The trial judge characterized that act in the findings as "illegal, arbitrary, and fraudulent." He set aside the certificate of sale, the sale itself, and corrected the assessment by striking out the item of $581, awarding costs to the plaintiff. In so far as this judgment allowed the balance of the assessment to stand as a charge against the plaintiff's property, it was reversed at the appellate division, and the entire assessment was set aside as void.

We think that the special term awarded to the plaintiff as large a measure of relief as she was entitled to upon the facts, and that the cancellation of the entire assessment by the court on appeal should not be upheld. The city had made and paid for the improvement, and the plaintiff's property has had the benefit of it. Under such circumstances, a court of equity should not discharge the plaintiff's property from all liability to contribute to the expense unless compelled to do so in obedience to some established rule or principle. The use of the word "fraudulent" in describing the act of the assessors does not change the real character of that act. It was simply an act done without authority or jurisdiction, and was void upon its face, without regard to the purpose in the minds of the assessors or the influences under which they acted. When the plaintiff asks a court of equity to relieve her property from all liability to contribute to an improvement which presumptively she has received the benefit of, she cannot impute fraud to the city simply because the assessors added to her assessment an item without authority. The assessment, when reduced by the special term, was a part of the assets of the city, and entitled to all the protection which the law gives to any other species of property. An illegal item in a local assessment does not necessarily render the whole assessment void because the act of inserting the item happened to be described as fraudulent. It frequently happens that public officers exceed their authority, but that will not always invalidate acts within their authority, when the good and the bad can be separated. But I am not aware of any authority for imputing fraud to a municipality simply because one of its public officers exceeded his powers. When a board of assessors add to a lawful assessment an item which is unlawful, and the latter can be separated from the former, the lawful part of the assessment can stand and be enforced, even though the act of the assessors in adding the illegal item should be characterized as fraudulent. But even if fraud, as against a city, could in any case be predicated upon the act of the assessors in adding an illegal item to an assessment roll, it is plain that the learned judge who made the finding did not understand the term as imputing anything more than an excess of jurisdiction, since he allowed the assessment to stand for the correct sum. It is plain that he did not understand that the whole assessment was

infected with an incurable vice, since he held it good except as to the item added without legal authority. The decision of the special term proceeded upon the rule so well stated by Judge Comstock in Curtis v. Leavitt, 15 N. Y. 96, in these words: "A doctrine which is expressed in the words, 'void in part, void in toto,' has often found its way into books and judicial opinions as descriptive of the effect which a statute may have upon deeds and other instruments which have in them some forbidden vice. There is, however, no such general principle of law as the maxim would seem to indicate. On the contrary, the general rule is that, if the good be mixed with the bad, it shall nevertheless stand, provided a separation can be made. The exceptions are: First, where a statute, by its express terms, declares the whole deed or contract void on account of some provision which is unlawful; and, second, where there is some all-pervading vice, such as fraud, for example, which is condemned by the common law, and avoids all parts of the transaction because all are alike infected."

This was not a case in which the whole assessment was infected with an all-pervading vice. The use of the word "fraudulent" in the finding of the special term describing the assessment was doubtless an inaccuracy. The findings were probably drawn by the attorney for the successful party, and not by the trial judge, who had just decided to treat the original assessment, without the addition, as valid. The learned appellate division, we think, attached too much importance to that word in the findings. It gave to a single word a meaning and significance which it is very evident the trial judge did not intend, since he could not have held or found that the entire assessment was infected with a vice that rendered it utterly void. The use of that word in the finding did not change the undisputed facts or the true character of the official act of the assessors. It could have no application to that act, so far as the assessors had jurisdiction. So far as they acted without jurisdiction, the act was void, whether described as fraudulent or otherwise, and the word was probably used only to characterize the excess which was added to an assessment otherwise valid. It frequently happens that even the judgments or orders of the courts are found to be void because the jurisdiction has been transcended, or illegal because affected by some error, but in any case the real character of the judicial act would not be changed by describing it as fraudulent. It is true that a judgment or decree may be fraudulent, but the fraud is never imputed to the court, but to the conduct of one of the parties. A court or body acting judicially may commit an error or exceed the jurisdiction, but it cannot be guilty of "fraud,” in the proper or legal sense of that term. In this case the board of assessors acted judicially, and it would be just as impossible to impute fraud to their decision as it would be

