text:
    The People of the State of New York, Respondent, v. Thomas O’Brien, Appellant.

      Infant witnesses in criminal cases — • Code of Criminal Procedure, § 392.
    'The effect of the evidence, under oath, of a child less than twelve years of age, when the court is of the opinion that the witness understands the nature of an oath, is not determined by the provisions of section 392 of the Code of Criminal Procedure, to the effect that when the court is of the opinion that a child under twelve years of age does not understand the nature of an oath it may take his evidence not on oath, but that no person shall be held or convicted upon such testimony unsupported by other evidence.
    When a child under twelve years of age is permitted to testify under oath in a criminal case, it becomes the duty of the jury to weigh the testimony, with the right to take into account, upon the question of its credibility, the age and intelligence of the witness.
    Appeal by tbe defendant, Thomas O’Brien, from a judgment of conviction of the Court of Sessions of the county of Albany, rendered on the 2d day of December, 1892.

      John Scanlon, for the appellant.

      James W. Eaton, District Attorney, for the respondent.
   Mayham, P. J.:

The defendant was convicted of the crime against nature, committed upon the body of a boy eleven years of age. On the 'trial the only direct evidence as to who perpetrated the offense was that ,of the boy upon whom it was inflicted.

On the day of the alleged crime the complainant and his brother ■eight years of age, in company with another boy ten years of age, were on a railroad track near a piece of woods, when, as they all testify, they met the defendant, wdio invited them to go with him to the woods to ride a pony, and gave them twenty-five cents to induce them to accompany him to the woods.

That he afterwards gave the complainant fifty cents more, and after enticing them som^ distance he caught hold of the complainant and dragged him towards a ravine, when .the other boys fled, and the defendant took complainant into the ditch and perjietrated the offense.

In addition to the testimony of this boy, proof of the corpus delicti was made by the father of the boy, who examined the person of the complainant.

Evidence was offered as to the conduct of the defendant at the time of his arrest, and of the identification of the defendant by these boys at that time in the presence of the officer. But the main contention of the defendant is that his identification as the perpetrator of this crime was established only by the testimony of the boy assaulted, who was under twelve years of age, and that the testimony of the other boys, who were still younger than the complainant, was not such a corroboration as is required by section 392 of the Code of Criminal Procedure.

At common lav/ the capacity of .a child to give evidence was determined by the trial court and the law did not fix a minimum in the age of the child as a test of his capacity to be sworn as a witness. That rested in the sound judicial discretion of the magistrate, but in no case could the child’s statement, not under oath, be received in evidence, and it was usual for the trial judge, by a preliminary examination of the child, to determine whether he had sufficient intelligence and culture to be bound in conscience and law by the obligation of an oath.

Section 392 of the Code of Criminal Procedure has changed that rule, and by that section, if the magistrate believes a child under twelve years of age ought not to be subject to the obligations of an oath, he may, nevertheless, take his evidence not on oath, but in such case the evidence so taken is not sufficient to convict, unless corroborated or supported by other evidence.

The language of the section is as follows: The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code. Whenever, in any criminal proceedings, a child actually or apparently under the age of twelve years offered as a witness, does not, in the opinion of the court or magistrate, understand the nature of an oath, the evidence of such child may be received, though not given under oath, if, in the opinion of the court or magistrate, such child is possessed of sufficient intelligence to justify the reception of the evidence. But no person shall he hdcl or convicted of cm offense upon such tesimnony unsupported Joy other evidence.”

' It is quite clear in this case that the witnesses offered were not such as, in the opinion of the judge, did not understand the nature of an oath, and hence their testimony was received under oath.

The testimony of these children having been properly received by the judge, under oath, it became the duty of the jury to weigh it, having the right to take into account, upon the question of its credibility, their age and intelligence, and upon that subject the learned judge in his charge went farther in guarding the rights of the defendant than was necessary when he instructed them that they must find in the evidence circumstances corroborating the testimony1 of these children before they could convict the defendant.

The jury having found the defendant guilty upon evidence which, we think, was legal and competent, and no error having been committed on the trial to the prejudice of the defendant, the judgment of conviction must be affirmed.

Putnam: and Herrick, JJ., concurred.

Judgment of conviction affirmed.


source: Caselaw Access Project

author: Mayham, P. J.:

license: Public Domain

text:
    Mary M. Stout, Respondent, v. Hiram W. Betts, Individually and as Executor and Trustee of Hiram Betts, Deceased, Appellant, Impleaded with Others.

      Surrogate’s decree, removing a trustee and appointing a successor— an appeal creates no stay —substitution of the successor as a party in a pending action.

    The provisions of sections 2576 and 2578 of the Code of Civil Procedure, in reference to staying the execution of a surrogate’s decree by an undertaking on appeal, do not apply to decrees removing testamentary trustees or executors; the execution of such decrees is not stayed by an appeal. (§ 2583, Code Civ. Proc.)
    An appeal, with an undertaking, from a surrogate’s decree removing a testamentary trustee and appointing a successor, does not stay the operation of such appointment of a successor or suspend the devolution of liability in reference to the trust fund upon the successor, so as to prevent the substitution, pending such appeal, of the successor trustee as a party defendant under section 756 of the Code of Civil Procedure, in the place of the original trustee in a pending action concerning the trust estate.
    Appeal by the defendant, Hiram W. Betts, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of Ulster county on the 5th day of July, 1893, “ granting a motion that Lewis Bouton, as administrator with the will annexed of Hiram Betts, deceased, be substituted as party defendant in the above-entitled action in the name, place and stead of Hiram ~W. Betts, as executor of the last will and testament of Hiram W. Betts, deceased, defendant in said action, pursuant to the provisions of section 756 of the Code of Civil Procedure.”
    The action was brought by a beneficiary under the will of Hiram Betts, deceased, to enforce her rights as cestui que trust in the testamentary trust fund, and to have a mortgage belonging to that fund declared a lien upon certain real estate.

      L. B. Treadwell, for the appellant.

      Franklin, Pierce, for the respondent.
   Mayham, P. J.:

The case shows that the appellant was named in the will of Hiram Betts as executor and trustee, and, on the probate of such will, he qualified and entered upon the duties of his trust; that on being-cited by respondent to account before the surrogate of Cortland county, he voluntarily rendered his account, and, on such accounting, the surrogate found, and by his decree adjudged, that the appellant had in his hands, as trustee, the sum of $2,159.62 belonging to the respondent as cestui que trust, pursuant to the terms of said will,, and that he had improvidently managed the trust committed to his-charge, and that he was unfit for the due execution of the trust, and that there was reason to believe that his financial condition hazarded the existence of the trust.

The surrogate also in his decree removed the appellant as testamentary trustee from his trust, and in the same decree appointed Lewis Bouton as trustee, with all the rights and duties with reference to said trust fund conferred upon the appellant under and in pursuance to the terms of such will and the letters testamentary issued to him thereon.

This decree was made and entered in the Surrogate’s Court on the 13th day of December, 1892,. and a copy served on Betts, the appellant, on the fourteenth of the same month. On the 13th of January, 1893, Betts, by his attorney, served on the attorney for the respondent herein a notice of appeal, in which he gives notice “ that Hiram "W. Betts, the accounting executor and trustee herein, hereby appeals,” etc.; this notice is signed L. B. Treadwell, attorney for Hiram W. Betts, executor,” etc.

No copy of an undertaking on appeal was served with the notice, •and no undertaking thereon was filed in the surrogate’s office of Cortland county until the 16th day of June, 1893.

On the 14th day of January the notice of appeal served by the •■appellant was returned to his attorney on the ground that no undertaking was filed and the notice of appeal was a nullity.

No leave of the court to file an undertaking on the 16th of June seems to have been obtained. The appeal on this motion is taken in the name of Hiram W. Betts individually, and is addressed to the •attorney for the plaintiff, and not served upon the trustee and administrator with the will annexed, on whose petition the ¡substitution was made.

This substitution is claimed to have been made under the provisions of section 756 of the Code of Civil Procedure on the theory that by the d'ecree of the surrogate a devolution of liability was cast upon Lewis Bouton by his appointment as trustee in the place of Hiram "W". Betts, removed, who was prosecuted originally in this ■action, and has been removed.

That section provides that In case of a transfer of interest, or ■devolution of liability, the action may be continued by or against the original party, unless the court directs the person to whom the interest is transferred, or upon whom the’ liability is devolved, to be substituted in the action, or joined with the original party, as the case requires.”

But it is insisted by the appellant that the appeal in this matter .suspended the operation of the surrogate’s decree, and that proceedings under it stayed all action on the part of Bouton, who was appointed successor of Hiram W. Betts, and in support of that contention the court is referred to sections 2576 and 2578 of the Code ■of Civil Procedure. But we think that an examination of those sections will show that they do not relate to decrees removing testamentary trustees or executors.

By section 2583 of the Code it is provided that An appeal from ' ;a decree revoking the probate of a will, or revoking letters testamentary, letters of administration or letters of guardianship, or from a decree or order suspending an executor, administrator or guardian, or removing or suspending a testamentary trustee * * * does, not stay the execution of the decree or order appealed from.”

The language of this section seems to embrace an appeal from a decree like the one from which this appeal is taken. If we are right in this conclusion then this appeal, even if regular, did not prevent the devolution of this trust property upon the successor of the deposed trustee, and Bouton, as such successor, would seem to be a proper person to be substituted as the defendant tor the purpose of protecting the trust fund, either as against the plaintiff in the action or his insolvent predecessor.

We are, therefore, of opinion that the order of substitution was correct and should be affirmed. '

Putnam and Herrick, JJ., concurred.

Order affirmed, with ten dollars costs, printing and other-disbursements.


author: .Mayham, P. J.:

text:
    George Patterson, Respondent, v. Joseph Hare, Appellant.

