(185 N. Y. 435)

In re MOSHER'S ESTATE. (Court of Appeals of New York. June 6, 1906.) APPEAL-ORDER GRANTING NEW TRIAL-AFFIRMANCE-JUDGMENT ABSOLUTE AGAINST

APPELLANT.

Claimant against an executor appealed from an order of the appellate division reversing a judgment in her favor and granting a new trial. Thereafter on application of the executor the Appellate Division amended its orders so as to state that the judgment was reversed both on the law and facts; respondent stipulating that appellant might, if she elected, withdraw her appeal to the Court of Appeals. She did not do so, but insisted on the claim that the report of the referee contained findings of fact and conclusions of law, that a general exception only had been taken by the executor, and that the Appellate Division had no power to review the facts and reverse thereon. Held that, on a finding by the Court of Appeals that questions of fact were involved on which the Appellate Division could properly reverse the judgment, the order would be affirmed and judgment absolute granted against appellant on her stipulation, instead of dismissing the appeal.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4477, 4478.]

On motion for reargument and to amend remittitur. Denied.

For former opinion, see 185 N. Y. N. E. 1191.

- 77

HAIGHT, J. Elizabeth Sarles, the appellant, filed a claim for work, labor, and services with the executor of the estate of Rose T. Mosher, deceased, which was referred to a referee to hear and determine. The referee, after hearing the case, filed his report in favor of the claimant, upon which judgment was entered. The executor thereupon appealed to the Appellate Division, First Department, which court reversed the judgment and granted a new trial. An appeal was taken by the claimant to the Court of Appeals, and thereafter, upon application of the executor, the Appellate Division amended its order so as to state that the judgment was reversed both upon the law and the facts; the respondent stipulating that the appellant might, if she elected, withdraw her appeal to this court. She did not, however, elect to do so, but instead brought her appeal on for argument, making the claim that the report of the referee was in the long form containing findings of fact and conclusions of law, and that a general exception only had been taken by the executor to such report, and that the Appellate Division had no power to review the facts and reverse thereon. This court, finding that questions of fact were involved upon which the Appellate Division could properly reverse the judgment, affirmed the order and awarded judgment absolute against the appellant upon her stipulation.

The appellant now seeks to have the remittitur amended so as to dismiss the appeal, instead of affirming the order, relying upon Bini v. Smith, 161 N. Y. 120, 55 N. E. 395, Health Department of City of New York v. Dassori, 159 N. Y. 245-249, 54 N. E. 13, and 78 N.E.-10

other kindred cases. It is quite true that in many cases we have adhered to the practice of dismissing the appeals, rather than affirming the order granting a new trial. We did not like to deprive a party of a new trial for acting upon erroneous advice. Occasionally we still adhere to that practice, and dismiss appeals, where it is apparent that an affirmance and judgment absolute would result in great injustice to the appellant. But our generosity in this respect has been abused, and many appeals have been taken to this court and much time consumed in the discussion of controverted questions of fact under the pretense that they were in favor of the appellant, doubtless hoping to obtain some advantage upon a new trial in case the appeal should be dismissed. In this case the appellant had the right to appeal under the provisions of the Code. This court thereby acquired jurisdiction to review her case. Whether the record contains any exceptions to be reviewed is another question. It was claimed that the Appellate Division had no power to reverse upon the facts under the exception filed to the referee's report by the executor. It was also claimed that the facts were without dispute, and that, therefore, the Appellate Division could not create a question of fact by assuming to reverse upon the facts, under authority of Otten v. Manh. Ry. Co., 150 N. Y. 395-401, 44 N. E. 1033, and Hirshfeld v. Fitzgerald, 157 N. Y. 166–176, 51 N. E. 997, 46 L. R. A. 839. We were, therefore, called upon to determine those questions. The first question we regarded as settled by the case of Roberts v. Tobias, 120 N. Y. 1-5, 23 N. E. 1105; the latter question by our review of the evidence finding that a question of fact was involved which the Appellate Division had the power to review. In the case of Snebley v. Conner, 78 N. Y. 218-220, Earl, J., in delivering the opinion of the court, said: "In such cases we have generally dismissed the appeals, so that the new trial granted might be had. But the practice in such cases has now become so thoroughly established and known, and the character of this case is such, that we think the ends of justice will be best subserved by an affirmance of the order." In the case of Livingston v. City of Albany, 161 N. Y. 602, 56 N. E. 148, a similar question was considered by Parker, C. J., who at the close of his opinion states: "As justice may be promoted by a dismissal of this appeal, that course will be taken, reserving to some future occasion the application of the rule adopted in Snebley v. Conner, 78 N. Y. 218, should counsel persist in taking their chances in this court in the hope that. at the most, only a dismissal will result, giving them two opportunities to persuade the court-one before the new trial ordered is taken, and one afterwards." See, also, Jameson v. Brooklyn Skating Rink Association, 54 N. Y. 673. The case under consideration is one in which we thought the rule above referred to should be applied.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, VANN, WILLARD BARTLETT, and CHASE, JJ., concur.

