representations of the defendant; and that such men were interested and partial appraisers for the defendant, and unjust and unfair towards the plaintiff; also that the said Walsh and McCann acted and made the said appraisement without any notice to the appraiser he had selected, and would not permit the latter to take any part in making such appraisal. The complaint then charged that no part of such loss had been paid, and that the defendant was indebted to him upon such policy in the sum of $1,000, with interest from September 15, 1900. It then proceeded to demand judgment against the defendant; that the award be set aside, and adjudged to be void; and that the plaintiff recover from the defendant the sum of $1,000 and interest, as above claimed, with the costs of the action; and for such further relief, etc., as the court should deem just and equitable. The answer raises an issue over all the allegations tending to show that the award made by such appraisers was invalid, but denies none of the other allegations set forth in the complaint. It also pleaded that the plaintiff had an adequate remedy at law. The case came on for trial at a trial term. Facts showing the liability of the defendant to pay under the policy such damages as the plaintiff had actually sustained by the fire were either proven or admitted. Evidence also was given upon both sides as to the actual loss so sustained. At the close of the trial the.defendant moved for a nonsuit on the grounds, among others, that facts had not been proven sufficient to constitute a cause of action. Also that the plaintiff had an adequate remedy at law. The motion was denied, and upon the suggestion of the court that, "if this award stands, why, then, it stands as against the plaintiff, and, if it fails, then the only question is whether they should have $742.64 or $1,000," the case was withdrawn from the jury, and left to the decision of the trial judge. Subsequently he made and filed a decision, wherein he found the execution of the policy, the loss by the fire, and, substantially, that the plaintiff had performed all the conditions and requirements of the policy on his part. He also found that the parties entered into the agreement that the damages sustained by the plaintiff be submitted to appraisers, as required by such policy; that the appraisers and umpire under such agreement were duly named; and that the award made under such submission was a valid and binding one upon both parties. In short, he found in favor of the defendant as to the validity of the award, but against the defendant upon all other questions affecting its liability to pay the damages sustained. He further found that the plaintiff had a complete and adequate remedy at law. He then found, as a conclusion of law, that the plaintiff was not entitled to equitable relief in this action, and that his complaint be dismissed, with costs, and ordered judgment accordingly. From the judgment so entered this appeal is taken. This decision seems to have been made upon the theory that this action is one brought by the plaintiff in equity to set aside the award, so that he might thereafter recover against the defendant upon the policy for the full amount of the damages sustained; and that, because he had failed to sustain his claim that the award was invalid, and 112 New York State Reporter his complaint must be dismissed. The idea seems to have been that, because the facts did not warrant a vacation of the award, the plaintiff could have sued on the policy, and in that action at law obtained all that he was entitled to. In this, I think, the learned trial court erred. The action is one upon the policy to recover the full amount specified therein, viz., $1,000, and the claim is that, the full damages sustained being more than $1,000, such amount was due and owing to the plaintiff. But the appraisers selected under the policy having fixed such damages at the sum of $742.64, the defendant might have pleaded that award as a bar to recovering such full amount. See Sullivan v. Traders' Ins. Co., 169 N. Y. 213, 62 N. E. 146. The plaintiff, therefore, set forth in the complaint facts showing why such award should be adjudged void, and therefore no bar to his recovering the amount he claimed. The prayer to have such award vacated undoubtedly was in the nature of an equitable claim, but still the right to recover at all was upon the policy, and the action itself may well be deemed an action at law, and the equitable relief asked as a mere incident to it. But it is not of much importance whether the action be deemed one at law or one in equity, for beyond all doubt, from the facts alleged in the complaint, a judgment for the amount due upon the policy should be awarded. It is a familiar rule that when equity acquires jurisdiction of a matter it will render complete justice between the parties, even though it requires