      Opening a judgment — allowing service of a supplemental complaint— Oode of Oivil Procedure, § 544 — review of the exercise of discretion.

    The opening of an interlocutory judgment in an action brought to dissolve a partnership and for an accounting, and permitting the plaintiff to serve a supplemental complaint, on the ground that the plaintiff was ignorant of the facts set. out in the proposed supplemental complaint, at the time the original complaint was served, is within the power conferred upon the court by section 544 of the-Code of Civil Procedure, and, where the facts justify the granting of such relief, a case is presented where the provisions of that section may be regarded as mandatory.
    The exercise by the Special Term, in a proper case, of its discretion in granting leave to serve a supplemental pleading, should not be interfered with by the General Term on appeal, unless the General Term can clearly see that there was an abuse of the exercise of discretion.
    Appeal by the defendant, Joseph Hare, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of Rensselaer county on the 6th day of June, 1893, opening an interlocutory judgment, and granting leave to the plaintiff to serve a supplemental complaint.
    The action was brought for the dissolution of a co-partnership and an accounting. The summons and complaint were served on the ■29th day of October, 1891. The answer was served on the 14th day of November, 1891. On the 21st day of January,. 1892, the action ■was referred to a referee to hear and determine all the issues.
    The action was submitted to the referee on the 4th day of October, 1892. On the 14th day of January, 1893, an order confirming the referee’s report, and directing tlie entry of an interlocutory judgment, was made, and on the 4th day of February, 1893, an interlocutory judgment was entered. The plaintiff moved at a Special Term, held on the 6th day of May, 1893, for an order granting him leave to serve a supplemental complaint. The motion was postponed by the court, and came on to be heard at a Special Term held on the 30th day of May, 189'3, when the motion was granted. From the order granting said motion, made and entered herein on •the 6th day of June, 1893, this appeal is taken.

      C. D. Hudson, for the appellant.

      Farrel & Finder, for the respondent.
   .Mayham, P. J.:

The relief granted on this motion was largely in the discretion of the Special Term at which the order was made, and the power of the court to grant such relief is not, and-cannot, we think, be questioned. (Code Civ. Proc. § 544.) The reason stated for the application for leave to serve a supplemental complaint in this case is one •of those given in this section, viz., that the plaintiff was ignorant of the facts, which are set out in the proposed supplemental complaint, at the time the original complaint was served. If this is a proper case for the granting of such relief, then it would seem to be one of ■the cases when the provisions of this section might be regarded as mandatory.

But whether this be so or not, there can be no doubt but that the • case is one in which the court may properly exercise its discretion in granting the order. Such discretion, when exercised in a proper case, should not be interfered with on appeal unless the appellate court can clearly see that there was an abuse of its exercise. Nothing of that kind appears in this case. The favor was properly granted on terms which appear reasonable. Nor do we think, under the facts appearing in this case, that the plaintiff was guilty of such laches as to deprive him of this relief.

The order should be affirmed, with ten dollars costs and printing ■disbursements.

Putnam, J., concurred; Herrick, J., not acting.

Order affirmed, with ten dollars costs and printing and other ■disbursements.


author: Herrick, J.:

text:
    Susan Greene, Appellant, v. Jay J. Miller, Respondent.

      Nonsuit ■— consideration to Toe given to plaintiff’s evidence.

    •On the question of dismissing a complaint, or of granting a motion for a non-suit, that view of the evidence must be taken which is most favorable to the plaintiff.
    If, in any view of the evidence, there are questions of fact which may be determined in favor of the plaintiff, and which, if determined in his favor, would entitle him to recover, the complaint should not be dismissed at the close of the plaintiffs case,
    ■On the trial by a referee, of an action brought by a woman to recover damages for a criminal assault alleged to have been committed by a physician while attending her professionally, the complaint was dismissed, on the defendant’s motion, at the close of the plaintiffs evidence.

      Held, that the evidence contained testimony on behalf of the plaintiff which, if found worthy of credit, entitled her to recover.
    Hence, that the case was not disposed of upon its merits, and that the dismissal of the complaint was erroneous.
    Appeal by the plaintiff, Susan Greene, from a judgment of the Supreme Court in favor of the defendant, entered in the office of ■the clerk of Montgomery county on the 28th day of June, 1893, mpon the report of a referee dismissing the plaintiff’s complaint.

      Edward J. Maxwell, for the appellant.

      W. B. Dunlap, for the respondent.
   Herrick, J.:

This is an appeal from a judgment entered upon the report of a referee dismissing the plaintiff’s complaint.

The plaintiff is a married woman, and brings this action against the defendant, who is a doctor, for an alleged criminal assault made upon her while attending her professionally.

At the close of the plaintiff’s evidence a motion was made to dismiss the complaint, which was granted. No requests to find on either matters of fact or law appear to have been made by either side.

On the question of dismissing a complaint, or of granting a motion for a nonsuit, that aspect of the evidence which is most favorable to the plaintiff must be taken.

If, in any view of the evidence, there are questions of fact which might have been determined for the plaintiff, and which, if determined in her favor, would entitle her to recover, the complaint should not be dismissed. (Pratt v. D. H. M. F. Ins. Co., 130 N. Y. 206.)

Within these rules as to the consideration of evidence, there was testimony given upon the trial in behalf of the plaintiff, which, if found to be worthy of credit, it seems to me, entitled her to recover in this action.

The defendant was in attendance upon the plaintiff professionally, visited her several times, and on the day in question came to her room and committed the assault; it is claimed that she consented to-it, but in one portion of her testimony she testifies as follows : “ I tried to scream, but I was so hoarse I could not. I could not make a noise. I was too weak to make any resistance. No other person was in the room during this interview.” If this is true, then there was no consent by her.

It may very well be that this testimony, when considered with all the testimony in the case, and with that given by her upon her cross-examination, is not to be believed, but that question is one which must be decided upon a consideration of the whole case upon its merits; upon a motion for a nonsuit or a motion to dismiss the complaint, it. seems to me it must be taken as true, and if true that an assault was committed upon her, she is entitled to recover.

The case was, therefore, not disposed of upon its merits, as held. in Smith v. Pelott (44 N. Y. St. Repr. 242); Forbes v. Chichester (125 N. Y. 769).

The judgment should be reversed, the referee discharged and a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concurred.

Judgment reversed and a new trial granted, costs to abide the event.


text:
    George A. Cunningham, Appellant, v. Alexander Whitford and Others, Defendants; Sarah E. Whitford and Others, Appellants, and W. Irving Jennings and Others, as Executors, etc., of David M. Hamilton, Deceased, Respondents.

      Testimony as to a personal transaction with a decedent — Code of Civil Procedure, § 829 — mortgage upon a testator’s land, made by a devisee — prior lien of the testator’s debts and legacies.

    To disqualify a witness, under section 829 of tlie Code of Civil Procedure, from testifying to a personal transaction with a decedent, he must not only be a party to the action, hut the testimony sought from him must be “in his own behalf or interest.”
    In an action brought by a simple contract creditor of a testator against the devisee of the testator’s real estate, charged with the payment of legacies, and the personal representatives of a deceased mortgagee to whom the devisee had executed his bond and a mortgage upon the devised real estate (to which action the legatees and other creditors of the testator were made parties), to have the devised real estate applied to the payment of the testator’s debts and legacies in preference to the mortgage, the plaintiff sought to prove by the defendant devisee, called as a witness for the plaintiff, that at the time of the execution of the mortgage in question the witness told the mortgagee of all the testator’s debts and legacies.

      Held, that the witness was- not disqualified under section 829 of the Code of Civil Procedure from giving the testimony offered, as against the personal representatives of the deceased mortgagee, sinee it was apparent that the testimony sought from him was not in his own behalf or interest.
    One who, before the expiration of the three years from a testator’s death in which creditors may apply to the surrogate, under section 2750 of the Code of Civil Procedure, to charge the testator’s real estate with the payment of simple contract debts, takes a mortgage upon the testator’s real estate from a devisee who claims no title except through the testator’s will, cannot he treated as a bona

      fide incumbrancer or purchaser so as to give his lien upon the premises priority-over the claims of such creditors of the testator.

      Quaere, whether in such a case it is material to prove knowledge by the mortgagee of the fact of the testator’s indebtedness.
    When, by the terms of a will through which alone a devisee claims title, which the devisee takes only upon the condition of -paying legacies charged thereon, a mortgagee who takes a mortgage on the devised land from the devisee acquires thereby no priority over the legatees.
    Appeals by the plaintiff, George A. Cunningham, and by the .defendants, Sarali E. Whitford and others, being the creditors of Daniel Whitford, deceased, and the legatees named in his will, from a judgment of the Supreme Court, entered in the office of the clerk of Greene county on the 21st day of April, 1893, upon a decision of the court, rendered after a trial by the court without a jury at the Greene Circuit, directing the payment of a mortgage given by Alexander Whitford to David M. Hamilton on land devised to Whitford in such will, and adjudging the same a prior lien upon such land to the bequests in the will and the debts of the testator.

      J. A. Griswold, for the plaintiff (appellant).

      A. C. Grisioold, for defendants (appellants).

      Emory A. Chase, for defendants (respondents).
   Mayham, P. J.:

The case discloses the fact that Daniel Whitford died May 20, 1888, the owner of a farm, and leaving a will, whereby he bequeathed to three of his children $300 each, and to two grandchildren each $100.

In and by said will he devised his farm to his son, Alexander Whitford, by the following provisions :

Third. I give, devise and bequeath unto my beloved son, Alexander Whitford, all the rest, residue and remainder of my estate, both real and personal, of what nature or kind soever, to have and to hold the same to him, his heirs and assigns forever, on the condition and proviso that he pay to the above-named legatees, respectively, the legacies herein given, within four years after my decease, without interest, and the real estate so devised to my son, Alexander Whitford, is charged with the payment of the same.”

