author: Pratt, J.: Brown, P. J.:

text:
    Samuel M. Barnett, Appellant, v. Charles Scribner and Arthur H. Scribner, Respondents.

      Order of reference —• when properly granted.

    Where it is plain from an examination of the complaint and the answer in an action that it will be necessary to examine accounts before the matters in controversy can be inquired into, an order of reference may properly be made at Circuit, after the examination of the plaintiff as a witness. (Brown, P. J., dissenting.)
    Appeal by the plaintiff, Samuel M. Barnett, from an order of the Supreme Court, made at the Kings County Circuit and entered in the office of the clerk of the county of Kings on the 7th day of June, 1892, referring the action to a referee to hear and determine the issues.
    The complaint in the action alleged:

      Second. That on or about the 9th day of January, 1883, at the city of New York, the defendants, under the said firm name, entered into a contract with this plaintiff whereby, in consideration of the time, labor and effort of this plaintiff, in selling and offering for sale the publication ‘known as Encyclopedia Britannica, which was issued and published by the said defendants, that they, the said defendants, would well and truly pay to this plaintiff the same prices as they were paying to all persons who were performing similar work for them in the sale of the said publication, to wit, the just and full sum of sixteen ‘dollars for each1 and every set of said books which should be bound in cloth; eighteen dollars for each and every set thereof bound in leather, and twenty dollars for each and every set thereof bound in the so-called half binding, which should be thereafter sold by him, said plaintiff, as his compensation for the said time, labor and effort in and about the said business, which said prices and sums should be payable only on the delivery and acceptance of six volumes in each set of the said works so sold by this plaintiff; and as a part of the said contract and in order to induce this plaintiff to enter upon and remain in the said business, the said defendants further promised and agreed that in case any of the persons giving to the plaintiff orders for said works should refuse to accept the same that then and forthwith thereafter they, the said defendants, would notify the plaintiff thereof and would give to him, said plaintiff, the name and address of the person or persons so refusing, so that this plaintiff might, thereafter endeavor to induce the person or persons so refusing to accept the said work, to continue and not to abandon his or their subscription for the same.

      Third. That the plaintiff entered upon the sale of said work and devoted a large amount of time and expended much labor and effort therein and procured and delivered to the defendants certain orders for said work which were accepted by them.
    The answer admitted:

      First. They admit that they are, and were at the times mentioned in the complaint, co-partners as alleged in the complaint, trading and doing business under the firm name of Charles Scribner’s Sons.

      Second. They admit that the plaintiff was employed by the defendants to canvass for subscriptions and orders for the publication known as the Encyclopedia Britannica, and that defendants agreed to pay him therefor, as commissions and compensation for obtaining such orders, the sum of sixteen dollars for each and every set of said books bound in cloth, eighteen dollars for each and every set of said books bound in leather, and twenty dollars for each and every set thereof bound in so-called half binding which should be thereafter obtained by him and proven by the delivery of and payment for six or more volumes each, which said prices and sums should be payable on the delivery and acceptance of said six volumes in each set of said publication on orders obtained by plaintiff. And, upon information and belief, denied each and every allegation contained in the paragraph or subdivision of said complaint numbered “ Second,” not thereinbefore specifically admitted.

      Third. They, upon information and belief, deny each and every allegation contained in the paragraph or subdivision of said complaint numbered “ Third.”

      Fourth. They, upon information and belief, deny each and every allegation contained in the paragraph or subdivision of said complaint numbered “ Fourth.” But they admit and allege, upon information and belief, that plaintiff obtained subscriptions and orders for said publication, the number and particulars whereof are hereinafter fully set forth.

      Fifth. They admit that on or about the said 20th day of August, 1884, they agreed with plaintiff that they would pay to him- for all orders thereafter taken, an increase of two dollars upon each and every order, and they deny, upon information and belief, each and every allegation of the paragraph or subdivision of said complaint numbered “ Fifth,” not hereinbefore specifically admitted.

      Sixth. They deny, upon information and belief, each and every allegation contained in the paragraph or subdivision of said complaint numbered “ Sixth.” But they admit and allege, upon information and belief, that plaintiff obtained subscriptions and orders for said publication, the number and particulars whereof are hereinafter set forth.

      Seventh. They deny, upon information and belief, each and every allegation contained in the paragraph or subdivision of said complaint numbered “ Seventh.”

      Eighth. They deny, upon information and belief, each and every allegation contained in the paragraph or subdivision of said complaint numbered “ Eighth.”

      Ni/nth. They allege, upon information and belief, that said plaintiff, under the contract hereinbefore specifically admitted and set forth, obtained orders for said publication as follows:

      36 copies thereof, bound iu cloth, at $16............... $576 00'
    47 copies thereof, bound in leather, at $18.............. . 846 00'
    30 copies thereof, bound in half binding, at $20:........ 600 00
    and subsequent to said 20th day of August, 1884, obtained orders for said publication as follows:
    19 copies thereof, bound in cloth, at $18............... $342 00
    26 copies thereof, bound in leather, at $20.............. 520 00
    17 copies thereof, bound in half binding, at $22......... 374 00
    making in all 175 orders and no more, and which, at the agreed price, amounted to the sum of $3,250. And the defendants, during the time said orders were being obtained by the plaintiff, and the deliveries made thereunder, and from time to time prior to the 1st day of August, A. D. 1886, paid and advanced to said plaintiff on account of said orders and on account of other pretended and bad orders, which said plaintiff claimed and reported that he had obtained, and which he claimed and pretended were good orders, the sum of $3,445, thereby paying said plaintiff the sum of $187 in excess of the amount of defendants’ obligation to-him under said contract. And they allege, upon information and belief, that plaintiff did not, during the.time he was so employed by defendants, nor until more than three years thereafter, and after all said orders had been proved as aforesaid, as plaintiff was informed and well knew, make any claim or demand upon defendants, or request defendants to give him the names and addresses of any parties who had declined to receive said publication, and he 'never made such request or any like request of defendants, until shortly prior to the commencement of this action, and then only, as defendants verily believe and allege, in aid and anticipation of his said action, and said plaintiff was then offered full and free access to-defendants’ books and papers, and assistance, if any be needed, to-obtain the names and addresses of all said persons.
    The defendants, further answering, for a separate answer, and by way of counterclaim herein, repeat and reiterate each and every the preceding allegations and matters in the same manner, and to the-same effect, as if the same were herein again written at length, and further allege:

      • First. That by reason of the premises plaintiff became indebted to the defendants in the sum of $187, which said sum was due and payable to defendants on the 1st day of August, A. D. 1886.

      Second. That no part of the same has been paid.

      George 11. Fletcher, for the appellant.

      Grane da Lochwood, for the respondents.
   Pratt, J.:

This is an appeal from an order of reference made at Circuit during the trial and after the examination of the plaintiff as a witness.

It is plain from an examination of the pleadings that to prove both the complaint and the answer it will be necessary to examine accounts, if all the matters between the parties are to be examined.

I think it plain there is but very little merit in the claim made by the plaintiff. Strictly speaking, it is a claim for damages for failure of the defendants to give the plaintiff a list of the names of subscribers furnished by plaintiff to defendants, who refused to take the volumes in question.

Any damages over six cents for such a claim must necessarily be purely speculative. The plaintiff says by not having the list he lost the opportunity to go to the delinquent subscribers and get them to change their minds and accept the books; but what certainty or proof is vouchsafed that he could effect such change, or what proof can be given upon a trial that one cent of loss can be sustained by failure to secure the list.

• The motive or inability of such subscribers which caused them .to refuse to receive the books are matters entirely beyond the knowledge of the plaintiff or his power to remedy; the suit, is therefore, purely uncertain and speculative.

The parties, however, seem to regard this suit as one for a balance due the plaintiff for services under a contract, and the claim for damages for not furnishing a list is mere padding. In this view of the case a reference was proper. (Chambers v. Appleton, 11 Wkly. Dig. 524; 84 N. Y. 649.)

The plaintiff desires to recover the contract price of all the subscriptions he turned in to the defendants, but the contract was that lie was to be paid only for such as accepted six volumes of a set of the work. These are all matters involving the examination of accounts. If upon the trial the plaintiff had been taken at his word, that this was a suit alone for breach of the contract to furnish lists, the complaint ought to have been dismissed for failure to show wherein he was damaged for breach of contract.

The order should be affirmed, with costs and disbursements.

Dykman, J., concurred.

Brown, P. J.:

Upon the pleadings the case is not referable, and the evidence does not make it so. I dissent."

Order affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    In the Matter of the Taxable Transfer of Property Belonging to the Estate of Rev. Nicholas Balleis, Deceased.

      The exemption granted by chapter 399 of the Lanes of 1892 does not apply to foreign corporations.

    The privilege of exemption granted to certain religious corporations by the Transfer Tax Law (Chap. 399 of the Laws of 1892) does not extend to corporations other than those created by or under the laws of the State of New York.
    Appeal by the Order of St. Benedict and another, the residuary, legatees under the will of Rev. Nicholas Balleis, deceased, from an order or decree of the Surrogate’s Court of the county of Kings, entered in the Kings County Surrogate’s Court on the 29th day of November, 1893, confirming the report of an appraiser duly appointed under and in pursuance of the Transfer Tax Acts.

