author: Miller, J.

text:
    Timothy Dixon, Respondent, v. The Brooklyn City and Newtown Railroad Company, Appellant.
    While a street railroad corporation has the right to remove snow from its tracks, it is bound to exercise reasonable care and diligence in so doing, -and if it negligently causes such an accumulation upon the street of the snow thus rémoved as to produce an obstruction therein, rendering travel unsafe, it is liable for inj uries caused thereby.

      It seems the same duty is imposed upon them as is incurred by every owner of property adjoining the street who removes snow from his sidewalk to the street.
    Whatever obligations may be imposed upon a municipal corporation in exercising a supervisory" care over its streets, and in preventing and removing obstructions, this does not relieve the owner of property or of franchises from liability for inj uries occasioned by them, and continued by reason of their negligence.
    (Argued June 15, 1885;
    decided October 13, 1885.)
    It is the duty of such a corporation, so far as practicable, to furnish safe and proper access to its cars.
    In an action to recover damages for injuries alleged to have been caused by defendant’s negligence, plaintiff’s evidence was to the effect that he attempted to enter, by the rear platform, one of defehdant’s cars, which was moving slowly along the street; finding the platform full, he passed along by the side of the car to reach the front platform; there was a ridge of snow, about three feet high, along the track, thrown up by defendant's snow-plow and sweepers, sloping toward the car, and so near it as to leave merely room for the car to pass; this ridge had been there for some weeks, and had become hard and slippery. At the time of the accident it was covered with a thin coating of recently-fallen snow. In passing along it, plaint iff slipped and fell under the wheels of the car, and was injured. Held (Earl, J., dissenting), that the evidence justified the submission to the jury of the question as to defendant’s negligence ; also as to contributory negligence on the part of plaintiff.
    Defendant ran its cars for a portion of its route over the track of another railroad company, under a license, by which the licenser was bound to keep the track clear from snow. Defendant claimed that the accident occurred upon this track. Held, that conceding this to be so, as defendant contributed in throwing up the snow-bank, it was its duty to remove it, as it rendered the access to its cars unsafe ; and for a negligent omission to perform this duty it was liable.
    Defendant set up a release executed by plaintiff soon after the injury; there was testimony showing that plaintiff, at the time he signed the release, was mentally incompetent to appreciate the character of the instrument. Held, that the question as to the validity of the release was properly left to the jury,
    Appeal from judgment of the G-eneral Term of the City Court of Brooklyn, entered upon an order made the fourth Monday of January, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    The nature of the action and the material facts are stated in the opinion.

      Joshua M. Van Cott for appellant.
    It was the defendant’s right to have its tracks kept clear from obstructions. That is an incident of its corporate franchise. (Commonwealth v. Temple, 14 Gray, 69.) The duty to remove obstructions primarily rested upon the city which lawfully might and did permit the defendant to clear its tracks from snow by the use of a plow and sweeper. (Bellinger v. N. Y. C. R. R. Co., 23 N. Y. 42; Moyer v. Same, 88 id. 351, 356; Martin v. Tribune Association, 30 Hun, 391.) An obstruction upon a highway is a common nuisance, and persons lawfully using the highway may, to the extent necessary to such lawful use, abate it as a special and private nuisance. (Bacon’s Abr. [Highway, E.] ; Wood on Nuisances, §§ 733, 740.) The obstruction being specially injurious to the defendant and absolutely preventing its passage over the highway, it had a right to abate it. (Brown v. Perkins, 11 Gray, 101; Arundel v. McCulloch, 10 Mass. 71; Griffith v. McCallum, 46 Barb. 561.) A party sustaining a special injury from a public or common nuisance may have his action and may abate it. (Harrower v. Ritson, 37 Barb. 301; 3 Blackst. Com, 5, 6 ; 3 Bouv. Inst. 574; Broom’s Common Law, 250; 8 Q. B. 339; Mayor, etc. v. Brooks, 7 Cow. 609; 8 id. 146; 9 Wend. 571; 30 N. Y. 44.) It is not a fair presumption, that clearing the snow directly from. the track off the street and not clearing the snow from the side would have left the way less dangerous. (Mayor, etc. v. L. R. R. Co., 49 N. Y. 657.) Under the charter powers so conferred on the common council, its ordinances requiring snow to be moved from the sidewalks to the carriage-way and regulating the cleaning of snow from railroad tracks by plows and sweepers were authorized; "and such removal of snow from parts of the street to other parts was lawful. (Seeley v. Litchfield, 15 The Reporter, 520 ; Laws of 1873, chap. =863.) If the snow so shifted was a nuisance, the duty to remove it rested solely upon the city. (Christopher St. R. R. Co. v. Mayor, etc., 1 Abb. N. C. 75, 79.) The Coney Island R. Co. was bound by the conditions of its license to the defendant to keep its tracks clear from snow, and any occasional incidental sweeping of the track by the defendant’s sweeper in making its necessary circuit should be deemed • in law as done by and for that company.
      (Lowrey v. R. R. Co., 76 N. Y. 28; Woolly v. Grand St. R. Co., 83 id. 121-7.) Even the duty of the local government to remove temporary elemental obstructions from the streets should be reasonably limited. (Dill, on Mun. Corp., §§ 1016, 1019.) Except as to dangerous ice, accumulated on sidewalks and crossings, sun and rain are the appropriate and adequate agencies to remove such temporary obstructions. (Reed v. Mayor, etc., 31 Hun, 311; 18 The Reporter, 271.) Where the facts are clear and undisputed, showing a “ pure accident,” or showing contributory negligence, the question of defendant’s liability is one of law and for the court (Sullivan v. C. S. M. Co., 22 Fed. Rep. 893;. Cunningham v. C. & St. P. R. R. Co., 17 id. 886.) If a man voluntarily puts himself into a dangerous position and is injured he cannot recover of the railroad company for damages for that injury to which he has contributed by his own negligence. (McGrath v. N. Y. Central, 59 N. Y. 468; Pakalinsky v. Same, 82 id. .424; Weber v. Same, 58 id. 541; Reynolds v. Same, id. 248; Connelly v. Same, 88 id. 346 ; Baulec v. N. Y. & H. R. Co., 59 id. 356; Hedges v. H. R. R. R. Co., 49 id. 223 ; Gorton v. Erie R. Co., 45 id. 664; Gibson v. Same, 63 id. 450 ; Hale v. Smith, 78 id. 480; Dougan v. Champlain Co., 56 id. 6; Cleveland v. N. Y. S. Co., 68 id. 306; 15 Weekly Dig. 157; Crocheron v. St. I. F. Co., 56 N. Y. 656; Loftus v. U. F. Co., 84 id. 455 ; Becht v. Corbin, 17 Weekly Dig. 97; 18 The Reporter, 814; Whart. on Neg., § 426; Piguegno v. Chicago R. Co., 17 The Reporter, 82-3.) The tender of the consideration received when the release was executed should have been made with interest, and was too late. (Cobb v. Hatfield, 46 N. Y. 33; Gould v: Nat. Bk., 86 id. 75 ; Baird v. Mayor, etc., 96 id. 598, 599.)

      Nathaniel C. Moak for respondent.
    It is no defense to a suit for damages caused in part by defendant’s negligence that others contributed to the injury. (Barrett v. Third Ave. R. Co., 45 N. Y. 628; Webster v. H. R. R. R. Co., 38 id. 260; Colegrove v. N. Y., etc., 20 id. 492 ; Slater v. Mersereau, 64 id. 138; Folsom v. Apple, 41 Wis. 602.) It was clearly the duty of the defendant, within a reasonable time, to remove from the street the dangerous bank of snow placed there by its agents. (Prime v. Twenty-third St. R. R. Co., 1 Abb. N. C. 63.) The duty of removal resting on,defendant, it' is no answer to non-performance that it rested on another also. (Masterson v. N. Y. C. R. R. Co., 84 N. Y. 247.) The removal of the snow not being impractical defendant was not excused from removing it. (Prime v. Twenty-third St. R. R. Co., 1 Abb. N. C. 72.) Although the owner of a store has the right to use the sidewalk to take merchandise in and out of Ms store, yet if he should leave boxes on the sidewalk an unreasonable length of time, and a passer-by should, without his own fault, be injured, such store-keeper would be liable. (Brooklyn v. B. C. R. R. Co., 47 N. Y. 476; Clifford v. Dam, 81 id. 53; Sexton v. Zedd, 44 id. 430; Childs v. West Troy, 23 Hun, 69; Masterson v. N. Y. C. R. R. Co., 84 N. Y. 247.) It was a question of fact for the jury whether plaintiff observed ordinary care and prudence, or by his own negligence, contributed in any way to the accident.' (Mowrey v. Central City, etc., 66 Barb. 43; affirmed, 51 N. Y. 666; Childs v. West Troy, 28 Hun, 68 ; Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 465 ; Hart v. H. R. R. R. Co., 80 id. 622; Justice v. Lang, 52 id. 32; Evans v. Utica, 69 id. 166; Darling v. Mayor, etc., 18 Hun, 340; Driscoll v. Same, 11 id. 101; Thomas v. Same, 15 N. Y. Weekly Dig. 378.) It is not, as matter of law, negligence for one to stand upon the front platform of a moving car. (Nolan v. Brooklyn, etc., 87 N. Y. 63; Goodrich v. Penn., etc., 29 Hun, 50.) Nor to attempt to get on to the front platform of a moving car. (Mowrey v. Central City, 66 Barb. 43; 51 N. Y. 666 ; Maher v. C. P., etc., 67 N. Y. 52.) Nor is it negligence se for a person to get on or off a street car when in motion, particularly if the horses drawing be moving slowly, on a walk. (Eppendorf v. Brooklyn, etc., 69 N. Y. 195; Filer v. N. Y. Cent., 49 id. 51 ; Maher v. C. P., etc., 67 id. 52; Monroe v. Third Ave. R. R. Co., 18 J. & S. 114; C. V. R. R. Co. v. Mangans, 23 Am. L. Beg. [N. S.] 518 ; Day v. Brooklyn, 12 Hun, 435; Bucher v. N. Y. C. R. R. Co., 20 N. Y. Weekly Dig. 384.) The plaintiff had neither the mental nor physical capacity to make or execute the alleged contract or settlement. (Story on Cont., § 35.) The plaintiff’s tender before suit to the president of the defendant, of the $150 left by Bush in the plaintiff’s bed at the time of the settlement was sufficient. (McGlynn v. Brooklyn, etc., 93 N. Y. 655; Boardman v. Gaillard, 60 id. 614; Gould v. Cayuga, Bk., 56 How. 510; Van Nest v. Tallmadge, 17 Abb. Pr. 99; Smith v. Solomon, 7 Daly, 216; Roe v. G. T. R. Co., 16 Upper Can. C. P. 500; Smith v. Holyoke, 112 Mass. 517; Chicago, etc., v. Doyle, 18 Kans. 58 ; Bussian v. Mikwaukee, etc., 56 Wis. 326 ; Watkins v. Brant, 46 id. 419 ; Eagle Packet Co. v. Defries, 94 Ill. 598; Smith v. Mariner, 5 Wis. 551; Kelly v. Sheldon, 8 id. 258; Howard v. Town of Osceola, 22 id. 453.) This court will not review the question of the adequacy or inadequacy of the damages. (Houghkirk v. D. & H. C. Co., 92 N. Y. 225.)
   Miller, J.

