author: Mayham, P. J.: Putnam, J.

text:
    John Dobert, as Administrator, etc., of William Dobert, Deceased, Appellant, v. The Troy City Railway Company, Respondent.

      Negligence — a person leming, and passing behind, a motor ca/r struck by a car upon the other track — the questions of negligence are for the jury.

    In an action brought to recover damages for injuries resulting in the death of the plaintiffs intestate, alleged to have been caused by the negligence of the defendant, it appeared that the intestate was going southerly in a motor car upon the most westerly track of a street railroad laid on River street in the city of Troy; that at the junction of River and Congress streets the car stopped; that the intestate alighted from the rear of the car at its westerly side, passed . around its end going- easterly, and was struck by a north-bound car passing on the easterly track, which was distant from the westerly track about three feet.
    There was evidence that the intestate looked toward the approaching car, the distance between which and the car on which the intestate was riding was only one foot. It did not appear that the speed of the north-bound car was diminished at the crossing or at the point where the passengers of the south-bound car alighted, or that it gave any signal or warning of its approach. The rules of the defendant require that when a car is standing upon a crossing the operator of a car, moving in an opposite direction, shall slack up before reaching the crossing.

      Held, that a nonsuit should not have been granted, and that the questions of negligence and of contributory negligence should have been submitted to the jury.
    Putnam, J., dissenting.
    Appeal by the plaintiff, John Dobert, as administrator, etc., of William Dobert, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 26th day of February, 1895, upon the dismissal of the complaint directed by the court after a trial at the Rensselaer Circuit before the court and a jury.

      Charles T. Faullcner, for the appellant.

      Thomas 8. Fagan, for the respondent.
   Mayham, P. J.:

This action was brought by the plaintiff, as administrator of the estate of William Dobert, deceased, to recover against the defendant for its alleged negligence in the management of one of its motor cars, by which the plaintiff’s intestate was killed.

The facts disclosed by the evidence are.briefly as follows:

On the 3d day of January, 1893, the intestate was riding in one of defendant’s motor cars, in the city of Troy, going in a southerly direction along River street on the westerly track of the defendant’s railroad at that point. At the junction of River and Congress streets the car on which intestate was riding stopped to receive and discharge passengers. The intestate alighted from the ear at that point, on the right-hand side of the rear platform, the left-hand side of the platform being guarded by a railing, so as to compel all passengers to alight and enter said car upon the right-hand side. Parallel with the westerly track of this railroad at that point is another track three feet distant, used for north-bound cars on such railroad. On alighting from the car at the time in question the intestate passed around the rear end of. the car on which he was riding and started in an easterly direction up Congress street to cross the easterly track, and at the moment of stepping upon such track was struck by a north-bound car and killed.

The car on which the intestate was riding was a closed car, which, to some extent, must have obstructed the view of the approaching north-bound car.

The evidence discloses that the intestate on passing around the rear end of the car on which he had been riding looked in the direction of the approaching car. The intervening distance between the bodies of the cars going north and south is fixed by the witnesses at about one foot. The north-bound car seems to have been moving at the ordinary rate of speed of motor street cars. The car which struck intestate was stopped within a distance of three or four feet from -where the collision occurred, and when stopped the body of the intestate was under its wheels.

It does not appear from the evidence that the north-bound car lessened its speed on approaching the crossing, or at the point where passengers of the south-bound car alighted; nor does it appear from the evidence that any signal or warning of its approach was given from the north-bound car.

The evidence discloses that the rules of the defendant company require that when a car is standing upon a crossing, the operators of a car moving in an opposite direction shall slack up before reaching the crossing.

At the conclusión of the plaintiff’s evidence the defendant moved for a nonsuit and that the complaint be dismissed upon the following grounds:

“First. That the plaintiff has failed to establish a cause of action against the defendant.

“Second. That the defendant was not negligent.

“Third. That there is no evidence to justify the jury in finding the defendant guilty of negligence.

“Fourth. That the undisputed proof is that the plaintiff’s intestate was guilty of contributory negligence.

“Fifth. That'it has not been shown affirmatively that the plaintiff’s intestate was free from contributory negligence.

“Sixth. The evidence shows the plaintiff’s intestate was guilty of contributory negligence.”

The plaintiff’s counsel asked the court to permit the plaintiff to go to the jury upon the question as to whether or not the accident in this case was occasioned by the negligence of the defendant.

Second. The plaintiff asked the court to submit to the jury the question as to whether or not the view of the decedent, at the time he approached the easterly track, and met with the accident that occasioned his death, was obstructed so that he was excusable for not seeing the approaching car.

Third. The plaintiff asked to go to the jury on the question as to whether or not the evidence does not show that the deceased exercised ordinary care and prudence in approaching the crossing at the time of the occurrence of the accident.

Fourth. The plaintiff asked to go to the jury upon the question as to whether the deceased did not exercise all the precaution he was, by law, required to exercise in approaching the scene of the accident.

Sixth. The plaintiff asked to go the jury upon the question of the freedom of the decedent from contributory negligence in every view upon which the question could be raised.

Each of these requests was denied by the court, and to each denial the plaintiff’s counsel excepted.

The court thereupon granted the defendant’s motion for nonsuit and dismissal of the complaint, to which determination the plaintiff’s counsel also excepted.

No rule is better settled than that, where a plaintiff seeks to recover for the negligence of his adversary, he must show affirmatively his freedom froiq contributory negligence, and where the injured party fails in that particular he must fail in his.action, but if the question as to whether or not the party injured was guilty of contributory negligence, is so closely balanced by the evidence that men of ordinary intelligence might reach different conclusions from the same evidence, the rule seems well settled that in such cases the question of contributory negligence must be submitted to the determination of the jury.

It seems to us that the case under consideration comes within the latter rule. The plaintiff’s intestate alighted from a car on which he had been transported as a passenger of the defendant, taking the only available means of exit from the car, and upon a crowded thoroughfare sought to cross an adjacent track of the defendant’s railroad, over which a car was moving in an opposite direction at the ordinary rate of speed, and which car, as would appear from the evidence, was hidden from the view of the intestate until the very moment of his fatal collision with it. lie had a right to cross the other track of the defendant’s railroad and pass up the public thoroughfare upon which he was permitted to alight.

It is true that he was bound to recognize the fact, if known to him, of the existence of another track, on which trains might pass in an opposite direction ; but it does not appear that he was familiar with this crossing, or that he had any warning of the approach of a car from the opposite direction, or that any warning was given him by the defendant’s employees.

It may be that this unfortunate accident was one of those unavoidable occurrences against which ordinary prudence will not guard, and for which the law would afford no indemnity. But that would be a question of fact to be found by the jury from a consideration of the whole case.

It does not appear to us that there was such a want of care on the part of the plaintiff’s intestate as to justify the conclusion, as matter of law, that he, by his negligence, contributed to the in jury to recover damages for which this action is brought. Doubtless the jury, had the case been submitted to them, might have reached such a conclusion, and if they had, their verdict upon the evidence in this case would not be set aside as entirely unsupported by evidence; but it was so close a question that unless the- court must, in all cases, determine without the intervention of a jury the question of contributory negligence, it seems to us that this was one eminently proper to be submitted for their consideration.

In Moebus v. Herrmann, (108 N. Y. 354) the Court of Appeals, in passing upon a question not unlike this in some respects, uses this language : “ The duty imposed upon a wayfarer at the crossing of a street by the track of a railroad to look both ways does not, as matter of law, attach to such person when about to cross from one side to the other of a city street. The degree of caution he must exercise will be affected by the situation and surrounding circumstances.”

It is true that that utterance was made in reference to an injury inflicted by an ordinary carriage, and not by a railroad car; but in all cases where the recovery is sought because of the alleged negligence of the defendant, and the question of contributory negligence becomes the subject of inquiry, the degree of caution which must be exercised will be affected by the situation and surrounding circumstances, and they become a pertinent subject of inquiry, and where the injured party is shown to have exercised some degree of caution, it is the province of a jury to pass upon the question of contributory negligence, unless there is such palpable want of. care as to constitute legal negligence per se.

In the case at. bar, as we have seen, the intestate’s view of the north-bound track was obstructed by the motor car from which he-alighted, and it was a question for the jury, under the evidence in the case,' we think, whether the motor car moving north might have been seen or heard by the intestate, in time to enable him to have •avoided the injury.

