text:
    Henrietta L. Butler, as Residuary Legatee under tbe Last Will and Testament of Jane G. Campbell, Deceased, Plaintiff, v. The Trustees of the Parochial Fund of the Protestant Episcopal Church in the Diocese of Western New York, Defendant.

      Trust — uncertain beneficiary — parochial fund, to be used, under chapter 59 of 1863 and chapter 144 of 1885, in support of parishes, contemplates a legal body as a beneficiary — statutory construction — chap. 701, Laws 1893, is not retroactive.

    The will of one Jane G. Campbell, among other things, bequeathed to her niece, Henrietta L. Butler, the sum of $15,000, in trust, to invest and to use the proceeds thereof to support a clergyman who should hold divine services in the Lawrence Memorial Chapel at Cayuta lake as often as might be convenient, and for such other purposes in keeping up church services as Henrietta L. Butler might think advisable, and at her death the sum was to be paid to the trustees of the Parochial Fund of the Protestant Episcopal Church in the Diocese of "Western New York,to bo held by them and the income thereof to be used for paying a clerygyman who should hold divine services in the said memorial chapel as often as convenient, and also for the purpose of keeping it in repair, as well as its cemetery adjacent. It appeared that this chapel was a private enterprise, unincorporated, and was not connected in any manner with any church or religious association or corporation of any kind; that the cemetery was also private property and that any services that had been conducted in the memorial chapel had been paid for by the Lawrence family out of its own funds.

      Held, that the trust created for the life of Henrietta L. Butler was void because it did not name a definite or ascertainable beneficiary, there being in existence no person, corporation or clergyman who could enforce the trust;
    That the trust attempted to be created, after the death of Henrietta L. Butler, in the trustees of the Parochial Fund of the Protestant Episcopal Church in the Diocese of Western New .York was not one which that corporation could take under the statute incorporating it, since the act of incorporation (Chap. 59 of the Laws of 1863, as amended by chap. 144 of the Laws of 1885), authorizing the trustees of the parochial fund in question to take by bequest and to hold property “ for clerical.support or parsonage aid in particular parishes, * * * for the benefit and interest of any parish in said diocese,” contemplated an ox-ganized body, having legal existence; and the language of the will in question did not specify any particular pax'ish or any organized body which should receive the income;
    That chapter 701 of the Laws of 1893, px-oviding that no bequest “shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiai'ies thereuxxder in the instrument creating the same,” had no retroactive force and did not apply to a case where the property-had, by the death of the testatrix, vested before the statute went into effect.

      Submission of a controversy upon an agreed, statement of facts, pursuant to section 1279 of the Code of Civil Procedure.

      M. J. SwiderUn, for the plaintiff.

      A. P. Hose, for the defendant.
   Hardin, P. J.:

Jane G-. Campbell died on the 19th day of January, 1891, being a resident of the town of Catherine, Schuyler county. She left her last will and testament which bears date the 27th day of June, 1889. The will was admited to probate on the 12th of March, 1891, by the surrogate of Schuyler county, and letters testamentary were issued to George H. Butler and to the plaintiff, who were the persons named in the will as executors and who have qualified as such. The surrogate gave a construction to a portion of the will and his decision was brought before us and was reversed by us “ on the ground that the question as to the validity of the trust was not properly before the surrogate.” (See 88 Hun, 371.)

Subsequent to our decision, and in September, 1895, this submission was agreed to by the parties. According to the language of the submission we are asked to decide, viz.: Whether or not the following clause contained in the last will and testament of Jane G. Campbell, deceased, constitutes a legal and valid trust, viz.: Item: I give and bequeath to my niece, Henrietta L. Butler, the sum of fifteen thousand dollars, in trust nevertheless, said sum to be invested by her as she may think best, and the proceeds thereof to be used for the support of a clergyman, who shall hold divine services in the Lawrence Memorial Chapel at Cayuta lake as often as may be convenient, and for such other purposes in keeping up the church services as she may think advisable, and at the death of the said Henrietta L. Butler, the said sum of fifteen thousand dollars shall be paid to the trustees of the Parochial Fund of the Protestant Episcopal Church in the Diocese of Western New York, to be held by them, and the income thereof used for paying a clergyman, who shall hold divine services in the Lawrence Memorial Chapel at Cayuta lake as often as convenient, and to keep up and in good repair the said Lawrence Chapel and cemetery at Cayuta lake.” It is claimed in behalf of the plaintiff that the attempt to create á trust as to the $15,000 is invalid, and that the provisions of the will in that regard are void, and that, as she is the sole residuary legatee named in the will, she is entitled to receive the $15,000 as her own property. On the contrary, the defendant claims that a legal and valid trust is created under the will, and that the plaintiff can only hold the same subject to the provisions contained in the language used for the purpose of attempting to create a trust, and that, upon the decease of the plaintiff, the $15,000 must pass to the defendant for the uses and purposes mentioned in the will. It appears that on the 1st day of June, 1888, the testatrix was the owner in fee of a farm consisting of about 191 acres, situated in the town of Catherine, and that by her deed she conveyed the same to the plaintiff, and that the plaintiff became the owner of the same, and that upon the lands was a residence and that the lands were used and occupied as a farm. In the submission presented to us, we find that “Lawrence Memorial Chapel and the Cemetery at Cayuta lake,” mentioned in the said will, are situated on the farm of 191 acres so conveyed by the testatrix to the plaintiff. It appears that this chapel was erected a number of years prior to the death of the testatrix by contributions of the Lawrence family and its descendants “as a mortuary chapel for holding the funeral services of the family in. It is a stone structure 25 by 55 feet, and one story high, and when erected it was the intention of some of those furnishing the funds for its construction to hold nothing but funeral services of the family therein, but since its erection divine services have been held therein at times at the instigation of said Lawrence family and paid for exclusively from their own private funds.” It is further stated that the Lawrence family were Episcopalians and that funeral services of other denominations have been held in the chapel, but only by permission of the owners of the chapel as an accommodation to the neighbors. The case further states, viz.: “ There is not now, nor has there ever been, any church organization, or religious association, society or corporation of any kind connected in any way or manner with said chapel or cemetery, and there is not, nor has there ever been, any incorporation of the cemetery under the statute or in any other way. Neither has there ever been any board of trustees, managers or vestrymen, or any other religious or corporate officers of any kind connected with either the chapel or cemetery or having any interest therein or control of the same or any part thereof, but the same has always been the private property of the owner of said farm, and lias been in the possession of some one of the Lawrence family or said descendants down to the present time, the said Henrietta L. Butler, the present owner, being a niece of the said Jane G. Campbell, deceased, who was one of the Lawrence family, and both of them contributed to the erection of said chapel. Said chapel and cemetery are situated on said farm, several miles away from any village or hamlet, and divine services have only been held in said chapel when some one or more of said Lawrence family have procured and paid for the same from their own private funds.”. The plaintiff resides in the city of New York. Schuyler county is a part of the diocese of 'Western New York.

According to the language used in the will it was manifestly the intention of the testatrix that the $15,000 should be received by the plaintiff in trust and held by her during her lifetime for the purpose of gathering “ the proceeds thereof,” and she was directed to use the same for “the support of a clergyman, who shall hold divine services in the Lawrence Memorial Chapel at Cayuta lake as often as may be convenient, and for such other purposes in keeping up the church services as she may think advisable.” "We think this clause does not name a definite, ascertainable beneficiary, and that it falls within the condemnation of the authorities relating to a trust without certain beneficiaries who can claim its enforcement. (Levy v. Levy, 33 N. Y. 97; Iseman v. Myres, 26 Hun, 654; dissenting opinion of Macomber, J., in Matter of Ingersoll, 59 id. 572, which dissenting opinion was approved by the Court of Appeals, 131 N. Y. 573; Miller v. McKenzie, 95 id. 575, 576; Read v. Williams, 125 id. 560; Tilden v. Green, 130 id. 29; People v. Powers, 147 id. 115.) The validity or invalidity of the trust does not depend upon the volition of the trustee. (Holland v. Alcock, 108 N. Y. 312.) We see nothing in the language of the will which defines or names a beneficiary who could call upon the trustee named to execute the trust. Surely it cannot be claimed that the Law- ■ rence Memorial Chapel or the cemetery at Cayuta lake are beneficiaries within the meaning of the rule of law which requires some definite and certain beneficiary to be named before validity can be assigned to a provision of a will creating a trust. Nor is any definite clergyman named or mentioned who could apply to the court and compel the plaintiff during her life to execute the trust in his behalf. The property is so situated that if any itinerant clergyman should attempt to hold services in the chapel he could not do-so without the permission of the plaintiff; otherwise he would be a trespasser. Nor do we find anything in the language of the will which would authorize a party to compel her to open the chapel for the purpose of allowing such a clergyman to hold religious services therein. If there was an organized parish with wardens and vestrymen, and having corporate powers known by the name of “ Lawrence Memorial Chapel,” another question would be presented. Under the circumstances disclosed in the case submitted to us we are of the opinion that the trust must fail so far as the will attempts to create it during the lifetime of Henrietta L. Butler.

