author: Per Curiam :

text:
    In the Matter of EMMA L. GREENHALGH, an Infant.

      Infants — an allowance on motion out of the estate of an infant for services, improper— the remedy is by action.

    The Supreme Court has no power to appropriate, upon petition or motion, any part of the estate of an infant to the payment of claims against her.
    Where an attorney has rendered services ■ to an infant, apparently valuable, his only remedy for compensation is by action in which jurisdiction of the infant should be obtained in the usual manner.
    Appeal by John McCrone, petitioner, from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 3d day of February, 1892, denying a motion for an order directing payment out of the estate of Emma L. Greenhalgh, an infant, for legal services rendered by the petitioner to her.
    It appeared from the petition of McCrone that he had secured the probate of a will, wrongfully withheld from probate by the father of the infant, and an adjudication as to the proper construction thereof, under which she finally obtained the title and possession of valuable real estate, and also its rents.

      J. MeGrone, for John McCrone, petitioner, appellant.

      J. Fennel, for the infant, respondent.
   Per Curiam :

"We know of no authority conferred upon this court by which it can appropriate, upon petition or motion, any part of the estate of an infant to the payment of claims against the infant. There is no way pointed out by which the court, in such a proceeding, can acquire jurisdiction of the infant. ' No such power is conferred by statute, nor is it a part of the general equity jurisdiction of the court. In the case of infants the statute is explicit as to the method in which the court is to acquire jurisdiction, and this is always by the service of process upon the infant and the appointment of a guardian.

It would, therefore, appear that the only way in which the appellant can recover his claim against the infant, if it is well founded, is., as was suggested by the court below, by an action. It may be true that even after judgment application at the foot of the judgment may be necessary in order that the same should be collected out of the estate of the infant, but the court having acquired jurisdiction in the action of the infant, and having rendered judgment against it, has the power to enforce its process.

We, therefore, concur in the views expressed by the learned court below in the opinion rendered upon the reargument, and think that the order appealed from should be affirmed, with costs.

Present — Yan Brunt, P. J., and O’Brien, J.

Order affirmed, with costs.


source: Caselaw Access Project

author: Ingraham, J.:

license: Public Domain

text:
    JAMES W. HOLLOWAY, Respondent, v. FRANKLIN H. DELANO and Others, Survivors of ALEXANDER HAMILTON, as Trustees under the Last Will and Testament of WILLIAM B. ASTOR and Another, Appellants. (Action No. 1.)

      Highways — presumption that owners on either side of a highway own to its center — construction of a deed.

    In 1799 the heirs of Charles W. Apthorp owned a large plot of land in a country district, near New York, through which the Bloomingdale road ran. They conveyed property upon the west side of the road to one Shaw, and upon the east side to certain persons named Jauncey. The deed to Shaw described the land as “beginning at the corner of William Constable’s land, on the north side of the Bloomingdale road, and running thence along said road,” etc. The deed to the Jaunceys described their land as “beginning at the corner of a field, at the junction of the Bloomingdale road with the cross-road that leads to Harlem, thence running along the Bloomingdale road,” etc.
    In an action brought by a party claiming as heir of Apthorp to recover his share in the Bloomingdale road, now closed, upon the ground that the deed of his. ancestor did not convey it:
    Heldthat the law presumed that the proprietors of lands adjoining a public-highway owned the fee of the same to the center thereof.
    That the intention of the parties to the deeds, as derived from the words of the grant, must govern.
    That as to the deed to Shaw the description showed that it was the land of William Constable, and not the point of beginning, which was on the north side of the Bloomingdale road.

      That the “ corner ” was the corner of his lands and those oí Apthorp.
    That a line running along a highway meant running along the middle of the highway.
    That by the deed the heirs of Apthorp parted with their title to the road in front of the property conveyed.
    That as to the deed to the Jaunceys the same presumption applied.
    That the “corner of afield, at the junction of the Bloomingdale road with the cross-road that leads to Harlem,” made the point of beginning the point formed by the center of the two roads.
    That as the line ran thence along the road the fee of one-half the road was thereby conveyed.
    Appeal by tbe defendants, Franklin H. Delano, William W. Astor and Charles F. Southmayd, survivors of Alexander Hamilton, as trustees under the last will and testament of William B. Astor, and by the defendant William W. Astor, individually, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 23d day of October, 1891, upon a verdict rendered by direction of the court in favor of the plaintiff for the recovery of certain premises in the Twelfth ward of the city of New York, between Ninetieth and Ninety-first streets, after a trial at the New York Circuit before the court and a jury.

      William Q. Choate, for the appellants.

      James A. Deering, for the respondent.
   Ingraham, J.:

This was an action of ejectment to recover the one undivided one twenty-eighth part of the fee of what was formerly Bloomingdale road, now discontinued as a road by legislative authority, and the title of the plaintiff depends upon the construction to be given to the description contained in the two deeds executed by the heirs-at-law of Charles W. Apthorp, and dated, one July 19, 1199, and one August 6, 1199.

The plaintiff sues as heir-at-law of Charles W. Apthorp and claims that the fee of the street was not included within the description in the deeds mentioned. The plaintiff’s cause of action must depend upon the strength of his title to the property. Whether or not defendant has title is immaterial. In considering this question we must start with a recognition of certain presumptions. Thus it is *£ an established inference of the common law that the proprietors of land adjoining a public highway are the owners of the fee of said highway * * * and' that the proprietors on each side, presumptively, own the soil in fee to the center of the highway.” (Wager v. Troy Union R. R. Co., 25 N. Y., 529.)

“A conveyance of land bounded by an existing street carries the fee to the center, because a narrow strip such as half of a street is much more valuable to the grantee than to the grantor, and the parties are supposed to have so dealt with the property as to bring out its greatest value.” (In re Ladue, 118 N. Y., 219.) And while this presumption is in every case that the grantor does not intend to retain the fee of the soil, within the lines of the street, such preumption may be overcome by the use of any terms in describing, the property granted, which clearly indicates an intention not to convey the soil of the street or stream.

It is not sufficient to exclude from the operation of the grant the • soil of the highway. Usque ad medium filum that the grant is made with reference to a plan annexed, the measuring or coloring of which would exclude it, or by lines- of measurements which would only bring the premises to the exterior line of the highways or by any similar expressions. Although the highway is in one sense a monument, it is regarded as a line, and the center of the highway in such case is regarded as the true boundary, as is the case when a tree or stone or other similar object is designated as a monument, and in the absence of - any other indication is regarded as giving the true boundary or limit of the grant. (White's Bank of Buffalo v. Nichols, 64 N. Y., 71.)

This presumption that the owner of land abutting on a highway owns to the center is much less strong in respect to lands in large cities. (English v. Brennan, 60 N. Y., 610.)

And it is a universal rule that whether a grant of land that is bounded by a highway or running stream extends to the center of such highway or stream, or is limited to the exterior line or margin of the same, depends upon the intent of the parties to the grant as manifested by its terms, so that the question as to the true boundary is in all cases one of interpretation of the deed or grant.

Applying these rules to the deeds in question, we have to determine what was the intent of these parties, the grantors and grantees, 'in-1799, as to whether or not the fee of the road in front of these pieces of ground granted should be included iñ the grant, or should remain the property of the grantors.

The two deeds included within the property conveyed the land on both sides of the Bloomingdale road between Ninetieth and Ninety-first streets in the city of New York. At the time of this conveyance the premises in question were far from the city proper ; it was a country district; the Bloomingdale road was a highway, and the property conveyed by the deeds included several acres of land, the grantors owning a large plot of land through which ran the highway in question. They conveyed the property upon the west side of the highway to John Shaw, and upon the east side to William and Mary Jauncey, the deeds being dated within a few days of each other. The deed apparently first executed was that to John Shaw, conveying the piece of land on the west side of the highway. The description in that deed is as follows: “ Beginning at the corner of William Constable’s land on the north side of the Bloomingdale road, and running thence along said road north 38 degrees, east 8 chains, 45 links,” and thence, after several courses, to the place of beginning, containing nineteen acres, three rods, five perches, according to a map thereto annexed, made by Benjamin Taylor, one of the surveyors of the city of New York, etc.

