author: Herrick, J.: Hayham, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HENRY BRADLEY and Others, Respondents, v. THOMAS G. SHAW and Others, Composing the Board of Canvassers of the Town of Minerva,. Appellants.

      Election lam — interior defects of a ballot — an elector may rote for any person for any office — what does not establish the intent to malee the ballot a ma/rleed one — effect of putting a paster on the outside of a ballot — Laws of 1890, chap. 262, sec. 25; 1891, chap. 296, sec. 12.
    At a caucus to nominate town officers, held on the 24th day of February, 1892, a ticket was nominated headed by William H. Sullivan for supervisor. On the same day an independent caucus was held and a ticket was nominated headed by Henry Bradley for supervisor. Certificates of both nominations were filed with the county clerk. A protest was filed with the county clerk against his printing or delivering any ballots to the election officers for the ticket nominated at the independent caucus, and this protest was sustained and obeyed by him.
    The Bradley faction-had paster ballots printed which, in addition to the names of the candidates for town officers, contained the name of its candidate for excise commissioner.
    These paster ballots were put upon the official Sullivan ballots. At the election, which was held March 1, 1892, the canvassers refused to count any votes for the Bradley ticket.

      Held, that as the ballots were, as to their exterior form, legal the canvassers should have counted them, leaving the courts to decide upon any defects which upon inspection might have appeared upon the ballots when opened.
    That the objection that the Bradley ticket was not legally nominated was untenable.
    That, under section 25 of chapter 262 of the Laws of 1890, the Ballot Reform Law, as amended by section 12 of chapter 296 of 'the- Laws of 1891, the voter has a right to vote for any person for any office, whether or not his name is upon the official ballot.
    That the fact that the name of the candidate for excise commissioner was upon the paster ballot of the Bradley faction for town officers, made it impossible to count such votes for such candidate for commissioner.
    That it did not, however, vitiate the ballot as a ballot for town officers.
    That while it was, in a sense, a marked ballot it could not be rejected in the absence of any evidence tending to show that it was marked with the intent of identifying it. (Mayham, J., dissenting upon the question of the marked ballot.)
    That as the law required a marked ballot to be preserved, it could not be intended that such a ballot should be absolutely void.
    That it was for the court to determine upon the question of intent; and it was not for the inspectors to reject such ballots, but merely to count, preserve and return them.

      That the court, in the absence of evidence to that effect, would not presume that a ballot was marked with an intent to identify it.
    That, although the law directs that a paster ballot shall be pasted on the side opposite the official indorsement, and this direction is not complied with, yet where there is no evidence that after the ballot was folded any portion of the paster ballot was visible, the ballot is legal and should be counted.
    Appeal by tbe defendants, Thomas G-. Shaw, David Wilson, Nelson Hyatt and John Mulhern, composing the board of canvassers of the town of Minerva, Essex county, N. Y., from an order of the Supreme Court, made on the 22d day of March, 1892, and entered in the office of the clerk of the county of Essex, directing that a peremptory writ of mandamus issue against the defendants requiring them to reassemble as a board and declare the result of a town meeting, held in said town on March 1, 1892, allowing the relators certain paster ballots, and directing the defendants to issue a certificate to the candidates having the greatest number of ballots cast for them, including such paster ballots.

      John H. Cunningham and J. W. Houghton, for the appellants.

      John Foley, for the respondents.
   Herrick, J.:

This is an appeal from an order made at a Special Term upon the relation of Henry Bradley and others, directing a peremptory mandamus to issue against the defendants and appellants, composing the board of town canvassers of the town of Minerva, Essex county, directing them to reassemble in said town, as such canvassers, and declare the result of a town meeting held therein on the 1st day of March, 1892, allowing to the several relators the number of votes cast for them stated in the moving affidavits, and called paster ballots, and directing said board to issue a certificate of election to the candidates having the greatest number of ballots cast for them, including such paster ballots.

From the papers the facts appear to be substantially as follows: On the 21th day of February, 1892, a caucus or primary was held in the town of Minerva, Essex county, for the purpose of nominating candidates for town officers, and a ticket was nominated headed by William H. Sullivan for supervisor. On the evening of the same day another caucus or primary meeting, called an independent caucus, was held in the same town, apparently by those dissatisfied with the result of the first caucus, and a ticket for town offices was-nominated headed by the relator, Henry Bradley, for supervisor; certificates of both nominations were filed with the town clerk. A protest was filed with the town clerk against his printing or delivering to the election officers any ballots for the ticket nominated at such independent or second caucus, on the ground that “ no-votes were cast in the town of Minerva, at the last annual election or town meeting, representing any party, such as required by law, giving them authority to call a caucus to make nominations.”

Second. “ The so-called certificate of nomination is not sworn and certified to, as required by law, and is not proper in its form.”

The town clerk only delivered to the election officers official ballots containing the names of candidates nominated at the first caucus, which, for • convenience, we will designate the “ Sullivan ” ticket. The relators, composing the “ Bradley ” ticket, ascertaining that no official ballots would be distributed with their names on, caused paster ballots to be printed; these paster ballots, in addition to the names of candidates for other town officers, contained the name of their candidate for excise commissioner.

The statement of result shows that ninety-nine ballots were cast for Sullivan for supervisor; the other candidates on his ticket receiving from 96 to 107, and that Bradley received 110 votes for supervisor, his associates receiving from 107 to 116 votes.

The votes for the several candidates on the Bradley ticket were all cast by means of the paster ballot before described, the same appearing to have been voted by pasting them on the official ballot containing the names of the candidates on the Sullivan ticket. The defendants refused to count any of the votes for the Bradley ticket. The objections made to canvassing or counting the vote for the Bradley ticket are these :

First. That the candidates on the Bradley ticket were not regularly placed in nomination, pursuant to sections 2, 3 or 5 of chapter 262 of the Laws of 1890, known as the “ Ballot Reform Law,” and that, therefore, they were not legally candidates, nor entitled to be voted for and not eligible to office at the said town meeting.

Second. Because the paster ballots containing the names of the candidates on the Bradley ticket for town offices contained, in addition thereto, the name of a candidate for excise commissioner. There was the additional objection made to-counting some of such paster ballots, how many is not stated, that they were pasted up on the outside of the official ballot.

So far as appears, from the papers in the case, the ballots deposited or voted were, so far as their exterior is concerned, in proper legal form, and it was the duty of the defendants to have counted them, no matter what defects appeared upon the inside when they were opened. Inspectors of election and boards of canvassers have no business to decide whether a person voted for is eligible or not, it is their duty to count the votes cast for any and every person whose name appears upon a ballot printed and indorsed as the law directs. There is a procedure provided in the law for ballots that are for any reason defective, that will be referred to later on. While it was the. duty of the inspectors to count all the ballots in controversy here, and leave to the court the office of determining the legal questions involved, they have not done so, and the court must meet the questions as they are presented.

The first objection made to counting the votes cast for the Bradley ticket, that such ticket was not legally nominated, and that, therefore, they were not eligible as candidates, is not tenable. The ballot law was not intended to restrict the choice of the people, it was intended, on the contrary, to secure to them greater freedom and independence in voting, to insure to them the utmost freedom in their choice of public officers.

The title of the law is: “An act to .promote the independence of voters at public elections, enforce the secrecy of the ballot, and provide for the printing and distribution of ballots at public expense.”

To restrict the voter to the candidates placed in nomination by political parties, or by petitions of citizens, is very far, it seems to me, from promoting independence in voting, and the law makes no such restriction, but provides for the very reverse. Section 25 of chapter 262, Laws of 1890, as amended by section 12 of chapter 296 of the Laws of 1891, is in part as follows: “ The voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office. Any voter may take with him into the voting booth or compartment a printed ballot of his own selection or preparation, to be known as a paster ballot, containing the names of all tbe offices to be filled, and of tbe candidates therefor for whom he desires to vote * * * and the voter may paste the whole of said paster ballot on any of the official ballots.”

It will be observed that the statute says the voter may vote for any person for cuny office; and it recognizes the fact that he may desire to vote for some person or persons whose name is not upon any of the official ballots and provides that he may write or paste it •on; it also affords him the means of making up an entire -ticket to .suit himself, of names not upon the official ballots, by means of the paster ballot.

The official ballot is simply a part of the machinery devised to insure secrecy and independence in voting; is printed at public expense to insure uniformity in the ballots, and to save candidates the expense of printing, and thus cut off one reason or excuse for raising money to be used, in fact, for corrupt purposes. While the law provides for official ballots, it does not provide for official candidates, and it is not necessary that one’s name should appear upon the official ballot to enable the voters to vote for him.

The second objection to counting the Bradley ballots, the fact that the name of a candidate for excise commissioner was printed with the other town offices on the paster ballot, presents greater difficulties.

The votes cast for such candidate for excise commissioner cannot be counted for him because not upon a ticket legally indorsed as an excise ballot, as held by this court in the case of the People ex rel. Sherman v. Person et al., decided at this term. The serious question is, did the printing the name of the office of excise commissioner, and of a candidate therefor, upon the ballot, vitiate the ballot as to the candidates for other town offices ?

In a sense, the unauthorized printing of the name of this office and the candidate therefor upon the town ballot made it a mai’ked ballot or a defective ballot, but that does not of itself vitiate the ballot, or justify the inspectors of election or board of canvassers in rejecting it; it is only when it is marked with the intent that it may be identified that it is to be rejected, and that rejection is not to be by the inspectors. Section 16, chapter 296, Laws of 1891, provides that such ballots shall be preserved with a statement of the objections made to them, that they shall be counted in estimating the result of an election, and then provides for a judicial proceeding to determine their validity. The ballot is not to be excluded until the intent is ascertained and determined by the court. (Nichols Case, 129 N. Y., 407.)

