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thing that money would buy, his education, etc. I do not think he said anything in those letters as to how he should dispose of his earthly goods. Q. What were you going to say? A. He repeated in those letters that he should be treated as his own son, and whatever he had should be equally divided between him and his two daughters. His words were that they should share and share alike." The appellant testified that when he was 20 or 21 years of age his father showed these letters to him, and he remembered that each contained the statement "that, if I was allowed to come and live with my uncle until I was twenty-one years old, I should share equally with Mary and Grace in whatever property he had to dispose of at the time of his death." He could not state anything else that the letters contained, except that they were signed by his uncle, and addressed to his father, and possibly to his mother. Three letters from the testator to Mr. and Mrs. Leonard Stevens were read in evidence, one without date and the others dated respectively April 8 and 27, 1869. The one without date was apparently written at about the same time as the others. They all referred to the appellant, spoke of him with affection, and in one of them the testator wrote: "If he [meaning the appellant] could stay with us, nothing would be spared on the part of any of us to do the very best we could for him. We have furnished a room in the best manner for him, where he sleeps alone, and it breaks our hearts to think he will not stay.

* I am 'Son less,' and we want my little namesake, and if you have not repented letting him come and are of the same mind still, you must write in a very decided manner that he must stay and then I can manage it. If you do regret sending him I will yield up all my wishes and plans and send him home. But I think it would be decidedly bad for him. * * * If you say stay, he will feel desperately for a time, but will soon be over it, and I am persuaded he will grow up a blessing to, and pride of us all, for we should never distinguish between him and my own children." In another he said: "I am afraid I shall be too indulgent; I now regard him as my boy and I can't see but all love him just as well as we do Gracie, for Julia loves him just as well as I do and is afraid the relation will have to be sundered. No doubt he has his homesick spells as any good boy must in having all his life associations broken up. But this will wear away and, my word for it, he will be greatly benefited for it in the end, for he shall have all that love, money and care can do for him." In the third he wrote: "It would be strange, indeed, if he could give up the idea of going home without a struggle in his mind. He is a good and beautiful boy and has got into my heart so I cannot give him up." These letters were written after the boy had become homesick, for the purpose of persuading his father to be firm with

him, and to tell him he must remain with his uncle. Although they set forth the advantages that Lyman would have if he remained— such as a good home, education, loving care and the like-no allusion was made to any contract of the testator to give him a part of his estate. This was a singular omission if such a contract had in fact been made, for the prospect of a large inheritance would naturally have had great persuasive force with a farmer of somewhat limited means and a number of children. A letter from Leonard Stevens, the father of the appellant, to the testator, dated February 21, 1869, was read in evidence by the plaintiff. It was written in answer to a letter dated the 16th of February, but not produced, and the material part is as follows: "You said in your letter that you and Julia had considered the matter over, and that you would like to have Lyman come and live with you and grow up side by side with your Gracie; Sarah and myself have considered the matter over and have come to the conclusion to let him go and live with you. Dear brother, you know it is a struggle for a parent to give up their loved ones when so young. But I have all confidence in you and Julia that you will look to his interest and welfare. I shall expect you to be parent and guardian. Lyman is young and it is a great responsibility to take one so young and rear to manhood. But he is a fine boy and by good training I think he will be an honor to his parents in their declining years." Evidence was also given tending to show that the testator repeatedly said he knew no difference between the appellant and his other children and that on several occasions he declared he should make no difference between him and them when he came to divide his estate. No further evidence was given tending to establish the alleged contract.

After probate of the will the amount due the appellant for unpaid wages according to the books of the testator was paid him, and he gave a receipt "in full for all demands of every kind and nature against the estate of Lyman Stevens, deceased, except the legacy as stated in the will." He accepted the bequest of $6,000 without objection, and without notice of any claim by virtue of the contract. About nine years after the probate of the will this action was commenced to obtain a construction thereof with reference to subjects not now material. In the meantime the executors had advertised for claims, but none was presented by the appellant, who does not appear to have given any notice of the existence of a contract until after this action was commenced.

