This case is an appeal from the decree of the surrogate's court of Rockland county admitting to probate a paper purporting to be the will of Edward D. Hesdra, proposed by Millard F. Onderdonk, who was named as executor therein. The will was contested by Amanda Tordoff, who claimed to be the next of kin, by one Estelle Hesdra, an alleged heir, and by the attorney general for the state, claiming that the deceased had died without heirs. The contestant Tordoff appealed.

Argued before BARNARD, P. J., and PRATT and DYKMAN, JJ.

B. F. Tracy, for appellant. D. G. Griffin, for the attorney general. Garrett Z. Snider, for proponent.

BARNARD, P. J. The evidence is voluminous, but the issue finally depends upon the genuineness of the signature of the testator and the witness Frothingham. Edward D. Hesdra, a resident of Rockland county, died in July, 1884. The proposed will was made September 11, 1883. The will was drawn by one John V. Onderdonk, and he is one of the witnesses. The will so entirely accords with the surroundings of the testator that no reasonable hypothesis can be entertained that the will was the invention of John V. Onderdonk; and this view of the case is met by proof that the will was drawn in accordance with the directions of testator, but that it was never signed by him. Proof is given tending to show that John V. Onderdonk so stated the fact to be. This proof is so entirely unnatural that no great weight can be placed upon it. Assuming a man bad enough to forge a will, it is quite incredible that he would have acknowledged the fact. The evidence of his daughter and her husband is also subject to criticism, because it appears that they were not friendly with John V. Onderdonk, and had a suit pending against him, in which serious charges of dishonesty were made both against John V. Onderdonk and his son, the proponent of the will, and the executor named therein. There is something to be accounted for which is more troublesome than that which bears upon the alleged forgery of the will. John V. Onderdonk was an old man, with little business. He had been a builder in his early years. He had been and was friendly with testator until his death. He survived the testator over two years. No steps were taken to prove the will, although he knew that he was dead, and he repeatedly said there was no will; and on one examination upon a contest for administration, in July, 1885, John V. Onderdonk testified that there was no will, or so testified that no other inference was possible if he had been a truthful witness. What explanation is there for this? It must be stated in the outset that John V. Onderdonk takes nothing under the will. His son is executor, and it has given him 10 years to close up the estate, and provided that he should give no bonds. These facts were not sufficient inducements to have John V. Önderdonk act towards proving the will in his life-time, and he lived until February, 1887. Notwithstanding all arguments based upon the evidence given on the trial, the decision that the will is genuine seemed to be well supported. The will must have been the work of the testator so far as respects the terms. No one, much less an inexperienced man, could have invented a will to fit so entirely the family and creed of testator. The signature of Frothingham is proven by members of his family. He was a small dealer in painters' supplies, who had his store near Onderdonk's, and with whom Onderdonk was friendly. Frothingham is dead. This witness is one who would be likely to be called as such by Onderdonk and testator. There is no motive for the forgery by Onderdonk. If it was done to injure any one, the injury does not appear. A Mrs. Tordoff sought to be administratrix upon the basis of intestacy. If the design was to injure her, she and her family got a large share in the estate under the will. Finally, the will and the signature both of testator and Frothingham are produced, and from an examination of them it is evident that the signatures are genuine as to both of these parties. They

are easy, natural, and entirely resemble the admittedly genuine signatures. The proof of the genuineness of the signatures is so strong that no case is made out for issues to be sent to a jury. The most probable explanation of the difficulties of this case seems to be that John V. Onderdonk had some motive for a failure to produce and prove the will. That is not disclosed by the evidence, but his evasive and guarded answers on the administration proceedings seem to warrant such an inference. He was guardian of Mrs. Tordoff's children. If the will was executed, it can be proved against the testimony of the witnesses. In re Cottrell, 95 N. Y 329.

The admission of evidence of declarations of John V. Onderdonk to the effect that testator had made a will, in reply to such admissions that he had not, if erroneous, have no sufficient effect in the case to reverse the judgment for that reason. The decree of the surrogate should therefore be affirmed, with costs to all parties out of the estate.

DYKMAN, J., concurs.

