author: Danforth, J.

text:
    Eugenia A. Rice, Respondent, v. Hetty J. Barrett et al., Ann Haughian et al., Purchasers, Appellants.
    By the will of B. and a codicil thereto his residuary estate was left in trust for the benefit of his children and grandchildren, the interest thereon to be invested and kept together for ten years after the death of the testator, at which time the estate was directed to be divided ; the portions given to his children “ to be held for and during their natural lives, respectively ; ” remainder to their children. Held, that the trust was in contravention of the statute prohibiting a suspension of the power of alienation for a longer period than during two lives in being at the creation of the estate (1 R. S. 723, § 15); and as the accumulated fund furnished the only support for the devises subsequently made, the whole scheme of distribution failed, and the title to the residuary real estate upon the death of the testator vested in his heirs at law, as in case of intestacy.
    (Argued March 16, 1886;
    decided April 13, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the second judicial department, made February 10, 1886, which affirmed an order of Special Term requiring Ann Haughian and another, as assignees of Charles P. Haughian, purchaser at a partition sale herein, to complete the purchase. This they refused to do because of alleged defects in the title.. The facts pertinent to the questions discussed are stated in the opinion.

      N. B. Sanborn for Haughian and others, appellants.

      Joseph A. Burr, Jr., for Shultz and others, appellants.
    Though the will does not in express terms direct the executors to collect rents and profits during the continuance of the trust estate, yet there is a necessity for so doing implied, and, consequently, the trust is a good one. (Savage v. Burnham, 17 N. Y. 561; Tobias v. Ketchum, 32 id. 319.) The statute of perpetuities is not violated because there is no portion of the estate where the power of alienation is suspended for more than one life; that is, the life of the child for whose benefit the provision is made. (Crook v. County of Kings, 97 N. Y. 437; Provost v. Provost, 70 id. 141.)

      Joshua M. Van Cott for respondent.
   Danforth, J.

After our decision upon a former appeal in this case (99 N. Y. 403), the sale then under review and subsequent proceedings were vacated- and a resale ordered. This was had on the 15th of October, 1885, and one Charles P. Haughian became the purchaser of one of the houses and lots. He assigned his bid to Ann Haughian and Margaret Haughian. They alleged defects in the title and refused to complete their purchase. Upon motion, the court at Special Term required them to do so. The General Term affirmed the order, and in that decision we concur. It is well settled that one who buys at a judicial sale may demand a title, free from any reasonable doubt, as condition precedent to the completion of his purchase. (Jordan v. Poillon, 77 N. Y. 518; People v. Board Stock Brokers, etc., 92 id. 98.) Here the sale was in partition, and the appellants contend that the procedure in the action was such as to leave them to the hazard of a contest with persons who, as the devisees of the common ancestor, had an interest in the premises and should have been parties to the action, but by reason of certain, irregularities in its preliminary stages, were not properly brought in and so are not to be bound by the judgment.

On the other hand, the respondent insists that these persons were not necessary parties, and that it is of no consequence whether the steps taken against them were effective or not. We shall, therefore, confine our inquiry to the respondent’s proposition. Jacob Barrett was the common source of title. He died leaving a will and testament, the residuary clause of which includes the premises sought to be partitioned, and is in these words : “All the rest and residue of my estate, both real and personal, of whatsoever character and kind, I leave in trust of my executors for the benefit of my children and grandchildren, the interest of all such property to be invested in safe securities and kept together until twenty (20) years after my death, and at that time it is my will and desire that the final division of my éstate shall take place, according to the tenor and meaning of this my last will among my surviving children, the child or children of either of my children who may have departed this life previous to this distribution standing in the places of such deceased parent.’’

By a codicil he says: “ The final division of my estate shall take place among my surviving children at the period of ten years after my death, instead of twenty years as specified in my said will, and that at such time the amounts devised to my children be first equalized, and the residue divided as therein directed. I do further direct that the portions of my estate left to all of my children shall be subject to the following trust, to-wit: In trust to them for life, and after their death to such children as they may leave surviving, the child or children of any deceased child to take such share as his, her or their parent would have taken if alive. And in case there should be no such child or children, grandchild or grandchildren, then the same to revert to my estate, and become devisable as a part of the residue of my estate.”

The will itself, so far as is not inconsistent with the codicil, is by it confirmed, and directs that the property given by the testator to his children, whether by special devise or as part of the residue, “ shall be held by them for and during their natural lives respectively,” and the testator also says:

“ It is my further will and desire that should any of my children depart this life, leaving no child or children surviving him or her, or should the child or children left surviving by any of my children departing this life shall so depart this life before attaining the age of twenty-one (21) years, or marriage,. the property devised to such child or children shall revert to my estate, and shall become devisable as a part of my estate and subject to the same conditions as the residue of my estate.”

From these words it is apparent that the testator intended that his residuary estate should remain in the hands of his executors for the simple purpose of accumulation for the period of ten years after his death. The trust is not made determinable with or within any two ascertained lives, nor is it limited by life, but during the whole of that fixed term the estate is inalienable “though all mankind should join in the conveyance.” The direction concerning it is, therefore, in violation of the statute which in terms prohibits such’suspension “by any limitation or condition whatever, for a longer period than during two lives in being at the creation of the estate.” (1 R. S., tit. 2, pt. 11, chap. 1, p. 723, § 15 ; Hone's Ex'rs v. Van Schaick, 20 Wend. 564.) It is also apparent that this accumulated fund will furnish the only support for the devises subsequently made, under which alone the appellants claim. It follows, therefore, that the scheme of distribution must fail, without regard to other difficulties discussed by the learned counsel for the respondent. Such was the judgment in partition, and it was thereby properly declared that the residuary clause was void, that the title to the lands and premises therein included, vested in the heirs at law of the testator as though he had died intestate. All those persons were brought in, either as parties to the original complaint in partition, or by supplemental complaint. Those brought in by supplementary proceedings, although infants, were bound by the judgment, against the validity of which they failed to show cause.

Some other objections are urged in behalf of the above-named purchasers, and in behalf of appellants, Schultz and others, who separately appeal, but they seem unimportant and in no way affect the title to the property in question. We think, therefore, that the appeals must fail, and the order appealed from be affirmed, with one bill of costs in this court to be paid to the respondent’s attorney.

All concur.

Order affirmed.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Caleb S. Woodhull, Respondent, v. Robert Little et al., William J. Northridge, Purchaser, Appellant.
    The final order of confirmation of sale in a partition suit has the force and effect of a judgment which binds the parties, where there is compljurisdiction, whatever errors or irregularities may have preceded it. (2 R S. 327, §§ 60, 61; Code of Civ. Pro., §§ 1557, 1577.)
    Accordingly held, that an omission from a referee’s advertisement of sale of a portion of the lands embraced in the action and directed to be sold by the judgment did not vitiate a sale by the referee of the omitted portion, where, upon motion made, on due notice to all the parties interested, the sale was confirmed; and that the irregularity was not a defect in the title acquired on such sale.
    (Argued March 16,1886;
    decided April 13, 1886.)
    Appeal from order of the General Term of the City Court of Brooklyn, made February 6, 1886, which affirmed an order of the Special Term requiring William J. Rorthridge, the purchaser at a foreclosure sale herein, to complete his purchase. This he had refused to do, because of an alleged defect in the title, which is specified in the opinion.

      S. F. Randall for appellant.
    The regulations of the law were not complied with, and there are no statutes which cure the defect. (Title 3, chap. 5, part 3, R. S.; Code, §§ 16, 78.)

      George F. Oomstooh for respondent.
    The omission in the referee’s advertisement of sale of a portion of the land to be sold did not vitiate the sale of such portion. (Code, §§ 1386, 1532-1595, 721; subd. 12, §§ 723, 724; Laws of 1877, chap. 417.) The order of confirmation of sale in partition is in the nature of a final order, judgment or decree, and may be appealed from. If there is jurisdiction and there is no appeal,"then it is final to the like extent as other judgments and decisions are final. It cannot be assaulted in collateral proceedings. (Field’s Lawyer’s Briefs, §§ 495, 497, and cases cited; Blakely v. Calder, 15 N. Y. 617; Abbott v. Curran, 98 id. 665, 667; Wood v. Morehouse, 45 id. 368 ; Noble v. Cromwell, 3 Abb. App. Cas. 382; Lefevre v. Laroux, 22 Barb. 167.)
   Finch, J.

The alleged defect "upon which the purchaser relies to justify his rejection of the title offered arose in a partition sale which constituted one link in the chain of conveyances. Flo suggestion is made of any want of jurisdiction in the partition suit over all the parties interested in the land, and snch complete jurisdiction must be presumed. The irregularity which occurred was an omission from the referee’s advertisement of sale of the portion of the lands here in question. The judgment in the partition suit was rendered in 1876, and directed a sale of all the property by a referee appointed for that purpose, giving six weeks’ notice of the time and place! The referee made a map of the premises, which covered twenty-five city blocks and more than one thousand separate lots, and advertised them all for sale under the decree on the 15th day of May, 1878. Following this notice there were ten different adjournments running on to April, 1880, and during this period about one-half of the lots were sold. On the 3d of May, 1880, the referee caused to be published a new notice of sale intended to cover the balance of the lots, but, by some accident or inadvertence, omitting to describe the lands in question, and under that notice these premises were sold. FTobody objected and nobody was misled, and after the sale a motion for confirmation was made upon due notice to all parties interested and the sale was confirmed. After such confirmation the Revised Statutes (2 R. S. 327, §§ 60 and 61), and the Code of Civil Procedure (§§ 1557 and 1577), make the conveyances executed accordingly “ a bar both in law and equity against all persons interested in the premises, parties to the proceedings,” etc. The error in the notice of sale did not render it void. It was one which could be corrected by any party to the record upon application to the court. (Abbott v. Curran, 98 N. Y. 665.) The case cited was an action of foreclosure in which a sale was made by a referee instead of the sheriff without the consent of all parties to the record. The final order of confirmation has the force and effect of a judgment which binds the parties where there is complete jurisdiction, whatever errors or irregularities may have preceded it. (Blakeley v. Calder, 15 N. Y. 617.) The defect alleged, therefore, did not invalidate the sale as confirmed by the final judgment rendered, and that judgment is conclusive upon the parties.