to the judgment of a court open to attack for jurisdictional defects or illegal procedure. Moreover, the assessors are not parties to this action. The parties to this action are the property owner and the city. The latter has neither perpetrated nor authorized any fraud upon the former. The plaintiff did not charge fraud in her complaint, and the mere fact that the word "fraudulent" is used in the finding to describe the act of the assessors, in association with the other words "illegal" and "arbitrary," cannot affect the assessment when the illegal item of $581 is expunged. This illegal item does not permeate the whole, but the good can be separated from the bad, and, after cutting off what was added without authority, the good can and should be upheld.

The learned counsel for the defendant contends that the right to maintain this action is barred by a provision of the city charter to the effect that an action to set aside a tax or assessment, or to test the validity or regularity of the same, must be brought within one year from the completion of the roll and the delivery thereof to the treasurer. This action was not brought within that time. But it is not an action to set aside a tax or assessment or to test the validity or regularity of one. The primary purpose was to set aside a sale of the property upon which the assessment was imposed, and the action could rest upon the erroneous and irregular proceedings after the roll was delivered to the comptroller, without touching the assessment at all. But the court, having obtained jurisdiction of the parties and the subject-matter, had power to make the relief complete by striking from the roll a separate item, which had been added without jurisdiction to a valid assessment. The court, in removing a cloud upon the title to the property, created by an illegal sale, could extend the relief to everything that was found illegal. Including the unauthorized item In the assessment. Zink v. McManus, 121 N. Y. 259. 24 N. E. 467. If these views are correct, it follows that the judgment of the appellate division should be reversed, and that of the special term affirmed, without costs to elther party.

PARKER, C. J., and HAIGHT. MARTIN, and LANDON, JJ., concur. BARTLETT and

VANN, JJ., dissent.

Judgment reversed, etc.

(162 N. Y. 513)

TAYLOR v. SYME et al. (Court of Appeals of New York. April 17, 1900.)

WILLS FOREIGN EXECUTOR ANCILLARY LETTERS WHEN AUTHORIZED - PETITION FOR APPOINTMENT-RECORD OF ORIGINAL APPOINTMENT-CONTRADICTORY AS TO JURISDICTIONAL FACT-EFFECT-SUIT BY EXECUTOR-COLLATERAL ATTACK ON APPOINT

MENT.

1. Code Civ. Proc. § 2695, limits the powers of the surrogate to grant ancillary letters on a

foreign probate of a will executed by a person at the time a nonresident to the case of probate in the state or territory where the will was executed, or the testator resided at time of death. Held, that where a petition was filed for ancillary letters testamentary under section 2695, which stated that the will of which petitioner was executor was executed in Louisiana, but the certified copy of the probate in Louisiana showed that testatrix at her death had her domicile in Alabama, and that the will was executed in that state, the surrogate had no jurisdiction to issue ancillary letters, since, the court being bound to give full faith and credit to the judicial proceedings of a sister state, the statement of the record as to a jurisdictional fact prevailed over the petition.

2. Rev. Civ. Code La. art. 1668, provides that testaments made in other states cannot be carried into effect on property in that state without being registered in the court within the jurisdiction of which the property is situated. Article 1220 provides that the succession of persons domiciled out of the state of Louisiana, leaving property therein, shall be administered on as those of citizens of the state, and officers appointed to administer as pointed out by law. Held, that where testatrix was not a resident of Louisiana, and her will was not executed there, but she left property therein, the authority of an executor appointed there extended only to property in that state, not being a general administration, and hence, together with the rule that a foreign executor cannot sue in the courts of New York, such executor could not sue in such state on a note belonging to the estate.

