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ants, and if successful, upon the trial of the by answer. The cause stood for trial upon that issue of law or fact could succeed in defeating and other issues. Thereafter the defendants the plaintiff.

undertook to make this motion and obtained a But an entire change has transpired in this stay until the plaintiff joins this new defendant, practice, under the ruling in the case of The the necessity of whose presence upon the record Soldiers' Orphans Home of St. Louis, against is one of the very issues to be tried when the Russell Sage and the executors of Jay Gould. cause is reached for trial. It follows that here

In this action, a motion was made by the after a defendant can plead the non-joinder of defendants that the plaintiff be compelled to some one whom he claims is a necessary party, join another defendant, or be stayed, until it and while that issue is awaiting trial he can andid so. The point was presented that the court ticipate the trial by motion and have the plainhad no power to take questions of non-joinder tiff stayed until he complies with the defendant's out of the class of issuable contentions, and pleading. Or he may obtain such an order convert them into motions made upon affidavits without pleading the issue of defect of parties and decided without a trial. This view of our

at all. system of pleading and practice was argued Without commenting upon the above decisbefore the Court of Appeals, by Joseph H. ion, let us note its far reaching effect. Our Choate. But that court affirmed the order whole system of trial by issues of law and fact granting the motion. It rendered no opinion, is involved. The same section of the Code and merely referred to the opinion of the furnishes the warrant for demurrers and answers Special Term, there being likewise no opinion for all other causes, as well as for non-joinder. at General Term.

If they can be superseded in respect of quesIn examining the opinion at chambers - re- tions of joinder, so can they be in regard to ported in the New York Law Journal — we find other issues. Any lawyer may take up the sevno discussion whatever of the question of power. eral grounds of demurrer (or answer) prescribed It thus appears that a subject matter of de- in the Code and substitute motions to compel nurrer and answer is converted into a ground the plaintiff to comply with defendant's theories of motion, without any apparent consideration of plaintiff's case. The alternative is that he of the fundamental change in our practice. be stayed until he does so. Our practice has The particular reason given below for ordering passed through many tribulations, but this inthe joinder of another defendant is, that its troduction of a torrent of motions to try issuapresence is necessary for securing the removal | ble contentions does seem lamentable. Yet, of trustees. We cannot find that the Code ex- | logically, under this decision, lawyers are encepts suits for removal of trustees from the titled to make them and courts are bound to requirement of demurrer and answer for defect hear them. of parties. It may be said that the determina For example, this question of practice is tion whether or not another party should be sometimes intimately connected, in equity cases, joined in a suit for removal of trustees may de- with the cause of action itself. A motion by pend upon the language of the deed or trust, or defendant to compel plaintiff to join another other evidence to be adduced at the trial. This defendant may involve the entire theory of the consideration illustrates the wisdom of the

The granting of such a motion may, chancery practice and of the Code in reserving therefore, subserve the double office of a deall questions of defect of parties until the trial murrer for want of cause of action, as well as of the issue in the cause, whether raised by the for defect of parties. It would seem better to pleadings, or appearing upon the full proofs at follow the Code and let these contentions stand the hearing. However this may be, the Code for the trial. provides the remedy for defect of parties, with Without protracting this article, it must be out exception of any ground, or reason, or ar- apparent that this innovation would disarrange gument upon which the claim of defect may be the entire practice. Litigation would thereafter based.

be converted into a series of trials by affidavits; In the Orphans' Home litigation, it appears or worse still, into a series of double trials that the defendants had pleaded the non-joinder I first, by motions, and in case of failure by the


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moving party, then by normal methods of issues anticipation of death, are deeding away their of law and fact.

property to their heirs instead of leaving it to As no opinion appears upon this question of them by last will and testament. The reason power of the courts to substitute motions for of this is to be found no doubt in the fact that issues, this decision may be the result of inad- it is getting to be such an expensive thing to vertence. If not, it would seem to be worthy settle up an estate, and also in the fact that of legislative attention.

there is so often dissatisfaction among the heirs

and a resort to litigation in consequence.' So far as we have ever been able to find out

