author: "Willard Bartlett, J.:

text:
    In the Matter of John J. Mitchell.

      Election Law — proceedings under section 65 of chapter 680 of 1892 — when renewable by the General Term, — publication of notice of primwries —duty of county cierTcs in the preparation of ballots.

    An application for an order under section 65 of chapter 680 of the Laws of 1892, overruling the decision of the officer with whom the certificate of nomination of a candidate is filed as to the validity thereof, is a special proceeding as defined by the Code of Civil Procedure, and the General Term may entertain an appeal from an order affirming or overruling the determination of such officer, when the appeal can be heard and determined in due season.
    Where there are two factions of a political party in a village having more than 5,000 inhabitants, and the only daily newspaper published in such village, although belonging to such political party, is opposed to one of the two factions thereof, and the weekly newspapers are all of a different political faith, a notice of the primaries to be held for the faction opposed by such newspapers need not be published therein, but in such case notice of such primaries should be posted in the manner prescribed by section 51 of chapter 680 of the Laws of 1892, when there is no newspaper in which such notices can be published.
    In making up the various political ballots under the provisions of chapter 680 of the Laws of 1892, a county clerk should take into consideration the nominations for State and district offices, which have been certified to by the Secretary of State, and the nominations for local offices which appear upon certificates filed in his own office. In combining the names to go upon a particular ballot, he should select, so far as the party nominations are concerned, the candidates nominated by one and the same party, and when there are two sets of nominations of the same political party so far as local offices are concerned, both coming from rival organizations, which claim to be parts of the same political party, the county clerk cannot refuse to place one of such sets of nominations on a ballot with the State nominees of such party simply because the faction which made the nomination was not recognized by the last State convention of such political party.
    His duty is to inquire and determine as a matter of fact whether the faction is really a part of such party or not, and if it is a part of such party its local candidates should be named on the ballot with the nominations for State offices made by such party, and, if not, they should have a ballot by themselves with blanks so far as relates to nominations for State offices.
    Inasmuch as the original Ballot Keform Law (Chap. 262 of the Laws of 1890) is entitled “An act to promote the independence of voters,” chapter 680 of the Laws of 1892, which is based thereon, should be interpreted, so far as possible, in accordance with the purpose thus indicated.
    Appeal by John J. Mitchell, candidate for sheriff, from an order of the Supreme Court, made at the Queens County Special Term on tlie 24th day of October, 1894, and entered in tlie office of the clerk of the county of Queens, directing the county clerk of Queens county to print certain official ballots for the “ Regular Democratic Party ” of Queens county, otherwise known as the Gleason faction.

      William JE. Stewart,.for John J. Mitchell, appellant.

      George Wallace, for the Republican County Committee, against the order of the Special Term.

      George W. Stephens, for the Regular Democratic Party of Queens county, otherwise known as the Gleason faction, respondent.
   "Willard Bartlett, J.:

The Election' Law of this State provides that a certificate of nomination, which apparently conforms to the third article of that statute, shall be valid, unless written objection is filed within three days after the filing of the certificate. The officer with whom the certificate is filed passes upon the validity of any objection which is duly interposed, and his decision is declared to be final “ unless an order shall be made in the matter by a court of competent jurisdiction, or by a justice of the Supreme Court, on or before the Wednesday preceding the election.” (Laws of 1892, chap. 680, § 65.)

The case before us is an appeal from an order made under this provision of the Election Law, at a Special Term of the Supreme Court in Queens county, held by Mr. Justice Cullen on the 24th day of October, 1894.

In The Matter of Woodworth (64 Hun, 522) the General Term of the Fifth Department expressed the opinion that such an order was not appealable. One of the reasons given for this conclusion is, that the time when the questions may be investigated and decided is brief, and the proceedings must necessarily be summary. There, however, the appeal did not come before the General Term until after the election, when the reversal or affirmance of the order appealed from could have had no effect. Here the present appeal has been heard before the election to which the order relates, so that whatever action the General Term takes, if it has jurisdiction, can be made effective. It seems to me that the matter comes within the category of special proceedings as defined in the Code, and, hence, that the General Term may entertain an appeal from an order made at Special Term therein, when the' appeal can be heard and determined in due season, as in the case at bar. (Code Civ. Proc. § 1356.)

The question which we are called upon to decide relates solely to what are known as party nominations under the Election Law ; that is to say, nominations made by a primary or convention, or by a duly authorized committee appointed by such primary or convention. It has nothing to do with independent nominations, which are made by certificates signed and acknowledged by a prescribed number of voters.

The appeal was brought on in so informal a manner that the record was incomplete, inasmuch as it did not contain the testimony taken- at Special Term. This, however, has been furnished to us by the official stenographer.

The proceedings in the court below, including these proofs, show that there is now and has been for many years in Queens county, a faction of the Democratic party which is known as the Gleason faction. This year the delegates of this faction were not admitted to the Democratic State convention. In some years, however, they have been admitted, but whether recognized by the State convention or not, it appears that the Gleason faction have always supported the Democratic State and National ticket. Their contest with the other Democratic organization in Queens county has related only to local officers, and in respect to some of these they have more than once been successful, notably in Long Island City, thus indicating that they comprise a substantial body of voters.

A certificate has been filed with the county clerk in behalf of this faction, making nominations for county clerk, sheriff, superintendent of the poor, three coroners, justice of sessions and member of Assembly for the third Assembly district. The Gleason faction call themselves the Regular Democratic party, and these nominations purport to be made by “the duly authorized committee appointed by a convention of delegates representing the Regular Democratic party held September 22, 1894, in and for the county of Queens.” .

John J. Mitchell, who is the candidate for sheriff of the Democratic organization opposed to the Gleason faction, duly filed objection to the validity of their certificate, and contends, First, that they are not entitled to have any official ballot at all printed, inasmuch as tbey did not comply with the laws in respect to holding their primaries and convention; and, secondly, that in any event they are not entitled to have the., names of their candidates for local offices placed on the same ballot with the names of the Democratic candidates for State offices, but that so far as the latter are concerned their ballot should be left blank.

As to the first point, the record does not sustain the objection that insufficient notice was given of the holding of the primaries of the Gleason faction. In a city or village having more than 5,000 inhabitants notice of a primary must be given in a daily newspaper published there of the same politics with the party giving the notice.” (Election Law [Chap. 680 of 1892], § 51.)

There are more than 5,000 inhabitants in Long Island City, but the only daily newspaper there is found by the' court below to be opposed to the Gleason faction. Under these circumstances, I do not think it was a paper in which the law required the notice to be given, though it is also declared in the findings to be independent Democratic in politics. The obvious purpose of the statute is to provide for the publication of the notice where persons desiring to attend the primaries would be likely to see it, and such persons would be hardly likely to see it in a journal hostile to their organization. The Election Law goes on to provide that “ if no such newspaper is published in the same city or village where such primary is to be held, such notice shall be posted in at least six public places in such city or village at least two days next preceding such primary, and published in a weekly newspaper, if any, in such city or village of the same polities as the party giving the notice, before such primary is held.” The prescribed notice was posted in Long Island City in six or more public places and in the town of Flushing, and the proof is that the weekly papers published in Long Island City are all Republican. The provisions of law, therefore, in regard to giving notice of primaries in cities and villages having more than 5,000 inhabitants seem to have been complied with, and, except in such cities and villages, a primary, may be called and held pursuant to notice given according to the regulations and usages of the party organization holding it. (Election Law, § 51, last clause.)

These views lead to the conclusion that the Gleason faction are entitled to have their nominations for local offices printed upon an official ballot, and bring us to the second question in the case: Is that official ballot to bear only those nominations for local offices and to be otherwise blank, or may it also bear the Democratic nominations for State offices ?

This question is different from that which came before me in 1890, in the case of The People ex rel. Childs v. Sutphin (not reported). That was an application for a peremptory writ of mandamus to compel the county clerk of Queens county to strike the name of James W. Covert as a candidate for Congress from the official ballot containing the nominations for county offices made by this same Gleason faction. There it appeared that the Gleason faction had been recognized by .the last preceding State convention and had been accorded equal representation with the delegates of the rival Democratic organization from Queens county. Each faction held a county convention and nominated county officers. When these two sets of county nominations came before the county clerk, he was unable to determine that one was any more or less Democratic than the other, and so he printed one ballot bearing the names of the county candidates of the Gleason faction, together with the name of James W. Covert as candidate for Representative in Congress and Robert Earl as candidate for Judge of the Court of Appeals, and another ballot bearing the names of the county candidates of the other Democratic faction, together with the names of the same candidates for Congressman and Judge. Each county convention being apparently just as regular as the other, so far as the clerk could tell, it was held that he might lawfully place the names of Mr. Covert and Judge Earl upon one official ballot containing the county nominations made by one of the Democratic county conventions, and also upon another official ballot containing the county nominations made by the other Democratic county convention. It was impossible, on the facts then before the court, to say that one convention was not as much in harmony with the State Democratic organization as the other. Here the facts are quite different. The Gleason faction have been refused recognition by the State convention, and if such recognition is necessary to enable them to have their local ticket placed on the same ballot as the State ticket, they must fail on this appeal.

