author: Barrett, J.:

text:
    In the Matter of the Judicial Settlement of the Account of EDGAR J. SHIPMAN, as Executor, etc., of HARRIET C. SHIPMAN, Deceased.

      When a surrogate cannot require an executor to gire security — the power is limited to the authority conferred by section 2685 of the Gode of Giril Procedure.

    In 1882 Mrs. Shipman died leaving a will, by the fifteenth clause of which she gave her residuary estate to her husband, Edgar J, Shipman, absolutely. By the sixteenth clause she revoked the bequests of the fifteenth, should children be thereafter born to her and survive her, and in that event gave her residuary estate to her husband “ during his life, to be divided equally between our surviving children after his death,” and she appointed her husband the executor. One child was subsequently born to' and survived Mrs. Shipman.
    Upon the judicial settlement of Mr. Shipman’s accounts as executor the Surrogate’s Court authorized him to pay over to himself, as life-tenant, the residuary estate, upon his giving security to protect the interests in remainder, and also directed that, in case Mr. Shipman should individually decline to receive the corpus of the estate upon the condition of giving security, he should then, as a condition of retaining it as executor, give a similar bond, and in default of giving such bond that he should deposit the entire fund with the chamberlain of the city of New York, to be by him invested, he to pay the income to the tenant for life and the principal to the remainderman upon the termination of the life estate.

      Held, that the latter part of the decree was made without authority, as the surrogate thereby attached to the executor’s office a condition imposed neither bylaw nor by the testatrix.
    That the surrogate’s power was limited to the revocation of the letters testamentary for one of the causes specified in section 2685 of the Code of Civil Procedure.
    That, as in the case at bar there was no trust relation other than that attached to every executor’s office, nor any provision in the will calling for the exercise of judgment or discretion, that there was no rule of law'or requirement of public policy which, under such circumstances, and in the absence, as matter of fact, of any necessity therefor, which authorized the court to require security from the executor and, in case of non-compliance, to compel the deposit of the estate with a public official, thus, in effect, removing the executor from his office and frustrating the will of the testatrix.
    Appeal by Edgar J. Shipman, as executor of the last will and testament of Harriet C. Shipman, deceased, from that portion of a decree made at the New York Surrogate’s Court on March 18,1889, which required the executor to give security as a condition of retaining the residuary estate.

      Lewis L. Delafield, for the executor, appellant.

      Meyer Butzel, special guardian, respondent.
   Barrett, J.:

Mrs. Shipman died in 1882, leaving a will which contained alter native provisions. By the fifteenth clause of this will she devised' her entire residuary estate to her husband, Edgar J. Shipman, abso. lutely.” By the sixteenth clause she revoked the bequests of the fifteenth, should children be thereafter born to and survive her. In the latter event she devised her entire residuary estate to her husband “ during his life, to be divided equally between our surviving children after his death,” and she appointed her husband as executor. One child was subsequently born to and survived Mrs. Shipman. Mr. Shipman is thus entitled to the residuary estate for life and the remainder is vested in the child. Upon the judicial settlement of Mr. Shipman’s account as executor, the surrogate authorized him to pay over to himself, as life tenant, the residuary estate upon his giving security to protect the remainderman. This direction is acquiesced in by Mr. Shipman. But the surrogate further decreed that in case Mr. Shipman should individually decline to receive the corpus of the estate upon the condition as to security, he should then, as a condition of retaining it as executor, give a similar bond, and in default of giving such bond that he should deposit the entire fund with the chamberlain, the latter official then “ to invest the same and pay the income to said life tenant,” and the principal of said fund to the remainderman upon the termination of the life estate.”

From this part of the decree Mr. Shipman appeals. It seems, quite plain to us that this part of the decree was without authority. The surrogate thereby attached to the executorial office a condition imposed neither by law nor by the testatrix. The surrogate’s power is limited to the revocation of the letters testamentary for one of the causes specified in section 2685 of the Code of Civil Procedure. It is not pretended that Mr. Shipman’s case comes within any of these causes. He is admitted to be a gentleman of probity, and of ample responsibility, and there is no suggestion of misconduct or of personal disqualification. The decree is founded solely upon the fact that the life estate and the executorial office are united in the

same person, and that the principle which requires security from the life tenant, when the corpus of the estate is delivered over to Mm, would be frustrated if Mr. Shipman were permitted to. retain the estate as executor without security. The answer to this suggestion is that such was Mrs. Shipmcm’s will, and that, however desirous the courts may be to afford special protection to the remainderman (especially when the latter is an infant), they cannot effect that end by frustrating the lawful intention of the testatrix. She evidently had implicit confidence in her husband; she always speaks of him as her “ dear husband.” She gave him her entire estate absolutely in case she died childless. In the alternative disposition she uses the simplest language, words suggestive of complete trust. She undoubtedly acted upon the not unnatural idea that he would treat his own children honestly. A provision in such a will appointing her “ dear husband ” executor, upon Ms gwmg a bond to secure the children, would have been most surprising and incongruous. The surrogate fell into an error in supposing that the executorial function will cease upon the settlement of the accounts and the entry of the decree thereon, and that thereafter the executor will hold the estate as a trustee under the will. There is, of course, a species of trust attached to every executorial office, and, as was said by the chancellor in Bowers v. Smith (10 Paige, 199), “the executor always takes the legal title to the personal estate of the testator as a trustee.” That meant notMng more than that he was within the jurisdiction of the Court of Chancery. But there is a wide difference between the trust which is attached to the executorial office and an active trust founded upon the creation of a trust estate. Here there is no trust estate, no active trust, and no testamentary trustee. The duty of the executor as such continues until the falling in of the life estate.

This is the settled rule as laid down in a long line"of cases. (Spear v. Tinkham, 2 Barb. Ch., 214; Covenhoven v. Shuler, 2 Paige Ch., 132; Livingston v. Murray, 68 N. Y., 492; Smith v. Van Ostrand, 64 id. 281; Bliven v. Seymour, 88 id. 477.) That duty is to convert the personal estate into money, invest it in permanent securities and pay over the income to the life tenant. This duty has been unconditionally imposed upon the present executor by the testatrix, and for that purpose he has been put in lawful possession of the estate. He can neither be deprived of that possession nor prevented from performing that duty so long as he conducts himself with propriety and violates no provision of law. The error complained of, doubtless, grew out of a supposed analogy between the security ordinarily required of a life tenant and the-security required by the present decree. It will be observed, however, that a life tenant is not absolutely entitled to the possession of the estate, and that the intention of the testator limits him to the enjoyment of the income. To effectuate that enjoyment in the most advantageous manner, and at the least expense to himself, he is permitted to take the corpus of the estate upon giving adequate security to the remainderman. If he is unable to furnish such security, the executor must retain the principal and pay over to him -the income. Thus the delivery of the principal to the life tenant is in the nature of a favor to which a court of equity attaches the just condition of adequate security. Here, however, the executor asks no favor. The corpus of the estate is in his hands, intrusted to him Dy the testatrix, and his position with regard to it is the same, in principle, as if the life estate were vested in another person.

The cases, with regard to trustees and cestuis que trust, are entirely inapplicable. They proceed upon the principle that a beneficiary should not be permitted to act as trustee for himself, where the éxercise of discretion or judgment is called for, as, where the income of a trust fund is to be applied to the maintenance of a particular beneficiary, with discretion in the trustee, in case the income prove insufficient, to apply part of the principal. There, and in similar exercises of judgment, it would be manifestly improper that the trustee and beneficiary should be united in the same person. Such is the principle of Bundy v. Bundy (38 N. Y., 410) and of Rogers v. Rogers (111 N. Y., 228). In both of these cases there were trust estates. In the former the court required the executors to give security, not, however, as executors, but as trustees. The duty there under consideration was not attached to the executorial office, and as no trustee to perform the duty was named in the will, the court regarded the provision for security as, in effect, a conditional appointment as trustee. Judge Grover’s language makes this entirely clear: “The judgment provides that the executors, upon giving proper security, shall continue in charge of the fund. In this there is no error. The will not having designated a trustee for this purpose, it was competent for the court to appoint a trustee. This may be regarded as such appointment.”

