took the same into their possession and used it in conducting the ice business in the city of Albany.

      John A. Stephens, for the administrators, appellants.

      Marcus T. Hun, for the petitioner, respondent.
   Mayham, P. J.:

William B. Van Rensselaer, as trustee for Laura Van Rensselaer, a creditor of Jolm Million, filed his petition with the surrogate, praying that the administrators of John Million, deceased, render their accounts, and make a judicial settlement of the same, and on the return of the citations issued by the surrogate on such petition the administrators appeared and filed their petition for a final judicial settlement before such surrogate. On such petition citations were issued to persons interested in the estate of deceased, on the return of which the administrators filed their accounts.

By said accounts they show that letters of administration with the will annexed were issued to them September 29, 1886, and that on the 20th day of October, 1886, they caused an inventory of the estate, made by them with the aid of appraisers appointed by the surrogate, to be filed in his office, by which it appeared that the amount of the testator’s personal estate was $9,426.20.

The administrators on such accounting credit themselves by the amount of several schedules, consisting of loss on the inventory, funeral expenses, claims against the estate presented to the administrators and allowed and paid by them, moneys paid to legatees named in will, amounting in the aggregate to the sum of $11,Y4Y.Y2, from which statement it appears that they had paid out on account of the estate $2,321.52 more than they had received, for which they claimed the estate was in debt to them.

The petitioner, William B. Van Rensselaer, surcharged the inventory filed on this accounting, and objected to many of the accounts allowed by the administrators.

I find no proof or finding that the inventory did not contain a full and complete list of all the articles of personal property owned by the testator at the time of his death which came to the hands of the administrators, except the inference which is sought to be drawn from the fact that the property sold by them to Sherman was worth $20,250. There is no proof that the property was undervalued in the inventory, or that any article was left off except what is now claimed to be the value of the good will of the business, nor does the learned surrogate rind that any article of -personal property of the ¿estator was omitted from the inventory or undervalued in it. Presumptively, tlie inventory contained a true and full account of all of tlie personal property of the testator. In Forbes v. Halsey (26 N. Y. 60) Davies, J., in discussing the effect which is to be given to an inventory duly filed in the Surrogate’s Court, on subsequent proceedings in that court, says: “ Such inventory may be regarded as the basis of their subsequent action, and is to be considered in all subsequent proceedings before the surrogate at least until the contrary affirmatively appears to be a true and perfect inventory of all the goods, chattels and credits of the intestate. , * * * The amount of personal property, therefore, which comes to the hands of the administrators will be assumed to be the amount of the inventory as returned and hied.” The party seeking to surcharge the inventory, either in the amount or value of the property of the deceased, has the burden of proof.

It is true that on settlement of administrators’ accounts they are to be charged with the amount of the inventory and all increase on the same, and all personal property of the deceased which may be proved to have come to tlieir hands subsequently to the making of the inventory. (McClellan on Executors, 67.) In Bainbridge v. McCullough (1 Hun, 488) it was held that it rests with the party objecting to establish more assets than are acknowledged by the accounts or inventory (citing Marre v. Ginochio, 2 Bradf. 165); and it was held to be the proper practice to state the objection in the form of a distinct and specific allegation, and give proof thereof.

But the respondent insists that the articles enumerated in the bill of sale to Sherman of February 27, 1893, are to be taken as the articles coming into the hands of the administrators on the 26th of September, 1886, the time when they were appointed administrators; and the learned surrogate seems to adojit that theory, and relies upon that bill of sale for the evidence on which to surcharge the inventory, and that, too, without any evidence in detail as to the value of the articles sold to Sherman, that value in the bill of sale being given only in the gross sum paid on such sale, and in the face of proof that many of the articles sold to Sherman were new, and were not among the assets of testator at the time of his death, but were purchased by the appellants while carrying on the business.

If this business was carried on by the appellants as administrators, and they at tlie time of the sale to Sherman held this property as such, then it is quite clear that they could be compelled to file an inventory of the newly acquired goods, or the contestant could surcharge their account to the extent of the profits on the business, but' the title or possession of the newly acquired goods would not be in the estate (Kenyon v. Olney, 15 N. Y. Supp. 417), and they could not properly be charged in their accounts with such new articles.

The learned surrogate does not find that they were carrying on the business as administrators, but finds that they were carrying on the business while they were administrators.

This seems to us to fall far short of finding that they carried on this business as administrators. The case shows that the appellants-assumed to carry on the business as individuals in their own names and not as administrators, and the bill of sale to Sherman is in their own names; and while the surrogate does not in terms find that they carried on the business as administrators, he refuses to find, on appellants’ request, that they carried on the business in their own names and not as administrators.

There was no authority in the will for continuing the business in the names of the executors or of the administrators with the will annexed, and we think the testimony in this case, together with the manner in which the appellants did in fact conduct the business, authorized a finding that they carried on the business in their own names and not as administrators.

This method of conducting the business was not inconsistent with the terms of the will, as by its terms they were the sole residuary legatees and devisees in this will after the payment of debts and legacies.

As residuary legatees, we think the administrators were not guilty of a devastavit of this estate by taking it in their own names and paying the full value of the estate as fixed by the inventory filed, and all additions that can be made to the same, by newly discovered property, on the valid debts and liabilities of the testator.

In such a case the measure of their liability on a judicial settlement would be the value of such property as had come to their hands belonging to the estate which they had not charged themselves with in the inventory, and the amount of claims made against the estate and paid by them, which they were not legally authorized to allow and pay out of the estate, and the executors or administrators would take the assets as their own property and would not be accountable to the estate for their earnings or accumulations in conducting the business so assumed by them and in which they employed such property, nor could they charge any loss in the conduct of the same against the estate on their final judicial accounting. (Blood v. Kane, 130 N. Y. 517.)

There is no specific allegation in the objection filed by the respondent to the accounts of the administrators, that the inventory does mot state or contain a credit to the estate of the proceeds of the business conducted by appellants after the death of the testator. Nor is there any evidence in the case from which such proceeds can be ascertained, if they were properly chargeable against the administrators in their account, sufficient to sustain the second conclusion of law found by the surrogate.

There is no proof of the value of the services of the appellants in producing such proceeds. Nor did the issue raised by the contestant call upon them to introduce evidence .upon that point. Indeed, ,a finding upon that point would seem to be inconsistent with the charge found in the seventh finding of law, which seeks to charge the administrators with the good will of testator’s business. (In re Randell's Estate, 8 N. Y. Supp. 652, and cases there cited.) These cases, while they seem to hold that the profits or proceeds of the business conducted in their own names by the persons who are at the time the personal representatives, cannot be credited to the estate, and such representatives at the same time be charged with the value of the good will of the testator’s business, for the obvious reason that such charges would be inconsistent with each other, yet they seem to be authority for charging the administrators with the value of such good will where they have adopted the business as their own. In such case such good will becomes an asset in the hands of the .administrators, and its value, if proved, may be charged against them in their accounts.

But, as we have seen, the burden of surcharging the inventory with the value of such good will, where it is not on the original inventory, is with the contestant, and before any allowance for it can be made by the surrogate, its existence and value must be proved by him, as well as its appropriation or sale by the administrators.

