text:
    ISAAC ROMAINE, as Receiver of the Property of MARIA L. CHAUNCEY, Respondent, v. MICHAEL CHAUNCEY and Another, Appellants.

      Divorce —alimony cannot be reached by the wife’s creditors who became such before the decree of divorce.

    An action was brought against a husband and wife to reach alimony, directed to be paid to her by a judgment of absolute divorce, in order to satisfy debts created by her before said divorce was decreed; in which action a demurrer was interposed to the complaint.

      Held, that the action could not be maintained.
    That alimony is not the property or separate estate of a wife, but is a compulsory provision made for her support by a guilty husband; and as such support it is not assignable.
    It seems that a trader who had furnished a wife with necessaries, upon the faith of a decree granting alimony, might recover his debt therefrom.

      Stevenson v. Stevenson (34 Hun, 157) distinguished.
    Appeal by the defendants, Michael Chauncey and Maria L. Chauncey, from an interlocutory judgment entered in the cleric’s office of the county of New York on the 4th day of May, 1891, overruling their demurrers to the amended complaint in this action ; also from an order entered in said clerk’s office on the 80th day of April, 1891, overruling said demurrers and directing the entry of said judgment.

      Co wen, Dickerson, Nicoll (& Brown, for the appellants.

      George V. N. Baldwin, for the respondent.
   Barrett, J.:

The precise question here presented is whether the alimony allowed to a married woman, by the final decree granting her a divorce, can be reached by creditors whose claims and judgments ante-date such decree.

The facts are these: In July, 1888, this court rendered judgment in favor of Mrs. Chauncey and against her husband, granting her a divorce a vinculo and awarding her alimony. In 1889 the plaintiff was appointed receiver of Mrs. Chauncey’s property by a New Jersey court, upon a judgment recovered against her in that State, in the year 1884. This action is brought to reach the alimony payable to Mrs. Chauncey under the decree of this court, and to require Mr. Chauncey to pay it over to the plaintiff monthly until the judgment under which he was appointed, is fully satisfied. Mr. and Mrs. Chauncey demurred and their demurrers were overruled at Special Term. '

We think this action cannot be maintained. The alimony awarded to Mrs. Chauncey cannot be regarded as an ordinary debt due by ■one person to another, which may be reached by judgment creditors in the ordinary way. The nature of alimony must not be overlooked. It is not the wife’s property nor her separate estate. It is simply a provision compulsorily made for her support by the guilty husband. The law thus enforces the obligation assumed by the husband at marriage, and the alimony becomes a substitute for the maintenance, which is the wife’s due and which she would receive, directly from the husband and in his home, but for the dissolution of the marriage contract by reason of his infidelity. This was the doctrine of the common law, and the rule was substantially codified both in the Revised Statutes and the Codes of Procedure. At common law, alimony properly signified nourishment or maintenance, when strictly taken. (Godol. Ab., 508.) It was not a portion of the husband’s estate, assigned to the wife and subject to her control or to be sold at her pleasure, but a provision for her support, to be continued during their joint lives or so long as they live separate., (Martin, J., in Wallingsford v. Wallingsford, 6 Har. & J., 485.)

“Alimony,” says Mr. Bishop, “ is not a sum of money, or a specific proportion of the husband’s estate given absolutely to the wife; but it is a continuous allotment of sums payable at regular periods for her support from year to year.” (Bishop on Marriage and Divorce, § 591 [5th ed., § 427.]) “ If she is compelled,” he says again (§ 604 [5th ed., § 446]), “to seek a divorce on account of his misconduct, she loses none of her rights in this respect (that is, in respect to support), but she is to draw her mcmvtma/nce m a different way.” In Daniels v. Lindley (44 Iowa, 567), it was said that the claim of the wife for alimony was not in the nature of a debt, and that she was not a creditor of the husband. So in Guenther v. Jacobs (44 Wis., 354), Ryan, C. J., said that alimony is not an estate, and, therefore, not separate property of the wife. It is an. allowance for the nourishment of the wife, variable and revocable. (And see Burr v. Burr, 7 Hill, 207-213.) The language of the Code is equally explicit. “ The court may, in the final judgment dissolving the marriage, require the defendant to provide suitably for the education and maintenance of the children ■of the marriage, and for the support of the plaintiff, as justice requires, regard being had to the circumstances of the respective parties.” (Code of Civil Procedure, § 1759, sub. 2.)

The maintenance of the children of the marriage and the support ■of the wife are thus treated as obligations of a like character, to be ■.enforced, not as creditors enforce the contract obligations of their debtors, but by specially coercive proceedings looking not only to the sequestration of the husband’s property, but to compulsory payment from even his current earnings, and to imprisonment in case •of disobedience to -the judicial mandate. It is quite clear that the provision thus made for the wife’s support is non-assignable. The principle upon which policies of life insurance in favor of the wife were held to be non-assignable (Eddie v. Slimmon, 26 N. Y., 9; Barry v. Equitable Life Ins. Co., 59 id., 587; Barry v. Brune, 71 id., 261) applies with greater force to such a provision as that of .alimony. And what, it may be asked, could an assignee of alimony take ? Could he take a provision made for the support of the wife, payable from time to time in futniro, and determinable by the death, meantime, of either of the parties? And if he could take ■such a provision, will it be pretended that the assignment would ■carry with it the same right to enforcement, and the same remedies in that regard, which the law has afforded to the wife? The question carries with it the negative answer. We would not have deemed this question worthy of extended consideration but for some observations contained in the opinion of the court in Stevenson v. Stevenson (34 Hun, 157). That casó is, however, materially distinguishable from the present in this, that the judgment there was recovered subsequently to the decree of divorce. If the learned court had placed its decision solely upon the groimd that the creditor had furnished the wife with necessaries upon the faith of the alimony judgment, we would have no difficulty in following it unreservedly. For we think it reasonable that a provision made for the wife’s support should be charged with that very support furnished by a tradesman on the strength.of the decree. But further than this we are not prepared to go. To charge the alimony provision with a judgment, having no relation whatever to the wife’s support, would simply be to nullify the statute aud to permit the wife to starve, while the husband, instead of supporting her, is forced to pay her old debts. Two cases are cited in Stevenson v. Stevenson to sustain the proposition that the separate maintenance of a married women secured by her husband, they living-apart, may be reached by a bill in equity by the creditors of the wife. (Kenge v. Delavall, 1 Vernon, 326; Lillia v. Airey, 1 Ves. Jr., 277.) I have examined both of these cases and i find that they simply hold -that a wife’s separate estate is in equity chargeable with the debts contracted upon the credit of that estate. This is an old and familiar rule, and it, undoubtedly, affords countenance to the proposition that a tradesman may charge even alimony with debts for necessaries contracted upon the credit of the decree. The learned judge who spoke for the General Term in Stevenson v. Stevenson (Follett, J.), seemed to think that unless it could be shown that alimony was exempted by virtue of some statute, it could be reached by an ordinary creditor in the ordinary way. A ccordingly he discussed sections 1879 and 2463 of the Code of Civil Procedure with regard to exemptions in cases of express trusts, and he held that the alimony judgment did not come within such exemptions, as it did not create the semblance of an express trust.” I agree entirely with the learned judge in this latter conclusion, but I do not think it necessary here to find any statute of exemptions. If we are right in our view of the nature and character of alimony, then it is not a debt, and statutes with regard to exemptions have no applicability. Nor need we liken alimony to a trust fund in order to preserve it strictly for the purposes of maintenance. If necessary, we might appeal to public policy rather than to statutes of exemptions or statutes regulating express trusts. There are many instances where public policy stands between the creditor and the debtor and prevents the attachment of what is due the latter for his personal services. The rules which govern with regard to the salaries of public officers are familiar illustrations of this principle. If the law will not permit the salary of a public officer to be asssigned, attached or diverted from the purpose of support, it is certainly not because of any statute of exemptions. It is because the public service demands that the officer shall be capable of adequately performing his public duty. Public policy equally demands that a woman whose husband is bound to support her shall not become a public charge, and that the provision ordained by law shall be scrupulously applied to the single purpose for which it was intended.

Without considering the other questions presented, we think the interlocutory judgments should be reversed and the demurrers sustained, with costs to each of the defendants, both at Special Term and upon this appeal.

Yan Brunt, P. J., and Patterson, J., concurred.

Interlocutory judgments reversed and the demurrers sustained,, with costs to each of the defendants, both at Special Term and upon this appeal.


source: Caselaw Access Project

author: Barrett, J.:

license: Public Domain

text:
    In the Matter of the Estate of SOLOMON ADLER, Deceased. CAROLINE SCHWAB as Executrix of SOLOMON ADLER, Deceased, Appellant, v. I. RICHARD ADLER and Another, as Executors of SOLOMON ADLER, Deceased, Respondents.

      Surrogate — his decision, where executors do not agree as to the custody of property* is discretionary.

    The Code of Civil Procedure, section 2602, providing that, where two or more co-executors or co-administrators or testamentary trustees or guardians disagree as to the custody of money or property of an estate committed to their joint charge, the surrogate may give directions in the premises, intrusts the decision of such matters to his discretion, and the appellate court will not review his action unless there has been an abuse of discretion or a violation of justice.
    Appeal by Caroline Schwab, executrix of the last will and testament of Solomon Adler, deceased, from an order entered in the surrogate’s office of the county of New York on the 29th day of April, 1891, denying her motion that said sui’rogate should give directions concerning the custody of the money and other property belonging to the estate of Solomon Adler, deceased.

      Evarts, Ohoate db Beaman, for tlie appellant.

      T. G. Ennmer, for tlie respondents.
   Barrett, J.:

We think that the learned surrogate wisely exercised the discretion conferred upon him by section 2602 of the Code of Civil Procedure in denying this application.' It is quite evident that the funds of the estate are not in jeopardy, and that no practical good would be accomplished by subjecting them to the additional control ■of the appellant. The papers show a lack of harmony between the appellant and her co-executors, but nothing whatever to- justify any apprehension of mismanagement, misappropriation or danger to the ■estate. The appellant seems to think that the order applied for was substantially her legal right, and that she was not bound to show any special facts or circumstances calling for the exercise of the discretion conferred upon the surrogate by the section in question. At all events, the facts which she did show were ■entirely insufficient, and even these were either denied or explained. But, in her general view of what is essential successfully to invoke the discretion thus conferred, we think she is mistaken.

Section 2602 is new, and it was intended thereby to provide a summary remedy in cases where, prior to its enactment, the surrogate was powerless to interfere. Formerly the only remedy was in equity, and such remedy was limited to cases where mismanagement and misconduct jeopardizing the interests of the beneficiaries under the will were shown. Thus, in Burt v. Burt (41 N. Y., 46), it was held that a decree in favor of one executor, requiring his co-executor to place the securities which were in the latter’s possession, belonging to the estate, in the custody of a bank, and to deposit in such bank all money thereafter collected, to be drawn ■out only on their joint cheek, was not authorized by the fact that the co-executor maintained exclusive manual possession of such securities. It may be that under the wide discretion conferred by •this new provision the surrogate is not limited to cases within the rule thus laid down, but certainly it is not a matter of course to require such joint deposit. The applicant must still make out a case calling for the surrogate’s interference, and showing that the protection of her rights and interests, or of the rights and interests ■of others, require the favorable exercise of the discretion con-' ferred. With the exercise of that discretion we cannot interfere, ■certainly not unless it is apparent that it has been abused.

The appellant contends that the rules which govern on appeals from discretionary orders of the Special Term of our own courts are equally applicable to appeals from similar orders of the Surrogate’s Court. This, however, is not the case. It is true that on appeals from the Special to the General Term of our own court we are bound to review, upon the merits, all orders resting in discretion. (Hanover Fire Insurance Company v. Tomlinson, 58 N. Y., 216; Jemison v. Citizens' Savings Bank, 85 id., 546.) That discretion, however, is the discretion of the Supreme Court, whether exercised in one of its branches or in another. It is the same court and the same discretion throughout. But this rule is not applicable to appeals from another and a distinct tribunal such as the Surrogate’s 'Court. There our appellate authority is confined to errors of law or to matters of substantial right, which are not dependent upon the discretion of such other court. (Matter of Selleck, 111 N. Y., 289.) Where, as here, the Surrogate is expressly clothed with discretion, the utmost that can be claimed is that we may review his action so far as to ascertain whether “ there has been an abuse of discretion and a violation of justice.” (See opinion, Gray, J., page 290.) This cannot possibly be claimed in the present case. On the contrary, as suggested at the outset, we think the discretion was wisely exercised.

The order appealed from should, therefore, be affirmed, with costs.

Yan Brunt, P. J., and Patterson, J., concurred.

Order affirmed, with costs.


text:
    MARY D. SANFORD, Appellant, v. THE FOURTH NATIONAL BANK OF THE CITY OF NEW YORK, Respondent, Impleaded with Others.

      Demurrer — the plaintiff cannot maintain an action, claiming alternative relief against one defendant, if he fails as against cmother.

    A complaint in an action alleged that tlie plaintiff was tlie owner of certain sliares. of stock which, were stolen by the defendant Smith, who borrowed money upon the certificate representing such shares from the defendants Ferris & Kimball, that she had demanded the certificate of Ferris & Kimball, who had refused to-deliver it; and she demanded judgment that they do this or pay her its value. The complaint then stated that Smith’s firm deposited the money thus borrowed with the defendant, the Fourth National Bank, and demanded judgment that, if the plaintiff failed as against Ferris & Kimball, she should have judgment against said bank for the moneys so deposited.
    To this complaint a demurrer was interposed by the bank.

      Meld,, that no cause of action was stated as against the bank.
    That having elected to pursue the stolen property in the hands of Ferris & Kim-ball, the plaintiff could not have judgment against a third party for its proceeds.
    That there was no such thing known to the law as an alternative cause of action.
    Appeal by tbe plaintiff, Mary D. Sanford, from all that part of the decision of Mr. Justice Ingraham, rendered - upon tbe determination of tbe issue of law raised herein by tbe demurrer of tbe Fourth National Bank of tlie City of New York, defendant to tlie complaint, and to all-tliat part of the judgment entered thereon which finds that tbe complaint does not state facts sufficient to constitute a cause of action as against said defendant, the Fourth National Bank of the City of New York, which said decision was dated April 29, 1891.

      George W. Wingate, for the appellant.

      David Wileox, for the respondent.
   Barrett, J.:

The plaintiff, in substance, alleges that she was, on tbe 14th of November, 1890, tbe owner of 100 shares of the stock of the Adams Express Company; that on that day one Albert H. Smith stole tbe certificate representing these shares and borrowed money thereon from the defendants Ferris & Kimball, and that she lias demanded the certificate from Ferris & Kimball, but tbat they have refused, to give it to ber. Upon these averments she demands judgment tbat Ferris & Kimball be required either to deliver tbe certificate to ber or to pay ber its value.

Having thus formulated her case against Ferris & Kimball, she proceeds to state tbat Smith’s firm deposited tbe money which be so borrowed from Ferris & Kimball in tbe defendant bank, and on this latter averment she demands a further judgment tbat, in case she fails in ber action against Ferris & Kimball, tbe bank be required to pay ber tbe amount so deposited.

This novel complaint is sought to be justified and sustained by the frank avowal tbat tbe case is troublesome, and tbat tbe plaintiff is not quite sure bow she is “ coming out ” in ber action against Ferris & Kimball. So she thought it best to state all tbe facts and leave tbe court to work out for ber a safe result. This is carrying tbe “ plain statement ” heresy, begotten of tbe Code, that the plaintiff may simply tell bis whole story in bis own way and on it ask what be wants, to a somewhat grotesque extreme. Tbe difficulty is tbat the plaintiff has stated an apparently good cause of action against Ferris & Kimball. Tbat necessarily involves an election to pursue ber stolen property. She cannot bave both ber property and its proceeds. Before she could have any possible claim against tbe bank she was bound to elect, and if she -elected to follow tbe proceeds of tbe theft in the hands of a third party, she thus ratified Smith’s act in borrowing tbe money from Ferris & Kimball and acknowledged tbe latter’s title. But she lias ■done tbe very reverse of this, and consequently she has no cause of .action against tbe bank. At all events, there is no such thing known to tbe law as an alternative cause of action such as is here pleaded. The complaint must state facts constituting some present cause of .action against a defendant. It will not do for a plaintiff to say tbat in case of defeat, with regard to one cause of action pleaded against A, be will then (and not until then) bave another and different cause of action against B. Tbat is not a statement of facts constituting a present cause of action against B either at law or in equity. But further, tbe plaintiff has not even pleaded her doubts. In bis brief ber learned counsel says tbat ber right to attack tbe title of Ferris & Kimball to this certificate is a very doubtful question of law. But this expression of doubt is not predicated of any avermeqt in the complaint. Whether the certificate was feloniously or but fraudulently taken, whether it was,'in fact, negotiable or nonnegotiable, whether Ferris & Kimball obtained a good title to it or not, are all matters as to which the complaint evinces no uncertainty.. On the contrary, there is a clear, non-demurrable cause of action (prima facie) stated as against Ferris & Kimball. It follows that, no cause of action is stated as against the bank.

If, however, the plaintiff had not pleaded alternately, but had alleged the facts as to the loan and deposit as a present and distinct, cause of action against the bank, the demurrer would have to be sustained upon the second ground specified as well as upon the first. For in that case the two causes of action would have been improperly ¡joined, they being, as we have seen, inconsistent with each other,, and neither one affecting all the defendants.

The interlocutory judgment appealed from should, therefore, be-' affirmed, with costs.

Yan Brunt, P. JT., and Patterson, J., concurred.

Interlocutory judgment affirmed, with costs.


author: Patterson, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE STEINSON, Appellant, v. THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, Respondent.

      Mandamus — to compel the payment of the sala/ry of a teacher — mandamus is not a proper remedy against the Board of Education of New York city.

    Under the provisions of the consolidation act relative to the city of New York, chapter 410, Laws of 1882, a mandamus should not be issued against its Board, of Education, requiring that board to pay his salary to a teacher who had been removed from office by the city superintendent and subsequently, as alleged, reinstated by the State Superintendent of Public Instruction.
    At most, such applicant would, in a clearly established case, be entitled to a direction from the court that his name be put upon the pay rolls; without affecting the requirement that such rolls be subsequently approved and certified by the school trustees and inspectors, and thereafter be audited by the Board of Education and by the finance department of said city.
    A demand for a salary is one for the enforcement of which the claimant has his. action at law, and in such a case a writ of mandamus is not a proper remedy.