It is impossible to find in this description any intention of the parties that the fee of the highway was not to pass so as to overcome the presumption before referred to. The point of beginning is “ at the corner of William Constable’s land on the north side of the highway.”

In the deed, as printed in the record, there is no period or comma between the words “ Constable’s ” and “ lands,” and a reading of the description makes it clear that it was William Constable’s land that was on the north side of the highway, and not the point of beginning. The point of beginning was the corner of Constable’s land where it joined the land of the grantors. According to the presumption that we have seen exists, Constable owned to the center of the highway, subject to the easement in the public to use one-half of the highway as a public road, and when a piece of land is upon a line that begins at the corner of Constable’s land it must be presumed that the parties intended that the corner was the corner of the parcel of land owned by Constable in fee ; and as Constable owned the land and the highway it was the corner of that land, and not the comer of the piece of land bounded by the highway.

The line then runs along the highway, and that under all the decisions would mean the middle of. the highway; and this construction of the description in the deed, as showing the intention of the parties, is strongly confirmed by all the surrounding circumstances.

Here was a piece of land far from the settled portion of the city. The land itself was at that time of little value; the highway was and had been for a long time a public highway, and no possible reason appears whereby it can be inferred that these grantors at that time had the slightest idea that this property in this portion of the city would become of much value, or that the fee of the highway would ever be of any use except to the owners of adjoining property, and they sold at the same time the property on both sides of the highway.

It is inconceivable that there was any express intention at that time to retain the naked fee of the highway itself, or that the grantees in the deeds ever supposed that the fee of the road in front of then-premises that they had purchased was vested in others who had no interest in the adjoining property.

In coming to this conclusion we have not overlooked the cases of English v. Brennan (60 N. Y., 609); White’s Bank, etc. v. Nichols (64 id., 65), and Kings County Fire Insurance Company v. Stevens (87 id., 287), upon which the court below relied, and which have been strenuously urged upon us as being inconsistent with this conclusion upon this appeal. In those cases the principles before referred to have been expressly recognized, and the presumption of the intention to grant the fee of the highway has been held to have been overcome, because in the description of the property conveyed by the grants, the highway itself was excluded, and particular stress appears to be given in these cases to the fact, that the description contained in the deed commenced at a fixed point which was upon the edge of the highway, so that the court could not say that it was the intention of the parties that the point of beginning was in the center of the highway, when the parties in express terms had limited it to the edge of the highway.

"We are bound by these decisions and the principles there adopted, but are certainly not bound to extend them to a case where the description of the land is not limited by the outer edge of the road.

As was said by Allen, J., in the case of Mott v. Mott (68 N. Y., 252): When lands are granted bounded upon a highway or a stream not navigable, unless by the terms of the grant or by necessary implication the highway or the bed of the stream are excluded, the title will pass to the center of the highway or stream. The reason is obvious. Ordinarily, in a conveyance of that kind, there is no purpose to be served in the retention by the grantor of a narrow strip of land along the boundaries of the land conveyed and between it and the land of other proprietors, or in the bed of a stream; and the intent to grant them will, therefore, be presumed by the conveyance of the adjacent lands bounded ‘ by,’ or ‘ upon’ or ‘ along ’ such highway or stream, or other equivalent phrases.” And it seems to me clear that this' expressly applies to the deed now under consideration.

The land granted commenced at the corner of Constable’s lands, but that corner is not fixed by the deed or by any monument as the side of the road, but is the corner of Constable’s line, and runs thence along the road.

As was stated in the Matter of Ladue (supra), in considering the conveyance of a tract of land in the vicinity of the property in question, “ this case illustrates the importance of the presumption upon which our decision rests.- In an early day, when land was cheap, Stilwell conveyed part of a farm that is now in a crowded city and of great value. To hold that he intended to reserve the fee of a street, with reference to which, as laid down on a map, he conveyed the property adjoining, would be in conflict not only with his probable intention, but with' public policy as well.”

We think, therefore, that, under the description of the Shaw deed, the plaintiff’s ancestor parted with his interest in the Bloomingdale road in front of and adjacent to the property thereby conveyed.

What we have said in relation to the Shaw deed applies with equal force to the Jauncey deed. That description is as follows: Beginning at the corner of a field at the junction of the Bloomingdale road with the cross-road that leads to Harlem; thence running along the Bloomingdale road south 35 degrees, west 7 chains, 50 links,” and thus by various courses to the place of beginning, containing forty-two acres and five perches, according to a map, etc., thereto annexed.

Here the point of beginning is at the c'orner of a field at the junction of Bloomingdale road with the cross-roads that lead to Harlem, and the presumption that the owner of that field owned to the center of both roads would apply, and the point of beginning is, therefore, the point formed by the center of the two roads.

The line thence runs along the Bloomingdale road, and it seems to us clear that, by such conveyance, the fee of half of Bloomingdale road in front of the property described was included in the property conveyed, and the fee passed to the grantees in the deed.

Many cases have been cited that have been examined, but the principles before stated have been recognized in most of the cases and are firmly established by decisions of the highest court of this State. To reconcile all of these decisions would be extremely difficult, if not impossible, and it will not be attempted.

We think that the conclusion to which we have arrived is founded upon principle and is the application of the rules of law that have existed for centuries, and under which much property has been conveyed and is now held; and that this presumption of the intention of the parties to a deed that, upon a conveyance' of land upon a street or highway, one-half of the street or highway should pass to the grantee and be included in the conveyance should always be enforced, unless, from the conveyance itself, it clearly appeared that such was not the intention of the parties, as where, by the bounds of the property conveyed, the fee of the highway is expressly excluded.

As the title of the plaintiff, therefore, to the fee of Bloomingdale road failed, the complaint should have been dismissed, and the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J., concurred.

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


text:
    JAMES W. HOLLOWAY, Respondent, v. FRANKLIN H. DELANO and Others, Survivors of ALEXANDER HAMILTON, as Trustees under the Last Will and Testament of WILLIAM B. ASTOR and Another, Appellants. (Action No. 2.)

      Basements — an abutting owner — his right in a highway is distinct from that of the public — his easement is not lost by closing the highway — Laws of 1867, chap. 697.
    In 1800 Charles Apthorp and others conveyed lands to one Vanderbilt, bounded upon the Bloomingdale road (now in the Twelfth ward of the city of New York), byadeed which did not convey the fee in the road in front of the premises. In 1868 the commissioners of the Central Park, under chapter 697 of the Laws of 1867, closed the road.
    In an action of ejectment brought to recover the fee in the road by one claiming as heir of Apthorp:

      Held, that Vanderbilt and his grantees acquired an easement in that half of the road which abutted upon his premises, even though Apthorp reserved the fee in the road.
    That such an easement is distinct from the right of the public to use the road, and is subject to that right.
    That the closing of the road did not authorize the owner of the soil under it to use the road in any manner which would defeat this right of way of the abutting owner.
    Appeal by the defendants, Franklin H. Delano, William W. Astor and Charles F. Southmayd, survivors of Alexander Hamilton, as trustees under the last will and testament of William B. Astor, and by the defendant William W. Astor, individually, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 23d day of October, 1891, upon a verdict” for the plaintiff for the recovery of certain premises in the Twelfth ward of the city of New York, between Ninety-first and Ninety-second streets, west of Tenth avenue, after a trial at the New York Circuit before the court and a jury.
    In 1868 the commissioners of the Central Park closed the Bloomingdale road under authority given them by chapter 697 of the Laws of 1867.

      W. G. Choate, for the appellant.

      James A. Deermg, for the respondent.
   Ingraham, J.:

This action is ejectment to recover possession of a strip of land, formerly a part of Bloomingdale road, between Ninety-second and Ninety-third streets, in the city of New York.

The question to be determined depends upon the construction to be given to two deeds, one from Charles Apthorp and others to William Jauncey and others, dated August 6, 1799, and one from Charles Apthorp and others to Oliver Yanderbilt, dated February 28, 1800.

