text:
    In the Matter of the Application of Henry W. Schmidt and Another for Letters of Testamentary Guardianship Upon the Estate of George Ulmer Clausen, a Minor.

      Testamentary guardian — he can he appointed, hy a surviving parent only — ■void appointment hy a deceased, pos'ent — not made valid hy the assent of the surviving parent.

    The power to appoint a testamentary guardian is statutory, and under the Revised Statutes, as'amended by chapter 175 of the Laws of 1893, the surviving parent only is authorized to appoint a testamentary guardian of his or her unmarried minor children. The word “husband,” as used in such statute, evidently means “father.”
    The void act of the father of a minor, in attempting to appoint a testamentary guardian of his property during the lifetime of the mother of such minor, cannot be validated by the subsequent assent thereto of such mother.
    Appeal by the petitioners, Henry ~W. Schmidt and another, from an order of the Surrogate’s Court of New York county, entered in the office of the clerk of the New York County Surrogate’s Court on the 28th day of January, 1894, denying their application for letters of guardianship.

      Moses Weinmcm, for the petitioners, appellants.
   Follett, J.:

The power to appoint a testamentary guardian is statutory and was first given by 12 Charles II, chapter 24, section 8. In The Matter of the Earl of Ilchester, Ex parte (7 Ves. 370), Lord Alvanley said: It is clear, by the common law, a man could not by any testamentary disposition affect either his land or the guardianship of his children. The latter appears never to have been made the subject of testamentary disposition till the statute 12 Charles II.” (7 Pick. Stat. at Large, 474; 2 Kent’s Comm. 225 ; 2 Steph. Comm. [8th ed.] 310; 1 Black. Comm. 462.) Hence, such guardians are called in the books guardians by statute or statutory guardians.

Section 8 of 12 Charles II, chapter 24, was enacted in this State March 1, 1787. (Chap. 47, Laws 1787, § 11; 2 J. & Y. 96; 2 Republished Laws of N. Y. 448.) This provision was re-enacted February 20, 1801 (1 R. L. [1801] 181, § 18), and again March 5, 1813 (1 R. L. [1813] 368, § 18), and was incorporated in the Revised Statutes. (2 R. S. 150.) From time to time the Revised Statutes relating to this subject have been amended so that before the passage of chapter 175, Laws of 1893 (which is an amendment of the Revised Statutes), it was provided that the father, during the lifetime of the mother, might appoint a testamentary guardian of unmarried minors, and that the mother surviving the father might also appoint one for her unmarried minor children. (4 R. S. [Banks’ 8th ed.] 2612; chap. 454, Laws 1888.)

By the Revised Statutes, as amended in 1893, the father and the mother are declared to be the joint guardians of their minor children. The word “ husband ” is used in the statute, but it evidently means “ father,” as it cannot be presumed that the Legislature intended that a husband should become joint guardian with the mother of children by a former marriage. This act repeals the authority conferred by the former statutes upon the father to appoint a testamentary guardian during the lifetime of the mother. Under the Revised Statutes, as amended, only the surviving parent is authorized to appoint such a guardian. (People v. Boice, 39 Barb. 307.) The father, having no power under the statute to make the appointment, his void act in attempting to do so cannot be validated by the subsequent assent of the mother. The testamentary guardianships which the testator attempted to create were limited to the estates of the minors, but we need not now consider whether such a qualified guardianship is authorized by the statute. It is difficult to see any good reason for taking any risks in this case. The persons to whom it is desired to have letters of testamentary guardianship issued can easily be appointed the general guardians of the infants.

The order should be affirmed.

Parker, L, concurred; Yan Brunt, P. J., concurred in the result.

Order affirmed.

      See Republication of Session Laws under chapter 841 of the Laws of 1885, vol. 5, chapter 9.-" [Rep.


source: Caselaw Access Project

author: Eollett, J.:

license: Public Domain

text:
    In the Matter of the Estate of David Stevenson, Deceased. Maurice S. Cohen, Appellant, v. Sewanee M. Stevenson, James D. Smith and James McClenahan, Executors, Respondents.

      Discretion of Surrogates Gouri, when exercised — proceedings to compel a judicial settlement, when disaretiona/ry — when the surrogate may compel an account.

    A Surrogate’s Court which has issued a citation on a petition made hy a creditor of an estate to compel the executors thereof to render an account and to pay his claim, has not thereby exhausted its discretion, and can thereafter, in further exercise of its discretion, dismiss the proceeding.
    The discretion vested in a Surrogate’s Court, to dismiss a proceeding, brought hy a creditor of a decedent to direct the payment of his claim hy the executor, may he exercised whenever it appears that the validity of the petitioner’s claim has not been conceded or established.
    In case a year has elapsed since letters were issued to an executor, a Surrogate’s Court has power on its own motion, with or without a petition, to require from the executor a judicial settlement of his account.
    A petitioner, on an application to compel a judicial settlement, must show that he is a creditor having an admitted or established claim before he can, as a matter of right, require a judicial settlement.
    Appeal by the petitioner, Maurice S. Cohen, a creditor of David Stevenson, deceased, from an order of the Surrogate’s Court of the county of New York, entered in the office of the clerk of the New York County Surrogate’s Court on the 23d day of January, 1894, denying the application of the petitioner for the judicial settlement of the accounts of the executors of David Stevenson, and the payment by them of the claim of the petitioner.
    The respondents’ testator died in 1892, and letters testamentary were issued October thirty-first of that year on his estate to the respondents. Prior to December 26, 1892, the appellant presented to them an account for legal services rendered and disbursements made by him for the testator amounting to $1,523.63. On the 28th of December, 1892, the appellant, at the request of the respondents, duly verified his claim, pursuant to section 2Y18 of the Code of Civil Procedure. The respondents published a notice to creditors, pursuant to the section last cited, to present their claims on or before November 13, 1893. On the 18th of December, 1893, the appellant filed a petition in the Surrogate’s Court alleging that the testator was indebted to the petitioner in the sum of $1,323.63, with interest from October 5,1892. It was also alleged that tbe claim had been presented more than eleven months before the date of the petition, “ and the same was never rejected, and the same is a liquidated and undisputed debt against the estate.” The petition ends with the following prayer.: That the “ executors render and cause to be judicially settled, their accounts as such executors of David Stevenson, deceased, and that a citation may be issued requiring the said executors to appear in this court and show cause why the said claim .should not be paid to your petitioner, and why they should not render and file their said accounts, and cause the same to be judicially settled.” On the same day a citation was issued requiring the respondents, at the date and place mentioned, “ then and there to ■show cause why you, and each of you, should not render your accounts as the executors of David Stevenson, deceased, and why said accounts should not be judicially settled, and why the, claim of the petitioner herein should not be paid.”
    Upon the return of the citation the respondents appeared and filed an answer containing the following denial and allegation: “ They deny that the firm of Ooheii & McWilliams, of which firm said claimant is the surviving partner, did and performed work, labor and services for the said David Stevenson in his lifetime to the amount and of the fair and reasonable value of fifteen hundred and twenty-three dollars; and they further deny that said claim was ever conceded or admitted by them as such executors, but, on the contrary, they allege that when said claim was presented same was duly rejected by them.”
    To this answer the appellant was permitted to file an affidavit in reply, which was filed and verified January 8, 1894, and contains the following statement: “That on or about January 19th, 1893, deponent had a personal interview with said McClenahan, and then requested him to give deponent a check for the amount, of said claim, to wit, $1,523.63. That said McClenahan then stated to deponent that in his opinion the said bill was too large. ”
    On the 23d of January, 1894, an order was entered on the petition, affidavit and reply denying the petitioner’s application.

      Bashes S. Bansom, for the petitioner, appellant.

      William G. Me Crea, for the executors, respondents.
   Eollett, J.:

The purpose of the appellant was evidently to file a petition which would authorize a decree under sections 2722 and 2725, or under sections 2726 and 2727 of the Code of Civil Procedure. It is not necessary now to determine whether the remedies provided by these sections can be united and prosecuted in a single proceeding. Section 2722 provides : “ In either of the following cases a petition may be presented to the Surrogate’s Court praying for a decree directing an executor or administrator to pay the petitioner’s claim, and that he be cited to show cause why such a decree should not be made:

1. By a creditor, for the payment of a debt, or of its just proportional part, at any time after six months have expired since letters were granted. * * *
On the presentation of such petition the surrogate must issue a citation accordingly; and on the return thereof he must make such a decree in the premises as justice requires. But in either of the following cases the decree must dismiss the petition without prejudice to an action or an accounting in behalf of'the petitioner:
“ 1. When an executor or administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality, absolutely or on information and belief. * * * ” Section 2725 of the Code of Civil Procedure contains the following, among other provisions : “ In either of the following cases the surrogate may, in his discretion, make an order requiring an executor or administrator to render an intermediate account. * * *
3. On the return of a citation, issued on the petition of a creditor, * * * praying for a decree directing payment thereof, as prescribed in section 2722 of this act.
“ 4. Where eighteen months have elapsed since letters were issued, and no special proceeding on a petition for a judicial settlement of the executor’s or administrator’s account is pending.”

It will be observed that by this section it is discretionary with the Surrogate’s Court whether on the return of a citation issued on the petition of a creditor it will make an order requiring a representative to render an intermediate account.