In Marre v. Ginochio (2 Bradf. 165) it was lieid that upon an accounting the affirmative, of establishing more assets than are acknowledged by the inventory and account, is with the party objecting; and it must be established with reasonable certainty, and not left to mere conjecture or -suspicion. (Forbes v. Halsey, 26 N. Y. 60, 61; Bainbridge v. McCullough, 1 Hun, 488; In re Randell’s Estate, 8 N. Y. Supp., supra.)

The contestant was called upon before a decree could be made in his favor upon this point, not only to charge in his objections such omissions in the inventory, but to prove the correctness of the charge, and the value or amount omitted from the inventory. (Matter of Hart, 60 Hun, 516; In re Johnston, 15 N. Y. Supp. 239.) This, it seems to me, he failed to do. It is true that the surrogate, in the summary statement in his decree, charges the administrators with $13,668, as the gross value, not stated in the inventory, of articles taken by the administrators, and used by them in conducting the business after testator’s death.

But it does not appear how that amount is proved except that the property was sold by appellants to Sherman for $20,000, and the inventory value of the articles received by the administrators from the estate was $6,682, showing either that the appellants had added to the value of the property which the surrogate charges to them, $13,668, or perhaps that the value of the good will is represented by that amount.

Neither hypothesis seemed to ns to be supported by proof, and both stand, if at all, upon conjecture. We do not think that the rights of these parties should be disposed of in that manner.

The surrogate finds that the administrators paid out on account of this estate $2,103.68 more than the inventory value of property which came to their bands, and yet, as appears from the summary statement, he finds still in their hands due the estate $11,470.38, out of which the surrogate directs the administrators to pay to the contestant the sum of $3,811.70 and interest, and directs a judgment in form to be docketed against them for that amount. The ground upon which this decree and judgment seems to be predicated is that the appellants did not sell and dispose of the property which came into their hands as administrators, but that they appropriated it to them own use, and mingled it with their own property, and that by such use and commingling they forfeited to the estate, not only the time and labor bestowed upon it during the period of over five years, during which the appellants managed this property as their own, but also all the articles and improvements added by them, and that they must now account for its present value, together with the price at which it was inventoried at the time that they took possession of it.

As we have seen, the taking of this property by the administrators and appropriating it to their own use, under the circumstances of this case, was not a devastavit of the estate so long as they paid the testator’s debts -and legacies.

In Greeno v. Greeno (23 Hun, 478) it was held, Rumsey, J., writing the opinion of the court, that executors and administrators are not required to sell non-perishable jwoperty unless the will so provides, or it be necessary to enable them to pay the debts and legacies, and they should not on their final accounting be charged with interest upon the value of property not sold.

It is true that this case discussed the general duties of such officers. But for a much stronger reason they should not be charged with the use of property which they have taken as their own and paid for to the estate at its inventory price, and more, as in this case.

Nor, when they take property under such circumstances and mingle it with their own, should they be held to have forfeited their own property, which never belonged to the estate.

The doctrine of confusion of goods does not go to that extent .and has no application to such a case, and any property bought by the administrators would belong to them personally and not to the estate, even if they had assumed to carry on the business in the name ■of the estate, which in this case they did not.

In Kenyon v. Olney (15 N. Y. Supp. 416) Merwin, J., says : “ It is well settled that debts contracted by the administrators in continuing the business of the intestate would not bind the estate. * * * Nor would the product belong to the estate. The title or possession would not be in the estate but in the party who ran the business.”

In Willis et al. v. Sharp (113 N. Y. 591) Andrews, J., says: “It is the settled doctrine of the courts of common law that a debt contracted by an executor after the death of his testator, although contracted by him as executor, binds him individually and does not bind the estate which he represents.”

It is true that the rule in equity is, that if the trustee or administrator mingle trust funds with 1ns own and use the mixed fund in his own business, he will be charged with interest even though he make no profits out of such use. (Utica Insurance Co. v. Lynch, 11 Paige, 520.) But we are cited to no case where the mingling of goods will work a forfeiture of the executor’s or administrator’s property to the estate.of the deceased, as is held by the learned surrogate in his thirteenth finding and conclusion of law.

It is insisted by the appellants that having advertised for -creditors for the time required by law, they are justified in assuming that all valid claims had been presented, and that they were authorized to exhaust the assets in paying such claims in full; and having done so before any judgment in favor of the contestant was docketed, and no claim on such demand or judgment having been presented to them pursuant to said notice, they cannot now be charged as administrators with the payment of such judgment, there being no unadministered assets in their hands out of w[iich it can be paid.

In In re McEvoy’s Estate (3 N. Y. Supp. 337) it was held that an executor was not liable personally * * * to a creditor who did not present the claim, which was for a deficiency on a subsequently foreclosed mortgage, and of which claim neither the executor nor residuary legatee had notice until after the estate was distributed.

If we are right in the conclusion at which we have arrived, that as residuary legatees these administrators could lawfully take and hold these assets on paying the debts and legacies to the full amount of the property coming into their hands as measured by the inventory, and that the contestant has failed to increase that liability by surcharging the inventory, or by proof increasing the amount of the estate which came to the hands of the administrators beyond the amount embraced in the inventory, then the appellants, after having paid the entire amount charged against them by the inventory, cannot be made personally liable for the amount of the contestant’s judgment.

We think the decree of the surrogate should be reversed, and a new trial or hearing had before the surrogate of Albany county (Code, § 2587), costs of this appeal and of the retrial to abide the event.

Putnam, J., concurred.

Decree of surrogate reversed, new hearing or trial granted before surrogate, costs of this appeal and of the retrial to abide the event.


author: Herrick, J.:

text:
    The People of the State of New York, Respondent, v. Allen Barber, Appellant.

      Assault — resisting aA'rest — sufficiency of the indictment and evidence.

    What form of indictment sufficiently sets forth the offense of assault in the second degree, under section 218 of the Penal Code, committed with the intent to prevent and resist the execution of a lawful mandate of a court, and to prevent lawful apprehension.
    A conviction under such an indictment is warranted, when the evidence shows that the defendant was committing an offense under section 448 of the Penal Code, by disturbing a lawful meeting, that the person who arrested the defendant and who was assaulted by him was a constable, in whose presence the defendant’s offense was committed, and who, under section 177 of the Code of Criminal Procedure, had authority to arrest the defendant for such offense without a warrant.
    Appeal by tbe defendant, Allen Barber, from a judgment of the Court of Sessions of Franklin county, rendered upon a verdict convicting the defendant of the crime of assault in the second degree, and entered in the office of the clerk of that county on the 7th day of June, 1893, and also from an order denying the defendant’s motion for a new trial made upon the minutes.
    The indictment upon which the defendant was tried and convicted was as follows:
    “ The Grand Jury of the County of Franklin, by this indictment, accuse Allen Barber of the crime of assault in the second degree, committed as follows:
    “ The said Allen Barber on the 7th day of March. 1893, at the town of Dickinson, in this county, did feloniously ana with intent to resist a lawful mandate of a court and to prevent the apprehension of the said Allen Barber by an officer, to wit: James Sabin, a constable of the said town of Dickinson, assault the said Janies Sabin, a constable aforesaid, while he was in the act of la/wfully apprehending and arresting the said Allen Barber, by striking said Sabin with his fist, against the form of the statute in such case made and provided and against the peace of the People of the State of New York and their dignity.”
    The defendant attacked the indictment on the following grounds, among others:

