« ForrigeFortsett »
ated the assessment. They do not Defendant was the owner of a steam yacht
licensed to proceed from port to port in appear except by extrinsic evi
in the U. S. and by sea to any foreign dence, and as the assessment is of
ports. The accident took place in the itself an apparent lien upon plain- Hudson River and the yacht at the time tiff's land, and may ripen into other showed the lights prescribed for ocean liens by a sale and leases, he is en
going steamers and those carrying sail,
but not the lights prescribed for coasting titled to have it removed. But as
vessels navigating inland waters. Held, no latent defect is found in the
That the yacht at the time of the accident proceedings of the common coun- was a coasting vessel and bound to carry cil prior to ordering the assess
the central range of lights prescribed by
rule 7 of 8 4233, U. S. R. S. ment plaintiff is not entitled to
Reversing S. C., 21 W. Dig., 99. retain that part of the judgment which declares that his lot is not
This action was brought to reliable to a local assessment for cover damages for negligence any part of the improvement. The against the owner of the steam judgment in this case should not yacht Yosemite. The license for stand in the way of any action said yacht described her as used which $ 215 of the charter author and employed exclusively as a izes the common council to take, pleasure vessel and designed as a by way of remedying any errors
model of naval architecture." into which they may have fallen, the time of the injury the Yosemite or otherwise.
was enrolled at the port of New Judgment reversed, so far as it York, the certificate of enrollment adjudges plaintiff's lot not liable reciting that it was given in conto a local assessment for any part formity to the title of the U. S. R. of the expense of opening Church S. which relates exclusively to enstreet, and restrains and prohibits rollments. She had a coasting lithe city, its officers and agents, cense with the privilege of going from hereafter making'any local by sea to foreign ports. By $ 2 of assessment for any part of the Chap. 141 of the U. S. Laws of opening of said street which shall 1818 authority was given to the include plaintiff's said lot or be Secretary of the Treasury to cause made thereon; and in all other yachts like the one belonging to respects judgment affirmed, with defendant, if entitled to be enrolled costs of appeal to respondent.
as American vessels, to be licensed Opinion by Smith, P.J.; Barker, “to proceed from port to Port of Haight and Bradley, JJ., concur.
the United States without entering or clearing at the custom
house." Said statute was amended MARINE COLLISION. in 1870 (U. S. R. S., $ 4214) by N. Y. COURT OF APPEALS.
adding the words “and by sea to Chase et al., applts., v. Belden, tiffs'steamboat was sunk by defend
foreign ports.” At the time plainrespt.
ant's yacht the latter was proceedDecide d Jan. 18, 1887.
ing under steam up the Hudson
River. She carried the lights pre-Code. The judgment was affirmed scribed for ocean going steamers and the motion for a new trial deand steamers carrying sail, U. S. R. nied. One order embraced both S., $ 4233, rule 3, but did not have decisions, and from the whole of the “central range of two white that order defendant appealed. lights" prescribed for coasting ves- Plaintiff moved to dismiss the apsels navigating inland waters peal. (Rule 7). Plaintiff was nonsuited. Theodore Bacon, for motion. P. Cantine, for applt.
J. & Q. Van Voorhis, opposed. Luther R. Marsh, for respt. Held, That as far as the appeal
Held, Error; that defendant's affects the order denying a new yacht was at the time of the acci- trial it was well taken, Code, $ 190, dent under her license a "coasting subd. 2; 94 N. Y., 248–251, and as vessel," and was within the ex- the motion to dismiss relates to press terms of rule 7 and bound to the whole appeal it should be decarry the central range of lights nied, and as too much was asked prescribed therein.
for plaintiff should pay costs. If the collision had happened Motion denied. upon the high seas another ques- Per curiam opinion. All contion would have been presented.
Judgment of General Term, affirming judgment dismissing com
COSTS. plaint, reversed, and new trial
N. Y. COURT OF APPEALS. granted.
Opinion by Andrews, J. All In re application of The Water concur.
Comrs. of Amsterdam, applts., to acquire lands of Chalmers et al.,
Decided Feb. 11, 1887. N. Y. COURT OF APPEALS.