In the case of Holloway v. Delano (Action No. 1), decided herewith we construed the deed of Apthorp to Jauncey as conveying the fee of the east half of the Bloomingdale road, and the plaintiff has, therefore, failed to show a title to the east half of the property, to recover which the action is brought.

The deed of Charles Apthorp to Yanderbilt, however, does not convey to the grantees the west half of such road, and the plaintiff, as heir-at-law of Charles Apthorp, is the owner of the fee of the west half of said Bloomingdale road, between Ninety-second and Ninety-third streets.

The description in the Yanderbilt deed is: Beginning at a corner on the west side of the Bloomingdale road, at the northerly side of a private road leading to Hudson river, and running thence along the west side of the Bloomingdale road, aforesaid, north 35 degrees, east 3 chains and 60 links, and thence by several courses to the place of beginning.

This description plainly excludes the fee in front of the premises. It is materially different from the description contained in the other deeds that we have had occasion to consider in these actions.

I think, however, that the grantee named in the Yanderbilt deed acquired an easement in the west half of the street abutting on the premises conveyed by this conveyance.

In considering this question, the distinction between an easement granted by the deed in the road immediately abutting upon the property conveyed and in the portion of the road that does not so abut should be kept clearly in view.

In this case it is the right of the grantees of land bounded upon the highway, when the grantor owns the fee of the highway in and to the portion of the highway that abuts. upon his premises that is to be considered, and not his interest in the road that does not so abut.

It is undoubtedly settled in this State that the grantee of a piece of land abutting upon a public street or highway acquires no private interest in such street or highway beyond the portion thereof that directly abuts upon the land conveyed.

It was só held in Wheeler v. Clark (58 N. Y., 270), where Church, Ch. J., delivering the opinion of the court, says: “ The plaintiff claims, however, that he is entitled to a private right of way over that portion of the old road, in front of the defendant’s premises and extending to the center; and he predicates this right upon two grounds, viz., by prescription or by grant or a reservation in the nature of a grant,” and it was held that the plaintiff could not obtain such a right by prescription; that there could not be the requisite user under an adverse claim of right against the owner, and what all the grants conveyed to the grantee was; that the owners of the lots and the public were to' have the same rights which were to use them as public streets, avenues and roads, and that they were to be kept open accordingly, that is as public streets, there being no intimation in the language of any right additional to that of the public or that any of the parties would be possessed of any after the streets ceased to be used by the public; and the same rule was again applied in Kings County Fire Insurance Company v. Stevens (101 N. Y., 416).

The decision in these cases, however, does not apply to land in the street or highway abutting upon the premises conveyed. Thus in Kings County Insurance Company v. Stevens (supra), which was an action brought to restrain the defendant from entering upon a strip of land, to which plaintiff claimed title under a claim of right of way over the locus m quo, it was held that the city could, with the aid of the legislature, close the street without specific compensation to the defendant, and did so effectually, as against her, so far as the locus in quo is concerned; and in speaking of the claim that the principle decided in Story v. The New York Elevated Railroad (90 N. Y., 122), preserved to the defendant, as an abutting owner, a property in the street of which he could not be deprived without compensation, the court said: “We need not consider or discuss that question, for the closing of the street here in controversy is in front of plaintiff’s premises, and not of hers, and does not take from her light, air or convenience of access; no right appurtenant to her lot, as abutting on the street, has been infringed.”

And in King v. The Mayor (102 N. Y., 175), the question was •as to the ownership of an award made to compensate- the owners of property for damages sustained by the public closing of the street, and it was held that the plaintiff was entitled to the award, because when the street was closed and the damages sustained, for which the •award was made, the plaintiffs were the owners of the premises, and, therefore, became entitled to the amount which might be awarded for the injury done, and that a subsequent conveyance of the premises did not convey the right to collect the award, when made for the damages sustained by the closing of the street prior to the conveyance. What the court said in that opinion is said in relation to the claim of the defendant, who was the subsequent grantee; that he, and not the plaintiff, was entitled to the awrard.

The other cases cited by plaintiff have been examined, but do not expressly decide the question here presented and do not require further comment.

That an owner of land does acquire an interest in a street abutting on his property where the conveyance of such property to such owner bounds the property by the street, and where the grantor owned the fee of the street, even though the conveyance excludes the fee of the street separate and distinct from the right of the public to use the street as a public road or highway, is clear upon principle, and is settled by authority; and such right arises from the implied covenant in the deed when it conveys the property bounding it by the street, that there is a street, and that, so far as the property •of the owner of the fee in the street is concerned, such parts of the :street as abutted on the property conveyed shall remain open as a street for light, air and right of access to such abutting property.

This easement, of course, is subordinate to the right of the public to use the road or highway, as such right the grantor had no power to convey or affect, but is a right that binds and controls the grantor’s interest in the street whatever it maybe, and gives to the grantee the right to insist that the grantor, or those claiming under him, shall not so use his interest in the street as to interfere with this right or easement acquired by the implied covenant contained in the grant.

This principle is most satisfactorily established by the Supreme Court of Massachusetts in the case of Parker v. Framingham, (8 Metc., 267). The question was there expressly presented and such easement upheld by the court. Chief Justice Shaw, delivering the opinion, says: “ It seems reasonable, and quite within the principle of equity on which this rule is founded, to apply it to the discontinuance of a highway; so that if a man should grant land bounding expressly on the side of a highway, if the grantor own the-soil under the highway, and the highway, by competent authority, should be discontinued, such grantor could not so use the soil of the highway as to defeat his grantee’s right of way or render it substantially less beneficial. Whether this should be deemed to operate-as an implied grant, or as an implied warranty, covenant and estoppel, binding on the grantor and his heirs, is immaterial.”

The opinion in this case would, in the absence of controlling-authority to the contrary, be a sufficient authority to establish the defendant’s right to an interest in that portion of Bloomingdale road abutting upon their property, and I think a consideration of the cases in this State show that this principle has been expressly approved and followed.

In the case of White's Bank of Buffalo v. Nichols, Allen, J. (64 N. Y., 73), in delivering the opinion of the court, says: “ When land is granted bounding on a street or highway, there is an implied covenant that there is such a way; that so far as the grantor-is concerned, it shall be continued, and that the grantee and his. heirs and assigns shall have the benefit of it.” Citing as an authority the ease of Parker v. Framingham (supra); and the principles stated in Parker v. Framingham were applied by the Court of Appeals in the case of De Peyster v. Mali (92 N. Y., 267). That-was an action brought to recover the awards made by the commissioners for certain property taken for Riverside Park and Riverside drive, and the court stated the rights of the respective parties in and to the westerly half of Bloomingdale road, which had been taken for such public use as follows:

“ The plaintiff owned in fee the land in the westerly half of Bloomingdale road, which land was subject to a perpetual easement for the public road, and a private, easement for the owners of' abutting land, and the Riverside difive was laid out in such road and took the place thereof, and the land thereof was appropriated for the same.”

An examination of this case in the Supreme Court (27 Hun, 442), shows that that private easement was acquired only by the grant of property bounding it on Bloomingdale road, thus expressly recognizing the right of the owner of the abutting property to a private easement in the road.

That case was decided by the Court of Appeals upon the principle that this private easement of the owner was not at all affected by the fact that the fee of Bloomingdale road had been acquired by the city in trust for a public street, but that the fee having been thus acquired by the city, the abutting owner enjoyed the same easement in the road that he had before enjoyed when the fee remained in the plaintiff.

These authorities recognize the principle that where land is conveyed bounded upon a public road or highway, and the grantor owns the fee of the road, that such fee becomes at once subject to the easement which becomes appurtenant to the adjoining land; that the road, or the interest of the grantor in the road, shall be kept open as a public road so that the abutting owner shall have a right to use such fee for light, air and means of access to his abutting property, and that is independent of the right of the public to use the road as a public road or highway.

The rights of abutting owners have been very largely discussed by the courts of this State in the cases brought against the Elevated Railroad Company by property owners to recover for the appropriation by the Elevated Railroad Company of the streets of the city of New York.