In Parsons v. N. Y. C. & R. R. R. R. Co. (113 N. Y. 363) it is said: “ The rule which prescribes it to be the duty of persons to exercise care and caution in going upon railroad tracks, and to use their senses of seeing and hearing for the purpose of discover-. 'ing and avoiding dangers, is one frequently found in reported cases, and, as a general rule, is salutary and just. But the duty of active vigilance must be adapted to the circumstances of the case, and if the offending company has, by its own conduct, and by its published regulations, led the public to believe that trains would not be run on its tracks at specified times and places, persons having occasion to cross them have the right to rely on the assurance of the company, and are not necessarily guilty of negligence, when injured by pro-hibited trains while doing so. The deceased was justified in supposing that no rapidly moving train would come into the station while he remained in the yard and was engaged in communicating with his friends on the west side. * * * Having once looked, and seeing no train, he had.a right to assume that none wrould be coming at such a rate of speed as would preclude him from crossing a single track. It is- probably true that if he had looked both ways at the moment of stepping upon the track he could have seen the approaching train, but that might be said of almost every accident of a similar character, and is a degree of vigilance seldom adopted by any one, and would require the impossible feat of looking in opposite directions at the same time, or anticipating the point from which he was to be assailed. The law does not require this; neither is there any rule which will defeat a recovery in cases of this kind, merely because it was possible for an injured person to discover an approaching train. The law does not forbid persons from crossing railroad tracks, or impose upon tliem exclusive responsibility for damages incurred in making such an attempt.’ The question is, whether the injured party, under all of the circumstances of the case, ■exercised that degree of care and caution which pi'udent persons of ■ordinary intelligence usually exercise under like circumstances. This rule must, in all cases, except those marked by gross and inexcusable negligence, render the question involved one of fact for the jury.”

It is not absolutely certain, as seems to have been held by the learned trial judge, that the plaintiff’s intestate could have seen the ■approaching car on the north-bound track until the very moment he was hit by it. A witness who acconipanied him, and who, from the testimony, could not have been a step behind him, and who was intending to cross the track, testifies that lie did not see the car until it struck the intestate.

It can hardly be said, therefore, that it affirmatively and satisfactorily ajipears from the case that the intestate could or must have seen the approaching car before the collision.

In Baxter v. Troy & Boston R. R. Co. (41 N. Y. 505) the court says: “The inquiry is, whether from the evidence it satisfactorily appears that the plaintiff, by looking, could have seen the train in time to have avoided the collision. If so, the plaintiff should have been nonsuited. If not, the case was a proper one for submission to the jury. The plaintiff testified he was well ■■acquainted witli the crossing; that he did not look for the train ; that he could not have seen it until upon the track if he had, on account of the hill, etc. If this was true, the plaintiff was excused from looking, as the law does not require one to look to see something when it is impossible to see it.”

In the case at bar the evidence indicates that the intestate looked in the direction from which the car approached; but the evidence ■also tends to prove that his vision was entirely obstructed by the intervening car from which he had alighted.

In Greany v. Long Island Railroad Co. (101 N. Y. 426), Judge Danfobth, in examining the question of contributory negligence <of the plaintiff, after quoting her testimony at some length, the conclusion of which was: “ If I had looked earlier I would have seen it, but I did not think there was any need of my looking more than once and I did not think there was any other train due at that time. I had looked a few seconds before, and then went right on. When I looked I could see about a quarter of a mile. I did not see any train, and then I walked on toward the track, and the train was right upon me before I noticed it.”

“ At this time the engine at the depot was blowing off steam, and she heard no bell or whistle from the train coming from the east. According to the defendant’s time table these trains should not have met or passed each other at this station, but the train going east was behind time. The engineer in charge of the train going west first saw the plaintiff when six hundred feet distant. Can it be ■said, under these circumstances, that she was bound as matter of law to see the incoming train? Was it not rather for the jury to say whether or not she had made the effort which a prudent person would make in like circumstances ? I think it was for the jury, for it cannot be said to be impossible for a reasonable person to conclude that the accident was caused by the negligent running of the defendant’s train and not by the omission of a duty or reasonable care on the part of the plaintiff to avoid the collision.”

In Terry v. Jewett (78 N. Y. 342) the court says: It may be assumed that a railroad corporation, in the exercise of ordinary care, so regulates the running of its trains that the road is free from interruption or obstruction where passenger trains stop at a station to receive and deliver passengers. Any other system would be dangerous to human life and impose great risk upon those who might have occasion to travel on the railroad.”

Assuming this to be a correct exposition of the law on this subject, can it be said, as matter of law, that the intestate could not, •with some degree of assurance, rely upon the supposition that the defendant rvould not permit a rapidly moving car to pass a car standing at a crossing, which was receiving and discharging passengers ?

The case, as we have seen, does not disclose that the intestate had any knowledge of the method of defendant’s running cars at this point, or that there was a north-bound car to pass over this crossing at the very instant passengers were being discharged on it from a south-bound car. The plaintiff’s intestate had a right to rely, with somo degree of confidence, on the fact that the company, .whose patron he was, would not expose him to imminent hazard at a point at which he was permitted and compelled to alight from its car. (Brassell v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 241; Gaynor v. O. C. & N. R. R. Co., 100 Mass. 208.)

We have thus far discussed this question upon authority, without regard to any distinction between the duties and obligations imposed upon persons claiming damages for injuries by steam railroad companies, and those inflicted upon persons by motor cars, or street, railways. But there seems to be a well-recognized distinction between the amount of care exacted of persons crossing a steam railway, and that of persons crossing a street railway.

In Brown v. Twenty-third Street Railway Co. (4 N. Y. Supp. 192) Ingraham, J., in delivering the opinion of the General Term of' the Superior Court of New York, uses this language : “A person about to cross a city street has to protect himself against, not only railroad cars, but also against wagons and trucks using the street;; and while he is bound to be vigilant and cautious, I do not think it can be said to be contributory negligence, as matter of law, because he fails to see an approaching car.”

In Muncie Street Railway Co. v. Maynard (32 N. E. Rep. 343). the court says: “ There is a solid foundation for this distinction, and to sanction a rule that would impose the same obligation upon persons using the tracks of a street railway as that which obtains where the plaintiff crosses, or walks along an ordinary railroad track, would be to practically surrender a street to the railway company. This-result principle and authority forbid.”

Wc think the case at bar is plainly distinguishable from the cases, cited and relied upon, upon the question of contributory negligence,, by the learned counsel for the respondent.

In Burke v. N. Y. C. & H. R. R. R. Co. (13 Hun, 35) the court says: “ Where it is plainly apparent that a person, by the use of his-eyes, could have seen the danger and avoided it, it seems to be trifling with the rules of law to say that simply because the head was turned in one direction or another he has, therefore, complied with tlie plain dictates of ordinary prudence. This rule was expressly laid down in the case of Tucker v. N. Y. C. & H. R. R. R. Co. (124 N. Y. 308), and seems to be entirely consistent with reason.”

The soundness of that rule cannot be questioned, but it fails in its application to the case at bar, because it does not appear that the intestate, by the use of his eyes, could have seen the danger and avoided it. At least, that was so far a doubtful question as to make it the proper subject of inquiry by the jury.

In Purdy v. N. Y. C. & H. R. R. R. Co. (87 Hun, 97) the court, in discussing the question, uses this language: “ He (thé plaintiff) knew there were two railroad tracks upon which trains passed in opposite directions. The passage of the train on the down track obstructed his vision in the direction from which the other train came until it had passed the crossing and proceeded some distance beyond.”

There is no evidence in the case at bar that the intestate knew that there were two tracks upon which trains passed in opposite directions. That knowledge was an important consideration in determining whether or not he was guilty of contributory negligence.

Within the authorities we are forced to the conclusion that the' question of contributory negligence was a question of fact in this ■case, proper for the consideration of the jury, and that it was error for the learned trial judge to determine, as matter of law, that the plaintiff’s intestate was guilty of contributory negligence.

We are also of the opinion, from the evidence in this case, that the question of defendant’s negligence should have been submitted to the jury. Assuming, as we must, that the defendant had a right to run its motor cars through the streets of the city, it was manifestly its duty so to manage them as to minimize the risk to human, life upon its tracks. It had adopted a rule that its cars, on approaching crossings where passengers were to be received and discharged from other cars, must reduce their speed. We think it was for the jury to say in this case whether that rule was complied with, and whether, if it wras not complied with, it was negligence for which the defendant would be liable.

It is a matter of public knowledge that motor cars run with much less noise than steam cars; that they are under more complete control of the motormen and conductors than steam cars can be; that their approach to a crossing where passengers are being discharged is much less likely to attract the attention of passengers boarding and being discharged from cars at such crossings than would steam cars, and it was, we think, a fair question for the jury to determine, whether it was not negligence on the part of the defendants to allow a car on one track to pass a car receiving and discharging passengers on another track, with intervening space of not more than one foot between the cars, at a rate of speed such as is indicated by the evidence in this case.

On the whole case, we think there were questions of fact upon tlio evidence, which it was error for the learned trial judge to withhold from the jury, and for that reason the judgment should be reversed.

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

Herrick, J., concurred in result.

Putnam, J.

(dissenting) :

I think the judgment should be affirmed for the reasons stated by the learned trial judge in granting the motion for a nonsuit. (See Scott v. Third Ave. R. R. Co., 41 N. Y. St. Repr. 152; Thompson v. Buffalo Ry. Co., 145 N. Y. 196.)

