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(4 Misc. Rep. 50.)

FAILING v. CITY OF SYRACUSE.

(Onondaga County Court. June, 1893.)

1. BRIDGES OVER CANALS-WAGES OF TENDERS-REGULATION BY STATE. Laws 1881, c. 488, § 1, provides that any town, village, or city may, at its own expense, build a bridge over a canal within its own limits, subject to the approval and under the direction of the state superintendent of public works. Section 2 provides that the superintendent of public works shall have sole power of appointing and removing the tenders of hoist, lift, and swing bridges, but their wages shall be paid by the town, village, or city to the superintendent, to be paid by him to them. Held, that bridge tenders are employes of the state, and their compensation may be determined by the legislature.

2. SAME-LIABILITY OF CITY.

The building of a bridge by a city, under such law, is an acceptance of its terms, whence arises a contract to pay the wages of the bridge tenders, and they may sue the city on its default in such payment.

Action by Failing against the city of Syracuse. Judgment for plaintiff.

M. J. Haven, for plaintiff.

Charles E. Ide, corp. counsel, for defendant.

NORTHRUP, J. The plaintiff, representing himself and 12 assignors, sues the city of Syracuse to recover a balance of 20 cents a day, for a given period, claimed to be due for services performed as bridge tenders on the hoist, lift, and swing bridges of the city during the year 1889. The legal questions raised are: (1) Are these bridge tenders employes of the state? If so, can they sue the city? (2) Are they employes of the city? If so, is the statute of 1889, (chapter 380,) fixing the wages of state employes, applicable, or, if applicable, is it constitutional?

Section 1, c. 488, Laws 1881, provides that any town, village, or city on the line of the navigable canals may build and maintain within its own limits a bridge such as may be deemed best, subject, however First, to the approval and consent, and under the direction, of the superintendent of public works; and subject, second, to the requirement that the same must be built at the proper cost and expense of such town, village, or city. By the terms of this section the town, village, or city may contract for and pay for the building of such bridges, and the laborers in such work would not be "state employes." Section 2 of the same act, being in relation to bridge tenders of hoist, lift, or swing bridges, declares that the superintendent of public works shall alone have the power of appointment and removal of such and so many of such bridge tenders as he may think proper, but the expenses or wages of such bridge tenders shall be paid to such superintendent of public works by any such town, village, or city when and as often as he may require, to be by him paid to such bridge tenders. By this section the superintendent of public works appoints and removes the employes. The power to do this carries with it, of necessity, or at least impliedly, the power to fix the wages. This appointing the employes

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and fixing their wages would, in the absence of any express provision to the contrary, make them the employes of the state. There is no contrary provision in the statute. Further, these wages are in fact to be paid by the superintendent or by the state, and the state is to be, in effect, reimbursed by the town, village, or city. In other words, the state appoints, and so hires, the bridge tenders, and the city furnishes the state the money to pay them with. The state is bound to take care of the canals,-their own property,-the bridges thereon included, and can only do so by having the power to hire men to do the work. It says to the city: "You may build hoist, swing, or lift bridges over our canals on condition that we still have control and supervision and power to take proper care of them; but you must pay us what cost we are put to by this additional burden on us." I think the most reasonable view of the case is that the bridge tenders are state employes, and not employes of the city. It was clearly competent for the legislature to fix the amount which should be paid to its own employes.

The further question is raised whether these state employes can sue the city for these wages, in case the city fails to advance the money as required by law. The law providing for the building of the bridges tendered by these men contained the provision that the city should pay the wages of the bridge tenders to the superintend ent of public works, who in turn was directed to pay the money over to the men. The building of the bridges, under this law, was an acceptance by the city of these terms, and thereby a contract arose to pay the wages as provided by these terms. There was, in law, a clear, definite promise on the part of the city to pay the superintendent of public works the wages of bridge tenders, for their benefit. This constituted the city the debtor of the bridge tenders, and they are entitled to sue the city on its promise. It was clearly the intent of the city to pay these men through the medium of the superintendent. Not only that, but it appears by the submitted facts that the city actually paid the men directly so far as they were paid, without the intervention or agency of the superintendent.

