author: MeewiN, J.:

text:
    In the Matter of the Claim of the County of Oneida, Respondent v. Myron N. Bartholomew, a Lunatic; Abel C. Brewer, as Committee, Appellant.

      Pcrnper — liability to repay money expended in his behalf — chapter 446 of 1874 — - imane person — recovery of the amount expended for his support at the Utica State Hospital.

    The provisions of sections 12, 13 and 17 of article 1 of title 1 of chapter 446 of the Laws of 1874, do not give to a county any right of action against i '-e estate of a lunatic, for past expenses as for a debt. A special remedy is given by section 17 of such act, and in other respects the same remedy is given in the case of a lunatic as in the case of the ordinary poor. The remedy against relatives is statutory, and must be enforced in the manner provided by the statute.

      Where an insane person was, on February 11, 1893, transferred by order of the county superintendent to the Utica State Hospital, pursuant to the provisions of chapter 136 of the Laws of 1890, and was there supported at the expense of such county until October 1, 1893, the amount expended for that purpose by the county can be recovered by it from the committee of such lunatic subsequently appointed. c

      Semble that a person receiving aid as a poor person from the officers of the poor in a city or county, in the absence of any representations on his part as to his responsibility or physical condition, incurs no liability to repay the amount expended in his behalf.

      Qucere, as to the effect, after October 1, 1893, of section 7 of chapter 136’*'of the Laws of 1890.
    Appeal by Abel C. Brower, as committee of Myron N. Bartholomew, a lunatic, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the 21th day of June, 1894, as amended by an order made at the Madison Special ■ Term and entered in said clerk’s office on the 2d day of July, 1894, directing the payment of a specified sum by the appellant, as committee of Myron N. Bartholomew, to the superintendent of the poor of the county of Oneida.

      Burlm & Brewer, for the appellant.

      Howard 0. Wiggins, for the respondent.
   MeewiN, J.:

In November, 1883, Myron N. Bartholomew, being then insane and having no property, was duly committed to and received at the Oneida County Asylum for the insane. From that time to February 11, 1893, he was there supported by the county, being all the time insane. On February 11, 1893, he was transferred, presumptively by order of the county superintendent, to the Utica State Hospital, and there supported at the expense of the county of Oneida until October 1, 1893, and for this the county paid the State hospital the sum of eighty-two dollars and fifty cents. The record at the county asylum states that Bartholomew was received as a pay patient. No contract with his relatives is shown. It appears that a brother, Arthur P. Bartholomew, paid for his support up to November 1, 1886, the last payment being made ifi. November, 1887. Nothing further has been paid the county. On October 25, 1§92, Arthur P. died intestate, leaving some property. Myron, as one of the heirs and next of ldn of Arthur, is entitled to one-fourth part of his estate. On November 2, 1892, a sister of Myron died intestate, and he, as one of her heirs and next of kin, is entitled to one-third of her estate. On October 10, 1893, by an order of the Supreme Court, in proceedings duly taken, Myron was declared a lunatic and Abel C. Brewer was appointed committee of his estate. The lunatic has no property except what may be derived from his interest in the estates above referred to. The committee has received therefrom about $900.

The present proceeding was commenced on April 1, 1894, and by it the county, by its superintendent of the poor, sought an order requiring the committee to pay for the expense of support of the lunatic from November 1,1886, to November 11, 1893, and also pay the amount paid by the county to the State hospital. A reference was ordered to a referee to take the evidence concerning the claim and report the same with his opinion thereon. Uj>on the coming in of the referee’s report the order appealed from was made. It allowed as a valid claim against the estate of the lunatic the value of his support from April 1, 1888, to February 11, 1893, being the sum of $663.20, and also the amount paid by the county to the State hospital, making altogether $745.70.

There are two questions to be considered, first, whether the county can recover for the support of the lunatic at the county asylum ; and, second, whether it can recover what it paid to the State hospital.

When the lunatic was taken to the county asylum in 1883 there was no contract between him and the county by which he was bound to pay for his support. The evidenpe shows he was taken there by two brothers, and one of them for a time paid for his support. He was, in fact, a pauper, and there was apparently no relative who, under the statute (2 R. S. [6th ed.] 808; Code Crim. Proc. § 914), was liable for his support. It is very clear that after November 1, 1886, he was kept and maintained by the county as a poor person under its general obligation to provide for the support of the poor. Under such circumstances it is claimed by the appellant that there is no liability on the part of the person receiving the support or on his estate to repay to the county the expense. The case of The City of Albany v. McNamara, (117 N. Y. 168) is cited as sustaining this proposition. In that case the doctrine was laid down that a person receiving aid as a poor person from the officers of the poor in a city or county, in the absence of any representations on his part as to his responsibility or physical condition, incurs no liability to repay the amount expended on 'his behalf.

On the other hand, the respondent claims the recovery can be sustained on the theory that there was an implied promise on the part of the lunatic to pay for necessaries furnished to him by the county. To support this view the ease of Goodale v. Lawrence (88 N. Y. 513) is cited. In that case it was held that a husband, who has voluntarily permitted his insane wife to absent herself from his house and to become a public charge, is liable to an action at the suit of the proper town or county officers for her support. It was said that the action rested upon the common-law obligation of the husband to support the wife. A promise on the part of the husband to pay for necessaries furnished to the wife would be implied. The Goodale case is not necessarily inconsistent with the case in 117 New York, but if it were the latter must control. The question then is whether the doctrine of the latter case applies to the case in hand. It would seem to do so, unless the fact that the poor person is insane changes the rule. We are referred to no statute that imposes a personal liability upon the insane person for support furnished by the county at the county asylum. The commitment here was under the provisions of chapter 446 of the Laws of 1874, title 1, article 1. By section 12 of article 1, the duty of supporting an indigent lunatic was imposed upon certain relatives, and by section 13 it was provided that “ the overseers and superintendents of the poor shall have the same remedies to compel such relatives to confine and maintain such lunatic, and to collect the costs and charges of his confinement, as are given by law in the case of poor and impotent persons becoming chargeable to any town.” Section 17 of the same article is as follows: The overseers of the poor of any city or town shall have the same remedies to compel the committee or guardian of the estate of any lunatic to confine and maintain such lunatic, and to collect of such committee the costs and charges of Ms confinement and support, as are given in the preceding sections against the relatives of such lunatic. And the Court of General Sessions of the Peace of the city or county shall make orders against such committee personally, and enforce them in the1 same manner as against the relatives of any poor person, so long as such committee has any property in his hands for the support of such lunatic.”

These provisions do not give to the county any right of action against the estate of a lunatic for past expenses as for a debt. A special remedy is given in section 17, and in other respects the same remedy is given as in case of the ordinary poor. The remedy against relatives is statutory and must be enforced in the manner provided by statute. (Herendeen v. De Witt, 49 Hun, 53.)

The respondent insists that necessaries were furnished to the lunatic, and that a promise to pay therefor should be implied. So the relief furnished to the ordinary ]30or consists of necessaries, and in such a case a promise to pay therefor will not be implied, according to the rule laid down in The City of Albany v. McNamara. The rule laid down in that case is, we think, applicable here, and prevents a recovery by the respondent of the item for support at the county asylum.

The claim for money paid to the Utica State Hospital stands on a different basis. It is by law provided (Chap. 446, Laws of 1874, tit. 3, § 30) that every insane person supported in that hospital shall be personally liable for Ms maintenance therein, and for all necessary expenses incurred by the institution in his behalf. And the committee, relative, town, city or county, that would have been bound by law to provide for and support him if he had not been sent to the asylum, shall be liable to pay the expenses of Ms clothing and maintenance in the asylum, and actual and necessary expenses to and from the same.” By section 31 of the same title it is provided that “ the expenses of clothing and maintaining in the asylum a patient who has been received upon the order of any court or officer, shall be paid by the county from which he was sent to the asylum. * * * Said county, however, shall have the right to require any individual, town, city or county, that is legally liable for the support of such patient, to reimburse the amount of said bills, with interest, from the day of paying the same.” The counsel ior tbe appellant admits that the estate of the lunatic is liable (Supervisors v. Morgan, 2 Keyes, 277) if sections 30 and 31, above referred to, are to be literally construed and were in force when the payment was made. Those sections have not been repealed, but the claim is made that they were, in effect, superseded by the provisions of the “ State Care Act,” so called, being chapter 126 of the Laws of 1890. It is not, however, claimed that under that act the indig’ent insane ceased to be a charge upon the county prior to October 1, 1893. (See § 7 of the act.) The claim in question is only for expense to that date. The fact that the transfer to the Utica State Hospital may have been under the provisions of that act does not prevent the county from enforcing the personal liability of the lunatic. "We think, therefore, that this claim was properly allowed.

