text:
    Anna T. Geyer, Appellant, v. Edward L. Snyder and Another, as Executors of Samuel F. Engs, Deceased, and Others, Respondents.

      Sale by executors to themselves — presumption of invalidity overcome by acquiescence and laches.

    A sale by executors, of tbeir testator’s interest in a partnership, to themselves, as surviving partners, is not absolutely void, although voidable at the instance of a beneficiary under the testator’s will; and the legal presumption against the validity of such a sale may be overcome by the acquiescence therein of such beneficiary, accompanied by a release and followed by laches, as, e. g., a delay of thirteen years in commencing an action to avoid the sale
    Appeal by the plaintiff, Anna T. Geyer, from a judgment of the Supreme Court, dismissing the complaint upon the merits, entered in the office of the clerk of Kings county on the 4th day of January, 1893, upon a decision of the court rendered at the Kings Special Term.
    The action was brought to obtain the cancellation of an “ agreement ” and a “ release,” and to compel an accounting as to the acts of the executors of the will of Philip W. Engs, deceased.
    The action was tried by the court at Special Term and the following facts, among others, were found by the trial judge:
    “ Philip "W. Engs, the grandfather of the plaintiff herein, died on or about the nineteenth day of May, 1875, at Long Island City, in the County of Queens, in the State of New York; in his lifetime the said Philip W. Engs made and published his last will and testament, dated on the twenty-fifth day of May, 1867, and also three certain codicils thereto, dated, respectively, on June 9th, 1873; June 11th, 1874, and November 24th, 1874, which said will and codicils were in due form of law, and were duly proved before and admitted to probate by the Surrogate of the County of Queens on the tenth day of June, 1875. In and by the said will the said Philip ~W. Engs did give, devise and bequeath the one twenty-eighth part or share of all the rest, residue and remainder of all his property and estate of every name, kind or nature, remaining after the payment of his just debts and funeral expenses, to the plaintiff, and did by his said will, and the codicils thereto, nominate and appoint James M. Blackwell, Henry A. Bostwick, and his sons, Samuel F. Engs and George Engs, to be the executors of said will and codicils. After the probate of the said will, Henry A. Bostwick, Samuel F. Engs and George Engs duly qualified as executors thereunder, but the said James M. Blackwell did not and has never qualified as such executor. Philip W. Engs at the time of his death was a j>artner in the firm, doing business under the firm name of P. ~W. Engs & Sons, composed of the said Philip W. Engs, his said sons, Samuel F. Engs and George Engs, and his nephew, Henry Snyder, Junior. The nominal and unliquidated share and interest of said Philip "W. Engs at the time of his decease in said business of P. "W. Engs & Sons, as stated on the books of said firm, was the sum of one hundred and thirty-eight thousand two hundred and forty-two T%ST dollars. Philip ~W. Engs was at the time of his death seized and possessed of considerable real and personal property in addition to' his interest in the firm as aforesaid. Between the third day of July, 1876, and the fourth day of October, 1877, Samuel F. Engs, George. Engs and Henry Snyder, Junior, as surviving partners of said firm, paid to Samuel F. Engs, George Engs and Henry A. Bostwick, as executors of the estate of said Philip W. Engs, in several payments, the sum of one hundred and twenty thousand dollars in cash in full settlement and liquidation of the share and interest of said estate in and to the said business, as appears by a receipt signed by said executors, dated October 5th, 1877. Said settlement, liquidation and payments were made under and in pursuance of a written agreement under seal executed by and between the said surviving partners and the said executors, dated April 26th, 1876, and was made with the knowledge, approval and consent of the plaintiff herein, and of her husband, Charles T. Geyer, as expressed in and by their written declaration under seal, made a part of said agreement, and dated April 28th, 1876, signed and executed by the plaintiff and her said husband, and the other adult parties interested in the said estate of Philip "W. Engs, and the plaintiff, having knowledge of said agreement, accepted her share of the proceeds thereof. On or about the seventh day of May, 1879, the said executors paid to the plaintiff the sum of eighty-four dollars in payment of the balance due her for her share in the said estate of Philip "W". Engs, deceased; and upon such payment and in consideration thereof the said plaintiff executed and delivered to said executors a written release under seal releasing and discharging said executor’s of and from each and every claim and demand which said plaintiff had, or might have, against them as such executors, and’said release contained the following clause: ‘The said sum of eighty-four dollars being accepted and received by me (the plaintiff herein) in full payment and settlement of the balance due me for and on account of any and all claims against the estate of Philip W. Engs or said Samuel F. Engs, George Engs and Henry A. Bostwick, as executors as aforesaid, such settlement and payment to have the same force and effect as if made under and pursuant vo a decree of the Surrogate of Queens County upon a final accounting regulariy made before said Surrogate by said Samuel F. Engs, George Engs and Henry A. Bostwick, as executors as aforesaid.’ ”
    The conclusions of law were to the effect that “ the said agreement of April 28th, 1876, executed by and between the surviving partners of P. W. Engs & Sons and the executors of Philip ~W. Engs, and entered into and carried out with the knowledge and acquiescence of the plaintiff, was a valid act on the part of the said executors, and is binding upon the plaintiff ; that the release dated May 7th, 1879, executed and delivered by the plaintiff to the executors, is valid and binding, and conclusive upon the plaintiff; that the plaintiff has been guilty of laches in bringing this action, and that judgment should be rendered herein against the plaintiff and in favor of the defendants, dismissing the complaint upon the merits, with costs.”

      Edward B. Merrill, for the appellant.

      Lewis Hurst, for executors of S. F. Engs, deceased, respondents.

      Arthur JEPurst, for executors of George Engs, deceased, respondents.
   Dykman, J.:

We liave no difficulty in upholding the judgment in this action. The sale of which the plaintiff complains was not absolutely void; it operated to pass the title to the property, but it was voidable at the instance of the plaintiff.

Instead of raising objection to the transaction, however, the plaintiff voluntarily received her portion of the proceeds of the sale, and executed a full release to the executors, which must be construed into an acquiescence in the sale and all the proceedings down to that time.

That was in May, 1819, and then the plaintiff remained acquiescent for thirteen years before she commenced this action.

Even now the plaintiff offered no evidence to sustain the charges in her complaint of connivance and overreaching, but relied entirely upon the presumption which the law raises against sales by persons occupying a position of trust, to themselves, either directly or indirectly.

In this case the lapse of time, the acquiescence of the plaintiff and her full release were sufficient to overcome the presumption.

The judgment should, therefore, be affirmed, with costs.

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    The People of the State of New York ex rel. Matilda Cecil v. Arington H. Carman and Others, Commissioners, etc.

      Highway — laid out by commissioners under chapter 568 of 1890, §§ 83-84— departure from the route described in the application.

    Commissioners appointed by the County Court under sections 83 and 84 of chapter 568 of the Laws of 1890 (the Highway Law) to lay out a highway are not bound to follow the route of the petition for the road with precision.
    In such a proceeding, the application was for a road “ beginning at a highway through Bast Quogue at the southwest corner of land of ÍT. S. Jackson and running from thence southeasterly to the southeast corner of the land of W. D.

      Benjamin, and Mrs. George Cecil, continuing from thence northerly to the bay or creek ; ” the commissioners went beyond the land of Benjamin eight rods in the same direction and then north to the creek.

      jBeld, that this extension of one of the corners beyond the point .designated in ' the petition was not a sufficient ground for reversing the action of the commissioners;
    That such departure was not only within the power of the commissioners, but was one which should have been made if thereby a better road was obtainable.
    Certiorari to review the determination and decision of Arington H. Carman, Henry L. Griffin and George B. Reeve, commissioners appointed by the Comity Court of Suffolk county to determine upon the necessity of a highway proposed to be laid out at East Quogue, in the town of Southampton, in said county, and to assess the damages by reason of the laying out of said highway through the improved lands of Matilda Cecil and others.
    The decision of the commissioners was filed in the town clerk’s office of the town of Southampton on the 28th day of March, 1892. The writ of certiorari was granted by a justice of the Supreme Court at Special Term on the 25th day of July, 1892.

      E. A. Ca/rpenter, for the relator.

      JVathan D. Petty, for the defendants.
   Barnard, P. J.:

John Quinn and others, inhabitants of Southampton, Suffolk county, liable to be assessed for highway labor, applied to the commissioners of highways of the town to lay out a highway. The commissioners of highways refused, and the same petitioners applied to the County Court, under chapter 568,. Laws of 1890, sections 83 and 81, for the appointment of commissioners to lay out the highway and to assess the damages occasioned thereby. The commissioners laid out the road and certified relator’s damages for the land which was taken therefor from the relator, Mrs. Cecil. Mrs. Cecil obtained a writ of certiorari to reverse the adjudication, and she alleges three reversible errors on the part of the commissioners. The application was for a road : Beginning at a highway through East Quogue at the southwest corner of land of N. S. Jackson and running from thence southeasterly to the southeast corner of the land of W. I). Benjamin and Mrs. George Cecil, continuing from tbence .northerly to the bay or creek. The commissioners went beyond the land of Benjamin eight rods in the same direction before running north to the creek. This departure was not only within the power of the commissioners, but was one which should have been made if thereby a better road was obtained. The commissioners are not bound to follow the route of the petition for the road with precision. The proposed road was between two ponds and the road exactly meets the petition. The extension of one of the corners further than the petition was, therefore, not erroneous. (People ex rel. Cook v. Hildreth, 5 N. Y. Supp. 308.)

The relator also avers for error that the road goes through his orchard yard, lawn and flower garden. The proof failed to show the fact alleged. The relator’s house is on an uninclosed field and the road interferes with no part of it used as a lawn, yard or flower garden within the spirit and intent of the statute. Besides this, by the certificate of the commissioners, the road as laid out through the relator’s orchard yard would be good as a step by way of the County Court to obtain the road. The questions raised upon the merits are not sustained by the evidence. The particular objections made to the road by the owners Benjamin and Cecil, to the road as proposed, were that a highway on Benjamin’s land and in front of Mrs. Cecil, would be exceedingly objectionable to those owners. The commissioners carried the road beyond Mrs. Cecil’s house and beyond the Benjamin south line.

