text:
    Mandeville J. Barker and Laura A. Laney, as Executors, etc., of Enos G. Laney, Deceased, Respondents, v. Mary K. Laney, Appellant.

      -Equity — action for an accounting to secure the offset of a judgment — jurisdiction once gained will he retained — a failure of a Swrogate’s Court to try a disputed claim not am, estoppel —former adjudication.

    Upon tlie trial of an action brought to obtain an accounting between the executors of Enos G. Laney and Mary K. Laney, widow of James Laney, it appeared that James Laney died intestate in March, 1885, and that his widow and Enos G. Laney were appointed administrators of his estate; that Enos G. Laney purchased and delivered to Mary K. Laney, between March, 1885, and February, 1890, large quantities of goods and advanced her money, expecting that the surrogate would allow him these amounts out of the widow’s distributive share of her husband’s estate; that upon a settlement of the accounts of the administrators in 1887, the surrogate refused to allow any of Laney’s claims on the ground that he had no jurisdiction to consider them, and directed him to pay the widow a specified sum on account of her distributive share; that in March, 1890, the widow attempted to enforce this decree against the property of Laney by execution, whereupon Laney brought an action to cancel the decree upon the ground that she had been paid by his advances.
    Upon the trial of that action it was adjudged that the widow had been paid by Laney, who also recovered a money judgment against the widow for an additional sum. On a new trial judgment was rendered in favor of Enos G. Laney to the effect that he had paid the amount due under the surrogate’s decree. Subsequently Laney had a settlement of his accounts as administrator, upon which he was directed to pay to the widow an additional sum of §6,878.49, as a balance due for her distributive share in the estate of her husband.
    Upon this state of facts, the present action for an accounting was brought by Laney, and, upon his death, continued by his executors, in which it was claimed that his advances to the widow should be applied and allowed as a set-off to the final decree of the surrogate, and that to the extent thereof the decree should be declared satisfied and discharged.
    Upon the trial of this action the plaintiffs offered no other evidence of the alleged advances beyond the judgment roll in the first action brought by Laney against the widow, and the referee found that the plaintiffs were entitled to set off that judgment against the final decree.

      Held, that the decision was correct;
    That where a court of equity had once acquired jurisdiction over, a cause for any purpose it might retain the cause for all purposes, and that, in the case at bar, it had the power to offset one judgment against the other and to grant such further relief as the nature of the case demanded;
    That inasmuch as the widow alleged, in the Surrogate’s Court, that she had never received the merchandise for which Laney claimed to recover, and as she had also disputed its value, the surrogate had no power to try those issues; that, therefore, Laney, by failing to appeal from the surrogate’s decree, which rejected his claim, was not estopped from bringing the present action for an accounting, in order to secure that offset of claims which, under the circumstances, it was not within the power of the surrogate to have permitted;
    That the judgment in the first action was conclusive in regard to all questions relating to the claim of Enos G. Laney, and that the widow could not reopen or try them again in the present action.
    Appeal by the defendant, Mary K. Laney, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 26th day of February, 1895, upon the report of a referee.
    The appeal was from a judgment entered upon the report of a referee directing that a certain judgment in favor of the plaintiffs be set off against a decree of the surrogate of Monroe county in favor of the defendant.

      The amount due upon the defendant’s decree exceeded the plaintiffs’ judgment by the sum of $1,163.30, and the defendant was restrained from enforcing her judgment except for that amount.

      Qui/ncy Van Voorhis, for the appellant.

      Bacon, Briggs, Beckley & Bissell and Frederick W. Smith, for the respondents.
   Davy, J.:

It appears from the evidence in this case that in March, 1885, James Laney died intestate, leaving the defendant, Mary K. Laney, his widow, and diaries S. Laney and James O. Laney his only children and next of Idn surviving. Enos G-. Laney and the defendant were appointed by tire surrogate of Monroe county administrators of his estate. It also appears that Enos G. Laney purchased and delivered to the defendant at various times between March 20, 1885, and February 8, 1890, large quantities of goods, wares and merchandise, and advanced some money in anticipation that they would be set off and allowed to him by the surrogate out of the defendant’s distributive share of the personal estate of her deceased husband. In 1887 the administrators filed their joint petition in the Surrogate’s Court for a settlement of their accounts. In that proceeding the surrogate did not allow Enos G. Laney any part of his said claims for advances, hut ordered them stricken out on the ground that they were unauthorized and constituted no part of his official •account as administrator. He also held that he had no jurisdiction to hear, try and determine the validity of the claims because they were disputed. In December, 1888, a decree was made by the surrogate directing Enos G. Laney to pay to Mary K. Laney, out of her distributive share in the estate, a specified sum of money. Thereafter, and e-' or about March 5, 1890, the defendant procured a transcript of said decree to be filed and an execution to be issued thereon and levied upon the property of Enos G. Laney to satisfy said judgment. Laney immediately brought an action to cancel the judgment, on the ground that it had been paid by the advances made as aforesaid, and asked that the defendant be adjudged to account to him for all the moneys which he had advanced to her, and that she be restrained from enforcing the surrogate’s decree.

The issues in that action were referred to a referee in March, 1890, who found that the surrogate’s decree had been paid and that the defendant had received from Enos G. Laney, by way of advances, several thousand dollars over and above the amount named in the decree, and he directed a money judgment against her for the balance. An appeal was taken from that judgment to the General Term, which granted a new trial unless the plaintiff stipulated to deduct the sum of $1,934.40 from the judgment, but in ease the stipulation was given, the judgment should be affirmed. (Laney v. Laney, 19 N. Y. Supp. 518.) A new trial was had before the same referee, who gave judgment in favor of the plaintiff that the modified decree of the surrogate had been paid, and directed that the same be canceled of record. In March, 1891, Enos G. Laney had a final settlement of his accounts as such administrator, and the surrogate directed that he should pay to the defendant, Mary K. Laney, the additional sum of $6,878.49, it being the balance of her distributive share in the estate of her deceased husband. This action was then brought for an accounting between Enos G. Laney and the defendant for moneys loaned, paid and advanced by him to her, and for judgment that the moneys so loaned, paid out and advanced be applied and allowed as a set-off to said decree of the surrogate, and that said decree be satisfied and discharged to the amount of said loans, payments and advances found tobe applicable as a.set-off.

In March, 1893, Enos G. Laney died, leaving a last will and testament, in which the plaintiffs were named as executors, and were thereafter substituted as the plaintiffs in this action.

Upon the trial the plaintiffs put in evidence the judgment roll in the first action, but offered no other proof as to the alleged advances. The referee held that the plaintiffs were entitled in this action to have the money judgment recovered in the other action set off against the defendant’s second decree.

' The learned, counsel for the defendant contends that the plaintiffs failed upon the trial to establish the cause of action alleged in the complaint; .that the action was for an accounting which did not authorize the court to offset the plaintiffs’ judgment against the defendant’s decree.

- The complaint, after setting forth the facts, demands judgment that the surrogate’s second decree be satisfied of record, and that the defendant account to the plaintiffs for all the money which she had received from Enos G-. Laney. It is true that the accounting asked for had been determined in the first action, yet that fact did not deprive the court of jurisdiction of the subject-matter and the parties to the action. The allegations of the complaint showed a clear case for an accounting which gave the court of equity jurisdiction to try that question and such other issues as arose upon the trial that were incidentally connected with the accounting. It also had the power to do justice between the parties, and for that purpose to offset the judgment against the decree. When the accounting was had in the first action, the second and final accounting before the surrogate had not been had, so that the plaintiffs could not in that action set off the balance due them for advances until the second decree was rendered.

It would seem as if this was a proper case for the interposition of a court of equity, because it would be unjust to permit the defendant to enforce the collection of her decree when she was owing to plaintiffs a sum nearly equal to that amount, and thus put the plaintiffs to the expense, risk and uncertainty of recovering it back.

In a similar action between these same parties an appeal was taken from the interlocutory judgment overruling the demurrer to the complaint, and this court affirmed the judgment and held that an action of this character could be maintained. (Laney v. Laney, 33 N. Y. St. Repr. 673.)

The rule seems to be well settled that when a court of equity obtains jurisdiction of the subject-matter it is not affected by any changes which may arise on the trial so long as a cause of action survives upon the facts alleged. (Lynch v. M. E. R. Co. et al., 129 N. Y. 274.)

Judge O’Brien, in Van Allen v. N. Y. E. Ry. Co. et al. (144 N. Y. 179), says that “No principle is better established or more frequently asserted than that when a court of equity has once acquired jurisdiction over a cause for any purpose it may retain the cause for all purposes, and prbceed to a final determination of all the matters at issue.”