It is contended in behalf of the defendant that it was entitled to receive the $15,000 at tlie close of - her life under the provision in the will “ to be held by them, and the income therefrom used for paying a clergyman who shall hold divine services in the Lawrence Memorial Chapel at Cayuta lake as often as convenient, and to keep up and in good repair the said Lawrence chapel and cemetery at Cayuta lake.” In determining this last contention it is important to refer to the act incorporating the defendant, known as chapter 59 of the Laws of 1863, and the amendment of the 8th section thereof found in chapter 144 of the Laws of 1885. The 4th section of the act of 1863 authorizes the defendant to receive under the will such fund as shall be “ devoted in part to the assistance and support of officiating ministers of the said church, engaged in parochial duty within the said diocesethe section provides that this portion of the fund shall be called the fund for clerical support; and in part to the purchase of glebes and the erection of parsonages within the limits of organized parishes in the said diocese, in communion with the said church, and which shall be called fund for parsonage aid.’ ” In the 6th section of the act provision is made for the distribution of such funds, and in prescribing the manner of distribution it is inquired that application shall be in writing, signed either by the minister or by order of the vestry of the parish, and shall state the facts essential to a full understanding of the necessity of the case, and particularly the amounts already contributed or secured toward the support of the minister, or for the erection of a parsonage, as the case may be.” This language seems to apply to an organized body having legal existence. In the case before us we find no such organization, no such incorporation, and, therefore, no application could be made, signed by the minister or by order of the vestry of the parish. In the 8th section, as amended by the act of 1885, power is given to receive by bequest and hold, “ for clerical support or parsonage aid in particular parishes, * * * for the benefit and interest of any parish in said diocese.” If we turn to the language of the will we find that it does-not specify any particular parish or any organized body that is to receive the income that may arise upon the $15,000 ; and we are of the opinion that the purposes mentioned in the will are not the purposes which are mentioned in the 8th section of the act under which the defendants are incorporated. The language of the will does not carry the idea that the testatrix intended to apply her bounty “ to the whole or any one or more of the various purposes-for which” the defendant was authorized to hold property. (Bird v. Merklee, 144 N. Y. 550.)

Subsequent to the execution of the will the Legislature passed chapter 701 of the Laws of 1893, providing that no bequest “ shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same.” It is contended that that act enables the defendant to receive the moneys mentioned in the will under consideration. As already stated, the will bears date the 27th of June, 1889, and the testatrix died on the 19th day of January, 1891. We are not inclined to hold that the statute is retroactive in its provisions, and are of the opinion that the statute has no application to the case in hand. In alluding to that statute in Dammert v. Osborn (140 N. Y. 43) it was assumed that the statute could not apply to a case where the property had vested before its enactment. In the will before us we find a provision as follows: All the rest and residue of my property, "both real and personal, of every description, I give, devise and bequeath to my niece, Henrietta L. Butler, and constitute her my residuary legatee, and should any legacy or devise herein lapse, or be held by any competent court to be invalid, then the part of my estate included therein shall go to my said niece, Henrietta L. Butler, the residuary legatee and devisee of all my property.” We are of the opinion that under this provision of the will Henrietta L. Butler, at the death of the testatrix, became entitled to receive the $15,000, inasmuch as we are of the opinion that the trust attempted to be created in the clause, to which we have given attention, was invalid. We, therefore, reach the conclusion in this case that judgment should be ordered in favor of the plaintiff, declaring that the plaintiff is entitled to the $15,000, and that the clause contained in the will does not constitute a legal and valid trust. We think judgment should be ordered in favor of the plaintiff.

Hnder the circumstances of this case we think it is proper to award costs to both parties out of the fund. (Dammert v. Osborn, 140 N. Y. 48.)

Merwin and Parker, JJ., concurred.

Judgment ordered in favor of the plaintiff, with costs to both parties, payable out of the fund.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    Olney L. Stiles, as Administrator, with the Will Annexed, etc., of Mary L. Stiles, Deceased, Respondent, v. John Benjamin, Appellant.

      Contract — to assign a bond and mortgage as security for advances — measure of damages far a breach, thereof — an obligation of the vendor to assign the bond and, mortgage to another party is no defense.

    In an action brought to recover damages for the breach of a contract to assign a bond and mortgage, it appeared that Mary L. Chase, subsequently Mary L. Stiles, now deceased, advanced to the defendant about §2,800 upon the faith of a bond and mortgage held by him against Francis E. UfCord for §4,700; that the advances were made under an agreement that when the advances of Mrs. Chase should equal the full amount of the bond and mortgage the defendant would assign them to her unpaid and unsatisfied, to the end that she might hold them as security for her advances.
    The defendant subsequently assigned the bond and mortgage to one Cook, who was assignee of an interest amounting to $1,000 in the bond and mortgage claimed by Cumming & Taylor, attorneys, who acted as such in a litigation affecting the real estate described in the mortgage, and Cook, as owner of all these interests, commenced an action to foreclose the mortgage.
    A tender was made on behalf of Mrs. Chase of the balance due upon the mortgage beyond her advances, and at the same time an assignment of the bond and mortgage was demanded of the defendant, which was refused.
    Held, that there was a breach of the promise to make the assignment which entitled the legal representative of Mrs. Chase to recover damages;
    That the measure of damages was the amount of money which Mrs. Chase had advanced and paid upon the contract;
    That the circumstance that Mrs. Chase might have liad some information, that the defendant was under some stringent obligation to assign the bond and mortgage or some interest therein to Taylor & Cumming, was not sufficient to defeat the present action.
    Appeal by. tlie defendant, John Benjamin, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in the office of the clerk of the county of Broome on the 31st day of December, 1891, upon the decision of the court rendered after a trial at the Broome Circuit before the court without a jury.

      More <& Scott, for the appellant.

      W. <& G. W. Youmans, for the respondent.
   Hardin, P. J.:

July 21, 1886, Frances E. Ufford executed and delivered to the defendant her bond and mortgage as collateral thereto to secure the sum of $1,700 upon property described in the mortgage situated in the village of Deposit. On the 17th of August, 1887, plaintiff’s testatrix, then bearing the name of Mary L. Chase, entered into a negotiation with the defendant in respect to the said mortgage, and on that day she advanced to him the sum of $1,500, and took from him a written instrument in the following language :

“ Deceived from Mary L. Chase one thousand five hundred dollars as a payment on bond and mortgage from Mrs. F. E. Ufford to me of four thousand seven hundred dollars to be received and applied by me thereon as between me and said Mrs. Chase. In order to protect Mrs. Mary L. Chase for any payments she now makes or may hereafter make, I agree when the money received by me shall amount to the full amount payable by said bond and mortgage, principal and interest, at the request of said Mary L. Chase and payment by her of all expenses, to transfer and assign to lier the said bond and mortgage unsatisfied as to all payments made by her, to enable her ,to hold the same as a security for the money,so advanced by her. The intent and understanding being that as between us the payment shall be absolute, Mrs. Chase having no rights except the right above provided of assignment on payment to and receipt by me of the whole amount.

“ Dated, August 17,1887. JOHN BENJAMIN.”

Subsequently payments were made on July 24, 1888, $500 ; July 23, 1889, $500 ; May 26, 1890, $100; October 27, 1891, $200; and September 4, 1893, $10.

