author: Babrett, J.: Van Brunt, P. J.:

text:
    EMILY O. BUTLER and Others, Respondents, v. ANDREW H. GREEN and Others, as Executors and Trustees of WILLIAM B. OGDEN, Deceased, Appellants.

      Will — disposition of real property situate in a foreign State — equitable conversion— diseretiona/i'y power to sell given to executors — a failure to reinvest the proceeds — lex loci rei sitm — money repi’esenting sales of land in foreign States.

    ■William B. Ogden died in the city of New York possessed of personal property, and also of a large amount of real estate situate in the States of Illinois and New Jersey, leaving a will by which the title to all his property was vested in his executors and trustees for certain purposes, for two lives in being, and thereafter the estate was devised to the same parties who were the beneficiaries under the trust. He authorized his executors and trustees to sell from time to time, in their discretion, such parts of his lands as they deemed advisable, and they were directed to treat the whole property'as divided into a certain number of shares, and to pay over the rents and profits and the proceeds of any sales of real estate which they did not think it advisable to reinvest to the beneficiaries named in the will.
    One share and a half was devoted to “charitable uses,” to be selected by the executors and trustees; and a portion of this, in the alternative, was to be given to needy heirs. The executors and trustees sold lands in Illinois and New Jersey, and deposited in a bank in New York, and mingled with other moneys of the estate, a sum of money_ which represented the share and a half set apart for charitable uses.
    The bequest to charitable uses, although void in New York, was valid in Illinois and New Jersey.
    In an action brought by certain of the next of kin to reach this fund arising from the sales of land in Illinois and New Jersey, in which it was alleged that Ogden died intestate as to it:

      Held, that the action was not maintainable.
    That the intention of the testator, as it appeared from the will, must govern, and that the will must be construed as the estate existed when the testator died. That, by the terms of the will, there was no equitable conversion of the real into personal property at the death of the testator, and that no such direction would be implied.
    That a discretionary power to sell, given to executors and trustees, could not have-such an effect.
    That when they sold land under the power the proceeds still remained real estate. That, as a general rule, the doctrine of equitable conversion was properly applied to sustain bequests, and not to invalidate them.
    That the fact that, after selling, the executors and trustees had not again invested the proceeds, did not change the property from real to personal estate.
    That the question of conversion should be determined by the laws of Illinois and New Jersey, and not by the laws of the State of New York, and that the lex loci rei sitm governed.
    That where, in such a case, the money representing the property sold is brought into the place of the testator’s domicile the foreign law must be applied to determine its disposition.
    That the trusts which were valid in the other States were valid in New York, as to the proceeds of sale of lands in such other States.
    That the trusts which were void under the laws of the State of New York were void only as to real and personal property situate in that State.
    Appeal by the defendants, Andrew H. Green and Marianna Ogden, as executors of and trustees under the will of "William B. Ogden, deceased, and by Emily O. "Wheeler, individually and as executrix of Emily B. "Wheeler, deceased; Julia W. Tiffany, Eleanor W. McClurg, Caroline "W. Schwab, Laura Wheeler, William O. Wheeler, Frances E. Ogden, individually and as trustee under the will of Mahlon B. Ogden, deceased, for William B. Ogden, Bernon Ogden and Frances W. Bradley; William B. Ogden, Anna O. West, Caroline O. Jones, James S. Norton and Louis B. McCagg, as trustees under the will of Caroline O. McCagg, deceased, for Louis B. McCagg; -Caroline O. Jones and Frances O. Jones, as trustees under the will of Caroline O. McCagg, deceased, for Alexander 1VL Jones, Julia Ii. Jones and William E. Jones, children of William O. Jones, deceased; Caroline O. Jones, Mahlon O. Jones and James S. Norton, as trustees under the will of Caroline O. McCagg, deceased, for Mahlon O. Jones, from the judgment of the Supreme Court in this action, entered, after atrial at the New York Special Term, in the office of the clerk of the city and county of New York on the 8th day of January, 1892, construing certain parts of the will of William B. Ogden, deceased,

      D. G. Hollins and Mornay Williams, for the executors, other than W. O. Wheeler, appellants.

      William Allen Butler and Willard Parker Butler, for plaintiffs, respondents.

      Frederic Jesup Stimson, for W. O. Wheeler, respondent.

      Edward W 8. Johnston, for Alexander McKay Jones, respondent.

      D. Seymour, for E. B. Sheldon, respondent.
   Babrett, J.:

Although the record and briefs are quite voluminous, the practical question presented upon this appeal is in a narrow compass. That question is, has intestacy resulted as to certain moneys which the testator’s executors have derived from the sales of lands in the States of Illinois and New Jersey, which moneys have been brought into this State and here mingled with other moneys of the estate ?

Mr. Ogden died in this city, and as to the personal property of which he was then possessed the law of his domicile governs. All questions with regard to his real estate must, however, be determined by the lex loci rei sites. It appears that Mr. Ogden in his will made certain provisions for charitable uses which are invalid under the laws of this State, but which are valid under the laws of Illinois and New Jersey. He left real and personal property in this State, and a large amount of real property in the States of Illinois and New Jersey. A part of the real property in these other States having been sold by the executors under a discretionary power conferred upon them by the will, and the proceeds applicable to such charitable uses having been brought into this State and. mingled here with other moneys of the estate, the plaintiffs claim that the lex loci rei sitae no longer governs, and that the law of the domicile should now act upon these moneys as personal property illegally bequeathed.

The solution of this question depends primarily upon the intention of the testator. Did he purpose that the attribute of his real property in Illinois and New Jersey should depend upon the will of his executors ? The presumption in general is, that a testator does not intend the nature of the property to depend ujion the option of the person through whom the conversion is to be effected-(Williams on Executors [6th ed.), Perkin’s note, 763.) We must,, therefore, look at the entire will to see if this presumption is, in the-present instance, rebutted. In the first place, we find that the title to all his property is vested in the executors and trustees for cei’taim trust purposes. They are to hold the property during a period not, exceeding two specified lives in being. Upon the termination of these two lives, the testator “ gives, devises and bequeaths ” all the estate so vested in his executors and trustees to the beneficiaries under the trust. Thus, these beneficiaries— even as to the property in this State — took a legal estate in the lands subject to the execution of the trust. (1 R. S., 729, § 61.) The lands are devised to the trustees for trust purposes, and upon the termination of the trust they go to the beneficiaries. The intention so far would seem to be to preserve the legal characteristics of the property throughout the trust period, and upon its termination to turn over the corpus in its original character. The ultimate devise, although the testator knew that the property might during the trust term be varied in fact, is specifically of the estate from which the executors and trustees “shall theretofore have received the rents, issues and profits.” Express authority is also given to the executors and trustees to hold, manage and take care of the devised property, to collect and receive the rents, issues and profits thereof; to lease any portion of the estate for any period not exceeding twenty-one years; to pay and discharge all taxes, assessments and mortgages thereon; to renew such mortgages; to keep the property in repair and, with the consent of the testator’s wife, to improve and develop it. They are also-authorized “ to sell and dispose, from time to time, in thevr discretion„ of such parts and parcels of the lands and premises, and of the other property devised and bequeathed to them, as they, or a majority of them, shall deem advisable.” They are directed, by the third article of the will, to treat all the property so devised and bequeathed to them as divided into twenty shares or portions, and at least once in each year, “ to use, apply and pay over all such rents, issues, profits and income thereof, and all net proceeds of sales made pursuant to the authority hereinbefore granted, which they shall not deem advisable to re-invest, and which may be available from time to time for distribution to legatees, to the persons and in the proportion following. Eighteen and one-half shares are given to individuals named, and the remaining one and one-half shares to such charitable uses as the executors and trustees may select, with the proviso that they may apply not exceeding one-half share out of this one and one-half shares, when not applied to charitable uses, to the use of all or any of the heirs who they may deem in need or worthy of and entitled to receive the same. They are, however, authorized to invest and reinvest the moneys arising from any such sales, and, as above pointed out, they are only to distribute the proceeds of such sales in case they do not deem it advisable to re-invest them. The final disposition of the corpus of the estate upon the termination of the trust is provided for in the sixth article of the will. This follows the third article in all essential particulars. The language of the gift over is as follows:

£‘ I give, devise and bequeath all and singular the real and personal estate of which my said executors and trustees shall theretofore have received the rents, issues and profits, and all the rest, residue and remainder of my property and estate, whatsoever and wheresoever, not herein otherwise specifically devised or bequeathed, in, to and amongst the beneficiaries under the trusts created by this will, in such manner that the parties theretofore receiving the income only shall receive and become vested with the estate and property out of which such income arose in the same relative shares cmd proportions m which they were entitled to said incomeP

The testator then proceeds in the eighth subdivision of this article to specify the shares. The four shares given as income to his wife in the first subdivision of the third article he now gives in the first subdivision of this sixth article as principal to her heirs, or to such persons and in such manner and proportions as she shall have devised and willed.”

In the second subdivision of this sixth article the testator provides for the contingency of the vesting of six shares in his sister’s children during the lifetime of their mother. In the eighth subdivision he again refers to the charitable uses and gives one and one-half shares of the corpus of the estate to such charitable uses as shall have been appointed by his executors and trustees, to receive and hold the same, and to such of his heirs, if any, as his said executors shall have designated in regard to the receipt of income from not exceeding one-half share.

