Such being the case, the appellant was entitled as of strict right to have the certificate in the case, and the order denying the motion was erroneous.

The learned judge before whom the case was tried, in his opinion on denying the motion, said, that the amendment striking out the above certificate was allowed by him because the case on appeal as presented by the defendants did not contain all the evidence, and that his assent to a statement that it did contain all the evidence would have been false.

But in this we think he erred. The case did contain all the evidence that had been deemed by counsel for the appellant and by counsel for the respondent material to the issues.

As was said by the court of appeals in The New York Rubber Company v. Rothery, 112 N. Y., 596; 21 N. Y. State Rep., 841, "we cannot, of course, dictate to a trial court how a case shall be settled, and we do not presume to do any such thing in this case. We can only say that upon the facts appearing as they do here, the motion for the resettlement of the case ought to be granted to the end that the question may again be presented to the learned judge so that he may have an opportunity to resettle it in such manner as shall be consistent with the facts; an opportunity which we are sure none would feel greater pleasure in embracing than the distinguished and learned judge who presided on the trial of this case."

On such resettlement the counsel for the respondent may, if he be so advised, make the case proposed by the appellant contain all the material evidence in the case. The evidence that was left out can be put in a short space. There is nothing to show that this evidence was left out in bad faith by the appellant. If it were so left out another question would arise.

The order appealed from is reversed, with costs, and the case is sent back to be resettled in accordance with the above opinion. SEDGWICK, Ch. J., and DUGRO, J., concur.

DANIEL W. TALLMADGE et al., App'lts, v. PHINEAS C. LOUNSBURY, Pres't, Resp't.

(New York Superior Court, General Term, Filed March 2, 1891.)

REFERENCE-REPORT.

Within sixty days after the submission the referee filed a document which contained a statement of his reasons for his final action, and gave judgment dismissing the complaint. Held, that although it contained no findings of fact, as required by the Code, the omission thereof did not prevent it having the character of a report, even if it was imperfect and an insufficient foundation of a judgment, and that plaintiffs were not entitled to have the reference ended under § 1019 of the Code.

APPEAL by plaintiff from order denying motion to vacate a judgment against him.

Alexander S. Bacon, for app'lts; Blanchard, Gay & Phelps, for resp't.

PER CURIAM.-The action had been referred to a referee to hear and determine. Within sixty days from the time the cause

was submitted, there was filed a document made by the referee. This was assumed to be a decision or report of the referee, and upon it judgment was entered in favor of the defendants. After the expiration of the sixty days, a notice was given to end the reference on the ground that no report had been filed with the clerk or delivered to one of the attorneys, as provided by § 1019, Code Civ. Pro. And thereupon the motion below was made and denied.

The ground taken by the plaintiff was that the document referred to was not a decision or report of the referee, within the meaning of the Code. That document was in its beginning a statement by the referee of reasons for his final action, and it ended: "For the reasons stated, I am forced to the conclusion that whoever may owe the bill in suit, the defendant certainly does not, and I therefore believe the bill ought to be dismissed upon the merits, with costs; judgment accordingly."

This is substantially a direction that there should be judgment for the defendants that the complaint should be dismissed. Although it is the case that the document contained no findings of fact, as required by the Code, this omission did not prevent the document having the character of a report, even if such report be extremely imperfect and an insufficient foundation of a judgment. The referee had made, within the intent of § 1019, his report within the sixty days, and having made it, such as it was, the plaintiff was not entitled to end the reference and to have the cause proceed as if there had been no reference. The judge below, therefore, was right in refusing to vacate the judgment under the notice given. This conclusion leaves the parties to the appropriate remedy in a case where there has been a report and judgment upon it cannot be entered properly.

To the case as it was presented by the motion it was immaterial that the decision had not been made part of the judgment roll Under $1019, it was enough that the decision had been filed within sixty days.

Order affirmed, with ten dollars costs.

SEDGWICK, Ch. J., TRUAX and DUGRO, JJ., concur.