Mary Stiles, née Chase, died, leaving a last will and testament, which wras admitted to probate, and the executor therein named having died,-the plaintiff was appointed and qualified as administrator with the will annexed, in February, 1894. It is alleged in the complaint that in March, 1894, the plaintiff tendered to the defendant the amount remaining unadvanced upon said mortgage, and demanded that the defendant execute to him an assignment of the bond and mortgage “ in pursuance of the agreement; ” and it is alleged that the defendant neglected and refused to execute the said assignment; and it is alleged in the complaint that thereafter the defendant, sqld, assigned,' transferred and .delivered the bond and mortgage to one Cook, who became the owner and holder thereof, and who commenced an action to foreclose the same. Defendant in his answer admits the execution of the agreement substantially as set out in the complaint, and he also admits that he, before the commencement of this action, sold, assigned, transferred and delivered to David B. Cook said bond and mortgage by an instrument in writing conveying his interest therein; and he shows upon information and belief that the interest of said Gumming and Taylor in said bond and mortgage was also assigned to said Cook.” It appears by the evidence that the bond and mortgage had their origin at the time of concluding a litigation theretofore existing affecting the real estate described in the mortgage, and that the conveyance made by the defendant to Ufford was apparently in consideration of $3,700, and a mortgage was taken back to cover the agreement providing that “ one thousand dollars is added to the purchase price of the property ” to satisfy the claims of Taylor and Gumming, who had acted as counsel in the litigation, and in that agreement settling the law suit it was expressly agreed that the defendant should have $3,700 in a bond and mortgage, and that- “ the same shall be paid from the first payments made thereon.” Taylor assigned his interest in the mortgage to Oook on the 4th of January, 1894, and Gumming assigned his interest in the mortgage to Oook by an instrument bearing date July 28, 1886. When the defendant received the payment of July 24, 1888, he executed another instrument containing similar language to that found in the instrument of August 17, 1887, and when he received the .payment of $500 in July, 1889, he executed another instrument containing similar language, mutatis mutcmdis. Upon the trial it was conceded that the total amount of advances made by the testatrix amounted to $2,800. According to the evidence given on the trial, the plaintiff had an interview with the defendant on the 27th of January, 1894, as to paying the balance of money and taking an assignment of the mortgage. The plaintiff states that interview in the following words: “ The morning of the 27th of January, 1894, Mr. Benjamin said, ‘ I have got to assign that mortgage to Oook,’ and I said, ‘ What is the reason we can’t raise the' money ? ’ and I said, ‘We can raise the money in twenty-four hours, the whole $4,700.’ He said, ‘I can’t sell it to you,’ and went out; he went off and said he couldn’t sell it to us. . One time before that he agreed to sell it to me. * * * He afterwards declined to transfer the mortgage to me and said he had got to assign it to Oook, and did assign it to Oook.” . The defendant, as a witness, disputes the tender, and states there was some conversation looking to his foreclosing the mortgage and bidding the property in to protect the interest of the estate represented by the plaintiff. The court has resolved the conflict in the evidence in that regard in favor of the plaintiff, and we see no occasion, upon looking into all the circumstances disclosed by the evidence, to question the propriety of the findings made, favorable to the plaintiff, after applying the rule which has so frequently been applied where the evidence is conflicting. (See Smith v. McCluskey, 45 Barb. 610.)

On the 3d day of February, 1894, the defendant assigned, by a written instrument bearing that date, the bond and mortgage “ for a good and valuable consideration to him in hand paid. * * * Bearing date the 21st day of July, 1886, made by Frances E. Ufford to me, said John Benjamin, to secure the payment of the sum of $4,700.” That assignment was acknoAvledged, and under it Cook acquired possession and claimed to own the mortgage and commenced an action to foreclose the same. "We think the agreements made by the defendant with Mrs. Olíase were to the effect that the defendant would sell to her the bond and mortgage. The agreement made by him was broken. The excuse the defendant gave for breaking the contract was “ that there was a contract made ” to the effect that he would' assign the mortgage to Cook. We think the excuse is entirely insufficient. The defendant when he agreed with the testatrix to give to her an assignment of the bond and mortgage, and received her money in pursuance of the arrangement that he should transfer and sell the mortgage to her, became liable to carry out his contract, and it was his fault that he did not put a condition or qualification in the agreement, if one was needed, that in the event that he should not be required to assign it to Cook, he would assign it to her. lie made an undertaking that for the money he would assign to her the bond and mortgage. He failed to do so. Her estate has suffered damages by reason of his failure, to the extent of the amount of moneys which ¿he had paid upon the contract which he now fails to fulfill, and whether the action be regarded as one for breach of contract and damages in consequence thereof to the extent of the money which she has paid, or whether it be regarded as an action for money had and received because of the failure of the party to perform his agreement, the rule of damages adopted by the trial judge is right. (Smith v. McCluskey, 45 Barb. 615.) In that case Bookes, J., said: There is no doubt but that the defendants had a right of action for the money paid by them on the contract. The contract had not been fulfilled. The party with whom they contracted had not performed his part of the agreement, and they had a 'right of action to recover their damages by reason of such omission. Their damages, too, were the sums of money they had paid on the contract. * * * Such money could be recovered back in an action for a breach of the agreement.” (Tompkins v. Dudley, 25 N. Y. 272; Ward v. H. R. B. Co., 125 id. 230, 236; Stewart v. Stone, 127 id. 500, 507.) Undoubtedly an action- for money had and received is to be disposed of upon equitable grounds. (Otis v. Crouch, 89 Hun, 548, 551.) Applying the rule that is applicable to such an action, we are of the opinion that in equity and in good conscience the defendant “ought not to retain the money” which ex cequo et bono belongs to the plaintiff. Nor do we think the circumstances that the plaintiff’s testatrix may have had some information that the defendant was under some stringent obligation to assign the bond and mortgage to Taylor and Gumming, or some interest therein, was sufficient to defeat this action. The defendant deliberately put it out of his power to comply with his agreement made with the testatrix, and, having done so, he ought to return the money which he received from the testatrix, advanced in the faith that she was to have an assignment therefor of the bond and mortgage in question. We are satisfied with the views given by the trial judge in determining the case at the Circuit, and we are of the opinion that his conclusion is just and equitable.

The judgment must be affirmed, with costs.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs.


text:
    Harvey Joyce, Appellant, v. The Rome, Watertown and Ogdensburg Railroad Company, Respondent.

      Negligence — inspection of cars — conclusions — rules of a railroad corporation — duty of the appellate court to review facts.

    Where an action is brought by an employee oí a railroad company to recover damages for injuries resulting from the alleged negligence of the defendant in using upon a car an unfit drawhead, it is proper to submit to the jury the question whether the cars had been properly inspected at the place fixed for inspection; and if the jirry finds that no such inspection was made, they may hold the defendant liable.
    The plaintiff in such an action may be asked, upon cross-examination, if he had a son in the employment of the company as a fireman who was so employed for a year after the present action was begun and whether the son had then left such employment or been discharged.
    A rule of a corporation which states that conductors will be held personally responsible for examining cars in their trains at every convenient point, especially at the water stations, and, “ with the help of their men,” must know that their cars are in a safe condition, is competent evidence for tlie defendant in such an action.

      &'enble, that a car inspector of experience may testify as to how much space there would be in a properly constructed car between the drawhead and the frame sill of the car above it or between the drawhead and the keeper strap, on either side.
    A witness should not be allowed to testify to a conclusion.
    In considering the question whether a verdict is against the weight of evidence, the appellate court should not affirm the order denying a new trial simply out of deference to the trial judge, but should exercise an independent judgment upon the facts.
    Appeal by the plaintiff, Harvey Joyce, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 8th day of November, 1894, upon the verdict of a jury rendered after a trial at the Oswego Circuit, and also from an order bearing date the 3d day of October, 1894, and entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.
    Action was brought to recover damages arising out of the alleged negligence of the defendant in causing injuries to the plaintiff which occasioned the loss of an arm while he was attempting to couple certain cars belonging to the defendant at the Richland station January 10, 1890.
    The case was before the General Term upon a former appeal, when it was said: “ The duty rested upon the defendant to cause a proper inspection of the cars before they left Oswego. There was evidence tending to show that the appliances for coupling were defective; that there was an improper play of the drawhead of from one to three inches. Whether this contributed to the injury, and whether it existed when the train left Oswego, and might by proper inspection have been discovered and remedied, were questions of fact for the jury. So was the question of contributory negligence. (See Goodrich v. N. Y. O. da II. R. R. R. Go., 116 N. Y. 398, 404; Ellis v. N. Y, L. E. c& W. R. R. Go., 95 id. 546.) We think the case should have been submitted to the jury.” (80 Hun, 601.)
    At the trial now under review the questions of fact were submitted to the jury, and its verdict was for the defendant. A motion for a new trial was made on the minutes and denied. Plaintiff appeals from the judgment and order.

      J. W. Shea, for the appellant.

      JD. G. Griffin, for the respondent.
   Hardin, P. J.:

Following our decision made when the case was here upon a former appeal (80 Hun, 601), the trial judge submitted the leading-questions of fact to the jury. Plaintiff relied upon his testimony and the attending circumstances and incidents of the accident to show that he, on the occasion of the injury, was free from contributory negligence. The.verdict may have been rendered against the plaintiff upon that ground, as it was for the jury to determine what credence should be given to the testimony of the plaintiff, and what force should be given to the facts and circumstances disclosed relating to the occasion upon which the injuries complained of were received. (Elwood v. Western Union Tel. Co., 45 N. Y. 549; Kavanagh v. Wilson, 70 id. 177; Koehler v. Adler, 78 id. 287.) In regard to the alleged negligence of the defendant, extensive evidence was given as to the condition of the drawheads at the time the injuries were received by the plaintiff, and a question was presented for the jury to consider, whether there had been proper inspection of the cars in attempting to couple which the injuries complained of were received, made at Oswego, and if no such inspection had been made, the jury were allowed to find that the defendant had been negligent in that regard, following the doctrine laid down in Bailey v. R., W. & O. R. R. Co. (139 N. Y. 302). Yiewing the evidence most favorably to the plaintiff, it must be said that there was some ambiguity, uncertainty and indefiniteness in the evidence in regard to the condition of the drawheads and the other appliances at the time he attempted to couple the cars and received the injuries of which he-complains.

