text:
    Pauline M. White, as Administratrix, etc., Appellant, v. Mary Davis, Administratrix, etc., Respondent.
   Opinion by

Andrews, J.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Yan Brunt, P. J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Henry J. McGonegal, Appellant.
   Opinion by

Yan Brunt, P. J.

Conviction affirmed.


text:
    Ellen Cavanagh, Executrix, etc., Respondent, v. The New York Elevated Railway Company and others, Appellants.
   Opinion by

Yan Brunt, P. J.

Judgment affirmed, with costs.


author: Barrett, J., and Yan Brunt, P. J.

text:
    Walter J. Kane and others, Respondents, v. The Manhattan Railway Company and others, Appellants.
   Opinions by

Barrett, J., and Yan Brunt, P. J.

Judgment affirmed, with costs.


author: Barrett, J.

text:
    The Continental Insurance Company, Plaintiff, v. The Greenwich Insurance Company, Defendant.
   Opinion by

Barrett, J.

Exceptions overruled, with costs, and judgment entered accordingly.


author: Barrett. J.

text:
    The Continental Insurance Company, Plaintiff, v. The Phœnix Insurance Company, Defendant.
   Opinion by

Barrett. J.

Exceptions overruled, with costs, and judgment entered accordingly.


author: Daniels, J.

text:
    In the Matter of the Probate of a Paper Propounded as the Last Will and Testament of Samuel B Peck, Deceased.
   Opinion by

Daniels, J.

Decree affirmed, with costs.


author: Ingraham, J.

text:
    In the Matter of the Petition of Mary Elizabeth Fields and others, Respondents, v. Leo C. Dessar, Purchaser, Appellant.
   Opinions by

Ingraham, J.

Judgment affirmed, with ten dollars costs and disbursements.

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


text:
    Louis Eickwort, Appellant and Respondent, v. James G. Powers, Appellant and Respondent.
   Opinion by

Daniels, J.

Judgment affirmed, without costs to either party.


text:
    Washington Glass Company, Appellant, v. Edmund B. Benjamin and others, Respondents.
   Opinion by

Daniels, J.

Orders affirmed, with ten dollars costs and disbursements.


author: Ingraham and Daniels, JJ.

text:
    James Abbott, Respondent, v. The Petersburg Granite Quarrying Company, Appellant.
   Opinions by

Ingraham and Daniels, JJ.

Judgment modified as directed in opinion, and as modified affirmed, without costs of this appeal.


text:
    Thomas J. Lewis, Respondent, v. Samuel Wilson, Appellant.
   Opinion by

Daniels, J.

Order affirmed, with ten dollars costs and disbursements;


author: Daniels, J.;

text:
    Magnolia Anti-Friction Metal Company, Respondent, v. Samuel Singley, Appellant.
   Opinion by

Daniels, J.;

Judgment affirmed, with costs.

dissenting opinion by Ingraham, J.


text:
    In the Matter of the Application of George W. McLean, Receiver, etc., v. Walberger Horn and others.
   Opinion by

Daniels, J.

Order affirmed, with ten dollars costs and disbursements.


text:
    Lewis Sanders v. Agnes Gordon Soutter and others.
   Opinion by

Ingraham, J.

Judgment affirmed, without costs.


author: Yan Brunt, P. d.

text:
    John H. Haar, Appellant, v. The Consolidated Carson River Dredging Company and others, Respondents.
   Opinion by

Yan Brunt, P. d.

Order affirmed, with ten dollars costs and disbursements.


author: Yan Brunt, P. J.,

text:
    George F. Vingut, Appellant, v. George T. Vingut and others, Appellants. Benjamin P. Fairchild, Purchaser, Respondent.
   Opinions by

Yan Brunt, P. J.,

Order modified as directed by opinion, and as so modified affirmed, without cost6.

and Barrett, J


text:
    Agnes Mellwitz, Respondent, v. The Manhattan Railway Company, Appellant.
   Opinion by

Barrett, J.

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


text:
    In the Matter of the Judicial Settlement of the Account of John H. Foote, Executor, etc., of Henry M. Leavitt, Deceased.
   Opinion by

Barrett, J.

Decree affirmed, with costs, to be paid by John Howard Foote personally.


text:
    Eliza A. Simmons, Executrix, etc., Respondent, v. Helena Craig and others, Appellants.
   Opinion by

Barrett, J.

Judgments, interlocutory and final, and the order continuing the action, affirmed, with costs.


author: Yan Brunt. P. J.

text:
    Francis B. Carpenter, Appellant, v. Sheridan Shook and others, Respondents.
   Opinion by

Yan Brunt. P. J.

Judgment affirmed, with costs.


author: Daniels and Barrett, JJ.

text:
    John Evers, Jr. by his Guardian, Respondent, v. Jonas Weil and others, Appellants.
   Opinions by

Daniels and Barrett, JJ.

Judgment and order, to the extent and on the conditions stated in the opinion, affirmed,


author: Daniels and Barrett. JJ.

text:
    William S. Lawson and others, Respondents, v. Curtis N. Douglass. Appellant.
   Opinions by

Daniels and Barrett. JJ.

Judgment affirmed.


text:
    Jessie Watson, Respondent, v. Parke Godwin. Appellant
   Opinion by

Barrett. J.

—Judgment ana order reversed and new trial ordered, with costs to the appellant to abide the event.


text:
    The People of the State of New York, Plaintiff, v. James Barker, Defendant.
   Opinion by

Yan Brunt, P. J.

Judgment reversed and new trial ordered.


author: by Barrett, J.

text:
    Bernard Lowenstein, Respondent, v. Lena Salinger, Appellant.
   Opinion

by Barrett, J.

Order reversed, with costs and the usual disbursements, and the attachment vacated.


text:
    Julius F. Chesebrough, Respondent, v. Daniel D. Conover, Appellant.
   The judgment from which this appeal is taken having been vacated, on motion it is not necessary to decide the appeal, there being now no judgment in evidence. Appeal dismissed.


author: Van Brant, P.J.

text:
    John S. Ellis, Trustee, etc., Respondent, v. The Lyceum and others, Appellants.
   Opinion hy

Van Brant, P.J.

Judgment affirmed, with costs.


text:
    Terence McGuire, Appellant, v. The Broadway and Seventh Avenue Railroad Company, Respondent.
   Opinion by

Daniels, J.

Judgment and order affirmed.


text:
    Cianciminos’ Towing and Transportation Company, Respondent, v. Peter Ciancimino, Appellant.
   Opinion by

Daniels, J.

Order modified as diiected in opinion, and as modified affirmed, without costs of the appeal.


text:
    Ambrose J. Agate v. Caroline E. House, etc.
   Order resettled so far only as to declare that the conveyance of the property to the plaintiff shall be subject to defendant’s right to reimbursement of any sum owing to her, and for the reimbursement of which the premises were a security in her hands.


text:
    William R. Morgan, Jr., and others, Respondents, v. John Bowes and others, Appellants.
   Opinion by

Barrett, J.

Judgment modified as directed in opinion, and as modified affirmed, without costs of this appeal.


author: Van Brunt, P. J.,

text:
    Herman Passavant and others, Respondents, v. Herman Cantor and others, Appellants.
   Opinions by

Van Brunt, P. J.,

Judgment affirmed, with costs.

and Barrett, J.


author: Van Brunt, P. J.

text:
    James L. Hart, Respondent, v. William T. Washburn, Executor, etc., Appellant.
   Opinion by

Van Brunt, P. J.

Order reversed as mentioned in opinion, with ten dollars costs of this appeal and disbursements to abide the final event of the action.


text:
    James Moore, Respondent, v. James U. Robertson and others, Appellants.
   Opinion by

Daniels, J.

—Judgment affirmed, with costs.


author: Daniels and Lambert, JJ.

text:
    The People of the State of New York ex rel. John P. Leo, Appellant, v. John T. Camp, Colonel, etc., Respondent.
   Opinions by

Daniels and Lambert, JJ.

Order affirmed, with ten dollars costs and disbursements


text:
    The People of the State of New York, Respondent, v. Henry Cassin, Appellant.
   Opinions by

Daniels and Lambert, JJ.

Judgment affirmed.


author: Lambert, J.

text:
    Washington H. Taylor, Appellant, v. Catherine Taylor and others, Respondents.
   Opinion by

Lambert, J.

Judgment affirmed, with costs.

The following causes assigned to Lambert, J., to write, and he having failed to do so, rearguments are ordered:

Shea v. Old Dominion S. D. Co.

Beran v. Tradesman’s National Bank.

Blake v. Barnes.

Caffe v. Ottman.

Wall v. Jones.


author: Lewis, J.:

text:
    DELOS I. JOHNSON, Administrator of JOHN JOHNSON, Deceased, Appellant, v. GEORGE P. JOHNSON and Another, Respondents.

      Action by an administrator to set aside a tramfer made by his intestate — ancillary letters — decision in foreign State — not evidence as against the administrator, grantees or heirs-at-law of the intestate.

    In an action brought, under chapter 314 of the Laws of 1858, by an administrator to set aside as fraudulent, as against creditors, an alleged voluntary deed executed by his intestate to two of his children, it appeared that the intestate, a few months before his death, moved to Michigan, where, shortly before lie died, he executed the deed in question; that the plaintiff became his administrator there, and that ancillary letters were issued to him in the State of New York; that, under the laws of Michigan, commissioners were appointed to determine the claims against the estate; that they did so and reported that the intestate was indebted, at the time of his death, in certain amounts-stated; that their report became final, and, under the Michigan statute, had the effect of a judgment, and that the defendants in this action were parties to the proceeding in Michigan.

      Held, that the report was not evidence in this State of the indebtedness of the intestate.
    That an administrator, appointed in Michigan, to whom ancillary letters were issued in this State, was, as ancillary administrator, a stranger to the Michigan report, as were also the grantees of the real estate.
    That such an administrator had power only over assets in the State where he was appointed.

