text:
    H. MARVINE WOOD, as Superintendent of the Poor of the County of Delaware, Plaintiff, v. CHARLES E. SIMMONS and Others, as Commissioners of Public Charities, etc., and THE MAYOR, etc., OF THE CITY OF NEW YORK, Defendants.

      Pauper — a day labora•, who supported his family in one county, until immediately after moving into another county he becomes disabled and a county charge, is not a pauper within chapter 486 of 1888.
    A day laborer, having a wife and family whom he supports by his wages, who moves from one county into another, and becoming disabled in the latter county becomes a county charge, is not a pauper within the provisions of the statute, providing that “ any pauper so removed, brought or enticed, or who shall of his own accord come or stray from one city, town or county into any other city, town or county not legally chargeable with his support, shall be maintained by the county superintendent of the county where he may be,” and that such county superintendent shall have a right of action over for the expense so incurred against the city, town or county from which he came.
    Application for judgment in a controversy submitted upon admitted facts under section 1279 of the Code of Civil Procedure.

      J. B. Gleason, for the plaintiff.
    W. L. Turner, for the defendant.
   Van Brunt, P. J.:

The plaintiff is a superintendent of the poor of Delaware county, in the State of New York. On the 17th of May 1883, and for six years immediately prior thereto, one Motolario had his residence in the city of New York, but during some parts of this time was employed as a day laborer on the line of the Ontario and Western Eailway, a railway running through various counties of the State, and among them Delaware county. During this period Motolario maintained a wife and family in the city of New York, in the winter living with his wife and family, and when employed away from said city upon said railway, during other seasons of the year, sending his monthly wages to his wife for her support and that of his family. His only means of support were his wages as an ordinary day laborer. On or about the 1st of April, 1888, he came to the town of Sidney in the county of Delaware, and was there employed on the. said Ontario and Western Railway np to the Wth of May 1888, upon which day he was seriously injured by an accident, and it became necessary to forthwith amputate his right leg and left 'foot and to provide attendance for him. By reason of the accident-Motolario became wholly without means to provide for himself, and application was immediately made to the plaintiff as superintendent of the poor in the county in which the accident happened, and thereupon he was relieved and assisted by the plaintiff as such superintendent and the expenses of his support and maintenance necessarily and actually made and paid out by the plaintiff, as such superintendent, were $430.51. Prior to the accident Motolario was an able-bodied man, earning wages sufficient, but not more than sufficient, to support himself and family without the need of any assistance from the authorities either of Delaware or New York counties, and he did not receive any assistance from said counties prior to said accident. On the 31st of May, 1888, the plaintiff served upon the Board of Charities and Corrections a notice, in writing, that they were required to provide for the relief and support of said pauper. The Board of Charities and Corrections did not, within thirty days, either take or remove Motolario to their county, or there support him or pay any of the aforesaid expenses of such notice or of the support of said Motolario. Upon the lltli of July 1888, the claim was presented to the corporation, and the comptroller refused to make any adjustment or payment of said claim.

In August, 1888, the plaintiff commenced an action against the Board of Commissioners of Charities and Corrections, to recover the aforesaid claim, which action was discontinued upon submission of the controversy. The questions submitted to the court upon this case are: Was Motolario a pauper, within the meaning of the statutes in such case made and provided ? Is. the said expense of $430.51 a proper charge against the city and county of New York?

The question, therefore, presented is whether the comity of New York is liable for the support of each and every person who may be a resident within the city of New York,' and who, while in another county, engaged in the earning of a livelihood for himself and family, has, by an accident occurring therein, become wholly incapable of providing for • himself. The rights of the parties depend upon the Revised Statutes as enacted or codified in 1830, and as modified by chapter 546 of the Laws of 1885; the amendment of chapter 486 of the Laws of 1888 not being applicable,'as such amendment was made after the right of action herein accrued, if any. By section 31 of title 1 of chapter 20, part 1 of the Revised Statutes (1 R. S., 622), it is provided as follows: “ No person shall be removed, as a pauper, from any city or town to any other city or town of the same or any other county, nor from any county to any other county, but every poor person shall be supported in the town or county where he may be, as follows: 1. If he hath gained a settlement in any town in such county, he shall be maintained by such town. 2. If he hath not gained a settlement in the county in which he shall become poor, sick or infirm, he shall be supported, and relieved by the superintendents of the poor, at the expense of the county. 3. If such person be in a county where the distinction between town and county poor is abolished, he shall, in like manner, be supported at the expense of the county, and in both the cases aforesaid, proceedings for his relief shall be had as hereinafter directed. 4. If such pauper be in a county where the respective towns are liable to support their poor, and hath gained a settlement in some other town of the same county than that .in which he may then be, he shall be supported at the expense of the town where he may be, and the overseers shall give notice, in writing, to the overseers of the town to which such pauper shall belong, or to any of them requiring them to provide for the relief and support of such pauper.”

The remaining sections to which it is necessary to call attention are sections 58, 59, 60, 61 and 62 (1 R. S., 628, 629). Under these sections it has been decided, and it is conceded upon the part of the plaintiff, that if any pauper shall not have gained a settlement in the county in which he shall become poor, sick or infirm, the provision that “ proceedings for his relief shall be had as hereinafter directed ” were left without application. It is claimed, however, that this difficulty was remedied by chapter 546 of the Laws of 1885, which amended section -59 so as to read as follows: “Any pauper so removed, brought or enticed, or who shall, of his own accord, come or stray from, one city, town or comity into any other city, town or county, not legally changeable with his support, shall be maintained by the county superintendents of the county where he may be.” The portion in italics being the amendment.

Under this provision it is claimed that a liability, upon the part oí the city of New York, exists in favor of the superintendent of the poor of Delaware county. This section reads: “ Any pauper so removed (referring to § 58), brought or enticed, or who shall, of his own accord, come or stray from one city town or county into any other city, town or county not legally chargeable with his support shall be maintained by the county superintendents of the county where he may be.” And such superintendents may give notice to the overseers of the poor of the town from which he was brought or enticed, if, such town be liable for his support; and then by taking certain other proceedings they may fix the liability for such support upon said town or county. It is assumed by the plaintiffs that the words, “ poor person,” referred to in the statute, mean those who depend on their daily labor for their support. We think this is an erroneous construction in that the terms “poor person” and “ pauper ” are used interchangeably in the statute; and a person who has always supported his family and himself by his labor cannot be designated a pauper, nor is he such a poor person as is referred to in the statute as one liable-, to become a public charge. But in the section in question, by virtue of which the plaintiff claims, the words “ poor person ” are not used. The provision of the section is that any pcmjper who shall, of his own accord, come or stray from one county into any other county not legally chargeable with his support. This certainly does not mean an able-bodied man who has always maintained himself and family by his own exertions and who has come into another county and there, without fault upon his part, by means of an accident lias become unable to support himself. Such a man is many degrees removed from the condition of a pauper, and it is only in case any pauper shall, of liis own accord, come or stray from one city, town or county into any other city, town or county that the liability of the town or county from whence he came exists.

It seems to us that the amendment of 1885 in no way relates to the question now before the court. It in no way applies to such a person as this Motolario, and by no' forced or strained construction of the statute can he be held to be deemed a pauper; and if he was not a pauper at the time he came or strayed into Delaware county, the city of New York is not liable for his maintenance and support because of the accident which happened to him within the confines of that county, and which took away the means of earning his livelihood.

Judgment ordered for the defendant, with costs.

Brady and Daniels, JJ., concurred.

Judgment for the defendant, with costs.


source: Caselaw Access Project

author: Van Brunt, P. J.:

license: Public Domain

text:
    SAMUEL MEEKS and Others, as Executors, etc., of JOHN MEEKS, Deceased, Respondents, v. JULIA A. RING, Appellant.

      Olwmge in the condition of demised premises between the letting thereof and the com‘meneement of the term—construction of a lease for “ a term of three yea/rsfrom the first day of May," as to the commencement of the term

    Although there is no implied warranty in the letting of a house that it shall be reasonably fit for habitation, or for any other purpose for which it is let, yet there is an implied warranty that the condition of the premises shall be substantially the same at the beginning of the term as at the time of the execution of the lease thereof
    If any material change has taken place during this period in the condition of the premises, the tenant is not hound to accept the same under the lease made thereof.
    Where a tenant has taken a lease of premises “for the term of three years from the 1st day of May, 1884,” which provides for the payment of the rent in advance on the first days of May, November, August and February, in each and every of said years, and contains a provision that, in case the demised premises should he partially destroyed by fire and not rendered wholly untenantable, the same should be repaired with all speed at the expense of the lessor, and afire occurs on the premises prior to twelve o’clock noon on the first day of May, not rendering them wholly untenantable, the tenant must be governed by the provisions of the lease relating to a partial destruction of the premises by, fire, as under such a lease the term commences on the first day of May.
    Appeal from judgment entered in the 3STew York county clerk’s office January 20,1886, upon verdict directed in favor of the plaintiffs.