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


source: Caselaw Access Project

author: Mayiiam, P. J.:

license: Public Domain

text:
    Charles O. Dwight, Respondent, v. Frank A. Cutting, Appellant.

      Evidence — when a contract is interpreted in accordance with a general custom — • allowance for shrinkage where bark is measured in a railroad aa/r — charge of the court as to a custom — testifying from a memorandum.

    Where a usage is reasonable, uniform, legal and well settled, and is not in contradiction of the express terms of a contract, and is so far established and known to the parties that the contract may be assumed to have been made with reference to it, it is to be deemed a part of the contract, and may be resorted to in fixing its interpretation.
    A general custom among dealers in bark to make an allowance for shrinkage, where bark is piled and measured in railroad cars, may be shown, and where no amount of shrinkage was spoken of between the parties to a contract for the sale of bark, a cord of bark will be taken to mean a cord with the customary shrinkage deducted
    In this view, it is erroneous for the court, in an action brougnt to recover the purchase price of certain hemlock bark, to refuse to charge that, independently of any specific agreement as to the amount of shrinkage, the fact that the parties agreed that the bark should be measured in the car implied that the measurement should be according to the general custom of the bark trade.

      It is erroneous to allow a witness to testify from a memorandum, where it does not appear that the memorandum was made at the time of the transaction, or that it was made by the witness himself.
    Appeal by the defendant, Frank A. Cutting, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of Franklin on the 21st day of March,, 1895, upon the verdict of a jury rendered after a trial at the Franklin Circuit, and also from an order entered in said clerk’s office on 15th day of March, 1895, denying the defendant’s motion for a new-trial made upon the minutes.

      Cantwell dé Cantwell, for the appellant.

      Gordon II. Main, for the respondent.
   Mayiiam, P. J.:

The plaintiff, in liis complaint, alleged that the defendant was Indebted to him in the sum of $201, being the balance on account of certain hemlock bark purchased by the defendant of the plaintiff, and for services performed by the plaintiff for defendant in loading, bark. The answer was :

First. A general denial.

Second. That by the contract for the purchase of the bark by the defendant, the plaintiff agreed to pile it in a particular way described in the answer, and that in consequence of- the plaintiff’s failure to pile the bark as agreed, it could not be measured on the ground; that plaintiff and defendant subsequently agreed that the bark should be loaded on cars and there measured, and that on such measurement, a certain allowance, agreed upon between the parties, should be made for shrinkage, and that the defendant was to pay for the bark at the rate of five dollars per cord ; that, pursuant to the measurement agreed upon, the defendant accepted the bark, and paid therefor the sum of $1,310.15, which was the full purchase price, and was. received by the plaintiff in full for said bark.

The answer further states that about fourteen cords of damaged, broken bark was left upon the plaintiff’s premises, which the defendant was not, by his contract, bound to take.

The principal contention on this appeal is, as to whether the custom or usage for the measurement of bark loaded upon railroad cars was established by the evidence so as to bind the plaintiff to accept payment according to the measurement, based upon such alleged custom.

There seems to be no dispute that, if the custom were established so as to bind the plaintiff, the quantity of bark as contended for by the defendant, and as paid for by him, was fixed according to the alleged custom, and the amount paid by the defendant upon that theory would be a full payment and satisfaction for the amount of bark received by the defendant.

The defendant established by the testimony of several witnesses the existence of a custom among bark dealers for the measurement of bark when loaded upon cars, and that the bark in question was measured and paid for according to that custom. One of the witnesses said: “ That is the universal custom.” Another witness said: “ I know what the universal custom of the trade is in regard to making those shrinkages in that way. The custom is to shrink an inch on a foot in height.” Another witness said: “I know what the custom is among bark dealers as to allowance for shrinkage where bark is piled and measured in the car. The custom is to shrink one inch to the foot in height on open cars.” Another witness said : “ There is a custom among bark dealers, to my knowledge, as to the shrinkage of bark where it is measured on the cars. The general custom is that they shrink it. The general custom is an inch to a foot in height.”

The existence of this custom does not seem to have been controverted by the plaintiff, nor does he deny or attempt to prove any want of knowledge of the existence of such custom, and there seems to be no dispute but that the parties agreed that the bark should be measured on the cars.

Upon these facts it is quite clear, in the absence of any proof to the contrary, that the measurement of the bark upon the cars, accord-, ing to the known and recognized custom, was a proper method of ascertaining the amount or quantity of bark delivered, and that payment in accordance with the ascertained quantity, at the agreed price per cord, would be full legal payment upon the contract.

It is true that the existence of the usage and the knowledge of the parties to a contract of its existence are questions of fact proper for the consideration and determination of a jury. And in a case in which the evidence was doubtful, either as to the existence of the usage or as to the fact of the knowledge of its existence to either of the parties, the verdict of the jury against its existence would be conclusive upon the parties. (Walls el al. v. Bailey, 49 N. Y. 464.)

But where the usage is reasonable, uniform and well settled, and not in opposition to fixed rules of law, nor in contradiction of the express terms of the contract, and is so far established and known to the parties that it may be supposed the contract was made in reference thereto, it is deemed a part of the contract and may be resorted to by the court in fixing its interpretation. (Newhall v. Appleton, 114 N. Y. 140.)

There is a conflict in the evidence in this case upon the question as to whether or not anything was said about shrinkage as seems to be contemplated by the usage proved. The plaintiff Dwight denies that anything was said. The defendant aad some of his witnesses testified that the amount of shrinkage was agreed upon. But, assuming that nothing was said, as claimed by Dwight, the case would then be one to which the law of custom or usage would clearly apply.

A pile of bark eight feet long and four feet high by four feet wide would embrace the solid contents of a cord, but as bark is not ■capable of being compressed, a uniform usage fixing the amount of shrinkage would be .peculiarly applicable to the measurement of such a commodity, and where the usage existed and no amount ■of shrinkage was spoken of between the parties, the word “ cord ” in the contract would mean a cord with the customary shrinkage deducted.

In the case at bar, had the jury followed the instruction of the learned trial judge as indicated in his charge, it would not only have found the existence of the custom, but that the measurement of the bark in this case was in accordance with that custom.

In that view of the case, from the undisputed evidence, it would seem to follow that the plaintiff had received full compensation for the bark actually delivered to and received by the defendant, and that a verdict against the defendant for that bark would be unsupported by the evidence.

But there is another element in this case which we are called upon to consider. It is claimed by the plaintiff that the defendant purchased and agreed to take all the bark which plaintiff had at the railroad station, and that some of plaintiff’s bark at that point was-left by the defendant, and was not included in the measurement of the bark measured in the cars. But if that contention be correct,, still the verdict would, in amount, seem to be unsupported by the evidence. If we assume that the broken bark left at the railroad station was such quality of bark as was contemplated by the contract, the evidence clearly shows that the quantity so left was not more than fourteen cords. That quantity at the agreed price of five dollars per cord would, at most, amount to but seventy dollars, and a verdict for $151.29 would be clearly in excess of the value of the bark left at the railroad station established by the proof. So, that, the verdict as found by the jury is not, in that view of the case, sustained by the proof.

Several exceptions were taken by the defendant to the rulings of' the learned judge upon the trial, which we are also called upon to consider. While plaintiff was under examination as a witness in his-own behalf he was asked in reference to the quantity of the bark: “ How much did lie actually load and take away from that place ? ” And the witness, before answering, referred to a written memorandum. Defendant objected to the witness referring to the memorandum unless it was one made by him. The objection was overruled, and the defendant excepted. On his cross-examination this witness stated that he did not measure the bark. He further said: “ I think I kept a memorandum of it a little. I don’t know where the memorandum is now. I have not got it with me.”

Under such circumstances it would seem to be clearly error to-allow the witness to testify from the memorandum which he produced, and from which he appeared to testify. There was no evidence from this witness that the memorandum was one made by him at the time, or a copy of any such, memorandum, nor can it be assumed, for the purpose of upholding this verdict, that the plaintiff testified from his recollection, unaided by the memorandum.

We think, therefore, the exception to the ruling of the learned trial judge in the admission of that evidence was well taken. And, as the testimony was on one of the material points in issue, it cannot, be said that it had no'influence with the jury.

We think, also, that the learned trial judge erred in refusing to-charge, as requested by the defendant, at folio 151 of the case. That request was as follows:

“ That independently of any specific agreement as to the amount of shrinkage, the fact that it was agreed that it should be measured in the car implied that such measurement should be according to the general custom of the bark trade.”

The court refused to charge as requested, and the defendant duly excepted.

If we are right in assuming that a custom was proved for the measurement of bark when loaded upon cars, and that that custom wras known to the parties, then it would seem to follow, as we have before intimated, that in the absence of direct proof of an agreement as to the method of measurement, the agreement proved was a proper subject for the consideration of the jury, and the court should have charged as requested. ITis refusal so to charge was error.

