Volume 154 — New York Reports

The facts, so far as material, are stated in the opinions. The relator is a charitable institution. Its status has been construed and decided by the courts. (N. Y. Inst. for Blind v. How, 10 N. Y. 84; Riker v. N. Y. Hospital, 66 How.

The plaintiff, as the owner of a parcel of land lying between 94th and 95th streets on the Harlem river, which is a navigable stream where the tide regularly ebbs and flows, traces his title back to a grant made by .Governor Nichols on the 11th of October, 1667, whereby he conveyed to the inhabitants' and freeholders of the village of New Harlaem certain lands bounded on one side by the “ Harlem River or any part of the said river on which this island,” (of Manhattan), “…

<p>Appeal — Reversal by General Term—New Trial. On appeal from a judgment of a late General Term reversing a judgment in favor of an infant for damages for personal injuries alleged to have been suffered through the negligence of the defendants as owners of leased premises, and dismissing the complaint upon the merits, where there had been a motion for a new trial on the grounds that the verdict was against the weight of evidence and excessive, and the order of reversal did not state whether it was based on the law or the facts, held, that the reversal should he modified so as to order a new trial—it not appearing that other evidence might not be in existence which might materially change the facts.</p>

The first case of Fawehild et al. v. Fdson et al. involves appeals from two orders and two judgments of the General Term of the Supreme Court in the first judicial department, entered respectively July 6, December 7, July 31, and December 24, 1894.

<p>1. Appeal—Presumption op Question op Law. Where, in an action tried by the court or a referee, the decision did not state separately the facts found (Code Civ. Pro. § 1022), whether the Appellate Division, upon its review, either reverses and orders a new trial, or grants a final judgment to either party, if its order is silent as to the grounds, section 1338 controls and requires the presumption that the reversal was upon a question of law.</p> <p>2. Scope op Review by Court op Appeals. Upon appeal from an order and judgment of the Appellate Division, reversing a judgment in favor of the plaintiff and dismissing the complaint upon the merits, in an action tried by the court or a referee, where the decision did not state separately the facts found and the order of the Appellate Division is silent as to its grounds, the review by the Court of Appeals is confined to the consideration of whether, upon the decision made by the trial court upon the facts, the legal conclusion followed that the plaintiff was entitled to the relief awarded him and, if there was no error in that respect, whether there were errors of law committed in the rulings upon the trial, which would, in any event, have justified a reversal of the judgment and rendered a new trial necessary.</p> <p>3. Equity—Restraint op Action at Law. When a court of equity is asked to stay an action at law, it must consider whether, if it be a case where a legal defense to the action in fact exists, the applicant should be left to that as an adequate remedy, and whether any appreciable injury can result in denying him the right to establish the existence of some bar to the action at law and, thereupon, to have the same enjoined.</p> <p>4 Specific Performance of Personal Contracts. The extension of the rule of specific performance to personal contracts is justified, where there would not be a complete and satisfactory remedy by compensation in damages, or where the benefits of the contract would not inure fully to the party in whose favor it was made, unless it was specifically performed.</p> <p>5. Restraint of Action at Law in Disregard of Contract of Settlement. When it appears in an action in equity brought to restrain the defendant from prosecuting an action at law in breach of a lawful contract between the parties, by which the defendant had released the claim upon which the action at law was brought and had agreed not to sue thereon, that a specific performance of the contract is essential, if the plaintiff is to receive its benefits, such as security from charges and revelations which might affect his reputation, an injunction may properly be granted.</p> <p>6. Evidence Confined to Issues on Trial. When the issues triable in an action in equity to restrain a pending action at law are whether the defendant had executed a release of the charges on which the action at law was based and had orally agreed not to sue on the same, and whether such release and agreement were invalidated by fraud, misrepresentation or duress, evidence bearing upon the charges made in the complaint in the action at law, or bearing upon obligations claimed to arise by reason of matters set up therein, being pertinent only to the issues in that action, is not admissible in the action in equity.</p> <p>7. Oral Evidence as to Basis of Oral Contract not to Sue. In an action in equity to restrain an action at law brought in contravention of an oral contract not to sue, sought to be avoided on the ground of fraud and duress, it is not error to permit the plaintiff to introduce oral evidence of propositions of settlement made on behalf of the defendant and which formed the basis of the contract.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. (See, also, 59 Hun, 225, and 88 Hun, 359.) The verdict in favor of the plaintiff was against the weight of evidence, and was such that only one inference could he drawn therefrom by an honest mind, and the court could have directed a verdict for the defendant or granted a nonsuit. (Wilds v. Hudson R. R. R. Co., 24 N. Y. 433; Smith v. N. Y. C. & H. R. R. R. Co., 19 Wkly.