The order of the commissioners laying out the road applied for, should be affirmed, with costs.

Pratt” J., concurred.

Order laying out highway affirmed, with costs.


author: Pratt, J.:

text:
    Mary H. Oakley, Appellant, v. George W. Oakley and Others, Respondents.

      Claim of dower in property deeded away by the husband before marriage — admission in an answer.

    A widow brought an action to set aside a deed made, intermediate tbeir engagement and their marriage, by ner deceased husband to his sons by a former marriage, and to obtain dower in the property covered thereby, on the ground that the deed was made to deprive her of dower and was fraudulent as against her.
    It was found on the trial of the action that the deed was free from fraud, and also that the plaintiff had accepted a provision of her husband’s will made in lieu of dower

      Held, that the complaint was properly dismissed.
    If an admission in an answer is relied upon by a plaintiff in support of his case, it must be taken with any explanation or qualification contained therein.
    Appeal by the plaintiff, Mary H. Oakley, from a judgment of tlie Supreme Court, rendered at the Kings County Special Term and entered in the -office of the clerk of Kings county on the 3d day of January, 1893t dismissing the complaint, and from an order entered in said clerk's office December 31, 1892. denying the defendants’ motion for a new trial.
    The action was brought by Mary H. Oakley, the widow .of Whitson Oakley, deceased, to set aside a deed made by said Whit-son Oakley of certain premises in Brooklyn, to his sons by a former marriage, in consideration of love and affection, between the time of the engagement of marriage between the plaintiff and said Whitson Oakley and their marriage, and to obtain dower in the premises covered by the deed. The plaintiff claimed that the deed was made with the intent of depriving her of dower and was fraudulent and void as against her.
    It was found upon the trial that Whitson Oakley left a will, whereby he gave the plaintiff $4,000 expressed to be in lieu of dower, and that the plaintiff had received and accepted that sum from his estate with knowledge of the provisions of the will

      JR. JS. Underhill, for the appellant.

      Benjamin G. Hitehings, for the respondents.
   Pratt, J.:

There is no foundation for this suit in law or equity.

It is plain that if the deceased Oakley made a valid conveyance of his property before marriage with the plaintiff she is not entitled to dower, and equally plain that if he was seized of the property at the time of his death she is not entitled to dower for the reason that she has accepted provisions in his will made in lieu of dower.

Perhaps this is all that is necessary to be said, but it may not be amiss to add that it did not appear, and the court has so found, that assuming that relation, Oakley, the deceased, who at one time owned the property and conveyed it to the defendants, there was any fraud or intent to defraud in the transaction. All the proof upon the trial was contained in the pleadings, and it is too well settled to require comment that if an admission in an answer is relied upon it must be taken with any explanation or qualification contained therein.

The answer taken as a whole rebutted any inference of fraud on the part of deceased, and the court has so found.

In addition, the court has found that the giving of the deed by the deceased was a perfectly straightforward, legitimate transaction, free from fraud against the plaintiff and in pursuance of his duty and obligation to them.”

The court further found that the provision in the will was intended to be in lieu of dower, and that plaintiff accepted it with a full knowledge of the provisions in the will.

There is not a scintilla of merit in the suit, and the judgment must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs.


text:
    The People ex rel. Peter Tiernan, Respondent, v. Nathaniel Marsh and Others, Composing the Board of Supervisors of Richmond County, Appellants.

      Fees of justices of the peace in Bichmond county — repeal of the limitation in section 2 of chapter 59 of 1866 — peremptory mandamus.

    The provision of section 2 of chapter 59 of the Laws of' 1866, limiting the fees of justices of the peace and constables in the county of Richmond to §300 per annum, was repealed by force of section 2 of chapter 692 of the Laws of 1866, establishing fees for such officers throughout the State and repealing a!l laws inconsistent therewith, except laws locally applicable to villages and cities.
    The provision so limiting such fees having been declared repealed in two cases by the Supreme Court, and such fees having been thereafter paid according to the State rate, without regard to said limitation, a peremptory writ of mandamus is properly issued to compel the board of supervisors to allow the bill of a justice of the peace in excess of §300, which had been disallowed on the-ground of such limitation.
    Appeal by the defendants, Nathaniel Marsh and others, composing the board of supervisors of the county of Richmond, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Richmond on the 2d day of February, 1893, awarding to the relator, Peter Tiernan, a peremptory writ of mandamus, commanding the defendants to receive,, audit and pay the claim of the relator for $101.15, for services .rendered as justice of the peace in the town of Middletown, Richmond county, during the year 1892, in criminal cases for felonies arising in said county outside of the village of Edgewater. •
    The grounds of the refusal of the board of supervisors to audit the relator’s bill are set forth in the following preainble and resolution adopted by the board:
    “"Whereas, Peter Tiernan, a Justice of the Peace of the Town of Middletown, Richmond County, New York, has presented a claim to this Board for the sum of $101.15 for services rendered by him in criminal cases, for felonious offenses committed outside of the limits of the Tillage of Edgewater in said County during the year 1892; and whereas, the said Peter Tiernan, as such Justice of the Peace, has for said year 1892 rendered a claim to the Board of Town Auditors of the Town of Middletown for services-rendered in criminal cases for misdemeanors committed in said Town outside of said Tillage of Edgewater, amounting to the sum of $360.00; and whereas, said last-mentioned claim was audited and allowed by the said Board of Town Auditors, and is included in and forms a part of the town abstract of the said town of Middle-town for the year 1892; and whereas, at a meeting of the Board of Supervisors, held December 20,1892, said abstract was presented for action to said Board of Supervisors; and whereas at said meeting the following resolution was passed, viz.:
    “ ‘ On motion, ordered, that the said abstract be accepted and the * Supervisor of the Town be authorized to draw vouchers against Hlie same, except in such cases where the claims of Justices of the ‘ Peace and of constables exceed the sum of $300.00, and in those 'i cases only to that amount, until further ordered by this Board, and Hhat the amount of said abstract, less the sums herein mentioned, (be inserted in the tax levy of said Town.’
    “ And whereas, this Board has been advised by its counsel that it is, under the circumstances of this case, prohibited by the terms of Chapter 59, Laws of 1866, from auditing and allowing the said claim of said Peter Tiernan for said sum of $404.15, or for any sum whatever:
    “ Resol/oed, that for the reasons aforesaid, that this Board refuse to audit such claim.”

      J. JD. Van Ho&oenberg, for the appellants.

      William, M. Mullen, for the respondent.
   Barnard, P. J.:

Section 2 of chapter 59, Laws of 1866, is repealed. By this section justices of -the peace and constables in the county of Richmond were limited to $300 per annum. By chapter 692 of the laws of the same year a scale of fees for justices of the peace and ■constables was made for the state and all laws inconsistent with this law were repealed except laws locally applicable to villages and •cities. The two acts cannot stand together and the repeal of section 2 of chapter 59 of the Laws of 1866 is, therefore, express, by virtue ■of section 11 of the act chapter 692, Laws of 1866.

In 1811, by chapter 191, Laws of 1811, the Legislature amended the village charter of New Brighton, a village in Richmond county, and in this act repealed in words chapter 59, Laws of 1866, and the repeal was general and not restricted by the ranguage used in effecting the repeal. If the repeal was effectual, then chapter 283, Laws of 1875, would not reinstate the section so repealed. It has been decided by Justices Gilbert and Cullen that the restrictive section in the Laws of 1866 was repealed, by Judge Gilbert in the Kessner case, and by Judge Cullen in the Gaggen case. Justice Lanbon agrees with these judges in this construction of the effect of the repealing words. The justices and constables in Richmond county have been paid according to the State rate of fees even if the entire bill for services rendered xceeded $300.

The order granting a mandamus should, therefore, be affirmed, with costs.

Pratt, J., concurred.

Judgment and order affirmed, with costs.


author: Dykman, J.: Barnard, P. J.

text:
    George Meurer, Respondent, v. Marie Von Kramer, Appellant.

      Liability of the owner of a house or the contracto!', for a furnace — building contract as emdence.

    On the trial, in a Justice’s Court, of an action brought to recover the value of a furnace placed by the plaintiff in the defendant'» house, it appeared that the defendant had made a contract in writing with a third party for the erection of the house, and the defendant claimed that the furnace was furnished to such third party. The plaintiff controverted this and claimed that the furnace was furnished to the defendant, whereupon the defendant ofEered in evidence the building contract, which was excluded.

      Held, that the particular terms of the contract were immaterial, and its exclusion was not error (Barnard, P. J., dissenting).
    Appeal by tlie defendant, Marie Yon Kramer, from a judgment of the County Court of Richmond county, entered in the office of the clerk of that county on the 18th day of April, 1892, affirming a judgment of a justice of the peace of the town of Middletown in favor of the plaintiff.

      Geo. J. Greenfield and W. Allawe Short, for the appellant.

      John Widdeoome, for the respondent.
   Dykman, J.:

This action was commenced in a court of a j ustice of the peace and tried there before the justice, without a jury, and he rendered a judgment in favor of the plaintiff against the defendant for §129.21 damages and §4.50 costs.

From that judgment the defendant appealed to the County Court ■of Richmond county, but in her notice of appeal she did not demand a new trial in the County Court.

The appeal, therefore, raised only questions of law, and the case was argued before the County Court, and the judgment was there affirmed.

From that judgment of affirmance the defendant has appealed to this court.

The action was for the recovery of the value of a furnace and fixtures appurtenant thereto which the plaintiff placed in the dwelling house of the defendant.

