author: Barker, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE SENECA LAKE GRAPE AND WINE COMPANY, Appellant.

      Proceedings to dissolve a, corporation, instituted by its board of directors, not a bar to an action by the people to dissolve it beccmse of a forfeiture of its charter — what notice is required in the proceedings by the directors — chapter 378 of 1883 requires service of notice upon the attorney-general of an application to dissolve all corporations.

    In an action, instituted by the attorney general for the purpose of dissolving the defendant, a corporation which was organized under (Chapter 40 of the Laws of 1848 for the cultivation of grapes, and the 'manufacture of wines therefrom, the complaint alleged, as grounds for the judgment demanded, that the company did, in June, 1882, sell and dispose of all its land and real estate, and had since that time ceased to exorcise its corporate privileges and suspended its ordinary lawful business.
    'The defendant set up in bar the pendency of another proceeding, instituted prior to the commencement of this action by the directors of the corporation for the purpose of procuring a dissolution of the corporation, under title 11, chapter 17 of the Code of Civil Procedure, and that such proceedings were instituted in good faith and for the purpose of procuring the relief demanded by the said petitioners.

      Meld, that, although the proceedings instituted by the directors were regular up to the time of the presentation of the petition to the court, which was prior in point of time to the commencement of this action, they did not constitute a bar to the prosecution of this action by the attorney general in the name of the people.

      That, to sustain, a plea of the pendency of a former action, the rule is that it must appear to the court that the first- action was for the same cause as the second, and that this rule will be strictly enforced.
    That it is not enough that the property in controversy is the same in both actions.
    That the facts alleged in the plaintiff’s complaint were not the same as those stated in the directors’ petition, as grounds for the dissolution of the corporation, the action being based upon non-user of its corporate franchises and the petition of the directors alleging its insolvency; that the aim and purpose of the action was, in some respects, different from that which might be accomplished in the proceedings instituted by the board of directors.
    The answer set forth an order, which was granted on the presentation of the petition, in the proceedings instituted by the directors, requiring all persons interested in the corporation to show cause, before a referee designated in the order, at a time and place therein specified, why the prayer of the petition should not be granted', but did not contain a provision requiring the persons interested to show why the corporation should not be dissolved, as is required by section 2423 of the Code of Civil Procedure. The order, as granted, was to be published and a copy served on the creditors and other parties, but there was no provision therein directing that a copy of the petition should be served therewith.

      Held, that the order was in the nature of a process for bringing persons interested before the court, and that unless its provisions were in strict compliance with the statute it was void.

      Matter of Pyrobusite Manganese Company (29 Hun, 430) followed.
    That, as in this case, a perusal of the order would not inform either the creditors or stockholders that the dissolution of the corporation was demanded or contemplated by the proceedings, the order was void and the court did not acquire complete jurisdiction over the proceedings sought to be instituted by the board of directors.
    That section 8 of chapter 378 of the Laws of 1883, entitled “An act in relation to receivers of corporations,” requiring that a copy of all motions and all motion papers, and a copy of any other application to the court, together with a copy of the order or judgment to be proposed thereon, in every action for the dissolution of a corporation, shall, in all cases, be served on the attorney-general, applies to proceedings for the voluntary dissolution of corporations, and the court has no jurisdiction to entertain such proceedings unless a service of such notice is made or waived.
    Appeal from a judgment entered in the office of the clerk of Tates county on September 6, 1888, upon an order made, at chambers, in the court-house at Canandaigua, dissolving the defendant corporation; and, also, from an order made at the Monroe Special Term striking out the defendant’s answer as frivolous, and ordering judgment for the plaintiff for the relief demanded in the complaint, which was entered in the said clerk’s office on September 3, 1888.

      The defendant corporation was organized under chapter 40 of the Laws of 1848, for the cultivation, raising and selling grapes and the manufacture of wines and brandies therefrom. The judgment appointed a receiver of the assets of the corporation, and it also contained the usual and customary directions to receivers as to the mode and manner in which they should proceed in the discharge of their duties, and provided for the distribution of the assets among the creditors of the corporation. This action was commenced in June, 1888.

      M. Rumsey Miller, for the appellant.

      William 8. Olimer, for the respondent.
   Barker, P. J.:

The attorney-general instituted this action for the purpose of procuring, by the judgment of this court, a dissolution of the defendant corporation. The complaint alleges, as grounds for the judgment demanded, that the company did, in June, 1882, sell and dispose of all its lands and real estate, and has since that time ceased to exercise its corporate privileges and suspended its ordinary and lawful business. It is not alleged in the complaint that the corporation was insolvent, nor is it so determined by the judgment. ' The facts averred, if true, worked a forfeiture of the defendant’s franchise, and the State had a right to demand its surrender. The attorney general could not prosecute an action or institute other proceedings for the purpose of extinguishing the corporate life of the defendant, without the sanction and authority of the legislature. Such authorization was given him by the provisions of article 8, title 2, chapter 15 of the Code of Civil Procedure. By section 1785 an action to procure the dissolution of a corporation and a forfeiture of its corporate rights, privileges and franchises may be maintained whenever it has suspended its ordinary and lawful business for at least one year. The attorney-general proceeds upon this one ground alone. The defendant appeared in the action, and by its answer, pleaded in bar of a further prosecution of this action, the pendency of other proceedings, instituted prior to the commencement of this action by the directors of the corporation, for the purpose of procuring a dissolution of'the corporation, as provided in title 11, chapter 17 of the Code of Civil Procedure. For the purposes of this appeal the .answer will be construed as containing the following averments: That prior to the commencement of this action, the board of directors presented a petition to this court at Special Term, in the proper county, praying for a dissolution of the defendant corporation and for the appointment of a receiver of its property, and that the said company should be dissolved, setting forth in such-petition the reasons why the directors deemed it beneficial to the interests of the stockholders that the said corporation should be dissolved, and that the facts alleged made a case for a dissolution within the provisions of section 2419; that the form of the petition was in full compliance with the statute on that subject, and the rules and practice of the court; and that there was attached to such petition, which was made a part thereof, the schedule provided by section-2421. The petition was duly verified and presented to the court on the 31st day of May, 1888, which was before the commencement of the action, and thereupon the court appointed a referee; and, in such order, all persons interested in the corporation were requested to show cause before the referee, on or before the day named therein, why the prayer of the petition should not be granted. The answer alleged that -the petitioners had caused such order to be sent to the newspapers mentioned therein, with direction to have the same published according to the terms thereof; but the answer does not allege that any other or further proceedings have be'en had in pursuance of the provisions of such order. It does allege that the proceedings were instituted in good faith, and for the purpose of procuring the relief demanded by said petitioner. Upon the plaintiff’s motion, the answer was adjudged frivolous and judgment ordered for the plaintiff.

Although the proceedings instituted by the directors were regular up to the time of the presentation of the petition to the court, which was prior in point of time to the commencement of this action, they do not constitute a bar to the prosecution of the- same by the attorney-general in the name of the people. The facts alleged in the plaintiff’s complaint are not the same as those set forth in the directors’ petition, as grounds for the dissolution of the corporation, and the aims and purposes of the action are, in some respects, different from those which might be accomplished in the proceedings instituted by the board of directors. The people prosecute their action because of the default of the corporation to perform and acccomplish the end and object for which it was created. It is a tacit condition of a grant of a corporation that it shall accomplish the purposes for which it was created. Proceedings for the 'voluntary dissolution of a corporation may be instituted by the board of directors on the ground of its insolvency. (Sec. 2419). The powers of the court in an action prosecuted by the people are greater than those conferred upon the court in proceedings founded on the petition of the board of directors. In the former the court has the power, upon proof of the facts authorizing the action to be maintained, to grant an injunction order restraining the corporation and its trustees from collecting or receiving any debt or demand, or from paying out or in any way transferring or delivering to any person any money, property or effects of the corporation during the pendency of the action, without the express permission of the court. And where the action is brought to procure the dissolution of the corporation the injunction may also restrain it and its trustees, directors and managers from exercising any of its corporate rights, privileges or franchises pending the action. The court may also, at any stage of the proceedings, appoint a temporary receiver to act until final judgment is awarded. (Secs. 1787, 1788.) In such action where the stockholders, directors, trustees or other officers of the corporation are made liable in any event or contingency for the payment of a debt, they may be made parties to the action, and their liability may be declared and enforced by the judgment in the action. (Secs. 1791, 1792.) In voluntary proceedings no receiver of the property and effects of the corporation can be appointed until the final order is granted decreeing its dissolution, nor is any provision made in the statute restraining the officers of the corporation from exercising any of their ordinary functions and powers prior to making the final order of dissolution. We think it obvious that it was not intended by the legislature that the voluntary proceedings for the dissolution of the corporation should preclude the people, by the attorney-general, from commencing an action to procure a dissolution of a corporation for any of the grounds stated in section 1785. As a general rule, a cause of forfeiture cannot be taken advantage of and enforced against a- corporation, except by tlie government creating the corporation, which alone can institute such a proceeding, as it may waive a broken condition, express or implied, in the act of incorporation. ■