In the case of Abendroth, v. New York Elevated Railroad Company (122 N.Y., 1), and Kane v. New York Elevated Railroad Company (125 id., 175), the question was presented as to what interest, if any, an abutting owner had in the streets of the city of New York the fee of which was in the city, and where there was no covenants ' by grant, either express or implied, that the streets should be kept open as public streets, and the opinion in both of those cases recognized the right of an abutting owner, where he has received a conveyance bounded upon an existing street, where the grantor owns the fee of the street to an easement, that the street should be kept open as a public street, and that the right to its use for light, air and means of access became appurtenant to the abutting property.

Thus, in the Kane case, Andrews, J., says: “ We do not jierceive that these grants either weaken the plaintiffs case or strengthen that of the defendant. The defendant does not claim under the grantees; and if the fee of the street is in private persons, their title is nominal merely, and as against them the plaintiff has clearly a prescriptive right; nor could such title prevent the acquisition by plaintiff and his predecessors of rights against the public in the nature of easements under the views hereinbefore stated.”

In the Story case (90 N. Y., 145) the right of the plaintiff to recover was expressly placed upon the implied covenant in the deed from the city of New York to Story’s grantor, which “secured to the plaintiff the right and privilege of having the street forever kept open, as such. For that purpose, no' special or express grant was necessary; the dedication, the sale in reference to it, the conveyance of the abutting lot with its appurtenances and the consideration paid were of themselves sufficient.”

The judgment in the case adjudges that the plaintiff recover of the defendants the possession of the property described in the complaint, and as it appears that plaintiff is not entitled to the possession of such property the judgment must be reversed.

There are other questions presented, but for the reasons stated 'the judgment must be reversed; it is not necessary now that they should be determined. The judgment must be reversed and new ■trial ordered, with costs to the appellant to abide the event.

Yan Brunt, P. J., concurred.

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


text:
    CHARLES ROBINSON, Appellant, v. THE NEW YORK, LAKE ERIE AND WESTERN RAILWAY COMPANY, Respondent.

      Bes ad/judicata — limitation of the rule where the cause of action is different— estoppel — opinion of the court — evidence aliunde the record.

    In an action brought to recover the profits alleged to have become payable to the plaintiff during a certain period under a contract made with the receiver of a railroad company, the defense was set up that in a former action by the plaintiff against the receiver upon the same cause of action, for a different period, he liad been defeated. The actual decision in such former action was that no profits were earned. But, upon an appeal therefrom, the General Term, which affirmed the judgment, held that the contract was void, ignoring the question of profits. The Court of Appeals considered the question of profits, but also held the contract to be void.
    The referee, before whom the second action was tried, dismissed the complaint upon the ground that the question as to the invalidity of the contract was res adjudiaata.

      Held, that this was error.
    That as it appeared from the record that the referee in the former action did not pass upon the validity of the contract, a defense alleged in the former action, and did base his decision solely upon the fact that no profits were earned, the court could not go outside the record in determining what matters were decided in that case.
    That an estoppel by judgment in a former action between the same parties did
    . not operate to bar a second action where the demand was different, unless the precise question was at issue in such former action.
    That the opinions of the appellate courts were not competent evidence from which to determine the grounds of their decisions, where the judgments in those courts contained nothing but affirmances of the judgment below.
    That where a former judgment might have proceeded upon either of two grounds, the burden is upon the party who sets up such judgment to show that it proceeded upon the ground he asserts to have been the basis of the decision.
    That where the record on the former trial showed that the verdict-could not have been reached without deciding the particular matter, that matter would be deemed to have been settled as between the parties.
    That evidence aliunde the record would be received to show what the matter in controversy was, provided that such evidence was not inconsistent with the record.
    That in any other case the judgment in the former action was not conclusive in the subsequent one.
    Appeal by the plaintiff Charles Robinson from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New York on tbe 7th day of January, 1892, dismissing the complaint upon the merits, with costs, after a trial before a referee.
    This action was brought to recover certain profits arising subsequent to October 1, 1878, under a contract, in regard to which the complaint alleged:
    YIII. On or about April 8, 1875, one Charles Edward Appleby, by his certain indenture of lease bearing date on that day, demised and leased to the plaintiff above named, for the term of ten years from May 1, 1875, for an annual rental of $21,370, besides taxes and assessments, certain premises in the city of New York, situated at and about the foot of West Fortieth street and close to the Hudson river, which premises were then used and occupied as stock yards for receiving and delivering live stock, and were and are commonly known as the Western Stock Yards or the Fortieth Street Yards.
    TY. In or about the month of July, 1875, the plaintiff and the Erie Railway Company and Jewett, as receiver as aforesaid, duly and for a valuable consideration made and executed a certain contract in writing, under seal, whereby plaintiff agreed to assign the said lease to said National Stock Yard Company, whenever requested by a resolution of its Board of Directors, or upon a request of the Erie Railway Company so to do; and whereby Jewett, as such receiver, guaranteed to plaintiff from the date of said transfer the payment by said National Stock Yard Company (which, however, was not a party to said contract and never agreed with plaintiff to make such payment) of one-fifth of the net profits arising from the business to be carried on upon said premises, or from their use or occupancy, payments to be made semi-annually, viz., on the first day of August and the first day of February of each year.
    One Jewett was appointed receiver of the defendant in May, 1875, and so continued until about April, 1878.
    The former action was begun November 21, 1877. The referee, before whom it was tried, found as a fact that no profits had been made from the business. The opinion delivered at General Term did not consider the question of profits, but decided that the contract was invalid; when the case reached the Court of Appeals that court held that the profits had been earned, but it also held that the contract was void.

      Edward E. Whitney, for tlie appellant.

      Joseph laroeque, for tbe respondent.
   Ingraham, J.:

This action is brought upon a contract made between the plaintiff and one Hugh J. Jewett, as receiver of the Erie Railroad Company, whereby the said Jewett, as such receiver, agreed to pay one-fifth of the net profits arising from the business to be carried on upon certain premises, which plaintiffs had agreed to assign to a corporation known as the National Stock Yard Company, and in which corporation, by the recitals of the agreement, the Erie Railroad Company had become largely interested.

The defendant, for a separate defense to the action, alleged in its. answer that, prior to the commencement of this action, plaintiff had commenced another action in this court against said Jewett, as receiver, upon the same alleged contract, to recover under the contract for the net profits alleged to have accrued from September 1, 1877, to October 1, 1878. That judgment had been entered in that action in favor of the defendant, and that on appeal to the General Term such judgment was affirmed, and that such judgment of the General Term was affirmed by the Court of Appeals, and that by such judgments, so rendered and entered, there was a final judicial settlement and determination, conclusive upon both parties of the issues in controversy. That one of such issues embraced in such final settlement and determination was as to the validity of said contract, and that, in and by the judgment so rendered and entered by this, court and by the Court of Appeals, it was adjudged that the said alleged contract upon which this action is based was and is without legal consideration and void as against public policy.

The learned referee decided upon this trial that, by the said judgment in the prior action in the Supreme Court and the Court of Appeals, there was a final judicial settlement and determination conclusive upon both parties of the said issue as to the validity of the said contract, which was determined by the said judgment to be void and invalid for want of legal consideration, and, as a conclusion of law, that the-said judgments so rendered in the said actions between the plaintiff and the said Jewett, as receiver, are conclusive upon both parties and tiieir privies as to tlie issues raised in said action and determined by the judgments therein, and that there should be judgment in this action for the dismissal of the complaint on the merits, with costs.

If this allegation in the answer, and this finding of fact of the referee, is sustained by the evidence, the legal conclusion is right and must be affirmed. The sole question for us to determine, therefore, is whether there is any evidence in this action that the issue, as to the validity of the contract sued on, was presented to the court in the former action and was there determined by the judgment, either of this court or the Court of Appeals.

The judgment-roll entered in the former action was offered in evidence before the referee. From it, it appears that two defenses were interposed in that action; one, that there were no net profits and nothing, therefore, due under the contract; and second, that the contract was invalid for want of legal consideration.