      John R. Rhthn, for the appellants.

      James W. Ridgwcuy, District Attorney, and Robert B. Bach, for county treasurer of Kings county.
   Dykman, J.:

This is an appeal from an order of the surrogate of Kings county, imposing a tax upon the transfer of certain property under the will of Nicholas Balleis, deceased.

By his last will and testament the deceased gave the residue of his property, excepting his library and certain vestments and furniture, to the college and schools of St. Yincent’s Abbey, Westmoreland county, Pennsylvania, and to the college and schools of St. Mary’s Abbey in Newark, New Jersey, to be divided among them in equal parts. lie gave his library, furniture and vestments to the Benedictines of Newark.

The surrogate decided that the act in relation to transfers of property (Chap. 399 of the Laws of 1892) did not extend the privilege of exemption therein allowed to certain religious corporations, to corporations other than those created by the laws of this State, and that the legacies to the appellants were subject to the tax.

The Order of St. Benedict and the Benedictine Society have appealed, and we assume that they are the legatees although the names are not precisely the same as those given in the surrogate’s findings. The will itself is not in the printed record.

The question is whether the legacies are exempted from the operation of the act relating to taxable transfers of property, and the language of the statute under which such exemption is claimed is this: “ But any. property heretofore or hereafter devised or bequeathed to * * * or to any religious corporation shall be exempted from and not subject to the provisions of this act.”

The legatees are foreign religious corporations, and the order is based upon the theory that foreign corporations are subject to the provisions of the act in question.

The exemption clause is conceived in clear and precise.terms, and requires no interpretation, and if it were allowed the full force of its signification, the legacies in question would fall within its operation and be exempted from the tax.

We feel bound, however, by the decision of the Court of Appeals in the Matter of the Estate of Prime (136 N. Y. 360), to hold that the legacies are subject to the tax.

It was said in the opinion in that case, which was unanimous, as follows: “We are of opinion that a statute of a State granting powers and privileges to corporations must, in the absence of plain indications to the contrary, be held to apply only to corporations created by the State and over which it has the power of visitation and control.”

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

Brown, P. J., and Pratt, J., concurred.

Order affirmed, with costs.


text:
    Anthony Klemm, as Administrator, etc., of Eliza Klemm, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Amendment of complaint — made on the trial — damages for the peaunia/ry loss sustained by a person’s death — what they consist of.

    Where an amendment of a complaint neither introduces a new cause of action nor changes the old one, it may be made upon the trial of an action, notwithstanding the fact that the counsel for the defendant expresses surprise — not requesting, however, any delay.
    In an action brought to recover damages for pecuniary injuries, resulting from the death of a decedent to the person for whose benefit the action is brought, what is a just and fair compensation for the pecuniary injury in a given case can be determined by no rule; each case presents a different state of facts, either in character, capacity or condition of the deceased, or in the age, sex, circumstances and condition of the next of kin, all of which elements are to be considered as a basis for the allowance of damages.
    The pecuniary injury sustained by a husband from the loss of his wife, who was his housekeeper, consists of the loss of his wife’s services, the expense incident to and resulting from the injury, and the loss of his wife’s society.
    Appeal by the defendant, The New York Central and Hudson • River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 21st day of November, 1893, upon the verdict of a jury rendered after a trial at the Orange Circuit, and also from an order entered in said clerk’s office on the 20th day of November, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      AsKbel Green and A. 8. Gassedy, for the appellant.

      William D. Dickey, for the respondent.
   Dykman, J.:

But two questions are presented to the court by this appeal. The first relates to the amendment of the complaint during the trial, and the other to the amount of damages.

Upon the trial the complaint was amended by the permission of the court by the insertion of these words: “And that her husband and son sustained pecuniary damages by reason of her death in the sum of $5,000.”

The amendment neither introduced any new cause of action nor changed the old one. It was, therefore, such a one as might be made upon the trial, and although the counsel for the defendant expressed surprise, yet no delay was requested, and we find no error in the allowance of the amendment.

The verdict was for $5,000 in favor of the plaintiff, and upon its rendition the counsel for the defendant moved to set it aside as excessive. That motion was denied and there was an exception and that presents a very serious and embarrassing question.

There is no standard and no measure for the verdict in this class of cases. There is a limitation of its size, but the only guide for the jury in making it in case of death is the provision of the statute which authorizes the action, that the damages to be recovered shall be “ a fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action is brought.” (Code Civ. -Proc. § 1901.)

"What is a just and fair compensation for the pecuniary injury in a given case can be determined by no rule, because each case presents a different state of facts either in the character, capacity and condition of the deceased, or in the age, sex, circumstances and condition of the next of kin, and all those elements are to be considered as a basis for the allowance' of damages. (Lockwood v. N. Y., L. E. & W. R. R. Co., 98 N. Y. 526.)

Appellate courts usually hesitate about interfering with verdicts of juries, and failure to interfere is doubtless in many cases the product of such hesitation.

In this class of cases, as we have already seen, the elements furnished to the jurors enable them to do no more than make an estimate of the damages, and such estimates are problematical at best. It was the design of the Legislature in the enactment of this law to furnish a remedy unknown to the common or civil law.

Tlie theory of the statute is that the next of kin have a pecuniary interest in the life of the person killed, and the value of that interest is the amount of the pecuniary injury for which the statute proArides compensation. It treats human life in a pecuniary aspect and permits compensation for the same at its pecuniary value. It presupposes a pecuniary loss in the deprivation of a valuable life.

It accomplishes its most useful purpose when it is utilized for the recovery of damages resulting from the death of a man who has a wife and children dependent upon him for their support.

Indeed, when the statute Avas made in 1847, and even when first amended in 1849 (Laws of 1847, chap. 450, p. 575; Laws of 1849, chap. 256, p. 388), the recovery was for the benefit of the widow and next of kin, and the husband was not named as one of the beneficiaries until the law was amended in 1870 (Laws of 1870, chap. 78, p. 215), thus showing that the widow and children were the first objects of the solicitude and care of the Legislature.

They were generally left in a helpless condition, and their loss of a husband and father, upon whom they were dependent, would be greater to them than the loss of a mother and wife to a son and husband able to care for themselves. Protection against excessive or insufficient damages can only be afforded by the courts. They are a portion of the machinery employed in the administration of the statute, and they cannot abdicate their functions.

In this case the husband has been a soldier in the army of the United States, but is noAV out of the service, and is in Germany. He is about sixty-five years of age and his deceased wife was about fifty-four.

They had but one son; he is a physician, about thirty-five years of age and living away from his father’s house. The deceased was a vigorous, healthy woman, a good worker and did her own liouseAvork.

Such are the elements furnished for the estimate of the pecuniary injury resulting from the death of the deceased, and it is evident at once that there is nothing to show that the son has sustained any pecuniary injury by the death of his mother. It does not appear that he received any pecuniary aid from her, and no inference of that kind can be drawn from the testimony in the case.

The pecuniary injury of the husband consists in the loss of a wife who was his housekeeper, and the elements of this damage are the loss of his wife’s services, the expenses incident to and resulting from the injury, and the loss of her society. (Cregin v. Brooklyn Crosstown R. R. Co., 83 N. Y. 599.)

In view of all these circumstances we think the verdict is excessive, and that the facts will not justify a verdict beyond $2,500.

The judgment should, therefore, be reversed and a new trial granted, with costs to abide the event, unless the plaintiff stipulates to reduce the verdict to $2,500, in which event the judgment will be affirmed for that amount, without costs.

Pratt, J., concurred; Brown, P. J., not sitting.

Judgment reversed and new trial granted, costs to abide the event, unless plaintiff stipulates to reduce the verdict to $2,500, in which case the judgment so reduced is affirmed, without costs.


author: D teman, J.:

text:
    Edward H. Harriman, Appellant, v. Albert G. Howe and Others, as Commissioners of Highways, etc., Respondents.

      Public officers —presumed to have performed their official duties — absence of records presumptive evidence of their non-existence — right of way — when presumed — public highway — use, simply, by the public insufficient — road running through woodland.

    It is a presumption of law that public officers have performed their official duty, arid where no record was ever made in r-elation to a road, under the provisions of the Revised Statutes, by commissioners of highways, it is presumed, in the absence of explanation, that the facts required to ho recorded never existed in relation to such road, and such presumption is sufficient proof of the non-existence of such facts until it is overcome.
    Proof of user alone of a road is insufficient to show it to he a public highway. It must be associated with some act showing such use to he claimed as a right, hostile to and independent of the will of the owner, such as reparation or assuming the control of the road iu some ostensible manner, and a record showing the division of a road into districts is not evidence of the existence of the same as a public highway.
    The presumption of a grant of a right of way springs from the lapse of. twenty years in connection with the adverse use thereof by the public.
    The mere fact that people travel over a road for twenty years does not make it a highway. The road must not only be traveled upon hut it must be kept in repair or taken in charge and adopted by the public authorities.