      That a judgment, rendered in the courts of this State against an administrator appointed here, would not, in such an action to set aside a conveyance as fraudulent, be evidence against the grantees or heirs-al-law of the intestate.
    Appeal by tlie plaintiff Delos I. Jolmson, as administrator of John Jolmson, deceased, from a judgment of the Supreme Court, entered, upon the report- of a referee, in the office of the clerk of the county of Erie on the 28th day of April, 1890, dismissing the complaint, with costs.
    This appeal was before this court at a prior term, and the judgment appealed from was affirmed. A realignment was ordered upon the application of the appellant.

      George L. Kingston, for the appellant.

      WilUam JT. Clc/'h, for the respondents.
   Lewis, J.:

This action was brought in the Supreme Court, Erie county, against the defendants, under chapter 314 of the Laws of 1858, by the plaintiff, as administrator of the estate of John Johnson, deceased, for himself as administrator, and on behalf of the creditors of Johnson, to set aside a deed of real estate in Erie county, given by Jolmson, deceased, to the defendants in consideration of love and affection only, and rendering himself thereby insolvent. The case was tried before a referee and judgment was rendered dismissing the plaintiff’s complaint, and from that judgment this appeal was taken.

The deceased, John Jolmson, was formerly á resident of Erie county, in this State. He owned the premises described in the complaint, situated in Erie county; he also owned a small amount of personal property in the county of Erie, worth less than two hundred dollars. A few months prior to his death he removed to the county of Genesee, in the State of Michigan, where his four sons and one daughter then lived. He died there intestate on the 1st day of October, 1887, leaving him surviving his five • children, two of whom are the defendants in this action. A day or two- before his death he conveyed to the defendants the farm in Erie county of the value of about two thousand dollars. He had at the time of his death only some trifling articles of personal property in the State of Michigan of the value of twenty-two dollars.

On the 7th of November, 1887, letters of administration were duly issued and granted to the plaintiff by the Probate Court of Genesee county, in the State of Michigan, appointing him administrator of the goods, chattels, etc., of said deceased within the State of Michigan. Thereafter, and on January 31, 1888, ancillary letters of administration of the estate of Johnson were granted to plaintiff by the surrogate of Erie county.

On the 7th of November, 1887, the probate judge of Genesee county, in the State of Michigan, nominated and appointed three commissioners, with full power and authority to receive, examine and adjust all claims and demands of all persons against the estate of Johnson. In due time the defendants, Devillo M. Johnsonand George P. Johnson, with Ilomer L. Johnson and Evaline J. Pierce, respectively, presented claims against the estate of their father to said commissioners. The commissioners duly examined into the claims and determined that the deceased was indebted, at the time of his death, in the sum of $300 to the defendant Devillo M. Johnson; twenty-five dollars to the defendant George P. Johnson; $192 to Ilomer L. Johnson, and $125 to his daughter, Evaline J. Pierce; and they made and filed a report of their doings with the Probate Court as above stated.

No appeal was taken from the report, and their decision, under the Michigan statutes, became final. Thereafter, and on or about the 1st of November, 1888, this action was commenced by the plaintiff, and upon the trial thereof before the referee plaintiff offered in evidence an exemplified copy of the records of the said proceedings in the State of Michigan for the purpose of establishing that the deceased was indebted as stated in the commissioners’ report at the time of his decease.

No other evidence of indebtedness was given; the referee held that the record was not evidence of indebtedness of the deceased here, and that the plaintiff had failed to make a case, and dismissed the complaint.

The question presented by this appeal is, whether, as against these defendants, the record was evidence that the deceased was indebted as reported by the commissioners at the time he executed the conveyance.

The statutes of Michigan provide for the appointment of commissioners in such cases, and authorize them to receive and allow claims against estates; their decision, when filed in the office of the Probate Court, if not appealed from within six months, becomes final and forms the basis upon which the probate judge makes distribution of the assets of the estate.

The statute makes no provision for any confirmation of the commissioner’s report by the Probate Court. The commissioners act judicially in the allowance of claims, and, as between the parties to the controversy, and as to the payment of the claims out of the estate in the control of the Probate Court, the decision has the effect of a judgment in that State. It cannot be collaterally impeached by the parties thereto. (Shurbun v. Hooper, 40 Mich., 503.)

The proceeding in the State of Michigan was for the purpose of reaching and distributing the assets of the deceased in that State;; when that was accomplished it was no longer effectual for any purpose.

The judgment or decree was against the plaintiff in his representative capacity. Had it been a judgment rendered in this State against an administrator appointed here, it would not be evidence against the grantees in an action to set aside a conveyance as fraudulent, brought by such judgment-creditors. (Sharpe v. Freemany 45 N. Y., 802.)

The [Revised Statutes of New York give no competency to judgments against executors and administrators as evidence against heirs-at-law or grantees ; such judgments remain a debt to the same extent, as before they were recovered, to be established as if judgment had not been obtained.

The heir-at-law may still contest the validity and legality of the debt; such a judgment does not bind the real estate of the deceased. (Sharpe v. Freeman, supra.)

The record could not be used as evidence in behalf of the creditors, against the administrator in this State. The judgment was against, the plaintiff in his administrative capacity only; his representation of the estate was a qualified one; it did not extend beyond-the-assets of which the court in that State had jurisdiction. (Johnson v. Powers, 139 U. S., 156; Halsted v. Buster, 140 id., 273.) While the plaintiff represented the estate in Michigan, and also in New York, he was simply a representative in each State; he had no personal interest in the assets; and if in a proceeding against him in this State in his representative capacity, the record would not be. as we have seen, evidence against him, it could not be used in his behalf.

The administrator of the estate in New York is a stranger to the Michigan judgment, as are also the grantees of the realty here. In the case of Taylor v. Barron (35 N. H., 484), in a well considered opinion, Judge Bell holds and cites a number of authorities in our courts, as well as in the courts of England, to sustain his conelusion, that an administrator appointed in one State has no power ever the property of the intestate in another State; that he cannot be sued elsewhere on a judgment against him rendered in the State where he was appointed. That, upon the principles of the common law, a judgment rendered in one State, for or against an administrator there appointed, is res inter alios as to an administrator .appointed in another government and as to the assets under his ■control there.

There may be several representatives of the same deceased person— the administrator or executor, as to the personal estate, and the heirs .as to the real estate; but the administrator cannot bind the heirs by his acts, im, pais or in court, as to the indebtedness of the estate. An admission by the heir does not bind the administrator, nor the reverse, and a judgment in favor or against either “ is not evidence for or against the other.” The fact that the defendants were parties to the proceedings in Michigan does not make the, judgment .admissible evidence against them here. The administrator represented the estate, subject to the administrative laws of that State-lie also represented the creditors and legatees in respect to the ■estate in Michigan, but he is in no way bound by the determination there, in respect to the others, regarding the estate here.

It is true that the defendants presented their claims to the Michigan tribunal, and they were allowed; but that proceeding was for the purpose simply of distributing the assets in that State.

The administrator in his action here does not represent the ■defendants, for their interests are hostile to his action here. The decision in Johnson v. Powers (139 U. S., 156), is an authority upon the doctrine stated there, and applies to this case and warrants the holding that the judgment in Michigan is not admissible evidence here, although offered by the administrator himself, in such an action as this. It is not evidence against these grantees.

If, as we liave seen, the Michigan record was not evidence of indebtedness of the deceased, the plaintiff failed to show that at the time the conveyance was made the deceased owed debts; he, therefore, failed to make a case and his complaint was properly dismissed.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concurred.

Judgment appealed from affirmed on reargument, with costs.


text:
    AMY C. PALMER, Appellant, v. ELEAZER GREEN, Jr., and Others, Respondents.

      Action by one of the next of kin against the others, for a distributive share of the personal assets — not maintainable — an ad?ninistrator must be appointed.

    The complaint, in an action brought by one of the next of kin of an intestate, alleged that the defendants, also his next of kin, were in possession of personal property of the intestate which had not been distributed and demanded a money judgment for the plaintiff’s distributive share of the same.

      Held, that the action could not be maintained.
    That the proper course was to have an administrator appointed, who could maintain the action, and upon a recovery make a proper distribution of the property received by him.
    Appeal by the plaintiff Amy O. Palmer from a judgment of the Supreme Court, entered, after a trial before a referee, in the office of the clerk of the county of Chautauqua on the 15th day of May, 1891, dismissing the complaint upon the merits.

      Walter L. Sessions, for the appellant.

      F. W. Stevens, for the respondents.
   Lewis, J.:

The plaintiff’s complaint is quite voluminous, but its material allegations are very brief; they áre as follows:

Mrs. Sylvina Green died in the county of Chautauqua intestate in or about the month of March, 1888, leaving her surviving, as. her only children and lieirs-at-law, the plaintiff and the defendants, Eleazer Green, Jr., and Broughton W. Green; the defendant Mary Green being the wife of Eleazer, Jr. That, previous to and at the time of Sylvina’s death, the defendant Eleazer had in his possession a large amount of money and personal property belonging to liis mother Sylvina. That he had not made any distribution of the said estate in his hands, and that the plaintiff, as the next of kin of her mother, claims to be entitled to a distributive share of said estate, and that Eleazer had refused to pay it to plaintiff.

There are allegations in the complaint concerning the acts and conduct of the other defendants, but it is not necessary to state them, for if the plaintiff’s complaint fails to state a cause of action against Eleazer, it will not be claimed that it states a case against the other defendants.

The allegations of the complaint, that the defendant Eleazer was the executor of his father’s estate; that he accounted as such in the Surrogate’s Court; that his accounts were settled and that he was, by decree, discharged as such executor, are not material.

The defendants’ answers put in issue all the material allegations of the complaint. The plaintiff’s counsel, in opening his caseto the referee, stated that he claimed to recover a money judgment only against the defendants for the distributive share of plaintiff in the personal estate of her mother Sylvina Green, deceased, which he claimed was in the possession of the defendants, and further stated that such was the construction he claimed should be given to the plaintiff’s complaint.

The referee thereupon, upon motion of the counsel for the defendants, dismissed the plaintiff’s complaint, without costs. The defendants were not liable to account to the plaintiff as one of the next of kin of the mother.