3. Where defendant was sued on a note by one to whom ancillary letters testamentary had been issued as foreign executor of the indorsee of the note, it was proper to attack in such action the surrogate's jurisdiction to issue the letters, since, the question being jurisdictional, the attack could be made collaterally.

Appeal from supreme court, appellate division, First department.

Action by M. Temple Taylor, as executor, etc., of Eliza Kenner, deceased, against Frederick J. Syme and others. From a judgment of the appellate division affirming a judg ment for plaintiff entered on a verdict directed by the supreme court (45 N. Y. Supp. 707), defendant Syme appeals. Reversed.

Edward F. Brown, for appellant. Erastus D. Benedict, for respondent.

LANDON, J. This action was commenced by Eliza Kenner, September 3, 1890, against the defendant Syme, upon two promissory notes made December 21, 1892, in New Or leans, La.. each for $1.500, by Allen & Syme, co-partners, then residents in New Orleans. to their own order (one payable August 1. 1885, and the other September 1, 1885), and indorsed by the makers to Eliza Kenner, who then resided, and continued to reside until her death, in Mobile, Ala. The notes were the last of a series given in payment of the rent of a rice plantation in Louisiana, which Mrs. Kenner, at the time of their date, leased to Allen & Syme for three years. ending December 31, 1885. The lease contained a provision that if the lessees should be deprived of the use of the premises by and through any causes beyond their control, or any fortuitous event, they should be allowed a reduction of the amount pro tanto. Allen and

Syme entered into possession of the premises, and at the end of two years failed; and their creditors took possession of their movable property on the plantation, with the result that they did not operate the plantation the third year. We agree with the courts below that Allen & Syme must be held to have brought this misfortune upon themselves by their own improvidence, and that it could not be properly called a "fortuitous event," which the Civil Code of Louisiana defines as "that which happens by a cause which we cannot resist." Article 3556, No. 15.

Eliza. Kenner died in the state of Virginia in July, 1891; but her domicile was in Mobile, in the state of Alabama. This action was revived in the name of the present plaintiff in October, 1896; ancillary letters testamentary having in September, 1896, been issued to him by the surrogate of the county of New York. The defendant, by his answer and upon the trial, challenged the jurisdiction of the surrogate of the county of New York to issue the ancillary letters; the ground of the challenge being that such letters were issued upon the record of the probate of Mrs. Kenner's will, and of the issue of letters testamentary thereon by a court in the state of Louisiana, where she did not live, where she did not die, and where her will was not executed, instead of by a court in the state of Alabama, in which she was domiciled at the time of her death, and in which she executed her will. Section 2695 of the Code of Civil Procedure limits the power of the surrogate to grant ancillary letters upon a foreign probate, in the case of a will of personal property made by a person who resided in some other state or territory of the Union at the time of the execution thereof or at the time of his death, to the case of probate in the state or territory where the will was executed, or the testator resided at the time of his death. In August, 1896, the present plaintiff, M. Temple Taylor, by his attorney, presented a petition to the surrogate of the county of New York for ancillary letters testamentary, ostensibly under section 2695 of the Code of Civil Procedure. The petition stated correctly the facts, except that it stated that the will was executed in Louisiana, which was not true. Accompanying the petition was a duly-certified transcript of the record of the probate of the will in the court in Louisiana, and of letters testamentary issued to the plaintiff, with a copy of the will, and proofs, including a statement of the testimony of the subscribing witnesses, substantially as required by sections 2695, 2698, and 2704. From this transcript it distinctly appeared that the will of Mrs. Kenner was executed in the state of Alabama, and that she resided in that state at the time of her death; that is, had her domicile there. It thereby appeared that the case was not one in which the surrogate had jurisdiction to issue ancillary letters upon the transcript of the record of the probate and proceedings produced before him