The court having acquired jurisdiction of this case, it had the power to offset one judgment against the other, and to grant such further relief as the nature of the case demanded.

It is also claimed by tlie learned counsel for tlie defendant tliat tbe advances referred to in the complaint must be.deemed to have been allowed in the Surrogate’s Court, and if not allowed that the plaintiffs should have taken an appeal from his decision, for the reason that the surrogate had power, under the statute, upon tlie final settlement of tlie.administrator’s accounts, to credit him for advances made to the defendant for her maintenance and support, and, therefore, the proceedings before the surrogate are a bar to this action.

The evidence and findings of fact by the learned referee will not, in my opinion, warrant such a contention. There can be no question but what surrogates have authority, under the statute, to settle the accounts of executors and administrators and to adjust all matters relating to the affairs of deceased persons. This authority naturally carries with it the power to determine all questions concerning any claim, legacy or distributive share, and to whom the same shall be paid, and where allowances in money have been made-by the executor or administrator for maintenance, surrogates undoubtedly have power, in the furtherance of justice, to try and! determine those questions, and to allow advances from the distributive shares of the parties to whom the advances have been made. (Hyland et al. v. Baxter et al., 98 N. Y. 615 ; In re Hood, 90 id. 512.)

But the difficulty in applying the above rule to this case is that the advances consisted mostly of articles of merchandise purchased by Enos G. Laney for the defendant, who contended upon the accounting that she never received them, and she also disputed their value, which raised a collateral issue that was no part of the surrogate’s duty to hear, try and determine.

The courts have uniformly held that where ¡proceedings are instituted by a creditor to compel the payment of a debt, and the debt is disputed, the surrogate has no power.to try and adjudicate that question or to set off one judgment against another. (Riggs et al. v. Cragg, 89 N. Y. 491; Bevan et al. v. Cooper, 72 id. 327.)

We have, therefore, reached the conclusion that the surrogate very properly held that he could not entertain and pass upon the disputed items contained in the account of Enos G. Laney for advan<ces to the defendant. The plaintiffs, therefore, were not estopped from bringing this action for an accounting and an offset of judgments.

The judgment in the first action was conclusive upon the questions of loans, payments and advances to the defendant and could not be reopened and tried in this action.

The judgment appealed from should be affirmed, with costs,

Lewis, Bradley and Ward, JJ., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Davy, J.:

license: Public Domain

text:
    Thomas A. H. Hay and William O. Hay, as Survivors of Themselves and Jacob Hay, Deceased, Respondents, v. Jacob Jaeckle, Appellant, Impleaded with Others.

      Promissory note — who is a bona fide holder thereof as a matter of law — what is not a diversion from its intended use.

    Where, upon the trial of an action brought to recover upon a promissory note, it appears from the undisputed evidence that the plaintiff took the note in suit before maturity and paid full value therefor, and there is no evidence that would raise even a suspicion that the note was purchased in bad faith, the plaintiff is, as a matter of law, a bona fide holder of such note.
    Where commercial paper is given to enable a payee to raise money at a particular bank, and the payee procures such note to be discounted at another bank, it does not constitute a diversion of the paper from the purpose for which it was given.
    Appeal by the defendant, Jacob Jaeckle, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 3d day of May, 1895, upon the verdict of a jury rendered after a trial at the Erie Circuit.

      Myron II Glarli, for the appellant.

      Henry B. Loveland, for the respondents.
   Davy, J.:

This action was brought upon a promissory note dated June 5, 1891, made by the defendant Jaeckle to the order of A. C. Briggs for $550, payable two months after date at the American Exchange Bank, Buffalo, N. Y. The note was indorsed by the defendants A. C. Briggs and J. H. Buck and delivered to the plaintiffs before maturity. It was given at the request of Gr. D. Briggs, who was the agent of his wife, A. C. Briggs, and was solely for her accommodation.

The defendant Jaeclde contends that at the time the note was given Gr. D. Briggs agreed to have it discounted at the Farmers and ileehanics’ Bank, in Buffalo, where he had, or claimed to have, securities, and that he also agreed to take care of it when it became due. It appears that the note was not discounted at the bank, but was sent to the defendant Buck, who sent it to the plaintiffs with a request that they discount it and send him $400 in money and apply the balance on his account. The .plaintiffs discounted the note as requested and sent over $300 to Buck in cash and credited him with the balance. The note was not paid at maturity, but was duly protested for non-payment.

On the 8th day of December, T891, a new note was given by the defendant A. C. Briggs, payable to the order of J. II. Buck, for $550, which was delivered to the plaintiffs.

The defendant Jaeckle claimed upon the trial that the new note of December eighth was given in payment of the first note. This was denied by the plaintiffs, who contend that it was taken as additional security for the unsecured-accounts.

The learned judge at the trial held, as matter of law, that the plaintiffs were bona fide holders of the first note, and were entitled ,o recover thereon unless the second note was given in payment, and not as collateral security, for the first note.

It is now urged by the appellant that the court erred in holding, as a matter of law, that the plaintiffs w'ere bona fide holders of the first note. It appears from the evidence that the plaintiffs took che note before maturity and paid full value therefor. These facts' are not disputed, and there is no evidence in the -case ¿hat would raise even a suspicion that they purchased the note in bad faith.

The defendant Buck, about the fourteenth of J une, mailed a letter, with the note inclosed, to the plaintiffs, requesting, them to discount it and send him their check for $400, and to apply the balance, $150, on liis account. Buck was owing the plaintiffs at that time $2,250. He wanted, more goods, and the understanding and agreement between them was that if he would furnish the plaintiffs with good securities or notes they would continue their line of credit. This arrangement was made in May before plaintiffs received the note in question, and in pursuance of that agreement they continued to send him goods. No suspicious circumstances were connected with this transaction that can be discovered from the evidence. The business was done in the ordinary and usual way of transacting business among merchants.

' In the case of Canajoharie Nat. Bank v. Diefendorf (123 N. Y. 201) the court held that “ The payment of value for negotiable paper is a circumstance to be taken into account with other facts in determining the question of the bonafides of the transaction, and when full value is paid is entitled to great weight. But that fact is never conclusive, except in the absence of evidence tending to show notice or bad faith.”

The defendant Jaeckle offered no evidence showing actual notice or bad faith on the part of the plaintiffs, and there were no suspicious circumstances as to the bonafides of the plaintiffs in purchasing the note; therefore, the learned judge committed no error in not submitting that question to the jury.

The learned counsel for the appellant also contends that while the defendant Jaeclde gave the note and intended that it should be a negotiable promissory note, yet, on account of the agreement with Briggs that it was to be discounted at the Farmers and Mechanics’ Bank in Buffalo, it lost its negotiability, and the failure to get it discounted at that bank was a fraudulent diversion of the note, and, therefore, the plaintiffs cannot recover.

I think it is very doubtful whether the defendant Jaeclde ever gave his note relying upon Briggs’ representations. The note was made payable at the American Exchange Bank, and not- at the Farmers and Mechanics’ Bank. There can be no question but what the defendant Jaeckle gave his note to Mrs. Briggs to enable her to raise money on it, and to use it as she saw fit. What difference, then, did it make to him who discounted the note ? How was he injured in any respect because the note was not discounted at the Farmers and Mechanics’ Bank ? His injury arose from the fact that tlie note was not paid, and that fact is no evidence that Briggs did not have securities in the bank at the time that he made the representations, or that he did not intend to pay the note at maturity.

The elementary writers, in discussing the subject in reference to the diversion of commercial paper, all agree that where such paper is given to enable a payee to get the money at a particular bank, and he procures it to be discounted at another bank, it does not constitute a diversion of the paper, from the purpose for which it was given.

Daniel, in his work on Negotiable Instruments (§ 792), lays down the rule in reference to what amounts to a diversion of accommoda-' tion paper. He says: “In order to constitute a misappropriation there must be a fraudulent diversion from the original object and design ; and it is now well settled that where a note is indorsed for the accommodation of the maker, to be discounted at a particular -bank, it is no fraudulent misappropriation of the note, if it is discounted at another bank or used in the payment of a debt or otherwise for the credit of the maker. If the note 1ms effected the substantial purpose for which it was designed by the parties, an accommodation maker or indorser cannot object that the accommodation was not effected in the precise manner contemplated.” (Schepp v. Carpenter, 51 N. Y. 602; Bigelow on Bills & Notes, 456.)

