text:
    JOHN FOLEY, Jr., and Others, Respondents, v. THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Appellant.

      Guardian in soeage — his rights relate only to personal property — a surrender of an endowment life insurance policy — ratification by an infant — counter-claim.

    A life insurance company issued, in 1876, to one Foley an endowment policy, payable in 1891. In 1879 Foley assigned it to his wife and children. In the same year his wife died seized of real estate, leaving a will in which she appointed her husband executor and also guardian of her children, and to them she bequeathed all her property in equal shares.
    In 1888 Foley surrendered the policy, as executor and guardian, and receipted in those capacities for the moneys paid by the company on such surrender. No letters of guardianship were ever issued to Foley.
    In an action brought by the children to have the surrender by Foley declared to be void and to have the policy reinstated:

      Held, that Mrs, Foley’s appointment, by her will, of her husband as guardian of their children was invalid.
    That, even if it had been valid, until letters of guardianship had been issued to him, he would have had no power over the estate of his children.
    That Foley, as guardian in socage, had no power to surrender the policy.
    That the rights of such a guardian are controlled by the Revised Statutes and do not extend to personal property.
    That where an infant does not expressly ratify an act, it must appear that, after majority, he accepted the fruiis of the unauthorized act, or in some way is benefited by it.
    That as a father was obliged by law to support his children, the insurance company would not be allowed to set up as a cohnter-claim, against the recovery of the sum which was paid by it upon the surrender of the policy by the father, such sums of money as the father had expended for the maintenance of the children.
    Appeal by the defendant, the Mutual Life Insurance Company, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 9th day of June, 1891, in favor of the plaintiffs for $6,191.72, with interest and costs, after a trial by the court at the New York Special Term.
    The action was brought to set aside a surrender of an endowment policy of life insurance, and to have the same reinstated, by the children of John Foley and of Elizabeth A. Foley, the latter of whom died possessed of certain real property, and left a will in which she provided, among other things, as follows :

      Second. I give and bequeath all my property, real and personal, of whatsoever nature and name and wheresoever situated, after the payment of my debts, to and amongst my children, including any unborn child, share and share alike.

      Third. I hereby nominate, constitute and appoint my said husband, John Foley, executor of this, my last will and testament, and guardian of the person and estate of my said children respectively, including any unborn child of mine during minority, and give to my said executor full power to sell and convey all property, real and personal, of which I may die seized or possessed.

      Jvdien T. JDa/oies and JEdwa/i'd Hyma/n Short, for the appellant.

      Herbert Green, for the respondents.
   O’Brien, J.:

This action was brought to have a surrender of a life insurance policy adjudged void, and the policy declared to be in force in favor of plaintiffs, and delivered up to them on payment of certain back premiums. The policy was an endowment policy on the life of John Foley and was issued in 1876. It was therein provided, in consideration of the payment of certain premiums at stated times, that defendant would pay to John Foley or his assigns, in 1891, the sum of $10,000, or if he should die before that time to pay such sum to his executors, administrators or assigns; in 1879 Foley assigned all his right, title and interest in this policy to his wife and children. Mrs. Foley died in 1879, and one child, Lizzie, in August, 1885, and the plaintiffs are the other children named in the assignment.

By Mrs. Foley’s will she gave and bequeathed all her property to her children, including any unborn child, share and share alike, and also named her husband, John Foley, as the executor of her will and the guardian of the persons and estate of her children. Letters testamentary were issued to the husband, but no letters of guardianship on the will or otherwise were issued or applied for by him. The trial court, therefore, accordingly found, as a fact, that no letters of guardianship were or had been issued to him under said will or otherwise, and, as a conclusion of law, that he was never legally appointed guardian of plaintiff or of any or either of them.

In 1888 John Foley took the policy to the defendant and surrendered it, as executor and guardian, receiving therefor a check for the sum of $7,229, payable to him, as executor and guardian, and for which he receipted as executor and guardian. This check, after being indorsed by him, as executor and guardian, was indorsed underneath, in his individual name, and deposited in his individual bank account. All of the plaintiffs at this time were under the age of twenty-one years. John Foley, Jr., became of age IVIay 7, 1888, and Madeline in November, 1889. All the other plaintiffs are still minors.

All the premiums on this policy had been paid up at the'time of its surrender, and before the commencement of' this action an amount sufficient to pay the premiums accruing since the cancellation of the policy by defendant was tendered and refused.

From the judgment of the Special Term, holding that the surrender of the policy by John Foley was illegal and void, this appeal is taken; and to secure a reversal the appellant has urged upon our attention several grounds, all of which were ably disposed of by the court below, leaving, however, a question which strikes at the very right of plaintiffs to maintain this action, and which we deem it proper briefly to consider.

It is insisted that upon the death of Mrs. Foley, an estate in land having become vested in the infant children, the guardianship of these infants, and control of their real and personal estate, with the rights, powers and duties of a guardian in socage, belonged to their father, John Foley, Sr.

If this claim could be maintained, that where, in the absence of any testamentary or other guardian, under the Revised Statutes, the' father becomes what might be designated as the statutory guardian in socage, and as such guardian has control not only of the lands, but also of the personal estate of the infant children, then the right Of the father, John Foley, acting in good faith in surrendering the policy, could not be disturbed. In Tyler on Coverture and Infancy (page 285), “ it is said there are two kinds of guardianship, one by common law, the other by statute. Guardianship at common law has fallen into comparative disuse in this country, although many of the principles which have entered into that relation are adopted in guardianship by statute.”

There were four kinds of guardians at common law, but the only one we need discuss here is the guardian in socage Guardian in socage arises only when the infant has land by descent, * * * which takes place when socage lands descend to the infant while under fourteen years of age, and ceases when the infant arrives at the age of fourteen years, unless no other guardian is appointed for him.” (Tyler, id., 237.)

Under the common law the right and duty of a guardian in socage were originally exclusively confined to real estate, but by degrees it was seemingly extended so as to embrace personal property. This extension of guardianship in socage at common Jaw, though prevalent in England, was not followed in this State, and in the absence of authority or decision it cannot be said that in this State such guardian ever obtained title to or control over personal property of an infant. It is true that Grover, J., in Torry v. Black (58 N. Y., 189), says: “ A guardian in socage could maintain actions for injuries to the real and personal estate of the ward.”

We take it, however, that a distinction must be made between the right to preserve property, be it real or personal, including the right to maintain .an action therefor, and the conferring of title, as to infant’s property, which will enable the holder thereof to legally dispose of or confer title thereto upon another.

What was said in Wuesthoff v. Germania Life Insurance Company (107 N. Y., 587), in regard to the policy, is applicable here. “ It expressed in terms what, in the absence of express words, would be the legal consequence that an obligation for the payment of money to infants may be discharged by payment to a guardian. The qualification that the guardian must be duly authorized to receive the payment is implied. It would be contrary to the nature and object of the contract to construe it as authorizing payment of a debt due to infants to be made to a person who, although he might, in a formal or even in a legal sense, be a guardian, nevertheless had no authority as such to collect or receive the money or debts due to the ward. We think it cannot be questioned that the contract to pay the guardian of the infant beneficiaries means a .guardian legally authorized to receive and discharge the debt, and that a guardian possessing this authority, whether a general or chancery guardian, a testamentary guardian or a guardian ad litem, is, within the meaning of the policy, a guardian to whom payment could be lawfully made.”