This action was brought to recover damages for personal injuries sustained by the plaintiff on the 17th of January, 1881, alleged- to have been caused by the negligence of the defendant.

The plaintiff sought to enter a car upon defendant’s road by way of the rear platform, but finding it full, he passed along by the side of the car in order to reach the front platform and slipped on the snow and was thrown under the wheels of the car and seriously injured. The car was moving slowly at the time, and at the place where he slipped there was a ridge of snow which the evidence tended to show had been thrown up by the defendant’s snow-plow and sweepers, about three feet high, three feet wide at the base, and one foot and a half at the top, sloping toward the car and so’near it as to leave merely room for the car to pass, the surface of the ridge was covered with a thin coating of recently-fallen snow, which made it difficult to perceive that underneath, it was hard and slippery, the snow having lain there for some weeks, much longer than was reasonably sufficient for its removal.

The first question which arises on the appeal relates to the right of the defendant to leave the snow where it was after the same had been removed from the track, and it claims that having lawfully cleared the snow from the tracks and owing no duty to replace it upon the same or remove it from the street, the plaintiff should have been nonsuited on the trial.

The conclusion of the jury that the ridge of snow was caused by the defendant’s plows and sweepers, and that it had existed for a longer period of time than was reasonably sufficient for its removal, was justified by the evidence. The character and extent of the obstruction and the propriety of its removal as well as the time within which it should have been removed, were proper matters for the consideration of the jury in determining the liability of the defendant. There would seem to be no reasonable ground for claiming that, where there was a very large accumulation of snow along side of the tracks, by reason of its removal from the same, which accumulation necessarily might be the cause of injury to persons who sought to enter the ears, and it was allowed to remain for a long period of time to the inconvenience of passengers traveling in the ears and causing loss of life or limb, the' company would not be liable for the damages sustained by its neglect in not removing the snow. While the railroad company would have the right to remove the snow from its tracks, it could not lawfully cause an obstruction which would interfere with the safe passing and repassing of persons traveling upon the road.

The duty imposed upon a railroad company is the same as that which is incurred by every owner- of property adjoining a street in a populous city. Such owner is bound to remove the snow from the sidewalk to the street, but would not -bo justified in permitting its accumulation to so large an extent as to produce injury to those who might have occasion to use the street. He cannot negligently cause or maintain an obstruction or a nuisance upon or in front of his own premises which will occasion injury to passers-by, without being liable for the damage sustained thereby.

The same rule would seem to be applicable to street railroads, and while they are permitted to enjoy the use of their tracks they must take care that they create no obstruction to persons passing to and from the same. They are bound to exercise reasonable care and diligence in the removal of snow and ice, preventing its accumulation during the winter season, and, if they are chargeable with negligence, are liable for the consequences arising from the same. Whatever obligations may be imposed upon municipal authorities in exercising a supervisory care over streets within their jurisdiction in preventing and removing obstructions, there would seem to be no reasonable ground for claiming that the duties thus devolving upon them relieve the owners of property or franchises from liability for injuries occásioned by obstructions which are created or continued by reason of their negligence. The cases cited by the appellant’s counsel do not uphold any different rule of law. Whether the obstruction be in the nature of a private or public nuisance, and as such might be abated, is not material, and does not affect the right of the injured party to maintain an action for damages caused thereby. Defendant runs its cars for a portion of its route on the track of the Coney Island Railroad Company under a license.

The claim that the Coney Island company was bound, by the conditions of its license, to keep its tracks clear of snow, and that defendant was not chargeable with any neglect of duty by that company or by the city, to remove the snow from the side of the street, is not sustained. It is at least questionable as a matter of fact, whether the accident occurred upon the track of the Coney Island road, and even if it did, the defendant would be liable if its agents contributed in throwing up the snow bank, although it was the duty of the Coney Island road to remove the snow from this portion of track. If the ridge of snow where the accident occurred was an obstruction in the street, whoever placed it there and allowed it to remain an unreasonable length of. time should be liable for any injury sustained thereby. As it was the duty of the defendant to remove this snow, it .is no answer to the claim made for damages caused thereby, to say that such duty also devolved upon another party. While the duty imposed upon local authorities or parties to remove temporary obstructians from the streets should be confined within reasonable limits and impossibilities should not be demanded, there is no great hardship in requiring that due diligence should be exercised in reference to the same, and so far as practicable a safe and proper access should be furnished to persons who travel upon the cars of a street railroad company. In the case considered, the question whether the defendant had been vigilant in the performance of its duty in insuring the safety and protection of its passengers, and had exercised proper care and caution, was one of fact entirely for the consideration of the jury; and it cannot, we think, be said that as matter of law the conclusion at which they arrived in this respect was erroneous, or that the court erred in refusing the motion made for a nonsuit upon the ground already stated.

It is also insisted that the plaintiff was chargeable with negligence contributing to the injury, and that upon this ground no action could be maintained. This question was one of fact for the consideration of the jury in view of the whole evidence presented upon the trial ; and it cannot be insisted, we think, that as a matter of law the testimony upon the trial showed that the plaintiff was chargeable with contributory negligence. It is by no means clear that the plaintiff knew precisely the situation of the street, and also that the snow was piled up, as the evidence showed it was, at the place where the accident occurred. He was under no legal obligation to know this fact, and unless he did so, was justified in assuming that he was safe in passing over the snow as he did. Having no knowledge on the subject he had the right to assume that the track was free from obstruction at that place. The testimony shows that the car was moving very slowly, the horses being on a walk, and under the circumstances it was not negligence per se for the plaintiff to leave the sidewalk, as he did, with the intention of getting on the cai’. Nor was it negligence of itself, as a matter of law, in his leaving the rear platform, if it was full, and attempting to reach the front platform, where people were allowed to ride. Nor was it negligence to ride on the front platform, or to attempt to get on a street car while moving slowly, as was the case here. In view of all the facts, the question as to the plaintiff’s contributory negligence was peculiarly one for the consideration of the jury, and although there was some little contradiction in the evidence, it cannot be said that the verdict was unauthorized or should be set aside on that ground.

Defendant set up a release executed by plaintiff of all claims for damages. The question as to the validity or legality of the release was also for the consideration of the jury. There was testimony showing that at the time of its execution the plaintiff was in a condition of mind that rendered him incompetent to appreciate the character of the instrument, which he executed, and, under the circumstances, it was for the jury to determine whether it was his free act, done with full knowledge at the time of the facts, and with a full appreciation of what he was doing. This subject, however, is fully considered in the opinion of the General Term, and needs no further comment.

The judgment should be affirmed.

Huger, Ch. J., Andrews and Daneorth, JJ., concur; Hapallo, Earl and Finch, JJ., dissent.

Judgment affirmed.


source: Caselaw Access Project

author: Eael, J.

license: Public Domain

text:
    William T. Cunningham et al., Appellants, v. Benjamin F. Judson, Respondent.
    The parties entered into a contract by which plaintiffs agreed to sell and defendant to purchase about five-hundred tons, of “ No. 1 Eglinton Scotch pig iron for shipment in March, 1.880, from Great Britain to New York, by sail or steam vessels at seller’s option, deliverable ex vessel on arrival.” Plaintiffs shipped no iron in March, but in April they secured the option to purchase five hundred tons of iron of the kind specified, shipped by another party in March ffom Great Britain and then on its way to New York. When it arrived plaintiffs notified defendant that his iron had arrived and offered to deliver it under the contract. Defendant refused to accept it or to give any instructions in regard to unloading; plaintiffs subsequently made a contract for the .purchase of the iron. It is the custom in the port of New York, when iron is unloaded, for the custom-house weigher to weigh and the buyer who has purchased “ ex vessel ” must take it as it passes from the vessel. This iron was so weighed and then warehoused. Plaintiffs notified defendant of the fact and sent to them the warehouse receipt and weigher’s return, which papers defendant returned and declined to receive the iron under the contract on the ground that it was not shipped by plaintiffs. In an action to recover damages for breach of the contract, held, that the contract did not limit plaintiffs to iron shipped by them, and the reason for the refusal to accept was, therefore, untenable.
    (Argued June 25, 1885 ;
    decided October 13, 1885.)
    While the seller is limited to the description of the goods in such a contract and the buyer is not bound if there is a variance, even in a stipulation entirely unimportant, a liberal construction of the language used will not be resorted to, to import into the contract such a stipulation, nor will it be considered as included if there is a reasonable doubt as to the intent of the parties to include it.
    Also held, that there was a sufficient offer of performance on the part of plaintiffs to put defendant in "default.

