In the Estate of Tunis Cooper, deceased.

Under the ruling in Davidson agt. Alfaro (supra), it must be held that if both actions grow out of the same contract, and the party is insolvent, his assignee, with knowledge of these facts, takes subject to an existing equity, and a set-off under such circumstances will be allowed as against the party holding the legal title. The rule applicable to such a state of facts does not prevail in the case at bar, for although not disconnected, they cannot be said to grow out of the same contract under the restrictions which govern that class of

cases.

The equity of the attorney is superior to that of the plaintiff, and the case falls within Perry agt. Chester (supra), Zogbaum agt. Parker (supra), and Prouty agt. Swift (10 Hun, 232).

Motion denied, with costs.

SURROGATE'S COURT.

In the Estate of TUNIS COOPER, deceased.

Surrogate - Jurisdiction — Reference When order of reference and proceedings thereunder should not be vacated upon motion of a party who had consented thereto — when clerk or other person employed in the surrogate's office competent to act as referee — stenographer of surrogate's court not within the scope of sections 90 or 2511 of the Code of Civil Procedure.

In a proceeding for the revocation of probate all necessary parties, including the infant son of the decedent, were duly served with citation. No application was made for the appointment of a special guardian for such infant and none was appointed, but all the parties who appeared, consented to the entry of an order directing the stenographer of the surrogate's court to take testimony as a referee. The trial proceeded before such referee, and, at its conclusion, the evidence was submitted to the surrogate, who decided that the probate should be revoked. The entry of a decree upon that decision being opposed by the respondents, and it being contended that the order of reference was without authority and that all proceedings subsequent thereto were void : Held, that the order of reference and the proceedings thereunder should

In the Estate of Tunis Cooper, deceased.

not be vacated upon the motion of any party who had consented to its entry and to the submission of its results to the surrogate for his determination.

Held, also, that a special guardian should be appointed to represent the infant, and to ascertain and report whether it would be for the best interests of the infant that the proceedings should stand as theretofore conducted, and a decree be entered accordingly, or that the trial should be commenced de novo.

Held, also, that in view of section 3355 of the Code, sections 90 and 2511 must be construed as if they had simultaneously become law, and that so construed, "a clerk or other person employed in the surrogate's office" is competent to act as referee, in a proceeding pending in the surrogate's court, provided he is appointed with the written consent of all the parties appearing.

Held, also, that the stenographer of the surrogate's court is not within the scope of section 90 or of section 2511.

New York County, April, 1855.

ROLLINS, S.-A paper purporting to be the will of this decedent, was admitted to probate as such in May, 1881. In April, 1882, a proceeding was commenced for revocation of such probate. Citations were duly issued and duly served upon all necessary parties, and, with the consent of all who appeared and took part in the subsequent trial, Edward F. Underhill, esq., was appointed referee to take testimony and report the same to the surrogate. Mr. Underhill proceeded with the examination of such witnesses as were brought before him by the contending parties, and a large volume of evidence was subsequently submitted for my consideration. In July of last year I rendered a decision granting the petition for revocation. No decree, however, has as yet been entered.

My attention is now called to the fact that decedent's infant son has hitherto had no special guardian to represent him and protec this interests. The alleged will names his mother, the widow of the decedent, as its executrix, and also as one of its chief beneficiaries. The widow and her co-executor protest that no decree should be entered, and that, because of the failure to

In the Estate of Tunis Cooper, deceased.

appoint a special guardian for the infant, the order of refer ence and all subsequent proceedings were unauthorized, and should now be set aside. Such a course would involve much expense and long delay in settling the affairs of this estate. It is for that reason greatly to be deprecated, and should not be pursued unless it is absolutely unavoidable. May it not be avoided?