a personal judgment to accomplish it. Murtha v. Curley, 90 N. Y. 372; Valentine v. Richardt, 126 N. Y. 272, 277, 27 N. E. 255. In the case at bar all the issues were submitted to the court. All the facts necessary to sustain the plaintiff's claim for the full amount of his damages being averred in the complaint, and having been actually litigated upon the trial, the court should have awarded a personal judgment against the defendant for the amount appearing to be due. Whether it be deemed a legal or an equitable action, it is clear that such a judgment against the defendant would have been one consistent with the case set forth in the complaint and embraced within the issues, and therefore such a one should have been granted. Bell v. Merrifield, 109 N. Y. 202, 207, 16 N. E. 55, 4 Am. St. Rep. 436; Code. Civ. Proc. § 1207. This method of bringing an action to vacate the award and recover the full amount of the damages sustained is not an unusual one. See Kaiser v. Hamburg-Bremen Fire Ins. Co., 59 App. Div. 525, 69 N. Y. Supp. 344; Bradshaw v. Agricultural Ins. Co., 137 N. Y. 137, 140, 32 N. E. 1055. And in all of such cases, the court has decided as to the validity of the award, and rendered a judgment for damages accordingly. In this case the trial judge has found that the award was a valid one, and should be sustained. With that finding I am not disposed to disagree. It might very well be so concluded from the evidence before him. But in the conclusion that the complaint must therefore be dismissed I do not concur. The plaintiff was still entitled to recover for the damages actually sustained, and his action was clearly one for that purpose. least, a judgment for such damages was clearly consistent with the cause of action set up in the complaint and embraced within the issues tried; and such seems to have been the theory upon which the case was taken from the jury and submitted to the court. After determining that the award was a valid one, and was binding upon both parties, the decision goes further, and finds that the amount of loss sustained by the defendant on account of the fire was the sum of $742.64, being the same amount as the award. On these facts the plaintiff was entitled to a judgment for that amount, and it was therefore error to dismiss his complaint. The judgment must be reversed, and a new trial granted; costs tc the appellant to abide the event. All concur. In re GOELET'S ESTATE. (Surrogate's Court, New York County. July 18, 1901.) 1. COLLATERAL INHERITANCE TAX-FUTURE ESTATES. Laws 1896, c. 908, § 230, as amended by Laws 1897, c. 284, in existence at death of a testator leaving property in trust for his son, with direction that it be paid on the son's reaching majority, provided that contingent estates in expectancy should be appraised, for purposes of the inheritance tax, at their full value when the person entitled thereto should come into the beneficial enjoyment thereof, without diminution on account of any valuation theretofore made of the particular estate. Laws 1899, c. 76, required the immediate assessment and payment of the tax upon contingent interests. Held, that the former act determined the amount of collateral inheritance tax to be paid on the son's coming into possession, notwithstanding the amendment of 1899. In the matter of the estate of Ogden Goelet. Proceeding for assessing the collateral inheritance tax. FITZGERALD, S. The testator died in August, 1897, leaving a will by which he gave one-half of his residuary estate in trust for the benefit of his son, Robert, directing his executor to pay to him, upon attaining majority, his share in the residuary estate. In the proceeding heretofore had for the purpose of assessing the transfer tax, the appraiser fixed the value of the taxable interest of the said legatee in the sum of $500,000 for the period intervening between the death of the testator and his majority. In the appraiser's report the value of the remainder interest, as shown by the certificate of the insurance department, which was attached to said report, was $399,675. The appraiser reported that the said remainder, as well as other interests of a similar character passing by the will, were not then taxable, as it was not then ascertainable to whom said interests would finally pass. An order was entered on such report, fixing the tax, and providing "that the matter of fixing the tax, on the interests or shares in remainder passing under said will which may be subject to taxation under the said act, be, and the same is hereby, reserved until it is ascertainable to whom the interests of shares in remainder will finally pass." The legatec attained the age of 21 years in January, 1901, when the said and 112 New York State Reporter sum of $500,000 became payable, as directed by the will. The executor asks that the court make an order fixing the tax upon the interest in