This action was tried before a jury and resulted in a verdict for the plaintiff.

<p>1. Will — Vested Remainders. Where the apparent intention of the testator is that remainders shall vest in persons as to whom there is no uncertainty, subject to the life estate or estates created by the will (as, that they shall vest- in his grandchildren, and there are grandchildren in being at his death, and there is nothing in the will making such provision dependent upon ■ survivorship to the time of distribution), the disposition relates back to the time of the testator’s death, and the vesting is of that date.</p> <p>2. Power of Sale. The presence in a will, of an imperative power of sale given to the executors to be exercised at a future time, does not necessarily prevent a vesting, especially when it is apparent from the other provisions of the will that it was intended that the estate should vest presently.</p> <p>3. Conversion of Real Property into Personal. The fact that by the exercise of the power of sale given to the trustees of an estate for lives, and to which the remainder is subject, real property would become personal property, makes no difference in the effect of the power of sale upon the question of the vesting of the remainder as of the date of the testator’s death.</p> <p>4. Estate of Testamentary Trustees. Where an estate is devised in trust, to provide an income for life beneficiaries and at their death to divide among remaindermen as to whom there is no uncertainty, the trust estate vests in the trustees not absolutely, but subject to the remainder over on the termination of the trust, and the remainder does not vest in the trustees at all.</p> <p>5. Direction to Divide. The general rule, that when a testamentary gift is found only in a direction to divide at a future time, the gift is future and contingent and not vested, is subordinate to the primary canon of construction, that the intent, to be collected from the whole will, must prevail.</p> <p>6. Determination of Class. When a' devise or bequest is made to a class, as, to children of children, the class will, in the absence of a definite intention disclosed by the will, he ascertained and determined as of the death of the testator; and if the estate then vests, it vests in the individual beneficiaries as tenants in common.</p> <p>7. Income Attached to Vested Remainders, Pending Distribution of Corpus. If a will gives a portion of the income of the estate to the widow for life and the income of a specific share of the residue to each child for life, -with remainders over to children’s children, in such terms that the remainders vest, at the testator’s death, in the grandchildren in being at that time, as tenants in common, subject to the outstanding life estates, with a postponement of distribution dependent upon the death of the widow, the estate vested in the grandchildren draws to it their parent’s share in the income, in case of the death of the testator’s children, the widow still living; and if a grandchild, whose remainder was vested, dies, his share in such income passes to his personal representative.</p>

The facts, so far as material, are stated in the opinion. Chapter 639 of the Laws of 1895 did not repeal chapter 171 of the Law's of 1893, nor was it intended as a substitute for it. Its manifest intention was to create a tribunal to whom parties having disputed claims against the town might submit their claims to arbitration.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 8, 1897, affirming an interlocutory judgment sustaining a demurrer interposed by the plaintiff to the defense set up in the answer. The complaint contains two counts, which are preceded by certain general allegations doubtless intended to apply to both.

On the first of August, 1889, the defendant issued its policy •of insurance of the standard form to Mrs. Caroline Silvernail whereby it insured her dwelling house, barn and the produce therein against loss or damage by fire to an amount not exceeding §1,050 for the term of three years from that day. On the second of December, 1891, Mrs. Silvernail died, leaving a will in which the plaintiff was nominated as sole executor.

This action was brought to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. The facts, so far as material, are stated in the opinion.

Appeal, by certification, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 21, 1896, upon an order which overruled plaintiff’s exceptions to the direction of a verdict by the trial judge in favor of defendant, ordered to be heard in the first instance by the Appellate Division, denied a motion for a new trial and directed judgment for the defendant.

Appeal, by certification, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 9, 1897, which affirmed an interlocutory-judgment in favor of plaintiff overruling a de'murrer to the complaint. The allegations of the complaint, the grounds of the demurrer and the questions certified are stated in the opinion.

<p>Street Surface Railroads — Proceeding to Acquire Use op Connecting Tracks. The requirement of the Railroad Law which, by virtue of section 91, compels a street surface railroad company to obtain the consents of the local authorities and abutting owners to such use before it can apply to acquire the right to use the connecting track of another company by a proceeding in imitwn under section 102 of that law, is absolute and does not depend upon what the defendant company might have the power to voluntarily agree to.</p>

The action was for partition of certain lands in the city of Brooklyn. The plaintiffs, as children and heirs at law of one Edwin J. Darrow, who died intestate ¡November 13th, 1864, claimed title to one undivided half of such land, subject to the dower right of two of the defendants, as set forth in the complaint. The defendants, Calkins, are the widow and three children of one Daniel 0. Calkins, who died intestate July 20th, 1887.