The only reason that is assigned for excluding these ballots from the estimate of votes is that they are, in effect, marked ballots. But the law assumes that there may be ballots with marks upon them that may be counted, otherwise why preserve them for the court to say whether they shall be counted or not. If all marked ballots are to be rejected; if the fact that some mark, name or word, not authorized by law, appears on the inside of a ballot, is of itself the evidence and proof that it was placed there with the intent that the ballot may be identified, there would be no object in preserving the ballot for the court, there would be nothing for the court to pass upon, nothing to determine except that there is something on the ballot not authorized by law. It seems to me that the plain meaning and intent of the statute is, that the court shall determine whether the mark on the ballot is placed there with the intent of subsequently identifying the ballot and tracing it to the voter; and if it can find no such intent, then the ballot is to remain as •counted. I realize the difficulties that must necessarily arise from such a construction. Proof of a fraudulent intent must always be difficult and sometimes impossible, and permitting any ballot to be counted that has anything upon it except what the law authorizes, doubtless opens the way to marking it with intent to identify the voter.

The other construction, that is, rejecting every ballot having anything upon it not authorized by law, without any further proof of intent, is also subject to serious objections, and would open the door to just as great dangers.

The ballots may be marked by the adverse party for the very purpose of having them rejected; dishonest election officers may mark them to afterwards reject them in the count; and then having marked and rejected them immediately destroy them, as was done in a case recently before us, leaving no trace of their wrong-doing, nothing for the court to pass upon; such a construction would place our elections completely in the hands of the innumerable boards of inspectors in the State; the rejection of a few ballots in each election district, or even a portion of them, changing the result of a State election.

Upon the whole, it seems to me that the safest course is to leave nothing for the inspectors to do except to count the ballots in the box; they are prohibited from receiving any having any mark on the outside, or not properly indorsed; and if anything appears on the inside of the ballot not authorized by law, to preserve such ballot; then those interested have ample opportunity to deliberately investigate the matter, and after such investigation, if they think proper, present it to the court for its determination.

But whichever course may be best is not for the court to determine ; it cannot legislate; it can only interpret and construe, and I cannot see any other interpretation or construction to be given to the statute except the one I have indicated; that is for the court to determine in each particular case whether the marks or unauthorized words were placed upon the ballots with intent to identify the voter. Was, then, the name of a candidate for excise commissioner placed upon the town ballot for the purpose of identifying the voter ? There is nothing in the case before us to show that it was; all the ballots for the Bradley ticket were alike in that respect; the same candidate appeared on all the ballots, and, so far as the case discloses, there is nothing to indicate any unlawful or corrupt intent, except the bare fact that the name of such candidate appeared not upon a ballot indorsed Excise ” as the law requires, but on the paster ballot for other town offices; and, so far as appears in the case, they had no separate ballot for excise commissioner.

To hold, under such a state of facts, that these ballots were marked for the purpose of identification, within the meaning of the law, would be to hold, in effect, that whenever any name, word or mark not authorized by law appears upon a ballot, that that fact, in and of itself, is evidence that it was placed there with the intent of • subsequently identifying the voter, such a holding or construction we have already-seen is not warranted by the wording of the statute. I, therefore, cannot find that the paster ballots in question were printed or marked with the intent that the same might be identified, consequently they should not be rejected for that reason.

The remaining objection to be considered is that some of the Bradley paster ballots,-how many does not appear, were pasted on the outside of the official ballots. If the paster ballot is so affixed to the official ballot as to disclose for whom the voter is voting, then the ballot should neither be received nor counted, because then it would be in violation of the secrecy of the ballot, and would afford a means of identifying the voter, but in this case it does not appear whether it was so affixed or not. The provisions of the statute are as follows:

First. That it shall be pasted “ on the side opposite the official indorsement.”

Second. “ A paster shall be so attached to the ballot that when the ballot is folded no portion of such paster ballot shall be visible.” (Laws of 1891, chap. 296, § 12.)

A voter should not be deprived of his vote, except at the behest of some plain and clear requirement of the law. Reading the two clauses I have quoted together, it seems to me that the first one is directory merely ; that the essential, and, therefore, the mandatory one, is the second; that is the one that requires that it should be so attached as not to be visible.

The case does not show whether the paster ballots in question were so attached as to be visible or not, and the court has no right to assume that the law was violated. There is not sufficient evidence before us to warrant the court in rejecting the ballots for the manner in which they were attached to the official ballots.

Some of the affidavits state that some of the Bradley ballots were marked for identification, but do not state how they were so marked or how many there were of them; and they have not been preserved as the law requires, so that we have nothing before us to pass upon or determine in that regard.

This disposes of all the objections made to counting the Bradley ballots, and we find in none of them any sufficient reason for rejecting such ballots.

Let the order for a peremptory ma/ndamus be affirmed, with fifty dollars costs and printing disbursements.

Putnam, J., concurred.

Hayham, P. J.

(dissenting):

I fully concur in all of the conclusions reached by my brother Herrick in this case, except that relating to the effect of voting on the town ballot for the commissioner of excise; but I cannot concur with him as to the effect of placing that name on the ticket. It appears to me that that was such a marked ballot and cast under such circumstances as to vitiate the entire ticket on which it was voted.

By section 38 of chapter 262 of the Laws of 1890, known as the Ballot Reform Law, as amended in chapter 296 of the Laws of 1891, it is provided that “ the names of candidates for the office of excise commissioner shall be printed in a different ballot from the one containing the names of candidates for other town offices. Such ballot shall be indorsed “ Excise ” and shall be deposited, when voted, in a separate box which shall also be marked “Excise.” * * * qipg ballots containing the name of candidates for other local offices shall be indorsed “ Town.” Each of the paster ballots of the Bradley ticket voted contained the name of John McCardle for commissioner of excise, pasted upon the official ballot marked “ Town.”

It is agreed that this vote cannot be counted for excise commissioner, because not upon a ticket legally indorsed. (People ex rel. Sherman v. Persons et al.) It follows, therefore, that the name and designation of McCardle constituted no part of the ticket indorsed “ Town,” and was, as has been said in the prevailing opinion, in a sense, an unauthorized name and mark upon the town ballot. Did it, per se, vitiate that ballot ? Or must there be evidence aliunde the marked ballot itself that it was done for the illegal purpose of its subsequent identification ? It seems to me that a more direct and effectual method of evasion and nullification of the law could not well be suggested than that of placing an unauthorized name of office on an official ballot; and yet to hold that these were marked ballots, voted in violation of the Ballot Reform Law, and, therefore, not capable of being counted, will, in effect, disfranchise more than one-half of all the voters who voted at this town meeting Consequences so grave and far-reaching should not be visited upon the voter, unless the courts, in administering this law, are, by its letter and spirit, required to inflict such disfranchisement. In interpreting this law, so vitally affecting, the voter on the one hand and the great public interest to be subserved on the other, the court should carefully avoid what is sometimes called judicial legislation by importing into it matters not placed there by the legislature; or, on the other hand, what would be equally unauthorized, repealing, by judicial interpretation, any of its provisions.

One of the leading purposes manifestly aimed at in the enactment of the law was that the ballot cast by each voter should be absolutely secret. As was said by O’Brien, J., in the People ex rel. Nichols v. The Board of County Canvassers of Oneida County (129 N. Y., 402): “ The general policy and scope of the act is well expressed in its title.” An act to promote the independence of voters at public elections, enforce the secrecy of the ballot, and provide for the printing and distribution of ballots at public expense.” In the discussion of the requirements of this act, so far as it relates to the secrecy of the ballot, the judge uses this language: “ The primary aim and object was to enable the voter to cast a ballot for the candidates of his choice, without the possibility of revealing, by the act of voting, the identity or the political complexion' of the candidates voted for.” The manifest object of the legislature in making the ballot absolutely secret was to minimize the' great and growing evil of bribery of the voter, by removing all possible means of knowledge on the part of the bribe giver that the vote for which he gave or contracted to give the bribe would be deposited according to contract; and, further, to secure to the employee immunity against the oppressive coercion of his employer, and thus to secure to the employee the right of a free ballot.

It is difficult to see how this central idea of secrecy, which seems to be the soul of the Ballot Reform Law, can be effectual for any of the beneficial purposes for which it was intended, if the method adopted in the Bradley ballot can be adjudged to be legal and that ballot upheld and counted. It does not seem sound or logical to hold that numbers give immunity, and that because there are over one hundred violations of the ballot law, that, therefore, the act escapes its 'condemnation; such reasoning would not commend itself to our judgments as sound in almost any other moral or legal question. If but one, or ten, or even twenty such ballots had been found in the box, it will hardly be questioned that they would be denounced as marked ballots and rejected from the count, unless this method of marking ballots can be held to be allowable under the law. If it can be held that ballots marked in this manner must be counted for all the candidates properly voted for on the ticket designated “ Town,” then the door would be opened at every town election for persons desiring to promote the election of the candidates of their choice to place on a paster ballot the name of some person for an office not to be voted on the town ticket, and, with that sure mark of identification, contract for the payment of a bribe to each person who receives that ticket from him, and shows by the vote, when canvassed, that the contract was performed; and that the same scheme may be worked by an employer upon his employee and the purity and freedom of the ballot be thus completely destroyed, and the law, which was designed to protect the purity and sanctity of the ballot, become an instrument of most gigantic fraud.