      G. W. Cotterill, for the appellant.

      J. R. Reed, for the respondents.
   Van Brunt, P. J.:

In March, 1884, the plaintiff leased to the defendant, by a written indenture of lease, the premises 136 Madison avenue, for the term of three years from the 1st day of May, 1884. This lease contained a provision that, in case the premises leased should be partially damaged by fire and not rendered wholly untenantable, the same should be repaired with all speed at the expense of the plaintiff ; but in case the damage should be so great as to render the premises untenantable the rent should be proportionately paid up to the time of such destruction, and from thenceforth should cease until such time as the same should be put in good repair. Prior to twelve o’clock on the 1st of May, 1884, a fire occurred on the premises by which they were more or less damaged, • according to the testimony of the defendant, to such an extent that they could not be occupied by her, and which, she testified, was admitted by the plaintiff; but, according to the plaintiff, such injury was slight, and although it required repairing, yet still it would not have interfered with the occupancy of the premises by the defendant. The defendant having refused to take possession, this action was brought to recover for the first quarter’s rent. The defendant resisted the claim, and, upon the trial, a verdict was directed in favor of the plaintiff. ■

In the disposition of the case we are somewhat embarrassed by the fact that there was no request to goto the jury, and that both parties insisted upon a direction. The court granted the motion of the plaintiff, and this was duly excepted to by the defendant. Although there is no implied warranty in the letting of a house that it shall be reasonably fit for habitation or any other purpose for which it is let, yet there is certainly an implied warranty that the condition of the premises shall remain substantially the same between the time of the execution of the. lease and the beginning of the term. If this is not the case, then the landlord is not in a condition to tender for occupation that which is described in the lease and which has been hired. Therefore, if any material ■ change has taken place during this period, it is clear that the tenant is not bound to take possession as the.premises tendered are not those hired.

In the case at bar there was evidence tending to show that the premises, because of the fire, were unfit for the purposes for which the defendant hired them tó the knowledge of the plaintiff, and that this was conceded by the lessor. .If this was true, and this changed condition occurred prior to the commencement of the term, the lessee was not bound to take possession of the premises, as they were not in the condition in which they were when she executed the lease. It is true that this evidence is contradicted on the part of the plaintiffs, but this contradiction would not, under such circumstances, justily a direction in their favor, there being this conflict-of testimony.

The covenant in the lease in regard to repairs, to which attention has been directed, is referred to as applicable to the case at bar; and that because the premises were not rendered wholly untenantable, the rent was not suspended and the defendant was bound to take possession. It is apparent, from a reading of the lease, that this covenant has no application to any period of time prior to the commencement of the term, as the provision of the lease is that in- case the damage shall be so extensive as to render the premises untenantable, the i'ent shall be'proportionately paid up to the time of such destruction, and shall from thenceforth cease until such time as the same shall be put in good repair. The damage by fire here referred to is clearly a fire occurring during the term, and can have no application to damage which has occurred before the commencement of the term.

The. real question presented, therefore, is, wdien did the term commence under this lease ? It has been held, since the cases of Thornton v. Payne (5 Johns., 74) and Wilcox v. Wood (9 Wend., 346), that a lease of premises from the first of May in one year to the first of May in the succeeding year excludes the first day. But the true rule seems to have been laid down by Lord Mansfield in Pugh v. The Duke of Leeds (2 Cowp., 714), which was, “ that the-words ‘ from a day ’ may either include or exclude that day according to the context and subject-matter;” and the court will construe it so as to effectuate the intentions of the parties and not to destroy them. In a comment upon this decision, it has been suggested that it is at least singular that the same court, which decided the case cited but three years before, gave an opposite judgment upon almost precisely the same state of facts. (Doe v. Watton, 1 Cowp., 189.) The latter judgment, however, should be considered as the binding one, approved as it has been in the case of Ackland v. Lutley (9 Adol. & Ell., 879).

Applying this rule to the case at bar, it will be seen that it undoubtedly was the intention of the parties that the term should commence on the first of May. The habendum of the lease was “to have and to hold * "x". * from the 1st day of May, 1884, for and during and until the full end and term of three years thence next ensuing and fully to be complete and ended.” The rent was provided to be paid in equal quarterly payments in advance, to wit, on the first days of May, November, August and February in each and every of said years. This language clearly indicates that the rent was to be paid at the commencement of each quarter, the first payment being coincident with the commencement of the term. That the term was understood to commence on the first day of May is also indicated by the acts of the parties, as the lessee expected to take possession on that day.

Under these circumstances, it must be held that the term commenced on the first of May, and the fire occurring during the term covered by the lease, the rights of the parties must be governed by its provisions in respect thereto. The damage was not of a character to absolve the tenant from the payment of rent under the lease, and, consequently, although it seems a hard case for the appellant, the respondent was entitled to a recovery in this action.

The judgment should be affirmed, with costs.

Beady and Macombbe, JJ., concurred.

Judgment affirmed, with costs.


text:
    JOHN A. McILHARGY, as Assignee of CONRAD W. WENNBERG, for the Benefit of Creditors, Plaintiff, Respondent, v. JAMES CHAMBERS and Others, Defendants, Appellants.

      Assignment for creditors — attempt to hold it, aft&r execution, until the assignor’s ability to continue business can be determined, renders it void.

    A general assignment for the benefit of creditors was signed and acknowledged by the assignee therein named, on the 24th day of June, 1886, and, afterwards, on the same day, was executed by the assignor and duly acknowledged by him, with the intention that if the debtor should find himself unable to continue business, then the assignment should be delivered to the assignee and go into effect. The assignment was left with the attorney of the assignee, and subsequently the assignor went to the attorney and received from him the assignment, and delivered it to him again as agent for the assignee.

      Held, that, under the statute relating to general assignments, this instrument was not executed as required by the statute.

      Semble, That the signing of the assignment by the assignee before it was executed by the assignor was improper. •
    That when an assignment is executed by both of the parties it is a complete instrument and requires no further action to become operative; that the attempt of the attorney to hold the assignment, and his subsequent acceptance of it for the assignee, constituted an attempt to circumvent the provisions of the statute and was a fraud upon the creditors of the assignor.
    Motion, on the part of plaintiff, for judgment on a verdict rendered at the ¡New York Circuit on January 4, 1888, and upon the part of defendant to set aside the verdict, the exceptions having been ordered to be heard in the first instance at General Term.
    The action was brought for the wrongful seizure under execution of certain personal property.

      Blumenstiel & Hirsch, for the appellant.

      J. L. Bennett, for the respondent.
   Van Brunt, P. J.:

On the 24th of June, 1886, one Conrad W. Wennberg was the owner and in possession of a stock of goods at his store 34 Green street, New York. At that time two suits, brought against him by James Chambers, founded upon promissory notes, were pending in the City Court of New York. A defense had been interposed by Wennberg in each case, and they had heen placed on the short cause calendar for June 25, 1886. On said twenty-fourth of June a general assignment by said Wennberg to the plaintiff for the benefit of creditors, in the usual form and with the assent of the plaintiff, embraced therein in writing, was prepared by Wennberg’s attorney; and such instrument was on that day at the attorney’s office first subscribed and acknowledged by the plaintiff, Wennberg not being present at the time, and later, but on the same day, by Wennberg the assignor. After Wennberg had signed and acknowledged the instrument he left it with the attorney, no instructions or authority having been given to do anything with it except to hold it. According to Wennberg’s testimony, he had had the instrument prepared for use if lie found himself unable to continue business, and was told it would not take effect until he delivered it. On said twenty-fourth of June he had not decided whether he would deliver it or not, and thereupon the plaintiff authorized the attorney to receive it for him as his agent if Wennberg decided to deliver it.

The cases pending in the City Court were adjourned to July second, and Wennberg liad not in the meantime decided whether he would deliver the assignment. On the second of July the cases were tried and a verdict rendered in favor of the plaintiff in those cases and the defendant in this action. On the following morning Wennberg went to his attorney, received from him the assignment, and then and there delivered it to said attorney as agent for the plaintiff. It was recorded immediately, and the assignee took actual possession of the property as soon as he could do so. Execution having been issued to the sheriff upon the judgment obtained in the City Court, and the sheriff being indemnified upon said execution, seized the property embraced in the assignment, and this action was brought for said wrongful taking against the sheriff, and the defendants, being the indemnitors of the latter, were substituted as defendants.

