author: Adams, J.:

text:
    Fredericka Beitz, Appellant, v. Adaline H. Fuller and H. Ferdinand H. Duckwitz, Respondents.

      Judgment — amendment of, to what extent proper.

    A court lias power to amend a judgment at any stage of the action in order to correct a mistake or to conform the judgment to the decision actually made, hut such power is limited-to corrections which do not involve matters of substance and should not be exercised to meet some subsequent legal or equitable exigency, nor should it be employed to limit the legal effect of the judgment.
    Appeal by the plaintiff,- Fredericka Beitz, from that portion of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 4th day of September, 1895, which amended the decision in this, action made by the justice before whom the same was tried; also,, from that part of said 'order which amends the judgment in said action by inserting therein the provision that the parties thereto were-left to their appropriate actions “ for damages, if any,” and from that part of said order which amends said judgment so that it does-not conform to the decision originally filed in the action.
    This action was brought to rescind a contract for the sale of land, upon the ground of fraud.
    The defendant Fuller, in her answer to the amended complaint,, set forth certain facts constituting her defense, and demanded a specific performance of the contract. Afterwards, and by leave of the court, she served an amended answer, which, instead of praying for specific performance, set forth other facts, and demanded judgment for damages for a breach of the contract.
    The issues thus joined came on for trial before the court, at a Special-Term thereof, and the trial justice, in his decision, found, as a conclusion of law, that the plaintiff had failed to maintain her action, and that the defendant Fuller was not entitled to recover any damages in this action, and remitted .the parties to their appronriate actions to enforce the contracts and agreements between them.
    The judgment subsequently entered failed to adjudge that the' defendant Fuller was not entitled to recover any damages in this action, and that no relief was granted to any of the parties, and the court thereupon, upon the plaintiff’s motion, amended the judgment so as to conform to the decision by adding this provision, and then, upon its own motion apparently, further amended both the decision and judgment in such maimer as that they now provide that the parties are remitted to their appropriate actions for damages, if any, or to enforce the contracts and agreements between them, instead of being left to their appropriate actions for enforcement of contracts merely. From so much of the order as contains this additional amendment, the plaintiff appeals to this court.

      George O. Miller, for the appellant.

      Moot, Orton & Baldwin, for the respondents.
   Adams, J.:

It is a well-settled rule of practice that courts have sufficient control over their own judgments to amend them at any stage of an action in order to correct a mistake or conform them to the decisions, actually made. (Code Civ. Proc. § 723; Produce Bank v. Morton, 67 N. Y. 199; The N. C. Bank of N. Y. v. The N. Y. G. Ex. Bank, 97 id. 645.) But such' power is limited to corrections which do not involve matters of- substance, and its exercise is not permitted to meet some legal or even equitable exigency to which the court’s attention may be called at a subsequent stage of the action,, nor where it will limit the legal effect of a judgment. (Stannard v. Hubbell, 123 N. Y. 520.)

The correctness of the plaintiff’s contention depends, therefore, upon which of these two classes of amendments the one she complains of belongs to.

This case affords a very apt illustration of an amendment which is clearly permissible.'

The trial court, in its second conclusion of law, determined that the defendant Adaline Fuller is not entitled to recover any damages, in this action,” and that no relief should be granted to -any of the parties thereto, but, by inadvertence, this conclusion was not. incorporated into the judgment, and all the parties concede that this, mistake is one which the court was called upon to correct upon motion.

This being so, in what sense is the additional amendment obnoxious to the rule which confines the power to amend within certain limitations? The objection apparently relied upon by the plaintiff is that the judgment prior to its amendment was an adjudication, in effect, that the defendant Fuller, having by her first answer elected to affirm her contract and pray for its enforcement, could not, thereafter, ask for its rescission and demand damages. It will be observed, however, that this question is not specifically determined by either the decision or the judgment, and whether either is to be regarded as equivalent to an adjudication is at most a matter of inference or construction to be hereafter decided. Without any design to forestall the disposition to be made of the question, should it ever arise, it may be suggested, in connection with its present consideration, that the learned trial justice found as a fact that the defendant. Fuller’s damages, if any were sustained, accrued subsequent to tbe commencement of the action, and as lie denied lier right to recover any damages in this action, it may be that, although sitting as a court of equity, he reached this conclusion because of the fact above stated The amendment which he subsequently allowed would seem to indicate that he did entertain that opinion, and, if so, then it was a proper one to make, for it simply conformed his conclusion of law to the finding of fact.

But, in any event, it is difficult to see how'the correction of either the decision or the judgment can be regarded as very material, for, if they even adjudicated the question of an election of-remedies, the change made does not limit or modify their effect in that particular, but leaves the case practically where it stood .before.

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

Lewis andBeadley, JJ., concurred; Waed, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    The Town of Wheatfield and The Town of Tonawanda, Respondents, v. The Tonawanda Street Railroad Company, Appellant.

      Street railway — consent to its construction over a bridge half of which is in one village and half in another in different towns — the highway com/nissioners of the two towns a/t'e the “ local authorities.”

    Where a street railroad seeks permission to cross a bridge, one-half of which lies in a village in one town and the other half in a village in an adjoining town, the bridge having been built by the two towns which are chargeable with its care and maintenance, the consent of the highway commissioners of the two towns , is a prerequisite under section 18 of article 3' of the New York Constitution to the construction and operation of the railroad.
    Appeal by -the defendant, The Tonawanda Street Railroad Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 22d day of August, 1895, continuing an injunction ■pendente lite.

      This action was brought to enjoin and restrain the defendant from constructing its tracks and operating its railroad upon a bridge over the Tonawanda creek. The south half of the bridge is in the county of Erie, in the town of Tonawanda, and in the village of Tonawanda, while the north half is in the county of Niagara, in the town of Wheatfield, and in the village of North Tonawanda.
    The villages of Tonawanda and North Tonawanda aró incorporated, under the general act of 1870 (Chap. 291), relating to villages in this State. The bridge referred to was constructed in 1875,. in pursuance of a special statute (Chap. 863 of the Laws of 1867),. the expense being borne by the plaintiff towns and the State.
    J3y the provisions of said statute, the burden of the maintenance and repair of said bridge was imposed upon said towns, and from the time of its construction to the present time said towns have had the joint control, and have maintained'and kept the same in repair..
    The defendant is a domestic corporation, constructing an electric street surface railroad in said villages and towns, and seeks to lay its tracks and operate its road over said bridge, claiming the right to do so under a consent obtained from the trustees of the villages. The defendant has never obtained the consent of the commissioners, of highways of said towns, or either of them.
    The question at issue is whether “ the local authorities,” whose-consent is made necessary by constitutional and statutory provisions, are the trustees of the said villages or the commissioners of highways, of the said towns.

      Boot, Orton, Baldwin db Baldwin, for the appellant.

      Warner & Lindsay, for the respondents.
   Adams, J.:

The court at Special Term was undoubtedly correct in its view of the question which this case presents, and the opinion of the learned justice who presided leaves but little to be said. , It may be suggested, however, by way of complement thereto, that when proper emphasis is laid upon the language of the Constitution, there remains, scarcely any opportunity for the contention made by the appellant’s, counsel.

Section 18 of article 3, which defines the powers of the Legislature, provides that no law shall be passed authorizing the construction or operation of a street railroad, except upon the condition that the consent of the local authorities having the control of that portion of a street or a highway upon which it is proposed to construct or operate such railroad, be first obtained.” Now, this language clearly indicates that the framers of the Constitution recognized a condition of affairs, the existence of which is we]l known to every one at all familiar with the highway law of this State, viz., that a portion ” of a public highway is frequently territorially within one political subdivision of the State, while the burden of its control and' maintenance is imposed upon another. And such is •confessedly the situation which confronts the parties to this action. ■One-half of the bridge in question is within the boundaries of the village of Tonawanda, while the other half is within the confines of the village of North Tonawanda. But the structure itself was built by the towns of Tonawanda and "Wheatfield, with some assistance from the State, and the special act under which it was built provides that the .towns shall be responsible for its repair and maintenance. (Laws of 1867, chap. 863, § 9.)

Subsequently it was enacted by the Legislature that nothing in the general act “ giving the board of trustees of a village power to make and repair bridges within the village bounds, or making them ■commissioners of highways, * * * shall be construed as divesting the commissioners of highways for any town in which a bridge may be located, of power or control over the same.” (Laws of 1870, chap. 291, as amended by Laws of 1887, chap. 513, § 3.) It ■will be seen, therefore, that the control of this bridge is expressly conferred upon the plaintiffs, and, as it constitutes a portion of a highway over which the defendant seeks to construct and operate its road, it necessarily follows that the “ local authorities ” whose consent is to be obtained as a condition of such construction and operation must be the town highway commissioners. (Matter of Rochester Electric R. Co., 123 N. Y. 351, 356.)

The application of a simple test will determine the correctness of this conclusion. Suppose the defendant were to place some obstruction upon this bridge ; could either or both of the villages, whose corporate limits extend to its center, maintain an action therefor ? Most assuredly not, because the right to maintain and control the bridge resides elsewhere, and a municipality which cannot sue for or restrain the obstruction of any particular portion of a highway certainly cannot authorize the same to be used for a street railroad.

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

Lewis, Beadley and "WIaed, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    Ralph T. Norton, Appellant, v. Albert T. Fancher, Respondent.

      Entire contract— the contractor must bear a loss occasioned by the elements — costs in an action at law a matter of right — their refusal is renewable only by appeal, or by a motion for a new trial.