The issues in that action were referred to a referee, who filed his report, whereby he found, as a fact, that no profits were made from the business carried on at such premises or from their use and occupancy, and, as matter of law, that the defendant was not indebted to the plaintiff in the sums mentioned in the complaint or any part thereof; and that the defendant is entitled to judgment that the complaint be dismissed on the merits, with costs, and upon such report judgment was entered that the complaint be dismissed upon the merits.

There was also introduced in evidence a notice of appeal to this court, by the plaintiff, from such judgment and the judgment of this court adjudging that the said judgment appealed from was in all things affirmed ; and also a notice of appeal from such judgment of this court to the Court of Appeals, and the remittitur from the Court of Appeals in all things affirming the said judgment of this court, and the order of this court making the judgment of the Court of Appeals the judgment of this court.

This record, standing by itself, would show that the judgment entered upon the report of the referee and its affirmance by this court and by the Court of Appeals was an adjudication that there were no profits made from the business carried on, on the premises described in the contract, and that there had been no determination of the issue raised as to the validity of the contract.

There appears, however, in the case, as introduced in evidence by the defendant under the objection and exception of the plaintiff, an opinion of the General Term of this court and also an opinion of the Court of Appeals, and the only evidence to sustain the finding of the referee, that the judgment of the General Term and of the Court of Appeals was an adjudication that the said contract was void, is what is claimed to be found in these opinions.

We have now to determine whether such opinions of the appellate court, affirming a judgment of a court below which disposes of but one issue in the case, is competent evidence to prove that such judgments of affirmance were adjudications of other issues in the case not passed upon by the trial court, and where the judgment-record on the appeal contained no adjudication, except that the judgment be affirmed.

In considering this question, the distinction between the effect of the judgment, as a bar or estoppel against the prosecution of a second action against the same claim or demand, and its effect as an estoppel in another action between the same parties upon a- different cause of action, should not be lost sight of. “ In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action.” * * *

“ But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered.

“ In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action; not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.” (Cromwell v. Co. of Sac, 94 U. S., 352.) And see Lewis v. O. N. and P. Co. (125 N. Y., 348), where Peckham, J., says: In such a case where a judgment may have proceeded upon either or any of two or more different and distinct facts, the party desiring to avail himself of the judgment as conclusive evidence upon some particular fact must show affirmatively that it went upon that fact, or else the question is open for a new contention.”

In Bell v. Merrifield (109 N. Y., 212), it was said: “ So in order to obtain the benefit of a prior adjudication of a fact, it is entirely reasonable to exact from the party asking its benefit clear proof that such adjudication has been made.”

In other words, the burden of proof in this case is upon defendant to show that the adjudication in the prior action was an adjudication that the contract sued on in this action was invalid, and not binding upon this defendant.

The judgment in the prior action that was appealed from, dismissing the complaint, might have 'been upon either of the several defenses set up in the answer.

The record shows that that judgment was entered upon the report of the referee, who found that nothing was due under the contract. The record itself therefor shows that the judgment entered upon the report of the referee did not determine that the contract was invalid. The record thus showed that that judgment was in all things affirmed by the General Term and by the Court of Appeals.

Is it competent to introduce evidence of the declarations of the judges who affirmed that judgment, either verbal or written, or by their written opinions or by their oral testimony, to show that the question determined was different from that in the record ? I think not. The rule that allows oral testimony to be given as to what questions were actually determined upon the trial of the action have always been restricted, so far as I have been able to discover, with one or two exceptions, which will be hereafter mentioned, to what actually happened upon the trial of the action and to the questions submitted for determination; and such evidence has always been limited to facts that are not inconsistent with the record and do not impugn its verity.

Thus, in Gardner v. Buckbee (3 Cow., 127) the court in stating the ground upon which such evidence is admitted, says: It is true the record merely proves the pleadings, and that judgment was rendered for the defendant. Without other proof it would not make out the defense. The record shows that it was competent on the trial to establish the fraud of the plaintiff. Whether fraud was made out and whether that was the point upon which the decision was founded must necessarily be proven by evidence extrinsic of the record. To do so is not inconsistent with the record, nor does it impugn its verity.”

So in the case of Wood v. Jackson (8 Wend., 17), the evidence admitted was what question was submitted to the jury on the trial, but such evidence has never been received to contradict the record or which is inconsistent with it; and I think it clear that the effect of these opinions as evidence, if they were admissible at all, was to contradict the record, that is, that the judgment affirming the judgment dismissing the complaint, because of the failure to prove anything due under the contract, was an adjudication that the contract sued on was void.

Had the referee in this case written an opinion in which he stated that he dismissed the complaint because the contract was void, and then filed the decisions in question, would that opinion have been admitted to show that the question that was determined was not the question stated in his report, but was the question which the report did not determine ? Clearly not; and upon what principle, therefore, can the opinion of the appellate court, which in all respects affirms his judgment, be competent proof that their judgment is not an affirmance of the judgment entered on the decision of the referee, but an adjudication of an entirely different issue.

If the defendant had desired to have this judgment entered as an adjudication as to the. validity of the contract, they should have applied to the appellate court to have inserted in their judgment of affirmance an adjudication as to the validity of the contract, but such adjudication not appearing in the judgment of affirmance it must be deemed to have affirmed the judgment that was given by the referee.

But, assuming that the defendant could prove by competent evidence that the appellate courts, in affirming this judgment, adjudicated that this contract was void, I do not think the opinion of the court, containing the reasons for their judicial action, is competent evidence of what was so adjudicated. The opinions are no part of the record; and that, on an appeal from an order or judgment, the appellate court cannot look into the opinion to ascertain the grounds upon which the court below proceeded is settled by many cases and is almost a universal rule. (See Direct U. S. Cable Co. v. The Domestic Telegraph Co., 84 N. Y., 156; Hewlett v. Woods, 67 id., 394.)

The opinion, being no part of the record, must be considered as nothing but the reasons of the judge or court for their judgment; and could certainly have no greater weight than the testimony of the judge who wrote the opinion as to his reasons for his judgment.

It is settled that it would not have been competent to call a judge or juror who decided a case as a witness, to state the reason of their decision or what was decided.

Thus, in Agan v. Hey (30 Hun, 594), the court say, in speaking of oral testimony to be given in such an action:

. “ But such evidence should be limited to proving what occurred upon the trial; the proofs which were given, the arguments and contentions of the respective parties as to the facts and law of the case.

“ I am of the opinion that it was error to receive the statement of the justice himself as a witness as to the ground upon which he placed his decision in the defendant’s favor. He was a competent witness to prove all that occurred before him, for they nowise contradicted the record which he caused to be made and entered in his docket. The question whether a former suit is a bar to a pending one is to be determined as a legal question from the record of the former suit and the proceedings had upon the trial. Whether the rent wras due or not was a question of fact, and it was not competent to prove by the justice how he determined that question. The mental conclusions reached by the magistrate on the law or facts of a case tried before him, and not expressed in the record, cannot properly be given in evidence. If his conclusions were the same as those he had inserted in the record, then there is no necessity of proving the same. If they are in contradiction to the same, then they should be excluded when offered to be proved, for the reason that they contradict the record.”

In the case of the Union National Bank v. Kupper (63 N. Y., 618) it was held “ that the record, which is the highest evidence of what the court decided, showed clearly that the point was adjudicated the other way, as the judgment of the Special Term was explicit and this was affirmed; and that this court is bound by the record, even if the opinion contained adverse expressions; if there was a mistake in the judgment entered, the remedy was by motion to correct.”

The same question was presented to the Supreme Court of the United States in the case of Packet Company v. Sickles (5 Wall., 593).

In that case the defendant in error relied upon a former adjudication, and the jurors who determined the question in the former action were called to testify as to the grounds upon which they found their verdict, but the court held that the record of the former trial, together with the extrinsic proof, failed to show that the contract in controversy in that suit was necessarily determined in the former action; and although the evidence of the jurors was received without objection, it was expressly held “ that the secret deliberations of the jury, or grounds of their proceedings while engaged in making up their verdict, are not competent or admissible evidence of the issues or findings. * * * The evidence should be confined to the points in controversy on the former trial, to the testimony given by the parties, and to the questions submitted to the jury for their consideration, and then the record furnishes the only proper proof of the verdict.”