There is no denial that the plaintiff put the furnace in the house, and the price is undisputed, but the defense set up was this:

In the month of September, 1890, the defendant made a contract, in writing, with one Charles Triebe, for the erection of the house in which this heater was placed, and she claimed that the plaintiff furnished the heater for Triebe and not for her.

Upon the trial before the justice the defendant offered the written contract between her and Triebe in evidence, and it was rejected; to the rejection of the contract the defendant took an exception and that presents the only question of law raised by the appeal.

Upon the trial before the justice of the peace the plaintiff testified that the defendant gave him the order for the furnace, and the defendant testified that she did not. ' Triebe, who was a witness for the defendant, testified that he ordered the furnace of the plaintiff.

The justice gave credit to the testimony of the plaintiff and disbelieved the testimony of Triebe and the defendant.

¥e cannot say that was erroneous. He saw the witnesses and probably knew them personally, and we cannot reverse upon the facts under such circumstances.

We are also inclined, to liold that the exclusion of the written contract between the defendant and Triebe was not erroneous.

It had already appeared in the testimony that there was such a contract, and its particular terms were immaterial.

The judgment should be affirmed, with costs.-

Pratt, J., concurred.

Barnard, P. J.

(dissenting):

The plaintiff sought to recover for the value of a heater put in the defendant’s house by the plaintiff. The defendant denied that the heater was put in at her request. The plaintiff testified to an actual request by the defendant to put in the heater in question and the defendant positively denied the same. It appeared on the trial that one Triebe had the contract for building the defendant’s house and Triebe testified that he ordered the heater. The defendant offered the contract in evidence and it was rejected. This was erroneous. The sole question was one of fact, and it was important in determining the credibility of the conflicting evidence that it should be known whether Triebe was bound by his contract to furnish the heater himself as part of his contract with the defendant.

The judgment should be reversed, with costs.

Judgment of County Court affirmed, with costs.


text:
    Halcyon Skinner, Respondent, v. Sophia H. White, Appellant.

      Costs paid as a condition of amending a pleading, not subsequently taxable.

    While a trial before a referee was pending, the defendant moved for leave to amend the answer by setting up an additional defense; the court granted the amendment on the condition that the defendant should pay the costs up to that time; the defendant accepted the condition, and; paid the costs then accrued, including referee’s and stenographer’s fees; the trial then proceeded, and resulted in a dismissal of the complaint, with costs to the defendant.

      Held, that the defendant was not entitled to tax the costs paid as a condition of the amendment.

      Ha/oemeyer v. Hcmemeyer (48 N. T. Super. Ct. 164), not followed.

      Appeal by the defendant, Harriet S. White, sued as Sophia H. White, from an order of the Supreme Court, made at the Westchester Special Term, and entered in the office of the clerk of Westchester county on the 19th day of November, 1892, retaxing the defendant’s costs.

      James M. H%mt, for the appellant.

      Ralph E. Prime, for the respondent.
   Pratt, J.:

This action proceeded to a trial before a referee. Plaintiff rested, and the defendant put in some testimony. Defendant then moved for leave to amend her answer by setting up a new and additional defense. The court, at Special Term, granted the motion, and made an order whereby the defendant was permitted to amend her answer mono pro twie upon condition that she pay to plaintiff all the taxable costs of the action. In case the costs were not paid and the defendant failed to accept said condition, the motion was denied with ten dollars costs. Defendant thereupon paid to plaintiff the costs up to that time, i. e., sixty-six dollars and eighty-four cents, taking back a receipt “ in full of costs directed to be paid by order allowing amendment to answer of defendant,” and also paid the referee’s fees, thirty dollars, and the stenographer’s charge, twenty-eight dollars and seventy-five cents, which had accrued up to the time of the amendment. The trial then proceeded before the referee, who dismissed plaintiff’s complaint and, allowed costs to the defendant. The clerk thereupon taxed defendant’s costs at the sum of $20'T.2'T, which included the costs paid by defendant to plaintiff at the time of the amendment. Plaintiff thereupon moved at Special Term for a retaxation, and an order was made directing the clerk to retax said costs and reduce the same by striking out the different items which were included in the costs paid by defendant at the time of the amendment. From that order the defendant appeals. We see no error in the disposition of the matter made by the court below. The defendant applied to the court for leave to amend her answer by setting up an additional defense, and the court, in its discretion, granted the favor sought, but on condition that the defendant pay the costs up to that time. Had the court intended, by its order, that the defendant should pay a sum equal to the costs, it would have used apt words to express such intention. So, too, if the defendant had considered the conditions too severe, she had her remedy, but she accepted the favor and with it the condition, and paid the costs, taking back a receipt in full of costs directed to be paid.” We look on that order as an adjudication that the costs to the time of the amendment belong to plaintiff. They were paid and could not again be taxed by either party. The cases cited by the respondent in his brief, we think, fully sustain this principle. Of those cited by the appellant, Bowen v. Sweeny does not seem to us in point. In that case the plaintiff was allowed to amend his complaint, after having recovered a judgment at Special Term, which ' was reversed at General Term, with costs to the defendant to abide the event. The order of amendment was on condition that the plaintiff pay to each of the defendants a full bill of costs to be taxed by the clerk. The clerk disallowed the General Term costs. The court at Special Term denied the motion for a retaxation and the General Term on appeal reversed the order, holding that the costs at General Term were included in the order of amendment, and should have been taxed. This, as we understand the case, was the only question before the court on that appeal. Havemeyer v. Havemeyer (48 N. Y. Super. Ct. 104) undoubtedly sustains the view taken by the appellant, but we are not inclined to follow it in face of the decisions of our own and other departments of this court.

The order appealed from should be affirmed.

Barnard, P. J\, concurred; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    The People of the State of New York, Respondents, v. Orla W. Parker, Appellant.

      Criminal charge of asscmlt — form of the complaint — payment to the justice, on adjournment, of money for the complainant’s counsel.

    A complaint before a village police justice described the'offense as “maliciously and unlawfully beating” the complainant, “by kicking him in the head, body and face without provocation.

      Held,, that the name given to the offense was not material, and that the complaint was good and would support a conviction of assault in the third degree.
    On applying for an adjournment of the trial, the defendant agreed to and did deliver to the justice a sum of money for the complainant’s private counsel and for the complainant’s expenses, which was presumably paid by the justice to the counsel.

      Held, that this furnished no ground for a reversal of the conviction of the defendant.
    Appeal by the defendant, Orla ~W. Parker, from a judgment of the Court of Sessions of Queens county, entered in the office of the clerk of that county on the 9th day of March, 1892, affirming, as modified, a judgment of a Court of Special Sessions held by the police justice of the village of Sea Cliff, convicting the defendant of the crime of assault in the third degree.
    The, original judgment sentenced the defendant to the Kings county penitentiai’y for the term of three months. On appeal the judgment was modified by the Court of Sessions (the county judge presiding) by substituting the county jail for the penitentiary.

      George B. /Stoddart, for the appellant.

      John, Flemim.g, Bisi/riet Attorney, for the respondent.
   Barnard, P. J.:

The complaint before the police justice against the defendant was good. The offense was described to be one for “maliciously and unlawfully beating” one Egan “by kicking him in the head, body and face without pi’ovocation.” The name given to the offense was without any materiality. After the arrest of defendant he X’efused to make any plea or answer any questions. He elected to be tried by the coxxrt and asked for an adjournment. This was granted, he (the defendant) being admitted to bail during the trial. A second adjournment was had at defendant’s request, and on the 8th of July, 1891, the case was tried. There is presented by the evidence a dispute not as to the assault, but as to a provocation for one, and upon this point I think the justice found clearly according to the evidence. The assault was unprovoked and severe, and rendered more intolerable to the complainant by a suggestion of an infamous inference which is wholly unsupported by the evidence. The proof offered at folio 55 to the belief of the defendant as to the complainant’s intention, was improperly rejected; but the rejected proof was subsequently admitted at folio 57. The payment of eleven dollars for complainant’s lawyer and his own expenses, furnishes no reversible error. The justice had hesitated as to a further adjournment, and the defendant agreed to pay ten dollars for that purpose, which was delivered to the justice and, presumably, by him paid to the private counsel of the complainant.

The judgment as modified by the county judge is therefore, affirmed.

Pratt and Dykman, JJ., concurred.

Conviction and judgment affirmed.


text:
    Daniel McCampbell, Plaintiff, v. The Cunard Steamship Company (Limited), Defendant.

      Master and servant — defective appliances in me in unloading a ca/rgo — liability of a steamship company.

    On the trial of an action brought by a longshoreman, who Was injured while unloading a cargo from a vessel down a “skid” to the dock, to recover damages from his employer, the vessel owner, his evidence tended to show that his work was directed by the defendant’s superintendent in charge of the dock; that to each end of the skid was attached a wedge-shaped piece, called a “mouthpiece,” intended to follow the skid as the vessel swayed; that the “mouthpiece” at the foot of the skid became detached after the plaintiff commenced work, so. that a gap of some five inches came between the skid and the mouthpiece, in which the wheels of a truck used by the plaintiff caught, causing the injury complained of, which, it was testified, the plaintiff could have escaped if the mouthpiece had been properly attached to the skid.