This proceeding was instituted under chapter 845 of the Laws of 1888, as amended by chapter 255 of the Laws of 1890, and chapter 353 ■ of the Laws of 1892, known as the Grade Crossing Act of the city of Buffalo, to procure the appointment of commissioners to ascertain and report the compensation to be paid to the owners and parties interested in certain lands injured by the construction of a viaduct over the tracks of the New York Central & Hudson River Railroad Company as…

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 20, 1897, which reversed an order of the County Court of Monroe county in a special proceeding.</p> <p>The nature of the proceeding and the facts, so far as material, are stated in the opinion.</p> <p>In a proceeding of this kind the petitioner must allege and prove affirmatively every fact which entitles him to the relief prayed for. (Tingue v. Vil. of Port Chester, 101 N. Y. 294; Sweeney v. Warren, 127 N. Y. 426; Quin v. Skinner, 49 Barb. 128; Lovett v. Kingsland, 44 Barb. 560; 35 N. Y. 617; Read v. Williams, 125 N. Y. 560.) The petitioner claimed for the first time in the Appellate Division that he had title as trustee of the share of Charles Wilcox. He should have alleged it in his petition. (Sweeney v. Warren, 127 N. Y. 426; Hetzel v. Barber, 69 N. Y. 1; Quin v. Skinner, 49 Barb. 128; Lovett v. Gillender, 35 N. Y. 617; Girard on Titles [3d ed.], 454; Reads v. Williams, 125 N. Y. 560.) Assuming that the omission to allege that the will contained a power in trust which had not been accomplished is not fatal to this proceeding, it is submitted that the trust is not a valid one. (Hetzel v. Barber, 69 N. Y. 1; Chamberlain v. Taylor, 105 N. Y. 185.) As there was neither a beneficial power nor valid power in trust created by the will, which had not been fulfilled prior to the payment of the taxes, the petitioner not only was under no obligation to pay the taxes in question, but he had no power to make a conveyance. Therefore, the payment of the taxes in question was not involuntary on his part. (Vanderbeck v. City of Rochester, 122 N. Y. 285; Tripler v. Mayor, etc., 125 N. Y. 617; Bruecher v. Vil. of Port Chester, 101 N. Y. 240; Code Civ. Pro. § 2719; In re Selleck, 111 N. Y. 284.) This proceeding should be dismissed for the reason that the provisions of section 16, County Law, are not applicable to Monroe county. In matters of correcting the assessment rolls, collecting taxes, selling lands for unpaid taxes,, the method of procuring deeds and the method of procedure are all provided for by a special act of the legislature, chapter 107, Laws of 1884, amended by chapter 718, Laws of 1893. (In re Comrs. Central Park, 50 N. Y. 493; McKenna v. Edmundstone, 91 N. Y. 231; Dudley v. Mayhew, 3 N. Y. 9; In re N. Y., L. E. & W. R. R. Co., 110 N. Y. 374.) The fatal error of the Appellate Division was in assuming that the petitioner had the same standing in court that an owner of the fee would have had and that he had a valid power. The petitioner had admitted upon the argument in the County Court that he had no power to pay the taxes mentioned in his petition. (In re Selleck, 111 N. Y. 284; Code Civ. Pro. § 2719.)</p> <p>The assessments, set forth in the petition are clearly illegal and absolutely void upon the face of the roll. (Trowbridge v. Horan, 78 N. Y. 439; Cromwell v. MacLean, 123 N. Y. 474; Vil. of Sandy Hill v. Akin, 77 Hun, 537; In re Kentworthy, 17 N. Y. Supp. 655; People ex rel. v. Valentine, 5 App. Div. 520; In re Hartshorn, 44 N. Y. S. R. 16; Haight v. Mayor, etc., 99 N. Y. 280; B. & S. L. R. R. Co. v. Suprs. Erie Co., 48 N. Y. 93; Hilton v. Fonda, 86 N. Y. 339; Calkins v. Chamberlain, 15 N. Y. S. R. 576.) The acting executor had the power to sell the farm and to convert the same into money to secure administration of the avails among the parties interested, without the delay and expense of a partition action. (Kinnier v. Rogers, 42 N. Y. 531; Correll v. Lauterbach, 12 App. Div. 531; Lindo v. Murray, 91 Hun, 335; In re Spears, 89 Hun, 49.) These assessments, tax sales and tax deeds cast a cloud on the title and prevented a sale of the farm by a merchantable title. (Stewart v. Crysler, 100 N. Y. 378; Smith v. Town, 47 N. Y. S. R. 665; Sanders v. Parshall, 51 N. Y. S. R. 551; 142 N. Y. 679; Vaughan v. Vil. of Port Chester, 6 N. Y. S. R. 681; Calkins v. Chamberlain, 15 N. Y. S. R. 576; Pink