      Cunningham v. Judson (30 Hun, 63), reversed.
    Appeal from judgment of the General Term of the Su-, preme Court, in the first judicial department, entered upon an order made June 1, 1883, which affirmed a judgment in favor of defendant, entered upon a verdict. (Reported below 30 Hun, 63.)
    This action was brought to recover damages for an alleged breach of a contract of purchase and sale.
    On the 20th day of January, 1880, the plaintiffs, who were dealers in iron, having offices in New York and Philadelphia, contracted to sell iron to the defendant, who was a dealer in iron in New York, through a bought-and-sold note, of which the following is a copy :
    “ New Yoke, January 20, 1880.
    “Bought of Messrs. Winthrop, Cunningham & Sons for account of Mr. B. F. Judson, about five hundred tons No. 1 ‘ Eglinton ’ Scotch pig iron, for shipment in March, 1880, from Great Britain to New York by sail or steam vessels, at seller’s option, deliverable ‘ ex vessels,’ on arrival at this port, at thirty-one dollars and seventy-five cents per ton (of 2,240 lbs.), payable by buyer’s notes to his own order, with interest at six per cent per annum, at ninety days from delivery of U. S. weigher’s returns, which are to decide quantities to be paid for. Interest for three days’ grace to be included.
    “ T. D. Hazard, Broker.”
    Across the face is written “ Accepted, B. E. Judson.”
    The plaintiffs did not ship the iron, but in the latter part of April they entered into negotiations with E. S. Wheeler & Go. for the purchase from them of five hundred tons of iron of the kind and quality specified which that firm had shipped on the bark Jennie Harkness, from Glasgow, March 26, and secured the option to purchase the same. It arrived at the port of New York May 7, on which day the plaintiffs telegraphed to defendant from Philadelphia, notifying him that his iron had arrived, and asking him whether they should bond or pay duties, and offering to substitute other iron shipped later on other vessels if he desired. The next day they wrote him saying they had received no reply to their telegram, and further: “We would like to know whether you would prefer taking iron now here, or from the vessels named, not yet arrived. Kindly let us know at your earliest convenience and oblige.” On the 10th of May the defendant wrote the plaintiffs as follows: “ Gentlemen — I am in receipt of your dispatch of the 7th inst., in which you remark your five hundred Eglinton March shipment has arrived. If so, please state when it was shipped and by what vessel and when it arrived and where it is. Upon receipt of this information I shall be prepared to reply to your other inquiries.” On the 12th of May one of the plaintiffs called upon the defendant at his office, and he testifies that he then tendered him the delivery order for the iron and offered to deliver the iron to him, and that he declined to take it, and he further testified : “ He said we should have advised him of this vessel bein<r in port and that we had not any iron on board of it. I told him that we had iron on board of her and we owned iron on board of her, and we offered to deliver it to him then and there, and he declined to take it.” The defendant in his testimony denied some of the facts thus testified to, but admitted that some kind of an offer was made on that day. On the 13th day of May the plaintiffs telegraphed to defendant from Philadelphia as follows: “ Five hundred iron now in port, arrival of which was promptly announced to you, were loaded in March. Vessel sailed about March 25th to 29th. Bills lading, likewise dated March. Our effort to accommodate being so coldly responded to by you, we feel compelled to withdraw option later deliveries unless you accept latter by telegraph before three o’clock today. Cannot longer delay disposition spot lot.” On the same day they wrote him as follows: “We are at a loss to understand your apparent indisposition to instruct us concerning the disposition of the iron. We have now made repeated efforts by telegraph, by mail and in person, and if any expenses occur through your singular tardiness in answering our several communications, we must, of course, look to yon for payment of same. We will be glad to receive your instructions about five hundred tons immediately, as they will be landing within a few days probably, and in default of hearing from you we shall store the iron for your account, and make a further tender of it as soon as weighers’ returns are obtainable.” The next day the defendant wrote the plaintiffs as follows : “All indications are that yon made no shipment of iron within the contract, and to meet its terms. You gave me no notice of shipment as is usual in such cases. You have furnished me with no order for iron owned by yon to be delivered ex vessel. I decline your proposals which are not within the contract.”
    On the 17th, 18th and 19th days of May, the plaintiffs wrote the defendant the following three letters successively: (1) “ We hereby tender you five hundred tons of No. 1 Eglinton Scotch pig iron in fulfillment of our contract of January 20, 1880. This iron is now on the bark Jennie Harhness, lying at Erie basin stores. Shall we land it on the wharf, or do you wish it delivered in. lighters \ Please notify us at once, as the vessel is discharging her cargo, and if there is any delay it may become necessary to store it.” (2) “ Referring to our respects of yesterday, we beg to notify you that the Jennie Sarlmess is about ready to land your iron, and we will be glad to have your instructions at once. Bearer of this will await your answer.” (3) “ Concerning our respects of yesterday, we now notify you that, as you make no reply to our letters of 11th and 18th inst., thus depriving us of your instructions as to disposition of the iron, we shall warehouse it for your account and at your expense. When the lot is warehoused, we shall make out bill and present same to you with proper documents and demand settlement. If you refuse this, we shall sell the iron for your account as our legal counsel may direct, and sue you for any deficiency resulting therefrom as against the contract price. This is any thing but handsome treatment from you, particularly as it is but a short time since we delivered you five hundred tons iron when the market rate was $10 per ton above the price you paid ns.” To the last letter there was a postscript as follows: “ You well know that the vessel is discharging cargo rapidly, and that the crowded condition of the piers necessitates prompt removal when landed. Of this we have notified you repeatedly, and in the absence of any instructions from you, we are forced to warehouse the iron for your account and at your expense.” On the 20th day of May the defendant wrote to the plaintiffs as follows: “ Yours of the 19th inst. received, and do not sanction any of your proceedings.”
    On the 14th day of May the plaintiffs made a formal contract with E. S. Wheeler & Co. for the purchase of the iron at $20.50 per ton by a bought-and-sold note, which, among other things, provided, “ Negotiable storage receipt to be taken out for the five hundred tons delivered after this date whenever iron is stored in the name of "E. S. Wheeler & Co., and iron to be paid for when the bill United States weighers’ returns and negotiable receipt, duly indorsed, is delivered, and documents not to pass out of seller’s hands until paid for,” and between that date and June 1st they paid in full for the same.
    It is the custom at the port of New York when iron is taken from a vessel for the custom-housé weigher to weigh it, and then the buyer who has bought it ex vessel must take it there as it passes from the weigher. This iron was so weighed, and then on or before June 1 it was put in a warehouse upon the pier, the custom-house dues having been paid. The storage receipt for the iron was dated Hay 22d, and the weigher’s return for exactly five hundred tons May 25th.
    On the 1st day of June the plaintiffs wrote a letter to defendant which was received by him the next day, as follows: “ The delivery of the five hundred tons iron purchased by you under contract dated January 20, 1880, is now complete in every respect. We hand you herewith (per registered post) the bill, United States weighers’ returns and negotiable warehouse receipt duly indorsed in your favor, and we once more request you to forward us your notes for the amount of our bill at once as per terms of contract bearing your acceptance. As the terms of sale have been complied with, we trust you will settle the matter amicably.” To this letter the defendant replied on the third day of June, as follows: “ Received yesterday by registered post storehouse receipt, invoice of iron and certificate of weighers dock-book together with your letter dated June 1st, 1880. I decline to receive the same in fulfillment of your contract of January 20, 1880. You shipped no iron of the character agreed for during the month of March. The iron was imported and ordered by other parties who had already bought the same, and was never tendered me “ ex ship.” After your failure to comply in reasonable time with your contract I purchased five hundred tons and have supplied myself. No order for the delivery has been tendered me prior to this date, and reserving to myself all legal rights resulting from your failure to comply with your contract I must decline further correspondence on this subject,” To this letter there was the following postscript, I return the storehouse receipt and weighers’certificate.” On the 15th day of June the plaintiffs wrote the defendant as follows : “ We are in receipt of yours of the third returning our bill United States weighers’ returns and negotiable storage receipt (indorsed in your favor) for the five hundred tons Eglinton iron stored for your account, ex Jennie Harhness, and note that you decline receiving the iron as per contract. We shall now sell this iron for your account charging you with any difference that may arise to our disfavor. As-you decline farther correspondence in the matter we do not now correct some of the misstatements in your letter;” and on the 17th day of July they again wrote him a letter as follows : “ We beg to advise you that after repeated efforts assisted by several JSTew York brokers to obtain the highest possible price, we have sold your iron — five hundred tons ISTo. 1 Eglinton Scotch pig iron — ex Jermie Harhness, to Messrs. T. J. Pope & Bros. 27. Y., at $20 per ton, and in due time will render you a statement showing the balance due us on the sale of your iron.”
    In October, 1880, this action was commenced, and the foregoing facts were proved on the trial. At the close of the evidence, the trial judge ruled that there were two questions for the jury, whether the plaintiffs had the iron,- and whether they tendered it to the defendant, and charged the jury among other things as matter of law “ that there was no legal tender or refusal to accept which would entitle the plaintiff to recover before the first of June;” “that the letter of May 17th does not of itself amount to a legal tender ; ” “ that a person cannot sell that which he does not own ; ” “ that before the defendant could be put in the wrong, the sellers must perform all of the conditions which by the terms of the contract they had to perform ;” “ that the plaintiffs were bound before they could put the defendant in default to put him in possession of the weight of the iron and furnish him with proper writings or documents which would authorize him to take it away,” and to all these portions of the charge the plaintiffs excepted. The judge also, at the request of the plaintiffs, charged the jury that “ an absolute refusal to receive goods is a waiver of specific objections to the tender which are not stated, and which if stated might be obviatedthat “if before or at the time of the completion of the contract the defendant openly and avowedly refused to perform on his part, or declared his intention not to perform at all events, a tender of performance on the part of the plaintiffs was waived,” and that “ the fact that the plaintiffs did not own the iron when it was shipped and that it was not consigned to them is no defense to the suit,” except that he qualified the last request by adding “ provided that they had acquired title before the tender of June 1st was made.” The judge refused to charge the following requests made on the part of the plaintiffs: “If the jury believe that the defendant, at the interview between Mr. Cunningham and himself (on May 12th) did not object to the offer testified to having been made by Mr. Cunningham on the ground that no delivery order was tendered him, he cannot now avail himself of the want of such tender as a defense; ” that “ the letters from the plaintiffs to the defendant, dated respectively May 17tli, 18th and 19th, especially that of the 17th, constituted a sufficient offer of performance on the part of the plaintiffs. The letter of the defendant of May 20th was an absolute refusal and dispensed with the necessity of a formal tender of a delivery order; ” that “ if the jury believe that in the ordinary course of business it was impractical to leave the iron alongside the Jennie Earkness, longer than it was left, and the refusal contained in defendant’s letter of May 20th, and his omission to take the iron away, caused its removal to the yard on the pier, he cannot object to the tender made him on June 1st on the ground that the iron was then in the yard and not alongside the vessel,” and to these refusals the plaintiffs excepted. The jury rendered a verdict in favor of the defendant. Upon plaintiffs’ appeal to the General Term the judgment entered upon the verdict was affirmed upon the sole ground that the plaintiffs did not ship the iron from Great Britain.