The question in Torry v. Black (supra), related to the power to commit waste by the statutory guardian of an infant in whom an estate in land becomes vested. Also in the Matter of Hynes (105 N. Y., 560), where the father of certain infants died seized of real estate, the court said: “ There can be no doubt of the authority of a guardian in socage to make a contract such as this. By our Revised Statutes, under the facts in this case, the mother became a general guardian, with the rights, powers and duties of a guardian in socage. Such a guardian had a right to the possession of the ward’s lands and to the receipt of the rents and profits thereof and could maintain ejectment to recover possession of such lands.”

In Emerson v. Spicer (46 N. Y., 596), many of, the provisions of the Revised Statutes are referred to and quoted at length : “ Guardianship in socage here is entirely regulated by statute * * * such guardianship shall belong, first, to the father of the infant; second, if no father, to the mother; third, to others specified.”

To every such guardian, all statutory provisions that are or shall be in force relative to guardians in socage, shall be deemed to apply. The rights and authority of every guardian shall be superseded, in all cases, where a testamentary or other guardian shall have been appointed under the provisions of the statute.”

The duties of such guardian are defined by statute, and it will be noticed that they relate to the care, custody and protection of the ward’s real estate. To the suggestion, therefore, that the father, as the guardian in socage, succeeded to the control of the personal property of the infant, two answers may be given. The statutory guardian in socage in this State has not been regarded as possessing the same rights and duties as the common-law guardian in socage, and we have been referred to no authority or statutory provision which concedes to such guardian the control or title to the personal property of the infant.

Again, it must be remembered that it is not the rights, powers and duties of a guardian in socage, as they existed at common law, that is to be determined, but such rights, powers and duties as were conferred by statutory provision prior to the enactment of the Revised Statutes. The latter provides that “ all statutory provisions that are or shall be enforced relative • to guardians in socage shall be deemed to apply.”

¥e have been referred to no statute prior to the Revised Statutes which conferred upon the guardian in socage any right or power over personal property.

Previous to the Revised Statutes a father could not be guardian in socage of his child (Fonda v. Van Horne, 15 Wend., 631), and plaintiff’s only right to be guardian in socage is created by, and his powers and duties regulated by, the Revised Statutes. While, therefore, under the Revised Statutes, a father becomes a so-called statutory guardian in socage, the right and authority of every such guardian are superseded in all cases where the testamentary or other guardian has been duly appointed.

In Segelken v. Meyer (94 N. Y., 473) it was held that “ an action to recover money or personal property belonging to an infant may be brought in the name of the infant by his guardian ad litem, although he has a general guardian.”

In discussing the question in that case, though not directly involved, a guardian in socage is thus referred to : “As a guardian in socage has to do only with the real estate of the infant, it has been claimed in some cases that the Revised Statutes empower a general guardian to bring actions only in relation to such real estate and the rents and profits thereof, and as to such actions it has been held that they can be maintained by the general guardian only.” We think that sufficient has been said to show that the so-called statutory guardian in socage has never been invested in this State with the title or control of the personal property of the infant, but that his powers related and were confined to matters growing out of the real estate of the infant. The surrender, therefore, of the policy by the husband cannot be justified upon the theory that, as guardian in socage, he had such right.

It is not claimed that, outside of his right as guardian in socage, he had any power to surrender the policy. No letters of guardianship were ever issued to him, and, although he was designated in the will of Mrs. Foley, such appointment being made by a wife in favor of a surviving husband, was invalid; and even though it could be upheld in the absence of the issuance of letters of guardianship, the husband, by section 2851 of the Code of Civil Procedure, had “ no power or authority, as guardian of the person or property of an infant by virtue of an appointment contained in the will, * * * unless the will has been duly admitted to probate and recorded in the proper surrogate’s office, and letters of guardianship have been issued to him thereon.”

¥e have examined the testimony for the purpose of determining whether the other position assumed by appellant is supported; that the plaintiff, John' Foley, Jr., is not, in any event, entitled to any relief, the claim being that, after attaining his majority on May Y, 1888, he acquiesced in and adopted the surrender of the policy by John Foley, Sr., as executor and guardian, to the defendant, with full knowledge thereof, and secondly, by the settlement with his father, John Foley, Sr., after attaining majority, elected not to pursue his remedy against the company, and that such settlement, in particular, constituted a ratification of his father’s act in receiving the money.

Such examination does not show that he ever ratified the surrender after he became of age. In the absence of an express ratification, it must be shown that the infant, after becoming of age, has accepted the fruits of the unauthorized act, or in some way benefited by it. Mere acquiescence is not sufficient (Green v. Green, 69 N. Y., 553); and upon. the evidence there is doubt upon the question, even as to whether or not he ever acquiesced. But whether he did or not, as stated, is entirely immaterial, because there is no evidence of any express ratification, nor was it shown that he, in any way, accepted the fruits of, or benefited by the unauthorized act. It is insisted further, however, that by proceedings in the Surrogate’s Court, on the basis that the apparent right of his father to act as testamentary guardian was a valid legal right, that Foley, Jr., could not thereafter take the antagonistic and inconsistent position which is involved in the maintenance of this action, namely, that his father was not testamentary guardian.

¥e are not impressed with the force of this suggestion that such proceeding created an estoppel by matter in pais, when it is remembered that these very proceedings to compel the father to account as guardian were dismissed upon the ground that he was not the guardian. There might have been much force in the suggestion had it, as a matter of fact, appeared that he was guardian, or had the son, on the theory that he was such guardian, been permitted to proceed in the Surrogate’s Court and enforce his claim against his father that so far as he individually was- concerned, he had elected one of two inconsistent remedies, and was bound by such election. But neither of the proceedings, nor the agreement made between the father and the son, and which enured to the benefit and advantage of all the plaintiffs in this action, present any good reason in law why this action may not be maintained. Had there been, with knowledge of all these facts, an election to pursue the remedy against the father, or had the claim for moneys received been included in the settlement made with the father, then the release which was executed in favor of the father would not only have enured to the benefit of the latter, but, we think, with some justice, could have been urged in discharge of any claim that might have been made against the defendant.

The only remaining question for us to consider relates to the refusal to order a reference for the purpose of determining whether or not such sums as may have been paid by the father might not be availed of by the defendant company as an equitable counter-claim. This right, it is claimed, has been recognized in Wuesthoff v. Germania-Life Insurance Company (supra), wherein it is said: “ The defendant on a new trial may be able to show that the money paid to the guardian has been applied in whole or in part to the benefit and support of the infants, under circumstances which entitle the defendant to an equitable counter-claim.”

In that case, however, the person to whom the money was paid, and who may have applied some for the benefit of the infants, was not, like the father in this case, under any obligation to support the infant. It is no doubt true, that where a person under no legal obligation to support an infant pays moneys for its benefit, which may have been received without authority by such person, or where such person out of the infant’s own property, without authority, makes expenditures for the benefit of the infants, that the same may be under some circumstances available as a defense, by way of equitable counter-claim, in an action brought by or on behalf of the infant to recover such moneys. ¥e have, however, been referred to no case where a father, who is under a legal obligation to support his children, and who, so far as the testimony shows, was amply able to respond to such obligation, obtains illegally the property of his children, that in an action brought against a person who has unlawfully paid over the same to the father, that this entitles such third person to equitably counter-claim any expenditures made by the father for the benefit of the children.

Upon the entire case we find no good ground for disturbing the judgment, and it should be affirmed, with costs.

Yan Brunt, P. J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Hardin, P. J. :

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ELMER J. BOSWORTH, Appellant.

      Burglary in the third degree — accessory befoi'e the fad — corroborating am accomplice — when the offense is committed — a second offense should be alleged — the conduct of the accused — the wife of an accomplice is a competent witness.

