text:
    JOHN ADOLPH, Plaintiff and Respondent, v. THE CENTRAL PARK, NORTH AND EAST RIVER RAILROAD COMPANY, Defendant and Appellant.

      Head-note to General Term decision.

    I. STREET RAILROADS.
    1. Vehicles Driving along the Track.
    1. DRIVER OF CAR APPROACHING VEHICLE IN THE . REAR, AND DRIVER OF VEHICLE, RELATIVE RIGHTS AND DUTIES OF.
    (a) Driver on Vehicle.
    1. Bights of. Has equal rights with the ears to travel on the track. Neither has any superiority of right in this respect.

      Decided January 7, 1878.
    3. Duty of.

    1. Not to unnecessarily obstruct the cars in their due, regular and orderly passage over the track.
    3. As soon as lie becomes aware that a car is approaching him from behind, he must use reasonable diligence, prudence and speed, to get oil; the track before the car reaches him. If he omits so to do, and the ea/r comes in collision with him, he is chargeable with contributoi'y negligence.

    3. To pay such attention to the approach of cars in the rear, as a man of ordinary prudence, care and intelligence, would, under similar circumstances, give, consistent with the other duties of looking ahead, and on both sides. He is not specifically called on to look out for vehicles approaching from behind ; that is, to turn round and keep a lookout behind at all times.
    (5) Dbiveb of Cab.
    1. Bights of. To pass without unnecessary obstruction over the track, in due, regular and ordinary course.
    3. Duty of. To keep such a distance behind a vehicle in front, and to keep his horses and car under such control, as that they will not collide with the vehicle when it attempts to get off the track.
    3. CONTRIBUTORY NEGLIGENCE.
    1. Driver of vehicle, what does net constitute on his part.

      (a) UNNECESSARILY ON THE TRACK. The fact that a vehicle is being unnecessarily driven on the track, does not of itself constitute contributory negligence, nor is it a fact to be taken into consideration in determining the question of c’ontributory negligence ; nor does it require the driver of the vehicle to use greater care and diligence and keep a better lookout than he would otherwise be bound to.
    Before Sanford and Freedman, JJ.

      Head-mote to Judge Sedgwick’s charge.

    I. Evidence.
    1. CARE, DILIGENCE AND PRUDENCE.
    1. Standabd of. It is that'which, as experience teaches us, men of ordinary caution and prudence would exercise under similar circumstances.

      («) Weighing a man's faculties. The jury are not to.weigh a man’s faculties and see how smart he was, how bright, how attentive, and say whether or not, as a matter of fact, he was as prudent as he could be by nature.
    2. CAPACITY POR OBSERVATION.
    1. Elements oe. Cultivation of the mind, and quickness of the faculties and of sight, are.

      (a) In judging of the evidence of several witnesses who have testified to the same occurrence, their capacity to observe is to be thus tested.

    3. WITNESSES.
    1. Pabts oe theib Testimony may be Taken.

      (d) The jury may take parts of the testimony of the witnesses in connection with all the probabilities of the case, and thus determine the fact.
    1. It is not nemsary that they should take the whole of any one witness’s statement.

      Charge delivered.November 23, 1876.
    Appeal by defendant from judgment entered upon verdict of jury, and from order denying motion for new trial.
    The plaintiff in this case was driving a loaded wagon along the track of defendant’s railroad. One of defendant’s cars approached behind him. Plaintiff turned his horse to drive off the track. Before the wagon had got entirely clear of the track, the car struck its tail and upset it. Plaintiff’s wagon and horse, and himself were injured. To recover for these injuries the action is brought.
    There have been two trials of the cause.
    Upon the first trial a verdict was directed for the defendant upon motion, oh the ground that no negligence had been shown on the part of defendant, and that the plaintiff had been guilty of contributory negligence, judgment was suspended, and the exceptions ordered to be heard at the general term in the first instance. The decision of the trial term was affirmed (33 Superior Ct. 186).
    From the judgment thereupon entered, the plaintiff appealed to the court of appeals, and the case came up for argument before the commission of appeals, which by a vote of three to two reversed the decision of this court, and held that there was a question for the jury (65 N. Y. 554).
    The second trial was had before Judge Sedgwick and a jury. The judge submitted the cause to the jury-
    The charge of the judge, with the above statement, sufficiently indicates the nature of the case, the evidence, and the facts.
    The charge, with the exception of two passages which are not material here, was as follows :
    Gentlemen :—The most general rule of law that is ' applicable to this case is that the driver of the wagon, the plaintiff, and the driver of the car, were each of them bound to use the prudence of a man of ordinary caution and intelligence. In their conduct they must come up to that standard. Neither is held to extraordinary care, but to the care that is given by men of ordinary caution and ordinary intelligence, under the circumstances that you shall find to exist. Of course it is impossible that the law should make any other standard than that. You do not try to weigh a man’s faculties and see how smart he was, how bright, how attentive, and say whether or not as a matter of fact he was as prudent as he could be by nature. It would be impossible for a jury to do that, or a court, if they attempted it. They can only compare a man’s actions with ordinary prudence and "care, as the jury know it from their own experience. And that rule of law you will keep in mind, of course, in passing upon the facts of the case, in saying which party in this controversy is wrong.

      The next rule of law which it is required that the courts shall turn the attention of the jury to, is that the plaintiff must make out a case. If he does not establish by a preponderance of evidence what it is necessary for him to prove in making out such a case as this, then the jury cannot say that he has made out a case, and must find for the other party.....I have omitted two 'witnesses for plaintiff—the boy and the officer, Mr. Greubelstein. As to the boy, it is right that you should bear in mind that at the time of the transaction he was eleven years of age. If he was then what he is now, he was, undoubtedly, a smart, clearheaded, honest young fellow, but his youth affected his capacity to observe many facts at the same time. That is, the best cultivated minds, and having the quickest sight and the quickest faculties, can see several things at once, and weigh them at once. The more immature or the less cultivated they are the more the attention is fixed upon a part of a transaction. I do not mean, in saying that, that you shall disregard the boy’s testimony, or to weaken its effect in any way; I merely call your attention to that fact, which is a fact which you must consider in weighing his testimony.
    Then in regard to Mr. Greublestein’s testimony— you have had him before you.....
    You will reconcile the testimony together. It is not necessary for you to take the whole of any one witness’s statement. You may take parts, and take all the probabilities of the case, and all these considerations that I have alluded to, and say what, as a matter of fact, occurred at that time, putting these facts together in their natural and probable order. And in judging, in the way that I have endeavored to describe, you will get considerable aid in judging of the probabilities of the case from such undoubted facts as there may be in the evidence.