I can see no reason why the written opinion of the judges of the appellate court giving their reasons for affirming the judgment does not come within this rule.

The case of Birckhead v. Brown (5 Sandf. S. C. Rep., 134) appears to have adopted a different view, but no authority is cited to sustain that conclusion,' and we think it should not be followed.

The question here presented is different from that presented in Esterbrook v. Savage (21 Hun, 149), for there the appellate court reversed the judgment entered on the trial before a referee, and it entered a judgment dismissing the complaint in the action and while in that case the learned justice delivering the opinion said that the court could consider the opinions upon the question as to what was really decided, as on the record there was no adjudication, he holds that considering the opinions there was no adjudication.

That remark was not necessary to the decision of that case. It does not appear that the opinion of the appellate court was introduced in evidence, and what was decided was that, considering the opinion,. it did not appear that the questions at issue were res adgudicata.

We think the true rule is that stated in Packet Company v. Sickles (supra) : “ If the record of the former trial shows that the verdict could not have been rendered without deciding the particular matter, it will be considered as having settled that matter as to all future actions between the parties, and further, in cases where the record itself does not show that the matter was necessarily and directly found by the jury, evidence aliunde, consistent with the record, may be received to prove the fact,- but even where it appears from the extrinsic evidence that the matter was properly within the issue controverted in the former suit, if it be not shown that the verdict and judgment necessarily involved its consideration and determination, it will not be concluded.”

That the evidence aliunde should be confined to the points in controversy on the former trial, to the testimony given by the parties, and to the question submitted for determination; and that unless it appears from such evidence and the record that the question was necessarily determined, the parties are not concluded.

We think, therefore, that there was no evidence before the referee to sustain his finding that the former judgment was an adjudication that the contract sued on was invalid, and that the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

O’Brien, J., concurred; Yan Brunt, P. J., concurred in result.

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


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

text:
    In the Matter of the Estate of EDWARD D. G. PRIME, Deceased.

      Inheritance tase — it acames upon the death — chapter 553 of the Lams of 1890 applies only to domestic corporations — not to foreign corporations — an enabling act.

    The act relating to the taxation of collateral inheritances was materially amended on April 20, 1891. A testator died April 7,1891, and no proceedings relative to the tax were taken until after April twentieth, on which date it was claimed that, by reason of radical changes in the tax made by the act of 1891, the previous act of 1887^33 repealed by implication.

      Held, that the tax accrued at the death of the testator, and was to be assessed in accordance with the law as it stood upon that day.

      It was provided by chapter 553 of the Laws of 1890 that certain religious, educational and charitable corporations should be, to a certain extent, exempt from this tax.

      Held, that this provision of the statute applied only to domestic corporations, and had no application to foreign corporations of the character specified therein.
    A missionary society, incorporated in Massachusetts, was, by chapter 376 of the Laws of 1877, authorized to take, hold and convey property in this State.

      Held, that the statute was merely an enabling act, and that the society was not thereby constituted a domestic corporation or brought within the exemption from the tax.
    A statute of the State of New York has no such extra territorial force, unless that is therein specially stated to be its purpose.
    Appeal by Maria M. Stevenson, Mary Prime, Kate Prime, Alan-son J. Prime, Ralph E. Prime, individually, and as general guardian ■of the person and estate of Edward D. Gr. Prime 2d, Elize D. Bird, Mary Barnum, Emma L. Goodell, The Presbyterian Board of Relief for Disabled Ministers, and the widows and orphans of deceased ministers, The American Board of Commissioners for Foreign Missions, all legatees under the last will and testament of said Edward D. G. Prime, deceased, or otherwise interested in his estate, from an order of the surrogate and of the Surrogate’s Court of the county of New York, entered in the surrogate’s office of said county, which, among other things, affirmed another order of the surrogate of the county of New York, dated October 12, 1891, which last-named order fixed and assessed the value of certain legacies under said last will and testament, and fixed and assessed a tax upon such legacies under the provisions of the collateral inheritance tax law, and also an appeal from said order, dated October 12, 1891, and from every part of each of said orders.
    The American Board of Commissioners for Foreign Missions was incorporated in Massachusetts in 1812.
    By chapter 376 of the Laws of 1877 of the State of New York, it was authorized to take, hold and convey real or personal property in the State of New York, within certain limits of value.
    The collateral inheritance act of the State of New York is chapter 483 of the Laws of 1885, amended by chapter 713 of the Laws of 1887, and by chapter 215 of the Laws of 1891, passed April twentieth of that year.

      Pátph E. Prime and Austin Abbott, for American Board of Commissioners for Foreign Missions and others, legatees, appellants.
    . E. J. Levy and Delaney Nieoll, district attorney, for. the Comptroller of the City of New York and the People, respondents.
   Patterson, J.:

The order appealed from in this proceeding was made by the surrogate of New York county, who assessed and fixed the amount of certain collateral inheritance taxes upon bequests made by a testator to residuary legatees and to charitable or benevolent institutions. There are three objections urged to the decision of the surrogate; one common to all the appellants and the others applying only to the corporations referred to. The general objection is, that the testator, having died April 7, 1891, and the,legislature of this State having passed an act (chap. 215, Laws of 1891) which went into effect April twentieth of that year, and which radically changed some of the provisions of the act of 1887, and the order fixing the amount of the tax on the legacies here involved not having been made until October 12, 1891, there was no authority to impose the tax, because, by the changes operated by the law of 1891, the provisions of the act of 1887 were repealed by implication. Ye do-not consider it necessary to comment at length on this contention, for it proceeds upon the assumption that the validity of the tax is to be determined as of the date of its actual imposition. If this were true, there might be force in the argument of the appellants; but the contrary has, in substance, been held by the Court of Appeals. (Matter of Will of Vassar, 127 N. Y., 8.) We consider that, from the terms of the statute, the right to the tax accrued as of the date of the death of the testator, and hence that the surrogate was correct in the disposition he made of that objection.

Concerning the objections taken by the corporations referred to, we are also of opinion that the decision of the surrogate was right. They claim that even if the act of 1887 were in force and applied to the bequests made in Mr. Prime’s will, those' bequests are exempt because of the provisions of chapter 553 of the Laws of 1890. By that act it is provided that any religious, educational, scientific, benevolent or charitable corporation may take and hold property up to •a certain limit of value, and shall be exempt from taxation and from •the application of the collateral inheritance tax law. The two appealing societies are foreign corporations, and their claim is that the act of 1890 applies to foreign as well as to domestic corporations of Jdndred character. The surrogate held otherwise. It is quite clear to us, from the very object-of the act of 1890, that it was the intention of the legislature that it should apply only to domestic corporations. It is an act to limit the amount of property to be held by corporations organized for other than business purposes. It is .scarcely to be assumed that the legislature of this State would seek, ¡by a genei'dl act, to impose restraints and disabilities on foreign corporations or legislate as to their powers and capacities; or without express reference put them on the footing as to privileges of domestic corporations, as to which, whatever power of control or visitation there is, resides in the authorities of this State. In our •opinion the act of 1890 does not relieve the appellant corporations, and the law as expounded in Catlin v. Trustees of Trinity College (113 N. Y., 133) controls.

It is further contended by one of the appellants — “The American Board of Commissioners for Foreign Missions ” — that it stands <>n the same footing as a domestic corporation, for the reason that it was virtually reincorporated in this State by an act of the legislature of June 2, 1887. Passing by the solecism and considering the act last mentioned, it appears that it is therein provided that the society referred to shall be capable of taking by gift, etc., any real or personal property and hold and convey the same for all the purposes of said corporation; provided the annual income of its realty in this State, shall not exceed the sum of $20,000. That is merely .an enabling act and nothing more; limited to the one purpose of according to a designated foreign corporation a particular privilege. But it cannot be inferred from that that it is made a domestic ■corporation. There is nothing in the act which gives this corporation such a status — any more than a general law, which allows all foreign corporations to hold real estate and convey it on certain conditions, would give them any further or other rights and privileges than those coming within the strict terms of the law.

