(51 Misc. Rep. 661)

In re ZERWINSKI'S ESTATE.

(Surrogate's Court, Kings County. September, 1906.) ADMINISTRATORS-LETTERS OF ADMINISTRATION-DIFFERENT NAMES FOR DECE

DENT.

An application for letters of administration on the estate of "Morris Zerwinski, deceased," on the ground that the widow, who was entitled to a prior right, had not made application, was properly denied, where it appeared that she had obtained letters of administration on the estate of decedent under the name of "Morris Siriski."

Application for letters of administration on the estate of Morris Zerwinski, deceased. Denied.

CHURCH, S. This application for letters of administration is made on the ground that the widow, who is entitled to prior right, has not made application; but the widow appears and shows that, previous to this application, she had obtained letters of administration on the estate of the deceased, under the name of "Morris Siriski." As there is no question that these two applications relate to the same person, it follows, of course, that the present one must be denied. As it appears that one, if not both, of these parties has spelled the name of the deceased improperly, the confusion which has resulted emphasizes the necessity of care and circumspection in correctly setting forth the names of parties; and, if there is any doubt as to whether the letters which have been issued bear the proper name, a proceeding should be instituted to amend them, in order to prevent further confusion.

(51-Misc. Rep. 662)

In re BURNS et al.

(Surrogate's Court, Kings County. October, 1906.) GUARDIAN AND WARD-APPOINTMENT UNDER MISREPRESENTATION-REVOCA

TION.

Where letters of guardianship are issued upon false representations, and it appears from the true statement of the facts that the Surrogate's Court would not have jurisdiction of the matter under any circumstances, the letters should be revoked, and the guardian directed to account.

[Ed. Note. For cases in point, see Cent. Dig. vol. 25, Guardian and Ward, 88 71, 78.]

In the matter of the guardianship of Guy Burns and another, infants. George H. Alexander, for petitioner.

John S. Bennett, for general guardian.

CHURCH, S. It appears that the letters of guardianship were issued upon a false representation of the facts. This, of itself, would be sufficient to revoke such letters; but, in addition, it is apparent from a true statement of the facts that this court would not have any jurisdiction under any circumstances.

and 136 New York State Reporter

It follows, therefore, that the letters in question should be revoked, and the guardian, who has been thus improperly appointed, directed to

account.

(51 Misc. Rep. 662)

In re FLEMING'S ESTATE.

(Surrogate's Court, Kings County. October, 1906.)

1. LIFE ESTATES-RIGHTS OF LIFE TENANT-SECURITY.

Where a will gives property to one for life, with remainder over, the life tenant is entitled to the possession of the property on giving a bond satisfactory to the remainderman for his proper conduct.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Life Estates, § 18; vol. 22, Executors and Administrators, § 1217.]

2. EXECUTORS-COMMISSIONS.

Where a will gave property to one for life, with remainder over, the executors were entitled to their commissions on the property, whether the same was reduced to cash or not.

[Ed. Note.

For cases in point, see Cent. Dig. vol. 22, Executors and Administrators, § 2102.]

In the matter of the judicial settlement of the estate of Emmagene Fleming, deceased. Decree ordered.

Coleman E. Kissam, for petitioner.

William R. Barricklo, for Clapp and others.

CHURCH, S. By the second codicil of the will in question a life interest in the property mentioned was given directly to the husband, subject to the payment of an annuity to the sister of the deceased. The trust scheme of the will was therefore set aside, and consequently the life tenant is entitled to the immediate possession of such property. This should not be done, however, until a bond satisfactory to the remainderman is given for the proper conduct of the life tenant. Under these circumstances, it also follows that the executors are also entitled to their commissions, irrespective of whether the property is reduced to cash or not. These commissions should be divided equally between them, and there is no reason shown why the costs of the proceeding should be charged against Fleming personally. An allowance will be made to the accounting executor only; $25 costs and $50 for the per diem compensation provided for by the Code. As neither decree corresponds with my decision, parties must submit an amended decree in conformity with same.