It will thus be seen that the beneficiaries are substantially the same throughout; that the estate is vested in the same persons who are to be the recipients of the income during the trust term; that these persons tahe vested remainders subject to the execution of the trust; that no words were used expressive of an intention to change the character of the real estate, and that no such change was necessary to effectuate any of the purposes of the will. It is entirely clear that no equitable conversion was effected at the death of the testator. There is, in fact, no express direction in the will to sell at any time. Everything on that head is left to the discretion of the executors. They are to sell only if they deem a sale to be advisable. It is not a question of discretion with regard to time, place, amount or other conditions, but an absolute discretion with regard to the act. Nor was a conversion of the whole or any part of the real estate necessary to accomplish the purposes expressed in the will or to effectuate any of its provisions. It follows that no direction to sell can be implied. As was held by Enron, J., in Scholle v. Scholle (113 N. Y., 261): “ In the absence of an express direction to sell, one may not be implied, unless the design and purpose of the testator is unequivocal, and the implication so strong as to leave no substantial doubt; and so, unless the exercise of the power is rendered necessary and essential by the scope of the will, the authority is simply discretionary, and does not work a conversion.”

The real question is, whether, upon the exercise by the executors and trustees of the discretion to sell, there resulted in law a change in the subject-matter of the devise. It is time that when each piece of real estate was sold there was, as a matter of fact, a physical ■conversion into money; and that money was to be distributed unless the executors chose to revnmest it. But while the beneficiaries were thus to receive money, it by no means follows that such distribution should be treated as a distribution of personalty under the will. There was here no possible reason why the testator should change the quality of the real estate or direct the distribution of its proceeds as personalty. There was no question between heirs-at-law and next of kin; no question as to who should take dependent upon the legal character ascribed to the property. Whether these proceeds be treated as real estate or as personal property, they go in precisely the same direction; and the only effect of treating them as personalty is to invalidate the gift of one and one-half shares to charitable uses. Thus the contention is that the testator gave his executors continuous power, at any time during the period of the trust term, to frustrate his own intention and to bring about intestacy. Such a construction should certainly not be given to the will if it can possibly be avoided. The general rule is that the doctrine of equitable conversion is invoked only to sustain a bequest, not to overturn it. Another general rule is that nothing is regarded in equity as done but what ought to be done. (1 Story on Eq. Jur., §§ 649, 790.)

It has accordingly been held that the court will not declare an equitable conversion to have taken place by implication if the disposition of the fund would render the provision of the will void. (Bonard’s Will, 16 Abb. Pr. [N. S.], 128.) See, also, note to Walker v. Denne (2 Ves., Jr., 170), where it is said that equity will not exert one of its most peculiar powers in impressing personal property with, the character of land to bring it within the reach of escheat.

In our judgment there is nothing in the will under consideration which would justify the extreme construction contended for by the respondents, or which would work the result found by the Special Term. On the contrary, everything in this will points to the retention of the quality and character of the estate devised. There was, as already pointed out, no necessity for a conversion, nor for a change in the subject-matter of the devise. The executors might have retained every foot of land of which Mr. Ogden died seized until the termination of the two lives upon which the estate was limited. Under the will the beneficiaries, as we have seen, have vested remainders in the entire estate, subject to the execution of the trust. If the property were not sold pending the trust term, they would, at its termination, certainly take the real estate in specie. If it were sold pending the trust term, the intention plainly was that they should take its representative in money. The character of the estate was not to be changed by the sale, nor by its receipt in another form. Whether the corpus went to the beneficiaries in specie at the termination of the trust, or whether such corpus was in part anticipated by intermediate sales, the intent was clearly the same. It was to give these beneficiaries their substantial interest in the real estate. That substantial interest was not affected by the trust fee, nor was its character changed by intermediate variation in the corpus of the estate, even if such variation were accompanied by a provision for distribution prior to the termination of the trust. If the executors had reinvested the proceeds of these sales, there cannot be a question but that such reinvestment, although in bonds, would have formed part of the original trust estate and would, in equity, have remained land. (Scholle v. Scholle, supra; Matter of McComb, 117 N. Y., 378.)

The plaintiffs’ contention is necessarily reduced to this — that the mere incident of a failure on the executor’s part to reinvest effected a conversion into personalty and worked intestacy as to the money not reinvested. We cannot assent to such an extreme proposition. It is supported by nothing in the 'will itself expressive of such a purpose. It is, in fact, antagonistic to everything which we find in that instrument, and it is contrary to the well-settled rule that where land is devised as real estate, and, either by the direction of the testator himself, or by operation of law, such real estate is converted into money, for the purpose of better investment, or for any other purpose consistent with the design and purpose of the ultimate destination to which the real estate was appropriated, there the money is substituted for and stands in the place of the devised real estate.” (Holland v. Cruft, 3 Gray, 163; see, also, Matter of McComb, supra.) We think the beneficiaries took the proceeds of the sales of lands in Illinois and New Jersey not as a bequest of personalty, but as a part of the devised estate. They took these proceeds just as they would ultimately have taken the subjects of reinvestment had the proceeds of sales been reinvested, and just as they would ultimately have taken the lands themselves bad the power of sale not been exercised. (See Wood v. Keyes, 8 Paige, 365; Matter of McComb, supra; Wright v. Trustees, - Hoff., 202, 220; Grimwood v. Bartels, 46 L. J., Ch. Div., 788.) And the same result follows as to such charitable uses as the executors and trustees may select and appoint.

We have discussed this question of conversion as though it were governed solely by the law of this State. That is, we have considered it so far as to determine whether the law of the domicile should act upon the moneys which have been brought into this State. We think, however, that tlie question is one which should more appropriately be determined by the law of Illinois and New Jersey. It is not only the title to real property which is governed by the lex loei rei sites, but also the effect and construction of the instrument conveying it. Thus the doctrine applies not merely to what is actually immovable, but to what may be deemed to partake of an immovable or real nature by the law of the locality. Servitudes, easements, rents and other incorporeal hereditaments and interests in and appurtenances to land come within the legal definition of land as subject to the lex loci rei sites. (Story on Conflict of Laws, § 464; Levy v. Levy, 33 N. Y., 97; Chapman v. Robertson, 6 Paige, 627.)

Whether a trust created by a will as to realty situated in another State is valid or not can only be determined by the courts of that State. (Knox v. Jones, 47 N. Y., 389.) This case holds that, although real and personal property be given by the same clause in a will, and upon the same trust, they are severable, and that the validity of the bequests is to be determined by the law of the domicile, while the validity of the devises is to be determined by the lex loci rei sites. It conclusively appears in the present case that the trust as to the lands in Illinois and New Jersey is valid under the laws of these States. And it is thus established that the testator died testate as to these lands. Whether the exercise of the discretionary power of sale given to the executors, and the further exercise of the option not to reinvest the proceeds, operated to change the subject-matter of the devise, depends upon the construction to be given to the instrument which passed the title to the lands. The intention of the testator is to be gleaned from this instrument — that is, from the will; and the courts of the locality have jurisdiction to construe the instrument and to determine all questions which may arise with regard to the title to the property and the rights of the devisees with respect thereto. These questions should be determined by the courts of the locality so long as the subject-matter, whether in the form of real estate or its money representative, is within, its jurisdiction. Where, however, such money representative has been brought within the jurisdiction of the domicile, its courts should regard the laws of the locality and determine the questions thrust upon them in accordance with such laws.

Now, it is doubtless the fact that, had these moneys remained in the States of Illinois and New Jersey, no question could have arisen with respect to the validity of the trusts for .charitable uses, and that the moneys in question would there have been treated as properly apjtlicable to such uses. The trust is there valid and its validity is not impaired by the sale of the real estate'. It would be strange, indeed, were this condition of things to be completely reversed by the mere incident of a deposit of these moneys in one of the banks of this city without being ear-marked or otherwise identified as the proceeds of the sales of such Illinois and New Jersey real estate.

For that is apparently what it comes to. The attack on the trust .commences at the point when the executors decided not to reinvest the proceeds of the sales and when these proceeds were brought into this State and mingled with other funds of the estate. The sequence of deduction in support of the judgment are substantially these: As the lex loei governed with respect to the real property in Illinois and New Jersey, the trust in those States was valid. As there was no conversion at the death of the testator, the lex loei still governed and the trust was still valid. As there was no conversion even by the mere act of sale, for the reason that the executors might have reinvested the proceeds, the lex loci continued to govern and the trust was still unaffected. But the moment it was decided not to reinvest such proceeds, they at once took on the character of personal property, the lex loei ceased to govern, the lex domicilii took its place, the trust for charitable uses became invalid and intestacy resulted with regard to the share applicable thereto.

We cannot think that this final sequence is sound, or that the leva loot should be set aside in this way or at this point. We have, in fact, no doubt that if the trust remains unaffected in Illinois and New Jersey by the election of the executors to distribute the proceeds of the sales it remains unaffected here.