Motion denied.

(185 N. Y. 391)

In re COMMISSIONER OF PUBLIC
WORKS.

In re WILLIS AVE. BRIDGE. (Court of Appeals of New York. June 12, 1906.)

1. EMINENT DOMAIN-APPEAL COMMISSIONERS' DECISION-RIGHT OF REVIEW.

Greater New York Charter, Laws 1897, p. 351, c. 378, § 986, permitting the Special Term of the Supreme Court to confirm in whole or in part, or to refer back, the report of commissioners estimating the value of property taken for public streets and places, and section 988 (page 352), permitting the city or any person aggrieved by the report, "when confirmed as aforesaid," to appeal to the Appellate Division, are not affected or controlled by the provisions of the Code of Civil Procedure applicable to appeals.

[Ed. Note. For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 614, 619.] 2. SAME.

Greater New York Charter, Laws 1897, p. 351, c. 378, § 986, provides that the Special Term of the Supreme Court may confirm in whole or in part or refer back the report of commissioners estimating the value of property taken for public streets and places. Section 988 (page 352) permits the city or anyone aggrieved by the report, "when confirmed as aforesaid," to appeal to the Appellate Division of the Supreme Court. Held, that in proceedings under Laws 1894, p. 288, c. 147, which, by section 4 thereof, makes applicable such sections of the charter to proceedings under the act, the Appellate Division cannot entertain an appeal from an order refusing to confirm the commissioners' report, and returning it with directions for a further report.

Appeal from Supreme Court, Appellate Division, First Department.

Application by the commissioner of public works of the city of New York to acquire land for a certain bridge. From an order of the Appellate Division (97 N. Y. Supp. 503, 111 App. Div. 285), dismissing an appeal from an order of the Special Term refusing to confirm the report of the commissioners of estimate, the city appeals. Affirmed.

John J. Delany, Corp. Counsel (Theodore Connoly, of counsel), for appellant. John C. Shaw, Arthur S. Hamlin, and James A. Deering, for respondents.

PER CURIAM. This proceeding was instituted by the city of New York to acquire title to certain lands, for the purpose of the construction of a bridge over the Harlem river and of approaches thereto. Upon a motion to confirm the report of the commissioners of estimate, who had been appointed in the proceeding, the Special Term of the Supreme Court ordered that the motion should be de

to the commissioners, with certain directions for a further report. The city of New York appealed to the Appellate Division from the order of the Special Term, and the appeal was dismissed. Leave was given to appeal to this court and the following question was certified for our determination: "Is the order of the Special Term entered herein on March 3, 1904, denying the motion to confirm the report of the commissioners in this proceeding, and returning the report to them for amendment and correction, appealable to the Appellate Division of the Supreme Court by the city of New York?"

We think that the Appellate Division correctly dismissed the appeal to that court, and that the question certified should be answered in the negative. The proceeding by the city was instituted under chapter 147, p. 288, of the Laws of 1894, and by section 4 of the act it is provided that the provisions of law relating to the taking of private property for public streets and places in the city of New York shall be applicable to proceedings under the act. Those provisions are to be found in the Greater New York charter. Laws 1897, p. 351, c. 378. Section 986 makes provision with respect to the report of the commissioners and permits the Special Term of the Supreme Court to confirm the report in whole or in part, or to refer the same, or a part thereof, back to the commissioners, or to new commissioners, for revision or correction, or for reconsideration, etc. This section changed the pre-existing law, as contained in the Consolidation Act of 1882, in the respect that there may be a partial confirmation of the report of the commissioners. Section 988 permits the city of New York, or any party or person aggrieved by the report, "when confirmed as aforesaid," to appeal to the Appellate Division of the Supreme Court. These provisions of the character relating to the right to appeal are not affected, nor controlled, by the provisions of the Code of Civil Procedure applicable to appeals. The authority conferred upon the Appellate Division to entertain appeals from orders made upon the coming in of reports of the commissioners only exists when there has been an order of confirmation, which confirmation is not required to be the whole report, but may be partial, under section 986. The cases of Matter of the City of New York, 182 N. Y. 281, 74 N. E. 840, and of Real Estate Corporation v. Harper, 174 N. Y. 123, 66 N. E. 660, related to orders of partial confirmation and they decided that an appeal would lie to the Appellate Division in such event. Those cases have no application to the present one, where the order wholly denied the motion to confirm the report. In such a case, we think that, by the plain language of the charter, the right to appeal from the Special Term order is excluded.