Contracts of the character in question have become so frequent in recent years as to cause alarm, and the courts have grown conservative as to the nature of the evidence required to establish them, and in enforcing them, when established, by specific performance. Such contracts are easily fabricated

and hard to disprove, because the sole contracting party on one side is always dead when the question arises. They are the natural resort of unscrupulous persons who wish to despoil the estates of decedents. In Shak

speare v. Markham, 72 N. Y. 400, 403, this court declared that "contracts claimed to have been entered into with aged or infirm persons, to be enforced after death to the detriment and the disinheriting of lawful heirs, who otherwise would be entitled to their estates, are properly regarded with grave suspicion by courts of justice, and should be closely scrutinized, and only allowed to stand when established by the strongest evidence." While such contracts are sometimes enforced by the courts, it is only when they have been established by evidence so strong and clear as to leave no doubt, and when the result of enforcing them would not be inequitable or unjust. Thus, in a recent case the agreement was in writing, there were no children to be disinherited, and no will to show the understanding of the decedent. Winne V. Winne, 166 N. Y. 263, 59 N. E. 832, 82 Am. St. Rep. 647. In deciding that case we said: "In cases of this character, where it appears for any reason that the enforcement of an agreement would be unfair, inequitable, or anjust, the remedy should be denied. Each case must be governed by its own facts and circumstances, and, unless the proof discloses a situation where good conscience and natural justice require the enforcement of the agreement, this relief should not be awarded.

While we are of the opinion that specific performance of this contract was properly awarded, this decision is based solely upon the findings of the trial court and the particular facts and circumstances of this case. Yet it must not be regarded as an authority for maintaining such an action under different circumstances or upon other proof, as the granting or denial of such relief always rests in the sound discretion of the court, and should be denied unless the agreement is fair and just and its enforcement equitable." In a later case we were fettered by the iron rule of unanimous affirmance which prevented us from looking into the evidence, and, following the Winne Case, we affirmed the judgment. Healy v. Healy, 166 N. Y. 624, GO N. E. 1112. In Brantingham v. Huff, 174 N. Y. 53, 66 N. E. 620, the parol contract was rejected, because at the time or after it was made a written indenture of adoption had been entered into. In Mahaney v. Carr, 175 N. Y. 454, 67 N. E. 903, we refused to enforce by specific performance a parol contract between the grandfather and the father of an infant, whereby the latter surrendered his rights to the child, and the former adopted her as his daughter, and agreed that upon his death she should have one-fourth interest in all the property he should thereafter acquire. Before his death the grandfather had given a part or the whole of his property to his wife. Commenting up

on the nature of the contract in that case, Judge O'Brien said: "It certainly is not a testamentary disposition, since they must be in writing, executed with all the statutory formalities. It is not a conveyance or transfer in præsenti of any property whatever. If it had the effect attributed to it by the judgment, it is more potential and effective than any testamentary disposition could be, since such dispositions are always ambulatory, and subject to revocation. It is not an executory contract for the future conveyance or transfer of any specific property. It could not take effect until the death of the grandfather, and during his life he was not in default with respect to it; and yet this anomalous arrangement was, according to the judgment in this case, effective enough for the latter to nullify the gifts and conveyances made by the grandfather in his lifetime to his wife and the provisions of his will that took effect upon his death. The deceased left three children of his own that certainly had as strong a natural claim upon his bounty as the plaintiff, his grandchild; but no one, I think, would claim that, had the deceased made the same promise to them that it is found he made to the plaintiff, it would constitute a basis for an action of specific performance against the widow. An adopted grandchild must therefore have acquired in some way a greater right in the grandfather's estate than his own children, since in a verbal interview between her father and grandfather when she was five years old she acquired one-fourth of all his property.

*

*

If this was a contract, it certainly was not a mutual one binding the child or her father as well as the grandfather. The father and the child could at any time repudiate it, and the grandfather had no remedy. Whatever the transaction in the finding in this case may be called, or however conclusive, it would seem to be clear that it does not possess all or any part of the qualities required in order to sustain the judgment."

We are of the opinion that no view of the evidence in the case before us would warrant the conclusion that the alleged contract was made. Assuming that the trial judge believed that the appellant and his mother intended to tell the truth, still, owing to their deep interest, it would be unsafe to base a finding on their testimony when it may be followed by such grave consequences. Such contracts are dangerous. They threaten the security of estates, and throw doubt upon the power of a man to do what he wills with his The savings of a lifetime may be taken away from his heirs by the testimony of witnesses who speak under the strongest bias and the greatest temptation, with all the dangers which, as experience shows, surround such evidence. The truth may be in them, but it is against sound policy to accept their statements as true under the circumstances and with the results pointed out.

Own.

Such contracts should be in writing, and the writing should be produced, or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses. Unless they are established clearly by satisfactory proofs, and are equitable, specific performance should not be decreed. We wish to be emphatic upon the subject, for we are impressed with the danger, and aim to protect the community from the spoliation of dead men's estates by proof of such contracts through parol evidence given by interested witnesses,

During the trial of this action certain evidence was received under the objection and exception of the appellant, which we regard as incompetent; but, in view of what has been said, it is obvious that it could not have affected the result. No competent evidence was excluded, and, if all the testimony in favor of the respondents were rejected, still the evidence in favor of the appellant would not have justified the trial court in finding that the alleged contract was made. The error therefore was harmless, and the judgment should be affirmed, with costs.

