text:
    The People of the State of New York ex rel. The Edison Electric Illuminating Company of New York v. Edward Wemple, Comptroller of the State of New York.

      Corporation Tax Act — voluntary payment under a mistake of law — there cam be no resettlement by the Comptroller.

    Section 19 of chapter 542 of the Laws of 1880 (the Corporation Tax Act), added by chapter 463 of the Laws of 1889, does not authorize or require the Comptroller of the State of New York to resettle and revise a tax assessed by the Comptroller upon the report of a corporation voluntarily made and filed by it in the Comptroller’s office, the tax upon which has been voluntarily and without objection paid into the State treasury by the corporation, with a full knowledge of the facts, but under a mistake of law (as subsequently dis closed by the courts) as to its liability to pay the tax-.
    Certiorari to review a determination of the Comptroller of the State of New York in relation to the assessments for the three years ending November 1, 1888, of taxes against the relator. The writ was issued pursuant to an order made at the New York Special Term, January I, 1891.

      W. Laird Coldsborough, for the relator.

      S. W. Mosendale, Attorney-General, and John W. Hogan, for „ the respondent.
   Mayham, P. J.:

This matter comes before this court upon the return to a writ of certiorari granted to review the determination of the Comptroller denying the application made by the relator for the revision and resettlement of a tax.

The relator is a domestic corporation organized under chapter 37 of the Laws of 1848, entitled An act to authorize the formation of gas light companies,” and the various acts of the Legislature amendatory thereof.

The taxes sought to be reviewed were imposed by the Comptroller for the years 1886, 1887 and 1888.

The tax assessed for 1886 was paid by the relator into the State treasury in 1887, and that for 1887 was in like manner paid in 1888, and that for 1888 was paid in 1889.

These taxes were all based upon the report which the relator made to the Comptroller each year, and were paid without objection by the relator.

On the 8th of July, 1890, the relator made an application to the Comptroller for a resettlement and revision of these taxes, and accompanied the same by affidavits in support of such application; affidavits were also filed in opposition to such revision on the part of the State, and on the 26th of November, 1890, the Comptroller made an order denying such revision and readjustment, and for such denial and refusal the relator, on the 7th day of January, 1891, sued out this writ.

The question whether a tax such as was levied and paid in this case is a legal and valid tax lawfully levied and assessed by the Comptroller, is no longer an open one, as the Court of Appeals in the case of The People ex rel. The Edison Electric Illuminating Co. v. Wemple (129 N. Y. 664), expressly held that such company was a manufacturing company, and as such exempt from this tax under section 3 of chapter 542 of the Laws of 1880.

The opinion in this case was announced January 20,1892, reversing the decision of the General Term of the Supreme Court, announced in July, 1891, wherein it was held that the relator was not entitled to exemption from tax as a manufacturing corporation, so that at the time of the Comptroller’s refusal to readjust this tax the decisions of this court had declared the relator subject to the tax, and the Comptroller would seem at that time to have been bound by that decision, and it is insisted by the defendant that a succeeding Comptroller would not he authorized to revise or review the determination of the former Comptroller upon application for revision. (People ex rel. American Surety Co. v. Campbell, 64 Hun, 417.)

But the main contention on the part of the defendant is that the payment of this tax into the State treasury was a voluntary payment by the relator of a tax assessed by the Comptroller upon a report voluntarily made to him by the relator, and that the l’elator is, therefore, estopped by its own voluntary acts from asking a readjustment and revision of this tax by the Comptroller.

In answer to this contention it is urged by the relator that section 19, added to chapter 542 of the Laws of 1880 by chapter 463 of Laws of 1889, provides that “ the Comptroller may at any time revise and readjust any account theretofore settled against any * * * corporation * * * by himself or any preceding Comptroller for taxes arising under this act, or the act to which it is an amendment, whenever it shall be made to appear by evidence submitted to him, that the same has been illegally paid or so made as to include taxes which could not have been lawfully demanded.”

Does this section and the adjudications under it authorize and require the Comptroller to resettle and revise a tax assessed by the Comptroller upon the report of a corporation voluntarily made and filed by it in the Comptroller’s office, and the tax upon which has been voluntarily and without objection paid into the State treasury ?

This question has not been answered by any adjudication to -which our attention has been called. The principal point discussed and decided in the case of People ex rel. America Contracting & Dreding Company v. Wemple (60 Hun, 225), was as to whether the limitation as to the time of applying for revision imposed by section 17 of chapter 501 of Laws of 1885, was modified by section 19 and section 20 of chapter 463 of the Laws of 1889, and the court held that it was so modified and enlarged.

But the precise question raised in this case was not involved in that determination, nor was it raised or determined in People ex rel. Edison Electric Illuminating Company v. Wemple, Comptroller (129 N. Y. 665), to which we are referred by the relator.

In that case the relator had made no report for the years for which the tax was imposed, and the Comptroller caused an investigation into its affairs, and on such investigation settled an account against it for taxes and penalties which the relator paid into the treasury without any warrant being issued for its collection, and thereupon applied to the Comptroller for a revision, which was refused, and the relator then sued out a certiorari.

The payment of the tax in that case was a necessary prerequisite to the granting of the certiorari, and the payment of the tax under such circumstances could not be regarded as a voluntary payment.

The tax was assessed without the relator’s report or consent, and was paid, not as an evidence of any acquiescence in its imposition, but for the purpose of enabling the relator to review and reverse the action of the Comptroller on certiorari. What was said, therefore, by the Court of Appeals in 133 N. Y. 618, must be understood as relating to the facts of that case as it was then before the court, only on motion to amend the remittitur so as to give effect to the decision of the court as reported in 129 N. Y. 665.

We are, therefore, to consider the effect of the relator’s voluntary report to the Comptroller and payment of this tax to the State treasury without objection, unaided by any decisions of this court or the Court of Appeals on that subject. The petition asks that the taxes assessed upon the relator’s report and paid by the relator be set aside.

The granting of that relief, as this money was paid into the State treasury, would in effect make the State the debtor of the relator, and while the court would be without authority to direct its reimbursement, and the Comptroller would have no power to pay back the money (People ex rel. Edison Electric Illuminating Co. v. Wemple, 133 N. Y. 617, supra), it would become the duty of the Comptroller to credit the relator in account with the money so paid, as provided by added section 19 of chapter 542 of the Laws of 1880, as amended by chapter 463 of the Laws of 1889, and thus a duty would be imposed upon the Legislature to provide by law for payment to the relator out of the State treasury the amount of such tax.

This would be a circuitous method of allowing the relator to recover back from the State money voluntarily paid by it into the State treasury.

I do not think that chapter 463 of the Laws of 1889, amending chapter 542 of the Laws of 1880, capable of that construction. Section 2 of that amendatory act, in substance, if not in terms, seems to forbid that construction.

As we have seen, this payment by the relator was clearly a voluntary payment. The payment was made by the relator with a full knowledge of all the facts.

The relator assumed that it was its duty to make a report to the Comptroller, and voluntarily made such report, and as that report assumed the relator’s liability to pay a tax as a corporation, the Comptroller imposed the tax in accordance with and in pursuance of the report, and the relator voluntarily paid the same. If the tax thus voluntarily paid by the relator was not authorized by law, then its payment by the relator was under a mistake of law and not of fact, and the law, under such circumstances, will not aid the relator in recovering it back, even though the assessment was upon property not subject to taxation, and, therefore, illegal.

The report to the Comptroller gave him jurisdiction both of the relator and subject-matter, and facts not disclosed by the report which might render the relator non-taxable, would not necessarily render the assessment void.

The rule of law in relation to voluntary payment of taxes is the same as that in other cases of voluntary payment, and when a tax is voluntarily paid by a party, without any duress or compulsion, the money cannot be recovered back, even though the person paying the same, with a full knowledge of the facts, believes that he is legally bound to pay the same. Such mistake of law furnishes him no ground for relief.

Upon this subject Judge Cooley, in his work on Taxation, uses this explicit 'language : “Everyman is supposed to know the law, and if he voluntarily makes a payment which the law would not compel him to make, he cannot afterwards assign his ignorance of the law as the reason why the State should furnish him with legal remedies to recover it back. Especially is this the case when the officer receiving the money, who is chargeable with no more knowledge of the law than the party making payment, is not put on his guard by any warning or protest, and the money is paid over to the use of the public in apparent acquiescence in the justice of the exaction.” And the learned author adds : “ The rule of law is a rule of sound public policy also; it is a rule of quiet as well as of good faith, and precludes the courts being occupied in undoing the arrangements of parties which they have voluntarily made and hito which they have not been drawn by fraud or accident or by any excusable ignorance of their legal rights and liabilities.” (Cooley on Taxation [2d ed.], 809, 810.) ' .

In Bailey v. Buell (50 N. Y. 662), the plaintiff sued the assessor for damages for an illegal assessment, he being a non-resident. He paid the tax, however, on being served with an order of the county judge in proceedings under chapter 361 of the Laws of 1867, directing him to pay or execution would issue. Held, that the order of the county judge was void, and that the payment was, therefore, not compulsory, or made under legal duress, but was voluntary, and that the plaintiff could not recover.

In Phelps v. The Mayor of N. Y. (112 N. Y. 216), it was held that when an ordinance directing a local improvement in the city is on its face illegal and void the payment of an assessment without coercion for the expense incurred under its authority is a mistake of law, and, therefore, a voluntary payment, and the sum, paid cannot be recovered back.