The order of the surrogate was right in all respects, and must be affirmed, with costs.

Yan Brunt, P. J.:

In addition to the grounds, in reference to the liability of the legacies to the tax stated by Mr. Justice Patterson, for another reason the statute under which exemption is claimed cannot apply to a foreign corporation.

It is the well-settled rule in this State' that its statutes have no extra territorial force, unless specially so provided.

O’Brien, J., concurred.

Order affirmed, with costs.


author: O’Brien, J.:

text:
    ABRAHAM H. COHEN, as Administrator of ABRAHAM COHEN, Deceased, Respondent, v. ISIDORE HYMES and Another, Appellants.

      Statute of limitations — action for an accounting by the administrator of a deceased, pa/rtner — the statute begins to run when an administrator is appointed— payment.

    In 1865 a partner in a firm died. Iri 1889 an administrator of his estate was appointed, who thereupon brought an action against the surviving partners for an accounting.

      Held, that the action was not barred by the statute of limitations.
    That such an action was not one “to recover personal property taken after the death of a testator or intestate,” and that, therefore, the provision of section 892 of the Code of Civil Procedure, declaring that in such a case the letters “ are deemed to have been issued within six years after the death of the testator or intestate” had no application.
    That the statute of limitations could not run against an action for an accounting until there was a person in esse to bring it.

      Semhle, that the surviving members of a firm do not become, by the death of their copartner, trustees of his share of the firm assets for his legal representatives.
    That where it appeared that the survivors had made a payment out of the firm assets to a daughter of the deceased, which payment they termed a gratuity toiler, they were still entitled upon an accounting to credit for the payment as one made on account of the interest of the deceased in the firm.
    Appeal by tlie defendants, Isidore Hymes and Julius Hymes,, from a judgment of the Supreme Court, entered in the office of the cleric of the city and county of New York on the 9th day of July,. 1891, upon a recovery by the plaintiff of the sum of $41,440 and costs after a trial before a referee.

      Daniel Q. Rollins, for the appellants.

      D. F. Einstein, for the respondent.
   O’Brien, J.:

The action was commenced on the 30th of November, 1889, and seeks an accounting from the defendants as surviving partners of plaintiff’s intestate, who died on the 28th of July, 1865.

The plaintiff was appointed administrator of his estate on. the 28th day of July, 1889, and thereafter brought this action. It is admitted by the pleadings that the defendants and one Abraham Cohen, plaintiff’s intestate, were copartners in business in this city for some time prior to 1865, under the firm name of Hymes Bros. & Co.; that the defendants have not paid over any money or property to the plaintiff as administrator, and though they deny that no account was rendered, the evidence shows that they refused to render an account, and they neither claim nor prove that they ever rendered an account to plaintiff or to anyone else.

The plaintiff insists that the intestate was entitled to an interest in the firm equal to one-third of the assets, and upon the trial the defendants relied for their defense upon the contention that at the time of the death of Mr. Cohen the partnership had no surplus; that the liabilities were equal to, if they did not exceed, the assets;' that, therefore, the intestate was not entitled to anything, and that his only interest in the firm was to the extent of one-third of the net profits which had already been withdrawn prior to his death, except some small amount which thereafter had been paid over to his widow and used for her support and that of the plaintiff.

It is unnecessary for us to recite all the evidence upon which the judgment is supported. As said, the copartnership was admitted, and considering the number of years that have elapsed, and the difficulty, if not impossibility, of giving better evidence, the plaintiff made out a sufficient prima facie case,'which, in the absence of rebutting testimony and the unexplained absence of the books of the defendants, justified the conclusions of the referee.

It may well be that the testimony of the plaintiff was not as strong or satisfactory as we could wish, but, under the circumstances, it was all that could be exjiected after the lapse of years and the situation of the plaintiff and those whom he represented. There was sufficient to call out from the defendants the best evidence in their possession to rebut the inferences which naturally arose from such testimony as the plaintiff was able to produce. To support plaintiff’s theory as to the amount which actually stood to the credit of the intestate at the time of his death,-we have the payment by the defendants of $4,000 to the daughter of the intestate, the letter written by one of the defendants, Isidore Iiymes, to the plaintiff, the efforts made to obtain from the plaintiff a release, and these, supplemented by the testimony of three different witnesses, were sufficient to justify the conclusion reached by the referee as to the amount and value of the intestate’s interest in the firm at the time of his death. There remains, however, two questions upon which reliance has been placed upon this appeal.

The first and most serious relates to the defense interposed of the statute of limitations. It is insisted that section 392 of the Code of Civil Procedure applies, and that in accordance therewith, although letters were not, in fact, issued to the plaintiff until the 20th day of October, 1889, these must be deemed, for the purpose of computing the time in connection with the statute of limitations, to have been issued within six years after the death of the intestate, that is, as early as the 26th day of July, 1871, after which date more than eighteen years had elapsed before the commencement of this action.

Section 392 of the Code reads as follows: “For the purpose of computing the time within which an action must be commenced in a court of the State by an executor or administrator to recover personal property taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration, or to recover damages for taking, detaining or injuring personal property within the same period, the letters are deemed to have been issued within six years after the death of the testator or intestate.”

Prior to the enactment of this section of the Code the authorities in this State, following the case of Bucklin v. Ford (5 Barb., 393), held that the action could not be maintained until there is a person in being capable of suing.

As stated in Sanford v. Sanford (62 N. Y., 554), the term “ The cause of action includes not only the right proper, but the existence of a person by or against whom process can issue. A cause of action cannot accrue or exist unless there is a person in esse against whom an action can be brought and the right of action enforced.” There is ample authority, therefore, for the proposition that, prior to the enactment of section 392 of the Code, the statute of limitations commenced to run only from the grant of letters. It is insisted, however, that this section has produced a change, and under it the action is barred.

It remains, therefore, to consider whether the section applies to an action such as this brought by the representatives of a deceased within two years after letters were granted, but more than eighteen years after the six years from the death of the intestate, which is the period fixed by section 392 for the purpose of computing the time in cases falling within that section, as shown by the reviser’s notes. (See Throop’s Code, § 392) The purpose undoubtedly was of limiting the operation of the rule laid down in Bucklin v. Ford (supra). As therein said: “ It is well known that where there is no will, and the property left by a decedent is small in amount, tiie surviving relatives, especially in the rural districts, frequently distribute the effects by mutual agreement, without incurring the expense and trouble of procuring administration. Generally such distribution is made upon equitable principles, and the section is so framed as to save the few cases where the statute of limitations should not cure the irregularity.”

I think it reasonably free from doubt, upon reading the reviser’s notes and the language of the section itself, that while it is true that it limits the rule as laid down in the case of Bucklin v. Ford, it does not go to the extent of barring a right of action such as the •one here involved. The section has reference to actions, as its language clearly indicates, “ to recover personal property taken after the death of a testator or intestate, and before the issuing of letters testamentary.” Thus actions in regard to real estate and other actions, except to recover personal property, or to recover damages for its taking, are left in the same position as they were prior to the Code. The section evidently has reference to tangible personal property, which has been taken by some one after the death of a testator or intestate. We do not assent to the view that the surviving partners were trustees for the representatives of the deceased partner, and that, therefore, the statute would not apply.

In Williams v. Whedon (109 N. Y., 333) it was said that “ the surviving members of the firm become the legal owners of its assets by virtue of their survivorship. * * * The survivors do not take such assets as trustees.” However, it is unnecessary for us, in order to hold that section 392 does not apply, to conclude that the surviving partners are trustees. As we have already said, prior to the enactment of that section, under the authorities in this State, the time when the statute would commence to run would be determined by the grant of letters, and that inasmuch as “ the section referred to had reference only to actions to recover tangible personal property, or to recover damages for the taking thereof or injury thereto, it does not cover an action.like the present, brought by the representatives of a deceased person to obtain an accounting from the surviving partners, which in its nature is a chose in action. It should be noticed, moreover, that the answer here claims that the six years’ limitation applies; and inasmuch, even if the statute of limitations applied at all, as an action such as this would be covered by the ten years’ limitation, it was not properly pleaded..