      I think this fact is clearin the beginning, but you must say whether it is or not. Groeneman, the boy, could not say when Adolph, the plaintiff, came on Avenue A. The witnesses for the defendant, three or four of them—four, I think—the driver, the conductor and the two Dempseys—say that he came on the avenue and on the track of the defendant, and was before the car of the defendant between Fifteenth and Sixteenth streets. Now, Mr. Adolph does not say when he came on, and does not explain that, and therefore, unless you disregard the whole of the testimony, and do not take into consideration those things that I have said as to the absence of any testimony on the part of the plaintiff, then I think you will come to the conclusion that the loaded wagon which Mr. Adolph, the plaintiff, was driving, was on the railroad between Fifteenth and Sixteenth streets, and the car was behind it. Now, if that be the case, gentlemen, you will apply your minds to what would be probably done under the circumstances, and then say as to whether or not the evidence of the" witnesses for this defendant is true—that from the point at which, between Fifteenth and Sixteenth streets, the plaintiff did come on, they were calling to him and whistling, etc. Mr. Dempsey thinks they called once before the final accident. Mr. Donovan says it was several times. The driver’s testimony on that point you have heard, and the other Dempsey’s testimony. Now say whether you think he was called to several times.
    A Juror: I would like to ask a question. Does it appear in the evidence where the car was when he saw them come on the street % The car may have been back three or four blocks.
    ' Mr. Vanderpoel : Half a block.
    The Court : That is a very material consideration, but whether it was or not, you take all the facts together, that it was within that distance that it required the hallooing, if yon believe that was done, and also the car to vary its speed according to the rate of the wagon ahead of it; consider the facts as they are.
    Mow, if those facts are established, what was the duty of the plaintiff in respect of it ? He had as good a right on that track as the defendant’s car; there was no superiority of right; he had a right to travel on the track. But the defendant’s car could move but in one direction—on the rails—and therefore the law says that it is the duty of a wagon situated as the plaintiff’s wagon was, to get out of the way of a car immediately behind it, using reasonable care for that purpose, and all the speed that might be reasonably required under the circumstances ; and in addition, as it was the car driver’s duty to observe the wagon ahead of the car, on the other hand it was the duty of the driver of the wagon, the plaintiff himself, knowing that this was the condition of things, knowing how this track was occupied, knowing that cars were coming along, to give that attention to the situation of things behind him that might be called for from a man of ordinary intelligence, while at the same time he was doing his other duty in looking ahead of him, and on both sides. That is, it was not his positive duty to keep a lookout behind at all times, because it was his duty to look ahead and on each side ; but he was to give some attention to it, and such attention as you, as jurymen, think should be reasonably given under those circumstances. Then you will say whether or not, if giving that reasonable atttention, he could have known that this car was following behind him, and was intending to assert its rights to pass along the track, and could have gone off on the west side, the east side by the conceded testimony being obstructed. If he did not give such attention, then to that extent the plaintiff would be guilty of contributory negligence, if that negligence led to the accident.

      These are considerations immediately prior to the time of the accident happening. Now the accident is about to happen and there is a conflict of testimony; I think the broadest conflict of testimony that there is. Mr. Q-roeneman says that the car was thirty or forty feet off when he heard the car-driver halloo, or first noticed the car. The plaintiff says it was fifty feet off. Mr. Greubelstein’s testimony on that point I am uncertain as to, and the jury must find what it was.
    On the other hand, the defendant’s witnesses say that the car was much nearer the wagon than that; they say it was within five or six feet of it immediately before the accident happened. You must determine the distance and say what it was. Now the plaintiff being obliged to prove his case under those circumstances, if this be the fact that the car, when he first saw it, was at such a distance from him that by using reasonable diligence, prudence and speed, he could have gotten off the track before the car came upon him, he is guilty of the kind of negligence which deprives him of his action, and that ought to be the law. Two parties together produce an accident; nobody, no court, no jury could tell which did the most of it and which was most guilty. One does it as much as the other. On the other hand, if he used that kind of caution that I have described, and could not get off the track any more quickly than he did, could not avoid the effect of the onward movement of the car, then he is not guilty of contributory negligence, and on that point you will decide in his favor.
    The next thing will be, was the defendant, under those circumstances, guilty of negligence ? Well, now, gentlemen, the defendant is called upon to use the same kind of caution as the plaintiff is called upon to use. Now recollect all the circumstances ; where the car was behind the wagon, how it was following on, what a reasonable man would be led to think after following a man a block or half ¡ a block as to his not getting off at any particular time; that is, whether having shown that he did not hear the car-driver, or did not attend to the car-driver, if he chose to keep on the track, what reason there would be for a car-driver, under those circumstances, to believe that suddenly, without any notice, he meant to get off the track.
    Look at that circumstance. Look at the circumstances on the other hand under the rule of law that I have given to you impliedly, that the car-driver was bound to keep such a distance behind the wagon, and to keep his horses and his car under such control that they would not run against the wagon when it did get off. Look, if you can find from the testimony of the case, at what speed the plaintiff was turning off; whether or not if he had continued that speed there would have been a collision. Because one ©f the positions of the defendant is—and one of the witnesses swears to it—and it is more or less a matter of opinion, and you must be yourselves the judges of that—that if this wagon had continued at the rate at which it began to go it would have passed beyond the track, and there would have been no collision.
    The witnesses for the defendant at the same time say that there was a jerk of the reins which made the horse go more slowly without bringing the wagon to a stop. Look at all those things and say whether or not the defendant, the car-driver, was guilty of negligence in judging as to the probability of this car’s striking the wagon tail, and if you are satisfied from the evidence that the defendant was negligent, you will, having found before that the plaintiff was free from negligence under the circumstances of the case, find a verdict for the plaintiff, and you will then assess Ms damages, which will be a full compensation for the sufferings, as he has given in evidence, from his injuries that have happened, and for all the suffering that will happen during the time that the injuries are likely to continue—you will give him a compensation for the injury to his horse and for the injury to his wagon.
    On the other hand, if the plaintiff has left the case in such doubt that you are not able to say that the preponderance of evidence is in his favor, why then you must find for the defendant; or, if you find that the plaintiff is guilty in any degree of contributory negligence, you must find for defendant. And again, if you find that the defendant was without fault you must find for him.
    Defendant’s counsel submitted various requests to charge.
    Only those which the judge refused will be adverted to. Those refused were numbered 5, 6, 7, 8, 9, 10, 11, and 12. They were :
    V. “That the plaintiff, under the circumstances, was bound to exercise care and diligence, and keep a lookout for a car approaching from the rear.”
    I refuse to charge this.
    To the refusal of the court to charge said request, defendant, by its counsel, then and there duly excepted.
    But I do charge he was bound to exercise care and diligence, and he was bound to pay such attention as his other duties in front of him would permit, but the approach of a car in the rear he was not specifically called upon to look out for ; that is, to turn around, but he must give some attention to that. That, in going along any railroad street, is as important as anything else ; he knows that the cars come along, and they have, as I have explained, a right to pass him, —that is, a right to demand that he should get out of the way.
    X. “If the plaintiff saw the approaching car in time to get off the track and did not do so, then he he was guilty of negligence and cannot recover.”
    I prefer to refuse that, because I will modify it. If he saw it, and then under all the circumstances of the case, by using ordinary skill in the management of his horse, the same kind of skill that the driver of the car was called upon to use with his horse, and under the circumstances of the case, if he could have got off, why, then he was bound to do it; and if his not getting off led to the accident, then he cannot recover.
    To the refusal of the court to charge said te'nth request, and to the charge of the court in respect thereto, and modifying the same, defendant, by its counsel, then and there duly excepted.
    XI. “ It is undisputed that the plaintiff drove upon 'the track of the defendant for upwards of two blocks, and it was his duty, under the circumstances, to have kept a lookout behind him for an approaching car, and if he did not do so, then he was guilty of negligence and he cannot recover.”
    I refuse to charge you, gentlemen, in those terms.
    To which refusal of the court to charge said eleventh request, defendants, by its counsel, then and there duly excepted.
    I say I think the great weight of the evidence in this case is, that he was before the car from a point between Fifteenth street and Sixteenth street, to the point between Seventeenth and Eighteenth streets, where the accident happened. That is a question, however, for you, although that is my opinion; and then, instead of being his duty to keep a lookout, I hold that he was called upon to attend to it in the way I have several times described to you.
    A Juror: I would like to ask a question. My mind is far from being clear upon this point; suppose this plaintiff had stood on the track in front of that car, and they knew that he knew that he stood there, and they had come np and hit him as they did.
    The Court : How, gentlemen, there is a disadvantage in taking supposititious cases; but if it is any illustration, let me say, that if, under those circumstance, the car coming up behind should run into the wagon, it would be guilty of negligence, which, so far as that is concerned, would give the man a right of action, but the man would lose his right of action for standing on the track, as being guilty of contributory negligence; in such a case as this they would be guilty of negligence, and the party injured could not recover from the other.
    The defendant also requested the court to charge as follows :
    VI. “Upon the evidence in this case it is undisputed that the plaintiff was unnecessarily upon the' track of defendant at the time of the collision, there being nothing to prevent his driving upon one side of the track.”
    The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.
    The defendant also requested the court to charge as follows :
    VII. ‘£ That this is a fact to be borne in mind by the jury in determining whether the plaintiff was free from negligence.”
    The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.
    The defendant also requested the court to charge as follows:
    VIII. “ From the fact of the plaintiff’s having driven his wagon on the railroad track, in front of the car, and continuing thereon without any apparent necessity, he was bound to use greater care and diligence, and keep a better lookout, than he would have been if he had not been on the track, that he might avoid the collision.”
    The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.
    The defendant also requested the court to charge as follows:
    IX. “ The defendant was entitled to the unrestricted use of its rails, for the progress of its cars, and the plaintiff, being unnecessarily on the track, was bound to exercise care, to see that an approaching car was not impeded, and if by reason of the plaintiff’s being there, the collision ensued, the plaintiff cannot recover even though the conductor and driver of the car were negligent.”
    The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.
    The defendant also requested the court to charge as follows :
    XII. “ The verdict should be for the defendant.”
    The court refused so to charge, to which refusal the defendant, by its counsel, then and there duly excepted.
    The jury thereupon retired, and afterward returned a verdict for $5,000.
    Defendant’s counsel moved for a pew trial upon the minutes, which was denied, and an order was entered to that effect.
    Judgment was thereafter entered on the verdict; from which, as well as the order denying the motion for a new trial, the present appeal was taken.
    Vanderpoel, Green & Cuming, attorneys, and Almon Goodwin, and A. J. Vanderpoel, of counsel, for appellant, urged :
    —I. The court below should have granted the motion for the dismissal of the complaint, or have directed a verdict for the defendant. Failing-in this, it should have granted the motion for a new trial, which was denied. We desire to call the attention of the court to the fact that plaintiff now admits his hearing the shout of the driver, which introduces a new element'in the case, and also to the overwhelming preponderance of evidence that the plaintiff jerked his horse as he turned from the track and by his unskillfulness produced, or at least, contributed to the accident. All that the majority of the commission of appeals decided upon the facts before them was that there was some evidence to go before the jury as to whether the plaintiff’s negligence contributed to the injury. The duty of the court still remained, after submitting the case to the jury, to set aside their verdict when it was clearly against the weight of evidence (Hollacher v. O’Brien, 5 Hun, 277; Adsit v. Wilson, 7 How. Pr. 64 ; Heritage v. Hall, 33 Barb. 275 ; Cothran v. Collins, 29 How. Pr. 155). If the court shall be of the opinion that, under the decision of the commission of appeals, the case was one to go to the jury, we ask its attention to the errors in the manner of submitting it.
    II. The court erred in refusing to charge the sixth, seventh, eighth, ninth, tenth, and eleventh, requests of defendants. We submit that the charge did not cover the ground fully and fairly and the exception and the refusal to charge as requested cover the whole ground. First. The court erred in refusing to charge the fifth request (Baker v. Savage, 45 N. Y. 191; Ernst v. Hudson River R. R. Co., 24 How. 97 ; Nicholson v. Erie R. R. Co., 41 N. Y. 542 ; Baxter v. Troy and Boston Co., Id. 502 ; Hart v. Central Co. of N. J., 42 Id. 472 ; Griffen v. N.Y. C. R. R. Co., 40 Id. 34; Wilcox v. Rome, &c. R. R. Co., 39 Id. 358; Wild v. Hudson River R. R. Co., 29 Id. 315 ; Bunn v. Delaware, &c. R. R. Co., 6 Hun, 303; Wild v. Hudson River R. R. Co., 24 N. Y. 430, 442; Warner v. N. Y. Central R. R. Co., 44 Id. 465, 470 ; Meyer v. Clark, 45 Id. 285, 289). Third. The refusal to charge * the eighth request was error (Wilbrand v. Eighth Ave. R. R. Co., 3 Bosw. 314 ; Barker v. Savage, 45 N. Y. 191, 194; Suydam v. Grand St., &c. R. R. Co., 41 Barb. 377; Whittaker v. Eighth Ave. R. R. Co., 51 N. Y. 295, 299. See also Hegan v. Eighth Ave. R. R. Co., 15 Id. 382; Belton v. Baxter, 14 Abb. Pr. [N. S.] 404). The rule applicable to a person driving on the wrong side of the road is closely analogous. Although a person is not bound to confine himself to his proper side of the road, yet if he does not, he is bound to use a greater degree of caution than if he kept the proper side (Pluckwell v. Wilson, 5 C. & P. 375 ; 24 E. C. L. R.; Simonson v. Steltenerft, 1 Edmonds, 194). Fourth. The court also erred in refusing to charge the ninth request of the defendant. The request was in accordance with the rule laid down in Hegan v. Eighth Ave. R. R. Co., 15 N. Y. 380, 383; and Willbrand v. Eighth Ave. R. R. Co., 3 Bosw. 314. Fifth. The court also erred in refusing to charge the defendant’s tenth request (Wild v. Hudson River R. R. Co., 24 N. Y. 430, 442; Warner v. N. Y. Central R. R. Co., 44 Id. 465, 470; Meyer v. Clark, 45 Id. 285, 289).
    III. The court below, as we have shown, did not submit the question of contributory negligence to the jury in such a manner as to impress upon them properly the rule of law and the bearing of the facts in the case upon it. The jury overlooked, or entirely disregarded other parts of the charge, so that their verdict was against the charge as actually given. What is the duty of an appellate court upon such a state of facts has been very clearly laid down (Sheldon v. Hudson R. R. R. Co., 29 Barb. 226, 229; Haring v. New York & Erie R. R. Co., 13 Id. 380; Suydam v. Grand St., &c. R. R. Co., 41 Id. 380; Macy v. Wheeler, 30 N. Y. 231, 237).