On the receipt of the verdict the defendant moved upon the minutes to set it aside, which was refused by the court, and the defendant excepted. "We think, upon the whole evidence in the case, and the exceptions taken, it was error for the learned judge to deny the motion of the defendant to set aside the verdict.

For the reasons herein stated we think the judgment should be reversed.

Herrick, J., concurred; Putnam, J., concurred in result.

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


author: Mayham, P. J.:

text:
    Henry C. Nevitt, as Receiver of The George C. Treadwell Company, Appellant, v. The First National Bank of Albany, Respondent.

      Corporation — action by a receiver to set aside a judgment against it — the judgment conclusive where there is no fraud in its procurement — otherwise as to a pledge of property of the corporation for a firm debt — scienter of pledgee- — fraud.
    [n ail action brought by the temporary receiver of the George O. Treadwell Company, a foreign corporation, to set aside a judgment recovered against said corporation by the defendant, it appeared that George H. Treadwell was the president of the corporation, and was also a member of a firm known as Tread-well & Co.; that this firm was in 1892 indebted to the defendant upon certain notes secured by collateral; that, as these notes were unpaid in 1893, the defendant insisted that George H. Treadwell should give for the debt notes of the corporation, also indorsed by himself, and as further security merchandise of the corporation.
    This arrangement was carried out; the company’s notes (signed “George O. Treadwell Co. by George H. Treadwell, President,” although the by-laws of the company required also the treasurer’s signature) were given, by which its merchandise in a safe deposit company was expressly pledged. Upon the receipt o'f the company’s notes the defendant gave to Treadwell a draft to his order, drawn upon another bank, which Treadwell caused to be thereupon certified, and then returned to the defendant in payment of the firm notes. The defendant retained this check, but refused to surrender the notes to Tread-well until the corporation ratified his acts in making the notes and in pledging its merchandise, which ratification he never procured from the corporation, whose by-laws, a copy of which was in the possession of the defendant, provided that the treasurer should, together with the president or secretary, accept and indorse drafts and sign and indorse promissory notes for the purpose of the purchase of merchandise for the company.
    Upon his failure to procure the ratification of the notes, the defendant brought an action upon them and recovered the judgment against the corporation which the receiver sought in this action to set aside.

      Held, that as the corporation had defended the action upon the notes in good faith, the judgment, in so far as it granted a recovery upon the notes, could not be said to have been fraudulent or collusive; and that, in the absence of fraud in its procurement, the judgment could not be set aside. (Per Mayham, P. J.)
    That, as to the collateral for the notes and the merchandise pledged, a different question was presented; that the act of George H. Treadwell in pledging the property of the corporation for the debt of Treadwell & Go., without any authority from the corporation to do so, and the act of the defendant in receiving the property with knowledge of the absence of such authority in George H. Treadwell, were fraudulent as to the creditors of the corporation. (Per Mayham, P. J.)
    That as it appeared that George H. Treadwell was also a director of the defendant, he was acting in a double capacity in the payment of the debt of Tread-well & Go. with the property of the corporation, and that this constituted a further badge of fraud. (Per Mayham, P. J.)
    That under the provisions of section 3 of chapter 814 of the Laws of 1858, the temporary receiver of the corporation was expressly given the right to disaffirm a transaction, like the one in suit, as being in fraud of the rights of the creditors of the corporation. (Per Mayham, P. J.)
    Appeal by the plaintiff, Iienry C. Nevitt, as receiver of The George C. Treadwell Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 14th day of May, 1895, upon the dismissal of the complaint directed by the court after a trial at the-Albany Circuit before the court without a jury.

      Edwin Countryman, for the appellant.

      J. Newton Fiero, for the respondent.
   Mayham, P. J.:

This action was brought by the appellant as temporary receiver-of the George C. Treadwell Company, a corporation organized under the laws of the State of New Jersey, to set aside a judgment, rendered upon the report of a referee in an action wherein the respondent was plaintiff and the George C. Treadwell Company defendant, for the amount of four several promissory notes, purporting to have been made by the George C. Treadwell Company,, and discounted by said bank, on the ground that such judgment was. obtained collusively by fraudulent connivance between said bank and one George H. Treadwell, assuming' to act on behalf of the-George O. Treadwell Company as its president.

The record discloses that George H. Treadwell was a member of the firm composed of himself and Henry Treadwell, known asTreadwell & Co.; that such firm became indebted to the First National Bank of Albany in the sum of $20,000, evidenced by four-promissory notes of $5,000 each, signed by said Treadwell & Co. and indorsed by George H. Treadwell, and that after the making of said notes George H. Treadwell deposited with the bank, as collateral to-the same, $20,000 preferred stock and $20,000 common stock of the George O. Treadwell Company; also other collateral, consisting of merchandise and stocks of various corporations, aggregating $1J,000;, that George H. Treadwell was, at the time of the making and indorsing of these notes, and the depositing of the collateral, a stockholder and director in the First National Bank ; that the notes held by the bank were made and dated in the fall of 1892, and, remaining unpaid, the bank, by its officers, in May, 1893, requested payment of the notes held by it against Treadwell & Co.; that several letters urging payment were written by the bank to the members of the firm of Treadwell & Co., and in August, 1893, at a meeting of the directors of the bank, at which George H. Treadwell was. present as one of their number, negotiations were opened for th& substitution of the notes of the George O. Treadwell Company for the notes held by the bank" against Treadwell & Co.; that a a committee of the directors of the bank were authorized by it to, carry on and perfect negotiations for payment of Treadwell & Co.’s notes; in the progress of the negotiation it was first agreed that the bank would take individual notes of George II. Tread-well in substitution for and in payment of Treadwell & Co.’s notes, but before such agreement was consummated the committee declined to carry out that arrangement, and insisted upon George H. Treadwell giving to said bank the notes of the George C. Treadwell Company, and indorsed by himself, and, as additional security, giving and pledging to the bank collateral, consisting of personal property; that after some hesitation George II. Treadwell accepted such proposition, and, in carrying out the same, executed notes of the George 'C. Treadwell Company to the amount of '$20,000, signing the same, as president of that company, and took from the stock and merchandise of the George C. Treadwell Company goods inventoried at the price of $26,000, depositing them in the Albany Safe Deposit Company, of which he was, at the time, president, and taking a receipt of the deposit company in his own name, which he transferred to the bank as collateral to the payment of the George O. Treadwell Company’s notes; that thereupon the cashier •of the bank, acting for the bank, recpiested him to apply for a loan in the name of the George O. Treadwell Company of $20,000 from •said bank upon the notes of the said George C. Treadwell Company, •and that such application should be made on paper with the letter head of the George C. Treadwell Company; that, pursuant to that 'request, George IT. Treadwell procured a letter sheet with the letter head of the George C. Treadwell .Company, and wrote an application for a loan, as requested by the bank officer, and delivered it, together with the receipt of the deposit company, assigned to the bank as collateral to the $20,000 notes. This $20,000 was represented by four separate notes of $5,000 each, in the ordinary form ■of a promissory note, and, in addition, each note pledged the stock of goods which had been deposited in the Albany Safe Deposit Company, to which we have before referred.

The case shows that this transaction was without the authority or •consent of the George C. Treadwell Company; that by the by-laws of that company, a copy of which was in the possession of the First National Bank, it was provided that the treasurer “shall, together with the president or the secretary, accept and indorse drafts and sign and indorse promissory notes for the purpose of the purchase of merchandise for the company’s use.”

Upon the deposit of these notes the cashier gave George IT. Treadwell figures showing the amount due upon the notes of Treadwell & Oo., which, at that time, was $20,163.66, and a draft was thereupon drawn on the National Commercial Bank of Albany, in which the George C. Treadwell Company kept its account, payable to the order of George H. Treadwell, and by him-presented to the National Commercial Bank, where it was certified, and by him returned to the First National Bank in payment of the amount of Treadwell & Co.’s notes; that George H. Treadwell thereupon requested the delivery to him of the notes so paid, which was refused by the First National Bank, upon the ground, in substance, that he had no authority for signing the notes and executing the collateral, from the George C. Treadwell Company, and he was required by the bank to have those acts of his ratified by the George C. Treadwell Company before the notes of Treadwell & Co. could be surrendered.

The case shows that George IT. Treadwell, subsequent to this transaction, endeavored to procure the ratification of the George O. Treadwell Company of his acts, and the signature of the treasurer of that company to the notes which he had given, but the company refused to ratify such acts and the treasurer refused to sign the notes, and for his violation of the by-laws in attempting to execute the notes he was subsequently removed from the office of president of the George O. Treadwell Company by the directors of that company.

Failing to procure such ratification and signature, an action was brought by the respondent against the George C. Treadwell Company on the four notes executed by George IT. Treadwell to the bank, as president of the George C. Treadwell Company.