It follows that the order appealed from should be modified oy reducing the recovery or allowance to the sum of eighty-two dollars and fifty cents, with interest from April 1, 1894. The allowance of costs should -also be stricken out as the main item claimed is disallowed.

Hardin, P. J., and Martin, J., concurred.

Order modified by reducing the amount allowed to the sum of eighty-two dollars and fifty cents, with interest from April 1, 1894, and by striking therefrom the allowance of costs, and, as so modified, affirmed, without costs of this appeal to either party.


source: Caselaw Access Project

author: Per Curiam :

license: Public Domain

text:
    Louisa M. Gerry, Appellant, v. William H. Liddle, Respondent.

      Game Lams — action for penalties under chapter 488 of 1892 — costs.

    The actions for penalties referred to in section 236 of chapter 488 of the Laws of 1892 (known as the Game Law), and in regard to which the matter of costs is by that section regulated, do not include actions brought by owners of premises to recover actual and exemplary damages, referred to in section 217 of such act, for injury to private grounds and parks, and the costs upon the recovery of a judgment for less than fifty dollars, in an action brought in the Supreme Court under such last-mentioned section to recover the penalty therein provided for, are not governed by the provisions of section 236 of chapter 488 of the Laws of 1892.

      Appeal by the plaintiff, Louisa 1VI. Gerry, from an order of the Supreme Court, made at the Delaware Circuit and entered in the office of the clerk of the county of Delaware on the 7th day of September, 1894, denying the plaintiff’s motion for a certificate that the title to real property described in the complaint came into question upon the trial of the action.

      W. <& Gr. W. Youmcms, for the appellant.

      Barna Johnson, for the respondent.
   Per Curiam :

The action in this case is based on the provisions of article 9 of “ The Game Law ” .(Chap. 488, Laws of 1892). That article is entitled, “ Private grounds and parks,” and its last section, prior to an amendment in May, 1893, was as follows: “ Yiolations of the provisions of this article subject the person violating to exemplary damages in an amount not more than twenty-five dollars for each violation, in addition to the actual damages sustained by the owner or lessee. An attempt to violate the provisions of this article shall be deemed a violation thereof.” The amendment of 1893 is not important here.

In the complaint it is alleged that the plaintiff is the owner and in possession of the real estate therein described upon which she maintains a private park for the purpose of propogating and protecting fish, birds and game under the statutes of the State; that she has given all the notices required by the article of the Game Law above referred to ; that the defendant upon four specific occasions entered upon her said premises without her consent, and unlawfully and with intent to catch fish in the waters within said private park, and did take fish from the waters thereof, the property of the plaintiff, of the value of fifty dollars, all in violation of said act. The plaintiff claimed to recover her actual damages, and also the sum of twenty-five dollars additional for each violation of the act. The answer was in substance a general denial.

Upon the trial the jury rendered a verdict in favor of the plaintiff for the sum of six cents. The plaintiff, however, claimed that she was entitled to recover costs under the provisions of section 3228 of the Code of Civil Procedure which provides, among other things, that the plaintiff is entitled to costs, of course, upon the rendering of a final judgment in his favor in an action, triable by a jury, to recover real property, or an interest in real property, or in which a claim of title to real property arises upon the pleadings, or is certified to have come in question upon the trial.” In this view she applied for, and claimed to be entitled to have, a certificate under section 3248 of the Code of Civil Procedure. The application was denied upon the ground, as stated in the order, that this action was brought to recover penalties under the fish and game laws of the State of New York, and section 3248 does not apply to that class of cases, special provision being made therefor.”

The special provision which the defendant claims applies to the case is in section 236 of “ The Game Law.” That section is as follows:

“Actions by persons or societies.— Any individual, upon giving security for costs, unless he shall be the owner or lessee of the premises upon which it shall be claimed the penalty was incurred ; and any society or corporation, or agent of any society or association, for the protection of fish or game may recover in his or its name all penalties provided for by this act with costs, but on recovery by the plaintiff in such case of a less sum than fifty dollars, plaintiff shall only be entitled to costs to the amount of such recovery. Such person shall be entitled to one-half of the penalty recovered, the other half to be paid to the board of commissioners, but any such action shall be discontinued, without costs or disbursements to either party, in case an action shall be thereafter brought for the same violation in the name of the People, and an order to that effect may be entered on motion of the chief jarotector or one of the commissioners, on notice to all the parties thereto. Such motion shall be entitled and made in both actions. Any person or society bringing an action under this section shall notify the chief protector thereof within fifteen days after service of the summons therein, and failure so to do shall be a defense to the action.”

Ye are of the opinion that the actions for penalties ” referred to in section 236 and in regard to which the matter of costs is by that section regulated, do not include actions by owners of premises for actual and exemplary damages referred to in section 217 of the article as to private grounds and parks, and that the costs upon the recovery in this case are not governed by the provisions of section 236.

It follows that the plaintiff was entitled to have her application for a certificate considered upon the merits.

Present — Hardin, P. J., Martin and Merwin, JJ.

Order reversed, with ten dollars costs and disbursements, with leave to plaintiff to renew her motion for a certificate under section. 3248 of the Code.


author: Merwin, J.:

text:
    Isaac J. Squire, Appellant, v. Otis M. Preston, as President of the Village of Roxbury, N. Y., and Others, Respondents.

      Taxpayer’s action — relief therein — right of village officers to employ an attorney — effect of a vote to introduce a water system —not retroactive — extraordina/ry emergencies. .
    A taxpayer of a village has a standing in court which enables him to bring an . action under the provisions of chapter 531 of the Laws of 1881, as amended by chapter 673 of the Laws of 1887, to restrain the collection of an annual tax levy, and even if he does not make out a case sufficient to authorize the setting aside of the tax warrant, but only shows that the officers of the village are threatening to pay illegal claims from the funds that they are raising or from the funds of the village, he is nevertheless entitled to some relief, and if any of the items contained in such levy and attacked by the plaintiff in such action are not valid claims against the village, it is improper to dismiss the complaint in such action.
    The president and trustees of a village have power under section 3 of title 3 of chapter 291 of the Laws of 1870, to employ an attorney or attorneys to defend an action brought against them in their official capacity.
    Under chapter 737 of the Laws of 1873 the favorable votes of the electors of a village is a condition precedent to the making of a contract with a corporation organized under the Water Act for the delivery of water by it to the village for public purposes. Such vote does not present a question of ratification or waiver, and a vote authorizing a contract cannot relate back to and validate a contract as of a prior time at which it was made, and the most that it can legally do would be to make the contract operate from and after the favorable vote of the electors of the village upon the subject.
    Chapter 504 of the Laws of 1887 is designed to meet emergencies not otherwise provided for in the administration of the affairs of villages, when for some public purpose there is a necessity for the immediate use of money. The provisions of such act are to be construed in view of its object, and there is no design to modify by such provision chapter 737 of the Laws of 1873, nor can the general provisions of the former act be construed to apply to the subject of such latter act which refers to a particular and a specified subject. The general provisions of chapter 504 of the Laws of 1887 will not be deemed to change the provisions of chapter 787 of the Laws of 1873 unless an intent to do so is clearly manifest.
    Appeal by tlie plaintiff, Isaac J. Squire, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Delaware on the 9th day of March, 1894, upon the decision of the court, rendered at the Delaware Special Term, vacating and setting aside a temporary injunction and dismissing the plaintiff’s complaint, with notice of an intention to bring up for review on such appeal the findings and decision of the court, the exceptions thereto and all the questions of law raised by the findings, exceptions and the issues in the ease.

      O. L. And/rus, for the appellant.

      JEdwin D. Wagner, for the respondents.
   Merwin, J.:

This case presents another phase of a litigation that was before this court in Squire v. Cartwright (67 Hun, 218). That was an action to restrain the collection of a special tax levied in October, 1890, which, among other things, contained an item for rent of water hydrants under a contract made by the president and trustees of the village with the water company on August 15, 1890. It was decided by the trial court in that case that the contract of August 15, 1890, was inoperative and void, and judgment was given restraining the collecting of the tax and restraining the defendants and their successors in office from applying any of the moneys collected under the warrant to the payment, among other items, of the water rent referred to. On the appeal the judgment was modified so as to be without prejudice to any proceeding taken as authorized by law to enforce the contract of August 15, 1890, based on its adoption at a village meeting held on the 14th day of September, 1891, and as modified the judgment was affirmed. In the judgment entered on the decision on the appeal a clause is inserted as follows: It being hereby adjudged that the said contract is a valid and legal contract from and after the adoption thereof by said village meeting.”