    Where an entire contract, to do certain filling and grading and to lay a certain quantity of tile, is entered into between two parties and a part of the filling is swept away by an extraordinary freshet, without the fault of either party, the contractor must bear the loss.
    Where an action is brought at law and a money judgment is demanded, and the plaintiff recovers more than fifty dollars, he is entitled to costs as a matter of right, although the parties to the action may have waived their right to a jury trial and. agreed that the court should try the case; such action by the parties does not bring the case within the rule making the awarding or witholding of costs in an equitable action discretionary with the court.
    The refusal of the court to allow costs in such a ease is a judicial error involving the merits, and is reviewable only by appeal or by a motion for a new trial.
    Appeal by the plaintiff, Ralph T. Norton, from a judgment of the Supreme Court in favor of the plaintiff, as modified or amended mimo pro tunc, entered in the office of the clerk of the county of Erie on the 19th day of April, 1895, upon the decision of the court rendered after a trial at the Erie Special Term.
    The modification or amendment of the judgment consisted in striking out the part thereof which read as follows, viz.,“ with $82.72 costs of the action, making together $349.Y6,” and inserting in the place and stead thereof the words “without costs to either party.”
    The action -was brought to recover the balance alleged to be due upon a-contract entered into between the parties, by the terms of which the plaintiff, for a consideration duly expressed, undertook to lay a quantity of tile and to do certain filling and grading upon the defendant’s premises.
    There is no question but that the work was satisfactorily performed, and the contract in all respects fulfilled upon the part of the plaintiff, but it appears that while engaged in its performance, 897 cubic yards of earth filling was washed out of the ravine in which it had been placed, by reason of the occurrence of an extraordinary freshet, and without any fault upon the part of the plaintiff.
    The earth thus washed out was replaced by the plaintiff, and he claimed the right to recover therefor at the same rate fixed by the • contract for doing the work originally. By the stipulation of the attorneys for the respective parties a jury trial was waived and the action was tried by and before the court, which awarded the plaintiff the balance due upon the .contract, not including the claim for replacing the earth washed out • by the freshet. No costs were allowed to either party.

      Stone & Norton, for the appellant.

      Walter S. Jenlcins, for the respondent.
   Adams, J.:

It is conceded by both parties that the contract, which constitutes the subject-matter in this action, was entire in its character. By its terms the plaintiff was to perform certain work and accomplish certain results at a stipulated price. While the work was progressing an unavoidable accident occurred, and a considerable portion of the earth filling was washed away without the fault of any one, in consequence of which it had to be replaced by the plaintiff. This undoubtedly proved a serious matter for the plaintiff, and put him to trouble and expense not contemplated by either himself or the defendant at the time of entering into the contract, but, for this very reason, which probably accounts for the contract being silent upon the subject, the law requires that he shall be the sole sufferer. (Harmony v. Bingham, 12 N. Y. 99; Tompkins v. Dudley, 25 id. 272; Williams v. Vanderbilt, 28 id. 217; Dexter v. Norton, 47 id. 62; Booth v. The S. D. R. M. Co., 60 id. 487.)

The troublesome question presented by this appeal arises upon the omission of the trial court to award costs to the prevailing party.

The action was one at law; a money judgment was demanded, and he amount recovered by the plaintiff largely exceeded the sum of fifty dollars, and yet he was denied costs. This determination is undoubtedly accounted for by the fact that the parties waived their right to a jury trial and agreed to submit their differences to the court, which tribunal thereupon treated the case as of an equitable nature, and one in which the rule as to the awarding or withholding of costs might be applied upon equitable principles. Had the . learned justice been at liberty to adopt such a rule, there is much in the case which would seem to justify the conclusion reached, but I think the. action is one in which the court was deprived of the right to exercise its discretionary power in respect of the matter of costs. As has just been suggested, the plaintiff’s complaint demands, judgment for a sum of money, and, therefore, whether the action was one cognizable by a court of law or equity, in the event of a recovery of an amount exceeding fifty dollars, he was entitled, as a matter of right, to his costs. (Code Civ. Proc. § 3228, subd. 4; Murtha v. Curley, 92 N. Y. 359.)

But; it is contended, the error is one which should be corrected by motion, and not made the subject of appeal. This would be so, undoubtedly, if it were the result of mistake or inadvertence, and not an error of judgment. (Genet v. Pres., etc., D. & H. C. Co., 113 N. Y. 472-475; Stannard v. Hubbell, 123 id. 520.) The learned trial justice has assumed, however, to adjudicate the matter of costs, and if the action were really equitable in its nature, it is very clear that his judgment could be reviewed only by appeal. (Stevens v. Veriane, 2 Bans. 90.) In the case cited the court (see opinion, MolliN, J.) appeared to think a different rule would obtain in an action at law, but I am unable to conceive of any reason why this should be so, for in assuming that he had the right to refuse costs the learned justice com'mitted a judicial error, just as much as he would have done had he reached an improper conclusion upon the merits, and it is well settled that any change or modification of a judgment, which involves the merits of a controversy, can only be accomplished by an appeal. or a motion for a new trial. (McLean v. Stewart, 14 Hun, 472; Rockwell v. Carpenter, 25 id. 529.) ”

The judgment appealed from should, therefore, be amended so as to award costs of the action to the plaintiff, and, as thus amended, should be affirmed, but without costs of this appeal.

Lewis and Bradley, JJ., concurred; "Ward, J., not sitting.

Judgment so amended as to award costs of the action to the plaintiff, and, as so amended, affirmed, without costs of this appeal to either party.


text:
    John H. Wilson, Plaintiff, v. Charles Whitmore and Others, Defendants.

      .Municipal corporation — pi’ovisions in a city cha/rter protecting parties furnishing labor or materials to contractors — liability of sureties on a contractor's bond, not limited by the recitals — indulgence does not discharge sureties.

    'Tlie Legislature lias power to incorporate into tlie charter of a city provisions which will protect the municipality in making contracts, and it may go farther and provide a means by which all other persons connected with the contract, as for example employees and materialmen, may be protected in their right to payment for work done and materials furnished by them in reference to a contract made for a city improvement.
    In an action brought against the sureties upon a bond given by Whitmore & Sheldon (contractors) to the city of Lockport, pursuant to a requirement of its charter, it appeared that Whitmore & Sheldon had been awarded a contract to grade, pave and curb a portion of a street; that they executed the bond in question as principal, and that the defendants (the only persons defending the action) executed the same as sureties; that the recital of the bond stated that Whitmore & Sheldon had entered into a contract with the city by which they had, among other things, covenanted and agreed to grade, curb and pave the street.
    The condition of the bond required the faithful performance of the contract by Whitmore & Sheldon, and also that they should “pay or cause to be paid the wages and compensation of all laborers who shall be employed in work on or about said improvement, whether employed by the parties of the second part or any sub-contractor or employee, and for all materials furnished in or about said improvement, whether to the parties of the second part or to any sub-contractor.”
    The plaintiff furnished materials, but was paid only in part. Whitmore & . Sheldon completed the work, which was accepted, and ninety-nine per cent of the contract price was paid to them before the commencement of this action, which-was brought against the principals and sureties upon such bond for the balance due the plaintiff.

      Held, that the Legislature had power to require such a bond to be given;
    That it was a valid measure for the protection of a materialman who might maintain an action in his own name for the enforcement of his rights;
    That, although the recital of the bond did not contain a specific reference to the covenant to pay for materials, the general words subsequently used in the bond relative to that matter were not limited by the recital; that, under the circumstances, it was the duty of the sureties to inform themselves as to the measure of their liability by an examination of the bond as an entirety;
    That the fact that, when the contractors purchased the sand in question, the plaintiff gave a credit of thirty days, did not discharge the sureties under the rule that a surety may insist upon a strict construction of the contract fixing his liability; that such a transaction was more a mere indulgence than an extension of a credit; was not evidenced by any new contract, and was insufficient to release the sureties from their liability upon the bond.
    MotioN by the plaintiff, John II. Wilson, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance npon a dismissal of the complaint directed by the court after a trial before the court and a jury at the Niagara Circuit on the 11th day of February, 18.95.
    In 1893 the common council of the city of Lockport adopted an ordinance which provided for the grading, paving and curbing of a portion of Niagara street in that city, and advertised.for proposals for the work. Thereafter the contract for such work was awarded to the defendants Whitmore & Sheldon, and the same was reduced to proper form and duly executed by such firm and the city. Cotemporaneous with the execution of the contract, and in pursuance of the requirements of section 207 of the city charter (Chap. 120 of the Laws of 1886), the defendants Whitmore & ■Sheldon, as principals, and the defendants Webber and Trevor, as sureties, executed and delivered their bond to the city, which bond was subsequently approved by the mayor and filed in the city clerk’s office, as required by law. This bond was conditioned, among other tilings, for the faithful performance of the contract by such principals, “ in accordance with the ordinance, plans and specifications for said improvement,” and also that the defendants Whitmore & Sheldon should ■“ pay or cause to be paid the wages and compensation of all laborers who shall be employed in work on or about said improvement, whether employed by the parties of the second part or any sub-contractor or employee, and for all materials furnished in or about sand improvement, whether to the panties of the second part or to any sub-contractor.n

    After the making of the contract and the execution and delivery of the bond, the plaintiff sold and delivered to the defendants Whit-more & Sheldon 1,200 yards of sand at the agreed price of $610, which sand was actually used in the construction of the work mentioned in the contract, and was so sold upon the agreement of the purchasers to pay for the same within thirty days after its delivery, but only $110 of the purchase price was paid by them. The defendants Whitmore & Sheldon completed the work undertaken by them; the same was accepted by the city, and ninety-nine per cent of the contract price was paid prior to the commencement of this action.
    The plaintiff notified the defendants Webber and Trevor of the failure of Whitmore & Sheldon to pay the amount due him for the sand, and, within one year after the same was so sold and delivered, demanded of them that they pay the balance of $500, which they refused to do, whereupon this action was brought.
    Upon the trial at the Niagara Circuit, the plaintiff established the facts above stated, and rested his case, whereupon the defendants moved for a dismissal of the complaint, which motion was duly granted by the court.