      Held, that the separation of the mouthpiece from the skid was not a danger which the plaintiff accepted; that no such gap should have been permitted, and that its existence was the fault of the superior or his alter ego, the superintendent not being a fellow-servant of the plaintiff; and, hence, that the complaint was improperly dismissed.
    Motion for a new trial on exceptions taken by tbe plaintiff at a trial at the Queens County Circuit, which resulted in a dismissal of the complaint at the close of the plaintiff’s case, which exceptions were ordered to be heard at the General Term in the first instance, by an order made at the Circuit on the 6th day of October, 1892.
    The action was brought to recover damages for a personal injury suffered by the plaintiff, a longshoreman or laborer, while in the employ of the defendant unloading a cargo from the steamship Gallia, owned by the defendant.
    The evidence given on the part of the plaintiff tended to show the following facts:
    “ On the 23d day of August, 1883, the plaintiff was in the employ of the defendant at its pier, and on the morning of that day he was directed by a Mr. Craven, who was the foreman or superintendent in charge of the dock, and the official who employed the plaintiff for the defendant, to take a four-wheel, flat-topped truck and go up to the deck of the ship, and truck drums of soda down an inclined skid to the dock.
    “The drums of caustic soda were smooth iron cylinders about 38 inches long and 20 in diameter, filled with caustic and weighing when filled 600 pounds each. To reach the dock in trucking these drums from the deck to the dock, the defendant provided a very steep inclined gangplank or £ skid,’ which rested one end on the deck, the other on the dock, and was about 20 feet long. The deck was 8 or 9 feet higher than the dock.
    “ This £ skid ’ was five inches thick, and it was provided at each end with a wedge-shaped piece known as a £ mouthpiece,’ the thick side of which was to be turned toward, and the whole made fast to the skid by means of £ ring bolts ’ and lanyards at either side of the skid and mouthpiece. If it is properly fastened, according as the ship sways, the mouthpiece follows the skid and moves back and forward in the dock.
    “ To prevent the heavy drums of caustic from rolling forward off the truck and crushing the person drawing it, while the truck was being drawn down the skid, the defendant provided pieces of refuse or ‘ dunnage ’ wood, one of which the men placed in front of the drums on the platform of the track. A piece was also provided by defendant to be placed between the spokes of the hind wheels to prevent the latter from turning.

      “ The plaintiff testified that he had never used these trucks, nor seen them used before; had never seen caustic soda loaded or unloaded in this way before, and the defendant’s dock was the only one along shore where this method was in use. And when the flattop, four-wheel trucks are used on other docks, even on the level dock, they are constructed with battens or crosspieces, made fast to the platform of the truck, to prevent round freight from rolling forward or backward.

      “ When the plaintiff went to work in the morning in question, he found the ship Gallia, which had come in the night before, all ready to unloád. The ship had been made fast to the pier, the hatches had been taken off, the skid and mouthpieces were in position, and, so far as he saw, everything was in readiness, and they were beginning to unload.
    “ Obeying the superintendent’s direction, the plaintiff took the truck provided for him, and went with it up the skid to the deck of the ship. There it was loaded with two drums of caustic, and his companion placed in front of the drums a piece of the dunnage wood to prevent the drums from rolling forward. The plaintiff started down the skid pulling his load, and when nearly to the dock, hearing a shout, looked over his shoulder, noticed the batten was slipping forward and the drums were about to roll on him; he started to run to the dock, and would have reached the 'dock in safety but for the fact that the mouthpiece was not fast to the skid. The lanyards were loose leaving an opening of about four or five inches, in which the wheels of the truck caught, the jar throwing him down and causing the drums to roll forward on to his legs. This was the first and last load unloaded in this way.”

      George William Hart, for the plaintiff.

      Frank D. Stages, for the defendant.
   Pratt, J.:

It is clear that the truck was not a proper vehicle on which to move the drums down an inclined plane. And it is certain that the skid was placed at a dangerously steep angle.

"Whether the plaintiff: could recover on these grounds may fee doubtful as it might be said that the danger was obvious and he took the risk. To a certain extent a laborer may rely on the presumed superior knowledge of his employer, and perhaps it was a fair question for the jury whether he might do so in this instance. We need not pass upon these qirestions as we think another point is presented which requires a reversal.

Roth witnesses testify that had the mouthpiece ” been properly attached to the skid so as to follow its motion the plaintiff could have escaped. The gap of some inches left between them is not shown to have existed when the plaintiff went to the work. That would vary from moment to moment as the vessel rolled. That was a danger we cannot say plaintiff accepted.

No such gap should have been permitted, and that it existed was. the fault of the superior or his alter ego.

The stevedores did not rig the vessel for the work, and the superintendent was not a fellow-servant with the plaintiff.

Judgment reversed, new trial ordered, costs to abide event.

Dykman, J., concurred; Barnard, P. J., dissented.

Exceptions sustained and judgment reversed, and new trial granted, costs to abide event.


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    Henry McCarten, Respondent, v. John B. Flagler, Appellant.

      Obstruction of a sidewalk by a storekeeper for the purpose of his business — liability for injury to a pedestrian.

    Pedestrians have a right to the unobstructed use of the sidewalks in cities, with, exceptions justified by necessity or public convenience.
    Merchants may transfer goods from the street across the sidewalks to their storerooms, but the time and manner of such use must be reasonable with reference, to the rights of the public, and there must be also due diligence on the part of one so using the sidewalk for his own business purposes to keep passers-by from injury.

      Appeal by tbe defendant, John B. Flagler, from a judgment of the County Court of Dutchess county, entered in the office of the clerk of that county on the 5th day of December, 1892, affirming a judgment of a Justice’s Court in favor of the plaintiff.

      Wüliam G. Albro, for the appellant.

      Wood c& Morsohamer, for the respondent.
   Pratt, J.:

Judgment affirmed bn opinion of county judge.

The opinion of the county judge is as follows:

Guernsey, J.:

“ This action was brought to recover damages from the defendant, a merchant doing business on Main street in the City of Poughkeepsie, for placing and permitting a box of merchandise to obstruct the sidewalk in front of his store.

The testimony shows that the box was brought on the street between seven and eight o’clock in the morning, and allowed to remain until about half-past nine o’clock in the evening when an employee attempted to bring it in and turned it over on the sidewalk. That box was about two feet long and one foot in depth and width.

“ From the box a nail protruded from a half inch to-two inches as stated by different witnesses.

The plaintiff in passing the box after it was moved by the employee, had his pants caught on th'e protruding nail and torn so that they could not be mended.

Plaintiff was walking with two others abreast and stepped ahead of them to pass the box.

Pedestrians have a right to the unobstructed use of the sidewalks in cities, with exceptions justified by necessity or public convenience. Merchants may transfer goods from the street across the sidewalks to their storerooms. The time and manner of such use must be reasonable with reference to the rights of the public and there must be also due diligence on the part of one so using the sidewalk for his own business purposes to keep the passer-by from injury.

“ There is nothing in the evidence to show that plaintiff did not exercise reasonable care in passing along the sidewalk by the box.

“ The question whether the obstruction was necessary in the transaction of defendant’s business and reasonable in regard to the rights of the public is a question of fact depending on all the circumstances of the case.

“ The court below has found on the facts in the case against the defendant. The evidence justifies the finding. A small box was permitted to obstruct the street from early morning, and if not on sidewalk before, was there concededly sometime before, and until half-past nine p. m. It may well be said there was no business necessity for having the box on the sidewalk at such an hour of the night, and none was shown or attempted to be shown. The defendant for all that appears would have escaped collision with the box liad it not been for the protruding nail. This was a danger he was not called upon to expect, even though he saw the box.

“As to the amount of damages it does not seem excessive. The evidence is that the pants had been purchased a month before and worn a little, but were new., and so torn they could not be mended. Evidence as to the cost was excluded. The maker of the pants testified he knew the value of such goods, and was asked:

How much were they worth when new ? ’ which defendant objected to and the trial court overruled the objection and gave exception. The answer was nine dollars.

“ The question was proper. The value of the pants when new, the time and amount of wear given and extent of damages caused by contact with the box formed a good and substantial basis for arriving at the injury plaintiff had sustained, which seems to have been reasonable and 'justly found.

The judgment is affirmed, with costs.”

Baruard, P. J., and DykmaN, J., concurred.

Judgment affirmed, with costs.


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    Eugen Ham, Respondent, v. The Newburgh, Dutchess and Connecticut Railroad Company, Appellant.

      Railroads — cattle guards — bridge.
    A railroad bridge over a stream, on the side of a highway at a railway crossing, some forty feet long and six feet above the water, having a top consisting of ties seven inches wide and six inches apart, is not such a cattle guard as railroad companies are required to maintain, at the crossing, by the railroad, of a highway.
    Appeal by tbe defendant, tbe Newburgb, Dutcbess and; Connecticut Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, rendered at tbe Dutcbess County Special Term on a trial by tbe court without a jury, and entered in tbe office of tbe clerk of Dutcbess county on the 26th day of October, 1892.
    Tbe action was brought to recover damages for a horse belonging to tbe plaintiff, killed through injuries received in entering upon tbe defendant’s railroad track from a highway at a point where it was alleged tbe defendant negligently failed to construct and maintain a cattle guard.
    The evidence tended to show that tbe plaintiff was a farmer, and that tbe railroad crossed a highway on bis land ; that his fences were in good fan order; that one of bis horses got out of the pasture and wandered from tbe highway on to a railroad bridge, and proceeded about ten feet along tbe bridge, and then fell off. Tbe defendant did not maintain a technical cattle guard at this point, but claimed that tbe bridge constituted a sufficient guard. This bridge was over a stream at tbe side of tbe highway crossing; it commenced in tbe highway, and extended about forty feet therefrom ; the top of the bridge was about six feet above the water, and was composed of ties seven inches wide and six inches apart, so that on the top the bridge presented a. level surface.
    The trial court found that the defendant had never constructed or maintained a cattle guard on its track at the highway crossing as required by law; that tlie injury which resulted in the death of the plaintiff’s horse was caused by the negligence of the defendant in neglecting: to construct and maintain a cattle guard as required by law; and that the plaintiff was in no way guilty of contributory negligence; and decided, as matter of law; that the plaintiff was entitled to judgment for $250, with interest and costs.

      W. S. JEmo and Milton A. Fowler, for the appellant.

      .Haekett & Williams, for the respondent.
   Pratt, J.:

The structure which defendants call a cattle guard was in no sense such a one as their duty required. Cattle were more likely to be enticed upon the track than to be turned back. Had a proper guard been constructed, the accident would not have taken place. The duty which the company violated was one owing to the public. Aqy person injured can recover his damages.

The judgment must be affirmed, with costs.