But it is urged that, by section 35 of the Ballot Reform Act, as amended, it must be shown that the vote was marked and cast with the intent that it shall be afterwards identified before the ballot is vitiated, and that the court must find that intent before the vote can be rejected. The language of that section, as amended upon this subject, is as follows: “ No voter shall place any mark upon his ballot, or do any other act in connection with a ballot, with the intent that it may be identified as the one voted by him; no person shall place any mark upon or do any other act in connection with a paster ballot with the intent that it may afterwards be identified as having been voted by any particular person. When a ballot has been deposited in a ballot-box, upon which, or upon a paster affixed thereto, a writing or mark of any kind has been placed by the voter, or by any other person to his knowledge, with intent that such ballot shall afterwards be identified as the one voted by him, the same shall be void and of no effect.”

It is manifest that the legislature by this provision required that the marked ballot must, to be adjudged void, be deposited by the voter with knowledge and with the intent that it shall be afterwards identified, but the act furnishes no rule of evidence by which the court shall judicially declare and decide that question of knowledge and intent.

Resort must, therefore, be had to the general rules of evidence for the determination of those facts. We start with the presumption that knowledge of the law is to be imputed to the voter, and that when he voted for a commissioner of excise on the town ticket he did so knowing that that office could not be legally voted for on such a ticket, and that his name on it made such a ticket a marked ballot. The town ticket must contain only the names and designation of the officers to be voted for on it. In the case of the People ex rel. Nichols v. The Board of Canvassers (supra), Gray, J., in discussing that question, uses this language: The plan embodied in the law was to have a uniform ballot. That essential feature was secured by provisions requiring all ballots to be prepared by a public officer, and to be exactly alike in every possible respect externally in the official indorsement, and differing internally only in the candidates for office, upon the ballots prepared for the different political parties.”

This language applies as well to a paster ballot voted upon an official indorsement as to the official tickets printed in full by the clerk or under his direction. With .the legal presumption to which we have referred, and which obtains in this case, it follows that the voter who deposited the town ballot containing the name and designation of a candidate for excise commissioner, did so charged with the knowledge that he was voting a marked ballot. Did he intend that it should afterwards be identified as a ballot voted by him ? Of this there is, and from the very nature of the case there can be, no proof, except from the legal inference to be deduced from such act. The law raises a presumption that every person intends the legal consequences of his acts. One of the legal consequences of the act of voting a marked ballot is that it may be identified; and if that was the consequence intended by him, then both conditions, to render the ballot illegal, void and of no effect, are established. It is true that the methods of reasoning by which this conclusion is reached may be somewhat subtle, yet the difficulty to be encountered in the enforcement of this much-needed and salutary law not only justifies strict construction but calls upon the courts to adopt all the legal and legitimate means in their power to give effect to its provisions. In the present case, as has been suggested, the rejection of the ballots thus shown to be marked may look like the disfranchisement of the voters, but that was the result of disobedience of the law. In the case of People v. Board of Canvassers (cited supra, and upon that subject), O’Bbien, J., says: But it is said that this result will disfranchise the electors who cast these ballots, in good faith, believing that they were the proper official ballots.

The answer is, that when an elector attempts to express his will at an election, by the nse, through either design or accident, of ballots which the law declares shall not be counted, the courts have no power to help him. Had these ballots been misplaced by design or some preconcerted arrangement between the county clerk and the candidates whose names appear thereon, or some of them, the voter using them might be as innocent then as they appear to be in the case at bar; but to hold, under such circumstances, that the votes must nevertheless be counted, would be to suggest an easy method of defeating the fundamental purpose of the statute.”

These reasons apply with equal, and I think with greater, force to the altered ballot by the use of a name and an office not entitled to be voted for in the ticket, as to the numbering on the label or indorsement on the outside of the ticket. It is safe to say that if this method can be resorted to and ballots thus marked can be voted and counted, the facilities for bribery and coercion have been vastly increased by the provisions of what was intended to be a ballot reform law. But it is insisted that the construction contended for is dangerous in this, that the inspectors of election would have it in their power to throw out ballots on the ground that they were marked, and thus completely change the result of an election. I do not think that such a result could follow, for the reason that they are required to preserve all defective ballots, and this kind of ballot is a marked, and, therefore, defective ballot; and the inspectors would have no right to destroy it, but must retain it; and thus the questions as to the character of the vote and the right of having the same counted could be brought before the courts for their determination. It is only in case of improper or unauthorized label or caption appearing on the outside of a ballot that the inspectors are authorized and required to reject the vote altogether. If the alteration or defect appears on the inside of a ballot, which can be known to the inspectors only on the canvass of the votes, the inspectors are to treat it as a defective ballot and preserve and return it, with their certificates, so that a party aggrieved or having any interest in the result may take the case to the courts, where the right of the parties may be judicially declared as in the case at bar. The question, therefore, is, not what the inspectors may do, but what the court will do where the court is satisfied, from the certificate of the canvassers, that ballots sought to be counted are concededly marked so that they may be identified if desired, and when the voter knew, or is presumed to have known, that he was voting a marked ballot at the time of casting the same. Under such circumstances, it seems to me that the intention of the voter must, as I have attempted to show, be presumed from his act; and that any attempt on the part of the court to find an innocent motive and thus uphold the ballot, would be vesting in the court the exercise of a discretion not given by law; and while its exercise may not be fraught with the danger that might be apprehended from the exercise of such discretion by the inspectors of election, yet it is one which the courts should not voluntarily assume, where, by the application of legal rules, the ballot is by the law denounced as a marked ballot.

I am, therefore, of the opinion that the order awarding a peremptory writ should be reversed, and the writ should be quashed.

Order for a peremptory momdamus affirmed, with fifty dollars costs and printing disbursements.

       Reported, ante p. 327.


source: Caselaw Access Project

author: Herrick, J.:

license: Public Domain

text:
    In the Matter of the Estate of ISAAC H. WATSON, Deceased. JOHN De WITT PELTZ and Another, as Administrators, etc., of ISAAC H. WATSON, Deceased, Respondents, v. JOHN A. SCHULTES and Another, as Executors, etc., of MARY WATSON, Deceased, late Surviving Executrix of ISAAC H. WATSON, Deceased, Appellants.

      Executors and administrators — accounting by the'executor of an executor — statute of limitations — when the right to enforce such an accounting accrues.

    In 1871 the will of Isaac H. Watson was admitted to probate, and letters testamentary were issued t.o Mary Watson, the widow, and to John J. Canaday who died in 1875.. The testator gave the property to the widow for life, and the remainder, except some trifling legacies, to the General Synod of the Reformed Dutch Church, and directed that his property should be distributed one year after the death of his wife. The widow died in 1889, and left a will disposing of some furniture and a small sum of money, which was admitted to probate in 1890.

      In 1891 certain persons were appointed administrators do bonis non of tlie estate of Isaac H. Watson, and thereafter took proceedings, under section 2606 of the (Jode of Civil Procedure, to compel the executors of Mary Watson to account for the property of Isaac Watson.
    No judicial settlement or accounting of the estate of Isaac H. Watson liad ever been made by his executors or at the instance of any beneficiary under his will. It was claimed by the executors of Mary A. Watson that, as by section 2724 of the Code of Civil Procedure a judicial settlement might have been required of the executor of Isaac II. Watson after one year after the issuing of letters, and as the six years’ limitation of subdivision 1 of section 382 of the Code of Civil Procedure applied to this proceeding, the time within which the executors of the executor of Isaac II. Watson might be compelled to account had expired.

      Held, that the proceeding was proper, the right of the successor of an original executor to compel the executor of an executor to account; being expressly provided for in section 2606 of the Code.
    That the right to demand an accounting of the executors of Mary Watson did not accrue until their appointment in 1890.
    That as, by the terms of the will, the property of Isaac Watson was not to be distributed until after Mary Watson’s death, the legatees, before that event, could not demand or sue for their legacies or have an accounting.
    That the executors of Mary A. Watson had no right to the estate in remainder after the termination of her life estate, and should account for it.
    Appeal by the defendants, John A. Schultes and John Schultes, as executors of Mary Watson, deceased, from a decree of the Surrogate’s Court of Albany county, entered on the 4th day of March, 1892, ordering them to render an account of all moneys and property received by said Mary Watson, deceased, and pay and deliver to the administrators, with the will annexed of Isaac H. Watson, any property in the hands of Mary Watson, at the time of her death, which belonged to the estate of Isaac H. Watson.
    The proceeding was instituted to compel the executors of Mary Watson, deceased, to account for the estate of Isaac U. Watson, of which the said Mary Watson was an executrix and a life beneficiary. It was claimed by the executors of Mary A. Watson that, as by section 2724 of the Code of Civil Procedure a judicial settlement might have been required of the executor of Isaac H. Watson after one year after the issuing of letters, and as the six years’ limitation of subdivision 1 of section 382 of the Code of Civil Procedure applied to this proceeding, the time within which the executors of the executor of Isaac IT. Watson might be compelled to account had expired.

      John L). White and Eugene Burlingame, for the appellants.

      William McElroy and William L. Learned, for the respondents.
   Herrick, J.:

This is an appeal by the defendants from an order of the surrogate of Albany county requiring them, as executors of Mary Watson, deceased, to account for the property that came into her hands as executrix of Isaac H. Watson, deceased. Sometime in the year 1871 Isaac H. Watson, then a resident of Albany county, died, leaving a last will and testament, which was admitted to probate by the surrogate of Albany county on the 6th day of June, 1871; on the same day letters testamentary were issued to John J. Canaday, as executor, and Mary Watson, as executrix, they being so designated in the will; both duly qualified and thereafter filed an inventory of the estate.

On or about October 26, 1875, the said John J. Canaday died intestate.

On or about September 25, 1889, Mary Watson died, leaving a last will and testament, wherein the defendants were named as executors, and which will was admitted to probate by the surrogate of Albany county January 9, 1890; and on the same day the defendants duly qualified as executors, and thereafter, and on March 10, 1890, duly filed their inventory of the personal effects of the estate of Mary Watson.

No judicial settlement of the estate of Isaac H. Watson has ever been had by the executors thereof or either of them.

With the exception of some specific legacies to other parties, Isaac H Watson bequeathed all his property, both real and personal, to his wife, Mary Watson, during her life ; he further provided for the distribution of his property among various legatees one year after the death of his wife.

On the 24th day of November, 1891, letters of administration, with the will annexed of the estate of said Isaac IT. Watson, were issued by the surrogate of Albany county to the respondents, who duly qualified as such administrators.

None of the beneficiaries under the will of Isaac H. Watson ever attempted to bring the executors of his will, or either of them, to an account.

The respondents, as such administrators of the will of Isaac H. Watson, applied to the surrogate of Albany county to have the defendants, as executors of the will of Mary Watson, render an account of any property that had come into their hands, as such executors, that belonged to the estate of Isaac H. Watson.

The defendants resisted such application, alleging that more than seven years had elapsed prior to the death of Mary Watson and after the issuing to her of letters testamentary; also, that none of the beneficiaries under the will, although not incapacitated so to do, had taken any steps to compel. an accounting within six years from the time such right accrued.

I think the decree of the surrogate should be affirmed. The right to compel the executor of an executor to account ,upon the application of the successor of the original executor is provided for by section 2606 of the Code of Civil Procedure.

The right to demand an accounting of the defendants did not accrue until their appointment. The property that is being sought, and for which they are asked to account, was not to be distributed until the death of their testatrix, Mary Watson; until that time the legatees had no right to demand the same, and the statute would not run against them.

They could not sue for their legacies, and could not have an accounting. (Matter of Hodgman, 31 N. Y. St. Rep., 479.) The right to a distribution and to a final accounting of the estate of Isaac H. Watson could not arise until the death of Mary Watson; the defendants have no right to the remainder of that estate in the possession of their testatrix at the time of her death. If, instead of dying September 15, 1889, Mary Watson had so conducted herself that the letters granted to her had been revoked on that day, she could have been made to account for the property in her hands as executrix and turn the same over to her successor. The defendants occupy her position and must account in the same manner. (Matter of Clark, 119 N. Y., 427; Matter of Wiley, Id., 642.)

The decree of the surrogate should be affirmed, with costs and printing disbursements, to be paid by the defendants personally.

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

Decree of surrogate affirmed, with costs against defendants personally.


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    WILLIAM H. FINLEY, by CHRISTOPHER FINLEY, his Guardian, Respondent, v. HUDSON ELECTRIC RAILWAY COMPANY, Appellant.

      Master and servant — a motor-man inviting a boy to ride upon an eleetrie ear in return for opening a switch — no implied assent by the master.

    In an action against an electric railway company to recover for negligence alleged to have resulted in injury to the plaintiff, the plaintiff, a boy, claimed, upon the trial, that he had been invited to ride upon the car by the motor-man as payment for his services in opening a switch which it was the duty of the motor-man to open.
    The company had forbidden motor-men to allow any one to ride upon such terms.

      Meld, that the defendant owed the boy no duty as a passenger.
    That the act of the motor-man in inviting the boy to ride was not within the scope of his duty as an employee, nor was it in furtherance of the company’s interest or for its benefit.
    That the law would not imply an assent upon the part of the company to such an invitation by its servant.
    Appeal by the defendant, the Hudson Electric Railway Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Columbia on the 13th day of April, 1891, uponi a verdict for the plaintiff for $3,500 after a trial at the Columbia Circuit before the court and a jury; and also from an order denying a motion, made by the defendant upon the judge’s minutes, for a new trial, entered in said clerk’s office on the 9th day of April, 1891.

      It. E. Andrews and L. F. Longley, for the appellant.

      J. Rider Octdy, for the respondent.
   Herrick, J.:

The car of the defendant was moving at a moderate rate of speed, and carefully, through the streets, so that no duty that the defendant owed to other users of the street was violated. The plaintiff was not seeking to obtain passage as a passenger; he was not expecting or expected to pay fare, and the defendant owed no duty to him as a passenger. (Connolly v. Knickerbocker Ice Co., 114 N. Y., 104-109; Fleming v. B. C. R. R. Co., 1 Abb. N. C., 433; affirmed, 74 N. Y., 618; Buckley v. N. Y. and H. R. R. Co., 43 Supr. Ct., 187.)

But it is claimed that the plaintiff was getting upon the car by invitation of the motor-man or conductor, in payment for his services in opening a switch for the motor-man; assume that to be the fact, in doing so the motor-man was not acting within the line of his duty, neither was he doing it in furtherance of the defendant’s interest or for its benefit. No benefit was to be derived by the defendant from the motor-man’s act. Not only is it not within the scope of his employment to invite people to ride free, or to employ others to assist him in the performance of his duties and compensate them by free transportation, but in this particular case the defendant, for the purpose of breaking up a practice of the kind in question, had ordered their motor-men not to permit or allow it, and had made rules against it. The master is liable only for the authorized acts of the servant; those done within the scope or line of .the servant’s employment. The root of the master’s liability for the servant’s act is his consent, express or implied, and when his acts are done within the scope of his employment or for his master’s benefit or in furtherance of his interest, although not strictly in. the line of his duty, yet in the course of his employment, the master’s assent is implied and he is accordingly held liable. (Meehan v. Morewood, 52 Hun, 566; Mulligan v. N. Y. and R. B. R. Co., 129 N. Y., 506.) As in the case of Quinn v. Powers (87 N. Y., 535), where although the servant departed from the strict line of his duty? yet what was done was in the line of his business for the master’s benefit, in furtherance of his interests, and what the master might naturally have done if he had been present. (Pages 541, 542.)

The proposition of law is beyond dispute; the difficulty is, as in most cases, in applying it. The scope of the motor-man’s duty as motor-man, or driver of the car, was to conduct or drive the car carefully through the streets; as conductor, for he seems in this case to have been both motor-man or driver and conductor, it was his duty to see to the welfare of passengers or those seeking to-become passengers, he owed, as the servant of the defendant, a duty to no one else. The plaintiff was not injured by reason of any neglect of duty that the defendant owed to other users of the streets, neither was he injured by any neglect of duty that the defendant owed to him as a passenger or one seeking to become a passenger;. and it was not within the scope of the conductor’s duty to invite him on the car as a guest, and as such the defendant was under no obligation of duty to him.

' It seems to me that it was not a part of the motor-man or conductor’s business, or within the scope of his employment, or for the benefit of the defendant, or in furtherance of its Interest, to invite the plaintiff upon the car, under the circumstances, in this case, and hence that the defendant’s assent thereto cannot be implied.

For these reasons judgment should be reversed and a new trial granted, costs to abide the event.

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

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


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    THE PEOPLE OF THE STATE OF NEW YORK ex rel. DANIEL E. SUTLIFF, Respondent, v. THE BOARD OF SUPERVISORS OF FULTON COUNTY, Appellant.
    Certiorari to a board of supervisors— the boardis entitled to a fee for making a return thereto — its amount.

    Daniel E. Sutliff, who had presented claims to a hoard of supervisors for audit and allowance, which were in part rejected, sought to review the action of the board hy certiorari. The hoard refused to make a return to the writ unless paid the legal fees for such an act.
    Held, that, to make a return to such a writ was not a duty imposed hy law upon a hoard of supervisors within the meaning of section 3380 of the Code of Civil Procedure, providing that “ Each public officer, upon whom a duty is expressly imposed hy law, must execute the same without fee or reward, except where a fee or other compensation therefor is expressly allowed hy law.”
    That a hoard of supervisors was “ a person ” within section 3005, requiring a person upon whom such a writ is served to make a return upon payment or tender of the legal fees, and was entitled to a fee for making such a return.
    That the amount of the fee was fixed hy section 3135.
    Appeal by the defendant, the Board of Supervisors of Fulton County, from an order of the Supreme Court, entered in the office of the clerk of the county of Fulton on the 22d day of March, 1892, requiring it to file a return to a writ of certiorari, or show cause why it, and its several members, should not be punished for a contempt.

      _ZV. II. Aníbal and J. A. Dennison, for the appellant.

      John M. Carroll, for the respondent.
   Herrick, J.:

The relator presented to the Board of Supervisors of Fulton two verified claims for audit and allowance. After investigation the board rejected the greater portion of such claims; the relator subsequently commenced proceedings to review the action of the defendant, the board of supervisors, and a writ of certiorari was granted by the Supreme Court, directed to the defendant, for the purpose of reviewing its proceedings upon the audit of such claims.

The defendant prepared the return to said writ, but refused to file the same until the fees, it claimed were allowed by law, were paid by the relator. The relator claimed the defendant was not entitled to any fees whatever for preparing and filing such return, and refused to pay any.

An order was granted at the Special Term requiring the defendant to file such return without the payment of any fees, and from such order the defendant appeals to this court.

The relator cites section 3280 of the Code of Civil Procedure as authority for the non-payment of fees; that section reads in part as follows: “ Each public officer upon whom a duty is expressly imposed by law, must execute the same, without fee or reward, except where a fee or other compensation therefor is expressly allowed by law.”

I do not think obedience to a process of the court comes within the provisions or meaning of this section; it is not a duty expressly imposed upon them by law as public officers; it is not an official duty; the section refers only to official duties.

But assuming that obedience to such writ does come within the meaning of section 3280, still there is a fee or other compensation allowed by law for making a return to a writ of certiorari.