The sole ground for demanding a dissolution of the corporation in this action is non-user. For that reason it may be dissolved, although it is solvent. Tlie only-ground assigned by the directors in their petition is, the insolvency of the company. The proofs which would support the proceedings instituted by the board of directors would not support this action, for the complaint alleges another distinct ground for the relief demanded. To sustain a plea of a former action pending, the, rule is that it must appear to the court that the first action was for the same cause as the second, and it will be strictly enforced. It is not enough that the property in controversy is the same. (Dawley v. Brown, 79 N. Y., 390.) We think it also appears, by the defendant’s answer, that at the time this action was commenced the court had not acquired complete jurisdiction over the proceedings sought to be instituted by the board of directors, and for that reason the answer was properly held to be frivolous. On presentation of the petition the statute directs that the court may make an order requiring all persons interested in the corporation to show cause before it, or before a referee designated in the order, at a time and place to be therein specified, why the corporation should not be dissolved. (Sec. 2423.) The answer sets forth an order which was granted on the presentation of the petition, but it does not contain a provision requiring the parties interested to show cause why the corporation should not be dissolved, but the provision inserted is, that they should show cause why the prayer of the petition-should not be granted. The order, as granted, is to be published and a copy served on the creditors and other parties. There is no provision that a copy of the petition shall be served therewith. By a perusal of tlie order neither the creditors or the stockholders would be informed that a dissolution of the corporation was demanded or contemplated by the proceedings. In the Matter of Pyrolusite Manganese Qompany (29 Hun, 430) the order was in the same form as the one granted in a voluntary-proceeding, and it was there held that such an order failed to comply with the statute, and for that reason the proceedings were not legally commenced; that the order was in the nature of a process for bringing persons interested before the court, and unless its provisions were in strict compliance with the statute, it was void.

We also think that the court failed to acquire complete jurisdiction over the subject-matter, and that the order was void for the reason that the requirements of section 8, chapter 378 of the Laws of 1883, were not observed. The act is entitled “An act in relation to receivers of corporations.” The eighth section requires that a copy of all motions and all motion papers, and a copy of any other application to the court, together with a copy of the order or judgment to be proposed thereon to the court, in every action for the dissolution of a corporation, shall, in all cases, be served on the attorney-general in the same manner as provided by law for the service of papers on attorneys who have appeared in actions, whether the application be ex parte or upon notice, and any order or judgment granted in any such action or proceeding, without service of the papers on the attorney-general, shall be void. . It is plain that this requirement applies to proceedings for the voluntary dissolution of corporations; and the purpose of the statute is to require notice to be given to the attorney-general of the time and place when the petition will be presented to the court, that he may be present and be heard upon the initiatory application as well as all the other proceedings to be had in the matter; and unless service of such notice is waived, the court has no jurisdiction to' entertain the proceeding, and, as the statute has declared, the order is void. For these reasons, we think, the answer upon its face,.appeared to be frivolous, and was properly stricken out and judgment awarded in the plaintiffs favor for the relief demanded.

The judgment and order are both affirmed, with costs.

Dwight and IVIacomber, JJ"., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    HENRY S. MARSHALL, Appellant, v. JOHN BOYER, Respondent.

      Might of a defendant to ham costs stricken from, a judgment — not warned by am, appeal from it — permission to move to correct a judgment of the General Term must be obtained from that court.

    Upon an appeal from an order striking from a judgment-roll tlie costs inserted therein in the plaintiff’s favor, it appeared that‘the action was tried before a referee, who found that there was due to the plaintiff sixty-four dollars and ten cents, and awarded judgment for that sum without costs to either party. The plaintiff’s attorney disregarded the direction as to costs, procured costs to be taxed in his favor and inserted the same in the judgment.
    The defendant appealed from the judgment to the General Term, where it was affirmed. Thereafter the defendant noticed a motion at Special Term, founded on the pleadings and affidavit, for an order to strike from the judgment so affirmed the provision inserted therein relative to costs.
    Held, that the plaintiff, by not appealing from the judgment, acquiesced in the ruling of the referee that he was not entitled to costs, and that by inserting in the judgment a provision awarding costs to himself he was guilty of a serious irregularity.
    That the defendant did not, by taking an appeal from the judgment so entered to the General Term, waive his right to object to the insertion of the costs in the judgment.

      Ifaudler Go. v. Sargent (43 Hun, 151); Guckenheimer v. Angevine (16 id., 453) distinguished.
    That the defendant, without first obtaining the permission of the General Term to move for an order 'correcting the judgment rendered by it, so as to make it comply with the decision of the referee, had no right to move at Special Term for a correction of the-judgment.
    That if the attention of the appellate court had not been called to the mistake or error upon the hearing of the appeal, that court had the power, after the order of affirmance was granted, to relieve the defendant by entertaining a motion made in due time for a reargument or to modify the order of affirmance, and that that right might yet be exercised.
    Appeal from an order, made at the Onondaga Special Term striking from the judgment-roll the costs inserted therein in the plaintiffs favor, which was entered in the office of the clerk of the county of Cayuga on the 20th day of October, 1888.

      JS. O. Aihrn, for the appellant.

      H. A. Maynard, for the respondent.
   Barker, P. J.:

In view of the situation of the case at the time the order was granted, we think it was error for the Special Term to strike from the judgment the provision awarding costs to the plaintiff. The action was tried before a referee, who found due the plaintiff sixty-four dollars and ten cents, and awarded judgment for that sum, without costs to either party. The plaintiff’s attorney disregarded the direction as to costs and procured costs to be taxed in his favor, in amount $154, and inserted the same in the judgment, which was filed July 3, 1888. Thereupon and upon the seventeenth day of July, the defendant appealed from the judgment to the General Term, filing an undertaking to pay the judgment if affirmed, and afterward, and on the third of October following, the judgment was affirmed, and on the next day judgment of affirmance was entered in the proper clerk’s office. In September the defendant noticed a motion for the sixth day of October, founded on the pleadings and affidavits, for an order to strike from the judgment the provisions inserted therein relative to costs, which was opposed by the plaintiff, who presented an affidavit which stated that the judgment had been affirmed by the General Term. On the trial and on this motion the plaintiff contended that this was an action at law, and that as he recovered more than fifty dollars, he was entitled to costs as matter of right under the provisions of the statute; on the contrary, the defendant insisted it was an equitable action, and» the costs were in the discretion of the court.

The plaintiff, by not appealing from the judgment acquiesced in the ruling of the referee that he was not entitled to costs, and by inserting in the judgment a provision awarding costs to himself, he was guilty of a serious irregularity. "We think after taking an appeal the defendant might have moved for a correction of the judgment at Special Term at any time before judgment was affirmed. After appeal the cause remained in the same court in which it originated. It is claimed by this appellant that by taking an appeal to the General Term the defendant waived the right to object to the insertion of costs in the judgment-roll, and cites in support of his views Guckenheimer v. Angevine (16 Hun, 453), Pfaudler Co. v. Sargent (43 Hun, 154).

On an examination of these cases it will be seen that they hold,' and nothing more, that by appealing from the judgment the appellant waives the right to move for a retaxation of costs for the purpose of striking out some one or more of the items erroneously inserted in the bill. The question now presented is very different and more important than the one determined by the cases cited. Here the grievance complained of is that the judgment, as entered, does not conform to the direction of the court, and is in direct violation of one of the questions determined by the decision. By the rules of practice the Special Term is the proper court in which to move in due time to correct errors of the character of the one presented by these papers. But by another rule of this court, which cannot be disregarded, we think the defendant has lost the right to move for a correction of the judgment'without first obtaining permission of this court for leave to move for an order correcting the same so as to make it comply with the decision of the referee. This court has the power, on appeal from a judgment entered on the decision of a Special Term, or the report of a referee, to reverse or affirm, wholly or partly, or to modify the judgment appealed from. (Code Civil Pro., § 1317.) Where this court on appeal affirms' a judgment, entered on the decision of a Special Term, or the report of a referee, it is to be presumed that it has examined and disposed of every question disclosed- by the record, according to the right of the matter, and that no error has occurred of which the appellant can rightfully complain. Such a judgment is final, so far as this court is concerned, and without its permission no further action can be taken to change, alter or modify the judgment as it was affirmed. Otherwise, a cause would never be at rest, and there would be confusion and inconsistency in the judgments of the courts. (Gelston v. Codwise, 1 Johns. Ch., 189; 4 Wait’s Pr., 243.) By granting the order appealed from, one of the questions considered and determined on the trial is again started, and if this kind of practice should be permitted, there would never be an end to litigation. If the error-of which the defendant now complains appear in the record presented to this court on the appeal from the judgment, this court had the imdoubted power to correct the same by modifying the judgment so as to conform it to the decision of the referee; or it could have, in the order of affirmance, permitted the defendant to move for correction of the judgment at Special Term. If for any cause the attention of the court was not called to the error or mistake, it had the power, after the order of affirmance was granted, to relieve the defendant by entertaining a motion, made in due timé, for a reargument, or to modify the order of affirmance, and that right may yet be exercised. The effect of the order appealed from was to change and modify the judgment of this court, which the Special Term had no power to do.

Order appealed from is reversed, without costs of this appeal.-

Dwight and Childs, JJ., concurred.

Order appealed from reversed, without costs of this appeal.


text:
    CATHARINE D. VOGEL, Respondent, v. JACOB G. LUITWIELER, Appellant, Impleaded with Others.

      Mechanic’s lien act, chapter 342 of 1885 —right of a sub-contractor to file liens — sufficiency of the notice — payment by. the owner to the principal contractor.