The order should be affirmed, with costs.

All concur.

Order affirmed.


author: Miller, J.

text:
    Hat Sweat Manufacturing Company, Respondent, v. William H. Reinoehl et al., Appellants.
    In an action by the owner of a patent right against a licensee, for a breach of a contract to pay royalties, a State court has no jurisdiction to restrain the defendant pendente lite from manufacturing or selling the patented article; this is within the exclusive jurisdiction of the Federal courts.
    (Argued March 16, 1886;
    decided April 13, 1886.)
    Appeal from order of the General Term of the Supreme Oourt, in the first judicial department, made February 3,1886, which affirmed an order of Special Term, the nature of which and of the action as well as the material facts are stated in the opinion.

      George Wiloow for appellants.
    The injunction in this case was improperly allowed for the reason that it does not appear from the complaint that the plaintiff is entitled to final relief by injunction, and in such case a temporary injunction is unauthorized. (McHenry v. Jewett, 90 N. Y. 58.) Plaintiff is not entitled to an injunction on the ground of equitable accounting. (Porter v. Spencer, 2 Johns. Ch. 169; Smart v. Einstein, 35 How. Pr. 241.) A state court has no jurisdiction to restrain infringement of patents. (Hovey v. Rubber Tip Pencil Co., 57 N. Y. 119; Continental Store Service Co. v. Clark, 3 East, 100.) There is no irreparable injury. (1 High, 34; McHenry v. Jewett, 90 N. Y. 58.) The defense of fraud is valid. (Saxton v. Dodge, 57 Barb. 84, 112, 114; Middlebrook v. Broadbent, 47 N. Y. 443; Marston v. Swett, 66 id. 306; 82 id. 534; Cross v. Huntley, 13 Wend. 385; Head v. Stevens, 19 id. 411: Stemner's Appeal, 58 Penn. St. 154.)

      Edward S. Bapallo, for respondent.
    The appeal should be dismissed because it does not appear upon the face of the complaint that the case is one where by settled adjudication the plaintiff upon the facts stated is not entitled to final relief. (Hatch v. Western Union Telegraph Co., 93 N. Y. 640; Foster v. Buffalo, 92 id. 629; Selchow v. Baker, 93 id. 59; People et al. v. Schoonmaker, 50 id. 500; Rae v. Mayor, 62 id. 631 ; Patten v. N. 7. Elevated R. R., 67 id. 484 ; Brown v. Keeney, 59 id. 242; Calkin v. Manhattan Oil Co., 65 id. 557; Young v. Campbell, 75 id. 525.) The plaintiff is entitled to a final judgment against the defendants, restraining the use, by them, of the machines and inventions covered by the patent, and from selling products containing such inventions, until and unless they pay to the plaintiff the royalties agreed to be paid by the contract. (Hyatt v. Ingalls, 17 J. & S. 375; Union Mfg. Co. v. Lounsbury, 41 N. Y. 372; Brooks v. Stolley, 3 McLean, 523, 529; Day v. Hartshorn, 3 Fisher’s Pat. Cas. 32, 42; Goodyear v. Congress Rubber Co., 3 Bl. C. C. 445, 449 ; Gibson v. Weld, 1 Blatchf. 165, 166; Hartell v. Tilgham, 99 U. S. 547; Adams v. Meyrose, 2 McCr. 360.) The plaintiff is entitled to an injunction order pendente lite to restrain the use, by the defendants, of the machines and inventians covered by the patents, and from selling products containing such inventions, until and unless they pay to plaintiff the royalties agreed to be paid by the contract. (Code, § 603; McHenry v. Jewett, 90 N. Y. 63; Singer Co. v. Union Button Co., 1 Holmes, 253 ; Brooks v. Stolly, 3 McLean, 525; Goddard v. Wilde, 17 Fed. Rep. 845; Day v. Hartshorn, 3 Fish. 36.)
   Miller, J.

This is an appeal from an order of the General Term, affirming an order of the Special Term, granting a temporary injunction restraining the defendants from manufacturing, selling or using certain alleged patents known as hat sweat bands,” until they pay the royalties claimed to be due by virtue of a license issued to them.

The material allegations in the complaint are as follows: That by virtue of certain letters-patent, the plaintiff has the exclusive right to manufacture and sell the article in question; that having such right, it licensed the defendants to manufacture and sell the same; that in consideration of such license, the defendants promised to make monthly reports of the number manufactured by them and pay certain license fees; that they refuse to report or to pay the said fees.

The injunction was granted on the ground that it appears from the complaint that the plaintiff demands and is entitled to a judgment against the defendants restraining the said acts, and that their commission and continuance pending the action will produce injury to the plaintiff.”

The plaintiff’s claim rests upon the contract entered into between it and the defendants, by virtue of which the defendants were licensed to manufacture and use the sweat bands which are the subject of this controversy. The defendants claim that they were induced to sign said contract by fraudulent representations, and that upon discovering the fraud they repudiated the contract. Several suits have been brought for license fees due prior to February 1,1885, and in each of these suits the defendants have answered, among other things, denying the allegation in the complaint that the plaintiff was the owner and proprietor of the letters-patent set forth therein. They also set up that the contract was obtained by false and fraudulent representations, that all the patents were good and valid, and that the plaintiff had the exclusive right to the use of the same; that the same had been confirmed by decisions in the United States courts, and that plaintiff made other representations showing title to said patents, that relying upon such statements and representations and being deceived thereby, the defendants executed said contract.

From the affidavits read upon the motion to continue the injunction, it is apparent that the question as to the validity of the patents and the right of the plaintiff to the exclusive use of the same is the subject of controversy to be determined in the action. The defense interposed involves the question whether the plaintiff had title to and was the owner of the patents in reference to which the contract was entered into.

It also appears from the affidavits of the defendants, used upon the motion, that they are perfectly responsible and able to pay any judgment that may be recovered against them.

In Continental Store Service Co. v. Clark (100 N. Y. 365), it was held that while a State court has jurisdiction to decide questions as to the title to letters-patent granted by the Federal government, or of an action on a contract, although such action involves the validity of a patent, it has no authority to restrain a party from using the patent pendente lite, or in any way to pass upon a question as to an infringement of the patent right; as to this, the Federal courts have exclusive jurisdiction. Within the rule laid down in the case cited it is manifest that no jurisdiction existed to grant the injunction against the defendants, and that the remedy of the plaintiff, by injunction, was vested exclusively in the United States courts.

In the case cited the action was brought to compel the specific performance of a written agreement, under seal, and to "remove a cloud on the title of the plaintiff to certain property, manufactured by the plaintiff by virtue of the written agreement and as assignee of the same and of certain patents .therein mentioned, and to prevent respondents from using the patents pendente lite. It is said in the opinion that “ a State court cannot grant relief beyond its jurisdiction, as an incident to other relief which is within its power. It may determine what the contract is and in whom the title to the patent is vested, but it has no right to say that a party shall be enjoined from using the patents, or in any way to pass upon any question arising as to its infringement.”

We are unable to perceive any difference between the ease cited and the one at bar, and no reason exists why the former is not controlling and decisive of the question now presented. It is also apparent that the plaintiff had an ample remedy at law by an action upon the contract for the recovery of damages for the failure of the defendants to perform the same. Several of these actions have already been commenced, and there are no such features in the case now considered which entitles the plaintiff to the benefits arising from the injunction in enforcing its rights. The defendants are, as the proof shows, perfectly responsible, and any judgment recovered against them can be collected. Inasmuch, however, as the case may be disposed of upon the question as above considered, it is not necessary to determine whether the injunction should be dissolved upon the ground last stated.

The order of the General Term and of the Special Term should be reversed, and the injunction dissolved.

All concur.

Ordered accordingly.


text:
    Mary Augusta King, Executrix, etc., et al., Respondents, v. The Mayor, Aldermen and Commonalty of the City of New York et al., Appellants.
    Where, under a statute closing a highway, damages were directed to be awarded and paid to the owners of premises injured by the closing, held, that the right to damages was personal, and belonged to an owner at the time of the closing, although before the award he had conveyed his title.
    Where, after such a statutory closing of a highway, an owner of premises injured conveyed them, bounding the lands conveyed by the highway,
      held, that the deed did not convey an easement in the highway, which entitled the grantee to the damages subsequently awarded ; that the latter was chargeable with knowledge that the highway no longer existed, and was to be presumed to have purchased in view of that fact.

      Also held, that, in the absence of a covenant in the deed that the road was or should remain a public highway, none such could be implied ; that it was not included in a covenant of warranty, as such a covenant is only commensurate with the grant and is not, therefore, applicable to an easement not in fact conveyed ; also that the only easement which by possibility could be even claimed from the words of the deed, if construed as more than mere description, would be a right in common with the public over a public highway, which, if it existed, the grantor co.uld not effectually convey, and so, it could not be appurtenant to the land, and would not pass by the use of the word “ appurtenances ” in the deed.
    The distinction pointed out between this case and one where an owner has made a map of lands, on which he has laid out streets, and so dedicated them, and then conveys by reference to the maps and streets.
    (Argued March 18, 1886 ;
    decided April 13, 1886.)
    Appeal from judgment of the General Term of the Superior Court of the city of New York, made June 16, 1884, in favor of plaintiffs, entered upon a case submitted under section 1279 of the Code of Civil Procedure. (Reported below, 18 J. & S. 406.)
    The matter in controversy was as to the right to an award of damages to certain premises by the closing of the Bloomingdale road, which amount was claimed by plaintiffs and by defendant, The Trustees of St. Patrick’s Cathedral.
    On the 25th day of April, 1871, Edward King and Wm. Henry King were the owners in fee of certain lots of land situate on said road, between Ninety-sixth and Ninety-seventh streets, in the city of New York. On that day this property was conveyed to Richard Brennan. Bloomingdale road was closed in March, 1868, under the provisions of chapter 697 of the Laws of 1867. The award for the damage caused by the closing was made in December, 1880. The amount awarded for damage to the lots so conveyed to Brennan is $7,865. The plaintiffs have succeeded to the rights of Edward and Wm. Henry King, and the defendants above mentioned have succeeded to the rights of Richard Brennan. The lots in the deed to Brennan are hounded in front by the easterly side of the Bloomingdale road. The deed also conveyed to said Brennan all the right, title and interest of the grantors, if any, in and to so much of the land of said Bloomingdale road as is adjacent to the land and premises conveyed. The deed contained the usual covenant of warranty; it conveyed the lands described, with the “ hereditaments and appurtenances.”