Only four reported cases have been brought to our attention, arising under section 65 of the present Election Law, or the corresponding provision in the original Ballot Reform. Act (Laws of 1890, chap. 262, § 13). These manifest a decided difference of judicial opinion at Special Term in regard to the effect which ought to be given to recognition or non-recognition by a State convention. The Matter of Woodworth (16 N. Y. Supp. 147) involved a controversy between two opposing Republican factions in Seneca county. Mr. Justice Adams, finding both certificates in apparent conformity with the law, inquired into the extraneous facts and ordered the clerk to print upon the official ballot the names of the county candidates nominated by the faction which he found to be regular. The case went to the General Term, where, as already stated, the court held that the order was not appealable. (64 Hun, 522.) In The Matter of Redmond (5 Misc. Rep. 369) the same learned judge was called upon to determine whether the nominee of an Assembly convention called and held by a faction whose delegates had been refused admission to the Democratic State convention was entitled to have his name printed on the official Democratic ballot. He decided that the applicant having received his nomination at the hands of a convention whose claims to regularity have been submitted to the supreme authority within the party in the State, and which have by that party been declared unfounded, cannot be regarded as a regular nominee of his party, and is consequently not entitled to have his' name printed upon the official Democratic ballot.” Judge Adams again considered a like question in The Matter of Pollard (55 N. Y. St. Repr. 155) and expressed the opinion that “ the only rule for courts and judges to adopt in this and all other similar contests is that they will interfere only in cases where there has been no adjudication of the question of regularity by some division of the party which is conceded to be superior in point of authority to the one in which the contention arose, provided, of course, that the question of good faith in the making of such adjudication is not involved.”

On the other hand, in The Matter of Broat (6 Misc. Rep. 445) at the Albany Special Term in January, 1894, Herrick, J., declined to give any force to the recognition of one of the rival organizations by the executive committee of the Democratic State committee, saying : In proceedings of this character the decisions of party conventions, committees or caucuses are not binding and have no weight with the court; one of the very purposes of the law is to determine whether the action of such bodies is in conformity with the laws of the State.”

In examining the various Special Term decisions which have been rendered upon this branch of the Election Law, in order to ascertain what view is soundest in reason, we should not overlook the opinion delivered by Judge Cullen himself two years ago in an unreported case in Queens county where the facts were not materially different from the facts in the case at bar. (Matter of the Application of Jones v. Sutphin, MSS. opinion.) The question was whether the names of the Democratic nominees for presidential electors should be placed on the ballots containing the names of the candidates for local offices nominated by the Gleason faction. The delegates of that faction had not been admitted to the most recent Democratic State convention. It was claimed that there could be but one organization of the same political party in a county; that the Glearson organization was not regular because it had not been recognized as such by the State convention; and that it was to be treated as a wholly distinct party, not entitled to have its local nominees named on a ballot with nominees for State offices, unless it held a State convention or nominated candidates for State offices by certificates as independents. This view was rejected, in reliance upon the principle involved in the decision of the General Term of the First Denartment, in the case of The People ex rel. Van Wyck v. Wheeler (18 Hun, 540), where the Tammany Hall organization was held to be entitled to representation in the appointment of Democratic election inspectors, notwithstanding the fact that Tammany Hall had withdrawn from the Democratic State convention and refused to support its candidate for Governor. In selecting the inspectors it was declared to be the duty of the police commissioners to look upon the Democratic party as a whole, and not exclude a great body of Democrats who, under one local organization, rejected the nominee, for Governor, but supported all the other nominees on the State ticket. The wisdom of the rule thus laid down, said Mr. Justice Cullen in the manuscript opinion to which I refer, has been made apparent by subsequent events. Tammany Hall, in 1879 withdrawing from the State convention and not till 1882 suffered to take part in its proceedings even on a partial representation, in 1889 was received as the only representative of the Democracy of the city of New York. Yet, with the exception of the election of 1879, it always supported the State Democratic ticket, polling therefor, generally, a greater vote than that of its rival organization, and defeating that organization in the contests for local offices. It would be absurd to deny that Tammany Hall, during the period of its exclusion from the State councils, was a part of the Democratic party of the State of New York. The Gleason party stands in the same position on State and National nominations. It is a part of the Democratic party.”

If these views were correct in 1892, when they resulted in placing the Democratic Presidential electors on the same ballot as the Gleason nominees in Queens county, they are correct now, and should lead to an affirmance of the order directing the clerk to place the names of the Democratic nominees for State offices upon an official ballot bearing the names of the local candidates of the Gleason faction.

I think they were correct. In making up the various official ballots the county clerk takes into consideration the nominations for State and district offices which have been certified to the Secretary of State and the nominations for local offices which appear upon certificates filed in his own office. In combining the names to go upon a particular official ballot he is to select, so far as party nominations are concerned, the candidates nominated by one and the same party. Ordinarily there is no difficulty in doing this, for ordinarily there is only one set of nominations from the same party to deal with. But suppose there are two sets, as in the present 'case, so far as local offices are concerned, both coming from rival organizations which claim to be parts of the Democratic party. May the county clerk refuse to place one of these sets on a ballot with the State nominees simply because the faction which made the local nominations was not recognized by the last State convention ? I think not. His duty is to inquire and determine, as matter of fact, whether that faction is really a part of the Democratic party of the State or not, in the wider and more liberal sense applied in the Wheeler case by the New York General Term. If it is, its local candidates should be named on a ballot with the Democratic State ticket. If it is not, they should have a ballot by themselves, with blanks so far as relates to State offices.

The determination, as a question of fact, whether a particular local party is to be deemed a portion of a larger political party or not may often involve perplexities, and it is impossible to lay down any specific rules in advance by which such questions may always be decided. It seems perfectly clear to me, however, upon the proofs in the present case, that the court below was right in the conclusion reached as to the relation of the Gleason faction to the Democratic party of the State.

The present Election Law is not so plain in its provisions or so easy of interpretation as to permit any construction in respect to the points here involved which would not be open to some objection. I think that the construction which has been adopted really involves fewer substantial objections than any other which has been suggested. To hold that a large body of Democrats or Republicans who were in sympathy with their party nominations for State offices could not have an official ballot bearing these nominations, simply because of factional differences in respect to local candidates which resulted in two^local tickets, would be to restrict rather than facilitate independent voting. The original Ballot Reform Law was entitled, “ An act to promote the independence of voters,” and the present Election Law, which is based upon it, should be interpreted, so far as possible, in accordance with the purpose thus indicated.

I think the order appealed from should be affirmed.

Dykman and Pratt, JJ., concurred.

Order appealed from affirmed.


source: Caselaw Access Project

author: Foulett, J.:

license: Public Domain

text:
    Maximilian Toch, Individually and as Administrator, etc., of Moses Toch, Deceased, Appellant and Respondent, v. Jacob B. Toch, Individually and as Executor of Bernard Toch, Deceased, and Another, Respondents and Appellants, Impleaded with Henry M. Toch, Individually and as Executor, etc., of Bernard Toch, Deceased, and Others, Respondents.

      Proof required, to enable an administrator to recover assets — right of election by a legatee — specific bequests, when charged with the payment of debts.

