text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES H. WILLSON, Respondent, v. THE BOARD OF TRUSTEES OF THE VILLAGE OF MT. VERNON, Appellant.

      Vacancy in the office of village trustee — when the trustee is not a police official under chapter 163 of 1890 — effect of a violation of that act on the tenure of office.

    In proceedings, instituted for tlie purpose of obtaining a peremptory writ of mandamus, to compel the hoard of trustees of the village of Mt. Vernon to fill an alleged vacancy in the office of trustee, it appeared that one McGrane was elected a trustee of the village in May, 1889, for the period of two years, took the oath of office and entered upon and continued to perform the duties thereof, hut did not take the oath required hy chapter 163 of the Laws of 1890, Which it was claimed that he should have taken for the reason that he was, as claimed, by virtue of bis office, a police official, the duties imposed upon the trustees of the village including, among other things, that of apprehending and punishing common prostitutes, vagrants and disorderly persons, and appointing police constables, extra policemen and night watchmen.

      Held, that as these powers were vested in the board of trustees, and not in each trustee as an individual, a trustee did not come within the class of officers designated in chapter 163 of the Laws of 1890.
    That the act of 1890 did not declare the office of an official failing to take the oath required by it, vacant, but merely disqualified such person from holding, and disbarred him from continuing to hold, any office mentioned in the act.
    That before any vacancy could arise, by reason of a failure to take the oath, a direct proceeding must be taken for the enforcement of the forfeiture of office created by that act.
    Appeal by tbe Trustees of tbe Tillage of Mt. Ternon from an order made at Special Term, in Westchester county, on the 11th day of October, 1890, directing that a peremptory writ of ma/ndamus issue out of and under the seal of this court, directed to the said board of Trustees of the Tillage of Mt. Yernon, commanding the said board of trustees forthwith to convene and fill the vacancy in the office of a trustee of said village, of which Bartholomew MeGrane was the last incumbent, and which office became vacant by the failure of the said MeGrane to take, subscribe and file the oath as required by chapter 163 of the Laws of 1890.”

      Norman A. Zawlor, for the appellant.

      Glose & Robertson, for the respondent.
   Pratt, J.:

This was an application by Charles H. Willson, an elector.of the village of Mt. Yernon, for a peremptory mandamus to compel the defendant to fill a vacancy in the office of trustee of said village,, occasioned by the failure of Bartholomew MeGrane to take the oath required by chapter 163 of the Laws of 1890. MeGrane was duly elected trustee of the village of Mt. Yernon on the 21st day of May, 1889, for the period of two years from the 28th day of May, 1889 took the oath of office in due time and entered upon, and continued to exercise, the duties of his office as such trustee when said chapter 163 of the Laws of 1890 took effect. MeGrane did not take the oath required by said act within the time prescribed therein, nor has he since taken it. It is claimed he was a police official by virtue of his •office as trustee. This claim is sought to be proved by a reference to the act (Laws of 1887, chap. 544, tit. 8, § 1) defining the duties of trustees, in which, among other duties imposed upon them, is that of apprehending and punishing common prostitutes, vagrants and disorderly persons, and also, under section 6 of said act, said trustees may appoint one or more police constables, extra police and night watchmen.”

These powers are vested in the board of trustees as a board, and not in the individual members. It would not be claimed that a trustee could of his own motion arrest and punish a vagrant, for instance, or appoint extra police. In the former case it was .intended that the board in its legislative capacity could pass ■ordinances for the arrest and punishment of vagrants, and in the latter, that the board might in an emergency, at their discretion, •appoint extra police officers. If this is the true construction, it follows that a trustee does not come within the class of officers designated in chapter 163 of the act of 1890, who are required to ■take the oath required by that act. I think it is clear that this act was only intended to apply to the excise commissioners, excise inspectors, police officers and their subordinates. Neither in the title nor in the body of the act is a trustee, by that name, required to take the oath. Our conclusion is that the act of 1890 was never intended to apply to a trustee of a village under such an act as that of chapter 544 of the Laws of 1887.

It may be further stated that the act of 1890 does not declare the office vacant by reason of not taking the oath, but merely disqualifies a person from holding and debars him from continuing to hold any office mentioned in the act. It therefore follows that there is no vacancy which the board of trustees can be required by mandamus to fill. These views, if correct, are sufficient to reverse the judgment; but it may not be amiss to add that a failure to take the oath under the statute of 1890 does not create a vacancy, but, at the utmost, only furnishes a cause for forfeiture, and a vacancy can only be created by a direct proceeding for that purpose. The case of Cronin v. Stoddard (97 N. Y., 271) is the same in principle, and in that case this doctrine was laid down. The authorities are abundant and conclusive upon this principle. (People ex rel. Williamson v. McKinney, 52 N. Y., 374; Adams v. Tator, 42 Hun, 384; Weeks v. Ellis, 2 Barb., 320.) Again, tlie rule is well settled that a mandamus is not a proper remedy for trying the title to an office. (People v. Stevens, 5 Hill, 616; People v. Corporation of New York, 3 Johns. Cas., 79; People ex rel. Dolan v. Lane, 55 N. Y., 219 ; Foot v. Stiles, 57 id., 399.)

Not only upon what we regard as a proper construction of the statute, but upon an error in the mode sought to oust the trustee from office, we think the judgment must be reversed.

Barnard, P. J., concurred; Dykman, J., not sitting.

Order granting mandamus reversed and motion denied, with fifty dollars costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    CORNELIUS FERGUSON, Respondent, v. P. SANFORD ROSS and JOSEPH B. SANFORD, Appellants.

      Statute — when general, and not local.

      “ An act to prevent tlie deposit of carrion, offal or dead animals in the North and East rivers, or in the bay of New York or Karitan bay, within the jurisdiction of the State of New York” (Laws of 1875, chap. 604), is not a local act within the provision of the Constitution providing that no private or local bill shall embrace more than one subject, and that shall he expressed in its title.
    Where a statute prescribes a rule of conduct for all persons, and renders all persons liable to its penalties, wherever they reside, it is to be considered a general, as' distinguished from a local, act.
    Appeal by the defendants, P. Sanford Ross and Joseph B. Sanford, from a judgment, entered in the office of the clerk of the county of Kings on the 30th day of September, 1890; and from an order, entered in said office on the 9th day of September, 1890, denying the defendants’ motion for a new trial.
    The action was tried at the Kings County Court before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $1,000.

      B. D. Benedict, for the appellants.

      James C. Church, for the respondent.
   Dykman, J.:

This is an action for the recovery of a penalty under chapter 604 of the laws of the State of New York for 1875, which is entitled “An 'act to prevent the deposit of carrion, offal or dead animals in the North and East rivers, or in the bay of New York or Raritan bay within the jurisdiction of the State of New York.”

The complaint charged the defendants with the deposition of earth, mud and materials dredged from a slip, basin -or shoal; and upon a tidal before a jury a verdict was rendered against the defendants, and so the question of fact was decided against them.

The paramount and serious question presented by the appeal has reference to the validity of the legislation under which the defendants were prosecuted.

The defendants insist that the act in question is a local bill, and, therefore, violative of the Constitution of the State, which provides that “ no private or local bill * * * shall embrace more than one subject, and that shall be expressed in its title.” (Art. 3, § 16.)

Much has been written upon the question involved, and the uncertainty which is felt arises principally from the difficulty of applying the rules of law which have been laid down upon the subject to a particular state of facts.

This ease is an illustration. The statute in question operates upon a subject in which the people of the world are interested. The deposit of the refuse-matter of two large cities in the bay of New York tends to shoal the water and interferes with navigation, and also with public health, and those were the evils against which the law was aimed. Its purpose was essentially public, and the fact that it wears some local features is insufficient to place it among the local acts.

The case of Williams v. The People (24 N. Y., 405) brought before the court a statute which provided that whenever larceny should be committed in the city of New York by stealing from the person of another, the offender might be punished as for grand larceny, although the value of the property taken was less than twenty-five dollars. Judge Denio, whose opinions are characterized by solidity of wisdom, wrote an opinion in which he held the act to-be general, and all the other judges of the Court of Appeals except one concurred in such opinion, but that point was not settled. Yet the opinion is entitled to great consideration.

We think that, inasmuch as the act in question operates upon a subject in which the whole people are interested, and prescribes a rule of conduct for all persons, and renders all persons liable to its penalties wherever they reside, it is to be considered a general, as contradistinguished from a local, act.

This view seems to be decisive of the appeal, and the judgment and order should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment and order affirmed, with costs.


author: Pratt, J.:

text:
    THE E. G. BLAKSLEE MANUFACTURING COMPANY, Respondent, v. THE E. G. BLAKSLEE’S SONS IRON WORKS, Appellant.

      Grant of land under water — effect of a yri'ior conveyance of the upland reserving all water rights, etc.

    In an action of ejectment to recover certain land under the waters of the Hudson river, at Sing Sing, the plaintiff claimed title under a grant from the State of New York, which grant was alleged by the defendant to be void on the ground that the plaintiff was not, at the time when the grant was made, the owner of the adjacent uplands.
    It appeared that the original title was in one Quimby, who had sold the uplands adjacent to the locus in quo to Gregory & Mead, under whom the plaintiff claimed title, Quimby reserving to himself all water rights, etc., in front of the uplands, which rights so reserved the defendant claimed to have subsequently acquired.