In Rogers v. Rogers the court held that the fact that one of several testamentary trustees is a beneficiary did not incapacitate him from acting as trustee. He was simply disqualified from sitting in judgment upon his own rights or privileges. In the latter respect his co-trustees could exercise the control and judgment improper for him, and in ease the other trustees declined to act, the court could either supply their place or take upon itself the execution of the trust, so far as it ought not to be executed by the trustee and beneficiary.

These cases are in entire harmony with the general principle that although the court, when called upon to appoint a trustee, will not ordinarily appoint as such a cestui que trust, yet the latter is not absolutely, and under all circumstances, excluded from occupying the trustee relation for his own benefit. (Moke v. Norrie, 14 Hun, 128 ; Perry on Trusts, § 59; Ex parte Conybear's Settlement, 1 Week. Rep., 458; In re Moke, 2 Redf., 430.)

In the case at bar there is, as we have seen, no trust relation other than that attached to every executorial office. Nor is there any provision in the will calling for the exercise of judgment or discretion. The executor’s duties here are such as the law ordinarily imposes on executors. They are, indeed, unusually simple. He is called upon to invest the estate in permanent securities and to pay over to himself the income for fife — when the principal goes to his son. There is no rule of law or requirement of public policy which, under such circumstances and in the absence, as matter of fact, of any necessity, authorizes the court to require security from the executor, and in case of non-compliance to compel the deposit of the estate with a public official, thus, in effect, removing the executor and frustrating the will of the testatrix.

The part of the decree appealed from should be reversed and a decree made, in accordance with the views herein expressed, with costs to the executor to be paid from the estate, and also the costs and disbursements of the guardian ad litem to be taxed and paid out of the estate.

Yan Brunt, P. J., concurred.

The part of the decree aj>pealed from should be reversed and a decree made, in accordance with the views expressed in opinion,, with costs to the executors to be paid from .the estate, and also the costs and disbursements of the guardian ad litem to be taxed and paid out of the estate.


source: Caselaw Access Project

license: Public Domain

text:
    THE UNITED STATES LAND AND INVESTMENT COMPANY, Appellant, v. WILLIAM G. BUSSEY, Respondent.

      Undertaking in replevin — the court cannot require an additional undertaking.

    In an action of replevin the plaintiff, in its replevin affidavit, stated the actual value of the property claimed. The defendant insisted that the value thus taken was less than the true value. He excepted, however, to the plaintiff’s sureties, but, before justification, he moved to require of the plaintiff a larger undertaking. The court thereupon ordered a reference to ascertain the real value, from which order the plaintiff appealed.
    Held, that the court had no power to require an additional undertaking, and, as the reference was superfluous, the order should be reversed.
    That the court’s authority must be looked for in the statute, and, if not found there, as the authority to require an additional undertaking was not in this case, it did not exist.
    That the authority of the court is distinctly specified in section 1705 of the Code of Civil Procedure, and is limited to the provisions thereof in regulating the justification of bail.
    That if there had been a casus omissus which might lead to oppression, it was for the legislature to remedy the mischief.
    Appeal by the plaintiff from an order made at a Special Term held in the county of New York, directing a reference in an action of replevin, which order was entered in the office of the clerk of the county of New York on March 22, 1889.

      Walter S. Cowles, for the appellant.

      WilUwm. C. Bussey, in person, respondent.
   Barrett, J.:

The question presented by this appeal is one of power. The plaintiff, in its replevin affidavit, stated the actual value of the projierty claimed.and gave an undertaking appropriate thereto. The defendant insists that the value thus stated is less than the true value. He excepted, however, to the plaintiff’s sureties, but, before justification, he moved to require of the plaintiff a larger undertaking. The court thereupon ordered a reference to ascertain the real value, and the plaintiff appeals from the order. If the court had no power to require an additional undertaking, the reference was, of course, superfluous, and the order should be reversed. We think the plaintiff is right in its contention, and that the court, without further inquiry, should have denied the motion for want of power. The court’s authority on this application must be looked for in the statute, and it is not to be found there. The replevin system is a minute and complicated one. It cannot be altered or broken in upon to meet the hardship of a particular case. If there has been a casus om.issus which may lead to oppression, it is for the legislature to remedy the mischief. When a plaintiff deliberately minimizes the value of the property claimed, he rnns the risk of a rebonding at the same value. That would seem to be the sole check upon undervaluation provided by the statute; that check is amply sufficient where the defendant is able to rebond. If he be unable to rebond, there is no other way of securing him. He must then rely upon the plaintiff’s personal responsibility in addition to the undertaking given. The authority of the court is distinctly specified. Under section 1705 of the Code of Civil Procedure it is limited to the provisions regulating the justification of bail. Thus the court may, upon the replevin justification, permit the substitution of new sureties or of a new and amended undertaking. But it. cannot try, in this preliminary way, the question of value, and direct the plaintiff to give an undertaking appropriate to the conclusion arrived at on that head. The exercise of such a power would practically destroy the entire system so elaborately constructed by the Code, and would substitute discretion and equity for the strict legal rights contemplated by the scheme.

Courts have exercised power of the general character contended for only where the granting or witholding of a provisional remedy was within the judicial discretion. A judge may grant an attachment upon an undertaking in $250 and the court may vacate it, unless the plaintiff increases the security. So, also, with an injunction or order of arrest. The replevin writ, however, is not discretionary. It is not even ordered by tbe court or by a judge. The plaintiff’s requisition is deemed the mandate of the court (§ 1694), but the court has no control over its issuance nor over the subsequent proceedings, except to vacate for irregularities, and, in general, to see that the statutory provisions are duly executed. In De Reguie v. Lewis (3 Robt., 708), it was said, in considering similar provisions of the old Code, that a party was not entitled “ to have any other than the. undertaking approved by the sheriff, however inadequate the amount for which it is qi/oenP The same strict view was taken with regard to another branch of the statute. In Manley v. Patterson (3 Code R., 89), Edmonds, J., observed, “ that after the property has been delivered to the plaintiff he could discover no power in the court to order it re-delivered to the defendant, except on final judgment, nor any mode in which an order for its re-delivery, prior to judgment, can be enforced, so that it would seem, that when the property has been delivered to the plaintiff, even %ohen his sureties a/re utterly worthless, the statute has provided no remedy, except the sheriff’s responsibility for the plaintiff’s omission to justify his sureties.” This difficulty seems to have been obviated by the present Code (§ 1706).

In Knehue v. Williams (1 Duer, 597), Dueb, J., denied a motion to set aside the proceedings made upon the ground that the plaintiffs, in the affidavits which they were to make „to obtain a delivery, had sworn that the document (which was the subject of the writ) had a certain value. “ I apprehend,” he said, “ that L hare no right now to sa/y that this allegation is erroneous or falseP

In Nosser v. Corwin (36 How. Pr., 543), Brady, J., remarked that “the remedy which is accomplished is perfect without any allowance either by the court or judge or sheriff, depending only upon the condition that sureties be given in conformity to the statuteP (Hofheimer v. Campbell, 59 N. Y., 269; Cullen v. Miller, 5 Abb. N. C., 282.) The analogies from the rules with regard to security for costs, stay of proceedings on appeal, and similar subjects, favor the view which we entertain as to this limitation of power. It was not until special provision was made by statute that the courts felt authorized to require a new undertaking on appeal, even when the original sureties became insolvent. (Willett v. Stringer, 15 How. Pr., 310.) So, also, as to security for costs. (The Hartford, Quarry Co. v. Pendleton, 4 Abb. Pr., 460; opinions of Brady, J., at Special Term and of Ingraham, J., at General Term.) And in the late case of Republic of Honduras v. Soto (112 N. Y., 310) the Court of Appeals held that while under the present Code the court may require an additional undertaking, when the original undertaking in $250 is insufficient, yet where there is a deposit of $250 instead of an undertaking the plaintiff cannot, under any circumstances, be required to make a further deposit. This is simply because the power is specified in the one case and not in the other. The court (Ruger, Ch. J.), quoted from the People v. Woodruff (32 N. Y., 364): It is wiser and safer to leave the legislative department to supply a supposed or actual casus omissus than attempt to do it by judicial construction.”