      Everett P. Wheeler for appellants.
    The judge at Circuit did not err in charging that the fact that the plaintiffs did not own the iron when it was shipped, and that it was not consigned to them, is no defense to the suit. (Dressel v. Jordan, 104 Mass. 407; Dyker v. Townsend, 24 N. Y. 57 ; Andrew v. Newcomb, 32 id. 417; Frazer v. Harbeck, 4 Robt. 179-180.) Where there is no ambiguity in the terms of a contract, the court will not insert by construction a clause not expressed. (Broom’s Leg. Maxims, 477.) All the defendant could reasonably require is that the plaintiff should have owned the iron at the time of tender. (Hill v. Blake, 97 N. Y. 216; 1 Pars, on Cont. 556; Hibblethwaite v. McMorine, 5 M. & W. 462; Fischel v. Scott, 15 C. R. 69; Pennock v. Coe, 23 How. [U. S.] 117.) The evidence already stated was sufficient to establish an offer of performance, and a refusal to accept in May. (Benjamin on Sales, § 760 ; Duffy v. O' Donovan, 46 N. Y. 223 ; Crary v. Smith, 2 id. 60 ; Woolmer v. Hill, 93 id. 576 ; Dustan v. McAndrew, 10 Bosw. 130 ; 44 N. Y. 72.) Contracts for the delivery of goods are to be construed, so far as the manner of delivery is concerned, with reference to the usages of the port of delivery and the exigencies of business. (Richmond v. U. S. Co., 87 N. Y. 240.) An objection to a tender which might be obviated is waived if not taken at the time the tender is made. (Marine Bk. v. Fiske, 71 N. Y. 353 ; Carmen v. Pultz, 21 id. 547; Stokes v. Pecknagle, 38 N. Y. Supr. 368.) It was defendant’s duty to go and get the iron. (2 Kent’s Com. 506; Slingerland v. Morse, 8 Johns. 473; Goodwin v. Holbrook, 4 Wend. 377.) The defendant having failed to take the iron from the pier, and having refused the offer of performance made before the iron was stored, cannot object to the tender made June 1st on the ground that the iron was in the yard, and not alongside the vessel. Delivery on the vessel was waived. (Hayden v. DeMets, 53 N. Y. 426; Dunlop v. Hunting, 2 Denio, 643; Paine v. Brown, 37 N. Y. 228.) In this case it was proper to show what “ ex-vessel ” meant. But evidence of usage is never admissible to add to a contract a clause not contained in it. (Silberman v. Clark, 96 N. Y. 522; Bank v. Bissell, 72 id. 615; Lawrence v. Maxwell, 53 id. 19; Groat v. Gile, 51 id. 431 ; Simmons v. Law, 4 Abb. Ct. App. Dec. 241.)

      Thomas Darlington for respondent.
    Immaterial evidence admitted under exception is no ground for reversal. (People v. Shorter, 2 Comst. 193; Onondaga Ins. Co. v. Minard, id. 98.) Evidence of a usage or custom of trade is frequently admitted to annex unexpressed incidents to contracts. (Dora v. Fiedler, 12 N. Y. 40; Fuller v. Robinson, 86 id. 308 ; Vail v. Rice, 5 id. 158; Walls v. Bailey, 49 id. 464; Johnson v. De Peyster, 50 id. 666.) A request to charge which is erroneous in part is entirely ineffectual. (Hodges v. Cooper, 43 N. Y. 216.) When a contract is executory, the contract carries with it an obligation that the article shall be merchantable, at least of medium quality or goodness. If it comes short of this, the vendee may rescind the contract and return the article after he has had a reasonable time to inspect it. The rule of caveat venditor and not caveat emptor applies. (Hargous v. Stone, 5 N. Y. 73.) It was the duty of the plaintiffs to tender iron. of the character and quality called for by the contract. (Shields v. Pettee, 4 N. Y. 124; Brown v. Weber, 38 id. 187; Paige v. Ott, 5 Den. 406.) He is only excused from this duty of complete performance by the act of God rendering it impossible, or the act of the law rendering it illegal, or the act of the other party rendering it unnecessary. (Nelson v. Plimpton F. P. Co., 55 N. Y. 480; Dunham v. Pettee, 8 id. 508; Lester v. Jewett, 11 id. 453.) Even though a request to charge is correct in form, the court may properly refuse to charge it, if, as applied to the case, it was mere abstraction. (Priebe v. Kellogg B. Co., 77 N. Y. 597.) The exceptions fail because they were irrelevant and inapplicable. (Kissinger v. N. Y. & H. R. R. Co., 56 N. Y. 538; Shuflin v. People, 62 id. 231.) Upon appeal the appellate court will not regard exceptions which ought not to affect the merits. (Vermilyea v. Palmer, 52 N. Y. 471.) As the uncontradicted evidence shows that the plaintiffs shipped no iron from Great Britain in the month of March, 1880, the defendant was under no obligations to accept any other. (Hill v. Blake, 97 N. Y. 216; Welsh v. Grossler, 89 id. 540.)
   Eael, J.

If the proper construction of the contract between these parties entitled the defendant to receive iron shippéd by the, plaintiffs from Great Britain, then the judgment is right. In that event the description of the iron purchased required that it should be iron shipped by the plaintiffs, and however unimportant that circumstance might be, it entered into the contract of the parties, and the defendant could not be required to take any other iron. (Hill v. Blake, 97 N. Y. 216.) But as that circumstance is unimportant, it should riot bo importéd into the contract by a liberal construction of the language used; nor should it be put there if there is a reasonable doubt whether the parties intended it to be included in the description of the iron in reference to which they were dealing. The iron was to be Ho. 1 Eglinton Scotch pig iron, and it was to bo shipped in March from Great Britain to Hew York. These were material stipulations and sufficiently described the iron. It was immaterial to the defendant whether it was shipped by a sailing or a steam vessel, and hence the option was given to the plaintiffs to deliver iron shipped by the one or the other. The words “ for shipment ” must mean the same as “shipped” and thus we have the phrase “shipped in March, 1880, from Great Britain to Hew York, by steam or sail vessels at sellers’ option.” This may mean that the sellers were to have the option to deliver iron shipped by them, by sail or steam, or it may mean that they were to have the option to deliver iron shipped by either method in the month named. We think the latter meaning the most probable and reasonable and therefore adopt it.

This iron, therefore, which was shipped from Great Britain to Hew York by sail, and which was bought by the plaintiffs while upon the vessel, answered the description prescribed in the contract and was deliverable in fulfillment thereof.

It remains only to be determined whether the plaintiffs did all they were bound to do to put.the defendant in default after the iron arrived in Hew York. There is no dispute about the material facts. They are mostly to be found in the writings put in evidence. It is clear that the plaintiffs were willing and anxious to perform and intended to perform on their part; and it is equally clear that the defendant, in consequence of the large decline in the price of iron, was unwilling«to perform, and did not, at any time after notification of the arrival of the iron, mean to perform. There can be no doubt that he was manceuvering to get out of a disadvantageous contract, and we must hold upon .the undisputed facts that he was not successful.

The plaintiffs had control of the iron upon its arrival, which was made more complete by their final contract with the owners on the 14th of May. They could at any time make complete title to it as it came from the vessel and passed the hands of the government weighers, and then they could have delivered it to the defendant in precise accordance with the terms of the contract if he had expressed any willingness to take it. Their repeated requests for directions, and repeated offers to deliver, were sufficient to call for some action on the part of the defendant. His conduct was such as to justify them in storing the iron, and hence their offer to deliver the iron on the 1st of June, when they had paid for the iron and obtained all the necessary documents,, was ample"and complete', and placed the defendant in default. He could not then complain of delay for which he was responsible, and that the delivery was not then ex vessel which he had prevented. The court would, therefore, have been justified in directing a verdict for the plaintiffs, and there was at least error in portions of the charge excepted to ,and in the refusals to charge as requested.

The judgment should be reversed and new trial granted, costs to abide event.

All concur, except Danforth, J.,' who votes for affirmance on the ground stated by the General Term, and Andrews, J., not voting.

Judgment reversed.


author: Danforth, J.

text:
    Eliza S. Wiltsie, Respondent, v. William Shaw, Appellant
    (Argued June 25, 1885 ;
    decided October 13, 1885.)
    S. died leaving personal property exceeding $50,000 in value over all indebtedness, and seized of certain real estate. By his will, after two legacies, amounting to §f,100, he gave to his executors, of whom plaintiff, who was a daughter of the testator, was one, $20,000, in trust, “ to invest said sum. in the best securities they can obtain,” and to use the income for the benefit and maintenance of GK, the testator’s son, during his natural life, and upon his death to pay the principal to plaintiff or her heirs. The residue of his estate, real and personal, he gave to plaintiff. In an action to recover damages for breach of contract on the part of defendant to purchase the real estate, held, that the gift for the benefit of the son was not a lien or charge upon the real estate, but that it was the intention of the testator that the same should be provided for out of the personalty ; and therefore that there was no defect in plaintiff’s title.

      Hoyt v. Hoyt (85 N. Y. 142), Harris v. Fly (7 Paige, 421) and Lypet v. Carter (1 Ves. Sr. 500), distinguished.
    Appeal from order of the General Term of the Supreme Court, in the third judicial department, entered upon an order made December 6, 1882, which reversed a judgment in favor of defendant, entered upon a decision of the court on trial without a jury. (Reported below, 29 Hun, 195.)
    This action was brought to recover damages for an alleged breach, on the part of defendant, of a contract for the purchase by defendant, and sale by the plaintiff, of certain real estate.
    The sole defense was that the land was subject to the lien of certain legacies imposed by the will of Hiram Smith, who died seized of the premises in March, 1881. Said Smith left no debts, and was the owner, at his decease, of personal property amounting to over $50,000. He left two children, the plaintiff and one George G. Smith. By his will he gave two legacies amounting to $1,100. Then he made the plaintiff executrix and another, executor of his will, and in the same clause gave to them the sum of $20,000 in trust “ to invest said sum in the best securities they can obtain, and to use the clear income thereof, in their discretion, for the benefit and maintenance of my son, George G. Smith, during his natural life, and at his decease to pay the principal thereof to ” plaintiff “ or the heirs of her body.”
    He then gave to plaintiff, the residue of his estate, real and personal. Ho money or property had been set apart to provide for the $20,000.