The nature of the petitioner’s claim or how it arose is not set forth In the petition, but it is stated in the verified claim to be for professional services and disbursements, but the claim is not made a part of the petition. The respondents by their answer denied that the services rendered were of the value of $1,523.63, and denied that the executors ever conceded or admitted the claim, and alleged that when it was presented it was duly rejected by them. The appellant states in his affidavit of January 8, 1894, that when he asked for payment of the claim one of the executors replied that in his opinion the bill was too large. This state of the record does not authorize a legal conclusion that the claim had, by the acquiescence of the executors, become a liquidated and undisputed debt against the estate. It is also urged that the answer is insufficient because it fails to set forth facts which show it to be doubtful whether the claim is valid' and legal. The sufficiency of the answer must be determined with reference to the allegations in the petition, which, it will be observed, set forth no facts constituting a cause of action, except that the petitioner’s claim for $1,523.63 had been presented and not rejected, and had become a liquidated debt against the estate, which is explicitly denied iu the answer, and it is averred therein that the claim was rejected when presented. This answer is clearly sufficient to put in issue every allegation contained in the petition, and in so far as it was founded on sections 2722 and 2725 it was the duty of the Surrogate’s Court to dismiss it, as in its discretion it was authorized to do. (§ 2725.)

Was it error to dismiss the petition in so far as relief was sought by it under sections 2726 and 2727, which provide:

§ 2726. In either of the following cases the Surrogate’s Court may, from time to time, compel a judicial settlement of the account of an executor or administrator:

1. Where one year has expired since letters were issued to Mm. * * *
§ 2727. A petition praying for the judicial settlement of an account, and that the executor or administrator be cited to show cause why he should not render and settle his account, may be presented in a case prescribed in the last section by a creditor. * * * On the presentation of such a petition a citation must be issued accordingly, except that in a case specified in subdivision first of the last section if the petition is presented within eighteen months after letters were issued to the executor or administrator the surrogate may entertain or decline to entertain it in his discretion.”

It is urged that because the Surrogate’s Court issued a citation on the petition it had exhausted its discretion and could not thereafter ■exercise further discretion and dismiss the proceeding. This contention is not well founded. Such a limitation of the powers of the Surrogate’s Court would require it to entertain a petition for a judicial settlement on the mere allegation of the petitioner that he was a creditor, though such allegation was denied in the answer.

The discretion vested in the court may be exercised whenever it appears that the validity of the petitioner’s claim has not been conceded or established.

It is also urged that the answer filed by the respondents did not •allege that eighteen months had not passed since letters testamentary were issued. This fact affirmatively appears by the petition, and it was unnecessary for the respondents to aver it.

In case a year has elapsed since letters were issued to a representative the Surrogate’s Court has power, on its own motion, with or without a petition, to require from the representative a judicial settlement of his account (Code Civ. Proc. § 2626; Anonymous, 14 N. Y. Civ. Proc. Rep. 38), and if in the case at bar, the letters having been issued more than a year, such an order had been granted, the fact that the petitioner was not a creditor, having an established claim, would not have been a ground for reversal of the order. In Matter of Cowdrey (5 Dem. 453) and in Matter of Callahan (66 Hun, 118) more than eighteen months had elapsed since letters were issued to the representatives, and the Surrogate’s Court had power, with or without a petition or suggestion from any one, to require a judicial settlement of the accounts of the representatives. The petitioner must show that he is a creditor, having an admitted or established claim, before he can, as a matter of right, require a judicial settlement.

"We think the Surrogate’s Court acted within the discretionary powers conferred on it by the Code of Civil Procedure, and its decree should be affirmed, with costs.

Van Brunt, P. J\, and O’Brien, J., concurred.

Decree affirmed, with costs.


author: Follett, J.:

text:
    Morris Fisher and Another, Plaintiffs, v. Ellen H. Wilcox, as Executrix, etc., of Benjamin Albro, Deceased, Defendant.

      Acceptance of a doubtful title to real estate — decision of the court — when binding by way of estoppel — when, as stance decisis

    When the validity of the title to real estate is doubtful the court ought not to determine the question and compel an acceptance of the title in the absence of and without hearing all parties whose rights depend on the decision of the same.
    The decision of the court of last resort is binding by way of estoppel only on the parties to the action and their privies, but on persons not parties nor privies only under the rule of stcsre decisis.

    Submission of a controversy, without action, upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    In 1881 Benjamin Albro died seized of No. 88 Division street, leaving a last will and testament which was thereafter duly admitted to probate by the Surrogate’s Court of the city and county of New York. After the payment of his debts he devised No. 88 Division street to Abraham Polhemus, Jr., and Ellen A. Wilcox, as executors and trustees, to collect the rents and profits, and after the payment of taxes and expenses of management they were directed to pay (1) one dollar a day therefrom to his widow, Elizabeth, during her life in lieu of dower; (2) to pay therefrom $350 a year, in monthly payments, to his adopted daughter Tilly during her natural life; (3) pay to his adopted daughter Ellen H. $280 per annum until Benjamin A. Polhemus becomes twenty-one years of age, or until his death if he should die before reaching that age, and upon his. death before reaching that age, to pay said $280 to her until Gabriel Henry Wilcox shall attain his majority; (4) pay and apply the residue of the rents and profits to and for the benefit of Edith C. Polhemus during life; (5) when Benjamin A. Polhemus dies or reaches the age of tw'enty-one years to pay Gabriel H. Wilcox, if then of full age, $4,000, but in case he dies before reaching majority the $4,000 is bequeathed to Ellen H. Wilcox. The fourth and fifth clauses of the will are as follows :
    “ Fourthly. Upon the death of said Edith C. Polhemus, I give,, devise and bequeath all the said property and estate so devised to said trustees, and direct said trustees to convey the same to the following named four children of said Edith 0. and Abraham Polhemus, Junior, viz.: to Ellen Augusta, Ramona Leonora, Abram Clifford and said Benjamin Albro, and to any other child to be hereafter born, share and share alike, subject, however, to the said trust and right to said trustees to receive the said rents, issues and profits so as to realize the means for payment of said annuities of three hundred and fifty dollars, and two hundred and eighty dollars, and said sum of four thousand dollars.
    “ Fifthly. I hereby authorize and empower my said executor and executrix, as such trustees, to sell and convey the said property when said Benjamin Albro Polhemus shall become of full age, or before if they shall deem it most judicious for the interest of all the said devisees and legatees, and invest the proceeds thereof on proper security, and pay and apply the said income thereof in the same manner as said rents are directed to be paid, and for payment from said proceeds of said sum of four thousand dollars as above directed to be paid.”
    Abraham Polhemus, Jr., never qualified as an executor under the will, nor entered upon the discharge of his duties as a trustee, Ellen A. Wilcox alone having received letters testamentary and alone having acted as trustee. On the 13th of June, 1893, Ellen H. Wilcox, as trustee, and the plaintiffs entered into an executory contract by which the former agreed to sell and convey and the latter to purchase the devised premises, on which contract the plaintiffs have paid $1,000. Doubts having arisen in the minds of the purchasers over the power of the trustee to sell and convey a good title, this submission was made.

      Devoid L&mnt/ritt, for the plaintiffs.
    Vcmamee, Watts <& Vail, for the defendant.
   Follett, J.:

The testator by his will did not convert or attempt to convert his realty into money, out and out, but the title to the land, assuming the devise to be valid, passed to the trustees with power to convert it into money, invest the proceeds and apply the income therefrom. By the will the trustees have power to hold the realty and apply the net rents as directed until the death of Edith C. Polhemus, when they are directed to convey the naked title to her children, subject to the right of the trustees to apply the net rents for the benefit of the life annuitants and legatees. The children of Edith C. Polhemus are not given the power of alienation until after the death of all of the cestui que t/rustents. By the fifth clause of the will, the trustees are empowered, not directed, to sell the realty whenever they deem it most judicious for the interest of the devisees and legatees, invest the proceeds and apply the income for the same purpose that the rents of the realty are directed to be applied. It is very clear that the testator attempted to authorize the trustees to hold the land in trust, in their discretion, until after the death of all of the annuitants and until after the payment of the $4,000 legacy and thus suspend the power of alienation for more than two lives in being at the death of the testator.

The interests of the cestuñ que trustents in the rents of the realty, and, in case it is sold, in the income to be derived from the proceeds of the sale, are not merely successive, one cestui que trustent taking after the death of another, but they are concurrent as well.

In this case the heirs of the testator are not before the court, nor are the cestui que t/rustents, except as they are represented by the trustees, nor -are the devisees of the remainder, except as so represented, and without their presence we do not think this court should authoritatively determine their rights, and we simply hold that the power of the trustees to convey an estate in fee simple is so doubtful that the purchasers should not be required to take the title tendered. In Abbott v. James (111 N. Y. 673) and Kilpatrick v. Barron (125 id. 751) the Court of Appeals held that when the validity of the title in question is doubtful, even that court ought not to determine it and compel an acceptance of the title in the absence of and without hearing the heirs at law whose rights depend on the same question. This judgment was followed in this department in Alkus v. Goettmann (60 Hun, 470). The decision of the court of last resort is binding by way of estoppel only on parties and their privies, but on persons not parties nor privies only on the rule of sta/re decisis, and the decision of this court would not be binding upon that principle on the Court of Appeals, and we think, although we are not in much doubt about the question presented, that we ought not to go further than to decide that the purchasers ought not to be compelled to take the title tendered.