The respondents, while contending that our laws must operate upon the moneys within this State, also seem to claim, somewhat inconsistently, that the validity of the trust as affecting lands in other States, and the effect of the physical conversion of such lands can only be determined by the courts of those States, and they say that the Special Term properly refused to consider these latter questions. But the fact is otherwise. The Special Term chid consider these questions, and gave judgment in the plaintiffs’ favor as against the validity of the trust in question. In the first, second, third, fourth and fifth paragraphs of the judgment we find express references to the proceeds of sales of land wheresoever situated, and which proceeds are held by the executors and trustees of said will for distribution to charitable purposes.” The judgment is that the provisions of the will having in view the gift of one and one-half shares to such charitable uses as the executors and trustees should select, “ so far as they embrace or attempt to dispose of these proceeds, are illegal and void,” and the executors are directed to account therefor and to distribute such proceeds as in case of intestacy.

The executors have not come into court asking affirmatively to have this trust validated. They are simply defending the trust funds in their hands against a direct attack upon the trust itself.

It is also claimed that the defense of the executors as against this attack is not sufficiently specific, and that the finding of the learned justice, that the trust in question was valid under the laws of Illinois and New Jersey, is not supported by evidence. The respondents seem to have overlooked the eighth paragraph of the answer interposed by the executors, which expressly raises the question, and they have also overlooked the stipulation upon page 200 of the case, to the effect that counsel on either side may refer to any of the reports of judicial decisions in the courts of New Jersey, Illinois, Michigan and Wisconsin in the same manner as if they were distinctly put in evidence.” These decisions were referred to below, and they are referred to again in the appellant’s points. And they abundantly justify the finding of the Special Term. "We ‘think the judgment was right with regard to property in this State; and that the provisions of the will as to charitable uses, and also as to heirs whom the executors may deem needy or worthy of and entitled to one-half share, are invalid so far as these provisions attempt to dispose of property, real or personal, in this State. As to this last question, that is, as to needy heirs, we need only say that we agree with the views presented by the respondents, and that we do not deem the question worthy of special consideration.

But as to the proceeds of sales of lands in other States, we think the judgment should be modified by striking out all that is decreed with reference thereto. As to the one and one-half shares of the net rents of real property in Illinois and New Jersey, and of the net proceeds of the sales of lands in those States, the court should make no decree, but should suffer such shares to remain in the hands of the executors and trustees that they may be applied by them in case, during the continuance of the trust, they shall see fit to so apply them, to the charitable purposes contemplated by the testator in the eighth subdivision of the third article of his will. And this result is not, and cannot be, affected by any act of the executors with regard to the deposit of such proceeds or the manner in which they are held.

The costs were charged upon the funds in the executor’s hands to the credit of the trust as to charitable uses. This was proper so far as these funds were made up of the proceeds of sales of property in this State. But these funds, so far as they were made up of the proceeds of sales of Illinois and New Jersey lands, should not be charged with such costs. It is not clear from the evidence whether the entire fund in question resulted • from sales in these other States. The proper course, therefore, is to reverse the judgment as to these costs and allowances without prejudice to a further application therefor when the final judgment is rendered.

The judgment appealed from is interlocutory,- and as now modified the reference ordered will necessarily proceed upon different principles and may result in a different judgment as to costs. Upon the coming in of the report either party may move for final judgment, and upon such motion apply for costs and allowances as they may be advised. The costs of this appeal may abide the event. That is, any party to whom costs are finally granted may have costs of this appeal payable in the same manner as the costs of the cause are directed by the final decree to be paid.

O’BRIEN, J., concurred.

Van Brunt, P. J.:

I concur in the opinion of Mr. Justice Baerett upon this appeal. It seems to me that the question as to the validity of the provisions of a will must be determined by the conditions existing at the death of the testator, and that nothing that an executor can do subsequent to such death can either validate or invalidate the devises contained in the will. If there is a direction contained in the will that the real estate shall be converted into personal property, the will is construed as though the conversion had taken place as of the time of the death of the testator. But where the power of sale is simply discretionary in the executors no such rule applies, and the will must be construed as the estate existed at the time of the death of the testator. It certainly would be an anomalous condition of the law if an executor could, by changing, under a discretionary power of sale, real estate into money, defeat a devise contained in a will.

It is the settled policy of the law to treat the property of a testator as being of the kind left by him until it reaches some person having an absolute power of disposition. Thus, where real estate in which infants have an interest is sold, the proceeds of the sale are treated as realty until the infant arrives at maturity, and thus has an -absolute power of disposition.

It is certainly not the rule that where a person dies leaving a will devising his personal property and real estate to his executors in trust, creating an intermediate estate, and giving his executors a discretionary power of sale, and upon the termination of the intermediate estate bequeathing his personal property in one direction md devising his real estate in another, if the executors exercise the t>ower of sale in respect to the real estate, the devisees of what at cue death of the testator was real estate, are thereby deprived of the provision made for them in the will. So, in the case at bar, the devise having been valid as to the real estate at the death of the testator, the power of sale being merely discretionary, it was not possible for the executors, by the exercise of that power of sale, to defeat the intention of the testator; more particularly so, as the proceeds of sale are expressly disposed of to the same beneficiaries as the real estate had been by the will. I think, therefore, that it is clear that the proceeds of real estate, under such circumstances, must, for the purposes of distribution, and for the purpose of determining as to the validity of devises contained in the will, be treated as though the power of sale had never been exercised. If not, the executors, simply because the testator has given to them a discretionary power of sale, would be empowered to defeat absolutely devises which would otherwise have been valid. It seems to me that the mere statement of such a proposition indicates what the answer thereto must be. It is conceded, substantially, that if the proceeds of sale of the lands in Illinois and New Jersey were reinvested in lands in said States, that such proceeds would retain the legal character of land, and this court should not interfere with the disposition thereof. This being the case, the result of holding that by a sale the executor could defeat the devise, and by reinvesting the proceeds of sale he could reinstate the devise, would give the executor power to play battledore and shuttlecock with the trusts provided for by the testator. Whether the beneficiaries should take or not would depend upon his whim, and not upon the provisions made by the testator in his will.

Judgment modified as directed in opinion, and as modified affirmed.


source: Caselaw Access Project

author: Van Brunt, P. J.: Patterson, J. : Lawrence, J.:

license: Public Domain

text:
    JOHN O’BRIEN and Another, Appellants, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, RESPONDENTS.

      Municipal corporation — construction of the new aqueduct for New York city — power of a chief engineer to vary the contracts made under the act, chapter 490 of 1883 — liability of the city, limited strictly to the contract.

    Chapter 490 of the Laws of 1883, relative to the new aqueduct for the city of New York, which gave all powers in the matter to certain aqueduct commissioners, directed the commissioner of public works to prepare and submit to the aqueduct commissioners forms for the contract and specifications, which were to he approved by the commissioners, who were authorized to intrust the supervision and direction, of tile work to the engineers and other subordinates of the department of public works, so far as the commissioners should direct.
    The act provided that the city should in no event be subject to any greater liability than was expressed in the contracts made by the commissioners; that where there was an expenditure of over one thousand dollars, a contract, pursuant to the provisions of the act, must be entered into, and that work not involving the expenditure of over five thousand dollars might be done without a contract if the commissioners certified that in their opinion it was for the public interest that such work should be so done, and stated their reasons therefor.
    That no claim for extra work should be made, unless, before the performance of such extra work, the said commissioners should have first authorized, in writing, such extra work, and should have, also, first certified, in writing, for each and every order that it is, in their opinion, for the public interest that such extra work should be done, stating in such certificate their reasons therefor; nor unless, before the performance of such extra work, the price or prices to be paid therefor should likewise first have been agreed upon, in writing, between said commissioners and the contractor; and done in obedience to the written order of the chief engineer; and that the aggregate price should not exceed the sum of $5,000 on any one order.
    The commissioners, pursuant to this statute, entered into a contract with the firm of O’Brien & Clark, which provided that the final certificate of the chief engineer as to the amount due should conclude the contractors.
    Upon the trial of an action against the city for an amount alleged to be due and. unpaid to the contractors, it appeared that the-chief engineer had made statements to the contractors, relative to changes desired, intimating that certain of.' the work not within the contract would be paid for.

      Held, that as the legislature had taken the work out of the hands of the city and put it into the control of certain commissioners, any liability of the city must be one-strictly within the words of the statute.
    That as the plaintiffs did not show for the amounts over one thousand dollars any contracts in writing or certificates, their claims therefor were not enforceable, as being for extra work, and must be deemed to be made under the contract.
    That, although the contract contemplated that modifications should be made from time to time by the chief engineer, he could not bind the city to pay for such changes, unless by his order therefor in writing, pursuant to the contract.
    That, even if these requirements had been complied with, the liability of the city could not be extended beyond the final certificate of the chief engineer, which by the contract was to be conclusive.
    That where the size of the cross-section of the aqueduct was apparent from the plans and specifications, there could be no recovery for excavation outside of the dimensions of the cross-section, even though one of the engineers had verbally directed the excavation of a larger cross-section.

      Semble, that it was the duty of the contractors to have presented their claims for extra work to the chief engineer before he made his final certificate in order that he might have an opportunity to consider such claims.

      Tliat the city of New York was not liable to the contractors for the mistakes of engineers in giving erroneous lines and levels, even though those who gave the instructions were the agents, servants or officers of the city.
    That, in the execution of the work, the engineers and other employees were the servants of the aqueduct commissioners, a body created by statute and independent of the city.
    Appeal by the-plaintiffs, John O’Brien and Neman Clark, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 2d day of November, 1891, upon a verdict in their favor for $20,236.77 and costs, directed by the court after a trial at the New York Circuit before the court and a jury.

      E. T. Lovatt, for the appellants.

      James G. Ga/rter, Elihu Root, Austen G Fox and Wallace Macfarlane, for the respondents.
   Van Brunt, P. J.:

On the 1st of June, 1883, the legislature passed an act (being chapter 490 of the Laws of 1883), entitled “An act to provide new reservoirs, dams, and a new aqueduct with the appurtenances thereto, for the purpose of supplying the city of New York with an increased supply of pure and wholesome water.” By the first section of this act the mayor, comptroller, commissioner of public works and three citizens were authorized, empowered and directed to carry out the provisions of the act in the manner thereinafter provided, and they were to be known as the aqueduct commissioners. By the second section it was provided that the commissioner of public works should, under the direction of the aqueduct commissioners, as soon as possible after the passage of the act, submit to them a plan or plans for the construction of a. new aqueduct or conduit for water; and for the construction of one or more dams or reservoirs to retain such water, and for the construction of the appurtenances thereto. Those plans the aqueduct commissioners might adopt, modify or reject, in whole or in part, and might cause such surveys to be made as they might deem expedient to enable them to act intelligently in the premises; and it was provided that, in case of the rejection of any such plan or plans by the said aqueduct commissioners, the said commissioner of public works should in like manner prepare and submit another plan, or plans, etc.; wbicli course should be continued until a plan or plans covering the entire work contemplated by the act should he approved by the aqueduct commissioners.

The act then provided for the acquisition of the land necessary to carry out the work; and by the twenty-fifth section it was provided that the commissioner of public works should, from time to time as might be necessary, prepare and submit to the aqueduct commissioners, and to the counsel to the corporation, forms of contract and .specifications, and bonds for the faithful performance thereof, for the doing of the work and the'furnishing of the materials required to be done and furnished by the said approved plan, or for the doing of such parts of such work, and the-furnishing of such parts of such materials as might from time to time be required for that purpose; which forms of contracts, specifications and bonds, were to be approved by the aqueduct commissioners, and approved as to form by the counsel to the corporation, and that the said aqueduct commissioners should have the exclusive authority to determine what provisions should be embodied in said contract, in order, so far as might be possible, to- save the city from loss, embarrassment and litigation, by reason of any work done or supplies furnished thereunder, which approval should be evidenced by their certificate indorsed thereon, signed by a majority of them; and the approval of the counsel to the corporation was to be evidenced by his certificate to that effect, indorsed in like manner.

By section 26 it was provided that when the form of the contract, with its specifications, and the form of the bond for the faithful performance thereof, should have been approved as above provided, the said commissioners should advertise for sealed bids or proposals for the doing of the work or the furnishing of the materials called for in such approved form of contract; and after the receipt of such bids or proposals, by section 28 it was provided that they should be publicly opened by said aqueduct commissioners, who were empowered to accept that bid or proposal, the acceptance of which would, in their judgment, best secure the performance of the contract; or they might reject any and all such bids.

-Section 30 provided that the contracts, when so awarded, were to be executed in triplicate by the contractors on the one part and the aqueduct commissioners, acting for the city of New York, on the other part; and that the work and materials called for by such, contract should be done and furnished under the direction and supervision, and subject to the inspection of said aqueduct commissioners, their engineers, supervisors and inspectors, but such direction, supervision and inspection might be intrusted to the engineers and other subordinates of the department of public works, so far as said commissioners should so direct; but in no event should the city of New York be held in any action or proceeding brought or had under any contract so made to any other or greater liability than that expressed therein, nor be required to pay out or otherwise dispose of any sum of money for the doing of .such work or the furnishing of such material greater than is stipulated in said contract, nor otherwise than in strict conformity to the terms thereof.

Section 33 provided that all work thereby authorized to be done, and all materials to be furnished involving an expenditure of over one thousand dollars, should be procured by contract made in the manner required by and pursuant to the provisions of the act. The said commissioners were, however, empowered without contract to cause such surveys to be made and such maps and plans prepared as should, in their opinion, be necessary to carry out the provisions of the act; and might appoint and fix the compensation of suitable engineers and other persons to supervise and inspect all the work by said act authorized to be done. The said aqueduct commissioners were also empowered to procure any work to be done without contract, not involving the expenditure of over five thousand dollars, if they should certify that, in their opinion, it was for the public interest that such work should be so done, and in such certificate they were required to state their reasons therefor.

Pursuant to the authority thus conferred upon this board, forms of contract and specifications were proposed by the commissioner of public works to the aqueduct commissioners and approved by them, and also, as to form, by the corporation counsel. Bids were thereupon invited in the manner provided by the statute for different portions of the contemplated work; and the plaintiffs in this action having bid for that portion of the work known as section 5, the contract therefor was awarded to them, and a contract in the manner prescribed by the statute was executed by the said contractors, and on behalf of the city by the aqueduct commissioners.

By this contract the plaintiff's agreed that they would, at their own expense, and in strict conformity to the specifications in said contract contained, furnish all the materials and labor necessary or proper for the purpose, and in a good, substantial and workmanlike manner excavate a tunnel and its shafts, do all other excavation and build all masonry, and do all other work necessary to build the aqueduct and all its appurtenances from the points therein named, in the manner and under the conditions therein specified.

Yarious general provisions then follow in the contract, to the effect that to prevent all disputes and litigation, it was agreed between the parties to it that the engineer should, in all cases, determine the .amount of the work and quantities of the several kinds of work which were to be paid for under the contract, and should determine all questions in respect to said contract and the construction thereof, and in all cases decide every question which might arise relative to the execution of the contract on the part of the contractor, and this estimate and decision should be final and conclusive in case any question should arise ; and should be a condition precedent to the right of the plaintiffs to receive any money under the contract. And the work to be done under the contract being mostly underground, and it beiñg impossible at the time of the execution of the ■contract to estimate with accuracy the quantity of the various classes of work to be clone and materials to be furnished, it was, therefore, therein stated to be expressly understood and mutually agreed that the estimated quantities stated in the notice attached to the contract should be only for the purpose of comparing on a uniform basis the bids offered; and the contractor agreed that neither the parties of the first part, nor the aqueduct commissioners, nor any of them, were to be held responsible that any of the said estimated quantities should be found even approximately correct in the construction of the work ; that he was satisfied and would at no time dispute the said estimated quantities as a means of comparing the bids, and that he would make no claim for anticipated profits, or loss of profits, "because of a difference between the quantities of the various classes ■of work actually clone or materials furnished and said estimate; and he undertook and agreed that he would complete the entire work to the satisfaction of the aqueduct commissioners, and in accordance with the specifications and plan in said contract mentioned, at the price therein agreed upon and fixed therefor, except, for such extra work for the performance of which written orders might be received as in said contract elsewhere specified.

It was further agreed that the said tunnel, shafts and trenches, should be excavated, and the masonry built, and all the work, labor and material to be done and furnished under the contract should be done and furnished strictly pursuant to and in conformity with the specifications attached to the contract, and the direction of the engineer under them, which specifications were declared to form a part of the contract.

By the first paragraph of said specifications it was provided that, they showed the location of the work and its general character, and that, during the progress of the work, working plans should be furnished by the engineer, and that all work during its progress- and on its completion must conform' truly to the lines and levels given by the engineer, and must be built by the plans and directions, given by him from time to time; subject to such modifications and additions as he should deem necessary during its execution,' and that in no case would any work in excess of the requirements of the plan or specification be paid for unless ordered in writing by the engineer as thereinafter set forth.

Paragraph 8 declares that borings have been made on portions of the line to ascertain the nature of the underground strata through, which the shaft and tunnel are to be constructed, and the results of the borings are shown on the plans, but should the character and extent of the various materials be found to differ from what is-indicated .the contractor shall have no claim on that account, and it is expressly understood that the city does not warrant the indications-of the borings to be correct; and paragraph 9 provides that the places where it is believed that the excavation is to be in tunnel, and where in open trench, and the limits of each are shown on the-plan, but if, in the opinion of the engineer, the nature of the material to be excavated at any point, or the conditions of the case shall render it advisable, he may require the excavation to be made-in tunnel, although the plans indicate that it is to be made in open trench, or vice versa.

Paragraph 18 provides that masonry should be built within the tunnel at such points, and of such material, and of such form and dimensions as the chief engineer may determine from time to time, referring to certain sheets for illustrations of some of the proposed forms.

Paragraph 19 provides for weepers of certain dimensions to be built in the sidewalks and floor, and that no deduction in the measurement of the masonry will be made for the weepers, which must be built true and smooth.