    To establish, the right of a plaintiff to.recover assets in his capacity as administrator he is bound to show, as against the estate of the deceased sole executor and residuary legatee that the recovery thereof is necessary for the due administration of the estate of which he is the administrator.
    A legatee named in the will. of a deceased executor has the right to elect whether he will or will not accept the provisions in the will of such executor contained, in satisfaction of a legacy bequeathed to him by a will of which the deceased was the executor.
    When articles of personal property are specifically bequeathed by will, they are not to be resorted to for the payment of debts, unless the property not specifically devised or bequeathed is insufficient for that purpose.
    Cross-appeals by tbe plaintiff, Maximilian Toch, individually and as administrator, etc., of Moses Toch, deceased, and by the defendants, Jacob B. Toch, individually and as executor, etc., of Bernard Toch, deceased, and another, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of May, 1894, upon the decision of the court, rendered after a trial at the New York Special Term, charging certain real estate with the payment of certain legacies, directing the sale of such real estate, and adjudging that the plaintiff is not entitled to a certain fund of $14,000.
    The following is a copy of a clause contained in the will of Bernard Toch:
    “ Fourth. I direct my executors or executor hereinbefore named, or such of them as may duly qualify as such, to take out of and from my estate a sum of money which will be sufficient to pay and satisfy all unpaid legacies which my respective brothers Leopold and Moses Toch did, in and by their respective last wills and testaments, bequeath and leave to their respective children, to be paid to such children as each of them attained the age of twenty-four years, and to pay and deliver said sum of money to the person or persons who may hereafter be duly appointed as administrator with the wills of said Leopold and Moses Toch annexed, in such sum or portions thereof as. may be necessary for the purpose of carrying out the said wills and testaments of Leopold and Moses Toch respectively.”
    This action was brought for the purpose of charging certain real estate with the payment of eight legacies of $1,000 each, bequeathed by Bernard Toch to his eight nephews and nieces, children of Moses Toch, and to compel Henry M. Toch and Jacob B. Toch, as executors of Bernard Toch, to account to the plaintiff, as administrator of Moses Toch, with his will annexed, for $9,000, the value of certain personal property, and for $5,000, the amount received by said executors from the Mutual Life Insurance Company on policy No. 104,721, issued upon the life of Bernard Toch, payable to Moses and Leopold Toch, which, May 9, 1882, was assigned by the executors of Leopold to Moses Toch, and by his executor, Bernard Toch, was assigned October 10, 1884, to said Bernard Toch individually, and that said sums, amounting to $14,000, be charged on said real estate.
    Moses Toch died April 27, 1884, leaving a last will, which was probated August 19, 1884, and letters testamentary were issued thereon to Bernard Toch. The testator bequeathed $25,000 to his executor, in trust, to invest and pay the income therefrom to his widow during life or until she remarried, which was in lieu of dower. He bequeathed to each of his eight children who should attain the age of twenty-four years $1,000 each, to be paid to each child on his or her twenty-fourth birthday. He provided that, in case any child should die before becoming twenty-four years of age, the sum bequeathed to such child should become part of the residue of his estate. The residue of his estate he bequeathed to his brother Bernard Toch. He left eight children, all of whom are now living, and several of whom have become twenty-four years of age. Bernard Toch never inventoried or settled the estate of his deceased brother. Whether testator left debts, and, if he did, whether they have been paid, does not appear. It appears that he left an estate of at least $40,000, $9,000 of which was personalty and about $5,000 in a policy of life insurance.
    Bernard Toch died April 14, 1886, leaving a will, which was probated May 21,1886, and letters testamentary were issued thereon to Henry M. Toch and Jaeob B. Toch. On the 8th of October, 1886, the plaintiff was duly appointed the administrator of the estate of Moses Toch, with his will annexed. The executors have never filed an inventory of the estate, nor have they rendered any ' account as executors. Whether Bernard Toch left debts, and, if so, whether they have been paid, does not appear, except it appears that the eight legacies bequeathed by his brother Moses to his children have not been paid. Bernard Toch left personalty of the value of $15,750, all of which was specifically bequeathed, except a cash item of $375, and it has been distributed to the specific legatees, pursuant to the will. When Moses Toch died he and Bernard Toch were seized in fee simple of real estate, which is described in the complaint, each owning an undivided half thereof. Bernard Toch •died seized of these premises, which are worth more than $75,000, one-half of which he acquired as the residuary devisee and legatee under the will of Moses Toch. This is the real estate upon which the eight legacies are charged by the judgment. The eight legacies were charged upon the real estate, as prayed in the complaint, and from this part of the judgment Jacob B. Toch and Lucius Toch, two of the defendants, appeal. The court refused to require the •executors of Bernard Toch to account for the $14,000 arising as above stated, from which part of the judgment the plaintiff appeals.

      M. L. Townsend, for plaintiff, appellant and respondent.

      Treadwell Glevelcmd, for defendants, appellants and respondents..

      Louis Wertheimer, for Henry N. Toch, defendant and respondent.
   Foulett, J.:

This action is in equity to recover the assets of the estate of Moses Tocli in the hands of the executors of Bernard Toch, who was the sole executor and residuary legatee and devisee of Moses Toch, and to charge the payment of certain legacies given by the will of Bernard Toch on his real estate. To establish the plaintiff’s right to recover assets in his representative capacity, he was bound to show that their recovery was necessary for the due administration of the estate of which he was administrator. The payment of all the legacies given by the will of Moses Toch is secured by the provision of the judgment charging their equivalents on Bernard Tocli’s realty,, pursuant to the provisions of his will, and no attempt was made to show that there were unpaid creditors of Bernard Toch, or that there were unpaid expenses of administration. It seems to us that the plaintiff failed to establish any right of recovery in his representative capacity. Walton v. Walton (1 Keyes, 15; S. C., 4 Abb. Ct. App. Dec. 512; more fully reported, 2 Abb. Pr. [N. S.] 428) is not an authority for the plaintiff’s contention on this appeal that he has the absolute right to recover the assets which passed from Moses Toch to Bernard Toch. By the opinion delivered in the Supreme Court in that case, it appears that there were unadministered assets in the hands of the defendants, and that there were unpaid legacies.' These two facts established the plaintiff’s right to recover in that action. In the case at bar there were no-unpaid legacies, and so far as it appears no debts. No equitable-result would be reached by permitting the plaintiff to recover the-$14,000 for the sole purpose of paying that sum back on final settlement of the estate of Moses Toch to the executors of Bernard Toch.. Undoubtedly if the plaintiff and his brothers and sisters had elected not to accept the legacies in the will of Bernard Toch in satisfaction of those in the will of Moses Toch, he would have been entitled, in his representative capacity, to have recovered sufficient assets from the executors of Bernard Toch to pay those legacies.. But these legatees had the right to elect, and they have elected, to accept the provisions in the will of Bernard Toch in satisfaction of the legacies bequeathed to them in the will of their father. By asking in this action to have the legacies bequeathed to them in the will of Bernard Toch charged upon his real estate, they have elected not to regard the $8,000 as a debt due from the estate of Bernard to the estate of their father, and by the judgment they have secured the payment of those legacies. The plaintiff recovered in this action all that he was entitled to, and his appeal cannot prevail.

One of the executors of Bernard Toch and one of the beneficiaries under his will appeal from the judgment on the ground that the court erred in charging the eight legacies given by the will of Bernard Toch upon his realty. It is urged that the evidence of an intention to charge them upon the realty was insufficient to' justify the conclusion drawn by the court. This contention cannot prevail. It is found as a fact, and the finding is not challenged, that Bernard Toch left personalty of the value of $15,750, the items of which are found. All of these items, except a cash item of $375, were specifically bequeathed to certain legatees, and those items have been distributed to the legatees. This left but $375 to pay the debts of Bernard Toch, if he left any, and the expenses of administering his estate. It is clear that the legacies bequeathed by the will of Bernard Toch must necessarily be paid out of the, realty. When articles of personal property are specifically bequeathed they are not to be resorted to for the payment of debts, unless the property not specifically devised or bequeathed is insufficient for that purpose. If a testator bequeaths a picture, a particular bond and a sum of money deposited in a bank to three legatees, these items are not to be taken for the payment of debts, unless the remainder of the estate is found insufficient. The will of Bernard Toch gives to his executors power to sell or jnortgage all of his realty, except Nos. 293 and 295 East Tenth street, for the purpose of administering his estate.

Moses Toch died April 27, 1884, and October 24, 1884, Bernard Toch executed his will, by which he provided for the payment out of his own estate of the legacies bequeathed by Moses to his children, and by his will he specifically bequeathed all of his personalty except $375. Bernard died April 14, 1886, and no change appears to have occurred between the date of his will and the date of liis death in the quantity or character of his personalty. The condition of Bernard’s estate and the provisions of his will indicate an intention on his part to charge his realty with the payment of the legacies to Moses’ children. He had just acquired one-half of his realty through the will of Moses, and justice, and good faith required that the payment of those legacies should be secured, and every act of Bernard’s shows that he intended to deal justly by his nephews and nieces and in strict accordance with the trust reposed in him by his brother. On the question as to whether Bernard intended to charge his realty with the payment of those legacies, the opinion of the learned judge at Special Term is satisfactory, and further discussion is unnecessary.

The judgment should be affirmed, without costs to any party.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed, without costs to any party.


author: Eoilbtt, J.:

text:
    Joseph Blumenthal, as Receiver of Morris Schneider and Another, Respondent, v. Benjamin F. Einstein and Others, as Trustees, Appellants.

      Adjustment of claims between solvent and insolvent sureties and principals — awa/rd of costs.

    In equity a solvent surety is protected from tlie claims of his insolvent creditor — in case A, who is solvent, owes B, who is insolvent, $100, and A is surety for B in the sum of $200, equity will restrain B from collecting the $100, and will compel its application on the debt for which A is surety, but where the surety is also insolvent, and no further dividend will be made from his estate, only existing claims can be considered in adjusting the demands between the surety and his principal.
    Where the receiver of the property of an insolvent debtor wrote to the trustees of another insolvent debtor, asking for an adjustment of the claims between them, to which no attention was paid, such trustees, in an action brought by the receiver against them, to recover the amount due the receiver as such, are properly charged with costs if judgment is awarded in favor of the receiver.
    Appeal by the defendants, Benjamin P. Einstein and others, as trustees, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of March, 1894, upon the report of a referee.

