(178 N.Y.S.) ed, or at least likely, to bring judicial proceedings into public obloquy. The court at the Kings Special Term in this proceeding should have accepted the judgment of this court by the New York Special Term in the other action between the same parties as conclusive as to the validity of the 95-cent rate, as that was one of the issues directly involved and decided by that action; and it may be added that in view of the high character, legal and otherwise, of the learned and distinguished referee by whom the court in that other action made its decision, and the long and patient trial conducted by him, it should not have been an irksome matter for the learned justice at the trial hereof to have obeyed that general rule and to have accepted the judgment in that other action as decisive. This conclusion as to the determining force of the judgment in the other action necessitates the reversal of the judgment appealed from here, without inquiry on our part into the merits of the difference of opinion between the learned referee and the learned justice as to the important point whether or not the adjudged invalidity of the act of 1916 as to this appellant revived as to it the act of 1906; the justice holding to the affirmative and the referee to the negative of that proposition. For us to express an opinion upon that point would be a mere dictum, and such an expression, therefore, should be avoided. [2] There remains to be considered the last reason assigned by the learned justice in his opinion, namely, that in any event, even if the order of July 8, 1913, fixing the rate of 95 cents, has become inoperative, as decided by the referee in the other action, still appellant under section 72 of the Public Service Commissions Law could not change that then existing rate without the consent of the commission. Respondent's counsel here contends that that judgment is not to be regarded as res adjudicata as to the power of the commission to fix a new rate, as the question of that power was not at issue before the court in that action. I do not appreciate this attempted distinction. As above stated, we have not before us in this record the pleadings in that other action, and have therefore to assume that the nominal determinations therein were within the issues. In the referee's report there is a distinct conclusion that the commission has no authority to maintain or enforce the 95-cent rate, and the judgment expressly so adjudged, and further it enjoined the commission from attempting to maintain or enforce that rate. It is elementary that a judgment is resadjudicata, not only for what is expressly decided, but for what is by necessary implication decided in order to sustain it. If it be true, as contended in the justice's opinion, that under said section 72 the rate of 95 cents must stand until the commission consent to a change, the above-stated conclusion of the referee and provision of that judgment cannot stand, and therefore the contrary conclusion to that of the justice is necessarily implied to maintain that provision of the judgment. The conflict between that judgment and this one is self-evident, viz. that one declares that the commission cannot maintain or enforce the 95-cent rate, while this judgment declares in effect that it can, and at the suit of the commission enjoins appellant from charging more, and thus enables the commission to do the very thing which that judgment forbids it to do. My conclusion therefore is that the other judgment should have been accepted by the learned justice at Special Term herein as conclusive that the commission has and had then no right under section 72 to compel the appellant to maintain the 95-cent rate. It may be noted that, although the learned justice in his opinion held that the maximum limit of $1 imposed by the act of 1906 is still in force, he in the judgment expressly authorized the appellant to apply at the foot of the judgment herein for leave to increase its charge above 95 cents. Of course, upon that theory, an increase of 5 cents only would be possible; but the application so permitted was not by the judgment so restricted. The view I have thus taken of the binding force of the judgment in the other action makes it unnecessary to consider the decision of the Court of Appeals in People ex rel. Municipal Gas Co. v. Public Service Commission (2d District) 224 N. Y. 156, 120 N. E. 132, as to which the referee and the justice at Special Term herein are of such opposite opinions, the justice holding that the doctrine of that case that the commission has no power to fix a rate where the statutory rate is invalid as to a particular company as being confiscatory, is limited to a case where such invalidity has not been judicially declared that is, adjudged-whereas the referee held that that doctrine was of general application. [3, 4] Upon the argument it was further suggested that, as the 95cent rate was actually in effect, appellant could not enforce any new rate established by it until 30 days after it had, as required by subdivision 12 of section 66 of that law, given notice to the commission of its change of rate and published the same. It appears that it did not give to the commission such notice until August 8, 1918. It would seem that this contention is well made, and that therefore appellant could not make its change of rate effective