BEARD v. COVILL.

(Steuben County Court. January 5, 1907.)

EXEMPTIONS CLAIMS FOR NECESSARIES-RENT.

A claim for rent is not one for "necessaries," within the meaning of Code Civ. Proc. § 1391, as amended by Laws 1905, p. 370, c. 175, providing that where a judgment has been recovered wholly for necessaries sold, and execution thereon has been returned unsatisfied, and no prop

erty can be found, the creditor may in certain cases have an execution against the wages of the debtor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 23, Exemptions, § 92.]

Action by Charles E. Beard against Miles Covill. Motion on order to show cause why an execution issued on a judgment for plaintiff for necessaries should not be set aside. Order setting execution aside. Floyd E. Whiteman, for plaintiff. Francis M. Cameron, for defendant

BURRELL, J. The facts disclosed by the moving papers show that the plaintiff recovered a judgment in justice's court, on October 12, 1906, against the defendant for rent of premises known as "57 East Main Street," Hornell, N. Y.; that an execution was duly issued thereon against property of the defendant and returned wholly unsatisfied; that thereafter, and on the 8th day of December, 1906, the plaintiff filed an affidavit with the justice who rendered the judgment, setting forth therein the rendition and entry of said judgment, and the issue and return unsatisfied of said execution, and that there was then no execution outstanding upon said judgment, and that said judgment was recovered wholly for necessaries sold, and that defendant's wages exceeded $12 per week, etc., under section 1391 of the Code, as amended by Laws 1905, p. 379, c. 175. Upon said affidavit the justice issued an execution upon said judgment, under said section 1391, against the wages, salary, and income of the defendant, who was an employé of the Erie Railroad Company, and the wages of the defendant were then and there attached and subject to the lien thereof of 10 per centum thereof.

It was urged on the argument of this motion, and undisputed, that the judgment herein was actually and wholly recovered for rent of said premises. The evidence taken before the justice on the trial is not before me, as there was no appeal from the judgment, and the question is presented whether the plaintiff, whose claim is for rent, is entitled to an execution against the wages of the defendant for "necessaries sold"; or, in other words, is the wording of section 1391 of the Code of Civil Procedure, as follows: "Where a judgment has been recovered wholly for necessaries sold," etc., broad enough to cover rent, even though we assume it to be of the house in which the defendant resides with his family, for whom he provides, and there is no evidence before me whether this rent was for rent of house, barn, store, or other building. I think a careful reading of the section as a whole shows clearly that it was the intent of the Legislature to limit the application of the section to articles of the kind usually known as "necessaries" sold and delivered and to the special kind of service mentioned in the section. I do not think it can be said that rent, in the ordinary acceptation of the term, comes under said provision as an article sold.

In Taylor v. Barker, 108 App. Div. 21, 95 N. Y. Supp. 474, it was held that a claim for services rendered by a surgeon to defendant's wife is not within the statute, and the court said:

and 136 New York State Reporter

"Whatever might be spelled out of the words 'necessaries sold' under other circumstances, it must be entirely plain that the Legislature, by using the words, or for work performed in a family as a domestic,' etc., intended to limit the scope of the statute to goods and chattels of the kind known as 'necessaries' and to the special kinds of service mentioned in the act. The rule is as old as the common law that the express mention of one thing implies the exclusion of another (Broom's Legal Maxims [4th Ed.] 414); and it cannot be doubted that this rule should be applied in the present case in arriving at the Legisla ture's intent."

If the services of a physician rendered in the family, and which might be of the utmost importance, even to the saving of life, are held to be outside the scope of this section, it is difficult to see how rent could be held to be one of the "necessaries sold" under the section. A man may be liable for the payment of rent, even though he does not reside on the premises with his family. Premises, in the general acceptation of the term, are let, and not sold, to a tenant by a landlord. I think, if the Legislature had intended to cover such a case as this, it would have manifested its intention either expressly or by necessary implication. It mentions one particular class of necessaries to the exclusion of all others.