If these views are correct, these bridge tenders were employes of the state; the state had the constitutional right to fix their wages by statute; the statute fixing those wages at two dollars a day is ap plicable to this case; the city has contracted to pay the wages for the benefit of these men, and the plaintiff, as their assignee, may legally maintain this action for such wages against the city.

(3 Misc. Rep. 586.)
In re JONES' ESTATE.

In re WARBURTON.

(Surrogate's Court, Onondaga County. March, 1893.)

1. SURROGATES' COURTS-JURISDICTION.

Under Code Civil Proc. § 2472, empowering surrogates' courts to dlrect and control the conduct and settle the accounts of personal representatives, and enforce the distribution of decedent's estates, such courts

have power, in settling an executor's accounts and directing distribution, to pass on the validity of decedent's antenuptial contract, as affecting the widow's distributive rights.

2. HUSBAND AND WIFE-ANTENUPTIAL AGREEMENT-FRAUD.

A man of 70, worth more than $20,000, became engaged to his late wife's niece, a woman of 52. Before leaving home to be married, he had his attorney draw up an agreement, complete even to the date, by which the bride waived all widow's rights in his property, in consideration of the interest on $2,000 to be paid her during her life. This was signed by both parties the evening before the wedding, and given by the groom to the notary to acknowledge, already signed. He then put it in his pocket. The bride had not read it, as he afterwards admitted on several occasions, and he told her it was just to show to his sisters, to prove that she had not married him for his money. Held, that her subsequent knowledge of its contents, and unwilling belief that she was bound by it, did not dispel the suspicion attached to the execution, so as to support it as a valid contract.

Application by George A. Warburton for a judicial settlement of his accounts as administrator of William Jones, deceased.

Brooks & Walrath, for administrator.
Fuller & Glen, for contestant.

GLASS, S. This is a proceeding upon the petition of George A. Warburton, administrator of the estate of William Jones, for the final judicial settlement of his accounts, and for the distribution of the surplus of the estate among the persons entitled thereto. The intestate died on the 31st day of August, 1890, at Camillus, in this county, leaving, him surviving, no descendant nor parent, but leav ing, him surviving, Margaret A. Jones, his widow, and two sisters, residing in this county, and three nephews and a niece, children of a deceased sister, residing in England, his only next of kin, all of whom are parties to this proceeding. In the account filed the administrator charges himself with the sum of $23,954.66 in cash and good securities, and credits himself with having paid out for debts, taxes, funeral expenses, and expenses of administration the sum of $1,317.72, and also with having invested the sum of $2,000 in a certain bond and mortgage to secure the payment of an annuity to the widow in supposed pursuance of the terms of an antenuptial agreement hereinafter referred to. The administrator, in his petition, which is the basis of this proceeding, among other things, alleged:

"That said decedent, William Jones, in contemplation of his marriage with his said surviving widow, Margaret A. Jones, entered into an antenuptial bond, duly sealed and acknowledged by them, under and by the terms of which said widow was to receive, after the death of said William Jones, from his estate, in case she survived him, interest of $2,000, payable annually in lieu of all right of dower or interest in said decedent's personal estate, which said bond is hereby referred to and made a part of this petition."

Upon the return of the citation, the widow appeared specially, objecting to the distribution of the estate in this proceeding, principally because the alleged antenuptial bond was void for want of due execution, and because of the practice of fraud upon her at the time of its execution, and alleging that she had commenced an

action to set aside the said agreement, and to have the same declared null and void, and asking for a postponement of this proceeding until the determination of an action which she had commenced in the supreme court to have said bond declared null and void. Such postponement was made for some months, but it appears that the supreme court action was subsequently discontinued, and the widow appeared generally in this proceeding by her at torneys, and filed an answer raising objections to sundry items of the account, and, among others, to the above-mentioned item of $2,000, invested for the benefit of the widow, and alleging the invalidity of the said antenuptial agreement, because, among other things, of fraudulent misrepresentation and concealment of its contents practiced upon her by the intestate at the time she signed it. Upon the hearing, no objections raised by the widow's answer were pressed, except those relating to the validity of the antenuptial agreement, which would necessarily include the $2,000 item above referred to. A considerable amount of testimony was taken upon that issue, and at its close the petitioner's counsel raised the ob jection that this court had no jurisdiction to determine as to the validity or invalidity of the antenuptial agreement in question; so that, practically, the principal questions now to be decided are: First. Has this court jurisdiction in this matter to adjudicate as to the validity of the antenuptial agreement? Second. Is the antenuptial agreement valid and binding upon the widow, so as to cut her off from what would otherwise be her distributive share of the estate?