Tlie present action was commenced on May 18, 1891, to restrain the collection of the annual tax levy, which was levied on May 2, 1891, and which contained, among other items, water rent accruing prior to September 14, 1891, on the contract of August 15, 1890, and an item of $15'0 for counsel fees incurred by the president and trustees in the prior action. The proceedings of the meeting of September 14, 1891, were pleaded and proved as they were in the former action. Upon the trial it was held that the contract of August 15, 1890, was valid under the provisions of chapter 504 of' the Laws of 1887, and was also made valid as of its date by the proceedingssof ratification or adoption by the meeting of September 14,, 1891; that the item for counsel fees was a proper charge against the village, was reasonable in amount and properly included in the tax levy; that the plaintiff had an adequate remedy at law, and the annual tax levy should not be interfered with.

This action is brought by the plaintiff, a taxpayer, under the provisions of chapter 531 of the Laws of 1881, as amended by chapter 673 of the Laws of 1887. (Code Civ. Proc. § 1925.) There seems, to be no doubt about his having a standing in court. (See Ayers v. Lawrence, 59 N. Y. 192; Osterhoudt v. Rigney, 98 id. 231; Warrin v. Baldwin, 105 id. 534.) And if the plaintiff did not make a case for setting aside the tax warrant, and still showed that the officers, of the village were threatening to pay illegal claims from the funds that they were raising, or from funds of the village, the plaintiff would be entitled to some relief. The complaint and the statute are broad enough to reach that phase of the case. So that if either oi the items which the plaintiff attacks is not a valid claim against-the village the complaint was improperly dismissed.

The former action was against the president and trustees officially, and if, in its defense, they acted in good faith they should be protected for their reasonable counsel fees. Under the general act power is given “ to employ an attorney or attorneys for the transaction of any matter requiring legal skill.” (Chap. 291, Laws of 1870, tit. 3, § 3, subd. 5.) It is not found or shown that they acted in bad faith. The trial court did not, I think, err as to this item.

The validity of the other item objected to depends on whether the contract of August 15, 1890, was operative prior to September 14, 1891. By the judgment on the appeal in the former case it is adjudged that it was operative from September 14, 1891, and inferentially it was decided that it was not operative before.

The statute under which .the board of trustees derived their power to make any contract on the subject was chapter 131 of the Laws of 1813, entitled “ An act in relation to the creation and formation of water works companies in towns and villages of the State of New York,” By section 5 of this act, as amended by chapter 422 of the Laws of 1885, the board of trustees of any incorporated village was given power to make a contract with a corporation organized under the Water Act for the delivery by said company of water through hydrants or otherwise for public purposes, provided, however, “that no such contract shall be made for a longer period than five years, nor for a sum exceeding in the aggregate two and one-half mills for every dollar of the taxable property of said village per annum, unless the proposition for the same be submitted to a vote of the electors of such village * * * and approved by a majority of the voters entitled to vote and voting on such question at any annual election, or at a special election duly called; and any board of trustees, when so authorized, may contract for a term not exceeding thirty years; the amount of such contract to be paid in semi-annual installments. ” The trustees, on May 13, 1890, made a contract on the subject which practically exhausted their power to act without a vote of the electors. The validity of that contract is not disputed. Then, in reality, in continuation of the same subject, they made the contract in question after a submission of the proposition to a vote of the electors and its rejection by them. Afterwards, and after both actions had been commenced, the meeting or election of September 14, 1891, occurred, the effect of the action of which is now under consideration. Under the act of 1813 a favorable vote of the electors was a condition precedent. The proposition, not the contract, was to be submitted, and, if approved, then the trustees could make a contract. It was not a question of ratification or waiver that was to be submitted, nor was any general power given to the electors on the subject. It was simply a question whether they would say yes or no to a proposition for a future contract. It seems to me very clear that the vote of the electors under the statute on September 14, 1891, did not relate back to and validate the contract as of the time when it was originally made, but that the most that the defendants can legally claim is that it became operative from and after the favorable vote of September 14,1891.

The other theory upon which it is claimed to be valid is that it is within the authority conferred by chapter 504 of the Laws of 1887, entitled “ An act conferring additional powers upon villages.” By section 1 of that act it was provided that whenever it shall be desired by any village, whether incorporated under a special act or organized under the General Act for the Incorporation of Tillages, “ to raise moneys additional to the amount permitted to be raised by its charter or by the general law aforesaid, for the purpose of building a bridge, constructing a sewer or carrying out some other proper village object,” the trustees might submit “ the question of raising such moneys ” to the “ taxpaying electors ” at a special election, and if there was a majority vote in favor of raising such moneys,” then the trustees may raise the same in the same manner as other village taxes are raised and collected, and in the mean time in anticipation of such tax the money may be temporarily borrowed on the credit of the village and used for the purpose desired. If the amount desired to be raised for any of the purposes stated shall not exceed in the aggregate the sum of $500, the trustees may by an unanimous vote and without submitting the question to the said electors, proceed to raise it in the same manner as other taxes, and in the mean time borrow in anticipation and use for .the purposes intended. By section 2 of the. act it was provided that the powers conferred by this act are in addition and supplementary to and independent of all other powers possessed by villages, either under any special act or under th'e general act for the incorporation of villages.”

It is very apparent that this act was designed to meet emergencies not otherwise provided for when for some public purpose there was a necessity for the immediate use of moneys. The moneys to be raised were “ additional to the amount permitted to be raised by its charter or by the general law aforesaid,” and naturally would have reference to the subjects that by the charter or the general act the village had control over. The object was “ to raise moneys,” and the provisions of the act are to be construed in view of 'that object. The submission was to be to “the taxpaying electors,” not “to the electors,” as in the Water Act. . Aside from borrowing the money in anticipation of the tax, no power was given to make contracts to bind the village. It is difficult to see. how there was any design to modify the provisions of the "Water Act, or how it can fairly be construéd to refer at all or apply.to the subject of that act. That was a particular and specific subject with special provisions, and the general provisions of the act of 1887 should not be deemed to change them unless an intent to do so was clearly manifest. (Matter of Commissioners of Central Park, 50 N. Y. 493; In the Matter of the Evergreens, 47 id. 220.) The intention of the Legislature is the test, and I fail to see how an intent can be inferred in the act of 1887 to modify the conditions of the act of 1873. It may be observed that the provisions of the act of 1873 are in substance re-enacted in the revision of 1890. (Chap. 566, § 81.)

These considerations lead to the conclusion that the defendants are not helped by the act of 1887, and that the contract of August 15, 1890, cannot be deemed to be operative prior to September 14, 1891. It follows that upon the case as made the plaintiff was entitled to some relief, and that, therefore, the complaint should not have been dismissed.

Hardin, P. J., and Martin, J., concurred.

Judgment reversed on the exceptions and a new trial ordered, costs to abide the event.


text:
    Alexander R. Gebbie and Another, Respondents, v. Lovitt E. Stitt, Appellant.

      Name of a place as a trade mark —fraudulent use thereof Try another — a prelimina/ry injunction not interfered with on appeal.

    The name of a place may be adopted and used as a trade mark, and the right of protection against an infringement upon such use is not necessarily dependent upon the proprietary right in such name, or the exclusive right to its use, hut when another resorts to the use of such name fraudulently, as an artifice or contrivance to represent his goods or business as being that of the person so-previously using it, and to induce the public so to believe, the court may, as against him, afford relief to the party injured.
    In such case the discretion of the Special Term, in refusing to dissolve a preliminary injunction order granted in an action brought to restrain the use of such name by the defendant therein, will not be interfered with upon appeal.

      Appeal by the defendant, Lovitt E. Stitt, from an order of tbe Supreme Court, made at the Jeffei’son Special Term on the 5th day of May, 1894, and entered in the office of the clerk of the county of Lewis, denying the defendant’s motion to dismiss and dissolve a preliminary injunction granted in the action on the 12th of April, 1894.
    The preliminary injunction order restrained the defendant until the further order of the court “ from manufacturing, selling, or in any way or manner disposing of or causing to be disposed of, sold or manufactured, plows, bearing in any manner or form whatever the name c Deer Diver ’ as a name or trade mark, or any name like or similar thereto, which might deceive or tend to deceive the public to plaintiffs’ harm.”
    The injunction was originally granted ex parte on the verified complaint and accompanying affidavits of the plaintiff Gebbie and one Bowman. The defendant, upon the same papers upon which the injunction was granted and on the affidavit of the defendant, moved at Special Term to vacate it. In opposition thereto further affidavits were used by the plaintiffs and the order was then made which is appealed from.

      FL. G. Ooolc, for the appellant.