It was held in Brooks v. Hey (23 Ilun, 372) that “ when a note is made for the general accommodation of the payee and no restrictions are placed upon him as to its use,- he may use it in any way which seems beneficial to him, provided it is not negotiated usuriously, and his failure to apply the proceeds according to a prior agreement with the maker constitutes no defense to the latter in an action brought against him thereon.” The learned j udge says : “ The failure on the part of a payee of an accommodation note to appropriate the proceeds according to a ju’ior agreement, is no defense for the accommodation maker, otherwise there could be no recovery on an accommodation note.” (Merchants’ Nat. Bank v. Comstock, 55 N. Y. 24.)

We must, therefore, hold that the note in question -was not diverted from the purpose for which it was given. The plaintiffs having taken it in good faith before maturity in the usual course of business and having paid full value for it must be regarded as bona fids holders thereof.

It follows, therefore, that the judgment appealed from should be affirmed, with costs against the defendant Jaeckle.

Lewis, Bradley and Ward, JJ., concurred.

Judgment affirmed.


text:
    Christopher Smith, Appellant, v. City of Buffalo, Respondent.

      Municipal corporation — apportionment by city assessors of an assessment for a local improvement — effect on statutory construction of long acquiescence in their action —public streets are not assessable — an assessment, limited to the property benefited —presumption as to good faith of public officers — dedication and acceptance — filing maps showing it — confirmation of an assessment — power of the Legislature to cure irregulan'ities in an assessment.

    Upon the trial of an action brought to set aside an assessment made by a board of assessors upon lands located in the city of Buffalo, on the ground that under the city charter the authority to apportion the assessment was delegated to the common council and not to the board of assessors, it appeared that the city assessors apportioned the assessment under a resolution of the common council, and that it had been the practice for forty years to have the assessors make-such assessments.

      Held, that, even if the language of the charter were obscure or doubtful in this regard, the long acquiescence of the municipality in such action on the part of the assessors was controlling in the interpretation of the charter upon the question whether the power inhered in the assessors or in the common council;
    That if there were any question as to the power of the board of assessors to designate the territory benefited by the improvement, the confirmation of their report by the common council, with full knowledge of all the facts, amounted to a substantial compliance with a requirement of the charter that the act should be done by the common council.
    Streets are intended for public travel, and are properly devoted to public use, and where no provisions are contained in the charter of a city, or in the laws of the State, authorizing the city to tax its streets for a public improvement, they are exempt from taxation.
    The public streets of a city cannot be regarded as the property of the city, in the sense that a city hall, school houses and other public buildings owned by a municipality are such, and consequently are not liable to be assessed for public improvement.
    An assessment for a local improvement must be limited to the buildings and lots-benefited by it.

      Public officers arc presumed to have performed their duty, and where they fail to include in an assessment roll certain strips of land on the ground that they are public streets, the court must assume that these were public highways, “and, therefore, exempt from taxation. The burden is upon the person claiming that such strips of land belonged to individuals, and had not been dedicated to public use as highways, to overcome this presumption.
    The dedication of land by an owner to the use of public streets does not require that the legal title shall pass from the owner to the municipality. All that is requisite is that the owner assent to the public use, and that the municipality accept such dedication.
    Acceptance may he express and appear of record, or it may he implied from repairs made and ordered, or knowingly paid for by the municipality which has the legal authority to adopt the street or highway, or from long user by the public. The filing of maps certified by the proper city officials in the proper city offices, showing plots of land that had been subdivided and laid out into city lots, including streets, their names, widths and connections, furnishes clear evidence of the dedication to the public use of the streets shown upon such maps.
    There is no mandatory provision of the charter of the city of Buffalo requiring that the assessment roll shall he confirmed within one year after the confirmation of the report of commissioners awarding compensation to the owners of land taken for a local improvement.
    Any irregularity in the matter of assessments in the city of Buffalo which occurred prior to the 1st day of January, 1892, was cured by the passage of chapter 376 of the Larvs of 1892, and after the passage of that act no taxpayer could successfully resist the payment of a tax under objections based on an irregularity which existed at the time of the passage of the act.
    The Legislature has power to legalize proceedings to collect taxes where the law has not been strictly pursued, in cases where the taxes were not invalid for want of jurisdiction, and where no constitutional rights of the taxpayer have been violated.
    ■ Appeal by the plaintiff Christopher Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 11th day of October, 1891, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the plaintiffs complaint.

      Stephen loelcwood, for the appellant.

      Framlc G. laughlin, for the respondent.
   Davy, J.:

This action was brought to set .aside a local assessment on the plaintiff’s land located in the city of Buffalo, amounting to eighty-one dollars and thirty-eight cents, made to defray the costs and expenses of acquiring lands for the extension of Bailey avenue.

It was stipulated, for the purpose of condensing the evidence, that there were four questions only to be submitted on this appeal.

It appears from the evidence that in September, *1890, the common council of the city of Buffalo instituted proceedings for the extension of said avenue. The report of the commissioners, who were appointed to appraise the damages to the landowners, was confirmed on the 19th day of January, 1891. The common council thereupon passed the following resolution:

“ Eesolved, That the amount of the expense to be assessed for the improvement of extending Bailey avenue from the present terminus to the city line to Main street be and hereby is determined to be $16,258.07, and that the city assessors be and they arc hereby directed to make an assessment of the said sum * * * upon the real estate benefited by such improvement in proportion to the benefits resulting thereto.”

In pursuance of the above resolution the assessors decided what lands, in their judgment, were benefited by the improvement, and filed the assessment roll, which was confirmed by the common council June 1, 1892.

The learned counsel for the appellant contends that under the city charter the authority to apportion this assessment was delegated to the common council only and not to the board of assessors.

It was contended on the argument, and not disputed, that there has been no material change in t'iie provisions of the city charter on this subject in the last forty years, and that the common council lias never determined the territory benefited by the local improvements, but has left it to the board of assessors. Such acquiescence and recognition on the part of the municipality for so long a period must, it seems to me, be regarded as controlling in the interpretation of the charter upon the point under discussion. (Easton v. Pickersgill, 55 N. Y. 310; Matter of Washington Street Asylum & Park R. R. Co., 115 id. M2.)

If the language of the charter was obscure or doubtful as to its meaning, we think that we would not even then be justified in disregarding the construction put upon it by the municipal authorities for so many years. There would be no safety to the taxpayers if it could be successfully contended that the officers representing the municipality in this class of cases had been mistaken as to the true meaning of the-charter. The injurious consequences of a different construction after an acquiescence of so long a period might prove very disastrous to the taxpayers of the city. But, aside from the argument of long acquiescence on the part of the municipality, it appears that the courts through all this long period have been constantly passing upon the validity of the .assessments, and in no case called to our attention has it been held that the board of assessors did not have the power, under the city charter, to determine the territory benefited by local improvements similar to the one in question.

The Superior Court of the city of Buffalo in The Matter of Ferris (10 N. Y. St. Repr. 482) held that the Legislature had delegated the power to the board of assessors under the city charter to determine what property was benefited by local improvements. The views expressed by the learned court in that case seem to have met the approval of this court in the case of Broezel v. City of Buffalo (6 N. Y. Supp. 124).

I am inclined to think that the plaintiff is not in position to complain even if the correctness of our views upon this point could be doubted. The mode of designating the territory to be benefited and assessed was not prejudicial to the appellant; at least, he has failed to show that he has been injured or aggrieved by' the assessors designating the territory instead of the common council.

Io was held in Voght et al. v. The City of Buffalo (133 N. Y. 464) that where there was a technical irregularity of the common council in the mode of making assessments for street improvements, in the absence of evidence showing a substantial injury to the plaintiff, he was not in position to complain and, therefore, could not maintain the action. (Morse v. The City of Buffalo, 35 Hun, 613 ; Matter of Mutual Life Insurance Company, 89 N. Y. 530.)

Judge Gardiner, in Manice et al. v. The Mayor, etc., (8 N. Y. 131), in discussing the powers vested in the common council under the city charter, says : If the common council, as the plaintiffs insist, were bound to designate the territory to be assessed, as the charter was silent as to the time when and the manner in which this was to be done, a confirmation of the report of the assessors which included the whole subject would be a substantial compliance with the requirement.”

If there were any question as to the power of the board of assessors to designate the territory benefited by the improvement, the confirmation of the report by the common council, with full knowledge of all the facts, amounted to a substantial compliance with the requirements of the statute. '

The appellant also contends that the public streets opening into Bailey avenue were rendered more valuable to the city of Buffalo by the improvement, and that it was error on the part of the board of assessors to omit said streets from the assessment roll and from contributing to the expenses of the improvement.