Submissions between executors and purchasers relating to the validity of devises have become quite common in this court. The heirs at law of testators in such cases, often infants, are not parties to the submission, are not heard, and their rights ought not to be determined, and in a case of doubt the purchasers ought not to be required to take title. In some cases which have been submitted, though not in this, we have had reason to believe that the contract of sale made and the submission entered into, were for the purpose of securing an adjudication on the questions submitted without the heirs and the other persons interested having an opportunity to be heard.

A judgment should be ordered in favor of the plaintiffs, that they be relieved from the performance of their contract of purchase, and that they recover from the defendant $1,000, with, interest from June 13, 1893, with the costs of this action.

Tan Brunt, P. J., and Parker, J., concurred.

Judgment ordered in favor of plaintiffs, with costs.


author: Pollett, J.:

text:
    In the Matter of the Appraisal Under the Act in Relation to Taxable Personal Property of the Property of Frank Linsly James, Deceased.

      Property taxable under chapter 713 of 1887 — non-resident property of a, non-resident not taxable — certificates of shcores of stock in a foreign corporation.

    In case a resident citizen of another State or country, domiciled therein, dies leaving personalty within the State of New York, it or the right to succeed to it, is taxable under chapter 713 of the Laws of 1887, and in case a resident citizen of the State of New York domiciled therein dies leaving personalty in another State or country, it or the right to succeed to it, is taxable under such act.
    "Where a person dies, a resident of the Kingdom of Great Britain, leaving property therein and also in the State of New York, if legacies bequeathed by his will to foreign legatees are paid out of the property in Great Britain, such legatees have not succeeded to any property in the State of New York, nor has any property passed to them by virtue of the laws thereof, and their right to succession is not taxable under chapter 713 of the Laws of 1887.
    A testator, not a resident of the State of New York, died leaving within this State certificates of shares of stock of various foreign corporations.

      Held, tliat neither the value thereof nor the right to succeed thereto was subject to taxation under chapter 713 of the Laws of 1887.
    Appeal by John Arthur James, executor, etc., of Frank Linsly James, from a decree of the Surrogate’s Court of New York county, entered in the office of the clerk of the New York Surrogate’s Court on the 26th day of December, 1893, affirming an order entered in the said clerk’s office on the 5th day of' October, 1893, fixing and assessing a tax upon certain legacies.
    On the 21st of April, 1890, Frank Linsly James, a resident citizen of the United Kingdom of Great Britain and Ireland, and domiciled therein, died at San Benito, on the west coast of Africa.. He left a last will and testament, executed in England June 26, 1886, which was, June 14,1890, duly probated in England by the Probate Court thereof, and letters, testamentary thereon were duly issued to John Arthur James and William Dodge James, the persons nominated in the will as the executors and trustees thereunder. On the 10th of October, 1890, said will was duly established in this State by a judgment of the Supreme Court, and on the fourteenth of that month letters testamentary thereon were granted by the Surrogate’s Court of the city and county of New York to John Arthur James, pursuant to article 3 of title 3 of chapter 15 of the Code of Civil Procedure. The testator had, at the time of his death, in this State, stocks and bonds issued by various corporations, and bonds and mortgages on real property of the value of........... $2,303,472 53
    The testator’s property in England, which consisted of realty and personalty, was valued at........ 477,630 00
    Making the total amount of his estate........ 1,781,102 53
    Property in New York is- .82825 of all of testator’s property, and equals......................... 2,303,472 53
    The testator’s debts amounted to $17,245, .82825 of which equals.. $14,283 17
    Executors’ commissions on property in this State.................... 23,209 72
    Estimated expenses of administration in this State.................... 15,000 00
    52,492 89
    Net value of personalty in New York. 2,250,979 64

      Tlie learned surrogate lield that .82825 of the foregoing net value of property in this State was applicable to the payment of the following legacies, valued and assessed as follows:

    Deducting $196,137.12, produced by the above ratio as applicable to the payment of legacies, from the net value of the personalty in this State, $2,250,979.64, the value of the remainder of the property in this State is $2,054,842.52. Daniel Willis James and Olivia Phelps Hoe reside in America, but in what State does not appear, and all of the other legatees above named are resident citizens of and are domiciled in the United Kingdom of Great Britain and Ireland.

      JD. jB. Ogden, for the petitioner, appellant.

      Edwwrd S. Kcmfman, for Comptroller of the city of New York, respondent.
   Pollett, J.:

It seems to have been settled that in case a resident citizen of another State or country and domiciled therein dies, leaving personalty within this State, it, or the right to succeed to it, is taxable under chapter 713 of the Laws of 1887 (Matter of Estate of Romaine, 127 N. Y. 80), and in case a resident citizen of this State and domiciled therein dies, leaving personalty in another State or conntry, it, or the right to succeed to it, is taxable under that act. (Matter of Estate of Swift, 137 N. Y. 77.) Under these decisions the property of the testator within this State passing to foreign legatees is taxable under the act above mentioned. It is alleged in the petition that the foreign legatees have been paid out of the property of the testator in England, but whether this allegation is true or false was not determined by the appraiser nor by the Surrogate’s Court, nor does it appear whether these legacies were paid before or after the will was established in this State. If the legacies bequeathed to the foreign legatees were paid out of property in England those legatees have not succeeded to any property in this State, nor has any property passed to them by virtue of the laws of this State, and their right of succession is not taxable under this act. This does not affect the amount of revenue derivable from the property within this State, because the residue is increased and becomes taxable. It has been held (Matter of Swift, supra) that the right to succeed to personalty situate in another State and owned by a resident citizen of this State at the time of his death is taxable under the act, but, so far as we know, it has never been held that the right to succeed to personalty situate in another State and owned by a decedent who never resided nor had been domiciled in this State is taxable under the act. It appears from the facts found by the appraiser that a considerable portion (the amount not stated of the testator’s personalty found to have been within this State at the date of his death) consists of shares in corporations incorporated under the laws of other States, the value of which was included in the total valuation of $2,250,979.64. Under the evidence, presumably the certificates representing these shares were in this State when the testator died, though it was not so expressly found. These certificates are not shares nor property under the laws relating to taxation, nor under the sections of the Code relating to attachments; they are merely evidence of title to the shares. (Matter of Enston, 113 N. Y. 174, 181; Plimpton v. Bigelow, 93 id. 592, 600; Burr v. Wilcox, 22 id. 551; Van Allen v. Assessors, 3 Wall. 597, 598, 599; Winslow v. Fletcher, 53 Conn. 390; Haley v. Brumagim, 33 Cal. 394, 399; Cook Stock & Stockholders, § 10.) The testator not being a citizen of this State, and the property represented by the certificates not béing therein at the time of his death, it is not, nor is the right to succeed to such property, taxable under chapter 713 of the Laws of 1887, and the Surrogate’s Court erred in including it in the amount from which the ratio was found.

The decree of the Surrogate's Court should be reversed, with costs to the appellant, and a new hearing granted in that court.

Yan Brunt, P. J., and O’Brien, J., concurred.

Decree reversed, with costs to appellant, and new hearing granted.


author: Yan Brunt, P. J.: O’Brien, J.:

text:
    Leopold Sinsheimer and Others, Respondents, v. The United Garment Workers of America and Others, Appellants.

      Combinations of manufacturers and associations of employees — right- of manufacturers to lock out certain employees — right of employees to persuade persons to cease trading with certain manufacturers — when equity will not grant relief.

    There is no lawwliich prevents combinations of individuals, either for the assertion of rights or protection against wrongs, as long as the acts of such associations do not infringe upon the provisions of law.
    A combination of manufacturers has the right to lock out all operatives connected with an association of employees, because of demands which it considers unjust made by such association of employees upon a member of the combination of manufacturers, and such association of employees has an equal right to endeavor to persuade those who have been accustomed to deal with the members of the manufacturers’ combination to discontinue their trade.
    The plaintiff in an equity action must come into court with clean hands, and courts should be studious to see that the rights of all parties are protected, and that the forms of law are not used on behalf of one party against another, when the party seeking the intervention of the court has been endeavoring to secure his ends by means similar to those which he seeks to enjoin on the part of his antagonist.
    Appeal by the defendants, The United Garment Workers of America and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of November, 1893, granting the plaintiffs’ motion for a preliminary injunction.

      A. L. Fromme, for the appellants.

      Won. N. Cohen, for the respondents.
   Yan Brunt, P. J.:

It is exceedingly difficult to determine what the precise facts are from an examination of the papers submitted upon this appeal. The complaint and affidavits upon the part of the plaintiffs contain allegations as of the personal knowledge of the party verifying the same of which it is apparent that such party could not have had such knowledge. The affidavits also contain allegations of conclusions drawn from letters which are not produced, which method of allegation has been often enough condemned. The affidavits and answer of the defendants are subject largely to the same criticism. What the true facts are in reference to the claims of the two parties to this action can only be established upon the trial of the issues involved, when assertions without knowledge can be sifted from the case, and conclusions reached based upon legal testimony.

The main facts in reference to which there seems to be sufficiency of legal proof are that the plaintiffs formed part of a combination of clothing manufacturers, having for its ostensible object protection from unjust claims upon the part of their operatives, with a secret purpose to break down, if possible, any organization made by operatives for the purpose of advancing wages and protecting themselves in their employment. The defendant upon the other hand is a combination of operatives associated together for the purpose of protection against the exactions of employers, the advancement of their wages, and the compelling of employment of only those persons who belong to their association. Naturally the interests and purposes of these two associations lead to contest and strife. I know of no law which prevents combinations, either for the assertion of rights or protection against wrongs, as long as the acts of such associates do not infringe upon the provisions of law.