      Appeal by the relator, George Steinson, from an order entered in the office of the clerk of the county of New York, on the 13th day of January, 1891, denying his motion for a peremptory writ of mcmclamus, requiring the Board of Education of the City of New York to pay to him an amount of salary claimed to be due him as an assistant teacher in a grammar school in said city.

      E. M. Ilawltes, for the appellant.

      It. G. Beardslee, foi the respondent.
   Patterson, J.:

This is an appeal from an order denying a motion for a peremptory mcmdamtcs. The relator had been a teacher in a public school in the city of New York, and was removed from his position, but as he claims, restored thereto by the State Superintendent' of Instruction. He asks, in this proceeding, that the Board of Education be directed to pay to him a sum he alleged to be due as salary for a. period subsequent to his dismissal, but he did not ask for reinstatement in his place as a teacher. It would be sufficient to dispose of' this appeal by referring to the statutes respecting the powers of the Board of Education and the methods by which, under the by-laws of that board, enacted pursuant to the statutes, salaries of teachers, are to be paid.

They would show that the application in the first place, is misdirected as to the object sought to be accomplished. The Board of Education controls the expenditure of moneys raised for the support of public schools in accordance with the1 provisions of the consolidation act; but it does not actually disburse moneys for the payment, of salaries of teachers. On the contrary, the by-laws of the board require that salaries shall be paid on pay-rolls, which must have the approval of and be certified by the school trustees and the school inspectors of the wards and districts in which the schools are situated, and then those pay-rolls must be audited and certified by the Board of Education and the finance department of the city of New York. It would be impossible to grant the writ now applied for under the law and the regulations referred to. All that could be commanded in a clearly established case, and on the assumption that the relator was entitled to some direction by mandamus, would be that his name be put upon the pay-roll in order that'bis salary might be paid in the regular and usual way, and whether that application should be made against the trustees and inspectors is a question not necessary to discuss now.

But there is another and radical objection to the relator’s application. He claims to stand in the attitude of one adjudged, by the decision of the State superintendent, entitled to his place as a teacher in the public schools. His right and title he, therefore, assumes as being unassailable. All he asks for now is a mandamus to compel payment of salary; that is to collect money on a contract by ma/ndamus. His claim is nothing but a mere common-law demand, and it is quite a novelty to seek to collect a debt by the writ applied for. It is true that this court has decided that in a proper case mandamus will not be refused simply because an action for damages might lie. It was held in People ex rel. Livingston v. Taylor (1 Abb. Pr. [N. S.], 200), that a mamdamms is not to be denied only because a relator may have a remedy by action for damages; but that was a case in which the commissioner of jurors refused to strike from the list of jurors the name of a person who claimed and was entitled to exemption from service. It related only to a specific duty imposed upon a public officer. But here the writ is applied for as process to collect a debt. It amounts to that and nothing less. (People ex rel. Green v. Fernando Wood, Mayor, 35 Barb., 653.)

The granting of a writ of mandarrms is discretionary; a discretion to be exercised not absolutely or arbitrarily, but in ordinary cases only' when it appears that the relator is without any other adequate means to redress a wrong or maintain a right. When he has a remedy by action, mamdamus will be denied. (People ex rel. Tenth National Bank v. Board of Apportionment, 64 N. Y., 62; People ex rel. Lunney v. Campbell, 72 id., 496.) In the case last cited the court remarked that the relator had a clear legal right to sue for all damages he had sustained by reason of the refusal of the defendant, as commissioner of public works, to execute and carry out a contract which the relator claimed to be entitled to perform as the lowest bidder for the work; and it proceeded to say: “No rule is better settled by the decisions of the courts than that in such a case mandamus will not lie. (People ex rel. Perkins v. Hawkins, 46 N. Y., 9; Ex parte Lynch, 2 Hill, 45; Ex parte Fireman’s Ins. Co., 6 id., 243; Shipley v. Mechanics' Bank, 10 Johns., 484; People ex rel. Hackley v. Croton Board, 49 Barb., 259.) ” On the relator’s own statement of liis case his right to recover -his salary is regarded as settled; and without saying whether that claim is maintainable or not, we must consider it for the purposes of this application on the basis upon which he himself has put it. On his own showing he has an adequate and complete remedy by action.

The court below was right in the conclusion at which it arrived and the order must he affirmed, with costs.

Yan Brunt, P. J., and Barrett, J., concurred.


author: Yan Brunt, P. J.:

text:
    WILLIAM M. KINGSLAND, as Sole Surviving Trustee Under the Will of DANIEL C. KINGSLAND, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, and Others, Appellants.

      Evidence of value — the consideration, named in a deed is not — nor is a lease of adjacent premises — the reason for an expert’s opinion.

    In an action brought to recover the value of a bulk-head which had been taken by the city of New York, a witness, familiar with the locality, but whose knowledge of the circumstances attending the sales of bulk- head property therein was derived entirely from an abstract of title, was allowed to state the prices paid by the city for two other bulk-heads similarly situated. '

      Held, that this was not a proper method of proving value.
    That the consideration named in a deed is not competent evidence upon the question of the value of tire premises described in it.

      Peopleexrel. MayorY. MeQa/rihy (102 N. Y., 630), followed; Langdon v. Mayor (59 I-Iun, 434), distinguished.
    A lease of a pier, adjacent to the bulk-head in question, but of a much more valu- ’ able character, was admitted in evidence to show the rental paid for said pier.

      Held, that this evidence was improper, not simply because the pier was not similar to the one taken by the city, but also because the proper method of .proof was by the testimony of competent persons given under oath.
    A party has no right to cross-examine his own expert witness, with a view of placing before the jury the mental process by which the witness arrives at a given result; that privilege is reserved to his opponent in case he desires to avail himself of it.
    Appeal by the Mayor, Aldermen and Commonalty of the City of New York, the Department of Docks of the City of New York and Joseph Koch, Lucius J. M. Stark and James Matthews, comprising tiie Board of the Department of Docks of the City of New York, from a judgment entered in the office of the clerk of the county of New York on the 24th day of June, 1890,' in favor of the plaintiff for $146,190.56, after a trial at the New York Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $143,460.

      G. Blandy, for the appellants.

      W. W. MaoFarlcmid, for the respondent.
   Yan Brunt, P. J.:

The trial of this action was an assessment of the damages which the plaintiff had sustained by the appropriation by the defendants of certain bulk-head property or rights belonging to the plaintiff.

The jury found that the fair market-value of the plaintiff’s bulk-head, the subject-matter of this action, on the 1st of August, 1880, the time of the appropriation of said bulk-head by the city, was the sum of $90,000, and we are asked to set aside this verdict upon the ground, among others, that it is excessive.

One of the points of controversy during the progress of the trial was, as to the extent of the privileges which were conferred by the ownership of this bulk-head, whether under the act of 1858 its preferential use was limited to steamboat lines, or whether such preferential use included transatlantic and coastwise steamship companies.

It is undoubtedly true that when, this case was before the Court of Appeals upon a prior occasion that court seems to have held that under the act of 1858 such preferential use was not limited to steamboat lines, lessees of adjacent piers plying in the waters of the bay, Hudson river, East river, Long Island sound, the rivers emptying into the sound, Narragansett bay and the bays adjacent thereto, which are mentioned in the act, but that transatlantic and coastwise steamship lines were entitled to undisturbed facilities for the transaction of their business under the provisions of this act of 1858.

It is also true that in the course of the opinion of the learned judge who wrote in that case the words “ steamboats,” “ steamers ” “ and steamships ” are indiscriminately used, and that his opinion winds up with dhe statement that the plaintiff, as owner of this, wharf right, was entitled to the wharfage which it yielded, and such added value as its privilege of preferential use when leased to-the adjoining steamboat line would give it, but beyond that he had no other right as incident to his ownership. But the fact of the-value of this bulk-head to steamship lines was before the court and was discussed by the court, and it seems to have been the opinion of the court that it was properly considered in determining the-value of the rights of which the plaintiff had been deprived.

But from the record in this ease it is impossible for us to determine as to whether or not the jury took into consideration, in determining the value of the property taken, the preferential or exclusive use by transatlantic or coastwise steamship companies, because we find that they were charged that the act of 1858 gave no preferential use to transatlantic or coastwise steamship companies, and the court, refused to charge that the plaintiff was not entitled to compensation for any preferential use or exclusive use of said bulk-head by any transatlantic or coastwise steamship companies.

The question as to whether it was the intention of the Court of Appeals to construe the act of 1858, as giving to an adjoining transatlantic or coastwise steamship line with the owners of this bulk-head a preferential use of the same, can only be authoritatively determined by that court.

There are questions, however, raised by the admission of testimony, which seem to have worked injustice to the appellants. Upon the-examination of two of the witnesses called upon the part of the-appellants as experts, it was established that there had been private purchases by the city of bulk-head rights from certain persons named in their testimony, and in respect to one of the witnesses it was-shown that all his information was derived from the records. Subsequently one George S. Green, the engineer in chief of the department of docks, was called as a witness by the defendants to show the condition of the bulk-head in reference to two of the purchases-which were alleged to have been made by the city, and he testified in respect thereto; and the consideration mentioned in the deeds to-the city appeared in connection with his direct-examination. Upon his cross-examination the witness was asked the length of one of these bulk-heads and then what was the price paid for it. Upon redirect-examination the witness stated that he did not know the circumstances leading to the giving of that special sum of money; he did not recollect that. And when asked upon recross-examination whether the seller had a wharfage right and nothing else, he said he did not know. It is true that he stated that he did not know that the seller had anything else but a wharfage right; but it is evident that the witness was swearing to his conclusion without having any knowledge of the fact.