      A. private way opened by the owners of land through which it passes, for their own use, does not become a public highway merely because the public are also permitted for many years to travel over it.
    The mere use of a road, which originally passed through woodland, although it has been in existence for more than fifty years, is not sufficient to constitute it a public highway.
    Appeal by the plaintiff, Edward H. Harriman, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Orange on the 7th day of August, 1893, upon the decision of the court rendered after a trial at the Orange Special Term, dismissing the plaintiff’s complaint.

      W. JD. Guthrie, B. W. Fullerton, M. II. Hirsehberg and G. G. Austin, for the appellant.

      William D. Diolcey and William F. O’Neill, for the respondents.
   D teman, J.:

This is an appeal from a judgment dismissing the complaint of the plaintiff after a trial at a Special Term of this court.

The action was brought to determine the character of the roadway described in the complaint, and to procure a judgment which should' declare it to be a private and not a public way, and to perpetually restrain the defendants, as commissioners of highways, from working- or repairing the road or interfering with it in any manner as a public highway.

The complaint alleged that the way in question was and continues to be a private roadway, and has at all times been used as such by the owners of the property through which it passes. This way runs through a vast tract of mountainous woodland of over 8,000 acres, over which there are about fifty miles of the same sort of mountain roads. There is not upon it a single human habitation. There is neither roadbed nor anything to distinguish it from the other paths which cross the mountain. There is no record of the laying out of this road or the creation thereof as a highway by virtue of any statutory proceedings, and the road never was ascertained, described or entered of record in the office of the town clerk prior to April, 1893.

The public authorities at no time worked or repaired the road prior to this controversy with the plaintiff.

The defendants do not claim that the road in question was ever laid out under the statute, but they have now caused the same to be ascertained and entered of record as a road which has been used as a highway for over twenty years.

That record was made after the commencement of this action, and confines the defendants to the contention that the road is a highway by prescription.

The question for our determination, therefore, is whether the road has become a public highway by prescription, and that question is not answered in the affirmative by the mere proof of user for the prescriptive period, as user alone is insufficient to constitute a public highway. It must be associated with some act showing such use’ to be claimed as a right hostile to, and independent of, the will of the owner, such as reparation or assuming the control of the road in some ostensible manner.

The presumption of a grant of the right of way springs from the lapse of twenty years in connection with the adverse use by the public. (City of Cohoes v. D. & H. Canal Co., 134 N. Y. 402.)

So far as presumptions can be indulged, they favor the position of the plaintiff for this reason.

By the Highway Law of 1813 (2 R. L. 210) it was made the duty of commissioners of highways in the several towns of this State to cause such of the roads as were not already described and recorded, to be ascertained, described and entered of record in the town clerk’s office.

By the Bevised Statutes highway commissioners were directed to cause such roads as have been used for twenty years, but not recorded, to be ascertained, described and entered of record in the town clerk’s office. (1 R. S. 501, § 1, subd. 3.)

No such record was ever made in relation to this road, and as the law constantly presumes that public officers have performed their official duty, the presumption is, in the absence of explanation, that the facts required to be recorded never existed.

Such presumption is sufficient proof of their non-existence until it is overcome. The record showing the division of the road into districts, even if admissible, does not answer the requirement of the statute, and is not evidence of the existence of a public highway. Property owners cannot he deprived of their land in that manner.

For the long period of eighty years no effort was made to record this road. Peter P. Parrott was in possession of this land from 1838, always used the road for private purposes, and never knew the public authorities claimed it to be a public highway. No assessment for labor on it was ever made, and no official authority over ' the road was ever exercised.

Would the town of Woodbury be liable to persons traveling over this road for injuries resulting from its founderons condition ? That is a sure test of its character, and yet such result follows, if the contention of the defendants is to be upheld.

If such liability attaches in respect to this road, why may it not be inferred in relation to all the other roads over these mountains, for it is safe to assume that all persons who desire to travel over those roads do so at their pleasure. Such use of this road by the public as the proof shows is entirely insufficient to create a highway by prescription. It passes through a vast tract of uninclosed forest. It is a mountain woodroad of the same character as all the wood-roads through this forest, being a single way sufficiently wide for a lumber wagon.

The’ whole tract has for half a century been used in connection with the Greenwood Iron Works, to furnish cordwood and charcoal for those works, and all the woodroads have been used for drawing the products of these lands to the furnace.

The presumption is natural that all the woodroads originally came into use in that way and for that purpose. For what other purpose could this fifty miles of mountain road have come into use, and what reason is there for presuming that this particular road had an origin differing from that of the others ?

It is true there are entries in certain old records pertaining to this road, but they fail to show its origin or that it ever took on any public character. If the commissioners of highways can now declare this road to be a public highway and constitute it such by their simple declaration that it has been used for twenty years as such by the public, what prevents the same declaration and result in relation to the other fifty miles of roads over these mountains %

It cannot be that the land of the plaintiff is subject to confiscation in that way, for it would be nothing less than that.

A portion of the language of the opinion of the Court of Appeals in the case of Speir v. The Town of New Utrecht (121 N. Y. 420) is entirely applicable to this case, and it is this: “All we have here is, that the road was used by the public generally. But the mere fact that a portion of the public travel over a road for twenty years cannot make it a highway; and the burden of making highways and sustaining bridges cannot be imposed upon the public in that way. There must be more. The user must be like that of highways generally. The road must not only be traveled upon but must be kept in repair or taken in charge and adopted by the public authorities. We think all this is implied in the words: ‘ Used as public highways.’ * * * A private way opened by the owners of land through which it passes for their own uses does not become a public highway merely because the public are also permitted for many years to travel over it.”

Judge Pratt, in delivering the opinion in the same case when it was in our court, said: “It is elementary law that to establish an easement in lands by use or prescription, the occupation and use of the land pnust be plainly for the purpose in view under an unequivocal claim, and if not actually adverse at least under circumstances leaving the owner at all times free to resist the invasion. The coincidental use by the public of a private way which the owners maintain primarily for their own convenience is permissive or by license, and lacks the essential characteristics of the use required to work a presumption of grant or title in the public for a public highway. The authorities in support of these propositions are too numerous for citation.”

In the case of Lewis v. The New York, L. E. & W. R. R. Co. (123 N. Y. 496, 503) the Court of Appeals unanimously affirmed the same doctrine, and in respect to it used the following language: “We have recently determined what facts constitute a public highway within the meaning of the statute relating to user. (Speir v. New Utrecht, 121 N. Y. 420.)”

We there held that it must have been traveled by the public for twenty years, and either kept in repair or taken in charge by the public authorities.

Moreover, the character of the land over which the way in question passes forbids the indulgence of any presumption of a right by prescription and prevents the acquisition of any right by the public by mere use of- the road.

In Angelí on Highways, section 151, it is laid down as elementary law, that where a road, which had been in existénce for more than fifty years, had originally passed through woodland, the mere use would be insufficient to constitute it a public road. The ground for the distinction is that where the land is inclosed and cultivated the mere use is an invasion and a trespass, but where it is woodland those who travel it commit no trespass until after notice to desist, and subject the owner to no loss or inconvenience. To prohibit such use would be considered churlish and would be ineffective unless constant watch were kept of the premises.

In the case of Hutto v. Tindall (6 Rich. Law, 396) the doctrine was laid down by the Court of Appeals of the State of South Carolina as follows: “ As the presumption of a grant of way by the owner of the land arises from the exercise of a privilege adverse to his right of property and from his acquiescence in the exercise of the privilege, the presumption will not be supported if ■ the use of the way does not impinge on his rights nor conflict with his enjoyment of his property. A distinction must, therefore, be observed between the claim of a way through inclosed and cultivated land and way over unenclosed woodland. * * * Merely passing over uncultivated and unenclosed forest, which is common to every one, cannot by any lapse of time give a right to any individual. The presumption of a grant of way should be restrained by rules of evidence which may prevent its insidious operation.”

The facts of this case bring it fairly within the Jaw so announced. Such is the well-established doctrine, and a full and careful examination of this case conducts us to the conclusion that the road in question never was a public highway; that the judgment should be reversed and a new trial granted, with costs to abide the event.

Pratt, J., concurred; Rrown, P. J., not sitting.

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


text:
    George A. Quincy, Respondent, v. Benjamin J. Warner, Appellant.

      Damages for personal injuries— when an appellate court has no power to interfere with the verdict.

    In an action brought to recover damages for personal injuries, where the testimony on one side is adequate to impose a liability upon the defendant, and on the other side is sufficient to relieve him therefrom, a question of fact is presented for the determination of the jury, with whose verdict an appellate court has no power to interfere.
    Appeal by tbe defendant, Benjamin J. Warner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 26th day of October, 1893, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 28th day of October, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Albert Gr. McDonald, for the appellant.

      Jmnes D. Bell, for the respondent.
   Dykman, J.:

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial upon the minutes of the court.

The action was brought for the recovery of damages resulting from an injury to the plaintiff caused by a fall through a trap door in a general hallway of an entrance to a building belonging to the defendant in the city of Brooklyn.