      Charles E. Miller for appellants.
    The ordinary effect of the description bounded by the easterly side of the Bloomingdale road would be to convey an easement and right of way over the road. (In re Mayor, etc., 2 Wend. 472; Smyles v. Hastings, 22 N. Y. 217; Cox v. James, 45 id. 557.) The fund representing the damage to the premises by reason of the nonexistence of the road being in court, will be administered by it in equity according to the equitable rights of the parties. (Underwood v. Stuyvesant, 19 Johns. 181; In re Application Mayor, etc., 1 Wend. 262; In re Mercer Street, 4 Cow. 544 ; Livingston v. Mayor, etc., 8 Wend. 85, 100; Bissell v. N. Y C. R. R. Co., 23 N. Y. 61, 64; In re Eleventh Ave., 81 id. 436 ; Cox v. James, 45 id. 557; Wiggins v. McCleary, 49 id. 346; Taylor v. Hopper, 62 id. 649.) Plaintiffs having conveyed the lots, describing them as bounded by a road, are estopped to deny that such a road existed, or that the grantor might use the same, and such estoppel is as effectual as a warranty. (Washburn on Beal Estate, 467 ; Parker v. Smith, 17 Mass. 413; Emerson v. Wiley, 10 Pick. 310; O'Linda v. Lathrop, 21 id. 292; Tuft v. Charlestown, 2 Gray, 271; Thomas v. Poole, 7 id. 83; Farnsworth v. Taylor, 9 id. 162; Rodgers v. Parker, id. 445; Stetson v. Dow, 16 id. 372; Gaw v. Hughes, 111 Mass. 296 ; Howe v. Alger, 4 Allen, 206.) Equity will apply the maxim nemo debet locupletari ex ahtarius incommoda. (Story’s Eq. Jur., § 1234; Branch’s Maxims, 124; Dig. Cor. Juris. Civilis, Lib. 50, tit. 1, p. 200.)

      James A. Peering for respondents.
    The road was closed March 8, 1868, when the map of the Central Park commissioners was filed omitting it. (Chap. 697, Laws of 1867, § 3;
      Fearing v. Irwin, 4 Daly, 385 ; affirmed, Ct. of App., 55 N. Y. 486.) The right to such damages became then absolute. (Hatch v. Mayor, etc., 43 N. Y. Sup. Ct. 426.) The right to damages in such cases, although not ascertained or allowed, will not pass by deeds executed subsequently to the act causing damage. (Schuyler Nav. Co. v. Decker, 2 Watts [Penn.], 343; McFadden v. Johnson, 72 Penn. 335 ; Arthur v. Penn R. R., 27 Leg. Int. 237; Tenbrook v. Jakke, 77 Penn. 392; Cent. R. R. Co. v. Hetfield, 5 Dutch. 206 ; Jones v. Costigan, 12 Wis. 677; Adams v. Conover, 87 N. Y. 422.) Defendant’s claim must be based upon some specific covenant. There can be no claim upon any implied covenant. (1 R. S. [2d ed.] 689.) There is no specific covenant or statement as to the existence of said road as a public road in the deed. The reference to the road is in the general description only, and this does not amount to a covenant or representation upon which an action may be maintained. ( Wheeler v. Clarke, 58 N. Y. 267; Howe v. Alger, 4 Allen [Mass.], 206 ; Hennessy v. O. C. & N. R. R. Co., 101 Mass. 540.) The filing of the map was constructive notice of the action of the Central Park commissioners. ( Wheeler v. Clark, 58 N. Y. 267.) Brennan is presumed to have contracted in reference to the condition of the property as it was at the time of sale. (French v. Carhart, 1 Comst. 107; Harsha v. Reid, 45 N. Y. 415; Hennessy v. O. C. & N. R. R. Co., 101 Mass. 540; Howe v. Alger, 4 Allen, 206; Green v. Hollis, 86 N. Y. 246 ; 3 Willard on Peal Prop. 514, § 4.) Where a grantor in his deed fconveys, fronting on a street which the public authority has not laid out or accepted, the grantee at most can only claim a private easement or right of way. Such dedication is not public, and no right to the use thereof by the general public is given. (Cox v. James, 45 N. Y. 557; Bissell v. N. Y. C. R. R. Co., 23 id. 61; Perrin v N. Y. C. R. R. Co 46 id. 120; Underwood v. Stuyvesamt, 19 Johns. 181.)
   Finch, J.

The first question presented by this appeal is as to the ownership of an award of damages for the closing of the Bloomingdale road. That road ceased to be a public highway, in March, 1868, when Edward and William Henry King were the owners of premises injured hy the closing, and who, under the provisions of the statute, became entitled to all damages which might be awarded for the injury done. The right to those damages at once accrued, and although they were not fixed and ascertained until after the conveyance by Kings to Brennan and by the latter to the trustees of the cathedral, the fact does not alter the character of their right as a personal one, vested in them at the closing of the road. When paid it relates back to the original debt which accrued at that time. That right remained theirs and passed to the plaintiffs as their representatives, unless it was transferred by the deed of the premises executed by the Kings to Brennan. It was not in terms embraced in the deed and was a mere right of action not running with the land. The damages were like those which follow a trespass or wrongful taking of property, although the wrong is made rightful by the legislative authority and the damages are awarded as compensation. That has been held in cases where a railroad corporation has taken an owner’s land, and thereafter, but before actual assessment, the owner conveyed the land. The assessed damages have been awarded to the owner as not passing by the deed. (Schuylkill Nav. Co. v. Decker, 2 Watts [Penn.], 343; McFadden v. Johnson, 72 Penn. St. 335.) The argument here made is this, that the deed to Brennan bounded the lands by the Bloomingdale road; that such description conveyed an easement in the highway; that the damages awarded were compensation for that easement lost and destroyed, and so passed by the deed as substitute and equivalent for the easement. The argument is unsound for two reasons. Merely bounding premises by a public highway for purposes of description, and where it is referred to as any fixed mai’k or monument might be, is very different from selling by reference to a map or plat on which the grantor has laid out streets ■ and made a dedication and exposed himself to the equities of an estoppel; and then the road was in fact closed when the deed was made to Brennan, who knew or was bound to know that the public highway no longer existed, and must be presumed to have bought and fixed his price in view of that fact. The courts below, therefore, correctly held that the award belonged to the plaintiffs.

Nor was the estate of the grantors liable for any breach of covenant in respect to the Bloomingdale road. No express covenant that it was a public highway or should so remain was contained in the deed, and the statute forbids that any should be implied. The covenant of warranty we have held to be commensurate with the grant, and, therefore, not applicable to an easement not in fact conveyed, and much less to one not even in existence, and known to have been destroyed by express enactment when the conveyance was made. The only easement which by possibility could be even claimed from the words of the deed, if construed as more than mere description, would be a right in common with the public over a public highway, and that, if it existed, the grantor could not effectually convey, and so it could not be appurtenant to the land and v pass by the use of that phrase; and what did not pass by force of the grant is not covered by the warranty. (Green v. Collins, 86 N. Y. 246.) The conclusion that the estate represented by plaintiffs was not liable for a breach of warranty was, therefore, correct.

The judgment should be affirmed, with costs. •

All concur.

Judgment affirmed.


author: Huger, Ch. J.

text:
    In the Matter of the Application of Martin T. McMahon, Receiver of Taxes, Respondent, v. Francis A. Palmer, Appellant.
    The provision of the act “ in relation to taxes and assessments in the city of New York,” etc. (§ 7, chap. 302, Laws of 1859), requiring the deputy tax commissioners personally to examine “ each and every house, building, lot, pier or other assessable property,” and to furnish under oath to the commissioners of taxes a detailed statement of such property, refers only to real property, not to personal.

      It is not essential that the oath so required shall be made on any particular day ; if it be taken after the examination of property is made by the deputy and before the statement is filed with the commissioners, it is sufficient.
    In the assessment of shares of national banks located in the city of New York, und,er the act of 1880 (§ 3, chap. 596, Laws of 1880 ; amended by chap. 477, Laws of 1881), when the owner does not reside in the ward where the bank is located and has no real estate therein, it is proper that the assessment be made upon a list specially prepared for that purpose, although the owner lives and is assessed for personal property in another ward of the city.
    Such' a mode of assessment is not in conflict with the provision of the United States Revised Statutes (§ 5319), which authorizes the inclusion, for purposes of State assessment and taxation, of shares of national banks, in the valuation of the owner’s personal property; the provision affects only the judicial act of the assessors, not the mere ministerial act of those officers in estimating and noting the result of their judicial determination.

      Albany City Bank v. Maher (19 Blatchf. 174), distinguished.
    The system of taxing the shares of national bank stock in this State is not repugnant to the restriction imposed upon such taxation by the National Banking Act (U. S. R. S., § 5319); i. e., that the taxation shall not be at a greater rate than is assessed upon “other moneyed capital” in the hands of individual citizens of the State ; the statute simply brings the capital invested in national banks within the taxing power of the State and places it on terms of equality in respect thereto with all other assessable personal property.

      It seems that investments in the shares of railroad, ferry, canal, manufacturing and other industrial corporations are not “moneyed capital” within the meaning of said provision of the Federal statute.

      It seems, also, that the exemption from taxation by State law of some . moneyed capital does not necessarily invalidate a statute authorizing an assessment upon national bank shares.
    The fact that some corporations, or some personal property, is subject to a less rate of taxation than that employed in banking corporations will not alone vitiate the law imposing taxes upon bank ’shares, unless it appears to be the clear, legislative intent to thereby effect discrimination against them.
    The provisions of the act of 1843, “ for the collection of taxes in the city of New York ” (Chap. 330, Laws of 1843), authorizing proceedings to punish for misconduct in refusing or neglecting to pay a tax upon personal property, are not violative of the constitutional prohibition against depriving the citizen of his property “ without due process of law.” The proceedings by which taxes for governmental purposes are collected are administrative, not judicial in their character, and the summary method of procedure so authorized is due process of law within the meaning of the Constitution.