PARKER, C. J., and GRAY, BARTLETT, HAIGHT, CULLEN, and WERNER, JJ., con

cur.

Judgment affirmed.

BOPP v. NEW YORK ELECTRIC VEHICLE TRANSP. CO. et al. (Court of Appeals of New York. Dec. 15, 1903.)

NONSUIT-REFUSAL-WAIVER OF OBJECTIONS. 1. Where, on trial of an action for negligence against two defendants, one of them moves for a nonsuit, and, on denial of the motion, excepts thereto, but puts in its evidence, and again makes the motion, and again excepts on its denial, and cross-examines the witnesses of its codefendant to show that it was free from all responsibility, the refusal to grant the nonsuit is waived if at the close of the whole case the evidence presents a question for a jury.

Parker, C. J., and Gray and O'Brien, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Ida E. Bopp, by John H. Bopp, guardian ad litem, against the New York Electric Vehicle Transportation Company and another. From a judgment of the Appellate Division (79 N. Y. Supp. 1035) affirming a judgment for plaintiff, and denying a new trial, defendants appeal. Affirmed.

Eugene Lamb Richards, Jr., for appellant New York Electric Vehicle Transp. Co. Carl Schurz Petrasch and Alvin C. Cass, for appellant J. F. Otto Meyer. T. F. Hamilton and Frank H. Smiley, for respondent.

VANN, J. At the close of the plaintiff's evidence in chief, each defendant made a sep

It

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arate motion for a nonsuit, and each excepted to the action of the court in denying the mo tion. Each defendant had the right to then withdraw from the case and rest upon its exception. Neither did so. The vehicle company picked up the burden first, put in its evidence, and again moved for a nonsuit. Assuming that an exception was taken to the denial of its motion, for the second time it was in a situation to rely on its exception and refuse to take any further part in the trial. did not do so. On the contrary, it continued to take an active and aggressive part in the trial, by cross-examining the witnesses of its codefendant thoroughly and at length. It aided in developing the facts, and attempted to defend itself against the allegations of the plaintiff, and the effort of the other defendant to fasten the responsibility upon it alone. did not succeed, and it now claims that all its action, after its motions to nonsuit were denied, should go for naught and be ignored upon the ground that the question is the same as if it had withdrawn from the case at that time. We do not think so. It did not remain in the case for amusement, but for selfdefense, and it could not make further efforts to defend itself without running the usual risks. The plaintiff had the right to rely upon any evidence in her favor, whether it was put in by herself or by either defendant; and the vehicle company, by failing to withdraw when it had the right to, and continuing to take part in the trial, ran the risk that evidence tending to make it liable would be received. The situation does not differ in principle from the ordinary case where a sole defendant, instead of withdrawing when he fails to secure a nonsuit, continues to take part in the investigation to the end. In so doing, even if his motion should have been granted when made, the exception is undermined and becomes of no avail, provided at the close of the whole case the evidence presents a question for the jury. Thus, in Jones v. Union Railway Company, 18 App. Div. 267, 268, 46 N. Y. Supp. 321, 322, Judge Cullen said: "When the defendant enters into its proof, the question never is whether the plaintiff's evidence is sufficient to justify the submission of the case to the jury, but whether, on the whole case, there is a question of fact as to the defendant's liability. If, at the close of a plaintiff's case, the defendant is confident that no cause of action has been made out, the only method of securing a review of an erroneous ruling on the point is to let the case stand without further evidence. If the defendant enters upon its evidence, it takes the chances of supplying the deficiencies of the plaintiff's case." So, in Hopkins v. Clark, 158 N. Y. 299, 304, 53 N. E. 27, 28, we said through Judge Bartlett: "The rule laid down by the Supreme Court of the United States seems the proper one, to the effect that when a defendant, after the close of the plaintiff's evidence, moves to dismiss, and, the motion being denied, excepts thereto, and then proceeds with