The building was occupied by various tenants, and, among others, by an insurance company in whose employ the plaintiff was when he was injured; as the plaintiff was about to go up to the office of the company he fell into the hole, the door being up at the time.

The decisive question upon the trial was whether the janitor, who was the servant of the defendant, was guilty of negligence in permitting the door to be removed, or allowing it to remain off the opening which it was designed to cover and protect.

Tbe testimony on tbe part of the plaintiff was sufficient to prove want of proper care, and that introduced by tbe defendant was sufficient for bis exculpation.

It is, therefore, the common case where testimony on one side is adequate to impose liability, and upon the other sufficient to relieve therefrom, and thus presents a question of fact for the determination of the jury, and leaves an appellate tribunal destitute of power to interfere.

There is an exception to the admission of proof of the' declaration of the janitor, that the accident was his fault in part, which is not entirely free from doubt.

We have concluded, however, that the testimony was admissible in contradiction of his testimony, which was to the effect that he was free from fault.

There was no exception to the charge as finally made.

The judgment and order should be affirmed, with costs.

Pratt, J., concurred; Brown, P. J., not sitting.

Judgment and order affirmed with costs.


author: Dykman, J.: Brown, P. J.:

text:
    Henry Stanton, Respondent, v. John S. Hennessey, Appellant.

      Services rendered, induced by fraud — damages sustained thereby — evidence.

    Upon the trial of an action brought to recover the amount of commissions alleged to be due the plaintiff upon the sale of a farm the complaint was dismissed. Thereafter another action was commenced by the same plaintiff against the son of the defendant in the first action, charging that the defendant had procured by fraud the services of the plaintiff in obtaining a purchaser for the farm of the defendant’s father without authority from his father, and alleging that he employed the plaintiff for that purpose, representing himself to have such authority.
    On the trial the plaintiff was permitted to state that he paid his lawyer fifty dollars in the first suit.

      Held, that the admission of such testimony was error. (Brown, P. J., dissenting.)
    That the plaintiff could not recover in the second action any of the expenses of the first suit brought against the father of the defendant, as that action was unnecessary so far as the liability of the defendant in the present action was concerned.

      On the trial of such action the judgment roll in the first action was offered and received in evidence against the objection and exception of the defendant, and the plaintiff was allowed to state the grounds upon which the complaint in the former action was dismissed.

      Held, that the admission of the .judgment roll in evidence was erroneous, as it • was only evidence between the parties to the suit, and could have no force against the defendant in the action at bar. (Brown, P; J., dissenting.)
    That it was erroneous to permit the plaintiff to state the grounds upon which the complaint in his suit against the defendant’s father was dismissed, as it could be shown only by the record, and was, moreover, immaterial. (Brown, P. J., dissenting.)
    Appeal by the defendant, John S. Hennessey, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 22d day of September, 1893, upon the verdict of a jury directed by the court, and also from an order entered in said clerk’s office on the 2étli day of October, 1893, denying the defendant’s motion, for a new trial made upon the minutes.

      Benjamin W. Downing, for the appellant.

      Edward V. B. Eissam, for the respondent.
   Dykman, J.:

This action was commenced in the County Court of Queens county. It was based upon the fraud of the defendant in procuring the services of the plaintiff, the claim of the plaintiff being that he obtained a purchaser of the farm of the father of the defendant at the request of the defendant, who represented himself as clothed with authority from his father to employ the plaintiff for that purpose.

The plaintiff brought a suit against the father to recover his commissions upon the sale of the farm, and his complaint was dismissed at the Circuit.'

■ Thereupon this action was commenced based upon the fraud of the defendant as we have already stated. At the close of the trial the judge directed a verdict in favor of the plaintiff for $539.25.

The counsel for the defendant requested permission to go to the jury upon all the issues in the case, but his request was denied and he took an exception.

Upon the trial the judgment roll in the action by the plaintiff against the father of the defendant was offered and received in evidence against the objection and exception of the defendant’s counsel.

The plaintiff as a witness in his own behalf was asked upon what ground the complaint in his suit against the father of the defendant was dismissed, and he was permitted to answer although the defendant’s counsel objected and excepted.

The counsel for the defendant, at the close of the plaintiff’s case, moved to dismiss the complaint upon several grounds, and among others because it nowhere appears that the statements made by the defendant were not in every respect correct.

The motion was denied and there was an exception to the denial. The record discloses many fatal errors.

In the first place the commissions upon the sale of the farm can amount to only $330.50, and that is the full measure of the plaintiff’s damages in any event. Yet the verdict was directed for $539.21. It does not appear how that sum wasmade up.

The plaintiff was erroneously permitted to state that he paid his lawyer in the first suit fifty dollars, and that may have been included in the verdict.

The plaintiff cannot recover in this action any of his expenses in the suit against the father.

That action was unnecessary so far as the liability of the defendant in this action is concerned. That was an unnecessary as well as an improper action, and certainly the defendant cannot be charged with the consequences of its failure.

The admission of the judgment roll in the suit of the plaintiff against the father of the defendant was erroneous. Judgments are only evidence between the same parties, but the defendant was not a party to that suit. That judgment, therefore, can have no force against the defendant in any way.

Upon the merits the judgment cannot be sustained. There is no proof that the defendant made any false representations. There is no proof that he did not have authority from his father to say all he said. He did not say he had authority to sell, or to bind his father in any way. He simply said he had authority from his father to state to the plaintiff that if he, the plaintiff, found a purchaser for the farm his father would pay him the usual commissions, and there was no proof that he had not such authority.

It was erroneous to permit the plaintiff to state the grounds upon which the complaint in his suit against the father was dismissed. That could be shown only by the record, and i¿ was moreover immaterial in this case.

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

Pratt, J., concurred.

Brown, P. J.:

I concur in a reversal of this judgment. But I am of the opinion that the judgment roll in the action between plaintiff and defendant’s father was admissible in evidence to show that plaintiff had been subjected to the exjiense of an action in attempting to enforce the contract against defendant’s father. (White v. Madison, 26 N. Y. 120, 129.)

The costs of that suit and the expense of counsel, etc., were elements of the plaintiff’s loss.

That judgment, however, was entered upon a verdict of the jury, and it was plainly incompetent for plaintiff to attempt to give the reason for the verdict.

Without his evidence on that subject the case was destitute of any proof that defendant had made any false representations, and the complaint should have been dismissed.

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


author: Pratt, J.:

text:
    Daniel S. Jones, Plaintiff, v. Edward J. Newell, as Administrator, etc., of Bridget Callahan, Deceased, Respondent, and Annie Leonard, Individually and as Administratrix, etc., of Patrick D. Callahan, Deceased, and Others, Appellants.

      Trust created by a will —provision that the trustee may use portions of the trust estate for Ms individual use.

    A trust to one person for the benefit of another, created by a will, is valid notwithstanding a provision therein that the trustee may apply such portion of the trust fund to his personal use as he may find necessary without accounting therefor.

      Appeal by the defendants, Annie Leonard, individually and as administratrix, etc., of Patrick D. Callahan, deceased, and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 10th day of July, 1893, upon the decision of the court rendered after a trial at the Kings County Special Term. .
    The provision in the will of a testatrix creating the trust estate in question was as follows:
    ír I give, devise and bequeath all my estate, of every name and nature, to my beloved husband, Patrick D. Callahan, in trust, however, and for the benefit of my daughter, Mary Callahan; provided, however, that my said husband, Patrick D. Callahan, may use any or all of my said estate hereby bequeathed at his option and for his own personal benefit as though the bequest were made to him, at any time before my said daughter arrives at the age of twenty-one years, and may at his option take any or all of said estate, and use, own, have and hold, sell, transfer, convey and assign the same as though this property hereby bequeathed was bequeathed to him, at any time before my said daughter arrives at the age of twenty-one years.”

      Gharles J. Patterson, for appellant, Annie Leonard, administratrix, etc.

      W. M. K. Oleott, for Newell, respondent.
   Pratt, J.:

The appellants contend, upon the authority of 38 Barb. 409, and other cases, that the bequest of personal property to Callahan, with a limitation over to his daughter, vested in him the whole estate, and that the limitation over was void for repugnancy.

However this may have been, had the bequest been to him primarily for his own benefit and without the suggestion of a trust, it is not necessary to determine, for the bequest is made to Callahan “ in trust, however, and for the benefit of ” the daughter.

Appellants’ counsel argue with great ingenuity that the permission given the trustee to apply such portion of the trust fund to his personal use as he might find necessary without accountability, was equivalent to an abolition of the trust. We do not think this can be held. The testatrix cannot be supposed to have contemplated that the confidence would be abused, and, if not abused, the trust was not endangered, as the result well illustrates.

On the whole case we are of opinion that the judgment must be affirmed.

Brown, P. J., and Dykman, J., concurred.

Judgment affirmed, with costs against Annie Leonard, administratrix.


text:
    In the Matter of the Judicial Accounting of Albert Payne and Another, as Executors, etc., of Silas W. Payne, Deceased.

      Inventory of an estate — correction of.