The testator, also, in his will nominated Alexander Whitford as sole executor. The will was duly proved and admitted to probate on the 25th day of ¿Tune, 1888, as a will of real and personal estate, and letters testamentary were duly issued to the executor named therein, who duly qualified as such executor, and thereupon took possession of the real estate of which the testator died seized as ■devisee under the will.

One of the legacies in the will has been paid by the executor and devisee of the testator’s real estate.

The trial judge finds that the testator, at the time of his death, owed debts, not secured by mortgage, to five persons, amounting in the aggregate, without interest, to $3,024.59, which are still unpaid, and that there are four unpaid legacies amounting, without interest, in the aggregate to $1,046.97.

This action is prosecuted by a creditor of the testator upon a simple contract debt to reach the estate of the deceased in the hands of the legatees, devisees or heirs of the deceased, under the provisions of section 1834 of the Code of Civil Procedure. The case shows that on the 1st day of April, 1890, the defendant Whitford, the devisee of the real estate under the will of the testator, executed and delivered to David M. Hamilton a mortgage on the real estate devised to him for $2,200, to secure a loan of that amount at that time made to him. The mortgagee having died before the commencement of this action, his personal representatives are made defendants in this action and are the respondents on this appeal.

The only question of fact litigated on the trial, and in dispute on this appeal, is as to whether David M. Hamilton took and accepted the bond and mortgage from Alexander Whitford in good faith, and without notice of the debts óf the testator, above referred to.

Upon this subject the mortgagor, Alexander Whitford, who was called as a witness for the plaintiff, was, on plaintiff’s behalf, asked this question: “ Q. Did you tell David M. Hamilton, now deceased, about the debts of the estate, and in favor of the creditors?” This question was objected to by respondents, on the ground that it involved a personal transaction- between the witness and deceased, and was, therefore, inadmissible, under section 829 of the Code of Civil Procedure ; and the objection was sustained and the plaintiff duly excepted.

“ By plaintiff’s counsel.— The plaintiff offers to prove by the witness that at the time of the execution of the bond and mortgage executed by witness to David M. Hamilton, the mortgagee, the witness told the mortgagee of all the debts of the testator and the legacies in the will. [Counsel for Parker, Jennings and Hamilton objects to the offer on the same grounds last above. Objection sustained by the court, to which plaintiff excepted.] ”

Counsel for the legatees and other creditors named as defendants on their behalf repeated the same cpiestion and offer, to which the counsel for the personal representatives of Hamilton made a similar objection, which was in like manner sustained by the court and like exceptions were taken.

The attorneys for the respondents, on the behalf of the personal representatives of the mortgagee, called a witness, and proved a conversation between Hamilton, the mortgagee, and Whitford, the mortgagor, at the time of making and accepting the mortgage, to the effect that the mortgaged property was unincumbered except by an $800 mortgage.

The counsel for the plaintiff farther inquired into that conversation, and Alexander Whitford, who was recalled by plaintiff, testified: u I remember the occasion I was at Mr. Bronk’s office with David M. Hamilton. At the time spoken of by Mr. Bronlc as a witness here I was present; I heard Mr. Bronk testify. Q. Now, what was said between you and David M. Hamilton about liens and claims on the property? [Objected to by counsel for defendants Parker, Jennings and Hamilton, as a jjersonal communication, transaction between the witness and a deceased party in which he is interested and a party in this action, and otherwise objected to as incompetent under section 829 of the Code. Objection sustained by the court, and exception by the jilaintiff and defendants, except the executors of Hamilton.] ”

It is now insisted by the learned counsel for the appellants, both plaintiff and defendant, that the exclusion of this evidence was error.

There can be no question as to the fact that this offer bore directly upon the question of knowledge in the mortgagee of the existence of these debts. But was the witness by whom it was sought to be proved competent to give evidence upon the subject ?

The provision of the Code invoked by the respondents provides that “ A party or persons interested in the event * * * shall not be examined as a witness in liis own behalf or interest * * * against an executor * * * concerning a personal transaction or communication between the witness and the deceased person,” etc.

The witness in this case was not called as a witness in his own behalf. He was called by an adverse party who was seeking to establish a liability against him. Nor do we see how it can be maintained that he was called in -liis ovni behalf.

He was liable on the covenants in his bond to Hamilton for the full amount of his mortgage, and if the debts of testator were first to be paid out of this real estate, that fund would be so diminished as to increase his probable chances of liability on his bond.

It is urged, on the other hand, that if the debts of testator are left to stand behind the mortgage his liability on them may be increased; but if, as we shall see, he fails to perfect his title under the will, by neglecting to comply with its conditions, then the real estate devised to him would be the primary fund for the payment of the legacies out of which they would be paid, and to that extent his interest in the real estate would be diminished; so that it is difficult to see how he could promote his own interest by his testimony.

It is true lie is a party to the action, but that alone does not disqualify him from being a witness, unless coupled with some of the elements of disqualification specified in section 829 of the Code. The disqualification created by that section is where the witness testifies in his “own behalf or interest.” (Carpenter v. Soule, 88 N. Y. 251.) "We do not see that the testimony offered comes within that prohibition, and think its exclusion error.

If it was material in this case to show knowledge of the testator’s indebtedness, then the rejection of this evidence was to the prejudice of the appellants, and should furnish reason for reversal. The respondent’s mortgage was executed in less than two years after the proof of testator’s will, and within two years from the time of testator’s death.

There could, therefore, at the time of the taking of such mortgage, be no legal presumption that the simple contract debts of the testator had all been paid, as the three years within which such creditors might apply to the surrogate under section 2750 cf the Code for proceedings to charge the real estate with the payment of such debts had not expired.

In Platt v. Platt (105 N. Y. 488) the court say : “ During three years after his (testator’s) death his creditors have a kind of statutory lien upon the real estate left by him, and such x-eal estate cannot be so aliened by his heirs or devisees during that time as to defeat the claims of creditors thereon.” (Citing 2 R. S. 100 et seq.; Code, §§ 2749 et seq.)

It is true that after the expiration of the three years from testator’s death this presumption of the existence of a lien ceases. (Covell v. Wetson, 20 Johns. 414; Hyde v. Tanner, 1 Barb. 75; Wilson v. Wilson, 13 id. 252.)

Under these circumstances, it cannot, I think, be held that, at the time Hamilton took this mortgage from a devisee under the will, who claimed no title excejit under it, he could be treated as a bona fide incumbrancer or purchaser so as to give his lien upon these premises priority over the claims of creditors of the deceased devisor whose liens were in force upon this land at the time he took the mortgage.

The creditors of the deceased at that time owed him no duty, and as he is presumed to have known the law relating to the rights of creditors of a decedent, he, and not they, if either, must suffer by his neglect.

The counsel for the creditors requested the court to find and decide that the creditors of the estate be paid out of the proceeds of the sale of the real estate prior to the bond and mortgage. The refusal of the court so to find, we think for the reasons above stated, was error.

The devisee under the will took the land only uj>ori the condition of payment of the legacies. As the will was his only source of title the payment of the legacies was a condition precedent to the vesting of the title in him, and in addition to that the payment of the legacies was expressly charged on the real estate devised.

It seems to require no argument or citation of authorities to sustain the conclusion that the mortgagee under such circumstances cannot claim under his mortgage, taken from the devisee, priority over the legatees.

"We think the learned judge erred in his conclusion, and that the judgment should be reversed.

Putnam, J., concurred ; Herrick, J., concurred in the result. _

Judgment reversed, a new trial granted, costs to abide the event.


text:
    Charles F. Tallman and James P. Howe, Appellants, v. William H. Kimball, Respondent.

      Principal and agent — ratification in part — ■proof of similar transactions between the agent and third parties — contradiction of a toitness.

    The ratification by a principal of a portion of the acts of his agent bind him as to all the acts of the agent in the same general business.
    A principal cannot ratify just so much as he pleases of the unauthorized acts of one assuming to act for him and reject the rest of such acts ; he must affirm oiré ject in toto.

    When the owner of a building has adopted and paid for the labor performed and some of the material procured and used by a mechanic upon the building without his previous authority, he will render himself liable to pay a third party for the rest of the materials bought by the mechanic in the same manner as those thus paid for, and used in his building for his benefit.
    In an action brought against the owner of a building to recover payment for goods procured from the plaintiffs by a mechanic and used in the defendant’s building, without previous authority from the defendant, the defendant cannot, where there is no issue of fraud, be allowed to prove similar transactions between the mechanic and other persons not connected witli the work in suit.
    A party cannot contradict a witness upon collateral or irrelevant matter into which he has himself inquired.
    Appeal by the plaintiffs, Charles F. Tallman and James P. Howe, from a judgment of the County Court of St. Lawrence county, entered in the office of the clerk of that county on the 20th day of January, 1893, affirming a judgment of a Justice’s Court in favor of the defendant.
    The action was brought in a Justice’s Court to recover for goods alleged to have been sold and delivered for the defendant’s benefit and at his request. The defendant pleaded a general denial.
    The evidence given on the trial before the justice showed that the plaintiffs, who were hardware merchants, sold and delivered the goods in suit, consisting- of nails and other building hardware, to one Thomas Mahoney, a carpenter, and at Mahoney’s request charged them to the defendant. Mahoney testified that he was employed by a Mrs. Bichardson and one James Spears to repair a house which belonged to defendant; that the defendant did not ask him to do the work, but that he told the defendant that he was about to do it, and was authorized by him to get the necessary materials. The defendant contradicted this story, denied that he ever gave Mahoney authority to buy anything and have it charged to him, testified that he never knew of the purchase of the materials, that he did not know Mahoney was doing the work until it was finished, and that he then paid him for both work and materials, as he supposed.
    The justice dismissed the complaint, with costs. On appeal to the County Court his judgment was affirmed.