from the court in Louisiana. The surrogate was probably diverted from examining the record before him by the statement in the petition that the will was executed in Louisiana. But the office of the petition was to institute the proceeding, and bring the Louisiana record into court for examination by the surrogate. Manifestly, if the petition contradicted the record upon a jurisdictional fact, the record would prevail, since one of the purposes of the provisions of the Code of Civil Procedure in this behalf is to give full faith and credit, in proper cases, to judicial proceedings of a sister state. No mistake in the petition would create the record of a probate in Alabama, or change the facts presented by the Louisiana record,-that the testatrix executed her will in Alabama, and was domiciled there at her death. The record showed that the surrogate had no jurisdiction. Riggs v. Cragg, 89 N. Y. 479; In re Hawley, 104 N. Y. 250, 10 N. E. 352; Morrow v. Freeman, 61 N. Y. 515; In re New York Catholic Protectory, 77 N. Y. 342.

It is suggested that, however this may be, the plaintiff was duly appointed executor in Louisiana, and thus became the owner of the assets of the deceased. This position would have more force if Louisiana had been the domicile of the testatrix, since the law of the domicile governs the succession of personal property. The rule still remains that a foreign executor or administrator cannot sue as such in this state, although in cases where there are no creditors of the decedent within the state the reason of the rule has little force. Parsons v. Lyman, 20 N. Y. 103; Petersen v. Bank, 32 N. Y. 21; Toronto Gen. Trust Co. v. Chicago, B. & Q. R. Co., 123 N. Y. 37, 25 N. E. 198. The administration in the state of Louisiana, however, was under the Revised Civil Code of that state, as follows:

"Art. 1220. The succession of persons domiciled out of the state of Louisiana and leaving property in this state at their demise, shall be opened and administered upon as are those of citizens of the state, and the judge before whom such succession shall be opened shall proceed to the appointment or confirmation of the officer to administer it under the name and in the manner pointed out by existing laws."

"Art. 1668 (1681). Testaments made in foreign countries and other states of the Union cannot be carried into effect on property in this state without being registered in the court within the jurisdiction of which the property is situated, and the execution thereof ordered by the judge."

Thus, the professed purpose of the administration in Louisiana was that the will of the testatrix might "be carried into effect on property in this [that] state." It did not purport to extend to the property of the testatrix in the state of her domicile or in any other state, or to be a universal administration, but to cover the administration in that state, like

the ancillary administration sought in this state; the ancillary being supplemental to the principal administration, and, except as to domestic creditors, subordinate to it. See section 2700, Code Civ. Proc.

It is said that this is a collateral attack, but, as it is a question of the jurisdiction, the attack can be made collaterally. The defendant had no interest in the proceeding, or standing to challenge it, until the plaintiff asserted against him his right to represent Mrs. Kenner. He could do no more than raise the issue at his first opportunity.

The defendant also urges the statute of limitations of Louisiana as a defense. The appellate division held that it was not well taken, because the defendant took up his residence in this state before the expiration of five years after the maturity of the note. The question is an interesting one, but it is not necessary for us to decide it.

It follows that the plaintiff did not show his right to maintain this action. The judgment must be reversed, with costs. New trial granted; costs to abide the event.

PARKER, C. J., and O'BRIEN, BARTLETT, HAIGHT, MARTIN, and VANN, JJ.,

concur.

Judgment reversed, etc.

(163 N. Y. 99)

PEOPLE v. PRIORI.

(Court of Appeals of New York. May 1, 1900.) CRIMINAL LAW-COURT OF APPEALS-JURISDICTION-PREPARED "CASE"-MOTION FOR NEW TRIAL-REVIEW.