Streets are intended for the public travel, and the opening of the avenue in question would naturally tend to increase the travel over all the connecting streets and thereby impose greater expense upon the municipality in cleaning and keeping them in repair. So that the improvement could not be considered a benefit to the city in a pecuniary point of view. As a rule, all property within the municipality is subject to taxation by the general laws of the State, and where property is taxable for one purpose, it is usually held to be taxable for all purposes of general taxation. But this rule does not aPPly municipal property devoted to public purposes. Such property is not taxable by the corporation whose property it is, unless expressly made so by statute.

No provisions are made in the city charter or the statute laws of the State authorizing the city of Buffalo to tax its public streets. It has been repeatedly held that property devoted to public use, such as public buildings and parks, cannot, in the absence of express legislative authority, be taxed’or taken to satisfy a judgment against the corporation.

Judge Andrews, in People ex rel. Mayor, etc., of New York v. Assessors (111 N. Y. 509), says: “Property of a municipality acquired and held for governmental and public uses and used for public purposes is not a taxable subject within the purview of the' tax laws, unless specially included.” (Oily of Rochester v. The Town of Rush, 80 N. Y. 302.)

.While property owned by a municipality for public purposes is-exempt from taxation, it is liable, however, to be assessed for local improvements.

Judge Earl, in Roosevelt Hospital v. Mayor etc. (84 N. Y. 114),, says : “ Tlie exemption claimed finds no sanction in the general legislation of the State or in public policy. All colleges, churches, seminaries of learning, court houses, jails, school houses, and even the lands of the State, unless by appropriate words specially exempted, are liable to be assessed for local improvements.”

The public streets of the city of Buffalo in no sense can be regarded as the property of the city, like school houses and the city hall and other public buildings in which the title to the land vests, in the city, and may be sold and conveyed by the city authorities. The municipal authorities would have no power to alienate their streets or to devote them to uses inconsistent Avith tlie rights of the general public and the abutting landoivners, unless expressly authorized by the legislature.

The opening of Bailey avenue may have added to the convenience of the OAvuers and occupants of houses and lots on the connecting streets and may have increased their Avalué; if it did, that fact was taken into consideration, no donbt, by the assessors who Avere charged with the duty of ascertaining the property benefited by the improvement. It seems to me that the assessment must be limited to the buildings and lots benefited by tlie improvement, and that no legal assessment could bo imposed upon the public streets. (People ex rel. Davidson v. Gilon et al., 126 N. Y. 148.)

It is also contended by the appellant that there Avere certain strips, of land OAvned by private individuals that were not assessed, for the reason that the assessors recognized them as public streets. This, contention, in my judgment, has no real foundation to rest upon. The presumption is that public officers perform their duty. If the lands in questiou are not included ip the assessment rolls the presumption is that they were public highways and exempt from assessment. The burden Avas on the plaintiff to overcome this presumption. (In re Hebrew Benevolent Orphan Asylum, 70 N. Y. 476.) The principal question to be considered upon this point is, whether the strips of land in dispute have been dedicated by the OAvners to the use of the public for the purposes of travel, and whether they have been accepted by the city for that purpose.

T'lie learned judge before wliom this case was tried found that the assessment roll showed that all the lands benefited by the improvement, as ascertained by the assessors, were included in the assessment except public streets, or what appeared to be such, upon the maps of the proper departments of the city government to which the assessors referred, to ascertain the streets of the city, and that it was not established upon the trial that any lands were excluded from the assessment that should not have been.

Dillon on Municipal Corporations (§ 628) lays down the rule:' That dedications of land to the use of public streets may be divided into two classes: First, statutory dedications; second, common-law dedications.1 Statutory dedications can be made only by pursuing substantially the course prescribed by the particular statute, and where the statutory requirements have been pursued it dispenses with any assent on the part of the public, and in this respect it differs from a common-law dedication. But the rule is well settled that an incomplete or defective statutory dedication will, when accepted by the public, or when rights are acquired under it by third persons, operate in favor of the public and has as much binding force as a common-law dedication by the owner. To establish a common-law dedication it is not essential that the legal title should pass from the owner to the municipality. All that is required is the assent of the owner of the soil that it may be used by the public as a public street, and the acceptance of such dedication by the municipality for the public. (Flack et al. v. Village of Green Island, 122 N. Y. 107.)

It was also held in Cook v. Harris (61 N. Y. 448-454) that no particular length of time is essential to make a dedication valid and irrevocable. It must appear that the owner of the soil intended to dedicate it for a public highway, and that it was accepted by the public. Upon the question of acceptance and the sufficiency of the evidence to establish it, Judge Dillon, in his excellent work on Municipal Corporations (4th ed., § 636), says that “ Where a plat is made and recorded the requisite intention is generally indisputable, but the intention may also be established by parol evidence of acts or declarations which show an assent on the part of the owner of the land that the land should be used for public purposes.” A sale of lots with reference to such plat, or describing lots as bounded by streets, will amount to an immediate and irrevocable dedication of the latter binding upon both vendor and vendee. (Id. § 640; People v. Loehfelm, 102 N. Y. 1; Pomfrey v. Village of Saratoga Springs, 104 id. 459.)

'Acceptance may be express and appear of record, or it may be implied from repairs made and ordered, or knowingly paid for by the municipality which lias tbe legal authority to adopt tbe street or highway, or from long user by tbe public.

It seems to me that tbe evidence clearly establishes 'that tbe so-called streets in question have been dedicated by tbe owners of tbe soil to tbe city for highway purposes. Maps were made and certified to by tbe chief engineer of tbe department of public works and filed in tbe assessors’ office and registered in tbe city clerk’s office, showing tbe plots of land that bad been subdivided and laid out into city lots, including tbe streets in question and their names, ■width and connections with other streets. It also appears that tbe city recognized them as streets by putting in water pipes and hydrants and constructing sidewalks and grading some of tbe alleged streets. It is plain from these facts that tbe strips of land in question were duly laid out and dedicated by tbe owners of tbe soil to tbe municipality for public streets and that they were accepted by tbe public. It would be a violation of good faith to tbe public and those who have purchased lots and acquired vested interests with a view to tli.e benefit and use of these alleged streets to permit tbe original owners of tbe fee to contend that they bad not been dedicated to tbe public use. "We must, therefore, bold that they were exempt from taxation or assessment of any kind, and that tbe assessors, acting under tbe authority delegated to them by tbe city charter, bad no legal right to assess them for tbe improvement of Bailey avenue.

Tbe fourth point raised by the appellant is that tbe assessment roll was not confirmed within a year after tbe confirmation of tbe report of tbe commissioners awarding compensation to tbe owners of land taken for tbe improvement. I am unable to discover any provision of tbe city charter requiring that tbe assessment roll shall be confirmed within that period. Tbe provisions of section 435 of tbe city charter (Chap. 105 of tbe Laws of 1891), which authorizes tbe city to borrow money to pay tbe awards if tbe roll is not made and confirmed witliin a year, show conclusively that the duties imposed upon the common council in this respect are not mandatory, but simply directory. So that the omission to confirm the •assessment roll within a year did not invalidate the subsequent proceedings.

We have now noticed all the objections raised by the learned ■counsel for the appellant, and we do not think any of them furnish a sufficient reason for a reversal of the judgment.

If there were any substantial irregularities in the proceedings of the common council pertaining to the extension of Bailey avenue, the Legislature has legalized them.

Chapter 316, Laws of 1892, provides that “All proceedings, matters and things which were begun, or regarding which any action or preliminary steps had been taken by the city of Buffalo, or its departments, officers, agents or servants, prior to the 'first Monday in January, 1891, are hereby ratified and confirmed.”

The resolution of the common council authorizing the assessment •which the appellant claims is illegal was adopted on the 19th of •January, 1891, and comes within the provisions of the aforesaid act, which legalized the irregularities, if any, in the acts of the officers, agents and servants of the municipality pertaining to all proceedings of the common council in the Bailey avenue extension. (Cromwell v. MacLean, 123 N. Y. 490 ; Tifft v. The City of Buffalo, 82 id. 204; Matter of Livingston, 121 id. 98.)

After the passage of the act no taxpayer could successfully resist the payment of his tax on the ground of irregularities existing at the time of its passage.