    If a note is put in the inventory of an estate by mistake it is proper to correct the inventory by striking it therefrom before the filing of such inventory.
    Appeal by Albert Payne and another, as executors, etc., of Silas ~W. Payne, deceased, from a decree of the Surrogate’s Court of. the county of Suffolk, entered in the office of the clerk of the Suffolk County Surrogate’s Court on the 20th day of November, 1893, charging the executors with the amount of a certain note and interest thereon, and with the interest on certain money deposited in a bank.

      Wibnot M. Smith, for the executors, appellants.

      Timothy M. Oriffing, for Sarah R. Ketcham, legatee, respondent,
   Pratt, J.:

The respondent herein seems to rely mainly upon the statement that the note in controversy was returned in the inventory as part of the estate of the deceased, and was sworn to as such. But this is. not true as a matter of fact; on the other hand, it clearly appears that this item . was stricken from the inventory before it was filed. It is said it was sworn to before it was amended by striking out this item, and, hence, it must be regarded, conclusively, to be an asset of the estate. If, however, it was put in the inventory by mistake it was proper to make the correction, and it was done. .

The weight of evidence seems clearly to show that the testator intended to give one-half of the property which he conveyed to his son on Oxford street, reserving only the interest on one-half of the purchase money. This is proved by the written agreement as well as by the declarations of the testator. It is a just inference that the mortgage was satisfied and the note in question given to carry said agreement to pay the testator the interest during life. Such a theory is the only one consistent with all the facts.

The testator, so far as appears, was a man of small means comparatively, and if he had advanced the $2,000 for which the note was given, it seems incredible that some one of the family should not be aware of the fact and able to explain or prove the transaction. We think the fair inference is that the note, although absolute in form, was given simply as security for performance of the obligation to pay interest during the lifetime of the testator, and that the same was in legal effect canceled at his death.

For this error the decree must be reversed, with costs.

Dykman, J., concurred.

Brown, P. J.:

I concur, but the decree should be modified and not reversed.

Decree reversed, so far as executors are charged with $2,000 and interest. In other respects affirmed, with costs to appellants.


text:
    The Mutual Life Insurance Company of New York, Respondent, v. Darius C. Newell and Another, Defendants; Albert C. Benedict, Appellant.

      Right of a mortgagee to pay taxes on mortgaged premises — not affected by a merger of the mortgage in a judgment — power of the Supreme Court to modify its judgment.

    The right of a mortgagee to protect his interest in the mortgaged property, by the payment of taxes, which become a superior lien thereon, depends, not upon the covenants in the bond and mortgage, but upon the general principles of equity, and a merger of the bond and mortgage in a judgment of foreclosure and sale has no effect upon such right.
    The general powers of the Supreme Court are ample to make such corrections in a judgment of foreclosure and sale as changed conditions may render necessary.

      Appeal by tbe defendant, Albert C. Benedict, from an order of tbe Supreme Court, made at the Westchester Special Term on the 4th day of March, 1893, and entered in the office of the clerk of the county of Westchester, modifying the judgment of foreclosure and sale entered in the action.
    The order appealed from was made on an application for an order amending a judgment of foreclosure and sale entered on August 11, 1884, by inserting therein the amount due the plaintiff for principal and interest on the mortgage debt on February 25, 1893, and by-directing the referee to except from the sale of the mortgaged premises certain portions thereof which had been released from the lien of the mortgages set forth in the complaint in the action.
    The affidavit used on such application, among other things, alleged that by such judgment there was adjudged to be due on the bonds and mortgages $26,515, and that since the entry of such judgment payments had been made from time to time on account of interest, but that the whole amount of the principal remained unpaid, and that from time to time the plaintiff had paid taxes and that certain parts of the mortgaged premises had been released from the lien of the mortgage.
    Proof of these facts and circumstances were taken by the court, and thereafter an order was made granting the relief asked for by the plaintiff.

      Ralph E. Prime, for the appellant.

      James A. Briggs, for the respondent.
   Pratt, J.:

The right of the mortgagee to protect his interest by payment of taxes, which become a superior lien, depends not upon the covenants in the bond or mortgage, but upon the general principles of equity.

It follows that the merger of the bond and mortgage in the judgment has no effect upon the right.

The general powers of the court are ample to make such corrections in the judgment as the changed conditions render necessary.

We observe that a small amount paid by the mortgagee for insurance against fire was allowed at Special Term.

The order appealed from should be modified by striking out the sum allowed for insurance, and, as thus modified, affirmed, with costs.

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

Order modified by striking out sum allowed for insurance, and, as modified, affirmed, with costs.


text:
    Simon Newman and Others, Appellants, v. John C. Wilson and Another, Respondents.

      Verdict, when conclusive — implied wa/t'ranty by vendor.

    When the verdict of a jury has been rendered upon conflicting evidence, upon a charge, fair, clear and unexceptional, such verdict is conclusive where there is nothing to show that it was not an intelligent and honest exercise of judgment upon the facts and circumstances of the case.
    Whenever a man sells goods with special reference to a special purpose, the law charges him with representing or warranting that the goods shall be fit for that purpose, and if they are unfit, then he is responsible for the damages that result from their unfitness.
    Appeal by tbe plaintiffs, Simon Newman and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 9th day of February, 1893, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order made at the Kings County Circuit on the 8th day of February, 18’93, and entered in said clerk’s office, denying the plaintiffs’ motion for a new trial made upon the minutes.
    The action was brought to recover the amount of'a claim for vinegar sold, to which a defense of breach of warranty was interposed. The court charged, among other things, as follows: “ Whenever a man sells goods with special reference to a special purpose, the law charges him with representing or warranting that the goods shall be fit for that purpose, and if they are unfit, then he is responsible for the damages that result in consequence of their being unfit.”

      Benjamrwn Patterson and George Bell, for the appellants.

      Byram L. Winters, for the respondents.
   Pratt, J.:

This is an appeal from a judgment entered on a verdict of a jury and from an order denying a new trial.

There seems to have been no exception taken, however, to the denial of the motion for a new trial, but that is immaterial as there was no merit in the motion and we should affirm the order even if there had been an exception.

The action was for the price of vinegar sold and delivered to the defendants which they used in their business, and the jury allowed the plaintiffs the price of it in this verdict.

The defendants set up a counterclaim for damages for a breach of warranty, which was sustained by the jury, and judgment was thereafter rendered in favor of the defendants.

The evidence was conflicting and the charge was fair, clear and unexceptionable, and, under such circumstances, the verdict is conclusive.

There is nothing in the case to show that the verdict was not an intelligent and honest exercise of judgment upon all the facts and circumstances of the case.

The appellants complain of the amount of the verdict in that defendants are given double damages. The answer to that is that such is not the fact. With the plaintiffs’ consent the judge made a list of the items of the defendants’ claim for damages, and gave it to the jury as they went out to deliberate upon their verdict, who returned a verdict for a sum less than that claimed by the defendants. If the list was incorrect, or if it contained any claim which ought not to have been submitted to the jury, the appellants should have had it corrected or taken an exception.

As to the warranty and the rule of damages, the judge charged according to well-settled rules of law, to which no exception was taken.

The judgment and order should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.

Judgment and order affirmed, with costs.


text:
    Julia Mullins, as Administratrix, etc., of Catharine Flynn, Deceased, Respondent, v. Metropolitan Life Insurance Company, Appellant.

      Agent — when a managing agent.

    An agent who has the general supervision of a business is a managing agent, although the district in which his powers are exercised is limited.
    Appeal by tbe defendant, the Metropolitan Life Insurance Company, from a judgment of the .County Court of "Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 25th day of November, 1893, upon the decision of the court affirming the judgment of a justice of the peace of the city of Yonkers, Westchester county.
    The following was the duty of Skidmore as set forth in the defendant’s manual, referred to in the opinion: “ Duties. As superintendents you have general supervision over the business of your district. The duties are as defined in your agreements as embodied in this manual, and as contained in instructions from the officers of the company.”

      Wm. II. Arnoux and John MoG. Gooddle, for the appellant.

      William Riley, for the. respondent.
   Pratt, J.:

The justice had evidence before him which justified him in finding that Skidmore was a managing agent of defendant, and his decision is binding upon us.

We think that the duties of Skidmore, as set forth in the manual of defendant, quoted in appellant’s points, are sufficient to sustain the finding. “As superintendents you have general supervision over the business of your district.” An agent who has general supervision of a business is a managing agent. The district in which the powers are exercised may be limited, but the powers are general.’ Bain v. Globe Ins. (9 How. Pr. 448); Palmer v. Co. (35 Hun, 370); Rochester, H. & L. R. R. Co. v. Co. (48 id. 190); Barrett v. Am. T. & T. Co. (10 N. Y. Supp. 138); Brayton v. Co. (25 id. 264) are in point and sustain this conclusion.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Cornelia Fay Cline, Appellant, v. David H. Sherman and Another, as Executors and Trustees, etc., of Walter Sherman, Deceased, Respondents.