      Where, in proceedings under said act, it appeared that the person proceeded against had full notice of proceedings for the imposition of the tax and an opportunity to question their correctness, by proceedings to review the action of the assessing officers, but omitted so to do, held, that he was estopped from raising any question affecting the regularity of the proceedings or the exercise of the judicial powers conferred upon the ■ assessors in making the assessment.
    (Argued March 18,1886 ;
    decided April 13, 1886.)
    Appeal from order of the General Term of the Court of Common Pleas in and for the city and county of Sew York, made March 13, 18'84, which affirmed an order of Special Terra, directing the commitment of the defendant until he shall pay the amount of a personal tax imposed upon him, with costs, etc. The proceeding was under chapter 230, Laws of 1843.
    The material facts are stated in the opinion.

      William Hildreth Meld for appellant.
    The system of taxing the appellant’s national bank shares resulted in taxing the moneyed capital invested in them at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of this State invested in other investments, and was beyond the authority of this State and the jurisdiction of the tax commissioners. (1 U. S. R. S., § 5219; People v. Weaver, 100 U. S. 543; Boyer v. Boyer, 113 id. 689; County of San Mateo v. Southern Pac. R. R., 8 Am. & Eng. R. R. Cas. 1; People, ex rel. Westchester F. 1. Co., v. Davenport, 91 N. Y.. 574.) This proceeding under chapter 230 of the Laws of 1843 would deprive the appellant of his property and liberty without due process of law, and deprive him of the equal protection of the same, violating the fourteenth amendment of the Constitution of the United States. (Kentucky R. R. Tax Cases, 115 U. S. 322; County of San Mateo v. South. Pac. R. R., 8 Am. & Eng. R. R. Cas. 1; Stewart v. Palmer, 74 N. Y. 183.) The oath of the deputy tax commissioner, appended to the book containing the assessment of the shares of the 27ational Broadway Bank, failing to comply with the provision of the statute relative to the form of oath to assessments, is a jurisdictional defect and fatal to the validity of the assessments. (Brevoort v. City of Brooklyn, 89 N. Y. 129; Westfall v. Preston, 49 id. 349; Bellinger v. Gray, 51 id. 610; Bradley v. Ward, 58 id. 401; People v. Suffern, 68 id. 321; Merritt v. Village of Port Chester, 71 id. 309; Hinckley v. Cooper, 22 Hun, 253; Schreiber v. Kuehler, 49 Wis. 301; Merrill v. Taylor, 6 Neb. 236.) The oath of the deputy tax commissioner appended to the book containing the assessment of the shares of the National Broadway Bank being premature is a jurisdictional defect and fatal to the validity of the assessment. ( Westfall v. Preston, 49 N. Y. 349; Albany City Bk. v. Maher, Receiver, 19 Blatchf. C. C.175.) The legislature may prescribe the kind of notice and the mode in which it shall be given, but it cannot dispense with all notice. (Stewart v. Palmer, 74 N. Y. 183, 188; Laws of 1859, chap. 302, § 9.) Where a later statute not purporting to amend a former one upon the same subject covers the whole .subject and was plainly intended to furnish the whole law thereon, the former statute will be held to be repealed by necessary implication, although the later statute contains no repealing clause. (Heckmam, v. Pinckney, 81 N. Y. 211.)

      D. J. Bean for respondent.
    The tax commissioners had jurisdiction, under chapter 596 of the Laws of 1880, to assess the respondent as a stockholder in the National Broadway Bank, in the city of New York, on the value of his shares of stock therein, for the purpose of taxation in the year 1881. (People, ex rel. Bk. of Commerce, v. Cotn’rs of Taxes, 2 Black, 620 ; People, ex rel. Bk. of Commonwealth, 9 Wall. 353; Lionberger v. Rouse, id. 468 ; 2 R. S. [7th ed.] 991; People, ex rel. Williams, v. Weaver, 100 U. S. 547; People v. Com'rs, 4 Wall. 244; Stanley v. Supervisors, 15 Otto, 318; Gallatin v. Com'ers, 4 id. 415; People v. Com'rs, 4 Wall. 244; Albany City Bk. v. Maher, 19 Blatchf. C. G. 178; First Nat. Bk. of Utica v. Waters, id. 242.) The providing of a separate system for the taxation of certain corporations by chapter 542 of the Laws of 1880, does not operate to make the system provided for taxing bank shares by chaptet 596 of the Laws of 1880 obnoxious to the. restrictions of section 5219 of the H. S. Revised Statutes. (People, ex rel. Westchester F. I. Co., v. Com’rs, 91 N. Y. 571; Albany City Bk. v. Maher, 19 Blatchf. C. C. 178; Van Allen v. Assessors, 3 Wall. 584; Farrington v. Tenn., 95 U. S. 687; Union Bk. v. State, 9 Yerg. [Tenn.] 490; Delaware R. R. Tax, 18 Wall. 206; Bradley v. People, 4 id. 459 ; Nat. Bk. v. Commonwealth, 9 id. 353 ; People v. Com’rs, 1 id. 256; Hepburn v. School Dist., 23 id. 485 ; Prov. Inst. for Savings v. Boston, 10 Mass. 583 ; Lionberger v. Rouse, 9 Wall. 476; Tappen v. Merch. Bk., 19 id. 540; Everitt's Appeal, 71 Penn. St. 219; Mc Veagh v. Chicago, 49 Ill. 329; Evansville Bk. v. Britton, 15 Otto, 324.) In the absence of jurisdictional errors, there is no power in the court, at this stage of the proceeding, to review the action of the commissioners of taxes, and remit or reduce the tax. Mygatt v. Washburn, 15 N. Y. 316 ; Wade v. Matheson, 4 Lans. 158; Bailey v. Buell, 59 Barb. 158; Palmer v. Lawrence, 6 Lans. 282; Darwin v. Strickland, 57 N. Y. 492; Wheeler v. Mills, 40 Barb. 644; Metcalf v. Messenger, 46 id. 325; Laws of 1859, chap. 302, §§ 8-11; id., § 20; Laws of 1867, chap. 410, § 4; Laws of 1870, chap, 382, § 8; Ontario Bk. v. Bunnell, 10 Wend. 186; Eaton v. Callender, 11 id. 91; Van Rensselaer v. Whitbeck, 5 Barb. 133; Van Rensselaer v. Cottrel, 7 id. 127; Chegaray v. Jenkins, 5 N. Y. 376; Vail v. Owen, 19 Barb. 22; People v. Halsey, 53 id. 547; Barhyte v. Shepperd, 35 N. Y. 238 ; Foster v. Van Wyck, 2 Abb. Ct. of App. Dec. 167 ; Osborn v. Danvers, 6 Pick. 89; In re Boyd, Assessors, v. Gray, 34 How. 323; Smith v. Intern. L. Ass. Co., 35 id. 126; Bk. of Commonwealth v. Mayor, etc., 43 N. Y. 184; Union Steamboat Co. v. Buffalo, 82 id. 351; Hill v. Sellick, 21 Barb. 207 ;Swift v. Poughkeepsie, 37 N. Y. 511; Gen. Valley Bk. v. Suprs. of Livingston, 53 Barb. 293.) The entry of the assessed valuation of bank shares in the city of New York in a separate set of books is not a failure to comply with the provisions of the statutes, and assessments so entered are not void. (Foster v. Van Wyck, 2 Abb. Ct. of App. Dec. 167 ; Williams v. Wea

      ver, 15 N. Y. 30.) The appellant cannot impeach the assessment on the ground that sufficient notice was not given to him. (In re De Peyster, 80 N. Y. 572 ; In re Lowden, 89 id. 548; Meth. P. Church v. Baltimore, 6 Gill, 391; O’Neil v. Bridge Co., 18 Md. 126; Cooley on Taxation, 266.) The confirmation of the assessment and laying of the tax by the board of aldermen is sufficient. (Billings v. Mayor, etc., 68 N. Y. 416.) The oath taken- by the deputy tax commissioner is sufficient to fulfill the requirements of the statutes. (In re Kendall, 85 N. Y. 305; In re M. & H. R. R. Co., 19 Wend. 135 ; Weeks v. Ellis, 2 Barb. 320; People v. Cook, 8 N. Y. 67; People v. Hopson, 1 Denio, 574; Parish v. Golden, 35 N. Y. 462; B. & S. L. R. R. Co. v. Supervisors of Erie Co., 48 id. 93; Stockle v. Silsbee, 41 Mich. 615.) Chapter 230 of the Laws of 1843 is not unconstitutional as depriving the appellant of liberty and property without due process of law, and without a trial by jury. (Const. of United States, amendment-5; Const, of New York, art. 1, §§ 1, 2, 5 ; Murray’s Lessee v. Hoboken Land Co., 18 How. [U. S.] 272; Weimer v. Bunbury, 30 Mich. 201-211; State v. Allen, 2 McCord, 56; Rockwell v. Nearing, 35 N. Y. 302; Harris v. Wood, 6 Munr. 642; McMillen v. Anderson, 95 U. S. 37-41; In re Trustees N. Y. P. E. Pub. School, 31 N. Y. 579; Cooley on Taxation, 33, 36.)
   Huger, Ch. J.

Upon an application by the receiver of taxes of 27ew York to the Court of Common Pleas, the appellant was adjudged guilty of misconduct in refusing to pay the tax assessed upon his personal property for the year 1881, and a fine was imposed upon him therefor. The proceeding was had under" the provisions of chapter 230, Laws of 1843, and was conducted in conformity therewith. The tax in question was predicated upon the customary annual assessment of property, liable to taxation under the general laws of the State, but was in this instance based upon an assessment of the value of national bank shares owned by the appellant. The number of shares so owned by the defendant and the estimated value thereof, was furnished by Mm to the assessment officers, and upon the information thus obtained, with that derived from other sources, said shares were appraised at their actual value, and the amount thus assessed was placed in the lists provided for the enrollment of property of that description. Certain irregularities are alleged to have occurred in the proceedings for the assessment of the property which it is claimed were jurisdictional in character, and ought to render such assessment invalid and the tax levied thereon void.

It is quite true if any act wMch was required by law to be performed by the assessment officers, and which is made thereby the condition of a valid assessment, has been omitted by them, it will render the assessment void. We have been unable, .however, to find any such irregularity in the proceedings. Those claimed to exist are the following:

That the deputy tax commissioners failed to comply with section 7 of chapter 302 of the Laws of 1859, which required them personally to examine each and every house, building lot, pier or other assessable property,” and furnish under oath to the commissioners of taxes and assessment a detailed statement of such property, with the name of the owner or occupant, “ with such othpr inf ormation in detail relative to personal property,’ ’ as said commissioners may from time to time require. This provision very obviously refers only to real property except in the clause expressly referring to personal property, and there is no claim that that requirement has been omitted. This view of the statute was assumed by this court in Brevoort v. City of Brooklyn (89 N. Y. 128) and seems to be required by the plain inapplicability of the provision to assessments of personal property.

It is also claimed that the oath required to be made to the statement directed to be returned by the deputy to the commissioners of taxes and assessments was improperly made, in that, it was sworn to on the eighth instead of the second Monday of January, being the tenth. There is no provision requiring such oath to be made on any particular day, and the W'hole object and intent of the statute in respect thereto is complied with, provided it be taken after the examination of property is made by the deputy commissioner, and before the statement is filed with the'commissioners on the second Monday of January thereafter.

It is also claimed that the entry of the assessments for national bank shares, upon a list or book separate from other assessments for personal property against individuals in the city renders such assessment void. It is provided by section 3, chapter 596, Laws of 1880, that such “ shares shall be included in the valuation of the personal property of such stockholders in the assessment of taxes at the place, city, town or ward where such bank, banking association or trust company is located and not elsewhere, whether the stockholder resides in said place, city, town or ward or not.” Sections 4 and 5 of chapter 410 of the Laws of 1867 provide for the assessment of personal property in the city of ¡New York upon separate rolls from that of real estate. In the General Laws of the State the personal property of an individual is required to be assessed against him in the place of his residence, and assessments of real estate follow the location of such property.

It must follow as the necessary consequence of these requirements when the individual assessed does not live in the same ward in which the bank is located wherein he owns shares, and does not own real estate therein, that his assessment for bank shares must be made upon lists especially prepared for that purpose, in the ward where it is located, or the property must altogether escape assessment and taxation. The familiar rule that a statute must be so construed as to give it effect and to avoid a result which would render it inoperative, if it be reasonably susceptible of such an interpretation, would seem to require us to sanction the only mode of assessment which seems capable of securing the benefits designed by the statute.

It is also cléar that the tax payer has not been deprived of any substantial benefit by the mode thus pursued. The statute gives information to him of the place where the roll is to be deposited for examination, and the length of time during which it is to be there kept for inspection, and of his opportunity during such time, to apply to the proper officers for the correction of any errors which he may find in his assessment. Not only tins, but the commissioners of taxes and assessments are also required to advertise the fact of the completion of the annual record- containing all assessments upon property in the city of New York, and the time when the same will be ready for inspection by tax payers, and to keep the same in the tax commissioner’s office, open for that purpose, from the second Monday in January to the thirtieth day of April thereafter. There is no, complaint but that these requirements were complied with, or but that the appellant had actual notice of the assessment in question, in ample time to procure its correction if any error existed therein; in fact it affirmatively appears that the relator did appear before the commissioners of taxes on the 12th day of April, 1881, and made affidavit upon which he procured a substantial reduction of the assessment in question. (Matter of De Peyster, 80 N. Y. 565 ; Matter of Lowden, 89 id. 548.)

It does not appear that there is any provision of law requir- > ing the assessments of individuals for bank shares in New York to be made otherwise than in the mode adopted in this case, and in the absence of such provisions we do not see why the practice here pursued was not in harmony with the general regulations applicable to the subject, and did not afford to the appellant the same opportunity for correction and notice of the assessment in question that was given to all other tax payers of similar assessments in New York. There is nothing in section 5219 of the Be vised Statutes of the United States, which either impliedly or expressly condemns the mode of registering the assessment adopted in this case. That section provides that nothing contained in that act shall prevent the shares owned by an individual in a national bank from being included in the valuation of his personal property in assessing, taxes imposed by the authority of the State in which the bank is located. The mere ministerial act of the officers in estimating and noting the result of the judicial determination, as to the liability of the individual, and the value and assessability of his personal property, provided such act does not produce an inequality of assessment, are not affected by the provisions of the section. The section purports only to affect the judicial act of the assessors in including the value of bank shares in the assessments of property and not to regulate its exercise except in respect to the rate of taxation and assessment adopted. The provisions pertaining to the assessment of bank shares in Yew York are essentially different from those considered by Judge Wallace in Albany City Bank v. Maher (19 Blatchf. 174). The views there expressed are inapplicable to the modes of assessment prescribed in the city of Yew York, and apply only to cases where the assessment of both real and personal property is required by statute to be made on the same book or roll. The views we have expressed are sustained by the decisions of this court in Foster v. Van Wyck (2 Abb. Ct. App. Dec. 167), and also by Williams v. Weaver (75 N. Y. 30), which in this respect was unaffected by the subsequent proceedings in that case. There are no other objections affecting the regularity of the proceedings for assessment, which are of sufficient importance to merit notice.

It is further objected by the appellant that “ the system of taxing the appellant’s national bank shares resulted in taxing the moneyed capital invested in them at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of this State invested in other investments.” The particular ground upon which the appellant bases this point is the claim that “ there is no law upon our statute books for the taxing of shares of stock of railway companies, street railways, ferry and canal companies, fire and life insurance, trading and other- miscellaneous companies, and the deposits in savings banks.” This claim seems to be unfounded in fact. A careful examination of the statutes and a comparison of the burdens laid upon the property, capital and business of the people under the laws of the State will show that the money invested in national banks is subjected to no greater burden than that imposed upon other species of assessable property. Oapital invested in national banks is taxable only upon the individuals owning shares therein, and for the purpose of such taxation is assessable like all other personal property liable to taxation in the State, at its actual value. Such shares were originally made assessable by chapter 761 of the Session Laws of 1866, under the authority of the act of Congress, section 5219, which expressly permitted such assessment, subject only to the restrictions that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State,” and that the shares of such. stock owned by a non-resident of the State shall be taxed in the city or town where the bank is located, and not elsewhere. The act of 1866 was amended by chapter 596 of the Laws of 1880, and chapter 477 of the Laws of 1881, so as to authorize the allowance to a tax payer upon bank shares of all the deductions and exemptions allowed by law in assessing the value of other taxable personal property owned by individual citizens of the State. The only result of this legislation has been to bring the capital invested in national banks within the taxing power of the State and place it on terms of equality, with reference to-general taxation, with all other assessable personal property therein. The general laws of the State require all property, both real and personal, no matter by whom owned, except in certain cases of special exemption, to be assessed for purposes of taxation. This requirement embraces all property owned by individuals as well as corporations, and includes all shares of stock held by individuals in corporations, except in cases where the capital stock of such corporations is itself liable to taxation as against the corporation. (§§ 1, 2, 3, 4, 5, 6, 7, pp. 981 and 982, E. S. [7th ed.] ; § 1, p. 1036, E. S. [7th ed.] ) By special provision of law all assessments upon capital employed in banking corporations, whether national or State, are required to be made in the same manner and to have in view the placing of these institutions on terms of absolute equality. (Chap. 140, Laws of 1880.) The various railroad, ferry, canal, manufacturing and other industrial corporations referred to by the appellant, are not only liable to- taxation, either upon their capital stock, or upon their shares held by individuals which are substantially the equivalents of each other, but are also subject to contributions from their gross receipts, taxes upon franchises and other impositions from which bank capital is altogether exempt. (Chap. 456, Laws of 1857; chaps. 534 and 542, Laws of 1880; chap. 477, Laws of 1881; § 7, p. 982, E. S. [7th ed.].) Our system of laws with reference to the taxation of incorporated companies, and capital invested therein, has been carefully framed with a view of reaching all taxable property and subjecting it to equality of burden so far as that object is attainable in a matter so complex. In view of the wide variation in the employable value of such investments, and the frequent mutations in their condition, it is by no means certain that this object has not been attained with reasonable accuracy. It is quite clear from even this cursory review of the statutes that if any discrimination is made by our laws in taxing capital invested, it is not to the prejudice of that employed in banking corporations.

Even if this were not the result of the statute, we are of the opinion that investments in the shares of the companies named, does not come within the meaning of that clause in the Federal statutes, referring to other moneyed capital in the hands of individuals. That phrase as generally employed, distinguishes such capital from other personal property, and investments, in the various manufacturing and industrial enterprises. And this is the sense in which it is used in our tax laws as appears by reference to the statutes. (§§ 3, 4, p. 982, E. S. [7th ed.]; chap. 195, Laws of 1845; chap. 456, Laws of 1857; chap. 240, Laws of 1863 ; § 1, p. 1036, E. S. [7thed.] ; chap. 542, Laws of 1880, and the laws amendatory thereof.) Such is also believed to be the meaning attached to these words as generally used in the Federal statute. The obvious intent of the Federal statute was to prevent discrimination against investments in national bank shares, and put them upon terms of equality as to taxation with similar institutions and investments in the several States, and the language of the statute seems to have been selected with reference to that object. The rule of comparison stated therein is not with the rate of taxation imposed upon personal property generally, or with specific investments in mining, manufacturing or the various other industrial corporations organized throughout the State, but with other “moneyed'capital ” in the hands of individual citizens. These are Words of limitation as well as of description and are to be defined according to the meaning which has been generally given to them.

It was said in Evansville Bk. v. Britton (105 U. S. 322, 324) that “ the act of Congress does not make the tax on personal property the measure of the tax on bank shares in the State, but the tax on moneyed capital in the hands of the individual citizen.” “ Undoubtedly there may be much personal property exempt from taxation, without giving bank shares a right to similar exemption, because personal property is not necessarily moneyed capital.” In Providence Inst. for Savings v. Boston (101 Mass. 575, 583) it is said “ that this clause was obviously intended to preclude the possibility that property of that description should be singled out for special and peculiar taxation. Its operation would be to prevent oppressive and hostile discriminations unfavorable to ttó banks.’ ’ It might well seem reasonable to Congress to take some precaution that the banks in each State should be taxed only at the same rate, and generally in the same manner, as the moneyed capital of individual citizens in the same State. It was claimed in Hepburn v. The School Directors (23 Wall. 480, 481), that the words “ moneyed capital,” as used in the act, signified only money put out at interest, but the court there held that such a construction was too narrow, and that the phrase included stock in banks and perhaps other stocks and securities. The court in that case further held that the exemption of some moneyed capital from assessment did not necessarily invalidate a statute authorizing an assessment upon national bank shares, saying that “ it could not have been the intention of Congress to exempt bank shares from taxation because some moneyed capital was exempt.”