Whether the defendant had been guilty of negligence or not in leaving the drawheads or other appliances in an improper condition was for the jury to determine upon a consideration of all the evidence relating thereto produced at the trial. A very full and exhaustive charge upon the evidence was delivered by the trial judge to the jury, and the principles of law that he laid down in respect to the liability -of' the defendant to the plaintiff, a brakeman and employee of the road, were within the rules of law applicable to cases of this character, as established by the adjudged cases. (Cassidy v. McFarland, 139 N. Y. 202; Hough v. Railway Co., 100 U. S. 213; Union Pacific Railway Co. v. Daniels, 152 id. 684; Hankins v. N. Y., L. E. & W. R. R. Co., 142 N. Y. 423.) A careful’ inspection of the evidence relating to the question of the defendant’s negligence leaves upon our minds the impression that the verdict is not contrary to the evidence relating to that question, offered at the trial. The charge carefully directed the attention of the jury to all the salient features of the evidence, and we are inclined to think the charge was as favorable to the plaintiff as was warranted by the evidence.

(2) Plaintiff called as a witness one Allen Wolfe, who was a car inspector, who gave a description of the drawhead and the bumper and appliances connected therewith, used in the operation of the cars, and in the early part of his testimony plaintiff asked the witness the following question: “ Q. And in a properly constructed car, how much space would there be between the drawhead and the frame sill of the car above it or the keeper strap on either side ? ” This was objected to by the defendant on the ground that it was incompetent and immaterial, and the objection was sustained on the ground that the witness was not shown to be an expert upon the question of the construction of cars. Thereupon the plaintiff excepted. Subsequently the witness stated that he liad been a car inspector for ten years, inspecting cars for defects, and he added : But not as to whether it is perfectly constructed.” Thereafter he stated: “ Sometimes a small drawhead is in a large space; in such a case we change them to make the car safe to go over the road; it is a part of our duty to detect as to the space between the drawhead and the frame sill of the car; the drawbars are square; if they fit the space one way they will another; I sometimes found in my inspection of a car that the space is considerably larger than the drawhead, and regarded that as an imperfection; * * * there hadn’t ought to be less than half an inch; that gives them a chance to work in and out, a half an inch each way, up and down and sideways; about a half an inch is what it ought to be; no more nor less; about that.” We think in the evidence which we have quoted, and in the further evidence given by the witness, the plaintiff obtained all the information which the witness possessed upon the subject involved in the question, and that no prejudicial error occurred by reason of the ruling made in respect to the question.

(3) "When the plaintiff was upon the stand, and being examined, he was asked “ if those drawheads had struck squarely upon each other, could you have made that coupling with safety?” That was objected to as calling for a conclusion. In ruling upon such objection the court observed : “ That isn’t competent to ask what might have been done if something else occurred. You have got the fact as to what did occur; showed that one shut over the other, and that let the deadwoods together.” The plaintiff thereupon took an exception. We are inclined to think that the exception presents no error. The witness subsequently was allowed to be examined quite in detail as to all the information he had upon the subject of the actual condition of the drawhead, the bumpers and other appliances connected therewith.

(4) In the testimony of the plaintiff he was asked : And with the link entering there the spring, the coiled springs upon the tail pieces would have been brought into requisition, would they into resistance ? ” That was objected to by the defendant on the ground that it was a conclusion, and that the witness had given the facts. In response thereto the court observed: “ I think that is a conclusion; we have got the facts.” Thereupon the plaintiff took an exception. We fail to see any prejudicial error in the ruling.

(5) During the cross-examination of the plaintiff it was conceded that among the rules promulgated by the defendant, and in force at the time of the accident were several, which were produced. To the introduction in evidence of those rules the plaintiff objected. The first rule read by the defendant was as follows : “ They (meaning brakemen) must load and unload freight, and will assist the conductor in inspecting the running gears of the cars at every point where the train stops to water or to pass other trains.” The next rule read by the defendant was as follows : They (conductors) will be held personally responsible for examining cars in their trains at every convenient point, especially at the water stations, and with the hel/p of their men must Tcnow their cars are in a safe condition and no wheels or brakes broken. They must report all damage done to cars while in them charge, remembering that the safety of trains greatly depend upon the watchfulness of trainmen.” The plaintiff seems to have conceded that the last-quoted rule was in force at the time of the accident, but contended, however, that it was a rule applicable only to conductors. After an inspection of the language of the rule we are inclined to think the court committed no error in receiving it in evidence in connection with the cross-examination then taking place of the plaintiff.

(6) Complaint is made by the plaintiff that he was asked if he had a son in the employ of the company, and as to how long such son had continued in the employ of the company as a fireman, and that he was in such company’s employ until the spring of 1892, something like a year after the commencement of the suit, and whether such son had quit.

We think the exceptions taken by the plaintiff do not present any error which warrants us in interfering with the verdict. The evidence which was condemned in Austin v. Carswell (67 Hun, 579), in an action brought to recover penalties against the defendant, was to the effect “ that she had been taken to Sandy Hill and fined $100.” We think the case differs essentially from this one>a-nd does not condemn the ruling to which we have just adverted.

Nor is this case like Hutchins v. Hutchins (98 N. Y. 65), where the defendant was allowed to prove under objection that Phineas-Hutchins was supposed to be worth $15,000, while he testified that he himself was not a man of property.” We think the case does not sustain the contention of the appellant.

(7) Nor do we think it was error to allow the witness Morrell t& state the mode of inspecting cars adopted at the defendant’s yard at the west end of Oswego city.

(8) Several other exceptions are referred to in the brief of the learned counsel for the appellant to which we have given attention, and we are not persuaded that any of them present, any error requiring us to disturb the verdict. Appellant contends the verdict is against the weight of evidence, and calls our attention to Kaare v. T. S. & I. Co. (139 N. Y. 369). In that case-it was held that the General Term “ should not affirm the order simply out of deference to the trial judge, but should exercise an independent judgment.” Following the rule laid down in that case we are of the opinion tliat the verdict is not against the weight of evidence.

We see nothing in Matter of Patterson (79 Hun. 374) which supports the contention of the appellant.

The foregoing views lead us to sustain the verdict and the order denying tlie motion for a new trial.

The judgment and order must be affirmed, with costs.

Martin and Merwin, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    The Cortland Howe Ventilating Stove Company, Respondent, v. Hezekiah Howe and Others, Appellants, Impleaded with Charles H. Duell, as Administrator, etc., of R. Holland Duell, Deceased, and Others.

      Goniract — reformation —proof of the value ofapatent — fraud, proof that representations were relied upon — amendment of a complaint on appeal.

    Where an action is brought to reform a contract, and the oral evidence, the resolutions passed by the plaintiff’s trustees and the record in its books furnish clear evidence that the written contract does not contain the actual agreement which was entered into between the parties, a case is made for a reformation thereof. A witness who is familiar with stoves, their manufacture and sale, may state the value of a patent relating- to stoves.
    Where, in an action brought to reform a contract, providing for the sale of a certain patent, there are allegations of fraud, a witness for the vendee may state that, in purchasing the patent and in making the contract relative to it, lie relied upon and believed the representations of the vendors made with reference to the patent.

      Semble, that an appellate court may, on an appeal to that court, allow an amendment of a complaint in a proper case.
    Appeal by tlie defendants, Hezekiaii Howe and others, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 27th day of May, 1892, upon the report of a referee.
    This action was brought to obtain the' reformation of a certain contract entered into between the plaintiff and the defendant Howe so that the same should express what was alleged to be the actual agreement between the parties.
    The judgment in the action reformed the contract set out in the complaint so as to conform to the agreement of the parties “ by so altering, correcting and reforming the same * * * as that it shall read, state and provide that the royalties of one dollar on each stove made, or caused to be made, by said plaintiff to the number of 75,000, to be paid by the said corporation, the plaintiff, to the said Howes, their heirs or assigns, or to such person or persons as they may direct, shall be payable only upon stoves made, or caused to be made, by said corporation, the plaintiff, under the letters patent of the United States, issued to said Ilezekiali Howe under date of September 25,” 1883, and numbered 285,485, instead of upon all stoves made, or caused to be made, by said plaintiff,” and for costs of the action.

      Smith c6 Dicl&inson,, for the appellants.

      J3. T. Wright and O. Ü. Kellogg, for the respondent.
   Hardin, P. J.:

Voluminous appeal books are presented to us containing evidence which satisfactorily sustains the findings of fact made by the referee.