      Frank Bowman., for the respondents.
   MeewiN, J.:

Deer Diver ” is the name of a village and post office in the town of Denmark, in the county of Lewis. Prior to 1891 the plaintiff Gebbie had for many years been engaged at that place in the manufacture and sale of a certain kind of plow, having stamped upon the top of the beam the name Deer Diver ” as a trade mark, and it was known generally to the public as the “ Deer Diver Plow.” An extensive and lucrative business had been established, and the name Deer Diver,” as applied to that particular kind of plow as a trade mark, had become of great value and relied on by the public as a guaranty of a good article. Early in 1891 the plaintiffs became the owners of the manufacturing plant, the good will in said plow, together with the tools and fixtures and patterns used in its manufacture, and removed the plant to Lowville, in the same county, where they have since, under the name of the Lowville Iron "Works, been engaged in the manufacture and sale of the said plow and the use thereon of the trade mark “ Deer Biv.er.” In 1893 the plaintiff Gebbie sold to the defendant the plow factory building at Deer Diver, upon the representation of the defendant that he purposed to make the same into a blacksmith and general repair shop. Instead of doing that, he began, in or about March, 1894, the manufacture •of plows in imitation of the plaintiffs’ plow. The defendant was a former employee of the plaintiffs and had aided them in preparing their plow for .the trade. It is alleged in the complaint, and not denied by defendant, that, in a way unknown to the plaintiffs, and without their knowledge or consent, lie had obtained duplicates of the patterns used by plaintiffs in manufacturing the plow, and that thereupon he began at the village of Deer Diver the manufacture of plow's in imitation of plaintiffs’ plow for the general trade from the duplicate patterns and bearing the name “ Deer Diver.”

The defendant in his affidavit states that in May, 1893, he purchased of Gebbie the foundry and building, shops and fixtures, known as the Deer Diver Plow Foundry or factory, and that at that time there was on the top of the factory building and bolted on the same a plow on which was plainly marked the words “ Deer Diver,” which passed with the building; that the foundry or factory there has been known for many years as the Deer Diver Foundry or factory, and that the defendant now is, and has been since May, 1893, engaged there' in the manufacture of plows, but not of the same plow which is manufactured by plaintiffs at Lowville, or was formerly manufactured by them, or either of them, at Deer Diver ; that the name which he uses in connection-with the plow was not used as a trade mark, but simply as an advertisement for the public as a geographical name of the place where the plow was manufactured. He does not deny that he purchased the premises of Gebbie for the purpose of making the same into a blacksmith and general repair shop. He alleges that the plaintiffs, after moving to Lowville, abandoned the irse of the words Deer Diver,” but this is fully met by the plaintiffs’ opposing affidavits.

The plows manufactured by defendant have on the top of the beam the words Deer Diver,” and on the side of the beam the words “ Lovitt E. Stitt, Manufacturer, Deer Diver, N. Y.” The plows manufactured by plaintiffs have -on the top of the beam the words “ Deer Diver,” .and on the side in one pattern the words Lowville Iron "Works Co., Lowville, N. Y.,” and in another pattern the words “ Lowville, N. Y.”

In the plaintiffs’ opposing affidavits it was shown that the defendant or his agents were advertising his plow as the u genuine old original Deer Diver plows,” and represented that it was identical with the plow manufactured by the plaintiffs and their predecessors.

In Newman v. Alvord (51 N. Y. 189) it was held that the name of a place may be adopted and used as a trade mark. The right of protection against an infringement upon such use is not necessarily dependent upon a proprietary right in it or the exclusive right to its use, but when another resorts to the use of it fraudulently, as an artifice or contrivance to represent his goods or business as that of the person so previously using it, and to induce the public to so believe, the court may as against him afford relief to the party injured. (Bradley, J., in Koehler v. Sanders, 122 N. Y. 74; Meneely v. Meneely, 62 id. 427.)

In Wotherspoon v. Currie (L. R. [5 Eng. & I. App.] 508) it was held that the name of a place may become a trade denomination and as such the property of a particular person who first gives it to a particular article of manufacture, and the employment of the name by another person for the purpose of describing an imitation of that article is an invasion of the right of the original manufacturer who is entitled to protection by injunction. Of this case Judge Eael in the Newman case says : In that case the plaintiffs, and those to whom they succeeded, had formerly carried on the business of starchmakers at Glenfield, near Paisley, and their starch had become known in market and was sold as Glenfield starch. After the plaintiffs’ starch had become thus known, they removed their starch works from Glenfield to another small place near Paisley, and there continued to manufacture their starch, which continued to be known and sold as Glenfield starch. The defendant afterward commenced to manufacture starch at Glenfield, and placed on the labels upon his packages of starch the word Glenfield, and sold his starch as Glenfield starch. ILe claimed the right to do this because his starch was made at Glenfield and the plaintiffs’ was not. But it appeared that he used the word Glenfield for a fraudulent purpose. to increase his sales at the expense of the plaintiffs, by inducing the public to purchase his starch under the belief that it was the starch made by the plaintiffs, and it ivas held that the plaintiffs were entitled to be protected in the use of the word as their trade mark. The defendant could truthfully apply the word Glenfield to his starch, but he was restrained because he applied it with a fraudulent and dishonest purpose.”

In High on Injunctions (§ 1069) it is said: “ The protection afforded-by courts of equity against the infringement of trade marks is not dependent upon any exclusive right to a particular name or to a precise form of words. The right to relief is rather dependent upon the necessity of extending protection against the commission of fraud, and this fraud may consist in the use of a name to which defendant is entitled, if such use be coupled with other circumstances rendering it an infringement of complainant’s rights.” In lee v. Haley (L. R. [5 Ch. App. Cas.] 161) it is said that “the principle upon which the cases on this subject proceed is, not that there is property in the word, but that it is a fraud on a person who has established a trade, and carries it on under a given name, that some other person should assume the same name, or the same name with a slight alteration, in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name.” In Lea v. Wolf (46 How. Pr. 159) it is said: “ Where words or names are in common use, no one person can claim a special appropriation of them to his peculiar use; but where words, and the allocation of words, have, by long use, become known as designating the article of a particular manufacturer, he acquires a right to them, as a-trade mark, which competing dealers cannot fraudulently invade. The essence of the wrong is the false representation and deceit. When the improper design is apparent, an injunction should be issued. In such eases injunctions have been sustained, though the name of a place, or of a celebrated person, were within the trade mark protected by the injunction.”

In Evans v. Von Laer (32 Fed. Rep. 153) it was held that the plaintiff would be protected in the use of a geographical name in case there was fraud on the part of defendant, and the case of Columbia Mill Company v. Alcorn (150 H. S. 460) does not lay down a contrary rule.

In the present case the Special Term, from the papers before it, had a right to assume that the defendant was not in good faith using the name “ Deer River ” as indicating the place of manufacture; that he did not obtain, on his purchase from the plaintiff Gebbie, the good will of the business, but bought the property for another purpose as he represented when he bought it; that he surreptitiously obtained the patterns of the plaintiffs, or duplicates, and made his plows therefrom, and was in the attitude of committing, or attempting to commit, upon the plaintiffs a fraud by inducing persons to deal with him under the belief that they were dealing with the person, or the true representatives of the person, who had given a reputation to the name, and that he in substance falsely represented to the public and to plaintiffs’ customers that he owned the good will of the business. In this view of the case, and in the light of the authorities referred to, it should not be said that the Special Term erred in declining to vacate the injunction. The discretion of the Special Term in the matter (Hudson River Tel. Co. v. W. T. & R. Co., 121 N. Y. 397) should not be interfered with.

HaediN, P. J., and PIaetiN, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    William Cooley, Appellant, v. Elmina E. Lobdell, as Administratrix, etc., of Gideon Lobdell, Deceased, Respondent.

      Verbal contract to convey real estate —void under the Statute of Wrauds- — part performance— Statute of Limitations — the owner of the fee may establish his right notwithstanding a tenancy by the curtesy.

    The fact of the payment of the consideration, in a case where its recovery in an action at law would fully indemnify the party paying it, is not a sufficient part performance of a verbal contract to sell real estate to tafee it out of the Statute of Frauds or to authorize equitable relief; a part performance, to have that effect, must he substantial, and is not sufficient unless it puts the party making the part performance in such a situation that it becomes a fraud upon him if the agreement be not fully performed.
    It was verbally agreed between a wife and her husband that the wife should let the husband have certain money to enable him to build a house on a portion of his farm, and that when it was done the husband should deed to her the house and sixty acres oil tlie western part oí the farm. Prior to 1876 the husband received the money, and in that year the new house was built, and in September of that year the husband and wife moved into the same. Stakes were set up indicating the division line between the sixty acres and the balance of the farm, the arrangement being that the husband was to pay off a mortgage upon the premises with the proceeds of the sale of the products of the farm, he remaining in the possession thereof. The husband stated that the house was built just as his wife wanted it, and the wife called the house hers. The wife made no improvements to the property, except to set out a rose bush and soma pieplant roots, and various other roots for flower beds to ornament the yard.
    The husband and wife occupied the house until April, 1880. In August, 188®, the husband wrote to his wife a letter signed by him, in which, among other things, he staled : “If you will come back I will surely do as I agreed to. I will give you a deed of the sixty acres of land.” The wife died intestate in August, 1882, without having returned to the house. The sixty acres were never deeded to her. The husband died in January, 1892. Prior to his death he sold and conveyed the sixty acres in question. Three acres he sold in 1879, his wife joining in the deed, and the balance he sold in 1887 and 1888.
    On November 9,1893, an action was commenced by the sole heir at law of the wife against the administrator of the husband, to recover the amount received by the husband from such sales of the sixty acres. The defense was that a case for specific performance was not made out, and that the Statute of Limitations wars a bar to the action.