      M. L. Townsend, attorney, and of counsel for respondent, among other things, urged :
    —I. The plaintiff had the right to be upon the track where he was, and to drive his wagon upon or across it, and it was as much the duty of the defendant to keep its car off the plaintiff’s wagon, as it was that of the plaintiff to escape being run over (Opinion of Earl, C.; Hegan v. Eighth Avenue R. R. Co., 15 N. Y. 380).
    II. It being plaintiff’s duty to turn his horse and wagon off the track when he saw or heard the car approaching, he had a right so to do, and to sufficient time for that purpose ; and it was the duty of the driver of the car to give him a reasonable opportunity to do so (opinion of Earl, C.); and in turning off the track the plaintiff was chargeable only with the exercise of that care, which, under similar circumstances, would be exercised by ordinary men ; quoted with approval by Lott, C., in Eaton v. Erie R, Co. (51 N. Y. 551): “If plaintiff uses ordinary care he cannot be deemed to have contributed to the negligence ” (Centee v. Furney, 17 Barb. 94, 97, and cases cited; Eakin v. Brown, 1 E. D. Smith, 36).
    III. None of the exceptions taken by the defendant’s counsel to the refusal of the learned judge to charge specifically as requested, were well taken. In considering these exceptions, we ask the court to examine the whole charge in connection with the several requests; keeping in view the following rule as laid down by the court of appeals in Sperry v. Miller, 16 N. Y. 413. “In considering whether a single proposition contained in a charge is erroneous, it is to be construed in connection with the context. The whole charge, or so much of it as is connected with and tends to modify or explain the part claimed to be objectionable, is to be considered in determining whether an error has been committed. Admitting that the part of the charge excepted to, when isolated from the context, is erroneous, yet a new trial is not to be granted for that cause, when it appears that the jury could not have been misled thereby.”
    IV. It was not error for the judge to refuse to charge the ninth request in the phraseology asked, and the exception to the refusal is not well taken. This request embraces three distinct propositions, and if either of them is not correct, it was not the duty of the court to charge as requested. The rule is stated in Carpenter v. Stillwell (11 N. Y. [1 Kern.] 79), as follows: “ That a request must be in such form that the judge may properly charge in the terms of the request without qualification” (Haggart v. Morgan, 5 N. Y. 422; Hunt v. Mayber, 7 Id. 266). 1st. We deny “That the defendant was entitled to the unrestricted use of its rails for the progress of its cars” (Baxter v. Second Avenue R. R., 3 Rob. 511 ; Hegan v. Eighth Avenue R. R., 15 N. Y. 380. See opinion of Monell, J., in the case at bar, 33 N. Y. Super. Ct. 188, overruling the dictum in William v. Eighth Ave. R. R. Co., 3 Bos. 320 ; Fettretch v. Dickinson, 22 How. Pr. 248). 2nd. We have shown that the plaintiff was not unnecessarily on the track.” 3rd. We deny the correctness of the proposition, that “if by reason of plaintiff’s being there the collision occurred, the plaintiff cannot recover, even though the conductor and driver of the car were negligent.” Surely a car-driver cannot with impunity, negligently drive over and injure a person, although such person may be for the moment unnecessarily on the track (Kenyon v. N. Y. C. & H. R. R. Co., 5 Hun, 479, and cases there cited ; Green v. Erie R. R. Co., 11 Hun, 333).
   By the Court.—Freedman, J.