v. Barberi, 17 Wkly. Dig. 521; Strusburgh v. Mayor, etc., 87 N. Y. 453; Travis v. Phelps, 33 N. Y. Supp. 744; Lehman v. Roberts, 86 N. Y. 232; Bockes v. Lansing, 74 N. Y. 437; Smith v. Reid, 134 N. Y. 568.) The assessments are void on their face, but the tax deeds are valid until set aside by evidence showing their invalidity in an action. (L. 1884, ch. 107, § 10; Smith v. Town, 47 N. Y. S. R. 665.) It was the duty of the county treasurer to cancel the sales when he discovered that the assessments were void. (L. 1884, ch. 107, § 3.) The payment of tile taxes was not voluntarily made, but the executor was compelled to pay to sell the farm by a merchantable title. (Bank of Comm. v. Mayor, etc., 43 N. Y. 184; In re Perry, 5 Misc. Rep. 149; Scholey v. Mumford, 60 N. Y. 498; Tripler v. Mayor, etc., 125 N. Y. 617; 139 N. Y. 1.) The board of supervisors may refund the amount collected of any tax illegally or improperly assessed or levied, and, on the order of the County Court, it shall refund any such tax. (L. 1892, ch. 686, § 16; In re B. M. G. L. Co., 144 N. Y. 228.) Hot until an application to the board of supervisors has been made, can the county judge make any order on the subject. (In re Gilloren, 16 Misc. Rep. 130.) The question of voluntary or involuntary payment is not presented. Any tax paid upon an illegal assessment must be refunded by the supervisors. (L. 1892, ch. 686, § 16; 144 N. Y. 228; Tripler v. Mayor, etc., 125 N. Y. 617; 139 N. Y. 1.) Our application is made under a special statute, and if we bring ourselves within its provisions, we are entitled to its benefits. (Vaughan v. Vil. of Port Chester, 6 N. Y. S. R. 681.) The county treasurer, in ornease, applied chapter 107, Laws of 1884, an act to collect unpaid taxes, with full force, sold our farm three times, delivered two tax deeds and denied our application to cancel the sales. (Vaughan v. Vil. of Port Chester, 6 N. Y. S. R. 681; Scholey v. Mumford, 60 N. Y. 498.) The tax title given by the county treasurer was maturing each day against the property and would eventually result in a final order vesting the fee of the land in the purchaser. (L. 1884, ch. 107, § 17; Kinnier v. Rogers, 42 N. Y. 531; Correll v. Lauterbach, 12 App. Div. 531; Lindo v. Murray, 91 Hun, 335; Smith v. Chase, 90 Hun, 99; In re Perry, 5 Misc. Rep. 149; Becker v. Becker, 77 N. Y. S. R. 17.) The title to the share of Charles Wilcox was vested in the executors, as trustees, with power of sale, until Charles Wilcox was twenty-five years of age. (Benedict v. Arnoux, 7 App. Div. 1; Holly v. Hirsch, 135 N. Y. 590; Foote v. Bruggerhoff, 32 N. Y. Supp. 307.) There was no proof that this trust estate had expired or had been in any manner defeated. [Smith v. F. T. F. Co., 17 Misc. Rep. 311; Foote v. Bruggerhoff, 32 N. Y. Supp. 397.) The executor does not pay taxes; but when he is the trustee of a share and has a duty to sell real estate and distribute avails it then becomes his duty to pay taxes to preserve the estate. [In re Selleck, 111 N. Y. 284; In re Perry, 5 Misc. Rep. 149.) It is not necessary that both parties named in the will should "join in the petition. [Moore v. Willett, 2 Hilt. 522; Bannon v. McGrane, 13 J. & S. 517; Cheney v. Beals, 47 Barb. 523; Bright v. Currie, 5 Sandf. 433; Thompson v. Whitmarsh, 100 N. Y. 35; Buckland v. Gallup, 105 N. Y. 453.) One executor may remain passive and leave the administration in the hands of his co-executor. (White v. Bullock, 20 Barb. 91; Code Civ. Pro. § 1818; Correll v. Lauterbach, 12 App. Div. 531.) Payment to an officer who has a valid warrant for the collection of the tax, and who threatens to execute the same, is not a voluntary payment. [Bruecher v. Vil. of Port Chester, 101 N. Y. 240; 45 N. Y. 676; 87 N. Y. 452; 83 N. Y. 100; 18 Am. & Eng. Ency. of Law, 218; Briggs v. Boyd, 56 N. Y. 289; Quincey v. White, 63 N. Y. 370.) The case at bar is a special proceeding commenced by verified petition and order to show cause to enforce section 16, chapter 686, Laws of 1892, known as the County Law, and decisions of the courts in common-law actions to recover- the amount of taxes paid do not apply. (In re B. M. G. L. Co., 144 N. Y. 228; Ætna Ins. Co. v. Mayor, etc., 7 App. Div. 145; Mason v. Prendergast, 120 N. Y. 536; Horn v. Town of New Lots, 83 N. Y. 100; Bruecher v. Vil. of Port Chester, 101 N. Y. 240; Tripler v. Mayor, etc., 125 N. Y. 617.)</p>