until September 8, 1918, and that the judgment appealed from might properly have enjoined the defendant to that extent. I think that the order of the commission of July 8, 1913, and appellant's written acceptance thereof, were in effect the filing required by said section 66. [5] It is also here claimed by the respondent that this court should, from another record upon its files, take judicial notice of certain facts occurring subsequently to the judgment appealed from. Those facts are the following: After the entry of judgment herein, and the taking of the appeal therefrom, the parties by their respective attorneys entered into a stipulation, dated August 28, 1918, to the effect that this appellant would apply to the respondent commission to fix a new rate, and that upon any appeal from or review asked of the new order so made by the commission appellant would not question the jurisdiction or power of the commission to make the same. Thereafter the appellant did apply to the commission to establish the rate of $1.25, and the commission after due hearing made an order on December 13, 1918, fixing a new rate of $1.10, and the appellant in writing accepted that order and agreed to obey it. Thereafter, on December 19, 1918, an order was upon consent made at the Kings Special Term, modifying the judgment herein so (178 N.Y.S.) as to permit that new rate. Then the city of New York applied to the court for leave to intervene and to vacate the latter order, upon the ground that the act of 1906 fixing the maximum rate of $1 was still in force, and the appellant made a new application to the commission to establish a rate of $1.30, and the appellant moved to vacate entirely the judgment herein. But the court on March 10, 1919, made an order denying the latter motion and vacating the said order modifying the judgment herein. The opinion of the justice presiding indicates that he entertained the same opinion as Judge Hughes, that the act of 1906 was repealed by the act of 1916, but that he held that he had no right to vacate or modify the judgment herein because it was made at another Special Term, held by another justice. Upon appeal here on May 23, 1919, we affirmed that order. See Public Service Commission v. Brooklyn Borough Gas Co., 106 Misc. Rep. 549, 175 N. Y. Supp. 28, affirmed 188 App. Div. 935, 176 N. Y. Supp. 918. It is from the record upon that appeal that the respondent asks us now to take judicial notice of those subsequently occurring facts, and thereon to modify the judgment appealed from, so as to allow the $1.10 rate, or, at least, if we prefer to do so, affirm, with leave to appellant to apply to the Special Term for such modification. It seems to me that the respondent is thus asking us to do the very thing which upon that appeal from that last order we refused to do, or to permit another Special Term to do the very thing which in that decision we upheld the justice for refusing to do at Special Term. I conclude, therefore, that we cannot grant that request. Moreover, I think that we cannot so take cognizance of those subsequent facts. I know of no precedent for so doing. The cases cited by respondent's counsel all dealt with facts which pre-existed the judgment or order appealed from, and might properly have been considered by the court in making the same; whereas in this case those facts did not preexist the judgment. The only instance of taking cognizance of subsequent facts which I can recall is where upon a motion to dismiss an appeal such facts are presented to the court to show that the question involved has by virtue of such facts become merely academic, or that the appellant by those facts-for example, by taking the benefit of the judgment or order-has become estopped from prosecuting the appeal. Here neither such situation exists. If it were a new and open question here, I might consider carefully whether or not the said stipulation and the order made by the commission thereunder fixing the rate of $1.10, and appellant's acceptance thereof, did not constitute such a situation; but I am bound to consider that this court in so determining the other appeal has decided to the contrary, because, if not, I can perceive no reason why it should not have reversed that order so made at Special Term, and itself granted the motion to vacate the judgment herein, or at least to modify it. In conclusion, I venture to remark that this proceeding appears to me to have been an attempt to short-circuit-that is, to evade-Judge Hughes' decision, rather than to assail it by direct appeal. If we reverse the judgment appealed from, or modify it so as to limit its injunction to September 8, 1918, our determination cannot interfere with the right of either party to insist upon the rate of $1.10 since so established by the commission. I advise, therefore, that the judgment appealed from be modified, so as to limit its injunction to September 8, 1918, and, as so modified, affirmed, without costs. All concur. (189 App. Div. 87) DELAP v. LEONARD et al. (Supreme Court, Appellate Division, Second Department. October 3, 1919.) 1. REFORMATION OF INSTRUMENTS17(2) - MISTAKE OF SCRIVENER. When there is no mistake about grantor's intention, but only in the writing, the mistake of the scrivener, no matter how it occurred, ought to be corrected. 