      “ The facts stated in the indictment do not constitute a crime, and the indictment is fatally defective in that it purports to charge the resistance of a lawful mandate of a court, and does not charge resisting the execution of a lawful mandate of a court; neither does it state that the court out of which the mandate issued was of competent jurisdiction, which is necessary (Penal Code, secs. 218 and 457) ; nor the nature or substance of the mandate ; nor state facts sufficient to show that the mandate was lawful. The lawfulness of the mandate is a mere conclusion and must be supported by facts set forth in the indictment.”
    And “ that the indictment seeks to charge two crimes: 1. The crime of assault with intent to resist the lawful mandate of a court. 2. An assault with intent to prevent the lawful apprehension of the defendant.”
    Section 218 of the Penal Code provides that “ A person who * * * assaults another with intent * * * to pi^pvent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself, or of any other person, is guilty of an assault in the second degree.”
    Section 448 of the same Code is as follows : “ A person who, without authority of law, willfully disturbs any assembly or meeting, not unlawful in its character, is guilty of a misdemeanor,”

      R. M. Moore, for the appellant.

      Frederick G. Paddock, District Attorney, for the respondent.
   Herrick, J.:

It seems to me that the indictment sufficiently sets forth an offense under section 218 of the Penal Code. The evidence shows that the •defendant was committing an offense under section 448 of tbe Penal Code. Tbe person wbo made tbe arrest, and wliom tbe defendant assaulted, was a constable, and tbe defendant’s offense was committed in bis presence.

Under section 177 of tbe Code of Criminal Procedure a constable bad authority to arrest him for such offense without a warrant.

Tbe judgment should, therefore, be affirmed.

Man ham, P. J., and Putnam, J., concurred.

Judgment of conviction affirmed.


author: Per Curiam :

text:
    Edward H. Hawke, Respondent, v. Madison Genn Hawke, Individually and as Executor of the Instrument Admitted to Probate as the Will of Edward H. Hawke, Deceased, and Others, Appellants, Impleaded with Another.

      Action to determine the validity of a probated, will — injunction pendente lite, restraining the executors.

    "When, on an application for an inj unction pendente lite in an action brought under section 3653a of the Code of Civil Procedure, to determine the validity of the probate of a will, it appears that the realty affords abundant security for the share in the decedent’s estate to which the plaintiff would be entitled if he succeeded in having the will adjudged to be invalid, the executors may be restrained from conveying or incumbering any of the real estate, or from passing any of it over to the beneficiaries named in the will, and be left in entire control of the personal property and of the income of the real estate, subject to their accounting for the same, as executors, in the event of the plaintiff’s failing in the action, and to their accounting to the plaintiff for his share thereof in the event of his succeeding in having the will adjudged to be invalid.
    Appeals by tbe defendants Madison Genn Hawke and Julia Alice Isabelle Remier, individually and as executors of tbe will of Edward H. Hawke, deceased, and by tbe defendant Elizabeth M. C. Wilson, from an order of tbe Supreme Court, made at Special Term upon tbe plaintiff’s motion, and entered in tbe office of tbe clerk of Saratoga county on the 4th day of October, 1893, staying and restraining tbe defendant executors, during tbe pendency of tbe •action, from conveying, disposing of, delivering or incumbering any •of tbe property mentioned in the said alleged will.

      The action was brought under chapter 591 of the Laws of 1892 (Code Civ. Proc. § 2653a), by the plaintiff, a son of said deceased, to have the validity of the probate of said alleged will determined and the probate thereof in Saratoga county revoked. The plaintiff in his complaint alleges that the instrument is not a valid will, in that said deceased, at the time of the execution thereof, was not of sound mind and memory; that he had an insane delusion in respect to the plaintiff, his son, mistakenly and falsely believing that plaintiff had not for him the filial affection and proper regard of a son; that the instrument was not the free and voluntary act of deceased, but was procured by fraud and undue influence practiced upon deceased by the defendants, beneficiaries in the instrument, who poisoned Iris mind against the plaintiff.

      Homing & McCall, for executors, appellants.

      Edgar T. Brackett, for Wilson, appellant.

      Charles E. Patterson, for defendant Skelding.

      J. S. D'Amoreaux, for Maria T. Hawke, appellant.

      Foley & Wing, for Edward H. Hawke, respondent.
   Per Curiam :

We have grave doubts of the propriety of granting the injunction herein, and are strongly disposed to reverse the order granting it, but there is a possibility that the plaintiff may lie injured by so doing, and the rights of all parties, it seems to us, can be preserved by a modification of the injunction.

It appears from the record before us that the property involved in this litigation amounts to about $350,000, $100,000 thereof being in personal property, and the remaining $250,000 being in realty.

If the plaintiff succeeds in establishing the invalidity of his father’s will, he will be entitled to one-fourth part of that estate ; it will thus be seen that the realty affords abundant security for his protection, if it remains undisposed of and unincumbered.

The injunction, therefore, is modified so as to restrain the defendants herein from conveying, disposing of or incumbering any of the real estate of which the testator died possessed, and from conveying and delivering or passing over any of tlie said real estate to the devisees or legatees named in the last will and testament of said testator; it being intended by this modification of the injunction to give the defendants entire control over the principal and interest of the personal property, and of the rents, incomes and profits of the real estate, subject, of course, to their accounting for the same as the executors of the last will and testament of Edward H. Hawke, deceased, in the event of the plaintiff failing in the action; or of accounting to the plaintiff for his share thereof in tlie event of his succeeding in establishing the invalidity of said will; and, as so modified, the injunction and order appealed from is affirmed, with ten dollars costs, and printing and other disbursements to the appellants.

Present — Matham, P. J., Putnam and Herrick, JJ.

Order for injunction modified, and, as modified, affirmed, with ten dollars costs and printing and other disbursements to the appellants.


text:
    Sidney E. Maders, as Receiver of the Property of William I. Whallon, Respondent, v. William I. Whallon and William J. McAuliff, Appellants, Impleaded with Eliza Whallon, Wife of said William I. Whallon.

      Amendment of complaint— Gode of Oivil Procedure, § 723 — receiver in supplementary proceedings — action to set aside a conveyance as in fra/ad of creditors — proof of insolvency of tlie grantor.

    When the record on appeal shows that an amendment to the complaint was allowed at the trial, the case is to he treated hy the General Term as though tlie proposed amendment had been actually written in the complaint, although it does not appear in the complaint as incorporated in tlie judgment roll.

      Semble, that the power of the court, under section 723 of the Code of Oivil Procedure, to allow an amendment of a pleading upon the trial, before the evidence is in, by inserting “ an allegation material to the case,” is only limited by the proviso that substantial justice shall be promoted oy the amendment. The further limitation, that it shall “not change substantially the claim or defense,” applies only to an amendment after the evidence is taken.
    At the commencement of the trial of an action brought to set aside a conveyance as fraudulent as against a judgment creditor, the plaintiff was permitted, over the defendants’ objection, to amend an allegation of the complaint, that the defendant grantor “lias no property other than that embraced in the aforesaid conveyance and the bond and mortgage given in pursuance thereof, out of which the aforesaid judgments, or either of them, could be satisfied in whole or in part,” by inserting after the words “has no property,” the words “and had no other property subject to levy and sale on execution at the time of, or since the date of said conveyance, or since the rendition of the judgment.”