      Held, that the grant to Gregory & Mead made them riparian owners and carried all rights which Quimby, who had not up to that time obtained any grant of the land under water, owned, and that the subsequent grant from the State to the plaintiff, the grantee of Quimby & Mead, vested in it a valid title to the land under water.
    Appeal by the defendant, the E. G. Blakslee’s Sons Iron Works, from a judgment in favor of tbe plaintiff, entered in the office of the clerk of the county of Westchester on the 3d day of May, 1890.
    The action was tried at the Westchester Circuit, before the court without a jury, and resulted in an adjudication that the plaintiff, the E. Gf. Blakslee Manufacturing Company, at the time of the commencement of this action, was the owner in fee simple absolute and entitled to the immediate possession of the premises described in the judgment, and that said plaintiff recover the possession thereof,with the appurtenances, from the defendant, the E. Gr. Blakslee’s Sons Iron Works, together with the costs and allowances of the action. The lands in question were situated in the village of Sing Sing, Westchester county, N. T.

      Francis La/rkin, for the appellant.

      Alfred Taylor, for the respondent.
   Pratt, J.:

This is an action of ejectment for land at Sing Sing, under a grant from the State to plaintiff March 18,1889. The locus i/n quo is land under water. Defendant is in possession of pai-t of the premises covered by this grant. Ejectment is, nevertheless, the proper remedy, and, generally speaking, a grant from the State will support the action. The grant is presumptively regular and creates a presumption that the patentee was the owner of the adjacent upland.

Defendant alleges that this grant to plaintiff is void, on the ground that it was not the owner of the adjacent upland when it was made. Reuben Quimby was the common source of title of both parties, so far as the adjacent upland is concerned. Plaintiff’s title to this upland is from Quimby to Gregory & Mead, May 15, 1853 ; to McCord, December 2, 1854; to Jones, February 27, 1856 ; to Jones, through a referee, February 6, 1860; to Sawyer, September 14, 1885; to Bunting, September 26, 1885; to plaintiff, February '6, 1886. Defendant’s title is by mortgage to Curtis, September, 1854; to David Quimby, through foreclosure, May 1, 1863 ; to Larkin, July 1, 1863 ; to Larkin, November 1, 1873 ; to Blakslee, September 14, 1883, and thence to defendant.

It thus appears that Quimby’s deed to Gregory & Mead (May 15, 1853), antedates this mortgage to Curtis, September, 1854. It is claimed, however, that while Quimby sold the upland adjacent to the locus in quo to Gregory & Mead, he reserved all water rights, -etc., in front of that land; and that the rights thus reserved passed to David Quimby, and so on to defendant, under the mortgage and foreclosure.

The difficulty is that the Gregory & Mead grant made them riparian owners. It carried all that Quimby owned. He had then no grant of any land under water. He owned nothing in the water •of the river. He was a mere riparian owner, and, as such, had no •estate whatever in the land under the water. He had simply a right to apply to .the State for and to obtain a grant as the owner of the upland. But when he sold the upland that right ceased. Gregory & Mead then became the owners of the upland, and, as such, they and their grantees were entitled to apply for the grant .of land under water.

We fail to see how the State could grant that land under water to anybody except the grantees of Gregory & Mead. To say that the State could not grant it to them would be to say that it could never be granted by the State at all; and that simply because Quimby chose to write some words in his deed indicating that he ■claimed rights in the land under water, which he never owned at all.

It seems to have been claimed that the locus ún quo was covered by an ancient grant from the State to Hunter in 1787, and hence that Quimby, a grantee thereunder, did own the land under water which he reserved from his conveyance to Gregory & Mead. But that was a question of fact on the evidence, and the finding is against defendant on this point. We do not find any specific request upon this point, and, in the absence thereof, we cannot say that any error of law was committed in this respect. Indeed, we think the evidence sustains the findings.

We have examined the other questions suggested on appellant’s points, and fail to find error.

The judgment should, therefore, be affirmed, with costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

•Judgment affirmed, with costs.


text:
    JOHN COPCUTT, Respondent, v. THE CITY OF YONKERS and Others, Appellants.

      Assessment for a, public highway — invalid, if the title to, or am, easement in, the land is not in the public.

      A person assessed to pay for work done upon an alleged public highway has a right to insist that the work shall have been done upon land, the title to which, or an easement of public passage over which, exists in the public.
    Appeal by tbe defendants from a judgment of the Supreme Court, rendered at Special Term, vacating and setting aside certain assessments and sales and granting an injunction, which judgment was duly entered in the office of the cleric of the county of Westchester on the 25th day of October, 1890.
    The action was brought by the owner of certain lands in the city of Yonkers, Westchester county, which had been assessed for the improvement, and for the grading and working of a certain alleged street or highway therein, known as Walnut street, to obtain an adjudication that such assessment was void and to enjoin the defendants, the City of Yonkers and its officers, from selling the lands of the plaintiff because of the non-payment of such assessments thereon.

      Joseph F. Daly, for the appellants.

      Ralph F. Prime, for the respondent.
   Pratt, J.:

This suit is to prevent the threatened sale of plaintiff’s lands to pay an assessment for grading Walnut street, in the city of Yonkers.

There is no substantial dispute about sufficient material facts to determine this controversy.

It was found by the judge who tried the case, among other facts, that, third, the so-called Walnut street was not, nor has any part thereof, ever been laid out, opened, regulated, graded or worked by the trustees of the village of Yonkers or by any authority of said village; that, fourth, the so-called Walnut street was n'ot, nor has any part thereof ever been laid out, opened or worked or made, either in fact or law, a public highway, road or street by the commissioners of the town of Yonkers, or by any authority of the town of Yonkers; and, sixth, that part of so-called Walnut street which lies between Ashburton avenue and the southerly line of the Croton aqueduct property has never been laid out, opened or made a public highway, street or road by the common council of the city of Yonkers, or by any officer or authority on behalf of the city of Yonkers.

The city of Yonkers succeeded to the village of Yonkers, which was carved out of the town of Yonkers.

It appears beyond question, I think, that at least 800 feet of Walnut street was never a public street or road; to that extent the findings of the trial judge are sustained by the proof. Therefore, the work upon that part of the street was a trespass, the expense of which no legal assessment could be laid to pay. (The Matter of Rhinelander, 68 N. Y., 105 ; Matter of Cheesebrough, 78 id., 233, 238; People ex rel. Williams v. Haines, 49 id., 587.)

A person who pays an assessment for work upon a street has a right to insist that it shall be a lawful public highway.

No laches or consent in thié case can be imputed to the plaintiff as he protested against the work, sued the city for the trespass and commenced the present suit as soon as the city threatened to give the deeds.

The cases of In re Ingraham (64 N. Y., 310) and Moore v. The City of Albany (98 id., 396), cited by appellant, are distinguishable from the case at bar. In both of those cases the improvement- for which the assessment was laid was in a public street, and the trespass complained of in each case was upon property of a third party who made no complaint, and in neither did the plaintiff show any special injury to himself.

If the foregoing views are sound, there is no necessity of adverting to any other point in the case, and the judgment must be. affirmed, with costs.

Barnard, P. J., concurred.

Judgment affirmed, with costs.


author: _ Barnard, P. J. :

text:
       c.

      Statute — chapter 335 of 1886, authorizing an agreement between the City of Brooklyn and a water-worlcs company for the purchase of the water-works or their condemnor iion “ within two yea/rs ” — the time to agree is limited to two yean's.

    Where a municipal corporation is authorized to purchase the works of a private-water-works company, at such price as may be agreed upon between its officers- and the said company, and in case the parties are unable to agree upon a price-the power is given to the municipal corporation, and it is authorized, “within-two years,” to acquire such property of the water-works company, by the exercise of the right of eminent domain, the time within which an agreement maybe made for the purchase of the property expires at the end of such two years,, and after the expiration of that time the act does not authorize a contract for such purchase to be made between the municipal corporation and the waterworks company.
    Appeal by the defendants, Alfred C. Chapin, Mayor, and by the Comptroller and Auditor of the City of Brooklyn, and also by the Long Island Water Supply Company, from an order made at. Special Term under date of January 15, 1891, and entered in the; office of the clerk of the county of Kings on January 16, 1891,. which continued a temporary injunction theretofore granted in the above-entitled action, and enjoined and restrained the Mayor, the-Comptroller and the Auditor of the City of Brooklyn during thependency of the action from purchasing the property and franchises-of the defendant, The Long Island Water Supply Company, or any of its stocks or bonds, or from carrying out' the contract mentioned in the complaint, and made on or about December 22, 1890.
    The action was brought by a taxpayer of the city of Brooklyn to have a certain contract adjudged to be null, and to restrain the officials of the city of Brooklyn from carrying out the same or from purchasing for and on behalf of the city of Brooklyn the property, franchises, stock or bonds of the Long Island Water Supply Company.
    A temporary injunction was granted, which was continued during the pendency of the action by the order appealed from.

      Almet F. Jenks, for the Mayor, Comptroller and Auditor, appellants.

      Thomas F. Pearsall, for the Water Supply Company, appellant.

      William J. Gay nor, for the respondent.

       Decided March 2, 1891.

   _ Barnard, P. J. :

The legislature, by chapter 335 of the Laws of 1886, annexed New Lots, one of the towns of Kings county, to the city of Brooklyn. There was a water company in the town of New Lots, incorporated under the general law of the State, for the purpose of furnishing pure and wholesome water to the authorities and inhabitants of the town. By the annexation act the city assumed the payment of the contract-price of the water to be furnished the town under an ’ existing contract. The city was, by the act of annexation, prohibited from distributing water within the limits of the town until the charter of the water company expired. By the fifth section of the act it was provided as follows:

“ The mayor, comptroller and auditor of the city of Brooklyn are hereby authorized, for and in the name of the city of Brooklyn, to purchase the reservoir, well, machinery, pipes, franchises and all other property of said company, when and at such price as may be agreed upon by said officers and by the said company, by its board of directors, who are hereby authorized to sell and convey the same .to said city ; and in case said parties shall be unable to agree upon a price for the purchase and sale of the said property of the said company, then in that case the power to acquire said property and franchises by the right of eminent domain is hereby expressly delegated to said city of Brooklyn; and the said officers, in the name of and for said city, within two years hereafter, may' proceed to acquire, and may acquire, all such property by proceedings such as are required for the acquiring of additional land for railway purposes by corporations formed under the provisions of chapter 140 of the Laws of 1850. And all such property, when thus purchased or acquired, shall .thereupon become and be a part of the water supply property of said city, but it shall be held subject to two mortgages, now on said property, each made to secure the sum of $250,000 and interest.”