      Tice de Vica/ry, for the plaintiff.

      W. II. & F. A. Ransom, for the defendant Trevou.

      Edward O. Hart, for the defendant Webber.
   Adams, J.:

The learned trial justice appears to have dismissed the plaintiff’s complaint solely upon the ground that the bond, upon which this action is brought, furnished the plaintiff with no cause of action against the sureties Webber and Trevor, who are the only parties defending. It is true that this instrument runs to the city, and that the plaintiff is neither a party to it nor mentioned in it, but the action was brought and is sought to be maintáined upon the theory that the bond, nevertheless, does indemnify him for the purchase-price of sand sold and delivered to Whitmore & Sheldon, the principal obligors. This contention must, of course, rest upon some legislative enactment, for it seems to be now settled that at common law an obligation, to which a person is neither a party nor a privy, generally furnishes no protection or security to that person. (Gifford v. Corrigan, 117 N. Y. 257; Townsend v. Rackham, 143 id. 516.) From the evidence in this case, it appears that the charter of the city of Lockport does contain a provision which-requires that, before letting any contract for a public improvement, the contractor shall furnish a bond, conditioned for the payment of all claims for “ materials furnished in or about such improvement.’’ (Laws of 1886, chap. 120, § 207.) The parties to the bond, it will be observed, undertake to indemnify the city for a faithful fulfillment of the contract in accordance with its terms and provisions, but they go farther than this, and agree in language almost identical with that of the charter, that the contractors shall pay for all materials “ furnished in or about said improvement; ” and . the important question which at once presents itself is, to whom does this particular indemnity run, and for whose benefit was it incorporated into the body of the instrument ? The answer to this question depends entirely upon the construction to be given to the language of the bond.

As has already been suggested, the instrument does, in general terms, run to the city, but why should it indemnify the city for materials which are not furnished by the municipality, and for which it could, under no conceivable circumstances, be compelled to pay ? It is true that what is-termed the “ Municipal Lien Law ” furnishes materialmen with an easy method by which moneys due upon a contract for municipal improvements can be reached and applied in payment of their claims (Laws of 1878, chap. 315, § 1); but, in availing himself of its provisions, the materialman does not prejudice the municipality in any sense, and, therefore, it is difficult to see how the latter obtains any additional security or protection by having such a provision incorporated into the bond; and if this be so, then the bond must be construed to mean precisely what it says, viz., that the obligors therein named shall pay, or cause to be paid, the vendors and not the city “ for all materials furnished in or about said improvement,” thereby furnishing the direct indemnity to such vendors which is contemplated and required hy the charter. And herein consists the vital distinction between this case and that of The Buffalo Cement Co. v. McNaughton, recently decided by this court and reported in 35 N. Y. Supp. 453.

Having reached the conclusion that the bond is sufficiently comprehensive to embrace the plaintiff’s claim, and that it is sanctioned by legislative enactment, it remains to - be determined whether the Legislature has exceeded its power in its effort to furnish a remedy which had no existence at -common law.

So far as the city of Lockport is concerned there can, of course, be no question as to the right and duty of the law-making department of the State to incorporate into the charter, which is its fundamental law, such provisions as will adequately protect the municipality itself as a minor division of the State; but I think it may go much further than that and provide a means by which the individual members of the municipality and all other persons may be protected in their rights. The very “ Municipal Lien Law,” to-which reference has already been made, is an instance in point where to a certain class of men is furnished an easy and inexpensive method for the recovery of their just claims, which was not available to them prior to its enactment, and the means provided by the Lockport charter is simply more direct and easy of attainment. Perhaps the most radical legislative innovation of common-law rights is what is known as the “ Civil Damage Act ” (Chap. 646 of the Laws of 1873), which creates a right of action never before heard of in this State, and yet the Court of Appeals had no difficulty in reaching the conclusion that its enactment was a valid exercise of legislative power, and in the consideration of questions arising under that act took occasion to say that the Legislature may alter or repeal the common law. It may create new offenses, enlarge the scope of civil remedies and fasten responsibility for injuries upon persons against whom the common law gives no remedy.” (Opinion per Andrews, J., in Bertholf v. O'Reilly, 74 N. Y. 509-524.)

It would seem, therefore, that when it incorporated the provisions of section 207 into the charter of the city of Lockport, the Legislature not only did not transcend the limits of its authority, but that it provided an easy, suitable and inexpensive method by which a certain class of creditors could obtain their pay of a party to whom a contract for city improvement had been awarded.

It is insisted, however, that even if the view here indicated be adopted as the law of this case, there can be no recovery, because no breach of the defendants’ undertaking is alleged or proved; and, in support of this claim, the attention of the court is directed to the fact that the recital in the bond makes no reference to any covenant to pay for material, the contention being that the recital contains, the full measure of the specific engagement of the sureties which cannot be extended by construction, and the case of the Nat. Mech. Bkg. Assn. v. Conkling (90 N. Y. 116) is cited to sustain this contention. But this case, I think, hardly comes up to the defendants?’ present requirements, as a little examination will make plain. Judge Earl, after stating in his opinion that he arrives at his conclusion with some doubt and hesitation, rests it upon the fact that the bond in question, which was conditioned 'for the faithful performance of the duties of bookkeeper by one of the obligors, simply recited that he had been appointed to the office of bookkeeper and! that he had accepted the office and consented to perform the duties thereof, while the alleged breach occurred after he had been promoted to the position of receiving teller, and says that the former position was the one which was brought to the attention of the sureties and the one which they had in mind when they executed the bond. In other words, the undertaking was for the faithful performance of the duties of a specified office and not for those of another and more responsible one, and the case was, therefore, one where general words subsequently used should be controlled and limited by the recital.

In the case under consideration, the recital stated that whereas the above-bounden Whitmore & Sheldon have entered into a contract with the city of Lockport, whereby they have, “ among other things, covenanted and agreed to grade, curve and pave Niagara street,” etc., and then goes on to state in the condition what the other parts of the agreement are.' So it can hardly be said that the sureties were informed as to the full measure and extent of their liability by a reference to the recital alone. To ascertain that they were compelled to examine and give effect to the instrument in its entirety. The case is consequently brought within the principle of that of The F. N. Bank v. Spinney (120 N. Y. 560).

But it is further urged that, inasmuch as the plaintiff sold his sand to the principal obligors upon a credit of thirty days, the sureties are released from any liability therefor, for the reason that no term of credit was embraced in the contract. It is unquestionably a well-settled rule of law that a surety is entitled to a somewhat rigid construction of his contract. But before this rule is applied his contract is subject to the same construction as any other contract, in order to ascertain and give effect to the intent of the parties, and it is not until this is ascertained that its language is to be regarded as strictissimi juris. (Belloni v. Freeborn, 63 N. Y. 383; People v. Backus, 117 id. 196.) In attempting to discover the intention of the parties to the bond in suit, the circumstances surrounding its execution may be inquired into. These have already been adverted to, and it is only necessary, by way of recapitulation^ to suggest, that in the fulfillment of their contract it was necessary 'that the principal obligors should employ laborers and purchase materials; and the sureties covenanted that the laborers employed and the persons of whom the materials were purchased should be paid ■ — ■ not that they should be paid in any particular manner, or at any specified time, but that payment should be made in the usual and customary way. It does not appear how the laborers were, by their contract of employment, to have been paid, but it is safe to assume that it was at the end of each week, and yet, if they were employed by the day, as they doubtless were, they became entitled to their pay at the close of each day, and deferring payment until the close of each week would, if the defendants’ contention is to obtain, be such an extension of credit as would defeat any right of action upon the bond. If, in purchasing the sand in question, the vendees had given and the plaintiff had accepted their note for thirty days, I could see more force to the defendants’ argument, for in that case the plaintiff would have accepted a new and independent security, which would indicate that he elected not to rely upon that which was furnished by the bond, but the deferring of payment for a few days seems more in the nature of an indulgence than the extension of a credit, not within the contemplation of the contract. This question does not appear to have been pressed upon the attention of the trial court, and apparently it furnished no ground for the disposition made of the case at the Circuit, but inasmuch as it is now urged as a reason for sustaining the judgment of dismissal, due consideration has been given to it.

For the reasons stated, we think the learned trial justice erred in withdrawing the case from the jury, in consequence of which a new trial should be granted, with costs to abide the event.

Lewis, Bradley and Ward, JJ., concurred.

Motion for a new trial granted, costs to abide the event.


text:
    Cordelia A. Hinckley, Plaintiff, v. Etta Irene Mayborne and Others, Defendants.

      Will — when the power of alienation is not suspended ■ — fee dependent 'upon two lives — lapse of one life before the death of the remainderman.

    Upon, the submission of a controversy upon an agreed statement of facts, it appeared that Selina E. Sheldon died in 1883 and left a will by which she bequeathed certain premises to Henry and Ohauncey L. Sheldon for life, with remainder in fee to George Sheldon; that she gave the same persons the use of her personalty and made a similar disposition of any residue left at the time of their death; that she further provided that if- George Sheldon died without heirs before the death of Henry and Ohauncey L. Sheldon, all her property should pass to certain persons named, William A. Mayborne, Joseph H. Mayborne, Henry J. Willing and Elizabeth A. Willing. Henry Sheldon died in 1888; Ohauncey L. Sheldon died in 1894, while George Sheldon died without heirs in 1892. The defendants in the submission were the owners by purchase or devise of the interests of the Maybornes and the Willings, and insist that upon the death of Ohauncey L. Sheldon they became absolute owners of the real estate and what was left of the personal estate.