EDWARD SUTORIUS, App'lt, v. EUGENE W. DUNSTAN, Resp't.

(New York Superior Court, General Term, Filed March 2, 1891.)

UNDERTAKING-ARREST-LIABILITY OF SURETIES.

An undertaking given upon obtaining an order of arrest was conditioned that plaintiff, if held not entitled thereto, would pay all costs awarded to defendant and all damages which he may sustain by reason of the arrest, not exceeding a specified sum. Held, that the sum specified included both costs and damages, and that the plaintiff having paid costs to that amount the sureties are not further liable on the undertaking for the damages from the arrest.

APPEAL by plaintiff from a final judgment for defendant, on demurrer to complaint.

Charles Stewart Davison, for app'lt; Daniel D. Sherman, for resp't.

PER CURIAM.-The complaint charged the defendant as one of the sureties upon an undertaking given to procure an order of arrest. It was averred that in the action in which the order was granted there was a judgment for costs for the defendant for a sum greater than $250 and that such judgment was paid. On the argument, it is not denied that this payment enured to the benefit of the surety, this defendant. But it is claimed that he remained liable to pay damages which the plaintiff sustained, by reason of the arrest, not exceeding $250. And the action is to recover the

damages to that extent.

The undertaking follows the words of § 559, Code Civ. Pro. The undertaking of the surety is that if the defendant recover judg ment or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant and all damages which he may sustain by reason of the arrest, not exceeding the sum of $250.

The wording is such that the meaning may be obscure, yet on the whole it should be held that the sum specified is intended to describe the limit of the liability of the surety. To make such a provision practically effective, in protection of the person arrested, there should be a surety or a party that possesses means enough to fulfill the undertaking and a method prescribed for ascertaining the means. It has always been the practiee to require some kind of proof on this subject.

On this subject § 812, Code Civil Procedure, requires that a bond or undertaking executed by a surety must be accompanied by his affidavit to the effect that he is worth the penalty of the bond or the sum specified in the undertaking, etc. There is an intent to place the penalty, if it be a bond, on the level with the sum specified in the undertaking. It is evident that the latter is a sum in which the surety undertakes. There is no reason for excluding from the justification a test of sufficient means to pay costs, and yet this would be the result if the sum specified referred only to damages. These considerations guide us to the result that the section intends that all costs and all damages shall be taken in conjunction and that to them together shall be applied the words: "not exceeding the sum specified in the undertaking." As on the argument it is conceded that the defendant has upon his undertaking the benefit of the payment of costs to the extent of $250, he is not further liable upon the undertaking for the damages from the arrest.

Judgment affirmed, with costs.

SEDGWICK, Ch. J., and TRUAX, J., concur.

In the Matter of the Judicial Accounting of HANNAH MCGOWAN, Executrix of JOHN F. WALLACE, Dec'd.'

(Court of Appeals, Second Division, Filed April 7, 1891.)

1. WILL-LEGACY-INTEREST.

Interest on a general pecuniary legacy begins to run one year after the grant of letters testamentary or of administration.

1 Reversing 32 N. Y. State Rep., 226.

2. SAME.

The words " granting letters testamentary or of administration," as used in the statute includes letters of temporary administration.

APPEAL from a judgment of the general term of the supreme court in the first judicial department, reversing a decree of the surrogate's court of the county of New York as to the claim. of one William Carroll, and also from the whole of such judg

ment.

John F. Wallace died July 23, 1885, leaving a last will and testament. Objections to the probate of the will were filed, and thereafter and on March 3, 1886, letters of temporary administration were granted upon the estate of said deceased. The will was admitted to probate on the 29th day of June, 1887, and on that day letters testamentary were duly issued. By the will a legacy of $20,000 was given to the appellant. The executrix offered to pay the amount of the legacy with interest from the date of issue of letters testamentary. The legatee insisted that he was entitled to interest after the expiration of one year from the date of death of testator. He finally received from the executrix the amount of the legacy less the collateral inheritance tax, with interest from the date of granting letters testamentary, under a stipulation which provided that: "The above check is received by me without prejudice to my claim that I am entitled to interest from one year from the death of the testator, or for any further or other period and that I am not liable to pay the collateral inheritance tax. If the court decides in my favor on such or either of said claims, I am to receive such claims."