1. As Code Cr. Proc. § 517, gives the right of direct appeal to the court of appeals to one on whom a judgment of death has been pronounced, that court has control of the correction of an error made by the trial court in settling the case for appeal, as the right to hear such appeal includes the right to settle the preliminary practice for presenting it not fixed by statute.

to

2. Under Code Cr. Proc. § 485, as amended by Laws 1897, c. 427, requiring the clerk of the trial court, where an appeal is taken from a judgment of death in a criminal case, prepare copies of the judgment roll, and forward the same to the clerk of the court of appeals, and requiring such judgment roll to contain the "case," if there is one, it is error for a justice of the supreme court, who tried the case, sitting at special term, to strike from a prepared "case," filed by defendant after judgment of death had been pronounced on an appeal to the court of appeals, affidavits and proceedings had on a motion for a new trial, on the ground of newly-discovered evidence, as such "case" is a part of the judgment roll.

Appeal from special term.

Lorenzo Priori was convicted of murder in the first degree, and judgment of death was entered against him. From an order striking out part of a proposed case on an appeal to the court of appeals, he appealed, which the people moved to dismiss. Motion to dismiss denied, and order reversed.

Samuel Seabury and Bankson T. Morgan, for appellant. Asa Bird Gardiner and Charles Le Barbier, for the People.

VANN, J. On the 2d of May, 1899, the defendant appealed to this court from a judgment of death pronounced against him three days before. In June following he moved for a new trial on newly-discovered evidence, but the motion was denied by an order entered on the 20th of October. Subsequently his attorneys served a proposed "case" which, among other things, contained the affidavits and proceedings on said motion, but they were struck out on the settlement by the allowance of an amendment prepared by the district attorney. Thereupon the defendant moved, at a special term held by the justice who presided at the trial, for a resettlement of the case by disallowing such amendment, and restoring said proceedings to the record. From an order denying said motion this appeal was taken, and the respondent now moves to dismiss the same.

We think the motion should be denied. The statute gives a person upon whom judgment of death has been pronounced the absolute right of appeal to the court of appeals in the first instance. Code Cr. Proc. § 517. It is the only method of review allowed by law in this important class of cases, except as the trial court may, to some extent, review its own action, as well as that of the jury, on a motion for a new trial founded upon errors committed before judgment is pronounced. Code Cr. Proc. § 465. The power to hear and decide an appeal in the first instance necessarily involves the right to settle the preliminary practice so far as it is not fixed by statute. People v. Conroy, 151 N. Y. 543, 547, 45 N. E. 946. "As the right of review is absolute, so must be also the right to have a complete and accurate statement of the matters determined against a party." Gleason v. Smith, 34 Hun, 547. While the statute now provides that a "case" must be made and settled upon an appeal to this court from a judgment of death, it does not provide any method of reviewing the action of the justice settling the "case," even for the most grievous error. This part of the practice is, therefore, left to be settled by the court, for it cannot be presumed that the legislature intended to give a remedy by appeal, as a matter of right, and yet permit it to be taken away, in effect, by the refusal of the trial justice to insert in the "case" an essential part of the evidence or a vital ruling upon the trial. As was said by Judge Earl in Re Brady, 69 N. Y. 215, 220: "The right to review the decision of a single judge sitting at special term, in a matter affecting substantial rights, being general and fundamental, it must be deemed to exist, unless the intent to destroy it is expressed with great clearness." It is the policy of the law in all cases, both civil and criminal, to provide a truthful record of the proceedings at the