The question raised as to jurisdiction is a serious and perplexing one. If this court has the power in this proceeding to determine as to the validity of the agreement in question, it is a power implied from and incidental to the authority conferred by section 2472 of the Code of Civil Procedure upon the surrogates' courts, "to direct and control the conduct and settle the accounts of executors, administrators, and testamentary trustees;" "to enforce the distribution of the estates of decedents." That this section of the Code confers power upon surrogates' courts in a proceeding having for its object the settlement of an executor's accounts, and the obtaining of a decree directing the distribution of a fund in his hands, when all the parties in interest are present, to construe the provisions of a will, and determine their meaning and validity, whenever necessary in order to make the decree as to distribution, is now settled beyond all question. Garlock v. Vandevort, 128 N. Y. 374, 28 N. E. Rep. 599; Riggs v. Cragg, 89 N. Y. 480. And if the provisions of a will may be construed, and their validity determined, by the surrogate's court, why, upon principle and by analogy, may not a like jurisdiction extend to the construction or determination as to the validity of an agreement made by the decedent, and the person who is to become his wife, and possibly his widow, signed by the decedent himself, made in contemplation of his death, whose very subject-matter is the distribution of his property after his death? The similarity in these respects between an antenuptial agreement and a

will seems to suggest a reason why the numerous cases cited by the petitioner's counsel holding that the surrogate's court has no power to determine as to the validity of a release by a legatee or next of kin to the executor or administrator, or of an assignment of a legacy or distributive share to a third party, may not be applicable to the present case. In all of those cases, as I remember, the instrument, agreement, or deed whose validity the surrogate was held to have no power to determine was one made, not by the testator in contemplation of the future distribution of his property, but by other persons, after his death. But whatever doubts I should otherwise have as to my jurisdiction to adjudicate upon the validity of the instrument in question, the case of Pierce v. Pierce, 71 N. Y. 154, seems to be decisive upon the question, and seems to leave no way open but for me to hold that this court has jurisdiction in this proceeding to determine as to the validity of the instrument in question. That was a proceeding precisely like this, before the surrogate of Delaware county. Upon the final accounting of the administratrix of one Pierce, the validity of an antenuptial agreement made by the intestate with his intended wife was in question before the surrogate. The widow, upon the accounting, maintained that the agreement was void for fraud practiced upon her which induced her to sign it. The surrogate held the agreement to be valid and in full force, and that for that reason she was not entitled to a share as his widow in the distribution of his estate, and only allowed her the amount named in the agreement. The general term of the supreme court, upon appeal, held that the agreement was invalid, by reason of the fraud perpetrated upon the wife, and modified the decree of the surrogate accordingly, and allowed to the widow her distributive share of the estate, and the judgment of the general term was affirmed by the court of appeals. It seems to follow as a necessary and logical conclusion that the court of appeals must have considered that the surrogate had the jurisdiction, when the proceeding was before him, to make the same determination in the case which the supreme court made upon appeal to it. I do not feel at liberty to disregard the authority of the case of Pierce v. Pierce, and therefore hold that this court has jurisdiction in this proceeding to determine as to the validity of the agreement in question.

The agreement substantially provided that, in consideration of the payment of the interest on $2,000 annually during her life to the intended wife, she relinquished all dower and all interest in the personal property of her intended husband in case she survived him. The intestate was at the time of the marriage worth at least $20,000, and she thought him worth, as she swears in answer to the question of the petitioner's counsel, $40,000. She was at the time 52 years of age, and he was 70. She was a niece of his first wife, who died in 1869. She had known him as her uncle by marriage for 40 years or more, and during her aunt's lifetime was accustomed to visit in the family about once in two years, and stay a month or so at a time, but from 1872 to 1885 it appears her visits ceased entirely. In the fall of the latter year she made a visit of a

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