The words “ with costs" in an order of Kelsey, respt., v. Sargent, applt. reversal or affirmance in the Court of Decided Jan. 25, 1887.
Appeals, in a case where the allowance
of costs is discretionary, means costs in An appeal to the Court of Appeals lies from that court only. an order of General Term denying motion
The Court of Appeals in the for a new trial under $ 1001 of the Code. Where a motion is made to dismiss an entire
above entitled action set aside a appeal, part of which is well taken, the report of commissioners of assessmotion will be denied with costs.
ment" with costs,” and ordered a
commisabove entitled action, at Special sioners to be appointed by the Term, made a reference necessary. Supreme Court. The clerk of the An appeal was taken to the Gen- | Supreme Court taxed only costs of eral Term, and upon exceptions the Court of Appeals and refused defendant also moved the court to tax costs before appeal to for a new trial under $ 1001 of the the Court of Appeals.
The Spe Vol. 25—No. 17a.
A judgment rendered in the rehearing before new
cial Term directed a retaxation of ministrator has equities which should be costs so as to include costs before
considered on a judicial settlement of his
accounts, and he should be credited such notice of appeal to Court of Ap
sums as he has so contributed, when subpeals. An order of the General
servient to the necessities of the infants Term affirming such direction is beneficially interested. now appealed from to this court. The Surrogate's Court has jurisdiction to
consider and fairly adjust any equities M. L. Stover, for applts.
existing between such administrator John M. Carroll, for respts.
and the parties interested, and between Held, That the reversal of the such parties themselves. original appeal was with costs. A rule which requires the severance of a
family of minor children for the protecThe appellants were entitled to
tion of a trustee in his accounts would costs in this court only. If they be harsh and the consequences unnatdeemed themselves aggrieved, ural. their remedy was to apply to this Unless special reasons exist, where a trustee
has furnished goods from his own store court for an amendment of the or
for infant beneficiaries, such accounts der.
for merchandise should not be allowed The words with costs" in an or- as against an infant's fund ; the rule der of reversal or affirmance in this
should be applied with considerable rigor. court, in a case where the allow- Appeal from decree of surrogate ance of costs is discretionary, of Livingston County, made upon means costs in this court only. 68 an accounting of George Hyland N. Y., 628.
as administrator of Bernard BaxMurtha v. Curley, 92 N. Y., 359, ter, deceased. distinguished.
Bernard Baxter died intestate Order of General Term, affirm- May 27, 1862,
May 27, 1862, leaving Bridget ing order of Special Term direct- | Baxter, his widow, and three minor ing retaxation of costs, reversed. children, aged respectively seven
Per curiam opinion. All con- years, two years, and seven cur.
months. On June 5, 1862, the widow and Hyland were appointed
administrators and Hyland took EXECUTORS. ACCOUNTING.
possession of the property and sold N. Y. SUPREME COURT. GENERAL it. The amount which he realTERM. FIFTH DEPT.
ized with the interest charged him
was $1,872.87. He paid debts and George Hyland et al., admrs.,
expenses to the amount of $631.60. applts., v. Bernard Baxter et al.,
No general guardian was appointed respts.
for the infants, and they continDecided Oct., 1886.
ued to reside with and be supWhere an administrator furnishes in entire ported as one family by the good faith, out of the assets of the intes
mother. The mother
had no tate, money to his co-administrator, the income or other means of support mother of minor children, next of kin, except her earnings and a small having no general guardian, to be used and in fact used by her for the purchase
sum received for the rent of a of necessaries for such infants, such ad. | house, and from time to time called upon her co-administrator repay to him so much as he shall for small sums to support the child pay the next of kin. dren, and from time to time Hy- The surrogate sustained excepland furnished her with money tions to the report of the auditor and goods from his store for this that the money and merchandise purpose, which she expended and received by the widow from Hyused for this purpose until the land were appropriated by her whole fund was exhausted. Such for the support of the minors or payments of money and furnish for their necessary support during ing of goods were found by the
ere found by the minority, and in other respects auditor to have been done with apparently confirmed the report, entire good faith.