    An indictment for the crime of burglary in the third degree charged that one Elmer Bosworth induced one Adams to commit the crime; that Adams did so, “ whereby the said Elmer Bosworth did become a principal,” and it proceeded to charge that he committed the crime:

      Held, that, under section 39 of the Penal Code, it was proper to charge Bosworth as a principal.
    Thomas Keough, as a witness for the people, testified that he and Adams committed the crime at the instigation of Bosworth, and upon the question of corroborating Keough the court charged that there was testimony, other than that of Keough, which, if believed by the jury, would implicate Bosworth; that the court submitted to the jury the questions whether this testimony was true, and whether it was sufficient to connect Bosworth with the crime; that it was not necessary that the corroborating testimony should itself be sufficient to show the commission of the crime, or the connection of Bosworth with it, but that it was sufficient if it tended to connect him with such commission.

      Held, that this charge was correct.
    The crime actually committed consisted in the fact that Adams and Keough broke into the stable of one Baird, took out ahorse, led it away and cut its throat; which act was done, as appeared upon the trial, because of ill-feeling existing between Bosworth and Baird. The indictment was drawn under subdivision 1 of section 498 of the Penal Code, providing that one who, with intent to commit a crime therein, breaks and enters a building, is guilty of burglary in the third degree. The indictment charged an intent to steal. Larceny is defined in section 528 as taking place where one with intent to deprive the true owner of his property takes it from his possession, and such an act is therein denominated “stealing.”

      Held, that the indictment was sufficient, and that the evidence justified the jury in finding a criminal intent to steal.
    A prior conviction, to be available in increasing the punishment for a second offense, must be alleged in the indictment.
    Fanny, wife of Keough, testified that Bosworth, upon the day after the crime, drank a good deal and walked the floor.

      Held, that the testimony was competent as bearing upon his conduct at the time of the offense.
    After proof that she was the wife of an accomplice, also under indictment, objection was made to her testimony.

      Held, that, under chapter 182 of the Laws of 1876, and section 715 of the Penal Code, she was a competent witness.
    Appeal by the defendant Elmer J. Boswortli from the judgment of conviction of the crime of burglary in the third degree, rendered against him by the Court of Sessions held at the city of Binghamton, in and for the county of Broome, on the thirteenth day of July; also from the order of said Court of Sessions in and for Broome county, which denied a motion made in behalf of defendant in arrest of judgment, which order was made and entered in Broome county July 13, 1891; also from the order of the Court of Sessions of the county of Broome, made July 13, 1891, which order denied a motion made in behalf of the defendant for a new trial herein on a case and exceptions made and settled and filed, and on the ground that the verdict is contrary to law; that the verdict is clearly against the evidence, and on the exceptions taken on the trial; and also from the judgment herein adjudging the defendant to be guilty of the crime of burglary in the third degree, and adjudging that he be sentenced to the State prison in Auburn for the term of five years and three months, which judgment was entered in said clerk’s office August 18, 1891.
    The crime for which the defendant was indicted, as a principal, was actually committed by two persons named Keough and Adams. Ill-feeling existed between Bosworth and one Baird, and Bosworth employed Keough and Baird to break into Baird’s stable or barn at night, lead away a horse and cut its throat. Bosworth was not present, so far as the evidence showed. The indictment was for burglary in the third degree, under section 498, subdivison 1 of the Penal Code, and Keougli was indicted for the same offense.
    The indictment charged that the appellant, on the 19th day of October, 1890, at the town of Dickinson, “feloniously, willfully and burglariously did counsel, command, induce or procure one Archie Adams feloniously and burglariously then and there to break and enter the building of one S. Melvine Baird, with an intent to commit a crime therein, and with an intent feloniously, willfully and unlawfully to steal, take and carry away therefrom the goods, chattels and personal property in said building then and there being • and the said Archie Adams, in jiursuance of the said counsel, command, inducement or procurement of said Bosworth, did then and there feloniously, willfully and burglariously break and enter the building of the said Baird with an intent to commit a crime therein, and with an intent feloniously, willfully and unlawfully to steal, take and carry away therefrom the goods, chattels and personal property in said building then and there being* whereby the said Elmer Bosworth did become a principal in the commission of said offense, and he, the said Bosworth, then and there feloniously, willfully and burglariously did break and enter the building of said Baird with an intent to commit a crime therein, and with an intent feloniously, willfully and unlawfully to steal, take and carry away therefrom the goods, chattels and personal property in said building then and there being, contrary to the statute in such case made and provided.”

      A. Z>. Wales, for the appellant.

      W. D. Pamter, district attorney, for the respondent.
   Hardin, P. J. :

It was proper to charge, in the indictment, the defendant as a principal. Section 29 of the Penal Code provides as follows: “A. person concerned in the commission of a crime, whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime is a principal.” The theory of the prosecution is that the defendant directly or indirectly counseled, commanded, induced or procured Archie Adams and Thomas Keough to commit the crime charged in the indictment. The verdict of the jury is to the effect that the defendant is guilty as principal. (See People v. Kief 34 N. Y. St. Rep., 528; S. C., affirmed, 37 id., 478; People v. Bliven, 112 N. Y., 79.)

Thomas Keough was called as a witness and testified that Adams and he committed 'the crime, and he also “ implicated ” the defendant ; and he states that the defendant counseled and induced the crime.

In People v. Williams (29 Hun, 522), we had occasion to say “the testimony of an accomplice is not sufficient to convict of a. crime,” and to quote section 399 of the Code of Criminal Procedure, which is as follows: “ A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” When the people rested the defendant moved for his discharge, among other grounds, that the People had “ failed to connect the defendant with the commission of the offense charged in the manner required by section 399 of the Code of Criminal Procedure.” In response to the motion the court observed: “The People have proven a series of conversations and circumstances, from which I assume they will argue it does corroborate Keough and connect the defendant with the transaction; you will undoubtedly argue that it does not; and whether it does, and if it does, it is sufficient to convict him of the crime, is a question of fact for the jury, the court cannot take it away from them, and the motion must be denied.” The defendant took an exception to the ruling. In the course of the charge the learned county judge said: “ There should be some fact testified to entirely independent of the evidence of the accomplice, which, taken by itself, leads to the inference not only that a crime has been committed, but that the defendant is implicated in it. I charge you in this connection that there is testimony cf witnesses other than Thomas Keough, which, if true, might tend to connect the defendant with the commission of the crime but whether such testimony is true, or if you believe it to be true, whether it is sufficient to connect the defendant with the commission of the crime here charged, I submit as questions of fact to you under the rule which I have just laid down. In this connection, I say to you that it is not necessary that the corroborative evidence itself should be sufficient to show the commission of the crime or to connect the defendant with it; it is sufficient if it tends to connect the defendant with the commission of the crime.”

The defendant took an exception to that portion of the charge. After a careful reading of the evidence and reflection thereupon, giving full force and effect to all the testimony and circumstances revealed, we are of the opinion that the Court of Sessions committed no error in refusing to direct a verdict for the defendant, or in the language used in the charge. We are of the opinion that the evidence tended to corroborate Keough, and besides his evidence the prosecution produced “ such other evidence as tends to connect the defendant with the commission of the crime.”

In People v. Hooghkerk (96 N. Y., 149), the court, in giving construction to section 399 of the Code of Criminal Procedure, holds that it “ does not require that the whole case shall be proved outside of the testimony of the accomplice, but simply requires evidence from an independent source of some material fact tending to show not only that the crime has been committed, but that the defendant was implicated in it.”