Upon this state of facts the court directed a verdict in favor of the plaintiff, and the jury duly assessed the damages sustained by the alleged trespass of the sheriff. The question presented is, as to whether any valid transfer to the plaintiff had been made of the property in question by the assignment of June 24, 1888. It is urged, upon the part of the plaintiff, that the assignment was valid because there had been no delivery until the third of J uly, and that until such delivery took place the title did not pass to the property-mentioned therein, and it was wholly inoperative. If this position can be sustained, then, clearly, the direction of the court was right But we think, however, that in this proposition certain peculiar features of the assignment law are entirely overlooked and their force misapprehended There is no doubt but that, under ordinary circumstances, two parties may execute an instrument and place it in escrow, to be delivered upon a future contingency, and that it does not become operative until such contingency arises and such delivery takes place. It is also an undoubted fact that delivery, in all cases, is essential to the due execution of any instrument. The mere signature and acknowledgment of any instrument does not complete its execution. But sucli signature and acknowledgment must be followed by delivery in order that the instrument shall become operative. It is also true that, in the case of an assignment for the benefit of creditors, there must be a delivery of the instrument to the assignee and the acceptance of the trust by the assignee before the title to the property proposed to be assigned passes. And it was in view of these circumstances ,tliat the legislature saw fit to amend the act of 1860 in a very significant manner in reference to the acceptance by the assignee of the trust reposed in him by the assignment. Under the law, before 1877, the assignee did not execute the assignment or any acceptance of the trust contained therein, and, consequently, it was necessary to give proof of acceptance by parol. It was thus a matter of uncertainty, dependent upon the evidence of, perhaps, parties interested in the issue as to when the assignment took place; in other words, when it was delivered to the assignee so that the title to the property embraced therein passed. And in order to prevent any uncertainty as to the time at which the transfer of the property took place, the assignment law was amended in 1877 whereby it was required that the assent of the assignee, subscribed and acknowledged by him, should appear in writing embraced in or at the end of or indorsed upon the assignment before the same was recorded. The legislature thereby intended to fix the time as to when the assignment went into effect, namely, at the time when the assignee accepted the trust which had been reposed in him.

The provision of the law is that the assignment should be recorded. Of course it could not be recorded unsigned, but the whole tenor of the decisions is, that it shall be recorded as soon as possible after execution; and that any withholding of the assignment from the record purposely for any purpose whatever is a violation of the law and invalidates the whole instrument. This being the condition of the law, it may be very well argued that the proposed assignee could not execute or signify his assent, according to the statute, to the proposed assignment, before it became an assignment, because the provision of the statute is that the assent, of the assignee shall appear in writing, embraced in or at the end of or indorsed upon the assignment ; and it is not in any sense an assignment until it is executed by the assignor. It is no answer to this suggestion to say that the proposed assignee might assent to the proposed assignment. That is not the statute. The statute is that his assent shall be embraced in or at the end of or indorsed upon the assignment. And from the position of the provision in the act relating to the execution and recording of assignments it is apparent that the assent must be indorsed upon a completed instrument as far as the assignee is concerned. And if the instrument has been completed it has been delivered to the assignee, and his assent is indorsed upon an instrument which has been delivered to him and over which he has control.

But if the act does not bear this construction, it is apparent that when the two parties had completed their signatures and acknowledgment of the instrument, it was a completed instrument, the delivery of which had taken place by operation of law, for the reason that if the assignee, by executing the assignment, as he did, was signifying his assent to a proposed trust, the moment the assignor executed the instrument, the trust was created and the assignment became complete. And it is to be observed that the attorney who held this paper during all this time, while he was holding the paper as attorney for Wennberg, when he desires to use it, he is the attorney for the assignee. And there is no more familiar principle relating to the execution of instruments, that neither the grantee nor his agent can hold such an instrument in escrow, but that a delivery to the grantee or his agent is a complete execution of the instrument, and it cannot be held by him subject to the further action of the grantor. Taking all these circumstances into consideration, it appears, conclusively, in the first place, that the assignment was not executed as provided by the statute. Anri, in the second place, that when it was executed by both of the parties, it was a complete instrument, requiring no further action, and became operative by the very force of the statute. And, in the third place, the attempt of the attorney to hold the assignment for Wennberg, and receive it for the assignee, was the placing of the assignment virtually in escrow, in the hands of the agent of the grantee. It is clear, therefore, that it was an attempt to circumvent the provisions of the statute. It was intended to have this assignment in a condition to be used immediately, without any action upon the part of the assignee. It was intended that the execution of the assignment and the assent of The assignee sliould relate back to the twenty-fourth of June; and it. was intended, upon the part of the assignor, that, although this assignment had been placed out of his control, and in the hands of the agent of the assignee, and, therefore, virtually of the assignee, he should have the power to revoke it if he should find it necessary so to do. All these circumstances show that it was an attempt to circumvent the statute, to prevent that certainty in reference to the passing of the title which the statute required, and to have the power of recalling the assignment after it had been delivered, all of which constituted a fraud upon the creditors and necessarily rendered the assignment void.

It would appear, therefore, that the exception to the direction was well taken, and that such exception must be sustained and a new trial ordered, with costs to appellant, to abide event.

Daniels and Bartlett, JJ., concurred.

Hew trial ordered, with costs to the appellant, to abide event.


text:
    HIRAM LOCKWOOD, Appellant, v. MARY LOCKWOOD and Others, Defendants. JOHN O. BAKER, Purchaser, Respondent.

      Will—executed and admitted to probate in another State — when an exemplified copy filed in a surrogate’s office in this State is not evidence thereof.

    A testator died in South Carolina, where his will was made, executed and witnessed by three persons, and was admitted to probate in accordance with the laws of that State. An exemplified copy thereof was filed and recorded in the surrogate’s office of the county of New York, in this State, together with certificates of the judge of the Court of Probate, and of various lawyers of South Carolina, to the effect that the original will could not, under the laws thereof, be removed from the records of the latter State. Upon the admission of the will to probate in South Carolina only one witness appeared and was examined as to to its execution, and there was no proof either as to the absence of the other witnesses or as to their handwriting, or any proof whatever in reference to said witnesses, nor did the attestation clause state that the witnesses signed such will at the request of the testator.

      Held, that the statute of this State (chap. 811 of 1864, as amended by chapter 680 of 1873), as it stood when the will was recorded, did not make this exemplified copy of the will evidence thereof in this State, as it appeared upon the examination of the record itself that the will had not been executed in such a manner as to comply with the laws of this State.
    Appeal from an order entered in the New York county clerk’s office, June 28, 1888, denying a motion to require a purchaser to complete his purchase under a sale in a partition suit.

      Edward H. Rockwell, for the appellant.

      C. L. Wescott, for the respondent.
   Van Brunt, P. J.:

The objections to the title in question are made because of defects in the execution and probate of the will of one John N. Williams, through whom the title was derived. John N. Williams died in South Carolina, where his will was made, executed and witnessed by three persons and admitted to probate in accordance with the laws of South Carolina; and an exemplified copy thereof was filed and recorded in the surrogate’s office in the county of New York, and certificates of the judge of the Court of Probate and various lawyers of South Carolina were attached and recorded with the will, which showed that it could not be removed from the records of that State, and hence could not be produced here.

Upon the admission of the will.to probate in South Carolina but one witness appeared and was examined as to its execution; and there was no proof either as to the absence of the other witnesses or of their handwriting or any secondary proof whatever in reference to said witnesses. There was no proof nor did the attestation clause state that any witness signed such will at the request of the testator, It is clear that, under these circumstances, the will was not executed or proven according to the laws of the State of New York. But it is claimed that, in view of the peculiar legislation authorizing the recording of wills admitted to probate in another State or territory, these objections cannot prevail. The law of this State as it stood when the will was recorded (Laws of 1864, chap. 311, as amended by the Laws of 1812, chap. 680), provide that where any real estate situate in this State has been or shall hereafter be devised by any person residing out of this State and within any other State or territory of the United States, and the will of such person shall have been finally admitted to probate in such other State or territory and filed or recorded in the office or court where the same shall have been admitted to probate, an exemplified copy of such last will and testament or of such record thereof, and of the proofs, may be recorded in the office of the surrogate of any county in this State where any real estate so devised is situated, which record, in said surrogate’s office, or an exemplified copy thereof, shall be, in cases where the original cannot be produced, presumptive evidence of said will and of the due execution thereof in all cases or proceedings relating to lands so devised.

