Volume 22 — New York State Reporter

Demurrer to a complaint, on the grounds, first, that the plaintiff has not the legal capacity to sue; and second, that the complaint does not state facts sufficient to constitute a cause of action.

<p>Motion for a new trial upon exceptions ordered to be - heard at the first instance at the general term after a trial had at circuit, which resulted in a dismissal of the plaintiff’s complaint.</p>

<p>1. Contempt—When refusal to' obey order contempt.</p> <p>On the 13th day of October, 1888, an order was made appointing a receiver of the New York Transito and Terminal Company, limited. The order required all persons in possession of any franchises, property,records, books or papers of the corporation, to surrender the same to the receiver-on demand forthwith. A copy of the order was served on the defendant Post, and a formal demand made upon him for the property of the company, in accordance with the order. In reply to the demand Post stated! that he had obtained an order to show cause why the order of October-thirteenth should not be vacated and declared void, and suggested that matters be allowed to stand until the hearing of such order. To that suggestion no reply was made. He made no denial of his inability to deliver the property, but based his refusal to comply with the order upon its-, illegality and invali iity. Held, that such conduct and refusal was contumacious; that while the order was in force, and until it was reversed ifc was his duty to obey it, and disobedience thereto is contempt.</p> <p>2. Same—Practice—When error does not invalidate proceeding—</p> <p>HOW TAKEN ADVANTAGE OF.</p> <p>Errors committed by a court upon the hearing of a petition or proceeds ing which it is authorized to hear, but not affecting any jurisdictional facts, do not invalidate the orders or authorize a party to treat them ae void, but can be taken advantage of only by appeal or motion in the original action.</p>

<p>Motion to dismiss appeal.</p>

<p>1. Contempt—Order to show cause—Variance.</p> <p>By a preliminary order the defendant Barnes was commanded to show-cause why he should not he punished for contempt in refusing to transfer-certain stock of a corpoiation of which a receiver had been appointed im compliance with the final judgment in the action, and why the plaintiff should not have other and further relief; where the final order for punishment for contempt was based upon a charge of aiding and abetting the-officers of the company in their contumacy, and it was objected to the-final order that the variance is fatal: Held, that the final order was made after a full hearing when all the parties were before the court, and is not beyond the scope of the preliminary order requiring the defendant to show cause why he should not he.punished for the alleged contempt; the objection cannot prevail.</p> <p>2. Same—Oral testimony—When proceedings not vitiated—Waiver.</p> <p>It was further objected that the proceedings were erroneous because oral testimony was received on the hearing of the motion: Held, that as. the testimony was taken without objection, the defendant appearing voluntarily, he is deemed to have assented to the proceeding and waived all objection which might have been made thereto.</p> <p>3. Same—What constitutes.</p> <p>Aiding and assisting others in the violation and defiance of the orders of the court amounts to a civil contempt, and may he punished as such.</p> <p>4. Same—How punishable.</p> <p>A civil contempt may be punished by both-fine and imprisonment, and if the act or duty cannot he performed, then the imprisonment may not, exceed six months and until the fine is paid.</p>

Motion by defendant to set aside verdict in favor of the» plaintiff and for a new trial upon exceptions ordered to be-heard in the first instance at the general term.

<p>Excise commissioners—Poweb to bevoke license—Laws 1857, chap. 628„ § 15, AS AMENDED BY LAWS 1877, CHAP. 430.</p> <p>Under Laws 1857, chapter 638, section 15, as amended by Laws 1877^ chapter 420, regulating the sale of intoxicating liquors, the excise commissioners have authority and power to revoke a license when liquor is sold to a minor under the age of fourteen years by a bartender of the licensee.</p>

<p>’Summary proceedings—Power op Justice to direct a verdict.</p> <p>In summary proceedings for land, when the application is made to a district court in the city of New York, and a jury trial is demanded and had. Held, that the justice has no power to direct a verdict.</p>