Various differences had arisen between the plaintiffs and the defendants; negotiations were had; claims of bad faith upon both sides were advanced; and the result was the issuance of circulars by the defendants, some time prior to the commencement of this action, to tradesmen in other cities, comjfiaining of their treatment by the plaintiffs and others, and substantially asking that they discontinue trading with them as long as this condition of affairs existed. And finally, in March, 1893, the clothing manufacturers adopted a resolution (claiming bad faith upon the part of the operatives and that a strike had been ordered in the shop of one of the members of the association) that unless the operatives receded from their position, all persons in their employ belonging to the association of operatives should be discharged.

An action was subsequently commenced by the members of the Clothing Manufacturers Association collectively against the defendants for the relief prayed for in this action, which was denied, and a motion made for an injunction upon the ground of misjoinder of parties. Thereupon in April this action was commenced, and a motion for an injunction argued in June and decided in November.

I fail to see how the injunction in this action can be sustained. There is no proof of any acts of violence upon the part of the defend-j ants, or of any injury to property, or of any threats or intimidation. At best the circulars were but one of the instruments used by the defendants in their contest with the .association of which the plaintiffs were members. It was a pursuing of precisely the same course against the Manufacturers Association as the Manufacturers Association were urging against them. The Manufacturers Association claimed the right that their members should discharge from their employ all persons connected with the defendants’ association unless they receded from certain demands made upon one of their-members. The defendants notified persons engaged in the trade of the controversies which were existing, and virtually requested such persons not to deal with the plaintiffs’ firm unless such differences could be adjusted. I fail to see that there is any infringement of any provision of law in the issuance of such a circular.

It is further to be observed that at the time of the argument of this motion, and subsequent to the beginning of the action, it would appear that the differences between the plaintiffs and the defendants had been adjusted and an agreement entered into, and there is no proof that any of the circulars affecting the plaintiffs’ firm were issued by the defendants for some time prior to the commencement of this action, and the intention to issue such circular is expressly denied. It is true that in one of the affidavits read upon the part of the plaintiffs, it is said that certain circulars were distributed through the mails as late as the 27th of May, 1893. But it is not claimed that any of these circulars were issued in respect to the plaintiffs’ firm ; nor is there any legal evidence that any such circulars were distributed at all. It is at most hearsay, and there is no reason whatever given for the failure to produce the affidavit of some person who had personal knowledge of the facts. And as already observed, this seems to be a feature which characterizes all the papers upon this application.

It seems to me obvious that the clothing manufacturers had the right to lock out all operatives connected with' the defendants’ association because of demands which they considered unjust, made by the defendants upon one of their number, and that the defendants had an equal right to endeavor to persuade those who had been accustomed to deal with members of the Manufacturers Assoeiation to discontinue their trade.

It is a familiar principle in equity that the plaintiff must come into court with clean hands. Under the circumstances disclosed by the papers in this case, if the defendants were guilty of any violation of law, the plaintiffs were certainly equally implicated, and under this condition of affairs it is difficult to see how they would have a right to the intervention of a court of equity. In dealing with, questions of this nature the court should be studious to see that the rights of all parties are protected; and that the forms of law should not be permitted to be used on behalf of one party against another, when the party seeking the intervention of the court has been endeavoring to secure his ends by means similar to those which he seeks to enjoin on the part of his antagonist.

Upon the whole case, therefore, T am of the opinion that the injunction should not have been granted, and the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Follett, J., concurred.

O’Brien, J.:

I concur in the result. The assertion of a right or the attempt to redress a wrong on the part of either employer or employee is legal and proper. When the means employed, however, are unlawful, the courts will intervene.

If the plaintiffs here can show that, while legally asserting their rights as employers, their business has been unlawfully interfered with by the defendants to an extent entailing grievous and irreparable injury, then I think there would be presented a case wherein the court could by injunction restrain the unlawful means employed. From the affidavits used on the motion, I do not think that either of these propositions sufficiently appears to justify an injunction during the pendency of the action. That the plaintiffs were entirely without fault is by no means made evident, nor, at the time the injunction was granted, was the threatened injury serious. The defendants having denied under oath any intention to issue any more circulars, and none having been issued since those complained of in the prior action, there was little, if any, necessity for a preliminary injunction, and no injustice would have resulted if the questions at issue had been reserved until the trial.

Without expressing an opinion, therefore, as to whether, upon the facts here alleged, an injunction could or could not issue, I am of j opinion that, upon the evidence on which the motion was made, the! preliminary injunction should not have been granted, and I concur, therefore, in the reversal.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


author: Van Brunt, P. J.:

text:
    In the Matter of the Judicial Settlement of the Account of Proceedings of Sarah Leverett Hayden and Others, Executors, etc., of Peter Hayden, Deceased.

      Will — accumulation of income — ■income of an estate pending' administration.

    Under the prohibition of the Revised Statutes (1 R. S. 726, § 37), there can be no accumulation of income except for the benefit of a minor,- and such accumulation must terminate at the expiration of the minority.
    In the ordinary administration of an estate, where provision is made by a parent for his widow and children, the usual construction is that the income of the estate received pending the period of administration shall not, unless necessary for the payment of debts, be considered as a part of the estate to be distributed as principal, but shall be paid over to the persons to whom the income of the principal of the estate is devised or bequeathed, for their maintenance during the period of administration.
    A testator has no power by any means, direct or indirect, to prevent the absolute vesting of the income derived from his estate in somebody, and he can only direct any portion of such income to be accumulated during the minority of the owner of that share of his estate from which it is derived.
    The will of a testator creating trusts considered and construed.
    Appeal by Sarab Leverett Hayden and others, executors and trustees under the will of Peter Hayden, deceased, from so much of tbe decree of the. Surrogate’s Court of the county of New York, entered in the office of the clerk of the New York Surrogate’s Court on the 27th day of November, 1893, as orders, adjudges and decrees that the beneficiaries of the residuary estate of the said testator are now entitled to share in the surplus income of the funds set apart for the widow and daughters of the testator.

      Jno. JSTotmam,, for the appellants.

      G. A. Strong, for the respondents.
   Van Brunt, P. J.:

Peter Hayden, the testator, died on the 6th of April, 1888, leaving him surviving his widow, three sons, two daughters, a granddaughter and grandson, children of a deceased daughter, his heirs and next of kin. On the 30th of March, 1886, said testator duly-executed his .will, in which, after having given, devised and bequeathed certain property to his widow-, lie directed his executor to set apart out of his estate, and invest and keep securely invested .a sum sufficient to produce a net yearly income of. $20,000 and to pay said net yearly sum to his wife, and at her death he provided that the annuity should cease and the prvneipal sum directed to be set apart to provide said annuity should, after accounting for and paying to her personal representatives any balance of the annuity unpaid at the date of her death, revert to and became a part of his residuary estate. The testator then provided that should there be in any years a deficiency of income from the trust fund set apart as above directed, such deficiency should be made good out of his general estate. After making certain provisions for his sons, the testator established annuities for his two daughters, in each case providing that upon the death of the annuitant without issue the principal sum which had been set apart to provide the annuity should revert to and become a part of his residuary estate. The testator then directs his executors to provide annuities for his two grandchildren, the children of his deceased daughter, amounting to $6,000 per year for each of said children. He then provided that his executors should apply -the income as fast as received by them to the use of the child which each annuity represented during the minority of such child so far as might be necessary for the support and education of such child, and then provided that any surplus-income should be accumulated, etc. The testator further provided that, in respect to these annuities, also they should be made good out of his general estate. The testator then disposes of all the rest,, residue and remainder of his estate (including all sums which should on the termination of any life, as in said will provided, revert to his estate) as follows:

“All the rest, residue and remainder of my estate which shall come into the possession of my executors after making full provision for all the trusts and payments hereinbefore directed, including all sums which shall, on the termination of any life, as herein-before provided, revert to my estate, shall constitute my residuary estate, and I hereby give, devise and bequeath the same, wherever' situated, unto my executors hereinafter named, or such of them as. shall qualify under this will, and the survivors and survivor of them,, to have and to hold the same and every part and parcel thereof in trust, to divide the same and the proceeds of sale of such portions thereof as they may sell under the power of sale hereinafter given, into as many equal parts as I shall leave surviving me children and the issue of any deceased child, such issue of any deceased child to-stand in the place of their parent, one share to represent each child and the issue of any deceased child, per stirpes, and to pay over to each child the share representing such child, and to the issue of any deceased child the share of such issue; the share of any minor to be paid to the guardian of such minor. Such division and payment shall be made from time to time as my residuary estate shall be received by my executors, and shall be capable of division and distribution ; but in no case shall any such division or distribution be made until ample pro vision has been made, as hereinbefore specified, for each and all of the trust funds hereinbefore directed, and any loss, deficiency or impairment of either of the same shall be made good out of my residuary estate before any such division or distribution, my object being to secure to my daughters and grandchildren hereinbefore named the annual income provided for them respectively before any division of my residuary estate.”

On the 19th of May, 1886, the testator made a codicil to his will, by which he directed that the principal of the several shares of his daughters, then living, in his residuary estate should, as fast as ascertained from time to time by his executors, instead of being paid to his said daughters respectively, be retained by the executors and kept safely invested, and the income only thereof should be paid to his daughters respectively during life, and on the death of either the principal of the share of such daughter should belong and be paid to the lawful issue of such daughter, and in default of issue should belong to and be divided in equal parts amongst his sons and the children of another deceased daughter of his.

