2. SAME-APPEAL OBJECTIONS NOT MADE AT THE TRIAL.

Objections to a provision for costs in a judgment and for the allowance of an execution cannot be reviewed when raised for the first time on appeal.

Appeal from Judgment on Report of Referee.

Action by Myndert La Grange, as committee of the person and property of Harlan La Grange, an incompetent, against Magdalene I. Merritt, as executrix of the estate of Julia La Grange, deceased. From a judgment in favor of plaintiff on a referee's report, defendant appeals. Affirmed.

The facts are substantially the same as stated in the opinion on former appeal, reported in 88 App. Div. 279, 84 N. Y. Supp. 1092. Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

Jacob W. Clute (Alonzo P. Strong, of counsel), for appellant. Loucks & Loucks, for respondent.

PARKER, P. J. Judging from the complaint in this action, the plaintiff intended to bring an action for the wrongful conversion by the deceased committee, Julia La Grange, of property belonging to the lunatic's estate, to which he (the plaintiff) had succeeded as committee upon her death. If he had recovered upon this theory, it is evident that this judgment could not be sustained. It is clear that no evidence was given upon the trial that would warrant any such action. But the defendant, in answer to such complaint, has set up as a counterclaim various items, some consisting of debts claimed to be due from the lunatic to the deceased committee individually, and some for moneys belonging to his estate, but claimed to have been expended by her as his committee. To these counterclaims plaintiff served a reply. Thus the idea of an action for at conversion seems to have been abandoned, and the plaintiff's action, whatever it was really intended to be, seems to have been considered as one based upon a claim arising ex contractu, rather than upon one arising ex delicto. Upon the former trial, however, before the referee, he made no finding whatever concerning the counterclaims. Although the several items were litigated upon that trial, no decision was made thereon-at least none appeared from the record—and it was not apparent but that all such counterclaims had been disallowed by the referee on the ground that they were not properly triable in the action so set forth in the complaint. The case was therefore sent back to the same referee for his decision upon such counterclaims. 88 App. Div. 279, 84 N. Y. Supp. 1092. It now comes back to us, with the same decision as to the plaintiff's right to recover as was contained in the former report, and with the additional decision that none of the items set forth by the defendant in her counterclaims have been established.

As suggested above, if the plaintiff's action is to be deemed one. ex delicto, this judgment would have to be reversed. But upon the issues framed by the parties, and tried and determined by the court, I am of the opinion that such judgment should not be disturbed. It is true that the proper method of determining the deceased com

89 N.Y.S.-3

and 123 New York State Reporter

mittee's liability to the estate of the lunatic would be by an adjustment and settlement of her accounts, as such, before the proper tribunal. In such a proceeding not only her receipts and disbursements could be fully fixed and allowed, but also all her commissions and proper charges for services rendered could also be adjusted. But her executor in this action has not only neglected to plead that the action of trover would not lie, but has also neglected to set up that such a proceeding for an accounting was necessary to a full adjustment and determination of her liability. She does not even ask that such an accounting be had in this action, but she, after denying the plaintiff's claim, sets up by way of counterclaim sundry items of indebtedness claimed to be due from the lunatic to her, and asks for judgment against the lunatic's estate to that amount. In this respect she seems to assume that the only items of difference between the deceased committee's estate and that of the lunatic's are the several items claimed by the plaintiff to be owing to him and the various items on the other side set up in the counterclaim. She seems to treat these items as the whole account, both debit and credit, between the parties, and to be content that the judgment of the court pass upon them only. Such seems to have been the view that the defendant has taken of the situation; but, be that as it may, the issue which she has clearly tendered has been fully tried in this action. The referee has found that the deceased committee did receive the sum of $235.20 for principal and interest on two certain promissory notes received and held by her as assets of the lunatic's estate, and the further sum of $72 as the value of certain other assets, being personal property either sold or used up by her, and that such amounts were so received over and above any counterclaims or expenditures that were pleaded or established by the defendant in this action; and as to the regularity of such a judgment. I cannot see that she has any cause to complain. I have carefully examined the evidence bearing upon the facts found by the referee, and upon which his conclusions are based, and I am of the opinion. that they sustain the judgment so directed by him.