PRATT, J., (dissenting.) This is an appeal from a decree of the surrogate of Rockland admitting to probate the will of Edward D. Hesdra. The learned surrogate has written an able opinion, reviewing at length the evidence, and giving strong reasons for the decision he has rendered, and the counsel upon both sides have fully discussed the facts and circumstances of the case; so that, in the view we take of the case, a further discussion of the facts seems unnecessary. It is a case involving such a multitude of facts, and the credibility and motives of so many witnesses, that it ought to be submitted to the determination of a jury. The rule is that the proponents of a will, in order to secure its probate, must make satisfactory and convincing proof of the factum of the alleged will; and, if the proof comes short of conviction, the paper offered may not be admitted to probate. If the matter is left in doubt, it is proper to send the case to a jury for investigation. We are not unmindful that there are many facts indicating a due execution of this will; yet, taking all the evidence into consideration, while we are not convinced to the contrary, we cannot say the question is not left somewhat in doubt and uncertainty. Much of the testimony is such that the appearance and manner of the witnesses upon the stand becomes an important factor in considering questions of credibility; and, although the surrogate had this opportunity, yet the verdict of a jury might be more instructive to the conscience of the court than the finding of the surrogate. It is not necessary, in this view of the case, to examine the rulings of the surrogate upon the trial, or discuss the questions of law raised by the respective counsel. Decree should be reversed, and trial ordered at circuit before a jury, upon issues to be framed.

STERLING V. METROPOLITAN LIFE INS. Co.

(Supreme Court, General Term, Second Department. June 25, 1888.) INSURANCE-AGENTS-ACTION FOR COMMISSIONS-SUFFICIENCY OF EVIDENCE.

Plaintiff agreed to solicit insurance on commission, with additional commissions on renewal of policies secured by him. Defendant reserved the right to discharge plaintiff for any malpractice, in which case he should forfeit such additional commissions. Plaintiff, having been discharged for failure to forward premiums, testified, in an action for such additional commissions, that he had taken notes for the premiums under directions of defendant's vice-president, which the latter denied having given. A witness testified that plaintiff said he was foolish to take the course he did. Held that, on such conflicting evidence, a verdict for plaintiff

would not be disturbed.

Appeal from circuit court, Kings county.

Action by Sherwood Sterling against the Metropolitan Life Insurance Company to recover commissions on policy renewals. Judgment for plaintiff, and defendant appeals.

Argued before LEARNED, P. J., and PRATT, J. Arnoux, Ritch & Woodford, for appellant, L. A. Fuller, for respondent. BARNARD, P. J. The facts of this case are very simple, and are generally admitted. The case turns upon one disputed question only. On the 13th of September, 1872, the plaintiff and defendant entered into an agreement in writing by which the plaintiff was to solicit applications for insurance in defendant's company. The rate of compensation was by commissions upon the amounts, and varying with the length of time which the policies were to run. The employment continued until the 28th of January, 1875, when it was terminated by the defendant. The contract provided that it should continue during the good behavior of the plaintiff, and that the defendant, for the plaintiff's default or neglect, might terminate the contract upon a notice of 30 days, and for his malpractice the defendant could terminate it at once. The contract further provided that, in addition to the commissions upon the procurement of the policies, the plaintiff was to be entitled to a commission upon the renewal of all the policies "developed by him under the contract" for a term of 10 years after the contract ended, as provided in the contract. The contract provided that, upon a discharge for malpractices, “all business developed under this contract shall be thereupon forfeited." The defendant avers a discharge of the plaintiff for malpractice, and this is the only issue in the case. The contract, the performance under it, the averment of his commission, if he be entitled to any, are all uncontradicted. The question litigated as to malpractice is again simplified by many undisputed facts, so as to finally leave one fact only upon which it depends. The plaintiff did not forward the moneys received for policies and renewal premiums, as he should have done by the defendant's instruction; but he says these were waived by the company, and thus the question is solely whether this is so or not. Upon this question there are but two witnesses, the plaintiff and the defendant's vice-president. It is proven that the defendant sued the plaintiff and his sureties for a balance of money unpaid, and recovered a judgment which was paid. The plaintiff's case depends upon the fact whether the defendant consented that he might take notes for the premiums, instead of cash. He testified that, owing to the tightness of money and to effects of the panic in 1874, he told the defendant's vice-president, Mr. Hegeman, that, to keep the business together, it was necessary to take notes for the premiums; that Hegeman replied, "Get them in as fast as you can." The plaintiff held about $3,500 of these notes when he was discharged, and there was less than this sum due the company by the commission due plaintiff. Hegeman denies the conversation, and all its parts. A witness, Bendsly, states that plaintiff said he was foolish to take the course he did, and this completes the evidence upon the issue. The plaintiff's conduct is in many respects as consistent with his views of the case as they are with the defendant's theory of it. The authority of the plaintiff, and the real truth of the matter, are more likely to be determined correctly by the trial than by an appellate court. The legal rule is ir conformity with this, that a fairly debatable question of fact will not be reversed on appeal. Judgment affirmed, with costs.