In this case Cray, J., says: She was under no compulsion to pay the assessment; for there was concededly no dure.ss of person or goods, and the payment was not forced by warrant or seizure. We do not understand that the rule goes further in its authority to permit of a recovery back of moneys paid by a person under a tax or assessment than in a case where its payment being compelled by an actual or threatened seizure of his person, or divestiture of his goods, he asserts by action, and successfully maintains its illegality.”

In Redmond v. Mayor, etc., of New York (125 N. Y. 636), Gray, J., in discussing this question, says : The long-established and well-recognized rule on the subject of voluntary payments is that when made with knowledge of the facts, and not induced by the fraud of the other party, they are beyond recall in law.” (Brisbane v. Dacres, 5 Taunt. 143 ; Sillimam v. Wing, 7 Hill, 159; Preston v. Boston, 12 Pick. 14; Peyser v. Mayor., 70 N. Y. 496, Phelps v. Mayor, 112 id. 216.)

Within all the authorities we think the payment of this tax was a voluntary payment by the relator, with full knowledge of the facts, without fraud on the part of the Comptroller or other officers of the State, and without coercion or duress, and as these proceedings by certiorari are in the nature of proceedings to recover back the money thus voluntarily paid they cannot thus be maintained.

The decision of the Comptroller refusing to resettle this tax is confirmed, and the certiorari quashed, with fifty dollars costs and printing disbursements.

Putnam and Herrick, JJ., concurred.

Decision of Comptroller confirmed and certiorari quashed.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    John P. Felts and William B. Collins, Respondents, v. Lester Clapper, Appellant.

      Goods sold and delivered — affirmative of the issue — questions for the jury.

    When, in an action brought to recover for goods sold and delivered, the answer contains a general denial of the allegations of the complaint and puts in issue the question of sale and delivery as well as that of price and payment, the plaintiff has the affirmative of the issue, and is entitled to open and close the-case
    When the evidence upon a disputed question of fact is sufficient to sustain th'e verdict of a jury on such disputed fact, it is the duty of the trial court to submit such question of fact to the jury.
    Appeal by the defendant, Lester Clapper, as stated in the notice thereof, from a judgment of the County Court of Columbia county, entered in the office of the clerk of that county on the 21st day of June, 1892, affirming a judgment of a justice of the peace in favor -of- the plaintiffs ; also from the order of the Columbia County Court affirming a judgment entered by C. G. Yan Aistyne, justice of the peace, on the 6th day of June, 1891, and also from the said judgment granting and allowing John P. Felts and William B. Collins, respondents, twenty-seven dollars and sixty -eight cents costs against the appellant, Lester Clapper; also from all of the judgment entered in this action in the office of the clerk of Columbia county on the 21st day of June, 1892.

      E. R. ELa/rder, for the appellant.

      E. R. Peclf. and W. C. Paly, for the respondents.
   Mayham, P. J.:

-This is an appeal from the judgment of the County Court of Columbia county affirming the judgment of a justice of the peace.

The first point made by the appellant is, that the justice erred in refusing to permit the defendant to open and close the case on the grounds that he had the affirmative of the only issue. The action was to recover for goods sold and delivered, and the answer contained a general denial of the allegations of the complaint, and put in issue the question of sale and delivery as well as that of price and payment.

Upon the pleadings, therefore, the plaintiff had the affirmative of the issue, and the justice was right in giving him the right of open* ing and closing the case.

It is also objected by the appellant that there was a misjoinder of parties plaintiff, and that for that reason the justice erred in not nonsuiting the plaintiff on the trial. There was some evidence that the plaintiffs owned the property sold, and for which this action was prosecuted, together, and enough, I think, to uphold the verdict of the jury upon that subject; and, the rule is universal that when . the evidence upon a disputed question of fact is sufficient to sustain the verdict of a jury on such disputed fact, it is the duty of the trial court to submit such question of fact to the jury.

: I think that that question was one of fact in this case, and was, therefore, properly disposed of by the justice.

The evidence seems undisputed that at the time of the sale of this property to the defendant, it belonged to both the plaintiffs.

• We have carefully examined the objections and exceptions by the defendant to the ruling of the justice in the receipt and rejection of evidence on the trial, and find no error for which this judgment should be reversed.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


text:
    Mary E. Stephens, Respondent and Appellant, v. The Hudson Valley Knitting Company, Appellant and Respondent.

      Master and servant — the place in which work is yerforxmd, made unsafe hy the act of the employer.

    An employer is bound to furnish a reasonably safe place, considering the nature of the employment, for the performance of his work by an employee, and he will not be relieved from liability by the fact that the place may have been safe at the commencement of the employment, if it is afterwards made unsafe by the act of the employer or of his alter ego So held, in the case of an employee in a knitting mill, injured by the falling of a pile of rolls of cloth stacked near where the-employee was required to work.
    Appeal by the defendant, the Hudson Valley Knitting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Saratoga county on the 27th day of December, 1892, upon a verdict rendered at the Saratoga Circuit, and from an order denying the defendant’s motion for a new trial, made upon the minutes.
    Also an appeal by Mary E. Stephens, the plaintiff in the above-entitled action, from the order herein, setting aside the verdict herein as excessive, and ordering a new trial, and from every part of said order, the plaintiff thereby declining to stipulate to reduce said verdict as provided by said order ; which said order was entered in the office of the clerk of Saratoga county April 29, 1892.

      George B. Wellington, for the plaintiff.

      William Shaw and Matthew Hale, for the defendant.

      This order appears to have been already considered at the General Term on a former appeal and to have been reversed by that court by an order entered. December 2a, 1892

   Mayham, P. J.:

The plaintiff while engaged as an employee of the defendant in its mills, was permanently injured by the falling of a pile of rolls of cloth, which wTas stacked on the floor near where the plaintiff was engaged in her work.

The action was prosecuted on the theory that the defendant was-bound to furnish a reasonably safe place for his servants to perform their work, and that by the defendant causing or permitting the piling of these goods on the floor where the plaintiff was required to work, it thereby rendered the place unsafe, and is for that reason responsible for the injury.

The theory urged by the defendant is that the goods were piled in the place and manner in which they were, by the co-servants of the plaintiff, and if negligently piled it was the négligence of a fellow-servant, for whose negligent acts the defendant is not liable.

It is also insisted by the defendant that the plaintiff was apprised of the danger to which she was exposed and was herself guilty of contributory negligence.

There is proof in the case that before the injury complained of, Dowsley, the superintendent of the defendant, was warned by Mrs. Bancroft, who was in charge of that floor of the mill, that the pile of cloth would fall.

The pile was about seven feet high and consisted of rolls of cloth eighteen inches in diameter and each weighing about forty pounds.

There was evidence that the plaintiff heard the conversation as to the danger of the cloth falling, and she testified that she understood Dowsley to say, “ it would be all right.”

The plaintiff continued her work at a table near the pile of cloth, and it finally fell and she was injured. On the trial, after instructing the jury that their verdict must be a general verdict for one party or the other, and if for the plaintiff, must state the amount, the court submitted the following questions on which the jury was asked to find:

“First. Was injury to those working at the table where plaintiff worked, to be reasonably apprehended fiom the cloth that was piled ?
“Second. Was the attention of any officer of defendant called, before the accident, to the dangerous condition of the cloth as piled ?
“ Third. Did plaintiff know the danger to be reasonably apprehended from the cloth as it was piled ?
“ Fourth, Did she continue her work, relying on any actual assurance from any officer of the company that there was no danger, or that the danger would be removed? ”

The jury rendered a verdict for the plaintiff for $5,500, and at the same time answered in writing the questions submitted to them by the court, as follows : “To the first question, Yes. To the second question, Yes. To the third question, No. To the fourth question, Yes.”

The rule is well settled that the employer is bound to furnish a reasonably safe place, considering the nature of the employment, for the performance of the work by the servant. The plaintiff was required to work at the seaming table, which was on the same floor where the cloth was piled and but a short distance from the pile, and one of the questions submitted to the jury was whether that was a reasonably safe place, with the cloth piled as it was.

In Freeman v. Glens Falls Paper Mill Co. (39 N. Y. St. Repr. 621), the court say: If this risk related to the safety of the place of the employment, and not to the dangerous character of the employment itself, then it was the risk of the master and not that of the servant, for while the deceased took upon himself the risk of the dangerous character of the services, the employer assumed the risk and duty of furnishing a reasonably safe place for the performance of that service.”

In Cullen v. Norton (52 Hun, 9), the court say: One of the duties of the master was to furnish his servant a safe and proper place in which to prosecute his work. This duty continued to be the master’s, no matter to what subordinate servant he delegated its performance.”

When the master delegates to a servant or agent the performance of duties which he owes to his employees, he is liable for the manner in which the agent performs such duties.

The agent, under such circumstances, becomes the alter ego of the principal, who is bound by his acts or admissions, and knowledge in him is knowledge in the principal. (Corcoran v. Holbrook, 59 N. Y. 517; Tendrup v. John Stephenson Co., 51 Hun, 462.)

“ There are certain duties which concern the safety of the servant, which belong to the master to perform, and he cannot rid himself of responsibility to his servant for not performing them, by showing that he delegated the performance to another servant who neglected to follow his instructions or omitted to do the duty intrusted to him.” (Booth v. Boston & Albany R. R. Co., 73 N. Y. 38.) It is quite true, as urged by the defendant, that if the master furnish safe tools, utensils and place for the use of his servants, he is not responsible, if, without his fault or knowledge, it becomes unsafe by use, when they do not require the attention all the time of a skilled mechanic. (Cregan v. Marston, 126 N. Y. 568.)