In July, 1887, the defendants Howe were the owners of certain letters patent described in the complaint. By their efforts, in connection with other persons, the plaintiff was organized under the Manufacturing Act of 1848, and a certificate was signed and filed, and Caleb B. Hitchcock was elected president, and Prank W. Collins was1 elected secretary and treasurer. The amount of the capital stock was $180,000. In August, 1887, an oral agreement was made between the defendants Howe on the one part and the corporation on the other, whereby the Howes agreed to sell and transfer to the corporation all their right, title and interest in the'said letters patent and in certain inventions, patterns, castings, designs, cuts and drawings, and all their right, title and interest in and to a certain contract in writing between the Howes on the one part and the Howe Ventilating Stove Company, of Pulton, on the other, and all the benefits and interests accruing to the Howes or their assigns thereunder subsequent to July 6, 1887, and the plaintiff corporation agreed to purchase the .same and to pay the Howes therefor the sum of $150,000 in the capital stock of said corporation to be issued and delivered to them, and in royalties at the rate of one dollar for each and every stove manufactured by said company, or caused to be manufactured by it under said letters patent, up to the number of 75,000.

At a meeting of the trustees of the corporation held on the 1st of August, 1887, the defendant Benedict, who had been employed by one or both of the parties to the said oral agreement, to reduce the same to writing, read his draft of the same in which it was stated that the royalties to be paid by the company “ to the said Howes shall be at tlie rate of $1.00 per stove on all stoves made by the said company at its works in Cortland or caused by it to be made elsewhere.” It was then stated at the said meeting that the proposed contract was not in accordance with the terms of the agreement of the parties, and thereupon resolutions were written out and adopted at the meeting and were afterwards entered by the secretary in the records of the proceedings of the meeting.

The resolutions were as follows: “ On motion of Mr. William Howe, Resolved, That the contract with the Messrs. Howe Brothers and tlieir wives for the transfer of their patent, etc., to this company be rewritten so as to show cjlearly the original intention and agreement, viz.: That the company are to issue to said Messrs. Howe and their wives, in consideration of such transfer, $150,000 of the stock of this company and pay them a royalty of one dollar on each stove made or caused to be made by this company under such patents up to tlie number of 75,000, preserving other features of the agreement.” “ On motion of Mr. Clark, Resolved, That Mr. Benedict be authorized to superintend the preparation of the contract with Messrs. Howe and their wives, and the signing of the same, and the issue of the stock pursuant to the same]”

When these resolutions were adopted there were present at the meeting Hitchcock, Rickard, IT. ITowe, William Howe, William II. Clark, Theodore Stevenson, E. W. Collins and B. A. Benedict. It is found by the referee, “Each of tlie foregoing resolutions was deliberately considered, fully understood by the persons present at said meeting and was adopted without dissent.” Yery soon after the adoption of such resolutions Mr. Benedict drew duplicate copies of what purported to be the agreement between the defendants Ilowe and the corporation, expressing therein, however, that the royalty of one dollar per stove was to be paid on all stoves made or caused to be made by the plaintiff, instead of upon all stoves made or caused to be made by the plaintiff under the Howe patent, as was agreed. Thereupon the duplicates which constitute the contract as set forth in the complaint were executed by Hitchcock on behalf of the corporation, and by the defendants Howe, and it is found that Hitchcock and the Howes, in executing the said duplicates,' “ acted with full knowledge that the said duplicates were drawn, as above stated, and that, in that respect they did not conform to the agreement of the parties, and the direction contained in the said resolutions adopted at the meeting of August first, and also with the purpose and design of furthering the interests which said Duell & Benedict and. Hitchcock, respectively, had under their said agreements with the Howes in respect to said royalties, and with the intent of defrauding the said company in that respect.”

It is also found by the referee that The defendant Hitchcock, in executing said duplicates, as president of said company, acted without authority, and in disregard and violation of tlie express direc-' tion of said company and its trustees, as was well known to the said Howes.”

Other formal facts are found by the referee, and he then found as conclusion of law that “ The plaintiff is entitled to a judgment reforming said contract (a copy of which, Exhibit A, is attached to the complaint herein) so as to conform to the true agreement of the parties, to wit, by so altering it as that it shall provide that the royalties of one dollar on each stove to the number of 75,000, to be paid by the said corporation to the said Howes, shall be upon the stoves made or caused to be made by said corporation under the said Ilowe patent, instead of upon all stoves made or caused to be made by said corporation.”

Inasmuch as the plaintiff was not organized for the purpose of manufacturing stoves under the Ilowe patent exclusively, it is not very probable that there was any occasion for its entering into an agreement to pay royalties on stoves not manufactured under the Howe patent. The oral evidence and the original resolutions and the record of the books of the company furnish clear and' satisfactory evidence that the instrument in question did not contain the actual agreement entered into between the parties. We think the evidence is sufficient under the somewhat stringent rules in respect to proofs to be given in an action for the reformation of a contract. The rule to be applied in a case where the reformation of a contract is sought is stated in Born v. Schrenkeisen (110 N. Y. 59), and in Devereux v. Sun Fire Office (51 Hun, 147). (See Southard v. Curley, 134 N. Y. 148.)

Our attention is invited by the appellants to the case of The Allison Brothers' Company v. Allison (63 N. Y. St. Repr. 1). Upon careful attention being given to that case it is not apparent that the testimony offered there was as strong or as satisfactory as the evidence found in the appeal book before us. We are unable to see that that case contains any rule of law or of evidence that requires us to interfere with the findings of fact made by the referee. Some criticism is made by the appellants upon the complaint. In looking into it we find that it states very fully and clearly the facts which were important to form the basis for the relief granted by the referee. Under all the proofs before the referee, and now presented to this court upon the essential features of the case, if an amendment of the complaint was required, there is authority for saying it might now be made.

In Born v. Schrenkeisen (110 N. Y. 59), hear the close of thq opinion, it was said : “ The elements for a reformation all existed in the record, and the judgment may now be so modified as to grant a reformation. It is clear that the case was tried upon the assumption by both parties that if the defendants proved the facts alleged in their answer, they were entitled either to a dismissal of the complaint or to a reformation of the written agreement.” In that case a judgment was allowed “ to reform the agreement in accordance with the findings of fact.”

(2) Complaint is made by the appellants of a ruling wliich allowed in evidence a certified copy of letters patent issued to one Eugene L. Messenger in November, 1886. Before such letters were offered considerable evidence had been given upon the question of alleged fraudulent acts in respect to the reformation of the plaintiff in which some of the defendants are alleged to have participated. The referee when receiving the evidence observed: “ The evidence is admissible; its effect to be considered afterwards upon the issue of fraud.” We think the exception taken to the ruling does not present any error which requires us to interfere with the decision of the referee.

Frank W. Collins, the secretary and treasurer of the plaintiff, was called as a witness, and, after giving testimony showing his familiarity with stoves and the manufacture thereof and the sale of them, he was allowed to state what was the value of the Howe patent, against the objection and exception of the appellants. We think the witness was sufficiently familiar with the subject-matter involved in the question to render his evidence competent. The force and effect to be given thereto were for the referee to determine after all the facts disclosed by him were considered. We think the exception does not present error. Nor do we think it was error to allow the witness Clark to state that in purchasing the Howe patent, and in making the contract, he relied upon and believed the representations of the ITowes with reference to the patent.

It seems that before this action was brought the Ilowes brought an action against the plaintiff upon a written contract, and the corporation appeared and interposed a demand for reformation of the contract, and as the case was approaching trial an application vras made to discontinue that action. Objection being made to that discontinuance, as a counterclaim asking for reformation of the contract had been set up, and in response to that objection proof was made that the plaintiffs in that action were prosecuting one against the trustees of the corporation and to recover royalties claimed to be due mrder the contract. The defendants in that action then insisted that the question as to the reformation of the contract ought to be first determined before the action for recovery of royalties should be tried, and it seems to have been agreed that the question as to whether the written contract did or did not correctly state the agreement made between the parties should be determined in an action brought for that purpose, and thereupon it was agreed that this action should be brought and that it should be referred, with the action for royalties, to the same referee, and that the question as to the reformation of the contract should be first determined. In the order entered at Special Term the 21st of April, 1890, it was provided that upon the action “ to reform said contract being brought ” that the action for royalties should be tried before the same referee^ and that the referee shall first determine the issues for the reformation of said contract before determining the other issues in said action.” During the trial the referee seems to have doubted his power to authorize an amendment of the complaint. Upon the pleadings as they were, and upon the proofs as given, and under the arrangement entered into by the parties in respect to the trial of the question as to the reformation of the agreement mentioned above, we are of the opinion that the denial of the motion to amend the complaint did not work any harm to either of the parties. (Christopher & Tenth St. R. R. Co. v. Twenty-third St. R. R. Co., 78 Hun, 472.)