The executors and trustees of the will of the testator duly constituted the trusts provided for by said will, and during the course of administration certain income was received by them from the rest, residue and remainder of the estate. It also turned out that a larger amount of income was received from the securities set apart for the production of the annuities than was required for that purpose, and the question which is presented upon this appeal is, whether such amounts of income which, under the will, would have been paid to the two daughters of the testator, upon division of the estate, are to be held as principal by the executors of the will as trustees of the shares of the daughters under the codicil.

In view of the provisions of the Revised Statutes in reference to accumulations of income, it might be a serious question as to the validity of this will, if the construction claimed by the appellants must necessarily prevail; because it would appear that under the prohibition of the Revised Statutes (1 R. S. 726, § 37) there can he no accumulation of income except for the benefit of a minor, and such accumulation must terminate at the expiration of minority.

It is to be observed that in the ordinary administration of an estate, where provision is made by a parent for his widow and children, the usual construction is that the income of the estate received, pending the period of administration, shall not, unless necessary for the payment of debts, be considered as a part of the estate to be distributed as principal, but rather be paid over to the persons to whom the income of the principal of the estate is devised or bequeathed, for their maintenance during the period of administration. Any other rule would seem to be in conflict with the provisions of the Revised Statutes in respect to accumulations to which attention has been called. Where there is a division of the residuary estate and an absolute bequest thereof as to some of the legatees under this will, the question here involved becomes of no importance, because the legatee takes his share of the principal and income together. But where there is a life estate only in the shares or interests in the estate with a disposition over of the principal of such shares, a different question necessarily arises. And we know of no way in which the prohibition of the statute can be avoided, except by so interpreting the will that the legatees of the residuary shares, if of full age, might take absolutely the income derived upon their proportions of the estate unaffected by any suspension of the absolute ownership.

And we think that upon an examination of the will in question, such was clearly the intention of the testator. There is, so far as the annuities are concerned, no provision contained in the will for any surplus of income reverting to his residuary estate as such. The provision is that the principal which had been set apart for the purpose of producing these annuities should revert to his residuary estate on the death of the annuitant, and that the unpaid portion of the annuity should belong to the personal representatives of the annuitant. But there is no intimation that it was the intention of the testator that any portion of the income derived from his estate should be accumulated as against any of the legatees, except in the ease of the grandchildren during minority. It is evident from a consideration of the provisions in regard to accumulations of income for these minors that the testator had in mind the provisions of the Revised Statutes in reference to accumulations of income, and that such accumulations could only be provided for during a minority.

If the appellant’s claim should be sustained there might be an accumulation of income during the lives of the whole of these annuitants by an excessive appropriation of money to the establishment of these annuities, and the daughters, the absolute ownership of whose shares has been suspended, might be deprived of that which the testator intended they should receive.

In view of the provisions of the will it was undoubtedly the duty of the executors to be sure in the constituting of these annuities that a sufficient principal sum was provided for their production. The testator was solicitous that there should be no failure in respect to this matter. But there is nothing in this will to show that the testator intended by any of the provisions therein contained that his daughters should be deprived of any portion of the estate which would naturally come to them as income because of the manner of administration upon the part of the executors named in the will.

We are aware of the language that the testator used in connection with the division and distribution of his estate. But he had no power, even if he so intended (which we do not think he did), by any means, direct or indirect, to prevent the absolute vesting of the income derived from his estate in somebody, and he could only direct any portion of such income to be accumulated during the minority of the owner of the share of his estate from which it was derived.

It is important to observe, as already stated, that wherever the testator speaks of accretions to his residuary estate it is always in reference to the principal of his estate; and in his provision for the holding by his executors as trustees for his daughters, of their shares, he speaks of the principal of such share, and nothing is said about the trustees holding any portion of the income which should be derived from his estate, and which would naturally belong to his residhary legatees.

There seems to be no way in which this construction can be avoided without infringing upon the statute, which was evidently not the testator’s intention.

We are of opinion, therefore, that the decree of the surrogate was correct, and should be affirmed, with costs to all parties to be paid out of the estate.

Follett and Parker, JJ., concurred.

Decree affirmed, with costs of all parties to be paid out of estate.


author: Yan Brunt, P. J.:

text:
    John Poth, Plaintiff, v. The Mayor, Aldermen and Commonalty of the City of New York, Defendant.

      Illegal assessment — relief obtainable — prohibitive pi'ovisions of the Consolidation Act, ehap. 410 of 1882 — to what cases applicable.

    Where proceedings are taken by a person, prior to the payment of an assessment levied against Mm by the municipal corporation of the city of New York, for the purpose of obtaining redress in respect to certain illegalities complained of therein, all the relief he is entitled to is to have the same reduced to the fair value of the improvements by which his property has been benefited, but-if he commences proceedings for such relief and then abandons them and waits until his property is advertised for sale, and then pays his assessment, he can thereafter maintain an action to have the whole assessment declared void and recover back the whole amount paid.
    The prohibitive legislation contained in the Consolidation Act is applicable only to cases where the lien of the assessment continues, and has no application whatever to those cases where a party takes no steps to obtain any redress for the injustice done him, but waits until his property is about to be sold in the ordinary procedure and then pays the assessment and removes the lien.
    Motion by the defendant, The Mayor, Aldermen and Commonalty of the City of.New York, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance after the verdict of a jury for $4,154.63 in favor of the plaintiff, rendered by direction of the court after a trial at the New York Circuit on the 27th day of November, 1893.

      G. L. Sterling, for the motion.

      J. Flannery, opposed.
   Yan Brunt, P. J.:

This action was brought to have an assessment declared void, and to recover back the amount paid upon the same by the plaintiff.

There is no question raised upon this appeal as to the payment being involuntary, nor is it claimed upon the part of the defense that the whole of the assessment in question was valid. But it is conceded that some material portion of the assessment at least is void. And it is claimed upon the part of the plaintiff that such being tbe fact, and tbe payment of tbe assessment having been involuntary, in this action he has a right to have the whole assessment declared void and to recover back the whole amount paid.

If this position is well taken, as we fear it is, if we comprehend ■correctly the adjudications in the Court of Appeals, then the sluggard who has waited until the last moment to ask the intervention of the court, is able to obtain much greater relief than he who has acted with diligence and sought to have the evils under which he has suffered properly corrected. There is no question but that if any proceedings had been taken prior to the payment of the assessment by the plaintiff for the purpose of redress in respect to the illegalities complained of in the assessment, all the relief he could have obtained would have been to have' had the same reduced to the fair value of the improvement by which his property had been benefited. But having commenced proceedings for this relief, and having abandoned them, and having waited until his property was advertised for sale, and then having paid the assessment, it seems that he can maintain an action to have the whole assessment declared void, and recover back the whole amount paid; and this, because it seems to have been held by the Court of Appeals that the prohibiting legislation contained in the Consolidation Act was applicable ■only to cases where the lien of the assessment continued, and had no application whatever to those cases where a party took no steps to obtain any redress for the injustice done him, but waited until his property was about to be sold in the ordinary procedure, and then paid the assessment and removed the lien.

It is undoubtedly true that in the cases of Chase v. Chase (95 N. Y. 373) and In re Smith (99 id. 424) the court states that although the effect of such legislation is to prevent a party from taking active proceedings to have an assessment declared void, it did not deprive him of his power to stand upon his legal rights and challenge the validity of the assessment whenever his property was seized under it, or it was made the foundation of proceedings against him. But we think that in the cases of Jex v. Mayor (103 N. Y. 536); Diefenthaler v. Mayor (111 id. 331), and Tripler v. Mayor (125 id. 617) the court of last resort has construed the statutes in question to apply to those cases only in which the lien of the assessment continued. It is true that the Jex case construed the act of 1858 as amended in 1874, and that the Diefenthaler ease construed the act of 1880, which differs materially from the provisions of the Consolidation Act, which prevailed at the time the plaintiff’s rights, if any, accrued.

In Tripler v. Mayor, however, the court seem to have recognized the right to a recovery of the whole of an assessment, notwithstanding the prohibitions contained in the Consolidation Act, where irregularities and illegalities existed which affected the validity of the assessment, and where the payment of the same had been involuntary.

It is true that in that case the court held that the payment was not involuntary and that a recovery could not be had upon that ground. But in view of the opinions expressed in the Jex and Diefenthaler cases, it would seem that the court had determined that the same principles applied.

If it were not for this decision in the case of Tripler v. Mayor, we think it might well be shown that the enactment contained in the Consolidation Act in reference to the vacating and modifying of assessments, materially differs in its provisions from those which existed under the act of 1858 as amended in 1874, and those which were contained in chapter 550 of the Laws of 1880.

Section 9 of the law of 1880, which was held to be controlling in the disposition of the Diefenthaler case, by its language expressly referred to the assessment specified in the first section of the act under which the assessment in the Diefenthaler case fell, and that section provided that the lien of such assessment should not be disturbed, modified, etc. It might very well be held, therefore, under that act that all that the Legislature was legislating in respect to were the liens created by such assessments.