In People v. Everhardt (104 N. Y., 591), it was held that the section was complied with if there is some other evidence fairly tending to connect the defendant with the commission of the crime charged, so that the conviction will not rest entirely upon the evidence of the accomplice. The question as to whether the evidence is sufficient corroboration is for the determination of a jury.”

In People v. Elliott (106 N. Y., 292) it was said: “ It is not necessary that the corroborative evidence of itself should be sufficient to show the commission of the crime, or to connect the defendant with it. It is sufficient if it tends to connect the defendant with the commission of the crime. * * * The court before it should submit the case to the jury should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime, and when there is, then it is for the jury to determine whether the corroboration is sufficient to satisfy them of the defendant’s guilt.”

It is insisted in behalf of the appellant that “ there is an absolute failure to prove the crime of burglary in the third degree, with which the prisoner stands charged, and of which he was convicted.” The indictment alleges that the defendant “ did then and there feloniously, willfully and burglariously break and enter the building of the said Baird with an intent to commit a crime therein, and with an intent feloniously, willfully and unlawfully to steal, take and carry away therefrom the goods, chattels and personal property in said building then and there being; whereby the said Elmer Bosworth did become a principal in the commission of the said offense, and he, the said Bosworth, then and there feloniously, willfully and burglariously did break and enter the building of said Baird with an intent to commit a crime 'therein, and with an intent feloniously, willfully and unlawfully to steal, take and carry away therefrom the goods, chattels and personal property in said building, then and there being contrary to the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.” We think the language sufficient to uphold the charge of the crime of burglary in the third degree. Section 498 of the Penal Code provides that: “A person who, either (1) with intent to commit a crime therein, breaks and enters a building or a room, or any part of a building, * * * is guilty of burglary in the third degree.” ' Larceny is defined in section 528 of the Penal Code, where it is provided that: “ A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either (1) takes from the possession of the true owner, * * * or secretes, withholds or appropriates to his own use, or that of any person other than the true owner, any money, personal property, * * * steals such property, and is guilty of larceny.” The jury were warranted by the evidence in finding, that the horse was taken “ from the possession of the true owner * * * with intent to deprive ” the owner thereof, and that the horse was secreted with like intent. In People v. Dumar (106 N. Y., 508), in speaking of section 528 ‘of the Penal Code, the court said: “We find * * * certain acts enumerated, either one of which performed by any person with intent to defraud the true owner of his property, or of its use or benefit, or to appropriate the same to the use of the taker or of any other person, makes him guilty of larceny, and he, in the language of the Code, steals such property. The crime is committed when, with that intent, a person either, first, takes such property from the possession of the true owner, or of any other person,” etc. In Harrison v. The People (50 N. Y., 518), it was held: “ To constitute the offense of larceny there must be a taking of the goods from the power or control of the owner. A temporal y possession, however, by the thief, though but for a moment, is sufficient.”

In People v. Pollock (51 Hun, 615), the court, in commenting upon section 528 of the Penal Code and the requirements thereof, said: To constitute guilt there must, be evidence of intent to deprive or defraud the owner, and the jury must find such criminal intent as a fact upon the evidence before a conviction can be had.”

In the case before us the court in its charge to the jury, after calling their attention to the statute as to burglary, said the offense alleged was that “ of breaking and entering the building on the night in question with the intention of committing a crime.” There was no request to make the charge more definite or specific. In support of the learned counsel’s argument in behalf of the appellant, citation is made to The People v. Woodward (31 Hun, 57). In that case the defendant was convicted of grand larceny, having taken a horse from the stable of one Jewell, and killed and buried it in a pit. There was a request that the court charge that “ there must be an intent on the part of the taker to reap some advantage or benefit from the taking; ” and it is stated in the course of the opinion, viz.: “ Thus the court neglected and refused to point out the essential ingredient of the crime of grand larceny whereby the defendant may have been convicted of a felony, while the facts and the charge were equally applicable to a misdemeanor.” No such request and refusal are found in the case before us. If it be assumed that the killing of a domestic animal is malicious mischief, as held in People v. Smith (5 Cow., 258), and a crime (Bump v. Betts (19 Wend., 421), and that the same is a violation of section 654 of the Penal Code, it might be said with some plausibility that the commencement or inception of the crime took place when the horse was taken from his stall in his barn ; however, that question was not agitated at the trial or presented, either by a motion at the time the People rested, nor at the close of the evidence, nor was the court requested to charge upon that subject, and, therefore, we forbear any further comment thereon.

In People v. Richards (5 N. Y. Cr. R., 364; S. C., 44 Hun, 283) it was said in the opinion : It is not needful to a conviction that an intent to steal or an intent to £ commit a felony ’ shall be shown, provided the intent to commit any other crime is averred and established.” Although that case was reversed, as appears in 108 New York (p. 137), it was upon another ground, to wit: ££ That the building, erection or inclosure ” was not embraced within section 498 of the Penal Code, it being observed in the course of the opinion, page 497, viz.: ££ We simply intend to decide this case and no other; ” and when we come to examine the indictment and the proof giving a description of the structure we come to the belief that it was really nothing more than a grave above ground.” We are of the opinion that the indictment sufficiently alleged facts constituting burglary, and that the evidence warranted a finding of the essential facts constituting the crime of burglary in the third degree.

It seems to have been held that a prior conviction, to be available in increasing punishment for a second offense, must be alleged in the indictment. (People v. Young, 1 Caines, 37, decided in 1803; People v. Price, 6 N. Y. Cr. R., 141.)

In People v. Stanley (47 Cal., 113; S. C., 17 Am. Rep., 401) it was held that “ a statute providing that a person shall be subjected to an increased punishment upon conviction for a second offense, is not in violation of a constitutional provision that no person shall be twice put in jeopardy for the same offense; ” the opinion in that case cites 9 Grattan (p. 742), in which it was held that a similar statute in Yirginia was not unconstitutional; and the opinion also cites Ross’s case (2 Pick., 170) and Plumbl/y v. Commonwealth (2 Mete., 413) as cases approving of a similar statute.

In Gibson v. People (5 Hun, 542) the indictment set out a former conviction, and in the course of the opinion of Merwin, J., delivered in that case, it was said: ££ The charge in the indictment should be so alleged as to be intelligible in its legal requisites and inform the defendant of what he has to meet; ” and in Wood v. The People (53 N. Y., 511) it was said : ££ The discharge in one of the ways mentioned in the statute is a fact material and necessary to be alleged as was the prior conviction.” The facts of the imprisonment upon the prior conviction, and the manner of the discharge must, therefore, be alleged and proved. Wood v. The People was referred to approvingly in Phelps v. The People (72 N. Y., 355).

In The People v. Cook (45 Hun, 37), in referring to a statement in an indictment, it was said: It is to be deemed a first offense, unless the contrary is charged.” Ye are of the opinion that sections 688 and 689 of the Penal Code, relating to second offenses, are valid, and that it was proper to allege in the indictment the evidence which would establish that the crime charged in the indictment was a second offense, and to give proof thereof upon the trial. (People v. Price, 53 Hun, 185; S. C., affirmed, 119 N. Y., 650.)