We are of the opinion that the appellants’ learned counsel is in error when he supposes the court had made “ a new contract for the parties.” On the contrary, upon the evidence entirely satisfactory to the referee, and which meets with our approval, the decision of the referee is such as that it conforms the written contract to the actual agreement entered into between the plaintiffs and the appellants according to well-settled rules of - equity. (Pitcher v. Hennessey, 48 N. Y. 415; Born v. Schrenkeisen, 110 id. 55; Devereux v. Sun Fire Office, 51 Hun, 153.)

The judgment must be affirmed, with costs against the appellant^.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs against the appellants.


text:
    Truman K. Fuller, Respondent, v. Margaret Tolman, Appellant.

      Services of an attorney — proof of their value — elements of value — hypothetical questions — order of proof.

    Where an attorney sues to recover for his services it is sufficient for him to prove the proceedings in the cause, the time occupied in the performance of any part of such services by which their value was enhanced, and the value of the whole or the value in detail, as he may elect.
    The referee, in reaching a conclusion as to the value of such services, may consider their nature, the standing of the attorney in his profeásion, the amount involved, the importance of the case to the client and his pecuniary ability.

      Hypothetical questions as to the value of such services may be put to attorneys, but they must be based upon the proofs in the case and must not go outside of the facts as to which some evidence has been given, and which could be assumed possibly to be truth.
    Hypothetical questions may be put to an attorney, relative to the value of legal services, although they involve facts not proved, where, by arrangement of counsel, these facts were to be, and subsequently were, supplied.
    Appeal by the defendant, Margaret Tolman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 19th day of December, 1894, upon the report of a referee.
    This action was brought to recover the rralue of the plaintiff’s services as attorney and counselor rendered to the defendant. Henry B. Tolman, the defendant’s husband, died on the 12th of December, 1889, leaving a last will and testament whereby he devised and bequeathed all his property, both real and personal, to her and nominated her as executrix of the will. At the time of his death he was the owner of real estate consisting of a farm containing about 200 acres situated in the town of Lafayette, upon which he had spent the most of 1ns life, and about 4T1/T acres of land in the city of Syracuse.
    The referee found that the fair market value of the real estate of such testator at the time of his decease was $13,500 ; and he also found that there was about $200 worth of personal property and debts amounting to about $2,500 against the estate. He also found that the plaintiff is an attorney and counselor, and has been engaged in the practice of his profession for twenty-five years in the county of Onondaga, and that on the 16th of December, 1889, a petition was presented in behalf of the defendant to the surrogate of Onondaga county for the probate of her husband’s will; that through James ~W. Tolman, a brother of the deceased, she employed the plaintiff to attend to the procuring of the probate of the will; that on the return day of the citation' a son of the deceased appeared with counsel and filed objections to the probate of the will in substance as follows :
    1. That the paper presented was not the will of the deceased, and that its execution was not his free and voluntary act.
    2. That the paper purporting to be such will was procured to be executed through undue influence.

      3. Tliat said paper was not subscribed, published and executed according to the statute.
    4. That the paper was invalid as a will.
    5. That the execution of said paper was procured by fraud, deceit and undue influence on the part of the devisee named in the will.
    Evidence was taken under the petition and objections and the will was admitted to probate by a decree of the surrogate.
    The referee found that “ the plaintiff was necessarily in the Surrogate’s Court during the pendency of said proceedings engaged in the case on seven different days, but all of the time of those days was not actually spent in court on said matter.” The referee also found that, “ before the said will had been admitted to probate and about April 1, 1890, the said contestant commenced an action in the Supreme Court for the purpose of determining the validity of said will, alleging substantially the same grounds as were contained in the objections filed in Surrogate’s Court, making the said widow and the next of kin parties defendant.”
    The appellant here retained the plaintiff here to defend the action, and he drew and served her answer to the complaint. The issues involved in the action were settled at a Special Term, held September S, 1890, and the cause wras put upon the Circuit calendar for October 6, 1890, and when it was reached it was moved for trial; “ no one appearing for plaintiff therein, the complaint was dismissed and a judgment of dismissal and for costs were entered.”
    The referee found, viz.-: “ The plaintiff herein prepared comprehensive and exhaustive briefs upon the questions involved in both Surrogate’s Court and the Supreme Court, and made careful preparation for trial in each court, and was ready for trial when the case was reached.
    “ The plaintiff devoted ten days in court and forty-five days out of court to the said causes. , The said several days in court were not wholly given to that work, but were set apart for that purpose by the plaintiff and some part of each day given to it.
    “ The result of the litigation was favorable to the devisee in the will, this defendant, and the value of plaintiff’s services in the said matters alleged in the complaint is $1,250.00.”
    He also found that a bill was rendered by the plaintiff to the defendant, about the 16th of December, 1890, and that about the 2d of April, 1891, the plaintiff received through the mail a check of James ~W. Tolman for $300 “ for Margaret Tolman.” The check was acknowledged the same day, and a statement was made by the plaintiff “ that he would not accept $300 for his bill.” In April, 1891, the plaintiff sent another bill to the defendant, which is set out in the complaint, amounting to $1,900, giving credit for $300, leaving a balance of $1,000. No response was made to that bill, and this action was brought on August 5, 1892. The referee stated, as a conclusion of law, that the plaintiff is entitled to recover “ the value of his services rendered, to wit, $1,250, less the sum of $300 paid on the account, leaving the sum of nine hundred and fifty dollars ($950), with interest thereon from April 12, 1891;” and he stated the interest to be $209.50, and awarded a judgment for $1,159.50, with costs. Exceptions to the referee’s report were filed, and this appeal was taken from the judgment entered thereon.
    Wilson, Kellogg c6 Wells, for the appellant.

      Fuller de Glen, for the respondent.
   Hardin, P. J.:

Upon looking into the evidence we are satisfied that it sustains the finding of fact made by the referee to the effect that the plaintiff devoted ten days in court and forty-five days out of court to the service of the defendant, and that there is evidence fully sustaining the finding of the referee that the value of the services rendered by the plaintiff for the defendant was $1,250. Recognizing that this court has the power to review the evidence and to interfere with a finding of fact made by a referee, as stated in Farren v. McDonnell (71 Hun, 176) and Baird v. The Mayor (96 N. Y. 576), we have carefully considered the evidence in the light of those authorities and have reached the conclusion that we are not at liberty to say that the findings are against the weight of evidence, or that the proofs given at the trial clearly preponderated in favor of a different result from that stated by the referee; therefore, we may not disturb his findings of fact; on the contrary, we must accept the same as a fair solution of the conflicts found in the evidence which was delivered before him. (Van Epps v. Harnes, 88 Hun, 229.) The witnesses that were called to speak of the value of the real estate-left by the deceased differ very widely in tlieir estimates ‘of its value, and it seems that the referee has accepted the medium valuations given by the witnesses, thus indicating that he did not believe that the extreme value put upon it by some of the witnesses for the plaintiff, nor the meager value put upon it by some of the witnesses for the defendant was the correct one.

In Randall v. Packard (142 N. Y. 47) it was stated that several circumstances must enter into the computation or estimate of the value of the services' of an attorney and counsel, and that among them were the amount involved, the pecuniary ability of the client, and the fact that an attorney “ deserves compensation according to the reasonable worth of his services.” And it was added: “ Of that, the jury are the sole judges, and, to arrive at their value, they may consider the nature of the services rendered, the standing of the attorney in his profession for learning, skill and proficiency, the amount involved and the importance to his client of the result.”1 And in the course of the opinion from which we have already quoted it was said: “ "W liatever our opinion might still be as to the amount awarded by the jury, upon the evidence before them, we are concluded from any expression by their verdict, and, if there was no error committed upon the trial, the judgment must stand.” In the case in hand we are constrained to say that whatever our opinion might be upon reading all the evidence found in the appeal book as to the value of the services rendered by the plaintiff, and the amount of compensation which he justly should .receive therefor, the’ action of the referee forecloses our interference as to the amount of the award made to the plaintiff. There was quite an extensive conflict in the evidence, and it was eminently within the province of the referee to determine what credibility should be given to each witness speaking upon the subjects embraced in the trial, and to award such credibility to one set of witnesses or another set of witnesses; and having faithfully, as we assume, performed the functions of a referee, we are called upon to accept his conclusions upon the whole body of the evidence presented to him relating to the question of the value of the services rendered by the respondent for the appellant.

In Garfield v. Kirk (65 Barb. 464) a discussion took place over the measure of the value of an attorney’s services, and, in speaking of the proof to be given thereof, Mullin, P. J., said: “ It is enough for him to prove, in general terms, the proceedings in the cause, the time occupied in the performance of any part of the services by ■which their value was enhanced, and the value of the whole, or in detail, as he may elect.” Apparently that rule was fairly observed in the trial before the learned referee.