The execution should be set aside, but without costs. Ordered accordingly.

BENSON V. AMERICAN ILLUMINATING CO.

(Steuben County Court. January 21, 1907.)

ELECTRICITY-ELECTRIC COMPANIES-DEFECTIVE WIRING BY CUSTOMER-SHUTTING OFF CURRENT.

Where after an electric company has wired an office for light, the customer makes defective connections of other wires with the wiring. causing danger of fires, and refuses to remedy the same, the company, which in case of fire therefrom would be liable for damages to third persons, may shut off the current, without liability to the customer therefor.

Appeal from Justice Court.

Action by Stephen S. Benson against the American Illuminating Company. From a judgment for plaintiff, defendant appeals. Reversed.

Orcutt, Robbins & Brown, for appellant.
Whiteman & Hill, for respondent.

BURRELL, J. This action is brought by the plaintiff, who is a dentist by profession, against the defendant, for damages occasioned by the defendant company in refusing to furnish the plaintiff electric light for the period of about nine days. The evidence shows that about the middle of June, 1905, on the application of the plaintiff, the defendant installed a meter in the plaintiff's place of business, in the city of Hornell, N. Y., did necessary wiring, and made connections with a bull's-eye reflecting light which the plaintiff then had and used in front of his dentist chair, for use on dark days and at night, for illuminating a patient's mouth. Subsequently the plaintiff did some wiring himself, beyond this light to a sign out of a window and to a lathe, and which was a live wire beyond this light when the switch was open.

Subsequently the defendant informed the plaintiff that the wiring he had done himself was defective and dangerous; that the connection near the chair used by patients was liable to set a lady's dress on fire. The defendant thereupon cut off the defective wiring, and the plaintiff then agreed not to connect up the defective wiring again, but subsequently did so, by making slight changes, and also attached two more wires back of the bull's-eye light connected up by the defendant and near the meter, and was again on two occasions informed by the defendant, in effect, that the wiring was defective and dangerous and liable to set the building on fire and requested to remedy the same, which the plaintiff on the last occasion refused to do, and on November 21, 1905, the defendant, finding the wires still remaining in the same condition, shut off the electricity, and the plaintiff was without electric light for the space of about nine days; the light being again turned on by the defendant after service on it of a notice in writing under section 65 of the transportation corporations act.

It would seem to me from the evidence in this case that the plaintiff had a duty to perform in seeing to it that the wires he had attached and which carried the electricity around his office were made safe, and especially so when his attention had been repeatedly called to the fact that his wiring was dangerous and liable to set a patient's dress on fire as well as the building. Under such circumstances it was his duty to have made it safe, without waiting for interference on the part of any other person, and, when the plaintiff failed to do so, it became the duty of the defendant, the defendant having full knowledge of the dangerous conditions existing, to see to it that no one was injured by the electricity which it produces and sent through these defective wires.

If the plaintiff suffered the loss of work during the period the light was off, he contributed to it by absolutely refusing to put his wires in proper condition to be safely used. In the case of Isaac Thomas. Administrator, v. Maysville Gas Company, Impleaded, etc. (Ky.) 56 S. W. 153, 53 L. R. A. 147, which holds "that a corporation which generates and sends electricity into the wires of a street railway company is chargeable with the duty to see that such wires are properly insulated, and it, as well as the street railway company, is liable for failure to perform that duty, if a person is killed because the wires are not properly insulated," the principle is the same as the case at bar. In the case at bar the defendant is a corporation generating and sending electricity into its wires as well as the wires belonging to others. It was sending its electricity into the defective wires of the plaintiff, knowing the wires to be defective and dangerous to persons coming in contact therewith as well as to the building in which they were located, and it was the duty of the defendant to remove the danger when the plaintiff refused so to do.

In the case above cited the Maysville Gas Company generated and furnished the electricity to the Maysville Railway Company, and delivered it into the wires of the street railroad company, and on the occasion of accident, by virtue of the wires owned by the street railway company, the question was squarely presented as to which company was liable, and the court there says: