Dodge v. . Cornelius

Baetlett, J. This action is brought to recover a forfeiture under the Statute of Wills (2 R. S. [Edmonds’ edition] page *244 64, § 41), which reads as follows : “ The witnesses to any will, shall write opposite to their names their respective places of residence; and every person who shall sign the testator’s name to.any will by his direction, shall write his own name as a witness to the will. Whoever shall neglect to comply with either of these provisions, shall forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who will sue for the same. Such omission shall not affect the validity of any will; nor shall any person liable to the penalty aforesaid, be excused or incapacitated on that account, from testifying respecting the execution of such will.” The complaint alleges in substance that on the twenty-second day of April, 1895, George Duryea, late a resident of Queens county, executed his last will and testament, which was duly admitted to probate in that county on the fourth day of March, 1898 ; that testator died on the fourteenth day of December, 1897, leaving him surviving among others this plaintiff, a grandchild, heir at law and legatee under the will; that defendant was a subscribing witness to the will and omitted to write opposite his name his place of residence as by the, statute in such case made and provided, whereby an action accrued to the plaintiff in the sum of fifty dollars as a forfeiture for such omission. A judgment for the sum of fifty •dollars, costs and disbursements was demanded. We are invited by members of the court, not by counsel, to .declare unconstitutional this provision of the Statute of Wills which imposes a penalty upon a witness to a will for omitting to write his address opposite his signature. A majority of the court, however, are of the opinion that both upon principle and authority the determination of the trial. court ought not to be affected, even if it can be, upon a ground not invoked by the defendant upon the trial. Many times has it been said"here that the constitutionality of a statute will not be passed upon until a situation is presented which makes it the duty of the court to decide it. (Frees v. Ford, 6 N. Y. 176; Demarest v. Mayor, etc., of N. Y., 147 N. Y. 203, 207; People ex rel. Wetmore v. Supervisors of N. *245 Y., 3 Abb. Ct. App. Dec. 566; In re Attorney-General, 155 N. Y. 441.) Ho such situation is presented as the defendant did not make the point upon the trial, and it is a general rule that a question will not be considered that is raised for the first time in this court. (Quinlan v. Welch, 141 N. Y. 158; Werner v. City of Rochester, 149 N. Y. 563, 565; Snid er v. Snider, 160 N. Y. 151, 155; Purdy v. Erie R. R. Co., 162 N. Y. 42, 51.). If the question was raised in this court for the first time we ought not to consider it, but the point was liot made here and we must, therefore, refuse to pass upon it on still another ground, viz., that the defendant, as was his right, waived the claim of the unconstitutionality of the act. ( Vose v. Cockcroft, 44 N. Y. 415, 424; Durand v. Curtis, 57 N. Y. 1, 7; People v. Fire Association of Philadelphia, 92 N. Y., 311, 326; Matter of Petition of N. Y., L. & W. R. R. Co., 98 N. Y. 447, 453; Cowenhoven v. Ball, 118 N. Y. 231, 235; Brady v. Nally, 151 N. Y. 258, 265; Purdy v. Erie R. R. Co., 162 N. Y. 42, 50.). In Vose v. Cockroft (supra) it was said that “ Under these authorities it is clear that the unconstitutionality' of the "act under which the bond was given was capable"of being waived by the obligor. By failing to raise it or to present it iii any form for the consideration of the court below he waived it as effectually as he could have done by express stipulation.” . In Cowenhoven v. Ball (supra) the court said: “ In civil eases a party may stipulate away all his rights, questions of jurisdiction as well as others, and he may do this by express agreement, by acts inconsistent with the objection or by his silence and omission to present the proper points when he ought to object. And it was held in Purdy's Case (supra) that “ The objection that the statute was an invasion of the defendant’s property rights and contravened for that reason either the Constitution of the United States or the Constitution of this state does not anywhere appear in the record and the rule seems settled that such an objection to be available here must have been raised in the courts below.” *246 We are agreed that the reason assigned by the Appellate Division for a reversal of the judgment fails to support its judgment. The answer avers in substance that the cause of action set forth in the complaint did not accrue within three years before the commencement thereof; that the commission of the alleged offense complained of by the plaintiff occurred on the twenty-second day of April, 1895, more than three .years before the commencement of the action herein, and that the defendant, therefore, pleads that the alleged cause of action is barred by lapse of time. A further alleged defense sets forth as follows : “ That there is now pending in the Supreme Court of the state of Mew York another action to recover the same forfeiture for the same alleged cause of action, in which action Anna Merritt is plaintiff against said George W. Cornelius as defendant.” A dismissal of the complaint was prayed, with costs. An action by this plaintiff against the other subscribing witness to the will abides thk result of this action. At the trial the plaintiff moved for judgment on the pleadings, which motion was granted. On appeal, the Appellate Division, with a divided court, reversed the judgment on the ground that the cause of action was barred by the Statute of Limitations. The Code of Civil .Procedure (§ 383) deals with a number of cases where the action must be brought within three years. Subdivision three thereof reads as follows: “ An action upon a statute, for a penalty or forfeiture, where the action is given to the person aggrieved, or to that person and the people of the state, except where the statute imposing it prescribes a different limitation.” It tlnis appears that the Appellate Division held that the Statute of Limitations as to a cause of action arising under this provision of the Statute of Wills begins to run from the date of the will. This view of the case is erroneous. A last will and testament does not take effect until the death of the testator, and may be revoked by him at any time before that event. The *247 statute does not contemplate that an action will lie for this penalty against a subscribing witness to a will prior to the time that instrument takes effect. If this view should prevail, a testator might execute any number of wills during his lifetime, and, assuming that in each case the subscribing witness failed to observe the provisions of the statute, actions to recover this penalty might be brought as to 'each instrument. This, very clearly, could not have been the intention of the legislature. On the death of the testator the three years’ limitation begins to run. This testator died on the fourteenth day of December, 1897, and the present action was commenced on the thirty-first day of May, 1898. The Appellate Division rested its decision on the Statute of Limitations solely, and considered no other question. The defense sought to be pleaded, that an action was pending to" recover the same forfeiture in the name of another plaintiff, is ineffectual. It is not alleged that the action was pending when the present suit was begun, nor that it is between the same parties. In any event the defendant stands in no peril of a double recovery, as th© first judgment would bar all other actions. The order of the Appellate Division should be reversed, and the judgment of the County Court of Queens county affirmed, with costs to the appellant in all the courts.