PRATT, J., (concurring.) There being no contention as to the proof or amount of plaintiff's claim, it is only necessary to consider the defenses set up in the answer. As to the defense of "compromise and satisfaction." Defendants sued plaintiff for what he owed them when he quit work. Accord ing to the statement prepared by their accountant, the debt on September 16, 1887, amounted to $2,846.18. That amount was paid in full by him or his sureties, without abatement or compromise. After that settlement, Sterling asked defendants "to allow something for his business" towards payment of the note already given by his bondsman, which defendant refused to do.

That refusal was not a compromise nor a settlement. That defense is not sustained. As to the other defense pleaded, viz., a fraudulent detaining by plaintiff of upwards of $2,800 of defendant's money, collected by him as agent. The evidence shows that, to help along the business, Sterling had taken $3,500 of notes in cases where the policy-holders were unable to pay cash. By so doing, he had got in arrears to the company, which refused to accept from him anything but money to the amount of $2,800. But the figures, far from establishing that Sterling had detained defendants' money, seem to show that he had paid over to them more cash than he had collected; for while but $2,846 in arrear, he had in hand $3,500 of notes thus received. The second defense, therefore, is not established. It is suggested that failure to send on the notes was a breach of duty. A sufficient answer is that no such breach of duty is pleaded. Another is that the company refused to receive anything from him for premiums except cash. There is some dispute in the evidence as to whether Hegeman instructed Sterling to accept notes instead of cash. That question does not seem to be important. There is no defense pleaded that he violated duty in taking notes instead of money. Moreover, were there such a plea, acquiescence in his custem for several months would probably be equivalent in law to express instructions. It may be observed that, while the specific instructions and conversations testified to by Sterling are contradicted, it is not denied that the company had knowledge of his custom, nor is any objection to it shown. Suggestion is now made that the plaintiff's evidence as to receiving notes is an after-thought. But the history of the trial gives no support to the suggestion. Plaintiff was not cross-examined upon the matter, and his efforts to give full details were successfully resisted. Defendants cannot be heard to complain of a meagerness of proof caused by their own objection. But the proof is not defective. The details of the notes would have made no difference in the legal effect of the evidence. It would have merely given facilities for a cross-examination that was not desired. The apparent explanation is that defendants were already well informed as to the notes, regarded the fact as unfavorable to them, and excluded the evidence so far as in their power. It is argued that plaintiff has misconceived his remedy; that he should have sued for damages for a wrongful discharge. He was not restricted to that remedy. He might well prefer an action in which the amount of his recovery would depend upon figures, and not upon estimates and opinions. The judgment should be affirmed, with costs.

(49 Hun, 262)

TERRILL V. WHEELER et al.

(Supreme Court, General Term, Second Department. June 25, 1888.) CONSTITUTIONAL LAW-Delegation of LEGISLATIVE POWERS-TAXATION.

Laws N. Y. 1883, c. 114, conferring on the board of assessors of the city of Brooklyn, such board being a city agency in respect to taxation, power and authority to determine what proportion of the taxes, assessments, etc., assessed on any lands therein prior to July 1, 1882, and in arrear, should be justly and fairly charged against and presently collected from said lands, and making their determination a valid tax and lien thereon, in lieu of said arrearages, is constitutional. The arrear, thus ascertained, not being a new tax, but an abatement of the old, the objection that the legislature cannot delegate the power of taxation, within an incorporated city, to a commission newly created by itself, is irrelevant.