    In an action brought to foreclose a mechanic’s lien, created under chapter 342 of the Laws of 1885, against the owner and the defendant, Luitwieler, it appeared that the plaintiff, who had entered into a contract with the owner to construct and finish a house, completed the work on the twenty-eighth day of July, and, •on the same day, filed a notice as required by the provisions of the said act for ■ the purpose of creating a lien on the premises for the amount then due to her. For the purpose of carrying out the said contract she had agreed with one Poppet to paint the building, and Poppet had done the work and purchased the materials used in painting the house from the defendant Luitwieler, who had thereafter filed a lien for the materials so furnished.
    Upon an appeal from a judgment deciding that Luitwieler had no lien upon the premises, and directing that all the moneys due upon the contract be paid to the plaintiff:

      Meld, that the defendant Luitwieler, who supplied the paints to Poppet, was embraced within the class of persons mentioned in the first section of the said mechanic’s lien act, who might secure alien on the premises as “sub-contractors.”
    That it was one of the chief purposes of the law to secure persons who supply . materials, which are used in the construction or finishing of the building erected on the lands of the owner, by giving them a lien thereon.'
    That the owner was entitled to have the appellant’s lien paid and discharged out of the moneys due the contractor, and that the act provided for a case like this, with a view of protecting the owner from being compelled to make double payments to secure a release of liis premises from the liens placed thereon by tbe contractors or sub-contractor, material-men or laborers.
    The plaintiff claimed that the notice of the Luitwieler lien was insufficient as it did not state the nature and character of the materials furnished by Luitwieler.
    Held, that as the notice stated that the -materials were furnished and used for the erection of the building in question, and as the plaintiff, the contractor, had engaged Poppet to do the painting and supply the materials, that, as between the parties to this appeal, the notice was a sufficient compliance with the act, and that the plaintiff had not been misled to her injury by reason of the omission complained of.
    'The plaintiff claimed that it did not appear that she was indebted to the subcontractor Poppet for the work and labor and materials furnished in painting the house:
    ■ Held, that as a liability once created was supposed to continue until it was.shown that it had been discharged, it could not be assumed that Poppet had been paid until that fact was proved.
    That, even if it appeared that Poppet had been paid for the work and labor which he had performed, the right of the appellant to place a lien upon the premises as a security for his debt was not thereby extinguished, as the right to do. so was secured to him by the statute, and its validity was not made to depend upon the question whether his vendee had been paid by the party with whom the vendee contracted to do the work and labor.
    Appeal from a judgment entered in tbe office of tbe clerk of Monroe county on July 6, 1888, upon a decision rendered at tbe Monroe Special Term in an action to foreclose a mechanic's lien, ■created by and under chapter 342 of the Laws of 1885.
    The plaintiff entered into an agreement with Edward Woods, who -was then the owner of the premises, to construct and finish a house to be located thereon for the price of $3,070. Afterwards Woods sold and conveyed the premises to the defendant Eorsyth, who assumed and agreed to perform the building contract. The plaintiff, on or about the twenty-eighth day of July, completed her contract, and there was then due her thereon the sum of $635 ; and she also did exti’a work of the value of $225, under and in pursuance of the provisions of the building contract. On the 28th day of July, 1887, and within ninety days after the completion of the contract, the plaintiff filed a notice, as required by the provisions of the said act, for the purpose of creating a lien on the premises. For the purpose of carrying out the said contract on her part, the plaintiff agreed with one Poppet to paint the building and furnish the materials therefor. The price she was to pay for the work does not appear by the findings. Poppet did the work and furnished the material as agreed. He purchased the materials used in painting the house from the defendant Luitwieler, and they were of the value of $225. The trial court found, as a fact, that he sold and delivered the materials to Poppet upon the sole credit of the latter, and they were charged by Luitwieler to said Poppet in an account upon the books of Luitwieler, and that the latter knew, when the goods were sold and delivered, that they were to be used in constructing the building on the premises. The complaint sets forth the fact that Luitwieler filed a notice of lien, and then avers that the same is void and of no effect, and, in form and substance, the same does not comply with the provisions of the statute; and that he did not furnish the plaintiff or the owner of the building any goods, wares or merchandise, and that neither the plaintiff or the owner is indebted to him for any materials which he furnished in the construction of said building. The judgment demands that the plaintiff’s lien be adjudged prior and superior to the lien of the defendant Luitwieler. The trial court found, as a matter of law, that Luitwieler had no lien upon the premises, and directed that all the moneys due upon the contract be paid to the plaintiff. The judgment was entered in accordance' with the findings. Luitwieler alone appeals from the judgment.

      Turlc c& Ba/rnum, for the appellant.

      John J. Snell, for the respondent.
   Barker, P. J.:

The first and principal question in the case is, was the defendant. Luitwieler, who supplied the paints to • Poppet, the sub-contractor, embraced in the class of persons mentioned in the mechanic’s lien act who might secure a lien on the premises on compliance with the provisions of the law ? (Laws 1885, chap. 312.) The first section provides that “ any person * * * who shall hereafter perform any labor or service, or furnish any materials which have been used or which are to be used in erecting, altering or repairing any house, building or, * * * with the consent of the owner, as hereinafter defined, or his agent, or any contractor or sub-contractor, or any other peraon. contracting with such owner to erect * * * may,, upon filing the notice of lien prescribed in the fourth section of this, act, have a lien for the principal and interest of the price and value of such labor and material. * * * But in no case shall such owner be liable to pay, by reason of all the liens filed pursuant to this act,, a greater sum than the price stipulated and agreed to be paid in such contract, and remaining unpaid at the time of filing such lien, or in case there is no contract than the amount of the value of such labor and material then remaining unpaid, except as hereinafter provided.” The facts found by the trial court bring the, defendant Luitwieler within the terms of the act, and he, on complying with the other provisions of the act, could secure a lien on the premises although the material was supplied to a sub-contractor and on his. personal credit. It is one of the chief purposes of the law to secure persons who supply material which is used in the construction or finishing of the building erected on the lands of the owner by giving them a lien thereon. Usually the question whether a lien has been created or not arises between the claimant and the owner of the premises. In the case now before us no one disputes the validity nor the amount of the plaintiff’s lien. The owner does not interpose any defense, nor has he appeared in thg action. He admits that he is indebted to the plaintiff under the building contract in the sum mentioned, and also that both the plaintiff and the appellant have good and valid liens. When the building was completed tiñere was-due and unpaid on the contract the sum of $635. It is unnecessary, in disposing of the questions now presented, to take any notice of the amount due for extra work, as the appellant’s claim is less than the sum due the plaintiff by the terms of the contract. The act provides for the foreclosure of liens created in pursuance of its pro_ visions, and all lienors, prior or subsequent to the plaintiff’s lien, may be made parties to the action. The manner and form of instituting and prosecuting any such action to judgment, or an appeal from such judgment shall.be the same as in actions of foreclosure on real property, except as in the said act otherwise specially provided. (Secs. 7, 8.) It is also provided that all persons who have filed notices of hens shall, by answer in the action, set forth the same, and the court in which such action is brought may settle and determine the equities of all the parties thereto, and decide as to the extent, justice and priority of the claims, of all the parties to the action, and upon •every counter-claim or set-off alleged therein to the extent of their respective jurisdictions.

In justice and equity the owner is entitled to have the appellant’s hen paid -and discharged out of the moneys due the contractor, and the act provides for a case like this with a view of protecting the owner from being compelled to make double payment to secure a release of his premises from the'liens placed thereon by contractors, ¡sub-contractors, material-men or laborers. In section 20 there is a provision that all persons entitled to liens under the provisions of the act, except those who contract with the owner, shall be deemed •sub-contractors, and the court, in the judgment, shall direct the amount due sub-contractors to be paid out of the proceeds of sales before any part of such proceeds are paid to the contractor; and that all persons standing in equal degree as co-laborers, or the various persons furnishing materials, shall have priority according to the date of filing their liens; and where several notices or liens are filed for the same demand, as in case of a contractor including claims for workmen to whom he is indebted, and the lien by workmen, the judgment shall provide for the proper payment so that under the liens filed double payment shall not be required; and in every case where different liens are asserted against property the court, in the judgment; must declare the priority of such liens, and the proceeds of the sale of the property must be applied to each lien in the •order of its priority, (Secs. 20, 21.) By the very terms of the act the defendant is to be treated as a sub-contractor, and is entitled to have his debt paid out of the amount due the plaintiff on her contract before any-sum can be retained by her out of the proceeds of the sale. The equity of these provisions is manifest, and arises out of the fact that the person who furnishes the' material has contributed the amount of his debt towards the completion of the contract, and such sum is embraced in the amount due the contractor and secured by the lien which he placed on the property. Where the contractor, and the sub-contractor have, as each may, placed a lien on the property there can be but one payment enforced from the owner, and that islinfited to the amount due on his contract; and the act justly provides, and the court cannot disregard its provisions, that the subcontractor shall be first paid.

As the sub-contractor would not be a proper party in an action to foreclose a lien placed on the property by the contractor, unless he has secured a lien on the premises for his own security, the plaintiff' may litigate with him the validity of the lien set up by the suN contractor. The fact is found, and the evidence supports the findings, that the appellant supplied material which was of the value set forth in the notice of lien, and the only other question left for inquiry is whether the notice, as filed, is in substantial compliance-with the requirements of the statute ?