      Esek Cowen for appellant.
    With the exception of the sum of $1,100, specific legacies, all the real and personal property of the testator was left to the plaintiff, and at the same time the duty was imposed upon her to pay out of this estate, to the only son of the testator, the income of the sum of $20,000* This was a charge upon the real estate so devised. (Hoyt v. Hoyt, 85 N. Y. 149; Moore v. Beckwith, 14 Ohio, 135; Harris v. Fly, 7 Paige, 425 ; Lypet v. Carter, 1 Ves. Sr. 500; Myers v. Eddy, 47 Barb. 271; Reynolds v. Reynolds, 16 N. Y. 259; Herwell v. Whitaker, 3 Russ. 343.) Where there is no provision for the payment of the debts and no devise of specified real estate, a devise of the “ residue ” of real and personal estate will make legacies previously given in the will a charge upon the realty. (Shutters v. Johnson, 38 Barb. 80,83; Lupton v. Lupton, 2 Johns. Ch. 614; Kelling v. Brown, 5 Ves. 359 ; Reynolds v. Reynolds, 16 N. Y. 257; Tracy v. Tracy, 15 Barb. 503; Myers v. Eddy, 47 id. 263; Bevan v. Cooper, 72 N. Y. 317; Hoyt v. Hoyt, 85 id. 149; Greville v. Brown, 7 H. of L. Cas. 689.)

      'Henry A. Merritt for respondent.
    The legacy was not a charge upon the real estate by virtue of the residuary clause in the will. (Lupton v. Lupton, 2 Johns. Ch. 614; Myers v. Eddy, 47 Barb. 263; Babcock v. Stoddard, 3 T. & C. 207; Kineer v. Rogers, 42 N. Y. 531; Reynolds v. Reynolds, 16 id. 257; Spillane v. Duryea, 51 How. 260; Hoyt v. Hoyt, 85 N. Y. 142.) Personal estate is the primary fund-for the payment of debts and legacies, and if the testator does not specify who shall pay the legacies, or out of what fund they shall be paid, the presumption is that he intended they should be paid out of his own personal estate only. (Harris v. Fly, 7 Paige, 421; Hoes v. Van Hoesen, 1 Comst. 120; Kineer v. Rogers, 42 N. Y. 531; Taylor v. Dodd, 58 id. 335 ; Bevan v. Cooper, 72 id. 317; Hebron Soc. v. Schoen, 60 How. 185.) The legacy for the benefit of George G. Smith in the will was not a charge upon the real estate by reason of the plaintiff having been appointed executrix. (Reynolds v. Reynolds, 16 N. Y. 257; Herwell v. Whitaker, 3 Russ. Ch. 343 ; Doe v. Pratt, 6 Ad. & El. 180 ; Clark v. Sparhawk, 2 Vern. Ch. 228; Dover v. Gregory, 10 Sim. Ch. 393; Bailey v. Bailey, L. R., 12 Ch. Div. 268.) Conceding that real estate devised to an executor is charged with the payment of debts and legacies when the executors are directed to pay the same, yet the real estate is not charged with the payment of debts and legacies where there is more than one executor and only one is the devisee. (Warren v. Davies, 2 Mylne & Keen’s Ch. 49; 8 Jarman on Wills [5th ed.], 419.) The testator having left sufficient personal property to pay all the legacies mentioned in the will, the real estate would not become charged even if the personal estate was wasted by the executors. (Hebron Soc. v. Schoen, 60 How. 185; Richardson v. Morton, Eng. L. R., 13 Eq. Div. 123.)
   Danforth, J.

In view of the conflicting opinions of the learned judges of the supreme court, it is apparent that reasonable doubts can be entertained upon the point raised by this appeal, but it appears to us, upon principle and authority, that the legacy in question is not a charge upon any part of the estate in any such sense as will make it a lien upon the land in the hands of the purchaser. It is possible to imagine contingencies which would require for its payment a portion of the personalty, or a portion of the realty, or both. The estate may be so diminished that either species of property would alone be insufficient, and the beneficiary be so unmindful of his own interest, or incapable of attending to it, as to omit all measures to enforce the trust before that event happened. But these things are not to be presumed, and nothing of the kind appears. On the contrary, the personal property in the hands of .the executrix exceeds $50,000 over and above all debts, and there is no claim that she is lacking either in pecuniary responsibility or in honesty. If, indeed, the legacy is a lien or charge upon the land, it attached at the death of the testator, and its creation must be gathered from the words of his will, or found in some provision of law. The last is not pretended, nor are there express words of the testator to that effect.

It is not controverted that in the absence of directions by the testator, or some manifest intent on his part, the general rule requires that legacies shall be paid out of personal estate, but the appellant’s contention is first, that the provision in question is not a legacy within the ordinary meaning of the term, but rather a charge upon the estate left to the plaintiff, his other child. This proposition assumes the point in. dispute, and we find nothing in the will to justify it. It is clearly not sufficient that the legacy is directed to be paid. The cases all involve something more — a direction that it be first or previously paid,” or the residuary devise is after its payment,” or is to a person with directions to pay, or is of all “not herein otherwise disposed of.”

In Hoyt v. Hoyt, 85 N. Y. 142, cited by the appellant, importance was attached to the presumption that a testator would not desire one of his beneficiaries to enjoy, and the other be deprived of his prescribed bounty, and the residuary clause was construed as embracing only so much of the estate as should remain after the legacies in controversy had been satisfied, and from these considerations, and some others which have no application here, the intention of the testator was discovered and held to be that the legacies should be paid at all events, and that all parts of his estate should be liable for the payment.

But here we are not left to presumption. The testator of course intended the legacy should be paid, and having in mind his estate, its nature, its amount, and those persons who might naturally expect gifts from him, declared, first, that his grandson should have $1,000; second, the trustees of the cemetery $100, in trust, for the preservation of his lot therein; third, “ I give,” he says, “ to my executors the sum of $20,000, in trust,' for the purposes following: they to invest said sum in the best securities they can obtain, to use the clear income thereof in their discretion, for the benefit and maintenance of my son George, during his natural life.” He thus takes out of his personalty $20,000. It is this which they are to invest, and the income from such investment is the legacy in question. There is no direction to sell real estate; no mingling of the two species of property is called for; one only is pointed out. The appellant’s contention requires the discovery of an intent the reverse of that fairly implied in these words — an intent to secure the income by the whole of the estate rather than by this specific and designated part; an intent to bind not only the part selected from the personalty, but the whole of that and the realty also. Such a construction would seem to exclude the evident purpose of the testator. But the appellant relies upon the clause by which is given to the plaintiff, the testator’s daughter and one of the executors, the residue of his estate, real and personal,” as indicating the intention of the testator to charge the real estate. In view of the character of the testator’s property, his freedom from debt and the limited sum of legacies, he must have known that after providing for them according to his directions there would remain more than an equal amount of personal property and all his land, and that the remainder of one and all the other would constitute the residue of his estate. He could not have supposed there would be a mere fragment of each.

I have examined the cases cited by the learned counsel for the appellant. I find none which, under the circumstances of this case, furnishes a rule favorable to the appellant’s contention. In Harris v. Fly (7 Paige, 421), the personal estate of the testator was insufficient to pay his legacies, and the devisee of the land was, by the terms of the devise, directed to pay them. Substantially the same facts appear in the cases cited by the chancellor in his opinion, and among others, in that of Lypet v. Carter (1 Ves. Sr. 500), to which our attention, is also directed by the appellant, and upon those the rule was formulated that where real estate is devised upon condition to pay a legacy, or with direction to the devisee to pay the legacy in respect to the estate so devised to him, and because that real estate has been thus devised, it is in equity charged with the payment of the legacy, unless there is something in the will to rebut the legal presumption, or from which it can be inferred that the testator intended to exempt the estate devised from that charge.” In the case at bar there is more than sufficient personal property ; there is no conditional devise nor expectation even expressed that the devisee as such shall make any payment, nor as executor, except from the personalty.

The reasoning as well as the judgment in Myers v. Eddy (47 Barb. 271), and Reynolds'?. Reynolds(16 N. Y. 259), seem to be with the respondent. It is not necessary to refer to others. For the whole question is one of intent, to be searched for in the light of adjudged cases indeed, but to be determined after all upon the language of the will and the circumstances surrounding the testator, and from neither source can we deduce any thing which will permit us to imply a purpose on his part to make the legacy a charge upon the land.

No other point is raised. It follows that the decision of the General Term was right. It should, therefore, be affirmed, and the respondent, in pursuance of the stipulation, have judgment absolute against the appellant.

All concur, except Andrews, J., absent.

Order affirmed and judgment accordingly.


author: Finch, J.

text:
    Eliza G. Tuers et al., Respondents, v. Sylvester P. Tuers, Appellant.
    The complaint in this action alleged, in substance, that plaintiffs, being possessed of an undivided interest in certain real estate in the city of New York, appointed defendant as their agent to collect the rents thereof, he agreeing to pay all taxes and water rents charged on the premises out of the rents collected; that he collected the rents, retained the amount of certain taxes and water rents, but did not pay the same, and wrongfully appropriated to his own use the sums so retained. It appeared on the trial that the parties were tenants in common of the real estate; that plaintiffs jointly constituted defendant their agent for the purpose and under the agreement stated in the complaint; that he retained sufficient moneys to pay plaintiffs’ share of the taxes and water rents, but did not pay the same, or his own share, falsely representing that he had done so. Defendant’s counsel claimed that there were two causes of action set forth — one on contract, the other in tort — and asked the court to compel plaintiffs to elect upon which they would stand, which was refused. Held no error; that the cause of action was upon and for a breach of the contract, and the conversion alleged a mere element or detail; also, that plaintiffs’ interest to be protected extended to the entire payment of the taxes and water rents, not merely to their proportion thereof.
    (Argued June 25, 1885;
    decided October 13, 1885.)
    It appeared that high rates of interest were chargeable upon taxes unpaid. Also that, in consequence of the non-payment, the holder of a mortgage upon the premises had begun a foreclosure. Held, that plaintiffs’ right to recover was not limited to their share of the rents, etc., so misappropriated, with interest, but they were entitled to recover all such damages as flowed naturally and proximately from the breach.
    Defendant in no manner raised, upon the trial, the question as to the amount of damages. Held, that it was too late to raise it on appeal.
    Plaintiff H. claimed to be entitled to one-fourth of the rents as tenant by the curtesy; his daughter, the plaintiff B., defendant claimed was improperly joined as plaintiff. Held untenable ; as it appeared that defendant’s contract was with all the plaintiffs jointly, and as B. had an interest in securing the payment of the taxes and water rents by reason of her ownership in remainder.
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made June 1, 1883, which affirmed a judgment in favor of plaintiffs, entered upon a verdict.
    The complaint in this action alleges, in substance, that plaintiffs are possessed of an undivided interest in certain real estate situate in the city of New York; that they appointed defendant as their agent to collect the rents thereof, agreeing to pay him five per cent on the amount collected for his services; that he agreed to pay the taxes and water rents charged upon the premises, out of the receipts for rent; that he collected, under the agreement, the rents for the years 1875 to 1878, inclusive; that he neglected to pay the taxes and water rents for those years, although he retained out of the rents collected the sums required to pay the same, and that he “ has wrongfully converted to his own use each and every of said sums,” and refuses to pay over the same.
    Judgment was asked for the amount of the taxes and water rents so unpaid, the items of which were stated, with interest.
    The facts appearing on the trial are substantially set forth in the opinion.