The objection made by the plaintiff certainly has some support from the language of this provision, but in the construction of this portion of the law we must have regard to ,the intention of the legislature and the objects sought to be attained. It is apparent what the intention of the legislature was, namely, to allow an exemplified copy of the will and the proofs which have been recorded in another State or territory where the original could not be produced, to have the same effect as though the original had been so produced. It certainly was not the intention to give greater effect to the exemplified copy of a will and the proofs than would be given to the will itself. If such a construction is to be placed upon this section, then we would have this peculiar condition of circumstances, that a will executed in South Carolina, acording to its laws, but not according to the laws of the State of Hew York, devising real estate in Hew York, would be effectual because of the laws of South Carolina that a will which is probated must be filed and cannot be removed from the record for the purpose of production in Hew York, whereas, a will made in Horth Carolina, according to the laws of Horth Carolina, admitted to probate in Horth Carolina, but not executed according to the laws of Hew York, would not be effectual to pass the title to real estate in Hew York, because the laws of Horth Carolina authorize the taking of the will off the files for the purpose of probate elsewhere. Such a condition of affairs was never contemplated, and all that was intended by the legislature was that the exemplified copy of the record should be as effectual as the production of the original in those cases, where, in consequence of the law of the residence of the testator, the original could not be produced. It was never intended to change the requirements of the laws of this State in regard to the descent of real estate, It is true that the language of the section is that the exemplified copy, in cases where the original cannot be produced, shall be presumptive evidence of the will and of the due execution thereof. But it is only presumptive evidence, and where, upon an examination of the record itself, it is apparent' that the will has not been executed in such a manner as to comply with the laws of this State in reference to the transmission of real estate, the presumption is overcome and no longer exists.

The claim upon the part of the appellant, that the record is of more value than the original, shows the falsity of the position, and the construction of the section does not necessarily depend upon any such absurd rule.

We are of opinion, therefore, that the will, not being executed in accordance with the laws of this State so as to pass real estate, no title to the devisee thereunder passed, and the order appealed from should be affirmed, with ten dollars costs and disbursements.

Daniels and Bartlett, JJ., concurred.

Order affirmed, with ten dollar costs and disbursements.


text:
    In the Matter of MARY E. HYNES as General Guardian, etc.

      Agreement between an attorney and client to bring a suit on sha/res— when a determination, upon a reference, as to the value of the propei'ty forming the basis . of the attorney’s claim, is conclusive in all subsequent proceedings.

    An action having been brought on behalf of an infant under an agreement between his mother, as general guardian, and the attorney in the action, whereby the attorney was to receive one-third of the value of all property recovered thereby, and a judgment having been recovered in such action in favor of the infant, an application was made by the mother and general guardian to sell certain real estate of the infant in order to pay debts from the proceeds thereof, on which application a reference was ordered to inquire into the merits of the application and as to the truth of the allegations of the petition.
    The referee made a report that there existed an indebtedness to such attorney on the part of the infant, in the amount of one-third of the net value of the property recovered in such action, and determined and stated the value of the property so recovered and ascertained thereby the amount of the indebtedness. This report was denied confirmation on the ground? that there was not sufficient evidence as to the reasonableness of the agreement between the general guardian and the attorney. The matter having been referred back to the referee a supplemental report was thereafter made, which was confirmed, adjudging, upon the basis of the estimated value of the property recovered, that the indebtedness of the infant, under the agreement made with the attorney, was over $40,000, and the special guardian was authorized to sell the real estate and pay such sum out of the proceeds of such sale to such attorney.
    The property was subsequently sold and realized less than the estimated value thereof, as fixed by the referee, whereupon the special guardian petitioned the court asking that the alleged indebtedness to the attorney be reduced to one-third of the net proceeds' of the sale.

      Held, that the amonnt of such indebtedness having been determined on the previous reference, that it was too late thereafter, upon the subsequent sale of the property, to object that it was not of the value which it had been found to be by the referee upon such prior reference.
    Appeal from order of the New York Special Term, made December 31, 1886, and entered in the New York county clerk’s office January 26, 1887, reducing compensation of John L. Brower, an attorney.

      T. H. Baldwin, for J. L. Brower, appellant.

      David McClure, for the Farmers’ Loan and Trust Company, special guardian.

      Simpson & Werner, for Solomon Kohn, receiver of property of Mary E. Hynes, respondent.
   Van Brunt, P. J.:

Actions to establish the legitimacy of the infant sons of W. B. Hynes, and to recover his real estate for them, commenced by Mr. Brower, under an agreement between Mrs. Hynes, the mother and general guardian of said infants, and himself, whereby, in consideration of his services, his compénsation was to be a sum of money equal to one-third of the value of all said property recovered and restored to her and her children.

After a long litigation these actions were successful and real estate of large value was recovered. On the 1st of April, 1884, Mrs. Hynes, having presented her petition for leave to sell certain real estate in order to pay debts, an order was made referring it to a referee to inquire into the merits of the application and the truth of the allegations of the petition, and to hear the allegations and proofs of all persons interested in the property or in the application, and report with his opinion thereon, particularly as to the alleged indebtedness of the infants, together with the testimony, with all convenient speed.

In June, 1884, the referee made a report reporting, among other things, as a debt of the said infants, the amount of one-third of the net value of the property recovered under the agreement above mentioned, and then proceeded to assess the value of the property, and reported that over $19,000 was due from each of the infants to Mr. Brower upon the valuation found hy him. Upon the coming in of the report, confirmation was denied upon the ground that there was not sufficient evidence as' to the reasonableness of the agreement between Mrs. Hynes and Mr. Brower, and it was referred back to the referee to enable the parties to produce additional proof upon this point. After proceedings before the referee upon this new order of reference, a supplemental report was made to this court in September, 1885. On the 8th of June, 1886, an order was entered confirming said report and adjudging, upon the basis of the estimated value of this property, that the indebtedness from these infants and Mrs. Hynes under the agreement made for the prosecution of the suits was over $40,000. The special guardian was authorized to sell and was directed to pay to Brower out of the proceeds of the real estate the sum adjudged to be due.

Some portion of the property was sold almost immediately thereafter ; and the sale of other parts of the property was deferred for some time, and resulted in a price less than the estimated value in 1884, at the time of the reference in question. Thereupon the special guardian petitioned this court to reduce the alleged indebtedness to Brower to one-third of the net amount of the proceeds of the sale, deducting taxes, etc., down to the time of passing title to the purchaser, which motion was granted by the court below, and from the order thereupon entered this appeal is taken. The proceeding out of which this controversy arises was a proceeding upon the part of a general guardian to sell real estate belonging to infants, in order to pay the indebtedness of the infants incurred by the general guardian on their behalf. The agreement between the general guardian and Mr. Brower being made between attorney and client, before he could claim anything upon that agreement he' was bound to show that it was reasonable, and that he had thereby taken no undue advantage of Ms client; because it is a familiar rule that, in all agreements between attorney and client, the presumption is against the attorney, and he must show that the agreement made with his client for compensation is not an extortionate one, but is reasonable. It was this question which was referred to the referee, and this alone, so far as the claim of Mr. Brower was concerned. However, in the consideration of this question the referee- was compelled to take proof of the value of the property in order to show the amount which would be received by Mr. Brower as the result of these litigations, in pursuance of his agreement • with the general guardian. This question of amount was a very essential one to be considered in - determining the question as to the reasonableness of the agreement. If the report of the referee had stopped there and the action of the court had stopped there, and the court had simply determined that the agreement was reasonable, and that Brower was entitled to receive one-third in value of the premises recovered in these -litigations, the contention, upon the part of the respondents, would have been established, namely, that the question of the amount of the indebtedness was not in litigation or in controversy in that proceeding, and, as a conclusion, there would have been no adjudication which would be binding upon the infants or their representatives.

But the referee went further and determined the amount of the indebtedness which was due to Brower from these infants-; and the court in confirming his report adjudged that a certain amount was due from these infants to Brower. It is to be observed that Brower’s compensation was not to depend upon the sale of the premises recovered. His agreement was that he should receive a sum of money equal to the one-third of the value of said property recovered and restored to Mrs. Hynes and her children. Therefore, in determining as to the reasonableness of this agreement the value of the property was a necessary fa*ct to consider; and in determining the amount of the indebtedness, such indebtedness was necessarily determined by the value of the property recovered, and, thereupon, upon the coming in of the report, the court adjudged the indebtedness to be thus and so, and from this order an appeal was taken to the Court of Appeals, the order was affirmed, and, therefore, became the final order of this court. In this proceeding, the court having undertaken to ascertain the amount of the indebtedness of the infants, and the creditors having proved their claims and the court having adjudged certain amounts to be due to those creditors, it is difficult to see how this adjudication can be interfered with.

If the terms of the agreement between Mrs. Hynes and Mr. Brower, fixing the latter’s compensation, had contemplated that such compensation should be determined by the sale of the property recovered, then, perhaps, there might be some foundation for the position taken upon the part of the respondents. But, as already said, Brower’s right to compensation nowhere depended upon a sale, but he was to be entitled to recover a sum of money equal to one-third of the value of the property recovered. This debt the general guardian sought to pay by a sale of the infant’s estate, and this debt Brower established before the referee, and the court adjudged to be due to him, which adjudication was affirmed by the Court of Appeals. It seems to us that now it is too late to say that the' property was not of the value which it was found to be in the proceedings before the referee.