The only criticism made by the respondent as to the sufficiency of the notice is that it does not state the nature and character of the material furnished by the claimant. We think that the notice may be regarded as a substantial compliance with the requirements of’ the fourth section, as between the claimant who asserts the lien and the plaintiff who raises the question. If the material had been-furnished directly to the plaintiff, instead of his sub-contractor, we think it could be fairly said that an objection of this eharaeter would be without merit, as the contractor could not be misled by the omission. The notice is required for the purpose of giving-information to the owner, so that he may, upon inquiry, ascertain whether the material has been actually furnished or not, and the value of the same. In this case we are unable to see how the plaintiff, the contractor, has been misled or can now be surprised because the-nature and character of the material was not stated in the notice.. He engaged Poppet to do the painting and supply the materials,, and the notice states that the materials were furnished and used for the erection of the building in question; and that there was due from Leonard Vogel, who was the plaintiff’s agent in making the contract to furnish the material, the sum of $225, the amount now claimed. The contract for the constructing of the building was. made in the name of Leonard Vogel, .as agent, without disclosing that the plaintiff was, in fact, his principal; and, in legal effect, it was Vogel’s, contract and not the plaintiff’s. The act itself declares that it is a remedial statute, and is to be construed liberally to secure the benefits, interests and purposes thereof; that a substantial compliance with its jprovisions shall be sufficient for the validity of the lien or hens provided thereby, and to give jurisdiction to the courts-to enforce the same. We are inclined to hold that, as between the parties to this appeal, the notice was a substantial compliance with the act, and that the respondent has not been misled to her injury by reason of the omission complained of. The case of Luscher v. Morris (18 Abb. N. C., 67) is not in point.

The respondent makes the further point that it does not appear that the contractor is indebted to the sub-contractor, Poppet, for the work and labor and material furnished in painting the house, and for that reason the appellant did not establish a valid lien on the premises. We cannot assume that Poppet has been paid, and, until ‘ the contrary appears, it may be presumed that he has not been, as a liability once created is supposed to continue until it is shown that it has been discharged. But if it appeared that Poppet had been paid for the work and labor which he performed, the right of the appellant to place a lien upon the premises as a security for his debt ■ was not thereby extinguished; for the right was secured to him by ■statute, and its validity is not made to depend upon the question whether his vendee had been paid by the party with whom the latter contracted to do the work and labor. Such a construction ■ placed upon the statute would contravene and defeat its express objects and purposes, and, so far as it was intended as a protection for material-men and laborers, it would enable the contractor and the sub-contractor, by concert of action, to deprive them of the benefits of the statute.

The judgment should be modified by directing the payment of the appellant’s claim, in the first instance, out of the proceeds of sale, and that the same be modified in other respects so as to comply with the views which we have expressed; and, as modified, the judgment is affirmed, with costs of this appeal to the appellant, to be paid out of the proceeds of the sale ordered to be paid to the respondent, and, if they are insufficient, to be paid by her personally • the order to be settléd by Barker, P. J.

Dwight and Macomber, J.J., concurred.

Judgment modified as specified in opinion, and, as modified, .affirmed; judgment to be settled by Barker, P. J.


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    AMELIA E. LAUER and HENRY HAUCK, Appellants, v. BERNARD DUNN, Respondent.

      Building contract —■ clause providing for an extension of time of payment on the filing of liens.

    By a contract, entered into between the defendant and William Herle, the latter agreed to construct a dwelling-house for the defendant at a price stated therein, eighty per cent thereof to be paid in installments, the remaining twenty per cent within thirty days after the final completion of the work. The contract contained a provision “that in case any lien or liens for labor or material, or for damages to persons or property, shall exist upon the property of the party of the second part at the time or times when, by the foregoing terms or provisions of this agreement, a. payment is to be made, such payment, or such part thereof, as shall be equal to not less than double the amount of or for which such lien or liens shall or can exist, shall not be payable at the sfiid stipulated times, notwithstanding anything in this agreement to the contrary contained.”
    On April 18, 1888, the house having been completed and $750 of the contract-price remaining unpaid, Herle drew an order upon the defendant directing him to pay the sum of $700 to the plaintiffs, to whom Herle was indebted in the sum of $832 for work, labor and materials furnished by them as sub-contractors, and to charge the same to the contract, the defendant being notified of the delivery of the order on the same day. On. April twenty-third, other parties, who were also sub-contractors, instituted proceedings to secure liens upon the property under the mechanics’ lien law.
    In an action, brought by the plaintiffs upon the order, which was not commenced until more than thirty days had elapsed after the completion of the building, the defense was interposed that the action had been prematurely commenced, and that the sum claimed was not then due by reason of the provision of the contract authorizing double the amount of any liens to be withheld.

      Held, that the order operated as an assignment pro tanto of the amount unpaid by the defendant to Herle.
    That the contract authorized the defendant to withhold- no greater sum than double the amount of the lien from the amount owing to Herle at the time when the lien was filed.
    That at the time when the liens were filed the sum represented by the order was not owing to Herle or subject to be withheld under the terms of the contract.
    That Herle, the drawer of the order, had an unqualified right, acting in good faith, to assign the whole or any part of the debt owing to him by the defendant, who became, after he was notified of the fact of such assignment, a debtor of the assignee, and thereafter no lien could be placed on his property that could defeat the assignee’s right to the money, nor could a payment of the same be enforced from the defendant by such subsequent lienors.
    That the filing of liens by third parties did not have- the effect to postpone the time of payment of the part of the debt transferred to the plaintiffs by the order.

      It was shown, that the plaintiffs filed a notice with the county clerk on the same day as the other lienors did, by which it appeared that the amount of their claim was $700; that it existed against Herle and the defendant, and that the same became due to them as sub-contraetors for labor and material supplied in the construction of the building. It also appeared that they had a demand as subcontractors against Herle after applying the amount of the order upon the indebtedness.

      Held, that the provision of the contract allowing the defendant to withhold the payment of a portion of the money, due from him to the contractors, in case a lien should be created, did not apply,to a lien to secure a debt which the builder himself might have against the defendant, and that the provisions of the contract on that subject related wholly to liens created to secure claimants who were not parties to the agreement.
    That if it could be held that the lien created by the action of the plaintiffs embraced the debt owing by the defendant to the plaintiffs, by reason of the order drawn by Herle on the defendant, the defendant could not defeat this action upon the ground that the debt sued for was not due and payable.
    Appeal from a judgment of the Monroe County Court,, entered in the office of the clerk of the county of Monroe on the 24th day of October, 1888, and from an order made ixpon the minutes of the judge presiding at the trial granting a motion to set aside the verdict and granting a new trial upon the exceptions, and, also, upon the ground that the verdict was contrary to the evidence and law, which was dated the 25th day of September, 1888.
    Wilbam Herle and tbe defendant entered into an agreement, in writing, whereby Herle, as builder, agreed to erect, construct and complete a dwelling-house for tbe defendant, at tbe price of $11,565, eighty per cent to be jiaid in installments on tbe architect’s certificate, as tbe work progressed, tbe remaining twenty per cent within thirty days after tbe final completion of tbe work and its acceptance by tbe architect. There was due Herle $750 on the completion of tbe building. The contract contained tbe following stipulation, viz.: “ It is further understood and agreed by and between tbe parties hereto, tbat in case any lien or bens for labor or material, or for damages to persons or property, shall exist upon tbe property of tbe party of tbe second part at the time or times when by tbe foregoing terms or provisions of this agreement a payment is to be made, such payment or such part thereof as shall be equal to not less than double tbe amount of or for wbicb such ben or bens shall or can exist, shall not be payable at tbe said stipulated times, Hot-withstanding anything in this agreement to the contrary contained.”
    The house was completed on the 18th day of April, 1888, and at that time Herle, the builder, was indebted to the plaintiffs in the sum of $832, for work and labor and materials furnished by them as sub-contractors. On the next day Herle drew an order upon the defendant in this form, viz.:
    “Rochester, N. Y., April 19, 1888.
    “Mr. B. Dunn:
    “ Please pay A. E. Lauer & Co., seven hundred dollars and charge to contract, and oblige “WILLIAM HERLE.”
    On the same day the defendant was notified of the delivery of the order, and he had negotiations with the payees concerning its payment, but did not accept the same. On the twenty-third day of April, third parties, who were also sub-contractors under Herle, and to whom he was indebted for work and labor and materia] by them furnished in the construction of the house, instituted proceedings to secure liens upon the property under the mechanic’s lien law, applicable to the city of Rochester, the aggregate amount of their claims being more than $750. This action was founded upon the order and was not commenced until more than thirty days had elapsed after the completion of the building.

      G-arlock db Beach, for the appellants.

      Walter S. Bbubbell, for the respondent.
   Barker, P. J.:

The real question in this case is, was the action prematurely commenced ? That the defendant was indebted to the plaintiffs in the sum of of $700, the amount mentioned in the ordei, was established by the undisputed facts of the case. The contract for building the defendant’s house was completed by the contractor on the 18th day of April, 1888, and there was then a balance of $750 unpaid thereon, as the defendant admits, which, by the terms thereof, became due at the expiration of thirty days after the completion of the building. This action was not commenced until after such balance became due and payable, as provided by that term of the agreement.