It was held in Terrel v. Wheeler (123 N. Y. 76) that the Legislature has power to legalize proceedings to collect taxes where the law has not been strictly pursued in cases where the taxes were not invalid because of a want of jurisdiction to impose them, or where no constitutional right of the taxpayer had been violated.

The judgment of the lower court, therefore, must be affirmed •with costs.

Lewis and Bradley, JJ., concurred ; Ward, J., not sitting.

• Judgment affirmed, with costs.


text:
      In the Matter of the Claim of Frederick Zinke, Respondent, against The Estate and Executor of Elizabeth Zinke, Deceased. Alphonse J. Roehner, Executor, etc., of Elizabeth Zinke, Deceased, Appellant.

      A husband’s claim against his wife’s estate — his agency, how proved — his right to reimbursement — statutory referee's power to consider an equitable claim.

    Upon the trial of a reference, under the statute, of a disputed claim against the estate of one Elizabeth Zinke in favor of her husband, it appeared that Elizabeth Zinke commenced the erection of á building, which the parties, who had contracted to construct it, did not quite complete, and that she had no money to pay for additional services and material; that her husband, who acted as her agent, paid for these and also paid the interest on certain mortgages upon her property, taxes upon her real estate, insurance upon her building, and also a promissory note which she had given. The referee decided in favor of the husband’s claim, and an appeal was taken from such decision on the ground that the husband’s agency was not established by the evidence in the ease, unless s.uch'authority were inferred from his own testimony.

      Held,- that agency might be established by tlie acts, declarations and conduct of the principal and agent and might also he inferred from the circumstances;
    That the fact that when bills, incurred in the erection of the building, were presented to tlie wife for payment she refused to pay them on the ground that she did not have the money, and referred the creditors to her husband, who after-wards paid the hills, tended to show that he was acting as her agent and was authorized to pay her hills;
    That the husband was not prohibited by the Code of Civil Procedure (§ 829) from testifying to these extraneous facts, nor was he thereby prohibited from proving his payment of interest upon mortgages, taxes and other expenses relative to the building-, these acts being independent transactions in which the wife did not personally participate;
    That tlie common-law' disability of a married wmman having been removed, so far as her separate property is concerned, thus permitting her to enjoy an estate separate from her husband, to carry on a separate business, and to do these acts through any agent, even though he be her husband, a husband who advances money for the benefit of his wife’s separate estate, has an equitable claim for reimbursement therefrom.
    A referee, appointed under the statute to hear and determino a disputed claim, against "the estate of a decedent, has power to hear the claim even though it be of an equitable nature.
    •Appeal by Alplionse J. Roebner, executor, etc., of Elizabeth Zinke, deceased, from the decision of a referee and the judgment thereon, in favor of tlie claimant, entered in tlie office of tlie clerk of the county of Erie on tlie Itli day of May, 1894.

      William A. Douglas, for the appellant.

      Oharles Dcmiels, for the respondent.
   Davy, J.:

This was a reference, under the statute, ox a disputed claim against the estate of Elizabeth Zinke, deceased, who was the wife of .the respondent. His claim is for money expended during the years 1888, 1889 and 1890, upon the separate estate of his deceased wife, amounting in the aggregate .to $2,066.72, on which sum a credit was allowed of $800 for rent for the use of' his wife’s premises, leaving a balance of $1,266.72, over and above the admitted offset for rent.

The claim was disputed by the executor, and, by an agreement in writing, under the statute, the matter was referred to a referee to hear and determine the same, who, after taking all the testimony that was offered by the respective parties, reported in favor of the respondent for $1,026.21, including interest. Judgment was entered for that sum on the report of the referee in the clerk’s office in Erie county, and from that judgment the executor has appealed to this court.

It appears from the evidence that in 1888 the testatrix commenced the erection of a brick building on East Genesee street in the city of Buffalo, under a contract with Jacob Jaeckle & Co., for $1,155. The contractors did not quite complete the building, and the testatrix had no money to pay for additional services and materials. The respondent, who • acted as her agent, paid for the same, including the interest on certain mortgages upon the property of the testatrix and the taxes upon her real estate and the insurance upon her building and also a promissory note given by her.

There can be no question but that the testatrix had the power to employ her husband to act as her agent in matters pertaining to her separate business, and that he had the right to be reimbursed for all moneys expended by him for the benefit of her estate.

It is claimed, however, that the respondent’s authority to act for his wife is not established by the evidence, unless it can be inferred from his testimony.

The language of section 829 of the Code of Civil Procedure prohibits the respondent from testifying to any personal transactions or communications between liimself and his deceased wife. But this section does not prohibit him from testifying to extraneous facts.

If the authority to act as her agent rested solely upon the inference drawn from the character and nature of his testimony then the evidence would fall short of establishing such agency, because it must be shown by testimony other than his own. As bearing upon this point it is proper to take into consideration her statements to parties who presented their bills for payment. She frequently refused to pay them on the ground that she did not have the money, ánd referred them to her husband, who afterwards paid them. These voluntary statements upon her part tended to show that he was acting as her agent and authorized to pay her bills. The question of agency may be established by acts, declarations and conduct of the principal and agent, and it may also be inferred from circumstances. The manner in which a party treats one who apparently acts as his agent and holds him up before third parties will, in many cases, be sufficient to establish an agency.

As was remarked by Judge Earl in Ackley v. Westervelt (86 N. Y. 448) .there can be no reason why a contract implied by law inferred from the circumstances should not be just as effectual to bind a married woman as one expressly created : “ It is no longer open to dispute in this State that a married woman, although she carries on no business on her own account, an(l has no separate estate, is liable like a femme sole for debts contracted in the purchase or leasing of real estate or other property.”

Under the present laws of this State a married woman is completely emancipated from the disability existing Under the common law so. far as concerns her separate property, and the tendency of the judicial decisions is to make her more independent in her property relation and to hold her more strictly to her contracts. The law not only gives her the right to hold and enjoy a separate estate from her husband, but to carry on a separate business, and she can manage her estate and carry on her separate business personally or through such agency as she may elect, and for that purpose she may appoint her husband. There can be no good reason why the husband of a married woman, who is authorized by her to look after her separate estate, and who advances money for making improvements upon her property, and in paying her debts, should not be reimbursed ■out of lier estate the same as her other creditors. Such a contract ■at common law was held good if made by a trustee for the wife’s ■benefit, and it ought to be sustained in equity when made between husband and wife under our statute. The provisions of the statute providing for references of claims against 'the estates of deceased persons are so broad as to include claims legal and equitable. (3 R. S. [6th ed.] p. 96, §§ 46, 47; Skidmore v. Post, 32 Hun, 54.)

The respondent’s case is within the general rule of equity. A portion of the improvements that were made upon the testatrix’s separate estate were paid by him at the request and approval of his deceased wife. The advances were clearly for the benefit of her real estate. They increased its value and were permanently beneficial to it.

Judge Danforth, in discussing this point in Noel v. Kinney (106 N. Y. 78), says : “ The respondent proved that his wife was the principal and that he was her agent. The bills which the respondent paid were for improvements to her real estate. It would be unjust to permit the estate to escape paying for these improvements simply because the debts were paid by the testator’s husband.”

The referee had power to consider the respondent’s claims oven though they were of an equitable nature. The right of the husband to maintain an action in equity to recover for money paid out for his wife was sanctioned by the English courts in Butler v. Butler (L. R. [14 Q. B. Div.] 831.) It was held that loans made and money paid by the husband for his wife constituted a right of action in his favor in equity against her, and her separate estate was held liable to him. This decision was affirmed on appeal. (L. R. [16 Q. B. Div.] 374.) The court held that whatever the wife undertook to do in regard to her separate estate she was a femme sole and that her husband had a remedy against her in the Court of Chancery.

The case of Smith v. Smith (125 N. Y. 225) was an action brought by the husband against his wife to compel her to convey to him certain real estate of which she held the title, or to have a lien in his favor declared thereon for expenses incurred, in erecting a building upon the premises with her 'knowledge and consent. The •court held that he was entitled to a lien for the amount expended.

The learned counsel for the appellant contends that the objections to the evidence given by the respondent, that he paid for the plans for the Genesee street building and for papering the rooms and the interest on the savings bank mortgages and the taxes, and that 'the money from which he made these payments was earned in his business, should have been sustained, on the ground of its incompetency, under section 829 of the Code of Oivil Procedure. I do not agree with the learned counsel in his contention upon this point, as the evidence did not refer to any personal transactions with the deceased.

The payments of the bills with his own money were independent transactions in which the deceased did not personally participate. (Mortimer v. Chambers, 43 N. Y. St. Repr. 365 ; Denise v. Denise, 110 N. Y. 562.)