We have not referred, in the foregoing opinion, to the question in regard to the compensation of counsel, because that is not at all necessary. .The claim that the Special Term had power to correct, amend, modify or alter its previous order is not well founded, in view of the fact that such order was an adjudication upon rights over which it had jurisdiction, and was not simply an order but a judgment.

The order should be reversed, with ten dollars costs and disbursements.

Daniels and Babtlett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.


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

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN J. O’BRIEN Respondent, v. STEPHEN B. FRENCH and Others, Constituting the Board of Police of the City of New York, Appellants.

      Civil service examination—“election officers” in YTew York city are not subject thereto — honorably discharged Union-soldiers or sailors have a preference in such appointments ■—■ construction of the statute upon this subject.

    The chief of the bureau of elections in the city of New York in office on May 24, 1884, was not required by law to pass a civil service examination prior to his reappointment.
    While such chief of the bureau of elections can lawfully be reappointed to that position, without undergoing a civil service examination, yet if there be any other qualified candidates for that position, who are honorably discharged Union soldiers or sailors, the chief cannot be reappointed.
    Chapter 357 of the Laws of 1884, declaring election officers exempt from civil service examination is a particular enactment,' and is not affected by the provisions of chapter 410 of the Laws of 1884, which is a general enactment, requiring such examination to be had of candidates for office.
    The general presumption is that a later statute, dealing in general terms with the subject, and not expressly contradicting the provisions of a prior act, is not intended to affect a more particular provision of such prior enactment.
    The provisions of chapter 464 of the Laws of 1887, relating to the employment of honorably discharged Union soldiers and sailors, are not limited in their application to those departments or works of the State in which the employees are subject to civil service examination.
    Appeal by the commissioners of police of the city of New York from an order entered in the office of the clerk of the county of New York on the 15th day of November, 1887, granting a motion made by the relator that a writ of mandamus issued out of and under the seal of this court, requiring and directing the board of police to consider the relator as eligible for reappointment by said board of police to the office of clerk of the bureau of elections, a bureau in said department of police.

      David J. Dean, for the appellants.

      John E. Brodsky, for the respondent.
   Bartlett, J.:

Two questions are presented by this appeal:

First. Has the board of police the power to appoint the relator to the office of chief of the bureau of elections, irrespective of the question whether he has passed a civil service examination or not ?

Second. If the board of police has such power, can the relator be preferred for appointment over other qualified candidates who are honorably discharged Union soldiers or sailors ?

I think the first of these questions must be answered in the affirmative, and the second in the negative.

On May 24, 1884, the legislature passed an act amending the.first civil service law. One of the amendments thus enacted was as follows:

“ Section 8. The election officers now in office and the inspectors of election and poll-clerks shall be exempt from examination in accordance with the act hereby amended, or the amendments thereof, and it shall be the duty of the commissioners and mayors of cities so to provide in regulations made under said act.” (Laws of 1884, chap. 35L.)

At the time this provision went into effect the relator was chief of the bureau of elections in the city of New York. He was, therefore, clearly an election officer then in office within the meaning and intent of the act, and no doubt as to his eligibility for reappointment without examination could have arisen unless there had -been further legislation on the subject. Five days after the enactment of the amendment above quoted the legislature amended the original civil service law still further by passing chapter 410 of the Laws of 1884, which, among other things, jirovides that, after the termination of three months from the passage thereof, no officer or clerk shall be appointed and no person shall be admitted to, or be promoted in either of the classes for which provision is made, until he has passed an examination, or is shown to be exempted from such examination, in conformity with the regulations prescribed under the statute. (Session Laws of 1884, p. 488.)

The appellants contend that the act of May 24, 1884, so far as it exempted the relator from examination as an election officer then in office, was repealed by the act of May 29, 1884, prohibiting the appointment of any person until he has passed an examination, or is shown to be exempt therefrom under the civil service regulations. The court below rejected this view on the strength of an opinion written by Mr. E. H. Laeombe, now circuit judge of the United States, when he was counsel to the corporation, in which he con-

strued both enactments together as being statutes in pa/ri materia, and held that election officers, inspectors of election and poll-clerks remained exempt from'examination, notwithstanding the provisions of the second amendatory act. In this conclusion, I think he was clearly right. The rule which is the guide to a correct decision in such cases has never been better stated than it was by Lord Mansfield, when he said: “ All. acts in pari materia are to be taken together as if they were one law.” (Earl of Ailesbury v. Pattison, Douglas Rep., 30.) The statutes under consideration here relate to the same subject-matter, the regulation and improvement of the civil service throughout the State, and are, therefore, in pari materia, and must be so interpreted' as to give force to every provision they contain, if this be possible, as though all were found i:i a single act. The second statute contains no express words repealing the exemption established by the first; and the general rule, that repeals by implication are not favored, applies with peculiar force in the case of acts passed at the same session of the legislature.

In Black v. Scott (2 Brock., 325, 32S) Chief Justice Marshall, speaking of two acts of the Virginia legislature, which came before him for construction, and one of which; it was contended, had the effect to limit and control the other, observed : “ It has been truly said that these two acts, having been passed at the same session, respecting the dignity of claims on the estates of deceased persons, ought to be considered together, and that the two sections ought to be construed as if they were contained in the same act.”

“ Statutes enacted at the same session of the legislature,” says Allen, J., in Smith v. People (47 N. Y., 330, 339), “ should receive a construction, if possible, which will give effect to each. They are within the reason of the rule governing the construction of statutes in pa/ri materia. Each is supposed to speak the mind of the same legislature, and the words used in. each should be qualified and restricted, if necessary, in their construction and effect, so as to give validity and effect to every other act passed at the same session.” To the same effect is the decision in the case of the State v. Rackley (2 Blackf. [Ind.], 249, 250.)

In Kentucky an act of the legislature prescribed that a particular form of recognizance should be taken in certain cases. This form concluded with the words, “Witness my hand and seal.” Subsequently, at the same session, the legislature passed an act abolishing the use of seals, and. the distinction between sealed and unsealed instruments. But the Kentucky Court of Appeals held that the second act did not repeal the first. Being passed at the same session, they were to be construed as one act on the same subject, and it ought not to be presumed that the mind of the legislature had undergone so sudden a change as would be involved in giving the. second statute the effect of a repeal. (Peyton v. Moseley, 3 Monroe [Ky.], 77, 80.)

In Cain v. The State (20 Tex., 355, 358), the rule was said to be, “ that in the construction of acts of the same session, the whole must be taken and construed as one act, and to make a later provision repeal a former, there must be an express repeal, or an irreconcilable répugnancy between them.”

In the case of Powers v. Shepard, (48 N. Y., 540), the question before the Commission of Appeals was whether a part of the chapter 29 of the Laws of 1865 was repealed by chapter 41 of the Laws of the same year, both being enactments relating to soldiers’ bounties. In holding that there was no repeal, Earl, C., said : It is hardly to be presumed that the Legislature would have repealed an act passed but fourteen days before, and if they had intended to do so, they would probably have said so in some appropriate language, and not left it to mere inference.” The difference of time in the enactment of the statutes in question in the case at bar was but five days, instead of fourteen.

The statutory provisions under consideration here are both amendatory of the original civil service act. (Laws of 1883, chap. 354.) They are to be read, therefore, as parts of that act. There is no such conflict between them as renders it necessary to reject the earlier amendment, upon which the relator relies for the exemption which he claims. _ The provision declaring election officers exempt from examination is a particular enactment, while that requiring candidates for office to be examined is general; and the presumption is that a later statute dealing in general terms with a subject, and not expressly contradicting the provisions of a prior act, was not intended to affect the more particular provisions of the prior act, unless it is necessary to infer such a design in order to give meaning to the words employed. (Williams v. Pritchard, 4 T. R., 2; Williams v. Williams, 8 N. Y., 525, 533.) But here, I think, can be little doubt of the legislative intent that both provisions should stand together, and that election officers, by reason of the previous and particular exemption clause in their favor, enacted on May 24, 1884, should be deemed excepted from the general requirement of examination subsequently prescribed on May 29, 1884.

The peculiar phraseology of the exemption clause (§ 8, chap. 357, Laws of 1884) strongly manifests such an intent. “ The election officers now in office * * * shall be exempt from examination in accordance with the act hereby amended,” that is, the original civil service act, “or the amendments thereof.” What amendments % Obviously, the further amendments which the legislature must then have had under consideration and in contemplation, which became law five days afterward and which included the general provision as to the examination of candidates for admission into the civil service. Thus, in effect, the legislature said that it intended the exemption clause to qualify the civil service act as that act might be altered by the amendments it meant presently to adopt. The result of this construction of the two statutes is not hostile to the general purpose of the civil service reform laws. R might fairly and reasonably be assumed that the large majority of persons in office would, when their terms expired, have become so familiar with their duties by experience, and so qualified to perform them, as to make any further test of their fitness unnecessary. As to the first point, therefore, my conclusion is favorable to the relator.