      Charles N. Judson for appellant.
    No action can be maintained against defendant except one, “ of account for money had and received ” under the statute. (1 R. S. 750, § 9; Code, § 1666.) The remedy must be pursued by each one separately for his or her share. (1 R. S. 750; Code, § 166 ; Hall v. Fisher, 20 Barb. 446.) If, as the plaintiffs allege, the defendant is their agent and has in his hands the proceeds of collections, from which, after deducting commissions, etc., there is a balance due them, their remedy is an action for an accounting. (2 Van Santv. Eq. Pr. 160-164; Pars, on Oont. [4th ed.] 140; Trustees, etc. v. Stewart, 27 Barb. 553 ; McMahon v. Rauhr, 47 N. Y. 67; Bailey v. Bancker, 3 Hill, 188.) The allegation that defendant has neglected to pay the taxes and water rates out of the rent collected and that he has retained that amount and has wrongfully converted and appropriated it to his own use does not change the fact as alleged, that he simply failed to perform his alleged contract. It does not make it an action of tort. (Conaughty v. Nichols, 42 N. Y. 83; Austin v. Rawdon, 44 id. 63.) If by the delay the plaintiffs are or are not liable to be prejudiced, they may file a bill to compel defendant to make such an application of the money or to discharge the lien of the taxes. (Campbell v. Macomb, 4 Johns. Ch. 538; Hall v. Omaha Nat. Bk., 47 How. 202; Frazer v.
      Western, 1 Barb. Ch. 222.) The judgment is erroneous for the reason that Brittania Wakeman was made a party plaintiff and allowed to recover, notwithstanding she was not entitled to any portion of the rents, Herman Wakeman, her father, being entitled as tenant, by the courtesy, to the share of her mother. (Leach v. Leach, 21 Hun, 381; Ransom v. Nichols, 22 N. Y. 110; Hatfield v. Sneden, 54 id. 280; Code, §§ 488, 498.) There can be no recovery in this action, as no amendment can be granted changing the cause of action or changing the action from law to equity. (Short v. Barry, 3 Lans. 143, 147; Arnold v. Angell, 62 N. Y. 508; Bradley v. Aldrich, 40 id. 504; Craig v. Hyde, 24 How. 313; Mann v. Fairchild, 2 Keyes, 106; Towle v. Jones, 19 Abb. 449.)

      Carlisle Norwood, Jr., for respondents.
    Defendant by asking the court to direct a verdict in his favor conceded that there could be no dispute upon any question of fact. (Leggett v. Hyde, 58 N. Y. 275.) A recovery may be had by tenants in common against one who had been duly constituted their bailiff. (Laws of 1880, chap. 244, p. 367, § 102; 3 E. S. [7th ed.] 2205, § 4, note; Code of Civ. Pro., § 1666; Henderson v. Eason, 9 Eng. L. & Eq. Rep, 337; Woolever v. Knap, 18 Barb. 265; Coke upon Littleton [2 Butler & Har. notes, Ch. 323], 1995, 2005 ; Wheeler v. Horne, Willis, 208; Joslyn v. Joslyn, 9 Hun, 388; Dresser v. Dresser, 40 Barb. 300; Wash. Real Prop. [1st ed.] 420; [3d ed.] 570.) If there was any misjoinder of parties plaintiff it appeared on the face of the complaint and might have been a ground of demurrer. (Code of Civ. Pro., § 488, subd. 5.) Hot having taken the objection by demurrer, the defendant waived it. (Code, § 499; Patchen v. Peck, 38 N. Y. 39.) There was no misjoinder of claims or causes of action. (Code of Civ. Pro., § 488, subd. 7; id., § 499.)
   Finch, J.

There is but one cause of action stated in this complaint, and so the exception grounded upon the idea that there were two — one upon contract and the other for a tort— and, therefore, the plaintiffs should have been compelled to elect upon which .they would stand, is not well taken. That one cause of action was not merely for the conversion of plaintiffs’ money, but for something more than that, of which the conversion was only an element or detail. The complaint, in connection with the proof under it, showed that the plaintiffs and defendant were tenants in common of certain real estate, the revenue from which came in the form of rents, and to three-quarters of which the plaintiffs were annually entitled ; that the property was subject to accruing charges for taxes and water rents, payable to the city of New York, within whose corporate boundaries it was situated ; that the plaintiffs jointly constituted the defendant their agent to collect and receive the rents accruing which belonged to them and pay over the share to which they were entitled; that he further agreed, as such agent, and in virtue of his own interest-in the rents, to pay out of them all the annual taxes and water rents and so protect the property from sale; that for these services he was to receive a commission at first of three per cent and afterward of five, which was regularly allowed and paid to him ; that, notwithstanding, he willfully neglected and refused to perform the stipulated duty, in that he did not pay the taxes and water rents, but, falsely representing that he had done so, converted to his own use the money of the plaintiffs set apart for that purpose and agreed to be so appropriated, and neglected and refused to apply his own proportion of such rents to the discharge of his share of such incumbrances. The cause of action thus pleaded and proved rested upon a contract relation taking the place of the tenancy in-common and superseding the ordinary rights and duties flowing from that relation ; and the gist of the action is for a breach of that contract and to recover damages for such breach ; of which damages the conversion and misappropriation of the fund set apart for taxes and water rents was both the occasion and the evidence. The appellant so contends and we shall certainly do him no injustice if we thus accept his view of the cause of action as founded, not upon the mere conversion of the plaintiffs’ money, but upon a breach of the defendant’s duty under his express contract. Such a contract was lawful and valid. The plaintiffs’ interest to be protected extended to the entire payment of the whole taxes and water rents and not merely to such proportion as was equitably their debt, since the land was bound for the complete payment and their property could be taken for any unpaid portion. By their agreement, as the action of the defendant for many years indicated, he was to hold so much of the gross rents as was needed for the annual charges, as a fund for their payment, and pay over plaintiffs’ share of the remainder. His agreement bound him to appropriate his own proportion of the fund reserved to the discharge of the taxes quite as much as the plaintiffs’ proportion, and when he failed to do so he inflicted a double injury; for he not only converted and misappropriated the plaintiffs’ money confided to him for a special purpose, but he left the taxes and water rents entirely unpaid and accumulating at high rates of interest until the property was advertised for sale and the foreclosure of an outstanding mortgage begun' by reason of the default; and he did this' deceitfully and fraudulently, falsely lulling his employers-into security. There was thus established a valid contract, upon a good and sufficient consideration fully and regularly paid, and a breach of that contract.

The remaining question is one of damages. The plaintiffs were entitled to recover all such as flowed naturally and proximatelv from the breach, and were not limited to the bare amount of their share of the rents misappropriated, with the lawful interest upon it. Such a recovery would not recompense their loss, or restore them to the condition which would have resulted from performance. Two other sources of injury remain. The defendant’s neglect has caused the taxes and water rents to accumulate interest at a special rate greater than that ordinarily allowed by law; and the plaintiffs’ interest in the lands is exposed to a liability for the whole amount of the unpaid taxes and to the costs and peril of a foreclosure. They were thus clearly entitled to recover more than their misappropriated share and interest. How much more it is not necessary in this case to consider, for no exception exposes to our review the amount of damages, or the principles upon which that amount was determined. At the close of the case there was a request by the defendant that the court should direct a verdict in his favor, which was refused and he excepted, and then the court directed the jury to render a verdict for the plaintiffs for $2,948.48, to which direction the defendant again excepted. Neither party requested the submission of any question of fact to the jury, and the defendant in no manner raised the question of the amount of damages for which he was liable. That question was for the first time suggested on appeal. It came too late. We may infer from the exact correspondence of the amount of the verdict ordered with the result of the 'plaintifiE’s computation put in evidence, that the court awarded as damages the full amount of unpaid taxes and water rents with seven per cent interest, upon the ground that, by the misconduct of defendant) their land was left liable for that amount; but if so, the correctness of that view was in no manner challenged, and seems to have been adopted with the tacit acquiescence of both parties on the trial. The attention of the court was in ho respect drawn to the question, and no ruling was sought upon it. The final exception was general and to the right of the plaintiffs to have a verdict at all, and wholly failed to raise the specific question of its correct amount. While, therefore, it may well be that a grave question of damages might have been presented, it is not here and requires no ultimate determination.

The appellant claims that there was a defect of parties plaintiff; that plaintiff Brittania Wakeman had no interest, her father, the plaintiff Herman Wakeman, being entitled to the one-fourth as tenant by the curtesy. The court must have found, and might have done so from the proof, that the contract was made with all the plaintiffs jointly, and that Brittania had an interest in securing the payment of taxes and water rents by reason of her ownership in remainder, and so was a proper party plaintiff.

We find no error in the record, and the judgment should be affirmed, with costs.

Rapallo, Earl and Danforth, JJ., concur; Ruger, Ch. J., dissents; Andrews and Miller, JJ., not voting.

Judgment affirmed.


author: Per Curiam.

text:
    In the Matter of the Probate of the Will of William Budlong, deceased.
    (Argued October 6, 1885 ;
    decided October 13, 1885.)
    A surrogate has no authority to make an ex parte order, decreeing an allow, anee payable out of the estate to a special guardian of an infant unsuccessfully contesting the probate of a will; notice to the other parties interested in the estate is requisite.
    Costs may be allowed to a special guardian in such a case, but limited by, and only as specified in the Code of Civil Procedure (§§ 2558-2561).

      It seems that the compensation of the special guardian should come either from the infant or his' estate, and that if any part of such estate was before the surrogate or under his control he might have ordered the compensation to he paid out of it.
    Appeal from order of the General Term of the Supreme Court, in the fifth judicial department, made July 8, 1884, which reversed an order of the surrogate of Monroe county, granting an allowance for compensation, fees and disbursements to a special guardián. (Reported below, 33 Hun, 235.)
    The material facts are stated in the opinion.