      Keeler & Russell, for the appellants.

      Nelson L. Robinson, for the respondent.
   Mayham, P. J.:

Two grounds are relied upon by the appellants for the reversal of the judgment on this appeal.

First, that the acts of the mechanic who did the work and purchased the materials, although not authorized in advance by the defendant, were in all respects adopted and ratified by him, except as to the plaintiff’s claim, after the work was done and the materials were furnished, and that such ratification was equivalent to an original authority from the defendant.

The fact that the mechanic did the work and furnished materials without the direction of the defendant, and that defendant after-wards paid the bills, is proved and not disputed by the defendant, but he swears that he gave the mechanic no authority to buy these goods of plaintiff. A precedent authority was not necessary to bind the defendant, provided he subsequently ratified the act of the person assuming to act as his agent, and a ratification by the principal of a portion of the acts of the agent bind him as to all the acts of such agent in the same general business. (Commercial Bank v. Warren, 15 N. Y. 580; Hermans v. Clarkson, 64 id. 173; Hayes v. Kedzie, 11 Hun, 581; Lawrence v. Taylor, 5 Hill, 113.)

He cannot ratify just so much as he pleases of the unauthorized acts of one assuming to act for liim, and reject the rest of his acts. He must affirm or reject in toto. (Fowler v. N. Y. Gold Exchange Bank, 67 N. Y. 143.)

The defendant having adopted some of the acts, and paid for the labor performed and some of the materials furnished by the mechanic upon his building, and the goods purchased of the plaintiffs having been bought by the mechanic in the same maimer as those for which the defendant paid, and having gone into his building and been used for his benefit, we think a legal obligation exists against him to pay for the same.

The second point raised by the appellants is that the justice erred in allowing the defendant to prove transactions between this mechanic and other persons not connected with this work, and in allowing him to be contradicted in relation to his evidence on this point.

Such eifidence is not allowable on the ground that the transactions are similar to those arising in this case. There is no issue of fraud in this case, and it is only where criminal or fraudulent acts are under investigation that this class of evidence has been admitted. (Olmsted v. Hotailing, 1 Hill, 317.)

Nor was it competent to ask questions of the witness of this irrelevant character for the purpose of laying the foundation for evidence contradicting the witness. A party is not permitted to contradict a witness upon collateral or irrelevant matter into which he has himself inquired.

For the reasons above stated, the judgment of the County Court and that of the justice must he reversed.

Herrick, J., concurred.

Judgment reversed, with costs of this appeal and in the County Court.


author:
Mayham, P. J.:
      Stover, J.:

text:
    The People of the State of New York ex rel. Mark L. Sheldon, Respondent, v. Walter Fraser and Others, Assessors of the Town of Salem in the County of Washington, Appellants.

      Assessment for tarnation ■ — review by eertiora/i'i — inequality in the assessment of bank stock — assessment stricken from the roll when not legally amendable.

    An assessment for taxation which, undertakes to rate bank stock held by one person higher than the same stock held by his neighbors is illegal.
    On a proceeding by certiorari to review a tax assessment, under chapter 269 of the Laws of 1880, which empowers the court to strike an assessment from the roll, or td correct it, the court will strike out the assessment, and not order it to be corrected, whore, in order to rectify their original mistake, the assessors would be required to do an illegal act.
    On a proceeding by certiorari to review an assessment by which the relator’s stock in a National bank was rated higher than the same stock held by others, it appeared that in order to make the relator’s assessment conform to (hat of the other taxpayers the assessors would have to rate the relator’s stock below par instead of at its full value, as required by law.

      Held, that the court could not require the assessors to make stich an unlawful correction, but must strike the relator’s assessment from the roll as illegal.
    Appeal by Walter Fraser and others, assessors of the town of Salem in the county of Washington, from a judgment of the Supreme Court, rendered at Special Term and entered in the office of the clerk of Washington county on the 26th day of December, 1892, striking from the assessment roll of the town of Salem an assessment made by the assessors against the relator’s personal property.

      F. Fraser and L. Fraser, for the appellants.

      James Gibson, for the respondent.
   Mayham, P. J.:

The judgment or order in this case should be affirmed on opinion of the court at Special Term.

Judgment affirmed, with costs of this appeal, in favor of the respondent against the town of Salem.

Putnam and Herrick, JJ., concurred.

Order affirmed, with costs against town.

The opinion rendered at Special Term is as follows:

Stover, J.:

This is a proceeding by certiorari, under chapter 269 of the Law® of 1880.

The relator was the owner of shares of the capital stock of a National bank, doing business in the town of Salem. The testimony shows that the assessors assessed the property of the town at sixty per cent of its actual value. In making the assessment upon, the National bank, of which the relator is a stockholder, the stock was assessed at sixty per cent of its par value. After the roll had been made, and on the day on which grievances were to be heard,, the relator appeared and objected to his assessment, and claimed a reduction on account of indebtedness. His evidence was taken, and the proof shows that the assessors, while conceding that he was indebted to the amount which he testified, and which amount was greater than the amount of his assessment, determined that they had not assessed his bank stock upon a proper basis, but that they should have assessed it at fifty per cent above par, instead of par, and, therefore, refused to reduce the assessment. As to the other stockholders of the bank, the assessment was left at sixty per cent of the par value. It will thus be seen that the relator’s stock is assessed at least fifty per cent higher than the stock of other shareholders in the same bank. It is conceded on this motion that the assessors thought they had a right to assess at sixty per cent below the actual value, until they came to pass upon the - objections of the relator, and, at that time, they discovered that the law required them to assess at full value, and they thereupon determined that the full value of the; relator’s bank stock was fifty per cent above its par value, and, therefore, making a deduction for his indebtedness from this-increased amount, would leave the assessment at about the amount originally assessed, which was sixty per cent of the par value. I do not see how, under the well-known rules governing assessments, this, assessment can be allowed to stand. The law requires of assessors an intelligent and fair exercise of the powers conferred upon them, and it does not permit them to assess arbitrarily, but requires that, when making their assessments, they shall adopt some basis which, will, as nearly as possible, equalize the burdens of taxation. "While no system of taxation will so operate as to exactly apportion the burden, yet the assessors must proceed in such a manner that, a® nearly as practicable, such result can be obtained. It cannot be said tliat an assessment which undertakes to rate the bank stock of one person fifty per cent higher than the same stock held by his neighbor, is either fair, just or legal.

The statute gives the court power to strike the assessment from the roll, or order a reassessment, or to correct the assessment, etc. I do not see how I can correct this assessment. It is clear that the assessment roll, as Completed, is based upon an estimate of sixty per cent of the actual value of the property. In other words, the assessment is forty per cent below the actual value of the personal property of the, town.

In order to make the assessment of the relator conform to that of the other taxpayers, I would have to direct the assessors to assess him at sixty per cent of the par value of his bank stock. In other words, I should have to direct the assessors to do an unlawful act, and the affidavit of the assessors would have to be that they had assessed at the full value. I do not think that the court has power to do this. I cannot compel the assessors to do an unlawful act to rectify their former mistakes.

The assessment must be stricken from the roll as illegal, with costs to the relator.


author: Matham, P. J.:

text:
    S. Walter Scott, Appellant, v. The Sun Printing and Publishing Association, Respondent.

      Libel — amount of the verdict — its reduction by the court, on the ground that the damages an'e excessive.

    When, on a motion hy a defendant to set aside a verdict for the damages occasioned hy a tort, the trial court allows the verdict to stand reduced in amount, such action is equivalent to holding that the plaintiff is entitled to recover upon the case as proved, hut that the verdict is excessive in amount.
    On appeal hy the plaintiff from an order setting aside such a verdict, unless he stipulate to reduce its amount, the only question that can properly he considered is whether the verdict should he set aside or modified as excessive.
    In actions for torts, as, e. g., an action for lihel, the judgment of the jury and not that of the court must fix the amount of recovery, subject only to the qualification that when the damages found hy the jury are flagrantly outrageous and extravagant, so as to evince intemperate passion, partiality or corruption ■on the part of the jury, the court may interfere, hy setting aside the verdict altogether or by directing the plaintiff to stipulate to take a less sum as a condition of retaining his recovery.
    While the policy of reducing the amount of a verdict, instead of setting-it aside absolutely, in a case calling for the interference of the court on the ground of excessive damages, may be questionable, the power of the court to do so is well established.
    In an action brought by a physician to recover damages for the publication of a libelous article tending to charge him with being an accessory to the crime of murder, with the crime of perjury and with unprofessional conduct, the plaintiff recovered a verdict for $10,000. The trial court ordered that the verdict, be set aside and a new trial be had, unless the plaintiff should stipulate to reduce the verdict to $4,000.

      Held, that the court was not warranted in interfering with the amount of the verdict as rendered.
    Appeal by tlie plaintiff, S. Walter Scott, from an order , made at tbe Washington Circuit and entered in the office of the clerk of Washington county on the 7th day of September, 1892, directing that a verdict for $10,000, recovered by the plaintiff, be set aside and a new trial be granted, unless the plaintiff should stipulate to-reduce the verdict to the sum of $1,000.
    The order appealed from was granted upon a motion by the defendant that the verdict be set aside and for a new trial, made upon the minutes, upon 'the exceptions taken during the trial and upon the ground that the damages awarded were excessive.
    The action was brought by a practicing physician to recover damages for an alleged libel published by the defendant in The Evening Sun, a newspaper owned and issued by the defendant in the city of New York.
    The article complained of was as follows :
    “Maggie Horrigan’s Murder.
    “ Revelations by Dr. Scott which may clear up the mystery.
    “ Saratoga, N. Y., Dec. 30. — The mystery of the death of Maggie Horrigan, whose body was found in a pool between Greenwich and Middle Falls, Oct. 26th last, is about to be solved. The reward of $1,000 offered by the county and $500 by St. Peter’s Church has-brought out a statement from Dr. Scott, which if it does not explain the exact cause of her death reveals the probable manner of it.
    “ The statement will lead to the arrest and trial of certain parties, and make known the fuller criminal facts.