We are, therefore, of the opinion, even if it could be shown that there were some corporations, or some personal property that was subject to a less rate of taxation than that of capital employed in banking corporations, it would not vitiate the law imposing taxes upon shares in banks, unless it appeared to be the clear intent of the legislature thereby to effect discrimination against them.

It is further claimed “that the proceedings under chapter 230 of the Laws of 1843 would deprive the appellant of his property and liberty, without due process of law.” There is no foundation for this claim.

The proceedings by which taxes for governmental purposes have been assessed, levied and collected from the citizen have always been regarded as administrative, and not judicial in their •character, and to constitute due process of law within the meaning of the Constitution. Such proceedings have from necessity been exercised by governments during all times, by summary methods of procedure, and to require the deliberation and delay incidental to judicial proceedings in the exercise and enforcement of the taxing power by government would seriously cripple its efficiency, if not destroy its existence. These methods were in exercise and existence long before the adoption of the Constitution, and have never been supposed to be affected thereby. In the Matter of the N. Y. P. E. Public School (31 N. Y. 574, 584) Judge Denio says, that “in executing the taxing power, the legislature provides such agencies and safeguards against surprise, mistake or injustice, as it thought expedient. It is manifestly proper that the tax payers should have notice of the imposition proposed to be laid upon them, and an opportunity for making suggestions and explanations to the proper administrative board or officer; and this is generally secured in all well-considered systems of taxation. But it is for the legislature to determine and prescribe, in every case, what shall be sufficient, and there is not, that I am aware of, any constitutional provision bearing on the subject.” Judge Porter, in Rockwell v. Nearing (35 N. Y. 302, 308), says: “ There are many examples of summary proceedings, which were recognized as due process of law, at the date of the Constitution, and to these the prohibition has no application.” The Supreme Court of the United States in Murray's Lessee v. Hoboken Land and Improvement Co. (18 How. [U. S.] 272), stated, “ that probably there are few governments which do or can permit their claims for public taxes either on the citizen or the officers employed for their collection or disbursement to become subjects of judicial controversy according to the course of the law of the land. Imperative necessity has formed a distinction between such claims and all others, which has sometimes been carried out by summary methods of proceeding and sometimes by systems of fines and penalties, but always in some way observed and yielded to.” (See, also, McMillen v. Anderson, 95 U. S. 37 ; Harris v. Wood, 6 Monr. 642 ; Weimer v. Bunbury, 30 Mich. 201.)

As we have seen, the appellant had full notice of the proceedings for the imposition of the tax in question, and an opportunity to question their correctness by proceedings to review the action of. the assessing officers, if he had felt aggrieved thereby, but having omitted to exercise that right he is now estopped from raising any question affecting the regularity of the proceedings, or the exercise of the judicial powers conferred upon the assessors in making the assessment in question.

'W e have thought it unnecessary to discuss other answers to the points raised, and other questions presented upon the briefs of counsel as they are either embraced in what has been already said, or are too plain to require serious notice.

The order should be affirmed.

All concur.

Order affirmed.


author: Andrews, J.

text:
    Morris H. Smith, Appellant, v. The Long Island Railroad Company, Respondent.
    To entitle a person appointed secretary of a railroad corporation, who is not a director or stockholder, to charge a reasonable compensation for his services, it is not essential that a rate of compensation should be agreed upon, or that there should be an express agreement to pay a compensation. In this respect he stands in no different position from an employe of any other grade, who has rendered services at the request of the corporation.
    It is a necessary conclusion from the fact of the election by the board of directors of the corporation, the acceptance of the office and the discharge t of its duties, that the services were rendered at the request of the corporation, and these circumstances prima facie raise an implied obligation on the part of the corporation to make compensation; and, to rebut that presumption, there should be clear evidence that the services were to be gratuitous.
    Smith. v. L. I. B. B. Go. (32 Hun, 38), reversed,
    (Argued March 18, 1886 ;
    decided April 13, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the second judicial department, made February 12, 1884, which reversed a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 32 Hun, 38.)
    This action was brought to recover compensation for services alleged to have been rendered by plaintiff to defendant as its secretary.

      B. F. Dunning for appellant.
    It was error for the General Term to hold, as matter of law, that because plaintiff was secretary of the defendant, and no agreement' was made as to his compensation, that he could not, therefore, recover for his services. (Pierce on Railroads, 31; Angeli & Ames on Corp. [10th ed.] 335, note 2; R. R. I. & St. L. R. R. Co. v. Sage, 65 Ill. 328; Am. Cent. R. R. Co., 52 id. 174 ; Holder v. Laf., B. & M. Ry. Co., 71 id. 106; Fraylor v. Sonora Min. Co., 17 Cal. 594; Gridley v. Laf., B. & M. Ry. Co., 71 id. 200 ; Santa Clara M. A. v. Meredith, 49 Md. 389 ; Laf., B. & M. Ry. Co. v. Cheeney, 87 Ill. 446.)

      Edward E. Sprague for respondent.
    The law will not imply a promise on the part of corporations to pay their officers for official services. (Talcott v. Olcott Manfg. Co., 11 N. Y. Weekly Dig. 141; Kilpatrick v. Penrose Ferry Bridge Co., 49 Penn. St. 118; Austin City R. R. Co. v. Swisher, 15 Rep’r, 760; Holland v. Lewiston Bk., 52 Me. 565; Citizens’ Nat. Bk. v. Elliott, 55 Iowa, 106; Olney v. Chadsey, 7 R. I. 229; Sawyer v. Bk., 6 Allen, 207; Gurney v. A. & G. W., 58 N. Y. 367.). The plaintiffs services were clearly gratuitous, as matter of fact. (Shultz v. Hoagland, 85 N. Y. 464; Knick. L. I. Co. v. Nelson, 78 id. 143 ; Wood on Master and Servant, § 62; Reeve v. Reeve, 1 F. & F. 280 ; Davidson v. Westchester G. L. Co., 99 N. Y. 558; Utica Ins. Co. v. Bloodgood, 4 Wend. 652 ; McCarthy v. Mayor, etc., 96 N. Y. 1; Riley v. Mayor, etc., id. 331:) The amount of damages awarded by the referee was excessive. (Godfrey v. Moser, 66 N. Y. 250 ; Gray v. Supervisors, 93 id. 603; Lake v. Nathans, 67 id. 589 ; Coffin v. Reynolds, 39 id. 644.)
   Andrews, J.

Upon the question of fact, whether the services rendered by the plaintiff, as secretary of the defendant, were rendered gratuitously and without expectation on the part either of the plaintiff or defendant that compensation would he made, we concur with the conclusion reached by the referee. We deem it unnecessary to state in detail the evidence hearing upon the question, and shall content ourselves with stating in general terms what, in our judgment, are the controlling considerations.. The services were rendered at the request of the defendant. This is the necessary conclusion from the conceded facts that he was elected secretary by the board of directors and accepted the office and discharged its duties. These circumstances prima facie raised an implied obligation on the part of the defendant to make compensation, and, in order to rebut the implication, there should be clear evidence that the services were to be gratuitous. The burden was upon the defendant to establish this defense. It is not claimed that there was any express agreement or understanding with the plaintiff that he was to serve without compensation. ' He was neither stockholder nor director of the defendant, and stood in no relation to the company which entitled it to his gratuitous service, or which made it his interest to serve the company without compensation. He testifies that he expected compensation, and upon this point he is confirmed by the testimony of one of the directors. There is no evidence to show that the defendant did not expect to compensate the plaintiff. It had paid a salary to the prior incumbent. The services incident to the office were not merely nominal, but were valuable, and no presumption exists that an employe of a business corporation is to serve without compensation. Even if such an expectation existed in this case on the part of the defendant, it would not be a defense unless justified by the acts or conduct of the plaintiff. The facts relied upon, that the plaintiff was book-keeper for Wallace & Co. and that his services as secretary were rendered during business hours, when Wallace & Co. were entitled to his services, under his contract of employment with them, and that the plaintiff presented no claim for compensation during the five years in which he acted as secretary, do not, we think, countervail and overcome the presumption arising from his employment as secretary, that compensation was to be made. Their probative force, upon one side or the other, depends upon the inferences to be drawn therefrom. Wallace & Co. were large stockholders of the defendant and its financial agents, and one of the firm was a director of the company until 1875. . It is not an unreasonable supposition that they were willing to consent that the plaintiff should act as secretary and perform the duties of the office from considerations of convenience and interest. The relation of the plaintiff to Wallace & Co. might furnish some ground for an inference that the firm was to receive the compensation for his services, but not that the service was to be gratuitous. The inference sought to be drawn from the omission of the plaintiff to present a claim for compensation until after he was superseded in the office, although a circumstance of some importance, is not, we think, a sufficient answer to a demand based upon an employment to render service, and especially where no apparent reason exists why a gratuitous service should be rendered or expected. The point is made on the part of the defendant that the office of secretary, being a corporate office, no right to compensation exists in the absence of an express contract. The cases cited do not support this ' contention. The rule that directors or trustees cannot recover for services rendered for the corporation upon an implied promise, is an application of the general rule applicable to trustees. But we perceive no reason of policy or justice which should prevent a person appointed as secretary, and who is neither a director nor stockholder, from receiving a reasonable compensation for his services, although no rate of compensation was agreed upon and there was.no express agreement that compensation should be made. Such an officer in this respect stands in no different position from an employe of any other grade who has rendered services at the request of the corporation. We have examined the exceptions and find none which requires special notice. The point, that the allowance by the referee was excessive, was not regarded by the General Term in its opinion, and while the evidence as to the value of the services was conflicting, we do not think the judgment of the referee upon this point should be disturbed.

The order of the General Term should be reversed and the judgment on the report of-the referee affirmed, with costs.

All concur.