      Held, that the amendment was authorized under section 723 of the Code, since it consisted merely of the insertion of an allegation material to the case, before evidence was offered or taken.
    A receiver has two methods by which he may enforce the judgments under which he is appointed against real estate alleged to have been fraudulently conveyed by the judgment debtor:
    He may sell the real estate under an execution, perfect his title and test the question of fraud in an action of ejectment; or,
    He can bring an equitable action to set aside the conveyance.
    It appeared upon the face of the complaint, in an action brought by the receiver in supplementary proceedings to set aside a conveyance made by the judgment debtor, on the ground that it was intended to hinder, delay and defraud creditors, that on making the conveyance, which was of land worth §6,000, against which there was only a prior lien of §1,050, the grantor took back from the grantee, and still owned, a mortgage for §5,000 on the land.

      Held, that the complaint failed to state a cause of action, in that, instead of showing the insolvency of the judgment debtor by reason of the conveyance, it affirmatively showed his solvency.
    (Herrick, J., dissenting.)
    Appeal by tlie defendants, William T. Whallon and William J. McAuliif, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of Essex county on the 3d day of March, 1893, upon a decision of the court rendered after a trial by the court without a jury at the Essex Circuit.
    This action was brought to set aside a deed given by the defendant Whallon to the defendant McAuliif on the ground of fraud.
    The paragraph of the complaint to which the amendment set - forth' in the opinion applied, was as follows: “ That the said defendant William I. Whallon has no property other than that embraced in tlie aforesaid conveyance, and the bond and mortgage given in pursuance thereof, out of which the aforesaid judgments, or either of ■them, could be satisfied in whole or in part, and that unless the said property can be reached and applied to the payment of said judgments the same must remain wholly unpaid.”

      B. Pond and Edgar T. Brackett, for the appellants.

      Chester B. McLaglin, for the respondent.
   Mayham, P. J.:

Tlie plaintiff brings this action as receiver of the property and effects of the defendant William I. Whallon by virtue of an appointment made in a proceeding supplementary to execution on a judgment against the defendant Whallon. The complaint alleged the recovery of two judgments against the defendant William I. Whallon, one in favor of Minnie Whallon in the County Court of Essex county for about eighty-two dollars, which Avas entered and docketed in that county on the 1st of July, 1889, and the other in a Justice’s Court of Henry S. Fletcher, for about thirty-six dollars, a transcript of which was filed and docketed in the Essex county elerk’s office on the 15th day of June, 1889; that an execution was duly issued on the last-mentioned judgment, which was returned wholly unsatisfied on the 5th day of August, 1889, and that after the return of such execution, proceedings supplementary to execution were instituted on the judgment, Avliich resulted in the appointment of the plaintiff as receiver, avIio as such duly qualified and entered upon the discharge of his duties on the 14th day of December, 1889, which receivership was subsequently, by an order of the court, extended to the judgment against the defendant William I., Whallon in favor of Minnie Whallon above referred to. The complaint also alleged that on the 23d day of November, 1888, William I. Whallon Avas the owner in fee and in possession of two farms or pieces of land situate in Essex county, one of 189 acres, and one of 100 acres, together 'of the value of $6,000, free of liens or incumbrances, except a mortgage of $1,050, and that on that day he made, executed and delivered to the defendant William J. McAuliff a deed of conveyance of such lands, in which his wife, who is named herein as a defendant, joined. That the consideration expressed in such deed was $5,000, to secure the payment of Avliich to the defendant William I. Whallon, the defendant McAuliff executed and delivered to him his bond for that sum, payable in annual installments of $500 each, Avitli annual interest, and as collateral to such bond also executed and delivered a mortgage on said lands conditioned for the payment of such sum of $5,000 and interest, Avliich bond and mortgage the defendant William I. Whallon still owns and holds, and that no part of the same has been paid or satisfied. The complaint charges that such conveyance of the lands therein described was made by tbe defendant William I. Wliallon and received and accepted by the defendant William J. McAuliff for the purpose and with the intent of hindering, delaying and defrauding the creditors of the defendant William I. Whallon, and that since the execution and delivery of such deed of conveyance, the defendant William I. Whallon has continued in the possession of the lands conveyed.

The relief asked for in the complaint is that the conveyance to McAulifE may be adjudged fraudulent and void;

That the defendants and each of them may be adjudged to account, for the property received by them under such conveyance ;

That the premises may be sold to satisfy such judgments and costs, and the cost and expenses of the receivership, subject to the-inchoate right of dower of the wife of the defendant William L Whallon.

The defendants answered separately denying the alleged fraud. This action was once tried, and the trial resulted in a decree of foreclosure of the mortgage given by McAulifE to the defendant William I. Whallon, which decree was reversed by this court on the ground that a decree in foreclosure was not authorized or proper under the complaint. (Maders v. Whallon, 19 N. Y. Supp. 638.)

On this trial the objection was made at the opening of the case, that the complaint failed to state a cause of action and should, for that reason, be dismissed.

The plaintiff thereupon moved to amend the complaint by inserting therein after the words “ has no property,” the words “ and had no other property subject to levy and sale on execution at the time of or since the date of said conveyance or since the rendition, of the judgment.”

The defendants duly objected to the allowance of the amendment, and the court overruled the objection and allowed the amendment,, to which the defendants excepted. It is now insisted that the complaint was not in fact amended, as the amendment does not appear in the complaint as incorporated in the judgment roll, and that the case on this appeal must be treated as if no amendment had been allowed by the trial judge.

We cannot agree with the learned counsel in this contention, but think we must treat the case as though the proposed amendment had been actually written in the complaint.

.Hut it is further insisted that the court at the trial had no power ■or authority to allow the amendment at the trial, as the original complaint contained no cause of action, and the amendment, therefore, introduced into it a new cause of action, which, it is insisted, ■can only be done on a motion before trial.

Section 723 of the Code of Civil Procedure provides that “ the ■court may upon the trial '* * * amend any process, pleading or •other proceeding * * * by inserting an allegation material to the case, or when, the amendment does not change substantially the 'Claim or defense by conforming the jfieadings or other proceedings to the facts proved.” This section seems to provide for an amendment upon the trial in two classes:

First. "When the amendment is made before the evidence is in, the court may allow an amendment by inserting an allegation material to the case.”

Second. After the evidence is taken, when the amendment does not change substantially the claim or defense by conforming the pleadings or other proceedings to the facts proved.”

In the first class the power to amend is only limited to cases where ■substantial justice is promoted by the amendment; the second has the further limitation that it shall “not change substantially the claim or defense.”

The disjunctive or between these two classes seems to indicate that they are governed by different rules. In the case at bar the ■amendment was made before the evidence was offered or taken. The cases cited by the appellants do not conflict with this interpretation .of section 723 of the Code.

In Barnes v. Seligman (55 Hun, 349) evidence was received, •under objection, that it was not authorized by the pleadings, and it was held that the pleadings could not be amended after trial to conform to the proof.

In Rutty v. Consolidated Fruit Jar Co. (52 Hun, 492) it was held that pleadings cannot be conformed to the proof when objection is taken in due form to the sufficiency of the complaint to authorize the proof, and that only when the proof is received without objection is it proper to grant an amendment at the close of the trial, conforming the pleadings to the proofs.

In Shaw v. Bryant (65 Hun, 57) the referee allowed an amend-meat on. tlie trial changing the complaint from one in equity to an. action at common law, charging the defendant with a personal liability, and the court on appeal held that such an amendment was not authorized under section 723 of the Code of Civil Procedure.