The summons in that action was served on George Curtis Treadwell, a son of George IT. Treadwell, who acted as secretary of the George C. Treadwell Company, but does not appear to have been served on George II. Treadwell as the president of the company. George Curtis Treadwell, as such secretary, employed counsel to defend that action, and the defense was interposed of a general denial, and the issue was immediately referred by stipulation to a referee to hear and determine, and a speedy trial was had, upon which trial the referee reported in favor of the bank for the amount of the notes and interest, and on that report judgment was entered.

This action is brought, in part, to set aside that judgment.

The learned trial judge in this case, as we think, correctly held that there was not sufficient evidence of a fraudulent conspiracy between the bank and the persons representing the George C. Tread-well Company, in the action tried before the referee, to authorize the setting aside of that judgment in this collateral action.

While it is quite clear that, by chapter 314 of the Laws of 1858, a receiver, acting for creditors of an insolvent corporation, may maintain an action to set aside a judgment fraudulently obtained in fraud of the rights of creditors of such insolvent corporation, yet it may well be doubted whether there was such sufficient proof of such fraudulent conspiracy in prosecuting and maintaining the action as would justify the setting aside of the judgment obtained by the bank against the George O. Treadwell Company on the ground of fraudulent conspiracy in the prosecution of that action.

Section 2 of the act above referred to provides as follows: “ That every person who shall, in fraud of the rights of creditors and others, have received, taken or in any way interfered with the estate, property or effects of any * * * insolvent corporation * * * shall be liable, in the proper action, to the executors, administrators, receivers or other trustees of such estate or property for the same, or the value of any property or effects so received or taken, and for all damages caused by such acts to any such trust estate.”

This section is doubtless broad enough to authorize an action by a receiver to set aside a judgment obtained against the corporation which he represents, by the fraudulent- collusion between an officer of the corporation and a person or corporation prosecuting such action, provided the conspiracy to prosecute and maintain the action is clearly proved.

But in the case at bar the proof, as appears from the evidence of the attorney who defended the action tried before the referee, as well as the other proof in that action, fails to show any conspiracy, but, so far as appears from the 'records and the proof, the action was defended in good faith by the attorney, and to the best of his ability, with the testimony, at that time, available and attainable by him.

Had the evidence on that trial disclosed the facts as fully as they appear on this, it is quite difficult to see how the plaintiff in that action could have recovered ; but this court cannot, in this collateral action, review the proceedings in that case' upon the merits. The judgment in that case, as was said by the learned trial judge in this case, imports absolute verity, and cannot be set aside in this action, except for fraud, or fraudulent conspiracy in obtaining it. Nor can this court on this appeal review the correctness of the judgment ■on the trial before the referee as to the merits of the action tried before him. That could only be done by a direct proceeding on an appeal from that judgment.

The fraud for which the judgment will be set aside must be in the procurement of the judgment. Judgments are impeachable only for those frauds which are extrinsic to the merits. (Freeman on Judg. § 489.)

To vacate a judgment there must be fraud in obtaining it. A judgment will not be vacated as a means for the court to review or revise its own final judgment, or to correct any error of law into which it may have fallen. (Black on Judg. § 329.)

Error or mistake in a judgment is not ground for setting it aside by action. (Story’s Eq. § 1572; Dobson v. Pearce, 12 N. Y. 165.)

The doctrine governing the powers of the court of equity, in relieving against fraud, is well stated by Earl, J., in Ward v. The Town of Southfield (102 N. Y. 292), where the learned judge says: “ Courts of equity have general jurisdiction to grant relief against fraud, and to set aside all deeds, contracts and other instruments obtained by fraudulent practices; and the jurisdiction of the court to grant such relief extends, not only to voluntary contracts inter pcurtes, but also to judgments and decrees of courts. But the solemn judgment of a court should not be lightly interfered with. It is for the interest of the public, as well as of individuals, that there should be an end of litigation, and where parties have been lawfully brought into a court, having jurisdiction of their persons and the subject of litigation, and have had opportunity to prosecute their claims and to defend their rights, and judgment has been regularly pronounced, while such judgment is not vacated or reversed, it concludes the parties thereto; and a matter thus once litigated and adjudicated cannot again be brought into question. Such are the general rules which should not easily be evaded.”

Tested by these rules, we think the trial judge in the case at bar was right in refusing to set aside and vacate the judgment sought to be set aside in this action.

Bat this action is not prosecuted for the sole and only purpose of setting aside this judgment.

The complaint also alleges that at the time of the making and delivering of the notes on which that judgment was obtained, certain goods and other securities and property of the George G. Treadwell Company were fraudulently transferred by George II. Treadwell to the defendant, and fraudulently received and retained by it, and also prays for an injunction restraining the defendant from disposing of the same, and asks judgment that the defendant deliver them to the plaintiff, or account for and pay over to the plaintiff the proceeds and value of the same.

At the conclusion of the evidence offered in this case, the plaintiff’s counsel asked the court to hold and decide that this transfer of property was not affected by the judgment, but was independent of the same, and was fraudulent and void as against the receiver who represented the creditors of the George C. Treadwell Company. The court refused so to hold and decide, on the ground that the judgment has absolute verity in the eyes of the law, and that the bank shows title in the judgment, and, until the judgment is set aside, the title of the bank is superior to that of the receiver.

In this ruling we think the learned trial court erred. It will be borne in mind that the action prosecuted by the bank against the George C. Treadwell Company was an action at law on the notes to recover money had and received, and was in no sense a proceeding in rem against, or to recover title to, the property of the George C. Treadwell Company, alleged to have been fraudulently transferred by George IT. Treadwell to the bank as collateral security for the payment of these notes. The judgment did not, therefore, affect the title of the plaintiff to the property so assigned, and the same was not and is not claimed or held by the defendant under or by virtue of any lien created by such judgment. And the case discloses that the defendant never undertook to assert title to the property so assigned to it as collateral, under any power or authority conferred by that judgment. If, therefore, the original transaction between George II. Treadwell, as president of the George O. Treadwell Company, in transferring the property of the company to this bank in payment of his own individual debt, or the debt of Treadwell & Co., was fraudulent, as against the George O. Treadwell Company or its creditors, then the defendant got no valid title which it can assert as against the receiver of the George C. Treadwell Company, who represents not only the George C. Treadwell Company, but the creditors of that company.

It is insisted by the learned counsel for the defendant that the receiver, who took title to the property and effects of the George C. Treadwell Company by virtue of his receivership, took it subject to all the disabilities that existed against the George C. Treadwell Company, and that as that company had, through its president, transferred its property to the defendant, the plaintiff is estopped from assailing the transfer. This would undoubtedly be true if George II. Treadwell was in court seeking to set aside that transfer. He would be in pari delicto with the defendant, and would be estopped from alleging his own fraudulent actas a ground of relief. But the rule is quite otherwise where the receiver, who represents not only the George O. Treadwell Company, but the creditors of that company, is assailing the transfer. By the express provisions of section 2 of chapter 314 of the Laws of 1858 it is provided, as we have seen, that evfery person who shall, in fraud of the rights of creditors and others, have received, taken or in any manner interfered with the estate, property or effects of any * * * insolvent corporation * * * shall be liable, in the proper action, to the executors, administrators, receivers or other trustees of such estate or property for the same, or the value of any property or effects so received or taken, and for all damages caused by such acts to any such trust estate.” And the learned counsel for the defendant concedes that this act, chapter 314, above referred to, “ authorizes a receiver of a corporation to disaffirm, treat as void, and resist all acts done, transfers and agreements made in fraud of the right of any creditor interested in the property belonging to such corporation.”

It will hardly be denied that, upon the evidence in this • case, the action of George H. Treadwell in giving the notes of the George O. Treadwell Company, without authority, to the bank, and the action of the bank in receiving them with the knowledge of such want of authority, as appears by the conduct of the bank in'refusing to deliver the old notes until such authority was given, and the new notes signed by the treasurer of the George C. Treadwell Company, and its being in possession of the by-laws of the George O. Treadwell Company, which expressly provide that the president of that company cannot alone make a valid note, cannot be upheld as against the creditors of the George O. Treadwell Company, especially as the proceeds of those notes never went upon the books or into the assets of the George C. Treadwell Company, and were solely used in payment of the note of Treadwell & Co., upon which the George O. Treadwell Company was in no way liable.

Such a transaction, if it could be upheld as against the creditors of the George C. Treadwell Company, would permit the president of any corporation, with the knowledge and consent of his personal creditors, to appropriate the property of the corporation to tlie payment of the individual debts of the president, and, if upheld, would put the creditors of the corporation, of which he was the president, at defiance. The bare statement of such a proposition would seem to carry upon its face the evidence of its fraudulent and illegal character.

There is another badge of fraud, which appears in the transaction between George H. Treadwell, acting as president of the George C. Treadwell Company, and this bank; and that is, that at the time of this transfer of property to the bank as collateral, and at the time of making these notes and having them discounted for his own benefit to furnish means to pay his own indebtedness to the bank, of which he was a director, he was acting in a double capacity, as a director of the bank, negotiating with himself, as the president of the George O. Treadwell Company, to pay his debt to the bank, of which he was a stockholder and director, with the property of the George O. Treadwell Company.