<p>1. Constitutional Law—Counties—Implied Powers of Boards of Supervisors. Boards of supervisors, in the exercise of the legislative powers conferred upon them by the Constitution, are not confined in their action to the bare letter of the statute enacted to carry out the constitutional provisions, but may, in the exercise of a sound discretion, act under powers that are fairly to be implied.</p> <p>2. Delegated Powers of Local Legislation as to Details. Within the limits of the power delegated to boards of supervisors by the legislature, under the authority conferred upon it by the Constitution (Art. 3, § 27) to confer, by general laws, upon the boards of supervisors of the several counties of the state “such further powers of local legislation and administration" as the legislature may deem expedient, each board of supervisors is clothed with the sovereignty of the state, and is authorized to legislate as to all details precisely as the legislature might have done in the premises.</p> <p>3. Town Highway—Imposition of Conditions upon Construction. In legislating for a town, under the provisions of the County Law (L. 1892, ch. 686, §§ 69, 70) which empower the board of supervisors of each county to authorize a town to borrow money upon its bonds to build highways and to expend it for that purpose, the board has power to impose conditions as to details, for the interest of the taxpayers, not specified in the statute, such as safeguards to the letting of contracts, and provisions that the work shall be prosecuted under competent supervision and the money deposited with the county treasurer, to be paid out only upon the certificate of the engineer; and such conditions, so imposed, are binding upon the town commissioners of highways.</p>

<p>1. Appeal—Appellate Division — Practice — Modification of Judgment. When, on appeal from a judgment awarding the plaintiff a gross sum, in a common-law action upon several distinct causes of action where the amount claimed on each is definite and easily separable, it appears that the plaintiff is entitled to recover upon one cause of action, but under no circumstances could he recover upon either of the others, the Appellate Division should not reverse the judgment and-order a new trial unless the plaintiff stipulates to reduce the judgment, but it should modify the judgment by malting the proper reductions, and then affirm it as modified.</p> <p>2. Court of Appeals. If the Appellate Division, in such a case, reverses the judgment and orders a new trial unless the plaintiff stipulates to reduce the judgment, the Court of Appeals, on appeal by the plaintiff with a stipulation for judgment absolute, can render the judgment of modification and affirmance which should have been rendered by the Appellate Division.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The statute giving the provisional remedy of attachment is in derogation of a common-law right and must be strictly construed. (Penoyar v. Kelsey, 150 N. Y. 77; Code Civ. Pro. §§ 635, 649; Drake on Attachment, § 83; Eston v. Hanna, 75 Mich. 222.) The statute requires that a certified copy of the warrant be served. (Code Civ.

<p>Appeal from an order of the General Term of the Supreme-Court in the first judicial department, entered October 26, 1894, which reversed a judgment in favor of plaintiffs entered, upon the report of a referee and granted a new trial.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 14, 1897, which affirmed an order of the Surrogate’s Court of Rockland county adjudging appellant guilty of contempt and fining him.</p>

<p>Motion for reargument. (See 154 N. T. 758.)</p>

Appeal, by certification, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 30, 1896, which affirmed an interlocutory judgment entered upon a decision of the court at Special Term, confirming the report of a referee upon the trial of issues in an action for partition. The questions certified were as follows: First.