Section 2005 of the Code of Civil Procedure reads as follows : “A person upon whom a writ of certiorari, issued as prescribed in this title, is served, must, in like manner, upon payment or tender of the fees allowed by law for making a return to the writ, and for copying the warrant or other process or proceeding to be annexed thereto, obey and return the writ, according to the exigency thereof.”

Under the name ‘‘ person ” is included not only a natural, but an artificial person, corporation, and bodies corporate, whether municipal or otherwise. The board of supervisors in making a return necessarily acts through its officers and employees, and it is just as much entitled to the fees and compensation for making a return as a natural person. The only open question is, what is the fee 1 While the section I have quoted recognizes the fact that there is a legal fee allowed by law for making the return, I have been cited to no statute specifically stating what that fee is, unless it is section 2135 of the Code of Civil Procedure; that seems to fix the amount legally payable for making a return; and, in the absence of any other statute, we must be guided by that; the fee that is lawful for one class of persons to charge and receive must be the legal and proper fee for others to charge and receive for the same services.

There is no reason why any different rule should prevail as to boards of supervisors than prevails as to other persons against whom writs of certiorari issue.

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

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

Order reversed, with ten dollars costs and printing disbursements.


author: Herrick, J :

text:
    GEORGE M. BEEBE, Appellant, v. THE BOARD OF SUPERVISORS OF SULLIVAN COUNTY and Another, Respondents.

      Oontrad — against public policy — employment by a board of supervisors of one of its member's as its attorney — is against public policy; is void by statute — right of a taxpayer to enjoin payment.

    A board of supervisors, desiring to take proceedings against a county treasurer to recover money not accounted for by liim, employed one of its members, an attorney, to bring the actions. The attorney subsequently presented a bill for his services in the premises, which was audited by the board. The attorney did not vote upon his own appointment, nor upon the audit of his account.
    In an action by a taxpayer to restrain its payment:

      Held, that he had.' a right to maintain an action to prevent the payment of a claim which the auditing officers had no right to allow.
    That a contract made between such a board and one of its members, involving the services of the member and the payment by the county therefor, was against public policy and was void.
    That such a contract was forbidden by section 473 of the Penal Code.
    Appeal by tbe plaintiff, George M. Beebe, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Sullivan on the 15th day of February, 1892, dismissing the complaint upon the merits, after a trial at the Sullivan Circuit before the court.

      John A. Thompson, for the appellant.

      Lewis E. Ca/rr, for the respondents.
   Herrick, J :

In the year 1888 the.Board of Supervisors of Sullivan County, desiring to take proceedings to recover money not accounted for by the county treasurer, employed one John F. Anderson, an attorney and counselor at law, to act for them.

Pursuant to such employment said Anderson commenced four .actions in the Supreme Court against the county treasurer and the sureties upon his official bonds, to recover the moneys for which he had not accounted.

In December, 1890, Anderson asked to be relieved from acting any further as the attorney of the board of supervisors in three of the actions he had commenced; his request was acceded to. After being relieved from acting further as their attorney in said three actions, Anderson presented a bill to the board of supervisors for his services in said actions, amounting to the sum of $1,107; the board audited and allowed said bill at its full amount, and proposed and still proposes to pay the same from the funds of the county. At the time of his employment the said John F. Anderson was and continued to be a supervisor of Sullivan county, during the rendition of his legal services down to and including the time of the presentation and auditing of his bill, but took no part in the proceedings to employ him as an attorney or in the auditing and allowing of his account.

The plaintiff was, in the year 1890, a resident of the town of Thompson, Sullivan county, and was assessed upon the assessment-rolls of the town for that year for an amount exceeding $1,000, and liable to be taxed thereon for his proportionate share of the taxes levied in said year for county charges.

The plaintiff, as such taxpayer, commenced an action against the defendants to restrain the payment of the amount of said audit to the defendant John F. Anderson. Upon the trial’the plaintiff’s complaint was dismissed. This, we • think, was error; a taxpayer has a right to maintain an action to prevent the payment of a claim which the auditing officers have no right to allow. (Osterhoudt v. Rigney et al., 98 N. Y., 222, 230, 231.)

At the time of his employment the defendant Anderson Avas a member of the board of supeiwisors ; they were the agents of the county of Sullivan, and as such had no right to enter into contracts for their own benefit with their principal, the county of Sullivan. They are trustees and have no right to enter into contracts with each other at the expense of those for whom they are acting, and whose interests they are bound, to guard and protect. (Jewett v. Miller, 10 N. Y., 402; N. Y. C. Ins. Co. v. N. P. Ins. Co., 14 id., 85; Conkey v. Bond, 36 id., 427; Murray v. Beard, 102 id., 505.)

The illegality of such contracts does not depend upon statutory enactments, they are illegal at common law. It is contrary to good morals and public policy to permit municipal officers of any kind to enter into contractual relations with the municipality of which they are officers. And this principle applies with particular force to members of a board like a board of supervisors, which not only makes the contract but subsequently audits the bill.

But it is said that in the case before us the supervisor who was employed did not vote on the question of his own employment or upon the audit of his bill; that does not cure the evil; the influence upon felloAv members is the same; his constituents are entitled to his judgment in making contracts, to his scrutiny in passing upon accounts, and to his unbiased and disinterested efforts in both; and he cannot make the violation or neglect of the duties he owes to his constitutents the means of validating an otherwise illegal act; he cannot put on and off the garb of a public official, and discharge or refuse to discharge the duties of his trust at will, and as best subserves his private interests. He is a part of the board of supervisors ; its act is his act, and he cannot, as a supervisor, make a contract with himself as a private citizen.

The principle of the case was decided in the case of Smith v. City of Albany (61 N. Y., 444), and recognized in section 473 of the Penal Code, which makes the entering into such contracts by public officers a criminal offense. That section is not in derogation of any common-law right, and should be strictly construed to prevent the evil it was aimed at.

That law was in force at the time the contract of employment between the defendants was entered into, and an act prohibited by law, whose commission is punishable by fine and imprisonment, cannot be the basis of a legal charge against the county. (See Bell v. Quin, 2 Sandf., 146.)

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

Putnam, J., concurred; Mayham, P. J., concurred in result.

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


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    SENECA BULLOCK, Respondent, v. THE TOWN OF DURHAM, Appellant.

      Highways — a verified statement, by one injured thereon, of the cause of action — section 16 of chapter 568 ofWdOis not retrospective — constructive notice of a defect— lack of funds.

    Dn August 14, 1890, Seneca Bullock was injured, as alleged, because of tlie failure of a town to maintain proper guards upon a bridge. In June, 1890, the legislature passed an act, which was to take effect March 1, 1891, requiring, as a prerequisite to an action against a town for such an injury, the presentation to the supervisor of the town of a verified statement of the cause of action within six months after it accrued; and further providing that no action should be commenced until fifteen days after the service of such verified statement.

      Held, that as the act, although passed in June, 1890, was not to go into effect until March 1, 1891, it would not, in the absence of an expressed intention to that effect, operate upon a cause of action which accrued in August, 1890.
    That an act of the legislature will not be construed retrospectively so as to take away a vested right.
    It appeared that the bridge had been without guards for four years, and that the commissioner of highways of the town was elected in March, 1890.

      Held, that sufficient time had elapsed to create the presumption of notice to the town of the defect.
    While it is a defense to a commissioner of highways that he was without necessary-funds to make repairs, and without the power to raise such funds, the burden is upon him to make out such a defense, in both of its branches.
    Appeal by the defendant, the Town of Durham, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Greene on the 18th day of September, 1891, upon a verdict for the plaintiff for $400, after a trial at the Greene County Circuit before the court and a jury, with notice of an intention to bring up for review upon the appeal an order denying a motion for a new trial.

      A. O. Cowles and Frank II. Osborn, for the appellant.

      William, 8. Bussell and Frank 8. Beoker, for the respondent.
   Herrick, J.:

This is an appeal from a judgment in favor of the plaintiff against the defendant, in an action brought to recover damages for injuries received by the plaintiff on the 14th day of August, 1890, by reason of the negligence of the defendant or its commissioner of highways in leaving a bridge, upon or composing part of one of the highways in said town, without any guards or barriers at its sides or edges. The plaintiff was driving across said bridge when for some reason his horse became unmanageable and backed the carriage, containing plaintiff, off the side of the bridge; he fell several feet and was severely bruised and injured. The action was commenced March 21, 1891.

The defendant claims that the plaintiff ought not to maintain this action, and that the judgment should be reversed, because, as it alleges, no vei’ified statement of plaintiff’s claim was ever presented to the supervisor of the defendant before the commencement of the action; that plaintiff’s cause of action is barred by the statute of limitations as to such actions, and that there is no evidence that the commissioner of highways of the defendant had any notice of the defect, or had any funds in his possession or under his control which could be applied by him to remedy the defect in the bridge.

Section 16 of chapter 568 of the Laws of 1890, which took effect March 1, 1891 (see§183) reads as follows: “Every town shall be liable for all damages to person or property, sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways of such town. No action shall be maintained against any town to recover such damages unless a verified statement of the cause of action shall have been presented to the supervisor of the town, within six months after the cause of action accrued; and no such action shall be commenced until fifteen days after the service of such statement.”

The defendant claims that the plaintiff’s right of action was subject to the provisions of this statute, and by failing to comply with it, he is barred by its terms.

The act, as we have seen, was to take effect March 1, 1891, the accident occurred August 14, 1890; plaintiff’s right of action accrued then; it was obviously impossible for him to present his claim at any time after March first, and at the same time within six months after the happening of the accident; and to hold that he has no right of action because he has thus failed to comply with the statute is to take from him a right of action that had accrued prior to the taking effect of the statute.