and decree was entered Dec. 22, In May, 1872, one Wendell Zim- 1876, and Hyland appealed. Hymer was duly appointed guardian land and the widow having afterof the said infants and he institut- ward died, the appeal was coned proceedings for the accounting tinued in the name of their repreof Hyland. He filed his account, sentatives. and the account was referred to Oscar Craig, for applt. an auditor to settle and adjust. D. W. Noyes and Chas. J. BisAfterward the widow as co-ad-sell, for respt. ministrator was brought in. The Held, That it is quite evident, learned auditor held that Hyland as the court below understood, should be allowed one-third of the that Hyland furnished the widow sum paid by him to the widow, as the money and merchandise in she was entitled to receive that good faith, believing that he was sum as her distributive share, and properly supplying the family found that she had expended the with the means of support from distributive shares of the minor the estate of the intestate in his children, "in providing for their hands, and that it was used for necessities during their minority, such purpose. While the acting and that if she had expended the administrator had no legal right same as their general guardian the to hand over to his co-administrasaid payments would have been tor any of the assets in his hands allowed to her on an accounting or to furnish supplies for the famas guardian,” but in his opinion ily of the intestate at the expense she as administratrix had no legal of the estate, the question arises right to make such payments, and whether any equities exist in bethe Surrogate's Court had no half of this administrator which power to allow such payments to fairly requires any allowance or the administrator as a credit, and credit to him as against the shares consequently they must be jointly of the children in the estate. charged to them as against the When the rights of infants are next of kin, but as between the involved a trustee is usually held administrators Hyland was entit- to a strict accountability in the led to a decree that the widow line of his duty as such, 53 N. Y., 322, and equities are found in his which requires the severance of a favor in case of his departure family for the protection of a from his legal duty only in the guardian in his accounts would be event of entire good faith on his harsh and the consequences unnatpart, and when it is subservient to ural. the necessities of the infants bene- That unless special reasons apficially interested. 4 Johns. Ch., pear and are applicable to the 100; 11 Hun, 536.
account for merchandise furnished That the Surrogate's Court had from the store of Hyland, in this jurisdiction to consider and fully case, it should not be allowed as adjust and award any and all equi- against the infants' fund. The ties existing between the parties permission of a trustee to deal and in behalf of Hyland, 98 N. Y., with infant beneficiaries by selling 610, and although the matter of the them his property and thereby accounting and determination charging the fund cannot without were theoretically had before the danger of great abuse be allowed. surrogate, the auditor was the While there may be circumstances instrument through whom he which will justify such a claim, acted, and upon his report the de- and where credit should be alcree was made. In the view of lowed, it is safer to apply the rule the auditor there was no power in somewhat rigorously against such that court to determine the equi- allowances. ties, if any there were, and he ex- Decree reversed and rehearing cluded from his consideration that ordered in the Surrogate's Court, question; and there is reason to costs to abide the final award for apprehend that the subject of con- costs. troversy here may not have re- Opinion by Bradley, J.; Smith, ceived the attention it would have P.J., and Barker, J., concur. received if the power to extend the inquiry beyond the legal duties of
MANDAMUS. APPEAL. the administrator and to deter
PRACTICE. mine equitable considerations had been clearly assumed by the Surro- N. Y. SUPREME COURT.
NGENERAL gate's Court. The matter should
TERM. SECOND DEPT. go back to the Surrogate's Court
The People ex rel. Stephens et al. for rehearing unembarrassed by v. Abraham Lott, Surrogate. any question of jurisdiction. That while there may be some
Decided Dec., 1886. difficulty in adjusting this account
By S 2481, subd. 6, the surrogate has power with the several interests of the
to open, vacate, modify or set aside a de
cree or to grant new trial, and his order minors, the same difficulty might in such a case is appealable and manhave existed in an accounting ha damus is not a remedy by means of which by the widow as general guardian
such an order can be disregarded. of all the children, as they were The relator applied to the surromembers of one family. A rule gate of Kings County for a final