It would seem to require no citation of authority, although authorities are abundant, to prove that no such transaction could be upheld as against the creditors of the George C. Treadwell Company.

I am, therefore, clearly of the opinion, upon the evidence in this case, that the plaintiff was entitled to judgment declaring the transfer of this collateral void, as against the creditors of the George O. Treadwell Company, and that the plaintiff should have had judgment for the recovery of the possession of such merchandise and collateral, or for an accounting for their value and a recovery for the same.

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

Putnam, J., concurred in result; Herrick, J., not acting.

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


text:
    In the Matter of the Appraisal, under the Taxable Transfer Act, of the Estate of Katharine J. S. Davis, Deceased. Mary H. S. Ingraham, Appellant; County Treasurer of Ulster County, Respondent.

      Transfer tax — rested remainder — methods of fixing the tax —. one method, when adopted excludes any other — a determination by the Superintendent of the Insurance Department is-final — notice of appeal, what it brings up for review — when interest begins to run upon a tax upon a remainder.

    The will of a testatrix gave an estate in all her property to Julia L. S. Ingraham, for life, remainder to her children living at the time of her decease.

      Held, that a child of Julia L. S. Ingraham, who was in existence when the testatrix died, took a vested remainder, but that the right of possession was suspended during the mother’s life.
    The provisions of the Revised Statutes relative to the vesting of future estates apply to such interests in personal property.
    A surrogate may himself determine the value of an estate for the purposes of the transfer tax, or he may do this by the aid of an appraiser. Where he adopts the latter method and applies, under chapter 399 of the Laws of 1893, to the Superintendent of the Insurance Department to have him determine the value of a future estate, determinable upon the life of the person in being, the determination of the superintendent is final. Either of these methods is complete in itself, and when one has been adopted it precludes any resort to the other.
    A notice of appeal brings up for review only those parts of a judgment or decree which are appealed from, and where a statute requires that a notice of appeal shall state the grounds upon which the appeal is taken, the appellate court cannot reverse a decree upon grounds not stated in such notice.
    Where a transfer tax is to he imposed upon a remainderman, section 5 of chapter 713 of the Laws of 1887 applies, and interest should he charged only from the date of the death of the life tenant to the date cf the payment of the tax and at the rate of six per cent per annum.
    Appeal by Mary IT. S. Ingraham, a legatee under the will of Katharine J. S. Davis, deceased, from an order and decree of the Surrogate’s Court of the county of Ulster, entered in said Surrogate’s Court on the 8th day of June, 1895, assessing the tax, under the Inheritance Tax Law, upon the estate of said Katharine J.' S. Davis, except that portion thereof which reverses so much of an order and decree entered in the proceeding on the 15th day of October, 1894, in said Surrogate’s Court as directed the county treasurer to -add and collect interest on the tax imposed by said order and decree upon the interest of said appellant in said estate at the rate of ten per cent per annum from January 16,1887, to the datemf payment.

      1. H. Maynard, for the appellant.

      Walter JSf. Gill, for the respondent.
   Mayham, P. J.:

On the 16th day of January, 1887, Mrs. Katharine J. S. Davis, of Ulster county, died, leaving a last will and testament, by which she gave to her sister, Mrs. Julia L. S. Ingraham, the mother of the appellant, all of her real and personal property for her sole and separate use and benefit for and during the term of her natural life; and from and immediately after her (Julia L. S. Ingraham’s) decease the testatrix, by her will, gave, devised and bequeathed the same to the children of Mrs. Ingraham, living at the time of her decease, share and share alike.

At the time of the death of the testatrix, Julia L. S. Ingraham, the legatee and devisee of the life estate named in the will of the testatrix was still living. On the 2d of February, 1894, Julia L. S. Ingraham died, leaving her surviving Mary II. S. Ingraham, this appellant, her only child. The testatrix also left her surviving a brother, Harrison H. Sudani, who died September 6,1893, and a niece, Mrs. John DeWitt, who was a daughter of a sister Qf testatrix, and who died in July, 1894.

The will of the testatrix, Mrs. Davis, was duly admitted to probate in Ulster county on the 1st day of February, 1889, in and by which will Julia L. S. Ingraham was named as sole executrix.

After the death of Julia L. S. Ingraham, Mary TI. S. Ingraham, her only surviving child, filed a ¡jetition in the office of the surrogate of Ulster county asking for the appointment of an appraiser for the purpose of determining the amount of collateral inheritance or taxable transfer tax that should be paid upon the property devised and bequeathed to her under the will of the testatrix, Mrs. Davis. The surrogate thereupon appointed John G. Van Etten as such appraiser, who appraised the value of the property of Katharine J. S. Davis, the testatrix, at $9,550, without making any deduction for commissions of executor and expenses of administration, which appear to have been $263.75, and which, when deducted from the amount of the appraised value of the estate, left the balance of $9,286.25 as the value of the property ultimately passing under the will of the testatrix to the possession of Mary Ií. S. Ingraham, this appellant.

On the filing of the report of the appraiser in the office of the surrogate, an order was made by the surrogate, in pursuance of chapter 399 of the Laws of 1892, referring it to the Superintendent of the Insurance Department to determine the present value of the interest of Mary H. S. Ingraham as remainderman in the personal property of the estate of Mrs. Davis, the testatrix, appraised at $9,286.25, subject to the interest of a life tenant who was sixty-two years old in January, 1887.

Pursuant to that order and request the Superintendent of the Insurance Department, on the 13th day of October, 1894, filed the following report with the surrogate :

“ Sir- — In reply to your request of the 11th inst., I give below the present value desired:

“ Name. Legacy. P. V. at Date 1,16, '87.

“ Mary H. S. Ingraham, Remainder, $5,226.

“Very respectfully,

JAMES F. PIERCE,

Stopermtendent.

“ To Hon. James A. Betts,

Surrogate Ulster County.”

Upon the receipt of this report the surrogate made the following order:

“ The surrogate of the county of Ulster having heretofore appointed John Gr. Van Etten, Esq., appraiser, under and in pursuance of the Transfer Tax Act, to appraise the property of Katharine J. S. Davis, deceased, who died on the 16th day of January, 1888, and the said appraiser having made and filed his report in the office of said surrogate on the fifteenth day of October, 1894, and after reading and filing the report of the Superintendent of Insurance herein, dated Oct. 13th, 1894, it is ordered that the said report be and the same is hereby approved and confirmed, and the cash value of the property of the said Katharine J. S. Davis, deceased, which is subject to the tax imposed by said act, and the tax to which the same is liable, are hereby assessed and fixed as follows:

Property — personal.

Person entitled to such property, Mary H. S. Ingraham.

“ Cash value — $5,226.00.

“ Tax — $261.30.

“ And the county treasurer of Ulster county, pursuant to statute, will add interest at the rate of ten per cent per annum to the amount of said tax from January 16th, 1887, to the date of payment.

“ JAMES A. BETTS, Bwrrogate?

This decree was entered on the 15th day of October, 1894. On the 11th of December, 1894, Mary H. S. Ingraham appealed to the surrogate from such decree and incorporated in the notice of appeal therefrom as follows: From that portion of said decree which directs the county treasurer of Ulster county to add interest at the rate of ten per cent per annum to the amount of said tax from January 16, 1887, to the date of payment; and the grounds upon which this appeal is taken are, that the interest is not chargeable or allowable on the amount of said tax at the rate of ten per cent per annum from January 16,1887, or from any other date to the date of payment, but that interest is allowable and chargeable upon said tax, if at all, from the date of the death of Julia L. S. Ingraham, which occurred in or about the month of February, 1894, and only at the rate of six per cent from that date.”

On that appeal the surrogate, on the 8th day of June, 1895, made a decree in and by which, after reciting certain alleged facts, he ordered, adjudged and decreed that the fair and clear market value of the contingent remainder of the estate devised to said Mary H. S. Ingraham by the decedent, Katharine J". S. Davis, could not be ascertained at the time of the death of the testatrix, but first became ascertainable after the death of the life tenant, Julia L. S. Ingraham, on February 2d, 1894.

That the contingency annexed to said estate or remainder affected the taxable character of the succession to the same, as the testatrix at her death left a brother surviving, who might in the course of events take such remainder, or a portion thereof, and in his hands the same would not be taxable.

That the decree made herein by the surrogate of Ulster county, and entered in his office on the 15th day of October, 1894, assessing, fixing and determining the amount of the transfer tax to be paid by Mary H. S. Ingraham upon the property or estate received by her under the will of Katharine J. S. Davis, deceased, so far as said decree fixes the cash value of the estate or jmoperty received by the said Mary PI. S. Ingraham, under the will of the said decedent, Katharine J.' S. Davis, deceased, so far as said decree fixes the cash value of the estate or property received by said Mary PL S. Ingraham, under the will of the said decedent, Katharine J. S. Davis, and the amount of transfer tax to be paid thereon, and so far as the said decree directs the county treasurer of Ulster county to add and collect interest on said tax at ten per cent per annum from January 16, 1887, to the date of payment, be and the same hereby is reversed.