      “ The statement made by Dr. Scott is to the effect that he was ■called professionally to attend Maggie the night she was killed; that the girl was in a field in the custody of three men ; that he was told that she was insensible from having fallen and struck her head on a .stone; that he remained until she appeared to be dead. He told the men they were in a bad scrape and must do what they thought best with the dead girl, and went away.
    “ The men, to give the impression of suicide, carried ihe insensible but still living girl a long distance through the fields and placed her in the pool where she was found the next day.
    “ The man who secured the attendance of Dr. Scott is said to be Howard Bailey, son of the cashier of the Greenwich bank, and who has disappeared. The other two men were strangers.

      “ Dr. Scott conducted the first autopsy of the dead girl, examined ■all the internal organs, but made no examination of her head, and ■testified on the inquest his positive conviction that death was caused by drowning.

      “ A subsequent autopsy, at which he was not present, disclosed .the wound on the head, and which was the real cause of her death.
    “ The facts known to Dr. Scott at the time of the inquest before the coroner,, and when he gave his own testimony, are only now ■made public, in order to secure immunity from punishment and the ■rewards of money offered.
    iCAll the revolting and terrible features of the case are only ¡aggravated by the real facts as they become known. It is claimed that a message from the spirit of Maggie Horrigan through a i writing medium ’ contains a full story of the crime, and had much to •do with influencing the statements which have been made in the case.”

      C. C. Van, Kirk, for the appellant.

      Franklin Bartlett, for the respondent.
   Matham, P. J.:

The only question that can be properly considered on this appeal je as to whether this verdict should be set aside or modified as excessive.

That seems to be conceded by counsel on both sides, and is the logical result of the order appealed from.

If tlie learned judge had felt called upon to interfere with the verdict for errors and exceptions on the trial, he would have set aside the verdict i/n toto, as he would have had an undoubted right to do, for such errors.

Allowing the verdict to stand reduced in amount is equivalent to holding that the plaintiff is entitled upon the case proved to recover, but that the verdict was excessive in amount.

Was the verdict within the rules of law governing such questions excessive to such a degree as to authorize the court, for that reason, to set it aside or reduce it ?

In actions for torts, when the damages are necessarily unliquidated, the judgment of the jury and not that of the court must fix the amount of recovery, subject only to the qualification, that when the damages found by the jury are flagrantly outrageous and extravagant, so as to evince intemperate passion, partiality or corruption on the part of the jury, the court may interfere by setting aside the verdict altogether, or by directing the plaintiff to stipulate to take a less sum as a condition of retaining his recovery.

We are not aware that this rule has ever been departed from in this State, and it has the sanction of the Federal courts and the highest judicial authority in England.

This rule has been recently reaffirmed in this court.

In Stephens v. The Hudson Valley Knitting Co. (48 N. Y. St. Repr. 814) Herrick, J., says: “ In actions for damages for torts it is the well-established law of this State that verdicts of juries will not be set aside for excessiveness unless the amount is so great as manifestly to show that the jury must have been actuated by passion, partiality, prejudice or corruption.” (Citing Coleman v. Southwick, 9 Johns. 45; Gale v. N. Y. C. & H. R. R. R. Co., 13 Hun, 1; 53 How. 395; Minick v. City of Troy, 19 Hun, 253; Whiteman v. Leslie, 54 How. 495; Collins v. A. & S. R. R. Co., 12 Barb. 492.) And he adds : “ The case is one of that kind where, if the plaintiff is entitled to recover at all, it is peculiarly the province of the jury to say how much. * * * The question of damages in such cases is one which it is the special duty of the jury to determine, and while the court may reduce a verdict, it seems to me that ordinarily, if the court thinks the verdict is so large as to indicate that the jury was actuated by improper motives, it is better to set the verdict entirely aside and have another jury pass upon it rather than determine itself what the verdict should be, and thus assume and exercise the functions of a jury.”

While the policy of the reduction of the amount of a verdict by the court is, we think, properly questioned by the learned judge, its power to do so is conceded and seems to be established on authority (Holmes v. Jones, 121 N. Y. 461), yet the exercise of the power to interfere with a verdict on the ground that it is excessive, is confined to cases of manifest misconduct or impropriety on the part of the jury, as evidenced by the excessive and unreasonable amount of the verdict.

This rule was adopted in this State as early as the case of Tillotson v. Cheethan (2 Johns. 60), when the court said: “We cannot interfere on account of the damages. A case must be very gross and the recovery enormous to justify our interposition on a mere question of damages in an action of slander.”

This language was quoted with approbation in Root v. King (7 Cow. 636) when the court refused to set aside or interfere with a verdict in an action for libel on the ground that it was excessive. In McConnell v. Hampton (12 Johns. 236) the court say: “To justify the granting a new trial the damages must be flagrantly outrageous and extravagant, evincing intemperance, passion, partiality or corruption on the part of the jury.”

Tested by these rules we cannot concur in the opinion of the learned trial judge in setting aside or reducing this verdict.

The jury was required to assess these damages, and while this court or the trial court might as an original question have fixed a lower measure of damages, in view of the gravity of this charge, we cannot say that the jury, in arriving at and pronouncing their verdict, have evidenced by it that they were influenced by any of the improper motives which would authorize this court, within the rules of law above referred to, to set aside this verdict.

The order of the Special Term must be reversed, with ten dollars costs and printing disbursements.

Putnam, J., concurred ; Herrick, J., not acting.

Order of Special Term reversed, with ten dollars costs and print- ■ ing and other disbursements.


text:
    The People of the State of New York ex rel. John Wesley Bishop and Wilbur F. Hill v. Zachariah Palen and George W. Beesmer.

      The excise commissioners’ test oath is unconstitutional — section 3 of chapter 163 of Taws of 1890.
    The requirement of section 3 of chapter 163 of the Laws of 1890, that every excise commissioner must make and file an oath that he is not interested in the manufacture or sale of intoxicating liquors, and that a failure so to do shall disqualify him from holding the office, is null and void, because repugnant to article 12 of the Constitution of the State of New York, which provides that no other oath, declaration or test, than the oath therein prescribed, shall be required as a qualification for any office of public trust.
    A hearing at General Term in the first instance, ordered by the court at the Ulster Circuit, on the 11th day of April, 1893, after directing of its own motion, pursuant to section 1185 of the Code of Civil Procedure, the rendition of a verdict for the defendants, subject to the opinion of the court at General Term.

      S. W. Rosendale and J. G. Van Etten, for the plaintiffs.

      Brinnier & Newcomb, for the defendants.
   Herrick, J.:

This is an appeal from a judgment entered upon the verdict of a jury rendered by direction of the court, subject to the opinion of the court at General Term, and ordered by the court to be heard in the first instance at General Term.

On the 3d day of March, 1891, the relator John Wesley Bishop was elected excise commissioner of the town of Olive, county of Ulster. He filed what purported to be his official oath and bond on the 11th day of March, 1891, but did not take or file the oath required by chapter 163 of the Laws of 1890 until the 9th day of April, 1892.

The relator Wilbur E. Hill was elected excise commissioner of the town of Olive, county of Ulster, on the 1st day of March, 1892, and on the 7th day of March, 1892, he filed with the town clerk papers purporting to be his official oath and bond, but did not take or file the oath required by said chapter 163 of the Laws of 1890 until the 8th day of April, 1892.

On the 16th day of April, 1892, the town board of .the said town of Olive declared the offices of excise commissioners, to which said relators had been elected, as before stated, to be vacant, for the reason that the relators had not filed the oath required by chapter 163 of the Laws of 1890, and thereafter proceeded to appoint the defendants, Zachariah Palen and George W. Beesmer, excise commissioners, to fill said vacancies; Palen and Beesmer thereafter and in due time took and filed the necessary oaths of office, including the one required by chapter 163 of the Laws of 1890, together with their official bonds, with the town clerk, and thereafter, with one Albert Elmendorp, the other excise commissioner of said town, met and organized as the excise board of said town and granted licenses as such board of excise, and received the money therefor. Thereafter this action was commenced asking for a judgment upon the right of the said John Wesley Bishop and Wilbur F. Hill to hold the office of excise commissioner of said town, and that the defendants be adjudged to have no just or legal right to hold, occupy or exercise the duties of said office of excise commissioner, and that the said defendants be ousted and excluded from the office of commissioner of excise of the town of Olive.

Section 1 of chapter 163 of the Laws of 1890 enacted that “It shall be .unlawful for any excise commissioner * * * in the several villages, towns and cities of this State, to be, either directly or indirectly, interested in the manufacture or sale of spirituous or malt liquors, ales, wines or beer.” Section 3 of the same act provides that “Every excise commissioner * * * in the several villages and cities of this State shall, within thirty days after the passage of this act, make and subscribe an oath * * * to the effect that lie is neither directly or indirectly interested in the manufacture or sale of any spirituous or malt liquors, ales, wine or beer, and such of the above-named officers as are hereafter elected or appointed shall make and subscribe such oath and file the same -x- -x- * ^ clerk’s office of the town or village or with the police department of a city,” and it further provides that the “ failure to take the oath * * * shall disqualify any one from holding, or debar any one from continuing to hold, any office or position mentioned in this act.”

. Section 51 of chapter 569 of the Laws of 1890 provides that “ Every person elected or appointed to any town office, except justice of the peace, shall, before he enters on the duties of his office, and within ten days after he shall be notified of his election or appointment, talce and subscribe, before some officer authorized by law to administer oaths in his county, the constitutional oath of office, and such other oath as may be required by law, which shall be administered and certified by the officer taking the same, without reward, and shall within eight days be filed in the office of the town clerk, which shall be deemed an acceptance of the office; and a neglect or omission to take and file such oath, or a neglect to execute and file, within the time required by law, any official bond or undertaking, shall be deemed a refusal to serve, and the office may be filled as in case of vacancy.”