Paragraph 21 provides that the tunnel at any place is to be excavated1 to the lines of the cross-section determined by the engineer for that place ; and that no payments would be made for any excavating outside of the cross-section of the tunnel excavation determined by the engineer, but all loose or shaky rock must be removed. The price per cubic yard stipulated in said contract for tunnel excavation was to cover all excavation due to the presence of quicksand or other soft material, rotten rock, boulders, etc.; and the cost of all pumping and bailing, of all timbering and the removal of same, of removing all excavated materials, of all ventilation, and of all other work incident to the excavation of the tunnel, and any expenses that might arise from loose and shaky rock or from falls or caves in or from unexpected obstacles, was to be borne by the contractor.

Paragraph 22. The engineer was authorized to order at any time additional excavations in the tunnel or shafts, and the contractor was to do such excavation, which was to be measured according to the lines of the cross-sections determined by the engineer, and paid for by the cubic yard as tunnel excavation.

By paragraph 23 it was provided that if, after the excavation had been made of a certain size by direction of the engineer, he should be of the opinion that the nature of the rock or other material was such that the form and dimensions of the masonry for which said excavation was intended must be increased, he might order an enlargement of the excavation for the purpose of building masonry of greater thickness, and the contractor was to make such enlargement, which was to be measured according to the lines given by the engineer, and to be paid for at the price per cubic yard in said contract stipulated for tunnel excavation.

Paragraph 24. In rock excavation the drilling and blasting was to be conducted with all possible care so as not to shatter the roof and sides of the tunnel outside of the lines determined by the engineer, and. in soft material precaution must be taken not to allow cavities to be formed behind the timbering or other supports; and. especially in the vicinity of the existing Croton aqueduct the blasting and timbering, and any other operation connected with the work, should be so regulated as not to cause injury to said aqueduct. And the contractor was to be held responsible for all injuries to said aqueduct caused by his work.

Paragraph 25. If, in the opinion of the engineer, the contractor, by the use of too high explosives, bad location of drill-holes and defective arrangement of timbers or supports, or want of proper skill or attention, should excavate the tunnel or shafts to greater dimensions than was required for the propel’ building of the masonry, the excess of tunnel or shaft area thus formed should be filled solid, at the expense of the contractor, with such kinds of masonry (brick, concrete or rubble masonry, as in said contract specified), or other material as the engineer might direct.

By paragraph 26 the contractor was made responsible for properly supporting the roof and sides of the tunnel, and the sides of the trenches and shafts, with timber or other supports. And it was further provided that if, the engineer should be of opinion that sufficient or proper supports had not been provided he might order additional supports, or order them modified or replaced at the expense of the .contractor; and the compliance with such order by the contractor should not relieve or release him from his responsibility for the sufficiency of such supports.

Paragraph 19 provided that all lines and grades were to be given by the engineer, who might change them, from time to time, as he might be authorized and directed by said aqueduct commissioners, even to the extent of lowering or raising the grade line of the aqueduct, or ordering vertical or side drifts.

By paragraph 51 it was stated that the plans and specifications were intended to be explanatory of each other, and should any discrepancy appear, or any misunderstanding arise as to the import of anything contained in either, the explanation and decision of the chief engineer should be binding and final upon the contractor, and all explanations required, alluded to or necessary to complete any of the provisions of the sjDecifications and give them due effect, were to be given by the engineer.

By section H of the specifications it was provided that no claim for extra work should be made unless, before the performance of such extra work, the said commissioners should have first authorized, in writing, such extra work, and should have also first certified, in writing, for each and every order that it is, in their opinion, for the public interest that such extra work should be done, stating in such certificate their reasons therefor; nor unless, before the performance of such extra work, the price or prices to be paid therefor should likewise first have been agreed upon in writing between said commissioners and the contractor; and done in obedience to the written order of the chief engineer; and that the aggregate price ■should not exceed the sum of $5,000 on any one order.

By subdivision O the prices for the work and its general character were fixed; for tunnel excavation, including all work incidental thereto, seven dollars per cubic yard was to be paid; for brick masonry laid in American cement-mortar, and all incidental work, ten dollars per cubic yard; for concrete masonry, including all incidental' work, five dollars per yard for one composition, and five dollars and fifty cents for another; and for rubble-stone masonry, including all incidental work, five dollars per cubic yard, etc.

By subdivision T of the specifications it was provided that, in ■order to enable the contractor to prosecute the work advantageously, the engineer should once a month make an estimate of the work done, and the value thereof according to the terms of the contract, which estimate should not be required to be made by strict measurement, but might, at the option of the engineer, be approximate only; and that upon each such estimate being made the contractor was to receive ninety per cent of the estimated value of the work done and materials furnished; and that whenever, in the opinion of the engineer, the contractor should have completely performed his work, the engineer should so certify in writing to the aqueduct commissioners, and his certificate should state, from actual measurement, the whole amount of the work done by the contractor-, and also the value of the work according to the terms of the contract; and that on the expiration of thirty days after the acceptance by said commissioners of the work agreed to be done, the city should pay to the contractor in cash the amount remaining, after deducting from the amount so valued, contained and. stated in said last-mentioned certificate, all such sums as should theretofore have been paid.

And by subdivision IT it was expressly agreed and understood that the city of New York should not, nor should any department or officer of the city of New York, be precluded or stopped by any return or - certificate made or given by any engineer, inspector or officer, agent or appointee of said aqueduct commissioners, from at any time showing the true and correct ■ amount and character of the work which should be donej and the materials which should have been furnished by the contractor.

And by subdivision Y it was expressly understood and agreed that the action of the engineer, by which the said contractor was to-be bound and -concluded according to the terms of his contract,, should be that evidenced by his final certificate; all prior partial payments being merely upon estimates, subject to the correction of such final certificate, which final certificate might be made without notice thereof to the contractor, or the measurements upon which the same was based.

The plaintiffs, the contractors, having entered upon and completed the work mentioned in the contract, brought this action to recover certain sums alleged to be due for work done by them under and in pursuance of said contract, or during and in the course of the performance thereof.

The answer of the defendant was to the effect that the chief engineer of the aqueduct commissioners proceeded to determine and did determine the amount and quantities of the several kinds of work which were to be paid for under said contract, and the whole amount and the value of said work under and according to the tenns of said contract, and made his final estimate and decision thereof and evidenced the same by his certificate, wherein he stated,, from actual measurement, the whole amount of work done by the plaintiffs and the value of such work under and according to the terms of said contract; and that, as appears by said estimate and decision and final certificate, there remained due to the jdaintiff the sum of about twenty thousand dollars, and no more ; and denied generally all liability beyond this sum for any -work claimed to have been done by the contractors.

Upon the trial a verdict was directed in favor of the plaintiffs for said snm only, and from the judgment thereupon entered the plaintiffs take this appeal. It will be impossible to discuss in detail the questions which arise relating to the numerous causes of action set out in the complaint, some of which are stated in various forms. But it will be sufficient in determining this appeal to confine ourselves to the consideration of some general propositions which necessarily dispose of all the claims which have been advanced, both upon the part of the plaintiffs and the defendant.

It is apparent that the plaintiffs must be claiming either for work done under the contract in question, and pursuant to its terms, or for work outside- of its provisions, and which, therefore, necessarily comes under the designation of extra work.

From the language of the complaint it is difficult to determine as to whether the plaintiffs seek a recovery because of any extra work, or whether they simply desire to declare that all the work for which they claim compensation has been done in pursuance of the contract.

In considering this question it must be borne in mind that the liability of the defendant is strictly statutory; and we must look to the act of 1883 for the authority to impose whatever liability the defendant has incurred. This is manifest, because the work in question was not done by the agents or servants of the defendant corporation. The Croton aqueduct commissioners and their employees were independent of the corporation as to the tenure of their office, and the manner of discharging their duties, and they were in no way amenable to the corporation. The subordinates were subject entirely to the orders and direction of the aqueduct commissioners, who were created by direct legislative enactment.

Such being the relations between the city and the persons who had charge of this work, the authority of those persons to charge the city must necessarily -be found in the law creating them, and defining the manner and method by which they were to accomplish tlieir work. The legislature took upon itself to construct by its own officials a public work for the benefit of the inhabitants of the city of New York, and by virtue of its sovereign power, ignoring all claim which the municipal corporation might have to control its own private affairs, put its hands into the public treasury of said city for the purpose of paying the expenses thereof. With the question as to the initiation of this work, or its progress or manner of execution, the city had nothing whatever to do.

Its office was to pay those obligations which the statute authorized to be imposed upon it; and it had no other relation to or connection with the work in question.

In this respect the position of the city differs materially from that which it occupied in the case of Bailey v. Mayor (3 Hill, 531; 4 Denio, 433), as in that case- the work could not proceed without the authority of the electors in the city.

By the act under consideration it is apparent that the only manner in which liability could be created against the city, beyond the amount of $1,000, was by writing, and beyond the amount of $5,000 by contract in writing, except that relating to the surveys, maps, plans and estimates necessary to be prepared, and in reference to the compensation of engineers and other persons to supervise and inspect the work by the act authorized to be done.

No claim is presented for extra work in which these requirements of the statute have been complied with. And, therefore, it follows that for such extra work, even if performed, no liability could be imposed upon the city, because, as has already been stated, the persons having the control of the construction of this public work were acting pursuant to legislative authority; and only for such expenditures as could be shown to have been incurred pursuant to such legislative authority could the city be made liable. The claims, therefore, of the plaintiffs must be considered as presented for work done under the contract and pursuant to its terms, and the questions of difference between the plaintiffs and the defendant, as far as the questions involved in this appeal are concerned, therefore, relate to the construction of the terms of the contract.