      Held, that the position of the defendants was correct;
    That the will did not violate the statutes relative to perpetuities;
    That the absolute power of alienation was only suspended during the lives of Henry and Ohauncey L. Sheldon;
    That upon the termination of their life estate the fee vested in George Sheldon, if living, or, if dead, in his heirs, if he left issue, or, if he died without issue, the fee then vested in the Maybornes and the Willings;
    That as George Sheldon died without heirs while one of the life tenants was living, he had no right, title or interest in the property, nor any which he could convey to a purchaser.

      Submission of a controversy upon an agreed statement of facts pursuant to section 12Y9 of the Code of Civil Procedure.

      Charles 3. Baker, for the plaintiff.

      James L. Weeks, for the defendants.
   Adams, J.:

This is a submission of a controversy upon a case containing the facts agreed upon, as required by section 12Y9 of the Code of Civil Procedure, and such facts, as far as it is necessary to state them, areas follows, viz.: One Selina E. Sheldon died February 2Y, 1883,. leaving a last will and testament containing these provisions :

1. I give and bequeath the brick house and about thirty-five acres-of land connected therewith, which I now own and occupy in the-village of Sherman, to Henry and Chauncey L. Sheldon, to be used and occupied by them during the term of their natural life, and at-their death the same shall go to my son George in fee simple.

2. I give and bequeath to Henry Sheldon and Chauncey Sheldon all my personal property, to be used by them for their support and maintenance during the term of their natural life, and at their death what is left shall go to my son George Sheldon and his heirs.

3. In case of the death of my son George without heirs before-the death of said Henry and Chauncey L. Sheldon, I give all my said property equally to 'William A. Mayborne, Joseph H. May-borne, Henry J. Willing and Elizabeth A. Willing.

Henry Sheldon, the husband of the testatrix, died July 13, 1886. George Sheldon, a son of the testatrix, died without heirs December 10, 1892. Chauncey L. Sheldon, a brother of the testatrix, died March 22, 1891.

At the time of her death the testatrix was the owner in fee¡ simple of the property mentioned in the first clause of her will, which instrument was properly executed, and has since been duly admitted to probate. The defendants are the present owners, by devise or purchase, of the interests of the parties named in the third clause of the will, and insist that, upon the death of Chauncey L. Sheldon, they became the absolute owners of the real estate and all that remained of the personal estate left by the testatrix, and this-claim is opposed by the plaintiff, as the grantee of George, upon the grounds:

First. That the devise mentioned in the first clause of the will is invalid, in that it attempted to suspend the power of alienation for more than two lives in being at the time of the creation of the estate j and

Second. That the condition which, by the third clause of the will,, was to defeat the estate of George'Sheldon in the premises mentioned in the first clause, has not happened for the reason that he survived Henry Sheldon.

Thus it will be seen that the determination of the controversy requires the construction of certain provisions of the will of Selina E. Sheldon.

In so far as the first clause of that instrument is claimed to be obnoxious to the statute against perpetuities, it is difficult to see upon- what canon of construction the claim is based, or why the aid of the court should be invoked, for its language is clear and unambiguous, and scarcely admits of more than one interpretation. By it the husband and brother are given a life estate in the premises in question, and, of course, the “ absolute power of alienation ” is-suspended during the existence of such estate, which, it is quite clear, should be measured by the life of the survivor of these two-life tenants. But upon its termination the absolute fee vested either in George, if he was living; or, if dead, then in his heirs, if he-left any; or, in the eveiit of his death without heirs, in the persons-named in the third clause of the will. This being so, it follows-that by no course of reasoning can the suspension be said to extend beyond “ two lives in being at the creation of the estate.”

The construction to be given to the third clause of the will appears equally clear. The condition which was to defeat the-estate of George Sheldon in the premises of the testatrix was his- death without heirs before the death of said Henry and Ohauncey L. Sheldon.”

It has been shown that it was the intention of the testatrix to create by her will a life estate in her husband and brother, and to make an absolute disposition of her property upon its termination. If George survived the life tenants, he w;as to become the-absolute owner of the fee, but if he did not — that is, if he died during the continuance of the life tenancy — then the fee was invest elsewhere. He did die before the life estate terminated,, although it was subsequent to the death of Henry, one of the life tenants, and he left no heirs. That this was the fulfillment of the condition which the testatrix designed should defeat his estate, seems too clear to admit of argument. He certainly had no interest in his mother’s estate when he assumed to convey the same to the plaintiff, and, as Chauncey L. Sheldon survived him, the defendants, or the parties from whom they derived their title, took the absolute lee of the estate upon the death of the last-named person.

The defendants are, therefore, entitled to judgment, with costs.

Lewis, Bradley and "Ward, JJ., concurred.

Judgment directed for the defendants, with costs.


text:
    The People of the State of New York ex rel. John Laird, Respondent, v. John W. Hannah, as Sheriff of the County of Monroe, Appellant.

      Contempt in a Justice’s Court — habeas corpus — the court may inquire on habeas corpus into the validity of the proceedings in which the relator was committed.

    Where a person, who refuses to answer a question put to him in an action instituted in a Justice’s Court for a violation of the game laws, is committed for contempt of court and is subsequently produced by the sheriff upon the return to a writ of habeas corpus, the court has power to inquire into the validity of the proceeding in which the relator was so committed, and, if the information upon which the magistrate acted was insufficient to confer jurisdiction, the relator is entitled to an immediate discharge.
    The provisions of section 2034 of' the Code of Civil Procedure, that a court or judge shall not upon the return of a writ inquire into the legality or justice of any mandate, judgment, decree or final order, applies only to courts of record.
    Appeal by George D. Forsyth, district attorney of the county of Monroe, in the name of the People of the State of New York, from un order of the special county judge of Monroe county, entered in the office of the clerk of the county of Monroe on the 28th day of June, 1895, discharging the relator from the custody of the sheriff of the county of Monroe.
    On or about the 31st day of May, 1895, one Edward I. Brooks made complaint before Edwin 0. Smith, a justice of the peace in and for the town of Brighton, Monroe county, that the game laws of the State had been violated within the county by divers persons to him unknown, and asked that subpoenas be issued for certain persons named in the information sworn to by him. The relator was not one of the persons so named. The justice thereupon issued subpoenas to various persons, one of which was served upon the relator, and, pursuant thereto, he duly appeared before the justice on the 4th day of June, 1895. After being sworn as a witness in a “ criminal action prosecuted by the People of the State of New York against John Doe and" others,” the relator was asked the following question: “ Have you, within the last two years, seen any person using any gill net, or any illegal device, for the purpose of taking fish in Irondequoit bay or creek, other than yourself ? ” The witness declined, under the advice of counsel, to answer the question, upon the ground that his answer might tend to incriminate him; whereupon the justice directed the witness to answer the question, and, upon his refusal so to do, adjudged him guilty of a criminal contempt, and on the 5th day of June, 1895, sentenced him to imprisonment in the jail of Monroe county for the term of thirty days. On the following day a writ- of habeas corpus was issued by the special county judge of Monroe county, directed to the sheriff of Monroe county, requiring him to produce the relator in court; and after hearing counsel for the relator and the People, an order was made discharging the relator from imprisonment.

      Howard II. Widener, Assistant District Attorney, for the appellant.

      Werner & Harris, for the respondent.
   Adams, J.:

Section 619 of the Code of Criminal Procedure makes a refusal to testify a criminal contempt, the punishment for which is provided by section 852 et seq. of the Code of Civil Procedure. It is likewise provided by section 2034 of the Code of Civil Procedure that upon a return to a writ of habeas corpus the judge or court shall not inquire into the legality of any mandate, judgment, decree or final order; but subdivision 2 of section 2032 expressly excepts from the operation of the former section an order to punish for contempt, and the criminal contempt defined in section 8, and referred -to in subdivision 3 of section 2032, relates only to courts of record. The judge was, therefore, at liberty to inquire into the validity of the proceeding before the magistrate in which the relator was committed, and a careful examination of the record shows very clearly that the information upon which the justice acted was wholly insufücient to confer jurisdiction upon him, and that consequently he was without authority either to subpoena the relator or compel him to testify, or to commit him for contempt. This feature of the case is ■commented upon so fully by the learned judge who granted the ■order as to leave no opportunity for this court to add anything thereto.

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

Lewis, Bradley and Ward, JJ"., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Davy, J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of Stephen H. Hammond, Executor and Testamentary Trustee under the Will of Amon W. Langdon, Deceased. George C. Langdon, Appellant; Stephen H. Hammond, as Executor, etc., of Amon W. Langdon, Deceased, Respondent.

      .Surrogate’s Court — petition for the payment of a legacy — when the claim, is alleged to he released and to he invalid, the surrogate is without jurisdiction— Code of Civil Procedure, § 2722 — presumption as to cm emecutoi'ship and trusteeship being combined.