      Held, that there was no writing to take the case out of the Statute of Frauds, as the letter of August, 1880, was imperfect in that it did not express the consideration nor sufficiently describe the property;
    That, if improvements are relied on to compel specific performance, they should be of a substantial and permanent nature, and that there was nothing done by the wife that could fairly be considered as improvements to the property;
    That there was no possession in her, nor was she in control of the property;
    That, upon the completion of the house in 1876, and the failure of the husband to perform the verbal contract to convey, if the. wife had, at that time, a good ground upon which to maintain an action for the specific performance thereof, she should have brought her action, and that the present action, .commenced in 1893, was barred by the Statute of Limitations;
    That, although in some cases the value of the property or what it was sold for might bo the measure of damages, the sale thereof does not itself give the cause of action.
    The general rule is that when the Statute of Limitations has commenced to run in any case it will not be suspended by reason of any subsequent event which is not within the saving clauses of the statute, and a person cannot avail himself of a disability, unless it exists when his right of action accrues.
    The existence of a possible tenancy by the curtesy, in the husband of an intestate, in the possession of real estate, will not prevent the sole heir at law of the intestate from establishing his right, if he has one, to such property, although it.may affect the extent of his relief.

      Appeal by the plaintiff, William Cooley, from a judgment of the Supreme Court in favor of the defendant, entered in the offieé of the clerk of the county of Broome on the 20th day of February, 1894, upon the dismissal of the complaint directed by the court after a trial at the Broome Circuit before the court and a jury, and also from an order entered in said clerk’s office on the 20th day of February, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      A. D. Wales, for the appellant.
    Qa/rver, Deyo c& Jenhins, for the respondent.
   Merwin, J.:

Olive Cooley, a daughter of the plaintiff, married Gideon Lobdell, defendant’s intestate, in 1864. They had one child, who died in 1878. Lobdell, in 1871, became the owner of a farm of 160 acres, in the town of Conklin, in the county of Broome, and on the east side of it there was an old house. In 1874 Solomon Bunnell, the grandfather of Olive, died, and she was one of his heirs. From him before he died, or from his estate after he died, and prior to 1876, she received about the sum of $4,000. There is evidence tending to show that in the fall of 1874, or early in 1875, it was verbally agreed between Olive and her husband, that she would let him have her money to enable him to build a new house on the west side of the farm, and that when the house was done he would deed it to her, together with sixty acres, the western part of the farm. One witness testifies as follows : “ While I was there .on my visit Gideon said to me, Mother, I am going to tell you what I have been thinking of doing, or would like to do; that is, divide the farm, run off sixty acres, and build a house on it, and move there, but I can’t do it unless Olive will let me have the money to build the house with.’ Olive says, He offered me his note if I would let him have the money, and I won’t do it and take his note.’ He hesitated a few minutes, and he said, ‘ I will tell you what I will do. I will give you a deed of the sixty acres when the house is done, if you will let me have the money to build the house with,’ and she said, ‘ I will let you have the money if you will give me a deed when the house is done.’ He said he would give her a deed of the sixty acres of land when the house was done, if she would let him have her money to build the house with. She told him she would. The money spoken of was money she expected from her grandfather; it was after his death. In this talk I have just given it was said that he was to work the farm -and have the proceeds, and he was to pay off the mortgage, to see that the mortgage upon it was paid off if he had the proceeds of the farm. In this conversation it was said the money she had let him have and would let him have, was four thousand dollars.”

Prior to 1876 the husband received the money, and the new house was built in 1876, at an expense of about $2,600, and the parties moved into it in September, 1876. Stakes were set indicating the division line between the sixty acres and the balance of the farm. There is evidence that the husband stated that the house was built just as his wife wanted it, and that she called it hers. There is no proof that Mrs. Lobdell made any improvements, except she set out a rose bush and some pieplant roots, and various other roots for flower beds to ornament the yard. Mr. and Mrs. Lobdell lived in the house until April 1, 1880, when they moved to Binghamton, where they lived until the death of Mrs. Lobdell on August 27, 1882. The sixty acres were never deeded to her, though request was made as early at least as February, 1877, and he verbally promised to do it. In August, 1880, when Mrs. Lobdell was at her father’s, her husband'wrote to her a letter, signed by him, in which he says, among other things: • “ If you will come back I will surely do as I agreed to. I will give you a deed of the sixty acres of land.”

Mrs. Lobdell died intestate, leaving the plaintiff as her sole heir at law. On the 31st of January, 1892, Mr. Lobdell died, and the defendant was afterwards duly appointed his administratrix. Prior to his death he sold and conveyed all of the sixty acres. Three acres he sold in 1879, his wife Olive joining in the deed, and the balance was sold in 1887 and 1888, the last being April 1,1888. He received upon these sales about $4,500, and that is the amount the plaintiff seeks to recover here. This action was commenced November 9, 1893.

The defense is twofold: First, that a cause for specific performance was not made out; and, second, that the Statute of Limitations is a bar.

1. There was no writing to take the case out of the Statute ox Frauds unless the letter of August, 1880, be such. That, however, -was imperfect. It did not express the consideration nor was the property sufficiently described. (Wright v. Weeks, 25 N. Y. 161; Rollin v. Pickett, 2 Hill, 552; Waterman on Spec. Perf. § 236.)

Was there such a part performance of the verbal contract as to authorize equitable relief ? The payment of the consideration was of itself not enough. (Winchell v. Winchell, 100 N. Y. 163; 1 Story’s Eq. Juris. § 160.) In Miller v. Ball (64 N. Y. 292) it is said: “ The payment of the consideration alone, in a case where its recovery in an action at law would fully indemnify the party paying, would not be a sufficient part performance within the rule under consideration, and neither would mere possession be, without any other circumstance of hardship or fi’aud. But payment of the consideration and possession under the agreement, or by the consent of the vendor, are facts which may be considered with other facts upon the question of part performance.” The part performance must be substantial, and nothing will be considered as part performance which does not put the party into a situation which is a fraud upon him unless the agreement be fully performed. (Wheeler v. Reynolds, 66 N. Y. 231; 1 Story’s Eq. Juris. § 761.) If improvements are relied on, they should be of a substantial and permanent-nature. (Waterman on Spec. Perf. § 231; 1 Story’s Eq. Juris. § 761, note 4; Dana v. Wright, 23 Hun, 32.) In Adams’ Eq. (6th Am. ed.) 212, it is said that the principle of part performance does not apply “ to any acts which do not alter the position of the parties. Such, for instance, as the talcing of surveys, the preparation of conveyances, the payment of earnest, and even the payment of purchase money itself; for, although all these acts are in. some sense a performance of the contract, yet their consequences may be set right by damages at law, and they do not place the parties in a position fromt which they can only be extricated by its completion.” The taking possession and making improvements is said to be a necessary condition. (Dunckel v. Dunckel, 56 Hun, 29.)

In this case there was nothing done by the wife that could fairly be considered improvements as applicable to such a case. There was no possession, certainly none that would make her a trespasser if no contract. She was not in control of the property. By the arrangement tbe lmsband was to pay oft; the mortgage with the proceeds of the fann, and so necessarily he was to remain in possession.

The case of Smith v. Smith (51 Hun, 164; affd., 125 N. Y. 224) is relied on by the plaintiff. In that case the husband, with the assent of his wife, with his own means built a block upon the land of the wife upon her verbal agreement that if he did so he should have a lien thereon for the amount, with a right to sell if necessary and recover back the advancement. This was in 1819, and the property was increased in value to the amount of the advance. The husband thereafter managed the property, using the rents and profits for the benefit of the family until 1881 when' there was a disagreement, and the wife repudiated the agreement. It was held that the husband had a lien that equity would enforce, it being said that the wife incurred no individual liability by reason of the arrangement. The husband had no remedy unless he had a lien. In the present case the situation is different, especially in the fact that the wife upon the refusal of the husband to perform could have-sued for the money advanced. There is no evidence to what extent the farm was benefited. Besides if the transaction be treated as a security for money advanced, the right of action on the death of the wife would go, not to the heir but to the personal representatives and so inure to the benefit of the surviving husband, (Robins v. McClure, 100 N. Y. 328, 336.)

The Smith case does not I think help the plaintiff, but his case must be determined by the rules ordinarily applicable to the specific performance of such agreements. Eor aught this case discloses, an action for the recovery of the money would have fully protected the wife, and no such fraud can be said to have existed as would furnish a basis for • equitable action under well-settled principles applicable to such subjects.