      E. A. Nash for appellant.
    The court below erred in deciding that allowances to special guardians in Surrogate’s Court are costs, the amount and allowance of which are fixed by the Code, and to be entered in the decree. (Code, §§ 2, 17, 2530, 2566; Redf. Surr. Pr. [2d ed.] 769, note; McCue v. O'Hara, 5 Redf. Surr. Rep. 336 ; Foster v. Kane, 1 Demarest, 67; Schell v. Hewitt, id. 249, 251-2; 2 Bliss’ Code, notes to § 2559.) Allowances to special guardians are made by the court, and always made ex parte and by an order. (Rule 50.)

      J. Stull for respondent.
    An allowance to the special guardian, if made at all, should have been made by the decree itself, and form a part thereof. (Code of Civ. Pro., §§ 2558, 2559.) This being purely a question of allowance of costs, is controlled by the provisions of the Code of Civil Procedure on the subject, notwithstanding the proceedings to probate the will were before the Code took effect. (Matter of Sexton, 1 Demarest, 3; Forster v. Kane, id. 67.) The right to costs does not accrue till the termination of the action or proceeding to which they relate. (Smith v. Castlers, 5 Wend. 81; Supervisors v. Briggs, 3 Denio, 173; Moore v. Westervelt, 14 How. Pr. 279; Hunt v. Middlebrook, id. 300; Rich v. Huson, 1 Duer, 617.) This rule applies to proceedings in Surrogate’s Courts. (Matter of Mace, 4 Redf. 325 ; Matter of Sexton, 1 Demarest, 3; Forster v. Kane, id. 67.) Before the Revised Statutes, a surrogate had no authority to award any costs or allowances whatever. ( Walton v. Howard, 1 Demarest, 105 ; Noyes v. Aid Soc., 70 N. Y. 483.) Before the Code of Civil Procedure all the authority that existed for such allowances was by two statutes. (2 R. S. 223, § 10, pt. 3, chap. 2, tit. 1; Laws of 1870, chap. 359, p. 828.) Both these statutes were repealed by the G-eneral Repealing Act, which took effect simultaneously with part 2 of the Code of Civil Procedure. (Laws of 1880, chap. 245; Matter of Sexton, 1 Demarest, 4.) An allowance to a special guardian of an unsuccessful defendant is treated as “ costs.” (Code, §§ 2558, subd. 3, 2561; Dubois v. Brown, 1 Demarest, 317; Walton v. Howard, id. 103; Forster v. Kane, id. 67; Estate of Withers, 2 Civ. Pro. Rep. 169.) The general rules of practice cannot be made to abrogate the Code or statutes. (Gomry v. McGlynn, 84 N. Y. 284; People v. Bruff, 9 Abb. N. C. 153 ; Rice v. Ehle, 55 N. Y. 518.)
   Per Curiam.

The will of Milton Budlong, deceased, was presented to the Surrogate’s Court of Monroe -county for probate, and a special guardian was appointed for two infants who were the sole contestants. The contestants were unsuccessful and a decree was entered admitting the will to probate. A few days thereafter, on the ex parte application of the special guardian, without any notice to, or hearing by the other parties interested in the estate, an order was made by the surrogate allowing the special guardian $1,000 for his compensation, fees and disbursements as such special guardian, and ordered that sum to be paid by the special administrator out of the assets of the estate of the testator. From that order the special administrator and executors named in the will appealed to the General Term where the order of the surrogate was reversed, and then the special guardian appealed to this court.

The order of the surrogate was erroneous and should have been reversed for two reasons. First, it could not legally be made without notice to the other parties interested in the estate. It is a fundamental rule of law that the property of one cannot be taken and given to another without some notice and hearing, or opportunity to be heard ; and this $1,000 could not be taken from those who were entitled to the estate, and transferred to the pockets of the special guardian without some notice and opportunity to be heard. Second, the special guardian was appointed to look after and protect the interests of the infants. He had no duty whatever to discharge in reference to the estate of the testator, and there was no authority whatever to order the compensation of the special guardian to be paid out of the estate. His compensation should either come from the infants or their estate, and if any part of the estate of the infants was before the surrogate or under his control, he could have ordered the compensation to be paid out of that, hut not out of the estate generally. (Union Ins. Co. v. Van Rensselaer, 4 Paige, 85; Gott v. Cook, 7 id. 521, 544.) The Code of Civil Procedure now regulates costs in Surrogates’ Courts to be paid out of the estate; and an unsuccessful contestant of the probate of a will can generally have no costs payable out of the estate. But if he be a special guardian for an infant appointed by the surrogate, or is named as an executor in a paper propounded by him in good faith as a last will and testament, then although an unsuccessful contestant he may have costs out of the estate as specified in the Code. (§§ 2558, 2559 2560, 2561.)

We are, therefore, of opinion that the order of the General Term should be affirmed, with costs.

All concur.

Order affirmed.


author: Ruger, Ch. J.

text:
    In the Matter of the Accountings of David Hawley, as Executor, and as Testamentary Guardian and Trustee, etc.
    (Argued October 6, 1885 ;
    decided October 20, 1885.)
    The provisions of the Code of Civil Procedure regulating the method by which a review of errors on a trial before a surrogate may be secured, and providing for a loss of a right of review unless such methods are regularly pursued, furnish and limit the only remedy against such errors.
    The power of a surrogate to open or vacate a decree of his court is limited to cases where “ fraud, newly-discovered evidence, clerical error, or other sufficient cause ” of a like nature are shown. (Code of Civ. Pro., § 2481, subd. 6.) '
    An adjudication made by a surrogate in a proceeding to which a minor, regularly represented in accordance with the practice of the court, was a party, has the same effect as a similar adj udication between adults, and his relief from an erroneous or irregular adjudication is the same except as to the time within which an application for relief from an irregular judgment must be made (Code of Civ. Pro., § 2742.)
    Accordingly held, that an order was erroneous which vacated decrees of a surrogate upon settlement of the accounts of H. as executor, and as -testamentary guardian, where the order was granted on petition of the cestui que trust after he became of age, which simply alleged that some of the determinations of the surrogate were erroneous as matter of law, without any proof or suggestion of fraud, newly-discovered evidence, clerical error, or other similar cause of complaint.
    If a court of record has inherent power over its own records to modify, annul and vacate them independent of any special statutory authority (as to which quaere), it belongs exclusively to the court whose records are in question and may not be exercised for it by an appellate tribunal.

      In re Hawley (36 Hun, 258), reversed.
    Appeal from order of the General Term of the Supreme Court, in the second judicial department, made May 12, 1885, which reversed an order of the surrogate of the county of Westchester, denying an application of Adam M. Singer to open, vacate, or modify certain decrees of said surrogate, and which granted the application. (Reported below, 36 Hun, 258.)
    The material facts are stated in the opinion.

      Samuel Hand for appellant.
    The surrogate had jurisdiction to make the decrees sought to be set aside in this proceeding. (Code, § 3347, subd. 11.) As the present application was not made until more than seven years after the rendering of the decree of October 31, 1877, and more than five years after that of December 30, 1878, it is, therefore, absolutely barred, even if infancy constituted an error, in fact not arising upon the trial, and therefore dehors the record. (Matter of Tilden, 98 N. Y. 434.) The General Term had no power to open or vacate these decrees, the surrogate having had jurisdiction to make them. (In re Tilden, 98 N. Y. 434; McGuffin v. Cohoes, 74 id. 387; Hoffman v. Etna Ins. Co., 32 id. 412; Coffin v. Reynolds, 37 id. 640; R. R. Co. v. Dows, 4 J. & S. 137; Shotwell v. Murray, 1 Johns. Ch. 316; Chapman v. Layton, 18 Wend. 417; Brisbane v. Dacres, 5 Taunt. 7; Fisher v. Gould, 81 N. Y. 232.) It cannot be questioned but that adults are concluded by these decrees, and where infants have been duly cited and represented by guardian ad litem, they are just as much bound as persons of full age, and courts of record and general jurisdiction will only open or vacate the decrees for the same reasons. The court does its whole duty when it appoints a competent person to be the infant’s special guardian. (Freeman on Judgments,! 151; Daniels’ Ch. Pr. [5th ed.J 151; Brick's Estate, 15 Abb. Pr. 12; Phillips v. Dusenbury, 8 Hun, 348; Redf. on Surr. Courts, 557; Roper on Legacies, 191, 192; Tift v. Porter, 8 N. Y. 516; Walton v. Walton, 7 Johns. Ch. 258; Ovey v. Broadbent, L. R., 20 Ch. Div. 676; S. C., 8 App. Cas.; Young v. Carser, 1 Dev. & B. [N. C.] 360; Coleman v. Coleman, 2 Ves. Jr. 641, Sumner’s note; Matter of Pollock, 3 Redf. 100; Osborn v. McAlpine, 4 id. 1.) No rule as to specific legacies could apply after the stock was set apart to the testamentary guardian and trustee. (Matter of Moffat, 24 Hun, 325 ; Wagstaff v. Lowerre,
      23 Barb. 226; 3 Abb. Pr. 411; Matter of De Peyster, 4 Sandf. Ch. 511.) The testamentary guardian and trustee is entitled to commissions upon the whole estate coming to his hands, even though he had received commissions on the same as executor. (Layton v. Davidson, 95 N. Y. 203 ; Hurlburt v. Durant, 88 id. 126; Johnson v. Lawrenee, 95 id. 154; Prince’s Estate, 1 Tucker, 119; Cram v. Cram, 2 Redf. 244.) Section 2742 of the new Code makes a judicial settlement of an executor’s account conclusive evidence that items allowed to the accounting party for money.paid to legatees for necessary expenses and for his services are correct. Infants are bonnd by this section the same as adults. (Brick’s Estate, 15 Abb. 12.) There were no allegations of fact proved to warrant courts of record and general jurisdiction opening or vacating these decrees. (3 R. S. [5th ed.] 179, § 63; id. 181, § 81, subd. 4; id. 182, § 79 ; id. 179, § 64.)

      C. E. Tracy for respondent.
    Hawley was entitled to a commission upon The Singer Manufacturing Company stock but once, if at all. (Hall v. Tryon, Demarest, 276; Schenck v. Dart, 22 N. Y. 420; Phoenix v. Phoenix, 28 Hun, 629 ; In re Moffat, 24 id. 325.) All that Hawley ever received" and paid out was the dividends upon the stock, and upon them only was he entitled to a commission. (McWharter v. Benson, 1 Hopk. 36; Morgan v. Hannas, 13 Abb. [N. S.] 361; Foley v. Eagan, id., note; Drake v. Price, 5 N. Y. 430 ; Slosson v. Naylor, 2 Demarest, 257 ; Meeker v. Crawford, 5 Redf. 450; Tyler v. Hart, id. 450; Young v. Young, id., note; Cram v. Cram, 2 id. 244.) The bare fact of the appointment of a guardian ad litem is not sufficient to prevent a re-examinatian or a rehearing. The whole duty of a surrogate is not performed by appointing a guardian ad litem, nor is the infant bound by the neglect of the guardian. (Brick’s Estate, 15 Abb. 36; Wright's Accounting, 16 Abb. [N. S.] 429 ; Dobke v. McClaren, 41 Barb. 491; Story v. Dayton, 22 Hun, 450 ; Tucker v. McDermott, 2 Redf. 312.)
   Ruger, Ch. J.