The order of the Appellate Division, therefore, should be affirmed, with costs.

* thereupon entered into possession of said premises," and the deed was duly recorded. Brown, in the same year, conveyed the premises to one Bauer, who, immediately, reconveyed to Brown's wife, this plaintiff. It was found that she, immediately, entered into possession of the premises under her deed; that she has been in continuous possession thereof ever since and that she has paid the taxes since assuming such possession. Upon these facts the legal conclusions were reached that the title to the premises, upon the death of Thomas Doherty, was vested in his surviving children, subject to be divested by the exercise of the power of sale vested by his will in the executors thereof; that that power had been duly exercised by the executors and the defendants were divested of their title to the premises and that the same had become vested in the plaintiff; that Lunny, as one of the executors, participated in and approved and ratified the sale and the consummation thereof by the delivery of the deed of his coexecutor to Brown; "that the plaintiff having been in possession of the premises for more than 20 years and more than 10 years after the defendants had attained their majority, the defendants are precluded from setting up their claim by reason of the statute of limitations." Judgment was entered in favor of the plaintiff, barring the defendants from any claim of title to or estate in the premises described, and adjudg- | ing that plaintiff is the owner in fee simple absolute thereof. The judgment was affirmed by the Appellate Division in the First Department, and the defendants have appealed to this court.

George W. Carr, for appellants. A. C. & F. W. Hottenroth, for respondent.

GRAY, J. (after stating the facts). This action, which is brought under the provisions of article 5 of title 1 of chapter 14 of the Code of Civil Procedure, is peculiar in its features and is not, perhaps, free from difficulty, with respect to the determination of the conflicting claims to the title to the premises described in the complaint. I have reached the conclusion that the judgment was correct in adjudging the title to the plaintiff, upon the ground that there was a sale by the executors, in execution of the power of sale, and, under the facts of the case, that the ownership, and the right to the possession, of the property sold have become vested in her.

The fifth clause of the testator's will contained an imperative power to dispose of his residuary estate. It was not dependent upon the will of the executors and the testator's purpose was to create from a residue, which

should remain after the payment of his debts, an interest-bearing fund for the benefit of his children, while minors. The power was given to the executors, qua executors, and they, accordingly, proceeded to execute it as such. The finding of fact is that they did sell the real estate at public auction, through an auctioneer, upon a published notice, over their names, of the time and place, and that the premises in question were struck down by the auctioneer to Kedney, as the highest bidder. Kedney assigned his bid to Brown, who paid to Doherty, one of the executors, the sum at which the premises had been struck down at the sale, and received a deed thereof from Doherty, as executor. For no assigned reason the other executor did not join in the conveyance and died some years later and 12 years before the plaintiff commenced her action without contesting plaintiff's title. These defendants, who were infants when the testator died, are his sole sur viving children and heirs at law and they became of age some 10 and 11 years, respectively, after the sale and the plaintiff's entry into possession. During the 12 or 13 years intervening before this action was commenced, no proceeding was taken by them with reference to the sale, or to the plaintiff's possession. We have, therefore, in the facts established by the findings, upon evidence, and by the affirmance of the judgment by the Appellate Division, an execution of the power of sale by the executors through a public sale to the highest bidder. The auctioneer was the agent of the executors for making the sale, as he was for the vendee for the purpose of the memorandum of sale. See McComb v. Wright, 4 Johns. Ch. 659; also, 3 Amer. & Eng. Ency. of Law, 509. The assignee of the purchaser at the sale paid the whole of the consideration money to one of the executors and all that was needed to perfect the transaction of sale was that Lunny should unite with his coexecutor in the deed or himself execute a deed. This was not a case of the nonexecution of the power of sale, but of a defective execution; because the intention to execute the power was effectuated by the actual sale. The deed was but an incident, and the final consummation, of a sale under which the plaintiff, or her predecessor in the title, was let into possession. The case is one where equity should grant relief, which may be administered through these provisions of the Code. Brown v. Crabb, 156 N. Y. 447, 51 N. E. 306. The general rule, undoubtedly, is that trustees must unite in a disposal of the trust estate and a deed of land from less than all the living trustees is invalid. Brennen v. Willson, 71 N. Y. 502. But this case is not, by reason of the circumstances, bound by the rigid requirements of that general rule. The requirement of our Statutes, that, where a power is vested in several persons, all must unite in its execution, was complied with, in effect, by the actual sale

made by the executors. It would be a most harsh and inequitable application of the statute, if, after executing the power by this sale, the subsequent death of one of the executors, who had united in the selling, but who had not joined in a conveyance, should, from the impossibility of procuring or compelling his deed, result in avoiding the plaintiff's title. The estate of the testator received the consideration moneys and neither executor, nor devisee, at any time attempted to rescind the sale, or to contest the title. If Lunny, unreasonably, or without any reason, neglected, or refused, to execute a deed in consummation of the sale, he must be regarded as refusing to perform his duty under the will. If his death prevented any legal steps from being taken against him, equally, can it be said that it terminated what opposition he could have made to the plaintiff's ownership. The surviving executor had given a deed, and there is nothing that can now be done, further, to complete the plaintiff's title.