On exceptions from circuit court, Kings county; CULLEN, Justice. Action by Lucy Maria Terrell against Nancy B. Wheeler and others to recover the possession of a lot or parcel of land situate in the city of Brooklyn, sold for taxes assessed in lieu of arrearages of taxes thereon, under chapter 114, Laws N. Y. 1883, and bought by plaintiff, and, not having been redeemed within one year, conveyed to her by the registrar of arrears of said city. The act of March 16, 1883, (chapter 114, Laws N. Y. 1883,) entitled

"An act concerning the settlement and collection of arrearages of unpaid taxes, assessments, and water-rates in the city of Brooklyn, and imposing and levying a tax, assessment, and lien in lieu and instead of such arrearages, and to enforce the payment thereof," provides that "whereas, arrears of unpaid taxes, assessments, and water-rates in the city of Brooklyn have accumulated to an amount exceeding ten millions of dollars, and in some instances said arrears exceed in amount the assessed value of the lands affected thereby; and whereas, the validity of some of such unpaid taxes, assessments, and water-rates has been or may be called in question by reason of some irregularity, omission, or defect in the procedure instituting, laying, or imposing the same; and whereas, the city of Brooklyn has issued and sold its tax certificates, to a large amount, on account of the arrears of unpaid taxes, and has issued and sold its bonds for the money paid for the improvements for which the assessments so in arrears were imposed, and the said improvements have been completed, and the property assessed therefor has been benefited thereby; now, therefore, the people of the state of New York, represented in senate and assembly, do enact as follows: Section 1. The board of assessors of the city of Brooklyn shall have power and jurisdiction, and they are hereby directed and required, in all cases where any tax, assessment, or water-rate levied or imposed, or attempted to be levied or imposed, on any land in said city prior to the 1st day of July, 1882, remains unpaid and in arrears, except as is hereinafter otherwise provided, to examine into, and fix, adjust, and determine, as to each parcel of land, how much of said arrearages ought, in the way of tax, assessment, and water-rate, in fairness and justice now presently to be laid, assessed, and charged against and actually collected from said land, by reason of any and all the matters and things covered or attempted or intended to be covered, or done or attempted or intended to be done, in the laying and assessing the said taxes, assessments, or water-rates so in arrears as aforesaid; and the said board, in dealing with said arrearages as matters of fact, according to their judgment of what shall be fair and just, as herein before directed, shall treat the same without regard to any supposed want of jurisdiction, irregularity, or defect in any of the proceedings had for the levying, imposing, or confirming any of said taxes, assessments, or water-rates so in arrears. * * * Sec. 2. The said board shall keep a record of their proceedings under this act, in which shall be entered their determination as to the amount to be charged and assessed upon and against each parcel of land as aforesaid, designating the same by the block and lot numbers on the assessment maps in their office, and shall certify, under the signatures of a majority of said board, the said amount to the registrar of arrears and to the comptroller of the said city, and their determination in respect thereof shall be final and conclusive upon all persons owning or having any interest in or lien upon said lands, and against all persons whomsoever, and the amount so fixed, determined, and certified by them in each case shall thereupon become and be a valid and binding tax, assessment, and lien on the lands so designated, in lieu and instead of all outstanding claims of the city of Brooklyn for arrearages of taxes, assessments, or water-rates levied or confirmed, or attempted to be levied or confirmed, prior to the said 1st day of July, 1882, and shall be a valid lien on said lands, having priority over all other liens, claims, or demands whatsoever, except taxes, water-rates, or assessments levied after said date; and the proceeds thereof, when collected, shall be applied to the payment of the expenses of carrying out the provisions of this act, and to the discharge of any of the cbligations of the city of Brooklyn arising upon tax certificates, and bonds and certificates issued on account of local improvements, and bonds issued to meet deficiencies on such bonds or certificates." The trial resulted in a verdict for plaintiff by direction of the court. Defendant took exceptions to the general term, alleging that the act was unconstitutional.