But that rule does not apply to a case, where, as here, the place may have been safe at the time of the employment of the plaintiff, but is afterwards made unsafe by the act of the defendant or of his alter ego.

The jury have, in this case, found all the facts against the defendant necessary to uphold their verdict. And upon that branch of the case, it seems to us that their verdict is sustained by the evidence. The jury have also found that the plaintiff was not aware of the danger and had a right to rely upon the declaration of the defendant’s agent that it would be all right.

This evidence is sufficient to uphold the conclusion of the jury after the verdict.

Assuming, as we must from the facts proved, that the conclusion of the jury upon the question submitted to them is supported hy the evidence, their verdict for the plaintiff becomes the logical and inevitable result of such facts.

The judgment must be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Motion to dismiss appeal denied. Judgment affirmed, with costs.


author: Mayham, P. J.: Kellogg, J.:

text:
    William T. Hart and Others, for Themselves and Other Income Bondholders, etc., Appellants, v. The Ogdensburg and Lake Champlain Railroad Company and The Central Vermont Railroad Company, Respondents.

      Sailroad income bonds a/re subject to the statutory right of railroad consolidation.

    The Ogdensburg and Lake Champlain Railroad Company, a New York corporation, in 1880, under an act of the Legislature of that year (Chap. 73), issued and sold income bonds, to which was attached a right to vote for directors, one vote for every §100 of bonds, and thereafter agreed with a connecting railroad company of the State of Yermont to consolidate with it, under the provisions of chapter 917 of the New York Laws of 1869 and its amendments. Thereupon certain owners of these income bonds brought an action to enjoin the consolidation, on the ground that it impaired the obligation of the contract between them and the Ogdensburg company, in that it would diminish the power of the directors for whom they were entitled to vote and that it did not provide for keeping separate accounts of the earnings of that company.
    There was, however, no provision in the act under which the income bonds were issued, nor in the condition of the bonds themselves, against consolidation under the act of 1869, in force at the time, and the consolidation agreement did provide for preserving the rights of all the creditors of, and liens upon, each corporation, and that each corporation should be deemed to continue in existence to preserve the same.

      Meld, that the obligations of the contract were not impaired by the consolidation;
    That the income bonds must be deemed to have been issued and taken by the purchasers thereof, subject to the contingency of consolidation and to the right of consolidation vested in the Ogdensburg company by the act of 1869, against the exercise of which right the purchaser of the bonds could not be heard to contend.
    Appeal by tbe plaintiffs, "William T. Hart and others, from an order of tbe Supreme Court made at the Essex Special Term, and entered in tbe office of tbe clerk of St. Lawrence county on tbe 16th day of January, 1893, vacating and setting aside an order granting a preliminary injunction.

      Theodore H. Swift, William O. Lorvng and Gharles 0. Ta/pjpa/ny for the appellants.

      Louis LLasbrouoh, Damñél Magone and John- G. Keeler, for tbe respondents.
   Mayham, P. J.:

Appeal from an order made at Special Term vacating and setting aside an injunction order granted by a judge of this court restraining tbe defendant corporations from consolidating under tbe laws of New York.

Tbe defendant, the Ogdensburg and Lake Champlain Railroad Company, is a corporation incorporated under tbe laws of New York, owning and operating a railroad with a capital stock of over $3,000,000.

Tbe defendant, tbe Central Yermont Railroad Company, is a corporation organized under tbe laws of tbe State of Yermont, owning and operating a railroad in tbe State of Yermont, with a capital of $1,000,000. Tbe railroads of these respective corporations connect with each other at tbe State lines, and together form a continuous line of railroad into both States.

In 1880 tbe defendant, tbe Ogdensburg and Lake Champlain Railroad Company, issued its income bonds to tbe amount of $1,000,000. These bonds, by their terms, bore annual interest at tbe rate of six per cent, payable semi-annually, provided that tbe net earnings of the railroad company and other property of the company, after satisfying the expenses of operating and maintaining the same and the interest on all liens, charges, incumbrances and other indebtednesses, with all taxes and assessments and floating indebtedness on the property of or owned by said company, shall respectively suffice to pay such rate of interest on all of this issue of bonds outstanding at the time any installment of interest shall fall due or such interest less than six per cent per annum, as such net earnings shall be sufficient to pay upon such bonds, each being •entitled to the ratable share thereof on presentment and surrender •of the coupon representing the same, and that the board of directors of such railroad company shall determine the amount of such net earnings.

These bonds also provided that on the registration of the bonds by the holder thirty days previous to an election of directors, such holder may have one vote for each $100 of such bonds held by him for directors of said company.

The plaintiffs are holders, each in his own right, of some of these income bonds, and, as such owners and holders, are entitled to such privileges and immunities as are provided in such bonds to the holders thereof.

The Ogdensburg and Lake Champlain Railroad Company now propose to consolidate their railroad company with the Central Vermont Railroad Company, under the provisions of the statute which authorizes railroad companies, upon conditions therein provided, to consolidate, and preliminary to such consolidation entered into an agreement for consolidation with the directors of the Central Vermont Railroad Company.

By the terms of this agreement of consolidation the capital of the new consolidated company is $1,30/T,'700, and the capital stock of each of the old companies is made convertible into the stock of the new company, ten shares of the Ogdensburg and Lake Champlain stock for one of the consolidated company, and that of the Central Vermont Company into such consolidated company stock — share for share.

The agreement provides for the naming of the directors of the new company and their election annually thereafter. The contract also provides for holding a meeting of the stockholders of each of the old companies and the submission to them of the question of such proposed cvpsolidation.

The contract also provides for the vesting.in the new corporation of all the property and effects of each of the old corporations, but expressly provides that “ the rights of all creditors of and liens, upon the property of either of said corporations, parties to this agreement and act, shall be preserved and unimpaired, and the respective corporations shall be deemed to continue in existence to preserve the same, and all debts and liabilities incurred by either of said corporations shall thenceforth attach to such new corporation and be enforced against it and its property, to the same extent as if incurred or contracted by it.”

It is insisted on the part of the plaintiff and appellants that this proposed consolidation, if carried into effect, would essentially impair the obligations of the contract between them and the Ogdensburg and Lake Champlain Railroad Company.

First. By depriving them as bondholders of the right to vote for those persons whose judgment as to the application of earnings, is practically decisive of their rights to interest.

Second. By depriving them of directors who would have any motive to promote the interests of the plaintiff, and who from their position would be familiar with the facts and in whose selection they, as bondholders, have a right to participate.

Third. That the net earnings of the property of the company-belong to the bondholders, and that by the article of consolidation no provision is made for keeping separate accounts, and no accounting is provided for, for the same.

Fourth. That the bondholders are deprived of their share in the-extension of the business of the company.

If it be true that for any other objections suggested by the plaintiff the law authorizing the consolidation of these companies impairs, the obligation of the contract between the Ogdensburg and Lake Champlain Railroad Company and these bondholders, then the contention of the plaintiff that the law is unconstitutional must prevail.

But there is no express provision in chapter 73 of the Laws of 1880, under which these bonds were issued, nor in the condition of the bonds themselves, against consolidation of the company with any other railroad company under the provisions of chapter 917 of the-. Laws of 1869 and tbe amendments of the same, and as has, I think, been clesrly shown in the very able and exhaustive opinion of the Special Term, these bonds must be deemed to have been issued and taken by the plaintiff, subject to the contingency which might occur by a consolidation. If, therefore, the right to consolidate existed at the time of the issuance and negotiation of these income bonds, the purchaser must be deemed to have taken them subject to that right, which vested in the company by the act of 1889, and which, like Aaron’s rod, swallows up all the objections of the appellants, and against which they cannot now be heard to contend.

I think, therefore, that the order should be affirmed on the opinion of the Special Term, with costs and printing disbursements.

Putnam, J., concurred; Herrick, J., dissented.

Order affirmed, with costs on opinion of Special Term.

The following is the opinion above referred, to,:

Kellogg, J.:

A motion is made herein by defendant to set aside an injunction granted on plaintiff’s ex pa/t'te application.

On this motion no dispute exists as to the facts. The admissions of defendant’s counsel and the moving and opposing papers present the-case on its merits, and so far as plaintiffs are concerned in an aspect as favorable at least as they could be presented upon trial.

The sole question involved may be said to be one of construction of a contract — whether or not the defendant has obligated itself to the plaintiffs not to consolidate with any other railrpad company as provided by the Laws of 1869, more recently amended.

By chapter 73 of the Laws of 1880, the Ogdensburg and Lake Champlain Railroad Company were authorized to issue $4,500,000 in bonds, to be used in the purchase, exchange or retirement of its prefered stock, and in payment of its outstanding bonds, and in making improvements to its property, and was authorized, with the consent of a majority of its stockholders, to secure such issue of bonds by a mortgage upon all its property, franchises, etc. It was further provided by this act that the bonds so issued should possess the anomalous quality of investing the holders with the right to vote “in the election of directors of said company,” one vote for each $100 of bonds. This unusual power given to a bondholder, altering the voting power of the stockholder, and impairing his control over his own enterprise, must be interpreted to mean no more than it says, for this power is not confined to the bonds issued in exchange for preferred stock, and might be considered within State v. Greer (78 Mo. 188), as subject to attack by any non-consenting stockholder as unconstitutional. Clearly none of the rights of stockholders were intended to be disturbed, except tlie right to vote for directors. Such rights as stockholders possessed respecting mortgages, loans, consolidations, etc., were left unimpaired by this law, and whatever was done under it must have been understood by the parties as subject to strict construction — the bondholders taking and the stockholders losing as little as strict construction permits.

Under this law bonds were issued of two classes, both secured by one mortgage, upon all the property and franchises of the company, aggregating in all the full amount of §4,500,000. The first class was called “first consolidated mortgage bonds,’ aggregating §3,500,000. The second class was called “income mortgage bonds,” aggregating §1,000,000. The interest upon the first class was payable periodically and absolutely. The interest on the second class, or “ income bonds,” was payable yearly out of the net earnings of that period, if sufficient; and if there were no net earnings during the year, then no interest was payable, and the board of directors of said company should determine the amount of such net earnings in each of such periods.

The principal of all the bonds was to be paid in forty years. The mortgage given with these bonds and for their security by the Ogdensburg and Lake Champlain Railroad Company is given: “ Subject, however, to the right of the party of the first part (said company), its successors or assigns, to retain the free and uncontrolled use, enjoyment, possession, and management of the premises, rights and property hereby granted,” so long as the principal and interest of the bonds of the first class, and the principal of the bonds of the second class, are paid according to their terms, no reference being made in the mortgage to the interest of the second class bonds.

The plaintiffs are owners of a portion of the second class or “income bonds,” and are entitled to vote for directors of said company, one vote for each §100 of said bonds.

The income bond and mortgage provided for by the law referred to, and held by plaintiffs, constitute the contract between plaintiffs and the Ogdensburg and Lake Champlain Railroad Company, which plaintiffs allege is about to be violated to their irreparable injury by a vote of the stockholders, in ratification of an agreement of consolidation, entered into by and between the directors of the Ogdensburg and Lake Champlain Railroad Company and the Central Yermont Railroad Company, which two companies now own a continuous or connected line of railroad, and plaintiffs base their claim upon two grounds :

1. The projected consolidation, if consummated, will destroy their right to vote for directors in the Ogdensburg and Lake Champlain Railroad Company by working a practical dissolution of that corporation.

3. That consolidation will so mix and intermingle the properties and earnings of the two roads that it will be impossible to determine the net earnings which the bonds have a right to claim for interest.

Each of these two things, plaintiffs claim, the defendant has contracted shall not be done.

Without doubt the consolidation act, which was passed in 1869, and was in force when'the law authorizing these bonds was enacted and when these bonds were issued, does contemplate that the directors of the old consolidating com* panies shall, in the event of consolidation, be shorn of most of their functions ; that the corporate body shall be reduced to a skeleton without rags and with very limited powers ; but it does not contemplate its complete dissolution. It expressly says that the old corporation shall continue in existence to preserve the rights of all creditors, and the limit of such existence can be measured by the duration of creditors’ rights. It is not quite plain, under this provision, how there can be valid objection to the annual election of directors for these old corporations, so long, at least, as there are in existence stockholders or bondholders capable of voting. I see none, and until the law points out a different method of exhibiting a tangible existence, the life of a corporate body, I think, must be shown in, and its functions, whatever they may be, must be discharged by aboard of trustees or directors.

Justice Gray, speaking of this consolidation act in Polhemus v. F. R. R. Co. (123 N. Y. 511), says : “ The true theory of this act is that each consolidating company survives in the consolidated company, and that it represents each company in its claims and its obligations.”

This is theoretically true, since the new company springs from the old; but this theory is not inconsistent with the existence, as the statute provides, of the old corporations distinct from the new, and with sufficient vitality to discharge in the ordinary way, through directors, the duties imposed by the law.

If the idea was contemplated and expressed in the bonds and mortgage, as plaintiffs now claim, that for forty years the directors of the Ogdensburg and Lake Champlain Railroad Company should exercise undiminished functions; that for this full term there should be no consolidation of interests with any other company, as the law at the time permitted, then the same idea must be expressed in the law of 1880 authorizing the issue of the bonds; for it is only by virtue of the provisions of that law that bondholders have the right to vote for directors. They are not given the right to vote on the question of consolidation. The law then conferred upon stockholders, not bondholders, the right- to vote upon any agreement entered into by the directors. Can it be reasonably urged that the giving to a bondholder owning a $100 bond the right to vote for directors shows a manifest intention in the law to place it within the power of that bondholder to prevent consolidation for forty years, because in case of consolidation t,he directors he may vote for thereafter will have diminished functions ? The law does not so declare; and if such power were conferred with the right to vote for directors, it must be implied. The implied rights which the bondholders take under this law, for the reasons before given, must be those only which necessarily go with the language used, interpreted in utmost strictness. And I see no reason here to conclude that the right to vote for directors meant anything more than to vote for such directors, with such powers as might be needed by the corporate body in its then or in any changed condition. There is no intention manifest in the law to deprive the stockholders of any rights which any existing law conferred upon them exclusively, even though the exercise of such rights should operate, directly or indirectly, to diminish the value of the bondholders’ right to vote. Nor can it be reasonably claimed that the contract expressed by the bond and the accompanying mortgage contemplated or expressed upon this head more than the law itself. In case, then, the threatened consolidation is effected, the bondholders will possess still the right to vote for directors as now, during all the time that they are bondholders. The directors will possess the powers and be burdened with duties as expressed in the consolidation act, and one of these duties will be that declared in the bond relating to the ascertainment of net earnings applicable to interest upon the income bonds.

If there had been any intention in the law or in the contract, evidenced by the bond and mortgage, to curtail the rights of stockholders, touching a step so important and possibly vital to their interests, as consolidation with connecting roads making a continuous lino, I think that intention would have been clearly expressed. It might be urged that by the same contract the corporation promised not to propose another mortgage upon their property and franchises, and the stockholders were not permitted to authorize a mortgage, since the mortgage might be foreclosed, the property and franchises sold, and the corporation dissolved, and in this method the plaintiffs might be deprived of their right to vote for directors. Indeed, no indebtedness could bo created by the company without risk that such debt might ripen into a judgment, and result in a judicial sale and dissolution of the corporate body. And still, I think, no one will contend that these rights were by implication taken from the directors or the stockholders by this law or this contract. All contracts are supposed to be made in view of the existing law, and must be interpreted to have been so made. The statutory conditions must be deemed to have permeated the agreement and to have constituted elements ih the obligation. The contracting parties here knew of the provisions of the consolidation act. They knew of the diminished powers of directors in case of consolidation. They knew that no consolidation could be effected unless the board of directors first entered into an agreement to consolidate. They knew their power through these bonds over the election of directors, and may have wisely or unwisely concluded that no consolidation could be had except the bondholders were friendly to' it; or they may have concluded that no consolidation would be ever considered, except for the purpose of increasing the earnings and so benefiting bondholders. So, also, they knew that only through this same board of directors, created by their votes, if their votes were so potent as to be of any value whatever, could any new mortgage or debt be created and the existence of the corporation be imperilled, or any leases be made, and they were content to exact nothing in express terms of the nature now contended for. Referring to the right of the company under this contract to lease a road and pledge its earnings in payment in fact for its construction, the Court of Appeals in Day et al. (these plaintiffs) v. O. & L. C. R. R. Co. (107 N. Y. 146), uses this pertinent language: It is “ the contention of the learn.ed counsel * * * that the power of the company to change the condition of the road * * * is limited and restrained by these provisions. It does not seem probable that such was the intention of the parties. * * * Uniformity is not bargained for nor promised. If that was intended it is difficult to see why the bond and mortgage did not provide that the operations of the company during the forty years of credit should be confined to the running of its road between the then termini. * * * Nor do I think that the construction contended for is warranted by the words actually used, and that in acceding to that construction, the court below has inserted by implication that which the parties have not expressed.”

And it was there held, in effect, that the company was in no manner restrained by tills contract in doing what in the judgment of the directors was for the best ultimate interest of the road, even if the thing done resulted in the absorption of the entire earnings and left nothing to apply as interest on income bonds. While this may have little direct bearing upon the question of diminishing the power of plaintiffs’ vote, it does bear upon the construction to be placed upon the contract respecting implied limitations therein upon pre-existing powers of directors and stockholders. If, upon reading the terms of plaintiffs’ bond and mortgage, the Court of Appeals says, in substance: These parties, when this contract was entered into, knew that by the law of 1869, then in existence, that this corporation might lawfully agree with any other corporation for the use of its road, and if it had been intended to deprive this corporation of that power it should have been so plainly declared, the court below has erroneously inserted by implication that which the parties have not expressed, even though it is conceded that the exercise of this power will deprive plaintiffs of all interest on their bonds, why must not. we also say: These parties, when this contract was entered into, knew by the terms of the consolidation act then in’ existence, that this corporation might lawfully unite with a connecting road, making a continuous line, and if it had been intended to deprive this corporation of that right it should have been so plainly declared. This deprivation of so valuable a right cannot be implied, even though it is conceded that its exercise will diminish the power of the directors for whom plaintiffs have a right to vote.

Considering, as the parties must, what the demands of forty years might be in the great progress of railroad enterprises, the changes which might he forced by competition and strife for business, considering, as said by Judge Huger in Woodruff v. Erie Railway Co. (93 N. Y. 615), that: “The public policy of this State, as manifested by numerous acts of the Legislature, has always been, not only to afford the fullest scope for the consolidation and reorganization of noncompeting railroads and railroad corporations, but, also, for the transfer of the use of such roads and their functions by one corporation to another.” And considering the grave consequences to this corporation which might result in its being deprived of the privilege of uniting with any other road, is it likely that the parties intended to give each holder of a $100 bond the power to prevent such a union, when the interests of all concerned demanded it ? I think not. The implication, it seems to me, points to just the reverse.

The impossibility of ascertainment of the “net earnings” applicable to interest on the income bonds, which plaintiff claims will be the result of consolidation, and which constitutes the second ground of plaintiff’s objection, calls for the examination of the proposed agreement.

The agreement of consolidation contemplates no change of stockholders; a union of corporate interests ; a union of two roads ; forming a continuous line of railway under a single management. Neither the law nor the agreement suggests relief, directly or indirectly, from any existing liability or obligation. On the contrary, by language unmistakable, the law and the agreement each fasten upon the new management every obligation, liability and duty which either of the consolidating companies has created or consented to by contract, express or implied.

The obvious purpose of union is the obtaining of increased “net earnings.” Stockholders have interest in nothing else ; only out of net earnings can dividends be made. No question is made of good faith of directors in making the agreement, or of stockholders in their threatened ratification of it.

The income bondholders are also interested in “net earnings,” and if the amount can be increased, certainly no harm can result to them from that. The only question is, can it be ascertained, if the two roads are run under one management, what proportion of net earnings properly belongs to each ?

Will it be possible under any plan or by any method which the new board of directors can devise, to determine the “net earnings” properly attributable to the Ogdensburg and Lake Champlain road and its properties ? If so, then there is nothing for plaintiffs to fear. For this is just what by the agreement the new company undertakes to do.

It is a matter of common knowledge that the earnings of a railroad company are mainly derived from freight and passenger traffic, which neither begins or ends with that particular road. Each road is but a link in a long chain; and though the entire line is made up of separate roads under separate corporate management, the earnings of each must, for the most part, be ascertained by arbitration or agreement with all roads in the line. Consolidation can have no effect to confuse the data by which the amount of such earnings is determined. Neither can it confuse the accurate data always accessible respecting local traffic (passenger or freight) over which each company has exclusive control. What then will necessarily prevent the ascertainment of the earnings of the separate properties ? The new company possesses the same data and means of determining which were possessed by the two old. The business being operated by one corporate body, instead of two, does not explain how confusion can be necessary. So far as the commingling of assets goes, it should be borne in mind that plaintiffs have no interest in such assets, only in their earnings, and that the proposed union of assets is upon a fixed basis which the agreement of consolidation determines. The union is upon a basis of valuation of the properties of the two consolidating companies, and has relation to earning capacity. It is presumed to be a fair valuation. No question is raised as to this. This is yet to pass the examination of the stockholders of the Ogdensburg and Lake Champlain Railroad Company, and it may be presumed that their personal interest will be sufficient to insure a fair ratio of valuation for the properties of this company. If the basis of union or ratio of valuation fixed by the agreement is right, then a division of earnings of the new company between the two old companies on that basis, or in that ratio, must be right; and no one interested in the earnings of the Ogdensburg and Lake Champlain Railroad Company can be injured. I see no practical difficulty in reaching a just and accurate division of earnings. Nor do I see how the plaintiffs can be injured in any respect as to their interests in such earnings.

The learned counsel for plaintiffs in support of this ground of contention, cites Maine Central R. R. Co. v. Maine (96 U. S. 499), but the case is hardly authority for so much as is claimed here. It was there a question whether the parties in interest, as against the State, had not voluntarily abandoned a contract right to a certain mode of taxation, by taking on the new form of consolidation with five separate companies. That act made it impossible for the officers stipulated for in the law conferring this right, to make an annual report to the Legislature, which was to be the basis of taxation; and the court held that the State could not be compelled to accept a substituted service, and uses this language: “ The new company was subject to no such duty of keeping an account of the expenditures and receipts of the original lines; its directors were not called upon to make any report as to the income of such lines, nor was its treasurer required to make any annual exhibit of the net profits derived from them.”

This would have been sufficient to support the decision. The court, however, does use this further expression: “The assets of all the companies were intermingled; and continuous trains were run over the whole length of the several roads. It would have been impossible to show what would have been the profits of each road without the consolidation. Only an approximation to them would have been attainable; and that would have been based upon estimates more or less speculative in their character.”

It is quite possible that the facts of that case and those roads may have been peculiar. It is not obvious how such conclusions could be reached in the case of the proposed agreement of consolidation now being considered. It is true the assets of the two old companies will be intermingled, but in the union each old company, through allotment of stock in the new company, will be accurately apportioned its proper fraction of the unit. It is also true that “ continuous trains ” may run over the whole length of the two roads, but if that has not been the practice in the past, and necessarily the practice, then from common knowledge we must say that these two roads .must be an exception to the universal practice in railroading, where the two roads make a continuous line. As to the conclusions drawn by the court in that case from those two facts, if such conclusions are predicated on those facts alone, there must have been, it seems tome, something exceptionally confusing in the agreement of consolidation, or in the operations under it, which does not appear in the agreement we are considering. The State, in the case cited, did not seek to restrain the union of the several roads. It had granted certain immunities to two of them, and fixed the conditions upon which these immunities might be retained. The two companies, voluntarily placed themselves in a position where it became impossible to perform the conditions in the manner by the law prescribed. No officers were in existence or could be brought into existence whose duty it was under the law to make the required report, and the court held that the State could not, without the passage of a new law, accept the report of a substitute, a stranger, upon whom no duty to report rested.

I think the plaintiffs, for the reasons stated, are not entitled to this restraining order, and direct that it be vacated, with costs.


text:
    George H. Peaslee, as Executor, etc., of Horace W. Peaslee, Deceased, Appellant, v. The Town of Chatham, Respondent.

      Negligence — submission of the question to the jury — evidence of freedom from contfributory negligence.

    To -warrant the submission to the jury of the issues in an action brought to recover damages for the death of a person, alleged to have been caused by the negligence of the defendant (as, e. g., the negligence of a town in failing to place a suitable railing on a bridge which it is bound to maintain as a part of the highway), it is not enough that the evidence would justify the submission of the question of the defendant’s negligence, but there must also he such evi-denee upon the question of the decedent’s freedom from contributory negligence as will authorize the jury to find from it that the decedent was free from contributory negligence.
    Appeal by tbe plaintiff, George H. Peaslee, as executor, etc., of Horace W. Peaslee, deceased, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of tbe cleric of Columbia county on tbe 16th day of September, 1891, upon a dismissal of tbe complaint dbected by tbe court at tbe close of tbe plaintiff’s case on a trial at tbe Columbia Circuit.

      Ojiarles M. Hall and J. Rider Gady, for tbe appellant.

      Q-eorge JO. Daley, R. JO. And/rews and L. JO. Longley, for tbe respondent.
   Mayham, P. J.:

This is an appeal from a judgment entered upon a nonsuit granted by a judge at tbe Columbia Circuit.

Tbe action was prosecuted by tbe plaintiff against tbe defendant to recover for tbe alleged negligence of tbe defendant in failing to place a suitable railing along the outer side of a bridge over tbe Kinderhook creek, which tbe defendant was bound to maintain as a part of a public highway in that town, by reason of which tbe plaintiff’s testator fell from tbe bridge and was killed.

Tbe evidence discloses that the plaintiff’s testator, for many years previous to bis death, resided at Malden Bridge in tbe town of Chatham, where be owned or operated two paper mills and a farm.

That be resided on tbe opposite side of tbe creek from that on which his mills were located, and that access from his residence to the mills was over an iron bridge of about 160 feet in length, having two spans of eighty feet each, and which had stood there since about 1869 in substantially its present condition.

The testator at the time of the accident was seventy-eight years of age, active and in good health. The bridge was supported by two iron arches, the ends of which passed through the floor and rested on abutments, and at the corner where the alleged accident occurred, the distance from where the arch passed through the floor to the corner of the bridge was about five and one-half feet, and from the point where such arch passed through the floor of the bridge to the corner of the same there has never been any railing. There are two driveways across the bridge with a dividing curve of a few inches in height above the floor, and the same kind of coping extends along the sides of the bridge the whole length of the same, extending from the corner of the bridge along the creek, and connecting with the abutment of the bridge is a wall built by the testator on his own land, called a wing wall, which is about a foot lower than the bridge, and along the outer side of this wall there is no railing or barrier.

The proof shows that the testator was for many years accustomed to pass across this bridge from his house to the mills, and return several times a day, and also in the evening of almost each day.

The case does not disclose that any accident had ever happened at this point in the bridge. It appears to have been a custom of this intestate to visit his mills in the evening, and on Sunday evening of the eleventh of January, at about five o’clock, which at that season of the year was after sundown, the deceased left his house and went to the mill, talcing with him no lantern ; as the evening advanced it became very dark and rainy, so that others who crossed the bridge testify that they carried lanterns. The evidence does not disclose the whereabouts of the deceased from the time he went to the mill at about five p. m., until his groans attracted attention at half-past eight, and he was found seated against the abutment of the bridge in or near the bed of the creek at the base of the abutment. The evidence shows that the commissioners of highways of the defendant had funds with which they might, if they desired, or deemed it necessary, have constructed a railing on this part of the bridge near which the testator was found. No complaint appears to have been made to the commissioners that this was a dangerous place, or that the public safety required the construction of a railing at that point.

At the conclusion of the testimony the defendant asked the court to dismiss the complaint upon the following grounds:

“First. The plaintiff has failed to show any act of negligence on the part of the defendant, the town of Chatham.
Second. There is no evidence whatever authorizing the jury to find that the deceased was free from negligence contributing to cause the injury complained of.”

In granting the nonsuit on this motion we think the learned trial judge decided correctly. The absence in the proof of either of the essential elements, which the plaintiff must affirmatively establish to enable him to recover in this class of actions, is always fatal to his rights of recovery.

He must show by competent proof, first the negligence of the defendant, and second, that the injured party was himself free from contributory negligence.

In this case the learned judge held that the proof was sufficient to justify the submission of the question of the defendant’s negligence to the jury, but that alone would not justify a recovery. The other elements must also be proved.

There must, upon the other branch, be such evidence as .will authorize the jury to find from it, that the plaintiff’s testator was free from contributory negligence. Harshly as this rule may seem to operate in some cases, it is nevertheless too thoroughly crystalized into our jurisprudence to be ignored or questioned.

In Cordell v. N. Y. C., etc. (15 N. Y. 330), the rule is reiterated by Earl, J., in the following emphatic language: “ To maintain this action the plaintiff must show that the death of the intestate was caused solely by the negligence of the defendant, and this she must show by competent proof. It must not be left to mere speculation. She has the burden upon the whole case to show that the negligence of the intestate did not in any degree contribute to the accident.”

In Reynolds v. N. Y. C., etc. (58 N. Y. 218), the court, per Andrews, J., say : “We think this judgment must be reversed, on the ground that there was no evidence in the case upon which the jury was authorized to find the absence of negligence on the part of the plaintiff’s intestate which contributed to his death.” “ The jury must be authorized to find affirmatively that the person injured was free from fault which contributed to the accident, or the action is not maintained. If this element is wanting in the case the court may nonsuit or set aside a verdict for the plaintiff. This rule is now too firmly settled in this State to be disturbed.”

And in Connolly v. Knickerbocker Ice Co. (114 N. Y. 104), the coui’t, per Bradley, J., say: “ The further question is whether it .appealed that the plaintiff exercised the care required of him. The burden was with him to make it so appjear by evidence.”

In Bond v. Smith et al. (113 N. Y. 378), the plaintiff’s intestate fell down an area way in an alley where he was employed as a watchman. The area was protected only by a stone coping a few inches high. The evidence showed that the intestate had passed this area more than 200 times since he had been on duty in the alley. The court, per Earl, J., said: “ There is not the least evidence showing how the accident happened. When he was found and taken out, he gave no account of it. * * * The alley was not lighted on that night, and as all the buildings were from four to six stories high, it must have been dark. But the darlmess was obvious, and the danger was known; and hence caution and care were demanded of the intestate. How then did the accident happen ? How came he to fall over this stone coping into this known place of danger ? The evidence does not tell us. It is an unsolved mystery. No plausible theory can be suggested to account for it. * * * We have no right to guess that he was free from fault; it was incumbent upon the plaintiff to show it by a preponderance of evidence. She furnished the jury with nothing from which they could infer the freedom of the intestate from fault. She simply furnished them food for speculation, and that will not do for the basis of a verdict. The law demands proof, and not mere surmises. The authorities are ample to show in such a case the plaintiff should have been nonsuited. Judgment (for plaintiff) reversed.”

It is quite true that the court in Hart v. Hudson River Bridge Co. (80 N. Y. 622), says that: “When from the circumstances shown, inferences are to be drawn which are not certain and incontrovertible, and may be differently made by different minds, it is for tbe jury to make them.” But I fail to see tbe application of that rule to this case. Here the case is barren of all facts about which any rational opinion can be formed.

It is true, the field for conjecture is wide, but that conjecture is not fortified by any evidence except that the deceased was out in the dark, and was found at the foot of the precipice, injured and dying. As was said by the learned trial judge in pronouncing his opinion on the nonsuit: “ I think there is an utter absence of proof that the deceased was free from negligence. The evidence is silent on the subject. There was no railing on this bridge, and the night was dark ; he was familiar with the place, presumably knew of its dangerous character; he is found at the foot of this abutment, underneath this place, suffering from injuries in consequence of which he died. Whether he himself was free from negligence, thoughtlessly walked over that place without taking any steps whatever to guard himself from doing it, what he was doing at that time, there is no evidence whatever. The law cannot presume freedom from negligence.”

Like other facts, it must be proved either by direct evidence, or by circumstances which the jury may properly consider.

The judgment must be affirmed, with costs.

Putnam and Herrick, JJ., concurred. -

Judgment affirmed, with costs.


text:
    John W. Kerr, Appellant, v. The Union Mutual Life Insurance Company, Respondent.

      Life insurance for the benefit of a -wife — the wife is not a necessm-y party to an action to obtain a paid-up policy andan accounting as to accumulations— insufficiency of the complaint.

    A person who takes out a policy of insurance on his own life for the benefit of his wife, is a trustee of an express trust, within the terms of section 449 of the Code of Civil Procedure, and if a cause of action accrues on the policy in his lifetime, he may bring suit thereon in his own name without joining his wife.
    The complaint in an action brought by the insured against a life insurance company alleged the issuance of a policy which contained the following clause: “ And it is hereby understood and agreed that after two or more of said annual premiums have been fully paid this policy becomes a paid-up, non-forfeiture policy, for an amount equal to the sum of one-tenth of that thereby insured for each and every premium which shall have been so paid, requiring no further payments of premiums, subject to no assessments, but entitled to its apportionment of the surplus accumulation iu the ratio of its contribution thereto.” The complaint also alleged the payment of five annual premiums by the plaintiff, and that the defendant company had a surplus accumulation, and demanded judgment that an account be taken to ascertain the surplus accumulation on the policy, and that the defendant be directed to pay such sum to the plaintiff, or issue and deliver to him a paid-up policy for the same.

      Held, that the clause of the policy set forth would not support the action, for the reason that it appeared therefrom that the policy by its terms became, on the payment of two or more premiums, a paid-up, non-forfeiture policy, and the court would not require the defendant to issue a new or other policy of the same kind in legal effect; nor would the court on that clause alone compel the defendant to account and pay over to the plaintiff the pro rata surplus earnings, since they would not, by that provision of the policy, be due until the death of the plaintiff.
    The complaint further alleged that the plaintiff requested an accounting with the defendant of the ratio of the policy’s contribution to the surplus accumulation of the defendant, and that the defendant repeatedly promised and agreed to state and render said account, and issue to the plaintiff a paid-up policy for the amount of said ratio, but has failed and neglected so to do.

      Held, that this agreement was not sufficient to constitute a cause of action, since it was void for want of consideration.
    Appeal by tbe plaintiff, John W. Kerr, from a final judgment of the Supreme Court in favor of the defendant, sustaining a demurrer to the complaint and dismissing the complaint, entered in the office of the clerk of Ulster, county on the 1st day of February, 1892, with notice of an intention to bring up for review upon such appeal the interlocutory judgment entered in said clerk’s office on the 5th day of January, 1892, and the order entered in said office on the 31st day of December, 1891, upon which said final judgment was entered.

      A. Van .Burrn, for the appellant.

      Robert P. Getty, for the respondent.
   Mayham, P. J.:

The complaint alleged the issuing to the plaintiff by the defendant of a life policy on the plaintiff’s life for $3,000, in consideration of the payment by the plaintiff of an annual premium of $213 each year for ten successive years for the benefit of Elizabeth Kerr, plaintiff’s wife.

The complaint then set out in hm verba the condition of the policy as follows : “And it is hereby understood and agreed that after two or more of said annual premiums have been fully paid, this policy becomes a Paid-Up, Non-Forfeiture Policy, for an amount equal to the sum of one-tenth of that hereby insured for each and every premium which shall have been so paid, requiring no further payments of premiums, subject to no assessments, but entitled to its apportionment of the surplus accumulation in the ratio of its contribution thereto.”

The complaint alleged that the plaintiff paid five annual premiums on the policy.

The complaint further alleged that the plaintiff requested an accounting with the defendant, of the ratio of said policy’s contribution to the surplus accumulation of said defendant and that defendant repeatedly promised and agreed to state and render said account and issue to the plaintiff a paid-up policy for the amount of said ratio, but has failed and neglected to do so.

The complaint also alleged that the defendant had a large surplus accumulation during all the times of the transaction set out in the complaint.

The complaint also set out a second cause of action on another policy of insurance on his life for $5,000, on substantially the same terms, and rate of premium being for $225 annual premiums which the plaintiff had paid annually for about five years, for the use and benefit of the said Eliza D. Kerr, or in case of her death, her surviving children.

The complaint then demanded judgment that an account be taken between the plaintiff and defendant in order that the surplus accumulations on each of the policies might be ascertained, and that the defendant be directed to pay such sum to the plaintiff, or issue and deliver to him a paid-up policy or policies for the same.

To this complaint the defendant interposed the following demurrer:

“ The defendant demurs to the complaint of the plaintiff herein,, and states the following as the ground thereof :
First. That there is a defect of parties plaintiff in that Eliza D. Kerr, the wife of the plaintiff, is a necessary party plaintiff.
“ Second. That causes of action have been improperly united, in that the first cause of action stated in complaint does not affect the children of the plaintiff, while the second cause of action does.
“ Third. That the complaint does not state facts sufficient to constitute a cause of action.
“ The defendant further demurs to the first cause of action separately, and states, as the grounds thereof, that there is a defect of parties plaintiff, in that Eliza D.„ Kerr, the wife of plaintiff, is a necessary party plaintiff, and also that the said first, cause of action as stated therein does not state facts sufficient to constitute a cause of action.
The defendant also demurs to the second cause of action separately on the following grounds :
“First. That there is a defect of parties plaintiff in that Eligía D. Kerr, wife of plaintiff, is a necessary party plaintiff, and also that the surviving children of the plaintiff are necessary parties plaintiff.
Second. That the said cause of action as alleged does not state facts sufficient to constitute a cause of action.”

This demurrer was sustained by the trial judge and the defendant had leave to enter an interlocutory judgment, with costs, with leave to the plaintiff on payment of costs within twenty days to amend his complaint, and in default of which defendant was to have judgment dismissing the plaintiff’s complaint, with costs.

The appellant failed to pay the costs and amend the complaint, and after twenty days from the servicce of the same the defendant entered judgment dismissing the complaint, and from that judgment and the order for interlocutory judgment the appellant appeals.

The first question raised by this demurrer is, is there a defect of parties plaintiff appearing upon the face of the complaint ? The complaint upon its face shows that the policy is for the use and benefit of his wife. Standing upon that allegation alone, the wife, on the execution and delivery of the policy, became the party in interest in the same, and to any action which might affect her interest therein, she would he a proper and necessary party, unless the plaintiff, who made the contract of insurance, was a trustee of an express trust*. (Code Civ. Pro. § 449.)

The policy on its issuance became the property of the beneficiaries named in it.

Mrs. Kerr, therefore, became the beneficial owner of the first policy on its delivery to the plaintiff, and as the complaint does not show that she had children, the same for the purposes of the questions raised on this complaint'is true of the second policy, and the plaintiff became her agent only for the purpose of perfecting the same. (Chap. 80, Laws of 1840; Whitehead v. N. Y. Life Ins. Co., 102 N. Y. 143.)

Did that make her a necessary party in an action by the plaintiff upon that policy? We think not. The section of the Code above referred to requires every action to be prosecuted in the name of the real party in interest. Except that executors, administrators, trustees of an express trust, and persons expressly authorized by statute may sue without joining with them the persons for whose benefit the action is prosecuted.

The same section defines a trustee of an express trust to be “ A person with whom, or in whose name, a contract is made for the benefit of another.” Within this language, the plaintiff, who made this contract for the benefit of his wife, may sue without joining her with him.

The remaining question is, does the complaint state facts sufficient to constitute a cause of action ? If this question is to be answered alone upon the terms of the policy set out in the complaint, I am clearly of the opinion that the answer would be in the negative.

Assuming the clause of the policy set out in the complaint is to control, then no cause of action would exist in favor of the plaintiff, for the reason that the policy, by its terms, became, on the payment of two or more premiums, a paid-up, non-forfeiture policy, and the court would not require a new or other policy of the same kind in legal effect. Nor would the court, on that clause alone, compel the defendant to account and pay over to the plaintiff in money the pro rata surplus earnings for the reason that they would not, by that provision of the policy, be due until the death of the plaintiff. (Lyon v. The Union Mut. Life Ins. Co., 17 N. Y. Supp. 756, 757.)

But the complaint does not stop with that recital from the policy. It sets up an agreement on the part of the defendant to state an account of these policies and issue to the plaintiff a paid-up policy for the amount of the ratio as fixed in the terms of the policy.

It is difficult to see upon what grounds such an agreement, if made, can be enforced, if it be held, as I think it must, that by the terms of the policy it became a paid-up policy on the payment of the premiums, without liability of forfeiture for non-payment of future premiums, and without any agreement in the policy itself for accounting or payment during the lifetime of the assured.

I think the agreement as stated in the complaint is void for want of consideration, and that for that reason it does not contain facts constituting a cause of action, and that the demurrer was properly allowed by the trial court, and the judgment must be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


text:
    Louise P. Mars, as Administratrix, etc., of John H. Mars, Deceased, Respondent, v. The Albany Savings Bank, Appellant.

      Interpleader of rival claimants to a earnings banlc, deposit — Gode of Oivil Procedure, § 820 — insufficient affidavit.

    An affidavit presented by a savings bank on an application for an order of inter-pleader, under section 820 of the Code of Civil Procedure, in an action brought against the bank by an administratrix of a deceased depositor, to recover a ■ fund on deposit with the bank, which set up that the fund was claimed by persons other than the plaintiff, under an alleged gift from the deceased depositor, having been held to be insufficient in that it failed to set out facts showing that there was some foundation for the claim asserted to the fund. (64 Hun, 424), the application was renewed upon an affidavit which undertook to set out the facts on which the claim of a gift was founded.

      JBeld, that as the statements in the affidavit furnished no evidence on which either the defendant or the court was authorized to presume a gift from the deceased depositor to the claimants, either inter vivos or causa moi'tis, the affidavit was still insufficient.
    Appeal by the defendant, the Albany Savings Bank, from an order of the Supreme Court made at Special Term and entered in the office of the clerk of Albany county on the 24th day of January, 1893, denying the defendant’s motion that Helen Stanley and Kate A. Judge be substituted, in its place, as defendants in the above-entitled action, upon its paying into court the sum claimed in the complaint, and that said bank be thereupon discharged from all liability by reason of said fund to the plaintiff, or to said Stanley, or to said Judge, jointly or severally.
    The motion, which was made under section 820 of the Code of Civil Procedure, was originally made upon the complaint and an affidavit which was adjudged to be insufficient, and the motion denied. The order denying the original motion was affirmed by the General Term, in an opinion reported 64 Hun, 424, which holds, following Williams v. ¿Etna Life Insurance Company (8 N. Y. St. Eepr. 567), that the papers upon which such a motion is founded should set out facts showing that there is some foundation for the claim asserted to the fund, or some plausibility in the claim, or such a state of facts as justifies a reasonable doubt in the mind of the moving party as to its validity.
    The denial of the original motion was without prejudice to its renewal upon additional proof, and after the above decision at General Term the motion was renewed, upon the complaint and the following affidavit, the new allegations in which are denoted by italics, the rest of the affidavit being the same as that used on the first application:
    “ Theodore Townsend, of the city of Albany, being duly sworn, says that he is the treasurer of Albany Savings Bank, the defendant in the above-entitled action; that said action has been brought and is now pending in this court to recover from said Albany Savings Bank the sum of seven hundred and seventy-three dollars and seventy-two cents ($773.72), now on deposit in said bank, with interest thereon, and claimed by the plaintiff in this action to be her property, as administratrix; that the complaint herein was served upon said defendant, Albany Savings Bank, on the 5th day of December, 1891; that no answer has been interposed to said complaint ; that this court was heretofore and on the 29 th day of December, 1891, moved for a similar order to the one now moved for, which motion was denied without preftdice to its renewal upon additional proof ; that an appeal to the General Term of the third department was duly taken from such order of denial, and that

      on the 2d day of July, 1892, said General Term affirmed the order-appealed from.

      “ Tlie deponent further says that Helen Stanley and Kate A. Judge, who are not parties to said action, prior to the beginning of this suit, but who are, or claim to be, daughters of said John II. Mcurs, made a/nd do now malee a demand of said bank for the payment to them of said sum sought to be recovered in this action, claiming to be entitled to the same, and to be the lawful owners thereof; that said demand was, and is, made without collusion with the defendant herein; that the nature of the claims of said Helen Stcunley a/nd Kate A. Judge and said plaintiff to said property, so far as known to this deponent, is as follows, namely: that the plaintiff in this action claims the said sum as administratrix of the late John H. Mars, deceased, and that the said Helen Stanley and Kate A. Judge claim the same by virtue of an alleged gift to them of said fund by the said John H. Mars, deceased, their father, during his lifetime. •
    “ That heretofore the said Helen Stanley and Kate A. Judge duly presented to said bank, and filed with it copies of two certain orders, purporting to be signed by said John II. Mars, dated September 15, 1888, directed to the treasurer of said bdnh and directing the treasurer thereof to pay to each of said Helen Stanley and Kate A. Judge respectively the sum of one thousand dollcurs ($1,000), as per accompanying pass booh, No. 61,883, and then stated to said banh that said orders, together with the pass booh therein referred to, were duly delivered to a certain Mrs. Many Gordon, with directions to deliver the same to said Helen Stanley and Kate A. Judge upon the death of said Mcurs; that, as this deponent was informed by Francis O. Devlin, Esq., the attorney for said claimants, said orders were duly delivered to said Stanley and Judge, as directed, but that said passbook, for some purpose unknown to this deponent and unexplained fo it by said claimants or their attorney, came into the possession of said John H. Mars, prior to his death, from said Mary Gordon, who failed to repossess herself of the same, and that it subsequently came into the possession of the plaintiff, as the administratrix of said John II. Mans.

      “ That this suit is brought to recover the balance now due on said account, number 61,883 (the account which said orders were d/ra/wn

      against, cmd which was represented by said pass book, number 61,883, cmd which stood in the name of said John II. Ma/rs at the time of his death), which said account roeos prior to cmy knowledge on the part of this defendant or cmy of its officers of the claim of scoid Stanley cmd Judge thereto, cmd after the death of said John II. Mars, and the appointment of this plaintiff as his administratrix, transferred on its books so as to stand in the name of this plaintiff cos such administratrix.

      “ That said plaintiff, after her appointment as administratrix, deposited in said account the sum of one thousand eight hv/nchred and thirteen dollars cmd sixty-two cents (§1,813.62), mid subsequently and prior to any notice cos aforesaid, drew out said sum and a further sum sufficient to reduce the balcmce ;m scoid account of one thousand one hundred and eighty-six doUa/rs cmd thirty-eight cents (§1,186.38), at the time of scoid John II. Mars’ death, to th > sum of seven hundred and seventy-three dollars cmd seventy-two cents (§113.12), which latter sum, with interest thereon from July 1, 1891, is still on deposit in scoid bemk cond claimed by the plaintiff herein, cmd colso by the said Helen Stanley cmd Kate A. Judge.

      “ That of the sioins of money withdrawn from the account as aforesaid, cot varioios times by Louise F. Ma/rs, as administratrix of John II. Mars, deceased, cmd a/moxmting to two thousand two hundred cmd fifty dollars (§2,250), the sum of one thousand eight hundred cmd thirteen clollcurs cmd sixty-two cents (§1,813.62) was, and tocos considered cmd intended to be by scoid Albany /Saving's Bank, a part of, and taken from, the sum deposited to the credit of said accoxmt by scoid Louise F. Mars, as administratrix, etc., and ord/y the balcmce of the money so withdremn, or the sum of fotor hundred and thirty-six dollars cmd thirty-eight cents (§436.38), was taken from the amoxont on deposit in said bank, to the credit of scoid account cot the time of the death of said Ma/rs, cmd accrued interest thereupon, and that the sum now on deposit in said bank is the balconee-of the sum on deposit in sold bank to the credit of John II. Mars, deceased, at the time of his death.

    “And deponent further says that the defendant has no interest in the question to whom said debt or deposit belongs, and is ignorant of tlie grounds and merits of the respective claims made to said fund or debt, except as above set forth, and does not know to which of the claimants thereof it may safely pay said fund or debt, or which of them is legally entitled to the same, cmd believes said claims to be made in good faith, and offers to pay the said sum so claimed into court, or to such person as this court may direct.
    “ THEODORE TOWNSEND.

      “ Sworn to before me this 24th 1 day of September, 1892. i
    “ H. W. Garfield,
    “ Nota/ry Public,, in and for Alba/rvy County.”

    The application was again denied, and from the order of denial the present appeal was taken.

      James Fenimore Cooper, for the appellant.

      Norton Chase, for the respondent.
   Mayham, P. J.:

We fail to see that the material facts on this motion differ in any essential particular from those presented on the former motion in this case.

The presentation to the defendant of what purported to be copies of orders purporting to have been made by the testator, unaccompanied by any originals or the original pass book, and the hearsay account of the attorney for Stanley and Judge of the alleged deposit of the order and pass book with Mary Gordon, carries with it very little weight and furnishes no evidence on which either the defendant or the court is authorized to presume a gift by the intestate either inter vivos or causa mortis, in the absence of the original orders or any proof on this motion, by affidavit, of Stanley, 'or Judge, or Gordon, all of whom are presumed to be living, and one of whom at least, is competent to testify upon this subject of the genuineness of the adverse claim of Stanley and Judge for this money.

Such evidence could have been obtained on this motion if attainable, or its /absence could at least have been accounted for, if this adverse claim is based upon any substantial grounds.

On the whole, we do not think the case essentially different from the one disposed of by this court on a former motion, and see nc reason for changing the views expressed in that case.

We cannot agree with the contention of the learned counsel foi the appellant that the law upon this subject, as declared in this department, is different from that in other departments in this Commonwealth.

The opinion of Learned, P. J., in Williams v. Ætna Life Ins. Co. (8 N. Y. St. Repr. 567), which is followed in this case, is in harmony with that of Yan Brunt, P. J., in Nassau Bank v. Yamndes (44 Hun, 58), and O’Brien, J., in Feldman v. Grand Lodge (46 N. Y. St. Repr. 122), and is not in conflict with, but distinguishable from, most of the cases cited by the learned counsel for the appellant.

Order affirmed, with ten dollars costs and printing disbursements.

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

Order affirmed, with ten dollars costs and printing disbursements.


author: Mayham, P. J. :

text:
    In the Matter of the Final Judicial Settlement of the Accounts of James A. Walrath, Respondent, as Administrator of the Estate of Matilda Sunderlin, Deceased. Sarah C. Thumb, Claimant, Appellant.

      Bemew of facts found by a surrogate— case containing the evidence necessary.

    To entitle an appellant, on an appeal from a surrogate’s decree, to a review of the facts found by the surrogate, a case containing the evidence must be made and settled by the surrogate, as prescribed by section 2576 of the Code of Civil Procedure.
    On tfce final settlement of an administrator’s accounts a claim to the property of the decedent was presented, based upon an alleged agreement between the decedent and the claimant that the claimant was to support the decedent, and in consideration therefor should, after the death of the decedent, have all her property. The surrogate awarded the property to the decedent’s next of kin, and the claimant appealed from the decree, but no case containing the evidence was made, and the referee’s findings of fact did not support the claimant’s theory of a contract.

      Held, that, under these circumstances, the decree must be affirmed, with leave, however, to the appellant, on payment of the costs of the appeal, to make a case under section 2576 of the Code of Civil Procedure, and, on such case, to have a reargument of the appeal.

      Appeal by the claimant, Sarah 0. Thumb, from that part of a decree of the Surrogate’s Court for Montgomery county, entered in the office of the surrogate on the '7th day of November, 1892, finally settling the accounts of James W. Walrath, deceased, as administrator, etc., of Matilda Sunderlin, deceased, and awarding the net surplus of the estate to said Walrath as next of kin of the intestate, which provides: “And Mrs. Sarah 0. Thumb having appeared by her counsel, J. W. Hill, claiming the surplus or remainder of said estate after the payment of the debts and expenses of administration, and having presented her petition in writing, and duly filed same, and the said surrogate having heard the allegations and taken the testimony of all the witnesses produced on the part of the claimant, and the same having been duly considered and found to be insufficient to prove or establish said claim, and the claim of said petitioner having been disallowed.” And also from the further portion of said decree, to wit: “ It also appearing that the said James W. Walrath is the nearest relation and only heir at law. or next of kin of said intestate, Matilda Sunderlin, deceased, and who is entitled to take and receive the net surplus or remainder of said estate. It is, therefore, ordered, adjudged and decreed that the said administrator retain the same, he being entitled thereto according to law.”

      J. W. Hill, for the appellant.

      Hwmn L. Huston, for the respondent.
   Mayham, P. J. :

The appellant, as coadministratrix in the above-entitled matter, presented on this final jxrdicial settlement a claim for all the surplus of this estate after the payments of the expenses of administration, and all the other debts proved, and allowed against the intestate, which claim was based upon an alleged agreement between the deceased in her lifetime and this appellant, that the appellant was to support the deceased during the latter part of her life, and in consideration therefor should, after the death of the deceased, have all her property and estate.

The administrator who files the petition for a final judicial accounting is the next of kin of the deceased.

The case contains none of the evidence taken before the surrogate, but contains a series of findings and refusals to find by the surrogate, from which the appellant claims that, as matter of law, the appellant should be decreed the balance of this estate remaining in the hands of the administrator.

But the surrogate expressly refuses to find: “ That an agreement was entered into and executed between Matilda Sunderlin and claimant, whereby the claimant was to provide and furnish a home, board and lodge the deceased during her lifetime, and, in consideration of the same, claimant is to have the property left by deceased at her death.”

This refusal to find expressly negatives the claim of the appellant, and if correct leaves the claim of the appellant entirely unsupported by any facts by which it can be upheld.

This finding of fact, if correct and permitted to stand, takes away plaintiff’s right to recover upon her alleged contract, and while, from some of the surrogate’s findings, it might be assumed that the deceased contemplated making some disposition of her property in favor of the appellant, yet there is nothing found by him which establishes a gift of this property by the intestate to the claimant, either inter vivos or causa mortis.

There was no such delivery to claimant as to constitute.a gift inter vivos. Nor is it found by the surrogate that any suggestion of the intestate as to her intention to give her property to the claimant, was made by her in contemplation of her sudden or immediate peril of death, and to take effect on the happening of that event, so ■as to constitute a donatio causa mortis.

There is nothing, therefore, in the record before us from which it can be determined as a question of fact from the findings of the surrogate that the agreement on which the appellant claims was ever made, or that she is entitled to the residue of the deceased’s property under any valid gift, and as the evidence before the surrogate is not before this court or embraced in the record this court cannot review the findings of fact made by the court below.

In appeals from the decree of a surrogate when the appellant seeks to review the fact found by the surrogate, it seems that á case should be made containing the evidence. By section 25f¡6 of the Code of Civil Procedure, it seems that if a party desires to review the facts a case must be made and settled by the surrogate.

The language of that section is: “ If it (an appeal) is taken from a decree rendered upon the trial by the surrogate of an issue of fact, it must be heard upon a case, to be made and settled by the surrogate, as prescribed by law, for the making and settling of a case upon an appeal in an action.” And upon this subject the authorities seem abundant and uniform. (Spence v. Chambers, 39 Hun, 193; Angevine v. Jackson, 103 N. Y. 470 ; Burger v. Burger, 111 id. 530; Matter of Falls, 29 N. Y. St. Repr. 759 ; Matter of Marsh, 45 Hun, 109.)

As the appellant has not thought proper to present a case containing the evidence on this appeal, and as the findings of fact of the surrogate do not support her theory of a contract, and as the decree gives the property to the next of kin, where the law, in the absence of any facts requiring a different disposition carries it, the decree must be affirmed.

Decree affirmed, with costs, with leave to appellant on payment of costs of the appeal to make a case under section 2576 of Code of Civil Procedure, and on such case have a reargument of this appeal.

Putnam and Herrick, JJ., concurred.

Decree affirmed, with costs, with leave to appellant to make case under section 2576, and have reargument on payment of costs.