The difference between that case and this, is, that in that case the amendment changed the entire nature of the action, whereas in this the amendment only inserted “ an allegation material to the case.” In that case it does not appear at what precise stage of the trial the amendment was made, but it does appear that it was after much time had been spent in the trial. I am, therefore, inclined to the opinion that the court did not transcend its powers in granting this amendment at the commencement of the trial, and that such amendment was authorized under section 723 of the Code. Rut it is insisted by the appellants, that even with the amendment as allowed and inserted in the complaint, it did not state a cause of action authorizing the setting aside of this deed as fraudulent, inasmuch as the complaint upon its face shows that the defendant on the sale of his farm took back to himself a mortgage which represented the value of his farm in another form, which was equally available to the creditors of the defendant William I. Whallon, and to which, in a proper action, resort might be had for the collection of his debts.

By the provisions of section 2408 of the Code the property of the judgment debtor vests in the receiver from the time of filing the order appointing him, except in certain cases enumerated in that section, which have no application to the plaintiff here. He was, therefore, from the time of his appointment the owner of the mortgage and personal property of the defendant William I. Whallon, for the purposes of his trust in satisfying the judgments in the cases in which he was receiver, or to which his receivership was extended, and as each of said judgments exceeded twenty-five dollars, they were subject to the equitable power of the court for their enforcement. (Mallory v. Norton, 21 Barb. 424; Marsh v. Benson, 34 N. Y. 358; Sarsfield v. Van Vaughner, 38 Barb. 444.)

Upon the facts alleged in the complaint, as amended, with the concession therein that the defendant Whallon, after the sale of the farm, was the owner and in possession of the $5,000 mortgage on property worth $6,000, on which there was a prior mortgage and incumbrance of only $1,050, can it be successfully maintained that this farm was sold by "Wliallon and purchased by McAuliff for the purpose of hindering, delaying and defrauding the creditors of Whallon %

To determine this question two methods were open to the plaintiff : First. To proceed by execution on the judgments in his hands-as receiver, and sell the real estate conveyed by Whallon, and on the perfecting of his title under such sale bring his action of ejectment at law upon the assumption that this sale was fraudulent- and that the purchaser took no title as against the creditors of the grantor. (Smith v. Reid, 134 N. Y. 576, 577.) In that case the court says: A judgment creditor cannot be deprived of his legal right to enforce collection of his judgment against the lands of his debtor by a fraudulent conveyance thereof prior to the entry of the-judgment, nor can he, by such a conveyance, be forced to pursue an equitable remedy for the collection of his debt instead of a legal one, and the whole current of authorities in this State is to the effect that, notwithstanding the fraudulent conveyance, the judgment creditor may sell the land under execution upon his judgment, and the purchaser may impeach the conveyance of the land in a suit at law, to recover possession, or if he can gain possession, defend the title thus acquired against the fraudulent grantee or those claiming under him.”

Of course, in such a proceeding the judgment creditor or his representative assumes the risk of being able to establish the fraud, but so long as the title remains in the fraudulent grantee and before he has conveyed to a bona fide purchaser, the whole proceeding would be at law, in which tribunal the judgment creditor or his representative would have an adequate remedy.

The court in the case last cited, in further discussing this subject, says : “ But while the title remains in the fraudulent grantee the lien of the judgment exists and may be enforced against the land with the same effect as if the conveyance had not been made. As against the creditor, the conveyance, while the fraudulent grantee holds the title, is a nullity.”

The other method open to the plaintiff to test the validity of this conveyance, is the eqxritable action resorted to here, of setting aside the conveyance and thus removing from the legal title of the grantor and judgment debtor the cloud created by tlie alleged fraudulent conveyance. In either of these proceedings, however, the burden of establishing fraud rests with the plaintiff. He must show satisfactorily that the conveyance was made and accepted with the purpose and intent of hindering, delaying and defrauding the creditors-of the grantor; that the deed was executed in bad faith and left the grantor insolvent and without ample property to pay his existing debts and liabilities. (Kain v. Larkin, 131 N. Y. 300.)

In this case the complaint fails to allege that the defendant Whallon was, by the execution and delivery of this deed, rendered insolvent or deprived of ample property with which to pay and satisfy all of his indebtedness, but it expressly appears upon the face of the complaint that the defendant Whallon is the owner of a $5,000 mortgage on real estate worth $6,000, against which there is only a prior lien of $1,050, leaving the defendant Whallon clearly the owner of property applicable to the payment of his debts largely in excess of the judgment held by the plaintiff as receiver, and not only not showing insolvency by reason of the conveyance, but upon the face of the complaint showing the defendant clearly solvent.

The learned judge in his findings, while he finds that the conveyance wras made with the intent to hinder and delay tire plaintiff, does not find that the execution and delivery of this deed rendered the-defendant Whallon insolvent or unable to pay his debts, but finds that he is the owner of the $5,000 mortgage; but does find, as a conclusion of law, that the deed from Whallon to McAuliff is fraudulent and void, and directs that the same be set aside as to the judgment creditors represented by the plaintiff as receiver.

We think that, within the authorities referred to, the learned judge erred in his findings both of fact and law.

We see no difficulty in the plaintiff’s realizing, in a proper action, the amount of his claims as receiver against the defendant Whallon out of the mortgage held by him against this farm, b’ut, without undertaking to decide that question, we think the judgment in this-case erroneous. The judgment must be reversed, and a new trial granted, costs to abide the event.

PutNAM, J., concurred; IIbRRioK, J., dissented.

Judgment reversed, new trial granted, costs to abide event.


author: Mayiiam, P. J.:

text:
    John M. Haskell, Respondent, v. The Northern Adirondack Railroad Company, Appellant.

      Destruction of standing fruit trees — measure of damages — error disregarded upon appeal.

    The true measure oí damages for the loss of standing fruit trees destroyed hy fire is the depreciation in the value of the land upon which they stood hy reason of their destruction.
    Evidence of the value of standing trees destroyed through negligence is inadmissible in an action brought to recover damages for their destruction.
    Where it is apparent that an appellant was not prejudiced by an error of tlie trial court in the admission of evidence such error should, under the provisions of section 1003 of the Code of Civil Procedure, be disregarded upon appeal.
    Appeal by tlie defendant, The Northern Adirondack Railroad Company, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tlie office of tlie clerk of the county of Franklin ■on the 7th day of December, 1891, upon tlie verdict of a jury ren-dered after a trial at tlie Franklin Circuit, and also from an order denying tlie defendant’s motion to set aside tlie verdict and for a new trial made irpon tlie minutes.
    This action was brought to recover damages sustained by the plaintiff in the destruction of his orchard by fire caused by tlie •defendant’s alleged negligence.

      S. A. Beman, for the appellant.

      J. C. Saunders, for the respondent.
   Mayiiam, P. J.:

We think all the questions raised on this appeal were correctly •disposed of by this court on a former argument, as reported in 4-9 New York State Reporter, 483, unless this court erred in sustaining the decision of the trial judge wherein he allowed evidence of the value of the standing fruit trees destroyed by the fire, instead of the •difference in value of the land on which they stood by reason of their destruction.

In deciding this case on the former argument this court followed the decision in Whitbeck v. The N. Y. C. R. R. Co. (36 Barb. 644). That was an action for damages for the destruction of plaintiff’s fruit trees by fire, caused by the negligence of the defendant, and the witness was permitted, in answer to questions put by the plaintiffs counsel, under defendant’s objection, to state the value of the trees destroyed, and this court on appeal held the evidence competent.