DyKmaN, J., concurred ; Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


author: BarNard, P. J.:

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    Philip A. Daub, Respondent, v. The Yonkers Railroad Company, Appellant.

      Street rail/roads — negligently driving mto an excavation.

    Negligence on the part of a street railroad company, rendering it liable in damages to a pa'ssenger injured thereby, is established by proof that its driver, in clear daylight, drove a car, with the horses on a trot, and against the warning of those at work there, into an excavation made by the defendant under the track.
    Appeal by the defendant, the Yonkers Railroad Company, from a judgment of the City Court of Yonkers, entered in the office of the clerk of that court on the 13th day of October, 1892, in favor of the plaintiff, upon a verdict rendered on a trial before the city judge of Yonkers and a jury.
    The defendant is a street railroad company, operating horse cars in the city of Yonkers. The action was brought to recover damages for personal injuries sustained by a passenger, alleged to have been caused by the defendant’s negligence.

      John- F. Breimcm, for tbe appellant.

      Ellis & Ilarrigan, for the respondent.
   BarNard, P. J.:

The facts from which the negligence of the defendant. could be found were abundantly proven. The employees of the defendant had made an excavation between the rails and outside of them to a depth of six inches. The defendant’s driver, against the warning of those at work upon the trench drove upon a trot into this trench, and the front wheels of the car in which the plaintiff and other passengers were seated dropped into the trench, and injured the plaintiff by throwing him to the other side of the car from the side upon which he was sitting at the time of the accident. There was no question but that plaintiff was free from negligence. He was a passenger seated in the car reading and was. injured without a moment’s notice of danger. The digging of a trench so deep as to weaken the track so that it would not hold the the car,,and the disregard of warning by the defendant’s driver that, he must stop his car, is such conclusive proof of the defendant’s negligence, that an assessment of damages was all that was left for the jury. There was no error in the charge as to the horses running into the open trench. Running or walking was immaterial so long as the driver threw his car in the excavation; but when a driver trots in clear daylight into a trench against warning, a court is justified in telling a jury that, if proven, it is negligence.

The judgment and order denying trial should be affirmed, with costs.

Pratt, J., concurred.

' Judgment and order denying new trial affirmed, with costs.


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    Arthur M. Rose and Another, Respondents, v. Jacob D Butler, Appellant.

      Breach of a lessor’s covenant to repair■ — measure of damages — -leaving goods exposed to rain — lease exempting the lessor from liability for damage by water.

    The measure of damages, in an action brought by a lessee against his lessor, to recover the damages resulting from a breach of a covenant to repair, whereby goods of the lessee on the demised premises were injured by rain, is the difference in value of the use of the premises as they were and as they would have been if the lessor had kept his agreement to repair.
    If a tenant elects to leave his goods, which he knows water will damage, in a place on the leased premises where he has reason to believe rain will beat in in case of a storm, he does it at his own risk and must suffer the consequences.

      Semble, that under the following clause in a lease — “Said lessor shall not be liable for any damage to any property, at any time, in said premises, from the Croton or other water, rain or snow, which may leak into, issue or flow from any part of said building of which the premises hereby leased are part, or from the pipes or plumbing works of the same, or from any other place Or quarter ” — the lessee takes the risk of all damage from water.
    Appeal by the defendant, Jacob D. Butler, from a judgment of the Supreme Court, entered in the office of the clerk of Westchester county on the 24th day of October, 1892, upon a verdict in favor of the plaintiffs, rendered at the Westchester Circuit, and from an ■order denying the defendant’s motion for a new trial, made upon the minutes.
    The action was brought by Arthur M. Rose and William R. Rose^ partners in the business of designing, under the firm name of A. M. Rose & Co., tenants of certain rooms in a building in New York •city, to recover from the defendant, their lessor, damages alleged to have been suffered by them through a breach, by the defendant, of the following covenant in their lease: “ If said premises shall be so slightly injured by fire or the elements as not to be rendered unfit for occupancy, then the said lessor agrees that the same shall be repaired with all reasonable promptitude.”
    The property alleged to have been damaged consisted of watercolor designs on paper, for carpets, curtains, wall papers, etc. The evidence showed that on January 21, 1892, a fire occurred in a building next to that occupied by the plaintiffs, which had the effect of cracking the glass in a skylight in the defendant’s building over tiie plaintiffs' rooms. While the glass was in this condition, and on the twentieth and twenty-first of February, one month after the fire, a rainstorm occurred which beat in through the skylight and damaged designs in the plaintiffs’ rooms. The plaintiffs had not made any complaint of water coming through the cracked glass before this storm, and the glass had not opened before that. It appeared that the defendant’s building had been left in the condition caused by the fire pending investigation and settlement of the loss by an insurance company.
    The trial court left it to the jury to say whether, under all the circumstances in the case, the defendant’s delay in repairing the skylight was reasonable or not, and whether the damage to the designs was not caused by the negligence of the plaintiffs in leaving them out on racks instead of placing them in drawers and cases which were in the rooms, and charged the jury as follows upon the question of damages:
    “ Upon the question of damages there is a great deal of controversy. It is the claim of the plaintiffs that these designs, such as they expose to you, were worth, some of them $150, some $75, and so on, the estimate of which you heard, amounting in all to over $700. They exposed them to you and pointed out the injuries upon the paper, as I understand, and both of them said, I think, that they were not capable of restoration, could not be restored. Then the defendant called a gentleman, who professed to understand his business, who seemed, as far as I could see, to be familiar with it, and he said to you, after a thorough examination, that they could all be restored, or they could be renewed. In some one or two instances he said to you that the restoration would cost less, time and labor than to make new ones ; in others he said a new one. could be made. That is the testimony for you to take into consideration ; you take the estimate of the plaintiffs and then that of the defendant, upon the question of damages. Of course you must see,, if you decide all the other questions which I have submitted to you against the defendant, and if so, you are to say how much thes§ plaintiffs have been injured, how much damage they have sustaired by the injury to these water colors, by the water, and if you find for the plaintiffs, then you are to make your verdict up in that way.”
    The jury rendered a verdict for the plaintiffs in the sum of $765.

      •The eighth clause of the plaintiffs’ lease is as follows:
    “ Said lessor shall not be liable for any damage to any property, at any time, in said premises from the Croton or other water, rain or snow, which may leak into, issue or flow from any part of said building of which the premises hereby leased are part, or from the pipes or plumbing works cf the same, or from any other place or quarter.”

      Close C& Robertson, for the appellant.

      James M. Hunt, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered upon a verdict of a jury and from a motion denying a new trial upon the minutes.

There seems to have been no error committed upon the trial except in the instructions as to the rule of damages.

We think the rule which the court was requested to charge, to wit, “ That if the plaintiffs are entitled to recover at all, they can only recover the difference in value of the use of the premises as they were and as they would have been if the defendant had kept his agreement,” was the correct one and should have been charged.

It is very clear that the verdict is excessive even assuming that the rule charged is true.

It seems that after the storm and after plaintiffs knew the full ■extent of the damage they had suffered, they fixed the amount ar about $400, and, without some explanation upon their part, they ought to have been confined to that sum.

Again, the evidence is very unsatisfactory as to the elements or ■damage that should be taken into consideration, but it is unnecessary to discuss that part of the case.

It is plain that plaintiffs knew as well, if not better than the ■defendant, the condition of the roof after the fire, and the hazard of leaving their designs in a position to be damaged in case of a recurrence of a storm. If they elected to leave their property, which they knew water would damage, in a place where they had reason to believe that the rain would beat in in case of a storm, they did it at their own risk and must suffer the consequences. Cook v. Soule, 56 N. Y. 423.

Such injuries as are here complained, of could not reasonably have been contemplated by the parties when the lease was made.

Again, it may be said that under the eighth clause of lease the plaintiffs took the risk of all damage from water.

The judgment must be reversed and new trial ordered, costs to abide the event.

Barnard; P. J., concurred; Dykman, J., not sitting.

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


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    The People of the State of New York ex rel. Thomas F. McGrath, Respondent, v. The Board of Supervisors of Westchester County, Appellant. The People of the State of New York ex rel. Jeremiah Clancy, Respondent, v. The Same, Appellant. The People of the State of New York ex rel. William H. McPherson, Respondent, v. The Same, Appellant.

      Charter of the city of Tonkers — election of supervisors — constitutionality of the amendment of 1892.
    The provision of section 4 of chapter 54 of the Laws of 1892, amending the charter of the city of Yonkers, which had theretofore given the city but one supervisor, by enacting that the elective officers of the city should include a supervisor for each ward to be elected by the electors of their respective wards, does not violate the clause of the Constitution of the State of New York (art. 3, § 18) which prohibits the Legislature from passing a'private or local bill “ providing for the election of the members of the boards of supervisors.”
    The constitutional provision in question was designed to limit the legislative power in the manner of electing supervisors by the vote of the electors, and was not intended to deprive the Legislature of the power to equalize representation-by giving a supervisor to each ward of a city.
    Appeals by the Board of Supervisors of Westchester county from orders of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of Westchester county on the 26th day of November, 1892, directing writs of peremptory mandamus to issue requiring the board of supervisors to recognize each of the respective relators as a supervisor of Westchester county.
    The relators seek recognition as members of the board of supervisors of the county of 'Westchester; the relator McGrath as supervisor of the third ward of the city of Yonkers; the relator Clancy, as supervisor of the fourth ward of the city of Yonkers, and the relator McPherson, as supervisor of the fifth ward of the city of Yonkers.
    The board of supervisors refused to recognize them and by regular proceedings they obtained the order from which the appeal is taken. The conceded facts in the case are, that the city of Yonkers was incorporated originally in 1812, and its charter was re-enacted in 1881 by chapter 184 of the laws of that year. The original and the new charter of 1881 gave the city but one supervisor. In 1892 the charter was amended by chapter 54, and the law applicable to this proceeding is section 4 of chapter 54 of the Laws of 1892, and reads as follows:

      “ The elective officers of the city shall be a Mayor, a City Judge and four Justices of the Peace who shall be elected by the electors of the city, and a Supervisor for each ward, and two Aldermen for each ward, who shall be residents of and elected by the electors of their respective wards.”
    Under this law the political parties in the city of Yonkers nominated candidates for supervisor for the various wards in the city, and on March twenty-ninth an election was held and the three relators ..Were elected supervisors of their respective wards, and the result of tlie election was declared by the common council of the city and certificates of election awarded to them. After taking the. oath of office, they presented themselves to the board of supervisors and Were refused admission, the supervisors deciding that the law under which they were incorporated was unconstitutional, and recognizing as supervisor Jacob Read, who had been elected at the town election in 1891, as the supervisor for the entire city. These proceedings Were then instituted and the orders directing a peremptory writ of mandamus issued, from which orders these appeals are taken.