The order should, therefore, be reversed, with the usual costs and disbursements, and the motion denied, with costs.

Tan Brunt, P. J., and Brady, J., concurred.

Order reversed, with the usual costs and disbursements and the motion denied, with costs.


author: Daniels, J. : Barrett, J.: Yan Brunt, P. J.:

text:
    MILO HINE, Respondent, v. NATHAN CUSHING, Appellant.

      Liability of an owner of a building in making repairs thereto — liable for fires a/rising in the building and spreading to an adjoining building — cross-examination — hypothetical questions:

    In an action, brought to recover for a loss sustained by one Milo Hine by the burning of a building on the 5th day of May, 1885, the fifth story of which was occupied by him, against the owner of this and an adjoining building in which latter the fire originated, it appeared that the property was situated in the city of ’Brooklyn, and was devoted, through leases, to different kinds of manufacturing-industry. At the time the building was burned restorations and repairs in the building adjoining that occupied by the plaintiff were being made, under the direction and authority of Mr. Abbot, the defendant’s agent, which consisted in part in the construction of a new pier to support one of the main girders of the building- at its westerly end.
    Upon the removal of the jack-screws, which had been placed at the ends of the girder to sustain the floor of the building, and immediately after the weight of the building was in this manner iilaced upon the pier, the evidence tended to establish the fact that the floor above gave way and the other floors followed it. In the business carried on by different tenants in - the building fires were used, and by the falling of the floors these fires were brought in contact with combustible material, setting fire not only to this building, but afterwards to the one occupied by the plaintiff, and thereby destroying the property, to recover for which the action was brought. Between the building occupied by the plaintiff and the one in which the fire originated a space was appropriated to the maintenance of an elevator, closets and stairway, and each building connected with this space by means of doors. The evidence tended to prove the fact that through this open space the means of passing from one building to the other was supplied. After the fire commenced it immediately burned its way through the space occupied by the elevator, closets and stairs, into the building in which the plaintiff carried on his business, and it progressed so rapidly as to render it impossible to remove from the fifth story of the building any of the plaintiff’s machinery or other property which was there situated.

      Held, that there was evidence supporting the conclusion of the referee that the fire was caused by the negligence of the defendant’s agent.

      Webb v. Rome, Watertown and Ogdensburg Railroad Company (49 N. Y., 420); Milwaukee, etc., Railroad Company v. Kellogg (94 U. S., 469); Tanner v. New York Central, etc., Company (108 N. Y., 623) followed; Ryan v. New York Central Railroad Company (35 id., 210); Judd v. Cushing (50 Hun, 181) distinguished.
    That the plaintiff was entitled to recover for the loss of profits in his business, as that loss was reasonably well maintained by the evidence.

      Wakeman v. Wheeler (101 N. Y., 205) followed.
    Upon the trial Frank W. Miller, who applied the screws to raise the floor and support the building, was sworn on behalf of the defendant. His counsel, considering that the testimony of the witness was not as favorable to him as it should have been, called the latter’s attention to what was stated to be his evidence given upon the trial of the Judd case. After this evidence was read to the witness he was asked whether he appeared and gave the testimony, and an objection taken by the plaintiff was sustained and the answer excluded.

      Meld, that as the defendant was not surprised by the testimony of this witness, and as he did not appear to have been a hostile witness, and as the questions were put upon the redirect-examination, after the witness, upon cross-examination, had admitted making an affidavit somewhat modifying his -direct testimony, that the defendant could not, under such circumstances, under the guise of a cross-examination of his own witness, make direct testimony out of the previous declarations of the witness.

      Bullard v. Pearsall (53 N. Y., 230) distinguished.
    That the previous testimony of the witness was not admissible, nor could the witness he interrogated with regard to it, merely for the purpose of giving color and strength to the present direct testimony, there being no inconsistency between the latter and the former.
    That the defendant was deprived of no legal right by the exclusion of these declarations. (Daniels, J., dissenting.)

      'The referee also allowed an affidavit made by the witness Miller to be read to contradict his testimony ; portions of which affidavit, it was claimed by the defendant’s counsel, had no relevancy to the answers sought to be ’contradicted.

      .Held, That the admission of the entire affidavit was unobjectionable, as the referee expressly limited its use to its proper function, namely, the showing of statements inconsistent with the witness’ present testimony. (Daniels, J., dissenting.)
    'The plaintiff’s counsel was permitted, upon the cross-examination of a witness to interrogate him concerning the building laws, applicable only to buildings in the city of New York, and having no application whatever to premises which were situated in the city of Brooklyn, and after interrogating him upon this subject, the sections of the law were allowed to be read upon the trial.

      .Held, that this was immaterial and could not possibly be prejudicial to the defendant, and was also superfluous, as the laws of the State can be referred to without being put in evidence. (Daniels, J., dissenting.)
    Hypothetical questions in regard to the character of the work were put to one of the plaintiff’s witnesses. One of these questions included a great variety of subjects, extending from folios 2560 to 2572 of the case, which was then changed and modified, and the witness was allowed, against the defendant’s exception, to answer it.

      Held, that a new trial should not be granted merely because the questions put to the witness were intricate and prolix, nor because of the manner in which this useless and harmless testimony was taken. (Daniels, J., dissenting.)
    Appeal by the defendant from a judgment entered upon the report of a referee in the office of the clerk of the county of New York on the 30th day of April, 1888.

      Albert Stickney and Samuel H. Ordway, for the appellant.

      John E. Parsons, for the respondent.
   Daniels, J. :

The judgment was recovered for the loss sustained by the plaintiff in the burning of a building on the 5th of May, 1885, the fifth .story of which was occupied by him. A controverted fact in the case was, whether the defendant was the owner of this and adjoining buildings, and in their possession at the time when the fire • occurred. Evidence was given upon the trial from which these facts could be readily as well as reasonably inferred. In this evidence were statements and declarations of George L. Abbott, who had the superintendence and management of the buildings, asserting the fact of his agency. A part of this evidence, consisting in his admissions, may not strictly have been admissible as proof of the agency, although it tended to establish the fact that his own understanding was that he was acting only in that capacity. It will not be necessary, critically, to consider the admissibility of all this character of evidence, for the reason that the admissible proof was such as to leave no substantial ground of controversy concerning the defendant’s title and possession, and the fact that he was represented in the management and use of the property by Mr. Abbott as his agent. Proof of this description was considered in Judd v. Cushing (50 Hun, 181), and the conclusion was adopted, both that the defendant was the owner of the property, and was in its possession and management through Abbott, as his agent, at and before the time of the fire.

The property was situated in the city of Brooklyn, and it was devoted, through leasings, to different kinds of manufacturing industry. The motive power for the machinery employed was supplied by the defendant, and the occupants of the different parts of the buildings applied it to their own machinery by bands passing over the main lines of shafting propelled by the engine used and operated as a part of the defendant’s property. Alterations and repairs in the building were made under the direction and authority of Mr. Abbott, the defendant’s agent. They consisted in part in the construction of a new pier for the support of one of the main girders of the building near its westerly end. The old pier was found to be out of line. The new pier was built upon the same foundation, but instead of terminating under the girder the timber was cut in two, a portion of it was removed, and the pier carried up through it and through the story above. This work was commenced on Wednesday afternoon, the twenty-ninth of April. The pier was built on Thursday and finished by putting a capstone upon it on Saturday, To afford an opportunity for building the pier in this manner jack-screws were placed under the ends of the girder, which sustained the floor of the building, without the aid or assistance of the pier, and posts between that floor and the floor above sustained the upper parts of the building. The screws remained under the girder until Tuesday morning, the fifth day of May, when they were removed by the direction of this agent and the building allowed to settle upon the pier. Immediately after the weight was in this manner placed upon the pier which was larger than that previously maintained in the building, the evidence tended to establish the fact to be that the floor above gave way and the others above it followed. In the business carried on by different tenants in the building fires were used and employed, and by the falling of the floors these fires were brought in contact with combustible material, setting fire not only to this building, but afterwards to the one occupied by the plaintiff, and thereby destroying the property in controversy.

