author: Andrews, J.

text:
    Sarah L. Tingue, Respondent, v. The Village of Port Chester et al., Appellants.
    In an action to restrain the sale of land for non-payment of an assessment for a local improvement and to set aside the assessment because of alleged invalidity in the proceedings, the burden is upon plaintiff to establish the invalidity complained of. There is no presumption in such an action that municipal authorities have acted illegally or that conditions precedent have not been performed.
    Where, therefore, in an action to restrain the salé of plaintiffs lot in the village of Port Chester, and to set aside an assessment thereon for grading a street, it appeared that the charter of the village (§ 4, tit. 5, chap. 818, Laws of 1868) requires the petition for laying out a street to be signed by persons owning land on the line thereof, but does not require the fact of such ownership to be stated in the petition. Held, the fact that the petition for opening the street in question did not show on its face that the persons signing it were such owners did not tend to negative their ownership; and, in the absence of other proof, that the invalidity of the proceedings in this respect was not established.
    The distinction between such a case and one where the owner of a tax title seeks to enforce it by action pointed out.
    Also held, that as to other objections which related to matters which might have been corrected on appeal from the report of commissioners, plaintiff was foreclosed by the order of confirmation.
    Also held, as it appeared that the parties interested in the lands taken for the street, and among them plaintiff’s grantor, who then owned the lot, accepted the awards made to them, and acquiesced in the proceeding, he was concluded from alleging irregularities therein.
    Also held, the fact that the specifications upon which the bids for grading were based embraced another street as well as the one in question was immaterial, it appearing that profile maps showing the amount and kind of excavation and filling required on each street were separately made and filed with the specifications.
    Also held, that the charter (§ 23, tit. 5) did not require the trustees of the village to pass upon the bids at the time of opening them; that timé for comparison of the bids and calculation to determine which was most preferable was essential and might be taken.
    It was objected that the notice of the meeting of the trustees to act in respect to the grading did not describe the district of assessment with sufficient accuracy. The street had then been laid out and the map and report of the commissioners filed. The notice referred to the street by its name and described the assessment district as including “ all the lands on both sides of said street to a depth not exceeding one hundred feet. Held, that this was a substantial compliance with the charter (§ 23, tit. 5).

      This was a reassessment; the original assessment made in March, 1874, having been declared invalid and set aside (71 N. Y. 809). Held, that there was no legal or valid authority to make a reassessment; that no such authority was conferred by the original charter; that the provision in the act of 1877, amending' the charter (Chap. 337, Laws of 1877), which authorized reassessments in certain cases where prior assessments had been set aside or held invalid, only applied to assessments so set aside or held illegal after the passage of the act, and that the act of 1878 (Chap. 277, Laws of 1878), which attempted to authorize reassessments in cases of assessments set aside or vacated, before as well as after the passage of the act, was void as in contravention of the provision of the State Constitution (Art. 8,§ 16), directing that a local or private bill shall embrace but one subject, and that shall be expressed in the title.
    (Argued December 21, 1885;
    decided January 19, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made May 15, 1883, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term.
    The nature of the action and the material facts are set forth in the opinion.

      (Edward Wells for appellants.
    Neither the charter of the village nor the law of highways requires the line or route of the road to be particularly defined by course and distance in the application. (Hallock v. Woolsey, 23 Wend. 328.) Whether the petitioners were owners cannot be inquired into collaterally. (Van Steenburgh v. Bigelow, 3 Wend. 42, 46.) Where the meaning is plain in a contract or law, and the sense requires it, the court will substitute one word or number for another, or even transpose or rearrange sentences. (2 Pars. Con. [4th ed.] 15.) The one only object of the act of 1878 was to amend the charter of Port Chester, and that is expressed in the title. (Greaton v. Griffin, 4 Abb. Pr. 310; Woodson v. Murdock, 22 Wall. [U. S.] 351, 373; Brewster v. Syracuse, 19 N. Y. 116; People v. City of Rochester, 50 id. 525.) It is the duty of the courts so to construe as to meet the mischief and advance the remedy, and not to violate fundamental principles. (Hart
      v. Cleiss, 8 Johns. 41; Walker v. Harris, 20 Wend. 555-562; Watervliet T. Co. v. McKean, 6 Hill, 616.) Plaintiff is estopped from denying the avenue to he a highway, by standing by and seeing expenses and cost of grading incurred without making any objection, while the grading was in progress. (McGowan’s Gase, 8 Weekly Dig. 461.)

      Calvin Frost and Ralph F. Prime for respondent.
    Proceedings to lay out a street and those for the grading of a street are statutory proceedings, each attacking the property rights of the citizen, and each must be strictly pursued, and the record must show the statutory requirements complied with, the jurisdiction obtained and kept step by step, and the record cannot be helped by intendment or by any presumptions. (Sharp v. Johnson, 4 Hill, 98; Miller v. Brown, 56 N. Y. 383; Matter of Second Ave. M. E. Church, 66 id. 395; Hopkins v. Mason, 42 How. 115; Merritt v. Port Chester, 71 N. Y. 309; Adriance v. McCafferty, 2 Rob. 153; Matter of N. Y. & B. R. R., 62 Barb. 85; Walkill V. R. R. v. Norton, 12 Abb. [N. S.] 317.) Presumption does not supply the lack of proof. (Miller v. Brown, 56 N. Y. 383, 386; Commissioners of Cohoes v. Lansing, 45 id. 19; People v. Commissioners of Hempstead, 7 Hun, 17; Matter of Buffalo, 78 N. Y. 362, 366.) The burden is upon defendants to show that the petition was signed by the required number of qualified persons. (Sharp v. Johnson, 4 Hill, 98.) The owners were entitled to be heard by the court on the appointment of commissioners. (Chap. 818, tit. 5, p. 4; Matter of Mayor, etc., and Manhattan Co., 1 Caines, 507; In re Cambria Street, 75 Penn. St. 357.) The whole proceeding is illegal because of the bad oath. (Merritt v. Port Chester, 71 N. Y. 309; People v. Connor, 46 Barb. 333; State v. Jersey City, 38 N. J. L. 85; State v. Perth Amboy, 2 id. 425; Radcliff v. Brooklyn, 4 N. Y. 195; Matter of Mayor and Manhattan Company, 1 Caines, 507.) The right of entry to grade the street or to do any thing, was not obtained until the end of a chain of acts, all to be performed according to the order, manner and form of the statute; until then every entry was a trespass. (Matter of Rhinelander, 68 N. Y. 105, 108; Matter of Cheeseboro, 78 id. 232, 238; Boyle v. Brooklyn, 71 id. 1; People v. Haines, 49 id. 587.) Nor could the legislature, after- the constitutional amendment of 1875, lay out a street, or provide for laying out a street, or delegate the power to create a debt or charge which did not in law exist, and it was powerless to charge this illegal debt on the land-owners, by the way of a reassessment without their consent. (Horton v. Thompson, 71 N. Y. 513; Const., art. 3, pp. 18, 20.) The act of 1878 (Chap. 277), so far as it was thereby attempted to change the act of 1877, is unconstitutional and void. It was a local act. (People v. Hill, 35 N. Y. 449; People v. Allen, 42 id. 404; People v. Briggs, 50 id. 553; Fishkill v. R. R. Co., 22 Barb. 634; Smith v. Mayor, etc., 34 How. 508; People v. Brinkerhoff, 68 N. Y. 265; Mayor, etc., v. Colgate, 12 id. 146; Sun Co. v. Mayor, etc., 8 id. 253.) Conditions precedent in proceedings of this kind must be literally followed. (Adriance v. McCafferty, 2 Rob. 153.) The particular lot and the situation of each parcel and its peculiar circumstances were to be considered. (Matter of Degraw St., 18 Wend. 568; Watkins v. Zwictusch, 47 Wis. 573.) The assessment being paid, it cannot be set aside. It is extinguished, and naught left to bo set aside. (In re Lima, 77 N. Y. 170.)
   Andrews, J.