“ That the estate or property which came to the possession of the said Mary H. S. Ingraham on the death.of her mother, Julia L. S. Ingraham, February 2, 1894, under the provisions of the will of said Katharine J. S. Davis, deceased, consisted of personal property, the cash value of which is hereby assessed, fixed and determined to be the sum of $9,286.25, and the transfer tax thereon is hereby assessed, fixed and determined to be the sum of $464.31, and that the said tax accrued on the 2d of February, 1894. And the county treasurer of Ulster county will add and collect interest on said tax at six per centum per annum from the accrual thereof to the time of payment. And if such tax is not paid within eighteen months from the time when the same accrued, the said county treasurer will charge and collect interest thereon at the rate of ten per centum per annum from the time when said tax accrued to the time of payment.”

From this decree the appellant appeals to this court and from every part and decree “ except that portion which reverses so much of the order and decree heretofore entered in this matter on the 15th day of October, 1894, as directed the county treasurer of Ulster county to add and collect interest on the tax of $261.30, imposed by said order and decree upon the interest of this applicant in said estate under said will at the rate of ten per centum per annum, from January 16th, 1887, to the date of payment.”

Perhaps the first question which presents itself upon this appeal is as to the time of the vesting of the title or interest of the appellant in the estate of the testatrix under the provisions of her will, and as to whether the appellant, on the death of the testatrix) took a vested or contingent interest in the estate. By section 13 of article 1 of title 2 of chapter 1 of part 2 of the Revised Statutes (Banks & Bros. 8th ed.), volume 4, page 2432 (1 R. S. 723), it is provided as follows: “Future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the. lands upon the ceasing of the ■ intermediate -or precedent" estate. They are contingent whilst the person to whom or the event upon which they are limited to take effect remains uncertain.” It is true that this provision of the Revised Statutes relates to real estate, But by section 2 of title 4, page 2516 of the same volume of the Revised Statutes (1 R. S. 773), the same rule is made applicable to personal property. That section reads as follows: “ In all * * * respects limitations of future or contingent interests in personal property shall be subject to the same rules prescribed in the first chapter of this act in relation to future estates in lands.” It will be seen that, by these provisions of the statute, that as the appellant, who- was remainderman under the will, was in existence at the time of the death of the testatrix, she would have taken her interest immediately but for the intervening life estate of her mother, Julia L. S. Ingraham. Her estate was, therefore, a vested remainder with the right of possession suspended during the life of her mother.

The value of that estate at the time the title vested, was fixed under the order of the surrogate by the Superintendent of Insurance at the sum of $5,226, and upon that adjustment the succession tax was adjusted under the provisions of the statute at $261.30.

By the provisions of section 13 of chapter 399 of the Laws of 1892, “ The Superintendent of Insurance shall, on the application of any surrogate, determine the value of any such future or contingent estates, income or interest, limited, contingent, dependent or determinable upon the life or lives of persons in being upon the facts contained in any such appraiser’s report, and certify the same to the surrogate, and his certificate shall be conclusive evidence that the method of computation adopted therein is correct.”

The statute requires that notice of the proceedings for the ascertainment of such tax and the appraisal of such property be given and provides that witnesses may be examined on the part of any party interested in such property or the tax that may be assessed on the same.

No objection or exception to the report of the appraiser was taken by the county treasurer or the appellant, and no objection was made to the tax imposed, except that the appellant objected to the rate of interest which the county treasurer was directed to collect upon the amount of the tax assessed by the surrogate. The appellant now insists that the proceedings by and before the surrogate-infixing the amount of this tax were res adgu&ieaba,, and.that the surrogate had no jurisdiction or authority, in deciding the appeal from that part of his order fixing the rate of interest on the tax, or to reopen the question of the value of the inheritance and make a new valuation of the estate passing to her liable to'taxation.

In answer to this position of the appellant, it is insisted “ that the surrogate may so determine the cash value of all such estates and the amount of tax to which the same are liable without appointing an appraiser,” and that under that provision of section 13 above referred to the surrogate was authorized, on the appeal taken to him, to determine the value of such estate and estimate the amount of the tax.

I do not think that that section of the act of 1892 will bear any such construction. Two methods of establishing the value of the inheritance and fixing the tax are provided in that section. One by the aid of an appraiser and the other by the surrogate without such aid. Either method is complete in itself, and when one has been adopted it precludes any resort to the other. Any other construction would render the dual methods fixed by the statute inoperative and meaningless; and, unless the appraisal fixed by the appraiser, and the value of the estate of the appellant as fixed by the Superintendent of Insurance, and the assessment of the tax made thereon by the surrogate, were in all things reversed and set aside by the surrogate in his order, made on the appeal to him by this appellant, his power to fix the amount of the inheritance had been transferred to the Superintendent of Insurance and could not be resumed by him, and his assessment made on the report of such superintendent could not be revoked.

This brings us to the consideration of the nature and effect of the appellant’s appeal to the surrogate. It is claimed by the appellant that that appeal brought before the surrogate for review only the question of interest, which by the order appealed from the county treasurer was directed to collect upon the tax as fixed by the surrogate, on the report of the Superintendent of Insurance, based upon the value of the inheritance as fixed by the appraiser. Section 13 of chapter 399 of the Laws of 1892, which authorizes such an appeal, requires that the notice of appeal “ shall state the grounds upon which the appeal is taken.” As we have seen, the notice of appeal states as follows: “And the grounds upon which this appeal is taken are, that the interest is not chargeable or allowable on the amount of said tax at the rate of ten per cent per annum from January 16, 1887, or from any other date to the date of payment, but the interest is allowable and chargeable upon said tax, if at all, from the date of the death of Julia L. S. Ingraham, which occurred in or about the month of February, 1891, and only at the rate of six per cent from that date.”

The appeal would have been ineffectual if it had not, as required by that .section, stated the grounds upon which it was brought, and as the question of interest was the only one brought up for review, we do not see any authority in the surrogate to review and reverse that part of the order, as to which no appeal was taken, especially as the report of the Superintendent of Insurance is by statute made conclusive, as to the methods adopted by the superintendent in fixing the value of the remainder to which the appellant is entitled.

So far as we know the rule is universal, that only the parts of a judgment or decree which are appealed from can be reviewed on appeal. In Robertson v. Bullions (11 N. Y. [1 Kern.] 246) it was held that “ This court can only review those parts of the decree from which an appeal is taken,” and to the same effect is Kelsey v. Western (2 N. Y. [2 Comst.] 500).

This is a statutory rule, and seems not to have been departed from. That part of the decree which fixes the amount of the inheritance, or the tax which followed from the adjustment at that amount, cannot be reviewed, as neither of those amounts are specified in the grounds of appeal in the notice. As the statute requires, as we have seen, the notice of appeal to state the ground upon which it is taken, the order cannot be reversed upon grounds not stated. In Avery v. Woodbeck (62 Barb. 551), when, on an appeal from a judgment rendered in a Justice’s Court, section 353 of the Code of Procedure required that a notice of appeal be served “stating the grounds upon which the appeal is founded,” and the appellate court was asked to reverse upon grounds not stated in the notice of appeal, Potter, J., in his opinion, after quoting the language of the section of the Code, puts these significant questions: “ What is the use of this provision \ What was intended by it ? Does it mean nothing ? If it means something, what does it mean ? The language is imperative. Can the court hold that, notwithstanding this positive language, this specific requirement is useless; that the court can reverse for grounds not stated, as well as upon those that are; that it is a nugatory provision; that the Supreme Court may reverse or affirm the judgment upon other grounds than those complained of.”

And the learned judge, after putting these questions, which was one of his forceful ways of illustrating a proposition, holds that the judgment can only be reversed upon the grounds of error alleged in the notice of appeal. To the same effect is Bush v. Dennison (14 How. Pr. 301); Lee v. Schmidt (6 Abb. Pr. 183); Fowler v. Milliman (2 Hun, 408); 8 Slingerland v. Bronk (41 How. Pr. 408). The rule laid down in these cases is not changed by section 2581 of the Code of Civil Procedure.

Within these authorities we are of the opinion that the learned surrogate erred in assuming to review and reverse his order on grounds not stated in the notice of appeal, and as to a part of the order, from which no appeal had been taken either by the appellant or the county officer representing the people. In doing so the learned surrogate acted without authority, and in direct opposition to the certificate of the Superintendent óf Insrn-ance, whose certificate is, by statute, made conclusive evidence; and also, so far as appears by the case, without any hearing on the part of the appellant whose tax was nearly doubled by the surrogate’s determination.

The remaining question is as to whether the surrogate erred in his first order in and by which he directed the county treasurer to add interest at the rate of ten per cent per annum to the amount of said tax from January 16th, 1887, to the date of payment.”