2. The house was completed in the fall of 1816. Then upon failure of the lmsband to perform, if the wife had good ground for specific performance, she might have brought her action. (Bruce v. Tilson, 25 N. Y. 194; McCotter v. Lawrence, 4 Hun, 107.) The present action was not brought till November, 1893. The application of the ten-year Statute of .Limitations is sought to be avoided upon the idea that plaintiff’s right of action accrued upon the sale by the lmsband of the land. The last sale was on April, 1, 1888. In some cases tlie value of the property, or what it was sold for, may be the measure of damages, but the sale does not give the cause of action. The plaintiff has no right except as he may establish a case for specific performance. As said in Matthews v. Matthews (133 N. Y. 679), the substituted damages founded upon the value of the property could not be awarded until it was determined that the plaintiff was entitled to a specific performance. “ The law giving the purchaser an immediate action, it is no answer to the claim that the Statute of Limitations then commenced running, that the form of relief which he could then have had was not precisely the same as that now attainable.” (Peters v. Delaplaine, 49 N. Y. 369.) A new cause of action cannot be created by a subsequent demand of specific performance. (Bruce v. Tilson, 25 N. Y. 194.) “ If there are successive owners of the cause of action, or of equitable relief, and the right to prosecute arises in the time of the first, the period of limitation commences at that time, and continues attached to the demand during the several subsequent changes of both, and when the statute period has elapsed, the demand is barred, though the last proprietor had recently acquired his right.” (Denio, J., in Bucklin v. Bucklin, 1 Abb. Ct. App. Dec. 251.) This is not the case of moneys received by an agent from a third party within the rule laid down in Nearing v. Brown (10 N. Y. St. Repr. 637).

But it is urged that Gideon Lobdell was a tenant by the curtesy, and so the time from his wife’s death to his own death should be excluded. It is not clear that any such right existed. If, as held in Wheeler v. Reynolds (66 N. Y. 227), the parol agreement was void in equity as in law, and the right of the court to give relief is founded, not on the agreement, but on the fraud, it is difficult to see how the wife had any seizin legal or equitable that would furnish a basis for curtesy. In Harvey v. Brisbin (143 N. Y. 152) the right of a tenant by the curtesy is said to be a legal right. Besides, the right to sue being in the wife, the running of the statute commenced before her death. “ A person cannot avail himself of a disability unless it existed when his right of action or of entry accrued.” (Code Civ. Proc. § 408.) The general rule is that when time has once commenced to run in any case it will not cease to do so by reason of any subsequent event which is not within the saving of tlie statute. (1 Wood Lim. [2d ed.] § 6.) Tbe existence of a possible right of curtesy would not prevent the plaintiff establishing his right if he had one; it might affect the extent of his relief. A number of cases are cited with reference to the enforcement of debts of ancestors against heirs of devisees, but they do not seem to apply here.

The foregoing considerations lead to the conclusion that the defense in both aspects is made out and that the nonsuit was properly granted.

HaediN, P. J., and Martin, J., concurred.

Judgment and order affirmed, with costs.


author: MeewiN, J. :

text:
    The People of the State of New York ex rel. Herbert C. Sholes, Appellant, v. The Board of Supervisors of Oneida County, Respondent.

      Special surrogate of Oneida county — compensation fhweof.

    nder tlie provisions of chapter 806 of the Laws of 1849, the special surrogate of the county of Oneida has power to perform the duties of the surrogate, in the absence from the county of that officer. His compensation is governed by the resolution of the board of supervisors of such county passed on December 80,1887, in pursuance of the authority given by such act, and the provisions of sections 2484 and 2498 of the Code of Civil Procedure do not apply to the compensation of such special surrogate.
    Appeal by the plaintiff, The People of the State of New York, and by Herbert 0. Sholes, the relator, from that portion of an •order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 8th day of January, 1892, dismissing the claim of the relator and denying him compensation for services rendered by him as special surrogate and for services rendered by him as acting surrogate of the county o'f Oneida during the absence of the surrogate thereof.
    During the years 1888, 1889 and 1890 the relator was special surrogate of Oneida county. In each of those years the surrogate ■of the county was absent from the county a number of days, and during those periods of absence the relator was by various orders of justices of the Supreme Court of the judicial district in which that county was situated, authorized and empowered to act as surrogate of the county and hold the Surrogate’s Court therein, and held himself in readiness to so discharge the duties of surrogate of that county, and did discharge such duties and hold said court so far as he was called upon to do so. He also during those years acted as surrogate and held Surrogate’s Court in three matters or proceedings in which the surrogate was disqualified from acting, and had filed a certificate of disqualification as provided by subdivision 1 of section 2487 of the Code of Civil Procedure.
    On the 13th of November, 1890, the relator duly presented to the board of supervisors of the county an account and claim for services as acting surrogate during the times above stated. The board, however, refused to audit or allow the claim. Thereupon the relator applied for a mandamus. An alternative writ was granted to which the board made return. Upon the issues made by the alternative writ and the return the case was tried. Pacts were found substantially as above stated, the dates of service being given in detail, all of which accrued prior to November, 1890. It Avas also found that on December 30,1887, a resolution Avas adopted by the board of supervisors fixing at a certain amount the salary of the relator during his term of office; that the salary so • fixed was paid to and received by the relator quarterly during his term; that he presented no bill for services as special surrogate while acting as surrogate to the board during their sessions for the years 1888 and 1889. It Avas also found that, pursuant to the statute giving the special surrogate the same poAver as the county judge out of court, the relator granted orders in a large number of proceedings and matters before him.
    As matter of law the court decided that the relator was entitled to have allowed him a just compensation for his services as acting surrogate on the occasions when the surrogate was disqualified from acting, but was not entitled to have audited or allowed his claim for services on the occasions Avlien the surrogate Avas absent from the county: A final order or judgment Avas .entered on this decision, and the appeal is from so much thereof as adjudges that the relator is not entitled to be alloAved his claim for services during the absences of the surrogate.

      JT. G. Sholes, in person, for tbe appellant.

      liarry S. Patten, for tbe respondent.
   MeewiN, J. :

Tbe relator was elected under tbe provisions of chapter 306 oL tbe Laws of 1849, which was passed in pursuance of the authority. given by section 16 of article 6 of the Constitution. By section 1 of the act of 1849, provision was made for the election of a special surrogate in the county of Oneida and seven other counties, and power was conferred on such officers to discharge the duties of surrogate in their resjjective counties “ in cases of vacancy or inability ” of such officer. By section 2, as amended by chapter 108 of the Laws of 1851, they were given the powers of a county judge out of court. By section 3 of the original act it was provided that “ such local officers shall receive for the,, services to be rendered by them under the provisions of this act, such compensation as shall be allowed to them respectively by the boards of supervisors in the said respective counties.”

It is quite clear that, under this act, the relator had power to perform the duties of surrogate in the absence of that officer from the county. An inability then existed that the statute intended to provide for. If by virtue of that act the services in question were rendered, then the compensation provided for such services has been fixed and paid. The relator, however, claims that his services were performed by virtue of the provisions of section 2484 of the Code of Civil Procedure, and that he is entitled therefor, for the time that he acted, to a compensation equal, joro rata, to the salary of the surrogate, under the provisions of section 2493. To this it is replied that section 2484 applies by its terms only to cases where “ special provision is not made by law for the discharge of the duties ” of the office, and that, therefore, it does not apply here, as there was a special provision for the special surrogate to act in the contingency that happened.

Substantially the same question was considered by this court in Matter of Tyler (60 Hun, 566). The court was then of the opinion that sections 2484 and 2493 did not apply and that the officer was entitled only to such compensation as was allowed by the board of supervisors, in the salary which they fixed. No good reason is apparent for now taking a different view.

Following the view taken in the Tyler case, the order or judgment, so far as appealed from, must be affirmed.

ITakdiN, P. J., and Martin, J., concurred.

Order or judgment, so far as appealed from, affirmed, with costs.


author: MbewiN, J.: Hardin, P. J.:

text:
    In the Matter of the Petition of Madison D. Shipman, as the Administrator, etc., to Compel a Judicial Settlement of the Accounts of Emily C. Shipman, the Deceased Executrix, etc., of Azariah B. Shipman, Deceased. Madison D. Shipman, as Administrator, etc., of Azariah B. Shipman, Deceased, Appellant and Respondent. In the Matter of the Petition of Jacob A. Nottingham, as Executor, etc., of Emily C. Shipman, Deceased, for the Judicial Settlement of the Accounts of Emily C. Shipman, the Deceased Executrix, etc., of Azariah B. Shipman, Deceased. Jacob A. Nottingham, as Executor, etc., of Emily C. Shipman, Deceased, Respondent; Marcia S. Andrews and Another, Respondents and Appellants.