But in the Consolidation Act, upon an examination of sections 897-903, 913, it seems to us that it will be seen that there was no intention to restrict the prohibition to those cases in which an application was made to the courts for relief in respect to the lien of the assessments. It may be that the rule laid down in The Matter of Smith and in the case of Chase v. Chase would still obtain, viz., that there was no intention to take away the right of the property owner to defend against an illegal assessment when it was attempted to seize his property because thereof. But that the intention of the Legislature by tbe enactments contained in the Consolidation Act was to make its provisions apply to all assessments confirmed after June 9, 1880, the date of the passage of chapter 550 of the Laws of 1880 (a class different from those affected by the last-mentioned act), seems to be manifest upon a examination of the sections of the Consolidation Act to which reference has'been made.

Section 897 provides that no suit or action in the nature of a bill of equity or otherwise shall be commenced for the vacation of any assessment; or to remove a cloud upon title, but the owners shall be confined to their remedies in such cases to the proceedings under this title (which was substantially the act of 1858 as amended by the act of 1874).

Section 898 provides for the proceedings to be taken to obtain relief for fraud or substantial error in an assessment.

Section 899 provides that assessments shall not be vacated because of certain omissions.

Sections 900 and 901 are simply directory as to procedure.

Section 902 provides that sections 898-901 shall apply to the proceedings therein stated, visf.: First, to proceedings or actions commenced on or before September 9, 1880, to vacate or set aside assessments for any local improvement confirmed by the board of revision and correction of assessments before June 9, 1880; and, secondly, to proceedings or actions which since June ninth have been commenced, or may hereafter be commenced, to vacate or set. aside any assessment completed before said day, etc. And then by section 903 the Legislature provided generally that no court should vacate or reduce any assessment in fact or apparent confirmed after June 9, 1880, whether void or voidable, on any property for any local improvement thereafter completed, otherwise than to reduce, etc.; and further provided that in no event should that portion of any such assessment which is equivalent to the fair value of any actual local improvement, with interest from the date of confirmation, be disturbed for any cause.

Now, it is apparent from the very language of this section that it is intended to be absolutely prohibitory in respect to all proceedings affecting such assessments, and that it does not refer to the proceedings provided for by section 887, among many other reasons, because no suit to remove a cloud upon the title could be maintained in respect to an assessment which was void upon its face, and the language of this section covers that procedure as well as all others.

Section 903 stands by itself, having reference to no other portion of the act; it is explicit in its terms, and, as already stated, there is nothing in any other provision of the act which restricts its operation. And when we read section 913 it is more plainly seen that there is no foundation for the claim that section 903 applies only to those cases in which liens for assessments exist, but that it prohibits all affirmative action upon the part of the property owner, except to have an assessment reduced to the fair value of the actual local improvement.

Section 913 says: “ The lien of any assessment specified in section 902,” and then follows the language which occurred in the act of 1880.

Section 902 applied only to those cases where the assessment had been completed before June 9, 1880, and confirmed by the board of revision and correction after said date. But section 903 applied to all assessments confirmed after June 9, 1880, and was general in its terms, and was no| in any way restricted by the wording of section 913.

Although this seems to us to have been the intention of the legislature, and secured manifest justice to the property owner as well as afforded some protection to the city, yet, in view of the decision in Tripler v. Mayor, where the court held that an action such as the one at bar could be maintained to recover the whole amount of the assessment, because of illegality in part, we feel bound to hold that the plaintiff was entitled to recover the whole amount of the assessment.

The exceptions should be overruled and judgment ordered upon the verdict rendered, with costs.

Eollett and Parker, JJ., concurred.

Exceptions overruled and judgment ordered on verdict rendered, with costs.


author: Yan Brunt, P. J.: Pollett, J.:

text:
    Katharine L. Knox, Respondent, v. Henry Nobel, Appellant.

      The appointment of a minor as an administrator is void — jm'isdiction of the surrogate— contract made by such administrator — personal liability thereon — may be repudiated — action to set aside the same ■ — parties thereto.

    The question whether a minor can legally he appointed administratrix of her deceased husband has no relation whatever to the question as to the jurisdiction of a surrogate to grant letters of administration.
    The granting of letters of administration is conclusive as to the facts upon which the jurisdiction of the court to grant letters upon the estate depends, among which facts are neither the petitioner’s title nor her-eligibility to the office, and while the decree of the surrogate is conclusive as to all the facts essential to his jurisdiction, it imports nothing as to the eligibility of the person to whom the letters are granted.
    The jurisdiction of a surrogate to appoint an administrator does not in any way depend upon any inquiry into the age of the proposed administrator.
    The appointment of a minor as an administrator of a decedent by a surrogate is absolutely void, and a contract made by such a person as administrator is void as far as it attempts to bind the estate.
    A person attempting to enter into a contract in a representative capacity, having no authority to enter into the same in such capacity is bound thereby individually.
    A contract entered into by a minor, unless repudiated within a reasonable time after such minor becomes of age, will bind the minor.
    Where a contract was made by a minor as administratrix of an estate, she can, on coming of age, maintain an action to set aside the same, and the estate is not a necessary party to the action.
    Appeal by tlie defendant, Henry Nobel, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th . .day of February, 1894, upon a decision of the court rendered at the New York Special Term, overruling the defendant’s demurrer to the amended complaint.

      II. Hoyt, for the appellant.

      L. Birdseye, for the respondent.
   Yan Brunt, P. J.:

This action is brought by the plaintiff individually to set aside a sale attempted to be made by her as the administratrix of her deceased husband upon the ground that at the time of granting the letters of administration she was a minor, and that the sale was made under the fraudulent representations and inducements of the defendants, and that the consideration paid was inadequate.

The main question involved upon this appeal is whether letters of administration issued by the surrogate to a minor are or are not void.

It is urged that as it is well established that the granting of letters of administration by the surrogate are conclusive as to his jurisdiction, the question as to the eligibility of the plaintiff to the office of administratrix cannot be inquired into collaterally. We think that the question as to whether the plaintiff could legally be appointed administratrix of her deceased husband, she being a minor, has no relation whatever to the question as to the jurisdiction of the surrogate to grant letters of administration, and here is where the confusion has arisen.

An examination of section 2660 of the Code as it existed at the time of the issuing of the letters of administration in question, will show that the eligibility of a petitioner to appointment as administrator has no connection with the facts upon which the jurisdiction of the Surrogate’s Court to grant letters of administration upon the estate depends. The section says: “ A person entitled absolutely or contingently to administration upon the estate of an intestate may present to the Surrogate’s Court having jurisdiction, a written petition, duly verified, praying for a decree awarding letters of administration either to him, or to such other person or persons having a prior right, as may be entitled thereto, or in the alternative as the petitioner elects, and if necessary, that the persons required to be cited as prescribed in the next section be cited to show cause why such decree should not be made. The petition must set forth the petitioner’s title ” (it is clear that what is meant by this provision is the relationship under which the petitioner claims); “ the facts upon which the jurisdiction of the court to grant letters of administration upon the estate depends ; and the names of the husband or wife, if any, and of the next of kin of the decedent, so far as they are known to the petitioner or can be ascertained by' him with due diligence.” '

It is thus seen that the facts upon which the jurisdiction of the court to grant letters depend, do not include the petitioner’s title, and were not intended to include the petitioner’s title, and are by the very language of the section excluded. And, therefore, when it has been held that tire grant of letters of ad ministration is conclusive as to the surrogate’s jurisdiction it has only been decided that the granting of such letters is conclusive as to the facts upon which the jurisdiction of the court to grant letters upon the estate depend, and as already seen the petitioner’s title is not one of them, nor is the petitioner's eligibility to the office. "While, therefore, the decree of the surrogate is conclusive as to all the facts necessary for his jurisdiction, it imports nothing as to the eligibility of the person to whom the letters are issued. The statute expressly prohibits the granting of letters to a person convicted of an infamous crime, or to one incapable of making a contract, or to a person' who is under twenty-one years of agé, etc. Can it be said that the surrogate by his ip se cUxit can repeal the statute, it being manifest that the question of the eligibility of the person proposed to be appointed administrator is not one of the jurisdictional facts ? It would be a monstrous proposition to hold that any judicial officer can by his mere will override the express prohibitions of the statute.

The question of the age of this petitioner was in no respect presented to the surrogate for adjudication ; no such issue was before him, and his jurisdiction to appoint an administrator did not depend upon any such inquiry. And in this respect the case at bar differs from those of Roderigas v. East River Savings Bank (63 N. Y. 460; 76 id. 316) and Bolton v. Schriever (135 id. 70).

In those cases the question, before the surrogate was as to his right to act at all, and he having determined the question of jurisdiction, it was held that such adjudication could not be attacked collaterally. The right of the surrogate in the case at bar to appoint an administrator could not be attacked collaterally; but when lie selects a person whom the statute says he shall not appoint as such administrator, after having determined to appoint such an officer, his act is absolutely void. Such was the rule laid down in Carow v. Mowatt (2 Edw. Ch. 58) in which it was held that not only was the appointment of a minor void, but he could not be called to account for any portion of the estate which he had received. It seems, therefore, reasonably clear that the apjiointment by the surrogate of the plaintiff was void ; and that the contract, as far as the plaintiff attempted to bind the estate of her husband, was also void.

But it is a familiar principle that a person attempting to enter into a-contract in a representative capacity, having no authority to enter into such contract in such capacity, is bound individually. And hence, even if this plaintiff had no authority to enter into the contract as the administratrix of her husband, because of the invalidity of her appointment, she would have been held individually had it not been for her minority. And even if the contract was entered into at a time when she was a minor, unless repudiated within a reasonable time after she became of age, she might be held upon it. The plaintiff, by this action, conies into court and seeks to disaffirm this contract, alleging that it was entered into while she was a minor, further alleging that it was obtained by fraud, and that she seeks to avoid the personal responsibility which would arise against her because of her entry into the contract as administrator of her husband without having the authority so to act.