It seems equally clear, however, that while he is eligible to reappointment as chief of the bureau of elections without undergoing a civil service examination, he cannot lawfully be reappointed if among the other qualified candidates there are honorably discharged Union soldiers or sailors.

There are at least two statutes which entitle the veterans of the late war to a preference. Chapter 29 of the Laws of 1886 declares that they shall be preferred over all other persons for appointment to positions, in the civil service of the State and of cities, although graded lower, upon examination, than others found eligible, provided their qualifications and fitness shall have been ascertained as provided in the civil service acts. It might be argued that this provision gave them a preference only over other candidates who were required to he examined, and hence did not apply to the case of the relator who is exempt from examination. But no such view can be taken of chapter 464 of the Laws of 1887, which provides that in every public department, and upon all public works of the State and of the cities, towns and villages thereof and also in non-competitive examinations under the civil service laws, rules or regulations, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment. All officials or persons having the power of appointment or employment in the public service are charged with a faithful compliance ” with the terms of the act, both in letter and spirit, and a failure therein is declared to be a misdemeanor. This statute constrains the board of police to prefer Union soldiers and sailors for appointment to the office of chief of the bureau of elections. It does not operate to deprive election officers who were in office on May 24, 1884, of the benefit of the exemption conferred upon them by the act of that date. That exemption involved no right to a preference. It merely absolved them from a requirement which was or might be imposed upon other applicants for appointment. The subsequent legislation in favor of Union veterans leaves unimpaired the statutory exemption of election officers to whom the act of May 29, 1884, applied. But it subjects them, as well as all other non-military candidates for appointment, to the preference which it gives to those who served honorably in the Union army or navy.'

The counsel to the corporation is, therefore, right in insisting that, at all events, the writ of mandamus herein should contain a proviso that the discharged Union soldiers and sailors who have been certified as competent by the civil service commissioners after examination, shall be preferred over the relator for the ajjpointment to the office of chief of the bureau of elections.

The order appealed from should be modified so as to provide for such addition to the writ, and, as so modified, should be affirmed, without costs.

Van Brunt, P. J.:

I do not think that the question as to the preference to be given to discharged Union soldiers and sailors can be raised on this application. The relator is entitled to be put upon the eligible list without examination, and this is all, as I understand it, that the mandamus pretends to do, whether or not after he is put upon the eligible list the relator should or could not be appointed under the facts disclosed is not before the court.

The order appealed from should be affirmed, with costs.

Brady J., concurred.

Order appealed from affirmed, with costs.


author: Macomber, J.:

text:
    In the Matter of the Application for the Issuing of a Subpœna to BACHE McE. WHITLOCK, Appellant.

      Evidence—privileged communications — disclosure by an attorney.

    A witness, examined under a commission issued out of a court of a foreign country, will not be required to answer questions relating to letters in his possession written by the parties to the foreign controversy, where such letters were received by him, in his capacity as attorney for one of such foreign litigants, in an action brought in this State. It is not an answer to his claim for protection from their enforced disclosure, that the statute in this State relating to such disclosure, by a client to his counsel, does not exist in the foreign country where the testimony, sought by such commission, is to he used.

      Quaere, whether the rule at common law is not clearly enough defined to protect a witness under such circumstances.
    That the court in this State would not, in such a case, require the evidence to be given, leaving the reception or rejection of the testimony to be determined by the rules of evidence as administered in the foreign court at the time of the trial.
    The witness was shown to have had certain letters in his possession written by one of the foreign litigants, who had never been his client, it appeared that the purpose sought to be attained by their production was to discover the basis of the claim of the client of the witness, in the action pending in the courts of this State, and that such letters did not have any bearing upon the issues in the action in the foreign court.

      Held, that, under the circumstances, the witness should not be required to produce the letters.
    Appeal by Bache McE. Whitlock from an order of the Hew York Special Term, dated and entered in the Hew York county .clerk’s office October 18, 1888, requiring him to appear before the commissioners appointed by the High Court of Justice, in England, to take evidence in this State in an action pending before it, wherein Charles G. Francldyn is plaintiff and John Walter and Georgje C. Wright, proprietors of the London Times, are defendants.

      W. C. Beecher, for the appellant.

      C. E. Tracy, for the applicants, respondents.
   Macomber, J.:

The commission which was issued by the High Court of Justice, in England, to take evidence in the case of Francklyn v. The Proprietors of the London Times, authorized the taking of the testimony viva voce of the witnesses produced before it by the solicitors or agents of the parties to that action.

The action in which such testimony is sought is for libel, for the publication in the London Times of a charge, emanating from Hew York, that the plaintiff in that action', being described as the president of the Horn Silver Mining Company, had been arrested and committed to prison in default of bail in $500,000, which he was required to find, and alleging that he was charged with having embezzled $508,000 of the company’s funds.

The counsel for the publishers proved before the commissioners the fact of Francklyn’s arrest, and proceeded to offer evidence of matters charged against him in the proceedings for arrest, and called as a witness in their behalf Mr. Whitlock, the appellant. From his evidence it appeared that he was an attorney and counselor at law, and the agent and attorney for Sir Bache Ounard who was the plaintiff in an action' in the Supreme Court of the State of Hew York in which Francldyn as defendant had been arrested and held until bail was given, upon a charge of embezzlement to the extent of about $3,000,000.

This witness had in his possession certain letters and reports, emanating from Francklyn to Sir Bache Ounard, relating to the controversy between Ounard and Francklyn. He declined, on cross-examination, to answer certain questions that were put to him touching such papers, and refused to disclose communications made between himself and his client, upon the ground that they were privileged under the law of this State, and that he could not, consequently, be compelled to divulge them, and further declined to produce the documents admitted to be in his possession upon this and other grounds.

The witness testified that he caused the arrest of Francldyn in the action for, embezzlement upon a special instruction, in writing, received from Sir Bache Cunard, and that the witness wrote letters to his client in regard thereto. He was then asked these questions: “ Q. Will you please produce the letter which you wrote to Sir Bache Cunard upon the subject ? A. It is not in my possession. Q. Did you keep a létter-press copy of that letter? A. I did. Q. Have you that in your possession ? A. I have. Q. Will you produce that ? A. I decline to do so.” In another part of his examination the witness was asked these questions : “ Q. Did not the plaintiff in that action state to you in June, 1887, that Francklyn has converted, in money and cash, to his own use to the value of three million dollars ? A. I decline to answer that question on the same ground. * * * Q. Will you please produce all letters received by you from Sir Bache Cunard prior to the commencement of this action and relating to the commencement thereof — this is the action of Ounard v. Fra/ncldyn ? A. I decline to do so on the same ground. Q. Will you produce all communications made by you to Sir Bache Cunard prior to the commencement of this action of Guncvrd v. Francldyn and relating thereto ? A. There are none of them in my possession. Q. Will you produce letter-press copies of any that you have ? A. I decline to do so on the same ground.” All of those questions the witness declined to answer upon the ground of professional relations existing between himself and his client, Sir Bache Cunard.

In my judgment no one of those questions was allowable under the Code of Civil Procedure of this State, which provides (§ 835) as follows : “An attorney or counselor at law shall not be allowed, to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment.” The evidence sought to be adduced by the questions quoted above was directly in conflict with the wholesome common-law rule which has existed for so many years and which finally found its embodiment, in substance, in the statute above quoted.

The rights sought to be protected by this law are important and of a general public nature. It is not an answer to the objection to say that such a statute does not exist in England where the testimony here sought is to be used. If or is it needful for us to speculate whether or not the common-law rule which exists there is clearly enough defined to lead to the protection of the witness. It is sufficient that it appears before us that an officer of the court, upon whom is enjoined his sacred silence, is called upon to violate his oath of office and the statute. The evil of permitting this testimony to be given is instant upon its disclosure before -the commissioners, when it becomes at once a matter of public record, and is not dependent, in any respect, upon the use to which it may ultimately be put on the trial of the action in which it is sought to be used.

Ordinarily, in taking the testimony of citizens or residents of this State, to be used elsewhere, the practice of the courts has been, and is, not to interfere with the course of the examination, so long as no public rights are invaded and no positive statute is violated, leaving the reception or rejection of the testimony to the rules as they shall be administered in the foreign jurisdiction at the time of the trial. But the case before us presents an exception to the rule. Should we compel Hr. Whitlock to answer these questions, we should require him to disclose the very secrets which the statute was intended to protect, and which the public is so deeply interested in preserving. These questions, therefore, and others, if there be any of like import, were illegally and improperly put to the witness on his cross-examination, and he was clearly justified in refusing to answer them.

There are other matters, however, involved in the order appealed from, which rest upon an entirely distinct consideration. The witness was shown to have in his possession certain letters, written by Hr. Francklyn, who never was a client of his, addressed to another person, mainly to Sir Bache Ounard, which found their way to the hands of the plaintiff’s attorney in the action of Gunwrd v. Fra/nckhjn.