2. REFORMATION OF INSTRUMENTS 17(2) -DEED OF GIFT-MISTAKE. Where grantor, conveying land to stepdaughter without consideration, instructed lawyer to provide for reversion to grantor upon stepdaughter's death before certain age, deed conveying, by mistake of lawyer, a life estate to stepdaughter, with remainder to her children, if any, and reversion to grantor upon her death without children, will be reformed, so as to convey estate grantor intended to convey. Appeal from Special Term, Kings County. Action by Elizabeth C. Delap against Estelle Delap Leonard and George R. Leonard, 3d. Judgment dismissing complaint on the merits, and plaintiff appeals. Judgment and findings reversed, with directions. Argued before JENKS, P. J., and MILLS, RICH, KELLY, and JAYCOX, JJ. C. W. Wilson, Jr., of Brooklyn, for appellant. Michael Furst, of Brooklyn, guardian ad litem for George R. Leonard, 3d, infant respondent. RICH, J. This action was brought to correct and reform a deed of real property in which it appears plaintiff sought to convey to her stepdaughter, the defendant Estelle Delap Leonard, the undivided one-half of the four parcels of real property mentioned in the complaint. The property was conveyed to plaintiff by her husband shortly before his death. He possessed no other property. Some time after her husband's death, with the purpose of correcting what she deemed to be an oversight on the part of her husband in failing to provide for his daughter, who was 9 years of age and in delicate health, she said to Mr. Donnelly, who was her coexecutor under her husband's will: "I said that I thought that my husband's intention was to divide half the property between his daughter and myself, share and share alike, and I felt that my conscience told me that I ought to deed back half of the property to her in some way; that if she died before she was 21, on account of being in delicate health, it would come back to me, as the Delaps had plenty. I said I thought it was just and right, and it annoyed me after the will was filed and I found out about the will. I thought she ought to have half, and I thought I ought to get it back, if she died, because I never thought she would live to be 21." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (178 N.Y.S.) She said she never had a thought of Estelle getting married or having children. She requested him to employ an attorney to prepare the necessary conveyance. Accordingly an eminent lawyer was engaged, and the deed in suit was prepared in his office. It was executed by the plaintiff in the office of the lawyer on the 12th day of November, 1901, but instead of being drawn according to plaintiff's direction it purported to convey the use of an undivided one-half of the property during the term of her natural life "and in the event of her dying at any time leaving her surviving lawful issue, then to such issue of the said party hereto of the second part and their heirs forever in fee simple absolute. Upon the death of the said party hereto of the second part at any time without leaving lawful issue her surviving, the estate hereby conveyed shall then cease and determine, and the estate in the premises hereby conveyed to said party hereto of the second part for life shall revert to and vest in the said party hereto of the first part, her heirs and assigns forever, in all respects as if this conveyance had not been made." It appears from the uncontradicted evidence that plaintiff was ill at the time the paper was executed, it was different from what she intended, and that when she executed the deed she supposed she was conveying the one undivided one-half to her stepdaughter, with the reservation that, if the stepdaughter should die before she attained her majority, the property should revert to the plaintiff. The plaintiff received no consideration for the deed. She sought to convey the property to her stepdaughter voluntarily as an act of justice. Owing to what was undoubtedly a mistake of the scrivener, her purpose was thwarted. Estelle Columbia Delap was married, and the defendant George R. Leonard, 3d, is her son. The learned trial justice who presided was of the opinion that "It would be a dangerous use of the equitable powers of this court to change, after the lapse of many years, the provisions and effect of a grant of real property." [1, 2] The plaintiff should not be penalized because of this mistake. When there is no mistake about plaintiff's intention, but only in the writing, the mistake of the scrivener, no matter how it occurred, ought to be corrected. Pitcher v. Hennessey, 48 N. Y. 415; Born v. Schrenkeisen, 110 N. Y. 55, 17 Ν. Ε. 339. And this is so, notwithstanding a long period of time has elapsed between the time of the execution of the deed and the discovery of the mistake. And there is reason for it in the instant case, in that this is not the question of reforming an agreement between two parties, but of a gift from plaintiff to her stepdaughter, and in such case a mistake in the estate granted is sufficient to justify a decree for reformation. Schrieber v. Goldsmith, 39 Misc. Rep. 381, 79 N. Y. Supp. 846; Lister v. Hodgson, 4 L. R. Eq. 34; Crockett v. Crockett, 73 Ga. 647; Andrews v. Andrews, 12 Ind. 348. The judgment and findings should be reversed, new findings substituted, and a decree of reformation directed to be entered accordingly, without costs. All concur, except JENKS, P. J., not voting. |