In the case*of Lerche v. Brasher (104 N. Y. 157-164) Judge Finch, in discussing the evidence that was objected to in that case, says: “We are still of opinion that the two facts related were independent facts, in which the deceased was not personally a participator, and. which, if living, he could not for that reason have contradicted. They might have been done without his authority or knowledge, as were some other acts of the plaintiff, and did not necessarily involve a personal transaction with him.”

The - executor also contends that the saloon business was liers. The evidence, however, does not warrant us in reaching that conclusion. The respondent proved by the brewers and dealers who supplied the saloon with liquors that the bills were charged to him and paid by him, and that the saloon licenses were issued to him. The executor upon the trial gave no proof that the testatrix furnished the money to pay any of these claims or demands, and it will not do to assume that the respondent might have paid them with her money. Such an assumption is clearly overcome by the fact that she was obliged to give a note for the balance due on the building contract, and from her statements that she did not have the money to pay the bills when they were presented to her and directing the parties to see her husband.

The fact that lie paid the bills with his own money wTas substantially proved by her own acts and admissions. The testimony is sufficient, in our judgment, to sustain the findings of the referee.

The judgment, therefore, should be affirmed, with costs against the appellant to be paid out of the estate.

- Lewis, Bradley and Ward, JJ., concurred.

Judgment affirmed, with costs payable out of the estate.


text:
    Henry Miller, Appellant, v. William C. Young, Defendant. Mary L. Young, Individually and as Executrix, etc., of William C. Young, Deceased, Respondent.

      Actions for damages to property rights or interests — do not abate upon the death of the wrongdoer.

    Actions of tort at common law died with the- person by whom or to whom the wrong was done, but under the Revised Statutes (2 R. S. 447, § 1) actions for wrong done to the property rights or interests of another, for which an action might be maintained against such wrongdoer, may be brought by the person injured, or after his death by his executors or administrators against such wrongdoer, in the same manner and with the like effect in all respects as actions founded upon contract.
    An action was brought against one Young to restrain him from diverting andobstrueting the water flowing from a spring belonging to the plaintiff and depriving him of the use of the same, and to compel the restoration of the spring to its former condition, and fordamages. The case was partially’tried when Young died, and the plaintiff moved for an order allowing the action to be revived and continued against his executrix and also against her individually, she being the sole devisee named in his will.
    Upon an appeal from an order denying such motion,

      Held, that the plaintiff was entitled to have the action revived and continued against the executrix for the wrong done his property rights and interest by the deceased, and that the order denying his motion to so revive and continue the action should be reversed.
    Appeal by tlie plaintiff, Henry Miller, from an order of the Supreme Court, made at the Allegany Special Term and entered in the office of the clerk of the county of Allegany on the 30th day of April, 1895, denying the plaintiff’s motion to continue the action against Mary L. Young, individually and as executrix of the last will and testament of William O. Young, deceased.

      J. II. Stevens, for the appellant.

      Wesley Brown, for the respondent.
   Davy, J.:

This action was brought against William O. Young to restrain him from diverting and obstructing the water flowing from a certain spring belonging to the plaintiff and depriving him of the use of it.

Tlie cause was partly tried at a Special Term of this court held in the county of Allegany in August, 1893.

The defendant died before the case was finally submitted. Thereafter a motion was made at Special Term in May, 1894, for an order allowing the action to be revived and continued against Mary L. Young as sole executrix of the last will and testament of William O. Young, deceased, and against her individually, she being 'the sole residuary devisee named in the testator’s will. The motion was denied and the plaintiff appeals from that order.

The plaintiff in liis complaint asks judgment that tlie defendant be restrained from diverting the water from the spring, and that it be restored, to its former condition, and that he be allowed $1,000 damages.

The respondent contends that the action was clearly personal to William C. Young, and that it abated upon his death and could not be revived against his personal representatives.

Johnson v. Elwood (82 N. Y. 362), relied upon by the learned counsel for the respondent, has no application to this case. In that proceeding the injunction was dissolved by stipulation upon the termination of another suit involving the title to the premises. Judgment of discontinuance was entered and an order of reference was granted to compute the amount of damages upon the undertaking. It was held that the undertaking provided for the payment of damages in the event only that the court should finally decide that the plaintiff was not entitled to the injunction. The court held that there had been no breach of tlie condition of the undertaking in this respect and that there had been no final determination which warranted the court in ordering a reference to compute the amount of damages; that the discontinuance of the action by stipulation was not equivalent to final decision of the court.

The rule at common law was that actions of tort died with the person by whom or to whom the wrong was done. The Revised Statutes, however, have created a great change in reference to actions for tortious injuries to property which did not survive under the common law.

The rule which must guide us in this case in determining whether the motion for substitution should be granted or not is found in sections 1 and 2 of 3 Revised Statutes (6th ed.), 732, m. p. 447, 448.

Section 1 provides that actions for wrong done to the property rights or interests of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or after his death by his executors or administrators against such wrongdoer, in the same manner and with the like effect in all respects as actions founded upon contract.

Section 2 provides that the preceding section shall not extend to actions for slander, for libel, or to actions for assault and battery, or false imprisonment, nor to actions on the case for injuries to the person of the plaintiff, or to the person of the testator, or intestate of any executor or administrator.

In the case of Cregin v. Brooklyn Crosstown R. R. Co. (83 N. Y. 596) Judge Finch says: The question whether the cause of action survived came before us on appeal. (75 N. Y. 192.) Its answer involved a construction of the statute relating to suits by and against executors and administrators. (3 R. S. [6th ed.] 732, §§ 1 and 2.) We held that it reserved the right of action for tortious injuries affecting pecuniary rights or interests, and by which the estate of the deceased was diminished, excepting, of course, the wrongs referred to in section 2 and particularly named.”

In Drake v. Grant (4 N. Y. Supp. 898) it was held that, under the Revised Statutes, an action for a wrong done the property rights and interests of another for which an action might be maintained against the wrongdoer can be maintained after his death against his executors' or administrators in the same manner and with like effect in all respects as suits founded upon contract.

This is clearly an action for injury to property. The diversion of the water from the natural spring and channel and depriving the plaintiff of the use of it was an injury to his land which would depreciate its value.

It is true that more or less controversy has arisen in the courts relative to the word property right or interest as used in the first section of said statute. But there can be no question but what property may consist of land. In the broad sense, property may be considered any thing or things subject to ownership and any thing that may be possessed and enjoyed. Any obstruction, therefore, to the natural flow of the water from the plaintiff’s spring is an injury to his property, for which he has a right of action.

Judge Rapallo, in Cregin v. B. C. R. R. Co. (75 N. Y. 194), in discussing this subject, said that “ the rights and interests for tortious injuries, to which this statute preserves the right of action, have frequently been considered and it is generally conceded that they must he pecuniary rights or interests, by injuries to which the estate of the deceased is diminished.”

Construing the statute according to its plain meaning as interpreted by the courts, there can be no question but what the plaintiff is entitled to have this action revived and continued against the executrix for the wrong done to his property rights and interests by William C. Young, deceased.

The order of the Special Term, therefore, must he reversed and the motion for substitution granted, with costs against the respondent.

Lewis and Bradley, JJ., concurred; Ward, J., not sitting.

Order reversed- and motion granted, with ten dollars costs and disbursements.


author: Adams, J.:

text:
    Michael Belappi, Respondent, v. Belle Hovey, Appellant.

      Payment of fees to officers named in § 3338 of Gocle of Gioil Procedure — a justice of the peace cannot compel the payment of the jurors’ fees before issuing a venire.

    Section 3338 of the Code of Civil Procedure was designed by the Legislature as a protection to the different officers therein named, but in order to avail himself of such protection any such officer is called upon to demand in his own behalf the payment of such fee or foes as he may be entitled to receive for any service he is called upon to render.
    A justice of the peace cannot bo required to issue a venire without first being paid or tendered his legal fees therefor, but such justice is not entitled to impose as a condition of the performance of any official duty the payment of the fees of any other officer than himself.
    In an action commenced in the court of a justice of the peace, issue was joined, at which time the defendant demanded a trial by jury, but tlie justice refused to issue a venire unless tlie defendant first paid or secured the fees of the jurors. The defendant having declined to do so, the justice proceeded to hear the plaintiff’s evidence and rendered judgment for the plaintiff, the defendant taking no part in the trial.

      Held, that th'e justice, in imposing the conditions he did, exceeded his authority, and that the judgment rendered by him should be set aside.