It was strenuously objected on the trial before the referee, and the objection has been urged, in support of the appeal, that under the principle maintained by the case of Ryan v. New York Central Railroad Company (35 N. Y., 210), no liability attached to the defendant for the destruction of the 'plaintiff’s property in this manner. He was a tenant in the occupancy of the building under the defendant. Between this building and that in which the fire originated a space was appropriated to the maintenance of the elevator, closets and stairways. And each building communicated with this space by means of doors. The evidence tended to prove the fact, and it was not, in this respect, seriously controverted, that through the open spaces, means of passing from one building to-the other were supplied. The elevator was connected with each story of the building above the ground floor, and it communicated on the east with the building occupied by the plaintiff, and on the-west with that in which the fire occurred. Both the stairs and the-elevator seem to have been used for the joint convenience of each of these structures. And after the fire commenced it immfdiately burned its way through the space occupied by the elevator, closets- and stairs, into the building in which the plaintiff carried on his business, and it progressed so rapidly as to preclude the possibility of removing from the fifth story of the building any of the plaintiff’s machinery or other property, which was there situated. "Whether the defendant, as the owner and landlord of these buildings, would be legally liable for a destruction of the property by fire in the building occupied by the plaintiff was not a point in controversy in Juddv. Cushing (supra). And what was said incidentally in the decision of the case, by way of reference to that point, is, of course, not controlling in this case. The facts, as they have now been presented for decision, justified the referee in finding as he did, that the proximate cause of the plaintiff’s loss was the fire produced through the alleged negligence of the defendant’s agent, in the building in which the floors were shown to have given away. There was no intervening fact or circumstance, as there was in the case of Ryan v. New York Central, etc. (supra), by which the fire was carried from one building to the other. But it proceeded from the place where it commenced, by its own progressive ravages, into this connected building occupied by the plaintiff, and there caused the destruction of his property. The cause of this destruction was, therefore, the fire in the westerly building. Naturally and inevitably it burned its way through until the other building was reached and consumed. And when that is sustained by the evidence as the fact, the party by whose negligence the fire was in the first instance •caused is the party producing the destruction of the property in controversy. This subject was further considered in Webb v. Rome etc., Railroad Company, (49 N. Y., 420), where the fire which was communicated by a locomotive upon the defendant’s railway to a tie at the side of the track, proceeded from the tie to an accumulation of weeds and grass cut down by the side of the track. From thence it was conducted to a fence, and then upon the plaintiff’s land, burning the trees and soil, and finally doing the damage complained of in the action. And the court held there that the defendant was liable for the loss in that manner produeed. And in the course of the opinion, which seems to have received the approval of all the members of the court, it was said that “ It certainly is» not a novel proposition, that he who, by his negligence or misadventure, creates or suffers a fire upon his own premises, which, burning his property, spreads thence on to the immediately adjacent premises of another, and there destroys the property of the latter, is liable to him in an action for the damage which hé has suffered.” (Id. 425.) And it was further announced as the common law, “ that he who negligently sets or negligently manages a fire in his own property is liable to his immediate neighbor for the damage caused to him by the spread of the fire on to his neighbor’s next adjacent property.” (Id. 426.) An effort was made in that case to relieve the defendant from liability under the statute of Anne, as it was afterwards amended, declaring that, “No action, suit or process whatever shall be had against any person in whose house, chamber stable, barn or other building, or on whose estate any fire shall * * * accidentally begin, nor shall any recompense be made by such person for any damage thereby.” But, assuming this statute to have become a part of the common law, it was held by the court that it did not include or relieve the owner from liability for the destruction produced by a fire arising from its negligence. The principle was further considered in Milwaukee, etc., Railway Company v. Kellogg (94 U. S., 469), where the law wss declared and considered to be that “ The primary cause may be the proximate-cause of a disaster, though it may operate through successive-instruments, as an article at the end of a chain may be moved by a-force applied to the other end, that force being the proximate cause of the movement.” * * * “ The question always is, was there an unbroken connection between the wrongful act and the injury, a continuous operation % Did the facts constitute a continuous succession of events, so linked together- as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury ? It is admitted that the rule is difficult of application. But, it is generally held, that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” (Id., 474, 475.) And this case, by the evidence, has been brought within the direct application of the principle here enunciated. For no intervening cause whatever arose to change or accelerate the progress of the fire after it originated, but it progressed, by its own natural action and momentum, into the building occupied by the plaintiff, and there produced the destruction of this property. And for that, if the fire was caused by the negligence of the defendant’s agent, he was hable for the loss. And the principle applied in this manner seems to have been followed in Tanner v. New York Central, etc., Company (108 N. Y., 623).

And that there was evidence supporting the conclusion of the referee that the fire was caused by the negligence of the defendant’s agent abundantly appears from the case. This pier was a new and untried structure' at the time when the weight of the floors of the building was let down upon it. As the evidence presented the case, there was reason for believing that the pier gave way from this weight, and in that manner precipitated the fall of the floors. And the natural result or consequence of that fall was the firing of the building and the destruction of the adjacent structure occupied by the plaintiff. And were it not for other rulings arising in the course of the trial, there would seem to be no difficulty in the way of sustaining this recovery. For while it included the loss of profits, that loss was reasonably well maintained by the evidence. And when that may be the ease, under the authority of Wakeman v. Wheeler, etc., Company (101 N. Y., 205), such profits may be' allowed as a part of the damages.

The screws were applied to raise the floors and support the building while the pier was being constructed by Frank W. Miller, a witness produced and sworn on behalf of the defendant. • His counsel, considering that the testimony of this witness was not as favorable to him as it should have been, called his attention to what was stated to be his evidence given upon the trial of the Judd case. After this evidence was read to the witness he. was asked whether he remembered giving that testimony. This was objected to on the part of the plaintiff as irrelevant, incompetent and immaterial, and because it did not appear that it was claimed that the reading of the testimony accurately gave what the witness had sworn to in the other case. This objection was sustained and the answer was excluded, and to that ruling the defendant’s counsel excepted.

There is no reason presented by the case for supposing that the evidence was in any respect inaccurately read to the witness. The questions and answers, on the contrary, indicate the probable .accuracy of the reading. And it was relevant and competent for the defendant to draw the attention of the witness to his evidence upon the preceding trial by way of refreshing his recollection, as that was proposed to be done on this occasion, and then to ascertain from him whether his testimony, as it had been given before the referee, was strictly accurate in these respects or not. Similar inquiries were made of this witness as to other portions of his evidence, and he was not permitted to answer those inquiries, and to the rulings excluding such answers the defendant again excepted. Why these rulings have been made in the case is in one respect unaccountable, for similar questions were put to the witnesses Thomas Clark and Edward Tonng, to which they were permitted to return their answers without objection. And that course should have been followed and the witness Miller allowed to answer the inquiries in this manner made of him concerning his testimony on the preceding trial; for in Taggart v. Murray (53 N. Y., 233) it was held by the court that the party in whose favor a witness may be sworn and examined on the trial has the legal right to interrogate the witness in this manner to revive and correct his recollection. The testimony of this witness bore directly upon the fact of the negligence of the defendant’s agent in the conduct of these repairs or changes which were made in the building. And that fact was not so conclusively established by the other evidence as to render the exclusion of these answers harmless. By these rulings the defendant was deprived of a legal right to refresh the recollection of his witness, and in that manner, if it could be done, to obtain more favorable answers from him than those which he had given.

The plaintiff’s counsel was also permitted, upon the cross-examination of the witness Robert E. Hatfield, to interrogate him concerning the building laws applicable only to buildings in the city of New York, and having no application whatever to the premises in controversy. And after interrogating him upon this subject the sections of the law were allowed to be read upon the trial. This was obviously improper, for these enactments could have nothing whatever to do with this controversy.