The proper course for the plaintiff to have taken was to procure the appointment of an administrator of her mother’s estate. The administrator could then institute an action against the defendants to recover the entire property in their hands belonging to the estate, and then a proper distribution thereof would be made pursuant to the provisions of law in such cases. (Muir v. The Trustees, etc., 3 Barb. Ch., 477; Dayton on Surrogates, 211.)

Had plaintiff succeeded in her action and obtained her alleged share of the estate, she would be obliged to account to an administrator,' when one should be appointed, for the money received.

The judgment appealed from should be affirmed, with costs.

Dwight, P J., and Macomber, J., concurred.

Judgment appealed from affirmed, with costs.


text:
    ROBERT WYLLIE and Another, Appellants, v. JAMES PALMER, Jr., and Another, Respondents.

      Negligence — master and servant — the master is not liable where a servant is acting for the time being under the orders of another.

    A citizens’ committee contracted with a firm in another city, manufacturers of fire-works, for a display thereof. The firm sent printed instructions as to the montier in which the display should be fired, and also furnished an expert, to set up the fixed pieces, who was accompanied by a boy. While the expert and the chairman of the committee, who undertook the management of the affair, were fixing the frames of some set pieces the chairman told another member of the committee to take the boy and fire off some rockets.
    In firing a rocket the boy negligently injured a bystander. In an action brought to recover the damages resulting from such injury no evidence was given upon the trial to show that the bSy was sent by the firm for any other purpose than to assist the expert in arranging the fixed pieces.

      Held, that in firing the rocket the .boy was the servant of the committee, and not of the manufacturers, and that the latter were not responsible for the consequences of his negligent act.
    Appeal by the plain tiffs, Robert Wyllie and Jane, his wife, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Cayuga on the 17th day of February, 1891, dismissing the complaint, with costs, after a trial at the Cayuga Circuit before the court and a jury; also an appeal from an order denying a motion for a new trial.

      James R. Cox, for the appellants.

      Nathaniel Foote, for the respondents.
   Lewis, J.:

The citizens of Auburn, wishing to have an exhibition of fireworks on the 4th of July, 1888,' at a public meeting held in that city, appointed a committee, consisting of George LI. Battams, J. II. Pearson and others, to take charge of the preparations for and management of the exhibition.

Battams was chairman of the committee and entered into negotiations for the fire-works by correspondence with the defendants, who resided in the city of Rochester, and were manufacturers of fire-works, and on May 1st, 1888, wrote defendants for a catalogue of their goods.

Defendants answered under date of May twenty-second: “We inclose programme of exhibition. * * * We also inclose printed sheet giving full instructions for firing the display.”

Under date of June twelfth Mr. Battams writes: “We have decided to have a four-hundred-dollar display. Will you please inform me wliat you will give in that. * * * Please give us a fine display. We would like to have a man to take charge of the display.”

Defendants wrote under date of June fourteenth: “We understand that we have your positive order for display to cost four hundred dollars net, including expense of man, and we inclose you programme representing the goods we will send. * * * We will put our very best work in it, and know you will be pleased.”

The defendants shipped the fire-works to the committee by rail. The committee received them and paid the freight thereon from Itochester; and on the third day of July the defendants sent to Auburn their employee, Mr. Boyce, an expert in fire-works. They also sent with him a boy nineteen years old, by the name of Kemitz, who was in their employ. When the time for exhibiting the fireworks arrived, on the evening of July fourth, the committee, of which Mr. Battams was chairman, assumed control of the general management of the exhibition.

Battams and Boyce, at the place selected by Battams, arranged that part of the fire-works known as the fixed pieces. It was arranged that the rockets should be fired at a place away from the fixed pieces. Kemitz was with Battams and Boyce assisting in putting up the frames of the set pieces; and while they were thus engaged, and after they had fired some of the set pieces, Mr. Pearson, one of the committee, came to where they were and inquired of Mr. Bat-tams if he should not go to work and fire some of the rockets. Battams replied “Yes, take the young man Kemitz and you and he can fire off the rockets,” and they went to the rockets and commenced firing them. Pearson testified: “ I got the order from the chairman of the committee to go and fire them, and I suppose I was in charge of them.” He testified that he considered that he was in charge of it, and that Kemitz did as he directed. Kemitz ■while firing the rockets negligently and carelessly exploded a rocket ■which, was lying upon the ground and had not been prepared to be then exploded. The rocket flew along horizontally and struck the plaintiff who was standing in the street witnessing the exhibition, breaking and burning her arm. The sole question presented by this appeal is, was Kemitz, while firing the rockets, the servant of the committee or of the defendants.

There is no evidence in the case that the defendants sent Kemitz to take charge of or assist in the explosion of the rockets, or that they expected that he would be employed at that work; while Kemitz testified that he had theretofore had some experience in firing rockets, there was no evidence that the defendants considered him competent to do such work. lie was sent there for one purpose, and one only — to assist Noyce in arranging the fixed pieces. Battams, as chairman of. the committee, assumed to direct Kemitz to assist Pearson in firing the rockets. Nojme gave him no directions about firing them. While Noyce was sent as an expert to look after the mechanical part of the work, the committee assumed the general management and direction of the exhibition. The defendants had sold and shipped the fire-works as requested, and, pursuant to the request of the committee, had sent Mr. Noyce to take charge of the display.

When Battams assumed to direct the boy to fire the rockets, a kind of work, the defendants had not sent him to do,-it must be held, we think, that the boy was not, when thus ■ engaged, the servant of the defendants.

To hold the defendants liable for the acts of the boy when he was. under' the direction of the committee, and was doing- work which the defendants had not directed him to do, would be doing violence to the rule of' law which is well stated in Shearman & Nedfield on Negligence (§73 [2d ed.]; §-160 [4th ed.]), as follows: “Tie is to be deemed the master who has the supreme choice, control and direction of the servant, and whose will the servant represents; not merely in the ultimate result of his work, but1 in all its details.

Servants, who are employed and paid by one person, may nevertheless be, ad hoc,'the servants of another in a particular transaction, and that, too. where their general employer is interested in the work.

They may, without consulting their master, but in good faith,assist a person independently employed to do something which shall benefit their master, bnt with which neither he nor they have any right to interfere, and in which they act entirely under the control of such other persons.

In none of these cases is the nominal master responsible to-strangers for their acts or omissions. The trial court, we think, correctly held that the defendants were not responsible for the negligence of Kemitz in handling the rockets.

The judgment and order appealed from should bo affirmed.

Dwight, P. J., and Macomber, J., concurred.

Judgment and order apjtealed from affirmed.


text:
    BRONSON C. RUMSEY and Others, Appellants, v. GEORGE D. BRIGGS and Another, Respondents.

      Partnership — non:trading— scope of the business — when one partner can bind the other- — false statements of one partner — ratification must be with knowledge-— provision in pa/rtnership articles.

    George D. Briggs and Charles D. Marshall formed a partnership, under written articles, by the name of George D. Briggs & Co., to manufacture and sell lumber, bark and ties upon a particular tract of land. The business was carried on under the names of G. D. Briggs & Co and of G. D. Briggs. WhileMarshallwasinEurop'eBriggs began negotiations to purchase, individually, another tract of land, and induced one Rumsey, who knew the nature of the business of Briggs & Co., to-indorse his individual note in order to close up the purchase. Briggs falsely stated to Rumsey that Marshall was interested in the purchase and had authorized it.
    Upon Marshall’s return from Europe, Briggs offered to him, and he took, a half interest in the purchase, but without knowledge of the fact that the note had been given by Briggs.
    In an action brought by the firm of which Rumsey was a member, upon a note made in renewal of the note signed by Briggs and indorsed by Rumsey, it appeared that the note in suit was signed only by Briggs, and was indorsed by A. Rumsey & Co., as accommodation indorsers.

      Held, that the partnership of Briggs &■ Co. was a non-trading partnership.
    That the purchase of other lands was not within the scope of their business.
    That, in order that one partner in such a firm may bind another, express authority to do so must be shown or facts warranting a conclusion that such authority has been given, or that it is justified by the custom and usage of the particular branch of business in which the firm is engaged.

      The power of one partner to hind his copartner rests alone upon the usage of merchants, and does not amount to a rule of law in any other than commercial partnerships. That the false statement of Briggs did not bind his firm.
    That the fact that Marshall, upon his return from Europe, took an interest in the lands having no knowledge that Briggs had given the note, was not a ratification of that act.
    'That, although the partnership articles provided for the manufacture and sale of lumber " upon any other tract of land which shall be purchased by said copartners as hereinafter provided,” yet, as no further provision on that subject appeared in the articles, the clause must be held to mean only that, in the event of such a purchase, some agreement in regard to it would be entered into by the partners subsequently.
    Appeal by the plaintiffs, Bronson C. Rumsey, Lawrence I). Rumsey and Bronson Rumsey, from a judgment of the Supreme Court, entered in the office of the clerk of Erie county on the 2d day of March, 1891, dismissing the complaint upon the merits, with •costs to defendant Charles D. Marshall, after a trial before a referee.
    The appeal was heai’d upon the judgment, no case having been made.
    The action was brought to recover the amount due upon the following note, which had been indorsed by A. Rumsey & Co., the payee, for the maker’s accommodation:
    “ 5,000.00.. Buréalo, Oct. 22d, 1888.
    “ One month after date, I promise to pay to the order of A. Rumsey &'Oo., five thousand dollars, at Manufacturers ¿and Traders’ Bank, ■value received.
    “(Signed.) G. D. BRIGGS.”

      Ansley Wilcox, for the appellants.