This is an equitable action, brought to restrain a sale of plaintiff’s lot in the village of Port Chester, for the non-payment of an assessment laid for grading a street in the village, called Irving avenue, and to vacate the assessment. Irving avenue was laid out and declared a public street by resolution of the trustees of the village, passed June 2, 1873, under proceedings initiated November 11, 1872, upon the petition of eight persons, recited in the petition to be residents and tax payers of the village. The charter of Port Chester (Laws of 1868, chap. 818, tit. 5) authorizes the trustees of the village, under the restrictions and limitations therein prescribed, to cause streets and avenues within the village to be laid out, opened and graded, and to assess the expense thereof upon the property benefited. The proceedings for grading Irving avenue, were commenced June 2, 1873, the same day on which it was declared by the resolution of the trustees to be a public street. Commisssioners were appointed to assess the expense of the grading, bids were received for the work, and contracts therefor were let, and the report of the commissioners was made March 7, 1874, and confirmed March 9, 1874. The original assessment was subsequently set aside and held to be invalid for reasons stated in the opinion in Merritt v. Village of Port Chester (71 N. Y. 309). Afterward the legislature passed two acts amending the charter of the village, being chapter 227 of the Laws of 1877, and chapter 277 of the Laws of 1878. The trustees after the passage of these acts, took proceedings for a reassessment, and the report of the commissioners appointed to make the reassessment was confirmed September 8, 1879. This second assessment is the one assailed and sought to be set aside in this action.

The complaint challenges the validity of nearly every step taken in the proceedings in respect to Irving avenue, from their inception. It alleges that the avenue was never legally laid out, that the proceedings for grading were not in conformity to the charter and were void, and that if the street was legally laid out and graded, the reassessment of the expense of grading was unauthorized. The laying out proceedings are questioned upon various grounds, some jurisdictional, and others relating to the regularity of the procedure. It is claimed among other things that it does not affirmatively appear that the persons who signed the petition for laying out the street, were owners of lands situated thereon. The charter (Title 5, § 4) requires, as the initial proceeding in the laying out of a street, that a petition therefor shall be presented to trustees of the village, signed by one-third of the persons owning land on the line thereof. The petition for laying out Irving avenue did not show on its face that the persons who signed it were such owners. The plaintiff in support of this and other objections to the proceedings, invokes the well-set-tied doctrine, declared in numerous cases that where lands are taken under statute authority, or an assessment is imposed thereon in derogation of the common law, no intendment is indulged in favor of the regularity of the proceedings, but that each step in the process prescribed by the statute must be shown to have been taken by the party asserting any rights thereunder. (Sharp v. Speir, 4 Hill, 76; Sharp v. Johnson, id. 92.) In other words the onus in such case, of showing the regularity of the proceedings, is upon the party claiming under them. The cases cited were actions of ejectment in which the defendants, admitting the original title of the plaintiff, set up a subsequently acquired tax title, as a defense to the action. The doctrine that the onus was upon the party claiming under the tax title, to establish its regularity, was appropriately applied in those cases. But the plaintiff in this case by the character of her action, assumed the burden of establishing the invalidity of the proceeding of the trustees. She comes into court asserting as a ground for equitable relief, that an illegal assessment has been imposed on her land, which, if followed by a sale thereof, and a conveyance as was threatened, will constitute a cloud on her title. The trustees of the village, as we have seen, are authorized to lay out and open streets under certain restrictions and conditions. There is no presumption that in undertaking to execute this authority they have acted illegally, or that conditions precedent have not been performed. The plaintiff, instead of awaiting an attack on her title by one claiming under the assessment, becomes herself the actor, and calls upon the court to interpose and prevent the sale of her property, alleging that the trustees never acquired jurisdiction by a proper petition, and that the proceedings are otherwise defective. She has tendered this issue, and according to the general rule the party holding the affirmative of an issue must prove it, or at least go as far as to make a prima faeie case, calling upon the other party to answer it. (1 Greenl. Ev., § 74; Brown, J., Bouton v. City of Brooklyn, 15 Barb. 375, 395; In re Ingraham, 64 N. Y. 310; Heinemann v. Heard, 62 id. 448.) The fact that the petitioners were not on the face of the petition alleged to be owners of land on the proposed street, did not tend to negative the fact. The charter does not require that the fact shall be stated in the_ petition, or provide in what manner it shall be established. The plaintiff did not prove that the signers were not' qualified petitioners, and upon the issue as framed, the burden of establishing it was upon the plaintiff.

The laying out proceedings are also objected to for indefiniteness in the description of the proposed assessment district in the notice given by the trustees of the hearing of the matter of the petition (Charter, tit. 5, § 4), and for various irregularities in the proceedings of the trustees, and of the commissioners of estimate and assessment. These objections, so far as they relate to matters which might have been corrected on appeal from the report of the commissioners, are foreclosed by the final order of confirmation (Embury v. Conner, 3 N. Y. 511; Dolan v. Mayor, etc., 62 id. 472), assuming of course, that the parties interested had legal notice of the proceeding. But wo deem it unnecessary to consider the objections in detail, for the reason that upon the facts found it is to be inferred that the parties interested in the lands taken for the street, accepted the awards made, by the commissioners and acquiesced in the proceedings. This inference is especially strong in respect to the plaintiff’s grantor, who owned the' lot now belonging to the plaintiff, until 1877. Upon his request the course of the street over his land was changed from the line originally designated, and he paid an assessment for benefit, imposed by the commissioners, and presumptively was awarded, and received compensation for the land taken. The plaintiff is concluded by the acts of her grantor. The street has been open since 1873, and has been used as a public street since 1875, without objection on the part of the owners of the land taken for the improvement. There should, under these circumstances, be very clear proof, that the rights of the land-owners had neither been extinguished nor waived, and that the street had not, by use or otherwise, become a legal highway, to justify the setting aside of an assessment for its improvement on that ground.

The objections to the grading proceedings relate to alleged omissions by the trustees to pursue the directions of the statute. But we think none of them are well founded. The fact that the specifications upon which the bids were based, applied to work upon both Haseco and Irving avenues, was immaterial. The two improvements were going on.at the same time. It appears that profile maps, showing the amount cf rock and earth excavation and filling required on each avenue, were separately made and filed with the specifications, and proposals were invited for the work on each. The bids were to do the work by the foot or yard, and the contract for the work on Irving avenue was let to the person whose proposal was deemed by the trustees to be the most favorable. The charter (Tit. 5, § 28) does not require that the work should be let for a gross sum instead of a price based on quantities. The claim that section 23 requires the trustees to pass upon the bids at the time of opening them, proceeds upon a strained construction of the language of the section. The trustees opened the bids on the twenty-second of September, and, after referring them to the road committee, adjourned till the twenty-fourth, on which day the bid of Weir was accepted. It is evident that some time for comparison and calculation was essential to enable the trustees to ascertain which bid was most favorable. The word “ then ” in the clause “ the trustees shall then determine,” etc., reasonably construed has the same sense as “ thereafter,” and does not restrict the trustees to an instant determination. The objection, that the notice of the meeting of the trustees, to act in respect to the grading, did not describe the limit, or district of assessment with sufficient accuracy, is also, we think, unfounded. The street at that time had been laid out. The map and report of the commissioners had been filed and was of record. . The street was known as Irving avenue. The notice referred to Irving avenue, and described the assessment district as including “ all the lands on both sides of said street, to a depth not exceeding one hundred feet.” This was, we think, a substantial compliance with the charter (§ 23). The claim that the street was graded sixty-six feet- wide, instead of sixty feet, the width mentioned in the petition for laying it out, is not well founded in fact. The evidence tends to show that the grading was confined to sixty feet, and that no expense for grading to any greater width, was incurred.

