THE PEOPLE ex rel. EDWIN W. FISKE, Relator, v. HENRY BANTZ et al., Defendants."

(Supreme Court, Westchester Special Term, May, 1918.)

Elections

motion for an order directing commissioners of election of Westchester county to replace and reseal ballot box and return it to custody of clerk of city of Mount Vernon denied.

MOTION directing the commissioners of election of county of Westchester to replace and reseal the ballot box and return same to custody of the clerk of the city of Mount Vernon.

Arthur M. Johnson, for relator.

J. Henry Esser (George H. Taylor, Jr., James H. Cavanaugh, of counsel), for defendant Brush.

SEEGER, J. On January 7,. 1918, the Special Term ordered the issuance of a peremptory writ of mandamus directing the inspectors of election of the third election district of the third ward of the city of Mount Vernon to reconvene, unseal and open the ballot box in said district, for casting the votes of soldiers, sailors and marines, to take the ballots therefrom, indorse them protested, etc.; to unseal and open the protested ballot package of that district, and place therein all the said ballots from the said ballot box, to reseal that package and deliver it to the commissioners of election of the county, and to file a supplemental statement showing that the said ballots so taken from the said ballot box and placed in the said envelope were so indorsed and filed. The writ was accordingly issued and complied with in proceeding No. 2 above entitled.

Affirmed by Appellate Division, Second Department, June 7, 1918.- [REPR.

In proceeding No. 3 the said Special Term made another order reciting that the court had opened the said envelope containing the said thirteen ballots, and had counted the same and determined that eight of them were cast for Edwin W. Fiske for mayor of the city of Mount Vernon, and five for Edward F. Brush for said office, and that the previous statement of the election inspectors that Fiske had received only five of said votes and that Brush had received eight of the same was false and untrue. Which order further directed that a peremptory writ of mandamus issue correcting the said original error of the inspectors. A peremptory writ of mandamus was issued thereat and the same was complied with. Both of the said orders of the Special Term were on appeal reversed by the Appellate Division of this court by orders granted January 18, 1918, and the said orders of the Appellate Division were affirmed by the Court of Appeals.

The defendant now moves this court for an order directing that the commissioners of election of the county of Westchester, or other person having in custody the said ballot box of soldiers, sailors and marines' ballots for the said office of mayor in the said district, and the envelope containing the void and wholly blank ballots of the said election district, and replace them in the said ballot box, reseal the said ballot box and return the same to the custody of the clerk of the city of Mount Vernon, the same to be preserved inviolate subject to the further order of this court. The original seals of the said ballot box have been broken and cannot be restored. The defendant has, and in fact both parties have, the right to have the said ballots kept in safe custody until the termination of this action, which is on the calendar of the June term for trial, and if the rights of the defendant were likely to be in anywise prejudiced by the present

custody of the said ballots, the defendant would have the absolute right to have said ballots returned to their original custody, and placed in some safe place, where access to the same could be had without prejudice to the rights of either party. It is difficult to see what possible necessity there now is for the return of the said ballots to the said ballot box, where the same would again be sealed up and where they could not be again examined or used up in the trial of this action, except pursuant to an order of this court, or a justice thereof. The return of the ballots would be attended with the risks of removal and transportation, and at the time of the trial of the action it would be necessary to bring them back to the court-house to subject them to the same risk, and it would require additional proof to identify the same and prove their preservation. The said ballots are now in the custody of the commissioners of election in the same building where the courts of Westchester county are held a safer and more convenient place than the office of the clerk of the city of Mount Vernon, to which the defendant asks to have them returned.

Upon the trial of the action the ballots themselves are evidence upon proof that they have been preserved inviolate. People v. McClellan, 191 N. Y. 341, 350; Matter of Metz v. Maddox, 189 id. 460, 469; Matter of Hearst v. Woelper, 183 id. 274.

As no useful purpose will be attained by the return of the ballots now upon the eve of the trial of the action, the motion is denied.

Motion denied.

INDEX

ABUTTING OWNERS.

See Lands Under Water.

ACCOUNTING.