      George Clinton, for the defendant Marshall, respondent.
   Lewis, J.:

The defendants, on the iRh day of April, 1882, formed a copartnership under written articles of copartnership. Thé part thereof material to this case is as follows:

“ The said parties agree to become copartners in business under and by the firm name of George D. Briggs & Co., for the purpose of ■manufacturing and selling lumber, bark, railroad ties, and do all necessary work and business relating thereto upon a certain tract •of land in McKean county, in the State of Pennsylvania, recently contracted to be purchased for the benefit of said firm by said George D. Briggs from the Keating Land Company, known as Fair Run Hollow, in Liberty Township; and also upon any other tract of land which shall be purchased hy said copartners as hereinafter provided. * * 'x~ The said George D. Briggs is to be business manager of said copartnership and * * * give his personal attention to said business, in all its details.”

Their business was carried on under the firm name of G. D. Briggs- & Co., and also under the name of G. D. Briggs. Their business continued down to November, 1888, when Briggs became insolvent, and made an assignment for the benefit of his creditors, and the copartnership was thereupon terminated.

Marshall was a practicing lawyer in Buffalo, and took no active part in the business.

The firm, for the prosecution of its business, became the owner of a saw-mill located near the lot of land.

The funds of the firm were deposited in the name of Briggs, and from time to time, as the demands of the business required it, he made notes which were discounted for the use and benefit of the firm. The bark and timber upon the tract of land upon which the company operated had been substantially removed prior to-January, 1888.

Immediately preceding the last-named date the copartners had a consultation relative to the purchase of other timber lands located in the vicinity of their saw-mill for the purpose of taking the timber and bark therefrom and manufacturing and selling the same; and among the tracts of land which they had in view was one consisting of about two thousand acres, known as the “Rock Run Tract;” but no understanding or conclusion was reached on the subject.

Afterwards, and while the defendant Marshall was absent in Europe, Briggs entered into negotiations with one J. W. Bouton,, looking to the purchase of the said Rock Run tract for himself. The negotiations resulted in Bouton puchasing the tract, which he afterwards conveyed to Briggs. Briggs did not have express authority or consent of his partner to purchase the land for the firm. Briggs’ agreement with Bouton was in his individual name for himself, and not in the name of the copartnership. But he made the purchase believing and expecting that Marshall, on being informed of the purchase, would consent and agree that the firm should take the title to the land upon the same terms on which Briggs jmrchased it.

About the month of January, 1888, Briggs applied to Bronson C. Rumsey, one of the plaintiffs, for assistance in connection with his business operations, and stated to him that he came to see him with regard to advances of money, and also in reference to making a large contract for bark with the firm of which Rumsey was a partner. He informed Rumsey that he had a refusal for quite a number of acres of hemlock land in Pennsylvania, which he proposed to buy for himself and Marshall as partners, that ho was authorized by Marshall to make the purchase, but that Marshall was in Europe and he could not get word to him in time, and wanted to close up the purchase, and if he made the purchase he would -make a large contract with Rumsey for bark; that he wanted some money to pay on the lands and to build tram-ways on the land if he purchased it so as to be ready to get out bark in the spring; - that he was buying the lands for Marshall and himself, and ho requested the plaintiffs to indorse his note or advance money to enable him to make the jrarehase. Rumsey wras aware of the fact that Marshall was a partner of Briggs in the lumber and bark business. -He also knew that for many years prior thereto Briggs had been engaged, individually, on his own account, in buying lands in Pennsylvania, getting off the timber therefrom, manufacturing it into lumber and selling it and marketing the' hemlock bark.

During that time Briggs had dealt upon his own account with the plaintiffs. Thereafter, on the 5th day of March, 1888, at the request of Briggs, the plaintiffs indorsed a-note of $5,000 made by Briggs in his individual name, and he procured it to be discounted by the Manufacturers and Traders’ Bank of Buffalo; it was several times renewed and rediscounted by said bank, and the last time it was renewed and rediscounted on the 22d day of October, 1888, and is the note sued in this action ; when it fell due, it was protested for .non-payment, the plaintiffs paid and took it up.

On the 7th day of March, 1888, Briggs addressed a letter to Marshall, in Paris, informing him of the purchase of the Rock Run tract, and the price to be paid therefor. Marshall received the letter but made no rejfiy thereto.

Briggs ¡laid to Bouton, on and towards the purchase of the land, the sum of about twenty-two thousand dollars, using the proceeds of the first-mentioned note indorsed by the plaintiffs for that purpose. The title to the land was thereupon conveyed by the owners thereof to Bouton, there remaining unpaid upon the contract between Bouton and Briggs the sum of seven or eight thousand dollars. While the title to the land was in Bouton, and the balance due on the contract remained unpaid as stated, and about the 1st of May, 1888, Marshall returned from Europe and Briggs informed him of the conditions of the contract of purchase, and that the land had not been paid for in full; that the title remained in Bouton, and he then requested Marshall to take a half interest in the property at the price which he had agreed to pay therefor, and proposed that they become the • owners of the land as partners and operate the same under their articles of copartnership, and Marshall consented so to do.

Eor the purpose of carrying into effect the agreement, and procuring the means of paying the balance of the' purchase-price, it was arranged between Briggs and Marshall that the sum of $20,000 should be borrowed of one Mrs. Myers,- to be secured by a mortgage on the lands; and that Bouton should convey the lands to Briggs, and that he should execute the mortgage-to Mrs. Myers.

The land was thereupon conveyed to Briggs, and he executed a mortgage to Mrs. Myers for. the $20,000 and conveyed an undivided one-half part. thereof to Marshall. -Out of the money borrowed of Mrs. Myers seven, or eight thousand dollars were used to pay the balance due on the Bouton contract. About nine thousand dollars were used, by the consent of both partners, to pay up and procure the discharge of a mortgage on the Fair Bun tract owned by- the defendants as copartners; the remainder of the $20,000 was credited to Briggs on the books of the company, and the company thereafter, and until the failure of Briggs, operated the said land as copartners by taking timber therefrom.

Otherwise than as above stated, Marshall never paid or advanced anything individually towards the payment for the land either to Bouton or to Briggs. Of the moneys paid by Briggs on the Bock Bun tract the sum of $ 10,000 was raised by him on a note for that amount, made by him in the name of the firm of G. D. Briggs & Co., dated March 16, 1888, and indorsed by Briggs personally, and discounted at the Manufacturers and Traders’ Bank of Buffalo. This note was several times renewed by the makers; it was renewed and rediscounted the last time on the 8th day of July, 1888; it was then indorsed by Marshall individually.

In making the loan of the credit of his firm, by the indorsements upon the notes, Bronson C. Rumsey relied upon the statements made by Briggs, and upon the joint credit and resjtonsibility of Briggs and Marshall as copartners. The ■ defendant Marshall had no knowledge of the giving of the original note, or of any of the renewals thereof, until some time after the failure of the defendant Briggs in November, 1888. He never consented to the giving of either of the notes. He never authorized Briggs to purchase the-lands known as the Rock Run tract, and did not know of such purchase until several weeks after its purchase by Briggs, and after the original note had been indorsed by the plaintiffs. He did not know how or in what way Briggs had paid Bouton for the land! The business of the defendants’ firm was simply and only removing the timber from the tract of land owned by them, taking the bark and timber therefrom and marketing the same. '

The learned referee found, as conclusions of law, from these facts t That the purchase of the Rock Run Tract ” was not within the actual or apparent scope of the business of the firm; neither was-the making of the notes within the actual or apparent scope of the firm’s business, and was not the act of the firm.

The plaintiffs knew the limits and nature of defendants’ business. When they consented to indorse the note they were informed that the proceeds therefrom were to be used in the purchase of land and in procuring apjiliances for removing and marketing the timber and bark thereon. They indorsed the note, relying upon the untruthful statement of Briggs that Marshall had agreed and consented to the firm purchasing the land.

To find the firm bound upon a contract thus made by a single member thereof, either express authority must be shown to make the contract, or that such is the custom and usage'of the particular branch of business in which the firm was engaged, or such facts as will warrant the conclusion that the single member had been invested by the firm with authority to make the note.

The plaintiffs failed to establish either of these requisites. It cannot be claimed that Briggs had any express authority to make the note, or that the facts tended to establish any such authority.

The business of the firm was confined to removing the bark and timber from a single lot owned by the firm and converting the same into money. Their business was not, in any sense, of a commercial nature. It was what is known as a non-trading or non-commercial firm. Briggs had no authority, without the express consent of Marshall, to purchase other lands for the firm to operate upon.

It was incumbent upon the plaintiffs to show either express authority in Briggs to bind the firm, or such facts as would warrant the conclusion that he had been invested by his copartner with the requisite authority. The power of one partner to bind his copartners rests alone upon the usage of merchants, and does not amount to a rule of law in any other than commercial partnerships. (Story on Partnership, § 126.)

The case of Judge v. Braswell, reported in 13 Kentucky Reports, page 67, is, in its facts, very similar to the case at bar. The defendants there were engaged as a firm in the business of mining upon lands owned by the firm; they were sued upon a contract made by a part of the members for the purchase of other lands to mine upon.

In the opinion of the court delivered by Judge Cofee, it was held that a copartnership engaged in the business of mining upon lands was a non-commercial partnership, and that such a copartnership is not bound by the contract of a single member in purchasing lands for the firm to operate upon. The articles of copartnership in that case provided for operating upon lands then owned by the firm, or upon any other lands which they might procure for that purpose, and the contract sued upon was one for the purchase of such other lands.

The same doctrine is laid down by the Supreme Court of Errors of Connecticut, in the case of Pease v. Cole, reported in the Albany Law Journal, volume 44, page 413. (See North Pennsylvania Coal Company’s Appeal, 45 Pa., 181; Holme's v. Burton, 9 Vt., 252.)

The untruthful statements of Briggs to Rumsey, as to his authority to bind Marshall, were not binding upon the firm. (Lindley on Partnership, 165-169; Ostrom v. Jacobs, 9 Metc., 454; Thorn v. Smith, 21 Wend., 365.)

If it cannot be held that Marshall affirmed the act of Briggs in giving the note, by his acts after he returned from Europe, it is quite clear, we think, that he cannot be held liable upon the note. As we have seen, the purchase of the “ Rock Run tract ” was, in fact, an individual transaction of Briggs, and was not within the actual or apparent scope of the defendants’ partnership. Marshall did not by any act of his knowingly ratify the act of Briggs in giving the note.