In People v. Raymond (96 N. Y., 38), it was said that “ the first offense is not made an element of or included in the second, but is simply a fact in the past history of the criminal to be taken into consideration in prescribing punishment therefor; ” and in the opinion in that case it was said “ the language of the Code makes no reference to second offenses of the same character or grade with the first. It contains no such limitation, and we think none such was intended. Its reason was obviously independent of any such similarity. That the accused has already been convicted of a felony or an attempt to commit one, or of a ‘ petit larceny,’ shows that punishment has done him no good; that no reformation was effected; that he is a persistent criminal, towards whom mercy is misplaced ; and ' by reason of this character of the man, thus shown by his conduct, greater severity of punishment is prescribed. The reason is the same whether both crimes are of similar character, or of the same grade or not. Both are crimes, and the perpetration of the second, however different, shows such a persistence in evil, such a continued criminality, as to justify and make prudent a severer penalty than should be inflicted upon a first offender. If we adopted the construction sought, a prisoner might have been convicted of many felonies, and yet, by judicious changes from one to another, or running up or down the different grades, escape entirely the penalty of a second offense.”

Sections 688 and 689 provide for additional burdens upon offenders, and are not affected by the provision in section 714 of the Penal Code, permitting persons convicted of any crime to be competent witnesses in any civil or criminal cause.

After Fannie Keough had detailed a conversation which she held with the defendant the next day after the alleged offense, she was asked the following question: “ Q. Now, I ask her how he appeared ? ” This was objected to as improper and incompetent; she is not competent to give any evidence of that kind. In response, the court observed: “ I think she ought to state what he did and said.” Thereupon the question was put to her: “ Q. You may state what he did or said, if anything?” The objections were renewed, and the witness answered: “ He walked the floor, and he was very nervous.” Thereupon the counsel for the prisoner objected to and moved to strike it out; “ and if it were shown, it would have no sort of bearing upon this case.” The court observed : “ It may stand.” And thereupon the defendant duly excepted. The motion to strike out was too broad. In People v. Wentworth (4 N. Y. Crim. Rep., 201), we held that “ where a part only of answer is irresponsive a motion should be made specifically to strike out the irresponsive portion.” The following question was then put to the witness, viz.: “ Q. Go on ? A. He drank a good deal. Objected to as improper, irrelevant and incompetent. Objection overruled and defendant duly excepted. A. He was lying in the bed part of the time, then he would get up and walk the floor. Same objection, ruling and exception.”

In Linsday v. People (63 N. Y., 154) Allen, J., says: “ The question to the witness Moore as to the conduct of the accused about the time of the alleged murder was not objectionable. The acts and declarations of a party are evidence against him, and whether they tend to fix a crime upon him is for the jury.” "We think the exceptions are unavailing.

Thomas Keough, who was concerned in the commission of the the offense, was called as a witness in behalf of the people, and testified, in effect, “ that he was a party to this crime and is under indictment for it,” and it was conceded he was under indictment for it. After he had testified, his wife, Fannie Keough, was called as a witness; and after she was sworn the defendant’s counsel was permitted to ask preliminary questions of her, and after it appeared that she was the wife of Thomas Keough it was objected that she was au incompetent witness. The objection was overruled and defendant took an exception. We think she was a competent witness. (Haskins v. The People, 16 N. Y., 344.)

Chapter 182 of the Laws of 1876 provided that “ All persons jointly indicted shall, upon the trial of either, be. competent witnesses for each other, the same as if not included in the same indictment ; ” and in People v. Dowling (84 N. Y., 484), it was held error to refuse the c‘ testimony of Myron Dowling, though he stood jointly indicted with the defendant in error; ” and section 715 of the Penal Code provides that “ the husband or wife of a person indicted or accused of a crime is in all cases a competent witness on the examination or trial of such person.”

People v. Petmecky (2 N. Y. Cr. R., 458) is an authority for holding that the wife of the defendant may be called as a witness against him in virtue of section 715 of the Penal Code, though she may not be compelled to disclose any confidential communication passing between herself and her husband during their marriage.

In Wixson v. People (5 Parker, 127) it was said: If it was proper to allow Lockwood to be sworn (an accomplice), of course, it was no error to admit his wife. She would not have been competent had her husband been incompetent as an accomplice.” Upon the tidal of Linsday v. The People (supra), Yader, an accomplice, was sworn as a witness for the prosecution, and she gave evidence tending to corroborate her husband. The conviction was affirmed by this court (5 Hun, 104), and by the Court of Appeals (63 N. Y., 143).

In behalf of the defense, A. P. Fish, an attorney, who had been employed to defend Keough before a justice, was called as a witness, and he testified that on the forenoon of October twentieth, Monday, Mrs. Keough called at his office and asked him to appear for Keougli; and that on that evening he went up to Bosworth’s house, and in Bosworth’s private sitting-room had an interview with Bosworth, who was lying in bed. or on the bed; and that he there arranged to see Keough in the morning “ and tell him to keep still.” He also testified “ Bosworth did not have anything to say on the subject of keeping his mouth shut; Í said it myself; Bosworth was lying there in bed.” . At a subsequent stage of the case Fish was called for further cross-examination, in which he stated that he saw Heough at the jail Tuesday forenoon; and he also testified : “ I did not ask him at that time who was at the bottom of it; I did later in the week, but not then; I only saw him once Tuesday; he did not tell me at the time that Bosworth was at the bottom of it.” In the course of his redirect-examination, in response to the counsel of the defendant, he stated: “It was Friday forenoon the first he ever told me anything like that Bosworth was at the bottom of it.” Thereafter Thomas Keough was recalled for the People and testified: “ I saw Mr. Pish at the jail Tuesday morning and had a conversation with him.” Against the objection and exception of the defendant he was permitted to testify that the conversation referred to by Pish ■occurred on Tuesday morning. We think it was proper to fix the date of the conversation.

Appellant has called our attention to other exceptions taken during the progress of the trial, which have been examined, and we are not satisfied that any of them present error which calls for a reversal. (People v. Gonzalez, 35 N. Y., 49; Code of Crim. Pro., § 542.)

We think the verdict of the jury should stand and defendant serve out his sentence, and the judgment upon the verdict remain.

Martin and Merwin, JJ., concurred.

Judgment and order of the Court of Sessions of Broome county-affirmed, and the clerk directed to enter judgment and remit certified copy thereof with the return and decision of this court to the Court of Sessions of Broome county, pursuant to sections 547 and 548 of the Code of Criminal Procedure.


author: Hardin, P. J.:

text:
    ANNIE B. WINKLER, an Infant, by ALOIS WINKLER, her Guardian Ad Litem, Respondent, v. I. BELLE SCHLAGER, Appellant.

      Married women — con tract for the services of a domestic servamt — when the contract is that of the husband.

    A married woman living with her husband, wrote to a servant, who knew of this fact, to secure her services as a nurse. The husband continued the correspondence, and, upon the servant’s coming from a distant place, sent her his mileage-book so that she might pay her fare to his residence. There was no evidence that the services were to be rendered, other than in the family relation, nor that they were especially for the benefit of the separate estate of the wife.