It seems to be claimed, upon the part of the plaintiffs, that they were bound to follow the directions of the engineer in chief and his assistants; and are entitled to avail themselves in this action of constructions which were given by the engineer during the progress of the work in reference to the terms of the contract.

It is. apparent, both from the language of the statute and also from the language of the contract, that liability could not arise out of talk. The aqueduct commissioners were expressly prohibited from creating liabilities in that way; and the contract prevented tlie engineer from directing tbe performance of any work in excess of the requirements of the plans and specifications unless in writing. It is true that the work was to be performed in accordance with the plans of the engineer and the directions given by him from time to time, subject to such modifications and additions as he should deem necessary during its execution. But it is apparent that if any of these modifications were in excess of the requirements of the plans and specifications, it was necessary that the engineer should order the same in writing. And, therefore, primarily, the obligation of the city to. pay must be either because of work done or materials furnished pursuant to the strict letter of the contract, or of the performance of some work in excess of the requirements of the plans or specifications ordered in writing by the engineer. But even these are not sufficient to constitute a complete obligation upon the part of the city, because such obligation to pay depends upon the giving by the chief engineer of his final certificate based upon actual measurements as to amount of work done, the value of which work was to be determined by the terms of the contract.

In the case at bar such final certificate was given, and for the amount represented by such final certificate the plaintiffs have had judgment. But it is claimed, upon the part of the plaintiffs, that such final certificate is incorrect in that it improperly excludes work done by the plaintiffs, for which, under the terms of the contract, they are entitled to compensation. There is no imputation that this certificate was fraudulently given; and, therefore, it would seem that the plaintiffs are bound by its terms, if the language of the contract which was entered into by them with the aqueduct commissioners upon the part of the city is to receive any reasonable interpretation.

With the hardships of such a construction we have nothing to do'. The obligation of the city, as has been' heretofore more than once repeated, depends upon the terms of this contract; and if no such obligation is shown upon the part of the plaintiffs according to the terms of the contract, we cannot see where liability upon the part of the city arises. And, therefore, it would seem that this final certificate was absolutely conclusive, and whether it could be impeached for fraud or not is a question which it is not necessary for us now to determine.

But the difference between the engineer, in giving the final certificate, and the contractors seem to depend upon the construction of the terms of this contract; the claim of the plaintiffs being largely based upon the fact that in the early part of the work, before its final completion, the engineer intimated' that some more liberal construction of the contract ought to be made for the benefit of the plaintiffs. But it does not seem to require argument to show that the limitations of the contract could not be construed away by interpretations of the chief engineer ; and we have searched in vain, through the contract for any provision therein contained which would justify such a construction.

It is true the work is to be done under the directions of the chief engineer, and he may modify the work and its manner of doing; but unless there is a provision in this contract for payment for that kind of modified work, then there is no obligation upon the part of the city to pay, and the contractor was not bound to do it.

It is true that it is urged that, in order that the work should progress at all, it was necessary that the contractor should follow the direction of the engineer. But this argument is based upon the maxim that necessity knows no law; and that it being necessary for the contractor in his prosecution of this work to obey the directions of the engineer, even though they were without the pale of the law which gave the engineer any authority to act, still a liability exists.

Such is not the case. The engineer had no roving commission which would entitle him to alter the terms of this contract and impose additional obligations upon the city, independent of and at variance with its terms. The most that can be said is that, where the contract was ambiguous, the directions of the engineer in favor of one or another construction might, under the terms of the contract, be considered binding both upon the contractor and the city. But in a case where there has been provision in the contract for the doing of the work, and for the measurement of liability because of the doing of the work, the engineer had no power, by any interpretion that he might give, to waive its terms or obligations, and thereby impose additional burdens upon the city. The language of the statute is that in no event shall the city be held, in any action or proceeding brought or had under any contract so made, to any other or greater liability than that expressed therein, nor required to payout or otherwise dispose of any sum of money for the doing of such work or the furnishing of such materials greater than is stipulated in such contract, nor otherwise than in strict conformity to the terms thereof.

Therefore, it seems to us that all this discussion as to the interpretation the engineer placed upon this contract has no bearing upon the question as to the liability of the city; and although many of the claims of the plaintiff in reference to the action of the chief engineer may be shown by an examination of the record in this case to be unfounded, it is not necessary, in the view we have taken as to the relations of the parties, to enter into their discussion except in one or two instances.

One of the principal claims advanced by the plaintiffs is that' relating to tunnel excavation, it being urged that under the contract they are. entitled to recover, as for excavations, for all the space outside of the brick-work which has been filled with masonry, which masonry has been estimated and paid for by the 'defendant. In support of this position it is claimed that in places where the space is filled in with dry filling, outside of the brick-work, the tunnel" excavation is allowed for and to be paid by the defendant; and that such payments were intended by the -provisions of the contract has always been agreed to by the parties to the contract; and that the minimum line given to the contractors bounds a greater area than the line that only includes the outside of the brick-work; and that the evidence shows that one of the division engineers told the contractors, and illustrated to them on the face of the tunnel, that no rock should be left inside of a section sixteen feet high and sixteen feet wide, and that the work of excavation of the portion of the tunnel that was made from the commencement of the work until January, 1886, was done in accordance with that direction, and yet not a foot of the tunnel is estimated in accordance therewith.

The truth of the representations made by the plaintiffs in this regard it is not necessary to investigate because the contract is certain and explicit in reference to the area that was to be allowed for in estimating tunnel excavation; and, as has already been intimated, no direction or statement upon the part of the engineer could modify its provisions.

The specifications (par. 17) provide that the form and area of the cross-section of the tunnel at any place shall be such as the engineer shall determine for that place; but at all points it shall have an area of at least 201 square feet. It then states that various forms of cross-sections of the tunnel are illustrated on sheets 8-J, 9-|- and 16 of the plans, and that on the plans the line limiting the cross.section of' tunnel excavation is designated by letters A. A. A.

It is conceded upon all sides, and apparent upon an inspection of the plans, that the letters A. A. A. show the exterior line of the outside of the brick lining of the aqueduct. Therefore, the contract itself has defined what is intended in the contract by the words “ cross-section ” and what shall be its limits ; and, therefore, when the engineer has determined the diameter of the tunnel and the thickness of the lining he has determined the cross-section; and there is no discretion given to the engineer to determine the ctosssection in any other manner. IJpon a determination made in this manner, the whole of the provisions of the contract in reference to tunnel excavation are based. Subdivision 21 says that the tunnel at any place is to be excavated to the lines of the cross-section determined by the engineer for that place, and that no payments will be made for any excavating outside of the cross-section of the tunnel excavation determined by the engineer, but all loose or shaky rock must be removed. It is certain that the loose or shaky rock removed under those circumstances is not to be paid for. If it were, why the necessity of stating the fact that it should be removed ? The space from which all the loose and shaky rock was to be removed was to be filled in, pursuant to the terms of the contract, with masonry, and the question as to whether the contractor should be paid for such masonry depends upon whether, in the opinion of the engineer, such loose or shaky rock had been caused by a want of proper skill or attention of the contractor in making the excavatioij. (Sub. 25.)

Furthermore, in the same subdivision 21, it is provided that the price per cubic yard stipulated in said contract for tunnel excavation was to cover all excavation due to the presence of quicksand or other soft material, rotten rock, boulders, and the cost of all pumping and bailing, of all timbering and the removal .of same, of removing all excavated materials, of all ventilation and of all other work incident to the excavation of the tunnel; and any expense that might arise from loose and shaky rock, or from falls or caves in or from unexpected obstacles, was to be borne by the contractor.

If the contractor was to be paid for the total excavation necessarily made in excavating the cross-section, why was there any necessity for the provision that any expense- that might arise- from loose or shaky rock, etc., or from unexpected obstacles be borne by the contractor.

That it was the purpose of the contract to limit the cross-section to the exterior line of the masonry lining of the tunnel is also evidenced by the twenty-third subdivision of the specifications, which provides that if after the excavation had been made of a certain size by direction of the engineer, he should be of the opinion that the nature of the rock or other material was such that the form and dimensions of the masonry for which such excavation was intended (evidently referring to the masonry lining of the tunnel), must be increased, he might order an enlargement of the excavation for the purpose of building masonry of greater thickness, and the contractor was to make such enlargement, which was to be measured according to the lines given by the engineer, and to be paid for at the price per cubic yard stipulated for tunnel excavation.

In other words, if after the engineer has determined the limits of the cross-section, consisting of the diameter of the tunnel plus the thickness of the brick-work, it is ascertained, because of the nature of the rock or other material, that it is necessary to have a thicker lining (masonry of greater thickness are the words of the specification), the engineer might order the additional excavation to be made. The contractor is bound to do the work and charge at the samé rate for this additional- excavation that he would have been entitled to receive had such enlargement not taken place, although it is conceded it was a more expensive method of doing the work for the contractor.