If we are right in holding that the title to this property vested under the will in the appellant, at the death of the testatrix, then the only remaining contingency 'was as to the time of its vesting in possession, and if the appellant had not survived her mother the possession after the termination of the life estate would pass under the will of the appellant, or, if she died intestate, to her personal representatives or next of kin, and could in no event pass to the surviving brothers and sisters of the testatrix; she was, therefore, on the death of the testatrix the complete and indefeasible owner of the estate in remainder bequeathed to her, the value of which, as we have seen, was fixed by the certificate of the Superintendent of Insurance. Did the postponement of possession, by reason of the existence of an intervening life estate, postpone the payment of the tax?

By the provisions of section 2 of chapter 483 of the Laws of 1885 the value of the life estate bequeathed to Julia L. S. Ingraham was, at the death of the testatrix, carved out of the corpus of the estate, and was exempted from the inheritance tax imposed by that act; the balance of the estate which was bequeathed to Mary H. S. Ingraham, this appellant, passed to her as a vested remainder, and tlie value of her interest was by that section required to be immediately appraised.

The language of that section on that subject is as follows : “ The property so passing shall be appraised immediately after the deatli of the decedent * * * in the manner hereinafter provided, and after deducting tlierefroin the value of said life estate or term of years, the tax prescribed by this act on the remainder shall be immediately due and payable to the treasurer of the proper county, * * *' and together with the interest thereon shall be and remain a lien on said property until the same is paid.” The same section makes provision for postponement of the payment of the tax by the remainderman until the possession or enjoyment is obtained.

Section 4 of chapter 713 of the Laws of 1887 imposes by way of penalty interest at the rate of ten per cent per annum from the time the tax accrued, if not paid within eighteen months, and provides that all tax, unless .otherwise provided, shall be due and payable, at the death of the decedent. Section 5 of this act provides that where by reason of unavoidable delay the estate of the decedent, or any part thereof, cannot be settled within eighteen months from the death of the decedent, interest at six per cent shall be chargeable after the expiration of eighteen months from the death of the decedent. It is insisted by the learned counsel for the appellant that under the circumstances of this ease the payment of this tax was postponed until the death of the legatee of the life estate, on February 2, 1894, and that it was error to impose the penalty for failure to pay the tax of the ten per cent rate of interest from the death of the decedent, and he cites Matter of Curtis (142 N. Y. 219) and Matter of Roosevelt (143 id. 120) in support of that contention. In Matter of Curtis (supra) it was held that if that technical vesting.be admitted, what so passed was rather a theoretical possibility than a tangible reality, for the life estate was in the trustee of the daughters carrying the whole beneficial use; there was no power over it in the contingent remaindermen, and the nominal and technical fee might never become a taxable estate.

It was never intended by the law to tax a theory having no real substance behind it. * * "Where it is only in the chance of uncertain events that the beneficial interests will finally alight where they will be taxable at all, a delay until the contingency is solved is both just and necessary. This was substantially the view taken by the General Term, and it seems to me to be clearly right and just. It protects and preserves the interests of the devisees and legatees on the one hand and the right of the State on the other.”

The reasoning of that case, as well as the result reached in it, would seem to postpone the time of payment of the tax in the case at bar until it vested in the residuary legatee in possession on the death of her mother. It is true, as we have seen, that the title passed at the death of the testatrix, but the beneficial use was postponed until the termination of the life estate.

As it was all personal property, subject to the control of the life tenant, who was the executrix, the whole estate might have been squandered before the remainderman could reduce it to possession; and to compel the remainderman to pay the penalty of interest at ten per cent for omitting to pay a tax on property, to the use of which she was not entitled, would be giving a harsh construction to the statute which could not have been contemplated by the Legislature.

In The Matter of Roosevelt (supra) the question was whether the payment of the tax by the remainderman must be made on the death of the testator, or could be postjioned until the property vested in him on the death of the person having a life estate. Bartlett, J., says: It is not to be assumed that the Legislature intended to compel the citizen to pay a tax upon an interest he may never receive, and the reasonable construction of this statute leads to no such unjust result.”

In The Matter of Hoffmam, (143 N. Y. 335), Finch, J., in discussing the question of the time at which the inheritance tax jnay be demanded, says: “ The State will get its tax when the legatees get their property.”

Within the liberal construction given by the Court of Appeals to the rights of remaindermen under the provisions of the Taxable Transfer Act, we are forced to the conclusion that the payment of the tax for which the appellant is liable was postponed until the death of the life tenant, when she became entitled to the possession, and that the learned surrogate erred in reversing the order and decree of October 15, 1894, whereby the cash value of the inheritance of the appellant was fixed at $5,226, and the amount of the tax on the same at $261.30, and in re-estimating the value of the inheritance at $9,286.25, and in assessing a tax based upon that valuation, and that the order and decree appealed from should be wholly reversed.

The order and decree of the surrogate of October 15, 1894, should be modified by striking out of it the provision that the county treasurer should add interest at the rate of ten per cent per annum to the amount of the tax, from January 15,1887, to the date of payment, and inserting in lieu thereof a provision for interest at the rate of six per cent from February 2, 1894, the date of the death of the life tenant, to the date of payment, and, as so modified, that order or decree should be affirmed, with costs and disbursements of this appeal to the appellant.

Putnam and Herrick, JJ., concurred.

Order of surrogate reversed and order of October 15,1894, modified as per opinion, and, as modified, affirmed, with costs and disbursements to appellant.


text:
    Esther La Flamme, Respondent, v. The City of Albany, Appellant. John La Flamme, Respondent, v. The City of Albany, Appellant.

      Municipal corporations ■ — claims for injuries — a claimant need not make proof of a claim which has been properly presented to the common council of Albany under the city charter.

    Where a person presents to the common council of the city of Albany a claim against the city for damages resulting from personal injuries, executed in the manner and form and verified as required by the city charter, and which sets forth the particulars required by the charter, the duty of the claimant in the premises has been performed, and she is not required to appear before the law committee of the common council of the city and make proof of the claim.
    Appeal by the defendant, The City of Albany, from judgments of the Supreme Court in favor of the plaintiff in each of the above-entitled actions, entered in the office of the clerk of the county of Albany on the 6th day of May, 1895, upon the report of a referee in each of said actions.

      William P. Pudd, for the appellant.

      J. Newton Fiero, for the respondents.
   Mayham, P. J.:

In the first above-entitled action plaintiff prosecuted the defendant for alleged negligence in suffering the sidewalk in one of its streets to become and remain ont of repair, by reason of which the plaintiff, while passing over tlie same, caught her foot in the broken grating, which formed a part of the walk, and fell, breaking one of her legs.

The' second entitled action is prosecuted by the husband of tlie plaintiff in tlie first action, for the injury which he claims to have suffered in tlie loss of the services of his wife, resulting from the same injury for which her action is prosecuted.

Both actions were tried before the same referee, who, in each, made a report in favor of the plaintiffs therein respectively, on which judgments were entered, from each of which the defendant appeals. The trials seem to have proceeded before tire referee, so far as tlie receipt of evidence ivas concerned, as one action, and the evidence was, at the conclusion of such trials, applied by tlie referee to eacli of the actions, so far as the same was applicable to them respectively, and they are presented in tlie same manner on this appeal.

This method of proceeding was fixed on at tlie trial by the stipulation of the parties. It is urged on this appeal that these actions could not be maintained, for tlie reason that tlie plaintiffs never appeared before the law department, and made proof of their claims as required by the charter of the city of Albany.

We do not tliink that that position is well taken or sustained by the facts.

The case shows, and tlie referee finds, that ■ verified claims were presented to the common council within three months after tlie alleged injury, and that more than three months elapsed after the presentation of tlie same to the common council before tlie actions were commenced. These facts show a compliance with the charter by the plaintiffs, and tlie referee finds, as matter of fact, the performance of acts by tlie plaintiffs which amount to a compliance with tlie charter of tlie defendant in reference to claims for damages against the defendant.

There is nothing in the charter of the defendant which requires the plaintiff in this class of actions to prove his claim before the law committee of the common council. All that seems to be required is the presentation of a verified claim specifying the particulars, etc.

The claims in these cases are not set out in the record, but tlie evidence shows that verified claims of the plaintiffs were presented to tlie common council; and tbe referee finds tliat plaintiffs5 claims for damages were “ presented to tlie common council of tlie defendant in the manner and form, and verified as required by tlie charter of the defendant, setting forth the time, place, cause and extent of the injury.” There is nothing before us showing that this finding is not correct, and we must, therefore, .assume that it was supported by evidence.

TJpon tlie merits of these actions, the condition of the sidewalk and the knowledge imputable to the defendant by the lapse of time that the grating was out of repair were questions of fact for the referee, and we cannot, on these appeals, say that his conclusions were entirely unsupported by evidence.

The judgments must be affirmed, with costs.

Putnam, J., concurred; Herrick, J., not acting.

Judgments affirmed, with costs.