That decision was referred to in Argotsinger v. Vines (82 N. Y. 314), and was tacitly approved by the court, although a different rule of damages was adopted in that case, and the court, without sustaining the rule then laid down, affirmed the judgment on the ground that the difference, if any, in the damages in that case, was. too small to justify a reversal, and, therefore, applied the maxim “ de minimus non eurat lex.”

Blit it is now claimed that the law was definitely settled in Dwight v. The Elmira, Cortland & Northern R. R. Co. (132 N. Y. 199), where it was held that the following question was erroneously put and answered under the defendant’s objection : “ Q. "What were those twenty-one trees worth at thd time they were killed ? ” The attention of this court was not called to that decision at the time of the former hearing of this appeal, if indeed it had been promulgated at that time. Assuming, however, as we must, that this decision,, which is directly in point, is the law of this State, the evidence offered and received in this case was erroneous, and as the same related to an important question in the case, the judgment must for that reason be reversed, unless we can see that the other rule of damages, also adopted by the plaintiff in his proof, cured the error, and that no damage resulted to the defendant from the receipt of the evidence erroneously received. It is quite apparent that sufficient evidence of an unobjectionable character was given in the case upon the question of damages to sustain this verdict.

Evidence was offered and received showing the value of the farm before t-lie injury complained of, and its value after the damage by fire to these fruit trees. This was legal evidence, and an examination of it shows that there was enough of that class of evidence to uphold the verdict of the jury. An examination of the evidence upon the question of damages offered upon both theories as to the proof of damages in this case, shows that the testimony as to the value of the trees was more favorable to the defendant than that relating to the difference in the value of the farm before and after the fire, and, hence, it is apparent that the appellant was not prejudiced by the error, and, under the .provisions of section 1003 of the Code of Civil Procedure, the error should be disregarded on this appeal. (Carley v. N. Y., Ont. & Wes. R. R. Co., 16 N. Y. St. Repr. 307; Powell v. Fletcher, 45 id. 294; Miller v. Barber, 66 N. Y. 559; Hoffman v. Conner, 76 id. 121.)

The error in the receipt of the evidence of the value of these trees was not, therefore, prejudicial to the appellant, and does not afford ground for reversal. (Lewis v. Hojer, 41 N. Y. St. Repr. 619.)

On the whole case, therefore, we see no reason for the reversal of this judgment.

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

Judgment affirmed, with costs.


author: PüTNAM, J. :

text:
    William Sylvester, Appellant, v. Thomas B. Wheeler, Respondent.

      Nonsuit — construction of the evidence — contract to furnish a water-tight tank — performance.

    On the review of a judgment of nonsuit all contested questions of fact are to be deemed established in favor of the plaintiff.
    One who has constructed a wooden water tank, under a contract calling for a tank "absolutely water tight immediately on being filled,” should not be non-suited in an action brought to recover the price thereof, on the ground of nonperformance, for the reason that the tank leaked on being placed in position, when the evidence is such that the jury might properly have found that the plaintiff performed the work on his part as to making- the tank according to the contract, but was prevented by the defendant from placing it in position for some days after it was constructed, and that this delay caused it to leak.
    Appeal by tlie plaintiff, William Sylvester, from a judgment of the Supreme Court dismissing the complaint, entered in the office of the cleric of Clinton county on the 30th day of November, 1892, on a nonsuit directed by the court at the Clinton Circuit.
    The action was brought to recover the price of a water tank constructed for the defendant by the plaintiff’s assignor, E. G-. Sylvester.

      L. L. Shedden, for the appellant.

      James B. Stearns, for the respondent.
   PüTNAM, J. :

As claimed by plaintiff under well-settled principles, a judgment of nonsuit having been granted by the trial court, all contested questions of fact should be deemed established in his favor. Bearing in mind this well-established principle the following facts may be considered as shown by the plaintiff on the trial:

Plaintiff’s assignor entered into a contract with the defendant, of which the following is a copy:

“ Rouse’s Point, N. Y., Nov. 11, 1891.
“ I hereby agree to construct for T. B. Wheeler, of Montreal, a tank of eighteen hundred gallons capacity, of clear stuff, pine, free from sap or knots, two inches thick, six feet three inches square, or more, if necessary, absolutely water tight immediately on being filled, of the very best workmanship, and of sufficient strength to be perfectly secure, with platform complete, at his laboratory, at Rouse’s Point, for the sum of eighty dollars, to be in place thirty davs or before from date.
“E. G-. SYLVESTER.
Accepted.
“ T. B. Wheeler.”

In pursuance of this contract Sylvester, within thirty days, made a tank of the best materials, free from knots and in the best manner, water tight, and in all regards as called for by the terms of the contract. He did a “ very fine job,” and on December eleventh endeavored to set it up in the building mentioned in the contract, but was unable to obtain access to that place. One Bullis, who had charge of the building for defendant, as Sylvester claimed, told bfm that Wheeler would be there the next day, Saturday, December twelfth. He did not come Saturday, and on Monday, the fourteenth, Sylvester telegraphed to him at Montreal that the tank was ready, and received a day or two after an answer stating that he would be at Rouse’s Point on December twenty-first. On December twenty-first he accordingly came. The tank was set up and leaked. There was some evidence that it was merely a slight leakage. It was shown that when completed the tank would not leak, being made of the best materials and in the best manner, and that the leakage was caused by its remaining for ten days in Sylvester’s shop exposed to the heat of the stove. When Sylvester put the tank in defendant’s laboratory lie offered to tighten it up, but the latter would not permit him to do so. Sylvester testified : I told him if I did that it would stop the leaking. At that time it leaked just a drop in two or three places. He refused to allow me to tighten it up.”

The jury, if the case had been submitted to them, could have found from the evidence that, within the time specified by the contract, plaintiff’s assignor had constructed a tank in all regards as required,, of the best materials and in the best manner, and one that would not leak, and had tried, but was finable, to place it in defendant’s laboratory, which was not accessible to him. That defendant had prevented him from placing the tank in his laboratory by locking up the same and remaining away from Rouse’s Point. In other words, that Sylvester had jierformed the contract as to making the tank, and endeavored to perform it as to placing the tank in the laboratory, but was prevented from so doing by defendant’s act. That defendant, after receiving notice of the completion of the tank, delayed seven days before opening his laboratory to allow it to be placed therein. That the ten days’ delay occasioned by defendant’s absence, three days before he received the telegram and seven days afterwards, caused the leakage.

Under the contract Sylvester was legally bound to construct a tank as specified therein, within thirty days, and put the same in defendant’s premises, and the latter was obligated to receive the tank at the place specified in the contract, and, if made according to the agreement, to pay for it.' The rights of the parties under the contract were not at all affected or changed by the letter written by defendant on November fourteenth. If Sylvester had completed the tank prior to the expiration of thirty days from the date of the contract, it is possible that defendant would have been entitled to notice, so as to have had his laboratory open ; but as Sylvester was only ready to place the tank on the last day mentioned in the writing, we think defendant was not entitled to any notice. The contract was notice to him. He was bound to carry out the covenants in the contract, and to receive the tank where Sylvester covenanted to put it and where he agreed to receive it. He prevented Sylvester from carrying out the contract for ten days and for seven days after actual notice from Sylvester that the tank was ready. It was suggested, by the trial court that from the evidence it may bo deemed that the time to perform the contract was extended ten days by consent of the parties. The evidence, we think, is capable, of another construction. The jury could have properly found that, plaintiff’s assignor was prevented from placing the tank for ten days by the defendant without his consent. It appeared that he could not help himself. lie testified on the trial, “I told Dr. Wheeler the morning he came and received the tank, before it left my shop, I told him it was not fair of him to bind me to make it and leave it there in my shop ten days. Well, said he, I am ready to. take it now.”