      Executors — when also testamentary trustees — decree on an accounting conclusive — liability of one of two trustees for a trust fund held by his co-trustee — Code of Civil Proc. % 2803 — chap. 782 of 1867; chap. 482 of 1871.
    Where the executors named in a will undertake to act in the execution of a trust created thereby, which is separate from their functions as executors, they sustain the relation of trustees under such will to the beneficiaries of such trust.
    The provisions of title 6 of chapter 18 of the Code of Civil Procedure, commencing with section 2802, are a substantial re-enactment of chapter 782 of the Laws of 1867, as amended by chapter 482 of the Laws of 1871, which statutes have been continuously in operation.
    When, upon the accounting of executors in a Surrogate’s Court, a special guardian has been appointed for an infant interested in the proceedings, the decree made therein has the same effect as to the rights and interests of the infant as a similar adjudication between adults, and where the surrogate is possessed of jurisdiction there is no relief from his decree, even though it was erroneous or irregular, except upon the ground of fraud, clerical mistake, newly discovered evidence or for like causes, and to obtain relief therefrom it is necessary for the infant to apply for the same within one year after becoming twenty-one years of age.
    When there is no appeal from such decree, and no application for relief from the same, and the time therefor has expired, such decree is finally binding and conclusive upon all the persons who were parties to the proceeding, and it furnishes absolute protection to the accounting executors.
    By the provisions of a will the sum of $10,000 was bequeathed to each of four infants, “to be set apart for each by my executors one year after my decease, and to be invested and reinvested safely by my executors, with the accumulated interest,” until each of said legatees should become of age, when such executors were directed to pay over said sums, with accumulations thereon, to each of such legatees respectively, as he or she arrived at the age of twenty-one years.

      Two of such legatees were childreu of one of the executors, and two were the children of the other, and upon the executors’ accounting it was shown that the sum of $10,000 had been invested in the name of and for each of the four children, each investment being made in the name of the father for the benefit of one of his children. No objection was made thereto upon such accounting, to which the infants were parties and in which they were represented by a special guardian, and a decree was rendered reciting the establishing of the four trusts and adjudging that the executors were released and discharged from all liability as well to each other as to others, and all of their transactions were approved, ratified and affirmed.

      Sslci, that such provision created a trust to be executed by the executors and constituted them testamentary trustees;
    That the beneficiary of one of such trusts could not hold the executor, other than her father, liable for the amount of the trust fund of which she was a beneficiary.
    Appeal by the plaintiff, Cornelia Eay Cline, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Dutchess on the 30th day of September, 1893, upon the decision of the court rendered after a trial at the Dutchess Special Term.

      Samuel H. Brown and Milton II. Fowler, for the appellant.

      Ira D. Warren, for the respondents.
   Dykman, J.:

Walter Sherman died in March, 1880, leaving a last will and testament, in which he appointed the defendants in this action, his two sons, his executors. The will was proved and admitted to probate and the two executors duly qualified and entered upon the performance of their duties.

Walter A. Sherman and Mary C. Sherman are the children of the defendant David H. Sherman, and Cornelia Fay Cline, the plaintiff, and David H. Sherman' are the children of the defendant Samuel W. Sherman, and are the grandchildren named in the fourth clause of the will, which reads as follows:

“ I give and bequeath to each of my four grandchildren, Walter A. Sherman, Mary C. Sherman, Cornelia Fay Sherman and David H. Sherman, Jr., the sum of ten thousand dollars apiece, to be set apart for each by my executors one year after my decease, and to be invested and reinvested safely by my executors, with the accumulated interest, until each of my said grandchildren severally shall become of age, and I order and direct my said executors to pay over said sum, with its accumulations, to each of my said grandchildren respectively, as he or she reaches the age of 21 years.”

On the 1st day of April, 1881, the defendants, Samuel W. Sherman and David H. Sherman, presented their petition to the surrogate of Dutchess county, properly verified, praying for a final judicial settlement of their accounts as executors, and that all persons interested in the estate be cited to appear on the 6th day of May, 1881, and attend the final settlement of such accounts.

On the last-named day the defendants, as such executors, filed their accounts in the Surrogate’s Court. Such accounts, so filed, contained the following statement, viz.:

“ From the amount thereof we have set apart the sum of forty thousand dollars, and added from our own personal funds the amount of premiums we have purchased, and now hold $10,000 in United States four per cent bonds, registered in the name of David H. Sherman, trustee of Walter A. Sherman; $10,000 in like bonds, registered in the name of David H. Sherman, trustee for Mary O. Sherman ; $10,000 in like bonds, registered in the name of Samuel W. Sherman, trustee for Cornelia Eay Sherman, and $10,000 in like bonds, registered in the name of Samuel W. Sherman, trustee for David I-L Sherman, Jr., all of said bonds being here set down at their face value.”

On the return day of such citation the said surrogate duly appointed Thomas J. Swift special guardian for the plaintiff in this action and the other infants interested in the estate.

Thus the defendants informed the surrogate of their proceedings and the disposition they had made of the trust fund. They had invested it in good securities and each father had become a separate trustee for his own children.

No objection was made to the account, and the surrogate entered a final decree discharging the executors from all liability and confirming the separate trusts as they were stated.

The defendant David TI. Sherman never had in his possession or under his control the $10,000 of United States registered bonds which were set apart for the plaintiff and never was her trustee. Those bonds were registered in the name of Samuel W. Sherman alone as trustee, and lie had entire possession and control of the same. This suit was brought against both of the executors to com- . pel them to account for and pay over to the plaintiff the fund belonging to her, after crediting themselves with $2,000 paid to her on account thereof.

David interposed a defense but Samuel did not answer.

The case was tried before a judge without a jury, and he decided that by the proceedings before the surrogate upon the final accounting and the final decree rendered therein Samuel W. Sherman was made and became the sole trustee of the plaintiff, and dismissed the complaint as to the defendant David H. Sherman.

The plaintiff has appealed from the judgment entered upon such decision. This action is based upon the theory of the indivisibility of the trust to invest and reinvest $10,000 for each of the grandchildren of the testator, and, without controverting that position, the respondent David H. Sherman relies upon the decree of the surrogate made upon • the accounting had before him as final and conclusive, and a protection to him against the claim of the plaintiff.

Again, the plaintiff denies the finality and conclusiveness of the surrogate’s decree upon such accounting, and those contentions raise the legal question presented for our solution.

These defendants sustained the relation of testamentary trustees under the will of their testator toward the grandchildren, because they «undertook to act in the execution of a trust created by will which is separate from their functions as executors. (Code Civ. Rroc. § 2544, subd. 6.)

The sums bequeathed to the minors were to be invested and reinvested by the executors, with the accumulated interest, until each of the grandchildren became of age, and then the executors were to pay over the legacies, with the accumulations, to each of the grandchildren.

That provision created a trust to be executed by the executors, and so constituted them testamentary trustees. The claim of the appellant, that section 2802 as it stood in 1881 contained no provision respecting the effect of a decree upon intermediate accounting, is quite inconclusive. Jurisdiction to settle the accounts of testamentary trustees and guardians was first conferred upon surrogates by chapter 782 of the Laws of 1867. By section 1 of that act surrogates were given power to compel testamentary trustees and guardians to render accounts of their proceedings in the same manner as executors, administrators and guardians appointed by the surrogate were then required to account. That act was amended by chapter 482 of the Laws of 1871 in a respect which is immaterial here. The provisions of title 6 of chapter 18 of the Code of Civil Procedure, which commence with section 2802, are a substantial re-enactment of the law of 1867, as amended by the act of 1871, so that those statutes have been in operation all along. (Matter of Hawley, 104 N. Y. 264.)

As there was a guardian appointed for the infants in the proceedings for the accounting, and before the surrogate, the decree there made has the same effect as a similar adjudication between adults. (In re Tilden, 98 N. Y. 434; Matter of Hawley, 104 id. 251.)

Further, as the surrogate was possessed of jurisdiction there was no relief from the decree, even though it was erroneous or irregular, except upon the ground of fraud, clerical mistake, newly discovered evidence or through like causes, and to obtain such relief it was necessary to apply for the same within one year after the infants became of age respectively. (Code Civ. Proc. § 1291; Matter of Hawley, 104 N. Y. 251.)

As there was no appeal from the decree and no application for relief from the same, and the time therefor has long since expired, it has become finally binding and conclusive upon the plaintiff and all ■others who were parties thereto. For the same reason the decree of the surrogate upon such accounting furnished absolute protection to the executors. They stated in their account that they purchased .and held $10,000 in United States four per cent bonds, registered in the name of Samuel ~W. Sherman, trustee for Cornelia Fay Cline, the plaintiff, and that was true. No objection was made to that mode of separating the trust, and the decree finally settled and allowed the accounts as thus stated. (Bowditch v. Ayrault, 138 N. Y. 222; Denton v. Sanford, 103 id. 607.)

In this last case trustees under the will had invested trust funds in a mortgage on property in New Jersey, and the court decided that the decree of final accounting which showed how the fund was invested furnished absolute protection to the trustees, as no objection was made to their action. In that case, as in this, the action of the trustee might or might not receive approval of the surrogate, but as it did such decree was their nrotection. That rule is consonant with justice.