Testamentary trustees - Wills Investment in " Liberty Loan
bonds" justified - Other investments.- Where it appears by the
general scheme of testator's will that he intended his son should
receive not more than $2,000 a year for his support, maintenance
and education during his minority, and that he should receive the
entire income of the estate including whatever had not been expended
of the $2,000 yearly when he attained majority, and thereafter all
the income until he reached the age of thirty-five years provided
none of the contingencies mentioned in the paragraph of the will
relating to the $2,000 occurred, an objection by the special guardian
for the son, on the accounting of the testamentary trustees, that
they had invested and retained all of the income of the estate over
and above the $2,000 a year, and the same not having been
bequeathed by the will should have been paid to the son who was
entitled to the next eventual estate, or to his testamentary guardian,
will be overruled, as the general scheme of the will being consistent
with the rules of law it was the duty of the court to effect the
main purpose of testator. Where the trustees were directed to
invest and reinvest the funds of the estate and keep them invested
in "such bonds issued by railroad corporations in the United States
of America as return an income of not less than four per cent.
per annum at the time of the investment," such direction is
Inandatory. Where the account shows that investments in rail-
road bonds returned an income of more than four per cent. per
annum at the time of investment, an objection by the special
guardian that the trustees should not be credited with losses on
such transactions will be overruled. An investment in New York
city bonds being unauthorized under the will, and objection by the
special guardian that the trustees should not be credited with losses
on such investment will be sustained and the account surcharged.
An investment in the First Liberty Loan bonds held to have been
justified, and an objection of the special guardian thereto overruled.
Matter of London, 372.

ACTIONS.

-

Joinder - Pleading·
There is no rule of

1. Equitable - Who are proper parties
Nuisance Executors and administrators.
law which forbids the joinder in an equitable action of the execu-
trix of one who has been damaged by the acts of the defendant
and the same person in her individual capacity when she has
been injured by a continuation of the acts complained of, where
the purpose of such joinder is to prevent a multiplicity of suits
and the complete determination of the matters in controversy. A
complaint by plaintiff individually and as executrix of her deceased
husband, of whose estate she was the sole beneficiary, alleging

ACTIONS- Continued.

that the defendant village in the lifetime of plaintiff's husband had
constructed and has since maintained a sewer upon premises above
those of plaintiff on a stream of pure and wholesome water into
which defendant discharged the sewage in close proximity to plain-
tiff's residence during the ownership of both her husband and of
herself, giving rise to noxious odors, gases, etc., constituting a
nuisance; that plaintiff, and her husband during his lifetime,
suffered, and plaintiff still suffers, great inconvenience and damage
by reason of said nuisance and that the premises have thus been
rendered of little or no value, etc., is not subject to a demurrer
on the ground that causes of action have been improperly united
in that no alleged cause of action stated as residing in plaintiff
in her individual capacity can be joined with any alleged cause
of action in her representative capacity. A right of action to
recover for the injury to the rental value while plaintiff's husband
was the owner of the fee accrued to him upon the happening of
the injury; such right of action was a personal asset which passed
to her as executrix and did not vest in her individually until the
settlement of the estate. A right to recover for the injury done
to the property during the lifetime of the husband passed to plain-
tiff as his executrix who takes individually only what remains
after the settlement of the debts of decedent and the judicial settle-
ment of her accounts as executrix, until which time she is entitled
to receive the damages sustained during the lifetime of her testator
and to enforce payment thereof by action, if necessary, as a part
of his estate. As owner of the fee of the premises plaintiff is
clearly a necessary and proper party to the present action for
injunctive relief and for such damages as she may have suffered
since the premises passed to her ownership. Gould v. Village of
Fredonia, 270.

2. When plea of another action pending not available — Doctrine
of res adjudicata - Decedent's estates. The doctrine of res adjudi-
cata and the plea of another action pending are not available as a
defense if the same issues are not involved in the prior action or
proceeding, although some questions involved in the issues may
come up for consideration. A determination in a collateral pro-
ceeding in a Surrogate's Court fixing the lien of creditors upon
the proceeds of the sale of real estate of a decedent is not a bar
to an action in equity to determine the lien of the attorneys to the
fund and its priority over that of the creditors, such services having
been rendered subsequently to the death of the decedent.
intermediate order in a proceeding to determine the lien of an
attorney which does not determine the lien, but postpones such deter-
mination until after a final judicial settlement in the Surrogate's
Court, when the fund upon which the lien is asserted may have been
depleted, is not a bar to an action in equity to determine the lien
and its priority over other alleged liens, nor is it available as a
defense of another action pending. Sebring v. Quinn, 630.

An

3. When doctrine of res adjudicata inapplicable. The doctrine of
res adjudicata not only bars a second action upon the identical
cause, but, also, where the causes of action are distinct, it prevents