    Where a legatee presents a petition asking that a person account as executor and testamentary trustee and pay over to the petitioner a legacy, and the executor and testamentary trustee, upon the return of the citation, alleges that the petitioner has released his legacy, has no interest in the estate and .denies the validity and legality of the claim, it is the duty of the surrogate to dismiss the proceeding.
    ‘The Surrogate’s Court is one of limited jurisdiction, and it has no power to try and determine the question whether the release executed hy the legatee was obtained hy fraud or was given hy mistake.
    Where the petitioner alleges that the person in question had never rendered an account of his proceedings as executor and as testamentary trustee, and the will is not printed in the appeal hook, the court cannot assume that the case is one where the two functions of executor and trustee co-exist and are inseparably blended.
    Appeal by George 0. Langdon, one of the legatees named in the will of Amon ~W. Langdon, deceased, from an order of the Surrogate’s Court of the county of Ontario, entered in said Surrogate’s Oourt on the 4th day of August, 1894, directing that proceedings to compel an accounting by said executor and trustee, and to compel the payment of the legacy mentioned in the will of the testator be dismissed.

      Frederick L. Manning, for the appellant.

      Charles A. Hcrnley, for the respondent.
   Davy, J.:

In March, 1894, the appellant presented a petition to the surrogate of Ontario county praying that a citation issue to the respondent requiring him to account as executor and testamentary trustee and pay over to the petitioner a legacy of $8,000, with interest thereon from October 4, 1873.' Upon the return of the citation the respondent filed an answer alleging that the estate had been settled and distributed, and that the petitioner’s claim had been paid. %

The answer also states that the petitioner; in September, 1874, executed and delivered to the executor and trustee a writing in which he acknowledged the receipt in full of all claims which he had against the estate of Amon ~W\ Langdon, deceased, and released and discharged the executor of said estate from all liability to the said petitioner, and alleges that the petitioner has no interest in the estate, and it also denies the validity and legality of the petitioner’s claim.

, Upon the filing of the -answer the respondent’s attorney moved to dismiss the proceedings, which motion was granted by the surrogate.

The learned counsel for the appellant contends that the petition ought not to have been dismissed, as no opportunity was given him to reply to the answer. It is sufficient to say in regard to the appellant’s contention that the surrogate in his opinion says that no formal reply was interposed by tbe petitioner to the answer, but that in response to an inquiry the petitioner’s attorney said that the execution of the receipt would not probably be questioned. In that view of the case it seems to me that the dismissal was clearly right. (In the Matter of Pruyn, 141 N. Y. 544.)

Hnder section 2722 of the Code of Civil Procedure the surrogate was required, upon the presentation of the petition, to issue a citation, and, on the return thereof, to make such a decision in the premises as justice required. But he is required to dismiss the petition without prejudice to an action or an accounting in behalf of the petitioner, where an executor or an administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality absolutely, or on information and belief.

In the face of this explicit provision of the statute, I am unable to see how the surrogate had any authority to hear and determine the issues raised by the answer.

The Surrogate’s Court is one of limited jurisdiction, and it had no power to try and determine the questions whether the release had been obtained by fraud or given by mistake. These disputed questions of fact could only be adjudicate'd in a court of equity or law and not in the Surrogate’s Court. (Bevan et al. v. Cooper et al., 72 N. Y. 329.)

Judge Cray had occasion in The Matter of Wagner (119 N. Y. 36) to discuss this question quite fully, and in expressing the views of the court he said : Where an application is made to the surrogate for an order compelling the executor or administrator to file an inventory, or to render an account, and it appears, in answer to it, that the applicant can have no right to such an order, by reason of his interest having been satisfied and extinguished by a settlement and distribution, whether in or out of court, or barred by a release, or otherwise, and the factum of a settlement, or of a release, or any act constituting the bar, is put in issue by the reply of the applicant, that the surrogate should dismiss the petition and remit the applicant to his proceeding in a court having general equity powers to try out such an issue.”

The learned counsel for the appellant also contends that the legacy was in the hands of the respondent as a trustee and not as an executor, and that section 2722 of the Code of Civil Procedure does not apply to a testamentary trustee.

The will is not printed in the appeal book. We are, therefore, compelled to ascertain its contents as well as we can from what appears in the proceedings before the surrogate. The petition alleges that Hammond has never rendered an account of his proceedings as executor and testamentary trustee, and it asks that he be cited to show cause why lie should not render an account and settle the same. If the duties of the respondent, as executor, were first to be discharged before he could assume the duties of trustee, then the legacy,-if any, still remains in his hands as executor, because the petition states that no judicial settlement of his accounts has ever been had by the executor.

We cannot, from the language of the petition, assume that this is a case where the two functions of executor and trustee co-exist and are inseparably blended together. We could only determine that question from the context of the will, which is not before us.

The order appealed from should be affirmed, with costs to be paid out of the estate.

Lewis, Bradley and Ward, JJ\, concurred.

Order appealed from affirmed, with Costs.


text:
    John Yoos, Respondent, v. The City of Rochester, Appellant.

      Nuisance — existing when a tenant goes into possession — measure of damages.

    Upon tlie trial of an action to recover the damages resulting from a nuisance created by the discharge of sewage into a creek which flowed through certain premises leased by plaintiff, it appeared that the plaintiff, when he leased the premises, knew of the pollution of the stream; that the stream had been polluted for many years, had been declared a public nuisance by the courts, and that the city could not abate it until it had completed the construction of a trunk sewer, which was not finished until three years later.
    The agent of the landlord testified that he had informed the plaintiff of the condition of the creek; that the owner had filed a claim against the city for damages, and that he, the agent, had leased the premises to the plaintiff for one-half their normal rental value because of the polluted stream.

      Upon the trial of tlie action the court charged the jury that, unless there was an express agreement between the landlord and the tenant that the landlord was to retain the right to sue for damages, the tenant would be entitled to recover all damages caused by the pollution of the stream, and that the measure of damages was the difference in value of the plaintiff’s use of the property with the nuisance and without it.
    Held, that such charge was improper;
    That the plaintiff was entitled to recover no damages unless the nuisance was increased in some way during his tenancy;
    That it must be presumed that, when the plaintiff leased the premises, he took into consideration the effect which the nuisance would have upon the use and enjoyment of them;
    That if the landlord received less rent because of the nuisance, thé loss fell upon him, and not upon the plaintiff.
    Appeal by the defendant, The City of Rochester, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 8th day of February, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of February, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      Adolph Rodenbeok, for the appellant.

      Arthur Warren, for the respondent.
   Davy, J.:

It appears from the evidence in this case that in April, 1890, the respondent leased thirty-live acres of land located on Thomas creek, in the town of Brighton, for three years at an annual rent of $300, and he brings this action against the city of Rochester to recover damages for creating a nuisance caused by the discharge of sewage from two of its outlet sewers that empty into said creek, which is a natural watercourse flowing from the city of Rochester through the plaintiff’s premises and emptying into Irondequoit bay.

The case was tried before a jury in the Monroe County Court and a verdict was rendered in favor of the plaintiff for $312. This appeal is taken from the judgment entered upon the verdict of the jury and also from the order denying the defendant’s motion for a new trial. The learned judge who presided at the trial charged the jury that unless there was an express agreement between the landlord and the tenant that the landlord was to retain the right to sue and recover the damages to the premises, the tenant would be entitled to recover all the damages caused by the pollution of the stream and that the measure of damages was the difference in value of the plaintiff’s right to use, occupy and enjoy the property with the nuisance and without it, which was excepted to by the defendant’s counsel. This exception, we think, was well taken. Where a nuisance affects the enjoyment and occupancy of realty the measure of damages is usually the loss of rents or the depreciation in the rental value. Cases may arise where loss of profits resulting from an interference with one’s lawful business, or loss of crops, may be regarded as elements of damage, and where the injuries permanently affect the realty the measure of damages is the difference between what the property would have sold for before and after the injury by the nuisance. In this case, however, the nuisance complained of was the odor arising from the polluted stream, which the plaintiff contends was' so offensive that it interfered with his enjoyment of the property. So, that if the plaintiff was entitled to recover all the damages occasioned by the nuisance the measure of damages must be based upon the depreciation of the rental value of the premises. But to hold, in the absence of an express agreement, that the plaintiff under all circumstances was entitled to all the damages arising from the nuisance during the period that he occupied the premises, might, in many cases, work great injustice to the landlord, especially if the plaintiff was informed of the nature and extent of the nuisance and its probable duration, and he took that into consideration and paid no more rent for the premises than they were actually worth with the stream polluted. The plaintiff, under such circumstances, could not, it seems to me, successfully contend that he had sustained any damages unless the nuisance in some way was increased during his tenancy. If the landlord did not receive as much rent for the premises on account of the nuisance the loss fell upon him and not upon the plaintiff.

We think that these were proper questions for the consideration of the jury in estimating the plaintiff’s damages.

In the case of Kernochan v. N. Y. E. R. R. Co. (128 N. Y. 566) Judge Andrews, in discussing this question, lays down the rule very clearly as to the right of the tenant to recover damages for the diminished rental value of premises incumbered by a nuisance at the time the lease was made. He says, “ It is a fundamental proposition that only the party injured by the wrongful act can maintain an action for damages. There may be difficulty in some cases in ascertaining the proper party. The same wrong may occasion injury to several persons or to separate and distinct interests in the same property ; but he only is entitled to maintain an action who can show that his right has been invaded, and to such a person or persons only is the wrongdoer bound to make compensation.”

In determining,” he says, whether the lessee acquired by his lease the right to recover damages inflicted upon the property by the road during the term, the situation at the time the lease was executed, the terms of the instrument and the intention of the parties thereto are to be considered.”