      A. H. Dyett, for the appellants.

      William Man, for the respondent.
   Eoilbtt, J.:

On August 3,1891, Abraham Backer became insolvent and made a general assignment for the benefit of creditors to Benjamin F. Einstein. Subsequently the general assignment was superseded by an agreement entered into between Abraham Backer, his wife, his assignee, all of his creditors and three trustees. By the agreement, all of Backer’s property was conveyed and assigned to the three trustees, who undertook to convert it into money and distribute the avails ypro rata among Backer’s creditors. This agreement is dated “ October, 1891,” but when it was completely. executed does not appear, but it was after December 15, 1891.

October 7, 1891, Morris and Abraham Schneider recovered a judgment in the Supreme Court against Abraham Backer for $51,541.77. "When Backer failed, Morris and Abraham Schneider were liable, as accommodation indorsers, for Backer on several promissory notes aggregating $41,250, which were made by Charles Schneider & Co. Before December 15, 1891, Abraham Backer died.

On December 15, 1891, Morris and Abraham Schneider and the three trustees agreed, in writing, that in case the compromise agreement should be executed by ninety-seven per cent of the creditors, so that it would take effect according to its terms, as it subsequently was, the Schneiders should be recognized as creditors of Backer to the amount of their aforesaid judgment against him and for whatever sum they should pay, as accommodation indorsers, on the notes made by Charles Schneider & Co., less $15,000, which they agreed should be taken as the value of the claim of Morris and Abraham Schneider against Charles Schneider & Co. (the makers of the notes) by reason of their payment of those notes. Subsequently Morris and Abraham Schneider paid $16,950.16 on the accommodation indorsements.

Morris and Abraham Schneider were partners, engaged in business under the name of M. & A. Schneider, and, becoming insolvent, the plaintiff was, January 8, 1892, appointed receiver of their property.

When Abraham Backer failed he was liable for $38,584.10 as an accommodation indorser on the notes of M. & A. Schneider, on account of which the defendants, as trustees, paid to the holders of the notes twenty per cent, amounting to $7,716.82. It is conceded that there is due from the defendants to the creditors of Abraham Backer a dividend of twenty per cent.

The sole question is how these claims should be offset as between these insolvent estates.

The referee’s result was reached as follows:

October 7, 1891, judgment against Backer......... $51, 541 77

M. & A. Schneider paid on accommodation indorsements of Charles Schneider & Co.’s notes................. $16, 950 16

Deduct M. & A. Schneider’s claifci against Charles Schneider & Co., as agreed.......................... 15, 000 00

- 1, 950 16

Total amount of claims against Abraham Backer, $53, 491 93

Erom this amount the referee deducted the dividend paid by defendants on Backer’s accommodation indorsements for M. & A. Schneider............ 7, 716 82

$45,775 11

Twenty per cent on $45,775.11 equals $9,155.02, for which, with interest as stipulated, the referee ordered a judgment. The defendants insist that the offset should have been made as follows :

Twenty per cent on claims of plaintiff against Backer — $53,491.93 — equals........................ $10,698 38

Deduct amount paid by defendants on Backer’s accommodation indorsements for M. & A. Schneider, 7, 716 82

Due from defendants to plaintiff.............. $2,981 56

When this action was begun Morris and Abraham Schneider would have had, had their claims not passed to their receiver, a right of action against tbe administrator or executor of Abraham Backer for $53,491.93. About this fact there is no dispute. By how much could this amount have been reduced by the administrator or executor? Not by $38,584.10, the full amount of Backer’s liability as accommodation indorser for Morris and Abraham Schneider, for that sum had not been paid by Backer or by his estate, but his personal representative Would have been entitled to set off only the amount paid by him or them, or by both, which was $7,716.82. (Powell v. Smith, 8 Johns. 249; Bonney v. Seely, 2 Wend. 481; Hannay v. Pell, 3 E. D. Smith, 432; Elwood v. Deifendorf, 5 Barb. 398.) Deducting $7,716.82 from $53,491.93 leaves $45,775.11, the amount to be recovered against Backer, if living, or, if dead, against his personal representative. That such is the legal rule of set-off, as between persons who are solvent, will not, we think, be disputed; but the defendants insist that tlie equitable rule as between insolvent estates is different, ^.nd that in the case at bar the litigants represent two insolvent estates; that neither litigant is liable for the debts of his principal, but is liable to' pay only the per cent which the property in hand produces, to wit, the defendants are liable in the sum of $10,698.38 to the plaintiff, who is liable to the defendants in the sum of $7,716.82, which being deducted leaves $2,981.56 as the full measure of the liability of the defendants to the plaintiff.

The difficulty with this position is that the sum of $10,698.38 represents, not the debt owing by Backer to the plaintiff, but a dividend thereon, while the sum of $7,716.82 represents the entire debt of M. & A. Schneider to the defendants, not a dividend on a debt owing by M. & A. Schneider to Backer. It is true that the latter amount represents a dividend, but it is a dividend due and paid to other creditors holding notes indorsed by Backer for the accommodation of M. & A. Schneider. It will be seen that the defendants seek to set off the whole debt held by them against a dividend on a debt held by the plaintiff. .

In equity a solvent .surety is protected from the claims of his . insolvent creditor. For example: In case A, who is solvent, owes B, who is insolvent, $100, and A is surety for B in the sum of $200, equity will restrain B from collecting the $100, and will compel its application on the debt for which A is surety. So in the case at bar, if Backer’s estate were solvent, it would not be compelled to pay any sum to the plaintiff so long as it was liable in a greater sum as accommodation indorser, but the estate is not solvent, and it is not pretended that another dividend will be made, and so only existing claims can be considered in adjusting the demands.

The amount of the plaintiff’s claim against Backer’s estate is absolutely fixed at $53,491.93, and it can never fluctuate. ' If the claim of Backer’s estate were absolutely fixed at $38,584.10, then it wouid be adjusted by deducting principal from principal, and computing the percentage upon the remainder, as urged by the defendants. which would be equivalent to computing the percentage which each estate pays on its total liability, as is shown by this statement:

$53,491.93 — $38,584.10=$14,907.83 x .20............ $2,981 56

$53,491.93 x .20....................... $10,698 56

$38,584.10 x .20....................... 7,716 82

---2,981 56

But the defendants’ claim is not fixed at $38,584.10, but it is fixed at $7,716.82, and there is no evidence in the record from which the referee would have been justified in finding that the claim would be increased in the future, and so we think that the referee adopted a correct principle in adjusting these demands.

The plaintiff, through his attorney, repeatedly wrote letters to the defendants asking for an adjustment of the claims, to which no attention wafe paid, and we think the facts justified the referee in charging the defendants with costs. ■

The judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concurred.

Judgment affirmed, with costs.


author: Follett, J.:

text:
    Jacob Ter Kuile, Respondent, v. Frank E. Marsland, Appellant.

      Counterclaim — what causes of action ma/y he pleaded as— Code of Civil Procedure, § 501, construed.