The plaintiffs title to the said sum of $700 is based on the order, which was made and delivered to them by the drawer on the nineteenth day of April, of which the defendant had immediate notice. At that time the drawer owed tlie plaintiffs, the payees named in the order, more than the sum for which the order was drawn, for work and labor done by them on the building as subcontractors. There is no room for doubt but that the drawer and the payee intended that on payment of the order the same should apply on the debt which the former owed the latter. No question has been raised before us to the contrary. The rule is now well-settled that when, for a valuable consideration from the payee, an order is drawn upon a third party, and made payable out of a particular fund then due from him to the drawer, the delivery of the order to the payee operates as an assignment fro tambo of the fund, and the drawee is bound, after notice of such assignment, to apply the fund as it accrues to the payment of the order, and to no other purpose; and the payee may by action compel such appropriation. The rule, as thus stated, was formulated from the previous decisions in this State by Mr. Justice Bapallo, in Brill v. Tuttle (81 N. Y., 454), and its accuracy has not been questioned by the learned counsel for the defendant. (See, also, The Throop Grain Cleaner Co. v. Smith, 110 N. Y., 83.) It sometimes becomes a doubtful question as to the intention of the parties to the order by reason of the form of the same, together with the state of -the accounts between the drawer and the drawee ; and when their intention is left in doubt, a mixed question of law and fact arises, to be determined by the jury, with proper instruction from the court. On the argument of this appeal the defendants’ counsel did not contend, nor was the question presented on the trial, in any form, that it was not the purpose of the drawer to transfer to the payees a portion of the debt due him from the defendant equal to the sum named in the order. The owner of an entire debt has the right to sell and assign a part of it without the consent of his debtor so as to vest in the assignee a right to proceed in his own name for the recovery of the jDortion of the debt transferred. The debtor cannot bar a defense to a recovery upon the objection that a transfer of a part of an entire debt might subject him to several actions to enforce the payment of a single obligation, for he may demand the bringing in of all interested parties, if tlie protection of his rights should require it. (.Risley v. The Phoenix Bank of the City of New York, 83 N. Y., 318.) As we understand the position of the defendants, it is this: That the sum remaining unpaid upon the contract at the time of the completion of the building was extended beyond the thirty days mentioned in the contract for its payment, and was not due at the time of the commencement of this action, by force of the provisions of the contract, which provides that the j>ayment of a sum may be withheld by him equal to not less than double the amount for which a lien or liens shall exist at the expiration of the said thirty days. It is conceded, for the purposes of this appeal, that certain liens were placed on the property by third parties who were creditors of the builder before the said balance of $750 became due and payable, and that the sums owing the lienors by the builder were more than the aggregate of the sum remaining unpaid. But neither of the proceedings were instituted by the lienors until four days after the said order was delivered to the plaintiff and notice thereof given to the defendant. The drawer of the order had the unqualified right, acting in good faith, to assign and transfer the whole or any part of the debt owing him by the defendant on the building contract; and after the defendant became notified of the fact he became a debtor to the payees, and thereafter no lien could be placed on his property that could defeat the payees’ right to the money ; nor could a payment of the same be enforced from the defendant by the lienors. Deducting from the sum unpaid by the defendant on the contract the amount of the order, and there remained owing to the builder fifty dollars and no more, and that was the only sum which the lienors could require the defendant to pay, and their liens on the property were limited to that amount, and could have been satisfied by the defendant at any time by paying to them that sum.

Ye think the contract will bear the construction that the amount of the payment which the defendant was at liberty to withhold, under the clause of the contract relied upon and above quoted, was no greater than double the sum of money he owed the builder when the lien was filed, and it seems plain that such was the intention of both parties. The provision was intended for the defendant’s protection, and, if he was permitted to retain in his own hands twice the sum for which a lien could be legally placed on his property, it would seem as if his indemnity would be at all times ample by giving to the contract such a construction.

If no liens had been filed by third parties within thirty days after the completion of the contract, the plaintiffs could have maintained this action and recovered the $700 beyond all dispute. The lienors may collect, if their proceedings are regular, the fifty dollars which remains due to the builder from the defendant. They can recover nothing more, and it does not appear from the record that they claim anything beyond that sum. The contract is very explicit that the payment which the defendant may withhold shall be equal to not less than double the amount of or for which such lien can or shall exist; and it does not, in terms, permit him to retain more, and without such express provision permitting him to do so, the remaining sum owing by him on the contract would become due in thirty days from the completion of the building. "We incline to the opinion that the filing of liens by third parties did not have the effect to postpone the time of payment of a part of the debt transferred to the plaintiff by the order.

It remains to be determined what effect, if any, the institution of proceedings by the plaintiffs to create a lien on the owner’s property had in extending the time of payment of the portion of the debt transferred to them by the builder. It appears, from the case, that they filed a notice with the county clerk on the same day the other lienors did, whether before or after is not stated. In the notice the amount of their claim is mentioned as $700, and that it existed against Herle, the contractor, and the defendant, the owner of the premises; and that the same became due to them as sub-contractors for labor and material supplied in the construction of the building. It does not appear from the notice filed, or from any other evidence given on the trial, that the demand which they are seeking to secure by a lien on the building is for the $700 assigned to them by the builder. They had a demand, as sub-contractors, against Herle, the builder, after applying thereonthe amount of the order, which might, by a proper proceeding, have been made a lien on the property to the extent of the sum unpaid on the contract, after deducting the $700 embraced in the order.

"We are of the opinion that the provisions of the contract allowing the defendant to withhold the payment of a portion of the money due from him to the contractor, in case a lien should be created, does not apply to a lien to secure a debt or demand which the builder himself might have against the defendant, and that the provisions of the contract on that subject relate wholly to liens created to secure claimants who were not parties to the agreement. One of the purposes of the agreement was to delay the time of payment of the sum mentioned until after the amount due the claimant could be adjusted in some manner satisfactory to or binding on the contractor by a final judgment in the proceedings. The language of the contract does not, in terms, apply to a lien which the contractor himself may place upon the property to secure the money which may be due him under the contract, and it would be unreasonable to place upon the same any construction which supports such a contention. It is manifest that it was not intended to bring within the terms of the stipulation a lien placed on the property to secure a debt for which the owner was personally liable, because in such a case he could discharge the lien by payment of the debt; and if that was in dispute, then the litigation over that question would have the effect to postpone the time of payment, and there would be no advantage gained by the owner by inserting such a provision in the contract. So if it could be held that the lien created by the action of the plaintiffs embraces the debt owing by the defendant, personally, to the plaintiffs, it would not defeat this action, upon the ground that the debt sued for was not due and payable.

The order and judgment appealed from should be reversed.

Dwight and Childs, JJ., concurred.

Order appealed from reversed, with ten dollars costs and disbursements.


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    LOUIS MOCK, Respondent, v. PETER SAILE, Appellant.

      Offer of judgment — sections 3892 and 3070 of the Oode of ‘ Civil Procediere, only apply to actions pending in the courts respectively referred to in said respective sections.

    In an action, brought in the Municipal Court of Rochester, the defendant appeared and made a written offer that judgment might be taken against him for thirty dollars, with Costs, which the plaintiff did not accept.
    Upon an appeal from a judgment, entered in the Municipal Court in favor of die plaintiff for the sum of $141.25, a new trial was had in the County Court and a verdict rendered in favor of the plaintiff for the sum of thirty dollars only; costs were taxed in favor of the plaintiff and inserted in the judgment.
    Upon an appeal from an order denying the defendant’s motion for a retaxation of costs the plaintiff insisted that his offer, which was made under section 2893 of the Code of Civil Procedure, was a part of the papers and proceedings properly returned by the Municipal Court of Rochester to the County Court, and remained in full force, and was to be considered and to have the same effect on the question of costs as if made after appeal and in compliance with section 3070 of the Code of Civil Procedure, as amended by chapter 522 of the Laws of 1885.

      Held, that the pn'ovisions contained in the said sections as to making offers of judgment were applicable only to actions pending in the courts referred to therein.
    That there was nothing in section 3070 to indicate that an offer, which had been made in the Municipal Court of Rochester, should remain in force, or be of any value to the defendant in this action, after the same had been removed by appeal to the County Court for retrial.
    Appeal from an order of tbe Monroe County Court, which was entered in tbe office of tbe clerk of tbe county of Monroe on the 18th day of September, 1888, denying the defendant’s motion for a retaxation of the costs in an action originally commenced in tbe Municipal Court of Rochester.
    Tbe recovery in that court was for tbe plaintiff in tbe sum of $111.25, from which tbe defendant appealed, and in the County Court tbe verdict was for tbe sum of thirty-five dollars only. Tbe action was founded upon contract for tbe recovery of mo'hey only. Costs were taxed in tbe plaintiff’s favor and inserted in tbe judgment-roll.

      P. B. Hulett, for tbe appellant.
    ■ S. J). Bentley, for the respondent.
   Barker, P. J.:

Tbe defendant appeared in tbe Municipal Court on tbe return of tbe process and made a written offer that judgment might be taken against him for thirty-five dollars, with costs, which the plaintiff did not accept. On the trial in the County Court the plaintiff had a verdict for thirty-five dollars only.