An act of the legislature is not to be construed retrospectively so as to take away a vested right. (Dash v. Van Kleeck, 1 Johns., 477; Watkins v. Haight, 18 id., 138; Sayre v. Wisner, 8 Wend., 661; Mongeon v. People, 55 N. Y., 616; Fitzpatrick v. Boylan, 57 id., 437; N. Y. and O. M. R. R. Co. v. Van Horn, Id., 477.) It will not be construed to operate upon existing rights or liabilities without it in express terms expresses such intention. (Johnson v. Burrell, 2 Hill, 238; People ex rel. Ryan v. Green, 58 N. Y., 295-304.) Where an act required all claims for damages or in juries because of defective streets to be presented to the common council within three months after the happening of the injury, it was held not to apply to a case where the injury happened before' the passage of the act. {Williams v. Oswego, 25 Hun, 36.) Although the words of a statute are so broad and general as in their literal sense to comprehend existing cases they must yet be construed as applicable only to such as may thereafter arise, unless the intention to embrace all is plainly and unequivocally expressed. (Berley v. Rampacher, 5 Duer, 188; McCahill v. Hamilton, 20 Hun. 388; Bay v. Gage, 36 Barb., 447; Eli v. Holton 15 N. Y., 595.)

I do not think that the fact that the act in question was passed in June, 1890, to take effect March 1, 1891, in any way affects the question; so far as its effect upon the questions raised here is concerned, it is to be construed as if it was passed March 1, 1891; it was then, and not until then, that it became a law; and effect is to be given to it only from that time. For these reasons I think the plaintiff’s cause of action was hot subject to the statute in question, and that he was under no obligation to present his claim to the supervisor.

The other reasons given for defeating the plaintiff, that there is no evidence that the commissioner of highways had any notice of the defect or had any funds in his possession or under his control which could he applied by him to remedy the defect, I do not think are valid. The bridge had been without any side rails, barriers or guards for over four years. It had been in that condition a sufficient length of time to be notice to the commissioners of highways of the town; and the one in office at the time of the accident, which it will be recalled was August fourteenth, was elected in March of the same year. I do not think it necessary that it should be the neglect of the particular commissioner in office at the time of the accident in order to make the town liable, nor that it is necessary that notice should be shown to have been received by him ; but even if it were so necessary, the one in office at this time had been in long enough to have constructive notice of the condition of the bridge in question, that condition having existed from the beginning of his term of office. And, as a matter of fact, it appeared upon the defendant’s case that he knew of it when he came into office.

In Clapper v. Town of Waterford (43 N. Y. St. Rep., 316) the Court of Appeals held that it was always a defense to an action for damages against a commissioner of highways, for injuries sustained in consequence of a defective highway, to show that he was without the necessary funds to make the repairs, and without the power to raise such funds. If it is a defense, then it is incumbent upon the defendant to establish such lack of funds or power to obtain them, not for the plaintiff to show a sufficiency of funds or power to obtain them.

In this case the defendant sought to show that the commissioner in office at the time of the accident was not in possession of funds to remedy the defect. The question of the sufficiency of funds or power to obtain them is a question of fact, and upon examining the evidence in the case I fail to see that the defendant has made out such a defense.

The commissioner of highways stated upon his examination that, prior to the accident, he received $200 from the supervisors, $100 in March, and $100 in April, which he expended in repairing other bridges; that he had a right to do, and the manner in which he exercised his discretion in that respect cannot be questioned; but it does not appear that he had no power to obtain any more money, or that he even made the attempt. He says he had an impression that there was no more money, but he made no effort to find out, yet, on the twenty-second of August, after the accident, he received $100 more from the supervisors; and the jury might well infer if he could get it so soon after the accident that he could have gotten it before and made the bridge safe.

Other evidence was given by the plaintiff as to the possession of money by prior commissioners, that it is unnecessary to discuss ; I can see no sufficient reason for a reversal of the judgment.

Let the judgment be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Putnam, J.:

text:
    In the Matter of the Petition of a Majority of the Trustees of SCHUYLER’S STEAM TOW-BOAT COMPANY, a Corporation, for its Dissolution.

      Injunction by a State court against persons libeling boats in a Federal court — when a receiver takes title — constructive possession — contempt.

    Frank D. Sturges was appointed, on July 31,1891, a temporary receiver of a steam, tow-boat corporation by an order wliicli was filed and entered tlie next day. On August 4, 1891, lie filed liis bond as receiver. After the filing of the order, but before the bond was filed, Michael Moran proceeded in admiralty and filed libels in the United States District Court against the boats of the corporation, against which other libels were subsequently filed.
    At Special Term the Supreme Court of the State of New York restrained the libellants from proceeding further.

      Held, that the court had such power under section 2433 of the Code of Civil Procedure.
    That when the receiver filed his bond his title related back to the time of his original appointment.
    That at the time the libels were filed the property was in the custody of this court, whose duty it was, in equity, to protect the property from seizure by other parties, whether the proceedings were instituted by such parties in a State or in a Federal court.
    That the injunction was proper, since it was not directed to a Federal court, but to parties who were merely creditors of the corporation.
    That the court which had obtained jurisdiction first could and would retain it to the end.
    That the fact that the receiver had not taken actual possession of the boats when the libels were filed was not material, since the property was then, at least, in the constructive possession of the court.

      Semble, that if the libellants, when they made their seizure, did not know that a receiver had been appointed, they were not guilty of contempt in taking possession of the property.
    Appeal by Michael Moran, Peter Cahill, Cynthia Cahill and Jarvis Masters from an order of the Supreme Court, entered in the office of the clerk of Albany county on the 8th day of February, 1892, enjoining the appellants from taking any further proceedings in actions in the United States District Court for the Eastern District of New York, in which they had filed libels against certain steamboats of the Schuyler Steam Tow-Boat Company, and also enjoining them from taking any proceedings looking to the condemnation or sale of the steamboats.
    Frank D. Sturges was appointed temporary receiver of the Schuyler Steam Tow-Boat Company, on July 31, 1891, by an order of the Supreme Court of the State of New York, filed and entered August 1, 1891. He filed his bond August 4, 1891. Between the time of filing the order and of filing the bond, and on August 1,1891, the appellant Moran libeled some of the boats by proceedings taken in the United States District Court, and the marshal took possession thereof. The libels of the Cahills and of Masters were filed on August third. On August 4th and 5th, 1891, and on subsequent days, many other libels were filed.
    The injunction order was directed against all these persons who had filed libels.

      Joseph F. Mosher, for Michael Moran and others, appellants.

      James W. Eaton, for Frank D. Sturges, petitioner, respondent.
   The following opinion was delivered at the Special Term:

Putnam, J.:

It is settled by the Court of Appeals in a similar case (Matter of the Christian Jensen Company, 40 N. Y. St. Rep., 621) that the filing of the original petition, and entry of the order thereon, appointing Frank D. Sturges receiver of the -Schuyler Steam Towing Company, at once vested the title of the property of said corporation in said receiver. He could not act until the giving of his bond, but on filing such bond his title related back to the date of his appointment. The court held in the case cited that after the filing of the petition and entry of the order, the title of the property being in the receiver, it was in the custody of the law, a¡nd the court had the power to prevent any interference with it in any action, and its dissipation or removal by writ of replevin or attachment. (See, also, Gluck and Becker on Receivers, § 45, note; Matter of John Berry, 26 Barb., 55; Smith v. The N. Y. Consolidated Stage Co., 18 Abb. Prac. Rep., 420; Atlas Bank v. Nahant Bank, 23 Pick., 480; Matter of Mallory, 18 N. Y. St. Rep., 499.)

In the Jensen case (supra), the court sustained an order restraining the defendant from proceeding in replevin or attachment levied upon the property after the filing of the petition and entry of the order appointing a receiver, but before the filing of his bond.

There is no dispute about the facts of this case. It is conceded that the petition was filed, and that an order appointing a receiver was granted before any of the libels were filed; and hence, when said libels were, in fact, filed, the title of the property in question was in the receiver as an officer of the court. The property was in the constructive possession of the court. Hence, if the property in question had been seized under process issued from a State court by the defendant, no question would arise as to the power of this court to restrain the defendants from further proceeding.

Can this court also restrain defendants from proceeding in the Federal court ?

I . shall be unable to discuss the very many authorities to which I have been cited, but ! have examined and considered most of them. I have finally reached the conclusion that this court having, through its receiver, taken possession of the property in question, before the libels of the defendant were filed in the United States Court, can protect the property so in its possession as against process issued from the Federal court as well as from a State court. I think this power is conferred upon this court by section 2423 of the Civil Code. (Matter of the Christian Jensen Co., supra.) That section confers upon the Supreme Court in this proceeding the same power that exists in a court of equity to restrain parties from proceeding in other courts, State or national.

It is true that the Supreme Court of the State probably cannot stay proceedings in the Federal courts, but it may stay parties in any action in the Federal courts from proceeding, at least, before judgment therein. (See Dinsmore v. Neresheimer, 32 Hun, 206; Dehon v. Foster, 4 Allen, 545; Atty.-Gen. v. Insurance Co., 77 N. Y., 272-277; Vail v. Knapp, 49 Barb., 308, 309; Clafflin & Co. v. Hamlin, 62 How., 284; note to § 111, High on Injunctions, p. 92; Barry v. Brune, 71 N. Y., 261; People v. Erie R. R. Co., 36 How., 132.)