A motion was made to strike out the evidence of this witness as to the two purchases mentioned, upon the ground, amongst other things, that it was immaterial, and that there was no evidence before the court of the sum the city paid for those pieces of property; and this motion was denied.

We think this was error. It is evident, from the examination of the, witness, that he did not know what had been conveyed or whether any other rights were included in the deed or not. And it is further apparent that he did not know what the price paid had been. It seems to be established by the case of The People ex rel. Mayor v. McCarthy (102 N. Y., 630), that the sums inserted in deeds are no evidence of the actual consideration, and are not, in any view, competent evidence of value. The court say : “ No rule of law requires the true consideration paid upon a transfer of land to be inserted in conveyances of real estate, and it is within the knowledge of all conveyancers that the amount stated therein is often determined by fanciful, capricious and arbitrary considerations, which render it utterly unreliable as evidence of value. It. is frequently depressed by forced and unnatural sales, and as often ■enhanced by fictitious values, placed upon property transferred in exchange or deeded in settlement of disputed claims, or given from •consideration of affection, liberality and duty, and is at the best but the opinions of the grantors and grantees of its value, or a declaration of the value placed by them upon the property. Such prices have usually been held inadmissible as evidence of value in actions relating to property, for the reason that they are liable to be influenced by too many causes, aside from the actual value, to be regarded as competent evidence of that fact.”

“ The usual method, however, of proving value in legal proceedings is by the testimony of the witnesses expressing their opinions,, under oath, as to such value, based upon their knowledge of the subject-matter, and familiarity with the circumstances bearing upon the question.”

' It may be said that this view is in conflict with that expressed by this court in the case of Langdon v. The Mayor (59 Hun, 434), in which it was held that the reports of the dock department, in reference to purchases by the city, may be considered in determining the market-value of bulk-head rights similar to those at bar. But the proof in that case was in an entirely different condition from that which existed in the case at bar. The evidence offered was from the records of the city itself, showing not one or two, but a large number of purchases, at substantially uniform rates, this being proof which should have been considered upon the question of the market-value of the bulk-head involved in that action.

In the case at bar the witness was allowed to testify to the consideration, without knowing anything about it, that it had ever been paid, and without knowing actually what had been conveyed.

We think, when these facts appeared, the motion to strike out this testimony should have been granted, and it was error to allow it to be considered by the jury.

' The plaintiff to maintain the issues upon his part offered in evidence a lease of a pier at the foot of Charlton street, adjacent to the property in question, showing the rental paid for such pier. The introduction of this evidence was objected to and it was clearly improper, not only because the proper method of proving value in legal proceedings is by the testimony of witnesses expressing their opinion under oath, based upon their knowledge of the subject-matter and familiar with the circumstances bearing upon the question (People ex rel. Mayor v. McCarthy, supra), therefore, proof of individual transactions is not evidence in chief upon the question of market-value, but also because the pier property was of so essentially different character from the property under consideration that it afforded no criterion of value. Undoubtedly, upon cross-examination of a wdtness put upon the stand to testify as to market-value, questions may be put to him calling his attention to individual transactions for the purpose of testing the value of his opinion.

The objection taken to the question put to the witness Marshall, wben asked to explain in detail the reason why anybody should pay for such a bulk-head more than he could get out of it by collecting wharfage at statutory rates, should have been sustained. The plaintiff in attempting to prove the market-value has no right to cross-examine his own witness. He may ask him for his opinion as to its value ■ after having proved his capacity 'to testify as an expert; but he cannot call upon such expert for the grounds of his opinion or the mental process by which he arrives at that result. That is a privilege which is reserved to the other side upon cross-examination, if they desire to avail themselves of it.

In the case at bar, by means of this question, the witness was ■allowed to inject into the evidence an argument upon the question of value, and the expression of opinion upon hypothetical subjects, and from which it appears that considerations entered into his mind in reference to the use to which this pier could be put which were precisely contrary to the decision of the Court of Appeals in this identical case. He says: “ If there is no shed on the bulk-head a float or pontoon can be constructed and placed there for the storage of that property — the storage that is in bond and the reception of it out of bond; it can be towed immediately alongside the vessel and discharged over the side of the vessel.”

As we understand the decision of the Court of Appeals in this case, this bulk-head cannot be used for any such purpose. It does not make any difference whether the shed is floating or permanent. The right to use it for the purpose of storage does not exist. And this witness was allowed to inject into the case the very elements in the consideration of damages which the Court of Appeals said was not an element which might be considered.

There are other exceptions which might call for consideration, but we think that those to which attention has been called are of ■such a character as seriously affected the rights of the defendants, ■and call for a new trial.

The judgment should be reversed and a new trial ordered, with ■costs to appellants to abide the event.

Daniels AND LambeRt, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the ■appellants to abide event.


author: Baetlett, J.: Barrett, J.

text:
    ARTHUR J. CONNELLY, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

      Midence — a physician, testifying as an expert, cannot give an opinion, upon the physical condition of a patient, based in part upon the testimony of witnesses.

    Upon tlie trial of an action for personal injuries alleged to have been sustained by tiie plaintiff, a physician testified that he first saw the plaintiff about two weeks after the accident, and that he was then suffering from meningitis. He then stated that he had heard the plaintiff’s testimony given upon the trial as to the manner of the accident, and was allowed to testify that the injuries received in the manner described by the plaintiff were quite sufficient to produce the results discovered by the witness upon his examination of the plaintiff.

      Held, that the testimony was improper and should have been excluded.
    That an expert witness should not be permitted to give an opinion based upon facts testified to by others, but must, if required, give the precise state of facts, as he supposes and believes such facts to be, upon which he rests his opinion, or must give his opinion in answer to a question stating such facts.
    Barrett, J., dissenting on the ground that the plaintiff’s testimony as to the manner of the accident would admit of but one conclusion as to how it happened.
    Appeal by the defendant, The Manhattan Railway Company, from a judgment entered in the office of the clerk of the city and county of New York on the 20th day of December, 1889, in favor of the plaintiff, after a trial at the New York Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $10,000 ; and also from an order denying its motion to set aside the verdict and for a new trial entered in said office on the 6th day of January, 1890.

      Bramard Tolies, for the appellant.

      Ghaimeey Shaffer, for the respondent.
   Baetlett, J.:

There is evidence enough in this case to sustain the judgment, and I should be in favor of affirmance were it not for an error which it seems to me was committed by the learned trial judge in the admission of testimony. Dr. Adolph M. Lesser was examined as a witness to prove the extent and nature of the injuries sustained by the plaintiff. He testified that he first saw the plaintiff about a fortnight after the accident and found him then suffering from meningitis. Tiie witness was then asked by Mr. Shaffer, who repre■sente'd the plaintiff upon the trial, to what lie attributed this Meningitis. This question was objected to by the defendant’s counsel on the ground that it allowed the witness to accejfi or reject such facts as he saw fit, and because the form of the question was improper, and the opinion of the witness should be asked on facts stated, it being admitted that the witness had no knowledge of the pla.int.iff until after the accident. The objection was overruled and the defendant’s counsel excepted, and the witness answered: “ I have heard a portion of the plaintiff’s testimony.” What next followed is shown by this extract from the appeal book:

“The plaintiff in this case claims to have been thrown down in a car of the elevated railroad, on his back. Did you hear his statement of the manner in which he was thrown down? A. Yes, sir; I heard that.”

Thereupon the court put the following question:

“ Q. Were those injuries, received in the way in which he lias stated, sufficient to produce the results and conditions you discovered on your examination.”

Counsel for defendant objected to the question on the ground stated to the question put by Mr. Shaffer to the witness. The court overruled the objection and counsel for defendant duly excepted.

“A. It was quite sufficient to produce that injury; to produce meningitis. It was quite sufficient to produce Mr. Connelly’s difficulty.”

The witness then went on to say that meningitis was a progressive disease, and there can be little doubt that his testimony on this subject tended to augment the damages awarded to the plaintiff.

I do not see how the evidence thus admitted can be distinguished from that which led to the reversal of the judgment in Page v. Mayor (32 N. Y. State Rep., 563) and The People v. McElvaine (121 N. Y., 250). The objection to the question allowed to be answered was that it permitted the witness to assume for himself, from the testimony of the plaintiff, the facts upon which he based his opinion, without informing the jury what he supposed or believed such facts to be. No doubt it is not an uncommon practice in examining medical witnesses to ask them whether they have heard the testimony of the person who has deposed to the circumstances under which injuries were received, and if he answers in the affirmative, to inquire as to. his opinion upon the testimony so given. This practice, however, which is usually resorted to for the purpose of facilitating the progress of the trial, can only be justified where no objection is made. The party against whom the evidence is offered is entitled, if he so desires, to have an explicit statement made to or by the expert witness of the precise state of facts upon which his opinion is based ; and it seems to me clear that this rule was disregarded in the admission of the evidence to which reference has been made on the trial of the case at bar.

For these reasons I think we ought to reverse the judgment and order a new trial.

Yan Brunt, P. J., concurred.

Barrett, J.