      W. H. Robertson and Wm. Romer, for the appellant.

      Joseph F. Daly, for the respondents.
   Barnard, P. J.:

By chapter 866, Laws of 1812, the Legislature incorporated the city of Yonkers. By chapter 184. Laws of 1881, the charter was amended and passed as an entirety. Under each of these laws the city had but one supervisor. By chapter 54, Laws of 1892, the Legislature enacted that each ward of the city should have a supervisor. The relator was elected under this law and the supervisors refused to receive him. The Constitution provides that the Legislature shall have no power to pass a private or local 'bill “ providing for the election of the members of the board of supervisors.” A supervisor is not one of the officers to be elected by the people as provided in the Constitution. Such officer could be elected by the towns and villages or of some division thereof or appointed as the Legislature should direct. The general rule is that supervisors are elected by the people, and while additional supervisors have been provided .for in cities, it is equally a general rule that they are elected by the wards or districts created therein by the Legislature. The constitutional provision inserted in 1874 was designed to limit the legislative power in the maimer of electing supervisors by the vote of the electors and not intended to deprive the Legislature of the power to equalize representation by giving a supervisor to a ward of a city. The legislators have acted on this view in numerous cases. The charters of cities have been frequently amended by creating or adding wards to cities and providing for the election of supervisors therein.

The charter providing for one supervisor could be amended after the constitutional article was inserted without violating the same. (Reed v. Schmit, 39 Hun, 223.)

The judgment should be affirmed, with costs,

Pratt, J., concurred; Dykman, J., not sitting.

Judgment affirmed, with costs.


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    Edward Everett, Plaintiff, v. Georgie Lillian Morrison, Sometimes Called Georgie Lillian Everett, Defendant.

      Marriage and divorce — the Massachusetts statute against marriages between parties under age is not extraterritorial.

    The Massachusetts statute (Pub. Stat. chap. 145, §§ 6 and 8) which prohibits marriages between parties under certain specified ages, without the consent of the parent or guardian, and which declares every marriage between parties under the age of consent void if the parties separate during nonage, and do not afterwards cohabit, has no relevancy to a marriage performed in another State between citizens of Massachusetts, and cannot affect a marriage which is good in the State in which it was performed.
    A woman may not silently withhold her assent to a formal marriage and treat it as a good marriage subsequently, and then annul the marriage because it was not real and binding on her.
    Motion by the defendant for a reargument of' an appeal taken by the plaintiff from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of Kings county on the 21st day of July, 1892, vacating a judgment annulling the marriage between the plaintiff and defendant, and permitting the defendant to come in and defend the action.
    The action is for divorce. The plaintiff, on the defendant’s failure to appear and answer, obtained a judgment annulling the marriage between them, on the ground that the defendant was, at the time of her marriage to the plaintiff, the wife of one Morrison. The defendant obtained an order vacating this judgment and permitting her to serve an answer, on the ground of a denial that she was ever legally married to Morrison. The plaintiff appealed from this order, and it was reversed by the General Term, where an opinion  was written by Barnard, P. J.

      The defendant thereupon applied for a rearguinent, upon the ground that the court seemed to have overlooked sections 6, 7 and 8 of chapter 145 of the Public Statutes of Massachusetts, which are as follows:

      “ Section 6. No magistrate or minister shall solemnize a marriage, when he has reasonable cause to suppose the male to be under the age of twenty-one years, or the female to be under the age of eighteen years, except with the consent of the parent or guardian having the custody of the minor, if there is any such parent or guardian in the commonwealth competent to act.

      “ Section 7. Every marriage solemnized within this commonwealth, which is prohibited on account of consanguinity or infirmity between the parties or on account of either of them having a former Wife or husband living, or when either party was insane or an idiot, shall be void without a decree or other legal process.
    “ Section 8. Every marriage solemnized when either party was under the age of consent, shall be similarly void, if the parties separate during such nonage, and do not afterwards cohabit (Gr. S. 107, Sec. 3; 1 Gray, 119).”
    It was alleged that the defendant and Morrison, at the time of the alleged marriage between them (which was performed in the State of Rhode Island), were citizens and residents of the State of Massachusetts ; that the defendant was only sixteen years of age at the time of her marriage to Morrison, and that she ceased to live with him before she had attained the age of eighteen years, and did not live with him again after such age.

      George Zabrishie, for the appellant.

      Ayres & Walher, for the respondent.

       The following is the opinion above referred to :
      Barnard, P. J.:
      In the fall of 1884, the plaintiff was married to the defendant in Brooklyn by John Courtney, a justice of the peace. There had been illicit relations existing between the parties before the marriage. In April, 1888, the plaintiff obtained a decree of divorce from her on the ground that the defendant was, at the time of her marriage to the plaintiff, the wife of one William G-. Morrison. After the decree the parties continued to live together as man and wife, but in a secretive way and in places more or less secluded. In 1891, the plaintiff abandoned the defendant, and she seeks to open the decree obtained by plaintiff and put in an answer. She avers that the former marriage with Morrison was sportively made in Rhode Island. That she afterwards lived with Morrison as his wife for a lew months in the State of Massachusetts, because her father insisted that as she had gone through with the ceremony, she must live with her husband Morrison. Iloon after the defendant left Morrison the plaintiff became acquainted with her and at once became attached to her, and in January, 1884, the intimacy became improper. Although the fact is disputed,, I think it is fairly proven that the plaintiff knew of the Morrison (alleged) marriage and introduced the defendant to a lawyer in Rhode Island to annul the same. Proceedings were commenced to that end, but reached no result, and were subsequently discontinued. The defendant avers that the plaintiff obtained his divorce from her on the ground that her family would not acknowledge a marriage before a justice of the peace, and that he would have a public ceremonial marriage after he got his decree from this Justice Courtney’s marriage. This fact the plaintiff denies and avers that the subsequent relations were mutually understood to be meretricious. Assuming that the plaintiff promised to remarry the defendant in a formal manner after the divorce, should the default be opened and the defendant be permitted to answer? This depends upon the merits stated in the proposed answer. Is the formal marriage with Morrison void under the evidence? The facts in respect thereto are undisputed. Morrison presented an approval marriage certificate to the defendant’s father and mother in Massachusetts. The family acknowledged it. The parties lived for some six months together as man and wife; publicly and opienly in sight of the world. The defendant left him because of ill-treatment and went back to her parents. The formal marriage in Providence is doubtful. No certificate was given the wife. No clergyman can or has been found. The common-law marriage in Massachusetts is proven abundantly, even if the certificate of the Rhode Island clergyman was deceptive and made to obtain the consent of her parents to her marriage with Morrison. The right of the plaintiff t.o the divorce seems clear, and it would not avail the defendant if she was induced by fraud to let a decree go against her by default if she in point of fact had no defense. (Blank v. Blank, 107 N. Y. 91.)
      The order shoidd be reversed, with costs and disbursements, and the motion deified, with costs.

   Barnard, P. J.:

The law of Massachusetts, cited by the defendant, has no relevancy. The defendant was married to Morrison by a ceremonial marriage performed by the Rev. Dr. Taylor in Rhode Island. The marriage was followed by cohabitation as husband and wife in Massachusetts. Such a marriage is good everywhere. If the ceremony had been performed in Massachusetts and been followed by cohabitation in that State, there is no law of Massachusetts which would treat the marriage as void. The case must be treated as if such was the fact. The formal marriage in Providence was binding in that State, and if good where it was performed, it was good elsewhere. The pretense that the defendant did not consent to the marriage in Rhode Island has no weight. It is not pretended that such fact was communicated to the clergyman who performed the ceremony. Morrison did not so understand it, for he demanded his wife of her parents by force of itand the fact that Mrs. Morrison yielded, to-the demand, concludes her. It cannot be accepted by the courts that a woman may silently withhold her assent to a formal marriage and treat it as a good marriage subsequently, and annul the marriage because it was not real and binding on her.

The motion should be denied.

Dykman, J., concurred.

Motion denied, with ten dollars costs.


text:
    John G. Fay and Another, Respondents, v. William G. Fay and Others, Appellants.

      Vacation of a sale inpm'tition — motion for judgment.

    When a sale in partition has been properly set aside, the denial of a motion to vacate and overrule exceptions to the referee’s report of such sale and for judgment of confirmation, must, of necessity, be upheld.
    Appeal by the defendants, William Gr. Fay and others, from an order of the Supreme Court, made at the Westchester Special Term, and entered in the office of the clerk of Westchester county on the 21st day of December, 1892, denying the defendants’ motion to overrule exceptions to a referee’s report of a resale in partition and for judgment confirming the resale.

      Herman Vogel, for the appellants.

      John, MaKnone, for the respondents.
   Barnard, P. J.:

The conclusion reached upon the appeal from the order granting a resale, renders unnecessary any examination in the case. The denial of the motion to vacate and overrule the exceptions to the referee’s second sale and &*• judgment upon such resale, must of necessity, be upheld, if the sale itself was irregular and unfair. It appeared in the other appeal that the referee either refused to receive a bill from one of the owners or refused to allow the money in his hands as referee, belonging to John G. Fay, to be applied upon the ten per cent cash payment required by the terms of the resale. It was just and fair to order a third sale so that the parties might bid on equal terms.