The above cases establish the doctrine laid down in Dehon v. Foster (supra), in which case the court remarked: “ The authority of this court as a Court of Chancery, upon a proper ease being made, to restrain persons within its jurisdiction from prosecuting suits either in the courts of this State, or of other States, or foreign countries, is clear and indisputable. In the exercise of this power, courts of equity proceed, not upon any claim of right to interfere with or control the course of proceedings in other tribunals, or to prevent them from adjudicating on the rights of parties when drawn in controversy and duly presented for their determination. But the jurisdiction is founded on the clear authority vested' in courts of equity over persons within the limits of their jurisdiction, and amenable to process, to restrain them from doing acts which will work wrong and injury to others, and are, therefore, contrary to equity and good conscience. As the decree of the court in such cases is pointed solely at the party, and does not extend to thé tribunal where the suit or proceeding is pending, it is wholly immaterial that the party is prosecuting his action in the courts of a foreign State or country.”

The granting of an injunction, as asked for by the moving party, does not at all conflict with the doctrine as laid down in such cases as that of Riggs v. Johnson County (6 Wall., 166) and kindred cases, because,

First. The injunction asked for herein is not to be directed to-the Federal court, but to a party to an action therein to prevent him, as a creditor of the Schuyler Steam Tow-Boat Company, from interfering with the property in the constructive possession of the State court through its receiver, and which that court so obtained possession of before the defendants’ libels were filed; and,

Second. Because the State court had obtained jurisdiction; obtained title to the property before defendants’ libels were filed. The doctrine is well established in both State and Federal courts, as a general rule, that the court which first obtained jurisdiction will retain it to the end. (See Riggs v. Johnson County, 6 Wall., 196; Rio Grande R. R. Co. v. Gomila, 132 U. S., 485; Wallace v. McConnell, 13 Peters, 136-151; Taylor v. Taintor, 16 Wall., 370; Taylor v. Carryl, 20 How. [U. S.], 583; Hagan, v. Lewis, 10 Peters, 400; Beaston v. Bank, 12 id., 102; Wiswall v. Sampson, 14 How. [U. S.], 52; Williams v. Benedict, 8 id., 109.)

In my judgment, it makes no difference, as to the right' of the receiver to hold the property in question, that he had not taken actual possession at the time the libels were filed. Under the doctrine settled in the Christian Jensen case (supra), when the libels were filed and the property attached thereunder the receiver had the actual title. The property was then in the constructive possession of the court. This case differs from those cited by the defendants where conflicts have arisen between marshals and sheriffs under executions or attachments, in which those authorities hold that the officer who first takes actual possession will hold the property. In those cases the title of the property was in the debtor. The sheriff or marshal having the execution or attachment did not acquire title to the property until the seizure by him, and hence the one first seizing held it.

But in this ease, by the order of the Supreme Court, the title at once vested in the receiver before its seizure by the marshal. When the marshal undertook to take the property it was in the legal custody of the court. Without attempting to discuss the various cases cited by the defendants, I think them different from this in the regard above mentioned. In any event, I feel bound by the holding of the Court of Appeals in the Jensen case. There a petition was filed and an order appointing a receiver entered on the tenth, in the morning, and in the afternoon of the same day the property was replevined and attached, and afterwards the receiver filed his bonds. Of course, the receiver had not taken actual possession when the attachment was levied. Yet the Court of Appeals sustained an order enjoining the defendant from proceeding under his attachment and replevin, holding that the order, when entered, “ was effectual to appoint the receiver, and the moment he was appointed he became an officer of the cou/rt, and from that time the property of the corporation was in custodia legis, and the court had the power to preserve and protect it. * * * It, therefore, follows that when this property was attached and replevined on the 11th day of March the title was in the recei/ver and the property was in the -custody of the law, and the court had power to prevent any interference with it in cmy action, and its dissipation and removal by writ of replevin or attachment.” (See, also, Beach on Receivers, §§ 200, 201; Wilson v. Allen, 6 Barb., 542, 545, 546; Storm v. Waddell, 2 Sand. Ch., 494.)

The latter holds that the order appointing the receiver in itself is equivalent to an actual levy on the property.

I think it is the general doctrine that an order being made to appoint a receiver on his filing the bond required by the order, his title relates back to the day of the entry thereof. In Maryland a different doctrine prevails, and hence the case of Farmers' Bank v. Beaston (7 Gill & Johns., 428), cited by the defendants, does not apply.

The doctrine so laid down in the Jensen case, and other eases above cited, that the title vested in the receiver on entering the order, and from that time the property was in the custody of the court, and it had power to prevent any interference with such property in any action, means an action in the Federal as well as one in a State court. The title being vested in the receiver on the entry of the order, and hence in the hands of the court, may not be interfered with afterwards by any creditor in any court, State or national.

I am unable to perceive that the case of Varnum v. Hart (119 N. Y., 101) has any bearing upon this. There the sheriff had seized the property and had it in his possession before the appointment of a receiver. In Walling v. Miller (108 N. Y., 173), although the levy was before the appointment of a receiver, before the sale the receiver had obtained actual possession and the court held that such sale, the property being in the actual possession of the receiver, was; irregular and void. The same doctrine was held in' Wiswall v. Sampson (14 How. [U. S.], 52). These cases do not bear on a case like this, where the appointment of a receiver and his actual title was prior to any levy.

The receiver not having taken actual possession of the property at the time it was seized by defendants, it may be that they are not. guilty of any contempt. Defendants were not bound to know that the order in this case appointing a receiver had been granted. It is not conceded that at the time the libels were filed and the property seized the defendants had knowledge that such property was in the custody of the Supreme Court of the State. In the absence of such knowledge, it is not probable that there could be any contempt. I do not think that the case of the Albany City Bank v. Schermerhorn (9 Paige, 372) aids the defendants. There the question was as to the contempt of the party proceeded against, and the case does not seem to bear on the questions involved here. In that case the court held that where a receiver appointed in a creditor’s suit is entitled to the personal property of the defendant and the rents and profits of his real estate, if the defendant neglects to make an assignment, so as to give the receiver a legal title to the property, the court, upon a bill filed by the receiver, will protect his rights against sheriffs and others who have seized upon the property to prevent his obtaining possession thereof. In other words, secure to the receiver the possession of the property. Such is the object of the motion.

Without further comment upon the various cases cited by the counsel, I think the holding of the courts in the cases cited determines, that, on granting the order appointing the receiver in this proceeding, and the entry of said order, the receiver at once became vested with the title of the property of the corporation, and such property from that time being deemed in the custody of this court, such court may and should protect it, and may and should enjoin defendants-from proceeding further in the actions commenced by them as against the said property. And this notwithstanding the defendants are proceeding by filing libels in the Federal court in admiralty. (See Taylor v. Carryl, 20 How. [U. S.], 583, 584, 599.)

The motion heretofore made by the receiver in the Federal court, and the order granted thereon, is not an estoppel, especially as the court did not assume to pass upon the merits of the application.

The chattel mortgage upon the property, inasmuch as the mortgagee does not elect to take possession by foreclosure, leaves an equity of redemption in the corporation which passed to the receiver, and which he can protect. (Randall v. Dunbar, 14 W. Dig., 332; West v. Crary, 47 N. Y., 423; Porter v. Parmley, 52 id., 188.)

On the whole, I think the motion should'be granted. As the matter is of much importance the receiver should submit the proposed order to counsel for defendants before the same is sent me for my signature.

Mayham, P. J., and Herrick, J., concurred; Putnam, J., not acting.

Affirmed on opinion of Putnam, J., trial judge in court below.


author: Russell, J.:

text:
    GEORGE ERWIN, Appellant, v. MARGARET DEZELL, Respondent.

      Slander — words not actionable per se — special damages — whm a charge is too vague.

    The complaint in an action for slander alleged that the defendant had stated that the plaintiff had been arrested for bastardy and had paid $100 to settle the matter; that in consequence of the defamatory words the plaintiff had been, subjected to litigations which would not otherwise have been begun against him, and had been unable to sell his property.
    A demurrer was interposed to the complaint.
    Held, that the words were not actionable per se.

    That the allegations of the complaint did not show special damage, not being made in regard to the plaintiff’s vocation, and being merely equivalent to saying that his neighbors would no longer have anything to do with him.
    Appeal by the plaintiff George Erwin from an order of the Supreme Court, entered in the office of the clerk of St. Lawrence county on the 13th day of January, 1892, granting the defendant judgment upon a demurrer to the complaint, and from an interlocutory judgment of the same court, entered in said clerk’s office on the 3d day of February, 1892, sustaining the demurrer and dismissing the complaint with the usual leave to answer over.

      Forrest K. Moreland, for the appellant.

      Maurice G. Spratt, for the respondent.
   The following is the opinion of the court at Special Term :

Russell, J.:

This is a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The complaint attempts to charge a case of slander. The words alleged to have been spoken accuse the plaintiff of having been arrested for bastardy, and of having paid $100 to settle it. Inferentially it may be supposed, although the complaint does not charge it, that the offense committed by the plaintiff was of being the father of a bastard child.

The words are not actionable per se. It is no crime under the laws of the State of New York. It is within the reach of those laws for the protection of the public, so that the child will not become a burden upon the public, or have tó be supported at the public expense. For that purpose the process of arrest is allowed against the reputed father and imprisonment may come, but only in the event that he fails to comply with the order of the court in regard to protecting the public.

It is, however, claimed that the complaint avers special damages. Those averments state that in consequence of these defamatory-words the plaintiff has been subjected to litigations which would not have been begun against him ; has.been unable to sell property, but in no case are the names or specifications given from which such a presumption may arise.