—The issues were re-tried in strict conformity with the law as laid down by the majority of the commission of appeals in 65 JY. Y. 554. Under that decision the trial judge was not at liberty to grant a non-suit or direct a verdict for defendant. Whatever differences there were between the testimony of the last and the preceding trial, rather strengthened than weakened plaintiff’s case. All questions involved were, under the law laid down for the guidance of this court, fully and fairly submitted to the jury, and their verdict cannot be disturbed as being against the weight of evidence or excessive. 3N"or can I discover any error in the admission of evidence, or the refusals of the learned judge to charge -otherwise than he did charge, or the refusal to grant a new trial.

The judgment and order appealed from should be affirmed with costs.

Sanford, J., concurred.


source: Caselaw Access Project

author: By the Court.—Freedman, J.

license: Public Domain

text:
    MARTHA DIVINE RODERIGAS, Plaintiff and Appellant, v. THE EAST RIVER SAVINGS INSTITUTION, Defendant and Respondent.
    I. Administration, Letters of.
    1. JURISDICTION OF SURROGATES OF STATE OF NEW YORK, TO GRANT.

      (a) Depends on what.—On the surrogate’s judicial determination, made in a judicial inquiry before him, that death has occurred.
    1. What is not such determination and inquiry. (a) Where the surrogate signed forms of letters of administration in blank, and left them in charge of a clerk, appointed by him, who, on application being made to him for letters, filled up a blank form of petition therefor, caused the petitioner to sign the same, and swear to the same before Mm, passed on the sufficiency of the evidence, and then filled up one of such blank forms of letters, and either himself, or by another clerk, affixed thereto the seal of the surrogate’s court, and then delivered said form so signed in blank, so filled up, and so sealed, to the petitioner, upon the execution of the bond required by statute; the surrogate never having seen the petitioner, nor the petition, nor the blank form of letters after it had been filled out, and never having given any instructions as to said blank form so filled out, or as to the issuing letters on the estate of the person over whose estate said blank form so filled up purported to appoint an administrator; there is no such determination and, inquiry.

    Void. Such instrument so purporting to be letters of administration is void.
    2. RECITALS IN, NOT PRIMA FACIE EVIDENCE, WHEN.

      (a) Secital of death of party upon whose estate the letters purport to issue, is not prima fade evidence of a fact on which jurisdiction rests, and is not the recital of a jurisdictional fact.

    3. VOID LETTERS, WHO NOT PROTECTED BY.
    (a) Payment on the faith of letters void for want of jurisdiction to the person thereby undertaking to be appointed administrator of a debt due to, or money of, the alleged deceased, will not protect the party so paying, against an action brought therefor by the alleged deceased, he being,in fact still in life.
    H. Judicial powers and functions.
    1. DELEGATION OP. They cannot be delegated.

      {<£) Maxim. The maxim délegata potestas non potest delegári applies.
    1. Surrogate therefore cannot delegate the power to inquire and determine as to death.
    (5) Act 1850, chapter 201, effect of.
    1. It does not authorize the surrogate to delegate such power to his assistants, nor does it of itself confer such power on them.
    1. It merely confers on the surrogate's assistants the ministerial power of administering oaths, and does not confer an authority to make a judicial inquiry or render a judicial determination.-
    HI. Jurisdiction, want of.
    1. Effect of. Renders void the judgment of any court.
    2. Attaching for want of. He against whom a judgment is relied on, may attack it for want of jurisdiction, and show by evidence dehors'the record, the non-existence of jurisdictional facts, and this although the record, recites their existence.
    (a) The doctrine of Bolton ». Jacks (6 Bolt. 166), approved and sustained in this respect.
    IV. Surrogates’ courts.
    1. Nature of. They are courts of limited and special jurisdiction.
    2. Besult from this. The party (other than a ministerial officer) relying on its orders or decrees, has the burthen of proving the jurisdictional facts.
    3. Becitdl. When not prima facie evidence of jurisdictional facts.

    See Administration, Recitals, supra.

      Y. Process without jurisdiction.
    1. WHO PROTECTED BY.
    (a) Ministerial officers, who are bound by law to execute the process.
    1. The protection is confined st/ricthj to them.

      Decided January 7, 1878.

      2. WHEN PROTECTION AFFORDED TO THEM.

      (a) When the subject-matter of the suit or proceeding is within the jurisdiction'of the court issuing the process, and nothing appears on its face to show that the person was not also within it. '
    3. WHO NOT PROTECTED.
    See Administration, Void Letters, mpra.

    Before Sanford and Freedman, JJ„
    Appeal by plaintiff from judgment dismissing the complaint.
    On October 1,1867, plaintiff deposited with defendant $485 ; and on the same day she and her husband deposited with defendant in their joint names, the further sum of $485. Plaintiff and her husband had for many years prior to this resided, and carried on business, at Paradara, on the Island of Cuba; and these deposits were made while they were on a temporary visit to this country. Shortly after making the deposits they returned to their residence on the Island of Cuba, and resumed their business there. On March 4, 1871, plaintiff’s husband died at Paradara.
    On May 81, 1872, plaintiff demanded of defendant the said two deposits, and the interest thereon. Defendant refused to pay, on the ground, that it had already, on May 29, 1869, paid the same to one Isabella McNeil, upon the faith of a certain paper purporting to be letters of administration, issued on 2nd day of April, 1869, by the surrogate of the county of New York, to said Isabella McNeil, upon the goods, chattels, &c., of the plaintiff. Such paper recited that plaintiff departed this life intestate, at or immediately previous to her death an inhabitant of the county of New York, by means whereof the ordering and granting of letters of administration, etc., appertained to the surrogate of the county of New York; but did not recite that the surrogate had made inquiry as to the death of the plaintiff, and had determined that she was deceased.
    The case was tried once before, and plaintiff had judgment, the court, at special term, holding that the surrogate at common law had no jurisdiction to grant letters of administration on the estate of a person in being, and that the statutes of this State had not conferred such jurisdiction ; that the letters issued in the case were consequently void; and that, therefore, the fact of payment to the' person named in them as administratrix did not stand in the way of plaintiff.
    The general term affirmed this decision.
    On appeal to the court of appeals, the judgment was reversed and a new trial ordered (63 If. Y. 460); that court holding that jurisdiction depended, not on death in fact, but upon a judicial determination by the surrogate, upon a judicial inquiry had before him, that death had occurred ; and that, from the evidence as it stood in the then appeal book, it appeared that the surrogate had made such judicial determination as to the death of the plaintiff.
    On the re-trial evidence (which is particularly mentioned in the opinion), was given to the effect that the surrogate had made no such judicial determination.
    The plaintiff’s complaint was dismissed on the retrial, and an appeal was taken.