(dissenting):

This case took a somewhat unusual turn at the trial. It is an action for damages for a personal injury to the plaintiff while a passenger on one of the defendant’s cars. The injury resulted from a collision of two trains upon the defendant’s elevated railroad at Seventy-sixth street and Third avenue, in this city, on the 12th of March, 1888, the day of the “ great blizzard.” The defendant, in its answer, denied the fact of the collision and all charges of negligence. Upon the opening of the trial, however, it asked leave to amend its answer so far as to admit the collision. It also admitted that the fact of such collision, of itself, entitled the plaintiff to recover damages, and it asked leave to further amend its answer by setting up “ the affirmative defense that the accident happened, notwithstanding the exercise of the highest degree of care on the part of the defendant; that it was an unavoidable accident within the meaning of the law, and was attributable to what is known in the law as an act of God, and could not be prevented by the exercise of that degree of care which the law required of the defendant under the circumstances existing at the time the accident happened.” This motion was granted, and the court allowed the answer to be amended accordingly. The case was then tried upon the theory that the affirmative was upon the defendant except as to.v the amount of damages. Accordingly, the plaintiff contented himself with proving the fact of the injury and the damages resulting therefrom. Thereupon the defendant took up the burden which it had thus imposed upon itself and gave testimony tending do support the affirmative allegation which we have quoted. When it rested, the plaintiff gave some testimony tending to contradict or explain the defendant’s evidence, and thereupon the whole case was submitted to the jury, who found for the plaintiff with $10,0Q0 damages.

The defendant’s first point is that it established the fact that the accident was unavoidable and could not have been prevented by the exercise of that degree of care which the law required of it under the existing circumstances, and that, therefore, it was entitled to the direction of a verdict in its favor. We have read all the evidence with great care, and we do not think that this contention is well founded. There was, in our judgment, enough to go to the jury upon these questions. The appellant has presented an able and exhaustive argument in support of this contention, but we think it was competent for the jury, upon the whole case, to say that the self-imposed burden had not been fully met. It was, indeed, a fearful day, and the defendant was entitled to, and doubtless received, the full benefit of this consideration. The storm, howevér, did not absolve the defendant from its duty to exercise that degree of care which the circumstances called for. It rather demanded more than ordinary vigilance and vigor. W e think it was proper for the jury to consider several circumstances tending to show a want of proper -care. The car in which the plaintiff was standing at the time of the collision was blocked at the Seventy-sixth street station. It had been standing there for twenty minutes. One of the defendant’s rules is that “ when trains are blocked, agents will immediately notify the entire line, display the card£ Line Blocked,’ and sell no tickets unless passengers insist oii purchasing.” Was this notice given? If not, why not ? And if given, why was a train permitted to proceed, from the Eighty-fourth street station, in the direction of this “ -block ? ” Why, at least, were the engineers of that train not notified of the “ block ” and ordered to proceed from Eighty-fourth -street slowly and with care, instead of being directed to skip the Seventy-sixth street station ? These are questions which naturally and properly suggest themselves. But they are entirely unanswered by any testimony offered, by the defendant. Tlie jury had a right to consider the absence of such testimony when they were asked to believe that the defendant had done everything in its power to prevent the collision. The defendant seems to think that its responsibility rested solely uppn the manner in which the colliding train was run. But it was also called upon to exercise due care (regard being had, of course, to the exceptional circumstances with which it was dealing), in the dispatch and movement of its trains. Then, as to the running of the colliding train, we think it was for the jury to say whether the engineers did their full duty in the premises.

Upon the testimony of these men the claim is made that every possible agency was brought to bear to prevent the accident, and that the train failed to respond to the brakes and the sand solely because of the down grade and the extraordinary condition of the tracks. It appeared, however, that the down grade stopped between Seventy-ninth and Seventy-eighth streets, and that from a point about twenty-five feet north of Seventy-eighth street down to the Seventy-sixth street station, and somewhat beyond it, was entirely level. Considering this fact and also the great force with which the colliding train was driven into the standing ear, the jury were justified in doubting the entire accuracy of the testimony given by these engineers, and in attributing the collision to the rate of speed at which the train was run, to the neglect of the engineers to observe the train standing in front of them sooner than they did, and to their failure to apply the brakes in due season. The great momentum attending the collision and the fact that the engineers had been ordered to pass the Seventy-sixth street station without stopping, certainly give color to these considerations. When, in addition, we find that the engineers are not quite in harmony as to the rate of speed, and are contradicted by one of the plaintiff’s witnesses (Jacobs), who says that, notwithstanding the blinding and unparalleled storm, the train did not go slow, but “ at the same rate it always goes, the same as they go down every grade,” it is impossible to say that there was absolutely no question for the jury. The schedule time was twelve miles an hour, which is probably what Mr. Jacobs meant by “the same rate it always goes.” One of the engineers (Rhein) says they passed down the grade at not more than six miles an hour, and that, notwithstanding every effort and the use of every possible appliance, they were still going at the rate of four miles an hour when they struck the standing train. This, too, although a considerable part of the space traversed was upon a level. The other engineer (Ryan) says, on his direct-examination, that at the crest of the hill at Eighty-third street the train was going at between four and six miles an hour,” yet, on cross-examination, he testified that, the rate of speed while he was coming down from Eighty-fourth street to Seventy-sixth street was “ between about six and eight miles an hour, as near as I could judge.”

There were still other circumstances which might properly be considered by the jury. We need not go over them all. Suffice it to say that upon the whole we think the learned judge was right in denying the motion for a direction and in submitting the question to the jury. It was so submitted in a careful charge, the exceptions to which are not pressed further than by a general protest against the theory that the admission and amendment made at the opening of the trial shifted the burden of proof. But there can be no doubt that the defendant did assume this burden, and that the charge was entirely correct in the view taken of this admission and amendment. The statement in the charge, that the burden was on the defendant to show “that the collision could not have been avoided,” should be read in connection with what precedes and what follows. It is apparent that the learned judge conveyed no such idea to the jury as that the defendant was liable as an insurer. Tie qualified the expression above quoted by the reference to “ human care, skill and foresight,” which follows it. What preceded accentuates his meaning and renders it quite clear that the jury could not have misunderstood what he sought to convey. At one time he speaks as follows: “ You, therefore, see that the burden of proof has been shifted, and it is now upon the defendant, the railroad company, to satisfy you by a fair preponderance of evidence, that the contention that they make that this was not due to any act or neglect or omission or failure to perform the legal duty imposed upon them, that it was from no fault on their part or their servants that this injury resulted.”

This is again emphasized by the observation: “ I do not mean that you are to determine that question as to whether it could not be possible upon some view to have prevented the injury, but the test is whether the defendant company used all the skill and care and foresight that human beings ordinarily are endowed with and are called upon to exercise. If they have done that they have performed their duty.” It is plain that the jury could not have been misled by the expression objected to.

The remaining question relates to the admission of evidence. The defendant contends that it was error to permit the physicians who examined and treated the plaintiff to state the symptoms of which he complained when they were examining him with a view to diagnosis and treatment. . It has always been the rule to admit testimony of this character. (Greenl. on Ev., § 102; Phi. on Ev. [5th Am. ed.], vol. 1, pp. 147-150; Matteson v. New York Central R. R. Company, 35 N. Y., 491, 492.)

The patient’s “ complaints and representations of pain and suffering,” as was said in the last case cited, “ together with his appearance and conduct, necessarily formed the basis ” of the physician’s judgment. The rule to which the appellant refers, and which we think it misapplies, relates to similar statements — not in their nature mere exclamations of pain — made to non-professional witnesses. Such declarations have been finally excluded in this State. (Roche v. Brooklyn City and Newtown R. R. Company, 105 N. Y., 295.) In the latter case, however, a reservation is distinctly ■suggested with regard to statements made to a physician for the purpose of professional attendance.

The only serious question as to the admission of evidence is whether the physicians should have been permitted, without a hypothetical question, to state that the injuries received by the plaintiff were sufficient to produce the conditions which they discovered. The accident occurred, as we haye seen, on the twelfth of March. Prior to that time the plaintiff was a strong and healthy man. After the accident he suffered more or less for a week or two, when he went to his family physician, who) after an examination, decided that a specialist was required. Thereupon lie consulted Dr. Lesser. This was in the early part of April. Dr. Lesser testified that he found the plaintiff suffering from spinal cerebral meningitis, with •continuation of changes along the spinal marrow or spinal cord. lie was then asked to state the cause of such meningitis. This was objected to on the ground that the question “ allows the witness, to accept or reject such facts as he sees fit; that the form of the question is improper, and his opinion should be asked on the facts stated, and as indefinite and uncertain.” Although this objection was overruled the question was not answered, the witness simply-saying, “I have heard a portion of the plaintiff’s testimony.” We quote what followed from the case:

“ Q. The plaintiff in this case claims to have been thrown down in a car of the elevated railroad, on his back. Did you hear his. statement of the manner in which he was thrown down? A. Yes,, sir; I heard that.”

Thereupon the court put the following question :

Q. Were those injuries, received in the way in which he has. stated, sufficient to produce the results and conditions you discovered on your examination.”

Counsel for defendant objected to the question on the ground stated to the question put by Mr. Shaffer to the witness. The court overruled the objection and counsel for the defendant duly excepted.

A. It was quite sufficient to produce that injury; to produce meningitis. It was quite sufficient to produce Mr. Connelly’s difficulty.”

The question put by Mr. Shaffer to the witness was that which we have above-mentioned as to the cause of the meningitis.