The words charged are not spoken of the plaintiff in regard to his vocation in life, and the complaint does not state what that vocation is. It may be fairly inferred that such a charge would, if credited at all, result in injury to the reputation of any person; but this does not give a right of action. Such words fall in the class of cases which ai’e not actionable, and as to the utterance of which a man must rely upon the good name and repute which he has earned by his life amongst his neighbors, and which serves him in good stead on such occasions. The law cannot take cognizance of every malicious scandal which is uttered by one against his neighbor.

The only inference which can be drawn from the complaint to justify this assertion in regard to special damages is that the effect of these words, for some reason not disclosed, was magnified far beyond that which it would be in ordinary cases, to the all-around detriment of the plaintiff. It is equivalent to saying that his neighbors and those who might have dealt with him would not have anything to do with him because of the general blow to his reputation by the utterance of these words, not that they had any special, direct or unusual effect.

I do not overlook the general rule that the details of times, places and names are obtained in or from a pleading by other remedies than by demurrer. I am considering whether the general averments reach a sufficient statement of cause and effect to justify the court in saying that special damage fairly arose from the defamatory words.

Upon this inquiry I do not think the averments of the complaint sufficient, and, therefore, the demurrer is sustained, with leave to the plaintiff to amend upon payment of the costs of the action.

Present Mayham, P. J., Putnam and Herrick, JJ.

Judgment affirmed on opinion of trial judge in court below.


author: Tapp an, J.:

text:
    FRANCES D. HALL and Another, as Trustees under the Will of HENRY L. WEBB, Deceased, Respondents, v. FANNY BRENNAN and Another, as Executors of GEORGE B. BIXBY, Deceased, Appellants, Impleaded with Another, Defendant.

      Statute of limitations — death of the maker of a note — effect of delay in issuing letters testamentary — when the time to sue is extended — failure of a creditor to apply for a temporary administrator — costs against executors.

    On September 17, 1880, George B. Bixby made and delivered his promissory note, payable twelve months after date, to William Slocum, who indorsed the note and delivered it to Frances D. Hall and another, as trustees. Bixby died on August 12, 1887, leaving a will which, after a contest, was admitted to probate on March 23, 1889, upon which latter day letters testamentary were issued to the executors, Fanny Brennan and John H. Bixby.
    On March 21, 1890, the summons, in an action brought upon the note by the indorsees thereof, was delivered for service to the sheriffs of the counties where the defendants, the executors of George B. Bixby, respectively resided, and service was made upon them on April 15, 1890.

      Held, that the action was not barred by the six-year statute of limitations.
    That the last day upon which the action could have been brought, if George H. Bixby had not died, was September 21; 1887.
    That the period of eighteen months after the death of George H. Bixby, which, by section 403 of the Code of Civil Procedure, was no part of the time limited for the commencement of the action, expired March 21, 1889.
    That from the time of his death, August 12, 1887, to the issue of letters testamentary, March 23, 1889, there was no person in being against whom the plaintiffs could have brought their action.
    That this amounted to a statutory prohibition as to the plaintiffs’ right to sue, and said last-mentioned period was no part of the time limited for the commencement of the action. (Code of Civil Pro., § 406.)
    That the last clause of section 403 of the Code of Civil Procedure, to the effect that if letters testamentary are not issued at least six months before the expiration of the time to bring an action, as such time is extended by the first clause of the section, then the term of one year after such letters are issued is not a part of the time limited for the commencement of the action, applied to this case.
    That the action would be deemed to have been begun on March 21,1890, and was, therefore, begun two days before the expiration of one year from March 23,1889, when the letters were issued.
    That, although the plaintiffs might, under section 2668 of the Code of Civil Procedure, have applied for the appointment of a temporary administrator, yet as the granting of such an application was discretionary with the surrogate the law would not require the plaintiffs to make such an application under penalty of losing their debt.
    That as the defendants were executors, the question of an allowance of costs against them could only he considered upon a special motion.
    Appeal by the defendants, Fanny Brennan and John H. Bixby, as executors of George B. Bixby, deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Saratoga on the 18th day of November, 1891, upon a recovery by the plaintiffs of $3,000, and interest and costs, after a trial at the Saratoga Circuit before the court.

      J. W. Houghton, for the appellants. .

      Hale <& Bulheley, for the respondents.
   The following is the opinion of the trial court:

Tapp an, J.:

The plaintiffs were, in June, 1880, appointed by this court trustees under the will of Henry L. Webb, deceased, in place of Richard Yan Rensselaer, the last surviving trustee under said will.

George B. Bixby, the defendant’s testator, on or about the 17th day of September, 1880, duly executed and delivered to the defendant, William Slocum, his promissory note in writing, whereby, twelve months after date, he promised to pay William Slocum, or order, $3,000 for value received, at the office of Hand & Hale, Albany, N. Y., with interest payable semi-annually from date. On the same day said note was by the defendant, William Slocum, duly indorsed and transferred to the plaintiffs, and by such indorsement made payable to the order of said plaintiffs, waiving demand and notice of protest.

The principal of such note, with interest from September 17,1890, remains unpaid, and plaintiffs are concededly entitled to recover the same against defendants, the personal representatives of George B. Bixby, unless such recovery is barred by the statute of limitations.

George B. Bixby died on the 12th day of August, 1887, leaving - a last will and testament, whereby the defendants, Fannie Brennan and John II. Bixby, were duly appointed executrix and executor of said will.

Said will was presented for probate to the surrogate of the county of Saratoga, of which county the said George B. Bixby was a resident at the time of Ills death, on the 27th day of September, 1887.

The probate of the said will was contested by the heirs-at-law of the said George B. Bixby, deceased, but the same was admitted to probate and letters testamentary thereon issued to the defendants on the 23d day of March, 1889; and no letters testamentary or of administration were issued until that day.

The summons in this action was delivered to and received by the sheriff of Saratoga county, where the defendant Fannie Brennan then -resided and still resides, and to the sheriff of Wayne county, where the defendant John EL Bixby then resided and still resides, on the 21st day of March, 1890, with the intent that it should be served upon said defendants, respectively, and such summons was actually and personally served on the defendants on or about the 15th day of April, 1890.

Upon these facts, it appears that the right of action upon the note accrued to the plaintiffs at the end of twelve months and three days from the date of the note, viz , on September 21, 1881; and had George B. Bixby lived, the last day on which an action .could have been sustained against him would have been September 21, 1887. (Code of Civ. Pro., §§ 380,382,403; Smith v. Aylesworth, 40 Barb., 104; Outhout v. Ballard, 41 id., 33.)

The period of eighteen months after the death of George B. Bixby was no part of the time limited for the commencement of the action. (Code of Civil Procedure, § 403.) The eighteen months are calendar months, next succeeding the end of the six years’ limitation. The period of eighteen months expired March 21,1889. Letters testamentary were issued to the defendants March 23, 1889, not six months before the expiration of the time to bring the action, but two days after that time.

The provisions of the last part of that section, that if letters testamentary or of administration have not issued at least six months before the expiration of the time to bring the action, as extended by that section, the term of one year after such letters are issued is not a part of the time limited for the commencement of said action, would seem to apply; but this court, at General Term, in Chapman v. Fonda (24 Hun, 130), has held that where the full period of limitation had expired before such letters issued, such provision had no application. For the purposes of the statute of limitations, the action will be deemed to have been commenced on March 21, 1890, when the summons was delivered to the sheriffs, with intent to have the same served, such service having been actually made within sixty days thereafter. (Code of Civil Procedure, § 399.)

Prom the time of the death of George B. Bixby, August 12,1887, until letters testamentary were issued upon his will March 23,1889, there was no person in being against whom plaintiffs could have brought suit to enforce their claim upon their note against his estate; this was, in effect, a statutory prohibition, and such time was no part of the time limited for the commencement of an action. (Code of Civil Pro., § 406; Mead v. Jenkins et al., 95 N. Y., 31; Brehm v. Mayor, etc., 104 id., 186; Church v. Olendorf, 49 Hun, 439, 444.)

It is no answer to this view to say that plaintiffs might have applied for a temporary administrator under section 2668, Code of Civil Procedure. They could not procure such appointment as a matter of right. It is expressly made dependent on the discretion of the surrogate. The law did not require them to make the application under penalty of losing their debt.

The payment by Slocum with Bixby’s money is not proven to have been with the authority of the latter. Plaintiffs do not contend that this authority is shown except by averment in the answer, which they insist should be construed as an admission of such authority. Such averment is upon information and belief, and for that reason alone should not be construed to be an admission of the fact thus averred against the defendants’ personal representatives, who have no actual knowledge. (Mayor v. Fay, 53 Hun, 553.)

Again, if the admission was absolute and unqualified in its form, the answer would have to be read together, at least so far as it tends to discharge the defendants from liability when detached parts would tend to fix liability upon them. (Goodyear v. De La Vergne, 10 Hun, 537; Gildersleeve v. Landon, 73 N. Y., 609.)

The allegation in the answer and the proof' given at the trial are not sufficient to show that Slocum made the payment of interest upon the note by the direction or authority of Bixby, or that Bixby ever approved of such payment Such payment did not operate to affect the running of the statute of limitations against Bixby or his personal representatives, the defendants.

Costs against the defendants can be allowed only on the special order of the court. The question of costs does not properly come up on the decision of the case. The right to costs depends upon the facts not within the issues made by the pleadings, which can be properly shown by affidavits on special motion. (3 Wait’s Pr., 535, and cases there cited; Baylies’ Trial Pr., 384, 385.)

The plaintiffs are entitled to judgment against the defendants, executors, etc., for $3,000, with interest from September 11, 1890, also against defendant William Slocum for the same amount. Judgment is ordered accordingly. •

Present — Mayham, P. J., Putnam and Herrick, JJ.

Affirmed on opinion of trial judge in court below, with costs.