The argument that because a liability was recognized upon the part of the city to pay for filling solid (where such filling was by masonry), the area of excavation over the limits of the cross-section, provided it was not excessive, therefore, there was an obligation to pay for the excavation beyond the limits of the cross-section, cannot prevail as the two are entirely independent, and they each recognize what the parties to the contract well understood to be the fact, that there must be excavation beyond the limits of the cross-section, and that that excess must be filled, if with masonry, to be paid for (sub. 18), if with dry filling, at the expense of the contractor. (Sub. 20.)

Hence the provisions of subdivision 25, authorizing the engineer to compel the contractors to fill in, at their own expense, such part •of such excess of tunnel or shaft area as should be formed by want of proper skill and attention in the making of the excavation.

It is true it would appear as though the chief engineer was of the opinion that he had the right to do in respect to these contractors that which he might think was equitable, no matter what might be the provisions of the contract. But it is clear that he entirely mistook the position which he occupied, and the powers conferred upon him by the contract in question. Nothing that he could say or do could be made binding upon the defendant unless the authority for the sáying and doing can be pointed out in the contract; and, therefore, all that was said in the monthly estimates, or in the letters of the chief engineer, wdiich, in any respect, militate against the plain terms of the contract, were in no way binding upon the defendant. And when the aqueduct commissioners directed the engineer in his ■estimates to be governed by the contract they did nothing more than instruct him that he was bound by the law.

The claim of the plaintiffs for timber placed and fastened does not seem to have any foundation in the provisions of the contract. This claim seems to be based upon alleged misrepresentations made to the plaintiffs prior to the execution of the contract in regard to the nature of the ground that would be encountered, whereby the use of timbering became necessary, the plan being changed from open trench to tunnel.

It will be observed that subdivision 8 of the specifications, heretofore referred to, entirely relieves the city from any responsibility for representations as to the verity of the results assumed from the borings which had been made upon the line of the work ; and that subdivision 9 gave authority to the engineer, whenever, in his opinion, it should be desirable, to change the excavation from open trench to tunnel; and that by subdivision 21 it is provided that the price per cubic yard, stipulated in the contract for tunnel excavation should include all timbering and the removal of the same.

It is true, when the change was made, that there was evidence that it was stated to the engineer that this new plan of timbering was going to cost the contractors much more, and the reply of the engineer was “Yery well; you put the timbering in and we will pay' you for it; and whatever extra it costs you, and the extra amount of timbering you put in there, we will have our engineers estimate you for, and pay you for it.”

But this was not an order of extra work in the manner provided by the contract; and it was not included within the contract, hence there seems to be no foundation for this claim.

The claim as to grouting stands in precisely the same position, and clearly was not the masonry contemplated by the contract; and it would seem that the plaintiffs agreéd to do it at their own expense, and that it was done by them voluntarily and in order to make their work complete under the contract; and that in any event it was extra work, and the conditions precedent to liability had not been fulfilled.

The claim in respect to extra work done and materials furnished on account of errors in alignment does not seem to be provided for by the contract, and hence no liability could arise.

It does not seem necessary to advert to the other causes of action particularly as the principles already enunciated seem to dispose of the claim founded upon such causes of action.

The claim for footing stones is admitted by the defendants to be an equitable one to the extent of $240. But the plaintiffs having made no claim to the engineer on this subject, and never having put him in a position in which he could allow the claim in his final certificate, it would seem that the condition precedent had not been complied with necessary to allow a recovery as matter of right to this amount. In fact very few of the causes of action alleged in the complaint have ever been presented to the chief engineer, or were presented to him prior to the making of his final certificate, so that he might pass upon the same, and include them in final certificate if it was proper to do so. This would seem to be an additional obstacle in the way of a successful prosecution of the claims made in the action at bar.

Upon the whole case, therefore, we are of opinion that a recovery cannot be had in this action beyond that which was ordered in the court below. As has been iterated and reiterated during this, opinion, the foundation of all liability ujion the part of the city must be found in the law and the contract, and unless it can be-shown that the claimed liability has authority from the law commanding the contract, and from the contract, then clearly it does not exist.

It seems to us that the difficulty in the case arose from the fact that in the entering into this contract, and in the early progress of the work, both the contractor and the chief engineer entirely misapprehended their relations to it, and their rights and obligations under it, each assuming that equitable considerations might have their weight in determining questions where the rigid terms of the contract seemed to work a hardship.

In these both were clearly mistaken, as by the law liability could only be fastened upon the city in the manner by it prescribed.

The judgment should, therefore, be affirmed.

Lawrence, J\, concurred.

Patterson, J. :

I concur in the views expressed in the opinion of the presiding justice and in the conclusion reached that the plaintiffs cannot recover in this action anything more than the amount of the judgment entered upon the verdict directed on the trial. There are several obstacles in the way of a further recovery on any of the causes of action set forth in the complaint, one of them being the final certificate of the engineer given in accordance with the requirements of the contract, and by which certificate the plaintiffs were necessarily bound, for there is nothing in the case, as I read it, that impeaches such certificate or would permit the court to ignore or disregard it. When the contract was entered into, it was in the form and contained stipulations adopted by the aqueduct commissioners, not only under the authority but by the peremptory command of the act creating the commission. Bids were invited upon that contract and the plaintiffs must have known all its terms, conditions and provisions when they entered upon the obligations they assumed under it. There was neither fraud nor any other legal ground for attacking tbe final certificate. It was made by tbe contract, conclusive evidence as a final estimate, founded on actual measurements and on actual ascertainment of the work done, for which the plaintiffs were entitled to final payment from the city, and although it may have been made upon a different basis of computation from that which entered -into • the intermediate and provisional certificates, yet it seems to have been honestly made in accordance with the requirements of .the contract in that regard ; and as making it was a condition precedent to the right of the plaintiffs to receive final payment, and as the amount fixed thereby was to be the measure of ultimate liability, it stands as a barrier to •any further recovery than that above referred to.

So far as the facts set forth in various causes of action asserted in the complaint are concerned, it seems to me that, notwithstanding the theory of liability predicated of them, all claims connected therewith come under the contract itself, and that in their nature, as ■considered with respect to thé terms of the contract and the provi-' ■sions of the statute as to the liability of the city, none of them can be enforced as claims arising extrinsic thereof. There, however; is ■one- cause of action in respect 'of which a serious argument has been made, that the city is liable because of mistakes of the engineers in giving erroneous lines and levels of parts of the contract-work, whereby that work was largely increased and a much greater expenditure caused to the contractors than would have been necessitated had those erroneous lines and levels not been given. The claim is made that the city is liable for these mistakes of the engineers, for the reason that those who gave the instructions were the agents and ■servants ór officers of the city, and the latter is bound by their acts, and'is responsible to the plaintiffs as in an action for damages for negligence. At the trial the learned judge discarded this view and held the city was not liable. The authorities he cited in the opinion ■delivered by him in disposing of the case at the circuit sustain his ruling; and, upon the general principle relating to the liability of a municipal corporation for the negligence or wrongful acts of its servants or officers, I think, in view of the peculiar attitude in which the city stood to the subject-matter of the contract and to the aqueduct commissioners and its employees, the ruling was right. We liave not been referred by the appellant’s counsel to any adjudicated case or decision at variance witli the views expressed on this subject by the learned judge at circuit, but we suppose they would rely upon People ex rel. Ryan v. Civil Service Board (41 Hun, 287), as an authority opposed to the ruling under consideration. That case was decided by this court, and was affirmed by the Court of Appeals. It declared the status of the aqueduct commissioners and their employees as to the city, and distinctly held that they were agents and servants of the city within the meaning of the civil service act, and that this was so because the city was bound by the contracts of the commissioners. But it really decided nothing more than that. The court did not pretend to pass upon the questions of what contracts might be made by the commissioners, or the liability of the city for wrongful acts of the employees of the commissioners connected with work done under contracts. Even if the commissioners and employees were servants of the city, they were not so for all purposes of a general character.

The commissioners were limited by the statute, and their engineers and other employees had specific duties to discharge, and with the performance thereof the municipal authorities could not interfere. Although the work, when completed, would be for the benefit of the city, the commissioners were to act as an independent body. The city had no authority to contract for, meddle with or do anything whatever connected with the work. It could not compel performance or supervise the acts either of the contractors or the commissioners ; it could not appoint or remove any one employed by the commissioners; it could not hold the contractors or the engineers to any accountability during the progress of the work. Interposed between it and the contractors was this self governing, distinct and separate body, with limited powers, and with no right to incur any liability for the defendant exceeding that, or outside of that, provided for by contract.

As said before, I am of the opinion that whatever claim the plaintiffs may have for work done or expense incurred by- reason of alleged mistakes of engineers is altogether one under the contract. That the plaintiffs are entitled to compensation under the contract, and according to the rates established thereby for all work ordered by the engineers in execution of the contract, whether on mistaken or correct lines and levels, may be conceded.

That is a very different thing from a liability arising outside the contract. All the orders and directions of the engineers were given in prosecuting the work under the contract, and in the attempted and intended execution of the plans (original or modified) and specifications, and if we are correct in that statement it would seem to-follow that the provisions of subdivision 30 of the contract preclude a recovery on the cause of action referred to.

Lawrence, J.:

I concur in this opinion on the authority of Maxmilian v. The Mayor (62 N. Y., 160).