      Held, that the contract was that of the husband and that the wife was not liable thereunder.
    Appeal by tbe defendant I. Belle Schlager from a judgment of the Broome County Court, entered in the clerk’s office of said county on the 13th day of July, 1891, upon a recovery by the plaintiff of sixty-two dollars and ninety cents, and interest and costs, on a trial before a referee.
    In the complaint it is alleged: “ That on or about May 13, 1889, the plaintiff and defendant entered into an agreement whereby the plaintiff undertook and agreed to render her services to the defendant as nurse-maid and second girl, from about said date for a period of eight months continuously; in consideration whereof the defendant agreed to so employ the plaintiff during said period, and to pay her for her services at the rate of $10.00 each month. That the plaintiff enteied upon her employment under said agreement, and duly discharged all the duties thereof until about June 21, 1889, up to which time she received of defendant the sum of ten dollars, when she was discharged by the defendant without any fault on her, this plaintiff’s, part, and that she has been ever since, and still is ready to perform such agreement on her part, and at the time of such discharge she offered to perform said agreement on her part in full, but the defendant then refused, and still refuses, to allow her to do so, or to pay her therefor, to her damage of seventy dollars.” The answer admitted the payment of ten dollars, and alleges payment “ for any and all services rendered.” . She also sets up as a defense: “ That at the time of the making of the supposed contract, the defendant was the wife of Charles Schlager, and said contract was not made in or about the carrying on of any trade or business by her, and did not relate to, and was not for the benefit of her separate estate, and is not a charge thereon.”
    The referee found : “ That on and prior to May 9, 1889, the said plaintiff came from Catskill, Greene county, N. Y., and entered into a contract with the said defendant, whereby the said plaintiff agreed to render services for the defendant ‘ as nurse-girl, to do her own washing and ironing, keep the parlor and defendant’s room in order and take care of baby,’ for the term of eight months at least, and to commence working May 13,1889, at the price of $10.00 per month; * * * the said defendant agreed to pay said plaintiff for such services $10 per month for said term, and the plaintiff had no knowledge that defendant was acting as agent for any person in making such contract.”
    The referee also found “ that the defendant I. Belle Schlager was for several years, and prior to June 7, 1889, a married woman, residing with her husband, Charles Schlager, at No. 87 Chenango street in the city of Binghamton, N. Y., and was supported by him as a member of his family, and attending to the household duties of her home; and, she was not engaged in any trade or business and had no separate estate, and that on said June 7, 1889, her said husband died.”
    He also found that the plaintiff “ entered upon the discharge of her duties under said contract May 13, 1889, and she was paid by said defendant for one month’s services June 14,1889, and she continued working for said defendant under said contract until June 21, 1889, when the said defendant, without any just and sufficient cause, discharged the said plaintiff from any other or further services under said contract.”
    He also found, “ That the said plaintiff was ready and willing to render the services for the defendant, as she had agreed to do under said contract, during the term for which she was employed, and was ready and willing to work during said term, but did not find the same kind of employment, but did other work during said term for which she received the sum of eight dollars.”
    As a conclusion of law the referee found, “ That the contract mentioned in the finding of fact, herein marked second, is a good and valid contract, and was binding upon the defendant, and that upon the discharge of the plaintiff from services under said contract, the said defendant became liable to the plaintiff for damages.”
    Also, “ That upon the evidence given upon the trial of this action, the plaintiff is entitled to recover from the defendant.”
    Upon the request of the defendant the referee found, “ That the said letters written by the defendant contained all the stipulations and agreement made by defendant in regard to hiring the plaintiff, except on May 9, 1889, defendant told plaintiff to commence work May 13, 1889.”

      The referee also found, “ That said letters were written by defendant at the dictation and request of the husband, the said Charles Sehlager. ” He also found, “ That plaintiff had no knowledge that the letters were dictated.”
    He declined to find, “ That the defendant wrote the said letters and proposed hiring the plaintiff as the agent of her husband.”
    ■ He found, “ That the said Charles Sehlager replied to the proposition of the plaintiff and stated when she should commence her services; that he enclosed his mileage-book on the Delaware and Hudson Railroad; that she could use the mileage-book to pay her fare from Albany to Binghamton.”
    He also found, “ That the plaintiff came to Binghamton paying her fare from Albany to Binghamton with said mileage-book.”
    He also found, “ That the plaintiff entered into said agreement, and undertook said services, knowing that the defendant was a manned woman residing with her husband, and that the services were to be-performed in the family of said husband.”
    Also, “That the plaintiff commenced work on the 13th day of May, and labored in the family of the said Charles Sehlager, caring for his children as nurse, and performing the duties of a domestic,, until June 21st following.”
    He refused to find, “ That the plaintiff has not shown an intention on the part of the defendant to become bound personally to pay the wages, or to charge herself therefor.
    He also refused to find, “ That the alleged contract was for services to be performed for the husband, Charles Sehlager.”
    He also refused to find, “ That the services actually rendered were for the said Charles Sehlager.”
    He also refused to find that “ the alleged agreement was not the defendant’s contract.”
    He also refused to find, “ The alleged obligation was not created by her, in or about to carry on a separate trade or business, or for the benefit of a separate estate.”
    He also refused to find as a conclusion of law, “ That upon the-evidence in this case, the plaintiff cannot recover in this action.”
    He also refused to find, “ That the evidence does not show or establish a liability on the part of the defendant to the plaintiff within the limits of responsibility on the part of married women.”'

      He also refused to find, “ Tliat any contract of the defendant was made as the agent of her husband, who is alone liable thereon.”
    He also refused to find, “ That the defendant, being the agent of her husband, is not liable upon the alleged contract.”
    He also refused to find, “ That the alleged contract having been for services in the family of the husband and for his benefit, the plaintiff was bound to assume that the defendant was acting as the wife or agent of her husband, and the defendant cannot be held liable thereon.”
    He also refused to find, “ That, as the wife of Charles Schlager, the defendant was authorized to hire necessary servants for the family, and as she was apparently pursuing the authority given her, she is not liable upon the contract.”
    He also refused to find, “ That the natural and legal presumption is that the agreement of the defendant was made in properly and naturally conducting the affairs of the family.”
    He also refused to find, “ That the marital duties of the husband required him to pay for the services of the plaintiff, and any agreement on the part of the defendant to pay the same is void.”
    He also refused to find, “ That the alleged agreement having been for services to be rendered the husband, Charles Schlager, any agreement on the part of the defendant to pay the plaintiff therefor was void for want of consideration.”
    Proper exceptions were taken to the findings as made and to the refusals to find as requested.

      Albert H. Sewell, for the appellant.

      T. B. db L. M. Merchant, for the respondent.
   Hardin, P. J.:

Defendant’s first letter to the plaintiff was dated March 13,1889, and her second letter addressed to the plaintiff was dated April thirtieth; the letters stated somewhat minutely the needs and wants of the defendant in respect to a servant girl and the duties that would be imposed upon the plaintiff if she entered into the service proposed. It appears in the testimony of the plaintiff, as a witness, that the husband of the defendant having been made aware of the negotiations'.had by his wife with the plaintiff, communicated with the plaintiff. Plaintiff testifies, viz.: “ He, Mr. Schlager, sent me his mileage-book in May, about the seventh, a few days before I started; he sent it with a letter. I have not the letter. Last saw the letter in May, 1889, at Catskill; have not seen it since. Do not know where it is. * * * He said I should’t be in a hurry about ■coming; that they wan’t quite settled yet. He said book was enclosed for my fare from Albany to Binghamton, which I could use. I think of nothing else. I did use it from Albany to Binghamton. That was the first said about fare by either party. I used it and came on May nine. At that time Mr. Schlager was living at No. 87 Chenango street with the defendant, his wife. * * * I understood he had occupied the premises for some months before I came. He said in the letter they were cleaning house He did not say when they would be ready for me or when they would be through cleaning house. Mr. Schlager had one child, two years old. A portion of my duties was to take care of that child and the other duties were in his family about the house.”

We think it was incumbent upon the plaintiff to show that her employment was by the defendant, and not by the husband. We think the evidence indicates that the defendant was acting as the agent of her husband in writing the letters to the plaintiff, and her services were engaged for and in behalf of the husband. From the testimony of the plaintiff, in respect to the letter received from the husband, together with the other facts and circumstances disclosed in the evidence, it is quite apparent that the plaintiff understood that her services were requested in the household of the husband and for his benefit; the services to be rendered wei’e for the benefit of the husband, therefore.