The agent of the landlord testified that before the plaintiff leased the premises he had two or three interviews with him, in which the condition of the creek was spoken of, and that he informed the plaintiff that the owner had filed a claim against the city for dam ages. He also testified that the premises were leased to the plaintiff for one-lialf of their normal rental value on account of the polluted stream. The natural inference to be drawn from this testimony is, that the plaintiff knew of the existence of the nuisance at the time he leased the premises, and if he had made proper inquiry, as a prudent man should have done under the circumstances, he would have ascertained that the stream had been polluted by the city’s sewage for many years, and that it had been declared a public nuisance by the courts, and that the city was powerless to abate it until the east side trunk sewer was completed, which was then in process of construction, and was not finished for more than three years after the lease was made.

These facts would not justify us in reaching the conclusion that the owner of the premises demanded the same amount of rent that he would have exacted if the stream had not been polluted. Neither would it be fair to presume that the plaintiff did not take into consideration the effect the nuisance would have upon the use and enjoyment of the property. It would be contrary to reason and common sense to hold that he paid as much rent for the premises with the nuisance as he would have paid without it. To hold that the plaintiff, after having obtained a reduction of the rent on account of the nuisance, is entitled to all the damages that accrued to the premises during his term because there was no express agreement that the landlord should have them, would be contrary to equity and the presumed intent of the parties when they made the lease. ' "

The judgment' and order of the County Court, therefore, should be reversed and a new trial ordered, with costs to abide th§ event.

Lewis and Bradley, JJ., concurred; "Ward, J., not voting.

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


author: Ward, J.:

text:
    Frederick W. Bosworth, Appellant and Respondent, v. Standard Oil Company of New York, Respondent and Appellant.

      Negligence — verdict for §8,000 excessive — reduced to §5,000.
    Upon the trial of an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, the plaintiff recovered a verdict of §8,000, and the court granted a new trial unless the plaintiff would stipulate to reduce the verdict to §5,000. It appeared that the plaintiff while acting as a switchman stepped from between two cars about eighteen inches, into an open barrel sunken in the ground, and was thrown forward striking the right side of his abdomen across the chime of the barrel; that this caused a rupture which necessitated his using a truss from a period' about two weeks after the accident; that about three weeks later he had to stop working, and did not work for about two months; that he was then compelled to take a position where the work was lighter and where his pay was reduced twenty dollars a month.
    Upon the trial of the action a physician for the plaintiff testified that the plaintiff could never do heavy work again without danger; that the truss might slip and produce strangulated hernia; that in the future he could only safely do light work, and that he could never act again as a switchman. An expert witness for the defendant stated that, in his opinion, a surgical operation could be performed upon the plaintiff, with little risk, at an expense of from §125 to §150 and the loss of a month’s time, and that the operation would relieve him.

      Held, that §5,000 was a proper amount of recovery in the action.

      Appeal by the plaintiff, Frederick W. Bosworth, from so much of ail order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 13th day of July, 1895, as orders and directs “that the verdict herein be set aside and a new trial in this action be, and the same hereby is, granted on payment of the plaintiff’s costs of the trial to be taxed, upon the ground that the verdict is excessive, unless the plaintiff, within ten days of the service of this order, stipulates to reduce the verdict to five thousand dollars ($5,000), with interest thereon from the day of the rendition of said verdict.”
    Also an appeal by the defendant, The Standard Oil Company of New York, from the whole of said order.
    The action was brought to recover for the alleged negligence of the defendant, in maintaining upon its premises an open barrel near its tracks partially concealed in the earth, into which the plaintiff, while lawfully upon the defendant’s premises, fell and was injured.

      Frank Brwndaye, for the plaintiff.

      Adalbert Moot, for the defendant.
   Ward, J.:

The only question in this case is whether the verdict for $8,000 was excessive, and whether the order granting a new trial, unless the plaintiff would stipulate to reduce the verdict to $5,000 and interest, should be sustained. The plaintiff contends that the verdict of $8,000 was not excessive, and the defendant contends that it was excessive, and that $5,000 would also be excessive, and that the plaintiff should not have recovered to exceed $2,000.

At the time of the accident (October 18,1894) to the plaintiff, and for some time prior thereto, the defendant owned and occupied certain premises in the city of Buffalo, New York, known as the Atlas Works, which it was operating as an oil refinery. The Buffalo Creek railroad ran into the yards of the Atlas Works. In connection with its works defendant had laid tracks and erected a filling-rack near the tracks for the purpose of loading- cars with oil, which tracks and rack were situate in a part of Prenatt street in said city, and were placed there by defendant with the consent and permission of the city authorities, who had the right to grant the same. The plaintiff was in tlie employ of the Buffalo Creek Railroad Company as a switchman, and belonged to a crew whose duties were, among other tilings, to go with an engine upon the lands so occupied by the defendant and remove cars loaded with oil, and also to place upon the tracks in the defendant’s yard, or in that vicinity, empty cars, which were placed in position for loading by those engaged in the employment of the defendant. _■

Partially under the filling rack, and three feet and nine inches from the south rail of the north track, there was an oil barrel sunken in the earth to the depth of thirty inches, which barrel the defendant had kept in that position a long time before the accident. 'Whether said barrel had been kept covered by the defendant was a controverted question on the trial. The distance from the side of the car to the edge of the barrel was about eighteen inches. While engaged in the performance of his duties as such switchman the plaintiff went in between two ears to couple them, and had let off the brakes. He then stepped out from between the cars into the sunken barrel and sustained the injury complained of. The barrel was open at the time of the accident, the cover lying about two and one-half feet from the barrel. The plaintiff was thrown forward striking the right side of his abdomen across the chime of the barrel. The plaintiff- continued his work that day, and at night discovered a soreness across the right side of the abdomen, but suffered no pain until about four days afterwards. The next day he went to work as usual and continued his work for thirteen or fourteen days. In the meantime he discovered a swelling, at the place of the injury about the size of a hen’s egg. After about ten days he suffered very much pain and soreness. He consulted a physician and discovered that he had a hernia or rupture. He obtained a truss, which was put on November first. After putting on the truss he continued to work more or less, and finally, on the twenty-fourth of November, he gave up work entirely because of his suffering so much pain, and was weak and sick from the accident, and was laid up with his injury and did not work until about the eighteenth of January following. After that he was given a lighter position at lower wages; before his injury he received sixty-five dollars per month ; after that he received only from forty to forty-five dollars per month. Before the injury the plaintiff was a vigorous, strong, healthy man, capable of doing any kind of heavy work, and was thirty years of age. The physician of the plaintiff, Dr. Thomas Gr. Allen, of Buffalo, in speaking of the injury to the plaintiff and its effect, testified: It is very doubtful, in my judgment, if Bosworth will ever recover from the effect of that rupture so as to be able to do heavy work. I don’t think he will without danger to himself. The shifting of the truss, in climbing from car to car, may cause the rupture to slip out again. There is danger, if he cannot call a surgeon at once, of having strangulated hernia, if he cannot reduce it himself. That is a danger. There would be danger from the rupture to protrude again if the truss were to break, or he were to meet with a sudden fall, so that the truss should give way. He will not, in my judgment, recover from this injury, so as to be able to do more than ordinary light work, without danger to himself. That danger will be constant as long as he wears a truss. In my judgment, he could not safely perform his duties as switchman, getting off and on cars, turning brakes, as he did before this accident, because he would bo likely to shift that truss; it is almost impossible to put a pad on a hernia that way and hold it exactly in the spot; the shifting and bending is apt to disturb the pad, and if it gets out of position the rupture will protrude. The rupture is such as during the balance of his life it will prohibit him, with safety,.from doing the work he did before. There will be more or less risk to run all the time.”

These conclusions of this witness were sustained by another physician called by the plaintiff and were not substantially controverted upon the trial. Dr. Roswell Park was called for the defendant,- and after answering a hypothetical question he stated that a surgical operation could be performed, in his opinion, upon the plaintiff with but very little risk, which would relieve him, at the expense of $125 to $150 and the loss of a month’s time.

Upon the state of facts here presented we concur with the trial court that the verdict of $8,000 was excessive and should have been reduced, but the injury to plaintiff was serious. It subjected him to a burden of annoyance, pain and danger during the residue of his life unless he chose to take the risks of the surgical operation referred to. lie was not obliged to incur that risk. It was a matter of judgment and discretion with him as to whether he should do so. The learned trial judge having the witnesses- before him, observing the condition and appearance of the plaintiff, was better qualified to judge whether the verdict was excessive, and to what extent it should be reduced,.than the appellate court, with only the printed record before it, can possibly be; but from that record we have reached the conclusion that the amount fixed, of $5,000 to which the verdict should be reduced if the plaintiff should stipulate, was proper under the circumstances of this case, and the order should be affirmed, but without costs to either party, with leave to the plaintiff to stipulate, as provided in the order appealed from, within twenty days.

Lewis and Bradley, JJ., concurred.

Order affirmed, without costs of the appeal to either party, with leave to the plaintiff to stipulate, as provided by such order, within twenty days after the service of a copy of this order.


text:
    In the Matter of the Proof and Probate of the Last Will and Testament of Mary E. Barber, Deceased. Cornelia M. Barber, Proponent, Respondent; Frances M. Benson, Contestant, Appellant.

      Will — burden of proof as to the time when material alterations were made in it — an incomplete will — what required when it is sought to be established by one witness.