It is clear that, by the service of citation upon all the necessary parties to this proceeding, including the infant, this court acquired jurisdiction of the proceeding and of all parties thereto (In Estate of Fenn, Daily Register, March 20, 1885, and cases cited). Any decree, therefore, that might be entered, even while the infant was still unrepresented, would not be absolutely void, but would merely be voidable at the infant's instance (McMurray agt. McMurray, 41 How. Pr., 41; 66 N. Y., 177; Matter of Becker, 28 Hun, 207; Boylan agt. McAvoy, 29 How. Pr., 279). Nevertheless, these petitioners, being named as executors in the disputed paper, and having duly qualified as such, are justified in insisting upon such a disposition of this controversy as shall be conclusive upon all persons interested therein. Now, I do not think that, to accomplish this result, it is essential that I should at once, and without ascertaining whether or not such a course would be advantageous for the infant, set aside all the proceedings since and including the entry of the order of reference. If, upon inquiry properly instituted for that purpose, it shall appear that the best interests of the infant demand that these proceedings shall stand, it will, in my judgment, be the duty of the surrogate to make decree in conformity with his recent decision.

It is insisted, by counsel for the respondents, that the entry of the order of reference herein was unauthorized, in view of the limitations upon the surrogate's authority that are established by section 2546 of the Code of Civil Procedure. That section declares that an appointment of a referee may be made "on the written consent of all the parties appearing."

In the Estate of Tunis Cooper, deceased.

Such consent, in the present case, was given by the petitioners and the respondents; and I must certainly refuse to toss aside as worthless the testimony taken in pursuance of that consent until I am asked to do so by somebody who was not a party to it (Musgrove agt. Lusk, 2 Tenn. Ch., 576). If the special guardian whom I shall appoint to represent the infant shall see fit to raise this objection, it will be again considered.

It is also urged by counsel for the respondents that the referee herein was disqualified from holding that office by reason of his being the stenographer of the surrogate's court. This objection is somewhat ungracious, for counsel does not claim that at the time he consented to Mr. Underhill's appointment he was ignorant either of the fact that the appointee was the court stenographer, or of the statute which claimed to work the disqualification. But it is no more ungracious than it is unsound. In view of section 3355 of the Code, sections 90 and 2511 must be construed as if they had simultaneously become law, and so construed they simply forbid the appointment of "a clerk or other person employed," &c., except upon the written consent of all the parties (Estate of Thorn, 4 Mo. Law Bul., 48). And besides, I am of the opinion that the stenographer does not have such a relation to the surrogate's court or office as to bring him within the scope of either section 90 or section 2511 (See sections 2508 and 2512).

All in all, the disposition which the court shall make of this whole matter must be governed entirely by what, upon investigation, shall appear to be most advantageous for the infant (Bowen agt. Idley, 1 Edw. Ch., 148; Crogan agt. Livingston, 17 N. Y., 223; Fulton agt. Roosevelt, 1 Paige, 178; Levy agt. Levy, 3 Madd., 245).

If it shall appear that the infant's share in his father's estate is greater in the contingency of his father's intestacy than in that of the final establishment of the disputed paper as his will and I am inclined to think that such is the case then further litigation may be wisely avoided.

VOL. II 6

Van Rensselaer agt. City of Albany.

A special guardian will be appointed to ascertain and protect the interests of the infant; and as his interests and those of his mother are or may be adverse, the surrogate will appoint such special guardian of his own motion after due notice to the infant (In Estate of Fenn, supra).

SUPREME COURT.

EUGENE VAN RENSSELAER and others agt. THE CITY OF ALBANY.

Municipal corporation - No right to construct sewers and discharge them upon the premises of an individual — Injunction — Right to.

A municipal corporation has no right, by the grading of streets and the construction of sewers, to gather the surface water and sewage from a considerable territory, and through a sewer discharge them upon the premises of an individual.

The casting upon the premises of such individual of the filth from such sewers is a nuisance, and the municipality is liable therefor and can be called upon to abate it.

There can be no dedication of land while the owners are continually declaring a contrary intent, nor can a right to continue a nuisance be established by user because no user will legalize a nuisance.

Ulster Special Term, March, 1885.

APPLICATION by plaintiffs for an injunction.

L. G. Hun, for plaintiffs.

S.W. Rosendale, for defendant.

WESTBROOK, J.-The case of the plaintiffs may be thus briefly stated: The defendant, by the grading of streets and the construction of sewers, gathers the surface water and the sewage from a considerable territory, and through a sewer discharges them upon the premises of the plaintiffs. The plaintiffs ask that defendant be enjoined from continuing the