    A defendant may plead as a counterclaim a cause of action against the plaintiff, which tends to diminish or defeat the plaintiff’s recovery, provided that the cause of action is embraced within either of the two subdivisions of section 501 of the Code of Civil Procedure.
    The first subdivision of section 501 of the Code of Civil Procedure does not limit the right of a defendant to interpose counterclaims to an action brought on a contract, hut gives the right to interpose counterclaims in an action brought to recover damages for a tort, if the causes of action set out in the complaint and in the answer arise out of the same contract or transaction, or relate to the same subject; nor does it provide that the cause of action set up as a counterclaim must arise out of a contract, hut it authorizes the interposition of causes of action arising out of torts as counterclaims.
    Where a cause of action set out in the complaint in an action, and the cause of action set out in the answer as a counterclaim, arise out of the alleged breach of the same contract, the cause of action set out in the answer may he iwoperly pleaded as a counterclaim.
    In case an action is brought to recover damages for a tort, a counterclaim arising out of a contract connected with the subject of the action may he pleaded, and in an action on a contract, damages arising out of the tort of the plaintiff, if the two causes.of action are connected, may he interposed as a counterclaim.
    The word “transaction,” as used in section 501 of the Code of Civil Procedure, is broader than the word “ contract,” and, in case a defendant’s cause of action arises out of a transaction out of which the plaintiff’s cause of action arises, it maybe pleaded asa counterclaim. So the term “ subject of the action,” as used therein, is broader than the term “cause of action.”
    Where the alleged cause of action of the plaintiff in an action arose out of the collection of money by the defendant which he had no right to collect, and the defendant’s counterclaims did not arise out of the plaintiff’s cause of action, hut were connected with the subject of the action, that is to say, the rights and liabilities of the litigants arose out of their performance or non-performance of the duties owing to each other under their contract, and their mutual trans; actions thereunder, the causes of action are all “ connected ” within the meaning of section 501 of the Code of Civil Procedure.
    Appeal by tbe defendant, Frank E. Marsland, from an interlocutory judgment of tbe Supreme Court in favor of tbe plaintiff, entered in the office of tbe clerk of tbe county of New York on the 3d day of July, 1894, upon tbe decision of the court, rendered at the New York Special Term, sustaining the plaintiff’s demurrer to the first, second and third counterclaims contained in the defendant’s answer, except that portion of the judgment which gives leave to the defendant to amend his answer on payment of costs, and also from the decision or findings made at the New York Special Term upon the hearing of such demurrer and filed in said clerk’s office on the 25th day of June, 1891.
    It is alleged in the complaint that April 1, 1892, the litigants and Orme, Evans & Oo. executed a written contract, by which defendant agreed to solicit orders from dealers in the United States and Canada for goods manufactured by said firm, which/orders were to be in writing, and all bills for goods were to be made out in the name of “ Erank E. Marslnnd, agent,” and that it should be stated on their face that they were to be paid to the plaintiff.
    It is also alleged that the defendant, “ pursuant to said contract,” procured orders from divers purchasers for goods to the amount of $2,055.50, which were furnished by the plaintiff, and that the defendant wrongfully, and without authority from the plaintiff, collected the amount due for the goods ($2,055.50) and converted it to his own use.
    The defendant annexed a copy of the contract of April 1, 1892, to his answer, and denied that he made the sales described in the complaint, and denied that he converted the sum therein mentioned, and set up by way of counterclaims: (1) That goods were sold under said contract to divers persons, on orders procured by the defendant, the price of which the plaintiff collected, and that there is due the defendant, by the terms of the contract, at least $2,000. (2) That the plaintiff broke the contract by refusing to pay the duties on goods received from Orme, Evans & Oo., and also neglected to advise the firm of divers orders obtained by the defendant, which were not filled, to his damage in the sum of $2,000. (3) That under the contract the defendant had the exclusive right to solicit orders in the United States and Canada for the goods manufactured by Orme, Evans & Go., and that the plaintiff and said firm conspired and confederated together, wrongfully and fraudulently, to deprive, and did deprive, the defendant of such right, to his damage of $2,000.
    The plaintiff demurred to the first and second counterclaims on two grounds:

      ,- “ 1. It appears on. the face thereof that the counterclaim is not of the character specified in section 501 of the Code of Civil Procedure, in that a counterclaim to recover money alleged to be due under a contract cannot be allowed in an action for conversion.

      “ 2. The counterclaim is insufficient in law upon the face thereof.”
    The plaintiff; demurred to the third counterclaim on three grounds:
    ■“ 1. It appears on the face thereof that the counterclaim is not of the character specified in section 501 of the Code of Civil Procedure, in that a counterclaim to recover for an alleged conspiracy' and confederation to deprive the defendant of the benefit of an exclusive right to sell certain goods under a contract cannot be allowed in an action for conversion.

      “ 2. It appears on the face thereof that the counterclaim does not state facts sufficient to constitute a cause of action.
    “3. The counterclaim is insufficient in law upon the face thereof.”
    The demurrer to the three counterclaims was sustained and leave granted the defendant to serve an amended answer on paying the costs, and an interlocutory judgment was entered, from which the defendant appeals.

      William A. Alhott, for the appellant.

      Henry A. Forster, for the respondent.
   Follett, J.:

The defendant may plead as a counterclaim a cause of action against a plaintiff which tends to diminish or defeat the plaintiff’s recovery, provided the cause of action is embraced within either of the two subdivisions of section 501 of the Code of Civil Procedure here quoted:

“ 1. A cause of action arising out of the contract or transaction, set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action.
2. In an action on contract, any other cause of action on contract, existing at the commencement of the action.”

The counterclaims set up in the answer are not embraced within the second subdivision, and the question is whether they are embraced within the first subdivision. The first subdivision provides that a cause of action in favor of a defendant and against a -plaintiff may be pleaded as a counterclaim in case it arises, (1) out of the contract set forth in the complaint; (2) out of the transaction set forth in the complaint; (3) or is connected with the subject of the action. The fact that the-plaintiff in this action seeks, to. recover for the defendant’s conversion of money is not decisive of the question under consideration. The first subdivision does not limit the right of a defendant to interpose counterclaims to an action brought on a contract, but gives the right to interpose counterclaims in an action brought to recover damages for a tort, if the causes of action set out in the complaint and in the answer arise out of the same contract or transaction or relate to the same subject. (Rom. R.' & R. [2d ed.] § 188.) Nor does the subdivision provide that the cause of action set up as a counterclaim must arise out of a contract, but it authorizes the interposition of causes of action arising out of torts as counterclaims. The theory of the Code is to authorize all connected causes of action, whether arising out of contracts or torts, to be litigated in the same action. The cause of action set out in the complaint arises out of the alleged tortious breach by the defendant of the written contract of April 1, 1892, to wit, the collection and conversion to his own use of money which, by that contract, he had no right to collect, but which should have been paid by the purchasers of goods to the plaintiff. The plaintiff, as the foundation for his cause of action, alleges what he asserts is the legal effect of the contract of April 1, 1892, which he must introduce in evidence before he will be permitted to give evidence tending‘-to show that the defendant wrongfully broke it. All of the counterclaims arise out of the alleged non-performance by the plaintiff of that contract, and, besides, they are connected with the subject of the action. In other words, the cause of action set out in the complaint, and the causes of action set out in the answer as counterclaims, arise out of the alleged breach of the same contract, and the causes of action set out in the answer may be pleaded as counterclaims under section 501. (Pom. R. & R. [2d ed.] § 778.)

In Carpenter v. The Manhattan Life Ins. Co. (93 N. Y. 552) the doctrine that a counterclaim cannot be allowed in an action to recover damages for a tort was repudiated. That case arose out of the following facts: The defendant held the first mortgage on a farm on'which the plaintiff held the second mortgage. The plaintiff, white, in possession of the farm under his second mortgage, cut sixty-five cords of wood, but before it was taken away the defendant acquired possession of the farm through the foreclosure of its mortgage, on which foreclosure there was a large deficiency. The defendant refused tp permit the plaintiff to remove the wood, and, in an action to recover damages for its conversion, was permitted to set up, as a counterclaim, that the farm was inadequate security for the first mortgage; that the mortgagor was insolvent, which facts the plaintiff well knew, and, being in possession, wrongfully committed wáste by cutting the wood, to the injury of the farm of §500.

In discussing the question it was said that the transaction set out in the complaint was the conversion of the wood, and that the counterclaim did not arise out of that transaction ; but it was held that it was connected with the subject of the action.

The court said: “ The counterclaim must have such a relation to, and connection with, the subject of the action that it will be just and equitable that the controversy between the parties as to the matters* alleged in the complaint and in the counterclaim should be settled in one action by one litigation, and that the claim of the one should be offset against,'or applied upon, the claim of the other.”

Thomson v. Sanders (118 N. Y. 252) was an action on a bond in which the defendant pleaded a counterclaim, arising out of fraudulent representations of the plaintiff, in the transaction out of which the bond arose. It was held that, these causes of action arising out of the same transaction, the damages arising out of plaintiff’s fraud were available as a counterclaim. It may be’regarded as settled that, in case an action is brought to recover damages for a tort, a counterclaim arising out of a contract connected with the subject of the action may be pleaded, and that in an action on a contract damages arising out of a tort of the plaintiff, if the two causes of action are connected, may be interposed as a counterclaim'.

The word “ transaction,” as used in the section, is broader than the word “ contract,” and in case the defendant’s cause of action arises out of a transaction out of which the plaintiff’s cause of action arose, it may be pleaded as a counterclaim. So the term “ subject of the action ” is broader than the term cause of action.” In the case at bar the plaintiff’s alleged cause of action arose out of the collection of money which defendant had no right to collect, and the defendant’s counterclaims do not arise out of those facts — out of the plaintiff’s cause of action— but the counterclaims are “ connected with the subject of the action,” which, in this case, is the rights and liabilities of the litigants, arising out of their performance or nonperformance of the- duties owing to each other under their contract and the muttial transactions thereunder, and they are all connected within the meaning of the section of the Code under consideration.

Sufficient facts are set up in the answer to constitute causes of action alleged as counterclaims.

The interlocutory judgment should be reversed, with costs, and the plaintiff given leave to withdraw his demurrer and reply upon the payment of costs.

Van Brunt, P. J., concurred.

Judgment reversed with costs, with leave to plaintiff to withdraw demurrer and reply on payment of costs.


text:
    In the Matter of Proving the Last Will and Testament of Benjamin Richardson, Deceased. In the Matter of the Application of Viola J. M. Karam, Appellant, to Vacate the Decree Admitting to Probate the Will of Benjamin Richardson, Deceased, and to Revoke the Letters Testamentary Issued thereunder to William T. Washburn and Another, Respondents.