No agreement was made for the purchase of the property within the two years after the passage of the act, and no proceedings were taken within that time to acquire the title to the property rights of the water company within two years after the passage of the annexation act. The mayor, comptroller and auditor have now agreed with the board of directors of the water company upon a price for the water company’s property.

We think that the power of these officers to buy expired with the limitation of two years, during which period the city had the right to take title by eminent domain. This reading would be in accord with the general course of legislation. The general railroad act provides for an attempt to agree with the owner, and in case of failure to agree that a condemnation can be had, and all condemnation which have since been authorized by the legislature have, so far as possible, been based on this general railroad act. This very section is based upon the general railroad act. If there had been no limitation of the power to condemn, the power to buy would have been continuous and accompanied by a continuous power to condemn. To hold that the power to agree upon a price continued after the power to condemn had expired would subject the city of Brooklyn to perhaps an exorbitant price for the property, as there would be no method by which a disinterested tribunal could be appointed with power to establish a price as between the parties to the purchase. The power to agree upon a price, whenever given, is expressly followed by the right to condemn, and that is limited by time. Both must fall together. We are strengthened in this view by chapter 583, Laws of 1888. By this act all local and special laws were combined and a complete system of condemnation of lands and rights for its water supply was given to the city. The commissioners of city works could, with the consent of the common council, buy lands for the purpose, and, in case of a failure to agree, the right to condemn was given. It is true that the consolidation act was saved by express words from repeal, but that act must necessarily stand as long as the town rights of New Lots were protected by it. There was no intent by saving the consolidation act, to retain certain provisions in it which had become inoperative by lapse of time, and that the legislature deemed section 5 of the consolidation act as without further force is seen from the substitution of a power to take by condemnation tbe lands as part of the general •city system.

The order should, therefore, be affirmed, with costs and disbursements.

Pratt and DykMAB, JJ., concurred.

Order affirmed, with costs and disbursements.


author: Pbatt, J.:

text:
       EMORY COLE, Appellant, v. THE MILLERTON IRON COMPANY and Others, Respondents.

      Fraudulent conveyance of all its property by one corporation to another, ultra vires — remedy of a judgment-creditor — notice of illegality of transfer, presumed — innocent bondholder not protected against claim of creditor' — trustee cannot profit from his trust.

    One Oole sued the National Mining Company on October 1, 1887, and recovered judgment against it on July 14, 1888. On February 20, 1888, The Millerton Iron Company, which had the same officers as the National Company, purchased, substantially, all the property rights, ores, machinery, tools, personal effects and fixtures of the National Company for one dollar, and assumed the payment of certain debts of the latter company, which was then insolvent. At the same time the said Millerton Company purchased certain other adjacent mining properties, and voted to increase its capital stock to a large amount; and •on the same day it mortgaged all these properties to a trust company to secure its bonds to the amount of $250,000. Bonds of the face value of $200,000 were pledged with a bank for a loan of $75,000, which in part was used to buy out the other companies, by one Barnum, president of both the above-named corporations. This loan was subsequently paid by Barnum, and thereupon the bank returned the bonds to him,
    In an action by a judgment-creditor of the National Company to set aside the conveyance by the National Company to the Millerton Company:

      Held, that as to the creditor the transfer was ultra vires.

    That the officers of the National Company were bound, as trustees for such creditor, and all others interested in the company, to wind up its affairs and to apply its property to the payment of its debts.
    That plaintiff could follow the property of the National Company in the hands of the fraudulent transferrees.

      That, whether the Trust Company had actual notice of the illegality of the transaction or not, notice must be imputed to it from the fact that the same persons-who conveyed the property of the National Company to the Millerton Company also executed the mortgage by the latter to the Trust Company.
    That purchasers of the bonds, †,hough innocent, taking through the Trust Company, were chargeable with notice of the infirmity of the title to the mortgaged premises as shown by the records.
    That the loan to Barnum from the bank was a part of the fraudulent scheme in* which he was the chief actor, and that the law would not assist a trustee, upon the theory that he had acquired the rights of his assignor as a bona fide holder of securities, to obtain property of his beneficiary without compensation.
    Appeal by the plaintiff from a judgment, entered in the clerk’s-office of Dutchess county on the 17th day of December, 1889,. whereby the complaint was dismissed, with costs.

      JFIerriolc efe losey, for the appellant.

      II. D. Ilufout and Thomas Thaoher, for the respondents.

       Decided March 2, 1891..

   Pbatt, J.:

The views which I have taken of this case require a reversal of the judgment ajjpealed from. It is an action by a creditor of a corporation to set aside an alienation of its property in fraud of his rights, as he alleges. He had no judgment when the transfer was-made, but I think it sufficiently appears that the company was-indebted to him in fact; and the fact is that he subsequently obtained a judgment for his debt and now stands in the position of,, and brings this action as, a judgment-creditor.

The defense is that the alleged fraudulent grantee mortgaged the-property in question, with other lands, to the Mercantile Trust Company in trust to secure the payment of its bonds which are now held by innocent holders; and, therefore, as it is said, the plaintiffs right to follow the property of his debtor has been cut off in-the interest of these alleged innocent bondholders. The plaintiff alleged, substantially, that not over twenty-five of these bonds of $ 1,000 each are now held by persons in good faith. Hence, if that be the fact, or if it shall appear that the right of those who do hold bonds in good faith may be worked out, without interfering with plaintiff’s alleged right in the land fraudulently transferred, the court ought to provide-means for the attainment of that result. It is thus apparent that the merits of the plaintiff’s claim should be investigated from the beginning..

The case does not show the date of the origin of plaintiff's claim,, but it does show that, on October 1, 1887, he sued the National Mining Company of Panling to recover $5,000 damages, and that he recovered a judgment for $2,775 damages, with $288.74 costs upon that claim, besides other suitable relief, July 14, 1888. It also shows that an execution was issued upon that judgment, which was returned wholly unsatisfied. It must, therefore, be assumed that this judgment-debtor, the National Mining Company, owed this debt ($2,775) October 1, 1887.

It also appears that, on the 20th of February, 1888, this debtor corporation owned a large amount of land which is included in the mortgage to the Trust Company, and valuable leases for mining rights on other lands, and that on that day, being wholly insolvent and unable to pay its debts, it sold, assigned and conveyed all its property to the Millerton Mining Company in consideration of one dollar and the assumption by the latter of certain debts. It. does not appear whether or not the plaintiff’s claim was among those items assumed, and I think it is immaterial, since there is no suggestion that there has been any offer by anybody to pay the plaintiff’s claim.

This sale to the Millerton Company was made under peculiar circumstances which render it, in my judgment, utterly indefensible as against plaintiff’s claims. The executive officers of this grantor com pany were the same as those of the grantee company. Mr. Barnum being one of them; indeed, the chief actor in the business. The-undisguised object of this transfer, as found by the learned trial judge, was that the National Mining Company should cease and never resume its business, and sell out all its property to the Miller-ton Company. The scheme seems to have been a sort of consolidation of the property of several mining corporations into the Millerton Company. For example, on the same day as this transfer by the-National Mining Company, the Riga Mining Company conveyed all its property to the Dutchess' Mining Company, which then conveyed it and aíl its other property to this Millerton Company, the same persons participating in, and, as I assume, directing the business scheme. The National Mining Company never did any business after this transfer.

There are several obvious reasons why the transfer by the-National Mining Company cannot be uplield as against the plaintiff. In the first place it was ultra vires within well-established rules, not only as against judgment-creditors, but as against every person interested in that company; and the plaintiff, as an existing creditor of the company, was interested in it and in the lawful discharge of its duties. Its property, the whole of it, was a trust fund held by it in trust, primarily for its creditors; and it, like every other debtor, was bound to see to it that that implied trust was performed. So, too, its officers were bound, as trustees, foi the plaintiff and all other persons interested in that company to perform those duties. Unlike the case of an individual debtor, it was unlawful for this corporation to sell out its property, under these circumstances, for the purpose of committing suicide, no matter whether it acted in good ■faith or not, and utterly independent of the question of its solvency. Again, being insolvent, its transfers were void. Its officers knew, or were bound to know all this, and I cannot conceive how they could have acted in what the law calls good faith in view of all these facts. They must have known of the |>endency of plaintiff’s suit. It was their duty to wind up that company and apply its property to the payment of its debts, the plaintiff’s among the rest. It is no answer to say that the Millerton Conrpany owned all its stock. That fact rather aggravates than palliates or excuses the transaction. The rights of stockholders were subordinate to the plaintiff’s rights as a creditor, irrespective of whether he had a judgment or not. Indeed, it was only because he had no judgment that the wrong was possible. And these officers, who thus owed these duties to the plaintiff, were also officers, and the managing officers of the Miller-ton Company, the grantee, thus disclosing another and independent reason why the sale should not stand, and quite aside from the question of notice of the illegality of the sale itself on grounds ■above stated. They were the actors for both the seller and the buyer, and besides that, the buyer thus had full notice of the other infirmities of the transaction as against plaintiff and his claim.

This transfer must, therefore, be regarded as indefensible, and we must treat it as void as against the plaintiff and let him follow and •obtain satisfaction of his claim out of the property thus fraudulently transferred, unless some insurmountable obstacle has intervened to. prevent us from discharging that plain duty.