It seems to us that she has a right to maintain this action to relieve herself individually from any claims which might be attempted to be enforced against her. The estate which she assumed to represent has no interest in this question. It is not bound by the contract, and is not at all interested in the question as to whether the plaintiff, individually, is or is not so bound. She alone is interested in the question as to whether she is to be liable to the defendants for damages in attempting to enter into a contract without authority.

We are of opinion, therefore, that the judgment should be affirmed, with costs, with leave to defendants to withdraw demurrer, and on payment of costs of court below and of this court, to answer.

Parker, J., concurred.

Pollett, J.:

I concur, with leave to withdraw demurrer, and answer on payment of costs.

Judgment affirmed, with costs, with leave to defendants to withdraw demurrer, and to answer on payment of costs in the court below and of this court.


text:
    Henry J. Barnes, Appellant, v. Joseph G. Luther and Others, Defendants, Impleaded with Amelia M. Barnard and Others, Appellants. In the Matter of the Petition of Louis Lowenstein and Another, Respondents, to be Relieved from the Purchase of Real Estate.

      Action of pa/rtition — when contingent interests of persons not in being may be cut off.

    In an action brought for the partition and sale of realty, the contingent interests of persons not in being may be cut off, provided the judgment entered therein provides for and protects those interests, but not otherwise.
    Appeal by the plaintiff, Henry J. Barnes, and by the defendants, Amelia M. Barnard and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of February, 1894, relieving the petitioners, Louis Lowenstein and another, from their contract for the purchase of certain premises, and directing the repayment to them of the sum of $1,292.

      Thomas P. Wiches, as receiver, appellant and attorney in person.

      Horace H. O hittendon, for plaintiff, appellant.

      James M. Townsend,, for Amelia M. Barnard, defendant, appellant.

      Masten <& Hichols, for certain defendants, appellants.

      Franlcbm Pierce, for purchasers, respondents.
   Follett, J.:

February 17, 1888, Julia M. Luther, a citizen of this State, died seized of No. 322 Delancey street and No. 56 Goerck street, the income of which she devised to her sisters, Amelia M. Barnard and Amanda M. Ball, and to the survivor of them for life. Her will was probated in Kings county, in this State, March 20, 1888, and letters testamentary issued thereon to Amanda M. Ball, who acted as executrix until her death, and thereafter, and on the 16th of November; 1888, letters testamentary were issued to Joseph G. Luther. The testatrix left her surviving said, two sisters and nine nephews and. nieces, the children of .a deceased brother, her only heirs and next of Mn. The fee of this realty descended, subject to the life estate devised, one-tliird to each of her said sisters and one-tliird to the children of her deceased brother, each nephew and niece becoming entitled to a one-twenty-seventh part. In August, 1888, said Amanda M. Ball, a resident of Massachusetts, died in that State, leaving a last will by which she devised her interest in the property to TIenry J. Barnes, the plaintiff. On the 4th of September, 1888, her will was admitted to probate in the State of Massachusetts, and letters testamentary issued thereon to Henry W. Hart and Samuel M. Brown.

On the 26th of April, 1892, Abbie Maria Ball, one of the nieces, a citizen of Massachusetts, died, leaving a will by which she devised her interest in the property to Iienry H. Earl, as trustee, with directions to apply the income therefrom to the support of her son, Harry Wheaton Ball, during life, and upon his death, leaving children, the remainder was devised to them, but in case he left none it was devised to the sisters of the executrix, except Mary Hannah Pierce. Her will was admitted to probate in Massachusetts November 18, 1892, and letters testamentary were issued thereon to Henry II. Earl. The wills of Amanda M. Ball and Abbie Maria Ball have not been recorded in this State, pursuant to section 2103 of the Code of Civil Procedure, nor does it appear whether they were executed in accordance with the laws of this State.

James Westgate Mason, one of said nephews, died intestate in Massachusetts, September 20,1892, leaving no ancestors nor descendants, and leaving his brothers and sisters and his nephew, Harry Wheaton Ball, his sole heirs and next of kin.

In April, 1893, this action was begun to compel Joseph G. Luther, as executor of Julia M. Luther, to account as said executor. During the pendency of the action, Thomas P. Wickes was appointed receiver of the property of Julia M. Luther within this State.

The surviving sister, said Amelia M. Barnard, and the seven surviving nephews and nieces are parties defendant, and so are the representatives of Amanda M. Ball, Abbie Maria Ball and James Westgate Mason. They all answered and joined in the prayer of the complaint, and also prayed for a judgment distributing the estate of Julia M. Luther among the persons entitled thereto. An. interlocutory judgment was entered in the action directing a sale of the property under the direction of Thomas P. Wiclces, and a distribution of the avails. Upon the sale had, pursuant to the judgment, the respondents became the purchasers, but afterwards applied to be relieved from their purchase upon the ground that the title is defective. Harry Wheaton Ball is not a party to this action, but' he offers to join in the conveyance of liis interest in the property. No provision is made in the judgment under which the respondents are asked to take their title for the protection of the interests of such children as Harry Wheaton Ball may leave him surviving. In an action brought for a partition and sale of realty the contingent interests of persons not in being may be cut off, provided the judgment entered provides for and protects those interests, but not otherwise. (Monarque v. Monarque, 80 N. Y. 320; Kent v. Church of St. Michael, 136 id. 10.) Under the will of his mother, Harry Wheaton Ball did not acquire her interest in this land, and his conveyance would not cut off the interests of such children as he may leave in the land devised by his mother.

The title tendered is not one which the respondents should be required to take, and the order should be affirmed, with costs.

Yan Brunt, P. J., and O’Brien, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Parker, J.:

text:
    Julia V. Pape, as Executrix, etc., of Ernest D. Pape, Deceased, Respondent, v. Joseph L. Schofield and Others, Appellants.

      Interlocutory judgment — valid until reversed— conditional opening of default.

    An interlocutory judgment based upon the report of a referee is valid and final as to the rights of the parties thereto, until reversed on appeal.
    Where the court, as a condition of opening the default of certain defendants in an action, directed that such defendants should not interpose any technical objection to the rights of the plaintiff to continue the action in the form it was then in, if such defendants accept the conditions of the order and obtain the benefits which it granted to them they are bound by its provisions.
    Appeal by certain of the defendants, Samuel R. Schofield and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in tlie office of the clerk of the county of New York on the 13'th day of December, 1890, by order of the New York Special Term, upon the report of a referee, and also from the judgment modifying the same, entered in said clerk’s office on the 13th. day of October, 1893, upon the report of a referee.

      F. I Moissen, for the appellants.

      J. Delahunty, for the respondent.
   Parker, J.:

Prior to the 22d day of December, 1883, Jos.eph L., Simon R. .and Helen Scofield, Mary Rich and Catherine R. Pape were tenants in common of certain premises situated in this city. On that day Catherine R. Pape died, leaving her surviving her husband, Ernest D. Pape, who thereupon became vested with a tenancy by the curtesy in an undivided one-fifth share of such, premises. About the 1st. of August, 1888, the owners of the fee= had presented to them an opportunity to sell the real estate at what, seemed a favorable price, and their agent and attorney, Thomas J. McKee thereupon undertook to induce Pape to join in the conveyance. This at first he refused to do unless he should be paid a proportion of the rents due him as tenant by the curtesy, together with the unpaid rents which were due to his wife at the time of her death, and the value of his interest as such tenant, to be computed, according to the method provided by law.

Pape prepared p.nd presented an itemized statement of his claim aggregating §7,778. The correctness of the claim was not admitted, and the time for the completion of the sale being near at hand it was agreed between the agent for the owners of the fee and Dr. Pape that a sum of money equal to the amount claimed by him should be retained out of the purchase money for the purpose of paying whatever amount it should afterwards be agreed of right belonged to the claimant.

Accordingly the sale took place; the money was retained by the agent McKee as stipulated, but the parties being unable to agree upon the amount due, Pape instituted this suit in which he demanded an accounting for the rents to which he made claim individually, as well as those alleged to be due him as administrator of his wife’s estate, and for the gross value of bis tenancy at tbe time of tbe conveyance.

Two of tbe defendants answered; tbe others suffered default, and tbe case being at issue tbe Special Term sent tbe matter to a referee to take and state tbe accounts and report, tbe interlocutory decree further adjudging that upon tbe coming in of tbe report of tbe referee and tbe confirmation of tbe same, plaintiff have judgment; that tbe defendant pay to tbe plaintiff out of tbe moneys in bis Lands mentioned in tbe complaint tbe sum which may be found due him as tenant by tbe curtesy in said premises and as administrator of Catherine K. Pape, deceased.

The referee reported that there was due to the plaintiff tbe sum of $6,341.23, the report being dated and filed December 13, 1889. Two days later tbe plaintiff Pape died; shortly afterwards bis executor was substituted in his place as plaintiff, and on November 29,1890, final judgment was entered confirming the referee’s report and directing payment to tbe plaintiff by McKee out of tbe funds in bis bands, of the sum reported due, with costs.