In Smith v. Allen (1 Lansing, 105), Johnson, J., says: “ Goods purchased by the wife upon credit for family use are the goods of the husband, and the husband, and not the wife, is liable to pay for them, unless there is some special agreement between the parties, by which they are sold to the wife for her exclusive use and upon the credit of her separate property, and not upon the credit of the husband.”

In Kegney v. Ovens (18 N. Y. St. Rep., 482), it was held, viz.: If the party dealing with the wife knows she is a married woman living with her husband, and the order is of a character to indicate that it is for the benefit of her husband’s family, he is bound to presume that she is acting for her husband and cannot hold her personally liable, unless she expressly agrees to become so.”

In Dickinson v. Ensign (31 N. Y. St. Rep., 651), it appeared that the articles were charged to the defendant on the plaintiff’s books, and that the plaintiff, from time to time, rendered statements of the account to the defendant, who examined, corrected them and made payments thereon, and “ the referee found that defendant directed that the articles should be charged to her.” The case differs essentially from the one before us, and does not aid the contention of the plaintiff.

In Cutter v. Morris (26 N. Y. St. Rep., 508; S. C., 116 N. Y., 310), it appeared the services were rendered by an architect for the benefit of the separate estate of a married woman, and she knew at the time, and was consulted at length about them; and upon a review of all the evidence given in the case, the Court of Appeals, Second Division, reached the conclusion that upon the whole evidence, as the services in question were rendered for the benefit of the separate estate of the defendant, and she knew at the time ” a question of fact was presented which “ should have been submitted to the jury.” We see nothing in that case which aids the plaintiff.

In Von Mallen v. Fuhrmann (56 Hun, 402), the referee found that the groceries “ were sold by the plaintiff and delivered to the said testatrix at her request, and for her benefit, and on her sole responsibility, and that during such time she was the owner of real property in her own right.” The evidence before us in this case would not support- a similar finding of fact, and the findings made by the referee do not come up to the finding in the case from which the quotation is made.

• Although the enabling act of 1884, chapter 381, Laws of 1884, authorizes a married woman to enter into a contract, as explained in Dickerson v. Rogers (114 N. Y., 408), and although, since the passage of that act, she is bound by her contracts, we think the act does not give the plaintiff the right of recovery in this case; the important and pivotal question is whether the employment was the employment of the husband or of this defendant. (Tiemeyer v. Turnquist, 85 N. Y., 516.) Upon the whole evidence, we think the contract of employment claimed in the case was with the husband, and that the evidence fails to disclose an intention on the part of the defendant, the wife, to become personally liable upon the contract for the servant’s services to be performed in the family of the husband. (Whitford v. Laidler, 94 N. Y., 145; Strong v. Moul 22 N. Y. St. Rep., 762.) We are of the opinion that the referee fell into an error in holding that the wife, and not the husband, was liable upon the alleged contract made for the services of the plaintiff. We are, therefore, of the opinion that the judgment should be reversed upon the law and facts.

Martin and Merwin, JJ., concurred.

Judgment reversed on the law and facts, and a new trial ordered, with costs to abide the event.


author: Hardin, P. J.

text:
    J. HENRY HALLOCK, Respondent, v. ETTA D. BACON and Another, Executors of EMMA B. SHARRER, Deceased, Appellants.

      Executors and administrators — a reference under the Revised Statutes — what costeare recoverable.

    A reference, under 3 Revised Statutes (m. p. 88, 89), of a claim against the estate of a deceased person is a special proceeding.
    The only costs recoverable therein as a matter of right are referee’s fees and necessary disbursements.
    Section 3340 of the Code relative to costs in special proceedings, where the same are not specially regulated in the Code, does not apply to a reference under the statute.

      Semble, that where further costs are desired there must, under the Code of Civil Procedure (§ 1836), be proof that the payment of the claim “was unreasonably resisted - or neglected, or that the defendant refused to refer the claim as prescribed by law.”
    Appeal by the defendants, Etta D. Bacon and Alice A. Salisbury, as executrices of Emma B. Sharrer, deceased, from an order of the Supreme Court, entered in the office of the clerk of the county of Onondaga on the 17th day of October, 1891, allowing in this proceeding the same costs allowed for similar services in an action, to be paid out of the estate of Emma B. Sharrer.

      Plaintiff presented a claim against the estate of Emma B. Sharrer, deceased, which was rejected and referred to a referee, who heard the matter and decided upon the claim pursuant to sections 36 and 37 of the Revised Statutes (3 R. S. [7th ed.], 2299,2300). The referee reported $114 damages in favor of the plaintiff. A motion was thereafter made on the report for an order confirming said report and for judgment thereon, which motion was granted; and the motion made by the executors for an order setting aside said report was denied. No certificate of the referee or affidavit was filed “ showing that the aforesaid claim- was unreasonably resisted or neglected, and that no such certificate or affidavit was produced before the clerk ” on the retaxation of costs. The plaintiff presented a bill of costs, with notice of retaxation, and upon the day fixed for the retaxation the defendants appeared and objected to all costs except the referee’s fees and disbursements, and stated “ that this was a special proceeding, and the only costs which the clerk was authorized to tax were the necessary disbui’sements.” The clerk overruled the objections and retaxed the costs, allowing to the plaintiff, besides the referee’s fees and disbursements, the following items, viz : “ Before notice of trial, $15.00; after notice and before trial, $15 ; trial fee, $30 ; trial occupying more than two days, $10.” Thereupon the defendants made a motion “ that an order be granted setting aside and vacating the taxation and relaxation of costs herein made by the Onondaga county clerk * * * and for a new taxation.” The motion was heard October 17, 1891, and denied. Defendants appeal from the order.

      H. E. Miller, for the appellants.

      J. William Wilson, for the respondent.
   Hardin, P. J.

References had pursuant to sections 36 and 37 of the Revised. Statutes (3 R. S. [7th ed.], 2299, 2300) are special proceedings.

In Coe v. Coe (37 Barb., 235), in speaking of a similar case, Allen, J., said : It is a statutory proceeding, and the only authority for a judgment is the report of the referee, which is subject to examination by the court.”

In. Young v. Cuddy (23 Hun, 249), Gilbert, J., said.: “ Eeferences of disputed claims against executors, pursuant to 2 Revised Statutes (88, 89, §§ 36, 37), are c special proceedings.’ (Code Civ. Pro., §§ 3333, 3334.) The provisions of the Eevised Statutes regulating such proceedings have not been repealed by the Code of Civil Procedure; ” and in Roe v. Boyle (81 N. Y., 305) it was said: “ And this has been generally, if not uniformly, regarded as a special proceeding by judges who have had occasion to. consider the point.” (Citing cases.)

In Mowry v. Peet (88 N. Y., 456) it was said: “In trying and adjudicating upon these matters, which are within the scope of the reference, the statute (2 R. S., 88, § 36) confers upon the referee and the court the same powers as if the reference had been made in an action. But the proceeding is not an action.”

In Paddock v. Kirkham (102 N. Y., 599), Roe v. Boyle and Mowry v. Peet were referred to approvingly.