The referee also permitted an affidavit made by the witness Miller to be read to contradict his testimony. It was urged by the defendant’s counsel that portions of the affidavit having no relevancy to the answers of the witness should be excluded. But that was overruled by the referee, and the entire affidavit was allowed to be read. This was improper, for what the plaintiff had the right to do, and all that he was entitled to use the affidavit for, was to contradict the statement made upon the inquiry put to the witness Miller. Thar part of it was admissible, but the residue should have been excluded.

Hypothetical questions of an intricate and prolix character were put to the plaintiff’s witness Robert H. Robertson. One of these questions, including a great variety of subjects, extends from folio 2560 to 2572 of the case, and it was then in material respects changed and modified, and the witness was allowed, against the defendant’s exception, to answer this question. That should not have been done for the reason that the question itself was too intricate and prolix to secure any advantageous evidence in the case. Perhaps, in that respect, and from the answers given by-the witness to the question and modifications of it, the evidence was both useless and harmless. But certainly it should not have been taken in this manner. The witness might, and he certainly did, give evidence concerning the condition of this pier which was of service to the plaintiff in the case. And as there was good reason for believing that the infirm condition of the pier was the cause of the falling of the building, the testimony elicited from the witness-should have been directed to this subject. These errors in the admission of evidence cannot be disregarded, particularly those relating to the examination of the witness Miller. And on then-account a further trial of this action will become necessary.

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

Barrett, J.:

I concur in the opinion of Mr. Justice Daniels upon the general merits of this controversy. But I am unable to agree with him that the judgment must, nevertheless, be reversed because of errors-in the admission and exclusion of testimony.

First, with regard to the witness Miller. The defendant was not surprised by the testimony of this witness, nor does he seem to have been a hostile witness. The excluded questions were not necessitated by anything which transpired upon the direct-examination. Upon that-examination there was neither inconsistency nor want of recollection. The excluded questions were put upon the redirect, after the witness, upon cross-examination, had admitted making an affidavit somewhat modifying his direct testimony. The rule laid down in Bullard v. Pearsall (53 N. Y., 230), which is evidently the case referred to by Justice Daniels, does not apply to such a situation. The defendant had a right, upon the redirect, to inquire into the circumstances attending the making of the affidavit. ITe could also ask the witness whether he still adhered unqualifiedly to his direct testimony. If he did, the defendant could not add to that adherence nor corroborate the witness by asking him whether he had not previously testified (even more strongly) to the same effect. If, however, upon being confronted with the affidavit, the witness receded from the direct testimony, the defendant could probably refresh his recollection and bring him back to his original statement, by recalling the previous testimony. But where the witness was not asked whether he reaffirmed or receded from his direct testimony, the latter simply stood subject to the legitimate effect of the cross-examination. The defendant could not, under such circumstances and under the guise of a cross-examination of his own witness upon the affidavit, make direct testimony of the previous declarations.

It was not g, complete lapse or change of memory with which the party here calling the witness had to contend, but merely the weakening of his direct testimony by cross-examination. That did not justify an inquiry into the witness’ testimony in other cases. A party calling a witness, who is surprised by testimony contrary to his expectations, is permitted to interrogate the witness as to previous declarations inconsistent with the testimony, “for the purpose of probing his recollection, recalling to his mind the statements he has previously made, and drawing out an explanation of his apparent inconsistency.” (Rapallo, J., in Bullard v. Pearsall, supra.) Here, however, there was no inconsistency between the testimony given and the previous declarations. The direct testimony was not, perhaps, quite so strong as the previous testimony, but it was substantially the same. At all events, the previous testimony was not admissible, nor could the witness be interrogated with regard to it, merely for the purpose of giving color and strength to the present direct testimony — there being no inconsistency between the latter and the former. The inconsistency, if any, was in. the affidavit to which the witness’ attention was called upon cross-examination. But the rule does not extend to such surprises of cross-examination, nor to declarations inconsistent with affidavits used to weaken perfectly consistent direct- testimony. My conclusion is that the defendant was deprived of no legal right by the exclusion of these declarations.

Second, as to the admission of the entire affidavit. This was unobjectionable, as the referee expressly limited its use to its proper function, namely, the showing of statements inconsistent with the witness’ present testimony. The referee then added: “The statements in the affidavit are not admissible as evidence for any other purpose.” And when the defendant’s counsel repeated his objection in another form, the referee again said : “ I overrule the request on the ground that the whole of the affidavit must be admitted in evidence, but holding at the same time that the affidavit constitutes no proof of the facts in the portion of the affidavit which has been read.”

Third, as to the admission, upon Hatfield’s cross-examination, of the building law applicable to the city of New T ork. This was immaterial, and could not possibly have prejudiced the defendant* It was also superfluous, as the laws of the State can be referred to without being put in evidence.

Fourth, as to the hypothetical questions put to the witness Hobertson. Justice Daniels concedes that this evidence was both useless and harmless. For that very reason I cannot assent to the granting of a new trial merely because the questions put to this witness were intricate and prolix, nor because of the manner in which this useless and harmless testimony was taken.

In my judgment, substantial justice was done in this case, and whatever errors may have been committed in the course of a long and earnestly contested trial were trivial and unimportant. They were not, at all events, sufficiently grave to affect the result or to warrant the disturbance of the judgment.

The judgment should be affirmed, with costs.

Yan Brunt, P. J.:

I concur in the conclusion arrived at by Mr. Justice Barrett, that the judgment in this case should be affirmed, with costs.

The case at bar differs from that of Judd v. Cushing in that, in the latter case, the buildings were separate and independent, having no connection, except a shaft running through the wall which supplied the power. In the case at bar the buildings were communicating, were used as a single building and having a common stairway and elevator, and thus devoid of all the elements of distinctness and separation which were so apparent in the case of Judd v. Cushing.

Judgment affirmed, with posts,


author: Baeeett, J.:

text:
    JOHN H. STALLMAN and JOHN FULTON, Jr., Plaintiffs, v. AGNES L. KIMBERLY and CHARLES W. JOHNSON, Defendants.

      A warehouseman’s lien is general, and not specific — ehapter 526 of 1885.
    Section 1 of chapter 526 of 1885, an act entitled, “An act to establish and define the lien of warehousemen,” reads as follows:
    “ Section 1. A warehouseman or person lawfully engaged exclusively in the business of storing goods, wares and merchandise for hire shall have a lien for his storage charges, for moneys advanced by him for cartage, labor, weighing and coopering, paid on goods deposited and stored with him, and such lien shall extend to and include all legal demands for storage and said above described expenses paid, which he may have against the owner of said goods; and it shall be lawful for him to detain said goods until such lien is paid.”

      Held, that under this act a warehouseman has a general lien, and not simply a specific lien, upon the property mentioned in the act.
    That the section is divisible into two parts; the first gives the lien and clearly specifies the subject; the second declares that the lien shall extend to and include all legal demands for storage and similar expense which the warehouseman may have against the owner of said goods — not simply those existing against the particular goods.
    That the extension of the lien by that act to all legal demands for storage and similar expense against the owner is its extension to all other legal demands - besides those particular demands already provided for by the common law.
    Cross-motions made by tbe plaintiffs and defendants, respectively, for judgment in tbeir favor, upon a verdict for tbe plaintiffs directed at tbe New York Circuit on April 11, 1889, subject to tbe opinion of tbe court at General Term.

      Preston Stevenson, for the plaintiffs.

      Charles Stewart Davison, for the defendants.
   Baeeett, J.:

This case was tried upon an agreed state of facts, and there areno exceptions. It presents a single question of law, namely, whether under “An act to establish and define tbe ben of warehousemen” passed June 13,1885 (chap. 526), tbe defendants possessed a general ben upon the property in question.

The act reads as follows:

Section 1. A warehouseman or person lawfully engaged exclusively in the business of storing goods, wares and merchandise for hire shall have a lien for his storage charges, for moneys advanced by him for cartage, labor, weighing and coopering, paid on goods deposited and stored with him, and such lien shall extend to and include all legal demands for storage and said above described expenses paid, which he may have against the owner of said goods; and it shall’ be lawful for him to detain said goods until such lien is paid.