Ordered accordingly. •


text:
    John J. Hallahan, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
    Plaintiff, a passenger in one of defendant’s cars, was sitting by an open window with his elbow on the window sill, when it was struck by a crane used to deliver the mail to passing trains. In an action to recover damages for the injury, a witness, after describing the position of the plaintiff’s elbow upon the window sill, added; “ I should j udge that it could not project out of the window by the position that he held it in the car ; ” also that “ it could not be outside of the car.” Held, that the testimony was competent; that it was not merely an opinion, but a statement of facts, without a positive allegation as to its accuracy; but, even if regarded as an opinion, as it was being based upon personal knowledge of the facts, it was competent.

      Another witness, who had testified that he heard a rattling noise on the side of the car, was asked and permitted to answer under objection and exception, “Did you notice any confusion produced among the passengers by the noise on the outside of the car 1 ” Held no error; that the testimony was competent as part of the res gestos.

    (Argued March 17, 1886 ;
    decided April 13, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made September 9, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.
    This action was brought to recover damages for injuries alleged to have been occasioned by defendant’s negligence.
    Plaintiff was a passenger upon a train on defendant’s road ; he was sitting by an open window of the car with his elbow on the window sill; in passing a station where the train did not stop, but took the mail from a crane placed near the track, the arm of the crane struck plaintiff’s elbow, and inflicted the injury complained of.
    The further facts, so far as material to the questions discussed, are stated in the opinion.

      Lewis E. Carr for appellant.
    The jury were properly instructed that if the plaintiff had permitted his elbow to project beyond the side of the car, and in that position it was struck and injured, he could not recover, as the contract to carry safely does not extend beyond the limits of the ear. (Thompson on Carriers of Passengers, 257, 258, and note 8, bottom of page 257; Holbrook v. R. R. Co., 12 N. Y. 236; R. R. Co. v. McClurg, 56 Penn. St. 294.) The testimony of Daniel Creegan was improper and incompetent, because it was not the statement of a fact, but of the conclusion of the witness from certain things which were under his observation. (Moorehouse v. Mathews, 2 N. Y. 514, 515, 516 ; Carpenter v. Eastern T. Co., 71 id. 574, 580; Ferguson v. Hubbell, 97 id. 507, 511, 512; Farmers' Bk. of Washington Co. v. Cowan, 2 Abb. Ct. App. Dec. 88, 90; Platner v. Platner, 78 N. Y. 90, 102;
      Ryan v. People, 79 id. 593, 601; Nicolay v. Ungar, .80 id. 54, 57; Mesner v. People, 45 id. 1; Manke v. People, 17 Hun, 410; affirmed, 78 N. Y. 611; Keller v. R. R. Co., 2 Abb.. Ct. App. Dec. 480, 490 ; Gutchess v. Gutchess, 66 Barb. 483, 486; Mather v. Parsons, 32 Hun, 338, 346; Rich v. Jackway, 18 Barb. 357; Webber v. Kingsland, 8 Bosw. 415.) The presumption always is that the party objecting was prejudiced by the ruling against him. (Hutchins v. Hutchins, 98 N. Y. 56, 65; Anderson v. R. & W. R. R. Co., 54 id. 334, 341; People. v. Gonzales, 35 id. 59; Church v. Howard, 79 id. 415 ; Swift v. Life Ins. Co., 2 T. & C. 302; Baird v. Doily, 68 N. Y. 547.) It was error to permit the plaintiff to prove what other passengers did at the time when some noise was heard outside the car. (Anderson v. R. R. Co., 54 N. Y. 334, 342; Hutchins v. Hutchins, 98 id. 56, 65; Twomley v. C. P. N. & E. R. R. Co., 69 id. 158; Church v. Howard, 79 id. 415; Dilleber v. L. I. Co., 69 id. 256.)
    A. A. Gedney for respondent.
    Plaintiff had the' right to prove all the circumstances attending the accident, as part of the res gestee, and to show that others in the car heard the noise of the collision of the crane with the car, the confusion being the result of the collision, and characterizing the force thereof. (Twomley v. C. P. N. & E. R. R. Co., 69 N.Y. 158 ; Cuyler v. Decker, 20 Hun, 173 ; Tooley v. Bacon, 70, N. Y. 37 ; Levin v. Russell, 42 id. 251; Daly v. Byrne, 77 id. 182.) A witness may properly give his opinion, if based upon a 'fact of which he has personal knowledge. (Howell v. Taylor, 11 Hun, 214; Casey v. N. Y. C. R. R. Co., 78 N. Y. 518; Trantz v. Ireland, 66 Barb. 386 ; Blake v. People, 73 N. Y. 586; Crosby v. Day, 81 id. 242; Marston v. Gould, 69 id. 220.) Evidence having been properly received, it was in the discretion of the court to retain or strike out, and the remedy was not by motion to strike out, but by request to the court to .direct the jury'to disregard it.' (Marks v. King, 64 N. Y. 628.) The rule of defendant’s liability is almost of the strictest kind. It is the utmost possible anticipation of public danger, and the utmost possible prudence in guarding against it. (Carroll v. Staten I. R. R. Co., 58 N. Y. 126; Brown v. General R. R. Co., 34 id. 404; Brown v. N. Y. C. R., 18 id. 408; Caldwell v. N. J. S. Co., , 47 id. 282; Drinkwater v. Dinsmore, 16 Hun, 250 ; Heilman v. Lazarus, 65 How. 95; Ackart v. Lansing, 6 Hun, 476 ; McGinley v. U. S. L. I. Co., 77 N. Y. 495.) It was not contributory negligence in the plaintiff to seat himself by the open window in the smoking car, and rest his elbow on the sill. ( Willis v. L. I. R. R. Co., 34 N. Y. 676 ; Brassell v. N. Y. C. R. Co., 84 id. 241; Weston v. N. Y. El. R. Co., 73 id. 596 ; Dobieki v. Sharp, 88 id. 203.) The question of contributory negligence on the plaintiff’s part is to be determined by the principle, that if the course pursued by him was one which persons of ordinary prudence and self possession would adopt, he was not negligent in so doing. (Salter v. Utica & H. B. R. R. Co., 88 N. Y. 42; Kellogg v. N. Y. Cent. R. R. Co. 79 id. 76 ; Stackus v. Same, id. 468.) The law will never hold it imprudent in any one to act upon the presumption that another in his conduct will act in accordance with the rights and duties of both. (Ernst v. H. R. R. R. Co., 35 N. Y. 9 ; Steiverman v. White, 48 Supr. Ct. 523 ; Hewson v. N. Y. C. R. R. Co., 29 N. Y. 383.)
   Miller, J.

The only questions presented upon this appeal relate to the rulings of the judge in regard to the evidence.

It is insisted by the appellant’s counsel that certain testimony of one of the witnesses for the respondent, Daniel Creegan, was incompetent and improper, and that the court erred in refusing to strike out the same. The questions put to the witness were not objectionable, but it is urged that the answers were improper and should have been stricken out, in accordance with the motion made by the appellant’s counsel.

The following was one of the questions put to the witness and the answer given: Q. Just describe the position of his right elbow in reference to that window of the car ? A. Mr. Hallaban sat straight up in the seat at the window and his elbow was resting on the sill,- and I should judge that it could not project out of the window by the position that he held it in the car.”

Defendant’s counsel objected to the latter part of the answer commencing at “ and I should judge,” etc., and moved to strike it out, on the grohnd that it was a conclusion and not a statement of fact, which motion was denied and defendant excepted. The witness was also asked : Q. Was or was not his elbow, at the time this object struck the car, inside or outside the car window % ” to which he answered: “It could not' be

outside the car window; it 'was probably on a level with the, outside of the car ; my opinion was from the position that it was inside.’’ Counsel for the defendant objected to this answer, and moved to strike it out, on the ground that it was the opinion of the.witness and not a statement of fact, and the motion was granted as to the part “ my opinion,” etc. Defendant’s counsel excepted to the refusal to strike out the remainder of the answer.

The objection to the first answer was upon the ground that it gave witness’ opinion as to the position of the plaintiffs elbow, which would have been inadmissible if it had been asked for by a question put for that purpose. - The witness had described the position of the plaintiff’s arm, and- his expression “I should judge” was qualified by what he had previously stated and by what he stated afterward. It was a simple statement of the facts as they actually existed, with the qualification that in the position his arm was, it could not project out of the car window. It was merely a'careful statement of the facts without a positive allegation as to its accuracy, and not in the nature of an opinion alone. It may be regarded as the statement of a witness who is extremely cautious in giving evidence. • The expression used and others of a similar character, such as “ I think,” when the facts are presented, cannot always be regarded as a mere opinion. Oases frequently arise where witnesses are called upon to state the appearance of a person at a particular time, when a question arises as to the soundness of his mind, and when the facts are stated, the witness can properly be allowed to testify as to such appearance in a manner which to some extent involves the judgment of the witness. •

Within this rule we think the answer given to the first question was not objectionable. But even if the evidence may be regarded as calling for an opinion in any way, as the testimony was based upon the personal knowledge of the facts, we think it may be considered as competent. (Blake v. People, 73 N. Y. 586.)

The cases' relied upon by the appellant’s counsel are not adverse to the rule laid down. The remarks we have made will apply to the answer given to the second question. The objectionable part of tha.t answer was stricken out and what remained was proper testimony based upon the fact previously stated that the witness saw the position of plaintiff’s elbow.

Another witness on the trial testified that he was sitting in about the middle of the car on the right hand side, and at this point there was a rattling noise which appeared to be on the same side; that the people looked around, apparently wondering what the trouble was; that he noticed a commotion in the forward part of the car; that he went there and saw plaintiff was hurt. He was then asked, “ Did you notice any confusion produced among the passengers by the noise on the outside of the car ? ”

This question was objected to on the ground that it was immaterial and improper. Objection overruled and an exception taken.

We think the plaintiff had a right to prove all the circumstances attending the accident as a part of the res gestes and to show that others in the car heard the noise of the collision of the crane with the car, the confusion being the result of the collision and showing the nature thereof. Similar testimony was given by other witnesses without objection. The evidence was, we think, admissible.

We are not at liberty to review the questions of fact presented by the evidence upon the trial, and the verdict of the jury is conclusive in regard to them.

The judgment should be affirmed.