      Appeal by the- defendant, Belle Hovey, from a judgment of tlie County Court of tlie county of Erie, entered in tbe office of tbe clerk of the county of Erie on the 11th day of April, 1895, upon th® decision of the court affirming the judgment of a justice of the peace of the town of North Collins, Erie county.
    The action was brought to recover the value of labor and services, claimed to have been rendered by the plaintiff to the defendant. Issue was joined before the justice of the'peace upon the 4th day of August, 1894, at which time the defendant demanded a trial by •jury. The justice before whom the action was pending refused to issue a venire unless the defendant first paid or secured the fees of the jurors. The defendant declined to do either, and the justice proceeded to hear the plaintiff’s evidence, the defendant taking no part in the trial. The justice thereupon rendered a judgment in favor of the plaintiff and against the defendant for the sum of thirty-three dollars and twenty-seven cents damages and two dollars and twenty-five cents costs.

      J. M. Gongdon, for the appellant.

      Frank J. Robinson, for the respondent.
   Adams, J.:

It is contended by the respondent that the justice before whom the action was tried was justified in insisting, as a condition of the issuing by him of the venire demanded by the defendant, that the fees of the jurors should be either paid or secured, and he rests such contention upon tlie language of section 3328 of the Code of Civil Procedure, which reads as follows: “ A justice of the peace, or a constable, juror or witness before a justice of the peace is not obliged to render any service specified in this title without the previous payment or tender of his fee therefor.”

It is obvious, I think, that this section was designed by the Legislature as a protection to the different officers therein mentioned; but it is equally obvious that, to avail himself of such protection, the officer named is called upon to demand, in his own behalf, the payment of such fee or fees as he may be entitled to receive for any service he is required to render.

. To illustrate, a justice of the peace could not bo compelled to issue a venire without first being paid or tendered his legal fee therefor; nor could a constable be required to execute such process unless a demand for the payment of his fee should be properly met. And this is true of individual jurors, but it does not appear by the express language of the section under consideration, nor will it bear the construction, that a justice, or any other of the officers therein mentioned, is entitled to impose, as a condition of the performance of any official duty, the payment of the fees of any other officer than himself. Were, a different rule to obtain, then a justice, before issuing a summons, might insist that the constable’s fee for the service thereof should be first paid, or, before issuing an execution, he might require the judgment creditor to pay or secure the fees of the officer to whom that process was issued, although in either case no such condition was insisted upon by the officer for whom the protection of this section was designed.

It is undoubtedly true that defendants frequently avail themselves, in an action brought before a justice of the peace, of the provisions of the statute giving them the right .to a trial by jury, merely for the purpose of delay and annoyance; but, nevertheless, the right is one which is statutory in its character, and, therefore, it cannot bo abridged by the courts in any other manner that is provided by the statute, however desirable it may be to curtail the practice above adverted to. And inasmuch as it has been shown that the justice, in imposing the conditions he did, exceeded any authority which the statute gives him, his action was clearly erroneous, and requires that the judgment rendered by him should be set aside.

The view which we take of the law in this case renders it unnecessary to consider whether or not the evidence taken before the justice was sufficient to sustain the judgment.

The judgment of the County Court as well as that of the justice of the peace, consequently, should be reversed.

Lewis, Bradley and Ward, JJ., concurred.

Judgment of the County Court and that of the Justice’s Court reversed.


author: Ward, J.: Bradlkv, J.

text:
    In the Matter of the Probate of the Alleged Will of James R. Whitney, Deceased. Annie C. Whitney and Others, Appellants; Mary A. Wilson and Others, Respondents.

      Will — an interlineation may be made therein — its place must be sufficiently designated— need not be noted at the foot of the instrument.

    An interlineation may be made in a will as in any ot-lier instrument, provided that the place where it should appear is designated by the instrument itself with sufficient certainty, nor is it necessary that the interlineation should be noted at the foot of the will or instrument; it is only necessary that it should have been made before the execution and publication of the will.
    An instrument in writing purporting to be the last will and testament of a testator was rejected by the Surrogate's Court because the third and fourth clauses thereof were not written in the body of the will, but upon a separate piece of paper fastened to the face of the will.
    The said clauses were intended by the testator to be a part of his will, and were . attached to the face of the will at a point near the end of the second clause, with metal staples on one side of the paper, so that, by raising the unfastened end of the paper attached, the place where it should come in on the principal paper was apparent. The will was written on a blank form, in which the blank left for the disposition of property had been written full when the end of the second clause was reached, and at such end of the second clause were the words “ see annexed sheet.” Then came the annexed sheet containing clauses 3 and 4, followed by a clause appointing executors, the testimonium clause, the signature of the testator, the attestation clause and the signature of the witnesses.
    It was apparent that if the third and fourth clauses were eliminated the purposes of the will would not be accomplished, no provision being- otherwise made for the wife of the testator or the disposition of the bulk of the testator’s property.
    The surrogate found in effect that said clauses were attached to the face of the will at the place above mentioned before its execution by the testator or witnesses, and that they were intended by the testator to be a part of his will, and that the will was executed in all respects as required by the statute.

      Held, that as the attached paper by the terms of the instrument itself was to come in and be made a part of the will before “the end of the will,” the will was properly executed, and that the decree of the Surrogate’s Court denying probate to said instrument should be reversed.
    Bradley, J., dissenting.
    Appeal by the proponent, Annie C. Whitney, and others, from a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 24th day of January, 1895, refusing to admit to probate an instrument alleged to be the last will and testament of James R. Whitney, deceased.

      George E. Warner and Ilenry J. Sullivan, for the appellants.

      Charles S. Baker, for the respondents.
   Ward, J.:

. The will was rejected by the surrogate because the third and fourth clauses thereof were not written in the body of the will, but upon a separate piece of paper fastened to the face of the will. These clauses were intended by the testator as a part of his last will and testament, and were attached to the face of the will at a point near the end of the second clause with metal staples on one side of the paper, so that by raising up the unfastened end of the paper-attached, the place where it should come in on the principal paper was apparent. The will was written on a blank form. The blank left for the disposition of property had been written full when the end of the second clause was reached, and at sucli end are the words “see annexed- sheet.” Then comes the annexed sheet, and the-whole reads as follows (after the preliminary statement and a provision for the payment of debts):

First. I give and devise and bequeath to my brother Ira I. Whitney the undivided one-half of the farm lying in the town of Parma, Monroe county, and State of New York, with the provision that within one year after my decease he pay to his son James R. Whitney five hundred dollars, which shall be a lien on said premises until so paid, and I give, devise and.bequeath to my brother Henry Whitney the use of the other undivided one-half of said farm for and during his lifetime, with the provision that he pay to his son Douglas S. Whitney five hundred dollars within one year after my death, which shall also be a lien thereon until paid; said farm is described in a certain deed of conveyance recorded in Monroe county clerk’s office, New York, in liber 481 of deeds at page 459, together with immediate possession and all arrearages of rent therefor. After the death of my said brother Ilenry I give the said premises to his lawful heirs.
Second. I give to Eliza Wilson, wife of John B. Wilson, the sum of five hundred dollars, to be paid within one year after my •death.
“ See annexed sheet.
Third. I give, devise and bequeath to my wife, Anna C. Whitney, five hundred dollars in trust, to be paid by her to Florence L. Root, a daughter of Charles A. Root, a nephew of my wife, at .such times as my wife thinks proper, but not until she shall be 21 years old, but before she is 25 years old.
Fourth. I give, devise and bequeath to my wife, Anna O. Whitney, all the balance of my estate, both real and personal, of every kind.”

Then followed a clause appointing executors, the testimonium clause, the signature of the testator, the attestation clause and the •signature of two witnesses with the third and fourth clauses inserted in their proper place. The will is rational, consistent and complete, disposing of all the property of the deceased’ and providing for the natural objects of his bounty. Eliminate these clauses and the purposes of the will are not accomplished. No provision is made for the wife of the testator, and the bulk of the testator’s property is not disposed of, and as to that he would have died intestate. The words at the end of the second clause, “ see annexed sheet,” •and the commencement of the annexed sheet, being “third,” taken in connection with the fact that the annexed sheet was in fact fastened to the principal pajjer, enable us to locate without doubt the exact place where the decedent intended the third and fourth clauses to be inserted. Another consideration aids this location, and that is that he residuary clause, which usually follows the specific bequests and devises, is at the bottom of the attached sheet. '-It is, therefore, apparent that the third and fourth clauses were inserted in the will before “ the end of the will,” so that here is an exact compliance with the statute unless it be assumed that interlineations or additions to the face of the instrument cannot be made at all. This will hardly be claimed, as an interlineatipn may be made in a will as in any other instrument, provided that the place where it should appear is designated by the instrument itself with sufficient certainty.