In construing this act, the existing state o E the law should be considered. A warehouseman then had a specific lien. Of that there can be no substantial doubt. This lien had been asserted in this state in Schmidt v. Blood (9 Wend., 268), and also in Pennsylvania, in Steinman v. Wilkins (7 W. & S., 466); its existence had been referred to and recognized in Trust v. Pirsson (1 Hilt. 297), in Scott v. Jester (13 Ark., 446), and in other cases. Indeed, I find no doubt upon the subject expressed in any case where the specific lien was claimed by a person engaged in the business of warehousing. The lien has been denied in cases where permission was given merely to deposit a chattel in an unoccupied room in a private house. (Alt v. Weidenberg, 6 Bosw., 176; see, also, Rivara v. Ghio, 3 E. D. Smith, 264; Matter of Kelly, 18 Fed. R., 528.) Even this was expressly put upon the ground that the bailee was not a warehouseman and that the chattel was not stored in that capacity so as to have a lien by the rules of the common law.” Nor do I think that there was any doubt at the time of the passage of this act that the warehouseman had a specific lien for the various subjects enumerated in the act. If he had a lien for storage charges and for advances of freight made to a carrier (Sage v. Gittner, 11 Barb., 120) a fortiori, he had the same lien for cartage, labor, weighing and coopering. Indeed, the doubt which formerly arose with respect to the lien of a warehouseman had its origin in the supposed limitation of the service to mere house-room and to the absence of either a public duty to receive the goods or of an expenditure thereon of labor and skill.

The real doubt, however, was as to the existence of a general lien. That had also been established with regard to wharfingers, but doubted as to warehousemen. (Rex v. Humpherey, 1 McClel. & Y., 194; Naylor v. Mangles, 1 Esp., 109; Spears v. Hartly, 3 id., 81; 3 Kent, §§ 635, 641; Story on Bailments, §§ 452, 453; Pars, on Cont., 111, 268.) There seemed to be no just distinction between the warehouseman and the warfinger, but ever since the doubt expressed by some of the judges in Rex v. Humpherey the point was left undecided. Yet, in this cáse, Graham, B., said, that, in his experience, he had always “ considered a case of a wharfinger and of a warehouseman as standing on the same ground.”

Mr. Story also observes (citation supra) : “ The case of a wharfinger does not, indeed, seem in any respect distinguishable from that of a warehouseman, and it has not in fact, been distinguished from it in any solemn adjudication.”

It is not necessary to seek the origin of this doubt nor to analyze its justice. It is sufficient for our purpose that it exists, and that the legislature undoubtedly determined to solve it in favor of the warehouseman. The act in question was not intended to re-establish what was already established, namely, the specific lien, but to place the warehouseman on the same firm footing with the wharfinger as to the general lien. The latter had acquired the general lien, as Lord Kenyon observed in Naploy v. Mangles (supra), by repeated proof of usage. In time evidence of the usage was no longer required and it became law.

The statute under consideration settles all questions of usage, renders proof thereof unnecessary, reconciles all existing confusion of mercantile thought or judicial dieta; in fine, puts an end to any possible distinction between the two classes. This is the natural reading of the act, and it follows its obvious sense. The section is divisible into two parts. The first gives the lien and clearly specifies the subjects. The second declares that the lien shall extend to and include all legal demands for storage and similar expenses which the warehouseman may have against the owner of said goods. Not, it will be observed, against the particular goods. That had already been fully provided for in the first division of the section; but against the owner of said goods. This second division would have been quite superfluous if the sole object of the act had been to establish and define a specific lien. The warehousemen had that already by the first division of the section, even if not by the existing law. Plainly, then, the extension of that lien to all legal demands for storage, etc., against the owner, is its extension to all other legal demands besides those particular demands already provided for. This statute is to be fairly construed. It cannot be said to be in derogation of the common law, for the question was not absolutely settled at common law. But, even if it had been, as the act does not take away, change or diminish rights of property, life or liberty, the rule of strict construction should scarcely apply. It would seem, also, as thus read, to be a wholesome act, just and reasonable in itself, and tending to facilitate mercantile transfers. Delivery orders will more readily be accepted and honored when the warehousemen are not required to settle each charge before parting with the goods upon which, specifically, such charge is a lien.

The fact is, warehousing has become an immense industry in these days, and the act is nothing more than a fair recognition of the advance. Formerly the wharfinger was in the habit of keeping a warehouse on his wharf, and the warehousing business was a sort of subsidiary appendage thereto. Now, warehousing, as an independent institution, completely dwarfs the wharfinger; and it would be the height of absurdity to retain the general lien in the one case and deny it in the other.

Upon the whole, we are of opinion that the defendants had a general lien upon the goods replevied, and that, consequently, the learned judge erred in directing a verdict for the plaintiffs.

Our judgment, therefore, is for the defendants, with costs.

Yan Brunt, P. J., and Daniels, J., concurred.

Judgment for defendants, with costs.


text:
    In the Matter of the Petition of JOHN CULLEN to Vacate an Assessment for Regulating, etc., First Avenue, from Ninety-second to One Hundred and Ninth Streets.

      A certificate given under section 1, chapter 657 of 1880, as to the amount to be assessed does not deprive the property owner of the rights conferred by chapter 338 of 1858 (section 898 of chapter 410 of 1882).
    Upon an appeal from an order reducing an assessment upon the property of the petitioner, it appeared that a certificate had been given by the officers named in chapter 557 of 1880, which authorized and directed the hoard of assessors of the city of New York to assess upon the property intended to be benefited in the manner provided by law for the making of assessments for local improvements, suck expense as should, by the comptroller, the counsel to the corporation and the commissioners of public works of the city of New York, be certified to have been justly and actually incurred by the mayor, aldermen and commonalty of the city of New York for regulating, grading and setting curb and gutter stones and flagging sidewalks in the First avenue, from Ninety-second to One Hundred and Ninth streets, in said city.

      Held, that the certificate of the officers named in that act was not so far conclusive upon the property owners as to deprive them of the rights conferred by chapter 888 of the Laws of 1858, now embodied in section 898 of the consolidation act, chapter 410 of 1882.
    That the certificate provided by the act, chapter 557 of 1880, was simply a substitute, rendered necessary by the peculiar circumstances of the case, for the ordinary certificate required by section 5 of chapter 556 of 1880.
    That the certificate provided by the act, chapter 557 of 1880, differs from the ordinary certificate only in adding two other officers to the head of the department, and in requiring them to certify that the expense was “ justly as well as actually” incurred, and that there was no special significance, so far as the property owners were concerned, in the use of the word “ justly ” in this connection.
    That there was no suggestion in that act that the certificate of these officers “ as to the justice” of the expenditure was tobe conclusive in the judicial sense, any more than their certificate as to the actual expenditure.

    That the word “just” was probably inserted in the act under consideration because of the questions which had arisen as to the legality and honesty of the existing claims. It was not, however, intended thereby to legalize void contracts nor to authorize a certificate for rejected claims, thereunder.
    That, by the passage of chapter 648 of 1881, the intention of the legislature was, in substance, to legalize a void contract and to compel payment thereunder, the same as though it had been originally authorized.
    That the city was thus concluded, and so were the property owners, so far as the illegality of the contract was concerned, and that the latter could not longer avail themselves of that illegality to question the right to enforce payment under such contract of the fair value of the work, but they could still question the amount which was to be. paid under such contract, the quantity and the value of the work certified.
    That the reductions made by the order appealed from should be sustained with the exception of the sum of $12,725.96,. which was not assessed upon the property owners, but upon the city at large, and which should, consequently, be deducted from the total cost of the improvement.