In Eldred v. Eames (48 Hun, 256), decided by this court in 1888, it was said: “ Where a reference is had under the statute the claim and stipulation stand in the place and stead of and for the pleadings. Such a reference is a special proceeding. (Bucklin v. Chapin, 1 Lans., 450; Hatch v. Stewart, 42 Hun, 164.) ” Although that case was reversed by the Court of Appeals (115 N. Y., 401) it was upon another point, to wit, * * * the referee has no power of amendment and may not vary the matter referred.

Since the adoption of the Code of Civil • Procedure several cases have arisen which recognize the right of the plaintiff to recover referee’s fees and disbursements as a matter of course.

In Krill v. Brownell (40 Hun, 72, decided March, 1886, fifth department), Smith, P. J., states the legislation upon the subject quite satisfactorily; and the court in that case reaches the conclusion that the prevailing party “ is entitled to recover the fees of referees and witnesses, and his other necessary disbursements, as a matter of right.” His opinion was referred to in Larkins v. Maxon (103 N. Y., 681), as well as other cases to the same effect, and the court said : “We think these last cited cases established the true construction of the subdivision referred to, and that it was intended, and did preserve the right to disbursements given by the former Code upon the reference of a claim against a decedent.”

In June, 1886, tlie General Term, fifth department, decided Denise v. Denise (41 Hun, 9), and ordered judgment for the plaintiff “ to recover referee’s fees and disbursements.” (Page 13.)

The Court of Appeals affirmed the order (110 N. Y., 562), and near the close of the opinion it was observed : “ The present case is that of a special proceeding under the statute, where the determination of the matter was referred by the consent of both parties, and is not controlled by section 1836.”

In October, 1886, the fifth department decided Hatch v. Stewart (42 Hun, 164), which was a case where a reference had been had under the statute and the report had been confirmed, and the court observes that “ the recovery of disbursements as directed by the judgment must stand. The plaintiff was entitled to them as matter of right, because the provisions of section 317 of the old Code, to that effect, were not repealed by Laws of 1887. (Chap. 417.) And although the entire provisions of the old Code are embraced in the repealing clause of Laws of 1880 (chap. 245, § 1, sub. 4 and § 2), the then existing right of the prevailing party to recover the fees of referees and witnesses, and other necessary disbursements in a proceeding of this character, is preserved by section 3, subdivision 8 of the same act. (Hall v. Edmunds, 67 How., 202; Sutton v. Newton, 2 id. [N. S.], 56; S. C., 15 Abb. N. C., 452; 7 N. Y. C. P., 334; Overheiser v. Morehouse, 2 How. [N. S.], 257; S. C., 16 Abb. N. C., 208; 8 N. Y. C. P., 11.) ”

In the cases in hand no affidavits or certificates of the referee were used at the Special Term to obtain an adjudication allowing the plaintiff costs against the executors. (Rumsey’s Pr., 484.)

In Pursell v. Fry (19 Hun, 599), it was held that without such proof an allowance was improper, and that case is an authority supporting the plaintiff’s claim for referee’s fees and disbursements, and is an authority adverse to the other costs mentioned in his bill. The case was decided in this department in 1880.

In June, 1883, this department, in deciding Fredenburgh v. Biddlecome (17 N. Y. Weekly Dig., 25), which was a case where a reference had been had under the statute : Held, “ on the reference of a disputed claim the executors are not chargeable with costs in the absence of proof that they unreasonably resisted or neglected the claim.” In the course of the opinion delivered by Hardin, J., it was said : That section. 3240 of the Code is not applicable, as the costs are specially regulated by the sections (1835,1836,3246) referred to.” However, it is now insisted, in behalf of the respondent) that by section 3240 of the Code of Civil Procedure the court may allow “ further costs at the rates allowed for similar services in an action.”

In Hopkins v. Lott (111 N. Y., 577), a case was before the court where a reference had been had under the statute and a recovery of damages in the sum of six cents, and the defendant sought to charge the plaintiff with costs, and in the course of the opinion delivered in that case, Andrews, J., says : “ The plaintiff was properly denied costs, because the payment of the claim was not unreasonably resisted, and it was referred by the agreement of both parties under the statute. The plaintiff’s cause of action was maintained by the judgment entered on the report of the referee, but his damages for the eviction, as determined, were nominal merely, and judgment was awarded in his favor for six cents only; but the right of the defendant to costs does not follow, because they were not awarded to the plaintiff under the special provisions of sections 1835 and 1836, * * * nor was the allowance of costs to the defendant discretionary under section 324Q, of the Code. The costs are regulated by the Revised Statutes and the Code as in actions against executors and administrators.”

In Hendricks v. Isaacs (52 Hun, 100), it seems to have been held that “all the court can, in the first instance, adjudge, by way of costs, are the referee’s fees and other disbursements necessarily incurred ” in case of a reference under the statute.

In Blankman v. McQueen (58 Hun, 172), it was held that the proceedings in the case of a disputed claim against an estate are controlled by the Revised Statutes, as regards the allowance of costs, and not by the Code' of Civil Procedure, and that the costs are represented by the disbursements and do not include allowance provided in the fee bill in actions. The opinion delivered in that case refers to Hauxhurst v. Ritch (119 N. Y., 621). The court struck out the “ allowance of costs as taxable under the Code.”

In the opinion of the learned judge delivered at Special Term, he says: “ The court has power to award costs to the successful party, under section 3240 of the Code, and that the costs so awarded are those given in an action for similar services.” That section provided that “ costs in a special proceeding instituted in a court of record * * * where the costs thereof are not specially regulated in this act, may be awarded to any party in the discretion of the court at the rates allowed for similar services in an action brought in the same court.” * * * The section is found in chapter 21, title 1; in the same title is found section 3250 of the Code of Civil Procedure, which provides as follows : “ This title does not affect any provision contained elsewhere in this act, or in any other statute remaining unrepealed after this chapter takes effect; whereby the award of costs is specially regulated in a particular case otherwise than as prescribed in this title.” ¥e are of the opinion that section 3240 is not applicable to the case in hand.

"We think Hauxhurst v. Ritch (119 N. Y., 621), does not support the contention of the respondent. At the close of the opinion in that case it was said : “No other objection is argued, except to the allowance of costs which were in the discretion of the court, and not subject to our view. (Denise v. Denise, 110 N. Y., 568.) ” By a reference to Denise v. Denise (110 N. Y.), we find it said, at page 569: “ The present case is that of a special proceeding under the statute where the determination of the matter was referred by the consent of both parties, and is not controlled by section 1836.” And the conclusion reached was that the judgment appealed from should be affirmed, with costs. The judgment thus affirmed is indicated in 41 Hun, at page 13, where it is said: “ Motion to confirm referee’s report and for judgment granted; that the plaintiff recover the referee’s fees and disbursements paid by her, together with the costs of this appeal, and that the same be paid out of the estate of the deceased.” It must be assumed, therefore, that the expressions found in Hauxhurst v. Ritch (supra), sustains the right to recover the referee’s fees and disbursements only in the proceeding before the referee, and the costs of the appeal.

The following conclusions are reached :

(1.) The reference had in this case was a special proceeding.

(2.) The plaintiff was entitled to recover the referee’s fees and disbursements.

(3.) The plaintiff was not entitled to recover the taxable costs as in an action, to wit: Before notice of trial, fifteen dollars; after notice and before trial, fifteen dollars; trial fee, thirty dollars; trial occupying more than two days, ten dollars.

(4.) The order appealed from should be reversed, with ten dollars costs and disbursements.

(5.) The judgment should be modified by striking therefrom all costs entered therein exclusive of the referee’s fees and disbursements.

Martin and Merwin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements. Judgment modified as stated in the opinion. Order to be settled before Hardin, P. J.