“ This item contains sentiments that we often the failure to consult with members of the legal profession has in many instances resulted read in the newspapers and hear from laymen, in a serious financial loss to the person who has

and requires a few comments. refused the aid of some member of the frater

“ In the first place it would seem to be a poor nity. It is needless to argue against the time for an old man to deed away his property proposition that the training of a lawyer enables to his heirs or others, or to otherwise dispose of him to perform his work better than the un

the same when in anticipation of death. tutored layman. To the ignorant and unthink “Such important matters, good judgment and ing the popular denunciation of the members prudence would dictate, might better be atof the legal profession is attractive, and the tended to before a man is disabled with disease ranting corner orator harangues his too-easily- | or infirmities of age, and disturbed with the deluded compatriots with the ills which accrue pangs of anticipated dissolution, and the supto the human race from those skilled and posed conflict of his heirs over the distribution learned in the law. The discussion of the sub- of his estate. Certainly no prudent counselor ject, however, includes that greatest phenome-would ever advise an old man in anticipation non, law and its relation to society, and is of death to deed away his property and put it altogether above the comprehension of those beyond his control except in a very special who ordinarily shout most loudly. Naturally, case, for it too often happens that after the the absence of law would result in a govern- property is thus obtained all love and respect ment by the strong, their accumulation of all for the ‘old man ’soon fade into oblivion, and property, and would end by the transfer of if the anticipation proves to be premature and power from those constituted to exercise execu he afterwards desires to change his plans in retive and other functions to those who con- gard to property matters it would require the quered by physicial force or ingenious inven- services of lawyers and much litigation and tion. Any restoration of peace or resumption attendant legal costs to recover the property of order would at once mark the beginning of again. a new government and hence the commence “There can be no more safe or prudent or ment of law, whether written or otherwise. In less expensive way, for a man to dispose of his other words, law and government may continue property after death, if he is not satisfied with by the common consent of the individuals of a the wise provisions of law for disposing of it, community to recognize others' rights and to than by a last will and testament, executed perform their own duties, even though there when in the possession of health and sound may be no semblance of officials to execute any judgment and influenced by a due regard for of the functions of the State. This is, how- his just relations with his family and kindred ever, getting away from the main subject, and those having meritorious claims upon his which was to introduce a communication which bounty. Judge 2. S. Westbrook, of Amsterdam, recently “ The same legal grounds would probably sent to the Amsterdam Daily Democrat, which exist for contesting the validity of a deed, as of is particularly worthy of consideration in that a will, made by an old man in anticipation of it gives striking examples of how individuals death, for in either case incompetency, fraud or have suffered because they have refused to seek | undue influence, if shown to have entered into legal advice. Judge Westbrook said:

or affected the transaction, would vitiate the in"' It seems that some of our older citizens, instrument.

this part.

“The great trouble is and always has been “A case is recalled of a merchant at Hagathat men do not generally use sufficient judg- man who had his will drawn and signed by two ment and care in such matters, while in many witnesses in proper form, but he retained the cases they are actuated by an avaricious desire instrument without signing it himself and someto beat the law and the lawyers, and save a dollar. time afterwards in anticipation of death he

"Such important business should be attended signed it, but not in the presence of the witto by a prudent and just man in time of health, nesses as the law requires. I remember the when the infirmities of age have not impaired case of a farmer with considerable property, his faculties and judgment, and he may not be residing in the town of Root, who made and subject to the Aattery or intrigues of those sur- executed his will in proper form, but a long rounding him.

time afterwards in anticipation of death he “It is a fact well known to the legal pro- concluded to alter the will, and to do so upon fession that the largest share of the litigation the advise of his doctor took a pair of scissors over estates of decedents and in legally adjust- and cut off and retained the last or residuary ing their affairs after death, is the result of in-clause which disposed of the entire residue of competency, carelessness and cupidity, and an his estate, to which was attached his signature attempt to disregard the plainest provisions of and the signatures of his witness, and then delaw applicable to such matters, and too often stroyed the rest of the instrument that preceded of an attempt to ignore the natural and just

Of course all these wills were worthrights of kindred.

less. If men with important business in hand

" It is not necessary to cite the many cases of would more frequently consult a lawyer when contest over deeds and wills or their legal interalive, they would save to their heirs and estates pretation, executed by old men in anticipation much money that is often expended in litigil- l of death, which were executed as the result of tion in settling up their affairs after death. 1 incompetency, fraud, undue influence, and inmay say that in my opinion nearly all the ex- trigues of various kinds practiced by the benepensive litigations in the courts over the estates ficiaries of such instruments. The law books of deceased persons are the result of their own are full of them. gross carelessness, incompetency or cupidity, in “I have in mind the case of a wealthy busiattempting to transact important business or ness man living in this city, who died within execute important papers without employing a few years, and was always regarded as unlegal counsel.

usually astute in his business affairs. He had " I could instance many cases within my own little respect for the legal profession and rarely experience that illustrate this. I recall the deigned to seek assistance from its members, case of a farmer in the town of Florida some

and relying on his own assured ability and years ago, who gave a justice of the peace one shrewdness, entered into an important business dollar to draw his will and it cost nearly $1,000 | before his death that he would surely have after his death for the courts to legally deter- avoided upon the advice of any good lawyer, mine what the word, “ anything" used therein had he sought it at the expense of ten dollars. meant, whether it applied to a horse, or a mort- As a result that transaction will now cost his gage, or a farm, or neither.

estate at least $75,000 and provide fat fees for “Another case I remember of recent date of several lawyers. a farmer living in Port Jackson who had a jus. “Another case of an esteemed citizen of this tice of the peace draw his will and which after city, who recently died, illustrates strikingly its execution the testator sealed up and laid what I have already attemped to show. This away with care until his heirs should require gentleman entertained the highest disrespect it. When the will was opened for probate for the law and the lawyers, and never could after the death of the testator and read to the appreciate that there was any apparent necesanxious heirs they were astonished to learn sity for the existence of either. He endearthat the testator had never signed it, though : ored in his own peculiar way to transact all his the two witnesses had signed and attested it in financial business so far as he possibly could, due form.

| without legal advice or assistanee, and it was

quite extensive. As a result his affairs were Newton Fiero, of Albany. Papers were read left in such an unintelligent, complicated and by Alexander Simpson, Jr., of Philadelphia; on entangled condition that it will require the ser- "The Local Bar Association ; Its Functions vices of at least half a dozen lawyers to un and Relations to the State Bar Association," ravel and adjust them, besides a large amount and by George Wharton Pepper, of the law deof legal expenses attending their settlement.

partment of the University of Pennsylvania, on “I have no doubt that by the expenditure of Legal Education.” We hope to give these twenty-five dollars a year for proper legal ad- papers at an early day. vice and assistance, his estate would have been Not only was this meeting of the association increased at least to twice its present value. largely attended, but the members were en

These cases are sufficient citations for my thusiastic with reference to its work, and purpose, though I have many more in mind of entered upon its business with an apparent the same purport.

determination to make the influence of the “The legal profession is extremly conserva association felt throughout the State. It is tive, and the members usually endeavor to expected that by the next annual meeting the avoid litigation in adjusting and settling the number of members will be at least one thoudisputes and contentions of men.

In fact law-sand. Both the membership and attendance yers do not obtain their best or most desirable indicate that the association is to be a power in business or compensation from litigated cases. matters relating to the legal profession in the I believe that in nine litigated causes out of State. The session occupied two days, closing ten the lawyers engaged earn at least twice with a banquet on the evening of the eleventh, more than they receive for their services

at which toasts were responded to by distherein.

tinguished members of the Pennsylvania bar. “If men would consult the members of the legal profession more frequently in regard to

The dispensary law in South Carolina seems their important business matters and property

to receive a black eye on any point that is derights and interests, while actively engaged in cided by the courts in relation to it, and the the affairs of life, they would avoid a great latest blow that it has received comes from the amount of trouble and dangerous complications, opinion of Judge Simonton, in which he holds and bring to their estates greater wealth and less that liquors may be brought into the State litigation on account thereof, and afford the from outside for personal use.

It will be relegal profession much better and more desirable membered that the first failure of the law came and profitable business.”

from the failure of grand juries in Charleston

to indict violators of the law, and demonstrated The meeting of the Pennsylvania State Bar the feeling in the State towards the statute., Association at Bedford Springs the roth and The law is also, from a pecuniary standpoint, uth inst. was very largely attended, more than one of the most unfortunate pieces of legislatwo hundred members of the Pennsylvania bar tion that has been enacted in that State, for being in attendance at this the first annual though its adherents claimed that in the first meeting

year of operation it would net the State a revThe association was organized during the enue of half a million dollars, and in the second past winter and the membership already num year bring in a million dollars of revenue, it bers between seven and eight hundred of the has so far failed to make over six thousand dolleading lawyers of the State. The organization lars flow into the State treasury. Factional of the association was taken up with much en differences may

have interfered with the proper thusiasm by Edward P. Allinson, of the Legal working of the law, but its repeal would be of Intelligencer, who was made secretary of the more benefit, at least to the State, than the permanent organization and had the principal present mangled and battered statute. When charge of the arrangements for the annual will it become a recognized principle that the meeting

morals of a community cannot be raised by We published last week the address on “ The harsh measures, or in fact by any sort of legisWork of the Bar Association," delivered by J. !lation?