      Culver & Wright, attorneys, and S. Jones, of counsel for appellant, among other things, urged:

      —First. We presume it is not open to argue before this tribunal any of the questions which have been passed on by the court of appeals in this case; we do not, however, waive the points heretofore presented, but for ulterior purposes insist on them. Those points briefly are: (1) That at common law the surrogate had no jurisdiction over the estate of a person in being ; and consequently the letters of administration issued in this case were wholly void and did not stand in the way of plaintiff’s recovery. (2) That neither section 26, art. 2, title 2, chap. 6, part 2, M. /S'., nor any other law or act passed by the legislature of the State, or any proceeding had thereunder, gave, granted or vested in the surrogate any jurisdiction to grant letters of administration on the estate of a person in being, and that the surrogate did not and could not by any proceedings under any law or act of the said legislature, obtain j urisdiction to grant letters of administration on the estate of a person in being. (3) That any act or law passed by said legislature, assuming by its own force or by proceedings had thereunder to give the surrogate jurisdiction to grant letters of administration on the estate of a person in being, is unconstitutional.
    Second.—I. If the surrogate had no jurisdiction to issue the letters in question, they are wholly void, and a payment upon them does not stand in the way of plaintiff’s recovery. (1) This was determined by the general term of this court, and is not denied by the court of appeals.
    II. The court of appeals has, however, decided that a surrogate has jurisdiction to issue letters upon a judicial determination made by him, upon a judicial inquiry before him, that death has occurred; in other words, that the jurisdiction of the surrogate depends, not on death in fact, but on his judicial determination, made in a judicial inquiry before him, that death has occurred. • (1.) It follows that if no judicial inquiry has been had before the surrogate, and no judicial determination of death been made by him, the fact, on which the jurisdiction to issue letters depends, is wanting, and the letters are without jurisdiction and void, (a) It will not do to say that death has in fact occurred, for the jurisdiction under the court of appeals decision does not rest on that fact. (&) It will not do to say that sufficient facts, circumstances and evidence exist upon which the surrogate might determine in favor of death ; because the jurisdiction does not depend upon the existence of such facts, circumstances and evidence, but upon the surrogate’s judicial determination upon them, (c) It will not do to say that evidence of death satisfactory to a clerk in the surrogate’s office was presented to such clerk, and that such clerk acted thereon; because it is the judicial determination of the surrogate which is required—not that of a mere clerk. The power to be exercised is a judicial power, and cannot be delegated.
    Third.—Defendant’s counsel in the court below claimed that the action and proceedings had before the clerk were a sufficient compliance with the statute, and by virtue thereof there was jurisdiction to issue the letters ; and in support of the proposition he relied on Laws of 1850, ch. 201; Matter of Will of Daniel Clark, 1 Tucker, 119.
    I. As to the law of 1850 : it provides that the assistants appointed by the surrogate “ shall have power to administer and certify oaths and affirmations in all cases in which said surrogate is authorized to administer the same;” then provision is made for the collection of fees for the services performed under the act and the payment thereof into the treasury of the city and county of New York. (1) The authority to administer oaths and affirmations does not include or confer authority to make a judicial inquiry or render a judicial determination. (2) By section 62 of chap. 460 of the Laws of 1837, a surrogate was authorized to administer oaths in all cases where it might be necessary in the exercise of the powers and duties of such surrogate. (a) The power given to clerks by the law of 1850 is that given to the .surrogates by the act of 1837. It is mere ministerial power. (6) The surrogate is a constitutional officer and to be elected (Laws 1847, vol. 2, § 14).
    II. As to the case of Daniel Clark, 1 Tucker, 119. The surrogate in this case regards the functions which the act of 1850 authorizes the clerk to perform, as subsidiary, ministerial functions, and as intended to relieve the surrogate from the detail of mere clerical duty, {a) He intimates a doubt whether without this act the surrogate could delegate even ministerial functions.

    Fourth.—I. The want of a jurisdictional fact may always be shown to avoid a judgment, decree or other judicial or ministerial proceeding, even though the existence of such jurisdictional fact may be recited in the record (Bolton v. Jacks, 7 N. Y. Superior Court, 193 to 203, and cases there cited).
    II. In the court below defendant claimed that want of jurisdiction could not be shown, and relied on Martin v. Hood, 8 Johns. 45. 1. This case, so far as it tends to hold that want of jurisdiction may not be shown against recitals in the records, is clearly overruled by Bigelow v. Stearns, 19 Johns. 33; Bolton v. Jacks, supra, and cases there cited. 2. This case, however, does not sustain the proposition.
    III. But we are not compelled in this case to invoke the doctrine that recitals in a record of jurisdictional facts may be disproved. 1. The surrogate’s court is one of special and limited jurisdiction, and a party relying on any of its judgments, decrees or orders must show jurisdiction. Parol or other evidence outside of the record may be adduced in support of jurisdiction, and recitals in the record of jurisdictional facts are prima facie evidence thereof (see cases supra). 2. The jurisdictional fact in this case (under the decision of the court of appeals) is a judicial inquiry had before, and a judicial determination made by, the surrogate. 1. Defendant introduced no proof even tending to show this. 2. There is no recital of this fact in any record produced on the trial. 1. The letters of administration merely recite that Martha Devine departed this life intestate, (a) The court of appeals, however, has determined that jurisdiction does not depend on the fact of death. 2. Neither the letters of administration nor any other record contain a recital that the surrogate, on an inquiry had before him, had determined that Martha Devine had departed this life intestate, (a) The court of appeals has decided that the jurisdiction to issue letters depends on such a determination by the surrogate.

      J. W. C. Leveridge, attorney, and S. P. Nash, of counsel, for respondent, urged as follows :
    —This is a second trial of the case decided by the court of appeals in 63 N. Y. 460. The only new facts proved on the second trial, are that the proceedings in the surrogate’s, office, which the court of appeals held were a protection to the defendant paying over the money claimed under them, were had before the surrogate’s clerk and not before the surrogate himself. These facts cannot change the result. 1. The reason of the rule which confers protection upon parties obeying the judgments and process of courts of justice, is based on public policy. The protection does not depend upon the proper performance of his duties by the judicial officer, after he has acquired jurisdiction, and the court of appeals has held that the presentation of a proper application confers the jurisdiction. That tíie surrogate did not in person pass upon the application, does not impair the protection of a third person acting on the faith of the letters issued under the hand and seal of the surrogate, and all evidence on this subject should have been excluded (Savacoal v. Bougton, 5 Wend. 170; Stanton v. Schell, 3 Sandf. 323 ; Chegaray v. Jenkins, 1 Seld. 376). 2. The surrogate’s clerk has by statute powers which, when coupled with the surrogate’s own signature and seal, make the entire act that of the surrogate (Matter of Daniel Clarke, 1 Tucker, 119). The judgment should be affirmed, with costs.
   By the Court.—Freedman, J.

—The court of appeals has held that the surrogate, in granting lettters upon the estate of the plaintiff, who was not then dead, acted judicially ; that under the statutes of thM State, he had'jurisdiction to issue the letters upon a judicial inquiry and determination by him, that death had occurred; and hence, that the letters so granted protected the defendant as an innocent third party as to the amount paid to the administratrix on the faith of the letters, though they were, in fact, granted on false evidence.