Thereafter Simon P. and Helen Schofield and Mary Pich, who had not appeared in the action, made application to the court that the default be opened. The motion was granted, the order providing that they be allowed “ to come in and litigate tbe question as to tbe amount that should be paid Dr. Ernest D. Pape’s estate from tbe fund in tbe bands of Thomas J. McKee (one of said defendants), and for that purpose interpose answers to tbe amended complaint in said action, and said motion to that extent is hereby granted upon condition:

First. That said defendants will not and do not take or interpose any technical objection to tbe right of tbe said plaintiff to continue tbe action as it is is now framed.

“Second. That said action be sent back to the referee appointed by tbe interlocutory judgment therein for trial upon tbe issues made by the answers to be interposed to said complaint by said defendants respectively. Such answer or answers to be served within ten days after tbe entry of this order, and tbe reference to proceed thereafter upon two days’ notice.”

Tbe proceedings thereafter had, resulted in a report by the referee that there was due the plaintiff the aggregate sum of $6,309.54, which report was confirmed at Special Term and judgment accordingly entered.

Under this state of facts, it seems a little remarkable that the defendants, who were allowed to come in by the court, after judgment had been rendered for the purpose only of litigating the sum ■due, should contend with apparent seriousness:

First. That however substantial the claim of Dr. Pape may have been for moneys accrued to him by reason of his tenancy by the ■curtesy, that it abated on his death.

Second. That the plaintiff failed to prove any personal -liability ■on the part of the co-tenants other than Joseph L. Schofield, who ■collected the rents.

Third. That the agreement did not provide that the.sum set apart to secure Dr. Pape, or any part of it, should be applied in the payment of rents due him either individually or as administrator.

In the light of the facts disclosed by this record, to the principal features of which we have briefly alluded, it is apparent that the points referred to ought not to have been insisted upon here. But, .as they have been unsuccessfully presented, there will result no practical difference. Touching the first point, it is unnecessary for ■us to determine what would have been the effect upon the claim 'which Dr. .Pape made, had he died before the granting of the interlocutory judgment, and the making and filing of the report of the referee in pursuance thereof. That judgment was valid and final as to the rights of the parties until reversed on appeal, and as no appeal has ever been taken from it, it is not before this court for review. The merits of the controversy being thus adjusted as between the parties, three of the defendants asked that their default might be opened and they allowed to come in and defend. Apparently for the purpose of depriving the petitioners, seeking relief from their ■ default, from making such use of the benefit which they sought as would work injustice to the estate of the deceased Dr. Pape, the court established the limits of the answer and inserted as a condition for the opening of the default that defendants should not interpose any technical objections to the rights of the plaintiff to continue the action in its present form. Now, having accepted the conditions of the order and obtained the benefits which it granted to them, defendants are bound by it.

The point next made is that liability for rent collected by one-tenant in common for his co-tenant is a personal one, and can only be enforced against him personally.

The applicability of that proposition to the situation which the facts of this case present is sought to be founded on the fact that the rents for a number of years for which the plaintiff has recovered were collected by Joseph L. Schofield, one of the co-tenants. The contention is not well grounded, however, because the situation is changed by the stipulation and agreement of the parties. The owners of the fee, being anxious to sell the property, attempted to induce Dr. Pape to unite with them in a conveyance, but he refused on the ground that he had not received the proportion of the rent due to him individually and as administrator of Mrs. Pape’s estate. This refusal standing in the way of the consummation of their agreement to sell, they attempted to provide a method which should secure to him whatever should be found to be actually due.

True, the several defendants did not sign the agreement, but McKee, their agent and attorney, signed it for them, as he was authorized to do, and some, if not all of them, knew what the arrangement was prior to the execution of the conveyance.

The whole transaction, therefore, amounted in effect to an agreement between the parties that the whole or such part of the claim of Dr. Pape as should turn out to be well founded, which claim was then before them in the form of an itemized statement, should be paid out of the fund to be retained from the proceeds of the sale by the agent McKee.

Eor the reason presented in the discussion of the first and second points the third cannot avail the defendants.

It is further insisted that the referee erred in finding Dr. Pape to have been of the age of sixty-three years on the 1st day of August, 1888. An attentive reading of the evidence leads us to the conclusion that the referee’s findings has such support therein as denies to this court the right to interfere with it.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    The Mayor, Aldermen and Commonalty of the City of New York, Appellant, v. John Brady and Another, Respondents.

      Action against sureties on an indemnity bond —evidence improperly excluded.

    An action was brought by a municipal corporation against the sureties upon the bond of a contractor, to recover the amount of a judgment entered against and paid by such corporation, together with its expenses in defending the action resulting in such judgment, on the theory that such judgment was for damages caused by a negligent act or omission of the contractor, for which, as between him and the corporation, the contractor was primarily liable.
    Upon the trial the judgment roll in such action was introduced and received in evidence. The plaintiff then produced the witnesses who had been before the court upon the trial of the action wherein judgment was recovered against the municipal corporation, and attempted to prove the alleged negligent acts on. the part of such contractor, which furnished the basis of the recovery therein, the purpose being to establish as between such corporation and the contractor for whom the defendants were sureties that such contractor was primarily liable for the damages sustained.
    This evidence was excluded.

      Held, that the evidence should have been admitted, and that the rejection thereof was an error which required the reversal of a judgment entered in said action in favor of the defendants.
    Appeal by the plaintiff, The Mayor, Aldermen and Oommonalty of the city of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of November, 1893, upon the direction of the court, after a trial at the New York Circuit, before the court and a jury, dismissing the plaintiff’s complaint, and for costs, and also from an order entered in said clerk’s office on the 23d day of November, 1893, denying the plaintiff’s motion to set aside the A7erdict and for a new trial made upon the minutes.
    This action was brought to recover the amount of a judgment recovered against the plaintiff, a municipal corporation, and the costs of the plaintiff in defending the same, by reason of the alleged negligence of the contractors against whose acts the defendants had indemnified the city.

      W. II. Clark, Charles Blandy and Terence Fa/rley, for the appellant.

      James A. Deervng, for the respondents.
   Parker, J.:

As we adhere fully to the position taken by this court on the former appeal in this action ('TO Hun, 250), further discussion of the questions considered will not be indulged.

The record then before the court disclosed that the plaintiff in order to establish its cause of action had introduced in evidence the contract, the bond and the judgment roll, proved the payment of the judgment, the amount expended in contesting, the former action and rested.

This court held that the plaintiff had failed to make out a case. It appeared from the judgment roll that the issue, whether the city or the contractor was primarily liable as between themselves, was not presented or tried, therefore it failed to establish that which was essential to a recovery, viz., that the judgment recovered against the city was for damages caused by some negligent act or omission of the contractor, for which as between him and the city the contractor was primarily liable.

On the last trial, the record of which is now before us, the plaintiff produced the witnesses who were before the court upon the trial of the action between Cruikshank and the plaintiff, and attempted to prove the alleged negligent acts which furnished the basis for the recovery had by Cruikshank, the purpose being to establish as between this plaintiff and Nutt and Kearns, the contractors for whom these defendants were sureties, that Nutt and Kearns were primarily liable for the damages sustained. The evidence was excluded and thus is presented error for which a reversal must be had.

Hpon the argument it was asserted that the plaintiff had failed to fairly apprise the court that its purpose was to prove the original negligence and that Nutt and Kearns were primarily liable to respond for the damages resulting. That such contention was incorrect sufficiently appears from the extracts following which we take from the record:

Mr. Blandy.— I offer to prove that the judgment against the city proceeded as the result of the negligence of Nutt & Kearns.

“ The Court.— I have already ruled on that point and you have taken your exception.

“Mr. Blandy.— Your honor does not get the point of the distinction. I told you, when Mr. Cruikshank was on the stand, I did not offer it for the purpose of proving negligence of Nutt & Kearns, but for the purpose of proving that the judgment proceeded against the city because of the finding of negligence by the jury in that action. The General Term might say to me that it was not competent for me to prove that the judgment proceeded that way, but that I should have gone on and proved the original negligence.

“ The Court.— I have twice read you the paragraph of the General Term’s opinion, which is the basis of my action in this trial. You have taken your exception to protect your rights.

“Mr. Blandy.— I offered Cruikshank a moment ago not to prove the original negligence of Nutt & Kearns, but to prove that the judgment proceeded against the city because of the negligence, leaving the judgment record then to be conclusive. Now I am in a position to prove the original negligence. I have all the witnesses here that we called on that trial, but I don’t think your honor wants me to call them. I think yon mean under the opinion of the General Term the proof would not be competent in either respect. If you say so, I am entirely satisfied.

“ The Court.— I cannot say anything more than I have; jl have read you again and again this paragraph in which the General Term said no such issue was tried or could have been tried upon that trial. Therefore, I am obliged to sustain the objection.

“ Augustus W. Cruikshank, recalled for the plaintiff:

“ Q. Will you describe to the jury the position of the pipe in question on the night that yon met with your accident ? [Objected to, first, upon the ground that the record in the suit of Cruikshank v. The Mayor is conclusive in this action; second, that sufficient foundation has not been laid, for the question of mere proof, that the land in question was a parcel of land over which the plaintiff had a right to pass. Objection sustained for the reasons already stated; exception.] Q. State the circumstances under which you met with the accident which you have described in the Cruikshank action? [Same objection, ruling and exception.] Plaintiff rests.” The judgment should be reversed and a new trial granted to the appellant, with costs to abide the event.

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

Judgment reversed new trial granted, with costs to appellant to abide event.