. Let us now go to that question: The facts found by the learned trial judge, or otherwise apparent from the undisputed evidence, are that it was a part of the scheme of these managing officers to increase the capital of the Millerton Company, in which they were personally interested, predicating that increase in part, at least, upon the property acquired at this time. No doubt, it was partly predicated upon the property thus fraudulently and unlawfully diverted from plaintiff’s claim. They also intended that the Millerton Company should issue bonds to the extent of $250,000, to be secured by mortgage to the Trust Company; and, either to secure old debts therewith or raise money for use in its business, the Millerton Company, did issue such bonds and, on the same day when this-fraudulent and unlawful transfer was made against plaintiff’s rights, executed and delivered a mortgage to the Trust Company to secure-the payment of these bonds, covering the property out of which plaintiff was entitled to the satisfaction of his debt. I take it to be plain that if the Trust Company had either actual notice of this infirmity in the title of the Millerton Company or notice sufficient to put it on inquiry, that notice is to be imputed to the persons who took and claim to hold security through the mortgage for the' payment of the bonds. So, too, since the Trust Company advanced no money itself, but simply acted as a trustee for the bondholders, I suppose that it can have no greater rights under the mortgage than the bondholders themselves. And if these bondholders, or any of them, could not themselves enforce their lien, then the Trust Company cannot enforce it for them. This must be true of each separate bondholder who had notice, or notice sufficient to put him on inquiry, or who otherwise stood in such relation to the original transaction that he ought not, in equity, to obtain anything, for himself as against the plaintiff.

Keeping these propositions in mind, how stands the case as to the. Trust Company ? If the date of the record of its mortgage appeal’s in the case, I have overlooked the fact. I assume that it was-promptly recorded and must treat that transaction as completed on the day of its date, February 20, 1888. Did it examine the title % If not, why not ? Assuming that it did examine the title, it must have found the' common officers of the National Mining Company as the active agents and officers of the Millerton Company in that-transaction by which plaintiff, on the very day of the date of fhia mortgage, was defrauded. The same persons who conveyed the property of the National Trust Company to the Millerton Company executed the mortgage by the latter to the Trust Company. And, since that conveyance swept out all the property of the grantor corporation, and since it must have seen that the other mortgaged property had fallen into this consolidation scheme, it is scarcely reasonable to presume that it did not have notice of, or sufficient notice to put it on inquiry with respect to, the real character of the transaction between the National Company and the Millerton Company. It is certain that it must have seen that the .same persons were officers who acted for the buyer and seller, for their names appearing in the conveyance, including its own mortgage, must have suggested the fact. It seems to me that this suggestion did not receive due weight on the trial.

But, again, how stands the case with the bondholders for whose benefit alone the Trust Company may enforce this mortgage, if it is to be enforced at all. It is found that $25,000 of the bonds were sold to a Mr. Turner, of Chicago, and $25,000 were delivered to a Mr. "Warren, of Troy, as security for notes of the Millerton Company, amounting to $20,000. It does not appear whether or not that $20,000 note was for a new or old debt; but no matter. The remaining $200,000 of bonds were delivered to the Western National Bank as collateral to a note made by the Millerton Company for $15,000, which note was indorsed by Mr. Barnum and Mr. Brink, the chief actors in the original unlawful transfer by which plaintiff was defrauded. Now, it may well be that these bondholders could hold and enforce their bonds against the Miller-ton Company, but their right to a lien under this mortgage, as against plaintiff, is quite another affair. If the Trust Company is -chargeable with notice of plaintiff’s equity, I take it that none of the bondholders could enforce the lien of this mortgage as against plaintiff on the property which came from the National Company. And why are they not chargeable themselves with notice of anything appearing of record or in the line of the title to the lands and property against which they claim a lien ?

In respect to the $200,000 of bonds held by the Western Bank, it appears that they came back to Mr. Barnum, the chief actor in the transfer between the National and tbe Millerton Companies, the man who was an officer and trustee of both, and who was, therefore, a trustee charged with trust duties to see to it that the property of the National Company was applied to plaintiffs debt before it could be lawfully or honestly taken by a company in which he was personally interested — in a sense, taken partly for his own benefit. What, therefore, was Mr. Barnum’s legal rights respecting this lien under this mortgage on these $200,000 of bonds ? He was an indorser on the note held by the Western Bank ; in a sense he was a part of the bank’s collateral. His, and the bonds of Mr. Frink, constituted the' collateral. If Mr. Barnum shall be permitted to enforce the lien under this mortgage, it will transpire that he will be permitted, in this indirect way, to utilize his own original breach of trust towards plaintiff, his own illegal act, for his own advantage. In other words, he will get for himself what he was bound to save and apply to the payment of plaintiff’s claim. Going back to his relations to these notes and bonds held by the bank, suppose that the bank had taken this mortgage and these bonds directly as collateral to the Millerton Company’s note, indorsed by Mr. Barnum, and that the bank had attempted to foreclose, were not plaintiff’s equities such that he could have required the bank to resort to Mr. Barnum’s personal liability on his indorsement of the note before having recourse to the lien under the mortgage on the land which constituted a trust fund for the payment of plaintiff’s claim % I fail to see why equity would not have required precisely that, if it were necessary, in order to save his rights. If so, Mr. Barnum could not have been subrogated to the position of the bank, even if it had held the bonds without notice of plaintiff’s equity, a position which I seriously doubt. But, perhaps, that question is not involved. Mr. Barnum bought the bonds, as it is said, from the bank. He, therefore, claimed to hold the benefit of the bank’s lien under the mortgage. But he had notice of the plaintiff’s equity. And it is answered that he bought the bank’s right under the mortgage and may, therefore, enforce that new title even as against his own notice. Perhaps that might do if it were simply a matter of notice; but that is not the trouble. If his scheme should succeed, he would thus get flamtiff s property flat in the face of his own wrong and breach of trust, and of his own personal liability for that breach of trust to plaintiff If be were to get it in- any way, it would be impressed with the original trust which he was bound to respect and perform, and I think that equity would convert him into a trustee, joro tcmtot for plaintiff’s benefit. Equity will not recognize or tolerate any method by which a trustee shall thus obtain the property of his beneficiary without just compensation.

Without pursuing the subject further, I state, on my own conclusion, that, upon the facts appearing in this case, this mortgage is subject to the plaintiff’s right to enforce his payment against that part of the mortgaged premises which came from the National Mining Company, and that the conveyance by it and the Trust Company’s mortgage is void as against that payment. But, since the facts may be changed on a new trial, I hold that a new trial should be granted, with costs of this appeal to plaintiff, to abide the event of the action. It is plain to my mind, in any event, that equity demands that the Trust Company should be required- by injunction to abstain from any recourse to the property which the Millerton Company obtained from the National Company, until it has exhausted its remedy against other parts of the mortgaged premises and against the Millerton Company itself, before interfering with the land on which plaintiff’s equity rests; and that the mortgage cannot be enforced as against. plaintiff’s equity, for Mr. Barnum’s benefit, on these $200,000 bonds.

The judgment should, therefore, be reversed and new trial granted, with costs to abide event.

CulleN, J., concurred; DyemaN, J., dissented.

Judgment reversed and new trial granted, costs to abide event.


author: JEIabdiN, P. J.:

text:
    JOHN FITZGERALD, as Administrator, etc., of THOMAS FITZGERALD, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Contributory negligence on the pm't of a bmlceman ingwred by a bridge.

    A brakeman upon a railroad, who is aware of the fact that no warning signals have been placed at a bridge which crosses the tracks, and that the bridge is so low as to render it dangerous, and who is injured by such bridge by reason of his not exercising the care necessary to enable him to escape the consequences of such defect, is guilty of contributory negligence which precludes his recovering damages from the railroad company, although the railroad company has violated the provision of chapter 439 of the Laws of 1884, requiring that suitable warning signals should be placed at such bridge.
    Appeal by tbe defendant from a judgment of tbe Supreme Court, in favor of tbe plaintiff, entered in tbe office of tbe clerk of the county of Herkimer on tbe 11th day of August, 1890; and also from an order denying a motion for a new trial, made on the minutes of tbe court after a trial at tbe Herkimer County Circhit, at which a verdict was rendered in favor of tbe plaintiff for tbe sum of $3,000.
    Tbe action was brought to recover tbe damages resulting from tbe death of tbe plaintiff’s intestate, who was a brakeman in the employ of defendant and’was killed in passing under tbe structure known as "Wheeler’s bridge near the city of Syracuse.