<p>2. Municipal corporations—New York (city op)—Contract for local</p> <p>improvements—When delay excusable.</p> <p>In an action on a contract for services rendered for grading and flagging Sixty-sixth street in the city of New York, the defendants insist that the balance claimed should be reduced by allowing to the city the inspector’s wages. The contract provided for it in case the work was delayed. The plaintiff concedes the delay but alleges that it was caused by the defendants. The evidence tended to show that the city, although not bound to do so, undertook to furnish grades and levels, and that their omission to do so caused the delay. Held, that as the delay was the fault of the city the inspectors’ wages were properly disallowed by the jury.</p> <p>3. Same—Claim: for overpayment—When allowed.</p> <p>The defendants further claim a reduction for overpayment. The evidence tended to show by the action of the defendants’ engineers more work was required than under the contract would have been necessary for its completion and that by their interference the plaintiff was subjected to additional expense. The labor was a deviation from the original plan and was useless. Held, that if in the correction of error or by reason of it the plaintiff performed extra work and incurred increased expense,he is entitled to recover for it according to its value and amount.</p> <p>S. Same—When question for the jury.</p> <p>Held, that the questions raised by the issues presented in the second cause of action should have been submitted to the jury.</p>

<p>1. Executor—Who is life tenant—Not to receive or retain custody-</p> <p>of residuary estate without giving security.</p> <p>An executor who is likewise the life tenant, should not receive or retain-the custody of the residuary estate, either as executor or life tenant, without giving security. This rule is based upon the ground that in no other way can adequate protection be given to the remainderman. The disqualification attaches to the p&rson.</p> <p>2. Same—Conflicting interests.</p> <p>That such executrix and life tenant is also the general guardian of his-child, though remainderman, is an additional reason against his retention of the funds without giving security. The whole theory of the law is against any person combining in himself so many and such conflicting interests.</p> <p>3. Same—When general rule that same person cannot be trustee-</p> <p>AND CESTUI QUE TRUST APPLIES.</p> <p>Except where there is a power given, by the will, to the life tenant to-dispose of the funds, either absolutely or for certain purposes, the general rule that the same person cannot be trustee and cestui que trust, applies.</p>

<p>1. Executors and administrator—Executor who is also life tenant —When required to give security.</p> <p>An executor of a will, who is also the life tenant of the funds in his hands, on his petition for the judicial settlement of his account, and on final decree confirming his account, is not entitled to retain the fund either as trustee (unie s expressly appointed trustee by the will) or as life tenant, or as executor, without giving security therefor to protect the rights of the remainderman; and on his failure to give security within a certain limited time the special guardian of the infant remainderman may proceed to take such further steps as may be necessary to secure the payment of the remainder to his ward on the expiration of the life estate.</p> <p>3. Same—Executor not technically a trustee.</p> <p>The same person cannot be a trustee and the cestui que trust at the same time; and although an executor, by the Revised Statutes, is made a trustee, yet he is not technically a trustee. Like any other custodian of funds, he is in possession thereof as trustee, though without the formal technical incidents thereof.</p> <p>3. Same—When father disqualified from becoming guardian of his</p> <p>CHILD.</p> <p>A father, who is a life tenant of a fund in his hands as executor of a will, of which his infant child is remainderman, is disqualified- from becoming the guardian of his child by reason of the conflict in interest between himself and his child.</p> <p>4. Referee—Who cannot act as.</p> <p>An assistant to the surrogate cannot act as referee, except upon the written consent of all parties to the proceeding.</p> <p>5. Same—Eees of.</p> <p>It seems that six dollars per diem for the referee would be a proper allowance for his services.</p>

<p>1. Excise law—Responsibility of employee fob violation by bar-</p> <p>tender.</p> <p>An employer is responsible for the violation of the excise laws by his bartender.</p> <p>2. Same—Construction of (Laws 1873, chap. 549, § 4.)</p> <p>Under the statute (Laws 1873, chap. 549, § 4) relating to violations of the excise laws, and providing for the annullment of a license for a violation, the words “such license,” used in the statute, refer not only to a license which is in force at the time the violation is committed, but also apply to a license in force at the time a conviction is had.</p> <p>■3. Same—Power oe commissioners to enter premises and seize</p> <p>LICENSE.</p> <p>Where a license is revoked because of a conviction had for a violation, the commissioners have power when necessary to enter upon the premises of a person guilty of violating the laws, and seize and remove the license.</p>

Motion by the defendant for security for costs upon the ground that the plaintiff was a non-resident. The court has no discretion to deny this motion. The defendant has an absolute right to security for costs. Code Civ. Pro., §§ 3268, 3272. The defendant has not lost this right by loches, as this motion was made at the time of answering and within twenty days after service of the summons and complaint.