The right of the defendant in an action in the Municipal Court to make an offer of judgment is given by section 2892 of the Code of Civil Procedure, and the effect of it is, if the same is not accepted, that the plaintiff shall not recover costs from the time of service of the offer, if he fails to obtain a more favorable judgment. This is the only provision on the subject, and the section of the Code in which it appears is found in chapter. 19, entitled “ Courts of Justices of the Peace and proceedings therein.” This and other sections of that chapter are applicable to actions commenced in the Municipal Court of .Rochester. The appellant insists that this offer was a part of the papers and proceedings properly returned by the justice to the County Court, and remains in full force, and is to be considered and to have the same effect on the question of costs as if made after appeal, in pursuance and in compliance with the provisions of section 30Y0, as amended by chapter 522 of Laws of 1885. We cannot concur in giving these sections the construction contended for by the appellant. The provisions contained in the said sections as to making offers of judgment are applicable only to actions pending in the courts referred to, respectively. There is nothing in section 30 YO indicating that an offer which may have been made in the court below shall remain in force or be of any avail to the defendant in the action after the same has been removed by appeal to the County Court for retrial. It is expressly provided in that section that “upon an appeal, provided for in this article, * * * either party may, within fifteen days after service of the notice of appeal, serve upon the adverse party,' or upon his attorney, a written offer to allow judgment to be rendered in the appellate court in favor of either party for a specified sum.” Clearly indicating that the offer .must be an original one ; and, as further indicating that such is the meaning of the section, a right is also given the respondent to make an offer, which he did not have in the court below. The concluding paragraph of the section declares the effect of the omission by either party to make and serve an offer as provided by that section, and it is expressed in these words, viz: “ The party in whose favor the verdict, report or decision in the appellate court is given shall be entitled to recover his costs upon the appeal.” The defendant not having made an offer of judgment in the County Court, where he demanded a retrial, he is required to pay costs, as the plaintiff had the verdict.

The order appealed from should be affirmed, with ten dollars costs.

Dwight and Childs, JJ., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


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    GEORGE H. HUMPHREY, as Executor of the Last Will and Testament of BENJAMIN P. ROBINSON, Deceased, Respondent, v. MARY A. ROBINSON, Respondent, and ASA F. ROBINSON and Others, Appellants.

      Legacy — when specific, and not pecuniary or demonstrative.

    The plaintiff, as executor of the will of Benjamin P. Robinson, deceased, brought this action to secure a judicial construction of a clause of the will, which read as follows:

      “First. I bequeath to my beloved wife, Mary A. Robinson, the sum of fifty thousand dollars ($50,000), the same to be paid to her by my executors, hereinafter named, immediately after my decease, in manner following, that is to say, by the transfer to her of my stock in the New York Central and Hudson River Railroad, at its par value, as far as the same will go for that purpose, and the residue in cash; and I also give and bequeath to her all of my household furniture and pictures, also a bond and mortgage, bearing date April 1,1881, executed to me by Rufus A. Sibley and Alexander M. Lindsley to secure the payment of thirty thousand dollars, which said legacies are to be received and accepted by my said wife in full lieu, discharge and satisfaction of her dower interest, and of any and every other claim that she may have in or to my real estate; and I do hereby direct my executors that in the event there should be, for any reason, any delay in paying her the amount hereby bequeathed, to pay to her for her support and maintenance the sum of two hundred and fifty dollars monthly until said legacies shall be paid to her as aforesaid.”
    Before the death of the testator the thirty thousand dollar bond and mortgage, mentioned and described in the first item of the will and therein bequeathed to his wife, was fully paid to him and was by him discharged, and the testator had disposed of all his stock in the New York Central and Hudson River Railroad Company. At tlie time of liis death, his personal estate was of the value of $112,605, as estimated by the referee before whom this action was tried, including the furniture and pictures, which were of the value of $2,000.

      Held, that the meaning and effect of the language in the first clause of the will was to give and bequeath the bond and mortgage specifically to the legatee, and that if the testator had remained the owner of the same, up to the time of his death, the legatee could, as a matter of right, have demanded from the executor the transfer of the mortgage to herself, whatever might have been its value at that time.
    That the court was unable to find in the remaining provisions of the first clause any provision or direction that fairly indicated an intention on the part of the testator to change or alter the effect or meaning of the words used in making the specific bequest of the bond and mortgage.
    Appeal from a judgment, entered upon tbe report of a referee, in tbe office of tbe clerk of Monroe county, on tbe 29th day of August, 1888.
    Tbe plaintiff is tbe executor of tbe last will and testament of Benjamin P. Robinson, and this action is prosecuted for tbe purpose of securing a judicial construction of tbe same. Tbe defendant, Mary A. Robinson, is tbe widow of tbe testator and a legatee named in tbe will, and tbe other defendants, who are tbe appellants, are tbe residuary legatees. Tbe clause of tbe will as to tbe meaning of which tbe plaintiff entertained doubts is tbe first, and is as follows :

      “ First. I give and bequeath to my beloved wife, Mary A. Robinson, tbe sum of fifty thousand dollars ($50,000), tbe. same to be paid to her by my executors hereinafter named, immediately after my decease, in manner following, that is to say, by tbe transfer to her of my stock in tbe New York Central and Hudson River Railroad Company, at its par value, as far as tbe same will go for that purpose, and tbe residue in cash; and I also give and bequeath to her all of my household furniture and pictures; also, a certain bond and mortgage bearing date April 1, 1881, executed to me by Rufus A. Sibley and Alexander M. Lindsley, to secure the payment of thirty thousand dollars, which said legacies are to be received and accepted by my said wife in full lieu, discharge and satisfaction of her dower interest, and of any and every other-claim which she may have in or to my real estate; and I do hereby direct my executors, in tbe event that there should be, for any reason, any delay in paying to her tbe amount hereby bequeathed, to pay to her for her support and maintenance the sum of two hundred and fifty dollars, monthly until such legacies shall be paid to her as aforesaid.”
    The testator had no children either at the time of making his will or at the time of his death. At the time of the execution of the will he possessed real estate which he, in one of the clauses of the will, estimated at the value of $30,000, which before his death he had alienated, and at the time of his death he was not seized of' any real estate. Before the testator’s death the $30,000 bond and mortgage mentioned and described in the first item of the will and therein bequeathed to his wife, the defendant, Mary A. Robinson,, was fully paid to him and by him discharged. Before his death the testator had disposed of all of his stock in the New York Central and Hudson River Railroad Company. His personal estate was of' the value of $112,605, as estimated by the referee, including the household furniture and pictures, which were of the value of $2,000..
    The referee found and determined, as a matter of fact, that it. was the intention of the testator, in executing his will, that the full sum of $80,000 should be secured to his wife, Mary A. Robinson, in addition to the household furniture and pictures; and the reference in the first clause of the will to the New York Central Railroad stock, and the mortgage made by Sibley and Lindsley, was for-the pm-pose of indicating the fund which he desired to be appropriated for that purpose; and held, as conclusion of law, that the legacy of $30,000 to his wife was, a pecuniary or demonstrative legacy, and not specific, and that the same was not addeemed by the-payment of the bond and mortgage and the discharge of the same of record by the testator; and that she was entitled to receive from the plaintiff, as executor, the full sum of $30,000 out of the general assets of his estate, in addition to the $50,000 mentioned, the said mortgage having been paid up in full. The will bears date the 17th day of January, 1883, and the testator died on the 15th day of March, 1887. The bond and mortgage referred to was dated the 1st day of April, 1881, and was payable in four equal annual installments after the 1st day of April, 1886, and the testator received payment in full in discharge of the mortgage on the 11th of November, 1884. The payment was received by draft for the sum of $30,000, made payable to the order of and indorsed by the-' testator.

      Qarlock <& Beach, for the appellants.

      Henry W. Gonlcling, for the appellant "William J". Badger.

      Parker d> Brake, for the plaintiff and respondent.'

      Sutherland di Shuart, for the widow and respondent, Mary A.. Robinson.
   Barker, P. J.:

The learned referee held that by the first clause of the will the-testator intended to give to his wife the sum of $30,000, being the amount of a bond and mortgage therein referred to, and then owned by him, in addition to the other legacies mentioned in the same clause of- the will; that such bequest was not a gift of the debt- or obligation secured by the mortgage, but of a specific sum of money equal in amount to the debt to be realized out of the bond and mortgage, which was designated as the source from which the funds were to be realized for its payment. If such was the intention of the testator, then the payment of the bond and mortgage in his lifetime was not an ademption or revocation of the legacy, and. the legatee may demand its payment from the executor out of the-general assets belonging to his estate.