(2) It is claimed in behalf of the appellant that an error was committed in allowing witnesses to answer hypothetical questions which were- propounded to them. It seems that after the plaintiff had given some evidence as to the general features of the case, and as to the general circumstances attending the services which he had rendered, and after he had stated as a witness that the services which he had rendered “ were actually worth $2,500, but that is inoré than I (he) charged them in my (his) bill. They were easily worth $1,900.5-0. That is the amount of the bill I presented,” and after he had caused to bo produced certain letters which had passed between him and the defendant, his direct examination was suspended “to allow hypothetical question to be propounded to expert witnesses.” Thereupon, Mr: Andrews was called as a witness in behalf of the plaintiff, and stated that he was acquainted with the value of legal services, and then there was propounded to him in behalf of the plaintiff a hypothetical question, which had been prepared with considerable care, and evidently was intended-to embrace the facts which, while not yet fully disclosed, were expected to be disclosed by the evidence to be given by the plaintiff before resting. The hypothetical question covers over ten pages of the printed appeal book, and while it was being propounded to the witness the plaintiff’s counsel, apparently, handed a brief to the witness, accompanied with the statement that “ The brief to which I have alluded was much more voluminous than the brief which I hand to the witness.”

At the close of the hypothetical question the examining! counsel observed : “Assuming the above facts to be true, what, Mr. Andrews, do you say the services of the plaintiff were worth, in the entire proceeding and litigation ? ” Thereupon .the defendant interposed numerous objections to the question, and in response thereto the counsel for the plaintiff alluded to an agreement apparently that had been made between the counsel in respect to the time in which the hypothetical question should be propounded.' In response thereto the appellant’s counsel observed: I make this for the purpose of getting it upon the record,” apparently referring to the objection that he had stated. In response thereto the referee observed: “ What the counsel means, and as I understand, it was arranged before dinner that Mr. Fuller’s testimony would be suspended to allow the hypothetical question to be propounded to the expert witnesses, and that their cross-examination be postponed until counsel has an opportunity to cross-examine Mr. Fuller.” Some further remark was made by the counsel for the defendant, and then the referee observed: That is the arrangement between counsel. Of course, the referee is satisfied,” and apparently ruled .that the question might be answered, and the defendant took an exception.

Thereupon the question was, to some extent, modified by the counsel for the plaintiff, particularly as to the number of acres of land, and the assumption was made that the property was worth' from twenty to twenty-seven thousand ($20,000 to $27,000) dollars. Then the witness was asked, “ What do you say * * * for such services ? ” The answer given by Mr. Andrews was as follows : “ I should think $2,500 would be a fair compensation.” lie was then extensively cross-examined, and thereafter the plaintiff returned to the stand and gave further evidence in detail, and was cross-examined at great length, and thereafter Mr. Hunt was called, and the hypothetical question was repeated to him, and, against an objection thereto and an exception taken by the defendant, the witness stated in answer to the question that in his opinion the services were worth $2,500. lie was extensively examined and cross-examined, and thereupon the plaintiff was recalled, and gave further evidence in respect to the circumstances attending the rendition of the services in question, and was further cross-examined with great particularity. Subsequently Theodore E. Hancock was called as a witness to testify as to the value of the plaintiff’s services, and a hypothetical question, similar to the one propounded to Mr. Andrews was asked of the witness, and no objection seems to have been taken to the question as propounded to him. His answer was, I should say that the value of the plaintiff’s services for the entire litigation was $2,000. . Subsequently Mr. Hoyt was called as an expert, and after the hypothetical question was put to him,-it was modified in some slight’ respects, and it seems that the brief that had been prepared was put into the bauds of tbe witness. Tbe counsel for tbe defendant objected to the question in general terms, but did not specify in any particular respect wherein tbe question was erroneous. Tbe objections made by tbe defendant were overruled and an exception was taken, and tbe witness answered: “ Assuming tbe facts stated in that question to be true, I should say tbe services were worth $2,500.” Subsequently Mr. Ceylon II. Lewis was examined, and answered tbe hypothetical question against the defendant’s objection and exception, and estimated tbe value of tbe services at $2,300. Mr. Louis Marshall was called, and tbe hypothetical question was read to him, and bis estimate of tbe value of tbe services was $2,000, and thereafter Mr. Merton M. Waters, who bad acted as counsel in tbe Surrogate’s Court for tbe appellant, was called, and tbe hypothetical question was propounded to him, and after objections thereto were overruled and an exception taken, be said : “ Assuming all tbe facts detailed in tbe question my judgment is that the charges of tbe attorney for those services, exclusive of tbe counsel fee, should bo worth $1,600, and upon the subject of counsel fee it seems to me that it is a case —■ the question assumes a case • — • which would entitle tbe attorney to a counsel fee of probably $500; all this is assuming that tbe facts are as I have stated. I will base my opinion upon tbe facts stated in the question.”

Giving effect to tbe agreement that was made by tbe counsel in tbe early stage of tbe trial, that tbe hypothetical question might be propounded before all tbe evidence was given which related to tbe details embraced in tbe question, we are of tbe opinion that no error was committed in allowing tbe witnesses to answer tbe hypothetical question. Evidently tbe counsel attempted to keep within tbe rule relating to hypothetical questions, to-wit, that such questions must be based upon tbe proofs in tbe case, and must not go outside of tbe facts as to which some evidence lias been given, and which could be assumed as a possible truth. (The People v. Smiler, 125 N. Y. 717; Carpenter v. Blake, 2 Lans. 206; People v. Harris, 136 N. Y. 424; Bramble v. Hunt, 68 Hun, 204; Matter of Mason, 60 id. 46.)

(3) It is claimed an error was committed in allowing this question propounded to tbe plaintiff, viz.: Q. What did you learn to- be its (tbe real estate devised to tbe defendant) value ? ” In answer to tbe question tbe witness stated that be learned from tbe party who had charge of the matters for the defendant, and who came to him several times in relation to her business, and who was subsequently called and testified as to the bill, of his interviews with the plaintiff and as to the litigation and the features thereof generally, that the value of such real estate was $2Y,000. A motion was made to strike out the evidence, and thereupon the counsel for the plaintiff stated: “ I am willing, and ask that it be stricken out. The valuation that was given by James Tolman after the services were completed.” In response to that motion the referee said, Granted.” We think, under the circumstances, the exception is unavailing to the appellant.

(é) The referee seems to have been liberal in allowing cross-examination of the plaintiff, and we think he had the right to exercise some discretion, and that he did not commit any error in the restriction which he placed upon the cross-examination.

Some other exceptions were taken during the trial and are alluded to in the appellant’s points. They have received attention, and it is not found that any of them present such an error as warrants us in interfering with the report of the referee. We think his conclusions upon the whole evidence, to'wit, that the services of the plaintiff were worth $1,250, and that he has received $300 in payment thereon, and that he is entitled to recover the balance, with interest from the time stated in the report, should be sustained.

Merwin and Parker, JJ., concurred.

Judgment affirmed, with costs.


author: Hardin, P. d. :

text:
    The Town of Windsor, Respondent, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Appellant.

      Highway — action by a town to compel the removal of obstructions made by a railroad company — the restoration of a highway to its former state is a continuous duty — the right to enforce it is not barred by the Statute of Limitations.

    The duty imposed upon a railroad corporation, which has constructed a crossing over a highway, to restore the highway to its former state or to such a state as will not unnecessarily impair its usefulness, is a continuous one, and an action brought by a town to compel the performance of such duty cannot be barred by the Statute of Limitations.

      In an action commenced in June, 1892, in the name oí a town by the highway commissioner thereof, to enforce the rights of the public in a highway, it appeared that the highway in question had been laid out about the year 1814, and that the defendant, a railroad corporation, about the year 1871, had by the construction of au overhead crossing narrowed the highway so that the free space was only of the width of thirteen feet and two inches, while the public use required a width of twenty-five feet.