of many subordinate officers of the State, and, Opinion of Justice D. (ady Herrick at Special Term, on the

therefore, merits a careful consideration. application for a writ of manuumus to compel the comp In 1876, the then existing Constitution was troller to ply the salary of J. W. McCBulland, appointed amended by creating an entirely new official, known by the superintendent of public works, without having taken the civil service examination.

as “a superintendent of public works,” to whom HERRICK, J. This is an application for a writ of

was contided the execution of laws 6 Relating to peremptory mandamus, to be directed to the comp

the repair, navigatiov, construction and improvetroller of the State of New York, commanding him

ment of the canals, except so far as such constructo draw bis warrant for the payment of the salary tion and improvement should be confined to the of the relator as clerk to the collector of canal sta

State engineer and surveyor.” tistics, for the month of llay, 1895.

Being thus made responsible for the care and It appears that on the 26th of April, 189:7, the maintenance of the canals, he was given a corresuperintendent of public works issued a commission sponding power in the selection of his subordinates. to the relator, under his band and seal, in the words After providing for the appointment by him of following:

three assistant superintendents, such amendment “ALBANY, April 26, 1895. further provided that All persons employed in “By virtue of the power vested in me by section the care and management of the canals, except col3, article 5, of the Constitution of the State of New lectors of tolls, and those in the department of the York, I do hereby appoint J. W. McClelland, of State engineer and surveyor, shall be appointed by Albany, N. Y., clerk to collector of canal statistics, the superintendent of public works, subject to susat Albany, N. Y.; salary $65 per month."

pension or removal by him." (('ons. section 3, The relator had passed no civil service examina- article 5.) tion for the position in question, and his name was

It may be well to observe in passing, that the not certified to the comptroller by the civil service

same year an amendment to the Constitution was commission of the State.

| adopted, providing for a superintendent of State The comptroller bases his refusal to draw his war

prisons, who should have the superintendence, rant upon chapter 354 or the Laws of 1883, as amended by chapter 681 of the Laws of 1894, which

management and control of all State prisons, and to

whom was given the appointment of all the agents, provides for arranging in classes, clerks and em-i

wardens and chaplains of the prisons; and giving ployes in the public service of the State, and provides for the certification to the comptroller by the

to the agents and wardens of each prison, the apcivil service commission of the names of all oflicers

, pointment of all officers of such prison, except the

clerk ; and further providing for the appointment clerks or other persons appointed to the public service of the State, from either of said classes, and

of clerks of prisons, by the comptroller. (Cons. prohibits the comptroller from drawing his warrant

section 4, article 5.) for the payment of any salary or compensation to

In 1883, the Legislature, by chapter 354 of the any officer, clerk or other person in the public ser

laws of that year, anthorized the governor, by and vice, who has not been so certitied to him.

with the consent of the Senate, to appoint three The relator contends that the law in question is i persons who should constitute a civil service comnot applicable to his case, and that there is no ne

mission. And it was made the duty of said comcessity for his name being certified to the comp mission “to aid the governor, as he may request, troller by the civil service commission of the State, in preparing suitable rules for carrying this act into because, as he alleges, under the laws and the ('on- effect." It was further enacted that such rules stitution of the State, the appointees of the should provide, amongst other things,for open superiutendent of public works are not subject to competitive examinations," for testing the fitness of civil service laws, but that the power of appoint- I applicants for the public service, now classified, or ment is lodged exclusively in such superintendent, to be classitied hereunder, untrammeled by any laws, rules or regulations Section six of such law provided that Within whatever.

four months after the present session of the LegisThe position taken by the parties to this proceedl- , lature it shall be the duty of the governor to cause ing, makes it necessary to examine not only the civil : to be arranged in classes all the several clerks or service laws of the State, but the Constitution, not persons employee or being in the public service, only as it is, but as it was prior to January 1, 1995. for the purpose of the examination herein provided

The questions presented :ure of yrave importance. 'for, and he shall include in one or more of such seriously affecting the civil service of the State, and classes, so far as practicable, all subordinate places, the administration of some of its greatest and most clerks and officers in the public service of the important departments, as well as the title to office | State."

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