While it would, undoubtedly, have been better to frame a. hypothetical question, we think it was not error, under the peculiar-facts of this case, to permit the question as formulated by the learned judge. The witness, it is true, stated that he had heard a portion of the testimony, but that portion, as appeared from the subsequent, answer, covered all that the plaintiff had testified to as to the manner in which he was thrown down. Now, there really was nothing-more in the plaintiff’s testimony on that head than the bare statement that owing to the shock of the collision he was thrown down upon his back. He remembered, and all he did remember was, that he had an umbrella in his hand when he fell; that that umbrella was found under his back after the fall and was then broken in the center; and that when he fell he struck something, but could not tell what. This was the entire story of the fall. It was neither disputed nor modified. No different version of the affair was given by any one. In itself it admitted of no possible misapprehension or varying hypothesis. It afforded no opportunity for accepting part of the testimony and rejecting such of it as the witness might, deem unreliable. If a hypothetical question had been framed, it would have amounted to nothing more than asking the witness to. assume that, owing to the shock of the collision, a man fell on his-back m a car with his umbrella under him and struck “ something.”’

Indeed, the reference in the question to his testimony was almost superfluous in view of the prefatory statement as to the plaintiff’s claims. It was equivalent to asking him Did you hear the plaintiff’s statément that he was thrown down, in a ear on the elevated railroad, on liis back % ” That was the substance of it, with the single addition of his having struck “ something.” It would be sacrificing substance to form to hold that such a question, under such circumstances, permitted the witness to usurp the functions of the jury, or to give conclusions based upon his own view of the facts. The simplicity of the single fact testified to by the plaintiff, and the impossibility of viewing such fact in any but one way, save the question from the condemnation of such cases as Page v. The Mayor (32 N. Y. State Rep., 563), and warrant us in sustaining the judgment, the case being otherwise free from error.

The question put to one of the physicians — In your opinion, is the disease from which the plaintiff is suffering likely to be temporary or permanent ? ”— was clearly objectionable and the ruling favorable to the question erroneous. The error, however, was not prejudicial, as the answer excluded any doubt, uncertainty or mere, likelihood. The physician declared that the disease was a permanent and progressive one and mevitahly fatal; that he based his opinion on a large experience in the same kind of cases, and from the fact that when the spinal cord is once diseased it can never recover itself.

The questions put to the non-professional witnesses were unobjectionable. They only called for the plaintiff’s appearance, movements, manner of walking, etc. This has always been allowed. The questions put to these witnesses being proper, the plaintiff is not responsible for an inadmissible remark made by one of them, such as that “ He looks to me like a physical wreck.” That was not called, for by the question and was improperly volunteered.

The damages were not, in our judgment, excessive. The plaintiff was severely and permanently injured. He was put to great expense, and his earnings have been diminished.

Upon the whole, we see no reason for disturbing the verdict, and the judgment and order apjiealed from should, therefore, be affirmed, with costs.

Judgment reversed and new trial ’ordered.


text:
    BERNHARD GINSBURG, Appellant, v. LENA KUNTZ as Executrix of JOSEPH KUNTZ and Others, Respondents.

      Undertakings — where a/n action is suspended by the death of a party, and sureties, excepted to before the death, fail after the death to justify within the statutory time, they are diseha/rged — withdrawal of exceptions after the death.

    The sureties upon an undertaking- given on an appeal from a final judgment, recovered in the City Court of New York by one Bernhard Ginsburg- against one Joseph Kuntz, were excepted to by Ginsburg. The last day for justification was May twelfth, for which day notice of justification was given. On May-tenth Joseph Kuntz died, and no justification took place at any time. After May twelfth, and before the action had been revived, the attorney who had acted for Ginsburg attempted to withdraw his exception to the sureties.

      Held, that such attempt was a nullity.
    That as the sureties did not justify on May twelfth, they were discharged under section 1835 of the Code of Civil Procedure, which provides that the effect of .such failure “is the same as if the undertaking had not been given.”

      Semble, that a withdrawal of exceptions or a waiver of justification, served after the action had been revived, and after the administratrix of Joseph Kuntz had been substituted as a defendant, would not prevent the sureties, who had not justified within the statutory time, being discharged.
    Appeal by the plaintiff Bernhard Ginsburg from a judgment entered in tlie clerk’s office of tlie county of New York on the 9th day of February, 1891, dismissing the complaint in this action after a trial before the court at the New York Circuit, a trial by jury having been waived.

      L. A. Gould, for the appellant.

      Jamies W. MoElMnney, for the respondents.
   Barrett, J.:

This action is upon an undertaking on appeal to the General 'Term of the City Court. The plaintiff excepted to the sureties. Notice of justification was then given, and such justification was adjourned, from time to time, until finally it was set down for the 12th of May, 1890. Upon the 10th of May, 1890, the defendant in the action died, and, consequently, the sureties failed to justify on the twelfth. Nothing further was done until the 23d of June, 1890, when the executrix of the deceased defendant was substituted .as appellant, and this was followed, in October of the same year, by the dismissal of the appeal for non-service of papers.

¥e have said that nothing further was done after the defendant’s death until the substitution of the executrix as appellant. An attempt, however was made on the sixth of June to withdraw the exception to the sureties by the service of a notice of such withdrawal. This notice was signed by the plaintiff’s attorney in the .suit, which was as yet unrevived, addressed to the attorneys who had acted for the defendant in that suit in his lifetime. These .attorneys at once replied to the notice, stating that the sureties had refused and failed to justify. This notice of June sixth was a complete nullity. The waiver of justification or the withdrawal of the exception was a step in the action, and it is clear that no step could be taken in the action, after the death of the defendant, until the appeal had been regularly continued and the legal representative of the defendant brought in. But even if the notice had been served over again after the substitution of the executrix, it would not have availed the plaintiff, for the reason that the failure to justify on the twelfth of May released the sureties upon the undertaking.. (Manning v. Gould, 90 N. Y., 476.) This case is entirely in point. There one of the sureties appeared upon the day appointed for the justification, and then, learning of the defendant’s death, refused to sign his examination, while the other surety, for the same reason, refused to appear. Here the sureties did not appear upon the twelfth of May, and did not then express their refusal to proceed. But this distinction is immaterial. The material fact is that they did not and could not justify. The ■defendant was dead, and, the justification being a step in the action, could not proceed until the revival of the appeal in due course. There is no provision of the Code to meet such a case, and the sureties could not have justified under any new or authorized notice after the substitution of the executrix as appellant. The stay of proceedings fell with the death of the defendant and the failure of the sureties to justify. And, further, the subsequent refusal of the sureties to justify was as effective, if such an expression of refusal were needed, as the refusal of the sureties in Manning v. Gould. For whether such refusal was expressed on the day appointed for the justification or on a subsequent day is certainly unimportant, as the defendant was dead on the earlier day. The plaintiff was at liberty to proceed upon his judgment immediately after the refusal to justify on the twelfth of May. Nothing stopped him thereafter, except the provisions of the law forbidding the issuance of an execution against a decedent’s estate without leave of the court. If a stay had been sought after the substitution of the executrix as appellant, such executrix would have been compelled to make a special application to the court, when a stay could have been granted to her upon proper terms. A new undertaking might then have been required, but certainly the old undertaking could not have been revived and made to serve as such security. ¥e have, no doubt, therefore, that by the force of section 1335 of the Code of Civil Procedure, as interpreted in the case cited, the sureties, having been excepted to and having failed to justify, were discharged of all liability under the undertaking.

The judgment appealed from should be affirmed, with costs.

Yan Brunt, P. J., and Patterson, J., concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE UHRIE, Respondent, v. THOMAS F. GILROY, Commissioner of Public Works of the City of New York, Appellant.

      Employment of honorably discharged soldiers — what is an employment on a “public work ”— a peremptory writ must not vary from the alternative writ of mandamus — chap. 464, Laws of 1887.
    Section 1 of chapter 464 of the Laws of 1887 gives a preference in employment to honorably discharged Union soldiers “in every public department and upon all public works of the State of New York and of the cities, towns and villages thereof.”
    Such a soldier was by a written notice appointed by the acting commissioner of public works of the city of New York inspector on the work of laying mains of the Standard Gas-light Company in said city, which notice stated that the appointee would be paid by said company. He was subsequently discharged.

      Meld, that the appointee was not employed in the general service of the “ Department of Public Works ; ” that his employment was limited to a particular purpose and to a special work ; that the statute did not require, in such a case, thai the appointee should receive continuous employment in the department after the special purpose for which he was employed had ended, and that the commissioner was not required to retain him.
    A peremptory writ must follow the terms of the alternative writ of mandamus ; and where an alternative writ requires the defendant to reinstate the relator “to the position of inspector of gas mains in your (the defendant’s) department,” while the peremptory writ requires said defendant to reinstate the relator “to the position of inspector on the work of laying mains or service-pipes by the Standard Gas-light Company in the city of New York, if said work of laying mains or service pipes by the said company is still being done or to be done,” the variance is fatal.
    Appeal by tlie defendant Thomas F. Gilroy, Commissioner of Public Works of the city of New York, from an order entered in the clerk’s office of the county of New York on the 7th day of May, 1891, directing that a peremptory writ of mandamus issue, directed to said Gilroy as such commissioner, requiring him to reinstate the relator, George Uhrie, to the position of inspector on the work of laying mains or service pipes by the Standard Gas-light Company in the city of New York, if said work of laying mains or service pipes by the said company is still being done or to be done.