On the whole, we think, there was a fair question of fact in the case that should have been submitted to the jury. The jury on the evidence given could have properly found that plaintiff’s assignor performed the work on liis part as to making the tank according to the covenants of the contract, and was prevented from placing it for ten days, and that this delay, occasioned by defendant, caused a slight leak. In other words, that plaintiff’s assignor performed the contract in every regard except as prevented by defendant, and hence-that plaintiff was entitled to recover the contract price of the tank.

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

Mayham, P. J., and Herrick, J., concurred.

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


author: Putnam, J.:

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    William S. Boland, Respondent, v. Industrial Benefit Association, Appellant.

      Life insurance — action on.a policy — proof of the falsity of material answers in the application• — ■direction of a verdict for the defendant.

    When, on the trial of an action brought to recover the amount named in a policy of life insurance, answers of the insured, contained in the application for the policy, which are warranties and material to the risk, are shown to be false by the positive testimony of a reputable and disinterested witness (a physician, employed by the deceased), to whose evidence there is no satisfactory contradiction, it is the duty of the trial judge to direct a verdict for the defendant.

      Appeal by the defendant, Industrial Benefit Association, from a . judgment of the Supreme Court, entered in the office of the cleric of Albany comity on the 25th day of January, 1893, upon a verdict in favor of the plaintiff rendered at the Albany Circuit, and also from an order denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought by William S. Boland upon a policy or certificate of insurance, in which he was named as the beneficiary, issued by the defendant upon the life of Mary E. Boland, the wife df the plaintiff. The certificate of insurance was issued December 18, 1890, upon an application therefor made by Mary E. Boland, ' who died January 8, 1891.

      William F. Beutler, for the' appellant.

      George Addington, for the respondent.
   Putnam, J.:

In the application of deceased for insurance the following questions were aslced and answers given: “ 22. Ilow long since you required the services of a physician? Four months. 23. For what disease or trouble ? Child-birth. 24. Give name and address of physician? Dr. Jos. Lewi, corner of Trinity place and Westerlo St., Albany, New York. * * * 21. Have you had during the past five years or are you subject to any of the following diseases or any not named herein ? * * * Any bladder or kidney trouble? * * * If yes, state fully? None that I know of.”

The above answers made by deceased in her application should be deemed warranties, and if untrue, avoid the policy issued by defendant on which the action is brought. Such answers are not only wai1ranties, but are also to be regarded as material to the risk. (Dwight et al. v. Germania Life Ins. Co., 103 N. Y. 341; Higbie, Exr., v. The Guardian Life Ins. Co., 53 id. 603.)

Dr. Graveline, who attended the deceased in her last illness, testified that within four months prior to the time of her application, on two occasions, he attended deceased for chronic cystitis or inflammation of the bladder. If this statement of Dr. Graveline’s is true, the policy on which the action is brought was by its terms null and void. The assured not only answered untruely as to being attended by Dr. Graveline within four months, but also suppressed the fact that she was treated for a bladder difficulty, and that she had had such a disease within five years. Dr. Graveline testified that he was not in any way connected with defendant. He was the physician of deceased, who attended her in her last illness, and it was not suggested that he was not a disinterested witness and a reputable physician.

After a careful review of the evidence, we are unable to find that his testimony is in fact contradicted. All that the plaintiff testified to, was that Dr. Graveline did not attend his wife in August to his knowledge- But he stated that he was at work and absent a portion of the time. If the doctor had been there his wife, he thought, -would have told him. He had no personal knowledge at all on the suljeet. Therefore, the positive statement of Dr. Graveline, that he attended deceased twice within four months from the date of the application, was not satisfactorily denied. The testimony of the plaintiff that he (plaintiff) did not see the doctor at his house — inasmuch as plaintiff was absent attending to his work a part of the time — is not inconsistent with the evidence given by the doctor. Nor does the statement of plaintiff, that had the doctor been there in August his wife, he thought, would have told him, have any force as evidence.

The testimony of Dr. Graveline, that at the time mentioned he attended the deceased for a difficulty of the bladder, is not contradicted. The fact that Dr. Allen, four months later, did not observe any symptoms of that, disease is not inconsistent with Dr. Grave-line’s statement. Dr. Allen testified that there are no outward manifestations of chronic cystitis. That it is a disease that requires an examination to detect. Fie did not examine her for that disease in December, and could not swear that she, at that time, had no symptoms of cystitis or that she had not had. He did not ask her any questions in reference to any of the symptoms of a bladder difficulty. This testimony of Dr. Allen’s cannot be deemed a contradiction of the evidence of a disinterested physician that four months prior to this introduction of Dr. Allen to deceased he had attended her for a disease of the bladder.

The case discloses, therefore, the warranty as above set out, the positive statement of a reputable and disinterested witness — the witness employed by deceased as her physician — showing the falsity of her answers to the questions in the,application constituting the warranty, and no satisfactory contradiction of his testimony. It must be deemed established that Dr. Graveline visited the assured in August, and that he treated her for a bladder difficulty. After a careful consideration of the testimony we cannot resist the conclusion that such are the facts. At the most there was a mere scintilla of evidence tending to contradict Dr. Graveline’s statement. Such being the case, we thinlc the trial judge should have directed a verdict for the defendant instead of submitting the case to the jury. (Dwight et al. v. Germania Life Ins. Co., supra, 359; Linkhauf et al. v. Lombard et al., 137 N. Y. 417, 426; Bulger v. Rosa, 119 id. 459, 464.)

It is proper to say that we do not think plaintiff was concluded by the certificate of Dr. Graveline annexed to the proof of death; also we are of the opinion that the trial judge did not err in allowing plaintiff to prove his protest to the certificate of the doctor, but we hold that the evidence given on the trial shows that the certificate was true.

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

Mayham, P. J., and Herrick, J., concurred.

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


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    Emmet Stevens, as Executor of the Last Will and Testament of Levi Hill, Deceased, Respondent, v. William Barss, Appellant.

      Accord and satisfaction — account stated— when it can be opened— conclusion of a, referee — when it should not be disturbed on appeal.

    "When a settlement of accounts between two persons amounts to an accord and satisfaction, one of sucli persons cannot recover from the other items omitted from the account, without showing fraud or mutual mistake. It is otherwise when such settlement was a mere account stated.
    Before an account stated can he opened or corrected the proof should clearly show an error therein.

      Wliere the evidence is conflicting the conclusion of a referee, based thereupon, should not be disturbed by an appellate court.
    Appeal by tlie 'defendant, William Barss, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in tlie office of tbe clerk of tbe county of Warren on tbe 6th day of August, 1892, upon tbe report of a referee.

      Charles P. Coyle and A. Armstrong, Jr., for the appellant.

      S. H. Bevins and Potter & Lillie, for tbe respondent.
   Putnam, J.:

Plaintiff’s intestate and defendant, who were co-partners, in January, 1889, bad an accounting, on which there appeared to be due from deceased to tbe defendant $1,125. Defendant agreed to take the sum of $1,000, and deceased gave bis notes therefor, which were afterwards paid.