As to the provision for costs, and the allowance of an execution, which are found in the judgment, those questions cannot be, for the first time, raised on appeal. See Cunningham v. Hewitt, 84 App. Div. 114, 81 N. Y. Supp. 1102; Syms v. Mayor, etc., of New York, 105 N. Y. 154, 11 N. E. 369. However, as to the execution, I understand that on the argument hereof the respondent conceded that its allowance was improper, and consented that the judgment be modified as to that.

I conclude, therefore, that the judgment should be modified by striking therefrom the provision allowing execution, and, as so modified, it should be affirmed, with costs of this appeal. All con

cur.

(96 App. Div. 117.)

SERGENT v. LIVERPOOL & LONDON & GLOBE INS. CO. (Supreme Court, Appellate Division, Third Department.

June 30, 1904.)

1. INSURANCE-KNOWLEDGE OF AGENT-BURDEN OF PROOF. In an action on an insurance policy the burden is on plaintiff to show that defendant's agent knew, at the time that the policy was issued, that the building insured was on leased ground.

2. SAME-EVIDENCE-SUFFICIENCY.

In an action on an insurance policy, evidence held insufficient to show that defendant's agent, when he issued the policy, had knowledge that the building insured was on leased ground.

3. APPEAL-REVIEW OF EVIDENCE-FORMER TRIALS-EFFECT.

The principle that, where a case has been tried three times with the same result, the appellate court will not disturb the verdict as against the weight of evidence, has no application to a case where the verdict has no evidence at all to support it

Appeal from Trial Term, Otsego County.

Action by Adelbert G. Sergent against the Liverpool & London & Globe Insurance Company. From a judgment for plaintiff, and from an order denying a new trial, and from an order granting plaintiff an extra allowance of costs, defendant appeals. Reversed. Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ.

C. H. Thomas, for appellant.

Andrew G. Washbon, for respondent.

CHESTER, J. Under the decision of this case when it was here upon a former appeal (66 App. Div. 46, 73 N. Y. Supp. 120), I fail to see how the judgment now appealed from can be affirmed, for the reason that I am unable to find any substantial difference in the facts in this record from those recited in the opinion upon that appeal. There it was held that, where the agent had testified that he had no knowledge or information, at the time he issued the policy, that the building insured was erected upon leased land, the jury had no right to find, in the absence of evidence contradicting the agent's testimony, that he had any such knowledge. It appeared there, as here, that the plaintiff swore that he told the agent, upwards of a year before the policy in question was issued, and many months before he was the agent of this defendant, that the building stood upon leased ground; but the only evidence upon this trial which it is claimed shows or tends to show that he had any such knowledge at the time he issued the policy is that in an interview between the agent and the plaintiff and his counsel in May, 1893, shortly before the first trial of the action, the agent said, in substance, that the policy in question was the first one he had put in this company, and whenever he insured a building that stood on leased land now he put it in the policy; that, if he had put it in this policy, the company would have been responsible, and the lawsuit saved. This was said after the answer was served,

11. See Insurance, vol. 28, Cent. Dig. § 1658.

and 123 New York State Reporter

and after the agent had been fully advised that the building was on leased land. There is no pretense that the agent said at that time that he did or did not know that this building was upon leased ground at the time he issued the policy. About all that can be claimed for the new evidence is that the agent admitted that when he knew a building was on leased land he mentioned it in the policy. This evidence is not at all inconsistent with the agent's claim that he did not know. The burden was on the plaintiff to show that he did, and that burden is not satisfied by such evidence. When it is borne in mind that the only information which Thomas, the agent, had, according to the plaintiff's claim, concerning the property being upon leased ground, was communicated to him over a year before the policy was issued, and long before Thomas had been commissioned as agent of the defendant, I fail to see, in the face of his denial that he had such knowledge at the time he issued the policy, anything in the new evidence from which the jury could properly find that he in fact had it.