The relators, it appears from the case, were ignorant of the requirement of chapter 163 until about the time they took the oath thereby required and filed the same in the town clerk’s office. It will be seen, from what I have stated in regard to the requirement of said chapter 163 and from section 51 of chapter 569 herein set forth, that the relators come squarely witliiu the provisions of these two statutes, and by their failure to take and file the oath provided for in chapter 163 of the Laws of 1890, as therein set forth, and as provided for in chapter 569 of the Laws of 1890, they were disqualified and debarred from holding the office of excise commissioner, provided the law requiring such oath to be taken and filed was one that the Legislature had power to pass.

That portion of chapter 163 of the Laws of 1890, which provides for taking and filing the oath, to the effect that the person so taking and filing it has not been engaged, either directly or indirectly, in the manufacture or sale of intoxicating liquors, and disqualifying him from holding or continuing to hold office .unless he does take such oath, is challenged as repugnant to article 12 of the Constitution of the State of New York. That article, after prescribing the form of the oath to be taken by members of the Legislature and executive and judicial officers, except such inferior officers as shall be by law exempted, concludes with the following sentence: “ No other oath, declaration or test shall be required as a qualification for any office of public trust.” This last clause of the article does not prohibit the Legislature from prescribing qualifications as to fitness for office, but does prohibit requiring the candidate to take any oath or declaration as to such qualification or fitness ; it may undoubtedly prescribe tests by which the candidate’s fitness for the position aspired to may be demonstrated, and it may impose certain conditions as to experience or fitness, .as in requiring that the holder of certain offices shall be above the age of twenty-one years; that inspectors of election shall be able to read and write; that the holders of specific offices shall be civil engineers or attorneys and counselors at law; but it prohibits the requiring of any qualifications which are measured or determined by the oath or declaration of the candidate for office himself.

The article in question is a limitation upon the qualifications of office holders which may be imposed or required by the Legislature; it is an exclusion of anything in the nature of an oath except the one therein set forth. Some of the reasons that inspired the adoption of this clause of the Constitution in question are set forth in Rogers v. Common Council of the City of Buffalo (123 N. Y. 173).

To the reasons there set forth it may be added that the multiplying of oaths had become a great abuse, and the solemn and binding effect intended had been weakened by the number required ; the extremely conscientious were debarred from seeking or holding offices of public trust; and, in addition, it was obnoxious to the spirit of the common law to require a person to be a witness against himself in any matter that might lead to' the imposition of a fine, penalty or forfeiture. (Counselman v. Hitchcock, 142 U. S. 547, and cases cited.)

All these things doubtless inspired the framing of the clause referred to, and it should be strictly construed for the purpose of carrying into effect its undoubted spirit and intent.

Qualification in one sense means fitness for; in another the doing of some afet as a condition of taking or holding office.

Qualify. “ To make oath to any fact; to take the oath of office before entering upon its duties.” (Century Dictionary; see, also, "Worcester’s Dictionary.)

Qualification. “That which qualifies a person to render him admissible to or acceptable for a place, an office or employment.” (Century Dictionary; also, Rapalje & Lawrence Law Dictionary.)

The word is used in the Constitution in the sense of something to be done- before taking office, as a conditioii of holding it; in the sense of taking an oath of office, not in the sense of fitness.

That the oath prescribed by section 3 of chapter 163 of the Laws of 1890 is a requirement or qualification for holding office seems to me can admit of no discussion; the failure to take it disqualifies the person from holding, and prohibits him from continuing to hold, any of the offices mentioned in the act; it is something to be done by him before he can hold office.

The statute in question is a law that increases the number of oaths to be taken by office holders; it is a law compelling a person to be a witness against himself in a matter which may lead to a forfeiture ; it is a law requiring something to be done by the candidate as a condition of his holding office; it requires an additional qualification by him to that set forth in article 12 of the Constitution ; it requires an additional oath of office, and it seems to me very clearly to be not only a violation of the spirit and intent, but of the very letter of the Constitution, and, therefore, null and void. It follows that the relators were not required, as a condition of holding the office of excise commissioner, to take the oath therein provided for. The facts being undisputed and a verdict having been rendered subject to the opinion of the General Term, the judgment entered thereon should be reversed and judgment ordered as prayed for in the complaint of the plaintiffs. Let judgment be entered accordingly, with costs.

Math am, P. J., and Putnam, J., concurred.

Judgment reversed and judgment directed' for plaintiffs as demanded in their complaint, with costs.


text:
    In the Matter of the Claim of George Clark, Respondent, for Damages for the Taking and Appropriating of Lands by The Water Commissioners of Amsterdam, Appellants.

      StaUite of Limitations — exceptions thereto — pi’oceeclings under the Amsterdam Water Act.

    An exception to the Statute of Limitations, whether contained in the statute itself or in some other statute, must be expressly set forth in plain and unambiguous terms.
    Where rights or remedies are given, or procedure to protect rights and enforce remedies is provided by special statute, and no express limitation is therein specified as to the time within which such rights or remedies are to be enforced or such proceedings are to be instituted, it will be deemed to be the time prescribed in the general Statute of Limitations.
    The words “ at any time after,” in section 5 of the Amsterdam Water Act (Gimp. 101 of' Laws of 1881, as amended by chap. 197 of Laws of 1882), which provides that if the water commissioners fail to apply for the appointment of commissioners of assessment before taking lands, ‘ ‘ then at any time after the said commissioners shall take or use any such lands, * * * the owner of or party interested in such lands * * may, upon ten days’ notice, * * * apply to the court for the appointment of such commissioners,” do not create an exception to the general Statute of Limitations.
    A proceeding on the part of a landowner, under the said section, is subject to the six years’ general Statute of Limitations.
    Appeal by Tbe Water Commissioners of Amsterdam from an order of tbe Supreme Court, made at tbe Essex Special Term and entered in the office of tbe cleric of Fulton county on tbe 6th day of February, 1893, confirming, as modified, tbe award of the commissioners of appraisal herein.

      Charles S. Nisbet, for the appellants.

      Andrew J. Nellis, for the respondent.
   Herrick, J.:

This is an appeal by the water commissioners of Amsterdam from an order of tbe Special Term confirming, as modified, an award of commissioners of appraisal.

The proceeding is a special one instituted by tbe petitioner, Clark, under and by virtue of chapter 101 of tbe Laws of 1881, as amended by chapter 197 of tbe Laws of 1882. Under said acts tbe water commissioners of Amsterdam are authorized to purchase and take land, and their proceedings in so doing are regulated by such statutes ; it is conceded that the water commissioners took and appropriated this land in 1882, under and pursuant to the provisions of the aforesaid statutes, and have been using and occupying the property ever since.

The petitioner commenced his proceedings for compensation for the land so taken and used, March M, 1892. Commissioners of appraisal or of assessment were appointed to determine the damage sustained by the petitioner. At the time of the appointment of such commissioners the water commissioners set up the Statute of Limitations in opposition to their appointment; again, after such commissioners had been appointed by the court, and before the examination of the witnesses, the water commissioners again objected to such commission proceeding, upon the ground that the 'petitioner’s claim was barred by the Statute of Limitations.

It is conceded that the petitioner’s claim to compensation accrued immediately upon the commissioners taking possession of the land in 1882, but the effect of the Statute of Limitations is sought to be avoided by the peculiar wording of section 5, chapter 191 of the Laws of 1882, which provides that in case the water commissioners shall fail to make an application to the court for the appointment of commissioners to determine the damage sustained by persons whose lands are taken, “ before taking or using such lands and 'tenements, rights or property, then, at any time after the said commissioners shall take or use any such lands, etc., the owner of or party interested in such lands, tenements, hereditaments, rights or property, may, upon ten days’ notice * * * apply to the court for the appointment of such commissioners.”

It is contended that the use of the words then, at cony time after f takes these proceedings out of any and all Statutes’ of Limitation. Except for the use of these words it is conceded that the petitioner’s claim would be barred by the six years’ Statute of Limitations.

It is the policy of our law, and the intention of the Legislature, by the different Statutes of Limitation, to fix a period of time beyond which no action or proceeding can be brought or maintained for any claim or demand, and the obvious intention is to apply such limitations to every action or proceeding to procure redress for wrong or injury, compensation for property or services or payment of a debt of any kind or description, and it lias been held to be well-settled law tliat no exception to a Statute of Limitations can be claimed unless it is expressly mentioned in sucli statute. (Bucklin v. Ford, 5 Barb. 393; Levy v. Newman, 130 N. Y. 11.)

"While it may not be necessary that the excejition to the statute should be set forth in the Statute of Limitations itself, as suggested in the case of Bucklin v. Ford, but may be contained in some other statute, yet wherever contained the exception should be expressly set forth in plain and unambiguous terms.

Where rights or remedies are given, or procedure to protect rights and enforce remedies is provided by special statute, and no express limitation is therein specified as to the time within which such rights or remedies are to be enforced or such proceedings instituted, it will lie deemed to be the time prescribed in the general Statutes of Limitation.

The words of this statute depended upon to take the case out of the Statute of Limitations I do not think sufficient for that purpose; they are not sufficient to be an express exception of the petitioner’s claim, or of the proceedings under which it is sought to be enforced. The words “ then, at any time after,” etc., I think, were not used as “words extending the time within which landowners should commence their proceedings, but were rather words of permission, and are used in the sense of immediately, forthwith or at once, and are used for the purpose of indicating the earliest time at which they might commence their proceedings, and not for the purpose of removing any barrier of time beyond which proceedings could not be taken. The court will not assume, in the absence of a plain and unambiguous expression of the Legislature to the contrary, that it intended to remove all limitation of time for the commencement of proceedings like these in question, where the general policy of the State is, as expressed in its statutes, to fix a time or times beyond which no actions or proceedings shall be commenced to procure the enforcement of any right or remedy.