The plaintiff was the owner of the whole equitable title, having the possession and the right to the possession. The sale and the agreement of purchase having been perform. ed by the payment of the price and the taking of possession, equity will now regard as done what should have been done. The most that can be said of the defendants' position is that if, by the failure of the purchaser to receive an adequate conveyance, upon the execution of the power of sale by the executors, the legal title has not passed, then they, as heirs, are trustees of the legal title for the plaintiff's benefit. See Brown v. Crabb, supra. While an action for specific performance may not be maintainable by the plaintiff, in this action the provisions of the Code, previously referred to, sufficiently warranted the court in rendering the judgment below, which barred the defendants' claim of title and which es tablished the ownership of the plaintiff. I think that the Code provisions fulfill the equitable rule by permitting the court to establish by a judgment, in such an action that which ought to have been done.

In the view I have taken, it becomes unnecessary to discuss the question of whether title has been gained by the plaintiff through an adverse possession during the 23 years of her occupation. Upon the authority of Howell v. Leavitt, 95 N. Y. 617, it would hardly ap pear that the facts of this case bring the defendants, who were infants at the time of the sale, within the provisions of section 375 of the Code of Civil Procedure.

For the reasons given, I advise the affirmance of the judgment below, with costs.

CULLEN, C. J., and EDWARD T. BART LETT, HAIGHT, WERNER, and HISCOCK, JJ., concur. O'BRIEN, J., absent.

Judgment affirmed.

(185 N. Y. 504)

PEOPLE ex rel. JEROME, Dist. Atty., v. COURT OF GENERAL SESSIONS OF THE PEACE et al.

(Court of Appeals of New York. June 21, 1906.) 1. PROHIBITION-GROUNDS OF REMEDY-ADEQUACY OF OTHER REMEDY.

Prohibition is the appropriate remedy, under Code Civ. Proc. § 2029, when the Court of General Sessions is about to exceed its powers, prescribed by Code Cr. Proc. §§ 51, 52, and grant a new trial after judgment, since the people cannot, under section 518, appeal. 2. CRIMINAL LAW-JURISDICTION

STATUTES.

The jurisdiction and procedure of the Court of General Sessions are governed by the provisions of the Code of Criminal Procedure. 3. SAME-NEW TRIAL-POWER OF COUrt.

The Court of General Sessions possesses no inherent power to grant a new trial in a criminal case, and its authority is derived from Code Cr. Proc. §§ 463, 465, 466.

4. SAME MOTION FOR NEW TRIAL AFTER JUDGMENT.

Code Cr. Proc. § 463, declares that a new trial can be granted only in the cases provided in section 465, which provides the cases in which a new trial can be ordered. Section 466 requires that the application for a new trial must be made before judgment, except where it is made on the ground of newly discovered evidence. Held, that the Court of General Sessions has no authority after judgment to grant a new trial in a criminal case on the ground that the evidence disclosed the running of limitations against the prosecution.

Appeal from Supreme Court, Appellate Division, First Department.

Application by the people, on the relation of William Travers Jerome, district attorney, for a writ of prohibition against the Court of General Sessions and others. From a judgment of the Appellate Division (98 N. Y. Supp. 557), granting a motion for an absolute writ, defendants appeal. Affirmed.

James W. Osborne, for appellants. Wm. Travers Jerome, Dist. Atty. (Robert C. Taylor of counsel), for respondent.

GRAY, J. This appeal is from an order of the Appellate Division, in the First Department, granting a motion for the issuance of an absolute writ of prohibition, after reversing an order of the Special Term, which had denied such an application and had vacated an alternative writ, commanding the Court of General Sessions of the Peace in and for the county of New York, the recorder of the city of New York, as judge of the said court, and one John Blake, to refrain from any further proceedings upon a motion for a new trial made by, or on behalf of, the said Blake. It appears, from the answer made to the alternative writ, that the said John Blake had been indicted for the commission of the offense of selling an article of merchandise, falsely described upon the label on the vessel containing the same. He was tried at the General Sessions, the recorder presiding at the trial, upon his plea of not guilty to the charge, and was found guilty by the verdict of a jury. After