<p>1. Contract—of suretyship—Rules of construction.</p> <p>While a surety or guarantor has the right to insist that his liability shall not be extended beyond the precise terms of his contract, yet in ascertaining the meaning of the language used the same rules of construction are applicable to contracts of suretyship, as to other contracts; the apparent intention of the parties is to control, and if the language is ambiguous or needs interpretation, the surrounding circumstances may be looked at to-ascertain'the intent.</p> <p>■3. Same—State Prisons—Convict labor—Laws 1884, chap. 31—Ef-fect of.</p> <p>The act (Laws 1884, chap. 31), inhibiting the superintendents of state prisions from contracting for the employment of convicts in the prisons, did not authorize the introduction of a new system of prison labor. An earlier statute provided that the system of labor in the state prisons should be by contract or by the state, or partly by one system and partly by another, in the discretion of the superintendent (Laws 1877, chap. 107, § 6); the act of 1884, only prohibited the superintendent from continuing the contract system.</p> <p>3. Same—of. guaranty—When liability of parties not changed.</p> <p>The defendants, on the 14th day of February, 1880, engaged that the First National Bank of Auburn, would perform its agreement, made on the same day with the state to pay on demand, such moneys as the latter should deposit with it under such agreement. The bank charter expired on the 33d day of February, 1883, and was thereafter renewed, and it continued its business under the same name as before. A large share of the deposits, respecting which, the plaintiff seeks to hold the defendants, were made after the renewal of the charter, and the defendants claim that as to such portion they are not liable. Held, that the contention must fail, that the corporation was the same entity before and after the extension of the charter; not only in name, but in fact; that the defendants, as sureties, are presumed to have knowledge of the transactions of the bank; that as they had a right, under the guaranty, to terminate their liability, their failure to do so, implies an assent on their part to. the continued receipt by the bank of the deposits made.</p> <p>4. Same—Bank directors—When acting in private capacity—Presump-</p> <p>tion OF KNOWLEDGE.</p> <p>It is immaterial whether the defendants acted in their private capacity or as directors in executing the guaranty; whatever knowledge a director has officially, he will be conclusively presumed at law, to have as a private individual.</p>

<p>■Collateral inherit arce tax—Estate of hoh-resident rot taxable— Laws 1885, chap. 483.</p> <p>Under the collateral inheritance tax act, Laws 1885, chap. 483, property within this state, but belonging at the time of death to a non-resident, passing by will or intestacy, is not taxable. Darforth, J., dissenting.</p>

<p>Appeal from an order of the supreme court, general term, second department, affirming an order of the special term filed in Rockland county clerk’s office, denying & motion to vacate the satisfaction of judgment in this action to the extent of plaintiff’s attorney’s costs, etc.</p>

<p>1. Wills—When equitable conversion implied.</p> <p>A testator devised and bequeathed all of his real and personal property, after the payment of debts and funeral expenses, to his executors in trust to invest and keep invested the proceeds thereof in United States bonds or in the bonds of the state or city of -Hew York, or in bonds secured by first mortgage on real estate in the city of New York, and to pay the interest and income to his widow during her life, and after the death of Ms wife he devised and bequeathed the whole of Ms said estate to his surviving children, share and share alike. At the testator’s death Ms wife and two children survived him. One of the children died subsequently and before the commencement of this action. Held, that the necessity of a conversion to accomplish the purpose expressed in the will is equivalent to an imperative dire. tian to convert, and effects an equitable conversion of the property.</p> <p>3. Same—Dower—When widow must elect between provision contained IN WILL AND HER DOWER.</p> <p>Held, that the provision made in behalf of the widow of the testator required her to elect between accepting what had been provided for her by the will, or rejecting it, and taking dower in the estate. Vernon v. Vernon, 53 N. Y., 351; KonmXinka v. Schlegel, 104 id., 135; Matter of Zahrt, 94 id., 605, followed.</p> <p>3. Same—Estate acquired on death of remainderman by life tenant AND HEIR OF REMAINDERMAN.</p> <p>Held, that the widow’s interest in the trust estate did not merge in the-legal estate which she acquired by the death of her daughter, and that by such death she acquired a future estate dependent upon the precedent estate, which she could devise but could not enjoy in possession.</p>