For these reasons I think that the plaintiff’s claim for compensation was barred by the Statute of Limitations, and that it was not excepted therefrom by any provision of the statute by virtue of wliich these proceedings were instituted, and that the order appealed from should be reversed. Let an order be entered accordingly, with ten dollars costs and printing and other disbursements.

Mayham, P. J., and Putnam, J., concurred.

Order reversed, with costs and printing and other disbursements, as of an appeal from a judgment.


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    John F. Montignani, as Administrator, etc., Respondent, v. Mary Y. Staats Blade and Others, Appellants, Impleaded with William Staats and Others, Respondents.

      Trust — a limitation to expire at the end of or within two lives in being is valid — a trust f 'or a definite period of time is void — intent — failure to name a trustee — all of a clause to be given effect — what creates a trust— “bequeath” applied to real pi'operty.

    A testator bequeathed to his son certain shares of stock to be held in trust by his executors for ten years after his decease, then to be delivered and transferred to his son, and in case his son should be dead the same was continued to the testator’s grandson. It was provided that the dividends thereon should be collected by the executors until the transfer thereof to the testator’s son if living, or, if dead, to his grandson, and, in case both were dead before the expiration of the ten years, the testator directed the transfer and delivery of such shares of stock to two specified persons, share and share alike, and in case one of such persons was dead, her portion was to go to the survivor, and if both were dead the stock was to be given to the testator’s two daughters-in-law or their respective heirs, share and share alike.

      Held, that such clause did not extend the period of the suspension of alienation beyond the lives of the testator’s son and grandson;
    That if both lives ceased before the expiration of ten years the trust terminated;
    That at the expiration of the ten years, if the testator’s son was alive, the estate vested in him, if he was dead it vested in the testator’s grandson, in case he was alive;
    That the limitations over after the death of the testator’s son and grandson within ten years were not too remote to enable the persons named to take in the order of their survivorship, as designated in the will. That on the happening of such event, the title would devolve on the person entitled to take eo instanter.

      Semble, tk£,t a trust estate, limited only by a'definite period of time and not dependent upon the expiration of two lives in being, is within the prohibition of the statute and absolutely void.

      In construing a will a court is not at liberty to violate the plain language of a statute and well-authenticated and authoritative adjudications in order to uphold the intention of the testator.
    If a valid trust be created by will, it will not fail for want of a trustee, as one will be appointed by the court.
    A court must give effect to all the parts of a clause in a will, and is not at liberty to expunge that part in which the testator attempts to create a trust.
    Where a testator named his executors as trustees, gave them an estate for seven years, and named the final beneficiaries, it cannot be said that he failed to create a trust, although the trust created was void.
    Where it is clear that the word ‘ ‘ bequeath ” was used in a will as applying to both real and personal property, and without regard to its technical signification, the manifest intention of the testator will be given effect.
    Appeal by the defendants, Mary Y. Staats Blade, "Willa F. C. Staats, Harriet Staats, Bella F. Staats and Bernardas E. Staats, from various parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of Albany on the 15th day of May, 1893, upon a decision of the court rendered at the Albany Circuit, in an action brought for the construction of the will of Bernardas E. Staats.
    This action was brought by the administrator with the will annexed of Bernardus E. Staats for a judicial construction of his will, and the direction of the court as to the administration and disposition of the estate devised and bequeathed therein, and this appeal is from a judgment entered in such action.

      Allen McDonald and Eugene D. Elanigan, for Bernardus E. Staats and others, appellants.

      George H. Stevens, for Mary Y. Staats Blade, appellant.

      Robert G. Scherer, for Willa F. C. Staats, appellant.

      William S. Elmendorf and Geo. H. Mallory, for the plaintiff, respondent.
   Mayham, P. J.:

This action was tried by the learned judge principally upon agreed facts stipulated by the counsel for the respective parties, and the main contention on this appeal arises out of the deteufcnination of the trial court upon the second, third, fourth and fifth disposing clauses of the testator’s will.

If that determination is correct, then there is little or no difficulty in the administrator’s administering the estate under the will and the law, as laid down by the learned trial judge.

Each of these disposing clauses, except the fifth, suspended the alienation of the property in them devised and bequeathed for a period of years, not depending upon the continuance of two lives in being, and each assumed to create a trust to continue during the period of such suspension.

The trial judge held that such suspension was illegal, and that the property so sought to be devised and bequeathed was not by said clauses in the will disposed of by it, and that the same lapsed and reverted to and became a part of the estate of the deceased.

It is insisted by the counsel for the appellant Bernardus E. Staats that the bequest to him in the second disposing clause of the will, of the stock in the “Wells, Eargo Co. Express,” is not subject to the objection that it is subject to an illegal trust created in the will, and that the vesting or alienation of the same is not by that clause suspended for more than two lives in being. That clause reads as follows : “ I hereby bequeath and give to my son Bernardus E. Staats all my shares of stock in Wells, Eargo Company Express, to be held in trust by my executors ten years from and after my decease, then to be delivered and transferred to him, if deceased, do and continue the same to his son William, now in his eighth year of age. The dividends shall be collected, when and as declared, by my executors, until transferred and delivered, and paid to my son; or, if deceased, to his son William; if both are deceased before the ten years have expired, then transfer and deliver the said shares to my daughters, Lydia Anna Staats and Mary Tates Staats, each share and portion equal. If either daughter is deceased, her portion shall be transferred and delivered to the remaining daughter. If both are deceased, then this bequest shall be given to my daughter-in-law, wife of my son John IT. Staats, or their heirs, and my daughter-in-law, Harriet Staats, or her heirs, each share and portion equal.”

This language, though somewhat inartificial and obscure, does not extend the period of the suspension of alienation beyond the lives of testator’s son, Bernardus E. Staats, and grandson, William. If both of these lives end before the limitation of the ten years fixed for the Testing in one of them “ have expired, then transfer and deliver said shares to my daughters Lydia Anna Staats and Mary Yates Staats, each share and portion equal.” The clause then provides for the vesting, at that time, of this stock if both of the persons first named are dead.

There can be little doubt but that this clause limits the suspension to the time of the death of Bernardus and his son William, if both die before the expiration of the ten years.

It will be observed that this disposing clause is independent of any other, and its execution does not impair any other rights under the will except as it may diminish the residuum of the testator’s estate. Was this provision of the will an illegal suspension of the jiower of alienation or an illegal accumulation of the income of the stock ? In Phelps, Ex’r, v. Pond (23 N. Y. 69) it was held that: “ A testator, without violating any law, may not only suspend the abso* lute ownerslnp of his estate during the continuation of any two lives in being at his death, but may dispose of the income annually as it accrues during this period of suspension. lie may also give vested legacies and provide for their payment at future periods.” The court also held in that ease that “ it is no violation, therefore, of the statute against accumulations for a testator, after rendering his estate inalienable for two lives, to give pecuniary legacies payable at future periods in such a manner as to show that he intended that they should be paid exclusively from income as it should accrue, leaving the corpus of the estate to pass unimpaired to the residuary legatees.”

In Schemerhorn v. Cotting (131 N. Y. 58) Peckham, J., in discussing a question similar to the one raised by this clause, uses this language: “ A limitation of a trust estate for an arbitrary period of time, such as fifty years, is valid, provided a termination at an earlier period is called for by the expiration of two lives in being at the creation of the trust. If provision be made for such termination, the income of the estate may, in the meantime, be divided among any number of successive lives.”

Applying the principle of these decisions to the provisions of the second disposing clause in the will under consideration, it cannot he held void for an alleged suspension of the vesting of this stock or of the suspension of the power of alienation. We must, therefore, hold that the conclusion of the learned judge upon this disposing clause in the will was erroneous, and the clause must, therefore, be upheld as a valid disposition of these stocks.

According to our construction of the clause the trust estate terminates with the death of the two lives in being at the time of the creation of the estate if they die within the ten years.

If they, or either of them, are still living at the end of the ten years, then the estate vests in Bernardas, if alive ; if dead, then in William, if alive, and if both die within the ten years, then immediately on the happening of that event, it vests in such of the other persons as may be, under the will, entitled to it, even though the ten years’ limit has not expired. This construction we believe to be in harmony with the intention of the testator, and not in violation of any rule of law.

Nor do we believe that the limitations over after the death of Bernardus and his son within ten years too remote to enable the persons named to take in the order of their survivorship as designated in the will.

On the happening of such event the title would devolve on the person entitled to take eo vnstcmter.

We think the third disposing clause comes clearly within the prohibition of the statute, as it is limited only by a definite period of time not dependent upon the expiration of two lives in being, and is within the provisions of the statute absolutely void. As to this clause we are urged by the learned counsel for the beneficiaries to follow what is claimed to be the manifest intention of the testator, and uphold the bequest.

But we are not at liberty to violate the plain language of the statute, and the well-authenticated and authoritative adjudications in order to uphold the intention of the testator.

In Underwood v. Curtis (127 N. Y. 523) it is held that a provision by which the possession of personal property, and the legal estate therein, is vested in a trustee during the continuance of the trust, the absolute ownership of such property is suspended and the validity of the trust, the duration of such suspension, must be limited to two lives in being and not to a term of years however short. (Smith v. Edwards, 23 Hun, 223.)

As to the fourth disposing clause in said will the learned counsel for Mary Y. Staats, now Mary Y. Staats Blade, insists that the devise of the real estate therein made is absolute, and that no trust is created as to the same.