The final class of objections relate to the reassessment in 1879, and we feel constrained to affirm the j udgment vacating the assessment, on the ground that there was no legal, valid authority to make a reassessment. The original charter makes no provision for a reassessment for a local improvement, where the first assessment is set aside by the court. The authority of the trustees under the original charter to cause an assessment to be made, was spent on their confirmation of the report of the commissioners of assessment, March 7, 1874. It is not claimed by the learned counsel for the- corporation that the trustees could direct a reassessment in the absence of statutory authority. But he claims that such authority was given by section 2, chapter 277, of the Laws of 1878. If that was a valid enactment, the claim is well founded. The act is entitled “An act to amend chapter 245, of the Laws of 1875, entitled ‘ An act to amend chapter 818, of the Laws of 1868, entitled£ An act to incorporate the village of Port Chester, and to amend chapter 227, of the Laws of 1877.’ ” The act of 1877, referred to in this title, added certain sections to the charter of the village, and among others a section authorizing a reassessment for the expense of street improvements in the village in certain cases where a prior assessment was set aside or held invalid. It was probably intended to authorize a re-assessment of the expense of grading Haseco and Irving avenues, the assessments for which, had, before the passage of the act, been vacated. But if so intended it failed to accomplish the purpose intended. The language of the act in its natural and grammatical construction only authorized reassessments in cases of assessments which should be set aside, or held illegal, after the passage of the act. The act of 1878 undertook to remedy this difficulty, by amending the act of 1877, so as to authorize a reassessment in cases of assessment set aside or vacated before or after the passage of the act. But it is insisted that the act of 1878, so far as it assumed to amend the act of 1877, is void as in contravention of section 16, article 3, of the Constitution, because the subject is not expressed in the title. We perceive no' answer to this objection. If the act of 1878 had been entitled simply “ An act to amend chapter 227 of the Laws of 1877,” there could be no question. That an act so entitled is void, has been adjudicated by this court. (People v. Hills, 35 N. Y. 449; People, ex rel. Rochester, v. Briggs, 50 id. 553.) Such a title, as was said by Chüboh, Oh. J., in the case last cited, would express no subject, but contain a reference only where the subject might be found. The first clause in the title of the act of 1878, referring to the act of 1875 and amending it, is sufficiently definite within the authorities. It shows that the subject of the amended act, and consequently of the amendment, is the charter of Port Chester. But the second clause of the title is not aided by its annexation to the first clause. It is found by reference to the act of 1877, that that act also is an amendment to the charter. But this cannot be known by the title of the act of 1878. The latter clause of the title does not refer to the prior clause, and there is nothing to indicate that the subject-matter of the act of 1877, which it amends, is the charter of Port Chester, or that the two acts referred to in the title have any relation to each other. The title would be as consistent and intelligible if the act of 1877 related to the city of New York, or any other city or village in the State.

This conclusion requires an affirmance of the judgment.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    The Corn Exchange Bank of Chicago, Respondent, v. Alphonso W. Blye, as Receiver, etc., Appellant.
    A receiver of an insolvent national bank acquires no right to property in the custody of the bank, which it does not own, as against the owner, and"the provision of the United States Revised Statutes (§ 5342), prohibiting the issuing of an attachment, injunction or execution against such a corporation before final judgment, was not intended to protect the receiver’s custody as against such owner.
    Accordingly held, that said provision did not prohibit the issuing, in an action against the receiver of a national bank to recover possession of personal property, of a requisition directing the sheriff to take into his possession the property in question; that the receiver, if he desired to retain possession of the property during the litigation, could only do so by giving the security required, the same as other defendants in such an action.
    (Submitted December 22, 1885;
    decided January 19, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made the first Monday of May, 1S85, • which reversed an order of Special Term vacating and setting aside a requisition issued herein to the sheriff of Orange county, directing him to take into his possession the property specified in the complaint. (Reported below, 37 Hun, 473.)
    This action was brought against plaintiff as receiver of the Middletown National Bank to recover possession of certain securities, which the complaint alleged were pledged to it as security for a draft, which draft was forwarded for collection to said bank, accompanied by the securities with instructions to hold them until payment of the draft. The complaint also alleged that the draft was not paid, that the bank suspended, defendant was appointed receiver of its assets, the securities were delivered over to him, and he refused to deliver up the same on demand.

      Elihu Root for appellant.
    The word “ attachment”, in section 5242 of the United States Revised Statutes, means not only the peculiar warrant or process which the New York Code, at any particular date, describes as an .attachment, but it includes whatever comes within the general signification of the term. (Raynor v. Pacific Nat. Bk., 93 N. Y. 371; Nat. S. & L. Bk. v. Mech. Nat. Bk., 89 id. 467; Robinson v. Nat. Bk. of Newberne, 81 id. 385.) The provision of the section inured to the benefit of a receiver just as much .as to that of the bank.
      (Rosenblatt v. Johnston, 104 U. S. 462.) The insolvency of a national bank requires the appointment of a receiver (§ 5234). The receiver so appointed is an officer of the United States. (Kennedy v. Gibson, 8 Wall. 498.) If section 5242 were expunged from the statute, the order of Special Term would nevertheless be right, for process can no more run to the sheriff against the receiver pendente lite than it can run to the sheriff against the United States marshal. (Kilmer v. Hobart, 8 Abb. N. C. 426; Havens v. City of Brooklyn, 6 T. & C. 346.) The order is appealable. (Allen v. Meyer, 73 N. Y. 1.)

      L. A. Gould for respondent.
    The object of section 5242, United States Revised Statutes, is to prevent one creditor of a corporation whose assets are insufficient to meet its liabilities, from obtaining a preference, whether it is sought through a voluntary assignment or transfer or payment, or the form of a legal proceeding. (Robinson v. Nat. Bk. of Newberne, 81 N. Y. 393; Nat. S. & L. Bk. v. Mech. Nat. Bk, 89 id. 467; Nat. Bk. v. Colby, 21 Wall. 609; Raynor v. Pac. Nat. Bk., 93 N. Y. 373; Cragie v. Hadley, 99 id. 131.)
   Finch, J.

The sole question in this case is whether section 5242 of the United States Revised Statutes prohibits the requisition issued to the sheriff and protects the receiver in his possession. The Bank of Middletown became insolvent and the defendant was appointed its receiver under the Federal law. That appointment vested in him all the assets of the bank to be converted into money and distributed among the creditors. The object sought.to be accomplished is the distribution of those assets fairly and without preferences, and that has been held to be the aim and purpose of the section in question. (Robinson v. Bank of Newberne, 81 N. Y. 385; Rosenblatt v. Johnston, 104 U. S. 462.) It specifically prohibits all transfers of the corporate property made with a view to preferences, and so protects the creditors from any voluntary act of the bank which selects out favored individuals for payment. But the bank may be passive, and such individuals gain a preference by a suit against the corporation preceded or accompanied by an attachment or injunction, or, after judgment, enforced by an execution. These three things, therefore,"were specifically prohibited by name; each being process well known and accurately defined in the law; and without any general words to carry the prohibition beyond them. The receiver, by his appointment, acquires no right to property in the custody of the bank which the latter does not own, as against the real owner; and the section in question was plainly not intended to protect the receiver’s custody as against such owner. It aims to protect the property of the bank in his hands, and not to give him arbitrary control of what the bank does not own. If the latter should be held, its injustice is well suggested by the General Term in its application to special deposits of customers left merely for safe-keeping. It does not alter the case that there is here a dispute about the title, and the receiver claims to be owner. He might make such claim in any case. Ho law makes him the inevitable stakeholder pending the litigation. He may become so by giving the needed security, and we can see no just reason why he should be exempted from that obligation which falls upon others: The plaintiff is required to give such security as the condition of his writ, and the receiver need run no risk in the performance of his duty. It is said the word “ attachment ” is used not in the local sense affixed by State enactments, but in a broader sense; and the definition of Bouvier is cited. But by fjhat definition and in every use of the term it always assumes title in the person against whom the writ issues, and seeks to hold possession of his property, and on the ground and for the reason that it is his. Ho nomenclature has ever made it the equivalent of a writ of replevin which issues upon a theory exactly the reverse. There is no collision of jurisdictions. The authority of the Federal courts over the assets and the right of its officer to hold them is not questioned or invaded. Ho property over which those courts have obtained jurisdiction is interfered with. What is sought to be recovered is property over which they have obtained no jurisdiction, and as to which they have conferred no right upon him.

The order should be affirmed, with costs.

All concur.

Order affirmed.


text:
    In the Matter of the Petition of Prescott Hall Butler, as Administrator, Etc.
    Except where substantial rights of other parties have accrued and injustice will be done to them by permitting it, a party has a right to discontinue an action or proceeding, and his reasons for so doing are of no concern to the court.
    A refusal of leave to discontinue, therefore, where nothing appears to show that it will injuriously affect the rights or interests of the adverse party, ■ is not within the discretion of the court, and is error.
    Where an administrator of the estate of a deceased lunatic commenced proceedings by petition in the Court of Common Pleas of the city of New York, to compel the committee of the lunatic to* account and to deliver over the property remaining, and thereafter entered an ex parte order of discontinuance, the costs to be paid by the administrator, which order after tender of costs, was vacated by the court, and thereupon the administrator moved for leave to discontinue which was denied, the only facts shown being that after the entry of the first order the administrator had commenced an action in the Supreme Court to settle the accounts. Held, that there was no just basis for the refusal of leave upon which any discretion was called into exercise or could operate; and that the denial of the motion was error.
    (Argued December 22, 1885;
    decided January 19, 1886.)
    Appeal from order of the Greneral Term of the Court of Common Pleas in and for the city and county of Hew York, made Hovember 10, 1884, which affirmed an order of Special Term denying a motion on behalf of Prescott Hall Butler, the petitioner above, for leave to discontinue these proceedings.
    The nature of the proceedings and the material facts are stated in the opinion.