      Legatee under a mil — ratification of its probate by accepting its benefits— estoppel — vacation for fraud of a decree of a Surrogates Gourt.

    A legatee who has received a portion of his legacy under a will cannot thereafter maintain a proceeding to revoke the prohate of the will without restoring or offering to restore the sum received.
    The probate of a will is in the nature of a proceeding in rem and affects the status of the estate, which status, as established by the probate, may be ratified by a person interested, although no jurisdiction was acquired over such person when the will was probated.

      The ratification may he effected by a writing solemnly executed or by the accept anee of benefits under the will and proceedings, with full knowledge of all the facts connected therewith.
    A person sui juris, who is not served in an action which ripens into a judgment, through which the title to real property is affected, may, by accepting the benefits flowing from the judgment, with full knowledge of all the facts, bar himself from the right to vacate the judgment, and an. infant not ser.ved, by accepting, after he becomes of full age, the benefits of the judgment, with full knowledge of all the facts, may so ratify it as to be estopped from moving to set it aside.
    A decree of a Surrogate’s Court should not be vacated for fraud unless the facts would justify setting aside a judgment of the Supreme Court, which latter court does not set aside its judgments on that ground unless the fraud is clearly established.
    Appeal by the petitioner, Yiola J. M. Karam, from an ' order of the Surrogate’s Court of the county of New York, entered in the office of the clerk of the New York County Surrogate’s Court on the 1st day of August, 1894, denying the application of the petitioner to revoke the probate of the will of Benjamin Richardson, deceased, and to revoke the letters testamentary issued thereunder, and dissolving an injunction order previously granted by the court staying and enjoining William T. Washburn and another, as executors of Benjamin Richardson, deceased, from acting as such.
    February 20, 1889, Benjamin Richardson died leaving him surviving Joseph B. Richardson, son, Jane Richardson, daughter, and five grandchildren, the children of a deceased daughter, to wit, Ella T, Birdsall, William H. Birdsall, Louis P. Birdsall, Yiola J. Birdsall and Philena C. Cooper, only heirs and next of kin of the decedent, who left a paper executed February 25,1888, purporting to be his last will and testament. On the 27th of February, 1889, the executors mentioned in the will verified and filed in the Surrogate’s Court a petition praying that a citation be issued to the persons mentioned in the petition to attend the probate of the will. On the 1st day of March, 1889, a citation was issued which was directed to ali of the persons mentioned in the petition, including Yiola J. Birdsall, and cited them to attend the probate of the will on March 2, 1889. The citation was not served on any of the persons to whom it was addressed for the reason that on the 28th day of February, 1889, all of them had waived, in writing, the issuance and service oLa citation and had consented that the instrument dated February 25, 1888, and purporting to be the will of the decedent, be forthwith admitted to probate. All of the persons interested were of full age except Yiola J. Birdsall, who was born September 20, 1869, and, consequently, on the 28th of February, 1889, was of the age of nineteen years, five months and eight days. The only provisions contained in the will for the benefit of Yiola J. Birdsall are the fifth and sixth clauses. By the fifth clause she was permitted to reside at No. 514 East One Hundred and Sixteenth street so long as she should wish. The following is a copy of the sixth clause:
    “ Sixth. I give, devise and bequeath to my executor, W illiam T. Washburn, and to Emma Richardson, wife of my brother Joseph, executrix, and their successors, in said office, all the balance of my real estate, wherever located, in trust for the purposes following:
    “ 1. I hereby direct my said executor and executrix to sell all real estate from time to time as the same can be sold to advantage, and of the avails thereof to pay my just debts, all the incumbrances upon said real estate, and all the legacies herein given, and after all said debts, incumbrances and legacies are paid to pay the balance remaining to such of my children as may be living at the time of my decease, and the share of such of my children as now are or as may at the time of my decease be dead to their children in such proportion or share as the law would give them if I die intestate.”
    Yiola J. Birdsall became twenty-one years of age September 20,. 1890, and continued to occupy No. 514 East One Hundred and Sixteenth street until March, 1898, when she married and became YioJa J. M. Karam. On the 9th of February, 1894, three years, four months and nineteen days after having reached her majority, sher verified the petition by which this proceeding was instituted.

      Rastus S. Rcmsom, for the appellant.

      Robert H. McGrath, for the respondents.
   Follett, J.:

The learned counsel for the appellant asserts in his brief that this proceeding is not for the revocation of the probate of the will under section 2641 of the Code of Civil Procedure, but is a proceeding “ tc vacate and open the decree under section 2481 of the Code of Civil Procedure, subdivision 6,” which provides:

“ Sec. 2481. A surrogate, in court or out of court, as tbe case requires, has power: * * *
' 6. To open, vacate, modify or set aside, or to enter, as of a former time, a decree or order of bis court; or to grant a new trial ■or a new bearing for fraud, newly discovered evidence, clerical error •or other sufficient cause. Tbe powers conferred by this subdivision must be exercised only in a like case and in tbe same manner as a ■court of record and of general jurisdiction exercises tbe same powers. Upon an appeal from a determination of tbe surrogate, made upon ¡an application pursuant to this subdivision, tbe General Term of the Supreme Court bas tbe same power as tbe surrogate, and bis ■determination must be reviewed as if an original application was made to that term.”

Tbe sole ground on which tbe plaintiff seeks to revoke tbe probate of tbe will is that tbe Surrogate’s Court acquired no jurisdiction over her in tbe proceedings to probate tbe will. This proposition is predicated on four undisputed facts: (1) That when tbe will was probated, March 2, 1889, she was but nineteen years, five months and twelve days old; (2) that February 28, 1889, when she waived service of a citation to attend tbe probate, none bad been •issued; (3) that no citation to attend the probate was ever served on her; (4) that tbe surrogate failed to appoint a competent and responsible person to appear as special guardian for her in tbe proceeding to probate tbe will.

Apart from tbe question whether the Surrogate’s Court on March ■2, 1889, bad acquired jurisdiction of tbe plaintiff, we think that tbe •decree should be affirmed because of the action and non-action of -the plaintiff during three years, four months and nineteen days between tbe time she became of full age, and tbe date when she began these proceedings. During this period she accepted benefits under tbe probated will, none of which bas she offered to restore, ,and some of which she cannot restore. Tbe testator died February 20, 1889, and tbe plaintiff became of full age September 20,1890. Pursuant to tbe fifth clause of tbe will, she occupied a dwelling from tbe testator’s death to March, 1893, when she was married —■ ■during a period of more than four years, two and one-half of these years being after she became twenty-one years of age. Before she became of full age she received from tbe executors $165 in cash, and after slie became of age she received from them $260 in cash, and in addition has received since August 3, 1892, one-fourth of the net rent from four houses, her share amounting to more than twenty dollars per month. An action was brought against the executors and devisees by a woman who asserted that she was the widow of the testator to recover her alleged dower right, which the appellant and the other defendants therein settled on the 11th of February, 1891, by giving their bond for the payment of $50,000' one year from date, secured by three mortgages, executed by the executors and devisees on the real estate left by the testator. The executors paid $15,000 of this sum, and the remainder — $35,000 — was borrowed February 18, 1892, on the bond of the executors and devisees, secured by three mortgages, executed by them. This plaintiff was a party defendant in that suit, participated in its settlement and executed the two bonds and mortgages given for their security. In 1893 she began proceedings in the Surrogate’s Court, which are still pending, to compel the executors to account. From the death of the testator to this date the plaintiff has resided in the city of New York, has had personal knowledge of the will, of the proceedings taken to probate it and of the transactions of the executors and devisees thereunder, and has joined in such transactions. She does not assert that she was ignorant of any fact on which she bases her present application, but only that she was ignorant of the law applicable to those facts. She does not disclose why she desires the probate revoked. It is not alleged that the will is, for any reason, void, or even that she desires to contest its probate on any ground. In short, she discloses no merits.

In The Matter of Peaslee (13 Hun, 113) this General Term held that a legatee who has received a portion of a legacy cannot maintain a proceeding to revoke the probate of the will without restoring, or offering to restore, the sum received. The cases suppoi’ting this proposition, and they are numerous, are cited in the opinion and need not be here referred to. It is said .that the case last cited is not an authority for the position that the appellant is estopped, because in that case the petitioner, an adult, was a party to the proceeding to probate the will and the Surrogate’s Court acquired jurisdiction over her. However the fact may be, the report of the case shows that the decision was not placed on that ground, but upon the ground that a person, by accepting benefits under a probated will, is estopped from seeking to revoke its probate. Persons may estop themselves from questioning void judgments, decrees, acts and contracts — for example, a forged signature to a contract — provided they are not void as against public policy. The probate of a will is in the nature of a proceeding in rem and affects the status of the estate, which status, as established by the probate, may be ratified by a person interested, though no jurisdiction was acquired over such person when the will was probated. This ratification may be effected by a writing, solemnly executed, or by the acceptance of benefits under the will and proceedings, with full knowledge of all the facts connected therewith. The latter is what the appellant has done. A person sui juris, who is not served in an action which ripens into a judgment, through which the title to real property is affected, may, by accepting the benefits flowing from the judgment, with full knowledge of all the facts, bar himself from the right to vacate the judgment, and so an infant not served, by accepting, after he becomes of full age, the benefits Of. the judgment with full knowledge of all the facts, may so ratify it as to be estopped from moving to set it aside.