Here were two brothers executors of their father’s will. Forty-thousand dollars was given to them Jior their four children, who were minors, in equal sums, to be invested and the interest accumulated during their minority, and paid over to them upon their attaining their majority respectively. When the estate was settled and the $40,000 had been invested in government bonds, each father was willing to become the trustee for his two children, and so they agreed to divide the bonds, each taking half, and causing them to be regis-^ tered in his own name as trustee.

Then they applied to the surrogate for a judicial settlement of their accounts, and stated in their petition how the trust fund was invested, and that half of it was held by each of the trustees for his children.

A guardian was appointed and no objection was made, and the surrogate approved the action of the trustees, and made a decree in which he recited the establishing of the four trusts of $10,000 each, and stated that the executors were released and discharged from all liability as well to each other as to others, and that all their transactions were approved, ratified and confirmed.

The surrogate and all parties interested approved a division of the trust, and had they not done so the respondent David H. Sherman might have protected himself. Under all these circumstances it would be oppressive and unjust to compel him to restore to the plaintiff the money which has been lost without his fault.

The judgment should be affirmed, with costs.

Pratt, J., concurred ; Brown, P. J., dissented.

Judgment affirmed, with costs.


author: Brown, P. J.:

text:
    Henry H. Fowler and Another, Respondents, v. Zillah H. Wood, Appellant, and Another.

      Statute of Limitations — a ban' to an action on a mortgage and not to one on the bond — acts solely on the remedy — suspended as to only one of two persons liable on the sarnie obligation — construction of a statute — not restrained by CM'bitra/ry addition or retrenchment.

    A mortgage and the cause of action thereon are subject to the dealings and acts of the debtor with reference to the debt, but the Statute of Limitations may have run against a cause of action upon a mortgage, although an action could be maintained upon the bond to which it is collateral.
    The provision of the Code of Civil Procedure that if, after a cause of action has accrued against a person, he departs from the State, the time of his absence is not a part of the time limited for the commencement of the action, has reference solely to the cause of action against the person who departs from the State, and does not suspend the operation of the statute as to a person liable on the same cause of action, who continues to reside within the State, nor does it extend the time generally within which an action may he brought for the recovery of a debt, or the enforcement of a security collateral to a debt. It affects solely the remedy against the person who departs from the State.
    The Statute of Limitations does not discharge a debt, hut acts solely upon the remedy, and no exception from its operation can he claimed unless such exception is expressly mentioned in the statute.
    The general words of a statute must receive a general construction, and unless there can he found in the statute itself some ground of restraint, it cannot he restrained by arbitrary addition or retrenchment.
    Appeal by the defendant, Zillah H. Wood, from a judgment of foreclosure and sale of the Supreme Court in favor of the plaintiffs, entered in tbe office of the clerk of the county of Westchester on the 17th. day of August, 1893, upon the decision of the court rendered after a trial at the Westchester Special Term, and also from such decision entered in said clerk’s office’ on the 12th day of August, 1893.

      A. J. Admis, for the ajipellant.

      Close (& Robertson, for the respondents.
   Brown, P. J.:

The only question necessary to discuss upon this appeal is whether the cause of action upon the mortgage in suit is barred by the Statute of Limitations.

The following facts appear from undisputed evidence, or were found by the trial court: Prior to tlie 3d day of March, 1856, Squire Wood, the husband of the appellant, was indebted to the respondents in the sum of $5,000. To secure payment of a part of such debt, Cyrus M. Ferris, a brother-in-law of Wood, on the date aforesaid, executed and delivered to the respondents his bond, conditioned to pay $750 three years after date, with interest, and as collateral security for the payment of said bond the mortgage in suit was executed by the appellant, who was the owner of the mortgaged property. In 1872 Ferris removed from this State to Connecticut, where he died in about the year 1891.

Wood paid $250 upon the principal of the bond and the interest thereon each year until March, 1890. He died in July, 1892. No payment of principal or interest was ever made by the appellant, nor did she ever authorize any one to make any payment on her behalf.

This action was commenced in 1893. Wood and Ferris joined in the execution of the mortgage, but Mrs. Wood assumed no personal liability for the debt.

The cause of action upon both bond and mortgage was complete on March 3,'1859. It was dearly outlawed at the time this action was commenced, unless the facts appearing in evidence bring it within some of the exceptions of the Statute of Limitations.

As to Ferris and the cause of action existing against him upon the bond, the operation of the statute was suspended during the period subsequent to his removal from the State. And the claim is made that the mortgage could be enforced as long as there was a valid, enforcible cause of action upon the bond. The respondents cite.two cases to sustain this proposition. (Heyer v. Pruyn, 7 Paige Ch. 465; N. Y. Life Ins., etc., Co. v. Covert, 3 Abb. Ct. App. Dec. 350.)

Neither of them touches the question here presented. In Ileyer v. Prv,yn there was a recognition of the mortgage as a valid incumbrance by an owner of the mortgaged property within twenty years preceding the commencement of the action, and all that was decided in that case was that a subsequent purchaser was bound by such acknowledgment.

H. Y. Life Ins., etc., Co. v. Covert discussed only the question of presumption of payment. The Statute of Limitations does not appear to have been pleaded. The court held that the presumption of pay ment, arising after the lapse of twenty years, was not available to the owner of the equity of redemption to defeat a foreclosure of a mortgage where the mortgagor had made payments within twenty years of the commencement of the suit, although not the owner of the property at the time of making such payments.

Judge Grover says, in the course of his opinion, that the mortgage would continue until the debt was in some manner discharged, unless released from the lien by some act of the holder of the mortgage ; but this remark was made in discussing the application to the facts of the rule of presumption of payment, and does not necessarily apply to the Statute of Limitations.

Hughes v. Edwards (9 Wheat. 489), referred to in the cases cited, was also a case of presumption of payment.

These cases sustain the proposition that the mortgage and the . cause of action thereon are subject to the dealings and acts of the debtor with reference to the debt, but they are not authority for the broad proposition that the Statute of Limitations does not run against a cause of action upon a mortgage as long as an action can be maintained upon the bond to which it is collateral. And the facts of this case, in my judgment, present a case where the cause of action on the mortgage has been lost while- that upon the 'bond remains. The obligor never did any act with reference to the debt which took it out of the operation of the statute, and in this respect the case here presented is different from those cited.

The only payments ever made upon the bond and mortgage were made by Squire Wood. While the debt secured was originally his, he was not liable upon the bond’ or mortgage. He did not sign the bond, and the land mortgaged belonged to his wife, and the only personal covenant in the mortgage is that of Ferris. No payment . was ever made on the bond by Ferris, and none by the appellant. Payments of principal and interest by Wood would not arrest the operation of the statute.

The bond matured on March 3, 1859. At that date the cause of action -upon both bond and mortgage was complete, and the Statute of Limitations began to run against it. Nothing appears in the evidence to. arrest the operation of the statute as to the appellant except the fact that before the expiration of twenty years Ferris removed from the State. This act suspended the running of the statute as against him. Whether it also suspended -the statute as to the cause of action against the owner of the mortgaged property is a question • that, so far as my examination goes, has not prior to this case been decided in this State.

The answer to the question, I think, is to be found in the statute •. itself.

. The Statute of Limitations' does not discharge a debt, but acts upon the remedy solely (Waltermire v. Westover, 14 N. Y. 16-20), and no exception from its operation can be claimed, unless it is expressly mentioned in the statute. (Bucklin v. Ford, 5 Barb. 394; Levy v. Newman, 130 N. Y. 11-14.)

“ General words of a statute it is considered must receive a general construction, and unless there can be found in the statute itself some ground of restraining it, it cannot be restrained by arbitrary addition or retrenchment.” (Bucklin v. Ford, supra.)

The Code of Civil Procedure provides (§ 381) that an action upon a sealed instrument must be commenced within twenty years after the cause of action accrued, but if after a cause of action has accrued against the person he departs from the State, etc., the time of his absence is not a part of the time limited for the commencement of the action. (§ 401.) This provision very plainly has reference solely to a cause of action against the person who departs from the State. It does not suspend the operation of the statute as to a person liable on the same cause of action who continues to reside within the State, nor was it intended to extend the time generally within which an action might be brought for the debt or the enforcement of a security collateral to the debt. It affects the remedy solely against the person who departs from the State. The appellant and Ferris were both liable to the plaintiffs, but their liability existed upon separate contracts and upon separate instruments. True, no action could be sustained on the mortgage without proof of the existence of the debt, but a sale of the mortgaged property would not have discharged the bond or released Ferris from his liability. In this respect the causes of action were separate and distinct. Ferris’ liability was personal, while the appellant’s was confined to the land mortgaged. Ferris was not a necessary party to a foreclosure of the mortgage, and the appellant could not be sued personally for the debt.

Assuming, however, that the two causes of action were so far connected and dependent that Ferris could by payment or acknowledgment have kept alive the debt on the bond, and thus have taken out of the operation of the statute the cause of action on the mortgage, no such case is presented. He never did any act with reference to the debt after the execution and delivery of the bond. His presence in or absence from the State was not material to the foreclosure of the mortgage, and did not affect the cause of action therefor in the slightest degree. Suppose he had been a non-resident at the date of the bond and mortgage and had never made a payment on it; would the statute never run against the mortgage? No reason is apparent to my mind why the fact of his removal from the State should suspend the operation of the Statute of Limitations as to the mortgage. The statute does not in terms declare such to be the effect, and it neither operated as an acknowledgment of the existence of the debt, nor affected the remedy on the mortgage.