      Stephen A. Walker for appellants.
    A party to an action or special proceeding has a right to an order without notice to his adversary, discontinuing his suit on payment of costs. (Garham’s Pr. 603-604; 1 Burr. Pr. 383; Averill v. Patterson, 10 N. Y. 500; Cook v. Beach, 25 How. 356; 2 Wait’s Prac. 600; Tillinghast’s Pr. 333; Seaboard R. R. Co. v. Ward, 18 Barb. 595; Harrington v. Libby, 6 Daly, 259; Cummings v. Bennett, 8 Paige, 81.) A plaintiff is not allowed to discontinue in the following cases; when a new action on a counter-claim would be barred by the statute. (Van Allen v. Schermerhorn, 14 How. 287; Rees v. Patton, 13 id. 258; Pac. Mail v. Leuling, 7 Abb. [N. S.] 37); when defendant in a replevin suit has surrendered property to plaintiff; (Wilson v. Wheeler, 6 How. 49); when plaintiff has obtained a decree; (Picabia v. Everard, 4 How. 113); in an ejectment suit before a second trial, where plaintiff has secured possession of the property by means of the j udgment entered upon the first; (Carlton v. Dorey, 75 N. Y. 375); when the defendants have been examined as witnesses. (Cockle v. Underwood, 3 Duer, 676.) In general, when an action or special proceeding has been commenced, the defendant may have an interest that it shall be conducted to its termination, and in such case the court can protect such interest by refusing to permit the action or proceeding to be discontinued, or it may impose such reasonable terms as a condition of discontinuance as will fully protect or indemnify the defendant. (Matter, etc., Waverly Water-Works Co., 85 N. Y. 482.) This court will review and examine the grounds of an order refusing leave to discontinue" if it involves an abuse or excess of discretion in the court below. (Carlton v. Darcy, 75 N. Y. 377.)

      Henry Thompson for respondent.
    An application for leave to discontinue an action or special proceeding is addressed to the discretion of the court below; it may be granted upon terms or refused absolutely. (Salmon v. Gedney, 75 N. Y. 479, 482; In re Waverly Water- Works Co., 85 id. 478, 481; Carlton v. Darcy, 75 id. 375; Van Allen v. Schermerhorn, 14 How. 287; Cockle v. Underwood, 3 Duer, 676; Young v. Bush, 36 How. 240; Wilder v. Boynton, 63 Barb. 547; Clyde v. Rogers, 87 N. Y. 625; People, ex rel. Adams, v. Westbrook, 89 id. 152; Woodruff v. Imp. Fire Ins. Co., 90 id. 521; Matter of Loew, id. 666; Meltzer v. Doll, 91 id. 365; Catlin v. Ricketts, 91 id. 668; Commonwealth Ins. Co. v. Bowman, 90 id. 654; Attorney-General v. N. A. Life Ins. Co., 93 id. 387; Hatch v. Western Union Tel. Co., id. 640; Smith v. Platt, 96 id. 635.) The denial of appellant’s application for leave to discontinue was not an abuse of discretion, but under all the facts and circumstances disclosed in the papers was eminently proper, and should be confirmed by this court upon the merits. (In re Colah, 6 Daly, 59; De Groot v. Jay, 30 Barb. 483; Higgins v. Wright, 43 id. 468; Angel v. Smith, 9 Vesey, Jr., 335; Code of Civ. Pro., §§ 263, subd. 8, 267.) The ostensible reasons given for appellant’s desire to discontinue are insufficient, while the real reasons are not such as the court will recognize and enforce. (Code of Civ. Pro., §§ 2320, 2341, 2342.)
   Finch, J.

Ordinarily, a suitor has a right to discontinue any action or proceeding commenced by him, and his reasons for so doing.are of no concern to the court. A party should no more be compelled to continue a litigation than to commence one, except where substantial rights of other parties have accrued, and injustice will be done to them by permitting the discontinuance. In such a ease, through the control which the court exercises over the entry of its order, there is discretion to refuse; but where there are no such facts, and nothing appears to show a violation of the right or interest of the adverse party, the plaintiff may discontinue, and a refusal of leave becomes merely arbitrary and without any basis upon which discretion can exist. (In re Anthony Street, 20 Wend. 618; Carleton v. Darcy, 75 N. Y. 375, 377.)

In this case the defendant was appointed by the Court of Common Pleas, on July 20, 1870, committee of Bomanjee Byramjee Colah, a lunatic, and took possession of his property. Up to the death of Colah, that court retained exclusive jurisdiction over the committee and the estate in his hands. But the lunatic, whose place of residence was in Bombay, died, while in Mew York and under the ward of the court, and the appellant was duly appointed ancillary administrator of his estate. As such administrator he commenced, in December, 1882, a proceeding by petition in the Common Pleas to settle the accounts of the committee and obtain the property remaining. This proceeding went so far as the entry of an order of reference, but no further proceedings were ever taken under it. At this point the administrator entered exporte an order of discontinuance on payment of costs, which was vacated by the court, and thereupon, moving for leave to discontinue, his request was refused. We can discover no reason for the refusal upon which discretion could operate. Two only are suggested. It is shown that after the entry of the first order the administrator began an action in-.the Supreme Court to settle the accounts, and it is said that the latter court had no jurisdiction, and that the control of the Common Pleas survived the death of the lunatic and the termination of the committee’s office. (Code of Civ. Pro., § 2320.) That is a question of law. The administrator had a right to raise it and could only do so by bringing his action in another court. By that process it may properly come before us if necessity should require it, but it has no place on a motion to discontinue. If the opinion of the Common Pleas on that question of law furnished a basis for the exercise of discretion the administrator cannot bring the question into this court for decision. It ought not to be decided on a mere motion for leave to discontinue, and should have been left to some suitable occasion. It is further said that the new action “harasses” the defendant unnecessarily. We cannot see how. All costs of the discontinued proceeding are to be paid and have been tendered. The defendant acquired no new rights. He is left precisely in the position he would have been in if the proceeding in the Common Pleas had never been commenced, and the action in the Supreme Court alone had been brought. Would that action have unnecessarily “ harassed ” him? We can see no just basis for the refusal of leave to discontinue upon which any discretion was called into exercise, or could operate.

The orders of the Special and General Terms should be reversed and1 the motion for leave to discontinue should be granted. No costs are allowed on this appeal.

All concur.

Ordered accordingly.


author: Earl, J.

text:
    James Van Allen Davis, Respondent, v. Arovestus P. Crandall, Appellant.
    The will of E., after a bequest to C. of a bond and mortgage executed by James Davis,• contained a bequest to J. as follows: “the sum of $343.93, a portion of the debt due me from the said James Davis, secured by his notes ; ” then followed a similar gift to the plaintiff; the legatees were infant sons of Davis. At the time of the making of the will and at the time of his death, the testator held a note against said Davis for the amount of the two sums thus bequeathed. Held, that the gift to plaintiff was a specific legacy of one-half,the note.
    Defendant was executor of the will. At the time of the death of the testatrix, plaintiff was about five years old. About four years thereafter he surrendered the note to Davis, taking in lieu thereof two notes, one payable on demand to each of the legatees for his one-half. After settlement of his accounts as executor, defendant tendered plaintiff’s note to thb mother of the legatees, but she refused to receive it, and requested him to keep it until plaintiff should come of age. He accordingly retained it. Davis was perfectly responsible up to two or three years before plaintiff became of age, when he became insolvent and unable to pay the note. In an action brought by plaintiff after he became of age to recover the amount of the note and interest, held, that he was entitled to recover; that as the gift was a specific legacy, and not needed for any purposes of administration, defendant, after the expiration of one year from the granting of letters testamentary, should have delivered the original note to the legatee; that if he could not deliver it to them jointly it was proper to take two notes as he did; that as the plaintiff was a minor and so a delivery could not be made to him, and as a delivery to his mother would not discharge defendant, if he desired to relieve himself from responsibility • he should have procured the appointment of a guardian (3 R. S. 151, § 5, as amended by § 44, chap. 460, Laws of 1837), to whom he could have delivered the note. Also held that, assuming defendant was under no obligation to have a guardian appointed, and after the accounting owed no duty as executor in reference to the note, by retaining possession and control of it he became trustee thereof for plaintiff and should have used efforts to secure or collect it.
    No citation for defendant’s accounting as executor was served upon plaintiff, who was then about nine years old; it was served upon his mother, who was also a legatee. Upon the return day of the citation an attorney was appointed special guardian for plaintiff. No mention was made in the account of the surrender of the original note, or of the taking of the two in place thereof, nor was any mention of the latter made in the accounting, or the decree. Held, that said decree was not final or conclusive as against plaintiff. Mrst, Because the surrogate had no jurisdiction to appoint such special guardian, and the decree was not binding upon plaintiff, he not having been served with a citation as required by the statute. (2 B. S. 93, § 61.) Second, Because there was no adj udication upon the accounting in respect to the note.
    (Argued December 22, 1885;
    decided January 19, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the fourth judicial department, made the second Tuesday of June, Í883, which reversed a judgment in favor of defendant, entered upon a decision of the court on trial at Special Term.
    The nature of the action and the material facts are stated in the opinion.