Tbe plaintiff, claiming that there were errors and mistakes in tbe said accounting to tbe amount of $454.14, brought this action. Tbe issues in tbe action were referred, and tbe referee found in favor of tbe plaintiff.

We have entertained some doubt whether tbe transaction between tbe parties, at tbe time deceased gave tbe notes, did not amount to an accord and satisfaction. If so, plaintiff could not recover without showing fraud or mutual mistake. If tbe settlement between tbe parties was in fact an accord and satisfaction, no fraud or mutual mistake being shown upon tbe trial, tbe judgment cannot be sustained.

But, on carefully considering tbe evidence, we are of tbe opinion that tbe referee could properly find therefrom that The settlement was a mere accounting, and not an accord. Tbe witness Coyle seems to have been allowed by bptli parties to draw off the account between them, and bis statement of such account to have been acquiesced in by both parties. Tbe testimony does not show any real dispute or controversy. Something was said about interest, but it does not appear that defendant insisted that be bad a right to it. Tbe evidence was such that tbe learned referee could properly find the transaction an account stated. Such being the case, an item or items omitted from tbe account may be recovered by decedent’s executor. (Carpenter v. Kent, 101 N. Y. 591; Ract v. Duviard-Dime, 21 N. Y. St. Repr. 736-740.)

Of course, before a stated account could be opened or corrected the proof should clearly show the error or mistake.

Whether there was sufficient evidence produced on the trial to show such error or mistake was a question of fact for the referee. There was testimony given on the trial by plaintiff tending to show such mistake. The deceased swore positively to the error, and was to some extent corroborated by the book of account which he produced. The testimony of the deceased was in some regards contradicted by defendant’s witnesses.

On well-settled principles we cannot properly reverse the finding of the referee on the question of fact submitted to him. The evidence was conflicting; the referee saw the witnesses and heard them testify, and his conclusion should not be disturbed.

We have examined the case carefully and do not think that any of the exceptions taken by the defendant to rulings of the referee require discussion or call for a reversal of the judgment.

The judgment should be affirmed, with costs.

Matiiam, P. J., and Herrick, J., concurred

Judgment affirmed, with costs.


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    Patrick Haddock, Respondent, v. Patrick Naughton, Appellant.

      Issue as to the commisdon of a crime, raised in a civil action — proof of other distinct crimes — slander —justification.

    It is only in cases where the intent or motive or knowledge of the party is a subject of inquiry that, ou an issue being raised as to the commission of a crime by a party to the action, the commission of another distinct offense can be shown.
    In an action brought to recover damages for slander in charging the plaintiff with having committed the crime of incest with one of his daughters, the defendant cannot show the commission by the plaintiff of an outrage, or attempted outrage, upon another daughter, in support of a plea of justification alleging the truth of the charge in suit.
    Appeal by the defendant, Patrick Naughton, from a judgment of the County Court of Sullivan county, entered in the office of the clerk of that county on the 19th day of December, 1892, upon a verdict in favor of the plaintiff, and from an order denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages for slander in charging the plaintiff with having committed the crime of incest with his daughter Mary.
    The defendant’s answer contained a general denial, and alleged “ that wliat the defendant did say in regard to the plaintiff in reference to what is set forth in the complaint was true.”

      D. S. Sill and T. F. Bush, for the appellant.

      George S. Carpenter, for the respondent.
   Per Curiam :

"Without considering or passing on the question raised as to whether the answer properly alleged a justification, we are of opinion that the evidence offered to show that plaintiff attempted an outrage upon his daughter Anna was properly excluded by the trial court.

This case did not involve a question of motive or intent. The simple question was, did the plaintiff have unlawful intercourse with his daughter Mary. It is only in very exceptional cases, an issue being raised as to the commission of a crime by a party to the action, that another distinct offense can be shown. Those cases are where the intent or motive or knowledge of the party is a subject of inquiry. Thus in Cary v. Hotailing (1 Hill, 311); Hall v. Naylor (18 N. Y. 588), and all the other cases cited by appellant, the intent or motive of the alleged wrongdoer was in question and necessary to be shown. The case of Mayer v. The People (80 N. Y. 364) was one where the defendant was indicted for obtaining goods on false pretenses. Before he could be convicted it was necessary to show that he intended to cheat and defraud. On that question evidence of similar transactions at about the same time was held competent. In the opinion of Justice Earl, in the note at the end of that case, the-learned judge quoted from “Wharton’s American Criminal Law” as follows: “Where the scienter or quo ai vim o is requisite to and constitutes a necessary and essential part of the crime with which the person is charged, and proof of such guilty knowledge or malicious intention is indispensable to establish bis guilt in regard to tlie transaction in question, testimony of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent is competent, notwithstanding they may constitute in law a distinct crime.”

In this case the defendant, to establish his justification, assuming that one was alleged in the answer, was not compelled to show motive, intent or scienter of the plaintiff. He was simply bound to show that plaintiff had unlawful intercourse with his daughter. We think that lie could not do so by showing an outrage or attempted •outrage on the person of another daughter.

No other error is suggested by the learned counsel for the apjiel- • lant. Nor is it claimed that the judgment should be reversed on the evidence.

We, therefore, conclude that the judgment should be affirmed, with costs.

Present — Mayhah, P. J.,. Hebbick and PutNAM, JJ.

Judgment affirmed, with costs.


author: Van Brunt, P. J.:

text:
    Hymen Morange, Respondent, v. The New York Elevated Railroad Company and Another, Appellants.

      Refusal to make assumption from facts found.

    It is not error for a trial court, having found certain facts, to refuse to find, in addition to such facts, assumptions based thereon.
    Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 29th day of August, 1893, upon the decision of the court rendered after a trial at the New York Special Term.

      E A. Tuttle, for the appellants.

      W. R. Page, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover past and fee damages caused by the construction and operation of the elevated railroad in the Bowery upon which the property of the plaintiff abuts.

We see no reason for disturbing the conclusion at which the learned judge below arrived upon a consideration of the evidence adduced before him upon the trial.

The fallacy of the argument presented by the learned counsel for the appellants arises from the fact that he seems to assume that the rise in real estate, between the time of the commencement of ..the construction of the defendants’ railroad and the present time, is attributable exclusively to the benefits conferred upon such property by the construction and operation of such railroad, entirely ignoring the fact that from 1873 to and until the year 1877, there was a depression in real estate, the result of the panic in 1873, such as this city has seldom seen — a recovery from which, whether the elevated railroads were built or not, was as certain as that this country would again become prosperous.

It is not considered necessary to discuss the evidence in detail. It seems to justify the conclusion at which the learned court below arrived.

Exceptions were taken to the refusal of the court to find certain proposed findings of fact, and the complaint is made that as the court did find certain other facts projxised by the defendants, it was error to refuse those findings to which our attention has been called. But it will be seen that the findings which have been requested present elements which are not supported by the testimony, and seem to be in contradiction thereof. The learned court found the physical facts, and refused to find assumptions based thereon. Our attention is called to a large number of cases in respect to this question of damages in cases of this description, but we do not think that any of them in any degree conflict with the course pursued by tlie court in the trial of the action at bar.

"We are of opinion, therefore, that the judgment should be affirmed, with costs.

Follett and Parker, JJ"., concurred.

Judgment affirmed, with costs.