      Wm. II. 0 lawk, corporation counsel, and Edwa/rd H. Hawke, Jr., for the appellant.

      Louis J. Grant, for the respondent.
   Patterson, J.:

This is an appeal by the commissioner of public works of the city of New York from an order directing that a peremptory writ of mandamus issue to reinstate the relator “ to the position of inspector on the work of laying mains or service pipes by the Standard Gas-light Company, if said work of laying mains or service pipes by the said company is still being done or to be done.” The order was entered after a trial had on the return of an alternative writ issued in November, 1889, by which the respondent was required, immediately on receipt of that writ, to reinstate the relator '“ to the position of inspector of gas mains in your Department, from which he was dismissed on January 26, 1889, or that you show cause why the command of this writ should not be obeyed,” etc. By consent of parties the jury was discharged from the consideration of the case, and the judge decided in favor of the relator, and subsequently; on the presentation of the record to the Special Term, the order now under examination was made.

The material facts developed on the trial are the following, viz. : The relator is an honorably discharged veteran of the War of the Rebellion; on May 1, 1888, he received an appointment, in writing, from the then acting commissioner of public works, as follows, viz.: '“You are hereby appointed inspector on the work of laying mains of the Standard Gas-light Company, by whom you will be paid, at the rate of $100 per month.” On January 26, 1889, he was relieved from service by the following notice, in writing: “You are hereby notified that your services as inspector on the work of the Standard Gas-light Company will not be required after this date.”

It will thus be seen that the employment of the relator was limited to a particular purpose and in connection with a special work. He was not taken into the service of the department of public works as a general employee to be assigned to duty anywhere or on any work as an inspector, but his employment was restricted to one particular thing, and no obligation rested upon the respondent to pay him a dollar or vary or transfer his service in any way. If he were a general employee as inspector, as the alternative, writ assumes, lie would come within the preference given by the act of 1887 (nothing is claimed under chapter 119 of the. Laws of 1888), but on the cessation of the work in connection with which he was first employed he could not have insisted upon being-retained to do other work. He had no right to continuous employment by the department when the special purpose of his appointment ended. There was neither an actual contract nor a presumed intention that such should be the case. The -work of laying the mains of the Standard Gas-liglit Company stopped in November, 1888, and then the relator was transferred to other work of inspecting the house service connections of that company; but that bound neither the city nor the company to keep him in that position. He was riot supplanted to make way for a person not a veteran, but on his removal one already in the general service of the department, was designated to do that work. There was nothing in the appointment which required his retention; he could not be put on the payroll of the department, for the city was under no obligation to him, and because he was allowed to do other work for a limited time for the Standard Company he did not acquire a vested right to do that other work continuously. The case of Matter of Sullivan (55 Hun, 285), on which the relator mainly relies, has no application whatever. It differs toto cáelo from this. Sullivan was a laborer engaged by the department of public works and paid by the city, and was not merely designated by the department and paid by a private corporation, as is the situation here. He was engaged in the public work.

There is still another réason why the order cannot be maintained. There is a fatal variance between the alternative and the peremptory writs. By the former the respondent was directed to restore the relator to a specific position as an employee of the department. The peremptory writ requires reinstatement as an inspector of special work, provided it remains to he done. It is a rule of law that the peremptory must follow the alternative writ (People v. Supervisors of Dutchess, 1 Hill, 50), although, in People ex rel. Green v. Dutchess and Columbia Railroad Company (58 N. Y., 152), where the authorities are examined, the broad statements of the text-writers are limited. What the relator demanded, and what was clearly set forth in his petition, and that. upon which issue was joined, related to his general employment by the department as an inspector. His affidavit recites: “ That on .May 3, 1888, deponent was duly employed in the Department ■of Public Works of the City of New York to serve as an inspector of gas-mains, and served in such capacity until,” etc. The answering affidavit of the commissioner sets forth that he did not discharge the relator from any position in the department as he was,not an ■employee of the department, etc., and then states the exact status of the relator as to the work. We think, the facts being clearly proven, the respondent was entitled to a dismissal of the writ, for the relator could not have accorded to him what he claimed. The peremptory writ gives him something radically different, and we ■cannot on a mandamus proceeding render judgment in favor of both parties.

The order must be reversed, with costs.

Yan Brunt, P. J., and Barrett, J., concurred.

Order reversed, with costs.


author: Barrett, J.: Patterson, J.:

text:
    In the Matter of the Judicial Settlement of the Account of Proceedings of GEORGE GREEN, as Executor of the Last Will and Testament of JOHN GREEN, Deceased.

      Will — when a devise vests — the force of the word, “ descendants ” -used in connection with a devise over.

    A testator by his will devised to his executors one-half of his estate as follows, to “ invest and keep invested the proceeds of any part thereof which shall be sold, to collect and receive the rents, income, interest, issue and profits of such one-half and to apply the same to her (his son’s wife’s) use during her life; and upon her death, I give and devise the same to and among the lawful descendants of my said son George Green, in the shares in which they would inherit from him under the laws of the State of New York.”
    •George Green was married at the time the will was executed and had one child ; but his wife dying before the testator, he, after the testator’s death, married again and had issue by such second marriage.
    A controversy having arisen between the children of the first and second marriages,

      .Held, that as, by reason of the prior death of the son’s wife, the trust estate in the executors never arose, the devise at once, upon the death of the testator, vested in the descendant or descendants of the testator’s son then in being, to wit, in the child of the first marriage. (Yan Brunt, P. J., dissenting.)

      That tlie use oí the -word “ descendants," as distinguished from the word “ heirs," was conclusive as to the testator’s intention; that the former word harmonized with the gift over, which was to take effect, not upon the death of the son, but upon that of the wife of the son.
    Appeal by Leroy D. Green, an infant and person interested in this accounting, by Rollin M. Morgan, his special guardian and his guardian ad litem, from that part of a decree entered in the office of the surrogate of the county of New York which overrules the exceptions, taken to the referee’s report herein, filed by Rollin M. Morgan, as special guardian for George H. Green and Leroy D. Green, infants, whereby said Rollin M. Morgan, as such special guardian, excepts to the report of the referee herein filed in the Surrogate’s Court and office on May 24th, 1890, in as far as said report finds that the thirteenth objection of Scott Lord, Esq., special guardian herein for John Green, to wit: “ That the infants, George H. Green and Leroy D. Green, have no interest whatever in the estate under the provisions of the will of deceased,” is well taken .and is, therefore, sustained; and that said infants are entitled to no part of said estate upon its distribution.
    And from that part of said decree which confirms the portion of said referee’s report excepted to as above stated.
    And from that part of said decree which orders and directs that George Green pay the half of the balance remaining in his hands, to wit: The sum of one hundred and fifty-nine thousand, one hundred and twenty-four dollars and ninety-five cents ($159,124.95), to the duiy appointed general guardians of John Green, upon giving the security required by law, or if there be no such guardian, that he pay said half into court by delivering it to and depositing it with the Chamberlain of the City of New York to the credit of said John Green.

      Rollin M. Morgcm and Eugene S. Ives, for Leroy D. Green, an infant, appellant.

      Seoit Lord, for John Green, an infant, respondent.
   Barrett, J.:

But a single question is presented by this appeal, and that question arises under the fifteenth clause of the will of the testator. This clause is as follows:

“ I give, devise and bequeath to my executors, the survivors and survivor of them and their successors, the other half of my real and personal estate, for the wife of my son, George Green, to invest and keep invested the proceeds of any part thereof which shall be sold, to collect and receive the rents, income, interest, issue and profits of such one-half, and to apply the same to her use during-her life; and upon her death, I give and devise the same to and among the lawful descendants of my said son, George Green, in the shares in which they wrould inherit from him under the laws of the State of New York.”

The parties have agreed upon the facts proved upon the hearing-below, and these facts are as follows :

“ The will was dated and executed December 1st, 1885. At that time George Green, the testator’s only son, was married to Susan M. Green, who was then alive. She died in 1886. Testator died in February, 1888. At the-time of testator’s death, John Green, an infant son of George Green and Susan A. Green, the first wife of George Green, was in being. After testator’s death George Green married again, and at the date of the accounting two children of George Green, born of his second wife, were living, the infants George H. Green and Leroy D. Green, and also the one child, John Green, by his first wife, born before the death of the testator.”