remainder in said sum at the value ascertained by the appraiser, as above stated. An order is submitted which assesses the tax upon the value of the remainder interest as fixed by the appraiser's report. By the laws in existence at the date of the death of the decedent (section 230, c. 908, Laws 1896, as amended by chapter 284, Laws 1897), "estates in expectancy, which are contingent or defeasible, shall be appraised at their full, undiminished value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof, without diminution for or on account of any valuation theretofore made of the particular estates for purposes of taxation, upon which said estates in expectancy may have been limited." Chapter 76 of the Laws of 1899, which became a law March 14th of that year, in amending section 230, omitted the clause quoted, and provided for the immediate assessment and payment of the tax upon contingent interests. The taxability of the interests passing under the will is determined by the law in existence at the date of the transfer of title, and this is so notwithstanding the alteration of the law effected by the subsequent statute. In re Miller's Estate, 110 N. Y. 216, 18 N. E. 139; People v. O'Brien, III N. Y. 1, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684; Sherrill v. Christ Church, 121 N. Y. 701, 25 N. E. 50; In re Van Kleeck, Id.; Reid v. Board, 128 N. Y. 373, 28 N. E. 367; Quinlan v. Welch, 141 N. Y. 158, 36 N. E. 12; In re Fayerweather, 143 N. Y. 114, 38 N. È. 278; In re Roosevelt's Estate, 143 N. Y. 120, 38 N. E. 281, 25 L. R. A. 695; In re Davis' Estate, 149 N. Y. 539, 44 N. E. 185; In re Milne, 76 Hun, 328, 27 N. Y. Supp. 727; In re Moore's Estate, 90 Hun, 162, 35 N. Y. Supp. 782. The value of the estate now transferred by the executor to the legatee must be assessed at the value of the principal fund, undiminished by the value of the estate during the minority of the legatee, heretofore assessed for the purpose of taxation. (75 App. Div. 258.) JAGER v. CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. October 3, 1902.) 1. APPEAL-DETERMINATION OF CAUSE-INCREASING AMOUNT OF RECOVERY. In a suit for past damages and for an injunction, where the trial court permitted plaintiff, against defendant's objection, to establish his damage by improper proof, the appellate court could not, on plaintiff's appeal, increase the award, though defendant by not appealing acquiesced in the manner of proof. 2. INJUNCTION-IMPROPER BASIS OF DAMAGES-EFFECT. Damages established by an improper basis cannot be made the foundation for injunctive relief. Appeal from special term, Kings county. Action by Lear Jager, Jr., against the city of New York. Judgment for plaintiff granting insufficient relief (72 N. Y. Supp. 131), and he appeals. Modified and affirmed. Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ. Charles Coleman Miller, for appellant. R. Percy Chittenden (James McKeen, on the brief), for respondent. HIRSCHBERG, J. The plaintiff sues for past damages and a permanent injunction restraining the operation of the defendant's pumps and driven wells. The case was tried before the decision by this court in the case of Reisert v. City of New York, 69 App. Div. 302, 74 N. Y. Supp. 673, and the learned trial justice permitted the plaintiff, against the defendant's objection, to establish his damages by proof of the injury inflicted on his crops, and the loss of profits thereby occasioned. The defendant, by not appealing, has acquiesced in the result, but the plaintiff on this appeal insists that the amount of damages found by the court is inadequate, and asks that such amount should be increased here, and judgment directed accordingly. He does not ask for a new trial on which the rule of diminution of rental value would be applied as the measure of damages in accordance with the determination in the Reisert Case, supra. The evidence taken is quite voluminous, and the court below has been evidently influenced to some extent by the appearance and demeanor of the witnesses in making the assessment of damages. Assuming that the figure reached is not as high as the evidence taken would warrant, but without expressing any opinion on that subject, I do not think it would be just under the circumstances for an appellate court to increase the amount of an award which is based on erroneous principles. There is no proof in the case of the effect, if any, which the defendant's trespass has had upon the plaintiff's property in respect of rental value, and the recovery in question may be largely in excess of what the plaintiff would be entitled to recover under the correct rule of damages. Notwithstanding the decision is in the short form authorized by section 1022 of the Code of Civil Procedure, it is not within the province of this court to reassess the damages upon dis 1. See Appeal and Error, vol. 3, Cent. Dig. § 4506. 78 N.Y.S.-4 |