      G. D. Presoott, for the appellant.

      Hadley Jones, for the respondent.
   JEIabdiN, P. J.:

On the morning of November 11, 1887, plaintiff’s intestate, Thomas Fitzgerald, then a bralceman in the employ of the defendant, was passing over its road eastwardly from Syracuse, and between five and six o’clock in the morning the train, in passing eastwardly from Green’s Corners, and distant from the station at Green’s Corners 5,153 feet, passed under a superstructure known as “Wheeler’s Bridge.” Just before the train reached the bridge the intestate passed from the engine to the tender, and from thence up on to the first car, where he was last seen alive. Shortly after the train had passed from under the bridge he was discovered lying a little south of the walk-way near the center of the car, apparently dead. The train ran on down to Rome. Fie was at the time acting as liead-brakeman on the train. When passing Green’s Corners he sat on the seat with the fireman, who had some conversation with him, and just east of Green’s Corners he remarked to the fireman, “We are going down a grade out here, are we not?” The fireman replied in the affirmative; the fireman told him that he “ need not get on top as it was not necessary to hold it going down that grade;” he then went and “stood in the gangway between the engine and the tank.” The fireman testifies that he repeated to the deceased three times “that there was no necessity to go on top.” And the fireman further testifies: “ The engineer was then sitting ■on his side, opposite me, on the right hand side and watching in ■.front.” The fireman further testified : “After I had called to him three times I saw him standing on the top of the car next to the tender ; he was standing clear up on top of it; I spoke to him three times in all — first, before he got off the seat, and twice after; 1 called to him the third time when he was climbing up the ladder to get on the car; I called him again to come back, that he shouldn’t get up there; that there was no need of setting the brakes. When he •commenced climbing up onto this car he was, perhaps, about half-way between the station and the bridge; I should judge it was between five and six o’clock a. m. ; after I saw him standing on top of that first car I did not notice him again until after we had passed the bridge; I then climbed up the ladder till I could see on this first car ; I saw him lying down very near the center of the car; I went back and reported and the engineer blew brakes.” The fireman testifies: “ It was a cold, disagreeable, cloudy morning; it was not fairly daylight yet; I won’t say as to whether there was difficulty in seeing a great ways.” The train had thirty-two cars, twenty-nine of which were refrigerator cars; the refrigerator cars are twelve feet five inches above the tracks; ordinary cars are ten feet nine inches. There was no evidence given upon the trial of the height of the deceased. Evidence was given tending to show that there were no “ tell-tales ” or warning signals erected or maintained west of the bridge to give warning that the train was approaching a low bridge. It was, therefore, insisted, in behalf of the plaintiff, that the defendant had not complied with the provisions of chapter 439 of the Laws of 1884. By the second section of that act it is provided that every steam railroad shall “ erect and thereafter maintain such suitable warning signals at every low bridge or structure which crosses the railroad above the tracks, where such warning signals may be necessary for the protection of employees on top of cars from injury.” And our attention is called to Willy v. Mulledy (78 N. Y., 314), where it was said that “when a statute imposes a duty upon a public officer, it is well settled that any person having a special interest in the performance thereof may sue for a breach thereof ■causing him damage ; and the same is true of a duty imposed by statute upon any citizen; ” and it is insisted, in behalf of the respondent, that the deceased had a right to suppose that the defendant had complied with the provisions of the statute to which reference has been made. However, if the deceased had become aware of the fact that there had not been a compliance with the statute, that no “ tell-tales,” or signals, or warnings had been erected west of the bridge, it was his duty to use care and caution in approaching the bridge to avoid receiving injuries therefrom. The case seems to be barren of any evidence indicative of any watchfulness or care on the part of the deceased to avoid the injury which came to him. It, therefore, becomes important to inquire whether lie was aware of the fact that the bridge was such an one as required him to avoid au erect position in passing under it, he being upon the top of a car. It appears by the testimony of the plaintiff’s witness, Mitchell, who was a conductor upon the train, that “ on the morning of November 11,1887, the weather was somewhat stormy ; it was dark ; ” it snowed and blew from the north-west. And it further appears “ plaintiff’s intestate went up the road westerly with me• at the Wheeler bridge we were in the caboose together in the evening; it was between daylight and dark so you could see. Our lights were lit in the caboose.” The witness further continues and testifies as follows: “We reached Rome at 5.20 p. m. ; we passed Wheeler’s bridge seven to ten minutes later; I understood this-was Fitzgerald’s first trip as a brakesman on through freight. While in the cupola I told him we were then going up Wheeler’s grade. That commences just a little ways out of Rome. I told him that it extended beyond the bridge. He said: ‘ There is a bridge above here somewhere, isn’t there ? ’ I told him there was, and I would show it to him • as soon as we got there I showed him the bridge; the one spoken of on this trial; I told him to look out for all bridges; that I didn’t know but that the bridge might clear him on an ordinary car, and on a higher car it might not; that I would not be positive as to either. He said he had been up at Wheeler’s bridge before. I asked him how, and he said he had been there on a work train As we reached the bridge I spoke of it to him, of its being the Wheeler bridge; the tenth was-a pleasant day; the light was then so we could see the bridge very plainlv; the lookout, or cupola, in the top of the caboose is higher than the highest cars; he stayed in the cupola with me until we reached De Witt.” According to this witness’ testimony, the deceased had an opportunity to inspect, observe and learn the condition of the bridge, and, according to this witness’ testimony, the deceased, while engaged upon working trains on previous occasions,, in the employ of the defendant, had been in proximity with the bridge. If this evidence is accepted as it is stated, it seems to indicate that the deceased was aware, not only of the fact that the bridge was there, but that it was a low bridge, and that apparently he learned that there were no warnings or tell-tales to direct his attention when approaching from the west. The evidence brings the case, if believed, within the principle laid down by the Court of Appeals, Second Division, in Williams v. Delaware, Lackawanna and Western Railroad Company (116 N. Y., 632). In the opinion delivered in that case it was said : “ The only question which we .shall consider in this case is as to whether or not the plaintiff was guilty of contributory negligence, and this depends upon the question as to whether he knew, or ought to have known, that this bridge was low, and that he could not pass under it while standing upon the top of the box car.” The learned judge, after quoting the evidence in that case, proceeds to observe: It is quite evident from this testimony, that he had, on numerous occasions, passed under this bridge whilst on top of the train, and if so, he must have known, had he exercised ordinary care and observation, that it was not of sufficient height to permit a person to pass under it whilst .standing upon the top of a box car of the company; * * * and, inasmuch as such negligence appears from his own testimony, the exception to the refusal of the defendant’s motion for a nonsuit was well taken.”

In Ryan v. Long Island Railroad Company (51 Hun, 608), it was held that “ the plaintiff was not entitled to recover, as it was shown that the deceased had passed these bridges for three months, and that it was fully understood, by the employees of the defendant, that these bridges had warning signals at each end of the four bridges, and that these signals were a warning for all the bridges,” and the condition of the signals or warnings which were placed, and the omissions of others which the plaintiff insisted were necessary Although that case is distinguishable from the one before- us, in that the deceased had been, for a greater length of time, accustomed to pass and repass the bridges where the accident occurred; and while there were some warning signals, and others were omitted, it was said “that the warning signals were.apparent and the deceased assumed the risk of an omission of any others.” It was suggested, by the learned counsel for the respondent upon the argument, that the jury had a right to reject and disbelieve the testimony of Mitchell, because he was a conductor in the employ of the defendant, but it appears the plaintiff called him as a witness and thereby vouched for his credibility (Hunt v. Fish, 4 Barb., 324); and nothing is to be perceived in his testimony rendering the same improbable. Nor do the circumstances detailed by him give rise to the suspicion that he has stated anything other than the truth.. While the learned judge carefully commented upon the evidence, yet, in speaking of the question we have been considering, he, perhaps, did not, with his usual accuracy and clearness, express to the jury the rule of law applicable to the evidence which had been adverted to ; he said : “ Then there is another thing which is suggested why he was guilty of contributory negligence, and that is, that he had been informed that there was a low bridge, and, therefore, he was negligent in not looking out for it and escaping. That is a question for you as the other is. Of course, if he did know and realize that at that particular point there was this low bridge, then you may say whether he exercised ordinary care or not in passing along, standing upright upon the car, without recollecting the bridge and getting out of the wáy. As has been suggested, merely forgetting what the condition of things was, forgetting that he was in a dangerous locality, will not do,, because that is his negligence.” Later on the judge expressly refused to charge “ that there is no evidence in this case that the deceased did not know the danger of the Wheeler bridge.”

These views lead us to the conclusion that a new trial should be ordered.

Martin and Merwin, JJ., concurred.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.


author: Hardin, P. J.:

text:
    EMPIRE STEAM PUMP COMPANY, Respondent, v. HORACE INMAN, Appellant.

      Pump, pwchased subject to trial — what period of retention of it will justify a; presumption of an acceptance.

    In an action brought to recover the value of a steam pump, it appeared that it had been purchased by the defendant from the plaintiff under a written contract providing that defendant was to put up the said pump and to give it a trial of thirty days, and if said pump did not work satisfactorily to the defendant he was to return the same to the plaintiff at the end of said thirty days’ trial . at the expense of the plaintiff, otherwise defendant was to keep said pump and to pay tlierefor, the sum of $140, that the pump had been in the possession, of the defendant since November, 1886, and that from about January 1, 1887, to April, 1888, the defendant continued to use the said pump at intervals, although complaining to the plaintiff from time to time of its failure to work properly, and asking and receiving instructions from plaintiff how to remedy the defect complained of.

      Held, that the facts justify a holding, as a matter of law, that the defendant had accepted the pump, and that he was liable for the contract-price thereof.
    Appeal by the defendant Horace Inman from a judgment of the Supreme Court, entered in the office of the clerk of the county of Jefferson on the 13th day of January, 1890, after a trial before a referee, who decided, as a matter of law, that the acts of the defendant in retaining and using the pump, to recover the purchase-price of which the action was brought, for the time and in the manner found by the referee, amounted to an acceptance of the same by him, and that the plaintiff was entitled to recover the contract-price thereof.

      Peter J. Lewis, for the appellant.

      Kilby c& Kellogg, for the respondent.
   Hardin, P. J.:

Plaintiff delivered to the defendant one No. 2 steam pump, which it had agreed to sell to the defendant for the sum of $140. The referee finds, as a matter of fact, “ that the delivery of said steam pump to the defendant was made in pursuance of an agreement in writing, entered into between the plaintiff and the defendant, on or about the 13th day of October, 1886, whereby the plaintiff agreed to sell and deliver to the defendant, at the said city of Amsterdam, the pump aforesaid, for the sum of $140; that defendant was to put up the said pump and give it a trial of thirty days, and if said pump did not work entirely satisfactory to the defendant, he was to-return the same to the plaintiff at the end of said thirty days’ trial,, at the expense of the plaintiff, otherwise defendant was to keep said' pump and pay therefor the sum of $140.” While we find in the appeal-book a contrariety of evidence in respect to the facts stated in the finding, which we have quoted, we think the evidence warranted the referee in making such finding, and that the same is neither contrary to evidence nor against the weight of evidence. The referee further found, as a matter of fact, viz.: That since about November 23, 1886, the said pump has been, and remained, in the possession of the defendant, at Amsterdam aforesaid, and from about January 1, 1887, to about the month of April, 1888, the defendant continued to use the said pump at intervals, although complaining to plaintiff from time to time of its failure to work properly, and asking and receiving instructions from plaintiff how to remedy the defect complained of.” There is evidence to support the finding which we have just quoted. The referee further found, viz.: “ That at the time of the delivery of said pump to the defendant it was in perfect condition as a suction pump.” The referee found, as a conclusion of law, “ that the acts of the defendant in retaining and using the said pump, from the time and in the manner aforesaid, amounted to an acceptance of the saíne by him.” Defendant has taken an exception to this conclusion of law, and his learned counsel insists to us that it presents error. ¥e think otherwise. We think, upon the eyidence found in the appeal-book, and upon the findings of fact made by the referee, he was justified in holding, as a matter of law, that the defendant had accepted the pump and became liable for the contract-price.