The action is defended also on the ground that the building had been vacant and unoccupied for more than 10 days previous to the fire, without a written consent to that effect indorsed on the policy, and that a condition of the policy made it void in such case. It was claimed on the part of the plaintiff that at the same interview in which he told the agent that the building was on leased ground he also told him that this factory was not running at that time, and that it only ran as he could make satisfactory arrangements with the patrons. It must be presumed that the jury have found that the plaintiff did so tell Thomas, but, even so, that conversation referred to the date of it; that is, that the factory was not running at the time of the interview, and only as he could make satisfactory arrangements with the patrons. There is nothing in the proof to show that that statement referred in any way to the building being vacant at the time of the issuing of the policy, over a year thereafter, or at the time of the fire; nor is there a particle of evidence in the case from which the jury could find that Thomas knew that the building was vacant or unoccupied, and had been for more than 10 days prior to the fire, or from which the jury could have found that the condition of the policy in that respect was waived.

The plaintiff refers to the case of Dorwin v. Westbrook, 11 App. Div. 394, 42 N. Y. Supp. 1123, and invokes the principle that, where a case has been tried three times, and upon each occasion with the same result, the appellate court will not disturb the verdict as against the weight of evidence, but will allow it to stand, and affirm the judgment. But that principle can have no force as applied to a case where the verdict has no evidence at all to support it.

I think, following the decision upon the former appeal, that this judgment and the orders appealed from must be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

(96 App. Div. 8.)

In re GENNERT'S ESTATE.

(Supreme Court, Appellate Division, First Department. June 29, 1904.) 1. ADMINISTRATION-ANCILLARY LETTERS-SOLVENCY OF ESTATE-NONRESIDENT

APPLICANT.

Code Civ. Proc. § 2698, requires that citation must issue to all resident creditors before ancillary letters of administration can be granted. Section 2699 provides that on the return of the citation the surrogate must ascertain as nearly as possible the amount of debts due or claimed to be due from the testator to residents of the state, and, before ancillary letters are issued, the person to whom they are awarded must give bond, which may, in the discretion of the surrogate, be limited to such a sum as will effectually secure the payment of the claims of resident creditors. By section 2701 discretionary power is vested in the surrogate to direct the payment, out of moneys received in this state by an ancillary administrator, of such debts as the testator owed to the persons residing in the state. Held, as these provisions indicate that the main object of granting ancillary letters of administration is to protect the rights of creditors residing in this state, such letters should not be issued where the person applying for them and the deceased were both nonresidents, there are no resident creditors, no personal property is situated within the state, and the estate is solvent.

2. SAME.

Code Civ. Proc. § 2695, providing that where a will of personal prop erty, made by a person who resided within the state at the time of the execution thereof or at the time of his death, has been admitted to probate where it was executed, or where the decedent resided at the time of his death, the Surrogate's Court having jurisdiction of the estate must, upon application made as prescribed in article 7, c. 18, tit. 3, accompanied by a copy of the will and of the foreign letters, if any have been issued, record the will and foreign letters and issue ancillary letters, when read in connection with other sections relating to ancillary letters, gives the Surrogate's Court jurisdiction to issue such letters only upon petition of the person to whom letters have been issued in another state, or else on the petition of a creditor residing in this state.

Appeal from Surrogate's Court, New York County.

Application by one Wuestner for letters of administration with the will annexed on the estate of Gottlieb Gennert, deceased. From a decree granting the application, the executors named in the will appeal. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, MCLAUGHLIN, O'BRIEN, and LAUGHLIN, JJ.

Charles K. Beekman, for appellants.
C. Ewald Menzel, for respondent.

MCLAUGHLIN, J. On the 5th of March, 1901, Gottlieb Gennert died in the state of New Jersey, of which he then was, and for many years prior thereto had been, a resident. He left a last will and testament, which was admitted to probate by the surrogate of the county of Hudson, in the state of New Jersey, on the 29th of March, 1901, and letters testamentary issued to the executors therein named, who have since and now are acting as such. On the 29th of December, 1903, one Wuestner, then a resident of the state of New Jersey, presented a petition to the Surrogate's Court of the county of New York, praying for a decree awarding letters