All concur.

Judgment affirmed.


author: Pinch, J.

text:
    In the Matter of the Final Accounting of Theodore J. Denton, Executor, etc.
    A provision in the will of D., after a gift to his daughter E. of $85,000, contained this : “ And do order and direct that $8,000 of said sum he paid over to her son, Theodore B. Mead, when he shall arrive at the age of twenty-one years.” Reid, that the will authorized and by necessary implication required the executor to pay over the whole of $85,000 to E., and constituted her a trustee for her son, to pay him out of the principal the sum of $8,000 at his maturity.
    (Argued March 19, 1886 ;
    decided April 13, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made September 9, 1884, which affirmed a decree of the surrogate of the county of Orange, on final, settlement of the accounts of Theodore J. Denton, as executor of the will of Theodore B. Denton,' deceased. (Reported below, 33 Hun, 317.)
    The facts material to the questions discussed are stated in the opinion.

      William Vanamee for appellant.
    A remainder may he limited upon a bequest of personal property, and it may be limited, upon a bequest of money as well as of other personal property. (Bliven v. Seymour, 88 N. Y. 469; Smith v. Ostrander, 64 id. 278.) It is the duty of the executor under such a will to invest the money, and' pay the interest to the first legatee during life, or for years, and to preserve the principal for the remainderman. (Covenhoven v. Shuler, 2 Paige, 122; Williamson v. Williamson, 6 id. 298.) The executor has no right to pay the fund into the hands of the legatee for life, or for years. (Tyson v. Blake, 22 N. Y. 558, 562; Livingston v. Murray, 68 id. 485; Clark v. Clark, 8 Paige, 152.) The will cannot be construed as imposing a separate trust upon the legatee for life to take and preserve the fund for the remainderman, unless the will in explicit and express terms directs the payment of the fund into the hands of the legatee for life. (Bliven
      v. Seymour, 88 N. Y. 469 ; Livingston v. Murray, 68 id. 485; Spear v. Tinckham, 2 Barb. Ch. 211; Smith v. Van Ostrand, 64 N. Y. 278.) When a testator, by his will, either in express terms or by implication, has given the income of a sum of money to one for life, and then the principal to another, and has not in terms placed it in trust with any trustee other than the executor, it is the province and duty of the executor as such to hold and invest the fund in some secure and productive stock, or at interest on good security, and to pay over the income, from time to time, within reasonable times to the legatee for life, and, at the decease of the legatee for life, to pay out the principal to the person then by the will entitled to it. (Clark v. Terry, 34 Conn. 176; Eichelburger v. Barnitz, 17 Serg. & R. [Penn.] 293; Kinnard v. Kinnard, 5 Watts [Penn.], 108 ; Chrisholm v. Lee, 53 Ga. 611; Howard v. Howard, 16 N. J. Eq. 486.) A general legacy is one which does not necessitate delivering any particular thing, or paying money out of any particular portion of the estate; a specific legacy is the converse of this. (Getman v. McMahon, 30 Hun, 531; Schouler’s Exrs. and Admrs. 461.) An- executor cannot divest himself of his trust without an order of the court, or the consent of the cestui que trust. (Thatcher v. Candee, 4 Abb. Ct. App. Dec. 378; Shepherd v. McEvers, 4 Johns. Ch. 135; Hinckley v. Harriman, 45 Mich. 343.)

      D. F. Cedney for respondent.
    A testator may make his pri■mary legatee a trustee for the benefit of the remainderman, and may rely upon that trustee to carry out the trust, independent of the executor. (1 Jarm. on Wills [5th ed.], 399; Sword’s Hawkins on Wills, 159 ; Smith v. Van Nostrand, 64 N. Y. 278; Schlafer v. Corson, 52 Barb. 510, 533.) The creator of a trust may either designate or waive any security to be given by the trustee. (Denike v. Harris, 85 N. Y. 89.) It is a sufficient compliance with the provisions of the Revised Statutes relating to trusts, if a purpose within the statute is clearly embraced within the language used, for the execution of which the trustee may be clothed with the legal title. (Potter’s Willard’s Eq. 490 ; Donovan v. Vandemark, 78 N. Y. 244; Heer

      mans v. Birt, id. 259 ; 9 Paige, 107.) A prior gift is not to" be disturbed any further than is absolutely necessary to give effect to a posterior qualifying disposition. (Bunneer v. Stower, 1 Sandf. Ch. 357; Man v. Man, 14 Johns. 1.) Mrs. Mead was entitled to have this legacy paid- to her, and she is to be considered the trustee of the portion of her son’s benefit when the trust attached. (Bradstreet v. Clark, 13 Wend. 662; Jackson v. Coleman, 2 Johns. 392; Jackson v. Robins, 16 id. 584; 3 R. S. [Banks’ 7th ed.] 2301, § 45.) It was the intention of the testator, and he so virtually directed, that the whole legacy should be paid to Mrs. Mead. She became in law • the trustee of the $8,000, to pay Theodore the principal sum at majority. (Smith v. Van Nostrand, 64 N. Y. 278.) The language used by the testator was sufficient to create a trust, and all the requisite elements of a valid trust existed. (Hawk, on Wills [Am. ed.], 159.)
   Pinch, J.

The clause in the testator’s will, out of which the present litigation has arisen, is expressed in these words, viz.: I give and bequeath to my daughter Elizabeth J. Mead, the sum of $25,000 ; and do order and direct that $8,000 of said sum be paid over to her son, Theodore B. Mead, when he shall arrive at the age of twenty-one years.” The question presented is, whether the executor was justified in paying over the whole bequest to Mrs. Mead, which he did, or should have retained for investment $8,000 thereof, accounting to her for the interest during the minority of Theodore, and preserving the principal for him on his arrival at full age. The counsel on both sides agreed in the fundamental proposition that the testator might direct, by express language in his will, the payment of the remainderman’s legacy to the primary legatee to ' hold as a substituted trustee, and so that she would become alone accountable for its payment over at the majority of Theodore. (Smith v. Van Nostrand, 64 N. Y. 278; Bliven v. Seymour, 88 id. 469.) But the disagreement arose over the inquiry whether, upon a proper construction of the will, such express direction was given. The language used permits such interpretation naturally and without violence. Whenever a testator gives and bequeaths a sum to a legatee the law requires it to be paid to the person entitled, within one year from the issue of letters, and the bequest itself, read in connection with the statute, becomes an express direction to pay within that neriod, unless some different time is named, or some other provision forbids the payment or shows that it was not intended. The last occurs whenever a mere life estate is given with remainder over, for in such cáse the principal sum is not given at all to the primary legatee, but only the use and annual income, and the principal remains in the hands of the executor to be paid over at the appointed time. The difficulty here grows largely out of a commingling of both these features. There is a bequest of the whole $25,000 to Mrs. Mead, and then a direction to pay $8,000 to Theodore, which reduces the interest of the primary legatee in that portion of her bequest to a life estate; and we can only solve the problem by searching for the meaning and intent of the testator as gathered from the will in all its parts.

It is obvious that the bequest to Theodore is made a charge upon the $25,000 bequeathed to Mrs. Mead, and not upon the assets generally. The testator in explicit terms first makes the bequest to Mrs. Mead of the complete and full sum, and then directs that out of that sum, from that specific fund, there shall be paid to Theodore the amount of $8,000. The two things can concur and be consistent and fulfill the precise language of the will. If the testator meant that the entire $25,000 should be paid to Mrs. Mead, and that she should pay out of it $8,000 to Theodore at his majority, every word of the direction will be precisely fulfilled. But if we say on the contrary that the executor’s duty was to withhold the $8,000, and himself invest it and pay over the income to Mrs. Mead, and in due time the principal to plaintiff, the bequest of $25,000 to Mrs. Mead is not such; is in part contradicted and modified by what follows; and becomes a bequest of $17,000 absolutely, and of the income of $8,000 until Theodore’s majority. It was easy to say that if the testator'so meant. That he knew how to say it is .apparent from the language of his bequest to two other grandsons. In one be says: “ I give and. bequeath to my grandson, Eugene W. Denton, $10,000, to be paid unto him with the interest and income thereof by my executors when he shall arrive at the age of twenty-one years, until which time said sum is to be safely invested by my executors.” And he knew how not to say it and to say something else. The ninth clause in his will was thus phrased: “I give and bequeath unto my ■ cousin, Julia Ann Schoonmaker, $500, to be paid to her within six months after my decease; and I do order and direct "that said sum of $500 on the death of said Julia Ann be paid to. her son Theodore D. Schoonmaker.” In that clause there is an explicit direction to pay to the legatee the whole sum named followed by an attempted limitation over, and that direction is full because the statute requirement is payment in one year, and the testator desired to shorten it to six months. We are to observe and take into account another provision of the will. The bequest to Mrs. Mead stands charged with the advances made to her appearing upon the “ Family Book.” If those advances had proved to be so large as to leave to the primary legatee less than $8,000 to be paid over to Theodore, the loss would have been his and not chargeable upon the general assets, for it is out of the legacy to his mother subject- to all its reductions and infirmities that his gift was to come. And that fact indicates that the testator did not mean to give Theodore $8,000 absolutely out of his estate and in any event, but did mean to make his bequest and its realization dependent upon his mother.

There is great force also in another suggestion made in behalf of the respondent. Mrs. Mead was certainly entitled to the interest and income of the $8,000 during Theodore’s minority, but she gets such interest und.er the "will and by force of its terms only through the bequest and delivery to her of the whole $25,000. It is solely by virtue of her possession of the principal that she gets the interest. If the legacy to Theodore is not to be delivered to her and the right to its possession did not pass to her by the bequest, there is no express gift of the interest and income, and the will is silent on the subject. The testator manifestly intended that she should receive the interest by virtue of her possession and control of the principal fund, and be at liberty to make her own investments at her discretion, subject only to her duty to Theodore as his trustee.

Many other considerations gathered from the will and the situation of the parties have been brought to our notice, and have entered somewhat into our consideration of the question at issue, but are hardly of sufficient importance to justify a prolonged discussion. We are of the opinion that a - correct construction of the will involves an express direction to the executor to pay over the whole $25,000 to Mrs. Mead, and constituted her a trusteee for Theodore, to pay him out of the principal the sum of $8,000 at his majority.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.