      Held, that the action was maintainable under the Highway Act of 1890 (Chap. 568), providing that an action mig'ht be brought in the name of a town against a corporation, to sustain the rights of the public in and to a highway and to enforce the performance of any duty enjoined upon a corporation in relation thereto, and that it was not necessary for the highway commissioner of the town to declare an encroachment or to institute proceedings under the statute for the removal of the encroachment;
    That the existence of the obstruction for the period of upwards of twenty years did not limit the public to the use of the space left free, and that it was a question of fact whether the needs of the public were such that the aperture left was inadequate.
    ■ Appeal by the defendant, The President, Managers and Company of the Delaware and Hudson Canal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 20th day of March, 1895, upon the report of a referee.
    From the referee’s report it appears'that the plaintiff is a town situate in the county of Broome, and that one Aubert C. Hoadley, as sole commissioner of highways of that town, on the 8th day of June, 1892, commenced this action ; that the defendant is a corporation incorporated under the laws of the State of New York, operating a railroad from Ninevah Junction, in tlfb State of New York, to Jefferson Junction, in the State of Pennsylvania, “ which railroad passes through the town of Windsor aforesaid in a northerly and southerly direction, having been constructed in or about the year 1872, and ever since used for railroad purposes; that for many'years there has existed in said town of Windsor a public highway, running from Ouaquaga in the town of Colesville, in said county, through the town of Windsor aforesaid, to and past the hamlet known as East Windsor, and said town of Windsor; that said road has been located and used for more than twenty years as a public highway prior to the construction of said railroad.”
    It was also found that the defendant constracted its railroad, and its tracks “ crossed said highway at a point west of the East Windsor Cemetery by an overcrossing. Said crossing, which was built in or about the years 1871 and 1872, consists of two stone abutments about sixteen feet long, -where they are parallel, and a wing to each abutment on either side, the wings on the east side being eleven feet in length, and the wings on the west side being sixteen feet in length, the main walls of said abutments running a distance of sixteen feet, parallel to each other, and thirteen feet two inches apart, with embankments running up to said abutments and wings upon either side, upon which abutment stringers and the track of said railroad wras laid about twelve feet from the surface of said highway below.” It is also found “ that the railroad constructed as above described materially and unnecessarily impairs the usefulness of said highway ; that no necessity exists requiring a passageway as narrow as that now maintained by the defendant, but the requirements and safety of the traveling public demand an enlargement of said passageway; that defendant did not, upon constructing its railroad across said highway, nor has it since, restored said highway to its former state, or to such a state as not to unnecessarily impair its usefulness.”
    It was also found that a passageway ■“ under said railroad of twenty-five feet would be sufficient to accommodate the travel on said highway, and an enlargement of said passageway to that width would render it sufficient to restore said highway to such a state as not to unnecessarily impair its usefulness.”
    It was also found as a conclusion of law that the railroad had a right to construct and maintain its railroad across said highway, “ but it is the duty of said company to restore said highway to its former state, or to such a state as not to unnecessarily impair the use of said highway ; that in constructing said railroad and maintaining the same the defendant did not restore said highway to its former state, or to such a state as to not unnecessarily impair its usefulness.” It was found that neither the town of Windsor “nor the commissioner of highways of that town has so far accepted or acquiesced in the action of the defendant as not to be entitled tc maintain this action.”
    Judgment was ordered and entered in accordance with the findings.

      Lewis E. Oarr, for the appellant.

      II. 8. Williams, for the respondent..
   Hardin, P. d. :

Criticism is made upon the plaintiff’s complaint. Upon looking into it we find that it contains all the essential facts found by the referee in his report, as well as some other allegations which could be construed, perhaps, to indicate that the pleader supposed the plaintiff had some right of action by reason of the “construction and encroachments ” placed’ upon the highway by the defendant, which render the highway dangerous. In the prayer, however, for judgment the plaintiff asked “ that the said defendant remove all the said obstructions, abutments, embankments, stone, iron and material from the said highway, and within its bounds, and they be declared to be an impediment and obstruction to public travel, cmd the defendant be compelled to remove each and all of said obstructions, and perpetually, as well as pending this action, it be enjoined from keep-imp or maintaining, usioig or repairing the said abutments or embankments, abutments or obstructions in .the said highway, or any obstruction within its boundsl During the progress of the trial we do not find that the defendant took specific objections to the complaint on the ground that it did not allege an imperative duty on the part of the defendant to restore the road to its former condition, or so as not to unnecessarily impair its usefulness. We think the criticism made to the complaint at this stage of the action must fail. (Wademan v. A. & S. R. R. Co., 51 N. Y. 568, 572.)

In chapter 568 of the Laws of 1890 it is provided, in section 100, that “All lands which shall-have been used by the public as a highway for the period of twenty years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway, and the commissioners of highways shall order the overseers of highways to open all such highways to the width of at least two rods.” That section fell under construction in Speir v. Town of New Utrecht (121 N. Y. 420) and in People v. Osborn (32 N. Y. Supp. 358). We think the proof in the case before ns is sufficient to indicate that the highway had been used by the public as..a highway, and that the referee upon all the evidence, coupled with tlie proof of the survey of 1814 and the order accompanying the same laying it out as a highway, was warranted in assuming that the site where the defendant’s embankments were placed was a part of the public highway. The evidence produced before the referee differs very much from the evidence disclosed in the cases to which reference has already been made.

In Barse v. Herkimer, etc., R. R. Co. (13 N. Y. St. Repr. 215) this court had occasion to examine the statute which authorized commissioners of highways “ to bring any action against any railroad corporation that may be necessary or proper to sustain the rights of the public in and to any highway in such town, and to enforce the performance of any duty enjoined upon any railroad corporation in relation to any highway in the town of which they are commissioners.” In that case it appeared that the defendant had “ failed to restore said highways to their former state of usefulness,” and we sustained the action. In the course of one of the opinions delivered in that case the distinction between an action against a private individual and one against a corporation was pointed out, and the case of Rozell et al., as Commissioners, etc., v. Andrews (103 N. Y. 150) was stated as not applying to an action against a corporation. Since that decision was made the Legislature, in the Highway Act (Chap. 568, § 15, Laws of 1890), has provided that commissioners of highways may bring an action in the name of the town “ against any person or corporation to sustain the rights of the public in and to any highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto,” etc.

In Hatch v. S. B. & N. Y. R. R. Co. (24 N. Y. St. Repr. 36) if was held that the duty imposed upon the corporation to restore a highway to its former state, or to such state as not unnecessarily to have impaired its usefulness, is a contimious one, and that the action' was not barred by any Statute of Limitations.

In the course of the opinion delivered in Post v. West Shore & Buffalo R. R. Co. (34 N. Y. St. Repr. 484; S. C., 123 N. Y. 587) it is said that while the highway commissioner cannot dictate how the work of restoration should be accomplished, that the duty imposed on a railroad company whose road is located in a highway to restore it to its former state or to such state1 as not unnecessarily to impair its usefulness, is a corporate duty which the company is bound to perform, and for any failure in its performance, in addition to other remedies, the commissioner of highways is authorized by chapter 255 of the act of 1855 to maintain an action to enforce the performance, or for damages sustained by the town from non-performance.”

Prior to the decision of that case it had been intimated in N. Y. C. &. H. R. R. R. Co. v. People (12 Hun, 195) that the remedy for failure on the part of the railroad was by indictment. That case was modified to some extent when it reached the Court of Appeals, as appears by the report thereof as found in 71 N. Y. 302, and in the course of the opinion delivered by Church, Ch. L, in considering the duty of the corporation to restore the road, he said: The duty thus imposed is an important one for the public, and it should be enforced, not oppressively, but reasonably and fairly for the public benefit.” And he added : “ It was the duty of the defendant not only to properly make these approaches, but to keep them in suitable repair. Having to this extent interfered with the highway, or, rather, having taken possession of the old highway and substituted a new and different one, they must preserve it in a state as far as practicable of original usefulness ” (citing Cott v. Lewiston R. R. Co., 36 N. Y. 214); and it was also said in that case that the duty was a continuous one.

In The People v. N. Y., N. H. & H. R. R. Co. (89 N. Y. 266) in the course of the opinion it was intimated that it was a question of fact, in a somewhat similar case, whether the defendant unnecessarily impaired the usefulness of the highway, and it was intimated that by the growth of population the first provision made might become inadequate for the public accommodation.

The doctrine last mentioned was approved in Hatch v. S. B. & N. Y. R. R. Co. (50 Hun, 64), and in the course of the opinion delivered in that ease it was said: “If, by an increase of business on highways, the facilities first provided become inadequate, the corporation must make such changes as are reasonably necessary to provide for the needs of the public.” Numerous cases are then cited. The opinion then adds: “ Whether the facilities afforded were sufficient was a question of fact for the court, and, under the evidence, its decision ought not to be disturbed by this court. The duty being a continuous one the action was not barred by any Statute of Limitations.” In order to maintain this action we think it is not necessary that the commissioners should declare an encroachment and institute proceedings given bjr the statute for the removal of an encroachment. Nor do we think the case of Cook et al., as Commissioners, etc., v. Covil (18 Hun, 288) has any application to the case in hand. We are of the opinion that the existence of the abutments for the period of upwards of twenty years did not limit the public to the right of the space, thirteen feet and two inches, between them, and that it was a question of fact, upon all the evidence before the referee, as to whether the needs of the public were such that the aperture left was inadequate to serve the same. There was some evidence given tending to show that the abutments were placed in that portion of the highway which had been used by the public prior to their erection, and we are of the opinion -that the evidence warrants a finding of fact that the public had acquired rights in the use of the highway which the defendant has interfered with.

We have looked into the exceptions taken during the progress of the trial, and also to the omission of the referee to make certain additional findings, and we are of the opinion that they do not present any error which requires us to interfere with the conclusion reached by the referee.

The judgment must be affirmed, with costs.

Martin and Merwin, JJ., concurred.

Judgment affirmed, with costs.