*

trial for the use of the appellate court, and experience shows the necessity of supervision by that court of the method provided for the purpose. Rubber Co. v. Rothery, 112 N. Y. 592, 20 N. E. 546; s. c., 119 N. Y. 633, 23 N. E. 529. In People v. Conroy, supra, we held that we had power to acquire a correct copy of the evidence, rulings, and charge to to be furnished for the purpose of the appeal in a capital case. We declared that: "This power exists by necessary implication, as the right to hear the appeal involves the right to require such a record to be presented as the law commands. As the printed records are required to be furnished to us for official action, we necessarily have the right to determine, upon a proper application and the full presentation of the facts, whether they have been prepared and printed according to law." The method of correcting errors upon the settlement of a "case" is a matter of practice which is under our control. We might entertain a motion to resettle the "case" ourselves, but that would be inconvenient, and would take time that is needed for the regular business of the court. It is better to follow the practice prevailing in civil and in other criminal cases by taking cognizance of an appeal from an order of the special term. Bigelow v. Deavol, 150 N. Y. 327, 44 N. E. 946. While the statute does not, in terms, provide for such an appeal, the power to settle the practice governing appeals is necessarily committed to us as incidental to the power to hear appeals. We think that implied authority has been conferred upon us to supervise the action of the trial justice in settling the "case" by hearing an appeal from an order denying a motion for a resettlement.

It is, therefore, necessary to decide the appeal, which presents an important question, never decided by this court, although once considered by it before the statute was in its present form. People v. Hovey, 93 N. Y. 651. When the Code of Criminal Procedure was passed, writs of error and of certiorari in criminal actions were abolished, and an exclusive method of review by appeal substituted. Section 515. No jurisdiction was conferred upon this court to review any criminal case except upon an appeal from a judgment of the supreme court, which was authorized to review in the first instance judgments of conviction after indictment, and upon the appeal to review “any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll, as prescribed by section 485." Section 517. Power to review the judgments and certain orders of the intermediate appellate court, including "a final determination affecting a substantial right of the defendant," was expressly conferred upon the court of appeals. Section 519. At that time section 485 provided, as it does now, that the clerk "must, upon the service upon him of notice of appeal, immediately

annex together and file the following papers, which constitute the judgment roll." Then followed seven paragraphs enumerating the papers, which are the same in substance as are now required for the purpose. Said section then contained no other provision. It was provided by earlier sections that the bill of exceptions must be prepared and settled at the trial, unless the court otherwise directed. Sections 456-460. This was the law until 1887, when the legislature made an important change in our jurisdiction by providing that an appeal from a judgment of death must be taken directly to the court of appeals, without any intermediate review. Laws 1887, c. 493. This change was accomplished by amending sections 485 and 517. The amendment of the latter was by inserting after the provision for an appeal to the supreme court these words: "Except that when the judgment is of death the appeal must be taken direct to the court of appeals." The former section was amended by adding paragraph 8, which required the clerk, "when the judgment is of death,

Sec

to cause to be prepared and printed the number of copies of the stenographer's minutes and judgment roll which are requir ed by the rules of the court of appeals, which shall form the case and exceptions upon which the appeal shall be heard." The practice thus established was criticised by us in People v. Shea, 147 N. Y. 78, 41 N. E. 505, and People v. Conroy, 151 N. Y. 543, 45 N. E. 946; and in 1897 another change was made. Laws 1897, c. 427. tion 458 was so amended as to require a "case" to be prepared, settled, and signed "as prescribed in the general rules of practice." Paragraph 8 of section 485 was so changed as to provide that, "when the judgment is of death, the clerk, upon the settling and filing of the case, must forth with cause to be prepared and printed, and forwarded to the clerk of the court of appeals, the number of copies of the judgment roll which are required by the rules" of this court. The earlier part of the section relating to the duty of the clerk to prepare a judgment roll when a notice of appeal was served upon him was left unchanged, and no change was made as to the contents of the judgment roll, which now, as formerly, consists of minutes of challenges interposed by the defendant to a grand or trial juror, and the proceedings and decision thereon; a copy of the indictment, with minutes of the trial and judgment; and "(6) a copy of the minutes of any proceedings upon a motion either for a new trial or in arrest of judg ment; (7) the case, if there is one." These changes in the statute show that the legislature, by striking out the provision relating to the printing of the stenographer's minutes, and directing the clerk to print the judgment roll only, intended that the judgment roll should contain the "case," if any, as otherwise the clerk would simply print