This determination was made upon the construction of the statutes of this State regulating the jurisdiction and proceedings of surrogates’ courts, and it was held, that the said statutes furnish a complete system ; that in enacting the same, the legislature intended to confer upon surrogates’ courts sole and exclusive jurisdiction over the subject of granting letters of administration, and as part of that jurisdiction to determine, upon sufficient evidence, the facts upon which their action must rest; that, if the case be a proper one, the surrogate must act and issue letters ; and that thereupon the letters so issued are conclusive evidence of the authority of the administrator, until reversed on appeal or revoked.

The conclusion was reached by a vote of four to three, and in the prevailing opinion of Earl, J., it was conceded that the question decided was not free from doubt; that a decision either way would be confronted with some authority, and meet with some logical difficulties.

As far as it goes, the decision, rests upon the assumption that there was a judicial inquiry into, and determination of, the question of death, by the surrogate, in due course of judicial proceedings.

It has now been shown, however, and the court below has found as facts, that the'petition was presented, not to the surrogate, but to the clerk in the office of the surrogate, who was entrusted by the latter with the duty of entertaining such applications ; that said clerk drew up the petition, swore the applicant thereto, passed upon the sufficiency of the evidence presented, and thereupon either himself filled up, or caused another clerk to fill up, a printed blank form of letters of administration signed in "blank by the then surrogate of the city and county of Hew York ; that upon said blank being filled up, said first-named clerk attached thereto the seal of said surrogate’s court, and delivered the same to the applicant upon the execution by her of the bond required by statute ; and that the then surrogate of the county of Hew York neither saw the applicant, nor the petition, nor the letters of administration, after the same had been filled out as aforesaid, and gave no instructions in respect to or regarding the issuing of the said letters. ’

Upon these facts and findings, which were not before the court of appeals, and plaintiffs’ exceptions to the main conclusions of law found by the learned judge below, two important questions arise,—namely, first, as to the competency of the testimony establishing these facts, and secondly, as to the effect to be given to the facts as found.

As to the competency: The court of appeals having held that the jurisdiction to issue letters in this case depended, not on death in fact, but on the judicial determination of the surrogate, made after a judicial inquiry, that death had occurred, it seems to follow as a logical and necessary conclusion, that if there were no such judicial inquiry and determination, the fact on which the jurisdiction to issue the letters depends, is wanting, and the letters are without jurisdiction, and void.

Such want of jurisdiction may be shown by proof outside of the record, for no court, no matter how general its jurisdiction may be, which proceeds without jurisdiction in a particular case, can make a valid record, or confer any rights.

In Bolton v. Jacks, 6 Robt. 166, in which case the authorities on this point were examined by this court with great particularity, the rule was stated as follows : “Want of jurisdiction will render void the judgment of any court, whether it be of superior or inferior, of general, limited or local jurisdiction, or of record or not; and the bare recital of jurisdictional facts in the record of a judgment of any court, whether superior or inferior, of general or limited jurisdiction, is not conclusive, but only primafacie evidence of the facts recited; and the party against whom a judgment is offered, is not, by the bare fact of such recitals, estopped from showing, by affirmative facts, that they were untrue.”

In Boiler v. The Mayor, &c., 40 N. Y. Superior Ct. 523, this court was called upon to, and did, re- • examine the rule thus laid down, in the light of the criticism which Bolton v. Jacks had undergone in the court of appeals in the case at bar, and the conclusion was reached that, though the soundness of the decision was impugned in so far as it proceeded upon the assumption that the habitation of a testator at the time of his death was a jurisdictional fact, which, if erroneously decided by the surrogate in admitting a will to probate, might be collaterally attacked, the correctness of the rule itself, as above stated, was not questioned.

It having therefore been already decided that there is nothing in the language of the court of appeals in the case at bar inconsistent with the general doctrine of Bolton v. Jacks, the case last referred to must be considered as a controlling authority in favor of the competency of the testimony adduced by the plaintiff in opposition to the letters relied upon by the defendant.

As to the effect of the testimony: Surrogates’ courts are courts of limited and special jurisdiction, and yet their jurisdiction to grant administration upon the estates of deceased persons is general and exclusive.

With respect to courts having general jurisdiction, the intendment of law is always in favor of the validity of their judgments. In regard to tribunals of limited and special jurisdiction there is no such intendment, and every fact necessary to uphold their jurisdiction must either appear by the record, or be affirmatively shown by evidence aliunde. In either case the bare recital of jurisdictional facts in the record is not conclusive, but only prima facie evidence of the facts recited.

In the present case the defendant introduced no proof outside of the record relied upon showing a judicial inquiry and judicial determination, and of the record the letters of administration simply recite the fact that Martha Divine departed this life intestate, which is not enough, as it has been determined that jurisdiction does not depend upon the existence of that fact, but upon a judicial determination of it made in the course of judicial inquiry.

This record and all presumptions properly arising therefrom, if any, the plaintiff meets with proof showing that whatever inquiry was made, was made, not by the judicial officer clothed with the powers of the surrogate, but by his clerk ; that whatever determination was had, was made in the like manner ; and that all this was done by said clerk, in the absence of the surrogate and without consultation with or instructions from him so far as this particular case is concerned.

Even if it be claimed, therefore, that as regards the letters in question the same presumption attaches as to jurisdiction and regularity that attaches in any other case to the judgment record of a court of original and general jurisdiction,—and this is the theory most favorable to the defendant,—the presumption,. it seems to me, has been completely destroyed by affirmative and uncontradicted testimony to the contrary.

I concede that if the proof simply showed an erroneous or negligent or improper performance by the surrogate of his duty after he had acquired jurisdiction, the letters so issued would be good iñ law.

But the proof goes beyond that. It shows that he did not act judicially at all; that he refused to act in such cases ; that he considered the examination of the petition a mere ministerial function, and that he delegated that function to the clerk. Such delegation might not be open to legal objection, if the jurisdiction of the surrogate in issuing letters depended, as has been heretofore supposed, on the fact of death. But as the court of appeals has determined that the surrogate must act judicially, and that his jurisdiction in issuing letters depends upon a judicial determination to be made by him in the course of a judicial inquiry, the delegation of power referred to cannot be sustained, any more than the practice could be sustained, if the judges of a court of original and general jurisdiction were to authorize the clerk of their court, upon presentation of applications sufficient in form, to pass upon the sufficiency of the evidence produced, and the sureties offered, and if deemed sufficient, to fill up and issue orders of arrest, injunction, appointment of Receivers, and warrants of attachment,'Kyrhich had been previously signed by them in blank.

Judicial power cannot be delegated, because it involves the exercise of judgment and discretion (Powell v. Tuttle, 3 Comst. 396.; Keeler v. Frost, 22 Barb. 400).

True, a rrimisterial officer is protected in the execution of process whether the same issue from a court of limited or general jurisdiction, if the subject-matter of the suit is within that jurisdiction, and nothing appears upon the face of the process to show that the person was not also within it, although the court have not, in fact, jurisdiction in the case (Savacool v. Boughton, 5 Wend. 171). And in Chegaray v. Jenkins (1 Seld. 376), this principle was extended to a constable acting under a warrant in due form, issued by the receiver of taxes of the city of New York, and directing the collection of a tax.

But this protection is confined strictly to ministerial officers who have no discretion, but are bound by law to execute the process entrusted to them. As to all other parties, the record, and the process issued thereon, may be impeached for want of jurisdiction. In Stanton v. Schell (3 Sandf. 323), cited by defendant’ s counsel, the judge had acquired jurisdiction under the non-imprisonment act, and hence it was held that subsequent errors of judgment did not oust him of his jurisdiction, nor subject him or the applicant to an action of trespass or false imprisonment.