It is obvious that this attempted cross-examination was designed to discover the ground-work of the plaintiff's claim in the embezzlement case, and that it did not have any bearing upon the issues in the action for libel. It was a palpable attempt, under the guise of a cross-examination, to bring out facts which were material only in other controversies. When such a purpose affirmatively appears,- the witness ought not to be coerced into premature disclosures. Undoubtedly, under section 915 of the Code of Civil Procedure, a court or judge lias power, when it appears that a witness refuses to answ'er a proper and material question, put to him before an open commission, to require him to do so, and in case he fails to answer or produce the writings, to punish him; but to that end it must be made to appear that the question which he refuses to answer, or the document which he refuses to produce, is material within the issues of that case, and not merely of another case.

But it is quite clear that the object of the cross-examination of this witness was to lay a foundation for the trial, not of the libel suit, but of the case of Cuncurd v. Frcmclclyn, and for this reason I think this part of the order is also erroneous. Had it been made to appear that this correspondence, of which the witness is the custodian, might be material to the issues of the libel case in the remotest particular, I should be in favor of affirming that part of the order appealed from, for it clearly does not involve any question of professional privilege; but, inasmuch as it appears affirmatively that it is wholly irrelevant to the libel action and to the direct examination of the witnesses, the order, as a whole, should be reversed.

It is so ordered, with costs and disbursements.

Van Beunt, P. J., and Beady, J., concurred.

Order reversed, with costs and disbursements.


text:
    THE SISTERS OF THE POOR OF ST. FRANCIS, Respondents, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK and EDWARD V. LOEW, Comptroller of said City, and ARTEMAS S. CADY, Clerk of Arrears, Appellants.

      Exemption of real estate, situated in the eity of New YorJc, from taxation — if the title is transferred after the second Monday of January to a purchaser entitled to exemption from tax, it is not exempt from the taxes of the then current year.

    A transfer of the title to real estate situate in the eity and county of New York between the second Monday of January, the time of the opening of the books of annual record, and the first day of May, the time of the closing of the books, does not affect the taxable status of the property for the current year, and does not entitle tiie property to exemption in a case where the property would have keen exempt if the transfer had taken place prior to the opening of the hooks.
    The taxable status of the property is determined by its condition on the second Monday of January, and any changes occurring- subsequent to that time do not authorize the commissioners to do anything more than to revise the valuation.

      Clark v. Norton (49 N. Y., 243) followed.
    Appeal from an interlocutory judgment rendered at a Hew York Special Term overruling a demurrer to the complaint, which was entered in the office of the clerk of the city and county of New York on October 18, 1888.

      George S. Coleman, for the appellant.

      George Bliss, for the respondent.

       Decided January 9, 1889.

   Van Brunt, P. J.:

The plaintiff is a corporation created by act of the legislature. (Chap. 201, Laws of 1866.) Its object being the gratuitous care of the sick, aged, infirm and poor, its real estate is not liable to taxation. In February, 1882, the plaintiff became possessed of certain property on One hundred and Hinth street, between First and Second avenues.. At this time the same had been assessed for taxation and taxed by the city authorities. The plaintiff alleges that because of such ownership such property was exempt from taxation in 1882, and brought this action to restrain the defendants from collecting the taxes. The question presented upon this appeal is whether a transfer of title to real estate situate in the city and county of Hew York between the second Monday of January, the time of the opening of the books of annual record and the closing of the books on the first day of May, affects the taxable status of the property for the current year, and entitles it to exemption in a case where the property would have been exempt if the transfer had taken place prior to the opening of the books. Under the statute there seems to be three stages in the procedure for finally determining the tax. First. The listing and valuation of the property to be taxed between September and January. Second. The correction of assessed valuations between January and May. Third. The preparation of the proper tax books, the levying of the tax, and the delivery of the tax books' to the proper officer for collection between May and September. It is conceded that if this real estate had been transferred prior to the second Monday of January, the owners of the estate would have been entitled to the immunity which the statute affords. And it is conceded, upon the part of the respondents, that had this transfer taken place subsequent to the first of May such transfer would have effected no change in the status of the estate in respect to taxation. There has been, however, no adjudication brought to the attention of the court upon the question as to what effect a transfer of title, between' the second Monday of January and the first of May, has upon the status of the property in respect to taxation ; and this is the question involved upon this appeal.

It is necessary, in considering this question, to consider for a moment the various things which are done during these several stages which result in the complete levying of the tax. From September to the second Monday of January the deputy tax commissioners assess all real and personal estate within their districts and furnish the details to the commissioners of taxes and assessments under their oath. The results are set forth in books which are known as the annual record of the assessed valuation of real and personal estate. These books are opened on the second Monday of January for examination and correction and remain so until the first day of May. During this period parties deeming themselves aggrieved by the assessed valuation of their property may apply to the commissioners to have the same corrected, and the commissioners may, before the second day of April in each year, increase or diminish the assessed valuation of any real or personal estate in said city as, in their judgment, may be necessary for the equalization of taxation. On the first of May the books are closed and between that day and the first Monday of July the commissioners prepare assessment-rolls which, on that day, they transmit to the board of aldermen. The board examine the rolls, cause the proper rolls to be prepared, and on or before the first of September transmit the rolls to the receiver of taxes with the proper warrant for the collection of the tax as laid.

It will thus be seen that, during the time the books were in the possession of the commissioners of taxes and assessments, namely, from the second Monday of January to the first of May, they have the right, under certain circumstances, to alter the valuation of real and personal estate, but there is no provision authorizing them to enter either real or personal estate for taxation. The provisions of the statute refer to an alteration of the valuation and nothing more. Under this condition of the law it has been held that, between these dates, the tax commissioners have no power to insert for purposes of taxation property which has been acquired subsequent to the second Monday of January; which seems to be an indication that their powers are limited simply to an -alteration of the valuation, and do not extend to an insertion of or a taking away from taxation any property which may have been acquired subsequent to the second Monday of January. In the case of Clark v. Norton (49 N. Y., 243) it is expressly held that the assessors could not lawfully, during* the time given for the review and revision of the assessment as made, place upon the roll other property, or essentially or materially change the roll by addition to the assessment of individuals other property, especially by assessing them for property acquired after the time limited for the preparation of the roll.

The same principle is recognized in other cases, which it is not necessary to cite; and the result is that it is the law of this State, firmly established by judicial decisions, that the assessors cannot tax property which has been acquired subsequent to the second Monday of January; and, therefore, if a charitable or religious corporation, the owner of real estate which is exempt from taxation, should, subsequent to the second Monday of January, sell the same to a -person in whose hands it would be liable to taxation, the assessors have no power to insert that property upon the roll for the purposes of taxation. This being the case, where property has already been -put upon the roll for purposes of taxation and a valuation made, where is the authority of the tax commissioners to strike it from the roll because -it has been conveyed to an association whose real estate is not liable to taxation by reason of the uses to which it is devoted ? It would seem if they cannot add to the roll because of a change of ownership subsequent to the second Monday of January, they have no power to strike from the roll for that reason. In other words, the taxable status of the property is determined by its condition on the second Monday of January, and whatever changes occur subsequent to that time do not authorize the commissioners to do anything more than to revise the valuation. There must be some fixed period during the progress of this taxation, at which it can be determined as to whether property is taxable or not taxable.

It is claimed that in the case of the Association for Colored Orphans v. The Mayor (104 N. Y., 590), the opinion indicates that the court were of opinion that the assessable character of the property is not fully determined until the closing of the books pn the first of May. A reading of that opinion, however, shows that no such question was involved in the case, and that all that the court say is that no alteration can be made in the books after the closing thereof in May. Upon the contrary, they say that it is clear that the general scheme of taxation is to enter as assessable all property which is of that 'character up to' the time when the record book is open for examination. If then assessable, its character would seem to be fixed for the year, which is in accordance with the views heretofore enunciated, and certainly does not support the deduction which is drawn from the language used in this case, in reference to the impossibility of altering the record after the books are closed on the first of May. Determining the question as to whether real estate is taxable is in no way revising the valuation of the property. This valuation is made whether the property is taxable or exempt from taxation; and, as already suggested, the only power conferred upon the commissioners, to be exercised between the second Monday of January and the first of May, is to increase or diminish the valuation of the property for the purposes of taxation. It would seem, therefore, that property acquired subsequent to the second Monday of January, which was then the subject-matter of taxation, cannot be exempted by reason of such change of ownership.

The judgment should be reversed and the demurrer sustained, with costs.

Brady and Macomber, JJ., concurred.

Judgment reversed and demurrer sustained, with costs.


author: Daniels, J.:

text:
    BRONK VAN LOAN, Respondent, v. MARY J. SQUIRES and Others. MARY E. McKINLEY and WILLIAM W. SHARPE, Appellants.