In Brown v. Foster (108 N. Y., 387), in a case somewhat similar to the one before us, it was held: “ While the vendee is entitled to a reasonable time for examination,. long enough to put the machinery in motion and see it operate, if he seeks to reject it as as not in accordance with the contract of sale, he must do nothing, after discovering its true condition, inconsistent with the vendor’s ownership. The intent of the vendee in using the property after discovery of defects may be gathered from his acts as well as his words, and a statement of a refusal to accept does not, as matter of law, show non-acceptance or prevent the acts from being taken as substantial proof of an acceptance, not for examination, but for use.” It seems from the evidence in the appeal-book that the defendant was to have thirty days to try the pump and ascertain its qualities and capacity and usefulness, and during that period make such tests as would enable him to either decline to become the purchaser thereof or to accept the same in pursuance of the order he had made for the pump. He did not reject it in the thirty days contemplated by the terms under which he received the same. He continued in tlie use of the same long after the expiration of the thirty days. His use of the pump and acts in relation thereto amounted to an acceptance of the same. The referee found, as a matter of fact, that the defendant, £> from about January 1, 1887, to about the month of April, 1888, continued to use the pump at intervals.” It appears by the evidence that the defendant used the pump for a considerable length of time under conditions not known to plaintiff or stipulated for by them in the communications that he had with the plaintiff in respect to the pump. The defendant’s offer to return the pump in October, 1888, was quite late. He had by his use of the pump allowed the same to become rusty and otherwise impaired, and it was not in his power then to return the same in as good a condition as when he took it.

¥e think no prejudicial error was committed by the referee in disallowing the question put to the defendant as to whether or no the pump worked satisfactory to the defendant “ when connected with the street water-main or when connected with the tank or reservoir.” The period in which the test was to have been made had expired, and, besides, the pump was not sold by the plaintiff or represented to be capable of working under pressure from the city water-mains. There are several other exceptions to rulings made by the referee and the refusals to find, which we have looked at, but in the view we have taken of the case, we do not deem them of such & nature as to warrant us in .saying that the rulings and refusals of the referee were prejudicial to the appellant. ¥e are of the •opinion that the conclusion of the referee should be sustained.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs.


author: Hardin, P. J.: MaetiN, J.

text:
    CHARLES A. BURT, Appellant, v. ONEIDA COMMUNITY (Limited) and Others, Respondents.

      Stipulation that a referee may fix the amount of his fees — valid.

    Upon the trial of an action before a referee a stipulation was signed by the parties, and by their attorneys, “that the referee in this action may fix the amount of his fees without regard to the provisions of the statute.” A decision was rendered in favor of the defendant, who, relying upon this stipulation, paid the fees of the referee, as fixed by the referee under the stipulation, which were subsequently taxed.
    Upon an appeal from an order, made at the Special Term sustaining such taxation:

      Held, that the stipulation was sufficient to sustain the taxation of the referee’s fees and that the order should be affirmed. (Martin, J., dissenting, on the ground that no rate of compensation had been fixed by the stipulation.)
    Appeal by the plaintiff Charles A. Burt from an order, entered in the office of the clerk of the county of Madison on the 15th day of February, 1890, denying a motion for retaxation of costs in the-above-entitled action.
    Upon the hearing before the referee a stipulation was entered in his minutes to the effect that the referee might fix his own fees ; and thereafter a stipulation was signed by the parties in the following language: “ It is hereby stipulated that the referee in this action may fix the amount of his fees without regard to the provisions of the statute. Dated July 10, 1889.” This stipulation was also signed by the attorneys of the parties to the action. There was proof that the sum of $500, for referee’s fees, had been paid to the referee by the successful party, relying upon the stipulation made by the attorneys and by the parties.

      J. & Q. Van VoorMs, for the appellant.

      W. G. Tracy, for the respondents.
   Hardin, P. J.:

I think the facts presented upon the motion for taxation are such that this case is distinguishable from those cases cited in the opinion of Brother Martin. Here, in addition to the stipulation entered in the referee’s minutes, there is a formal stipulation of the parties confiding to the referee the amount to be charged hy him. The parties acted upon that stipulation; the successful party, having in mind that stipulation when the amount of fees were stated by the referee,, relied upon the stipulation and paid the saíne to him. It is a familiar principle that a party may waive a constitutional provision or a, statutory provision in his own interest or benefit or protection. Evidently the parties intended that the referee should, in his performance of his duties as referee, be paid such sum as he deemed reasonable for his services as a referee. It is not too much to say that the referee performed the services in reliance upon the stipulation so given. It is not too much to say that the party wlio paid the sum to the referee after he had fixed it, relied upon the stipulation. The facts and circumstances disclosed are'such as to indicate that no public policy was violated either by the referee or by the parties. Tinder the circumstances disclosed, I hesitate to come to a conclusion that shall disregard the action of the parties and the referee. The party who paid the fees of the referee, having relied on the stipulation of his adversary, it seems to me, ought to be protected by an allowance of the sum so stated, fixed and determined by the referee in accordance with the assent of the defeated party, coupled with the approval of his attorney and counsel.

I do not, therefore, favor a reversal of the order of the Special Term.

MebwiN, J., concurred.

MaetiN, J.

(dissenting):

Appeal from an order affirming the taxation of costs by the clerk of Madison county, which included the sum of $500 for referee’s, fees. The question on this appeal relates only to that item. There was a stipulation in this case, signed by the parties and their attorneys, that the referee might fix the amount of his fees without, regard to the provisions of the statute. On the taxation before the clerk there was no proof showing the number of days the referee was engaged in the trial of the case or in the examination of it.

"Where opposition is made on the taxation of costs to the disbursements for referee’s fees, the charge should be supported by affidavit. The number of -days necessarily spent in the business of the reference should be thus shown. The general affidavit of disbursements is not sufficient. (Shultz v. Whitney, 9 Abb., 71; 17 How., 471;, Brown v. Windmuller, 36 Sup. Ct. Rep. [J. & S.], 75 ; 14 Abb. [N. S.], 359; Watson v. Gardiner, 50 N. Y., 671.)

The Code qf Civil Procedure provides that a referee is 'entitled to six dollars for each day spent in the business of the reference, unless a different rate of compensation is fixed by the consent of the parties, manifested by an entry in the minutes of the referee or otherwise in writing. (Sec. 3296.) By the stipulation in this case no rate of compensation was fixed. It was left for the referee to fix his own compensation. The stipulated consent was not in conformity with the statute and was insufficient to justify the cleric in taxing the referee’s fees at that amount. (Bank of Cooperstown v. Tamajo, 77 N. Y., 476.) In the case cited, ANdeews, J., said : “ The agreement to leave it to the referee to make such charge as he deemed reasonable, left the whole subject open and indefinite. It did not fix any rate of compensation. It simply left it to the referee to determine and fix the value of Ids own services, each party impliedly assenting to be bound by his decision. To hold that the agreement in -question was an agreement fixing a rate of compensation would not be justified by any fair interpretation of the transaction. The attorneys in the case, by their agreement, put upon the referee a responsibility which the statute places upon the parties themselves. If, in view of the importance of the case, or the character and standing of the referee, counsel deemed the rate of compensation fixed by the statute to be inadequate, they could agree upon a larger rate. One of the parties to the action would be compelled, in the end, to bear the increased expense of the litigation in consequence of such agreement. It is but just to clients that agreements made by counsel, which may enhance the burden and costs of litigation, should be made upon their judgment and professional responsibility; and the attempt in this case to impose an indefinite responsibility upon the parties to the action, depending upon the decision and judgment of the referee in a matter in respect to' which he had a personal interest, ought not to be sanctioned. The statute wisely, we think, requires a formal written agreement between the parties before either can be subjected to the payment referee’s fees beyond the j>rescribed rate. There is no ground for questioning the hona fides of the counsel or the referee in respect to the transaction. But the question is, whether the agreement made was in conformity with the statute, and we think it was not. The statute making compensation to referees beyond the statute rate, to depend upon a written agreement between the parties-fixing such increased rate,' is in harmony with the general policy of the law that costs, when allowed, shall be according to a fixed and definite rule, and shall not depend as to amount upon the discretion of any court or officer.” The doctrine of the Tamajo Oase was also-recognized in Mark v. City of Buffalo (87 N. Y., 184, 188), where Judge Pinoh said: “In that -case we decided that the attorneys-could not agree to leave the referee to fix his own rate of compensation, but if an agreement is made at all for a larger rate, it should be made upon the ‘ judgment and professional responsibility’ of the ‘ counsel,’ who £ could agree upon a larger rate.’ ” (See, also, Chase v. James, 16 Hun, 14; Estate of Gilman, 12 Civ. Pro. P., 179.)

It seems to me that the authorities cited clearly establish that the stipulation in this case was invalid, as it did not fix any rate of compensation to be paid the referee; that the respondent was not entitled to have the referee’s fees taxed at the amount allowed by the clerk, and that the Special Term erred in denying the plaintiff’s motion. These considerations lead me to dissent from the opinion of my Brother ILabdin in this case.