      What proceedings under the Oode of Civil Procedure, § 2606, cannot he consolidated — settlement of the accounts of a deceased executrix — an inventory, prima facie evidence ■ — effect of the deposit and withdrawal, by cm executrix, of moneys — she will not he charged with a premium on gold ■ — • bonds, to he inventoried at actual, not par, value — reasonable funeral expenses — taxes, tobe paid by the life tena/nt — taxes and expenses of a tn'ust must be paid from the income.

    There is no special power given to consolidate a proceeding brought to compel an accounting by the executor of a deceased executor, with a proceeding brought by such executor for a voluntary settlement of the accounts of his testator as executor under section 2606 of the Code of Civil Procedure, although they are both proceedings for the same purpose, but the fact that an order was made consolidating such proceedings is not a sufficient ground for the reversal of a decree, rendered in the consolidated proceedings, when the party appealing was not harmed by the granting of the order of consolidation.
    Where, upon the settlement of the accounts of a deceased executrix, by the aid of the inventory made by the executrix and on file, and of other evidence, the true amount of the estate of which the deceased was the executrix as then existing can be ascertained with, reasonable certainty, if the executrix acted in good faith, the severe remedy given where there exists a confusion of goods should not be • applied.
    The inventory is prima facie evidence of the amount of the estate (although it be not shown that the proper notice of the making thereof was given) in a case in which, on the trial, no objection was made to the receipt of the inventory in evidence, and the objection that proper notice was not given was not made until requests were made on the settlement of the case on appeal, and where the inventory was filed in 1869 and the proceedings for the accounting were commenced in 1898. ‘
    Where an executrix deposits money in an account in a bank kept by her testator in his lifetime, and continued by her after his death, and thereafter draws out the same, signing the receipt therefor as executrix, presumptively such sum of money is the property of the estate; it will not, however, be charged to a deceased executrix nor the inventory be surcharged in that amount on the rendering of her account of proceedings, if not mentioned therein, nor in her inventory where the inventory was made and filed prior to the making of such deposit — in the absence of proof that such sum was not an amount resulting from the sale of assets mentioned in the inventory.
    When a person receives from another on the day of his death a sum of money in gold, and is thereafter appointed executrix of the deceased, if such sum was . not received as a gift, or in the payment of a debt, but to be accounted for, such executrix should be charged with the amount received by her; she should not, however (if the money received by her was gold), be charged with the amount of any premium thereon.
    Bonds belonging to an estate should be appraised at their actual value, and not at their par value, and an executrix, although the same are set down in the inventory at their par value, is chargeable with their actual value at the time of the filing of the inventory of the estate.
    A reasonable charge for a suitable headstone is a proper disbursement to be allowed to an executrix as a part of the funeral expenses of a testator, but where the value of the real and personal estate of a testator together amounts to about §17,000 an allowance to his executrix of the sum of §2,000 for the construction of a “vault and tomb,” and the sum" of §580 for a cemetery lot, without express authority in the will, is too large, and the item of §2,000 should be reduced to the sum of §1,000.
    The general rule is that the taxes assessed upon real estate during the existence of a life tenancy must be paid by the life tenant, and to sustain a construction of a will whereby the capital of a trust fund may be impaired by using it in payment of taxes, the will must contain words of the most unmistakable import, pointing unequivocally in that direction.
    The general rule is that in case of a bequest of the income of a fund the taxes on the fund and the expenses of the trust must be paid out of the income.
    Cross-appeals by Madison D. Shipman, as administrator, etc., of Azariah B. Shipman, deceased, and by Marcia S. Andrews and another, legatees under the last will and testament of Emily 0. Shipman, deceased, from portions of a decree of the Surrogate’s Court of the county of Onondaga, entered in the said Surrogate’s Court on the 9th day of February, 1894, settling the accounts of Emily 0. Shipman, the deceased executrix, etc., of Azariah B. Shipman, deceased.

      Matthew Hale and Jerome Egelston, for the appellant Shipman, administrator, etc.

      G. W. Andrews, for the respondent Nottingham, executor, etc., and for the appellants Andrews and another.
   MbewiN, J.:

On September 15, 1868, Azariah B. Shipman died at Paris, France. He left a last will and testament which bears date March 12, 1868. This wag on the 19th of November, 1868, admitted to probate in Onondaga county, where the testator resided, and letters testamentary at that date were issued to Emily 0. Shipman, the widow of the deceased and one of the executors named in the will. Afterwards, and on the 6th of February, 1869, an inventory of the personal estate was filed in the surrogate’s office. This purports to have been made by two appraisers on the 11th of January, 1869, and was verified by Mrs. Shipman before the surrogate of the county on the day it was filed. The amount of property, as there stated, was $13,669.

By the will, after providing for debts and funeral expenses,” the testator gave legacies to the amount of $300, payable as soon as practicable after his decease, and by the fifth and sixth clauses he gave legacies to the amount of '$1,500, payable at tlie death of his wife, without interest. He then disposed of his medical library and surgical instruments and apparatus. Then came the following provisions:

‘Eighth. I give, devise and bequeath to my wife, Emily C. Ship-man, the one undivided one-half part of all the rest and residue of íhy real and personal estate of which I may die seized or possessed, to have and to hold the same to her and her heirs for ever.
Ninth. I give, devise and bequeath to my said wife the remaining undivided one-half part of all the rest and residue of my real and personal estate of which I may die seized or possessed, to have and to hold the same and to receive the income therefrom for and during the term of her natural life, and upon her death I give, devise and bequeath said undivided one-half part as follows,” the manner of such disposition being stated, which is not important here except it was to brothers and sisters or their descendants. Two executors were named, and they were directed and empowered to sell and convey any real estate that lie owned at his decease, and “meanwhile to pay all taxes and charges thereon.” In the last clause there is this statement: It is my intention that my wife shall receive all the income from my estate during her life, arising as well from the rest and residue bequeathed, as from any sums set apart to pay the legacies provided for in the fifth and sixth items of my will.”

Mrs. Shipman died on July 26, 1892, never having had a judicial settlement of her accounts. The other executor named in the will did not qualify. Mrs. Shipman had a separate estate, which, at her death, inventoried $100,000 and upwards. She left a will, which was afterwards duly proved, and letters testamentary issued to Jacob A. Nottingham on the 21th of September, 1892. At the same date Madison D. Shipman was duly appointed administrator with the will annexed of the estate of Azariah B. Shipman. On the 30th of March, 1893, he presented a petition to the Surrogate’s Court of Onondaga county praying that Nottingham, as executor, etc., be required to render an account of the proceedings of Emily 0. Ship-man, as executrix, etc., of Azariah B. Shipman, deceased, and to deliver"and pay over whatever was found to belong to said administrator. A citation was duly issued, and, upon its return, Nottingham, as executor, presented his petition for a final judicial settlement of the accounts of Emily C. Shipman as such executrix. IJpon this a citation was issued to the proper parties, returnable on the 20th of June, 1893. On the 30th of June, 1893, to which time both matters had been duly adjourned, an order was made that “ said matters of accounting be and the same are hereby consolidated.” After-wards Nottingham, as executor, filed an account of the proceedings of Mrs. Shipman as executrix, objections were filed by the administrator with the will annexed, and after a trial the decree was made that is appealed from.

The appellant, fclie administrator, etc., claims that the order of consolidation was improperly made. The administrator was proceeding under section 2606 of the Code of Civil Procedure. The same section, as amended in 1891, authorized the proceeding of the executor of Mrs. Shipman. There seems to be no sjiecial power given to consolidate the two, but they are both proceedings for the same purpose. It is difficult to see how the administrator was harmed by the order. (Matter of Hodgman, 31 N. Y. St. Repr. 479.) He had full opportunity to have determined what moneys or property should be turned over to him. lie suggests that the whole estate should have been turned over to him, but he hardly claims that the deceased executrix should not be credited with the half of the estate that was absolutely given to her. She is charged in the decree with all the costs and disallowed commissions. The decree is in fact entitled in both matters. "We find no good ground for interfering with the order.

The main question in the case relates to the basis on which the accounting should be had. The decree is made on the basis of the inventory, adding thereto such items as upon the facts were considered proper. The claim of the administrator with the will annexed is that the inventory is not prima facie evidence of the amount of the estate, because : Finest, it is not shown that the proper notice was given of the time and place of the appraisal, and, second, items are shown to have been omitted, intentionally, as the appellant claims, to such an extent as to make the inventory unreliable and in effect fraudulent, and that as the executrix kept no accounts and mingled the estate of her testator with her own, it should be assumed that all the property which she left belonged to the estate of her testator, except such as her representative may be able to show belonged to her individually. In this way it is claimed that the doctrine of confusion of goods (1 Story’s Eq. Juris. § 468; 1 Perry on Trusts, § 447) should be applied.