      Matter of MaCready (27 Hun, 421; affirmed, 90 N. Y., 652) followed
    Appeal by tbe petitioner and by the city of New York from portions of an order made at a Special Term held in the county of New York under date of February 19, 1889, which was entered in the office of the clerk of the county of New York, and which directed the reduction of an assessment upon petitioner’s lot, to the extent of the sum of $1,862.17.
    The following opinion was delivered at Special Term by the justice denying the motion :
    “ O’Brien, J. It would be difficult to cite a more flagrant instance than the one here presented of a legislative act attempting to fasten on property owners a burden which the courts and the local authorities had stamped as fraudulent and void. After defeat in the courts, the legislature was successfully appealed to and a mandatory act (chap. 618, Laws of 1881) passed, which compelled the local authorities to assess, as part of the cost, wort done under a contract which was fraudulent in its inception, was never complied with and was Anally abandoned.
    “ The case of the Town of GvAlford v. Board of Supervisors of Ohencmgo County (13 N. Y., M3) has been followed and cited with approval in too many cases to be now questioned, and upholds the constitutional right of the legislature to pass such an act. But where the equities are as strong in favor of the property owner as in this case the courts will endeavor to find a way to redress the grievance and right the wrong.
    “ Without, therefore, referring to the different acts cited by counsel for and against the right of the court to inquire into and afford relief, I am of opinion that the certificate filed in 188fi, pursuant to chapter 398, Laws 1871, as amended in 1880 (chap. 557), is not conclusive upon the power of the court to afford relief, as provided by chapter 338 of the Laws of 1858, subsequently embodied in the consolidation act. (Sec. 898.)
    “ The extent of the relief which the court can grant, however, is controlled by section 12, chapter 550, Laws 1880, which provides that “ no existing provision of law shall enable or permit any court to vacate or reduce any assessment * * * otherwise than to
    reduce any such assessment to the extent that the same may be shown * * * to have been, in fact, increased in dollars and cents by reason of fraud or substantial error.’
    “ The items mailing up the whole assessment may be divided into four classes:

      1st. Amount paid under chapter 648, Laws 1881.... $109, 799 87
    2d. Cost of what was done by day’s work....'..... 73, 268 81
    3d. Cost of work under special contracts......... 34, 501 16
    4th. Cost under contract for completion, 1882...... '23, 523 62
    To this should be added surveyor’s charge..... 1, 996 77
    Michaels’ claim............................ 317 03
    Total assessment....................... $243, 407 26
    “All of this sum was assessed upon the property on the line of the work, except $12,725.96, which was borne by the city at large.
    “ The first three items are alone objectionable, it being conceded that the others were proper charges.
    “As the petitioner can only be allowed a reduction *to the fair cost of the work, it becomes necessary to determine from the testimony what this amounts to, and how much the objectionable items should be reduced..
    “ I. As to the first item of...................... $109, 799 87
    “ It is made up as follows:
    148,291.42 cubic yards filling........ $96, 389 42
    125 lineal feet culvert.............. 5, 750 00 '
    Interest........................... 7, 660 45
    --- 100,799 87
    “ If we calculate the filling at the fair price thereof, as testified to, viz., fifty cents a cubic yard, we have the value thereof as $74,145.71. The difference between this sum and $96,389.42 shows what should be deducted, viz., $22,244,71.

      “ II. As to item of $73,268.81 for filling put in by day’s work.
    “At fifty cents per cubic yard, makes $31,954.27. The difference between this latter sum and $63,908.55 is $31,954.28.
    “ III. The item of $34,501.16, paid for filling in by special contracts, at fifty cents, it would have cost $34,091.01, and the difference to be deducted is $410.15
    “ It has been urged that the $12,725.96 not assessed on the property owners, but on the city at large, should be addded to the assessment.

      “ The Matter of Me Oready (27 Hun, 421) is authority for making the amount to be borne by the property proportionate to the amount actually assessed on property and the fair value thereof.
    “ The city gets the benefit of the highest value fixed, and the outside measurements for all filling, exclusive of that performed under day’s -work and by special contract, and it should not, therefore, be credited with this $12,725.96.
    “My conclusions, therefore, are that the following reductions should be made:
    I. The $109,799.87 item by..................... $22, 244 71
    II. Reduction of day’s work item................. 31, 954 27
    Special contract............................ 410 15
    Total feduction......................... $54, 609 13
    “ Ordered accordingly.”

      John C. Shaw, for the petitioner.

      George L. Sterling, for the city.
   Barrett, J.:

"We concur in the conclusion arrived at by Mr. Justice O’Brien, that the certificate of the officers named in the act of 1880 (chap. 557, § 1) is not so far conclusive upon the property owners as to deprive them of the rights conferred by chapter 338 of the Laws of 1858, now embodied in the consolidation act (§ 898). We need only supplement Mr. Justice O’Brien’s careful opinion with a brief statement of our reasons for this concurrence. We think that this certificate was simply a substitute, rendered necessary by the peculiar circumstances of the case, for the ordinary certificate required by law. (Laws of 1880, chap, 556, § 5.) Under this latter act all certificates of expense actually incurred are to be made by the officers charged with the execution of the work. This would not have answered in the case of the present improvement, for the reason that it was an old matter which required special investigation and consideration, running through several administrations. Work had been actually done under a contract which the courts had pronounced illegal, and some filling had been done by day’s work and special contracts, which were also unauthorized. It would have been impossible for the successor (in office at the time of the passage of tbe act) of these heads of the department to give the ordinary certificate. That certificate comtemplated either personal knowledge of work done under his own eye or clear and specific information on file in his department, information which admitted of no doubt and which could be readily verified. As the making of a just and accurate certificate, with regard to the improvement in question, would necessarily call for something more than appeared on the books of the department, would, in fact, require something of an investigation, the act under consideration was passed. The certificate there provided for differs from the ordinary certificate only in adding two other officers to the head of the department, and in requiring them to certify that the expense was “ justly ” as well as “ actually ” incurred. There is no special significance, so far as the property owners are concerned, in the use of the word “ justly ” in this connection. If in ordinary cases the head of the proper department were required to certify that the expense was justly and actually incurred, the rights of the property owners under the act of 1858 would not be taken away. There- is no greater reason why those rights should be taken away because of the use of the word justly in the act under consideration. There is no suggestion in that act that the certificate of these officers as to the justice of the expenditure is to be conclusive, in a judicial sense, any more than their certificate as to the actual expenditure. It was, of course, conclusive upon the board of assessors, and that board was bound to assess the amount so certified, just as in ordinary cases the same board is directed to assess “ the aggregate amount of such certificates ” furnished to it by the head of the department charged with the execution of the work and by the comptroller. (Laws of 1880, chap. 556, § 5, subd. 1, 2.)

The word “ justly ” probably was inserted in the act under consideration because of the questions .which had arisen as to the legality and honesty of the existing claims. It was not, however, intended thereby to legalize the void contracts, nor to authorize a certificate for the rejected claims thereunder. These claims did not, at the time of the passage of the act, constitute an expense incurred, at all, either justly or actually. Consequently, no certificate could be given without further legislation, nor, indeed, until the completion of the improvement. The next year (1881) an act was passed, which required the city, upon the certificate of certain public officers, to pay the assignee of the void contract the value of the work done under it. (Laws of 1881, chap., 648.) Under this act a certificate was given whereby the city was compelled to pay a large amount of money to this assignee, and subsequently the officers named in the act of 1880, under consideration, certified the amount so paid as part of the expense justly and actually incurred by the city for this improvement. It is quite plain that the intention was, in substance, to legalize the void contract and compel payment thereunder, the same as though it had been originally authorized. The city was thus concluded and so were the property owners, so far as the illegality of the contract was concerned. They could no longer avail themselves of that illegality to question payment under the contract of the fair value of the work, as a fraud upon them. But they could still question the amount paid, namely, the qucwitum and value of the work certified. Their rights, under the act of 1858 (as embodied in the consolidation act) remained unaffected. These rights are not foreclosed, directly or indirectly. The relief afforded by that act is general and remedial. As now modified, it substitutes justice for technicality and limits the property owner to a reduction commensurate with the real value of the improvement. (Consol. Act, § 903.) The property owners should not be deprived of this measure of justice, unless the courts are expressly forbidden to mete it out in a particular instance. It certainly should not be withheld upon a doubtful implication. In the present instance the property owners are concluded as to all reasonable and just payments made for work actually done, but are still permitted to show that the assessment has been, “ in fact, increased by reason of fraud or substantial error; ” in other words, to show grossly excessive charges and payments. The effect of these statutes, as thus construed, was to remove the chaos in which this improvement was imbedded, to settle old, rejected and even illegal claims; to complete the long delayed work, and, finally, to authorize an assessment. But clearly it was not intended in thus providing for rejected and illegal claims to close the door upon the property owners, and to tell them that, although in ordinary cases they may, under this remedial statute, show fraud in the quantum of the work, and in grossly excessive charges, yet that in this exceedingly questionable matter the same remedial statute shall be inoperative. The reductions made by Mr. Justice O’Brien accord with the evidence, and should, therefore, be sustained with a single exception. The sum of $12,725.96 was not assessed upon the property owners, but upon the city at large. It should, consequently, be deducted from the total cost of the improvement. Upon the authority of the Matter of McGreacly (27 Hun, 421; affirmed, 90 N. Y., 652), the assessment should, accordingly, be reduced in the ratio of the reasonable cost of the wort to the amount actually assessed upon the property, the latter being the total cost, less this sum of $12,725.96.