It will be observed that the section under which this proceeding was instituted provides: The powers conferred by this subdivision must be exercised only in a like case and in the same manner as a court of record and of general jurisdiction exercises the same powers.”

A decree of a Surrogate’s Court should not be vacated for fraud unless the facts would justify setting aside a judgment of the Supreme Court, which does not set aside its judgments on that ground unless the fraud is clearly established. (Smith v. Nelson, 62 N. Y. 286; Kinnier v. Kinnier, 45 id. 535.)

The section of the Code under which this proceeding is prosecuted provides: “ Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the General Term of the Supreme Court has the same power as the surrogate, and his determination must be reviewed as if an original application was made to that term.”

The undisputed facts in the record refute the appellant’s allegation that a fraud was practiced uj)on her or on the Surrogate’s Court in the proceeding to probate the will, and if the evidence produced by both sides ■ is weighed, that furnished by the executors greatly outweighs that which was given by the appellant.

The decree should be affirmed, with costs.

Yah Brunt, P. J., and O’Brien, J., concurred.

Decree affirmed, with costs.


author: Eollett, J.:

text:
    August Von Hermanni, Respondent, v. Adam Wagner and Others, as Executors, etc., of Adam Schepp, Deceased, Appellants.

      Real estate broker — proof necessa/ry to authorize the recovery of commissions — status tory reference of a disputed claim — no amendment allowable on the trial.

    Where a claimant fails to show that a sale of real estate was effected within the time during which he was authorized to make a sale thereof, and also fails tp show that he conducted any negotiations which resulted in the sale of such property or in bringing the seller and buyer thereof together, he fails to make out a case for the recovery of his commissions as'a broker.

      A. referee appointed to hear a disputed claim, against the estate of a decedent, under the Revised Statutes or under the Code of Civil Procedure, has no authority to authorize the claim to be amended upon the trial, nor can the claimant recover upon such trial for services performed by him in procuring persons to go in front of certain real estate and act as though they intended to purchase the same, where his claim as presented, upon which the reference was ordered, ■was for commissions on the sale of such property.
    Appeal by the defendants, Adam Wagner and others, as executors, etc., of Adam Schepp, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of May, 1894, upon the report of a referee appointed under section 2718 of the Oode ot Civil Procedure, as amended in 1893.

      John H. Hull, for the appellants.

      Charles Schwick, for the respondent.
   Eollett, J.:

For several years prior to December 7, 1891, Adam Schepp owned No. 151 First avenue in the city of New York, a part of which had been leased to and occupied by George Knauer since May 1, 1885. On the 7th of December, 1891, Schepp and Knauer entered into a written contract whereby the former sold and the latter purchased the premises for $31,700. December 28, 1891, Schepp died, leaving a will, which was duly probated January 28, 1892, and letters testamentary thereon were duly issued to the appellants. On the 16th of February, 1892, the respondent presented to the executors a verified claim, of which the following is a copy, except the verification:

“ The Estate of Adam Schepp, deceased, to August Yon Hermanni.
“ To commission of 1 per cent on sale of house, No. 151 First avenue, New York city, sold for $31,500.
“$315. AUGUST YON HERMANNI,
GlañmamdP

The executors rejected the claim and offered to refer, and thereupon a referee was agreed upon, who was approved by the Surrogate’s Court, and an order was entered in this court appointing the person agreed on as a referee “ to hear and determine the matter in controversy mentioned in the said agreement.” A copy of the claim, as presented, was incorporated in the agreement to refer. The claimant proved on the trial that he was a real estate broker, but failed to show that he had .negotiated a sale between the vendor and the vendee, or that he had brought them together for the purpose of effecting a sale. The purchaser was called by the claimant as a witness and testified that the negotiations which resulted in the contract were conducted between himself and the testator and were concluded at the testator’s house. The claimant drew from this witness the following : “ Q. By Mr. Schwick : Did Mr. Schepp ever say anything to you about having given this property to Mr. Hermanni to sell ? A. After I bought the house he spoke to me about Mr. Hermanni. Mr. Schepp said: ‘ There is a party in Tenth street who claims the commission. I gave him the house for sale for about eight days, and the time was over when I bought it.’' I know now that Mr. Hermanni is a real estate agent, but I did not know it before. Mr. Hermanni offered me the property for sale. I saw him once in my store, as far as I can remember. I think it was in November, 1891, just before I bought it; about a month before I bought it. I cannot remember that I ever saw Mr. Hermanni looking; at the property with other people. I am not sure that he did not bring people there to look at it. I knew Mr. Schepp about seven years before I bought the property.”

The claimant, to support his case, called Ludwig Hebei, who testified : “ He (Schepp) said : That Mr. Hermanni, of 10th st., called and claimed the commission for the house.’ Mr. Schepp also said to me : ‘ That he had given Mr. Hermanni the house for sale for one week only, but he did not bring any customer, and I don’t think he is entitled to commission.’ If any one comes and asks whether the house is sold we should say nothing. That is all he told me.”

This is the only testimony given which tends to support the claim that the respondent was employed by the testator to sell the premises, and it appears that the time within which he was authorized to make the sale was limited to a week or ten days, and it further appears that the sale was not effected within the time limited. The claimant utterly failed to show that a sale was effected within the time during which he was authorized to make the sale, and he also failed to show he conducted any negotiations which resulted in the sale or in bringing the seller and buyer together, and, therefore, failed to make a case for the recovery of commissions as a broker.

The claimant, appreciating the weakness of his case in this respect, attempted to establish a right to recover upon the theory that the testator employed him, not to make a sale, but to procure persons to go to the premises, measure them and look at them for the purpose of inducing Knauer to believe that they were intending to purchase. Two or three persons were called by the claimant, who testified that, at his request, they went in front of the premises, measured the width of the property by pacing it and looked up at the building, but did not enter it. In other words, that they acted as decoys. The purchaser testified that he did not see these witnesses in front of the premises, and so they could not have caused him to believe that the property was likely to be sold to others. The evidence upon this issue is shadowy and unsatisfactory, and the witnesses who gave it do not give a commendable account of themselves. Again, the verified claim presented is not for procuring persons to act as decoys for the purpose of deceiving the occupant of the premises, and thereby induce him to. buy, but it is for commissions rendered as a real estate broker, which term has a settled and well-understood meaning. It was held (Eldred v. Eames, 115 N.Y. 401) that a referee appointed to hear a disputed claim under the Revised Statutes had no authority to authorize it to be amended on the trial. The section of the Code of Civil Procedure under which this reference was ordered, and which is a substitute for the Revised Statutes, does not seem to give power-to the referee to authorize amendments. The executors had a verified claim before them for particular services, which they agreed to refer, which agreement was approved by the Surrogate’s Court. Had a different claim been presented the executors might not have rejected it, and, if rejected, they might have refused to refer it, and if they had agreed to refer it the Surrogate’s Court might not have approved of the agreement. The objection that the claimant could -not recover for services performed, if he performed any, in procuring persons to go in front of the premises and act as though they intended to purchase, was raised on the trial and overruled. We think that the claimant failed to establish the validity of the claim presented, and that the judgment must be reversed and a new trial ordered before a referee to be appointed by this court, with costs to the appellants to abide the event.

Yan Brunt, P. J., and O’Brien, J., concurred.

Judgment reversed, and new trial ordered before referee to be appointed by this court, with costs to appellant to abide event.


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    The People of the State of New York ex rel. Peter Nechamcus, Appellant, v. The Warden of the City Prison of the City of New York, Respondent.

      Plumber’s license — imperfect statutory restrictions — oppressively administered — its constitutionality — habeas corpus, denial of the allegations of the petition for the writ — chapter 602 of 1892, as amended by chapter 66 of 1893.
    The fact that the statute relating to the licensing of plumbers who employ other plumbers, does not apply to the plumbers who are employed, or require any evidence of their qualifications, and is not, therefore, as restrictive as it might well have been made, does not render it unconstitutional or open to objection on the ground of public policy, provided the restriction which is imposed thereby is reasonable and is likely to promote the welfare of the public.

      Chapter 602 of the Laws of 1892, as amended by chapter 66 of the Laws of 1893, relates to all the cities of the State of New York, is not a local act and is constitutional. Its sole effect is to prohibit plumbers from becoming the employers of plumbers without obtaining a certificate that they are skilled in the act of plumbing.
    The failure to deny the general or specific allegation's contained in a petition for a writ of habeas corpus can have no effect in determining, upon the hearing, the constitutionality of a statute of the State.
    The fact that a statute has been oppressively or corruptly administered, so that results have been produced violative of the spirit of the Constitution, is no reason for holding the act to be unconstitutional.
    Appeal by the relator, Peter Nechamcus, from an order of the Supreme Court, made at the New York Special Term on the 25th day of June, 1894, and entered in the office of the clerk of the county of New York, dismissing the relator’s writ of habeas corpus, and remanding him to the custody of the warden of the city prison.