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

Pratt, J., concurred; Dykman, J., not sitting.

Order affirmed, with ten dollars costs besides disbursements.


text:
    John G. Fay and Another, Respondents, v. William G. Fay and Others, Appellants.

      Sale in pa/rtition — resale.
    On a sale in partition, the property was struck off to one of the parties, who paid to the referee ten per cent of his bid, but failed to complete the purchase; an order for a resale was made, with a direction that the former purchaser pay any deficiency, but this direction was stricken out by stipulation; the resale was thereafter had, and it appeared that on the resale the referee either refused to receive a bid from the former purchaser because of his default in completing the first sale, or refused to allow the ten per cent received from such purchaser on the first sale to be applied on the cash payment required on the resale, and struck off the property to another party.

      Held, that, on either state of facts, the second sale was not fair, and that an order setting it aside and granting another resale was proper.
    Appeal by the defendants, William Gf. Fay and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of Westchester county on the 21st day of December, 1892, setting aside a resale of property in partition and directing another sale thereof.

      Herman Vogel, for the appellants.

      John MoKrone, for the respondents.
   Barnard, P. J.:

On the 11th of June, 1892, certain premises in Westchester county were, under a sale in partition, struck off by the referee to John Gf. Fay, one of the plaintiffs, for $29,650. The purchaser paid ten per cent and failed to complete the sale. An order for a resale was subsequently made with a direction that the former purchaser pay any deficiency. On this resale the property was struck off to Henry A. Fay, one of the defendants, for $15,250. This sale was made on the 20th of October, 1892. Before the sale, on the 13th of September, 1892, the clause subjecting John G. Fay to the loss upon a resale, if any, was upon a written consent and stipulation between the attorneys stricken out of the order directing a resale. Upon this resale, the plaintiff, John G. Fay, claimed to have made a bid and that his bid was refused. This bid was one of $22,000 for the property. The papers show a serious discrepancy upon the fact. Mr. McKrone says he heard such a bid and its refusal. Others support him. The referee states that he refused to take an order on the ten per cent paid in by John G. Fay on the first sale. In either case there should be a resale. If the referee refused to receive a bid from John G. Fay because of his default in completing the first sale made the resale should not stand. If the referee refused to accept the ten per cent so far as the money in his hands -belonging to John G. Fay would go, the sale should not stand. When the clause striking out his liability for a deficiency was stricken out, this ten per cent was free and belonged to John G. Fay. The order striking out the clause was a part of the case and the referee was bound to accept it as such. There are many other facts stated in the case which have no relevancy except to bewilder the question decided. The first sale was confirmed and not carried out by the purchaser. The order for a resale held the first purchaser liable for deficiency, and by an agreement between the attorneys an order was made striking out this clause. The first purchaser had paid. $2,960 to the referee on the first sale and upon the second sale, and after this order releasing him from liability, the referee refused to take any part of this $2,960 upon the ten per cent to be paid on such second sale. This sale should not stand because it was not fair. One of the owners was deprived of his right to bid on equal terms with the defendant who purchased at the resale.

The order should be affirmed, with costs and disbursements^.

Pratt, J., concurred ; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    Kings County Bank, Appellant, v. John Courtney, Sheriff of the County of Kings, Respondent; William E. Dodge and Others, Appellants, Thomas Wildes and Tremont National Bank of Boston, Respondents.

      Precedence among judgment creditors — dormant partnership — Mil of sale— chattd mortgage — dormant execution.

    A judgment creditor, at whose request the ostensible proprietor of a business has formed a dormant partnership with a third party, which has been kept secret from other creditors, is not entitled, by reason of having first levied upon property under an attachment against the members of the partnership as partners, to precedence over other judgment creditors who had previously levied upon the'same property under executions against the ostensible proprietor of the business individually.
    Such precedence cannot be acquired by virtue of an instrument purporting to be a bill of sale, but which is in fact'a chattel mortgage and void against creditors and subsequent purchasers in good faith, because not filed as required by the statute.
    An execution which is permitted to become dormant loses a precedence which it may have acquired by being levied.
    Appeals by the plaintiff, tbe Kings County Bank, and by the defendants, William E. Dodge and others (composing the firm of Phelps, Dodge & Co.), from a judgment of the Supreme Court, rendered at the Kings County Special Term and entered in the office of the clerk of Kings county on the 25th day of January, 1893, dismissing the complaint upon the merits, and directing the defendant sheriff to pay, out of funds in his hands received from sales under executions issued against Giulia Brandéis, proprietor, the judgments of the defendants, the Tremont National Bank and Thomas Wildes.
    The plaintiff appealed from the entire judgment; the defendants, William E. Dodge and others, appealed from that part of the judgment which dismissed the complaint.
    The action was brought to enforce the plaintiff’s claim to j;he i)ahd in the defendant sheriff’s hands, under a judgment which the plaintiff had obtained against Giulia Brandéis and Maria Brandéis, as copartners, and also under a bill of sale made to the plaintiff by Giulia Brandéis.

      The defendants had obtained judgments against said Giulia Brandéis, and claimed payment thereof out of the fund in the sheriff’s hands, by virtue of executions which had been issued against Giulia Brandéis individually.

      Wormcm S. Dike, for the plaintiff (appellant).

      Edmund Ooffin, Jr., for William E. Dodge and others, defendants (appellants).

      'Henry B. Willis, for the Tremont National Bank, respondent.

      John P. Hudson and O. Donohue, for Thomas Wildes, respondent.
   Barnard, P. J.:

The plaintiff has no rights above the other claimants by reason of a partnership between Giulia Brandéis and her daughter Maria. The mother was carrying on a business, manufacturing lead pipe, under the name of the “ Brooklyn Lead Trap and Pipe Works.” The ostensible name in which the business was carried on was “ G. Brandéis, proprietor.” On the 2d of June, 1890, Giulia Brandéis made a bill of sale to the plaintiff of certain of the personal property of the business. On the 7th of August, 1891, Giulia Brandéis entered into a partnership agreement for three years with her daughter Maria. The agreement provided that the business should be conducted in the name of the mother as proprietor, and that the account in the bank should be kept in the mother’s name, but with a right on the part of the daughter to sign her mother’s name to checks with the addition of the initials of her own name. The partnership agreement was not publicly known. It was known to the plaintiff bank, but no notice was given by the bank of the partnership between mother and daughter. It was proven also that the bank requested that the partnership be formed, which was well enough, but the keeping it secret so as to obtain an advantage over other creditors, was not well done. The partnership was at least a dormant one under North v. Bloss (30 N. Y. 374). It was not necessary for. persons who sold the apparent owner, Mrs. Brandéis, to make her daughter a defendant, with her.

Tlie bill of sale was properly found of no force as against judgment creditors. The form of the instrument is subject to the real purpose of the paper. This is found to be that the bill of sale was given as security for the loans then at its date made by the plaintiff, and to be made thereafter. Chapter 2Y9, Laws of 1833, applies to it, and it should have been filed as directed by that statute, otherwise it was void as against creditors and subsequent purchasers in good faith. The Statute of Frauds against bills of sale of personal property by a vendor of goods who does not give immediate possession, applies. The bill of sale is presumed void, and there is an entire absence of proof of good faith that the paper was made in good faith and without an intent to defraud creditors. As the proof is so strong that the bill of sale was not intended as an absolute transfer of title, but was by way of lhortgage, this question need not be discussed. With the partnership and the bill of sale in operation, the plaintiff is not entitled to precedence over these creditors who get their levy on the property by means of executions delivered before the plaintiff commenced the proceedings by attachment, which finally resulted in judgment against the mother and daughter as partners.

Phelps, Dodge & Co. issued their execution, and made levy on the M of February, 1892. The Tremont Bank on February 19, 1892, which subsequently matured in a judgment. The trial court has found that the execution of Phelps, Dodge & Co. became dormant, and lost its precedence thereby. The case shows that after the Phelps, Dodge & Go. execution was levied Mrs. Brandéis applied to that firm to take $2,000 on account, and withdraw the sheriff from her works. An arrangement was made that $2,000 was to be paid, and the execution and levy withdrawn and released. Notice was given to the sheriff by Messrs. Phelps, Dodge & Go’s, attorney, on the 18th of February, 1892. The agreement of Mrs. Brandéis, who carried the letter to the sheriff, gave a check to him for his fees, which was unpaid. On the 20th of February the sheriff wrote Phelps, Dodge & Go. that he had received his fees on the basis of $1,000 payment, and asking for a continuation of the execution. On the 23d of February, 1892, Phelps, Dodge & Co. wrote the sheriff to hold the levy until instructed to the contrary. There was no proof of fraud beyond a general statement of her responsibility. Notes were to be given for the balance of the debt, which presumably were given. Tlie subsequent direction to bold the levy was not a part of tlie settlement, and was unjust as to tbe judgment debtor.

The execution was properly found to be dormant, and the judgment should be affirmed, with costs.

Dykman, J., concurred; Pratt, J., not sitting.

Judgment affirmed, with .costs.


author: Dykman, J.:

text:
    Mary Smith, Respondent, v. The Town of Clarkstown, Appellant.

      Defective highway — negligence of commissioned' of highways — Mcibility of the toivn for damages.

    Tlie long-continued existence of an excavation in a highway, without any guard around it, with actual knowledge thereof by one of the commissioners of highways of the town, is sufficient to establish negligence on the part of the commissioners of highways and impose a liability upon the town, under section 16-of chapter 568 of the Laws of 1890, for a personal injury sustained by a traveler by reason of such defect in the highway.
    Appeal by the defendant, the Town of Clarkstown, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Rockland county on the 10th day of December, 1892, upon a verdict rendered in favor of the plaintiff at the Rock-land Circuit, and from an order denying the defendant’s motion for a new trial, made upon the minutes, and entered in said clerk’s-office January J, 1898.