Judgment affirmed.


author: Barnard, P. J.:

text:
    In the Matter of the Appraisal of the Property of JACOB DURSCHEIDT, Deceased.

      Property set off to a widow under chapter 157 of 1842 — cash may be allowed where there is not sufficient furniture or other property.

    Section 2 of chapter 157 of the’Laws of 1842, as amended, provides that the appraisers of the estate of a deceased person leaving a widow must set apart for her “necessary household furniture, provisions or other personal property,” in the discretion of the appraisers, to the value of not exceeding one hundred and fifty dollars, in addition to the articles exempted from appraisal by the Revised Statutes. A testator left furniture of the value of fifty dollars only, which the appraisers set apart for the use of the widow under the Revised Statutes. He also left money from which the appraisers set apart, under said chapter 157 of the Laws of 1842, one hundred and fifty dollars.
    Held, that the appraisers acted properly in so doing.
    That there being no other household furniture or provisions than such as was set apart to the widow, it was proper to treat the cash as “personal property.” and make the further allowance from it.
    Appeal by Anna Wolfing, as executrix of' Jacob Durscheidt, deceased, from so much of-a decree of the Surrogate’s Court of Kings county, filed in the office of said court on the 3.d day of March, 1892, as directed her to pay to Sophia Durscheidt, widow of Jacob, $150 within five days, and denied a motion of the executrix to amend the inventory of the estate of said decedent.

      The question presented by the appeal related to the right of the widow of a decedent to have certain property belonging to the estate set-off to her by the appraiser in making the inventory thereof.

      Fernando Solinger, for executrix, appellant.

      Julius Klctmke, for Sophia Durscheidt, widow, respondent.
   Barnard, P. J.:

The testator left a very small estate, consisting of furniture of the value of fifty dollars and $614 cash. He left a widow. The appraisers set apart the furniture of deceased for the use of the widow, and also set apart for her $150 in cash, under chapter 157, Laws of 1842. The words of this act provide the exemption in favor of the widow to be “necessary household furniture, provisions or other personal property ” of the value of not over $150. The Court of Appeals, in Matter of Frazer (92 N. Y., 239), held that when the husband gave all the household property to his wife, the $150 exemption could be given out of other personal property. The question is thus narrowed to this, whether money is personal property within the meaning of this statute. It has been so held by Surrogate’s Court. (Lyendecker v. Eisemann, 3 Dem., 72.)

In general signification the bank-book was personal property. The law intended to give an exemption in addition to specific articles named, to this amount, $150, and it should be construed so as to carry out the benign intent of the legislature.

The order should be affirmed, with costs and disbursements.

Cullen, J., concurred.

Order of surrogate affirmed, with costs and disbursements.


author: Barnard, B. J.:

text:
    HARRIET T. STANLEY and Others, Plaintiffs, v. JOHN WILLIAM FRECKELTON, Defendant.

      Foreclosure by advertisement —service upon the personal representatives of the mortgagor — unnecessary where none exist.

    Samuel B. Wilmott, who had mortgaged certain premises in 1855, died in 1861 leaving a will by which he devised the mortgaged premises to his two executors, with directions to sell them and distribute the proceeds. Only one executor qualified, and ho died in 1862 without having exercised the power of sale. In 1869 the mortgage was foreclosed by advertisement under the statute, as amended by chapter 346 of the Laws of 1844, which required that the notice of sale be served upon the personal representatives of the mortgagor. No administrator, with the will annexed, of Wilmott was appointed.
    In an action brought to determine whether the title acquired under the statutory foreclosure was merchantable:

      Held, that it was not the duty of the mortgagee to have a personal representative of Wilmott appointed; and as none such existed the foreclosure was good, the requirements of the statute having been strictly observed.
    Submission of a controversy between Harriet T. Stanley, Julia H. Stanley and Macy O. Woodruff, as plaintiffs, and John William Ereckelton, as defendant, without action, upon an agreed statement of facts.
    The question presented was as to the obligation of the defendant to complete a contract for the purchase by him of certain premises, the title to which was claimed by him to be unmarketable. The premises were originally owned by Samuel D. Wilmott, who executed a mortgage of them to Lawrence Seaman, Jr., and thereafter died leaving no widow, and leaving an only son, who was of full age. Wilmott left a will by which he devised the premises in question to his executors, only one of whom qualified, who died in 1862. The mortgage was foreclosed by advertisement under the statute in 1869, at which time there was no personal representative of Samuel D. Wilmott living, and no subsequent grantees and mortgagees of the mortgaged premises, and no notice of the mortgage foreclosure was served upon anyone.

      A. Fdward Woodruff, for the plaintiffs.

      Chas. F. Moody, for the defendant.
   Barnard, B. J.:

The title to the property in question was in Samuel B. Wilmott. In April, 1855, Wilmott executed a mortgage thereon to Lawrence Seaman, Jr. The mortgage contained the power of sale. Isaac Willetts purchased the mortgage in' March, 1869. In April, 1869, Willetts commenced a foreclosure by advertisement under the Revised Statutes. (2 R. S., 515, as amended by chapter 316, Laws of 1811.) Wilmott died in 1861, leaving a will and devising his lands to his executor to sell and distribute the proceeds of sale among the children of testator’s brother. One of the executors only qualified, and he died in 1862, and no administrator with the will annexed was ever appointed. Wilmott left one child only, a son of full age. By the amendment of 1811, in case of the death of the mortgagor, the notice of sale was required to be served on the personal representatives. The sale of the mortgaged lands was made without the service of such notice, and the plaintiff’s predecessor in title obtained a deed in July, 1869, under the sale. The plaintiff and his grantors have been in possession claiming title since that time. The defendant agreed to buy the same and the question is whether the title is a merchantable one. There are two General Term decisions bearing upon the question.

Anderson v. Austin (31 Barb., 319) holds that where there was no executor or administrator the foreclosure was good if condxicted in the mode otherwise prescribed by statute. The point was directly involved, for the judge (Emott) held -at circuit that the rights of all parties were cut off.

King v. Duntz (11 Barb., 191) and Cole v. Moffitt (20 Barb., 18) seem to support this view of the statute. The case of Bond v. Bond (51 Hun, 507) upholds the same view. Notice of sale in this case was served on certain persons other than the personal representative of a deceased mortgagor, and the sale was held good as to this person. The statute as to foreclosure by advertisement was, fully observed, and it was not the fault of the mortgagee if those interested in the estate did not have personal representatives appointed to succeed the deceased executor. The judgment should, therefore, be that the defendant takes the title.

Dtkman, J., concurred.

Judgment upon submitted case that the defendant takes the title.


text:
    THE VILLAGE OF NEW ROCHELLE, Appellant, v. HENRY S. CLARK, Respondent.

      Ordinances against making fires in a milage street — all the words thereof must be given an effect.

    A village ordinance provided as follows: “Sec. 2. No hay, straw, chips, shavings or other combustible substance shall be set on fire or burnt in any street, at any time, or in any lot of the village, except between the rising and setting of the sun, under the penalty of ten dollars, by any person directing or causing the same to be done.”
    In an action brought to recover the prescribed penalty against Henry S. Clark, who had directed that a fire be made in a street of the village:

      Held, that he was liable therefor.
    That the ordinance forbade the making of fires in the. streets at any time, but permitted a fire to be made in a lot between sunrise and sunset.
    That ordinances must be so construed as to give effect to all the language employed.
    Appeal by the plaintiff, the Village of New Rochelle, from an order of the County Court of Westchester county, entered in the clerk’s office of said county ón the 27th day of February, 1892, reversing a judgment in favor of the plaintiff for ten dollars, rendered by a justice of the peace; and also from a judgment of said court, entered in said clerk’s office on the same day, in favor of the defendant for costs.

      Ghables H. ffoxon, for the appellant.

      G. S. <& J. H. Young, for the respondent.
   Barnard, P. J.:

The question presented involves only a construction of an ordinance of the plaintiff, which is in these words :

“ Section 2. No hay, straw, chips, shavings or other combustible substance shall be set on fire or burnt in any street, at any time, or in any lot of the village, except between the rising and setting of the sun, under the penalty of ten dollars, by any person directing or causing the same to be done.”

The defendant directed a fire to be made in a street of the village. The. case does not show whether the fire was made between sunrise and sunset or not. If a fire could be kindled in the street at any time, the justice was wrong and his finding was properly reversed. The ordinance forbids fires in the street “at any time,” but permits a fire in any lot of the village between sunrise and sunset. To make the exceptions cover streets and lots, violation would be done to the section by striking out the words as to the streets which forbid fires at any time. If the section be read so as to except fires in lots in the daytime, all the words will have a place and meaning. Statutes are to be construed so as to give effect to all the language employed. (Matter of New York and Brooklyn Bridge, 12 N. Y., 527.)

I think the true meaning of the law is that fires are out of place in the streets of a village at all times, and fires in lots at night are terrifying and dangerous when the people are not awake to meet the danger.

The judgment of the County Court should be reversed, and that of the justice affirmed, with costs.

DyKMAN and Oullen, JJ., concurred.

Judgment of County Court reversed, with costs, and judgment of justice affirmed.