Order affirmed, with ten dollars costs and disbursements.


author: MautiN, J.: HaediN, P. J.:

text:
    PETER J. LALLY, Appellant, v. JONAS A. EMERY, Respondent.

      Slander — althougli the statement is privileged, the question of good faith and motivéis proper for the jwry.

    Although the court may hold, in an action for slander, that the statements made were prima facie privileged, yet the question as to whether, under the circumstances, the words were uttered by the defendant in good faith and without actual malice should he submitted to the jury.
    Appeal by the plaintiff Peter J. Lally from a judgment of the Supreme Court, entered, in the above-entitled action, in the office of the clerk of the county of Jefferson on the 8th day of October, 1890, in favor of the defendant, and from an order denying a motion .for a new trial, made upon the minutes of the court after a trial before the court and a jury at the Jefferson County Circuit, at which the court dismissed the complaint on the merits.
    The action was for slander. The plaintiff alleged the speaking of certain words, of and concerning him, by the defendant which were alleged to have been intended to charge the plaintiff with having committed the crime of rape, or attempting to commit that crime. Both the plaintiff and defendant were soldiers in the United States army, and the person to whom the words were spoken was a member of the same company with the defendant. On the trial the court held that the words alleged and proved were privileged, and dismissed the plaintiff’s complaint.

      Fcmnibdl Smith, for the appellant.

      F. H. Peale, for the respondent.
   MautiN, J.:

Whether the words alleged and proved to have been uttered by the defendant of and concerning the plaintiff were spoken with the intent to charge the plaintiff with the crime of rape, or of an attempt to commit a rape, was, we think, for the jury. (Weed v. Bibbins, 32 Barb., 315; Upton v. Upton, 51 Hun, 184; 4 N. Y. Supp., 936.)

We think: the court erred in holding that the words alleged and proved were absolutely privileged and in dismissing the complaint on that ground. Under the circumstances developed by the evidence in this case, the questions whether the defendant uttered the words proved in good faith, and without actual malice, were for the jury. If it were assumed that the words spoken were privileged, still the privilege, if any, was a qualified one; and if they were not' spoken in good faith, or were uttered with actual malice, it would constitute no defense to the action.

Admitting that the court might properly have held that, prima facie, the speaking was privileged, yet the question of the defendant’s good faith, his belief in the truth of the statements' made and whether actual malice existed, were all questions for the jury. In Klinck v. Colby (46 N. Y., 427), Judge Foi.gee, in speaking of the question of privileged communications, says: “ As a general proposition, it may be said that the question of whether a publication is a privileged communication is one for the jury. That is to say, the court may determine whether the subject-matter to which the alleged libel relates, the interest in it of the defendant, or his relations to it, are such as to furnish the excuse. But the question of good faith, belief in the truth of the statement, and the existence of actual malice remains; although the court should hold that, prwna, facie, the communication was privileged. And this question is one for the jury.” The same doctrine was held in Hamilton v. Eno (81 N. Y., 122); Byam v. Collins (111 id., 143).

We are of the opinion that the case should have been submitted to the jury and that the court erred in dismissing the complaint.

The judgment and order should be reversed on the exceptions and a new trial granted, with costs to abide the event.

Mekwin, J., concurred.

HaediN, P. J.:

In the opinion delivered in this case, when it was here on a former appeal (28 N. Y. St. Rep., 127), it was assumed that the motive and intent of the defendant in using the words proved were for the jury to ascertain upon all the evidence ; that assumption is still applicable to the case, and, therefore, I join in a reversal.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.


author: Martin, J.:

text:
    In the Matter of the Final Accounting of EDWARD S. DAWSON, Jr., as Assignee of the Firm of HENRY M. ASHCROFT and JOHN B. EDWARDS, Respondent; L. D. V. SMITH, Appellant.

      Partnership — in which one member sells out Ms interest to a party who becomes a member of the firm— assumption of the debts of the old firm.

    Where one member oí a firm retires, selling out his interest to a third party, who continues the business with the remaining partner, with whom he enters into partnership, the partnership assuming the debts of the previous firm, and such new firm becomes insolvent and makes an assignment for the benefit of creditors, the creditors of the first firm are entitled to share pro rata with those of the second firm in the assets of such second firm.

      Ah assignment provided that the assignee should, after paying the costs and expenses of executing his trust and the preferred creditors, pay all the debts and liabilities of the firm in full if the assets were sufficient; if not, the unpreferred creditors were to be paid pro rata.

      Held, that, under the terms of this assignment, the creditors of the old firm, the payment of whose claims had been assumed by the new firm, were entitled to be considered as creditors of such new firm, and to be paid pro rata with the other creditors thereof, and that the assignee was not at liberty to disregard the directions in this respect contained in the assignment.
    Appeal by Leonardo D. Y. Smith from an order of the County Court of Onondaga county, entered in the office of the clerk of that county on the 31st day of July, 1890, with notice of an intention to bring up for review, upon such appeal an order confirming the report of the referee directing the assignee to distribute the moneys in his hands, as such assignee, among the creditors of the firm of Ashcroft & Edwards only.

      Hoyt, Beach, Ilam,coclc de Devine, for the appellant.

      II. E. Miller, for the respondent.
   Martin, J.:

On and prior to June 25, 1889, L. D. Y. Smith and H. M. Ashcroft were copartners in the grocery business in the city of Syracuse, N. Y., doing business under the firm name of Smith & Ashcroft. On that day Smith, who was an equal partner, sold his interest to John B. Edwards, who became a partner of Ashcroft, and the business was continued under the firm name of Ashcroft & -Edwards. At the time Smith sold to Edwards the firm of Smith & Ashcroft was solvent, and worth from six to seven thousand dollars over and above its liabilities. Edwards took Smith’s interest, subject to one-half of all outstanding debts and obligations against the firm of Smith & Ashcroft, which he assumed and agreed to pay.

On the 15th of January, 1890, the firm of Ashcroft & Edwards made a general assignment for the benefit of their creditors to Edward S. Dawson, Jr., who accepted the trust, filed his bond and entered upon the discharge of his duties. Erom fifty to sixty per cent of the assets that came into the hands of the assignee under that assignment was the property owned by the firm of Smith & Ashcroft at the time of the transfer of Smith’s interest to Edwards. The assignee realized from the property which came into his hands the sum of about $4,000, while the debts of the assignors amounted to about $9,-500, including the debts contracted by Smith & Ashcroft.

On June 27, 1890, the assignee, made and filed an account of his proceedings, and citations were issued upon his petition. An order was subsequently made referring the matter to a referee to take and state the assignee’s account, and to take proof and report as to what persons were entitled to share in the distribution of the assigned estate, and in what priority, and in what proportion. Upon the hearing before the referee the assignee filed objections to the payment of certain claims for goods which were sold to the firm of Smith & Ashcroft. These debts were proved against the estate by the holders thereof. In the inventory or schedule filed by the assignee, and verified by both assignors, the claims to which the assignee objected were included and intermingled with those of other creditors and set out as debts of the firm of Ashcroft & Edwards.

On July 16,1890, the referee’s report was filed, wherein lie found that the claims to which the assignee objected should be disallowed, and that the creditors of Ashcroft & Edwards should be paid their claims in full, and should there be any surplus after the payment of such debts, then it should be applied to the debts of the firm of Smith & Ashcroft pro rata. On July thirty-first an order was entered confirming this report and directing that the assignee pay the creditors in the order mentioned. Erom this order an appeal was taken by the appellant.

The proof taken in this proceeding shows quite conclusively that the transfer by Smith to Edwards was made with the consent of Ashcroft, and that the firm of Ashcroft & Edwards assumed the payment of the debts and liabilities of the firm of Smith & Ashcroft.

This seems to be very clearly established by the evidence of the witnesses Smith, Ashcroft, Watson and Pardee. Besides the manner in which the business was conducted by the new firm, the fact that it continued paying the debts of the old, and the further fact that the debts of the old firm were included in the schedules of the debts of the new, and verified by both Ashcroft and Edwards, all lead naturally and necessarily to the conclusion that the new firm assumed the debts of the old. The evidence and the acts of the parties were wholly inconsistent with any other theory.

Assuming, as we think we must, that the debts of the old firm were assumed by the new, it follows that the new firm became the principal debtor, while Smith, the outgoing partner, was a mere surety for the payment of the old firm debts. (Savage v Putnam, 32 N. Y., 501; Morss v. Gleason, 64 id., 204.) This relation between the parties the creditors of the old firm wex’e bound to observe. If they had notice of the transfer by Smith and the relations assumed by the new firm, upon Smith’s request, it would have beexx their duty to have collected their debts of that firm; and if through their neglect to comply with such request the debts became uncollectible, Smith would have beexx discharged. (Colgrove v. Tallman, 67 N. Y., 95; Calvo v. Davies, 73 id., 211; Hunt v. Purdy, 82 id., 487; Palmer v. Purdy, 83 id., 147; Grow v. Garlock, 97 id., 81 )

While it is true that the question here is not whether Smith coxxld have compelled the creditors of the old firm to enforce their claims agaixxst the new if it had remained solvexxt, and hence the authorities cited by the respondent have no application, still the docti’ine of the axxthorities, cited above, shows that the traxxsactions between the pax-ties had the effect to constitute the new firm, the principal debtor to the cx’editoi's of the old, with Sxxxith remaining liable as surety only, and that Smith had a right to insist that these debts should be paid from the assets of the px’incipal debtors, at least so far as to shai-eypro rata with the other general creditors of that firm.