    Material alterations in a will are not presumed to have been made before its execution, in cases where the cancellation of certain matters is not explained, where suspicion arises upon the face of the paper, and, from surrounding- circumstances, it is doubtful whether the cancellation was made before the execution of the paper.
    A testatrix may make alterations in her will, but cannot reserve to herself the power of making- future testamentary gifts by unattested instruments, and where one propounds an instrument for probate and if is doubtful whether alterations appearing therein were made before or after execution, the proponent must clear up the doubt.
    Where it clearly appears that an alteration was made before the execution of a will, that portion of the will which was in existence at the time .of the execution may be admitted to probate and the rest be rejected; but in doubtful cases, where material provisions have been erased or altered and the court cannot determine from the proof whether the alterations were made before or after execution, probate must bo refused to the whole instrument.
    Where a proposed will is incomplete and it appears that the testatrix intended to dispose of more of her property before it should be complete, and the proof does not show that the instrument expressed the whole purpose and intent of the testatrix, it should be rejected.
    The fact that a will is manifestly incomplete, and that one of two sisters of the deceased is disinherited by a cancellation of certain words in it, tend to show that it is not the last will and testament of the decedent.
    A will may be established by the testimony of only one of the subscribing witnesses, but -where this has been permitted, the testimony of the witness has usually been supported by the ordinary attestation clause, while the circumstances surrounding the execution and publication of the will, its reasonableness and its justice, have been in support of the evidence.
    Appeal by the contestant, Frances M. Benson, from a judgment and decree of tlie Surrogate’s Court of the county of Cayuga, entered in said Surrogate’s Court on the 10th day of August, 1895, adjudging to be properly executed and valid as the last will and testament of Mary E. Barber, and admitting to probate a certain paper writing propounded as the last will and testament of said decedent.

      John D. Teller, for the appellant.

      Willimi E. Huyhitt, for the respondent.
   Ward, J.:

Mary E. Barber, a widow lady in the city of Auburn having considerable property, died on the 27th of January, 1895; she had no children or other descendants, and her heirs and next of kin were two sisters, Cornelia M. Barber and Mrs. Frances M. Benson. In March, 1895, Cornelia M. Barber, whom we shall style hereafter as the proponent, filed a petition with the surrogate of Cayuga county praying for the probate of what she claimed to he the will of the deceased. Frances M. Benson contested such probate and interposed objections thereto, and tlie issues thus made were tried before tlie surrogate, and the paper was admitted to probate as a will by the surrogate. At the time of the making of this instrument the mother of the deceased, a Mrs. Morgan, was alive, but subsequently, and in October, 1893, she died. The paper presented to the surrogate was written entirely in pencil and by the deceased, except her signature and those of the two witnesses, Harriet A. Collins and Margaret W. Bostwiclc, which were written in ink. It is written upon four half sheets of legal cap paper placed together and doubled once, forming a kind of a book, fastened at the point of doubling with a pin. The pencil writing is on seven continuous jiages as you turn to the left. On the top of the seventh page there is siinply the word “ books.” It is important that we should give, as far as possible, a copy of this extraordinary paper with its erasures, blanks, marks, interlineations and cancellations. We were favored upon the argument with tile original instrument, and as far as it can be reproduced here, is as follows:

“ I, Mary E. Barber being of sound mind and capable of making my will declare this will — dated June 1893 — as my last will and testament — all others made before this date, memorandums, &c., I declare null and void.

1st After my lawful debts are paid, and funeral expenses.

“ 2 My house 31 Wm St. to be sold for whatever it may be sold ■&»*■ is to be divided as follows :

1st To my faithful servant, Sarah Willis, 2,000 dollars cash — 1st of all. If house sold for 20,000 it would leave a balance of 18,000 to be divided between the following named :

“ Nellie Barber,

Alice Morgan Barber,

Julia Barber Elvers,

Elizabeth Coventry Barber,

Mamie Morgan Avery,

Maggie Barber,

Maudie, “ George Barber 2nd,

My mother,-Mary E.-P. Morgan,.

.My oiotor, "Eranooo MrBonoon,-.......

To my sister, Cornie Morgan Barber,

Goorgo Bfli'boi‘j-8iid?

My store, 112 Genesee St., absolutely free title now free from any incumbrance.

(page 2) •

“If 37 Wm. St. should be sold for more or less it must be divided equally the same, giving each the same proportion, where I know my husband would wish it to go.

Water bonds Hi60 valuó... 1500 value

Water stock now representing 8000

9500

To be arranged later. Should anything happen to me before this will is finished it must not go into litigation — brought about by my mother or any of my nieces, Mrs. Frances M. Benson’s children, if so they must ■wfifr be left with nothing and all go to ”

(page 3)

££i . “ to-íHy-ftiotoay

■Ckwttdia -McNoil, ■a-marblo-bufit-of "fnthor Barber; to my sister Cornelia L. Barber’s children. Of course my mother, who is now feeble and aged — probably will not outlive me. In cared that event she of course will be takoa*for by those left — My sister Frances M. Benson & Children - The interest in Times Building, if I have any at the time of my death, goes to my nieces, Mary P. Benson and Helen F. Benson Hunt, wife of Tlios. M. Hunt —■ now of Auburn, N. Y.”

(page 4)

“ my silver ware

Solid silver tea sett to go to Mary P. Benson if my mother has to given her solid sett which was given my sister Cornelia M. Barber, if not my sett is to go to my sister Cornie.

“ Witnessed by “ MARY E. BARBER.

“ Harriet A. Collins.

(blot) Margaret W. Bostwiok.”

The fifth page contains a list of twenty-two articles for table use, as silver knives, a large silver salver, a silver goblet, silver forks, a butter dish and other articles with 1000 Thomas M. Hunt, 1000 Mary P. Benson, 1000 Edith Benson, 1000 Cornelia Benson, 500 Catharine Walsh, if living with me.”

The sixth page has the same names of persons as on the fifth page, with the same amounts opposite their names, except that of Catharine Walsh, and, in addition, it contains the name Helen M. Hunt with “ 1000 ” opposite her name, with the aggregate figures under the amounts, of 5000 and below, the name of Sarah- Willis, stricken out.

The seventh page is an entire blank, except that at the top occurs the word “ books.” This page does not appear in the printed case, but it does in the original paper presented on the argument. Pages 5, 6 and 7 are not signed or witnessed.

Margaret W. Bostwick testified in substance before the surrogate that she called at the house of the deceased in the evening upon which the alleged will was witnessed, for a friendly call and found Mrs. Collins (the other witness to. the will) and the deceased; that Mrs. Collins was a nurse in the house and was attending the mother of the deceased, and that she (Miss Bostwick) asked the deceased if she had made a will, to which the deceased replied, in effect, that she had a paper all ready, and got the paper from, a desk or drawer near by; that deceased sat down with the paper and read part of it, and the witness continues: “The beginning of the will; it began in a formal way. £ I, Mary E. Barber — ’ I don’t remember exactly, but it was her last will and testament, and she being of sound mind and capable of making a will.. I don’t remember anything else. She was sitting in the same seat she left when she went to get it. "When she stopped reading I think there was a little conversation in regard to the will and the signing of it. She read until she came to the provisions of the will; then she didn’t read any further. Then she signed the will and we witnessed it, signing our names. Before signing she said she wopld sign it if we would witness it. * * * I think I said that I didn’t know as it would be legal. She asked us to do it. She still had the paper in her hand. She fixed a place upon the table to lay the will, on the desk or table in the center of the room; we were sitting on one side of it. Then she signed her name with a pen and ink. Then we signed our names. We were in each other’s presence. Mrs. Collins and I were sitting either side of a door; Mrs. Barber was at the end of the table. * * * I think it was Mrs. Barber who wrote £ witnessed by ’ at the left of the signature. I think it was after signing her name. * * * Mrs. Collins signed her name. * * * She was asked to * * * by Mrs. Barber, * * * Mrs. Barber asked me to.” The witness further testified that the deceased was at that time of sound and disposing mind and memory and not under restraint.

On her cross-examination this witness. said that she remembered that Mrs. Barber said that she wished Mrs. McNeil to have a certain bust; that there was considerable laughter during the time in the party about various things which were said; that the maid, Sarah Willis, brought in something to drink, of which the party partook, that was called root beer; that she was under the impression that the deceased said that she had left her library to Mr. Thomas Hunt (who had married a daughter of the contestant), and that she thought Mrs. Barber was at the time slightly under the influence of liquor.

The counsel for the contestant asked her if she had not made certain statements to him soon after the death of Mrs. Barber, and she admitted that she had told him that Mrs. Barber was at the time of the execution of the paper decidedly under the influence of liquor, and that in reply to a question of his if, in her opinion, the deceased was competent to make a will at that time, the witness had said that she certainly ivas not. The witness, however, stated that, after reflecting upon the matter for some time, she had concluded that she was mistaken in her statements made to the counsel and that the facts were as she had before stated them.

Mrs. Collins, the other witness, testified that she signed her name to the paper in the presence of the deceased, but did - not see the name of the deceased upon the paper, and, she continued: She (deceased) said, ‘ Girls, just for fun put your name on this paper. Sign this paper,’ and then I wrote my name. * * * The paper was in my hands when I signed my name to it. I put it on a book to write my name. Miss Bostwick (the other witness) passed it to me to write my name. * * * Miss Bostwick was sitting by the table and I was sitting by the side of her, a short distance from her, about the same distance from Mrs. Barber. I signed my name and passed the book to Miss Bostwick. * * * Mrs. Barber was sitting at the west end of the long table in the library. After I signed, Sarah, the house maid, was going through the house. * * * She (deceased) called to her to bring some wine and cookies, which she did. Then we- had a jolly time, talked and laughed. * * * I partook of a little of the liquor that was brought in and Miss Bostwick did. We partook of the cookies. Mrs. Barber did not partake of what was brought in in liquid form. * * * We were there about an hour and a half I think. * * * Aside from writing our names on the paper we were visiting and partaking of our lunch. * * * The first I heard on the subject of a will, Miss Bostwick said, ‘Aunt Mollie,.why don’t you make your will ? ’ * * * Mrs. Barber said she was going to make her will some time when she coujd. She called this paper she had a memorandum. S[ie said she was going to when she had finished out what she wanted to 'do with her things. She hadn’t quite finished how she wanted to dispose of them. * * * She talked about having someone come to draw up her will. * * * She spoke about if she should get sick,, of course she would like to have her things disposed of, have someone draw up a will and dispose of her things. She spoke about Mr. Thomas Hunt having the library. "" * * She spoke of it several times that evening, then she spoke of pictures she wanted Miss Bostwick and me to have. * * * She said nothing further about disposing of her property. * * * Mrs. Barber went out and got a paper while we were there. She got it from a table drawer in the south library. "When she started to get it she said she had a memorandum of what she wanted done with her — that she was going 'to have her will drawn up from this paper. * * * She unrolled it [the paper] and wanted to read it to us. She did not read any part of it.”