It is insisted, however, that the proceedings before, and the action by the clerk in question, coupled with the surrogate’s own signature and seal, were a sufficient compliance with the statute; and in support of this proposition reference is made to ch. 201 of Laws of 1850. By that statute power is conferred upon the assistants appointed by the surrogate of the city and- county of New York, to administer and certify oaths and affirmations in all cases in which said surrogate is authorized to administer the same. By § 62 of ch. 460 of the Laws of 1837 a surrogate was authorized to administer oaths in all cases where it might be necessary in the .exercise of the powers and duties of such surrogate, and the power given to the assistants or clerks named in the statute of 1850 is that given to the surrogates by the act of 1837. It is a mere ministerial power, which was conferred for the purpose of relieving the surrogate of the city and county of New York from the detail of mere clerical duty, and that is the extent of it as construed by the surrogate himself in the case of Daniel Clarke (1 Tucker, 119). But it does not include or confer authority to make a judicial inquiry or render a judicial determination.

The surrogate of the city and county of ¡New York is a constitutional officer, and to be elected. No provision of law exists which enables him to delegate his judicial functions to subordinates, nor can any existing statute be construed to work that result.

The case as now presented differs from that presented to the court of appeals in the particulars herein discussed, and the judgment appealed from cannot be sustained upon the facts as found.

The judgment should be reversed and a new trial ordered with costs to the appellant to abide the event.

Sanford, J., concurred.

       The criticism here alluded to is to found in Judge Earl’s opinion (63 N. Y. 469), and is as follows: “In Bolton v. Jacks (6 Robertson’s Sup. Ct. R.), there is a learned discussion of the question of the jurisdiction of courts, and it was there held that if a surrogate admitted to probate a will of a testator, not at the time of his death an inhabitant of his county, he acted without jurisdiction, and that his proceeding was void and could be attacked collaterally. I believe the decision to be unsound in this respect.”
      It may be suggested that neither the reasoning which led the learned judge to the conclusion he arrived in the case then under consideration by him, nor the principle on which the decision of that case rests, affords ground for the criticism.
      The case of Roderigas turned upon and was decided wholly on the effect of' section 26, art. 2, title 2, chap. 6, part 2, R. S., which the court held invested the surrogate with power to judicially inquire and examine as to the death of any person upon whose estate letters of administration were applied for, and to judicially determine as to such death; and that his judicial determination of death was conclusive, even though the fact were otherwise. The court, agreed that were it not for this section and the effect given it, jurisdiction would depend on death in fact.

      This section of the R. S. has no application to the proof of wills.
      The provision concerning the proof of wills is to be found in chapter 460 of the Laws of 1837, at p. 524.
      Neither in that chapter nor in any other statute, is there any section or provision requiring the surrogate to inquire into the habitancy of the testator, or imposing on him any duty to make such inquiry, or authorizing or requiring him either to examine witnesses on that subject or to subpoena, or authorizing or requiring him to make any determination on that subject.
      It would seem that a decision and reasoning founded on said section 26 of the R. S. cannot affect or impugn a decision made in a case to which that section has no application, and as to which there is no similar provision.

      Note.—This case having attracted so much attention in legal circles, and the decision of the court of appeals having' been reviewed in the American Law Review, vol. 10, No. 4, p. 787, and also in the American Law Register, N. S., vol. 15, p. 312, it has been deemed proper to publish with the foregoing general term opinion, the special term opinion rendered on the first trial of the cause, which was concurred in by the general term, it not having been heretofore published.
      The following is the opinion:
      “Speer, J.—The question in the case is, Had the surrogate jurisdiction to grant ,the letters of administration which protect the defendants in making the payments to Isabella McNeil ? The only justification for doing so as claimed is, that they paid upon the strength of the letters issued by the surrogate of the city and county of New York. It must be conceded if he had no jurisdiction it would be no protection.
      ‘1 The defendants claim through their counsel, in order to sustain the surrogate’s jurisdiction for their protection, chiefly upon the ground that the State appoints, by judicial authority, certain persons, who upon the death of an' individual, administer upon his personal property, and although the State does not profess to administer it unless the individual be in fact dead, there are many cases where the question of death, like other questions of fact, is difficult of ascertainment, and that in such cases it is within the legitimate province of the State, on presumptive proof of death, to authorize administration on his estate, establish, tribunals to take such proof, providing safeguards sufficient to make the sanction of its judicial authority a protection to third parties.
      “They claim that the State of New York has done this, and the cases at bar are to be determined by its statutory law alone.
      “Section 26, article 2, title 2, ch. 6, vol. 2, R. S. (Edmonds' Ed.) p. 75, is relied on. ‘ Before any letters of administration shall be granted on the estate of any person who shall have died intestate, the fact of such person dying intestate shall be proved to the satisfaction of the surrogate, who shall examine the persons applying for such letters on oath touching the time, place, and manner of'the death, and whether or not the party dying left any will; and he may also in like manner examine any other person, and may compel such person to attend as a witness for that purpose.’
      “Again, it is provided that ‘the letters testamentary and of administration and letters appointing a collector, granted by any officer having jurisdiction, shall be conclusive evidence of the authority of the persons to whom the same may be granted, until the same shall toe reversed on appeal, or revoked as in the chapter provided ’ (2 R. S. 80, § 56).
      “In section 26 it is assumed by the very letter of the statute, that the proceedings take place only when ‘ any person shall have died intestate, ’ the fact of such person dying intestate shall be proved to the satisfaction of the surrogate.
      “The court is not authorized to act except when the fact exists that the person shall have died intestate.
      “The court is set in motion by the admitted jurisdiction that such person has died intestate, and the proceedings are carried forward only upon that assumption. So in section 56, the proviso is that certain letters issued by an officer having jurisdiction shall be conclusive, &c. This the defendant’s counsel says means 1 granted by the proper officer, and on proper proceedings taken before him, and if it means that the letters are a protection only in case the proof before the surrogate was conclusive, the section is useless.’
      “With great respect I think the learned counsel assumes the premises for the sake of his deduction—jurisdiction here is conceded, and therefore the surrogate is authorized to issue certain letters, but it does not follow that he has authority to issue them under all circumstances, and much less where he has not the acquired jurisdiction. Nor, in logical terms, can the section be said to be useless, for the court acting within the sphere of its original authority, the letters issued by an officer acting under such authority should be taken r.s conclusive, both as a useful and orderly proceeding on well settled principles.
      “Section 47, 2 R. S. 70, is claimed to cover the whole ground assumed by the defendants. It is in the words following : ‘ All sales made in good faith, and all lawful acts done either by administrators before notice of a will, or by executor's or administrators who may be removed or superseded, or who may become incapable, shall remain valid and shall not be impeached on any will afterwards appearing, or by any subsequent revocation or superseding of the authority of such executors or administrators.’
      “ This section, like all others on this subject, is founded upon the fact that the surrogate shall and must have jurisdiction over the subject matter before he could deliberate on the case.
      ‘1 The proper surrogate obtains control over the personal estate of deceased persons only upon their death. y
      ‘ ‘ He acts upon the estate, either through administrators according to the statute of distributions, or through executors according to the provisions of a will.
      “ Having acquired jurisdiction by the event of death, the "question whether there was a will or not as determining the mode of distribution, falls within his province, and his action either in granting letters of administration or probating a will, as the case may be, cannot be attacked collaterally. By the actual facts of death and inhabitancy, the surrogate acquires jurisdiction over the whole subject; and his actionin granting letters of administration cannot be attacked for want of jurisdiction. In case of a will being subsequently proven, relief tiould be obtained by application to the surrogate himself for a revocation of the letters of administration, in which case, as the grant of letters of administration was avoidable only, the acts done under it would be valid. In Prosser v. Wanger, 1 Com. B. N. S. 289, both the death of the party and the granting the letters by the proper officer was conceded. See also Sheldon v. Wright, 5 N. Y. 497, as to the necessary result of the principles there laid down. The statute of 1870, 1 Laws of 1870, p. 826, is also referred to as sustaining defendant’s position. "He claims that it being remedial it may well retroact.
      “ The answer to this is, that ‘All lawful orders and decrees in proceedings in the surrogate’s court . . . and the objection of want of jurisdiction, except by appeal in the manner prescribed by statute, &c.,’ relate only to the case where such original jurisdiction has been acquired, and is to be construed in harmony with other statutes on the subject (1 Kent’s Com. p. 524, 525, 10 Ed.) I hope to show presently it is not in the power of the legislature to confer jurisdiction on a surrogate over the estates of a living person.
      “In the case at bar the parties not being dead, all the proceedings were totally void, and consequently the payment to an executor or administrator appointed where the supposed testator or intestate Is alive, would not be a discharge of the debt.
      “I think it may well be conceded that upon evidence being furnished, according to the rules and principles of evidence and the law, establishing the fact of death and of intestacy, the surrogate would be bound to Issue letters, but this is done at the peril of the applicant in case death should not in fact have occurred. But as already shown, a compliance with such duties never, by the statutes of this State, gives him jurisdiction when the supposed intestate or testator was in actual being. The surrogate must always inquire and decide whether the person whose estate is to he committed to the care of others be dead or in life. Yet, bis decision that the person ■on whose estate he acts is dead, if the fact be otherwise, does not invest the person he may appoint with the character or power of an administrator. The case is not within his' jurisdiction (Griffith v. Frazer, 8 Cranch, 9, Opinion of Marshall, C. J.).
      “ The defendants’ counsel’s position is, that admitting there are cases in the hooks to the effect that administration granted during the lifetime of a person upon Ms estate is void, because the ecclesiastical courts have jurisdiction only in the estate of dead persons (Allen v. Dundas, 3 T. R. 125 Griffith v. Frazer, 8 Cranch, 24), yet they do not override the statute of New York, which provides for a judicial inquiry into the fact of death, and that there is Ho New York ease which decides otherwise.
      “ I think the assertion too broad and not well considered. Sections 3 and 5 of chapter 79 of the Laws of 1813 (Laws 1813, p. 445) are analogous to those before cited. Section 5 of the act of 1813 is in substance the same as section 26 of R. S. In fact, the act of 1813 goes further than the R. S., for it requires in express terms that satisfactory proof shall be made of the death of the party, as well as that he died intestate, while R S. does not require proof of the death of the party except as going to establish the fact required to be proved,— that is, that the party died intestate.