<p>1. Will—Probate of—Rule as to onus fbobandi.</p> <p>• The rule in this state is that the onus probandi is upon the proponent to satisfy the surrogate that the writing propounded is the last will of a free and capable testator.</p> <p>2, Same—Proof necessary.</p> <p>Where a testator is deaf and dumb, or is subject to such infirmities of body or mind as expose him to deception, the proponent must furnish the clearest proof that no imposition has been practiced, before the will will be admitted to probate.</p>

<p>Petition fob payment of distributive share out of estate under sections 3717, 3718, of the Code—What executor opposing motion</p> <p>MUST SET FORTH IN HIS ANSWER.</p> <p>On a petition by a legatee in a surrogate court for the payment of a legacy or distributive. share out of the estate, after one year has expired from the granting of letters, under sections 3717, 3718, of the Code, the executor, if he oppose the motion, must set forth in his answer facts to show that it was at least doubtful whether the petitioner’s claim was legal and valid or not.</p>

<p>1. Will—Issue of predeceased children—Primary legatees—Con-</p> <p>struction.</p> <p>A testator in the residuary clause of his will directed his executors to-divide his estate into equal shares, specifying the number but not the' amount. Then follows gifts of shares to the children of the testator’s-brothers and sisters, and then continues, “but in case any one or more of the children of my deceased brothers and sisters mentioned in this clause of my will shall die, or have died before me, leaving lawful issue surviving at the time of my death, then, and in that case, such issue of my deceased nephew or niece shall receive the share which his or her ancestor would have received under this clause of my will, had he or she been living at the time of my death, excepting in the case of the issue of Lemuel Crawford, deceased, to whom this clause does not apply, the children of the said Lemuel Crawford, deceased, having been left a legacy in a former clause of this will.” The testator’s ten brothers and sisters died before; ■ the date of the will, seven of whom left children surviving them at that time, and .several nephews and nieces of the testator, brothers and sisters of surviving nephews and nieces died, leaving issue before the will was made. The living nephews and nieces claim that they only are entitled to the residue given by the will, to the exclusion of the issue of nephews and nieces who died before the date of the will. Held, that the issue of predeceased children will take as primary legatees.</p> <p>2. Same—What issue take—Construction.</p> <p>Held, that the words “mentioned in this clause of my will,” qualifies “brothers and sisters,” and so construed, the issue who are to take are the issue of all the deceased children of testator’s brothers and sisters without ■ reference to the time of their death.</p> <p>3. Same.</p> <p>Held, that this intention is emphasized by the words “ shall die or have died,” pointing both to death in the future and in the past.</p> <p>4. Same.</p> <p>Held, that a conclusive reason for the construction that the issue of predeceased children were intended to take is in the clause, which excepts from the provisions of the will “the issue of Lemuel Crawford, deceased, to whom this clause shall not apply,” said C. having been left a legacy in a former clause.</p> <p>5. Same—What evidence of testator’s intention.</p> <p>Held, that the exclusion nominatim of the issue of a child of testator’s sister Mary, who died before the will was made, and who was one of the sisters mentioned, to whose children shares were given, is irrefragible evidence that the testator intended to comprehend all the issue of nephews and nieces who had died at any time before the making of the will, unless of a class specially excluded.</p>

<p>Appeal from judgment, supreme court, general term, first department, affirming a judgment.</p>

<p>1. Sale—When purchaser required to complete.</p> <p>To justify the making of an order granted upon a simple motion requirino- a purchaser to perform a contract of purchase of a judgment from a receiver duly authorized to make the sale, it must appear that the sale which is thus sought to he enforced is a judicial sale, in the sense applicable to that term.</p> <p>2, Same—When receiver deemed to represent court.</p> <p>Where the terms of the sale, as authorized and as represented by the-contract, are expressed in the order directing the receiver to make the sale, in making the agreement he represents the court, and through him the sale may be deemed as made by it, and no further action of the court is necessary to consummate it.</p> <p>3. Same—Mat be' public ob private—'When purchaser subject to</p> <p>JURISDICTION OE THE COURT.</p> <p>It may be either public or private, but must, in any event, be made by the receiver, pursuant to the direction or authority of the court; it then has the character of a judicial sale, and the party making it subjects himself to the jurisdiction of the court, and may "be required to complete it.</p>

<p>Appeal from an order denying the plaintiffs’ motion for a preliminary injunction to enjoin the defendants from using brands, stencils, labels and forms of packages similar to those used by the plaintiffs.</p>