The inventory was made January 11, 1869; and verified before the surrogate and filed in the surrogate’s office February 6, 1869. No question is made about the proper appointment and qualification of the appraisers. No proof was given that notice of the appraisal was served and posted, as required by the statute. The inventory was offered in evidence by the executor of Mrs. Shipman, and was received in evidence without objection. No question was raised as to its invalidity until requests were made upon the settlement of the case upon appeal. If it had been raised in time and the defect not then supplied, it might with considerable reason be said that after this lapse of time it would be presumed that the proper notice was given. (See Lawson Presumptive Ev. 60.) The circumstance that for twenty years and upwards, and until after the death of Mrs. Shipman, no question was raised about the inventory, deserves some consideration. (Thompson v. Thompson, 1 Bradf. 24.)

The surrogate by his decree charges the estate of the executrix with several additional items of assets, but finds that she committed no willful breach of trust, and did no fraudulent or dishonest act, and refuses to find that she intentionally withheld and omitted from the inventory any of the additional items. There are in the case circumstances which tend to support this conclusion of the surrogate, and we are not prepared to say his conclusion is wrong. Besides, there is evidence in the case that is quite persuasive to the conclusion that the inventory is substantially correct. I refer to the statement or inventory made by the testator in his diary on December 9, 1861. This was evidently a statement of his securities and real estate and included an item for notes and bank accounts. The testator and his wife went to Europe in March, 1868, and upon the letter of credit of the testator there was drawn about $2,500 up to the time of his death. Having this in view, it would seem that the inventory filed did not depart greatly from the situation in fact when it was made.

If, by aid of the inventory as filed and the other evidence in the case, the true amount of the estate as then existing can be ascertained with reasonable certainty, and the testatrix acted in good faith, the severe remedy upon confusion of goods should not be applied.

We are of the opinion that the surrogate did 'not err in taking the inventory as a basis. That was prima facie the amount of the estate. (Marre v. Ginochio, 2 Bradf. 165; Matter of Ryalls, 74 Hun, 205, and cases cited; Code Civ. Proc. § 1832.)

The administrator claims that there are other items that the surrogate should have charged to the executrix. It appears that on February 1, 1869, Mrs. Shipman deposited in the Syracuse Savings Bank, in an account kept by her husband in his lifetime, and continued by her after his death, the sum of $2,000, which, on the third of March following, she drew out, signing the receipt as executrix. Presumptively this was property of the estate. There was no item of this particular amount and character in the inventory, and, therefore, it is claimed it should be added to it. The argument seems to be that the verification of the inventory by Mrs. Shipman on February 6, 1869, was a statement by her that the estate was then situated as stated in the inventory, and that as it did not include the item of $2,000, it should be added to it. The surrogate disallowed the item on the ground that the inventory being 'prima facie proof of the assets, it could not be found from the evidence that this item was not some portion of the property mentioned in the inventory, or the proceeds thereof. It is to be observed that the inventory was made January 11, 1869, and must speak of the character of the property as it was then. So we think the surrogate did not err in disallowing the item. The same may be said as to divers items deposited by Mrs. Shipman to her credit as executrix in the Onondaga County Savings Bank from October 1,1869, to June 30,- 1874.

It was found by the surrogate that Mrs. Shipman on or about September 15, 1868, received from her husband at Paris, France, ¿6360 sterling, of the value of $1,746, which belonged to her husband and was received, by her either as his agent before his death or as part of his estate after his death, and should be charged to her, *and he -did so charge it in his decree. The administrator claims that the charge was too small in that it did not, as he claims, include the premium then on gold. The appellants’ legatees under the will of Mrs. Shipman claim that the evidence does not warrant the finding that the money was the testator’s, or that it was received by Mrs. Shipman as agent for her husband or as part of his estate.

The testator on going to Europe in March, 1868, took with him a letter of credit from a banking house in New York, having, as-correspondents, John Munroe & Co., in Paris, France, and J. S. Morgan & Co., in London, England. He died at Paris, France, about twilight on September 15, 1868. On the 15th of September, 1868, Mrs. Shipman received by credit with John Munroe & Co., at Paris, £360. This credit was by. draft on London. On the 16th of September, 1868, tlie account of the testator with J. S. Morgan & Co., in London, was charged with draft for £360, and the letter of credit was surrendered. There is evidence from which it maybe inferred that the credit to Mrs. Shipman at Paris was by means of the letter of credit. The money was largely used for funeral exjoenses and expenses of return home. The circumstances warrant the conclusion that the money was received, not as a gift or in the payment of a debt, but to be accounted for. The conclusion on this subject of the surrogate should not be disturbed. The estate of Mrs. Shipman is allowed credit for the funeral expenses.

It is not found or shown except, perhaps, by inference that Mrs. Shipman received the amount in gold. Assuming that she did, the case of Kellogg v. Sweeney (46 N. Y. 291) seems to be against the right to add the premium to the recovery. Ail that was received was money, and the judgment can only be for so much money. (See, also, Phillips v. Speyers, 49 N. Y. 654; Swanson v. Cooke, 45 Barb. 574.)

The same rule would apply to the claim as to an item of $225 received in gold and which was charged to the estate of the executrix at the par value.

In the inventory were several bonds, being five-twenties, so called, of date November 16, 1861, to the amount of $1,500, and of date July 1, 1865, to the amount of $4,000. These are appraised in the inventory at par value and so charged in the decree. It was admitted at the trial that these bonds at the time of filing the inventory were at a premium. We see no good reason why they should not have been appraised at their actual value at the time. They were then, according to the evidence, at a premium of seven per cent. This would add to the inventory the sum of $385.

The surrogate allowed as part of the funeral expenses the sum of $2,000 for the construction of a “ vault and tomb,” and the sum of $580 for a cemetery lot. A reasonable charge for a suitable headstone is proper to be allowed as part of the funeral expenses. (Code Civ. Proc. § 2749 ; Owens v. Bloomer, 14 Hun, 296.) The monument, if it be called that, which is allowed for here, was not of the ordinary character. The amount of the real and personal estate altogether was about $17,000. We find no sufficient reason in the facts or iii law for the allowance of so large a sum for the purposes stated -without express authority in the will. The item of $2,000 should be reduced to the sum of $1,0001

The testator, at the time of his death, was the owner of a house and lot in Syracuse. This was sold in 1881 by the executrix under the power given her by the will. In the meantime she paid for taxes on the premises the sum of $821.44. This the surrogate refused to allow to the estate of the executrix on the ground “ that the ordinary rule should apply that taxes assessed during the existence of a life tenancy must be paid by the life tenant, and although the will directs the executrix to pay the taxes, the fair construction of the will in that regard is that she should pay them out of the income.” The appellants, the legatee, etc., claim that this ruling was erroneous. The general rule is admitted to be as stated by the surrogate, but it is argued that this case is an exception by reason of the clause in the will that directs the executors “ meanwhile to pay all taxes and charges thereon.” In Matter of Albertson (113 N. Y. 434) it was held that to sustain a construction of a will, whereby the capital of a trust fund may be impaired by using it in payment of taxes and of interest on mortgages and in maintaining the realty used by the life tenant, it must contain words of the most unmistakable import pointing unequivocally in that direction. In that case the words to “ pay out of my estate ” were held not to be sufficient to relieve the income from the charge. The force of this decision as applicable here in favor of the ruling of the surrogate is sought to be met by the provision of the eleventh or last clause of the will, where it is'stated to be the intention of the testator that his wife “ shall receive all the income from my estate during her life, arising as well from the rest and residue bequeathed, as from any sums set apart to pay the legacies provided for in the fifth and sixth items of my will.” The claim is that the expression “ all the income ” shows an intention to cast the burden of the taxes in question on the capital of the estate. Yery clearly the object of the eleventh clause was to make clear the proposition that the testator’s wife should have the income on the fund to be set apart for the payment of legacies that were not to be paid until her death. It can hardly be construed to mean that the testator by it indicated an intention that his wife should have the gross income of the estate. The general rule is that in case of a bequest of the income of a fund, the taxes on the fund and the expenses of the trust must be paid out of the income. (Whitson v. Whitson, 53 N. Y. 481.) The ruling of the surrogate should not, we think, be disturbed.

There are no other questions that need be here discussed. It follows that the inventory account should be increased in the sum of $385 and interest from July 26, 1892, the date of Mrs. Shipman’s death, and the amount allowed for funeral expenses should be decreased in the sum of $1,000, and the decree should be modified accordingly. In other respects the decree should be affirmed.

Martin, J., concurred.

Hardin, P. J.:

Upon the force of Owens v. Bloomer (14 Hun, 296) I assent to the modification as to the vault and .tomb ; ” as to the other portion of the opinion I give my assent.

Decree modified as stated in the opinion, and as modihed affirmed,without costs of the appeals to either party.