his case, and puts in evidence on his part, he thereby waives the exception, and the overruling of the motion to dismiss cannot be assigned as error." Judge Martin relied upon the case last cited, when, speaking for us all, he said: "Where, after a motion to dismiss at the close of the plaintiff's evidence, a defendant proceeds with his case and puts in evidence on his part, he thereby waives the exception to the refusal to nonsuit when the plaintiff rested." Sigua Iron Co. v. Brown, 171 N. Y. 488, 506, 64 N. E. 194, 200. The rule of the federal courts was expressed by Chief Justice Waite as follows: "It is undoubtedly true that a case may be presented in which the refusal to direct a verdict for the defendant at the close of the plaintiff's testimony will be good ground for the reversal of a judgment on a verdict in favor of the plaintiff, if the defendant rests his case on such testimony and introduces none in his own behalf; but if he goes on with his defense, and pats in testimony of his own, and the jury, under proper instructions, finds against him on the whole evidence, the judgment cannot be reversed, in the absence of the defendant's testimony, on account of the original refusal, even though it would not have been wrong to give the instruction at the time it was asked." Grand Trunk Railway Co. v. Cummings, 106 U. S. 700, 701, 1 Sup. Ct. 493, 27 L. Ed. 266. See, also, Littlejohn v. Shaw, 159 N. Y. 188, 191, 53 N. E. 810; Wangner v. Grimm, 169 N. Y. 421, 427, 62 N. E. 569; Accident Insurance Co. v. Crandal, 120 U. S. 527, 7 Sup. Ct. 685, 30 L. Ed. 740; Northern Pacific R. Co. v. Mares, 123 U. S. 710, 8 Sup. Ct. 321, 31 L. Ed. 296; Robertson v. Perkins, 129 U. S. 233, 9 Sup. Ct. 279, 32 L. Ed. 686; Columbia R. Co. v. Hawthorne, 144 U. S. 202, 206, 12 Sup. Ct. 591, 36 L. Ed. 405; Union Pacife R. Co. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756, 38 L. Ed. 597.

In the cases cited the defendant ran the risk that his own evidence might supply any defect in the plaintiff's evidence. So in this case the vehicle company, by continuing to try its Case for that is what it did-ran the risk that the evidence of its codefendant would supply the defects in the plaintiff's case against itself. It could not keep on trying its case without abiding by the condition of the evidence when all the testimony was in. At that time there was a question for the jury as to its liability, and hence its previous exceptions, taken when the evidence did not present that question, became of no avail. It did not let go of the case when it could have done so in safety, but hung on until there was evidence enough to warrant a verdict against it.

Courts sit to do justice according to the rules of law after giving all parties an opportunity to be heard. The vehicle company had its day in court, and was fully heard. No legal evidence was excluded, and no incompetent evidence was received to its injury. It took no exception to the charge of the court. Under these circumstances, pub

lic business and private rights should not be delayed by granting a new trial on account of an error which was waived by the subsequent course of the party now complaining.

The vehicle company was not compelled to remain in the case in order to get an excep. tion when its second motion was not granted, because an effort to except, made at the proper time and in the proper form, is an exception, whether allowed by the court or not.

After considering all the exceptions taken by both defendants, we find none upon which a new trial should be granted in behalf of either. The judgment should be affirmed, with costs.

GRAY, J. (dissenting). The plaintiff was injured in a collision between the electric vehicle in which she was being conveyed and a trolley street car. She brought this action for damages against the company which owned the vehicle, and the owner of a beer truck, upon the theory, as, in substance, alleged by her in the complaint, that the misconduct or negligence of the men in charge of the two vehicles combined to bring about the accident. Upon the trial the case made by her proofs showed that only the driver of the beer truck was at fault, for having so driven his truck as to strike the rear wheel of the electric vehicle; thereby causing the latter to swerve to one side and to collide with the street car. No evidence proving or tending to prove concurrent misconduct or negligence was given by her. Thereupon the electric vehicle company moved for a dismissal of the complaint as to itself, and, the motion being denied, duly excepted. It then proceeded to put in its proofs, which showed that its servant was in no wise at fault, and again requested a dismissal of the complaint; but the trial judge refused to decide then, and reserved his decision. The other defendant then gave evidence tending to prove, as was to be expected, that his servant was blameless, and that the man in charge of the electric vehicle was responsible for what occurred. At the close of the whole case the vehicle company's motion for a dismissal of the complaint was renewed, and again denied. The jury returned a verdict against both defendants, and the judgment upon the verdict was affirmed. I think, when the plaintiff failed, upon her proofs, to inculpate the defendant the electric vehicle transportation company as a joint tort feasor, the latter was entitled to a dismissal of the complaint as to itself. The failure to prove some concurrent act of negligence on its part entitled it to demand that of the court, and it could not lose the benefit of its exception to a refusal to dismiss the complaint by remaining in the case. There was no waiver of the exception, for the motion was renewed at the close of its proofs and at the close of all the evidence. It was entitled to a nonsuit, as a matter of right, and as though the case were one of a suit