There cannot be gleaned from the referee’s findings any evidence that Marshall, at any time before Briggs’ failure, knew that such a note had been given, or that the proceeds of the note had been applied towards the payment of the Rock Run tract. Precisely ‘how the cost of the Rock Run tract was adjusted between the copartners does not appear. It was incumbent upon the plaintiffs, if they sought to hold Marshall liable upon the note, to show that Marshall in some way received benefit from the proceeds of the note.

The ratification of an act previously unauthorized, in order to be binding, must be made with a full knowledge of all the material facts, the acceptance without knowledge of the material facts, of the fruits of the unauthorized act of another does not and cannot amount to a ratification. The transaction between plaintiff and Briggs had nothing to do directly with the contract for the purchase of the land from Bouton, Briggs having no actual or ostensible authority to bind the partnership by such contract; and Marshall not knowing, at the time he consented to take an interest in the land, that Briggs had assumed to bind his firm, his taking an interest in the property cannot be held to be a ratification of the act of Briggs in procuring the indorsement. (Baldwin v. Burrows, 47 N. Y., 199; Central City Savings Bank v. Walker, 66 id., 424; Smith v. Kidd, 68 id., 130; King v. Mackellar, 109 id., 215.)

Some reliance is placed by the appellants upon the clause in the articles of copartnership reading: “And also upon any other tracts of land which shall hereafter be purchased by said copartners as hereinafter provided.” As it does not appear from the findings of the referee that any other provision was incorporated in the articles of copartnership than the one quoted, as to purchasing other lands, it must be held that the clause mentioned contemplated that, if any other land were to be purchased, it should be purchased pursuant to some agreement thereafter to be made by the copartners. The referee has found that no such agreement was made.

A like provision was incorporated in the articles of copartnership in the case of Judge v. Braswell (supra), and that court held that it did not authorize the purchase of mining land by an individual partner without the consent of the other members of the firm.

The referee, we think, made a correct disposition of the case, and the judgment appealed from, as to the respondent Marshall, should be affirmed, with costs.

Dwi&ht, P. J., and Macomber, J., concurred.

Judgment appealed from, dismissing the complaint as to the defendant Marshall, affirmed, with costs.


author: Macomber, J.:

text:
    CHARLES E. BURNS, Respondent, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.

      Costs — in order to entitle the defendant to costs he must succeed upon an issue of fact — a nonsuit does not carry costs — Code of Civil Procedure, see. 3284.
    Tlie complaint in an action stated separately tliree causes of action, and issue was joined as to eacli. Upon the trial the defendant moved for-a nonsuit as to the second and third causes of action, which motions were granted.
    Upon the first cause of action the plaintiff had a verdict for more than fifty dollars.

      Held, that, under section 3234 of the Code of Civil Procedure, the plaintiff was entitled to costs, and that the defendant was not entitled to any.
    That, in order to entitle a defendant to costs there must have heen a decision in his favor upon an issue of fact; which decision, unless reversed, would prevent the plaintiff from suing again for the same cause of action.
    Appeal by the defendant, the Delaware, Lackawanna and Western Railroad Company, from an order made at the Monroe Special Term, and entered in the clerk’s office of Livingston county on the 5th day of August, 1891, denying the defendant’s motion for a retaxation of the plaintiff’s costs, and to tax costs on the part of the defendant.

      Charles J. Bissell, for the appellant.
    -E A. Wash, for the respondent.
   Macomber, J.:

This appeal involves the application, in respect to costs, of section 3234 of the Code of Civil Procedure, where, under certain conditions, each party is entitled to costs against his adversary.

Three causes of action are stated in the complaint. The first is,, that the defendant, in disregard of its duties as a common carrier,, neglected to transport from Leicester, Livingston county, New York,, to Cincinnati, in the State of Ohio, ninety-three barrels of pears,, which were delivered to it on the 26th day of September, 1887.

The second cause of action is, that the defendant received from the plaintiff, on the 16th day of September, 1887, 169 barrels of pears under a contract to deliver them at Pittsburg, in the State of Pennsylvania, and in neglect of its duties as a common carrier failed to transport this property to its place of destination.

The third cause of action is, that on the 3d day of November,, 1887, the defendant received from the plaintiff, at the same place, for transportation to Quincy, Illinois, forty-seven barrels of apples, but through neglect of duty,-as aforesaid, failed to deliver them.

Judgment was prayed for the aggregate amount of the damages stated for the three causes of action, namely, $516.10, with interest upon the several items. The answer of the defendant put in issue all of the allegations of the complaint, except the incorporation of the defendant and the fact of its receipt of the fruit mentioned, and alleges affirmatively that its duties ceased when such property had been transported by it to East Buffalo, New York. At the trial an effort was made in behalf of the plaintiff to prove each of the causes of action. A motion for a nonsuit in respect to the third cause of action was'made by the defendant at the close of the plaintiff’s case and granted. Upon a like motion, at the close of all the evidence in the case, the court granted a nonsuit in respect to the second cause of action. The issue relating to the first cause of action was, upon the evidence, submitted to the jury, and a verdict rendered by it sufficient to carry costs to the plaintiff, if such claim had been the only cause of action stated in the complaint. '

The attorneys for the respective parties appeared before the county clerk on May 11, 1891, and each presented a bill of costs for taxation, and each objected to the bill of costs made by the other side. A special objection was made by the defendant to an item of thirty dollars for taking the depositions of three witnesses in Pitts-burg, together with an item of fourteen dollars and fifty cents for commissioner’s fees in taking such depositions, upon the ground that such expenditures were made in the case of the alleged failure to deliver the property at Pittsburg, under which count the plaintiff had been nonsuited. The clerk taxed the costs in accordance with the contention made by the plaintiff,' and on review of it at Special Term such taxation was affirmed; and from the order allowing such •costs to the plaintiff, and refusing to allow any costs to the defendant, this appeal is taken.

It is quite true that the language of the section is plain and unambiguous, as was stated by the court in Newell Universal Mill Company v. Muxlow (115 N. Y., 113); yet not a little difficulty has been encountered by the courts in applying its plain provisions to the great variety of .cases which have arisen since its enactment. Certain things are stated as conditions precedent to the allowance of correlative bills of costs, and they are, first, that the causes of action, if two or more of them are contained in the complaint, shall be set forth separately, and that an issue of fact should be joined in each of them. These conditions existed in the present case; for there are three causes of action set forth in the complaint, separately stated, upon each of which an issue of fact was joined by the answer. The plaintiff recovered upon one issue only, and the defendant obtained a nonsuit in respect to the other two causes of action.

But there is another condition for the allowance to the defendant of costs under this section, and that is, that he shall “ recover ” upon one or more of the causes of action set forth in the complaint. Upon this subject it would not be conducive to a clear understanding of the case to cite any authority where all of the conditions .above-mentioned did not substantially exist. In the case of Fisher v. Dougherty (42 Hun, 166), the point seems to have been distinctly held that where a nonsuit was granted in respect to certain counts contained in the complaint, and where no finding of fact was made either by the jury or by the court thereon, and there was a recovery had by the plaintiff upon other counts, there could not be taxed, in behalf of the defendant, costs in respect to the counts upon which a nonsuit had been granted. (See, also, Cooper v. Jolly, 30 Hun, 224.) Under these two authorities, the case of Blashfield v. Blash field (41 Hun, 249), where the question is differently presented,, cannot prevail. The meaning of the word “ recover” used in this-section clearly contemplates a decision upon a question of fact, which if allowed to remain unreversed, is conclusive upon the parties in. respect to the issue there presented. In. this case there has been, no finding upon a question of fact which would preclude the plaintiff, upon certain terms, to bring, as a matter of right, another action to recover damages upon the second and third causes of action stated in his complaint. Had there been a verdict in respect, thereto, whether directed by the court or rendered by the jury there would, in our judgment, be presented an entirely different question. Then a condition of things would have been brought about whereby, unless such decision was reversed, it would be impossible for the plaintiff again to present for trial the issues-there made.

The learned counsel for the appellant has made an ingenious, argument to the effect that this could not make any difference with the rule, because, in all probability, if fie had made a motion, for a direction of a verdict, instead of a motion for a nonsuit, it. would have been granted. We do not so understand the case. There is nothing contained in the record before us which would show that it would have been proper or likely that 'the court would have granted a direction of a verdict. The decision made at the instance of the defendant’s counsel, -in respect to the second and third causes of action, was simply that there was, at present, insufficient evidence to submit that question of fact to the jury. We have no right to assume that the learned justice at the circuit would have directed a verdict, any more than we would have a right to assume that the jui’y itself would have rendered a verdict for the defendant upon these two issues. It is only upon a decision in favor of the defendant, upon an issue of fact, that he is entitled to recover costs under this section. This is conditio sine qua non.

We think, therefore, that the order appealed from was in accordance with the authorities and should be affirmed.

Dwight, P. J"., and Lewis, J., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


author: Macomber, J. :

text:
    CHARLES P. BOWDITCH, as Trustee under the Will of ALLEN AYRAULT, Deceased, Respondent and Appellant, v. WALTER AYRAULT, Respondent and Appellant, and Others, Impleaded with Others, Defendants.

      'Will — -legacy of personal property — when it vests — estoppel—prior accountings of a trustee — -not liable personally for past errors in distribution — correction thereof.