      “ The court of appeals held, in Sheldon v. Wright, 5 N. Y. 497, 510-512, that this provision in section 5 of the act of 1813 was merely directory, and did not affect the surrogate’s jurisdiction, but that Ms jurisdiction depended on the actual existence in fact, first?, of the death of the person, and, second, that at bis death he was an inhabitant of the county in which the surrogate who issued the letters was empowered to act. It clearly appears by reference to sections 3 and 5 of the act of 1813, that upon the existence of the above "two facts, the same surrogate, who would, in case there was no will, have power to grant letters of administration, would, if there were a will, have power to probate it and issue letters testamentary thereon. In Sheldon v. Wright, the non-existence of a will is not put as one of the facts on the actual existence of which the jurisdiction to issue letters of administration depends, and the actual existence of the will is not one of the facts on which the jurisdiction to admit a paper purporting to be a will to probate, and to issue letters testamentary thereon, depends. If neither one of the above two matters does not aetualbj exist as matters of fact, the surrogate is without jurisdiction, while if both do exist as matters of fact, the same surrogate has complete jurisdiction over the whole subject, either to grant letters of administration or letters testamentary, as the case may require, and his action in granting one or the other could not be attacked for want of jurisdiction, but could be reversed or modified only by a court of review or in pursuance of sound statutory remedy. See decision of the case of Sheldon v. Wright, by the learned judge in Bolton v. Jacks, 6 Robertson, 281-232.
      “The above provisions of the Revised Statutes did not cover the case of a will, but the act of 1837 did, and the two together give to the surrogate precisely the same jurisdiction as the act of 1818, with but one substantial difference, viz., the act of 1813 gives no jurisdiction to grant letters of administration, or to admit wills to probate in certain cases when the decedent was not an inhabitant of this State.
      “ The additional clauses in section 26 of Revised Statutes respecting the examination of a party on oath, and the subpoenaing and compelling the attendance of witnesses, are merely express enactments of power implied in the direction given by section 5 of the act of 1813, being necessary to a compliance with such direction (1 Kent's Com. 525, 10th Ed.). The case of Sheldon v. Wright seems to me to be an exposition of the law of this State on this subject, and .controlling over the case at bar.
      “At common law, administration 'granted upon the estate of a person in life was wholly void, even though granted by a court which had full power and jurisdiction over the granting of letters of administration (Allen v. Dundas, 3 T. R. 125 ; Griffith v. Frazer, 8 Cranch, 1 ; Joachimson v. Suffolk Savings Bank, 3 Allen, 87).
      “ The above and cases therein cited are directly in point. The case in 3 Allen rests its decision upon the principles of the English laws, and does not depend upon any peculiar statute. The cases of Carter v. Buchanan, 2 Kelly, 337 ; Noel v. Wells, 1 Lewis, S. R. 235, and Prosser v. Wagner, 1 Com. B. N. S. 387, referred to by the defendant’s counsel, do not apply the case at bar. The party, whose will was offered for probate, being conceded to be dead, the question whether the paper propounded was his will or not, was the question which the court was authorized to determine.
      “ It is difficult to break the force of the case of Joachimson v. Suffolk Savings Bank, as bearing directly on the case at bar, and it furnishes a direct adjudication in favor of the plaintiff’s recovery. Neither the legislature nor the courts have power to confer jurisdiction on surrogates over the estates of living persons. The foundation of the theory of distribution of estates, whether under statutes of distribution or according to provisions of wills, rests upon the event of death. ‘ No person shall be deprived of life, liberty or "property without due process of law, nor shall private property be taken for public use without just compensation.’ The substance of these provisions have been incorporated in all our State constitutions. They are simple and comprehensive, and I do not perceive that they derive any additional force or meaning by any historical review of the many learned disquisitions of jurists on the causes and sources of their origin. These provisions mean, that whenever the citizen acquires rights under the existing fundamental law, there is no authority given to the law-making power to take them away. In this State, as in others, they are imposed as restraints upon the legislature, and whenever the rights of property are admitted to exist, the legislature cannot say they shall exist no longer, nor will it make any difference, even though a tribunal like the surrogate’s court should be appointed to pronounce the judgment. Bronson, C. J., in Taylor v. Porter, 4 Hill, 146, says : 1 It must be ascertained judicially that he (the citizen) has forfeited his privileges, or that some one else has superior rights to the property ho possesses, before either of them can be taken from him. It cannot be done by mere legislation.’
      “I cannot find any definition of property which does not include . the power of disposition and sale as well as the right of private use and enjoyment. Blackstone says (1 Com. 138) ; ‘The third absolute right of every Englishman is that of property, which consists in the free use and enjoyment and disposal of all his acquisitions without any control, or diminution, save only by the laws of the land.’ Chancellor Kent says (3 Com. 320) : ‘ The exclusive right of using and transferring property follows as a natural consequence from the perception and admission of the right itself ; ’ and, again (p. 326) : ‘ The power of alienation of property is a necessary incident to the right, and was dictated by mutual convenience and mutual wants.’
      “The object of the constitution is not to grant legislative power, but to confine and restrain it; without the constitutional limitation, the power of the legislature to make laws would be absolute.
      “It follows, from these elementary principles, that property is sacred and inviolable in the possession of living persons, and is equally so by transmission on their death, whether by will or intestacy.
      “ The power of the legislature to confer on a surrogate any jurisdiction over the estate of a living being, comes within the constitutional prohibition, and is absolutely void, and no act of the legislature can give it validity.
      “The plaintiff must have judgment for the amounts claimed in both cases, and interest, with costs.