The witness was asked if Mrs. Barber had read the portion of the will at its commencement, as stated by the other witness, and she was positive that it Aras not done; she further testified that the witnesses put their names at the places pointed out by the deceased. On her cross-examination, she said that site did not think Mrs. Barber was competent to make a will or devise real estate; that the deceased did not. sign her name to the instrument that night, or write the words Avitnessed by,” as it appears; that she Avas intoxicated at the time, laughed a good deal and acted silly.

Theodore M- Pomeroy, of Auburn, an uncle of Miss Bostwick, testified that, in conversing with her shortly after the death of Mrs. Barber, she had said she didn’t know whether Aunt Mollie (Mrs. Barber) had signed the will or not; that she (Aunt Mollie) “ brought out a paper and Avanted us (the Avitnesses) to write our names to it, and we did so, and that Avas all there was of it.” Several Avitnesses testified to the declarations of Mrs. Barber, the deceased, that she had made a Avill. Others testified to her declarations that she had not made one, but intended to do so. Several Avitnesses testified, and indeed it seems to have been conceded, that the deceased, at the time of and prior to the making of the instrument, was in the habit of drinking intoxicating liquors, and at times became intoxicated. An expert witness testified that the cancellations, in some instances of material matters, of names and amounts appear to have been made at a different time from that at which the matter canceled was written.

Indeed, upon an inspection of the original will, the lines drawn over the words my mother, Mary E. P. Morgan,” and “ my sister, Frances M. Benson,” and “ George Barber, 2d,” on the first page, and over “to my sister, Cornelia McNeil, a marble bust of father,” and over “ 1500 value,” on the second page, appear in a heavier mark or hand than the other lines in pencil in the writing, and probably were made at a different time from the other writing and cancellations. There are nine distinct cancellations, five of which are of material matters., None of the cancellations are explained in any manner by the witnesses, or noted at the end of the will, or otherwise. The only recognition made of the mother, Mrs. Morgan, or of the sister, Mrs. Benson, in the paper, as originally written, Avas on the first page, and, as above shown, the clauses in Avhich such recognition was made were stricken out. “ George Barber, 2d,” is also stricken out from the clause giving him an interest in the store on Genesee street. The mother is especially referred to in the third page as being feeble and aged, and as not being likely to outlive the decedent. The decedent assumed that in that event she would be cared for by Mrs. Benson and her children. As before said, the decedent survived her mother, who died after the making of the alleged will, in June, 1893, and the cancellation of the mother’s name is suggested, at least, under the circumstances, that it Avas done after her death. The cancellation mark being 'of the same character over the devise to the contestant and to “ George Barber, 2d,” of the Genesee street store, is also suggestive that those cancellations were made at the same time as that of the devise to the mother. Material alterations or cancellations in a will or deed are not presumed to have been made before the execution thereof in cases like this, where no explanation of the cancellations is given, and where suspicion arises upon the face of the paper, and from surrounding circumstances, it is doubtful if the cancellations were made before the execution of the paper. (Herrick v. Malin, 22 Wend. 388; Smith v. McGowan, 3 Barb. 404; Acker v. Ledyard, 8 id. 514; Wetmore v. Carryl, 5 Redf. Surr. Rep. 544.)

A testator may make alterations in his will, but he cannot reserve to himself the power of making future testamentary gifts by unattested instruments, and where one propounds an instrument for probate and it is doubtful whether the alterations were made before or after execution, the one propounding the instrument must make the doubt clear. (See Wetmore v. Carryl, supra, 549, 550, and cases cited.)

It is true that where it clearly appears that the alteration was made before the execution of the will, that portion of the will that was in existence at the time of the execution may be admitted to probate and the other rejected, but in doubtful cases, where material provisions have been erased or altered, and the court cannot determine-from the proof whether the alterations were made before or after execution, probate must be refused and the whole instrument rejected.

It is the policy of our laws to surround the instrument that is to speak for the testator, after Fe has ceased to speak for himself in regard to the disposition óf his property, with certain safeguards,, so that the instrument shall embrace the deliberate and complete purpose of the testator on the subject, and it is because these safeguards have been shown by experience to be wise and necessary that the courts are tenacious in upholding them. If the paper is: only a memorandum or a partial disposition of the property of the: decedent, when he intended before his will should be complete to-dispose of more of his property, or of the whole thereof, the paper,, though signed afid witnessed, may be rejected for incompleteness,, and as not expressing the will of the decedent. “ An objection that, the document propounded as a will, or any part of it, does not conform to the real wishes and intention of the decedent, goes to the-, foundation of the instrument itself.” If such an objection is sustained it is tantamount to a decision that the instrument, or a particular clause of it, is not the will of the decedent.

The points made by the appellant here are that this will should' not only be rejected on account of unexplained erasures, cancellations and alterations in material respects, but because the assumed will was incomplete, and the proof shows that it did not express the wholes purpose and intent of the decedent; that it was not published, as required by the statute, nor was the will signed by the testatrix and witnessed at the end thereof as the statute requires. As to the incompleteness of this will both of the witnesses to it testify that the decedent expressed a desire to give Mr. Thomas Hunt her library. No reference is made to this library in the paper, before the signature, but on the seventh page the single word “ books ” occurs at the top, without further designation or any legatee named therefor. On the second page, after referring to “ water bonds ” and “ water stock,” this appears: “ To be arranged later ; should anything happen to me ~before this will is finished, it must'uot go into litigation' — brought about by my mother or any of my nieces, Mrs. Frances Benson’s children; if so they must be left with nothing and all go to.” Then follows on the third page the words “ to my sister.” This clearly indicates that the present paper was an unfinished paper. This view is supported by the numerous blanks left in the paper where other bequests could be filled in as the deceased might desire. The fifth and sixth pages which are unsigned, being placed in this paper book in connection with and following the signatures, and containing the names of Mr. Hunt, luis wife, and other natural objects of the testatrix’s bounty, wTith amounts set opposite their names, would seem to indicate legacies that the deceased intended to bequeath; indeed, the whole paper bears evidence of incompleteness. It was not prepared by any one skilled in drawing such instruments, although the case discloses there was some talk of having Mr. Hunt or another legal gentleman draw the will. It is written in pencil, an unusual mode of writing instruments so serious and of so important a character. .The decedent was a woman of superior intelligence, of considerable-business capacity, and had had the management of her large property since the death of her husband, which occurred in 1886. It is hardly reasonable to suppose that, knowing the importance of this instrument and of its proper execution, if she were in her right mind, she would regard this paper as in any sense her last will and testament

As to the due execution and publication of this will, one of the witnesses (Mrs. Collins) is positive that the decedent had not signed the paper when the witnesses signed.it, and her testimony shows that there was no such publication of the will as the statute requires ; that what was done by the deceased was that she produced the paper and requested it to be signed by the two ladies present, which .they did, and which was done under conditions that did not exhibit the deliberate and serious intent of disposing of her property by will, but rather to the contrary.

The surrogate found the due execution and publication of the instrument, as against the affirmative evidence of the witness Collins, upon the evidence of the other witness (Miss Bostwick) alone. Giving her testimony the most liberal construction possible in favor of the will, it comes far short, in view of the other evidence in tho case, of showing the due execution or publication of the will by the decedent; but Miss Bostwiclc is obliged to confess that before she had met with the proponent or her counsel after the deatli of Mrs. Barber, she (the witness) made declarations which, if true, prevent the probate of this instrument, and her recollection of the events connected with the execution and publication of this paper is seriously discredited by her declaration made when the subject was first called to her attention by Mr. Teller, the contestant’s counsel, and by her uncle, Theodore Pomeroy.

It is true that a will may be established by the testimony of one of the subscribing witnesses, but in the cases where this has been permitted the testimony of such witness has usually been supported by an attestation clause setting forth the performance of all the statutory requirements as to publication, signed by the witnesses, and the circumstances surrounding the execution and publication of the will, and the reasonableness of the will, and' the justice of its distribution of the property among the natural objects of the testator’s bounty, or other persuasive facts and conditions have been before the courts to sustain the solitary witness on whose testimony the probate is made. Here, in the case before us, in addition to the manifest incompleteness of the will, one of the two sisters of the deceased is disinherited by a cancellation, and the leading circumstances of the case go to sustain the evidence of Mrs. Collins and her version of the affair as against that of the other witness who is solely credited by the surrogate.

These views lead to the conclusion that the decree of the surrogate should be reversed, with costs in favor of the appellant and respondent, to be paid out of the estate of the deceased, and the proceedings should be remitted to the surrogate of Cayuga county.

Lewis, Bradley and Adams, JJ., concurred.

Decree of the Surrogate’s Court of Cayuga county reversed, with costs to the appellant and respondent payable out of the estate, and the proceedings remitted to the Surrogate’s Court of that county.