    A testator devised his residuary estate to a trustee with directions to convert it into money, and directed him, ‘ ‘ as fast as practicable,” to divide two-thirds of it between all the children of certain of the testator’s brothers and sisters “who may be living at the time of my decease, and to the descendants of such of said children as may be deceased when said estate, or any part thereof, is distributed; said two-thirds of said residuary estate to be divided between all such children, and their descendants, equally, share and share alike; all the children of each deceased person to receive, collectively, the portion to which their parent would, if living at such distribution, be entitled under this provision.” The amount of property which might fall into the residuum was, because of certain contingent bequests of annuities, unascertainable by the testator, and by the trustee when he qualified.
    In an action brought to determine what was the proper construction of this clause;

      Held, that, as all the property was directed to be converted into money, the rules relative to personal property must govern.
    That a distribution was impossible until the annuities ceased.
    That the remainder over did not vest in the testator’s nephews and nieces, or their descendants, until the necessary moneys for distribution had been from time to time obtained.
    That, in the event of the death of any one of the residuary legatees before distribution, the share vested in his or her descendants, and, failing these, in the other residuary legatees, but in no event in the personal representatives or assigns of the deceased legatee.
    That where a trustee has had prior accountings with legatees, and they were conducted without objection upon their part, but upon an erroneous view of the law, the legatees are not estopped from claiming funds not distributed, and from which the errors made against them may be corrected.
    That, in such case, the trustee is not personally liable because of such prior errors.
    Appeal by the plaintiff Charles P. Bowditch, as trustee under the will of Allen Ayrault, deceased, and by the defendants, Sarah Eelt, Carrie O. Bosworth, Agnes L. Armentrout, and by the defendants, Allen E. Ayrault, Milton Ayrault, Lulu Bosworth, Morris Ayrault, George B. Smith and Mary I. Ayrault, by John Rorbach, their guardian ad litem, from so much of an interlocutory judgment of the Supreme Court, entered, upon the report of a referee, in the office of the clerk of Livingston county on the 27th day of July, 1891, as adjudged that no estoppel is created, as to any of the defendants, by reason of either or any of the accountings which have been had by the plaintiff as trustee; also appeals by the defendants, Elizabeth E. Ayrault, individually and as administratrix of Walter Ayrault, deceased; Anna D. Colt, Edith Rose, Walter Ayrault, Ernest F. Ayrault, Guy Ayrault, Arthur D. Ayrault, Grace Ayrault, and by the defendant Florence Ayrault, by Ernest F. Ayrault, her guardian ad Utem, from all of said interlocutory judgment, except so much thereof as adjudged that no estoppel was created, as to any of the defendants, by reason of any of said accountings.

      James O. Smith, for the plaintiff. .

      James Wood, for the defendant Florence Ayrault.

      John P. Bowman, for the defendants Elizabeth F. Ayrault and others.

      John Rorbach, for the defendants Sarah Felt and others.
   Macomber, J. :

This action is brought to obtain a judicial construction of the twenty-fifth provision of the last will and testament of Allen Ayrault, so as to enable the trustee to make a final disposition of the trust estate now in his hands for distribution.

Allen Ayrault, the testator, died February 4, 1861, leaving a last will and testament, the twenty-fifth clause or item of which created certain trusts in the residuary portion of his estate, and directed a division of the funds after the termination of the trusts. There has been paid out since the probate of the will, which followed soon after the death of the testator, the sum of $153,990 under this the twenty-fifth item. There now remains in the hands of the trustee the further sum of $38,000 for final distribution. On proceedings upon the trustee’s petition before the surrogate for a final settlement of his accounts, and for the discharge of the trustee under the will, a contest was made relating, not only to where the present fund should go, but also touching the correctness and legality of jiast payments, and thereupon it was thought advisable to come into this ■court for a disposition of the question’ involved.

That portion of the twenty-fifth clause or item of the will material to this inquiry is as follows:

“ I give, devise and bequeath the rest, residue and remainder of my estate, both personal and real, not hereinbefore disposed of, and ■such portions of the same as shall remain after the trusts herein provided for are fully discharged and fulfilled, and the legacies herein given are paid in full, to my said trustee, to be by himself disposed ■of as follows: I direct him to sell and convey all such estate, real .and personal, and convert the same into money, or available means for such purpose, and dispose thereof as follows : I direct him as fast as practicable to divide two-thirds of said residuary estate between all the children of my brother John Ayrault, and my sister Mary Smith, widow of Sparrow Smith, and of my deceased brothers Nicholas Ayrault, Roswell Ayrault and Lyman Ayrault, and of my ■deceased sister Emily Griffith, who may be living at the time of my decease, and to the descendants of such of said children as may be deceased when said estate or any part thereof is distributed; .said two-thirds of said residuary estate to be divided between all such children and their descendants equally, share and share alike; all the children of each deceased person to receive collectively the portion to which their parent would, if living at such distribution, be entitled under this provision.”

The practical construction which, for thirty years, has been placed upon this provision of the will by the trustee, and approved by the Surrogate’s Court in seventeen separate distributions of the funds arising from such trust, has been, that the remainder over did not vest in the testator’s nephews and nieces, or their descendants, until the necessary, moneys had been obtained, from time to time, for .actual distribution among them; and that, in the event of the death ■of any of the residuary legatees before the time of the distribution, the legatee so dying had no vested interest in the residuary estate, but that the share which such legatee would have been entitled to if living, vested upon such distribution in his descendants, if any, or if none, then in the other residuary legatees, and, consequently, was not payable, in any event, to tlie personal representatives or assigns of the deceased, legatee.

The referee found, first, that none of the defendants were estopped in any manner by reason of the accountings which had been had by the plaintiff as trustee. To the second conclusion of law no exception has been taken by any of the parties to this action, and, consequently, no question on this appeal can arise thereon. The referee’s third conclusion of law was, that so much of the residuary estate as was set apart by the other provisions of the will, upon the trust therein specified, and was not to become a part of the residuum for distribution until after such trusts were fully performed, or which was necessary to provide for the payment of the several legacies, annuities and life estates, provided for by the will, did not vest in the residuary legatees until after such trusts were performed, and such life estates respectively were terminated, and said legacies and annuities were fully paid. The other conclusions of law stated by the learned referee were merely auxiliary to the foregoing principal findings.

The question, therefore, is whether, by the twenty-fifth provision of the will, the residuary estate vested in the legatees at once after the death of the testator, or at the time of actual distribution thereof among the residuary legatees. As bearing upon the construction of this portion of the will it may be needful to look into other portions thereof. Upon reference thereto it is found that the amount of the property which might ultimately come into the residuum was not ascertained nor ascertainable, either by the testator or by the executors and trustees, at the time of qualifying. In the fourth item the testator gave to his wife and to Nellie B. Bond, jointly, and to the survivors of them, certain specified personal property, with the proviso that such property should revert to and become a part of the residuary estate in case Miss Bond should survive Mrs. Ayrault, and die without issue. The fifth clause contained “like provisions concerning devises to the same parties of certain real estate. The sixth clause gave the use of two farms to these persons, jointly, during their lives, and to the survivor during her separate life, the net proceeds of which were to be paid to them by the trustee who was authorized to sell the same in his discretion, after ten years from the testator’s death, with the consent of the wife of the testator and of Miss Bond ; and in case of such sale invest one-half of such proceeds, the remaining one-half' to become part of the residuary estate. These farms, or the proceeds of the sale of them, were, on the death of the survivor, to become a part of the residuary estate. By the seventh section the-trustee was directed to set apart, out. of the personal property, the sum of $50,000, and pay the interest thereof to the widow and Miss Bond, jointly, during their lives, and to the survivor during her life, and the other one-lialf thereof, upon the death of either of them, to become part of the residuary estate, and on the death of the survivor the whole thereof was to fall' into the residuum. The fifteenth section of the will contains a direction to the trustee to invest the sum of $5,000, the interest thereof to be paid annually to two beneficiaries named, and to the survivor of them, and after the death of such survivor such sum to become part of the residuary estate. It is stated that one of these beneficiaries is still living, but it is understood by all parties that a sum in gross has-been agreed upon to take the place of the annuity. The sixteenth section requires the trustee to invest the sum of $15,000, and to^ pay the interest on $12,000 thereof to a beneficiary named during his life, and on his death to pay the $12,000 to liis children, the interest on the remaining $3,000 to be paid annually to the other beneficiary named during her life, and, on her death, this sum of $3,000 was to become a part of the residuary estate.

These provisions of the will, though not essential, it is believed, to a proper understanding and construction of the twenty-fifth section, reflect, nevertheless, some light upon the subject of the general testamentary scheme which was in the testator’s mind.

In making a judicial construction of this will very little direct aid can be obtained from the adjudged cases, excepting those relating to the disposition of the personal property only. The question here presented relates solely to a testamentary disposition of personal property, and that, too, not through the medium of an' equitable conversion of real estate into money; for there was an actual conversion thereof by the very terms of the will, as well as by the practical administration of the estate. There was no devise of' real property in the residuary item of the will. If, therefore, this circumstance is favorable to one class of persons who are parties to this action, as against others, the advantage to them comes from the •difference in the nature of the tenure of personal property and of real estate, and which, though apparently slight, is often essential in ascertaining the true meaning of a will. This difference in the rule is recognized by the court in Snell v. Tuttle (44 Hun, 331). Perhaps as philosophical and lucid a statmentof it as may be found is contained in the note to the case of Delafield v. Shipman (18 Abb. N. C., 297), to which our attention has been called by the learned counsel for the plaintiff. The doctrine is there adduced from the authorities, that, if the gift is of personal property, while it is true that the law, as a general rule, favors the vesting of it at the time of the testator’s death, yet this tendency is restrained, in the absence of a different intent manifested in the will, by two rules which do not operate in the case of a devise of real estate, namely (1), that words •of futurity, if annexed to the substance of a gift, will prevent vesting meanwhile; and (2), that unqualified words of survivorship are referred to the time of the future event, not to the testator’s death. (See, also, analysis and review, in the same note, of the principal cases bearing upon the question.)

A brief reference to the adjudged cases which seem to bear closely upon the general principle involved, and which come as near as any to having a direct bearing upon this case, may now be made, so as to ■elucidate more clearly our rendering of this will.