Williams on Executors (at m. p. 91) says : • “ If the testator in a will or codicil or other testamentary paper duly executed refers to an ■existing, unattested will or other paper, the instrument so referred to becomes part of the will.” And Jarman on Wills, '"'193, says: “A codicil duly attested communicates the efficacy of its attestation to an unattested will or previous codicil so as to render effectual any devise or bequest which may be contained in such prior unattested instrument.” And in Brown v. Clark (77 N. Y. at 377) Judge Andrews, speaking for the Court of Appeals, says : “ It is established by a long line of authorities that any written testamentaiy document in existence at the execution of a will may by reference be incorporated into and become a part of the will, provided the reference in the will is distinct and clearly identifies or renders capable of identification by the aid of extrinsic proof the document to which reference is made.” (Citing a number of cases and also the extracts from Williams and Jarman above given.) Nolis it necessary that the interlineations should be noted at the foot of the will Or instrument. (Matter of Voorhees, 6 Dem. 162.) It is only necessary that the interlineations should have been made before the execution and publication of the will. (Crossman v. Crossman, 95 N. Y. 145, 153 ; Tonnele v. Hall, 4 id. 140, and cases there cited.).

In the last case a map in the register’s office descriptive of the property devised was referred to in the body of the will and a copy was annexed to the will. The court says at page 143, “ the map on file in the register’s office, or a reduced copy of it annexed, may be treated as a part of the instrument (citing cases); its contents must be incorporated and distributed in it to the extent of the several references made to it at the places where made, and thus the contents of the paper to which the instrument refers will be deemed constructively i/nserted before the point is reached where the subscription by the decedent and signing by witnesses are made.” It was established before the surrogate, and he found, in effect, that clauses third and fourth were attached to the face of the will at the point above indicated before its execution by the testator or witnesses, and that they were intended to be a part of his will by the testator and that the will was executed in all 2-espects as requii-ed by the statute. There was no fraud in the transaction apparent or pretended. The contestants rely upon The Matter of Hewitt (91 N. Y. 261); The Matter of O’Neil (Id. 516) and The Matter of Conway (124 id. 455).

In the Hewitt case the testator and subscribing witnesses signed at the bottom of the first page of the will; on the back of the will were important clauses not attested except that at the top of these clauses on the second page the subscribing witnesses signed their names again, and the testator signed at the bottom of the second side.

In the O^Neil case the will consisted of four pages; the formal commencement was on the first page and the formal termination printed at the foot of the third page, where the names of the testator and witnesses were written. On the fourth page were material provisions of the will and not connected by reference or symbol, or asterisks, to the other portion of the instrument.

In the Conway case a printed blank form was used, and the spaces on the first side of the paper were all written full with complete devises, and at the end of which was interlined in parenthesis the words carried to back of will,” upon the top of the back of the sheet, ox' before the material entries were written, the word continued;” following it were various bequests, and then the words signature on face of the will.” In each of these eases the will was rejected by the court because the testator and witnesses did not execute the will at the end thereof. The last case (Matter of Conway) was decided by the Second Division of the Court of Appeals, where four judges reversed the General Term of the fifth departpartment, three judges, Bradley, Haight and Brown, dissenting. This case should certainly not be extended further than the facts therein absolutely require. These cases hold that the intent of the Legislature, that the execution of the will should be at the end, cannot be subverted, no matter what was the intention of the testator, and although, from the circumstances proved, there was no oppoi'tunity for fraud and none existed, and their decision was put uj>on the ground that, as a physical fact, a part of the will was uot embraced in that portion of it that precedes the signature at the end of the will. Those cases are plainly distinguishable from the one at bar-In this case the interlineation or attached paper by the terms of the instrument itself is to come in and be made a part of the will before the formal ending thereof. In the other cases, and especially in the last, the testator in words violates the statute and places important provisions of the will beyond the end thereof and after the sig: natures of the witnesses and testator, and upon the back of the instrument. As a physical fact, therefore, whatever may have been the intention of the testator, all the provisions of the will were not incorporated within the paper before the encl thereof.

The decree of the Surrogate’s Court should l^e reversed and the proceedings be remitted to the surrogate of Monroe county, with directions to proceed with the probate of the will, and that the appellants recover the costs and disbursements of this appeal, to be paid out of the property of the deceased.

Lnwrs and Adams, JJ., concurred.

Bradlkv, J.

(dissenting):

The alleged testator was of sound mind and memory at the time he made the instrument purporting to be his will, and in its execution the statutory formalities were observed in so far that he signed it and declared the instrument to be his last will and testament in the presence of witnesses, who, at his request, subscribed ■ their names as such. The only question about its validity as a will arose from the fact that a portion of the provisions of the will was on a slip of paper attached to that upon which was the testimonium clause subscribed by the testator. The draughtsman used a printed blank and filled the blank space with provisions numbered first and second, then added “ see annexed sheet,” and a paper upon which was written by him clauses numbered third and fourth was there attached to the instrument by means of two metal staples. The only refei'ence to it was that before mentioned, and on the slip was nothing denoting its relation or reference to that to which it was so attached other than in 'the disposing clauses numbered third and fourth. It appears by the evidence of the draughtsman that the slip so annexed, as well as tire other portions of the instrument, was read by the testator and constituted a portion of the instrument declared by him to be his last will and testament. And upon the evidence the conclusion is fairly required that the latter treated and intended it as a part of his will. The statute provides that every last will and testament “ shall be subscribed by the testator at the encl of the will.” (2 R.. S. 63, § 40.) The observance of this requirement is essential to the validity of a will. (Sisters of Charity v. Kelly, 67 N. Y. 409; Matter, etc., of Hewitt, 91 id. 261; Matter, etc., of O’Neil, Id. 516 ; Matter of Conway, 124 id. 455.)

It was intended by the person who drew the will and by the testator that the provisions upon the slip so attached should be treated as inserted in the place indicated by the reference to the annexed sheet,” and in that sfense the will was subscribed by the testator at the end of it. But, as was held in the eases above cited, the end of the will contemplated by the statute is that which actually and physically follows all the provisions of the instrument, and in that respect the intent of the Legislature and not that of the testator controls.

In the O’Neil case it was evident that the added provision which followed the signature of the testator to the instrument was intended as the continuation of a provision in the body of it above the signature, but for want of room in the printed blank it was continued upon the following ¡Dage to completion. And in the Oonway case the provisions of the will were in like manner and for the same reason carried on to the page following that on which was the testimonium clause subscribed by the testator, and at the place of departure were the words “ carried to back of will,” and upon the back was the word “ continued,” followed by the provisions there written. In both cases it was held that the instruments were not subscribed at the end, as required by the statute.

In those cases as in this one, it may be said that the makers of the instruments regarded those provisions as inserted in the places so indicated, and thus treated their signatures as at the end of the wills. The place at which the slip was attached to the instrument in the present case does not seem, in the legal aspect, to- be different in effect than if it had been affixed below that of the signature, or on the following page. It is referred to as annexed.

The statutory requirement is inflexible, and the reason for the construction thus given to it as applicable to the execution of wills is to prevent abuse or fraud in testamentary instruments and alteration of them after their execution. As was said in the O’Neil case, by Chief Judge Ruger : While the primary rule governing the interpretation of wills when admitted to probate recognizes and endeavors to carry out the intention of the testator, that rule cannot be invoked in the construction of the statute regulating their exe-' cution.” Whether the alleged will in the case at bar was subscribed by the testator at the end of it is a question of statutory construction. The application of the doctrine of the Comoay case requires the conclusion that it was not so subscribed. And, therefore, the instrument was not duly executed as a will.

The contention that it may be admitted to probate as to the provisions other than those contained in the annexed slip cannot be supported. Treating the instrument as not duly executed as a will, it cannot be given probate as such. (Sisters of Charity v. Kelly, 67 N. Y 409.)

Alike question was considered in the O’Neil Case (91 N. Y. 524).

The decree of the Surrogate’s Court should be affirmed, with costs to the respondents payable out of the estate of the decedent.

Decree of the Surrogate’s Court of Monroe county reversed and the proceedings remitted to that court, with directions to proceed with the probate of the will, with costs of the appeal to the appellants payable out of the estate.