To hold, therefore, that the statute did not run against the cause of action upon the mortgage, is to restrain its operation by an arbitrary addition to it. The conclusion here reached is supported by decisions in other States. (2 Jones on Mort. §§ 1210,1211,1212 and cases cited in notes.)

In my opinion the bar of the statute was complete at the commencement of the action, and the judgment should be l’eversed and a new trial granted, costs to abide the event.

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

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


author: Van Brunt, P. J.:

text:
    George H. Adams and Another, as Executors, etc., of Alice C. Barlow, Deceased, Appellants, v. Stephen H. Olin and Another, as Executors, etc., of Samuel L. M. Barlow, Deceased, Respondents.

      Effect of section 2718 of the Code of Civil Procedure on statutory references —- costs allowable.

    When the provisions of section 2718 of the Code of Oivil Procedure went into effect, n special proceeding theretofore instituted under the statute to determine a disputed claim against the estate of a decedent ceased to be a special proceeding, and became an action which was to be treated as such, in respect to all subsequent proceedings, and the defendant in such action, if successful in resisting the claim made against the estate, is entitled to costs as a matter of right, and the only discretion vested in the referee in regard to costs is in respect to those which may be allowed to a plaintiff against an executor who has not unreasonably resisted a claim against the estate which he represents.
    Appeal by the plaintiffs, George H. Adams and another, as executors, etc., of Alice C. Barlow, deceased, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of February, 1894, as directed that the defendants recover costs as taxed in the action, and granted them an extra allowance, and also from so much of an order made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of February, 1894, as confirmed the taxation of certain items of costs by the clerk, and overruled the plaintiffs’ objections thereto.

      George II, Adams, for the appellant.

      G. Z. Hives, for the respondent. .
   Van Brunt, P. J.:

This action was begun as a special proceeding únder the statute to determine a disputed claim against an estate. The matter was referred to a referee to' hear and determine, and after three trials and three hearings at the General Term a judgment for a large amount was recovered by the claimants. The defendants then appealed to the Court of Appeals, and before argument the Code of Civil Procedure in respect to these proceedings was amended. It was provided by section 2718 of the Code, as amended, that “ if the executor or administrator doubts the justice of any such claim (presented against the estate) he may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons, to be approved by the surrogate. On tiling such an agreement and approval in the office of the clerk of the Supreme Court in the county in which the parties or one of them reside an order shall be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such ail order the proceeding shall become an action in the Supreme Court. The same proceeding shall be had in all respects * * * as if the refer ence had been made in an action in which such court might by law direct a reference. In determining the question of costs the referee shall be governed by sections 1835" and 1836 of this act.” The sections referred to relate to the granting of costs against an executor or administrator. In October, 1893, the cause was argued before the Court of Appeals, and in November the Court of Appeals reversed the judgment (140 N. Y. 150), and on the first of December an order was entered in this court upon the remittitur from the Court of Appeals making the judgment of that court the judgment of this court. The plaintiffs thereupon withdrew then- claim, and stipulated that judgment should be entered against them dismissing the claim, and leaving the question of costs, whether taxable or not, to the court. An application was thereupon made for a judgment dismissing the plaintiffs’ claim and awarding restitution, and granting costs and an extra allowance. This motion being granted, costs were taxed by the clerk; and a motion being made for retaxation upon exceptions, the same was denied. From these orders the present appeal is taken.

It seems to us that by force of the provisions of section 2J18 of the Code when such section went into effect, this proceeding ceased to be a special proceeding and became an action and was to be treated as such in respect to all subsequent proceedings. No question could have arisen, had a new order of reference been made, that from the entry of such order the provisions of the Code would apply. The fact that the condition precedent of an order of reference had already been made upon a claim presented and disputed would not prevent the operation of the statute. Such being the case the defendants were entitled as matter of right to costs upon their successful defense of the claim presented against the estate which they represented. We think that it was the intention of the Legislature in reference to these proceedings to make them exactly parallel to those which take place in an action after a reference has been ordered; and that the only discretion which is vested in the referee in regard to costs is in respect to those which might be allowed to a plaintiff against an executor who had not unreasonably resisted a claim against the estate which he represented.

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

Follett and Parker, JJ., concurred.

Orders affirmed, with ten dollars costs and disbursements.


author: Yan Brunt, P. J.:

text:
    William H. Fletcher and Another, as Executors, etc., of George Sargent Stringfield, Deceased, Plaintiffs, v. Massachusetts Benefit Life Association, Defendant.

      A stipulation that a complaint is inpi'operform admits a ccmse of action.

    A stipulation entered into between the parties to an action adjourning the trial thereof, and containing an admission on the part of the defendant that ‘' the complaint is in proper form” is an admission by the defendant that the complaint states a cause of action in favor of the plaintiff as against the defendant, and is not demurrable.

      Motion by tbe plaintiffs, Williamil. Fletcher and another, as executors, etc., of George Sargent Stringfieid, deceased, for a new trial on a case containing exceptions ordered to be heard at the General Term in the first instance, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the New York Circuit.

      Louis Marshall, for the motion.

      J. LL. Haywa/rd, opposed.
   Yan Brunt, P. J.:

The question involved upon this motion depends upon the construction of the stipulation entered into between the parties during the pendency of this action and before its trial. This action was brought by the executors of one George S. Stringfieid to recover upon a policy of insurance issued by the defendant upon the life of said Stringfieid. And the question which is now urged is that the cause of action upon the policy of insurance does not reside in the plaintiffs. By the policy, which forms the basis of the action, the defendant agreed to pay to Annie L. Stringfieid, the wife of the assured, if living, if not, to the heirs of the assured, in sixty days after due proof of death. The contract of insurance also provided that no suit should be brought thereon unless such suit should be commenced within one year and sixty days from the termination of the life of the party to whom it was issued, it being an express condition thereof that all rights of action thereunder were limited to said period of one year and sixty days.

The defendant in this action was a Massachusetts corporation, and it is claimed upon the part of the plaintiffs that the contract in question is a Massachusetts contract, and that under the Massachusetts law actions of this character must be brought by the executors of the assured. It is urged upon the part of the defense, however, that the rules governing the bringing of actions in this State musí; control, and that such action must be brought by the parties in interest, namely, the lieirs at law of the assured. After the action was at issue the parties entered into a stipulation by which the defendant made certain admissions to be used upon the trial, provided that the trial did not take place prior to the 1st of January, 1894, a date at which tlie right to bring any action upon the policy would have expired under the limitation above mentioned, and among other things admitted that the complaint herein is in proper form.

Upon the tidal this stipulation was admitted in evidence, and the other facts necessary to a recovery wrere proved. Whereupon the complaint was dismissed upon the ground that a recovery could not be had by the plaintiffs. And upon this appeal it is urged that although in Massachusetts an action might be brought by executors upon a contract of the description above mentioned, such action cannot be maintained in this State. The plaintiffs, although not admitting the truth of this contention, yet evidently feeling its force, contend that such an objection was waived by the stipulation which was entered into as a condition for the postponement of the trial until after the 1st of January, 1894, that the complaint was in proper form. The object of postponing the trial until after the 1st of January, 1894, is apparent; and that is that no other action could be brought against the defendant upon this policy, and if it was paid to the plaintiffs, although they perhaps were not the real parties in interest, no other person could come upon them for repayment, the limitation of the time for bringing an action having expired. It is also perfectly clear that the plaintiffs in procuring the stipulation that .the complaint was in proper form, and consenting to postpone the trial, supposed that they were eliminating the question as to the proper parties being before the court.

What does the phrase The complaint is in proper form,” mean ? Can it mean anything except that the complaint states a cause of action in the plaintiffs against the defendant •— in other words, is not demurrable ? It appears upon the face of the complaint that this action, is brought on this policy by the plaintiffs as the executors of the assured. The contract between the insurance company and Stringfield is made a part of the complaint, and, therefore, the objection as to the action not being brought by the proper parties appears upon the face of the complaint. Now, a party having stipulated that the complaint is in proper form, can he be allowed to demur upon the ground that the complaint does not state facts sufficient to constitute a cause of action? If so what does the stipulation mean ? Evidently nothing. The parties undoubtedly supposed that they were stipulating in respect to something when they so entered into it. It seems to us that the only construction to be placed upon this stipulation is that the defendant, having admitted that the complaint was in proper form, intended to admit that a cause of action in favor of the plaintiffs was set out therein. And it did that as a condition of being relieved from any embarrassment by reason of other suits being brought, there being some question as to who was the party who might maintain the same.

We think, therefore, that under these circumstances the court erred in dismissing the complaint upon the ground that the plaintiffs had no canse of action.

The exceptions should be sustained and a, new trial' ordered, with costs to the plaintiffs to abide the event.

Foulett and Parker, JJ., concurred.

Exceptions sustained, new trial ordered, with costs to plaintiffs to abide the event.