      John S. Morgan for appellant.
    The plaintiff, claiming under the will, must take it as he finds it. He cannot in the same breath affirm it and deny it. (Decker v. Waterman, 67 Barb. 460, 465.) Whether the gift or bequest in question should be deemed a specific legacy depends upon the intention of the testator. (1 Roper on Legacies, 192.) The test is, would it be liable to ademption. (2 Redf. on Wills, 462.) The intent of the testator is' apparent from the fact that all the rest of her property was specifically disposed of. (Chaworth v. Beach, 4 Ves. 555; Onondaga Trust, etc., Co. v. Price, 87 N. Y. 542.) As property specifically bequeathed the executor had no authority to collect or to do any thing with it, except to preserve and pass it to the legatee. (McClellan on Executors, 90; Spear, Ex'r, v. Tinkham, 2 Barb. Ch. 212; 1 Roper on Legacies, 192; 2 Redf. on Wills, 458; 2 R. S. 87, §§ 25, 26; Doe v. Guy, 3 East, 123; Onondaga Trust, etc., Co. v. Price, 87 N. Y. 548; Hudson v. Reeve, 1 Barb. 89, 93.) In preserving this legacy, tendering it to plaintiff’s mother during his minority, and to him, on his attaining his majority, this executor did all he could or was bound to do in the premises. (Larkin v. Salmon, 3 Dem. 270, 272; Platt v. Moore, 1 id. 191.) The note did not outlaw while in defendant’s hands before plaintiff became of age. (Code of Pro., § 101; Code of Civil Pro., § 396.) The only negligence in the case is that of the plaintiff and his parents. (2 R. S. 151, §§ 4, 5, 6 Laws of 1871, chap. 708.)