      Soger Foster, for the appellant.

      John S. Lindsay, for the respondent.
   Follett, J.:

The relator has been a resident of the city of New York for ten years past, and during the five years immediately preceding his arrest he transacted business in said city as a master plumber, and for the preceding five years he was employed thereat as a journeyman plumber.

On the 24th of June, 1894, he was arrested upon a warrant issued by a police justice of the city of New York for transacting business as a master plumber in that city without having obtained a certificate authorizing him to engage in that business, as required by chapter 602 of the Laws of 1892. The relat®r concedes that he was engaged in the business of a master plumber without having been examined and found qualified to engage in such business, and without having a certificate authorizing him to conduct such business, as provided by said act. He insists that his imprisonment is illegal, because the act under which he is imprisoned is violative of the first section of article 14 of the Constitution of the United States, which provides: “No State shall.make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” And because the statute is violative of the sixth section of the first article of the Constitution of this State, which provides that no person shall be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.”

By chapter 602, Laws of 1892, an examining board of plumbers ” is created in the cities of New York, Brooklyn and Albany, and an “ examining and supervising board of plumbers and plumbing ” in all other cities of the State. By the fourth section of the act the powers and the duties of such boards are defined:

“ § 4. The several boards of examiners constituted under this act shall have power, and it shall be their duty:
“ 1. Meebmgs.— To meet at stated intervals in their respective cities ; they shall also meet whenever the board of health of such city or the mayor thereof shall, in writing, request them so to do.
“ 2. Examinations. — To have jurisdiction over and to examine all persons desirous or intending to engage in the trade, business or calling of plumbing as employing plumbers in the city in which such board shall be appointed, with the power of examining all' persons applying for certificates of conrpetency as such employing or master plumbers or as inspectors of plumbing, to determine their fitness and qualifications for conducting the business of master-plumbers or to act as inspectors of plumbing, and to issue certificates of competency to all such persons who shall have submitted to and passed a satisfactory examination before such board, and shall be by it determined to be qualified for conducting the business as employing or master plumbers or competent to act as inspectors of plumbing.
“3. Plumbing Code.- — -To formulate, in conjunction with the local board of health of the city in which it shall act, except in New York, Brooklyn and Albany, a code of rules regulating the work of plumbing and drainage in such city, including the materials, workmanship and manner of executing such work, and from time to time to add to, amend or alter the same'.
“ 4. Fees.— To charge and collect from each person applying for examination the snm of five dollars for each examination made by said board, and all moneys so collected shall be paid over by the board moñthly to the chamberlain or treasurer of such city in'-which said board shall be appointed.”

The following are the provisions of the fifth and sixth sections of the act, as amended by chapter 66 of the Laws of 1893 :

“§ 5. Any person desiring or intending to conduct the trade, business or calling of a plumber or of plumbing, in any of the cities of this State as employing or master plumber, shall be required to submit to an examination before such board of examiners as to his experience and qualifications in such trade, business or calling; and after the first day of September, eighteen hundred and ninety-three, it shall not be lawful in any city of this State for any person to conduct such trade, business or calling, unless he shall have first obtained a certificate of competency from such board of the city in which he conducts or proposes to conduct such business.
“ § 6. On and before the first day of September, eighteen hundred and ninety-three, every employing or master plumber carrying on his trade, business or calling in any of the cities of this State, shall register his name and address at the office of the board of health of the city in which he shall conduct such business under such rules and regulations as the respective boards of health of each of the cities of this State shall respectively prescribe, and thereupon he shall be entitled to receive a certificate of such registration, provided, however, that such employing or master plumber shall, at the time of applying for registration, hold a certificate of competency from an examining board. * * * And after the first day of September, eighteen hundred and ninety-three, it shall not be lawful for any person to engage in or carry on the trade, business or calling of an employing or master plumber in any of the cities of this State, unless his name and address shall have been registered as above provided.”

To protect the health of persons inhabiting or frequenting cities, it is necessary to provide for the construction and maintenance of proper systems of drainage. This is a truth universally recognized by all enlightened communities, and it is applied with greater or less success in all cities inhabited by civilized people. Drainage systems cannot be constructed, maintained and operated unless authorized by statute aud controlled by instrumentalities created by law. Laws requiring the drainage of cities and of public and private buildings therein are found in the statutes of all civilized states, by which statutes the principles of sanitary science are sought to be applied to the subject, and the observance of sanitary rules by the citizens, compelled. The constitutionality of such statutes,-if -their requirements are reasonable, is not open to question. But it is urged that the statute under consideration goes further in restraint of the liberty of individual action than is necessary, or than is justified by the Constitution. The statute makes no distinction of race, color, creed or faith, but it is applicable alike to all citizens. Experience has shown that persons having no, or insufficient, knowledge of the principles of sanitary science, and who are without practical experience in their application to the plumbing of buildings and connecting them with sewers, cannot be intrusted to -supervise or carry on such work with safety to the health of the occupants of the buildings. The evident object sought to be attained by the statute under consideration is, by instrumentalities created, to ascertain who may safely be intrusted to do the work. The statute does not prevent any person from working as a plumber, either as an apprentice or as a journeyman, when or where or for whom he will, but it simply prohibits a person from engaging in the business of master plumber,” which term is defined in the statute as denoting a plumber who employs other plumbers, unless the employing plumber first obtains a certificate of his competency from the examining board created by the statute. The sole effect of the statute is to prohibit plumbers from becoming the employers of plumbers without obtaining a certificate that they are skilled in the art of plumbing. It is urged that the statute does not protect’the public health, because it fails to prohibit unqualified persons from working as plumbers for any one who may employ them. It is true that generally the statutes of this State, designed to promote the public health, are more restrictive in their scope than the one under consideration. For example, the statutes regulating the practice of dentistry and of pharmacy prohibit unlicensed persons from engaging in either profession on their own account, but permit such persons to he employed by others who are licensed as dentists or as pharmaceutists. The fact that the statute under which this case arises is not as restrictive as it might well have been, does not render it unconstitutional, or open to' objection, on the grounds of public policy, provided the restriction imposed is reasonable and is likely to promote the welfare of the public.

The plumbing of buildings is so generally done by persons who have employees and who furnish materials, that, practically, the business is confined to them, and this statute prohibiting persons from engaging in the business of employing other plumbers without a license, in effect, provides that all plumbing shall be done by, or under the supervision or control of, a competent plumber, which seems to us to be a reasonable provision, and we are unable to see how it tends in any way to create a monopoly, for every person possessing the necessary qualifications may obtain a license and engage in the business.

It is alleged in the petition for the writ, and is not denied by the return, that: “ The said examining board of plumbers in this city and county, which has been appointed in pursuance of the provisions of said bill, has refused to grant certificates of competency to many competent plumbers who ^ have passed satisfactory examinations. The said board has, in granting such certificates of competency, made discriminations against race and religion, and has refused to grant certificates of competency to any Hebrew engaged in the trade as a master or employing plumber ,in this State, unless he shall have joined a certain trade union by the name of the Master Plumbers’ Association, which exists in this city, and which existed previously to the passage of said bill, of which your petitioner is not a member. The said board of examining plumbers has refused to grant certificates of competency to any persons not members of said Master Plumbers’ Association, unless said persons first obtain recommendations from some person of political influence.”

A less general allegation, that the statute has been oppressively executed, would have been more convincing; for example, an allegation that the relator, being a qualified and experienced plumber, on a date mentioned, had applied to the board to be examined; that an examination had been refused, or that after an examination a license had been refused on insufficient grounds. However, the undenied general allegation contained in the petition, or ah undenied specific allegation, could have no effect in determining the constitutionality of the statute in question. The fact that a statute has been oppressively or corruptly administered, so that results have been produced violative of the spirit of the Constitution, is no reason for holding the act to be unconstitutional. If the court had before it a particular result violative of the Constitution or of its spirit, effected by the maladministration of the statute, a remedy could easily be applied without nullifying the statute. If the officers who have been appointed to administer the statute have corruptly or willfully administered it in the manner alleged, there is ample power in this court to redress the wrong of any indi vidria!, and, in the criminal courts, to punish the officers who have violated their duty.

It is urged that the act violates the sixteenth section of the third article of the Constitution of this State, which provides :

“ § 16. No private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title.”

This statute relates to all of the cities of this State, and it is not a local one. (Ferguson v. Ross, 126 N. Y. 459; Matter of Church, 92 id. 1.)

The order should be affirmed, with costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Order affirmed, with costs.