      A sale of real estate tinder a decree of foreclosw'e, when the owner of the equity of redemption has died before the decree was entered, is not only irregula/)', but without authority—an heir-at-la/w of the owner is entitled to be madeapa/rty defendant— he cannot be compelled as a condition thereof to pay all costs, charges and expenses subsequent to the death of the owner of the equity of redemption — laches — appeal from the part of an order imposing a condition.

    An action was commenced in December, 1876, for the foreclosure of a mortgage upon property situated in the city of New York. No further proceeding was taken in the case until 1886, when, in August of that year, an order of reference was made to compute the amount due to the plaintiff for principal and interest upon the mortgage debt. Upon the report of the referee a decree of foreclosure was entered on August seventeenth, under which, on September 17,1886, the property was sold to Henry F. Brennan, who was then the owner and holder of the bond and mortgage. On July 19, 1888, no referee’s deed having been delivered, Brennan assigned his purchase and interest in the bond and mortgage to Simon Sterne, who has since that time been the owner and holder thereof.
    Mrs. Mary J. Squires, who was the owner of the property described in the mortgage at the time the foreclosure action was commenced, died in February, 1878, and the action was at no time revived by making any person representing her interest a defendant in it. On August 1, 1888, Mary E. McKinley, the only surviving and sole heir of Mary J. Squires, applied to the court for leave to become a party to the action as the owner of the equity of redemption.
    Upon an appeal by Mary E. McKinley and William W. Sharpe, to whom she had conveyed the equity of redemption in May, 1888, from so much of an order amending the proceedings in the action by making her a party as of March 1, 1878, as imposed as terms the payment of all costs, charges and expenses subsequent to the death of Mary J. Squires, including the referee’s and auctioneer’s fees:

      Meld, that as it appeared by the affidavit of Mary E. McKinley that she only acquired -information concerning the action, and as to the proceedings taken therein, within a few weeks prior to the time of making her affidavit on the 13th of April, 1888, the motion was made with reasonable diligence after this information had been acquired by her.
    That an objection taken by the respondent, that the appeal was ineffectual for the reason that only so much of the order as imposed terms upon Mary E. McKinley had been appealed from by the notice of appeal, was not well taken, as section 327 of the Code of Procedure and section 1300 of the Code of Civil Procedure allowed any party, whose substantial rights are affected by an order, to appeal from that part of it deemed to be injurious to the party appealing.
    That, as the foreclosure proceedings were defective and incomplete, and the owner of the equity of redemption was a necessary party to the action, she should not, as a condition of being made a party thereto, be charged with these costs and expenses, which were incurred without authority; that the latter part of the order imposing these terms as a condition should be reversed.
    Appeal by Mary E. McKinley and William W. Sharpe from so much of an order, made at a New York Special Term and entered in the office of the clerk of the city and county of New York, on September 25, 1888, amending the proceedings in the action by making her a party defendant, as imposed as terms the payment of all costs, charges and expenses, subsequent to the death of Mary J. Squires, including referee’s and auctioneer’s fees incurred on a sale of the premises under a decree of foreclosure of a mortgage on the 11th day of September, 1888.

      Joseph O. Brown, for Mary E. McKinley and William Sharpe, appellants.

      J. Alex. Beall, for the respondent.
   Daniels, J.:

The action was for the foreclosure of a mortgage upon property situated in the city of New York. It was owned by Mary J. Squires. The action was commenced in December, 1876, and it was not until August, 1886, that an order of reference was entered, referring the case to a referee to compute and ascertain the amount due to plaintiff for principal and interest upon the mortgage debt, and on the seventeenth of the same month judgment for the foreclosure and sale of the property was entered upon the report of the referee. Mary J. Squires, the owner of the equity of redemption, died in February, 1878, and the action was at no time revived, by making any person a defendant in it, representing her interest. The proceedings of the reference resulting in the judgment were, accordingly, not only irregular, but they were without authority. For the owner of the equity of redemption is a necessary party to the action for the foreclosure of a mortgage. Hall v. Nelson (23 Barb., 88), which is not in conflict with either of the authorities referred to on behalf of the respondents, for the reason that the decease of the parties in those cases took place after the judgment.. At the time of the decease of Mrs. Squires, which succeeded the decease of her husband, she left her surviving as her sole heir, Mary E. McKinley, one of the appellants, and she applied to the court for leave to become a party to the action as the owner of the-equity of redemption. But she was not such owner at the time when the order to show cause was made, on the 1st of August, 1888. She did, however, own the equity of redemption in the property until the last of May, 1888, when she conveyed it to William W. Sharpe, the other of the appellants. And it appears that it was one of the conditions of the sale of the equity of redemption that the previous proceeding, including the order of reference, should be vacated and set aside, and it was under this obligation that the motion was made in her behalf to make her a party to the action; and that, by the order, was done as of the 1st of March, 1878, which would render her sale and conveyance of the property to Sterne subject to the action.

There was no laches on her part in making the application. It appeal’s by her affidavit that she only acquired information concerning the action and the proceedings taken therein within a few weeks prior to the time of making her affidavit on the 13th of April, 1888. Facts were set forth in the affidavit of Henry T. Brennan, from which he inferred that Mrs. McKinley must have had information concerning the - action during the lifetime of her mother. But the inference has not been so far supported by the facts stated as to overcome this positive denial in her own affidavit. And a similar-answer is applicable to the affidavit of Simon Sterne, indicating a probability that Mrs. McKinley was informed of the action five months or more before the motion. The motion was, therefore, made with reasonable diligence after this information had been acquired by Mrs. McKinley.

To defeat the appeal the objection has been taken that it is ineffectual, for the reason that only so much of the order as imposes terms upon Mrs. McKinley has been appealed from by the notice of appeal; and the cases of Tribune Association v. Smith (40 N. Y. Supr. Ct. [8 J. & S.], 81) and Havemeyer v. Havemeyer (44 id. [12 J. & S.j, 171), have been brought to the attention of the court in support of this objection. But they seem to have been decided without any reference to the 'provision contained in the Code, allowing an appeal from an order to be taken from “ a specified part thereof.” This was the law as it was contained in the Code of Procedure, amended and enacted in 1849, and made section 327, and it has since in the same form been continued in force, and will now be found as section 1300 of the Code of Civil Procedure.

This section was so framed and continued as to entitle the party whose substantial rights are affected by an- order, to appeal from that part of it deemed to be injurious to the party appealing. And. it has been the practice, notwithstanding these decisions, to sanction and consider such appeals, and the point accordingly arises whether Mrs. McKinley should have been charged with the payment of these costs and expenses as a condition to the leave given her to become a party to the foreclosure suit.

At the sale, Henry T. Brennan, the assignee of the bond and mortgage, became the purchaser of the property, and he probably went into possession under his purchase. Since then he appears to have parted with his interest; for on the 19th of July, 1888, he transferred and assigned his purchase and interest in the bond and mortgage to Simon Sterne. These parties were willing to allow the proceedings to remain in the defective and incomplete condition-they have been in since the decease of Mrs. Squires, the owner of the equity of redemption. And, in that condition of the case, Mrs. McKinley and the purchaser from her, Mr. Sharpe, wnuld be entitled to redeem the premises from the mortgage by paying the principal and interest remaining now unpaid upon it. But the court considered it to be its proper disposition that Mrs. McKinley should be made a party to the action as of the 1st of March, 1878, which would render a. sale of the property made after this order legal and regular, vesting a good title in whoever should become the purchaser. Each party is willing to leave this part of the order in force. Neither the: plaintiff nor the purchaser, nor his grantee has in any way drawn in question the regularity or propriety of this part of the order. But it has become a fixed and permanent part of the action and, under it,. Mrs. McKinley is to be brought in as a defendant. The sole controversy has been reduced to the terms. And, as a matter of equity,, there was no justifiable ground for charging her with the costs and expenses of the preceding unauthorized proceedings. They were of no benefit either to herself or to the property, and if an action to redeem the mortgage should be prosecuted by her, she could not be charged with these costs and expenses, for the reason that they were incurred without authority, and the latter part of the order, providing that they shall be repaid out of the proceeds of any subsequent sale, in no way remedies the injustice of this requirement. For even in that event the costs and expenses of the unauthorized proceeding would still be a charge upon her interest in the property, which it should not legally or equitably be made to bear. What was done in the action after the decease of Mrs. Squires was without jurisdiction and a nullity, and the expenses of the proceedings could not legally be made a charge upon the interest of Mrs. McKinley in the equity of redemption.

So much of the order as imposed these terms as a condition to the right of Mrs. McKinley to become a party to the suit should, therefore, be reversed, with the usual costs and disbursements of the appeal to the appellant to abide the event of the action.

Van Brunt, P. J\, and Brady, J., concurred.

Order reversed, with costs and disbursements of the appeal to the appellant to abide the event of the action.