The question in dispute arises from the claim of the children of the second marriage to share with the child of the first marriage. The learned surrogate confirmed the report of a referee, who held that upon the death of John Green the devise and bequest of the one-half of his real and personal property took immediate effect and vested in the child of the first marriage. To this ruling the special guardian of the children of the second marriage duly excepted, and from the decree based upon such ruling this appeal is taken. We think the referee and the surrogate were right in the construction given to the clause of the will in question. The use of the word “ descendants,” as distinguished from “ heirs,” is> here conclusive of the testator’s intention. That word would seem to have been used advisedly, for it harmonizes with the gift over to take effect upon the death of the son’s wife, not upon the death of the son. It thus contemplates the possibility of the son’s outliving his wife, and it declares as plainly as language can that upon her death the estate should vest in those who had issued from that son;. No person can be the heir of a living person, but a person whether living or dead may have descendants. Consequently, the expression, was apt, whether the testator’s son died before or after his wife.. The period of distribution here being, as we have seen, the death, of the son’s wife, the beneficiaries included all of the son’s children, who should come into being before such period. At that period,, however, the estate absolutely vested (Tucker v. Bishop, 16 N. Y., 404), and it necessarily so vested in those then answering to the-description of “ descendants.” Indeed, even the use of the word “ heirs ” would not have affected this construction if the will had expressly provided for distribution in the lifetime of the son ; and it is. even doubtful whether the use of the word “ heirs ” in the will as it. stands would have affected the result. For it has been held that a devise to the heirs of A, who is stated in the will to be now liming, would indicate, with sufficient certainty the persons intended. Tlii's description would plainly refer to such persons as were at the time heirs apparent to A, those who would be his heirs if he should then die. (Heard v. Horton, 1 Den., 168.) And in Campbell v. Rawdon (18 N. Y., 416) this language was used: “As no one can be the heir of a living person, and as the persons who will be heirs are uncertain while the ancestor lives, a devise to them as. heirs, in the proper sense of the term, it is said, cannot take effect, and is, therefore, void. This is obviously so if the devise be of a. present estate, which must vest, if ever, as soon as created. There-being no determinate object of the bounty or ascertained person to-take the devise, the attempt to create the estate of necessity fails. It is for this reason that limitations in wills in favor of the heirs of a living person, and recognized in the will as living, have been construed to mean appointments in favor of the children of the ancestor named or his descendants, or the particular persons who-would be his heirs if he were then dead.”

The appellant relies mainly upon the case of Cushman v. Horton (59 N. Y., 149). There the bequest over was “ to the lawful heirs of my brother Medad II. Frisbie in equal proportions,” and it was held that this legacy did not vest until, upon the death of Frisbie, it was determined who were his heirs. This decision rested upon the entire absence of any circumstances disclosed in the will in favor of the testator’s having used the word “heirs” in a special and limited sense. “Unless, therefore,” said Johnson, J., “the court is prepared to say it will determine such a question upon mere conjecture, it must necessarily hold that, the testator has employed the language in question in its primary and legal sense.” It was conceded that the courts had been astute to find grounds to sustain the secondary interpretation of the word “ heirs ”— that is, its use in the sense of “heirs apparent” — in order to carry out what was indicated to be the intent of the testator. Illustrations were there given of cases where it was provided that the persons designated as heirs should take during the lifetime of the persons whose heirs they are called, or where, as here, provision had been made in the will for the person to whose heirs the devise was made. In that case Medad H. Frisbie was not named or referred to in any other part of the will, and no provision was therein made for him. It was thus a naked bequest to the lawful heirs of a designated person, and it was held that thus a legal interest was created in the exact form in which the testator had expressed himself. The reasoning in that case thus fully supports the construction given to the clause of the will under consideration. George Green, the son, was here adequately provided for by the bequest of one-half of the estate, and the word “ descendants,” as distinguished from the word “heirs,” was selected to exjn-ess his father’s intention with respect to the vesting of the other one-half.

We think, therefore, that the decree of the surrogate was right, and should be affirmed, with costs to both parties, payable out of the fund.

Yan Brunt, P. J., dissenting.

Patterson, J.:

I concur in the affirmance of the surrogate’s decree. The time of the vesting in possession of the gift over of the one-half of the residuary estate was by the express terms of the will at the death of the testator’s daughter-in-law, and not that of his son. She having died during the testator’s lifetime, and the trust estate in the executors never having arisen, the title vested in the descendant or descendants of the testator’s son then in being. (McLean v. Freeman, 70 N. Y., 85; Campbell v. Rawdon, 18 id., 412.) The appellant’s counsel admits that to construe the residuary clause as he does the words upon her death ” must be eliminated from it. To do so would be to expunge that which is the most important factor of all in the solution of the pending question. It was evidently the intention of the testator, when the will was executed, to fix that event as the fact upon and the time at which the ultimate interest or estate in the one-half should vest in possession ; and the court will not arbitrarily adopt another contingency or another time simply because, in the light of subsequent events, it thinks that if the testator had anticipated them he would have made a different disposition of his property. If anything could be spelled out of this will, in the light of surrounding circumstances, which indicated that the testator intended to postpone the vesting of the estate until the death of. the son, we would be very glad to find it, and prompt to act upon it. Nothing is really claimed to have that effect, but the use of the plural “ descendants ” and the gift over in shares according to the statute of New York. It cannot be inferred from this that the testator contemplated a second marriage of his son and issue of that marriage. He survived his daughter-in-law (for whom the life interest was designed), more than two years and made no change in his will. We are not to presume that he did not understand what would be the legal effect of this fifteenth clause after the death of his son’s first wife; on the contrary, he is to be regarded as knowing it; • and he having made no alteration in that clause, the construction given by the surrogate and the referee was right.

. Decree affirmed, with costs to both parties, payable out of the fund.


text:
    In the Matter of the Judicial Settlement of the Account of WILLIAM T. A. HART and Another, Administrators of ARCHIBALD JOHNSTON, Deceased.

      Exeeutors and administrators — duty of, in respect to a fraudulent transfer made by the decedent — objections filed against an account■ — amendments thereto mmo pro tunc.
    In proceedings taken in a Surrogate’s Court for tlie settlement of tlie accounts, and tlie discharge of certain administrators, it appeared that the intestate had been insolvent for years prior to his death, to the knowledge of the administrators, and that three years before his death the intestate had conveyed to a third person, for a nominal consideration, an apparently valuable interest in a leasehold estate; that the third person, upon the same day and upon a like consideration, conveyed this interest to the wife of the intestate.

      Beld, that it was the duty of the administrators to take legal proceedings to recover the property, upon the ground that it had been disposed of in fraud of the creditors of the intestate, and that, they having failed to do so, it was error for the Surrogate’s Court to discharge them as administrators.
    The account of an executor or an administrator, and the objections filed against it, constitute, in a Surrogate’s Court, the pleadings in the matter, and the party objecting is bound to file proper objections if he desires to have them considered.
    Where proper objections have not been filed the appellate court, although it may have power to amend them nunc pro tuna in support of a decree, will never do-so in order to justify the reversal of the decision below.
    Appeal by Hugh Langan and Andrew Langan, composing the firm of “Langan Bros.,” creditors of Archibald Johnston, deceased, intestate, from a decree entered in the office of the surrogate of the county of New York on the 29th day of December, 1890, judicially settling the accounts of William T. A. Hart and David B. Johnston, as administrators of said Archibald Johnston, and directing a distribution of his estate;

      W. G. Reddy, for Langan Bros., creditors, appellants.

      Merritt <& Terry, for William T. A. Hart and another, administrators, respondents.
   Yan Brunt, P. J.:

The appellants claim that the referee erred in not considering claims which the creditors attempted to establish as against the administrators, which were in no way referred to in the objections which they filed to the administrators’ account. In these proceedings the account and the objections thereto form the pleadings; and the obj'ector to an account is as much bound to set up in such objections any claims which he proposes to make against the administrator as the defendant in an action is bound to set up in his answer any •claims which he proposes to urge against the plaintiff. Therefore, the question as to whether the respondents were rightfully entitled to claim a one-half interest in the leasehold property was not before the court.

It is urged that this court upon appeal may amend the objections nuno pro tuno in order that this claim might be considered. But the court never amends pleadings nuno pro tunc for the purpose of reversing a judgment, but only for the purpose of affirmance.

There is one item, however, in this account in respect to which it seems to us that the court erred. It appeared that Archibald Johnston, who died in August, 1889, was for years prior to his decease insolvent, and that the administrators had knowledge of his insolvency. It further appeared that in 1886, for a nominal consideration, he conveyed to one Harris an interest in this leasehold estate, which Harris upon the same day conveyed to the wife of said Johnston for a like consideration. Johnston being insolvent at the time of this conveyance, the same was a fraud upon his creditors if the lease was of any value whatever; and it would appear from the transactions had by the administrators, in respect to other interests in this lease, that it was valuable. Hnder these circumstances it certainly was the duty of the administrators to take proceedings to recover this property which Johnston had disposed of in fraud of his creditors. This the administrators, with full knowledge of these facts, failed to do, and it seems to us that they are chargeable with neglect of duty.

The referee found in his opinion that the administrators were not thus chargeable apparently upon the case of O’Conner v. Gifford (117 N. Y., 275), although the record does not contain the opinion which it is stated the referee rendered upon making his report. But the case cited differs entirely in its essential facts from the one at bar. In that case the executor met the claim of negléct by showing the solvency of the testator and that the property was in possession of another party at the time of the death of the testator, who was the residuary legatee, the claim being made that it had been given by the testator. The executor believing the property to belong to the estate, stated the facts to his counsel, and was advised by him that he could not recover the property or its proceeds; and there was no claim that either the executor or the counsel did not act in entire good faith. It was held that the executor should not be charged with the value of this property.

In the case at bar, however, the estate was insolvent. The gift was made at a time when the administrators knew the intestate to have been insolvent, and that, therefore, it was a fraud upon the creditors. They were in possession of all the facts necessary to establish the fact of fraud. Under these circumstances it seems to us that the administrators did not fulfill their duty, and that they were bound to show some reason other than that which appeared before the referee for their failure to collect this claim.

We think, therefore, that for this error the decree of the surrogate must be reversed, and the proceedings remitted to the surrogate for further action; costs of this appeal to the appellants to abide the final event.

Barrett and Patterson, JJ., concurred.

Decree reversed and proceedings remitted to the surrogate for further action; costs of this appeal to the appellants to abide the final event.