      Stephen K. Williams for respondent.
    The legacy to the plaintiff is a pecuniary legacy, a demonstrative legacy, and not a specific legacy. (Willard’s Eq. Jur. 502, 504, 506, 507; Doughty v. Stillwell, 1 Bradf. 300, 303-309; DeNottebeck v. Astor, 3 Kern. 98, 105, 106; Gidding v. Seward, 16 N. Y. 365; Bumpus v. Bumpus, 29 L. T. [N. S.] 800.) It was the duty of the executor to collect the Davis note and pay this legacy. (Newton v. Stanley, 28 N. Y. 61, 62, 66.) The defendant should have procured the appointment of a guardian, to whom the legacy could have been paid, under the direction of the surrogate. (2 R. S. 91, §§ 47, 48, 49.) The legacy, whether general or specific, belonged to the executor. It was not the property of the plaintiff, except with the assent of the executor. (Redfield’s Law of Surrogate Courts, 318; 2 Perry on Trusts, § 809 ; Willard’s Eq. Jur. 498, 500, 501; 2 Madd. Ch. 1, 2; 2 Wms. on Exrs. 1235, 1237, 1239, 1748, 1207; Dayton on Burr. [2d ed.] 411, 412 ; 2 R. B. 87, § 26.) An executor is always a trustee and assumes the duties of a trustee. (2 Madd. Ch. 1; Willard’s Eq. Jur. 498, 500, 501.) An executor, or other trustee, cannot be protected against loss in investing trust funds, unless he loans on real security, or invests in some fund approved by the court. (Ackerman v. Emott, 4 Barb. 636, 637, 645-8; Mills v. Hoffman, 26 Hun, 594, Barney v. Saunders, 16 How. [U. S.] 534, 545; King v. Talbot, 40 N. Y. 77; S. C., 50 Barb. 453; Leitch v. Wells, 48 id. 599; 84 id. 343.) A trustee cannot invest in a promissory note. (Matter of Foster, 15 Hun, 387, 389, 393, 394.) In this case the defendant could not be protected against personal liability for loss, by any investment, unless in the manner required by statute “ under the direction of the surrogate.’’ (2 R. S. 91, § 48; Holmes v. Dring, 2 Cox, 1.) W here an executor omits, or violates, a positive duty and a loss occurs, he becomes personally liable. (Eckford v. DeKay, 8 Paige, 89; Ackerman v. Emott, 4 Barb. 648; King v. Talbot, 50 id. 453.) The executor not only invested in an improper security, but he allowed it to lay until the promissory note in which he had invested had become outlawed, which was a devastavit and rendered him personally liable, for the amount of the legacy and interest, to the plaintiff when he became of age. (Powell v. Evans, 5 Ves. 839; Eggleston v. Coventry, 8 id. 466; French v. Holson, 9 id. 103; Wilkes v. Stewart, Coop. Ch. 6; Walton v. Walton, 1 Keyes, 15.) Being payable on demand, the statute commenced running on the note at its date, and an action thereon against the maker is barred by the statute of limitations if not brought within six years after its date. (Wheeler v. Warner, 47 N. Y. 519; McMullen v. Rafferty, 24 Hun, 363.) Where an executor neglects to collect debts due the estate he is personally chargeable with their amount (even when infants are not concerned) although there has been no loss of the debts, and no improper motives are imputable to the executor — the mere delay is enough to charge him; as a delay of three years. (Shultze v. Pulver, 11 Wend. 363, Ct. of Errors; affirming 3 Paige’s Ch. 172; Harrington v. Keteltas, 92 N. Y. 40; Dayton on Surr. [2d ed.] 480, 481, 482, 519; 65 Barb. 77; Shultz v. Pulver, 11 Wend. 364, 365.) It is no exoneration that the executor was not influenced by any impure motives, or that the executor has acted in good faith and intended fully and fairly to discharge his duty. (Caffrey v. Dailey, 6 Ves. 487; Wms. on Exrs. 1536-1538; Dayt. Surr. [2d ed.] 480, 48; Cornwall v. Dick, 3 N. Y. Weekly Dig. 85; S. C., 8 Hun, 122; Baskin v. Baskin, 4 Lans. 93, 94; Litchfield v. White, 3 Seld. 438; Hollister v. Burritt, 14 Hun, 291.) Executors and trustees are not warranted in lending money of the estate on mere personal security, such as the bond or promissory note of the borrower. (Hill on Trustees, 370, 378, marg. page; Bogart v. Van Velsor, 4 Edw. Ch. 718; Dayt. Surr. [2d ed.] 482; Lawson v. Copeland, 2 Bro. Ch., chap. 130; 2 Story’s Eq. Jur., § 1274; 2 R. S. 91, marg. page, § 48; Barry v. Saunders, 16 How. [U. S.] 535, 543; King v. King, 3 Johns. Ch. 552; Cross v. Smith, 7 East, 246) Administration of assets implies such a complete disposition of them as not only to collect them from the debtor of the estate if they are in that condition, but finally to place them in the hands of the creditor, legatee, or distributee, to whom, after undergoing the process of administration, they finally belong. (Walton v. Walton, 1 Keyes, 17; McClosky v. Reid, 4 Bradf. 339; Bevan v. Cooper, 7 Hun, 117, 119.) If this was a specific legacy, it was improperly withheld and retained by the executor for such length of time as to make him trustee for the infant, and responsible for the care and investment of the same, to the same extent as any trustee. (Fisher v. Fisher, 1 Bradf. 335; 1 Madd. Ch. 91; Cromwell v. Kirk, 1 Dem. [N. Y. Surr. Ct.] 599; Van Epps v. Van Deusen, 4 Paige, 64, 71, 74; Isenhart v. Brown, 2 Edw. Ch. 341, 348.) The executor haring rendered an account and verified it with his oath, that he has collected this note of James Davis, he ought to be bound and estopped by this account and the decree to that effect, and ought not to he permitted to contradict it. (McMarsh v. Pres., etc., 55 N. Y. 222; 26 Barb. 346, 354; McClellan’s Surr. 308, 309.) Defendant could not proceed to transfer this note to the plaintiff or bearer. He could not transfer the note except by order of the surrogate, and _ then only to a general guardian, or to the surrogate himself. (Wilcox v. Smith, 26 Barb. 318, 336; 2 R. S. 91, § 47; id. 98, § 82; Stephens v. Van Buren, 1 Paige, 479; McCabe v. Fowler, 84 N. Y. 318; Harrington
      v. Keteltas, 92 id. 40; 14 Hun, 291, 293.) Defendant’s possession of the note was sufficient to enable him to collect it, and payment to him would have been good. (Crandall v. Schroeppel, 1 Hun, 557; Scoville v. Landon, 50 N. Y. 686; Merritt v. Cole, 9 Hun, 98; 4 Edw. Ch. 718; 1 Paige, 479.) The trial court erroneously admitted evidence of directions of the plaintiff’s mother to the defendant, to keep the note until the minor became of age. (Combs v. Jackson, 2 Wend. 153; Hyde v. Stone, 7 id. 356; Jackson v. Combs, 7 Cow. 37; Whitlock v. Whitlock, 1 Dem. [Surr. Ct.] 160; Mills v. Hoffman, 26 Hun, 600; 2 Wms. on Exrs. 1259, 1267, aud note, 1268; 2 Perry on Trusts, §§ 612, 624; Hill on Trustees, 398; Genet v. Tallmadge, 1 Johns. Ch. 3; Morrell v. Dickey, id. 156; Houghton v. Watson, 1 Dem. [Surr. Ct.] 299; People v. Supervisors, 70 N. Y. 228; Krekeler v. Thaule, 73 id. 608; Godfrey v. Mosher, 66 id. 250; Mackay v. Lewis, 73 id. 382.) The accounting in the Surrogate’s Court was of no binding force against the plaintiff. The decree and all proceedings, and the orders made therein, were absolutely void as to plaintiff, who had no notice. (President, etc., v. Hasbrouck, 6 N. Y. 221; Hood v. Hood, 19 Hun, 300, 302; Whitlock v. Whitlock, 1 Dem. [Surr. Ct.] 160; Hellet v. Rathbone, 4 Paige, 102, 106; Laws 1863, chap. 362, § 1; 2 R. S. 93, § 61; Bellamy v. Guhl, 62 How. Pr. 460; Ingersol v. Mangum, 84 N. Y. 622; Dayton’s Surrogate [2d ed.], 469, 470; 2 R. S. 94, § 65; Story v. Dayton, 22 Hun, 450; Matter of Fritz, 2 Paige, 374, 304; 1st General Rule, p. 49; Pinckney v. Smith, 26 Hun, 524; 2 R. S. 92, § 54; Dayton’s Surrogate [2d ed.], 459, 460, 482; Wilcox v. Smith, 26 Barb. 319, 341-2; Metzger v. Metzger, 1 Bradf. 265; 2 R. S. 92, § 55; 6 Paige, 167.) The legacy being a demonstrative legacy, it would not be adeemed, or the plaintiff’s right of action destroyed by the loss to the estate of one of the renewed notes against James Davis taken for half of the original note against him. (Dayton’s Surrogate [2d ed.], 400; Doughty v. Stillwell, 1 Bradf. 300; Clayton v. Wardwell, 2 id. 1, 7.) The legacy to the appellant was a pecuniary legacy. (Doe v. Shelton, 3 Ad. & El. 265, 283; 1 Greenl. Ev., § 23, note 3; Bouv. L. Dic., tit. Legacy; Roberts v. Pocock, 4 Ves. 150; Kirby v. Porter, id. 748; Dean v. Zest, 9 id. 146; Wilson v. Brownsmith, id. 180; Pawlefs Case, Ld. Raym. 335; Peterborough v. Mortlock, 1 Bro. Ch. 565; Enders v. Enders, 2 Barb. 366, 367.) It was the executor’s duty to discharge the legacy at the expiration of one year from the granting of letters testamentary. (Walton v. Walton, 1 Keyes, 17; McClosky v. Reed, 4 Bradf. 339; Bevan v. Cooper, 1 Hun, 117, 119.) Any person who takes possession of an infant’s property takes it in trust for the infant (whether the property be a legacy, or held in the infant’s own right', and will be held to the same degree of responsibility as if he had been formally appointed to the office of guardian, and is accountable to the like extent. (Fisher v. Fisher, 1 Bradf. 335; 1 Madd. Ch. 91; Cromwell v. Kirk, 1 Dem. 599; Van Epps v. Van Deusen, 4 Paige, 64, 71, 74; Mason v. Roosevelt, 5 Johns. Ch. 542.) The taking of the note payable to the infant or bearer, without any delivery to him, or promise to him personally, did not prevent the note outlawing in six years. (Darnall v. Adams, 13 B. Monr. 273; Brady v. Walters, 55 Ga. 25; Williams v. Otey, 8 Humph. 563; Bennett v. Williamson, 8 Ired. 121.)
   Earl, J.

In October, 1861, Elbertia Yan Allen made her will in which she gave to Christina Amelia Davis a certain bond and mortgage made and executed by her husband, James Davis; to Helen Stephenson, a certain bond and mortgage executed by John Stephenson; to J. Elbert Davis “the sum of $243.92, a portion of the debt due me from the said J ames Davis secured by his notes ;” to. James Yan Allen Davis “ the sum of $243.92, another portion of the debt due me from the said James Davis and secured by his notes.” At the time of making the will the testatrix held a single note against James Davis for the amount of the two sums thus bequeathed. Thereafter, in 1863, she died, leaving the note among her assets unpaid. The defendant was named executor in her will and took upon himself the execution thereof. James Yan Allen Davis, the plaintiff, and J. Elbert Davis were minor sons of the maker of the note, and at the time of the death of the testatrix the plaintiff was about five years old. About four years after her death, the defendant surrendered to J ames Davis the note left by her, and took in lieu thereof, from him, a note for one-half the amount thereof, payable to the plaintiff or bearer on demand, with interest, and for the other half thereof, a note payable to J. Elbert Davis on demand with interest. A few days after taking these notes, he applied to the surrogate of Wayne county for a settlement of his accounts, and in his petition, among other things, stated that the plaintiff, one of the legatees named in the will, was an infant under the age of twenty-one years, having no guardian. Mo citation for the accounting was served upon the plaintiff who was then about nine years old, but it was served upon his mother who, as a legatee, was also interested in the accounting. Upon the return day of the citation, an attorney was appointed his special guardian for the accounting, and the defendant presented his account to the surrogate, in which he charged himself with having received May 5, 1865, upon the note of James Davis, two items of $203.87 each, and under the same date he credited himself with having paid to J. Elbert Davis and to the plaintiff each the sum of $203.87. Mo mention was made in the account of the surrender of the note of James Davis left by the testatrix, or of the taking of the two notes in the place of it; nor was any mention made in the-account, or in the decree of the surrogate thereon, of the two notes, and there was no adjudication in reference to such notes. Upon the accounting, no action whatever was had in reference to the note which had been taken for the plaintiff. Thereafter the defendant tendered the note to the plaintiff’s mother, but she ref used to receive it, and requested him to keep it until the plaintiff shouldbome of age, and the defendant thereafter retained the note in his possession until after the plaintiff became of age and commenced this action. During many years after the defendant took the note from Davis, he was perfectly responsible and the note could have been collected. But two or three years before the plaintiff arrived at his majority, Davis became wholly irresponsible and insolvent and unable to pay the note. The plaintiff, having become of age, brought this action against the defendant to recover of him the amount of the note with interest thereon.