The residuary legatees dispute-the correctness of the construction given the will by the referee, and claim that it defeats the purpose of the testator, which was, as they contend, to give and bequeath to-his wife the bond and mortgage as a separate and distinct item of his-personal estate as it existed at the time of the making of his will,, and nothing more. If this construction expresses the intention of the testator, the legacy was specific, and the payment and satisfaction of the debt in his lifetime was an ademption of the legacy. A specific legacy is a bequest of a particular thing or money specified, and distinguished from all other property of the same kind, the title-of which would vest in the legatee on the death of the testator with the assent of the executor. It differs from a general or pecuniary legacy in this respect, that if the thing, security or money bequeathed is lost, paid or destroyed in the lifetime of the testator, the legatee-will not be entitled to any recompense or satisfaction out of his personal estate; whereas, a general legacy is to be paid out of the-assets of the testator, when converted into money, if the same is. •sufficient for that purpose, and in the order prescribed in the will. (Roper on Legacies, chap. 3, § 1, p. 192.) In brief, the question presented is, was this a general or specific legacy within the sense and meaning of those terms as used by courts and commentators ? In discussing the subject in all cases the intention of the testator is to prevail, and his purpose is to be derived from a consideration of ■all the material provisions of the will construed, and of the extrinsic •circumstances respecting the situation of the testator’s family and ■estate at the time of making the will, which may be fairly brought to bear upon the question of intent. (Pierrepont v. Edwards, 25 N. Y., 128; Davis v. Crandall, 101 id., 311.) The general rules of construction applicable to this class of cases are substantially the .same as those which prevail in all other cases where the intention of the testator is left in doubt in consequence of the language used by him in expressing his purpose. Inasmuch, however, as the legacy, if specific,' is lost in case'the subject of it is disposed of by the testator, or is extinguished by payment or otherwise in his lifetime, it was said by Selden, J., in Giddings v. Seward (16 N. Y., 365), that courts proceeding upon the presumption that the testator intended a real benefit to the legatee, incline to consider legacies general rather than specific, where the language of the bequest will •admit of that construction.” These observations were repeated by the court in Tifft v. Porter (8 N. Y., 521) with some additional remarks made by Johnson, J., viz: The presumption is stronger that a testator intends some benefit to a legatee than that he intends a benefit only upon the collateral condition that he shall remain till death owner of the property bequeathed. * * * An intention of benefit being once expressed, to make its taking effect turn upon the contingency of the condition of the testator’s property being unchanged, instead of upon the continuance of the same feelings which, in the first instance, prompted the selection of the legatee, requires, as it ought, clear language to convey the intention. The rule, as settled, accords best' with the dictates of experience as to the probable purposes which actuate men in disposing of their property by will.” In all the cases bearing on the question whether the legacy is specific or general, as the rule is stated with uniformity, that to make a legacy specific it is necessary that it should appear that it was the clear purpose of the testator to make it such, otherwise the legacy will be held to be pecuniary or demonstrative. In seeking the intention of the testator in this case we have not failed to keep in mind the canons of construction which we have before stated. The referee, in his opinion, which is printed with the papers, held, in substance, and his decision rests upon the ground that the bequest- of the bond and mortgage belongs to that class of' legacies commonly called demonstrative.

Such bequests partake so far of the nature of specific legacies that the security referred to in the bequest, if in existence and belonging to the estate of the testator at the time of his death, is set apart as the primary fund for the payment of the legacy \ and, if the same has been paid up or otherwise extinguished, the legacy is to be paid out of the assets of the testator’s estate as a general legacy. To our minds it seems clear and certain, that the meaning and effect of the language in the first clause of the will was to give and bequeath the bond and mortgage specifically to the legatee, and if the testator had remained the owner of the same up to the time of his death, the legatee could, as a matter of right, have demanded from the executor the transfer of .the security to herself■, whatever may have-been its value at that time. ~We are unable to find, in the remaining provisions of the first clause of the will any provision or direction that fairly indicates an intention on the part of the testator to change or alter the effect or meaning of the words used in making the bequest of the bond and mortgage. They are in the nature of instructions by the testator to his executor, directing and empowering him to pay the legatee $250 monthly if for any reason there should be any delay on his part in paying over to her the pecuniary legacy in the form and manner as provided in the preceding clause of the will. The words used, “ in the event there should be, for any reason, any delay in paying to her the amount hereby bequeathed,” evidently refers to the pecuniary bequest of $50,000, for he had given and bequeathed to her that sum “ to he paid to her by his (my) executors immediately after his (my) decease.” The use of the plural of the word “legacy,” as it appears in the clause relative to the making of the payment of $250 monthly, was evidently used by mistake, and if not, then the monthly payment would continue until the gift of the household furniture and pictures were actually transferred to the legatee, which, could not have been the intention of the testator. The testator designed that his widow should realize the interest and income of the bequest of $50,000 immediately after his death, and if for any cause the principal should not be paid over as directed,, then, and in that event, the executors were authorized to pay her the sum mentioned monthly, which is equal to the legal rate of interest on the sum bequeathed.

We think it proper to direct a new trial instead of modifying the judgment so as to conform to our views as to the proper construction to be placed upon the will, so that the widow may have an opportunity on the retrial to maintain, if she can, by proper proof, the •fact alleged in her answer, that when the bond and mortgage was paid up the proceeds were transferred to her by the testator to be held in her own right and as a part of her individual estate. The referee refused to pass upon this question, as by his construction of the will it became immaterial to determine that issue. We think it also proper to defer a decision upon the other questions until that issue is disposed of.

New trial granted before another referee, with costs to abide the ■final award of costs.

Dwight and Childs, JJ., concurred.

Judgment reversed, new trial granted before another referee, ■with costs of this appeal to abide the final award of costs.


text:
    In the Matter of the Widening of HAND STREET, in the City of Rochester.

      Eminent domain — the use of vacant lots as a passage-way by the public is not pn'oof of a dedication by the owner — payment of tames as evidence to disprove a dedication— chmrter of Boahester, chapter 14 of 1880 — power of the court to modify an award.

    Proceedings were instituted under tlie provisions of its charter by the municipal authorities of the city of Rochester, to widen Hand street, in the eastern portion thereof, where it intersects with Clinton street. Among the parcels of land intended to be taken for that purpose was a lot known as N o. 28, which fronted .on Clinton street, and was bounded on the north by Hand street, Hand street being an alley sixteen feet wide.
    Said Lot No. 28 had been for more than twenty-two years last past, and was, at the time of the proceedings, used by the public of the city of Rochester by passing over and across the same as a part of Hand street. No proof of any affirmative act on the part of the owners, indicating an intention on their part to throw open this parcel of land to the use of the public for street purposes, was given before the commissioners appointed to appraise the damages.
    This lot was owned by John B. Parmlee or his heirs, or by one George S. Riley; neither Parmlee nor his heirs, nor Riley, having been in the actual possession or control of the premises for many years. Por more than thirty years Riley had claimed an interest in the lot, and had paid the city taxes, which were levied upon it as a separate and distinct parcel of land.
    The report of the majority of the commissioners, on the ground that the land had been dedicated to the public use, awarded to the heirs of John B. Parmlee the sum of one dollar as damages for the taking of the lot. The Special Term upon an appeal to it modified this by awarding to the owners and claimants of the lot the sum of $1,800 as damages, and directing that such award be deposited in a savings bank, subject to the order of the County Court of Monroe county, and that the city pay to the appellant Riley his costs on the appeal. Upon an appeal from this order:

      Held,, that the claim made by the city that the owner had dedicated this lot to the use of the public as a public street was not sustained by the evidence.
    That it was not unusual that, in the vicinity of cities and villages, tracks of land lie unfenced, open to the common use for many years, and that well-defined ways of passage are gradually formed across them, but without other evidence of an intention on the part of the owners to dedicate the same to the public use, it would not be held that such use by the public, without protest on the part of the owner, was evidence of an intention on his part to dedicate it to the public use or surrender the right to inclose and occupy the same as private property.
    The city charter provided that “ whenever any street, alley or lane, shall have been opened to and used as such by the public for the period of five years, the same shall thereby become a public street, alley or lane for all purposes, and the common council and the executive board, respectively, shall have the same authority and jurisdiction over the right and interest in the same as they have by law over the other streets, alleys or lanes and highways of the city.”

      Beld, that this section did not apply to a case where the owner had not, by some act on his part, dedicated the premises to public use.

      Strong v. City of Brooklyn (68 N. Y., 1) followed.
    ' That the undisputed fact that during the period mentioned by the witness the city levied taxes upon this lot as a separate and distinct parcel of land, and that the same were paid by the respondent Riley, would ordinarily be received as evidence that the municipal authorities did not regard the use by the public, whatever may have been its nature and character, as being with the consent of the owner or as indicating an intention on his part to abandon the right to inclose and resume the use of the property and exclude the public therefrom.
    That as Mr. Riley, who appealed from the majority report of the commissioners, was heard before them and presented proofs showing that he had the control and management of the property, paid the taxes thereon and had an equitable interest in the premises, these facts and circumstances made him a proper party to the proceedings and gave him a right to be heard upon the question of compensation to be awarded for taking the land for public purposes.