The only remaining question relates to the amount paid to the daughter of the intestate, which it is insisted should have been allowed the defendants as a credit. The receipt of the $4,000 is admitted. The respondents insist that because the defendants denied any indebtedness, and asserted that the money was paid to the daughter as a gratuity, they should not now be allowed a credit therefor as a payment upon account of an 'indebtedness, which they denied. It seems to us, however, that the plaintiff should be held bound by the admission of payment which his own evidence contains. The testimony to the effect that certain moneys were to be paid to the daughter, on her marriage, was received for the purpose of showing that the defendants were discharging a legal obligation, and the plaintiff should be held to the position that these moneys wei’e so paid. In Ledyard v. Bull (119 N. Y., 62), Earl, J., says: “ After the death of his father, Henry E. Worthington undertook, with the assent of his sisters, the only next of kin, to administer upon his estate. He stated an account and distributed the balance, and each of his sisters took and had her share. Although all tbis was done without letters of administration upon his father’s estate, so far as it went it was binding upon the next of kin. They were the persons beneficially interested in the estate, and they could not take their respective shares in the estate, and then, through administration, claim and obtain a new distribution, and thus duplicate their shares. Iii the absence of creditors, an administrator is a mere trustee for the next of kin charged with the sole duty to collect, convert and distribute the estate among the beneficiaries according to their respective interests.”

We are of opinion, therefore, that the daughter having an interest in this estate to the extent of one-third, and having been paid $4,000 on account thereof, the same, together with interest thereon, should have been deducted from the amount of the recovery, and hereafter it may be charged by the administrator against the amount given to the said daughter. As so modified, we think the judgment should be affirmed, with costs.

Van Brunt, P. J., and Lawrence, «L, concurred in result.

Judgment modified as directed by opinion, and as modified affirmed, with costs.


text:
    In the Matter of the Application of the BOARD OF STREET OPENING AND IMPROVEMENT OF THE CITY OF NEW YORK to Acquire Title to Forest Avenue.

      Assessment — when it is inequitable — Sew York city consolidation act.

    It is provided by section 970 of the New York consolidation act (chap. 410 of 1882) that in opening any street or avenue, “when no buildings for which compensation can lawfully be made shall be taken, the assessment district shall not extend beyond the center line of the blocks adjacent thereto, nor beyond the ends of the street or avenue, or portions thereof, sought to be opened.”
    The commissioners of estimate and assessment in such a proceeding made awards of over ten thousand dollars. Of this sum one thousand dollars was an award for a building. They then assessed more than half of the total expenses of the proceeding upon a district beyond the center line of the adjacent blocks.

      Selcl, that the assessment was inequitable and should be set aside.

      Semble, that only the amount of the award for the building could be assessed upon the district beyond the center line of the adjacent blocks.

      Appeal by J Slater, an owner of property assessed, from an order, dated December 23, 1891, confirming a report of commissioners of estimate and assessment relative to the acquiring by the city of New York of the title’to land required for the purpose of opening Forest avenue from the southerly side of Home street to the northerly side of East One Hundred and Sixty-eighth street.

      Jolm O. /Shaw, for J. Slater, property owner, appellant.

      John P. Dunn, for the City of New York, respondent.
   Per Curiam :

By section 970 of chapter 410 of the Laws of 1882 it is provided that, in case of the opening of any street or avenue or' portions of any street or avenue in said city, when the street or avenue, or portions thereof, sought to be opened shall liave been laid down and shown upon any general map or plan made and filed in pursuance with any law of the State of New York relative to the mapping or planning of avenues in said city, where no buildings for which compensation can lawfully be made shall be taken, the assessment district shall not extend beyond the center line of the blocks adjacent thereto, nor beyond the ends of the street or avenue, or portions thereof, sought to be opened.

In the case at bar it appeared that the total awards by the commissioners amounted to the sum of over ten thousand dollars; of which about one thousand dollars was an award made for a building, and fifty dollars was an award made for a fence. This amount was distributed by the commissioners over all the property within the area of assessment; $4,776.65 was assessed upon property within half the block of the improvement upon either side; and the balance, $5,883.49, was assessed upon the property outside the half of the blocks on either side of the improvement.

This right to extend the limit of assessment was claimed by the commissioners because there was an award made for a building, and because of such award the limitations contained in the said section 970 of the said consolidation act do not apply. In other words, the commissioners having awarded $1,000 for a .building, they levy over four thousand dollars in addition to the cost of the building upon property which, if the building had not existed, would not have been within any possible limit of assessment.

¥e think this is an erroneous construction of the law. The legislature provided that, where no buildings for which compensation could lawfully be made should be taken, the assessment district should not extend beyond the center line of the blocks adjacent thereto, nor beyond the ends of the street or avenue or portions thereof sought to be opened. And this seems to us to have been a clear legislative restriction upon the power of commissioners to levy the assessment for the improvement, except such as might arise' from the taking of buildings beyond the limits named; and it was only when buildings for which compensation could lawfully be made should be taken that the assessment district was permitted to be extended ; and it was clearly the intention that it was only for the purpose of making compensation for those buildings that that was intended to be the limit of the extended assessment. Even if this were not the necessary construction to be placed upon the section in question, the method in which this assessment was levied was so manifestly unjust and out of harmony with the system upon which assessments of this kind should be levied that the report of the commissioners should not have been confirmed upon that ground.

It is apparent that the theory upon which these assessments are levied is, that the adjacent property shall pay for the land taken for the improvement, and that when buildings are taken then the area of assessment may extend beyond that limit, so as not to make the burden placed upon the land adjacent to the improvement too great or excessive. But in the case at bar, under the pretext of making an award for a building of $1,000, the property coming legitimately within the area of assessment is relieved of the burden to the extent of $4,000, out of a total assessment of $9,000, nearly one-half.

"We think, therefore, that the order confirming the assessment should be reversed and the proceedings remitted to the commissioners for revision and correction.

Present — Yan Brunt, P. J., O’Brien and Andrews, JJ.

Order reversed and proceedings remitted to commissioners for revision.


text:
    AARON LEVY, Respondent, v. JOHN BEACHAM, Appellant.

      Supplementa/ry proceedings — examination before the return of an execution — the affidavit must show a demand upon the debtor.

    Under section 2436 of the Code of Civil Procedure, providing that, in order to obtain an order requiring a judgment-debtor to be examined concerning his property in aid of an execution, the judgment-creditor must prove that the debtor has property which he unjustly refused to apply towards the satisfaction of the judgment, the affidavit upon which such an order is granted must state that a demand, that such an application be made, has been made upon the judgment-debtor, and in default thereof the affidavit is fatally defective.
    Appeal by tlie defendant John Beacham from an order of the Supreme Court, entered in the office of the clerk of the city and county of New York on the 18th day of March, 1892, denying a motion to vacate au order in supplementary proceedings.
    The affidavit upon which the order was granted failed to show that a demand had been made upon the defendant that he apply his property towards the satisfaction of the judgment.

      P. Q. Eckerson, for the appellant.

      J. Goldman, for the respondent.
   Per Curiam :

Without disposing of the other questions raised upon this appeal, as to the sufficiency of the affidavit, there is one respect in which it appears to be fatally defective and to require a reversal of the order.

Section 2436 of the Code requires that in order to obtain an order requiring the judgment-debtor to be examined, concerning his property in aid of the execution, the judgment-creditor must prove to the court that the judgment-debtor has property which he unjustly refuses to apply towards the satisfaction of the judgment. Such proof must show that a demand of the application of the property to the payment of the judgment has been made, otherwise no refusal can be established. This is the rule which has been laid down in the case of the First National Bank v. Wilson (13 Hun, 232), and Hutson v. Weld (38 id., 142).

The order should be reversed and the order for the examination dismissed, with costs.

Present — Yan Brunt, P. J., O’Brien and Andrews, JJ.

Order reversed and order for the examination dismissed, with costs.