The order appealed from should be modified in the particular last mentioned, and as modified affirmed, without costs of this appeal.

Tan Brunt, P. J., and Daniels, J., concurred.

Order modified as specified in opinion, and. as modified affirmed, without costs of this appeal.


author: Van Brunt, P. J.: Barrett, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MOSES P. PROUT, GEORGE PIRNIE and JAMES McNAB, as Administrators of WILLIAM F. PROUT, Deceased, Appellants.

      Collateral inheritance tax — when cm estate ehafi'geable ’under it is not liable to the penalty imposed by sections 4 and 5 of chapter 483 of 1885.
    Where an estate, which is chargeable with the collateral inheritance tax imposed by chapter 483 of 1885, cannot be settled at the end of the year from the death of the decedent by reason of claims made upon the estate, necessary litigation or other unavoidable cause of delay, neither the past interest for such year, nor the ten per cent penalty imposed by sections 4 and 5 of the said act, should be imposed upon it, but only six per cent per annum is to be charged upon the said tax from the expiration of the year until the cause of such delay be removed.
    Appeal from an order, entered in the Surrogate’s Court of the county of New York, in the above-entitled proceeding, on the 15th day of February, 1889, directing that the decree entered herein on the 20th day of December, 1888, be amended, and that the administrators herein named forthwith pay to the comptroller of the city of New York interest upon such tax, as found and imposed in said decree, at and after the rate of 'six per cent per annum from the 8th day of September, 1886 to the 27th da^ of September, 1887, inclusive.

      G. F. Orawford, for the appellants.

      B. F. Bos Bassos, for the respondent.
   Van Brunt, P. J.:

The question involved upon this aj>peal seems to be whether, under the circumstances of this case, the estate in question should be compelled to pay interest upon the amount of the collateral inheritance tax for the year following the decedent’s death. The question‘depends upon the construction to be given to sections 4 and 5 of chapter 483 of the Laws of 1885. Those sections are as follows:

“ Section 4. All taxes imposed by this act, unless otherwise herein provided for, shall be due and payable at the death of the decedent, and if the same are paid within one year, interest at the rate of six per cent per annum shall be charged and collected thereon, but if not so paid, interest at the -rate of ten per cent per annum shall be charged and collected from the time said tax accrued; provided, that if said tax is paid within six months from the accruing thereof, interest shall not be charged or collected thereon, but a discount of five per cent shall be allowed and deducted from said tax, and in all cases where the executors, administrators or trustees do not pay such tax within one year from the death of the decedent, they shall be required to give a bond in the form and to the effect prescribed in section two of this act for the payment of said tax, together with interest.”
“ Section 5. The penalty of ten per cent per annum imposed by section four hereof for the non-payment of said tax shall not be charged where, in cases, by reason of claims made upon the estate, necessary litigation or other unavoidable cause of delay, the estate of any decedent, or a part thereof, cannot be settled at the end of a year from the death of the decedent, and in such cases only six per cent per annum shall be charged upon the said tax from the expiration of such year until the cause of such delay is removed.”

The right to the remission under section 5 does not seem to be disputed, the question being as to the amount of the remission, whether it shall be to the amount only of four per. cent of the ten per cent imposed by section 4, in case the taxes are not paid within one year, or whether the law entitles the estate to a total remission of interest for the year following the decedent’s death.

In the consideration of this question it seems to be necessary to advert to the nature of the claim for interest provided by the statute. A tax does not carry interest by implication of law as in the case of a debt, and in all systems of taxation where default is made in the payment of the tax interest is added by way of penalty for such default. And so in the fourth section of the act in question, if the tax is paid within one year interest at the rate of six per cent shall be charged and collected thereon, but if not so paid, interest at the rate of ten per cent shall be collected and charged from the time such tax accrued, namely, from the death of the decedent. Then follows a premium for prompt payment, as is found in many of the tax laws, whereby there is allowed in a case where the tax is paid within six months a discount of five per cent and also a provision that no interest shall be charged. The language of section 5 expressly recognizes the nature of this interest, which is charged because of the failure to pay the tax within six months after the death of the decedent. It provides that the penalty of ten per cent per annum, imposed by section 4 for the non-payment of said tax, shall not be charged, expressly recognizing the idea that the whole amount of the interest is a penalty. It does not refer to the addition of four per cent as being the penalty, but it states that the penalty of ten per cent per annum, imposed by section 4, shall not be charged in certain cases, and then goes on and provides that in such cases only six per cent per annum shall be charged from the expvration of sand yean', i. <?., the year following the death of the decedent. Now, it seems to be clear, therefore, that if the penalty of ten per cent, imposed by section 4, is to be remitted (and it is not claimed that this ten per cent is in addition to the six per cent, but it is admitted that it embi’aces the whole amount of the penalty), nothing remains, and the charge for interest, imposed by the subsequent language of section 5, providing that where a remission of the penalty of ten per cent is permitted only six per cent shall be charged, only begins from the expiration of the year following the decedent’s death. It is urged that to agree to the ingenious argument advanced by the counsel for the a2>pellants would be to 2->roduce delay and induce ' litigation so that the estate could not be settled within the year. The protection in this regard is perfect in the act, because the burden rests upon the party claiming exemption to show that he comes within the provisions of the act, namely, that the settlement of the estate has been delayed by necessary litigation or other unmoidable cause, and that, therefore, they are not in a condition to settle the estate or pay the tax. The learned surrogate seems to us to have fallen into an error because he assumes that any portion of what is called interest in the act is to be deemed otherwise than as a penalty for non-payment. He says that it seems plain, upon reading the two sections together, that the intention was to relieve the estate from the payment of the penalty and not from the interest. But as the whole was a penalty the reasoning cannot apply; and it further cannot apply because the act says that the estate shall be relieved from the whole charge, and it calls" the whole charge a penalty.

We think, therefore, that the estate was not chargeable with the penalty during the first year, be it called interest or by any other name.

The decree appealed from in this respect must be reversed, with costs.

Barrett, J.:

The legislature has said, in so many words, that where an estate, for certain good reasons, cannot be settled in one year from the death of the decedent, the interest on the tax shall be but six per cent, and shall run from the expiration of the year. The courts cannot extend this. The law is thus written. Besides, it is a law creating a penalty and should be strictly construed. And I think, too, that it is entirely homogeneous. If the tax is paid in six months, there is a rebate of five per cent. If paid after the six months, and within the year, interest at six per cent is charged upon it. That provision is for a case where the estate might be conveniently settled and the tax paid within the year. In such a case, after the expiration of the year, the ten per cent penalty is imposed. If, however, it is a case where the estate could not be so conveniently settled, for the reasons specified in the act, neither the past interest nor the ten per cent penalty is imposed, but simply six per cent from the end of the year until the cause of the delay is removed. This is fair and reasonable, and I see no incongruity in the scheme. For these reasons and those given by the presiding justice, in whose opinion I fully concur, the order of the surrogate should be reversed in this particular.

Daniels, J., concurred.

Decree reversed, with costs.