      That a claim, made by the appellant that the Special Term had no power to modify the report by increasing the award of damages above the amount awarded by the majority of the commissioners, could not be sustained.
    That as power was conferred upon that court by the city charter to modify the report it was authorized to review the assessment of damages, and if dissatisfied with the award to correct the same by increasing or diminishing the same, being guided in such determination by the evidence presented before the commissioners bearing on the question of damages.
    Appeal by tbe city of Rochester from an order of the Monroe Special Term, entered in the office of the clerk of the county of Monroe on September 18, 1888, modifying the report of the majority of the commissioners herein, which had been confirmed by the common council of the city of Rochester, by substituting in place of the same the report of the minority of the said commissioners, as to the value of Lot 28 of Riley’s subdivision on North Clinton street, taken by the exercise of the right of eminent domain in these proceedings.
    The municipal authorities for the city of Rochester, in pursuance of the provisions of its charter, instituted proceedings to widen Hand street along the eastern portion thereof, where it intersects with Clinton street. The papers describe several pieces and parcels of land intended to be taken for that purpose, and among them the parcel known as lot No. 28, which is described as follows: “ Commencing at the north-west corner of the premises first described; thence northerly six and seventy-five one-hundredths feet; thence easterly about two hundred and thirty-five feet to the west line of Clinton street; thence southerly along the west fine of Clinton street about thirty feet to the line of Christianna Tackle; thence westerly about two hundred and thirty-five feet to the place of Leginning, known as lot No. 28, Riley’s subdivision.”v
    Three commissioners were appointed to award damages to the owners of the premises described. Two of the commissioners joined in a report in which they awarded damages to the heirs of John B. Parmlee, the sum of one dollar, and stated as a fact in their report that the premises had been for more than twenty-two years last past, and now are, used by the public of the city of Rochester for public highway purposes and uses, and in hostility to any right of said Parmlee, and that such uses had been open, notorious and continuous by and on the part of said public. The other commissioner made a separate report, in which he dissented from the conclusion of his associates and found, as a fact, that the record title to the premises in question were in the heirs of the said Parmlee, whose names and places of residence were unknown, but that George S. Riley, of Rochester, claimed to be the owner in fee of the premises, by virtue of a defeasance, executed by Parmlee, the legal effect of which it is claimed constituted the deed from Riley to Parmlee, a mortgage, and that he was unable to concur with the other commissioners in their finding that the property had been used for highway purposes for twenty-two years, and that such use had been notorious and continuous by and on the part of the public, and that he was in favor of awarding to the owner of the premises $1,800 as damages, and recommended that the money be deposited in the Monroe County Savings Bank subject to the order of the County Court. The common council confirmed the majority report and Riley appealed from the'report of the commissioners to the Supreme Court, and the appeal was heard at the Monroe County Special Term, where the report was modified by awarding to the owner and claimants the sum of $1,800 as damages, and directing that such award, when paid, be deposited in the Monroe County Savings Bank, subject to the order of the County Court of Monroe county, and that the city of Rochester pay to the appellant, George S. Riley, his costs on the appeal. From the last-named order the city took an appeal to the General Term.

      Quincey Van Voorhis, for the city of Rochester, appellant.

      George F. Voumans, for George S. Riley, respondent.
   Barker, P. J.:

At the time these proceedings were initiated, as appears by the proofs, the title to the land in question was in the heirs of J. B. Parmlee, deceased. Neither he nor they have been in the actual possession or control of the premises for many years. For more than thirty years George S. Riley, the respondent, has claimed an interest in the locus in quo. As early as in the year 1850 the eastern portion of Hand street, which runs east and west, was open and extended so as to intersect with Clinton street. This section of Hand, street, after it was opened, was commonly called an alley, and was only sixteen feet wide.

It is conceded by the parties to this appeal that thereafter by the virtue of the proceedings then had it was a public streeet and used by the public as such. It is unimportant to inquire whether this street was opened by the action of the owners of the land dedicating the same to the public as a street, or by proceedings instituted by the municipal authorities, or by concert of action on the part of both. It is also undisputed that after the public commenced to use the alley as a public street the premises in question, then known as lot No. 28, fronting on Clinton street thirty feet, with a depth of 235 feet, and bounded on the north by the said alley, was owned by either the said Parmlee or the said Riley. The adjoining lot to the south of lot 28 on Clinton street, was used and occupied by other parties before the public used any part of lot 28 for the purposes of a street. It thus distinctly appears that after Hand street was extended so as to intersect with Clinton street, the premises in question known as lot 28 on the west side of Clinton street, was a separate and distinct parcel of land without the least uncertainty or controversy as to the true location of its street boundaries on Clinton and Hand streets. As there is no proof indicating that any other person than Mr. Riley had the control and management of this lot since the extension of Hand street, he will be mentioned, for convenience, as the owner. The claim made by the city that the owner dedicated this entire lot to the use of the public as a public street, is not, in our opinion, sustained by the evidence. There is not the least proof of any affirmative act on the part of the owners indicating an intention on his part to throw open this parcel of land to the use of the public for street purposes. The owner’s intention must be shown by some affirmative act on his part, and merely permitting his land to remain open, unfenced against intruders, or without asserting the right of exclusive possession, will not be taken for such an act. (Strong v. The City of Brooklyn, 68 N. Y., 1.) The use which the public have made of this lot by passing over and across the same as a part of Hand street «does not convince us that it was with such assent on the part of the owner that he intended to dedicate the same to such a use. Hand street being a narrow way, and located in a populous part of the city, and Clinton street being a business thoroughfare, and lot 28 unused and unfenced, it was very natural that the traveling public should encroach upon the same, for the lot and the street together were less than three rods wide, and but little or no significance should be given to the circumstance that the public passing from one street to the other did use lot 28 as a part of Hand street. It is not unusual that in the vicinity of cities and villages tracts of land lie unfenced, open to the common use for many years, and that well defined ways of passage are gradually formed, across them, and without other evidence on the part of the owner to dedicate the same to a public use, it would be unreasonable to hold that such use by the public, without protest on the part of the owner, was evidence of an intention on his part to dedicate it to a public use, to surrender the right to inclose and occupy the same as private property. (Requa v. The City of Rochester, 45 N. Y., 129; Strong v. The City of Brooklyn, supra ; In The Matter of Rhinelander, 68 N. Y., 107; Rozell v. Andrews, 103 id., 150; Cook’s Highway Laws, 350.)

The city charter contains this provision, viz.: “ Section 163. Whenever any street, alley or lane shall have been opened to and used as such by the public for the period of five years, the same shall thereby become a public street, alley or lane for all purposes, and the common council and executive board, respectively, shall have the same authority and jurisdiction over and right and interest in the same as they have by law over the other streets, alleys, lanes and highways of the city.” This section does not apply to a case, where the owner has not, by some act on his part, dedicated the premises to public use. In Strong v. The City of Brooklyn (supra) the court, in commenting upon a statute with similar provisions, remarked that “ the purpose of the statute evidently is to provide for the case of an owner of a tract of land in the city, who had laid it out into lots and planned and marked out streets upon it, and has thus, and by other like measures, invited the public use of them without in any more technical or formal manner investing the city government with a right to take them into possession and control; and the initiatory act of the throwing out to the public use must be an indication by the owner that for such length and width over his premises a street or way is accorded for the public use.” These comments upon the statute then under consideration seem to us to be entirely applicable to the one contained in this charter.

The suggestion that the public had acquired a right by user, with the assent of the owner, for the period of over twenty years, is fully answered by what has already been said relative to the circumstances under which the public enjoyed the use of the premises. It is ah undisputed fact that during this period mentioned by the witnesses, the city levied taxes upon this lot as a separate and distinct parcel of land, and that the same was paid by the respondent. This fact alone would ordinarily be received as evidence that the municipal authorities did not regard the use by the public, whatever may have been its nature and character, as” being with the consent of the owner, or as indicating an intention on his part to yield the right to inclose and resume the use of the property and exclude the public therefrom.

Mr. Riley, who appealed from a majority report, was heard before the commissioners, and there presented proofs showing that he had the control and management of the property, paid the taxes thereon and had an equitable interest in the premises, and these facts and circumstances made him a proper party to the proceedings and gave him a right to be heard upon the question of compensation to be awarded for taking the land for street purposes. The order appealed from directs that the moneys be deposited subject to the order of the County Court, and that tribunal will protect the city and all parties having claims upon the fund.

The appellant makes the further point that the Special Term had no power to modify the report by increasing the'award of damages above the amount awarded by the majority of the commissioners. The commissioners are required to preserve the evidence taken before them, and file the same in the office of the county clerk. When an appeal is taken, it is the duty of the clerk to certify to this court a copy of the report of the commissioners, with the proceedings and evidence had before them filed with him by said commissioners. An appeal may be taken from the order of a Special Term to the General Term of this court, and its decision is final. As to the power of .the court on appeal, the provisions of the charter on that question are that the court shah consider the appeal and examine all the questions of law or of fact that may be involved therein, and shall confirm or modify such report, as the court shall deem just. In case the court should annul the report, it may direct a rehearing before the same or other commissioners to be appointed by it; and in such case the same proceedings shall be had on such hearing, and for the examination, correction or review of any subsequent report, as provided by the said provisions. (Sec. 187, chap. 14 of 1880.) The appellant’s contention is that the power to modify the report does not include the right to increase or diminish the damages.

The jurisdiction over the subject-matter is unlimited by the terms of these provisions, and we think it was the intention of the legislature to confer on this court the power to review the assessment of damages, and- if dissatisfied with the award, to correct the same by increasing or diminishing the same, being guided in such determination by the evidence presented before the commissioners bearing on the question of damages. In terms the court is empowered to examine every question of fact involved in the controversy. The .Special Term did not, as is claimed by the appellant, adopt the report of the minority, but corrected the ' report of the majority, fixing the amount of damages the same as was stated in the minority report. Our own examination of the evidence convinces us that the amount of damages fixed by the Special Term is not above the value of the property.

The order appealed from should be affirmed, with costs of this ■appeal to be taxed as if it was a civil action.

Dwi&ht, J., concurred; Macomber, J., not sitting.

Order affirmed, with costs to be taxed as in a civil action.