Deference to the principles determined In re Tilden (98 N. Y. 434) seems to furnish a rule, by which this appeal must be decided. The facts are quite similar to those existing in that case and are substantially as follows: David Hawley and Charles M. Keller were named as executors in the will of Isaac M. Singer, and were also designated to act as guardians and trustees of the property of the infant legatees named therein. Singer died in July, 1875, and his will was admitted to probate on the application of Hawley, January 10, 1876, and letters testamentary were then issued to him, as sole surviving executor thereof. Hawley proceeded to administer the estate, and'filed his account for a final settlement as executor, on July 16,1877. Citations were thereupon duly issued by the surrogate and served upon all parties interested in such settlement, and upon the return day thereof guardians ad litem were duly appointed for each of the infant parties. Hpon that and subsequent adjourned days such proceedings were had, that on the 31st day of October, 1877, said accounts were settled, and allowed, by the surrogate and a decree was made adjusting the executor’s liability and directing a distribution of the property remaining in his hands. He was thereby directed to retain a part of such property, amounting in value to several hundred thousand dollars, as testamentary guardian and trustee for the petitioner, Adam M. Singer. Twice thereafter, once on December 28, 1878, and again on the 10th of January, 1881, upon a proceeding begun on June 16, 1880, the surrogate, upon an appearance of all of the parties interested, passed the account of the said Hawley as testamentary guardian and trustee for said infant and rendered a decree adjudicating the rights and liabilities of the said parties in their relations to each other as guardian and ward. In Hovember, 1884, the said ward, having arrived at majority shortly before, presented his petition to the surrogate asking that each of said several decrees be vacated and annulled on account of certain alleged erroneous allowances made therein for disbursements and commissions to the executor and trustee, and the neglect of his guardian ad litem to make the proper objections and obtain the disallowance of such improper charges upon such accounting. This application was denied by the surrogate, but upon appeal from such decision the General Term of the Supreme Court reversed the decision of the surrogate and vacated not only the two decrees entered upon the accounting of the testamentary trustee, but also the decree rendered upon the final accounting of the executor.

We can find no authority for the order made by the General Term. That court has thereby assumed to vacate several decrees duly made by a surrogate in a proceeding regularly pending before him and as to which he had duly acquired. jurisdiction over the parties and subject-matter, upon a mere allegation in a collateral proceeding that some of his determinations were erroneous as matter of law. This has been done several years after the decrees were entered and without any proof, or even a suggestion in the petition therefor, that any such fraud or clerical error had been committed, or the existence of evidence newly discovered, or any other cause rendering such an order proper under section 2481 of the Code of Oivil Procedure. To authorize one court in collateral proceedings to set aside the judgment or decree of another, regularly entered, something more is required than proof of the existence of an erroneous determination of such court upon the questions litigated therein. The due enjoyment of property rights, and the repose of titles, which that enjoyment requires, renders it necessary that the adjudications of legal tribunals, upon which rights to a large extent rest, should not be lightly disturbed or arbitrarily set aside and vacated after long lapse of time, for errors which should' have been discovered and remedied at the time of their perpetration. Some excuse must be shown by a party why he has not availed himself of the right of review provided by the statute, and the character of such excuse is described in section 2481. That section very clearly defines the nature and characteristics of the proof necessary to authorize a proceeding thereunder, and by its expression of the circumstances under which such an application can be made, very clearly implies that it cannot be successfully maintained upon other grounds. The provisions of the Code of Civil Procedure regulating the methods by which a review of the errors occurring upon a trial before a surrogate can be secured, and providing for a loss of the right of review unless such methods are regularly pursued, also furnishes the strongest implication that such errors are not remediable by any other proceeding. It was held in In re Tilden {supra), that an adjudication made in a proceeding to which a minor, regularly represented in accordance with the practice of the court, was a party, had the same effect as a similar adjudication between adults, and that the relief which he had from an erroneous or irregular adjudication was the same as that of an adult except in respect to the period of time within which an application for relief from an irregular judgment must be made. (Code of Civ. Pro., § 2742. See, also, Freem. on Judgm., § 151; Dan. Ch. Pr. [5th Ed.] p. 151; In re Brick’s Estate, 15 Abb. Pr. 12; Phillips v. Dusenberry, 8 Hun, 348.) It was also there held, that in a proceeding wherein the surrogate had jurisdiction a minor had no relief, under section 2481 of the Code of Civil Procedure, from an erroneous or irregular decree, except upon the ground of fraud, clerical mistake, newly-discovered evidence or other like cause, and that such relief must be applied for within the period prescribed by section 1291 of the Code of Civil Procedure. The application of these rules to the case in hand seems to us to require the reversal of the order of the court below.

The suggestion made by that court that an alleged distinction, made by the Code of Civil Procedure between intermediate, and final accountings, of a testamentary trustee in respect to the effect of adjudications made in the respective proceedings, have no application to decrees made and proceedings instituted before that Code took effect. Even if the views there suggested were correct it was quite unnecessary to vacate the decrees for that reason, as they would not constitute a bar to any subsequent investigation of the trustees’ .accounts, inasmuch as the surrogate would not have acquired jurisdiction to render the decrees complained of.

It is also proper to say, with reference to the claim made by the court below, that every court of record has an inherent power over its own records to modify, aménd and vacate them independent of the special authority conferred by statute ; that if such power exists it belongs exclusively to the court whose records are in question, and cannot be exercised for it by an appellate tribunal. The General Term has authority over the proceedings of the Surrogates’ Courts only in the cases provided by the statute, and this case is not, as we have seen, brought within the provisions of section 2481, giving the appellate court jurisdiction of the case upon appeal.

We think, therefore, that the order of the General Term should be reversed, and that ‘of the surrogate affirmed, with costs.

All concur.

Ordered accordingly.


text:
    John Larkin v. Louisa Misland, Respondent, Agnes Misland, Appellant.
    (Argued October 6, 1885 ;
    decided October 27, 1885.)
    A lessee of mortgaged premises, as between Mm and the owner, is simply entitled to be paid out of any surplus arising on foreclosure sale, the loss resulting to Mm from the extingMshment of the lease, which is the value of the use of the premises for the remainder of his term, less the rents reserved; in the absence of proof, the presumption is that the rents reserved are the fair value of the use and that no damage is sustained by the lessee.
    Where, therefore, a lessee and the owner of the equity of redemption were the only claimants for the surplus arising on foreclosure sale, and no evidence was produced by the former tending to show that the leasehold estate had any value in excess of the rents. J&eld, that the whole surplus was properly awarded to the owner.
    Appeal from order of the General Term of the Supreme, Court in the second judicial department made September 14, 1883, which affirmed an order of special term which awarded to defendant, Louisa Misland, the surplus arising on foreclosure sale herein.
    Said defendant claimed, as owner of the equity of redemption, the only other claimant was Agnes Misland who claimed to be entitled to a portion thereof, as lessee of the mortgaged premises, bic proof was made by the lessee as to the value of the leasehold estate.

      Charles N. Judson for appellant.
    The surplus arising on a foreclosure stands in exactly the same position as the land. It is subject to all the claims and liens that existed against, the land; in fact for all intents and purposes it is the land, and a court of equity will so treat it. (Averill v. Loucks, 6 Barb. 478; Every v. Edgerton, 7 Wend. 269.) Agnes Misland’s lease was a valid lien upon the land, and her claim takes precedence over that of the owner of the equity of redemption. (Clarkson v. Skidmore, 46 N. Y. 301.)

      Anthony Burrett for respondent.
    The respondent is the owner of the equity of redemption, and so named in the complaint, having proved the fact before the referee. She is prima, faeie entitled to the surplus, unless some one proves a better right. (Franklin v. Van Cott, 11 Paige, 129; N. Y. Leg. Obs. 162.)
   Finch, J.

This order. should be affirmed, solely for the reason that Agnes Misland did not show the value of her leasehold estate in excess of the rents reserved, or that it had any such value. We may grant that the lease which she produced from Louisa was duly delivered, and that there was possession under it, and so that she was entitled to be first paid out of the surplus the value of her leasehold estate before any part of such surplus should go to the lessor as owner of the equity of redemption. But the difficulty remains that there is no sufficient proof of any such value, and so no basis for an award to the lessee. The whole subject was fully discussed in Clarkson v. Skidmore (46 N. Y. 301). It was there explained that the value of the leasehold estate, the sum lost by its destruction, is what it is worth over and above the rent reserved. If its value does not exceed such rent, no loss results from an abridgment of the term. The occupation lost and the rental saved balance each other. But if the estate is worth something over and above the rental, that excess is lost by the destruction of the term. In this case no such excess of value was in any manner established. The amount of the rent reserved was not shown. It consisted of a sum equal to the interest on incumbrances, the number and amount of which we do not know, and to the insurance premiums, taxes and water rents. What this annual rental in money amounted to, and how it compared with the actual annual value of the leasehold estate, is undisclosed, and" so no basis existed for estimating a possible loss resulting from the extinction of the lease, and tq which Agnes was entitled as compensation out of the surplus realized. The only fact shown was that value remained in the fee, over and above the incumbrances, as indicated by the result of the foreclosure sale. But the case already cited determines that, while the surplus realized may be an element in estimating the value of the leasehold, yet the interest upon such surplus is not that value. It in no respect concludes the lessee, and so should not conclude the lessor. In the absence of proof to the contrary, the rents reserved must be presumed to be the fair" annual value of the use of the land, and that the fee is worth more than the incumbrances as shown by a foreclosure sale does not rebut or destroy that presumption,' for the' interest upon the value of the fee is much less likely to measure justly the value of the use than the rental agreed upon by the parties as the fair value of such use. The special term was, therefore, justified in ruling that Agnes Misland had shown no loss by the extinction of her estate which should be compensated out of the surplus.

The order should be affirmed, with costs.

All concur.

Order affirmed.