      Irving Brown, for the appellant.

      Wm. MoOavZey, Jr., for the respondent.
   Dykman, J.:

This is an action for the recovery of damages under the following' statute: “ Every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges existing because of the neglect of any commissioner of highways of such town.” (§ 16, chap. 568, Laws of 1890.)

The same section contains a prohibitory provision against tlie maintenance of an action for the recovery of such damages, unless a verified statement of the cause of action shall have been presented to the supervisor of the town within six months after the accrual of the cause of action, and against the commencement of the action until fifteen days after the service of such statement.

No question arises in this action under this latter portion of the section, because the complaint alleges, and the answer admits, the presentation of such claim to the supervisor in dué form.

The plaintiff was riding with her husband, who was driving, in a one-liorse wagon, along a jrablic highway in the county of Rock-land, leading from Rockland Lake to Congers. The highway was crossed by two railroad tracks, and its grade was raised as it approached the first track, and also between the two tracks to a level therewith, seven or eight feet above the original bed of the highway, except that along the north side of the highway there was a portion left unfilled. That hollow curved towards the center of the road about ten feet, and left a steep declivity along the north side of the highway seven or eight feet in depth. This embankment was unprotected.

Some time prior to this accident a sidewalk had been constructed along the north side of this highway. The sidewalk was elevated on piles, and from the north side of the road to the sidewalk was this unfilled portion of the road. The north side of this depression sloped precipitously under the sidewalk, which was constructed on posts set in the ground.

As the plaintiff and her husband approached the crossing there was a box car standing upon the railroad track on the side of the highway, and it became necessary to turn a little to the left and nearer the car to avoid the depression in the road. As he did so, the horse became suddenly frightened at the car and unmanageable. He first backed a few feet and then turned sharply to the right, plunged into the hole and across the sidewalk into the valley beyond.

That was the substance of the testimony of the plaintiff and her husband, and no other person witnessed the accident.

The defendant furnished testimony tending to show a different state of affairs, but the jury rendered a verdict in favor of the plaintiff, and must, therefore, have adopted the testimony furnished by her.

The only ground upon which the appellant undertakes to support this appeal is that the verdict is entirely against the evidence, but we cannot concur in that view.

Tbe testimony of the plaintiff and her husband furnish ample support for the verdict.

The excavation in the highway, and the absence of any guard around it, and that condition continuing for a long time, together with actual knowledge by one of the commissioners of the town, was sufficient to establish negligence on the part of the commissioners of highways, and impose liability upon the town.

A short quotation from the charge of the trial judge will show how distinctly the question of negligence was submitted to the jury. The extract is this: “ The case, therefore, turns upon a single question of fact: Did this horse when he shied and bolted (which is undisputed that he did) go into this hole in the road, or did he go across this embankment out into the held beyond ? If he did the latter, the plaintiff is not entitled to a verdict. But if he did the former then you-would be justified in giving the plaintiff a verdict.”

The charge meets our approval and the judgment and order denying the motion for a new trial should be affirmed, with costs,

Barnard, P. J., and Pratt, J., concurred.

Judgment and order denying new trial affirmed, with costs.


author: Pbatt, J.:

text:
    In the Matter of Proving the Last Will and Testament of Robert H. Johnston, Deceased; Mary E. Theall, Proponent, Appellant ; Mary C. Eagleston, Contestant, Respondent.

      Instrument altering testamentary provisions — effect on a prior will of the destruction of the second instrument animo reuocandi — testator’s intention.

    A testator made and duly published a will, dividing his property among several persons; thereafter he made an instrument in the form of a will, which gave all his property to one of the beneficiaries under the first will. This second instrument was imperfectly published as a will, in that the testator declared to one of the subscribing witnesses thereto that it was a mere alteration of his will, and not that it was his will. This second instrument contained no clause revoking any former will, and the testator subsequently destroyed it, with the intention of revoking it and of giving effect to the first instrument as his will, but that intention was never manifested by any writing.

      Held, that the first instrument should be admitted to probate in toto as the testator’s last will and testament.

      Appeal by the proponent, Mary E. Theall, from a decree of the Surrogate’s Court of Queens county, entered on the 26th day of April, 1892, declaring the instrument dated November 10, 1884, purporting to be the last will and testament of Robert H. Johnston, ■deceased, and offered for probate herein, to be null and void.

      Josiah T. Marean and Benjamvn TV. JDownvng, for the appellant.

      Horace H. Demvng, for Mary 0. Eagleston, contestant and respondent.
   Pbatt, J.:

The facts material to the decision of this case are not in dispute. Robert Johnston made a will dated November 10, 1884, which was duly published with all requisite formalities. He thereby devised the house in which he lived to his niece, Mary E. Theall, subject to certain charges, and bequeathed to her substantially all his personal property used in the house and about the grounds, together with a money legacy of $10,000. ITe bequeathed $1,000 to his sister Mary, and $1,000 to each of several other relatives, and gave, devised and bequeathed all the rest of his property to his brother 'William. Thereafter and during 1885, the testator drew up another paper, which he signed. He requested two witnesses to sign the ■same as subscribing witnesses. This paper purported to be and was in the form appropriate to a new and independent will, by which he gave, devised and bequeathed all his property to his niece, Mary E. Theall, and appointed her sole executrix thereof. The witnesses signed the same as requested. All formalities for the publication of this paper were observed, except the testator’s declaration to both witnesses that it was his last will and testament. The findings in this particular are inconsistent. Those in the decision are to the •effect that he declared this paper to be his last will and testament; but the findings on contestant’s request are that the testator did not declare to one of the witnesses that the instrument was his last will and testament, but only declared that his purpose was to make a change in his will; and, again, that he declared the instrument to be an alteration of his will.” The instrument contains no clause revoldng any former will. Subsequently, the testator destroyed this second instrument with the intention of revoking it and witli tlie intention of giving effect to the first instrument as Ms will, and tliat it “ should stand ” as his will; but that intention was never manifested by any writing. That paper was then in his possession uncanceled, and he then exhibited it to witnesses and declared his intention that it should stand as his will, deposited it in his safe and otherwise treated it as his only will. For aught that appears, he died under the belief, and I think we must so hold on these findings and on this evidence. No question of capacity arising, the learned surrogate has held that the second instrument was this man’s last and independent will, and that it revoked the first one because it altered the disposition of his estate. Tie has also held that its destruction, under the circumstances hereinafter stated, did not revive or reinstate the former will. This second paper was drawn by the testator himself, and all that was done thereafter by him respecting both instruments was apparently without the advice of counsel and without knowledge of the technical rules governing such matters.

The first and perhaps vital question is this : Did this testator ever revoke the first will ? If yes, then to what extent ? It has been answered that he did revoke it in toto simply because the provisions of the second instrument were partly inconsistent with those of the first one. But that is not the turning point. Did he intend to revoke the first one in toto when he published the second one ? Did he publish that document with that purpose ? It may be conceded that if the case were to turn on the force of the paper alone, we should have a pretty close question to decide. But here stands the plain finding that he never declared it to be his last will at all to the witnesses, i. e., to both of them. To one of them he declared it to be a mere alteration of his will, and not that it was his will or last will, or anything of that sort. It is, perhaps, fair upon these findings to say that he may have stated to the other witness that the instrument was his last will and testament; but on this finding, even if he did that, it was simply for the purpose of effecting an alteration in the first document. Here, then, we have a case upon these findings, where a man simply intended to alter his will by giving all his property to one of his formerly-chosen legatees, i. e., to take nothing from her, but to take all from the others and give that thus taken to this one. But, through failure to understand the technical requirements of law, he fails to observe certain forms, and thereby places himself in a false position; and we are now asked to hold that this mistake in that regard shall frustrate his intention respecting his property.

Eor my part I cannot so hold. This is not the first time that we have declined to allow forms to frustrate substance. Under the circumstances I feel bound to hold that the second instrument cannot stand as an independent last will and testament because it was not published as such. It was not declared to be a .last will and testament to both subscribing witnesses and that is essential to give it force and effect as a last will and testament. It, therefore, follows that whatever else may have been its effect, there was no revocation of the first will in its entirety, either by implication or otherwise. What was then the force and effect of this second paper ? It was designed and published as .a mere alteration of the original will and nothing more. In that view it was at best a mere codicil to the original, and that involves the salvation, indeed the republication of the original in its entirety, but attests a coincident modification and revocation only of the inconsistent parts. But this case is peculiar in this: The will gave only a part of his property to Mary E. Theall. This second paper purported to give the whole of it to her. It is, therefore, especially plain that he never intended to take anything from her which was given by the original will. What he intended to do by the second paper was to confirm the whole of his original provision for her and then increase that provision. It was in no sense a change in the original so far as she was concerned, but an addition to it just as he might have done by a new legacy or devise. The publication. of the second instrument was, therefore, not inconsistent with the first in this respect, and hence was not a revocation of the legacy to Mary E. Theall. On the contrary, it was a recognition and reaffirmation of that original provision pro tanto so far as it had any force and effect at all upon Mary E. Theall. It did by implication revoke the provisions of the original will so far as it related to other legatees and devisees. It may be possible, though I shall hold otherwise, that they have lost the benefit of its provisions on the theory that the destruction of the second instrument animo revocando, was ineffectual to revive the clauses which were there apparently revoked by implication. But I do not think that even that • result should follow, for the reason that the statute does not in terms apply to such a paper as this second instrument was. And besides that I have serious doubt if the testator’s declaration to the witnesses to the second paper was sufficient to give it any force even as a codicil.

I shall, therefore, advise that the surrogate’s decree be reversed and that the instrument dated November 10,1884, shall be admitted to probate in toto as testator’s last will and testament.

Barnard, P. J., and Dykman, J., concurred.

Order refusing probate reversed and probate ordered with costs to parties out of estate.