Malcolm Campbell, for app'lt; Charles H. Woodbury, for resp't.

PARKER, J.-Two questions are presented by this appeal:

1. Whether interest on a general pecuniary legacy begins to run one year after the testator's death or one year after the grant of letters testamentary or of administration?

2. If one year after grant of letters, does the time begin to run from the date of granting letters of temporary administration pending probate proceedings?

The statute provides that "no legacies shall be paid by any executor or administrator until after the expiration of one year from the time of granting letters testamentary or of administration, unless the same are by the will to be sooner paid." 2 R. S., marg. p. 90, chap. 6, title 3, art. 2, § 43. Prior to such enactment, interest on legacies of the character therein referred to was payable one year after the death of the testator, the exception to the rule being founded generally on facts which the courts have deemed equivalent to a direction in the will to pay interest from the date of testator's death.

Whether the effect of the statute was to change the time when legacies commence to draw interest from one year after the death of a testator to one year after the granting of letters has not been presented to this court in such manner as to require its determination, so far as we have observed, in but one case. In Kerr v. Dougherty, 17 Hun, 341, the general term held that such was the

effect of the statute and accordingly modified the judgment, which embraced interest computed from one year after the death of testator. In the opinion of this court that proposition was not discussed, but the judgment as modified was affirmed, so that the question was necessarily considered and passed upon. 79 N. Y., 327. While it is probably true, as appellant insists, that in no other case has this court been required to pass on the question, still the effect of the statute in that respect has been commented on so frequently as to leave no room to doubt the view of the court, though Kerr v. Doughterty were not controlling. Bradner v. Faulkner, 12 N. Y., 472; Cooke v. Meeker, 36 id., 15-23; Thorn v. Garner, 113 id., 198-202; 22 N. Y. State Rep., 692; Van Rensselaer v. Van Rensselaer, 113 N. Y., 207-215; 22 N. Y. State Rep., 947. In surrogate's court, a number of decisions may be found adhering to the former rule, notwithstanding the cases above cited. Carr v. Bennett, 3 Dem., 459; Dustan v. Carter, id., 149; Clark v. Butler, 4 id., 378; Matter of Gibson, 24 Abb. N. C., 27 N. Y. State Rep., 762.

45;

As

The refusal of the surrogate's court to accept the views of this court as expressed in the cases cited is founded on the claim that they are obiter. We shall, therefore, briefly allude to the reason which has led to the determination that the effect of the statute was to do away with the rule allowing interest on general legacies at the expiration of one year from the death of a testator. that rule was not created by legislative enactment, we must ascertain the principle which led to its adoption. Originally it was assumed that the assent of the executor to the legacy was essential before the title of the legatee became complete, for without such assent the legatee had no authority to take possession of his legacy. The ecclesiastical court at an early period determined that a year from a testator's death the executor should render an account of the performance of the whole will, Swinburne on Wills, part 6, § 19, and consequently that was the time when the executor should assent, or be presumed to assent, to the payment of legacies. The legacies then being due and payable at the end of a year, if payment was longer withheld the legatee was held to be entitled to interest thereafter, and for the same reason that interest is payable on all other demands after the principal becomes due. So a legacy made payable at a given time by the terms of a will on the same principle is held to bear interest from the date when payment is directed to be made.

While it is true that many authorities may be found both in England and this country which declare that interest is payable on general legacies one year after the death of a testator, the basis of the decisions rests in the fact that at such time the principal becomes payable to the legatee.

So when the legislature declared by statute that no legacy shall be paid until after the expiration of one year from the time of granting letters unless the will direct otherwise, the principle upon which the former rule was founded required the courts of this state to hold that interest was not payable until one year after the issue of letters, for not until then was the legatee entitled