This was both equitable and just. As we have already seen, from fifty to sixty per cent of the assets that came to the hands of the ¡assignee consisted of property that formerly belonged to the old ■firm and was transferred to the new. The property transferred to the new fix’m was held by it, charged with a trxxst for the payment of the debts of the old. (Morss v. Gleason, 64 N. Y., 205, 207.)

Moreover, the assignors, by their assignment, dedicated their property to the payment of the debts in question, as well as the debts subsequently contracted. The debts of the old firm were recognized by the assignors as the debts of the new, and were included in their verified schedule as such. The direction to the assignee ■contained in the assignment was that he should, after paying the costs and expenses of executing his trust and the preferred creditors, pay all the debts and liabilities of the firm in full, if the assets were sufficient, if not, the unpreferred creditors were to be paid fro rata. The debts in question were included within that provision. (Chapin v. Thompson, 89 N. Y., 271.)

It may be observed, in passing, that the objections to the payment ■of the debts in question were not made by the other creditors, but by the assignee .alone. He seems to-have deemed it his duty to •object to these debts, notwithstanding the fact that the assignors were liable' therefor, and had included them in the schedule of debts which were to be paid by him. In the Matter of Lewis (81 N. Y., 424) the court, in discussing the question of the effect of an assignment upon the duties of an assignee, and the power of a court to •direct the assets in the hands of an assignee to be distributed otherAvise than in accordance Avith the provisions of the assignment, said: “ The assignee derives all his power from the assignment, which is both the guide and measure of his duty. Beyond that, or outside •of its terms, he is powerless and without authority. The control of the court over his actions is limited in the same way, and can only be exercised to compel his performance of the stipulated and defined trust, and protect the rights which flow from it. He distributes the proceeds of the estate placed in his care according to the dictation and under the sole guidance of the assignment, and the statutory provisions merely regulate and guard his exercise ¿f an authority derived from the will of the assignor. The courts, therefore, cannot direct him to pay a debt of the assignor, or give it preference, in violation of the terms of the assignment and the rights of creditors under it. To hold the contrary would be to put the court in the place of the assignor and assert a right to modify the terms of the assignment, after it had taken effect, against the will of its maker, and to the injury of those protected by it. We agree that the assignee is merely the representative of the debtor, and must be governed by the express terms of his trust.” We are of the opinion that neither the assignee nor the court was justified in rejecting the debts in question, but that they were debts of the new firm ; that the holders thereof were entitled to share fro rata with the other unpref erred creditors of that firm; and that the appellant had a right to insist that they should be so paid.

The assignee claims that the appellant was not interested in the proceeding, and, therefore, not entitled to prosecute this appeal. We think otherwise. We think he was a party in interest, and that this appeal was properly taken.

It follows that the order appealed from should be reversed.

Hardin, P. J., and Merwin, J., concurred.

Order reversed, with costs' to the appellant, payable out of the fund in the hands of the assignee, and report of referee set aside.


author: Martin, J.: Merwin, J.:

text:
    In the Matter of the Accounting of FREDERICK EMERSON, as Executor, etc., Appellant.

      Executor and trustee — when the two functions a/re severed — accounting by the executor.
    A testator, by his will, provided as follows: “I give, bequeath and devise all the rest, residue and remainder of my real and personal estate to my friend, Frederick Emerson, the executor of this my last will and testament, hereinafter nominated, in trust for the payment of my just debts and funeral expenses, and then to pay the income from the said estate to Mary A. Webster during her natural life, to be used by her for her own support, and the care, support and education of Mary R. Webster,” etc.
    He then nominated and appointed Frederick Emerson as sole executor of his will;, and further provided, that if Frederick Emerson should die before Mary R. Webster the surrogate should appoint some proper person to take his place.

      Held, that the will showed that the testator contemplated a severance of the functions and duties of the executor from those of the trustee. (Merwin, J., dissenting.)
    That, upon an application for the final accounting by the executor, his accounts should be examined and passed by the Surrogate’s Court, which should make a decree discharging him as executor, and directing a transfer of the estate in his hands as executor into his hands as trustee, and award him such commissions as. he was entitled to upon such an accounting and decree.
    Appeal by Frederick Emerson from a decree, entered in the office of the clerk of the county of Jefferson on the 22d day of April, 1890, in proceedings instituted by the said Frederick Emerson, as executor, for his final accounting as such.

      On the 11th day of June, 1881, Asahel Read made and executed his last will and testament, whereby, after bequeathing to Asahel Read, son of Iiiram O. Read, a certain legacy therein mentioned, he provided as follows : “ I give, bequeath and devise all the rest, residue and remainder of my real and personal estate to my friend Frederick Emerson, the executor of this my last will and testament, hereinafter nominated, in trust for the payment of my just debts and funeral expenses, and then to pay the income from the said ■estate to Mary A. Webster during her natural life, to be used by her for her own support and the care, support and education of Mary R. Webster, and from and immediately after the decease of the said Mary A. Webster I give and devise all my said estate to Mary R. Webster, if she shall, at the time, be of the age of twenty-one years, if not, when she shall be twenty-one years of age, and the said income to be used for her benefit until that time.” He then nominated and appointed Frederick Emerson as sole executor of his will, with full power, if he should deem it necessary, to sell and convey any or all of his real estate upon such terms and at such times as he should think best. The will also provided that if the appellant should die before MaryR. Webster became twenty-one years of age the surrogate should appoint some proper person to take his place. This will was duly admitted to probate by the ■surrogate of Jefferson county June 7, 1887. The appellant duly qualified as such executor and has since acted as such. He made and filed an inventory as required by law, published the regular notice to creditors, collected the debts due the estate and paid the funeral expenses, debts and legacies. On the 20th day of January, 1890, the executor voluntarily filed his petition for a final accounting as such. This proceeding was commenced by the issuing of a citation, upon the return of which the executor filed an account of his proceedings, as such, and asked to be discharged as executor, and that the balance of the estate in his hands as executor should be transferred to him as testamentary trustee under said will. The surrogate denied his right to a final accounting and discharge - as executor and held that the accounting was but an intermediate one. He also held that the offices of executor and trustee were co-existent and continuous, and that the executor should retain the estate in his hands as such until the death of Mary A. Webster or until Mary R. Webster should become twenty-one years of age. He likewise refused to discharge the appellant as executor or to' decree that the trust fund be transferred into his hands as trustee under said will. From this determination of the surrogate an appeal was taken by the executor.

      Sam Child, for the executor, appellant.

      Joseph Atwell, for Mary A. Webster, legatee.

      J. C. MoCartin, for Mary R. Webstei’, legatee.
   Martin, J.:

The questions involved on this appeal are dependent for their solution upon the true construction of the testator’s will. If the purpose of the testator, as shown by the language employed in his will, was to blend the functions and duties of the executor and trustee so that they were inseparable, and were to run together from the death of the testator until tlxe appellant’s final discharge, the decree appealed from was proper and should be affirmed. If, however, the provisions of the will show that the testator contemplated a severance of the functions and duties of the executor from those of the trustee, then it follows that the deci’ee was wx’ong and should’be reversed.

After making certain bequests to Asahel Read, the testatoi’, by his will, devised and bequeathed to the appellant all the rest and residue of his estate, real and pei’sonal, in trust (1) to pay his debts and funeral expenses; (2) to pay the income from the estate to Mary A. Webster during her natural life ; and (3) upon her decease to pay over to Mary R. Webster the whole of said estate if she should be twenty-one years of age; if not, when she became of age, and to use the income for her benefit until that time.

That the testator intended to appoint the appellant a testamentary trustee to cariy out the provisions of his will, as well as to constitute him the sole executor thereof, is manifest. The will conferred upon him the dual character of executor and trustee. As executor-it was his duty to take possession of the estate, collect the debts due the testator, pay his debts and funeral expenses, pay the legacy given by the will, and sell the real estate if he should deem it necessary. These were his executorial duties. As trustee he was required to keep the residue of the funds belonging to the estate invested, and to pay over the income derived therefrozn to Mazy A. Webster until her death, and if she died before Mary B. Webster became twenty-one years of age, then to appropriate the income thereof to her use until that time. Upon the death of Mary A. Webster and the majority of Mary B. Webster the trust would end and the appellant would be required, as testamentary trustee, to account to Mary B. Webster for the estate in his hands.

We think the will shows that the functions of the executor and the duties of the trustee were separate. They were not to be executed concurrently and continuously to the ezid. The duties of the appellant, as executor, preceded his duties as trustee. The former wei’e to be performed before the latter began. The trust, as executor’, was ended when the appellant had taken possession of the estate, paid the legacies, debts and funeral expenses, and rendered an account of his trust, as such, to the surrogate. He was then entitled to hold the estate as a trustee under the will. As such testamentary tnistee it was his duty to dispose of the income, and ultimately of the corpus of the estate, as directed by the will, and to account to his cestuis que trust as such testamentary trustee. We think the learned surrogate should have stated a final account with the appellant, made a decree discharging him as executor, and directing a transfer of the estate in his hands, as executor, into his hands as trustee, and awarded him such commissions as he would have been entitled to upon such an accounting and decree.

This conclusion is, we think, fully sustained by the following authorities: Laytin v. Davidson (95 N. Y., 263); Matter of Mason (98 id., 527, 534); Phœnix v. Livingston (101 id., 451); Matter of Willets (112 id.. 289); Matter of Crawford (113 id., 560); Matter of Babcock (52 Hun, 510).

It follows that the decree of the surrogate should be reversed, with costs payable out of the fund.

Hardin, P. J., concurred.

Merwin, J.:

Within the rule laid down in Johnson v. Lawrence (95 N. Y., 154) I think this is not a case for the separation of the duties of executor and trustee. From the last clause of the will it is apparent that the testator contemplated that the office of executor should exist till the final distribution. I, therefore, dissent.

Decree of the Surrogate’s Court of Jefferson county reversed, with costs to the appellant payable out of the estate.