brought against it alone. McMartin v. Taylor, 2 Barb. 356; Dominick v. Eacker, 3 Barb. 17. This decision will establish a rule whose operation must be that none of several defendants jointly sued in tort can ever obtain a dismissal of the complaint as against him, however insufficient the plaintiff's proofs to inculpate him. The complainant, therefore, in such a case, so far from incurring any risk, will probably always be benefited, by joining all parties concerned, whether capable of proving liability as to some, or not, for he may well indulge in the hope that, through some of the evidence adduced upon the trial by some one or more of the defendants, a case may be made out against all-a result obviously tending to make the payment of any recovery more secure.

HAIGHT, MARTIN, and WERNER, JJ., concur with VANN, J. PARKER, C. J., and O'BRIEN, J., concur with GRAY, J.

Judgment affirmed.

PEOPLE ex rel. MUTUAL TRUST CO. OF
WESTCHESTER COUNTY v. MIL-
LER, Comptroller.

(Court of Appeals of New York. Dec. 18, 1903.)

TAXATION-TRUST COMPANIES-CORPORATE

FRANCHISE.

1. Laws 1901, p. 316, c. 132, § 187a, as amended by chapter 535, p. 1320, provides for the taxation of every trust company organized in the state, and that it shall "pay to the state annually for the privilege of exercising its corporate franchise or carrying on business in such corporation or organized capacity an annual tax" of a certain amount. Held a tax on the privilege of exercising the corporate franchise, and measured by the value of the investment made in carrying on the corporate business.

2. The "annual" tax imposed "annually," as provided by Laws 1901, p. 316. c. 132, § 187a, as amended by chapter 535, p. 1320, means a tax imposed once a year, and computed by the year; and, where a trust company does not commence business until six days before the expiration of the tax year, it should be taxed according to the period during which the company exercised its corporate franchise.

Bartlett, J., dissenting.

Appeal from Supreme Court, Appellate Division, Third Department.

Certiorari by the people, on the relation of the Mutual Trust Company of Westchester County, to Nathan L. Miller, comptroller of the state of New York. From an order of the Appellate Division (83 N. Y. Supp. 185) affirming the determination of the defendant to refuse to revise a tax against the relator for the year ending June 30, 1901, relator appeals. Reversed.

Herbert Parsons, for appellant. John Cunneen, Atty. Gen. (William H. Wood, of counsel), for respondent.

VANN, J. The relator, a trust company with the powers which its name implies, was

organized on the 6th of June, 1901, and be gan to do business on the 24th of that month. Its capital was $300,000; its surplus, paid in with the capital, was $60,000; and it had no undivided profits when the question presented by this appeal arose. On the 30th of August, 1901, the Comptroller imposed a tax of $3,600 upon its capital and surplus, amounting to $360,000, which he declared was "for tax on franchise or business based on capital stock, surplus and undivided profits, per chapter 132, p. 316, Laws 1901, as amended by chapter 535, p. 1319, Laws 1901, for year ending June 30, 1901." The relator, after paying the tax under protest, applied to the Comptroller for a revision and readjustment, but the application was denied. A writ of certiorari, issued for a review of such determination, resulted in an order of the Appellate Division confirming it in all respects. From that order the relator appealed to this court.

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187a (Laws 1901, pp. 316, 1320, cc. 132, 535). Every company liable to pay a tax under this section is required to make a written report to the Comptroller, on or before August 1st in each year, "of its condition at the close of business on June thirtieth preceding, separately stating the amount of its capital stock, the amount of its surplus, and the amount of its undivided profits, and containing such other data, information or matter as the Comptroller may require." Upon the basis of this report, or if no report is made, or the one made is unsatisfactory, upon the facts discovered by the Comptroller through an examination which the statute authorizes, it is his duty to "order and state an account for the tax due the state," and to notify the corporation interested, which is required to pay the tax thus fixed on or before the 1st of September in each year, with a penalty of 5 per cent. for nonpayment within 30 days after it becomes due, and 1 per cent. for each month thereafter. At any time within one year after notice of the imposition of the tax, the Comptroller may revise his action, cor rect any error, and, if the tax has been paid. make the proper adjustment. The action of the Comptroller may be reviewed by certiorari, provided the amount of the tax is first deposited with the Treasurer of the state. Id. §§ 195-197 (Laws 1896, pp. 864, 865, c. 908).

The relator claims, among other things, that, as it had carried on business but six days before the fiscal year expired, the tax

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