In the case of Teed v. Morton (60 N. Y., 502), the testator devised certain real estate to his executors in trust to receive and apply the rents and profits to the use of his son during his life; then to sell .and divide the proceeds among his son’s living children, and the issue of those who had deceased. ‘ If the son should die without leaving issue, then it was directed that the executors divide the same among the testator’s surviving children, and the issue of such of them as may have died leaving issue.” At the time of making the will, and •of the testator’s death, there were five children, and the issue of five ■deceased children, living. But the son, for whose benefit the trust had been created, died without issue. It was there held that the gift over was not to the children of the testator surviving him and to their issue exclusively; but that the issue of his deceased children ■also took, without distinction between those whose parents died before and those who died after the making of the will; and, further, that, as the gift was iu money, the general rule of construction applied, to wit, that words of survivorship in bequests are to be referred to the period of division and enjoyment, unless there is a special intent appearing in the will to the contrary; and that legacies to a class vest in those who answer the description and are capable of taking at the time of distribution. The doctrine was reaffirmed in the case of Vincent v. Newhouse (83 N. Y., 505). In the last-named case there had not been an actual conversion of the realty into personal property as in the case now before us. But it was held that there had been an equitable conversion thereof, and that the rules of the survivorship in bequests of personal, estate control, and were referable only to the period of distribution and enjoyment, unless there was made to appear a special intent to the contrary. These two authorities are selected out of a great mass of cases bearing generally upon the subject for their special application to this case, and they are decisive.

Adopting the rules reaffirmed in the eases cited, the construction of the twenty-fifth section of the testator’s will does not seem to be a complicated matter. That item or section contains a positive direction to the trustee to sell all of the estate, real and personal, and convert it into money, or available means, with the directions for the final disposition thereof as heretofore stated. It enjoins upon the trustee a division of two-thirds of such estate, “ as fast as practicable,” between all of the children of his brothers and his sisters “who-may be living at the time of my decease, and to the descendants of such of said children which may be deceased when said estate, or any part thereof, is to be distributed; said two-thirds of said residuary estate to be divided between all such children and their descendants equally, share and share alike; all the children of each deceased person to receive collectively the portion to which their parent would, if living at such distribution, be eDtitled under this provision.”

The will nowhere contains any bequest to the children of his brothers and sisters, other than is necessarily implied by the direction “to divide two-thirds of said residuary estate,” etc. This clearly contemplates a selection of legatees from those nephews and nieces who should be living at the time that any division of the residuary estate might be made. The clause giving shares to the descendants of such nephews and nieces as had died, is indissolubly connected with the clause giving portions to the nephews and nieces themselves, so far as relates to the time when the selection of the legatees is to be made; for the final clause of that sentence is, that all of the children of each deceased person shall receive collectively the portion to which their parent would, at such distribution, be entitled under this provision.” There appears, therefore, in the provisions of this will, a clear, well-expressed and consistent purpose of the testator, directing the distribution of the residuary estate among such of his nephews and nieces, or of their descendants, as should he living at the time when there could be an actual division thereof. There seems, besides, to be a clear purpose, although of a negative character, to prevent such property from going to the per¡sonal representatives of his nephews and nieces, where the same might he devoted to the jiayinent of past debts, and not to the support and maintenance of the objects of his bounty. For these reasons, we think the conclusion of the learned referee upon the-principal question was correct..

We have not overlooked the cases upon which the learned counsel for the defendants mainly rely, nor the arguments which have been so elaborately presented to the court in the briefs submitted. The case of McKinstry v. Sanders (2 T. & C., 181; affirmed, 58 N. Y., 662), on the opinion of the court at General Term, is stated by counsel to be so nearly like the case before us as to be a controlling authority. But in that case it will be found that while certain annuities were created out of the fund produced in part by the conversion of real estate, there was a provision that upon -executing a bond for their payment by a religious body to whom the fund was bequeathed, the legatee, the religious body, should immediately take the whole of the fund. This fact disclosed an intention on the part of the testator that the religious corporation should have immediate title, followed by a full possession of the fund, upon giving the bond to pay the annuities. But this is the very exception to the rule which we deem applicable to this appeal, and is well recognized in the authorities which we have cited. In the.case before us, however, the distribution is actually and necessarily postponed until the annuities cease. ' By no possibility could the children of the testator’s brothers and sisters receive any part of the property until after the cessation of the life estates. Judge Miller in McKinstry v. Sanders (supra), says: The payment of tlie legacies was postponed to enable the executor to dispose of the real estate and convert the whole of the estate into money, thus making the bequest independent of the time named, and vesting the legacies at the time of the testator’s death. So, also, in Goebel v. Wolf (113 N. Y., 405), there was an express provision, other than that relating to the division of the residuary estate among the children, in the form of a positive direction to invest the same for the benefit of the children. In that case, the provision for the investment for the benefit of the children made a complete gift to them so that the interest of each vested immediately upon the death of the testator. These and the other cases cited, where it appears that the gift is immediate, but the payment or enjoyment thereof is postponed to a future day, do not, in our judgment, bear directly upon the will which we are called upon here to construe.

In respect to the appeal by the plaintiff, and by certain of the defendants, from that part of the interlocutory judgment which ad judges that the defendants are not estopped by the former accountings from raising the question here discussed, it is, as it seems to us, partly well taken and partly not. We are unable to find any proceedings upon the past accountings which would estop one class of •defendants, as against the other, to set up the claim now made. 'To that extent, we think, the conclusion of the referee was correct. But, as between such defendants and the plaintiff, the same rule would not apply beyond the question of the distribution of the funds now remaining undisposed of. So far as the trustee has actually paid out moneys he has acted with a full knowledge of and without objection coming from these defendants. Still, if he has proceeded upon an erroneous basis, and yet has funds sufficient in his hands to equalize the payments among the distributees, we know of no reason why he should not be required so to distribute them, provided the court is wrong in its conclusions upon the main question. But he cannot, under these circumstances, be held personally liable for any loss. This question, however, is probably not of any practical importance if the construction of the will, as above given, is correct.

It follows, therefore, that the interlocutory judgment should be modified in respect to the provision therein touching the estoppel, ■and, as so modified, affirmed.

Dwight, P. <L, and Lewis, J., concurred.

Interlocutory judgment appealed from modified as indicated in opinion, and, as so modified, affirmed, with costs of this ajipeal to the several classes of parties who have filed briefs, payable out of the fund.


text:
    DAVID A. LAMMING, Respondent, v. NORMAN H. GALUSHA and Others, Appellants.

      Misjoinder — of a cause of action for a nuisance and, for personal injuries — failure separately to state and number causes of action — its effect upon a demurrer.

    The complaint in an action alleged that the defendants had, by the construction and operation of a steam railroad in a public highway, created a public nuisance which was a special damage to the plaintiff. It then alleged that while the plaintiff was driving along such highway an engine belonging to said railroad passed, which frightened the plaintiff’s horse, and that the plaintiff was thrown out of thewagonandinjured. A demurrer was interposed to the complaint. There was nothing to connect the allegations, as to the nuisance, with those relating to the injury, and the two were not separately numbered.

      Meld, that the cause of action for a nuisance, and that for personal injuries, were improperly joined and did not fall within the scope of subdivision 9 of section 484 of the Code of Civil Procedure, providing that claims arising out of the same transactions, or transactions connected with the same subject of action, may be united in the same complaint.
    ' That the failure of the plaintiff separately to state and number the causes of action did not preclude the defendant from demurring for misjoinder or put him to a motion to compel such separate statement and numbering.
    Appeal by the defendants, Norman H. Galusha and others, from an interlocutory judgment of the Supreme Court, entered in the office of the cleric of the county of Monroe on the 26 th day of May, 1891, overruling their demurrer to the complaint; and from an order, entered in said clerk’s office upon the same day, upon which order said interlocutory judgment was entered.

      G. G. Davy, for the appellants.

      Henry W. Gonjdvn, for the respondent.
   Macomber, J.:

The demurrer is placed upon the ground that it appears upon the face of the complaint that causes of action have been improperly united, naming four particulars.

Tlie plaintiff is the owner of certain lands in Irondequoit, lying along North avenue, which extends from the city of Nochester to the Nidge road, and also of lands on the Nidge road near the intersection of that highway with North avenue, particularly described in the complaint. These premises are used for farming purposes, raising vegetables and fruits for market in the city of Nochester, where they are carried by wagon, which makes nearly daily trips during several months, and goes two or three times a week during the remainder of the year. The plaintiff, with his family, also goes to the city of Nochester for worship, being attendants upon a church there. The usual and most convenient and natural route from the plaintiff’s dwelling, which is near the Nidge road on a street known as Garden street, as well as from other parts of the plaintiff’s lands, to and from the city of Nochester, is along the Nidge road and North avenue to Bay street, which is within the city limits, a distance of about two miles. Any other route is circuitous, and, it is alleged, is inconvenient and involves traveling half a mile further at additional delay, labor and expense.

Thence follow allegations, showing, with much circumstantiality, that the defendants, before and since the 1st day of July, 1887, to the present time, have habitually interrupted access to his houses, and interfered with the use of a sand and gravel bed on his premises, and the easy marketing of his crops, by the unlawful construction and operation in these public highways of a railroad operated by steam; that plaintiff’s lands extend to the center of both North avenue and the Nidge road, and that the defendant has wrongfully and unlawfully' built and maintained high embankments in North avenue, obstructing the natural drainage of the road and otherwise obstructed travel thereon and on the Nidge road, rendering them during certain seasons of the year impassable to vehicles ;_ that said embankments cause the drifting and accumulation of snow so that the highway cannot be traveled. Suffice it to say, in short, that the grievances of the public, as well as the plaintiff’s personal grievances, are set forth in much detail. The complaint also contains suitable allegations of special injuries peculiar to the plaintiff alone, other than those suffered by the public at large.

The facts of this case are summed up by another clause in the complaint, but to the same legal effect. It is then alleged that these acts of the defendant constitute a public nuisance, and are a special injury to the plaintiff; and that, inasmuch as he has no adequate remedy at law, he comes into a court of equity and asks for damages and an injunction to restrain further wrongful operation of the railroad, under suitable allegations averring threats and intention on the part of the defendant to continue to maintain such nuisance.