At the Special Term it was held that the decree of the surrogate was final and conclusive against the plaintiff and protected the defendant against any claim in this action. Upon appeal by the plaintiff to the General Term, the judgment of the Special Term was reversed, and then the defendant appealed to this court.

We are of opinion that the legacy of the plaintiff was a specific legacy of one-half of the note which the testatrix held against his father. Whether a legacy shall be considered specific depends upon the intention of the testator or testatrix, to be derived from the language used in the bequest, construed in the light thrown upon it by all the other provisions of the will. Here there were specific bequests of the two bonds and mortgages to Mrs. Davis and to Mrs. Stephenson, and it is entirely clear that the precise bonds and mortgages named were to go to the legatees. So in the bequests immediately following to the plaintiff and to J. Elbert Davis, it was clearly the intention that the one-half of the note held by the testatrix should go to each of the legatees named. If that note had been paid during the life-time of the testatrix or otherwise canceled or destroyed, so that no obligation at her death rested upon James Davis to pay it, the two legatees would have taken nothing.

As this was a specificlegacy and not needed for the payment of debts or any other purpose of administration, it was the duty of the defendant, after the expiration of one year from the granting of letters testamentary, to discharge it by delivery to the legatee. If the two legatees of this note had been adults, the executor would have discharged his duty by delivering it to them jointly, if they were willing to take it in that way. If they had refused to take it, or for any reason could not take it in that way, it would undoubtedly have been proper for him to do as he did — divide the note by taking two notes each for one-half — payable to each of the legatees upon demand, with interest. In this case the defendant so far discharged his duty by taking the two notes, and that act imposed no new or additional obligation upon him.

As the plaintiff was a minor, the defendant could not discharge himself by delivering the note to him, nor by delivering it to his mother, Mrs. Davis. She was not his legal, nor while his father lived, his natural guardian. A delivery to her would not have been an effectual delivery to the plaintiff so as to discharge the defendant.

As the plaintiff was a minor, the note should have been delivered to his guardian; It furnishes the defendant no defense that the plaintiff did not have a guardian at the time, for it was in his power to procure the appointment of one, as it is provided by section o of title 3, chapter 8, part 2 of the Revised Statutes, as amended by section 44 of chapter 460 of the Laws of 1837, that if a minor be under the age of fourteen years, the application for the appointment of a guardian may be made by any relative or other person in his behalf. Therefore, in this ease, if the defendant desired to discharge himself from responsibility as to this specific legacy, he should have procured the appointment of a guardian, and then have delivered the note to such guardian. He could not hold the note for more than fifteen years, until the maker thereof became wholly insolvent and the note wholly worthless, and escape liability by then tendering the note to the legatee. It does not avail the defendant to say that the relatives of the plaintiff could have procured the appointment of a guardian. They had no duty to discharge which required the appointment of a guardian. But if the defendant desired to be relieved of responsibility in reference to the note, the duty rested upon him to make a valid delivery thereof to the legatee, and for that purpose it was incumbent upon him to have a guardian appointed.

But if we should assume that the defendant was under no obligation to have a guardian appointed for the plaintiff, and that after the accounting, he owed him no duty as executor in reference to the note, the same result would still follow. He took and retained possession and control of the note, and, upon the assumption made, thus became trustee thereof - for the plaintiff, charged with substantially the same duty in reference thereto as would have devolved upon him if he had been formally constituted trustee. Having the possession and control of the property of an infant who is supposed in law incapable of taking care of his own property and looking after his own interests, he was bound to exercise some care and diligence in preserving and protecting the same; and he could not carelessly permit the same to be destroyed or become worthless without incurring liability. He should have used efforts to secure the note, or to collect it either in his own name or that of the infant. (Cromwell v. Kirk, 1 Dem. 599; Van-Epps v. Van Deusen, 4 Paige, 64; Mason v. Roosevelt, 5 Johns. Ch. 534.)

The decree of the surrogate upon the final accounting furnishes the defendant no defense, because it was not binding upon the plaintiff. He was not served with a citation for the final accounting as required by the statute. (2 R. S. 93, § 61; Kellett v. Rathbun, 4 Paige, 102.) Therefore as there was no service of a citation upon him, the court had no jurisdiction to appoint a special guardian for him, and the appointment of such guardian and his appearance did not give the court jurisdiction of him, and for this reason that accounting and the decree made thereon do not bind the plaintiff. (Ingersoll v. Mangam, 84 N. Y. 622.) But farther, upon that accounting there was no adjudication whatever in reference to this note or the specific legacy. The note representing the plaintiff’s specific legacy was then held by the defendant. He did not claim that he had delivered it to the plaintiff, and had thus discharged the legacy, and no reference whatever was made to it in the account or in the decree ; and hence as there was no adjudication about it, the accounting furnishes the defendant no defense.

We are, therefore, of opinion that the order of the General Term is right and should be affirmed, and judgment absolute should be ordered against the defendant, with costs.

All concur.

Order affirmed and judgment accordingly.


author: Danforth, J.

text:
    The People, ex rel. The New York and Harlem Railroad Company, Respondent, v. The Commissioners of Taxes and Assessments of the City and County of New York, Appellant.
    An order, reversing on certiorari the proceedings of the commissioners of taxes and assessments in the city of New York, in the assessment of property, is final and so reviewable here, although by the terms of the order the matter is remanded to the commissioners for farther proceedings, as they have no authority to proceed under the order.

      In re Moore (07 N. Y. 555), and In re R. 7. & 3. B. B. Oo. (98 id. 13), distinguished.
    The "tunnels, tracks, substructures, superstructures, stations, viaducts and masonry” of the N. Y. & H. R. R. Oo., situate on and under Fourth avenue in the city of New York are “ land” within the meaning of that word as used in the statute in reference to property liable to taxation (1 R. S. 387, § 3), and are assessable as such.
    The fact that certain of the structures were built for the purpose of furnishing to the public safe and convenient crossings over the railroad tracks, in compliance with the requirements of the act of 1873 (Chap. 703), and that under said act the city is required to pay a portion of the expense of the construction, does not divest the structures of the incidents attached to the other property belonging to the railroad company, or give the' city any title thereto.
    As regards taxation it is immaterial whether a railroad is laid upon the surface, placed on pillars, or carried through a covered way or tun-nel, the structures adopted to sustain it, or facilitate and protect its use, are, within the meaning of the law, land, and for them the railroad company is liable to be taxed.

      People, ex rel. R. 7. & R. B. B. Oo., v. Oom’rs of Taxes, etc. (33 Hun, 687), reversed.
    (Argued December 23, 1885;
    decided January 19, 1886.)
    Appeal from order of the G-eneral Term of the Supreme Court, in the first judicial department, made February 4,1881, wliieh reversed an order affirming on certiorari the proceedings of the commissioners of taxes and assessments of the city of New York, in assessing as real estate, for the purposes of taxation, certain structures which are described in the opinion, (Reported below, 23 Hun, 687.)
    The facts so far as material are set forth in the opinion.
    The commissioners of taxes and assessments in the city of New York, assessed as real estate: “The tunnels, tracks substructures, superstructures, stations, viaducts and masonry of the New York and Harlem railroad, which are situated on and under Fourth avenue, between Eighty-sixth street and the Harlem river, in the-twelfth ward of the city of New York, in the sum of $1,500,000; and also as real estate, the tunnel, track, substructures, superstructures and masonry of the said New York and Harlem railroad, which are situated on and under Fourth avenue, between Forty-fifth street and Eighty-sixth street, in the nineteenth ward, in the further sum of $1,500,000, and entered the same in the books called the ‘Annual Record of Assessed Valuations of Real and Personal Estate,’ as follows:

    In due time the relator applied to the commissioners to have the assessed value corrected, but were denied. A review of the proceedings was had upon certiorari, issued out of the Supreme Court, when at Special Term they were affirmed and the writ dismissed. On appeal to the General Term, the order of the Special Term was reversed, as was also the proceedings of the commissioners, and they were remanded for further proceedings. From this decision an appeal is taken to this court