The language of that provision is as follows: I hereby bequeath to my daughter Mary Y ates Staats the house and lot No. 52 Elm street, now occupied by myself; also all the furniture and housekeeping articles and utensils therein, for her own occupancy and use, to be held in trust by my executors seven years from and after my decease. I also bequeath to said daughter all my shares of stock in the New York Central & Hudson River Railroad Company; the dividends, when declared, shall be collected by my executors and paid to said daughter. At the expiration of the seven years the foregoing bequests shall be transferred and delivered to said Mary Yates Staats, as and when so requested by her and practicable. If this daughter is deceased before the expiration of the seven years these bequests shall be delivered to or disposed of as my daughter Lydia Anna Staats and my son J ohn H. Staats shall request and direct; the proceeds shall be paid to my daughter Lydia Anna Staats, and my daughter-in-law 'W'illa F. C. Staats, and my daughter-in-law Harriet Staats, each share and portion alike as near as can be done and satisfactory to all concerned.”

By this provision it is contended that no valid trust was created as to the real estate. The testator named in his will two persons as executors, and while it appears that the persons named did not qualify, it is also true that if a valid trust was created it would not fail for want of a trustee, as the court would appoint one. ¥e must, therefore, look at the provision under consideration, to ascertain whether a trust was created.

The language is: “I hereby bequeath to my daughter Mary Yates Staats the house No. 52 Elm street, now occupied by myself; also all the furniture and housekeeping articles and utensils therein for her own occupancy and use, to be held in trust by my executors seven years from and after my decease.”

It is quite clear that but for the concluding paragraph of the above-quoted provisions of the clause this daughter would have taken a fee in this real estate. But the court, in attempting to give effect to this provision, must read and give effect to all of its parts, and is not at liberty to expunge that part in which the testator attempts to create a trust.

If lie has failed in that attempt we may give effect to the balance of the provisions of the clause. But has he failed ? He names his executors as trustees. He gives them an estate for seven years and names the final beneficiaries. This is all that is required to create a trust. (Greene v. Greene, 125 N. Y. 510.)

In that case, however, it was held that no trust was created for the reason that the legal and trust estate were sought to be given to the same persons, and that the legal estate dominated and merged the trust estate, and no trust was, therefore, created. But in the case at bar the trustees and beneficiaries are not identical, and the estate is sought to be suspended for seven years, and at the end of that period was to vest in Mary, if living, and if not, in some other person. Clearly, by the provisions of that clause, the power of alienation was suspended for seven years.

Suppose we assume that it was not, and that Mary was vested with the title on the death of the testator, and that, acting upon that assumption, she during the seven years should assume to alien or mortgage this real estate, and should die before the expiration of the seven years; if this clause is upheld, would not Lydia Anna Staats be in a position to claim a devolution of this property to her, and thus defeat the conveyance made by Mary? Ve see no aspect of this provision of the will in which we can hold that there -is not an illegal suspension of the power of alienation, and of the vesting of the estate, real and personal, sought to be devised and bequeathed by this clause in the will, and we must concur with the trial judge' in holding it void.

It is quite clear that the word bequeath, as used in this clause, as applied to both real and personal property, is used without regard to its technical signification, but that could not defeat the manifest intention of the testator, had there been no illegal suspension of vesting or alienation of the property sought to be passed under the will..

Ve have.carefully read the case and examined the very elaborate brief furnished by the respondent, and those presented by all of the appellants, and fully concur in all the conclusions of fact and law of the learned trial judge, except as to the second disposing clause in the will of testator.

The decree should be reversed so far as it declares the bequest in that provision void, and in all other respects affirmed, with costs out of the estate to the appellant Bernardus E. Staats, and as to all the other parties the appeals should be dismissed and the decree affirmed, without costs to either party as against the other.

Herrick and Putnam, JJ., concurred.

Decree reversed, so far as it declares the bequest in the second clause of the will void, in all other respects affirmed, with costs to be paid by the estate to the appellant Bernardus E. Staats, as to all other parties the appeals dismissed and decree affirmed, without costs.


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    Joseph M. Warren and Another, as Trustees, etc., Respondents, v. The Bigelow Blue Stone Company and Others, Respondents. In the Matter of the Application of Helen M. Kellogg, a Stockholder, for Leave to Intervene, etc., Appellant.

      Corporation — defense of wa/nt of authority and, defective execution of a mortgage — stockholder concluded by his laches.

    A stockholder of a corporation cannot be permitted to set up as a defense to an action to foreclose a mortgage given by the corporation to trustees to secure an issue of bonds, that such mortgage was not properly executed nor authorized, where interest has been regularly paid upon such bonds to her knowledge for twelve years during which time she has been a stockholder of the corporation.
    Appeal by the petitioner, Helen M. Kellogg, from an order of the Supreme Court, entered in the office of the clerk of the county of Ulster on the 5tli day of June, 1893, denying the motion of the petitioner to be allowed to intervene as a party defendant and setting aside the stay of proceedings heretofore granted in this action.
    The opinion of the Special Term was as follows:
    “ Brown, J.:
    The petitioner on this motion is the owner of shares of stock in the defendant corporation, of which she became the owner in February, 1880. She received them from the estate of her father, Luther Baffin, who was a stockholder at the date of the execution of the mortgage in suit.

      “Interest was paid regularly on the bonds until 1892, and annual statements, showing that mortgage bonds to the amount of $100,000' were among the liabilities of the company, were forwarded to the. stockholders.
    “ It is not claimed that Mrs. Kellogg or her father did not know of the execution and existence of the mortgage, and it appears uncontradicted that some of the bonds were offered to her father at the time of their issue, but he declined to purchase them.
    “ Under these circumstances, the petitioner cannot be permitted to plead as a defense to an action to foreclose the mortgage that it. was not properly executed, or that, it was not authorized by the owners of two-thirds of the capital stock.
    “ Acquiescence after such lapse of time will be presumed. (Kent v. Quicksilver Minmg Co., 78 N. Y. 159; Skinner v. Smith, 134 id. 240.)
    “ The claim that thirty-two thousand dollars of the bonds have been paid by the company does not rest upon the assertion of any fact. It is fully met in the affidavit of Mr. Caswell, and the transaction explained, and it affirmatively appears that none of the bonds, were .paid by the company.
    “ The defense of usury cannot be pleaded to the mortgage in suit..
    “ The petition does not make out a prima facie case, and if all the facts set forth in the moving papers were before the trial court, the plaintiffs would be entitled to a decree directing a sale of the. mortgaged property.
    “ The motion must be denied.”
    This is an action to foreclose a mortgage given to secure a series' of bonds issued by the defendant.
    Pending the action, Helen M. Kellogg, a stockholder of the defendant, petitions to intervene and to be made a defendant, and permitted to interpose an answer. The court at Special Term denied her application, and from that order she appeals.

      L. Laflin Kellogg, for Helen M. Kellogg, petitioner, appellant.

      Henry A. King, for Bigelow Blue Stone Company and others, respondents.

      A. R. Dyett, for Importers and Traders’ Bank, respondent.

      A. T. Clearwater, for plaintiffs, respondents.
   Mayham, P. J.:

We think this order should be affirmed for the reasons stated by the learned judge at Special Term.

Putnam and Herrick, JJ., concurred.

Order affirmed, with ten dollars costs, with printing and other ■disbursements.


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    Ellen Safford, Appellant, v. The Village of Geeen Island, Respondent.

      Negligence — municipal corporation — icy sidewalk —personal injury.

    ■In an action brought to recover from a municipality damages resulting from a personal injury suffered through the plaintiff’s having fallen upon an icy sidewalk ■on which there was a ridge of earth covered with slippery ice, at a time when, by reason of the low temperature the municipality was not responsible for the slippery condition of the sidewalk or for the ice upon the ridge, the plaintiff is properly nonsuited on failing to establish the fact that the accident would not have occurred but for the presence of the ridge.
    Appeal by the plaintiff, Ellen Safford, from a judgment of the Supreme Court, entered in the office-of the clerk of Albany county ‘Oil the 28th day of October, 1892, upon a dismissal of the complaint •at the Albany Circuit, and also from the order directing the dismissal ■of the complaint upon the merits.
    The action was brought to recover damages alleged to have been .^sustained by the plaintiff by reason of the negligence of the defendant, a village, in permitting a ridge of earth and ice, extending across the sidewalk on Hudson avenue in said village, to remain for a long-period of time, rendering the walk unsafe and dangerous for travelers, and thus causing the plaintiff while passing over it to fall and sustain serious personal injuries.
    The defense was a denial of negligence on the part of the defendant, and an averment of contributory negligence on the part of the plaintiff.

      Edward W. Douglas, for the appellant.

      George B. Wellington, for the respondent.
   Herrick, J.:

It appears in this case that a ridge had been formed across the sidewalk by excavating to put in a water pipe, and failing to sufficiently pack down the. earth afterward filled in. This ridge was covered with ice, in the language of the plaintiffs daughter, “ So that the ridge was slippery, glary, glassy; it was clear ice, glassy ice; shiny like the surface of glass and very slippery.”

The thermometer had been below zero for some days prior to the accident in question, and the streets of the village were generally slippery.

It is impossible to determine from the evidence whether the plaintiff would or would not have fallen -except for the ridge upon the sidewalk; the jury could have merely guessed whether it was the ridge or the ice, or both combined, that caused the accident.

The defendant was not responsible for the slippery condition of the sidewalk, nor for the ice upon the ridge, and such being the case, and the plaintiff not establishing her claim that the accident would not have occurred but for the presence of the ridge, was not entitled to recover, and the nonsuit was proper. (Taylor v. City of Yonkers, 105 N. Y. 202; Hunter v. N. Y., O. & W. R. R. Co. 116 id. 615-624; Grant v. P. & N. Y. C. & R. R. Co. 133 id. 657.)

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.