Here is, clearly, a cause of action set forth alleging the existence of a public nuisance, and showing that the plaintiff has suffered special and peculiar damages other than the public at large. If these allegations are established by evidence, and not overcome by affirmative defenses, the plaintiff would be entitled to some relief. (Adams v. Popham, 76 N. Y., 410.) The complaint, as above epitomized, is a unit and contains only one cause of action. But in the body thereof there are other allegations which certainly, for the purposes above mentioned, have no place there, are without any connection with the statement of the facts above mentioned, and without being separately numbered, are alleged as follows: “ That on or about the 4th day of August, 1888, plaintiff, in the ordinary prosecution of his said business, was riding along said North avenue in his own market or produce wagon, and was driving his own horse attached thereto and going toward the north; that said horse was a quiet and well-trained animal, accustomed to steam railroads and cars, and that plaintiff was driving with due care; that plaintiff had reached a point about midway between North street and Ridge road ; that thereupon one of said locomotive engines and train, operated by defendants, approached from the south, running at a high rate of speed, and making alarming noises with the escape of steam and otherwise, and without abatement of said speed or noises ran past plaintiff; that the approach of said train greatly frightened said horse; and as said train passed, said horse got beyond plaintiff’s control and turned quickly, overturning said wagon, and threw plaintiff violently out of said wagon and to the ground; that said horse, in his fright and struggle to escape, stepped upon plaintiff’s head, shoulder and the lower part of his body, wounding and bruising plaintiff; that plaintiff, as the result of said injuries, was confined to his bed for two weeks, and to his house for three weeks, and was necessarily under medical care for many weeks thereafter, and suffered great pain; that plaintiff has never recovered from said injuries, but is still subject, at times, to excruciating pain in said injured portions of his body; and never since said injuries has he been free from pain occasioned thereby; that since said injuries plaintiff never has been able to read or engage in mental labor, except for a few moments at a time, without bringing on a dizziness and headache sufficient to compel the cessation from such reading and mental labor.” Then follow allegations that theretofore plaintiff was an unusually robust and healthy man, capable of doing hard and continuous labor; that such injury incapacitated him for such labor, and the effects of the injuries to him are permanent and incurable.

In the general prayer for relief it is stated that the injuries which, as we have said, would give him a cause of action to restrain the continuance of the nuisance, are in addition to the body and physical injuries already described.”

Here, in the body of this complaint, as it seems to us, is a cause of action for personal injuries inflicted, as is alleged, by the defendants through their negligence in the management of their locomotive Avliile passing along North avenue, and without fault on the plaintiff’s part. This has no material bearing upon the acts as presenting the cause of action stated for relief against the nuisance. These allegations might be, and often are, true of a railroad whose right to operate its trains is unquestioned, but which is liable only for the negligent use thereof. It appears' to us that in this respect there has been a misjoinder of causes of action, namely, one for the relief from a nuisance where the plaintiff has suffered special damages by reason of the continued unlawful use of the highways, and the other a cause of action which rests upon allegations only of negligence in the operation of a particular train at a given time, to the damage of the plaintiff, when he was without fault.

Subdivision 9 of section 484 of the Code of Civil Procedure is pressed upon our attention, where it is provided. that there may be united in the same complaint claims arising out of the same transa action, or transactions connected with the same subject of action. But this negligent act of running a train on a particular trip cannot be said to arise out of the same transaction which constitutes the general burden of the complaint, nor is it connected with the same subject of action. Tbe one cause of action is founded, upon tbe maintenance of a nuisance, and the other for negligently operating a train on a particular occasion. We conclude, therefore, that the demurrer was properly interposed, upon the ground that there were attempted to be joined in the complaint two causes of action, one for the relief against a continuing nuisance and the other for personal injuries received through the negligence of the defendants, happening without fault of the plaintiff; and we are of the opinion that these causes of action cannot be united in the same complaint.

These two causes of action are not. separated, or stated to be independent of each other, and they are not separately numbered. But under the decisions of Wiles v. Suydam (64 N. Y., 175), and Goldberg v. Utley (60 id., 427), the failure of the plaintiff to state them separately and to number them does not preclude the defendant from interposing his demurrer upon the ground named, and the latter is. not left to his remedy of making a motion to compel the plaintiff to separate the causes of action and separately to number them.

For these reasons we think the interlocutory judgment appealed from should be reversed.

Dwight, P. J., and Lewis, J., concurred.

Interlocutory judgment appealed from reversed, with costs, and the demurrer to the complaint allowed, with leave to the plaintiff to amend on payment of costs of the demurrer and of this appeal.


author: Macombee, J.:

text:
    In the Matter of the Proof and Probate of the Will of CORNELIA L. SHRADER.

      Surrogate’s Court —jurisdiction— it can construe bequests of personal estate only — it cannot pass upon a trust of real and personal estate insepa/rably connected— Code of Civil Procedure, sea. 2624.
    A testatrix, by lier will, first devised all her property, real and personal, to trustees for the benefit of her children, with directions for a final payment of the principal to them. It then provided for the contingency that any of them should die leaving a wife and children. It then declared the disposition to he made if her children died without heirs. It did not appear, upon the proceedings for the proof of the will, whether the personal estate was, or was not, sufficient to pay the debts of the testatrix.

      Held, that as the will related to both real and personal estate, and as the disposition of both were inseparably connected, the surrogate had not jurisdiction, under section 2624 of the Code of Civil Procedure, giving to the surrogate in certain, cases the power to determine "the validity, construction or efiect of any disposition of personal property ” contained in a will, to pass upon the terms of the trusts.
    That the jurisdiction of the Surrogate’s Court is limited, and it can exercise only statutory powers, and those incidental to the proper exercise of express powers.
    Appeal by J. Albert Sbrader, and by Edward Y. Shrader, by John D. Teller, his special guardian, next of kin, lieirs-at-law and legatees named in the will of Cornelia L. Shrader, deceased, from a decree, entered in the office of the surrogate of Cayuga county on the 2d day of July, 1891, except from so much thereof as adjudged the will to have been properly executed and valid, and which admitted it to probate.

      Teller <& Hunt, for the appellants.

      G. £?. Baldwin, for the executor, respondent.
   Macombee, J.:

-No question arises upon this appeal touching the sufficiency and proof of the will, and of the disposing mind of the executrix. The appellants, at the time of the return of the citation, filed an answer which put in issue the validity, construction and effect of certain portions of the will, and went to trial thereon before the surrogate.

Section 2624 of the Code of Civil Procedure provides as follows : “ But if a party expressly puts in issue before the surrogate, the validity, construction or effect of any disposition of personal property contained in the will of a resident of the State, executed within the State, the surrogate must determine the question upon rendering a decree, unless the decree refuses to admit the will to probate by reason of a failure to prove any of the matters specified in the last section.”

The surrogate has, by rejecting or ignoring the second provision of the will, made a construction which the appellants deemed to be unfavorable to them. The first section of the will devised all of the property of the testatrix in this State, both real and personal, to trustees under a trust for the payment of the rents and profits and interest to the appellants, who were her children, with a provision, for the final payment of the principal over to them. The second item of the will was to the effect that, if any of the testatrix’s heirs should die leaving a wife and children, and if, in the judgment of the trustees, the portion of the estate was “ needed more for the maintenance and support of the other heir or heirs of my body, or their legal representatives, then my trustees shall retain the same in trust — as under firstly — or pay over the same to such heir or heirs, as herein-before stated, otherwise to be administered as under firstly of this instrument.” By the third item it was provided that, if her children “ die leaving no heirs, then all of my property and estate, both real and personal, shall he divided, share and share alike, to my surviving brothers and sisters, or their legal representatives.” By the fourth provision she appointed two trustees of tlie will, namely, her sister Mary C. Ilale and her brother William Seward Hale. Mary C. Hale having died, William Seward Hale is the surviving executor and trustee under the will.

Without construing or determining the effect of these several provisions of the will in question, we are of the opinion that the-surrogate did not have jurisdiction to make any construction of the will, or to declare any provision thereof valid or invalid. The Surrogate’s Court is one of well defined and limited, although of extensive jurisdiction. It can exercise only those powers which are given to it by statute, and such incidental powers as are required for the proper exercise of the powers expressly conferred. Unless, therefore, a warrant for the exercise of its jurisdiction of the particular case can be found in the statute, either expressly or by necessary implication, any judgment pronounced by that tribunal is void. (Riggs v. Cragg, 89 N. Y., 479; Seamans v. Whitehead, 78 id., 308.)

Until the enactment of this section of the Code of Civil Procedure, the Surrogate’s Court had no power, on the probate of a will, to determine the validity of any of the provisions of the will, or to make any decree thereon, except either to admit it to, or reject it from, probate, save only that a special statute, relating only to the Surrogate’s Court of the county of New York (chap. 359 of the Laws of 1870), conferred such power.

The will before us is one of both real and personal property. The deceased, at the time of her death, owned a house and lot in Union Springs, in New York, and an interest in other real estate in the town of Elbridge, New York. Her personal property amounted to about three thousand dollars. It does not appear whether the personal estate would or would not be sufficient to pay her debts. The jurisdiction of the surrogate, at the time the will was offered for probate, to make any construction thereof, or to pass upon the validity or effect of any part thereof, is confined to “ any disposition of personal property.” In this case there is no disposition of personal property, except as it is connected with the disposition of the real estate of the testatrix. It would be impossible to separate the disposition of the personal property from that made of the real estate. They are essentially connected and not separable. The surrogate himself finds that the will is one of both real and personal property, and he attempts to make no restriction of his construction so as to confine it to the disposition made of the personal property aloné. But we are of the opinion, under this section of the Code, and under the common-law limitation of the power of the Surrogate’s Court, that the surrogate had no jurisdiction - to make a construction of this will, or pass upon the validity of any of its parts, because there was no disposition of personal property independent of and separable from the disposition of the real estate.

It follows that so much of the decree as makes a construction of the will and passes upon the validity of any portion thereof should be reversed.

Dwight, P. J., and Lewis, J., concurred.

That part of the decree of the surrogate of Cayuga county appealed from reversed, with costs of this appeal to both parties payable out of the estate.