      D. J. Dean for appellant.
    The structure was properly assessed as real estate. (1 R. S. [5th ed.] 905, §§ 1, 3.) The structure is a fixture, even according to the common-law definition. And as such would, independently of the statute, be taxable as “land,” or “real estate.” (Walker v. Sherman, 20 Wend. 636; Laflin v. Griffiths, 35 Barb. 58; Potter v. Cromwell, 40 N. Y. 287; McRae v. Central Bk., 66 id. 489; Tabor v. Robinson, 36 Barb. 483; Main, v. Schwartzwalder, 4 E. D. Smith, 273; Goodrich v. Jones, 2 Hill, 142; Bishop v. Bishop, 11 N. Y. 123; Snedeker v. Wareing, 12 id. 170.) This structure is to be considered as land or real estate, for purposes of taxation, under the provisions of the statute. (R. R. Co. v. Cassidy, 46 N. Y. 46; People v. Beardsley, 52 Barb. 105; Smith v. Mayor, etc., 68 id. 552; People, ex rel. Smith, v. Commissioners of Taxes, 10 Hun, 207; Hudson R. Bridge Co. v. Patterson, 74 N. Y. 365; People, ex rel. N. Y. Elevated R. R. Co., v. Commissioners, 82 id. 460.) It is not necessary that the fee of the land, over or beneath which the railroad was constructed, should be in the person or corporation assessed. (People, ex rel. R. R. Co., v. Cassidy, 46 N. Y. 46; Hudson R. Bridge Co. v. Patterson, 74 id. 365; People, ex rel. N. Y. Elevated R. R. Co., v. Commissioners, etc., 82 id. 460; Laws of 1872, chap. 702, §§ 7, 9, 10; 4 Kent’s Com. 536; Jennings v. Conboy, 73 N. Y. 230; Parker v. Plummer, Cro. Eliz. 190; Kerry v. Derrick, Cro. Jac. 104; Stewart v. Garnet, 3 Sim. 398; Craig v. Craig, 3 Barb. Ch. 76.) It is not necessary that the land through which the tracks and structures are constructed should be subject to taxation. (People, ex rel. N. Y. Elevated R. R. Co., v. Commissioners of Taxes, 82 N. Y. 460; Peoples. Cassidy, 46 id. 46; People v. Beardsley, 52 Barb. 105; Smith v. Mayor, etc., 68 N. Y. 555; Hudson R. Bridge Co. v. Patterson, 74 id. 365.) In assessing the value of the relator’s real estate, the respondent was not restricted to its cost, nor was. it bound in that regard by the representations made in behalf of the relator. (People, ex rel. Buffalo & State Line R. R. Co., v. Barker, 48 N. Y. 71.)

      Henry H. Anderson for respondent.
    Neither Fourth avenue, nor the work which was done under the act of 1872, called the Fourth avenue improvement, is liable to be assessed or taxed as property of the city. (People v. Kerr, 27 N. Y. 188, 197, 198; Worcester Co. v. Worcester, 116 Mass. 193; Trustees of

      Public Schools v. Trenton, 30 N. J. [3 Stew.] 667; Cooley on Tax. 131; Plumstead Board v. British Land Co., L. R., 10 Q. B. 203; People v. Salomon, 51 Ill. 52.) It cannot be assessed or taxed as the property of the railroad company. It is in no sense the property of the company taken as a whole. (1 R. S. 415 [Edm. ed. 375], § 6, snbd. 2.) The only right the relators have in these tunnels, viaduct, substructure and masonry is the franchise of running through or over them. But this gave and gives the company ownership neither in the tunnels, nor in any other part of the improvement, and without ownership, the liability to assessment for taxation cannot exist. (Smith v. Mayor, etc., 68 N. Y. 552; Hudson R. Bridge Co. v. Patterson, 74 id. 365.) The legislature cannot be supposed to have intended to authorize the assessment of a tax which cannot be collected, or to which legislation for the collection of taxes cannot practically be applied. /'Laws of 1843, chap. 321; 1 Laws of 1871, chap. 381, p. 740.)
   Danforth, J.

We think the order appealable. Although by its terms the matter is remanded to the tax commissioners, we are referred to no statute under which they can proceed further. Both parties agree that the proceeding is a special one, and we find no aspect in which the order can be regarded as other than a final one. In this respect it differs from the Moore Case (67 N. Y. 555), where a rehearing was ordered before the Special Term, and Matter of the Harlem Railroad (98 N. Y. 12), where the appeal was dismissed, because for aught that appeared, the order was made in the exercise of discretionary power conferred by statute, and from the other cases cited by the respondent for. one or the other of these reasons.

Upon the merits the appeal is well taken. That the things in question form an essential and necessary part of the relator’s railroad, as now constructed within the city of New York; cannot be doubted; that of themselves they constitute land within the definition of that term, given in the statute relating to property liable to taxation (1 R. S., tit. 1, chap. 13, art. 1, § 2), is equally clear (People, ex rel. Elevated R. R. Co., v. Comrs. of Taxes, 82 N. Y. 459), and if so, they are liable to assessment to whomsoever has that interest in the real estate which will protect the erection or affixing thereon of these structures, and their possession. (Smith v. Mayor, etc., 68 N. Y. 552.) As to the tracks, rails, sleepers, switches and sidings forming the superstructure upon which the relator’s cars run, it is necessarily conceded that, under the law as interpreted in this State, they are to be regarded as real estate belonging to the corporation, and assessable as such, but as to the other subjects which have been treated by the commissioners as equally liable, the contention of the learned counsel for the relator is, that they form part of a public work, erected for the accommodation of the public as part of the improvement known as the Fourth avenue improvement, and belong, not to the railroad company, but to the city, and in its support is cited the statute entitled “ An act to improve and regulate the use of the Fourth avenue in the city of Few York.” (Laws of 1872, chap. 702.)

We find in none of its provisions warrant for such exemption, nor any intention on the part of the legislature to release the defendant from any obligation or liability previously existing, or to which it was bound by the general law. A corporation can construct or operate a railroad only for public use ; it cannot exercise its necessarily great powers, except in furtherance of the objects of its incorporation. It may without special permission, and in carrying out its own plans, cross a railroad or highway, not only upon a level, but by means of bridges, viaducts, culverts, under or over passages, and in one way more than another conduct its operations with greater concern for the public safety, but it has never yet been held that the bridge or tunnel by which this safety was promoted did not partake of the incidents of its other property. It may go through a cutting, or upon an embankment, and in either case by walls provide against danger from the slipping of the earth. The whole line might be executed in tunnel, but one as much as the other would be, within the meaning of the law, land, and each equally in possession of the company. Fow when we look at the statute (1872, supra) upon which reliance is placed for a different rule, we find authority conferred upon the relator, under certain conditions, to regulate the grade of its railroad in the Fourth avenue, and to construct viaducts, foot and road bridges over any such excavations and tunnels under it, as will make the same safe and convenient to persons crossing, and railroad trains and passengers traveling thereon ; at certain streets it prescribes crossings, stone arches and iron bridges, some for foot passengers, others for foot passengers and carriages, and in those places, iron railings or brick walls outside the railroad tracks, to prevent crossing at a level; and where them is an open cut, retaining walls; and when all is done, the same law declares that the tunnel and railways shall be exclusively for the uses and purposes of said railroad company,” and it is made unlawful for any person other than a public officer, in the execution of his duty as such, “ to enter or pass upon or through the same, or any portion thereof, on foot or in any other way than in the proper cars of this corporation provided for that purpose.” The premises, therefore, upon which these various structures are placed are in the exclusive use of the relator, and they are for the accommodation of-the public in no other sense than is the railroad itself for public use. The act of the legislature permitted that appropriation, and its effect is not impaired because the city of blew York is compelled by the same act to pay a portion of the expense of construction. The power to make the improvement was conferred solely upon the relator. The city was forbidden to obstruct either the improvement, or the use of the Fourth avenue above Forty-second street for that purpose. Thus it neither controlled the improvement, nor can it be said in any sense to possess it. On the other hand the relators not only controlled the improvement, but when completed could not only use it themselves, but by lease or otherwise, and on their own terms, permit the trains of other railroads to move over it. The principles applied in the Elevated Road Case (82 N. Y. 459), and in the cases there cited, apply here. It can make no difference in respect to taxation, whether the rail is laid upon the surface of the road, or placed on. pillars, or carried through a covered way or tunnel. In either case the structures adopted to sustain it, or facilitate and protect its use, are, within the meaning of the law, land, and for them, as described by the commissioners, the relators were liable to be taxed.

There was, therefore, no error on the part of the commissioners, and it follows that the order of the General Term should be reversed, and the order of the Special Term affirmed.

All concur, except Sapallo, J., not voting.

Ordered accordingly.